34746 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 8

[FRL–7004–9]

Environmental Impact Assessment of

Nongovernmental Activities in

Antarctica

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Public Law 104–227, the

Antarctic Science, Tourism, and

Conservation Act of 1996 (the Act),

amends the Antarctic Conservation Act

of 1978 to implement the Protocol on

Environmental Protection (the Protocol)

to the Antarctic Treaty of 1959 (the

Treaty). The Act directs the

Environmental Protection Agency (EPA)

to promulgate regulations that provide

for assessment of the environmental

impacts of nongovernmental activities

in Antarctica and for coordination of the

review of information regarding

environmental impact assessments

received from other Parties under the

Protocol. This proposed rule would

establish requirements for assessments

and coordination.

DATES: Comments must be received on

or before July 30, 2001.

ADDRESSES: Send written comments to

Mr. Joseph Montgomery; Director, NEPA

Compliance Division; Office of Federal

Activities (2252A); U.S. Environmental

Protection Agency; 1200 Pennsylvania

Avenue, NW.; Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Mr.

Joseph Montgomery or Ms. Katherine

Biggs at telephone: (202) 564–7157 or

(202) 564–7144, respectively.

SUPPLEMENTARY INFORMATION: This

preamble is organized according to the

following outline:

I. Introduction

A. Statutory Background

B. Background of the Rulemaking

II. Description of Program and These

Proposed Regulations

A. The Antarctic Treaty and Protocol

B. The Purpose of These Proposed

Regulations

C. Summary of the Protocol

D. Activities Covered by These Proposed

Regulations

1. Persons Required to Carry Out an EIA

2. Differences Between Governmental and

Nongovernmental Activities

3. Appropriate Level of Environmental

Documentation

4. Criteria for a CEE

5. Measures to Assess and Verify

Environmental Impacts

E. Incorporation of Information,

Consolidation of Environmental

Documentation, Waiver or Modification

of Deadlines, and Provision for MultiYear Environmental Documentation

F. Submission of Environmental

Documents

G. Prohibited Acts, Enforcement and

Penalties

H. Provision for Categorical Exclusions

III. Coordination of Review of Information

Received from Other Parties to the Treaty

IV. Executive Order 12866 Clearance

V. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA, 5 U.S.C. 601 et seq.)

VI. Unfunded Mandates Reform Act

VII. Paperwork Reduction Act

VIII. National Technology Transfer and

Advancement Act of 1995 (‘‘NTTAA’’),

Public Law 104–113, section 12(d) (15

U.S.C. 272 note)

IX. Executive Order 12898, Federal Actions

to Address Environmental Justice in

Minority Populations and Low-Income

Populations

X. Executive Order 13132, Federalism

XI. Executive Order 13175, Tribal

Consultation

XII. Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks

I. Introduction

A. Statutory Background

On October 2, 1996, the President

signed into law the Antarctic Science,

Tourism, and Conservation Act of 1996

(the Act). The purpose of the Act is to

implement the provisions of the

Protocol on Environmental Protection

(the Protocol) to the Antarctic Treaty of

1959 (the Treaty). The Act provides that:

‘‘The [Environmental Protection

Agency] shall within 2 years after the

date of * * * enactment * * *

promulgate regulations to provide for

* * * the environmental impact

assessment of nongovernmental

activities, including tourism, for which

the United States is required to give

advance notice under Paragraph 5 of

Article VII of the Treaty * * * and

* * * coordination of the review of

information regarding environmental

impact assessment received from other

Parties under the Protocol.’’ Regulations

must be ‘‘consistent with Annex I to the

Protocol.’’

B. Background of the Rulemaking

Although the Act gave the

Environmental Protection Agency (EPA)

two years to promulgate regulations, the

United States (U.S.) sought immediate

ratification of the Protocol which, in

turn, required EPA, contemporaneous

with ratification, to have regulations in

effect which enabled the U.S. to comply

with its obligations under the Protocol.

Accordingly, on April 30, 1997, EPA

promulgated an interim final rule so

that the United States could ratify the

Protocol and implement its obligations

under the Protocol as soon as the

Protocol entered into force.

Because of the importance of

facilitating the Protocol’s prompt entry

into force, EPA believed it had good

cause under 5 U.S.C. 553(b)(B) to find

that implementation of notice and

comment procedures for the interim

final rule would be contrary to the

public interest and unnecessary.

Therefore, the interim final regulations

were issued without notice and an

opportunity to comment and, for the

same reasons, under 5 U.S.C. 553(d)(3),

the interim final regulations took effect

on April 30, 1997.

Further, EPA believed that public

comment on the requirements for

environmental documentation,

including procedures and content, in

the interim final regulations was

unnecessary because the interim final

regulations incorporated the

environmental documentation

requirements of the Protocol, which was

signed by the U.S. in 1991 and received

the advice and consent of the Senate in

1992. Specifically, language from the

Protocol was incorporated into the

interim final regulations regarding the

content of initial environmental

evaluation (IEE) and comprehensive

environmental evaluation (CEE)

documentation as required by the

Protocol, and the timing requirements of

the interim final regulations were set

out to meet those established by Annex

I to the Protocol.

At the time the interim final

regulations were promulgated, EPA

announced its plans to provide

extensive opportunities for public

comment in the development of the

proposed final regulations. EPA stated

the final regulations would be proposed

and promulgated in accordance with the

provisions of the Administrative

Procedure Act (5 U.S.C. 553 et seq.),

which generally requires notice to the

public, description of the substance of

the proposed rule and an opportunity

for public comment. Further, EPA

announced that it would prepare under

the National Environmental Policy Act

(42 U.S.C. 4321 et seq.) an

Environmental Impact Statement (EIS),

which would consider the

environmental impacts of the proposed

rule and alternatives and which would

address the environmental and

regulatory issues raised by interested

agencies, organizations, groups and

individuals and that the public would

have an opportunity to participate in the

scoping process for the EIS. The Notice

of Availability for the ‘‘Draft

Environmental Impact Statement for the

Proposed Rule on Environmental Impact

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34747

Assessment of Nongovernmental

Activities in Antarctica’’ (DEIS) was

published in the Federal Register on

February 16, 2001; the public comment

period closed on April 2, 2001. In

preparing this proposed rule, EPA has

considered the comments received on

the issues involved with and the

alternatives presented in the DEIS for

this regulatory action.

The interim final regulations were

intended to be limited in time and effect

to provide for a transition period until

the final regulations could be developed

prior to the statutory deadline of

October 2, 1998. However, during

scoping, the International Association of

Antarctica Tour Operators, individual

tour operators, and The Antarctica

Project/Antarctic and Southern Ocean

Coalition requested that the deadline for

the interim final rule be extended to

give the operators an opportunity to

determine the ‘‘workability’’ of the

requirements and then to comment to

EPA. After consultation with other

interested federal agencies, EPA

determined that this request was

reasonable and that additional time to

develop the final rule would be

beneficial. Thus, EPA issued a direct

amendment to the interim final rule

effective July 14, 1998, which extended

its applicability through the 2000–2001

austral summer. The interim final

regulations served as the model for

these proposed regulations which are

described below. Certain aspects of

these proposed regulations are new or

different from the interim final

regulations, including a new provision

that would allow submission of

environmental documentation on a

multi-year basis and a definition of the

term ‘‘more than a minor or transitory

impact.’’

II. Description of Program and These

Proposed Regulations

A. The Antarctic Treaty and Protocol

The Antarctic Treaty of 1959 entered

into force in 1961 and guarantees

freedom of scientific research in

Antarctica, reserves Antarctica

exclusively for peaceful purposes,

establishes regular meetings of the

Parties to the Treaty (Parties) to develop

measures to implement the Treaty and

to deal with issues that may arise, and

freezes territorial claims. Currently 27

countries participate in decision-making

under the Treaty as Consultative Parties.

Seventeen other countries are Parties,

but may not block decisions taken by

consensus of the Consultative Parties.

As human activities in Antarctica

intensified, concern grew regarding the

effects of such activities on the

Antarctic environment and the potential

consequences of the development of

mineral resources. In 1990, the U.S.

Congress responded by passing the

Antarctic Protection Act, which

prohibited persons subject to U.S.

jurisdiction from engaging in Antarctic

mineral resource activities and called

for the negotiation of an environmental

protection agreement.

Over the years, the Antarctic Treaty

Parties have adopted a variety of

measures to protect the Antarctic

environment. In 1991, the Parties

adopted the Protocol on Environmental

Protection which builds upon the Treaty

by extending and strengthening

Antarctic environmental protection. The

Protocol designates Antarctica as a

natural reserve dedicated to peace and

science, and bans non-scientific mineral

activities. The Protocol requires prior

assessment of the possible

environmental impacts of all activities

to be carried out in Antarctica. It

establishes the Committee for

Environmental Protection (the

Committee) to provide expert scientific

and technical advice to the Parties on

measures necessary to effectively

implement the Protocol. The Protocol

requires that draft CEEs for activities

likely to have more than a minor or

transitory impact on Antarctica and its

dependent and associated ecosystems be

provided to the Parties and to the

Committee. Because legislation was

needed in order for the United States to

be able to implement its obligations

under the Protocol, the Antarctic

Science, Tourism, and Conservation Act

of 1996 was enacted by Congress. The

Act directs EPA to issue regulations

implementing the requirements for

environmental impact assessments of

nongovernmental activities, including

tourism, for which the U.S. is required

to give advance notice under the Treaty.

B. The Purpose of These Proposed

Regulations

The purpose of these proposed

regulations is to provide for the

evaluation of the potential

environmental impact of those

nongovernmental activities in

Antarctica, including tourism, for which

the United States is required to give

advance notice under paragraph 5 of

Article VII of the Treaty. The Treaty

requires notice of, inter alia, ‘‘all

expeditions to Antarctica organized in

or proceeding from’’ the United States.

In addition, these regulations would

provide for coordination of reviews of

draft CEEs received from other Parties,

in accordance with the Protocol. The

Act states that these regulations are to

be consistent with Annex I to the

Protocol.

Among other things, these proposed

regulations specify the procedures that

would need to be followed by any

person or persons organizing a

nongovernmental expedition to or

within Antarctica (‘operator’ or

‘operators’) in evaluating the potential

environmental impacts of their

activities. These proposed regulations

include considerations and elements

relevant to environmental

documentation of the evaluation, as

well as procedures for submission of

environmental documentation that

would allow the EPA to review whether

the evaluation meets the provisions of

the proposed regulations and the

requirements of Annex I of the Protocol.

Operators currently provide

information prior to each Antarctic

summer season to the Department of

State to meet U.S. obligations for

notification pursuant to Article VII of

the Treaty, which requires advance

notice of expeditions to and within

Antarctica. This information is also part

of the basic information requirements

for preparation of environmental

documentation, as addressed in Section

8.4(a) of these proposed regulations.

While operators would be required to

include this information in

environmental documentation, they

could also continue to provide this

information directly to the Department

of State.

C. Summary of the Protocol

This proposed rule would implement

Annex I to the Protocol, which describes

procedures to be used in conducting

environmental impact assessments of

effects of activities in Antarctica. Article

8 of the Protocol provides that Parties to

the Protocol ensure that the assessment

procedures of Annex I are applied in

planning processes leading to decisions

about any activities, including

nongovernmental activities, including

tourism, to be undertaken in the

Antarctic Treaty area for which advance

notice is required under paragraph 5 of

Article VII of the Treaty.

The procedures set forth in Annex I

require that all proposed activities by

operators be assessed, through one or

more stages of assessment. If an activity

will have an impact that is less than

minor or transitory, only a preliminary

environmental assessment would need

to be submitted under these proposed

regulations before the activity proceeds.

For an activity that will have no more

than a minor or transitory impact, an

initial environmental evaluation (IEE)

would need to be submitted under these

proposed regulations before the activity

34748 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

proceeds. Finally, if it is determined

(through an IEE or otherwise) that an

activity is likely to have more than a

minor or transitory impact, a

comprehensive environmental

evaluation (CEE) would need to be

submitted under these proposed

regulations before the activity proceeds.

An IEE describes an activity’s

purpose, location, duration and

intensity, and considers alternatives and

assesses impacts, including cumulative

impacts, in light of existing and known

proposed activities. A CEE is a detailed

analysis that comprehensively evaluates

the activity, its impacts, alternatives,

mitigation and the like. A draft CEE

must be provided to the Parties and the

Committee at least 120 days before the

next consultative meeting where the

draft CEE may be addressed. No final

decision shall be taken to proceed with

any activity for which a CEE is prepared

unless there has been an opportunity for

consideration of the draft CEE at an

Antarctic Treaty Consultative Meeting

(ATCM) on the advice of the Committee

(unless the decision to proceed with the

activity has already been delayed more

than 15 months since the date of

circulation of the draft CEE). A final

CEE must be circulated at least 60 days

before commencement of the proposed

activity. Any decision by the operator

on whether a proposed activity should

proceed in either its original or

modified form must be based upon the

final CEE as well as other relevant

considerations, and procedures must be

put in place for monitoring the impact

of any activity that proceeds following

completion of a CEE.

Evaluations need to address Annex I

to the Protocol. The information

contained in an evaluation should allow

the operator to make decisions based on

a sound understanding of factors

relevant to the likely impact of the

proposed activity. An evaluation

should, as appropriate, contain

sufficient information to allow

assessments of, and informed

judgements about, the likely impacts of

proposed activities on the Antarctic

environment and on the value of the

Antarctic environment for the conduct

of scientific research. Depending on the

specific circumstances surrounding the

proposed activities, various factors may

be relevant for consideration in the

environmental impact assessment

process such as the scope, duration and

intensity of the activity proposed in

Antarctica, cumulative impacts, impacts

on other activities in the Antarctic

Treaty area, and capacity to assess and

verify adverse environmental impacts.

Operators may also find it appropriate

to consider the availability of

technology and procedures for

environmentally safe operations and

whether there exists the capacity to

respond promptly and effectively to

accidents with environmental effects.

D. Activities Covered by These Proposed

Regulations

1. Persons Required To Carry Out an

EIA

The requirements of these proposed

regulations would apply to operators of

nongovernmental expeditions organized

in or proceeding from the territory of the

United States to Antarctica. The term

‘‘expedition’’ is taken from paragraph 5

of Article VII of the Treaty and

encompasses all actions or activities

undertaken by a nongovernmental

expedition while it is in Antarctica.

These proposed regulations would not

apply to individual U.S. citizens or

groups of citizens planning to travel to

Antarctica on an expedition for which

they are not acting as an operator.

For a commercial tour, typical

functions of an operator would include,

for example, acting as the primary

person or group of persons responsible

for acquiring use of vessels or aircraft,

hiring expedition staff, planning

itineraries, and other organizational

responsibilities. Non-commercial

expeditions covered by these proposed

regulations would include trips by

yachts, skiing or mountaineering

expeditions, privately funded research

expeditions, and other nongovernmental

or nongovernment-sponsored activities.

These proposed regulations would not

apply to U.S. citizens who participate in

tours organized in and proceeding from

countries other than the United States.

As provided in the Protocol, the

proposed requirements do not apply to

activities undertaken in the Antarctic

Treaty area that are governed by the

Convention on the Conservation of

Antarctic Marine Living Resources or

the Convention for the Conservation of

Antarctic Seals. Persons traveling to

Antarctica are subject to the

requirements of the Marine Mammal

Protection Act, 16 U.S.C. 1371 et seq.

2. Differences Between Governmental

and Nongovernmental Activities

These proposed regulations would not

apply to governmental activities. C.f. 45

CFR 641.10 through 641.22 (National

Science Foundation regulations for

assessing impacts of governmental

activities in Antarctica). However, EPA

believes that, to the extent practicable,

similar procedures should generally be

used for assessing both governmental

and nongovernmental activities.

Consistent with this approach, these

proposed regulations generally establish

procedures for assessing the impacts of

nongovernmental activities in

Antarctica similar to those used for

governmental activities under the

National Science Foundation

regulations.

However, EPA also recognizes that it

will not always be appropriate to apply

identical standards and procedures for

governmental and nongovernmental

activities. Specifically, numerous

mechanisms and processes exist to

ensure public scrutiny and

accountability of governmental

activities. In some instances, no

comparable mechanisms or processes

exist for nongovernmental activities.

Thus, these proposed regulations

provide for direct federal review of each

nongovernmental environmental impact

assessment by giving EPA authority to

review, in consultation with other

interested federal agencies,

nongovernmental environmental impact

assessments for compliance with the

requirements of Annex I to the Protocol

and these proposed regulations.

To promote consistency regarding

environmental documentation, EPA

intends to consult with the National

Science Foundation and other U.S.

government agencies with appropriate

expertise in the course of reviewing the

assessments of proposed

nongovernmental activities in the

Antarctic. Further, following the final

response from the operator to EPA’s

initial comments, EPA would obtain the

concurrence of the National Science

Foundation in making any

determination that the environmental

documentation submitted by an

operator fails to meet the requirements

under Article 8 and Annex I to the

Protocol and the provisions of these

proposed regulations.

3. Appropriate Level of Environmental

Documentation

(a) Preliminary Environmental Review

Memorandum (PERM). These proposed

regulations provide that an operator

who asserts that an expedition will have

less than a minor or transitory impact

would provide a Preliminary

Environmental Review Memorandum

(PERM) to the EPA no later than 180

days before the proposed departure of

the expedition to Antarctica. The timing

requirement has been established to

provide sufficient time for the operator

to prepare an IEE if one is needed. The

EPA, in consultation with other

interested federal agencies, would

review the PERM to determine if it is

sufficient to demonstrate that the

activity will have less than a minor or

transitory impact or whether additional

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34749

environmental documentation, i.e., an

IEE or CEE, is required to meet the

obligations of Annex I. The EPA would

provide its comments to the operator

within fifteen (15) days of receipt of the

PERM, and the operator would have

seventy-five (75) days to prepare a

revised PERM or an IEE, if necessary.

Following the final response from the

operator, EPA may make a finding that

the environmental documentation

submitted does not meet the

requirements of Article 8 and Annex I

of the Protocol and the provisions of

these regulations. This finding would be

made with the concurrence of the

National Science Foundation. If EPA

does not provide such notice within

thirty (30) days, the operator would be

deemed to have met the requirements of

these proposed regulations.

If EPA recommends an IEE and one is

prepared and submitted within the

seventy-five (75) day response period,

the schedule for review would follow

the time frames set out for an IEE in

these regulations. (See: section II.D.3(b),

below.) Should EPA recommend a CEE,

timing requirements applicable to CEEs

may necessitate a delay in plans to

initiate a proposed activity. Operators

are encouraged to consult with EPA on

options in this regard.

(b) Initial Environmental Evaluation

(IEE). Article 2 of Annex I to the

Protocol requires that unless it has been

determined that an activity will have

less than a minor or transitory impact,

or unless a CEE is being prepared in

accordance with Article 3 of Annex I, an

IEE must be prepared. Among the items

to be included in an IEE to document

that an activity will have no more than

a minor or transitory impact are the

cumulative impacts of the proposed

activity in light of existing and known

proposed activities. Expeditions, by

their nature, involve the transport of

persons to Antarctica that will result in

physical impacts, which may include,

but not be limited to: Air emissions,

discharges to the ocean, noise from

engines, landings for sight-seeing, and

activities by visitors near wildlife.

Accordingly, it is EPA’s view, which

has been confirmed by its experience

under the interim final regulations, that,

at a minimum, an IEE is the appropriate

level of environmental documentation

for proposed activities where multiples

of the activity over time are likely and

may create a cumulative impact, unless

an existing IEE or CEE supports a

finding that the type of activity

proposed results in a less than minor or

transitory cumulative impact. However,

as noted below, it is also EPA’s view

that the types of nongovernmental

activities that are currently being carried

out will typically be unlikely to have

impacts that are more than minor or

transitory assuming that activities will

be carried out in accordance with the

guidelines set forth in the ATCM

Recommendation XVIII–1, Tourism and

Non-Governmental Activities, the

relevant provisions of other U.S.

statutes, and Annexes II-V to the

Protocol. In the event that a

determination is made that a CEE is

needed to meet the requirements of

Annex I to the Protocol and the

provisions of these proposed

regulations, timing requirements

applicable to CEEs may necessitate a

delay in plans to initiate a proposed

activity, and operators are encouraged to

consult with EPA on options.

Any operator who wishes to make an

expedition to Antarctica would be

required to provide an IEE to EPA no

less than ninety (90) days prior to the

proposed departure of the expedition to

Antarctica unless: (1) A decision has

been made to prepare a CEE, or (2) the

operator has submitted a PERM and

there has not been a finding within the

time limits of these regulations that the

PERM fails to meet the requirements

under Annex I to the Protocol and the

provisions of these proposed

regulations.

The EPA would provide its comments

to the operator within thirty (30) days of

receipt of the IEE, and the operator

would have forty-five (45) days to

prepare a revised IEE, if necessary.

Following the final response from the

operator, EPA may make a finding that

the documentation submitted does not

meet the requirements of Article 8 and

Annex I of the Protocol and the

provisions of these regulations. This

finding would be made with the

concurrence of the National Science

Foundation. If such a notice is required,

EPA would provide it within fifteen (15)

days of receiving the final IEE from the

operator or, if the operator does not

provide a final IEE, within sixty (60)

days following EPA’s comments on the

original IEE. If EPA does not provide

notice within these time limits, the

operator would be deemed to have met

the requirements of these proposed

regulations, provided that procedures,

which may include appropriate

monitoring, are carried out to assess and

verify the impact of the activity.

If a CEE is required, the operator must

adhere to the time limits applicable to

such documentation. (See: section

II.D.3.(c), below.) In the event that a

determination is made that a CEE is

required, EPA, at the operator’s request,

would consult with the operator

regarding possible changes in the

proposed activity that would allow

preparation of an IEE.

The EPA, upon receipt of an IEE,

would electronically publish notice of

its receipt on the Office of Federal

Activities’ World Wide Web Site:

http://www.epa.gov/oeca/ofa/. The

Department of State would circulate to

the Parties and make publicly available

a copy of an annual list of IEEs prepared

by U.S. operators in accordance with

Article 2 of Annex I of the Protocol and

any decisions taken in consequence

thereof. Any IEE prepared in accordance

with these regulations would be made

available by the EPA on request.

(c) Comprehensive Environmental

Evaluation (CEE). Article 3(4), of Annex

I of the Protocol requires that draft CEEs

be distributed to all Parties and the

Committee 120 days in advance of the

next Antarctic Treaty Consultative

Meeting at which the CEE may be

addressed. Since the next ATCM is

anticipated to be in July 2001, CEEs

prepared for nongovernmental activities

in the 2001–2002 season would have to

have been distributed by March 2001.

Operators who are anticipating activities

for the 2002–2003 season which would

require a CEE are encouraged to consult

with the EPA as soon as possible.

In order to meet the requirements of

Article 3(4), of Annex I of the Protocol

which requires that draft CEEs be

distributed to all Parties and the

Committee 120 days in advance of the

next Antarctic Treaty Consultative

Meeting at which the CEE may be

addressed, and because the ATCM

generally meets in May, the schedule in

the proposed regulations for submitting

a draft CEE is the preceding November

in order to ensure time for its

distribution to all Parties and the

Committee 120 days in advance of the

ATCM. Thus, for example, for the 2002–

2003 season, any operator who plans an

activity which would require a CEE

would need to submit a draft of the CEE

to EPA by December 1, 2001. Within

fifteen (15) days of receipt of the draft

CEE, EPA would send it to the

Department of State for transmittal as a

draft CEE to other Parties and EPA

would publish notice of receipt of the

CEE in the Federal Register and would

provide copies to any person upon

request. The EPA would accept public

comments on the CEE for a period of

ninety (90) days following notice in the

Federal Register. The EPA would make

these public comments available to the

operator.

The EPA, in consultation with other

interested federal agencies, would

review the CEE to determine if it meets

the requirements under Annex I to the

Protocol and the provisions of these

34750 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

proposed regulations and transmit its

comments to the operator within 120

days following publication of notice of

availability in the Federal Register to

allow for the inclusion of any additional

information in the CEE. The operator

would need to prepare a final CEE that

addresses and includes or summarizes

any comments on the draft CEE received

from EPA, the public and the Parties.

The final CEE would need to be sent to

EPA at least seventy-five (75) days

before proposed departure. Following

the final response from the operator, the

EPA would inform the operator if EPA,

with the concurrence of the National

Science Foundation, makes the finding

that the environmental documentation

submitted does not meet the

requirements of Article 8 and Annex I

of the Protocol and the provisions of

these regulations. This notification

would occur within fifteen (15) days of

submittal of the final CEE if the CEE is

submitted by the operator within the

time limits set out in these regulations.

If no final CEE is submitted by the

operator, or if the operator fails to meet

these time limits, EPA would provide

such notification sixty (60) days prior to

departure of the expedition. If, after

receipt of such notification, the operator

proceeds with the expedition without

fulfilling the requirements of these

regulations, the operator would be

subject to enforcement proceedings

pursuant to Sections 7, 8, and 9 of the

Antarctic Conservation Act, as amended

by the Act; 16 U.S.C. 2407, 2408, 2409,

and 45 CFR part 672. If EPA does not

provide notice, the operator would be

deemed to have met the requirements of

these regulations provided that

procedures, which include appropriate

monitoring, are carried out to assess and

verify the impact of the activity. The

EPA would transmit the final CEE to the

Department of State which would

circulate it to all Parties no later than

sixty (60) days before proposed

departure of the expedition, along with

a notice of any decisions by the operator

relating thereto. The EPA would publish

a notice of availability of the final CEE

in the Federal Register.

Operators are encouraged to consult

with the EPA as early as possible if

there are questions as to whether a CEE

would be required for a proposed

expedition.

(d) Mitigation. If an operator chooses

to mitigate and the mitigation measures

are the basis for the level of

environmental documentation, EPA

would assume the operator would

proceed with these mitigation measures.

Otherwise, the documentation may not

have met the requirements of Article 8

and Annex I and the provisions of these

proposed regulations.

4. Criteria for a CEE

Article 3 of Annex I to the Protocol

requires a CEE when it is determined

that an activity is likely to have more

than a minor or transitory impact. While

the need for a CEE would be evaluated

for each activity on a case-by-case basis,

it is EPA’s view that the type of

nongovernmental activities that are

currently being carried out will

typically be unlikely to have impacts

that are more than minor or transitory.

However, the need for a CEE could be

triggered by a proposed activity that

represents a major departure from

current nongovernmental activities,

resulting in a large increase in adverse

environmental impact at a site.

Similarly, a CEE may be required if an

activity is likely to give rise to

particularly complex, cumulative, largescale or irreversible effects, such as

perturbations in unique and very

sensitive biological systems. An

example of an activity that might

require a CEE would be the construction

and operation of a new crushed rock

airstrip or runway.

In evaluating whether a CEE is the

appropriate level of environmental

documentation, the EPA would consider

the impact in terms of the context of the

Antarctic environment and the intensity

of the activity. The Antarctic

environment is for the most part

unspoiled, has intrinsic value, and is of

great value to science and to

humankind’s overall understanding of

the global environment. In addition,

because of the location and uniqueness

of the ecosystem, there would likely be

great difficulty responding to

environmental threats and mitigating

damage to the Antarctic ecosystem. The

EPA believes a comparable threshold

should be applied in determining

whether an activity may have an impact

that is more than minor or transitory

under these proposed regulations as is

used in determining if a federal activity

will have a significant effect for

purposes of the National Environmental

Policy Act (NEPA). See 40 CFR 1508.27.

For this reason, for purposes of these

proposed regulations and consistent

with the environmental impact

assessment regulations for federal

activities, the term ‘‘more than a minor

or transitory impact’’ has been defined

to have the same meaning as the term

‘‘significantly’’ under NEPA. 16 U.S.C.

2403a(a)(1)(B); 40 CFR 1508.27.

The recommendation to add this

definition to these proposed regulations

was made to EPA during the scoping

process and was considered in the DEIS

prepared by EPA that considered the

alternatives for this proposed rule. The

Agency is interested in receiving

comments on this definition in these

proposed regulations.

5. Measures To Assess and Verify

Environmental Impacts

The Protocol and these proposed

regulations require an operator to

employ procedures to assess and

provide a regular and verifiable record

of the actual impacts of any activity that

proceeds on the basis of an IEE or CEE.

The record developed through these

measures would need to be designed to:

(a) Enable assessments to be made of the

extent to which such impacts are

consistent with the Protocol; and (b)

provide information useful for

minimizing and mitigating those

impacts, and, where appropriate, on the

need for suspension, cancellation, or

modification of the activity. Moreover,

an operator would need to monitor key

environmental indicators for an activity

proceeding on the basis of a CEE. An

operator may also need to carry out

monitoring in order to assess and verify

the impact of an activity for which an

IEE has been prepared.

For activities requiring an IEE, an

operator should be able to use

procedures currently being voluntarily

utilized by operators to provide the

required information. For example, such

information could include, as

appropriate and to the best of the

operator’s knowledge: Identification of

the number of tourists put ashore at

each site, the number and location of

each landing site, the total number of

tourists at each site per ship and for the

season; the number of times the site has

been visited in the past; the number of

times the site is expected to be visited

in the forthcoming season; the times of

the year that visits are expected to occur

(e.g., before, during, or after the penguin

breeding season); the number of visitors

expected to be put ashore at the site at

any one time and over the course of a

particular visit; what visitors are

expected to do while at the site;

verification that guidelines for tourists

are followed; description of any tourist

exceptions to the landing guidelines;

and a description of any activity

requiring mitigation, the mitigative

actions undertaken, and the actual or

projected outcome of the mitigation.

These proposed regulations do not set

out detailed monitoring procedures for

activities requiring a CEE because the

Parties are still working to identify

monitoring approaches that can best

support the Protocol’s implementation.

Thus, should an activity require a CEE,

the operator should consult with EPA

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to: (a) identify the monitoring regime

appropriate to that activity, and (b)

determine whether and how the

operator might utilize relevant

monitoring data collected by the U.S.

Antarctic Program. The EPA would

consult with the National Science

Foundation and other interested federal

agencies regarding this monitoring

regime.

E. Incorporation of Information,

Consolidation of Environmental

Documentation, Waiver or Modification

of Deadlines, and Provision for MultiYear Environmental Documentation

The EPA is strongly committed to

minimizing unnecessary paperwork and

to implementation of these proposed

regulations such that undue burden is

not placed on operators, particularly in

view of the time requirements

associated with environmental

documentation requirements. Therefore,

provided that documentation complies

with all applicable provisions of Annex

I to the Protocol and these proposed

regulations, and, provided that the

environmental documentation is

appropriate in light of the specific

circumstances of each operator’s

expedition or expeditions, the EPA

would allow the following approaches

to documentation: (1) Material may be

incorporated by referring to it in the

environmental document with its

content briefly described when the cited

material is reasonably available to the

EPA; (2) more than one proposed

expedition by an operator may be

included within one environmental

document and may, if appropriate,

include a single discussion of

components of the environmental

analysis that are applicable to some or

all of the proposed expeditions; (3) one

environmental document may also be

used to address expeditions being

carried out by more than one operator,

provided that the environmental

documentation includes the names of

each operator for which the

environmental documentation is being

submitted pursuant to obligations under

these proposed regulations; and (4) one

environmental document may be

submitted by one or more operators for

proposed expeditions for a period of up

to five consecutive austral summer

seasons, provided that the conditions of

the multi-year environmental document,

including the assessment of cumulative

impacts, are unchanged. The multi-year

provision would also allow operators to

update basic information and to provide

information on additional activities to

supplement the multi-year

environmental document without

having to revise and re-submit the entire

document. Further, the EPA may waive

or modify the deadlines of these

proposed regulations where EPA

determines an operator is acting in good

faith and that circumstances outside the

control of the operator created delays,

provided that environmental

documentation fully meets deadlines

under the Protocol.

The multi-year documentation

provision was recommended to EPA

during the scoping process and was

considered in the EIS prepared by EPA

that considered the alternatives for this

proposed rule. The Agency is interested

in receiving comments on this provision

in these proposed regulations.

F. Submission of Environmental

Documents

The operator would need to submit

five copies of its environmental

documentation, along with an electronic

copy in HTML format, if available, to

the EPA by mail to: U.S. Environmental

Protection Agency, Office of Federal

Activities, Director, NEPA Compliance

Division—Mail Code 2252A, 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460.

Environmental documents may also

be sent by special delivery (Federal

Express, United Parcel Service, etc.) or

hand-carried to: U.S. Environmental

Protection Agency, Office of Federal

Activities, Director, NEPA Compliance

Division—Room 7239A, Ariel Rios

Building, 1200 Pennsylvania Avenue,

NW., Washington, DC 20044.

An operator who wishes to could

notify and submit environmental

documentation at an earlier date than

required for this proposed rule. The

EPA review process, including

notification for public review and

comment, would commence with the

submittal of environmental

documentation and would follow

deadlines for response indicated in the

appropriate sections of this proposed

rule.

G. Prohibited Acts, Enforcement and

Penalties

It would be unlawful for any operator

to violate these proposed regulations.

An operator who violates any of these

regulations would be subject to

enforcement, which may include civil

and criminal enforcement proceedings,

and penalties, pursuant to sections 7, 8,

and 9 of the Antarctic Conservation Act,

as amended by the Act; 16 U.S.C. 2407,

2408, 2409, and 45 CFR part 672.

H. Provision for Categorical Exclusions

The National Environmental Policy

Act defines ‘‘categorical exclusion’’ as

‘‘a category of actions which do not

individually or cumulatively have a

significant effect on the human

environment * * * and for which,

therefore, neither an environmental

assessment nor an environmental

impact statement is required’’ (40 CFR

1508.4). Only narrow and specific

classes of activities can be categorically

excluded from environmental review.

For example, EPA in its NEPA

regulations at 40 CFR 6.107(d) excludes

‘‘* * * actions which are solely

directed toward minor rehabilitation of

existing facilities * * *’’ and the

National Science Foundation in its

environmental assessment regulations at

45 CFR part 641(c)(1) and (2) excludes

certain scientific activities (e.g., use of

weather/research balloons that are to be

retrieved) and interior remodeling and

renovation of existing facilities. The

DEIS considered a modification that

would add a provision for categorical

exclusion. The DEIS noted that the

International Association of Antarctica

Tour Operators (IAATO) recommended

that Antarctic ship-based tourism

organized under the ‘‘Lindblad Model’’

be categorically excluded. However,

EPA does not have a specific definition

for the ‘‘Lindblad Model.’’ EPA also

believes that a broad categorical

exclusion covering ship-based tourism

as now conducted does not fit well with

the approach used by the U.S.

government for categorical exclusions

because it does not identify actions to be

excluded in sufficient detail. Further,

more needs to be known about potential

cumulative impacts of nongovernmental

activities undertaken by U.S.-based

ship-based tour operators before

deciding to exclude some or all of these

specific activities. EPA is, however,

interested in receiving comments on

specific activities that the Agency

should consider including as categorical

exclusions in the final rule including

the justification for this proposed

designation. It should also be noted that

even if EPA does not designate

categorical exclusions in the final rule,

these can be designated by amendment

to the rule if categorical exclusion

activities are identified in the future.

III. Coordination of Review of

Information Received From Other

Parties to the Treaty

Article 6 of Annex I to the Protocol

provides that the following information

shall be circulated to the Parties,

forwarded to the Committee for

Environmental Protection, and made

publicly available: (1) A description of

national procedures for considering the

environmental impacts of proposed

activities; (2) an annual list of any IEEs

and any decisions taken in consequence

34752 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

thereof; (3) significant information

obtained and any action taken in

consequence thereof with regard to

monitoring from IEEs and CEEs; and (4)

information in a final CEE. In addition,

Article 6 requires that any IEE be made

available on request, and Article 3

requires that draft CEEs be circulated to

all Parties, who shall make them

publicly available. A period of ninety

(90) days is allowed for the receipt of

comments. To implement these

requirements of the Protocol, this

proposed rule sets out the process for

circulation of this information within

the United States.

Upon receipt of a CEE from another

Party, the Department of State would

publish notice of receipt in the Federal

Register and would circulate a copy of

the CEE to all interested federal

agencies. The Department of State

would coordinate responses from

federal agencies to the CEE and would

transmit the coordinated response, if

any, to the Party that has circulated the

CEE. The Department of State would

make a copy of the CEE available upon

request to the public. Members of the

U.S. public would comment directly to

the operator who has drafted the CEE

and provide a copy to the EPA for its

consideration.

Upon receipt of the annual list from

another Party of IEEs prepared in

accordance with Article 2 of Annex I

and any decisions taken in consequence

thereof, the Department of State would

circulate a copy to all interested federal

agencies. The Department of State

would make a copy of any list of IEEs

from other Parties prepared in

accordance with Article 2 and any

decisions taken in consequence thereof

available upon request to the public.

Upon receipt of a description of

appropriate national procedures for

environmental impact statements from

another Party, the Department of State

would circulate a copy to all interested

federal agencies. The Department of

State would make such descriptions

available upon request to the public.

Upon receipt from another Party of

significant information obtained, and

any action taken in consequence

therefrom from procedures put in place

with regard to monitoring pursuant to

Articles 2(2) and 5 of Annex I to the

Protocol, the Department of State would

circulate a copy to all interested federal

agencies. The Department of State

would make a copy of this information

available upon request to the public.

Upon receipt of a final CEE from

another Party, the Department of State

would circulate a copy to all interested

federal agencies. The Department of

State would make a copy available upon

request to the public.

IV. Executive Order 12866 Clearance

Under Executive Order 12866 (58 FR

51735 (October 4, 1993)) the EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

review by the Office of Management and

Budget (OMB) and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action.’’ Although none of the first three

criteria apply, this rule raises novel

legal or policy issues arising out of legal

mandates under Public Law 104–227,

the Antarctic Science, Tourism, and

Conservation Act of 1996 and the

Protocol on Environmental Protection to

the Antarctic Treaty of 1959.

Accordingly, this action was submitted

to OMB for review. Changes made in

response to OMB suggestions or

recommendations will be documented

in the public record.

V. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA, 5 U.S.C. 601 et seq.)

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today’s rule on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration with the North

American Industry Classification

System (NAICS) code for ‘‘Tour

Operators’’ (NAICS code 561520) with

annual maximum receipts of $5.0

million (13 CFR part 121); (2) a small

governmental jurisdiction that is a

government of a city, county, town,

school district or special district with a

population of less than 50,000; and (3)

a small organization that is any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field. Note that under

the Antarctic Science, Tourism, and

Conservation Act of 1996, governmental

jurisdictions are not subject to this

rulemaking.

For purposes of assessing the

potential impacts of the proposed rule

on small entities, EPA assessed the

potential impacts the proposed rule may

have on the U.S.-based operators

regulated under the interim final rule,

that is, those for which the United

States provided advance notice under

Paragraph 5 of Article VII of the Treaty

for proposed nongovernmental

expeditions organized in or proceeding

from the U.S. to the Antarctic Treaty

area during the austral summer season

2000–2001, and other U.S.-based

operators included in such

documentation. The screening

assessment indicated that of the twelve

operators, four would qualify as small

entities under the Small Business

Administration definition. EPA has

estimated that these small entities have

annual operating expenditures (small

organization) or annual sales (small

business) ranging from about $100,000

to about $4,600,000. Based on costs

estimated under the interim final rule,

EPA estimated the potential impact on

these small entities to range from an

average of about $1,400 to about $4,200

for the 5-year period a multi-year

environmental document could be in

effect; this represents an impact in the

range of less than 1% to about 1.4%.

Even if the small entities did not take

advantage of the additional cost-saving

alternative provided in the multi-year

provision of the proposed rule, the

impact of the proposed rule would

range from an average of about $2,300

to $6,800 for the same 5-year period. Of

the four small entities subject to today’s

proposed rule, only one may be

impacted significantly. Therefore, this

proposed rule will not impact a

substantial number of small entities.

Moreover, the potential impact in that

small entity arguably is not significant.

In addition, as discussed below, EPA

included in both the interim final rule

and today’s proposed rule cost-saving

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34753

alternatives that are available to all

operators, including small operators.

Under the interim final rule, all

operators made use of the cost-saving

alternatives and EPA expects them to

continue using these alternatives and

the additional alternative included in

today’s rule.

Therefore, after considering the

economic impacts of today’s proposed

rule on small entities, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. In determining

whether a rule has a significant

economic impact on a substantial

number of small entities, the impact of

concern is any significant adverse

economic impact on small entities,

since the primary purpose of the

regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities.’’ 5

U.S.C. 603 and 604. Thus, an agency

may certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule. The EPA believes that because this

proposed rule only requires assessment

of environmental impacts the effects on

any small entities will be limited

primarily to the cost of preparing such

an analysis and that the requirements

are no greater than necessary to ensure

that the United States will be in

compliance with its international

obligations under the Protocol and the

Treaty. The costs are likely to be

minimal because it is EPA’s view that

the types of activities currently being

carried out will typically be unlikely to

have impacts that are more than minor

or transitory assuming that activities

will be carried out in accordance with

the guidelines set forth in the ATCM

Recommendation XVIII–1, Tourism and

Non-Governmental Activities, the

relevant provisions of other U.S.

statutes, and Annexes II–V to the

Protocol. Therefore, most activities will

likely need only IEE documentation, the

cost of which is minimal as shown in

section VII, Paperwork Reduction Act.

Further, as in the interim final rule, EPA

has included provisions in this

proposed rule which are available to all

respondents, including small entities,

which will have a positive effect by

minimizing the cost of such an analysis.

It has been EPA’s experience that

respondents used the cost reduction

provisions in the interim final

regulations. EPA anticipates that

respondents will continue to use these

provisions and the new provision that

would allow submission of

environmental documentation on a

multi-year basis. The cost reduction

provisions in this proposed rule

include: (1) Material may be

incorporated by referring to it in the

environmental document with its

content briefly described when the cited

material is reasonably available to the

EPA; (2) more than one proposed

expedition by an operator may be

included within one environmental

document and may, if appropriate,

include a single discussion of

components of the environmental

analysis which are applicable to some or

all of the proposed expeditions; (3) one

environmental document may also be

used to address expeditions being

carried out by more than one operator,

provided that the environmental

documentation includes the names of

each operator for which the

environmental documentation is being

submitted pursuant to obligations under

these regulations; and (4) one

environmental document may be

submitted by one or more operators for

proposed expeditions for a period of up

to five consecutive austral summer

seasons, provided that the conditions of

the multi-year environmental document,

including the assessment of cumulative

impacts, are unchanged. The multi-year

provision would also allow operators to

update basic information and to provide

information on additional activities to

supplement the multi-year

environmental document without

having to revise and re-submit the entire

document. Further, the EPA may waive

or modify the deadlines of these

regulations where EPA determines an

operator is acting in good faith and that

circumstances outside the control of the

operator created delays, provided that

environmental documentation fully

meets deadlines under the Protocol. We

have therefore concluded that today’s

proposed rule will relieve regulatory

burden for all small entities. We

continue to be interested in the

potential impacts of the proposed rule

on small entities and welcome

comments on issues related to such

impacts.

VI. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today’s rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector. The UMRA does not

apply to rules that are necessary for the

national security or the ratification or

implementation of international treaty

obligations. These regulations are

necessary so that the United States will

have the ability to implement its

obligations under the Protocol on

Environmental Protection to the

Antarctic Treaty of 1959. Further, the

UMRA excludes from the definitions of

‘‘Federal intergovernmental mandate’’

and ‘‘Federal private sector mandate’’

duties that arise from conditions of

federal assistance. Governmental

jurisdictions including Federal, State,

local and tribal governments and private

sector operators receiving financial

assistance from the United States

government, are not subject to this

rulemaking. In any event, EPA has

determined that this rule does not

contain a Federal mandate that may

result in expenditures of $100 million or

more for State, local, and tribal

34754 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

governments, in the aggregate, or the

private sector in any one year. For the

private sector, there are currently less

than 20 regulated operators and,

because of the nature of business and

the Antarctic location, this number is

not expected to increase significantly.

Moreover, this proposed rule provides

alternatives that may be used by

operators to reduce the burden and costs

associated with the proposed rule.

Expenditures for nongovernmental

operators can be minimized through

provisions in the rule that provide for

the following approaches to submission

of the environmental documentation

required under the rule: (1) Material

may be incorporated by referring to it in

the environmental document with its

content briefly described when the cited

material is reasonably available to the

EPA; (2) more than one proposed

expedition by an operator may be

included within one environmental

document and may, if appropriate,

include a single discussion of

components of the environmental

analysis which are applicable to some or

all of the proposed expeditions; (3) one

environmental document may also be

used to address expeditions being

carried out by more than one operator,

provided that the environmental

documentation includes the names of

each operator for which the

environmental documentation is being

submitted pursuant to obligations under

these regulations; and (4) one

environmental document may be

submitted by one or more operators for

proposed expeditions for a period of up

to five consecutive austral summer

seasons, provided that the conditions of

the multi-year environmental document,

including the assessment of cumulative

impacts, are unchanged. The multi-year

provision would also allow operators to

update basic information and to provide

information on additional activities to

supplement the multi-year

environmental document without

having to revise and re-submit the entire

document. Thus, today’s proposed rule

is not subject to the requirements of

sections 202 and 205 of the UMRA.

EPA has determined that this

proposed rule contains no regulatory

requirements that might significantly or

uniquely affect small governments

under section 203 of the UMRA.

Governmental jurisdictions are not

subject to this rulemaking.

VII. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared by EPA

(ICR No. 2020–0007) and a copy may be

obtained from Sandy Farmer by mail at

Collection Strategies Division; U.S.

Environmental Protection Agency

(2822); 1200 Pennsylvania Ave., NW.,

Washington, DC 20460, by email at

farmer.sandy@epamail.epa.gov, or by

calling (202)260–2740. A copy may also

be downloaded off the Internet at

http://www.epa.gov/icr.

Public Law 104–227, the Antarctic

Science, Tourism, and Conservation Act

of 1996 (the Act) amends the Antarctic

Conservation Act of 1978, 16 U.S.C.

2401 et seq., to implement the

provisions of the Protocol on

Environmental Protection to the

Antarctic Treaty of 1959. The Act

provides that EPA must promulgate

regulations to provide for the

environmental impact assessment of

nongovernmental activities, including

tourism, for which the United States is

required to give advance notice under

Paragraph 5 of Article VII of the Treaty,

and for coordination of the review of

information regarding environmental

impact assessment received from other

Parties under the Protocol. This

proposed rule provides

nongovernmental operators with the

specific environmental documentation

requirements they must meet in order to

comply with the Protocol.

Nongovernmental operators,

including tour operators, conducting

expeditions to Antarctica would be

required to submit environmental

documentation to EPA that evaluates

the potential environmental impact of

their proposed activities. If EPA has no

comments, or if the documentation is

satisfactorily revised in response to

EPA’s comments, and the operator does

not receive a notice from EPA that the

environmental documentation does not

meet the requirements of Article 8 and

Annex I of the Protocol and the

provisions of these regulations, the

operator would have no further

obligations pursuant to the applicable

requirements of these proposed

regulations provided that any

appropriate measures, which may

include monitoring, are put in place to

assess and verify the impact of the

activity. The type of environmental

document required depends upon the

nature and intensity of the

environmental impacts that could result

from the activity under consideration.

Nongovernmental operators would be

able to use the following approaches for

submission of the environmental

documentation required under the

proposed rule: (1) Material may be

incorporated by referring to it in the

environmental document with its

content briefly described when the cited

material is reasonably available to the

EPA; (2) more than one proposed

expedition by an operator may be

included within one environmental

document and may, if appropriate,

include a single discussion of

components of the environmental

analysis which are applicable to some or

all of the proposed expeditions; (3) one

environmental document may also be

used to address expeditions being

carried out by more than one operator,

provided that the environmental

documentation includes the names of

each operator for which the

environmental documentation is being

submitted pursuant to obligations under

these regulations; and (4) one

environmental document may be

submitted by one or more operators for

proposed expeditions for a period of up

to five consecutive austral summer

seasons, provided that the conditions of

the multi-year environmental document,

including the assessment of cumulative

impacts, are unchanged. The multi-year

provision would also allow operators to

update basic information and to provide

information on additional activities to

supplement the multi-year

environmental document without

having to revise and re-submit the entire

document. EPA anticipates that

operators will make one submittal per

year for all of their expeditions for that

year and that most operators will be able

to use the multi-year environmental

documentation provision. EPA does not

expect or anticipate receipt of any

confidential information. No capital

costs or operational and maintenance

costs are anticipated to be incurred as a

result of this ICR.

Frequency of Reporting: Once per

year.

Affected Public: Businesses, other

nongovernmental entities including for

profit entities, and not-for-profit

institutions.

Number of Respondents: 13 to 14.

Estimated Average Time Per

Respondent: 29 to 185 Hours depending

on the anticipated level of

environmental documentation and the

paperwork reduction provisions

employed by the respondent.

Total Annual Burden Hours: 377 to

562 Hours depending on the anticipated

level of environmental documentation

and the paperwork reduction provisions

employed by the respondent.

Estimated Average Cost Per

Respondent to Prepare and Submit

Environmental Documentation for the

First Year: $2,668 to $13,405 depending

on the anticipated level of

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34755

environmental documentation and the

paperwork reduction provisions

employed by the respondent.

Estimated Average Cost Per

Respondent to Prepare and Submit

Environmental Documentation for

Subsequent Years: $1,844 to $14,117

depending on the anticipated level of

environmental documentation and the

paperwork reduction provisions

employed by the respondent.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, Collection

Strategies Division; U.S. Environmental

Protection Agency (2822); 1200

Pennsylvania Ave., NW., Washington,

DC 20460; and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., NW., Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Include the ICR number in any

correspondence. Since OMB is required

to make a decision concerning the ICR

between 30 and 60 days after June 29,

2001, a comment to OMB is best assured

of having its full effect if OMB receives

it by July 30, 2001. The final rule will

respond to any OMB or public

comments on the information collection

requirements contained in this proposal.

VIII. National Technology Transfer and

Advancement Act of 1995 (‘‘NTTAA’’),

Public Law 104–113, Section 12(d) (15

U.S.C. 272 note)

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. This

proposed rulemaking does not involve

technical standards. Therefore, EPA is

not considering the use of any voluntary

consensus standards.

IX. Executive Order 12898, Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898, Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations, 56 FR 7629

(1994), requires each Federal agency, to

the greatest extent practicable and

permitted by law, to make achieving

environmental justice part of its mission

by identifying and addressing, as

appropriate, disproportionately high

and adverse human health or

environmental effects of its programs,

policies, and activities on minority or

low-income populations, including

Indian tribes in the United States and its

territories and possessions. The

provisions of Executive Order 12898 do

not apply to this regulatory action,

which relates to environmental impacts

of nongovernmental activities in the

sovereignless continent of Antarctica.

X. Executive Order 13132, Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

This proposed rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. Governmental

jurisdictions including Federal, State,

local and tribal governments and private

sector operators receiving financial

assistance from the United States

government, are not subject to this

rulemaking. Further, the regulatory

responsibilities of the EPA under this

rule cannot be delegated to or otherwise

made the responsibility of the States.

Thus, Executive Order 13132 does not

apply to this rule.

In the spirit of Executive Order 13132,

and consistent with EPA policy to

promote communications between EPA

and State and local governments, EPA

specifically solicits comment on this

proposed rule from State and local

officials. By publishing and inviting

comment on this proposed rule, EPA

hereby is providing State and local

officials notice and an opportunity for

appropriate participation.

XI. Executive Order 13175, Tribal

Consultation

Executive Order 13175 took effect on

January 6, 2001, and revokes Executive

Order 13084 (Tribal Consultation) as of

that date. EPA developed this proposed

rule, however, during the period when

Executive Order 13084 was in effect.

Thus, EPA addressed tribal

considerations under Executive Order

13084. EPA will analyze and fully

comply with the requirements of

Executive Order 13175 before

promulgating the final rule.

XII. Executive Order 13045, Protection

of Children From Environmental Health

Risks and Safety Risks

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks,’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

34756 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

and reasonably feasible alternatives

considered by the Agency.

EPA interprets Executive Order 13045

as applying only to those regulatory

actions that are based on health or safety

risks, such that the analysis required

under section 5–501 of the Order has

the potential to influence the regulation.

This proposed rule is not subject to

Executive Order 13045 because it does

not establish an environmental standard

intended to mitigate health or safety

risks.

List of Subjects in 40 CFR Part 8

Environmental protection, Antarctica,

Environmental impact statements,

Penalties, Reporting and recordkeeping

requirements.

Dated: June 22, 2001.

Christine Todd Whitman,

Administrator.

Therefore, for the reasons set forth in

the Preamble, EPA proposes to amend

title 40 chapter I of the Code of Federal

Regulations by revising part 8 as

follows:

PART 8—ENVIRONMENTAL IMPACT

ASSESSMENT OF

NONGOVERNMENTAL ACTIVITIES IN

ANTARCTICA

Sec.

8.1 Purpose.

8.2 Applicability and effect.

8.3 Definitions.

8.4 Preparation of environmental

documents, generally.

8.5 Submission of environmental

documents.

8.6 Preliminary environmental review.

8.7 Initial environmental evaluation.

8.8 Comprehensive environmental

evaluation.

8.9 Measures to assess and verify

environmental impacts.

8.10 Cases of emergency.

8.11 Prohibited acts, enforcement and

penalties.

8.12 Coordination of reviews from other

Parties.

Authority: 16 U.S.C. 2401 et seq., as

amended, 16 U.S.C. 2403a.

§ 8.1 Purpose.

(a) This part is issued pursuant to the

Antarctic Science, Tourism, and

Conservation Act of 1996. As provided

in that Act, this part implements the

requirements of Article 8 and Annex I

to the Protocol on Environmental

Protection to the Antarctic Treaty of

1959 and provides for:

(1) The environmental impact

assessment of nongovernmental

activities, including tourism, for which

the United States is required to give

advance notice under paragraph 5 of

Article VII of the Antarctic Treaty of

1959; and

(2) Coordination of the review of

information regarding environmental

impact assessment received by the

United States from other Parties under

the Protocol.

(b) The procedures in this part are

designed to: ensure that

nongovernmental operators identify and

assess the potential impacts of their

proposed activities, including tourism,

on the Antarctic environment; that

operators consider these impacts in

deciding whether or how to proceed

with proposed activities; and that

operators provide environmental

documentation pursuant to the Act and

Annex I of the Protocol. These

procedures are consistent with and

implement the environmental impact

assessment provisions of Article 8 and

Annex I to the Protocol on

Environmental Protection to the

Antarctic Treaty.

§ 8.2 Applicability and effect.

(a) This part is intended to ensure that

potential environmental effects of

nongovernmental activities undertaken

in Antarctica are appropriately

identified and considered by the

operator during the planning process

and that to the extent practicable,

appropriate environmental safeguards

which would mitigate or prevent

adverse impacts on the Antarctic

environment are identified by the

operator.

(b) The requirements set forth in this

part apply to nongovernmental activities

for which the United States is required

to give advance notice under paragraph

5 of Article VII of the Antarctic Treaty

of 1959: All nongovernmental

expeditions to and within Antarctica

organized in or proceeding from its

territory.

(c) This part does not apply to

activities undertaken in the Antarctic

Treaty area that are governed by the

Convention on the Conservation of

Antarctic Marine Living Resources or

the Convention for the Conservation of

Antarctic Seals. Persons traveling to

Antarctica are subject to the

requirements of the Marine Mammal

Protection Act, 16 U.S.C. 1371 et seq.

§ 8.3 Definitions.

As used in this part:

Act means 16 U.S.C. 2401 et seq.,

Public Law 104–227, the Antarctic

Science, Tourism, and Conservation Act

of 1996.

Annex I refers to Annex I,

Environmental Impact Assessment, of

the Protocol.

Antarctica means the Antarctic Treaty

area; i.e., the area south of 60 degrees

south latitude.

Antarctic environment means the

natural and physical environment of

Antarctica and its dependent and

associated ecosystems, but excludes

social, economic, and other

environments.

Antarctic Treaty area means the area

south of 60 degrees south latitude.

Antarctic Treaty Consultative Meeting

(ATCM) means a meeting of the Parties

to the Antarctic Treaty, held pursuant to

Article IX(1) of the Treaty.

Comprehensive Environmental

Evaluation (CEE) means a study of the

reasonably foreseeable potential effects

of a proposed activity on the Antarctic

environment, prepared in accordance

with the provisions of this part and

includes all comments received thereon.

(See: 40 CFR 8.8.)

Environmental document or

environmental documentation

(Document) means a preliminary

environmental review memorandum, an

initial environmental evaluation, or a

comprehensive environmental

evaluation.

Environmental impact assessment (EIA)

means the environmental review

process required by the provisions of

this part and by Annex I of the Protocol,

and includes preparation by the

operator and U.S. government review of

an environmental document, and public

access to and circulation of

environmental documents to other

Parties and the Committee on

Environmental Protection as required by

Annex I of the Protocol.

EPA means the Environmental

Protection Agency.

Expedition means any activity

undertaken by one or more

nongovernmental persons organized

within or proceeding from the United

States to or within the Antarctic Treaty

area for which advance notification is

required under Paragraph 5 of Article

VII of the Treaty.

Impact means impact on the Antarctic

environment and dependent and

associated ecosystems.

Initial Environmental Evaluation (IEE)

means a study of the reasonably

foreseeable potential effects of a

proposed activity on the Antarctic

environment prepared in accordance

with 40 CFR 8.7.

More than a minor or transitory

impact has the same meaning as the

term ‘‘significantly’’ as defined in

regulations under the National

Environmental Policy Act at 40 CFR

1508.27.

Operator or operators means any

person or persons organizing a

nongovernmental expedition to or

within Antarctica.

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34757

Person has the meaning given that

term in section 1 of title 1, United States

code, and includes any person subject to

the jurisdiction of the United States

except that the term does not include

any department, agency, or other

instrumentality of the Federal

Government.

Preliminary environmental review

means the environmental review

described under that term in 40 CFR 8.6.

Preliminary Environmental Review

Memorandum (PERM) means the

documentation supporting the

conclusion of the preliminary

environmental review that the impact of

a proposed activity will be less than

minor or transitory on the Antarctic

environment.

Protocol means the Protocol on

Environmental Protection to the

Antarctic Treaty, done at Madrid

October 4, 1991, and all annexes thereto

which are in force for the United States.

This part means 40 CFR part 8.

§ 8.4 Preparation of environmental

documents, generally.

(a) Basic information requirements. In

addition to the information required

pursuant to other sections of this part,

all environmental documents shall

contain the following:

(1) The name, mailing address, and

phone number of the operator;

(2) The anticipated date(s) of

departure of each expedition to

Antarctica;

(3) An estimate of the number of

persons in each expedition;

(4) The means of conveyance of

expedition(s) to and within Antarctica;

(5) Estimated length of stay of each

expedition in Antarctica;

(6) Information on proposed landing

sites in Antarctica; and

(7) Information concerning training of

staff, supervision of expedition

members, and what other measures, if

any, that will be taken to avoid or

minimize possible environmental

impacts.

(b) Preparation of an environmental

document. Unless an operator

determines and documents that a

proposed activity will have less than a

minor or transitory impact on the

Antarctic environment, the operator will

prepare an IEE or CEE in accordance

with this part. In making the

determination what level of

environmental documentation is

appropriate, the operator should

consider, as applicable, whether and to

what degree the proposed activity:

(1) Has the potential to adversely

affect the Antarctic environment;

(2) May adversely affect climate or

weather patterns;

(3) May adversely affect air or water

quality;

(4) May affect atmospheric, terrestrial

(including aquatic), glacial, or marine

environments;

(5) May detrimentally affect the

distribution, abundance, or productivity

of species, or populations of species of

fauna and flora;

(6) May further jeopardize endangered

or threatened species or populations of

such species;

(7) May degrade, or pose substantial

risk to, areas of biological, scientific,

historic, aesthetic, or wilderness

significance;

(8) Has highly uncertain

environmental effects, or involves

unique or unknown environmental

risks; or

(9) Together with other activities, the

effects of any one of which is

individually insignificant, may have at

least minor or transitory cumulative

environmental effects.

(c) Type of environmental document.

The type of environmental document

required under this part depends upon

the nature and intensity of the

environmental impacts that could result

from the activity under consideration. A

PERM must be prepared by the operator

to document the conclusion of the

operator’s preliminary environmental

review that the impact of a proposed

activity on the Antarctic environment

will be less than minor or transitory.

(See § 8.6.) An IEE must be prepared by

the operator for proposed activities

which may have at least (but no more

than) a minor or transitory impact on

the Antarctic environment. (See § 8.7.)

A CEE must be prepared by the operator

if an IEE indicates, or if it is otherwise

determined, that a proposed activity is

likely to have more than a minor or

transitory impact on the Antarctic

environment (See § 8.8.)

(d) Incorporation of information,

consolidation of environmental

documentation, and multi-year

environmental documentation. (1) An

operator may incorporate material into

an environmental document by referring

to it in the document when the effect

will be to reduce paperwork without

impeding the review of the

environmental document by EPA and

other federal agencies. The incorporated

material shall be cited and its content

briefly described. No material may be

incorporated by referring to it in the

document unless it is reasonably

available to the EPA.

(2) Provided that environmental

documentation complies with all

applicable provisions of Annex I to the

Protocol and this part and is appropriate

in light of the specific circumstances of

the operator’s proposed expedition or

expeditions, an operator may include

more than one proposed expedition

within one environmental document

and one environmental document may

also be used to address expeditions

being carried out by more than one

operator provided that the

environmental document indicates the

names of each operator for which the

environmental documentation is being

submitted pursuant to obligations under

this part.

(e) Multi-year environmental

documentation. (1) Provided that

environmental documentation complies

with all applicable provisions of Annex

I to the Protocol and this part, an

operator may submit environmental

documentation for proposed

expeditions for a period of up to five

consecutive austral summer seasons,

provided that the conditions of the

multi-year environmental document,

including the assessment of cumulative

impacts, are unchanged and meets the

provisions of paragraph (e)(1)(i) through

(iii) of this section.

(i) The operator shall identify the

environmental documentation

submitted for multi-year documentation

purposes in the first year it is submitted.

If the operator, or operators, fail to make

this initial identification to EPA, this

provision shall not be in effect although

subsequent years’ submissions by the

operator, or operators, may use this

environmental documentation as

provided in paragraph (d)(1) and (2) of

this section.

(ii) In subsequent years, up to a total

maximum of five years, the operator, or

operators, shall reference the multi-year

documentation identified initially if it is

necessary to update the basic

information requirements listed in

paragraph (a) of this section.

(iii) An operator, or operators, may

supplement a multi-year environmental

document for an additional activity or

activities by providing information

regarding the proposed activity in

accordance with the appropriate

provisions of this part. The operator, or

operators, shall identify this submission

as a proposed supplement to the multiyear documentation in effect. Addition

of the supplemental information shall

not extend the period of the multi-year

environmental documentation beyond

the time period associated with the

documentation as originally submitted.

(2) Multi-year environmental

documentation may include more than

one proposed expedition within the

environmental document and the multiyear environmental document may also

be used to address expeditions being

carried out by more than one operator

34758 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

provided that the environmental

document indicates the names of each

operator for which the environmental

documentation is being submitted

pursuant to obligations under this part.

(3) The schedules for multi-year

environmental documentation depend

on the level of the environmental

document and shall be the same as the

schedules for comparable

environmental documentation

submitted on an annual basis; e.g., a

multi-year PERM shall comply with the

schedule in § 8.6, a multi-year IEE shall

comply with the schedule in § 8.7, and

a multi-year CEE shall comply with the

schedule in § 8.8. These schedules

apply to the operator’s submission of

the initial multi-year environmental

document; the operator’s subsequent

annual submissions pursuant to

paragraph (e)(1)(ii) and (iii) of this

section; EPA’s review, in consultation

with other interested federal agencies,

and comment on the multi-year

environmental documentation and

subsequent annual submissions; and a

finding the EPA may make, with the

concurrence of the National Science

Foundation, that the environmental

documentation submitted does not meet

the requirements of Article 8 and Annex

I of the Protocol and the provisions of

this part.

§ 8.5 Submission of environmental

documents.

(a) An operator shall submit

environmental documentation to the

EPA for review. The EPA, in

consultation with other interested

federal agencies, will carry out a review

to determine if the submitted

environmental documentation meets the

requirements of Article 8 and Annex I

of the Protocol and the provisions of

this part. The EPA will provide its

comments, if any, on the environmental

documentation to the operator and will

consult with the operator regarding any

suggested revisions. If EPA has no

comments, or if the documentation is

satisfactorily revised in response to

EPA’s comments, and the operator does

not receive a notice from EPA that the

environmental documentation does not

meet the requirements of Article 8 and

Annex I of the Protocol and the

provisions of this part, the operator will

have no further obligations pursuant to

the applicable requirements of this part

provided that any appropriate measures,

which may include monitoring, are put

in place to assess and verify the impact

of the activity. Alternatively, following

final response from the operator, the

EPA, in consultation with other federal

agencies and with the concurrence of

the National Science Foundation, will

inform the operator that EPA finds that

the environmental documentation does

not meet the requirements of Article 8

and Annex I of the Protocol and the

provisions of this part. If the operator

then proceeds with the expedition

without fulfilling the requirements of

this part, the operator is subject to

enforcement proceedings pursuant to

sections 7, 8, and 9 of the Antarctic

Conservation Act, as amended by the

Act; 16 U.S.C. 2407, 2408, 2409, and 45

CFR part 672.

(b) The EPA may waive or modify

deadlines pursuant to this part where

EPA determines an operator is acting in

good faith and that circumstances

outside the control of the operator

created delays, provided that the

environmental documentation fully

meets deadlines under the Protocol.

§ 8.6 Preliminary environmental review.

(a) Unless an operator has determined

to prepare an IEE or CEE, the operator

shall conduct a preliminary

environmental review that assesses the

potential direct and reasonably

foreseeable indirect impacts on the

Antarctic environment of the proposed

expedition. A Preliminary

Environmental Review Memorandum

(PERM) shall contain sufficient detail to

assess whether the proposed activity

may have less than a minor or transitory

impact, and shall be submitted to the

EPA for review no less than 180 days

before the proposed departure of the

expedition. The EPA, in consultation

with other interested federal agencies,

will review the PERM to determine if it

is sufficient to demonstrate that the

activity will have less than a minor or

transitory impact or whether additional

environmental documentation, i.e., an

IEE or CEE, is required to meet the

obligations of Article 8 and Annex I of

the Protocol. The EPA will provide its

comments to the operator within fifteen

(15) days of receipt of the PERM, and

the operator shall have seventy-five (75)

days to prepare a revised PERM or an

IEE, if necessary. Following the final

response from the operator, EPA may

make a finding that the environmental

documentation submitted does not meet

the requirements of Article 8 and Annex

I of the Protocol and the provisions of

this part. This finding will be made with

the concurrence of the National Science

Foundation. If EPA does not provide

such notice within thirty (30) days, the

operator will be deemed to have met the

requirements of this part provided that

any required procedures, which may

include appropriate monitoring, are put

in place to assess and verify the impact

of the activity.

(b) If EPA recommends an IEE and

one is prepared and submitted within

the seventy-five (75) day response

period, it will be reviewed under the

time frames set out for an IEE in 40 CFR

8.7. If EPA recommends a CEE and one

is prepared, it will be reviewed under

the time frames set out for a CEE in 40

CFR 8.8.

§ 8.7 Initial environmental evaluation.

(a) Submission of IEE to the EPA.

Unless a PERM has been submitted

pursuant to 40 CFR 8.6 which meets the

environmental documentation

requirements under Article 8 and Annex

I to the Protocol and the provisions of

this part or a CEE is being prepared, an

IEE shall be submitted by the operator

to the EPA no fewer than ninety (90)

days before the proposed departure of

the expedition.

(b) Contents. An IEE shall contain

sufficient detail to assess whether a

proposed activity may have more than

a minor or transitory impact on the

Antarctic environment and shall

include the following information:

(1) A description of the proposed

activity, including its purpose, location,

duration, and intensity; and

(2) Consideration of alternatives to the

proposed activity and any impacts that

the proposed activity may have on the

Antarctic environment, including

consideration of cumulative impacts in

light of existing and known proposed

activities.

(c) Further environmental review. (1)

The EPA, in consultation with other

interested federal agencies, will review

an IEE to determine whether the IEE

meets the requirements under Annex I

to the Protocol and the provisions of

this part. The EPA will provide its

comments to the operator within thirty

(30) days of receipt of the IEE, and the

operator will have forty-five (45) days to

prepare a revised IEE, if necessary.

Following the final response from the

operator, EPA may make a finding that

the documentation submitted does not

meet the requirements of Article 8 and

Annex I of the Protocol and the

provisions of this part. This finding will

be made with the concurrence of the

National Science Foundation. If such a

notice is required, EPA will provide it

within fifteen (15) days of receiving the

final IEE from the operator or, if the

operator does not provide a final IEE,

within sixty (60) days following EPA’s

comments on the original IEE. If EPA

does not provide notice within these

time limits, the operator will be deemed

to have met the requirements of this part

provided that any required procedures,

which may include appropriate

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules 34759

monitoring, are put in place to assess

and verify the impact of the activity.

(2) If a CEE is required, the operator

must adhere to the time limits

applicable to such documentation. (See:

40 CFR 8.8.) In this event EPA, at the

operator’s request, will consult with the

operator regarding possible changes in

the proposed activity which would

allow preparation of an IEE.

§ 8.8 Comprehensive environmental

evaluation.

(a) Preparation of a CEE. Unless a

PERM or an IEE has been submitted and

determined to meet the environmental

documentation requirements of this

part, the operator shall prepare a CEE.

A CEE shall contain sufficient

information to enable informed

consideration of the reasonably

foreseeable potential environmental

effects of a proposed activity and

possible alternatives to that proposed

activity. A CEE shall include the

following:

(1) A description of the proposed

activity, including its purpose, location,

duration and intensity, and possible

alternatives to the activity, including the

alternative of not proceeding, and the

consequences of those alternatives;

(2) A description of the initial

environmental reference state with

which predicted changes are to be

compared and a prediction of the future

environmental reference state in the

absence of the proposed activity;

(3) A description of the methods and

data used to forecast the impacts of the

proposed activity;

(4) Estimation of the nature, extent,

duration and intensity of the likely

direct impacts of the proposed activity;

(5) A consideration of possible

indirect or second order impacts from

the proposed activity;

(6) A consideration of cumulative

impacts of the proposed activity in light

of existing activities and other known

planned activities;

(7) Identification of measures,

including monitoring programs, that

could be taken to minimize or mitigate

impacts of the proposed activity and to

detect unforeseen impacts and that

could provide early warning of any

adverse effects of the activity as well as

to deal promptly and effectively with

accidents;

(8) Identification of unavoidable

impacts of the proposed activity;

(9) Consideration of the effects of the

proposed activity on the conduct of

scientific research and on other existing

uses and values;

(10) An identification of gaps in

knowledge and uncertainties

encountered in compiling the

information required under this section;

(11) A non-technical summary of the

information provided under this

section; and

(12) The name and address of the

person or organization which prepared

the CEE and the address to which

comments thereon should be directed.

(b) Submission of draft CEE to the

EPA and circulation to other parties. (1)

Any operator who plans a

nongovernmental expedition that would

require a CEE must submit a draft of the

CEE by December 1 of the preceding

year. Within fifteen (15) days of receipt

of the draft CEE, EPA will: Send it to the

Department of State which will circulate

it to all Parties to the Protocol and

forward it to the Committee for

Environmental Protection established by

the Protocol, and publish notice of

receipt of the CEE and request for

comments on the CEE in the Federal

Register, and will provide copies to any

person upon request. The EPA will

accept public comments on the CEE for

a period of ninety (90) days following

notice in the Federal Register. The EPA,

in consultation with other interested

federal agencies, will evaluate the CEE

to determine if the CEE meets the

requirements under Article 8 and Annex

I to the Protocol and the provisions of

this part and will transmit its comments

to the operator within 120 days

following publication in the Federal

Register of the notice of availability of

the CEE.

(2) The operator shall send a final CEE

to EPA at least seventy-five (75) days

before commencement of the proposed

activity in the Antarctic Treaty area. The

CEE must address and must include (or

summarize) any comments on the draft

CEE received from EPA, the public, and

the Parties. Following the final response

from the operator, the EPA will inform

the operator if EPA, with the

concurrence of the National Science

Foundation, makes the finding that the

environmental documentation

submitted does not meet the

requirements of Article 8 and Annex I

of the Protocol and the provisions of

this part. This notification will occur

within fifteen (15) days of submittal of

the final CEE by the operator if the final

CEE is submitted by the operator within

the time limits set out in this section. If

no final CEE is submitted or the

operator fails to meet these time limits,

EPA will provide such notification sixty

(60) days prior to departure of the

expedition. If EPA does not provide

such notice, the operator will be

deemed to have met the requirements of

this part provided that procedures,

which include appropriate monitoring,

are put in place to assess and verify the

impact of the activity. The EPA will

transmit the CEE, along with a notice of

any decisions by the operator relating

thereto, to the Department of State

which shall circulate it to all Parties no

later than sixty (60) days before

commencement of the proposed activity

in the Antarctic Treaty area. The EPA

will also publish a notice of availability

of the final CEE in the Federal Register.

(3) No final decision shall be taken to

proceed with any activity for which a

CEE is prepared unless there has been

an opportunity for consideration of the

draft CEE by the Antarctic Treaty

Consultative Meeting on the advice of

the Committee for Environmental

Protection, provided that no expedition

need be delayed through the operation

of paragraph 5 of Article 3 to Annex I

of the Protocol for longer than 15

months from the date of circulation of

the draft CEE.

(c) Decisions based on CEE. The

decision to proceed, based on

environmental documentation that

meets the requirements under Article 8

and Annex I to the Protocol and the

provisions of this part, rests with the

operator. Any decision by an operator

on whether to proceed with or modify

a proposed activity for which a CEE was

required shall be based on the CEE and

other relevant considerations.

§ 8.9 Measures to assess and verify

environmental impacts.

(a) The operator shall conduct

appropriate monitoring of key

environmental indicators as proposed in

the CEE to assess and verify the

potential environmental impacts of

activities which are the subject of a CEE.

The operator may also need to carry out

monitoring in order to assess and verify

the impact of an activity for which an

IEE has been prepared.

(b) All proposed activities for which

an IEE or CEE has been prepared shall

include procedures designed to provide

a regular and verifiable record of the

impacts of these activities, in order,

inter alia, to:

(1) Enable assessments to be made of

the extent to which such impacts are

consistent with the Protocol; and

(2) Provide information useful for

minimizing and mitigating those

impacts, and, where appropriate,

information on the need for suspension,

cancellation, or modification of the

activity.

§ 8.10 Cases of emergency.

This part shall not apply to activities

taken in cases of emergency relating to

the safety of human life or of ships,

aircraft, equipment and facilities of high

value, or the protection of the

environment, which require an activity

34760 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Proposed Rules

to be undertaken without completion of

the procedures set out in this part.

Notice of any such activities which

would have otherwise required the

preparation of a CEE shall be provided

within fifteen (15) days to the

Department of State, as provided below,

for circulation to all Parties to the

Protocol and to the Committee on

Environmental Protection, and a full

explanation of the activities carried out

shall be provided within forty-five (45)

days of those activities. Notification

shall be provided to: The Director, The

Office of Oceans Affairs, OES/OA, Room

5805, Department of State 2201 C Street,

NW., Washington, DC 20520–7818.

§ 8.11 Prohibited acts, enforcement and

penalties.

(a) It shall be unlawful for any

operator to violate this part.

(b) An operator who violates any of

this part is subject to enforcement,

which may include civil and criminal

enforcement proceedings, and penalties,

pursuant to sections 7, 8, and 9 of the

Antarctic Conservation Act, as amended

by the Act; 16 U.S.C. 2407, 2408, 2409,

and 45 CFR part 672.

§ 8.12 Coordination of reviews from other

Parties.

(a) Upon receipt of a draft CEE from

another Party, the Department of State

shall publish notice in the Federal

Register and shall circulate a copy of

the CEE to all interested federal

agencies. The Department of State shall

coordinate responses from federal

agencies to the CEE and shall transmit

the coordinated response to the Party

which has circulated the CEE. The

Department of State shall make a copy

of the CEE available upon request to the

public.

(b) Upon receipt of the annual list of

IEEs from another Party prepared in

accordance with Article 2 of Annex I

and any decisions taken in consequence

thereof, the Department of State shall

circulate a copy to all interested federal

agencies. The Department of State shall

make a copy of the list of IEEs prepared

in accordance with Article 2 and any

decisions taken in consequence thereof

available upon request to the public.

(c) Upon receipt of a description of

appropriate national procedures for

environmental impact statements from

another Party, the Department of State

shall circulate a copy to all interested

federal agencies. The Department of

State shall make a copy of these

descriptions available upon request to

the public.

(d) Upon receipt from another Party of

significant information obtained, and

any action taken in consequence

therefrom from procedures put in place

with regard to monitoring pursuant to

Articles 2(2) and 5 of Annex I to the

Protocol, the Department of State shall

circulate a copy to all interested federal

agencies. The Department of State shall

make a copy of this information

available upon request to the public.

(e) Upon receipt from another Party of

a final CEE, the Department of State

shall circulate a copy to all interested

federal agencies. The Department of

State shall make a copy available upon

request to the public.

[FR Doc. 01–16436 Filed 6–28–01; 8:45 am]

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