Environmental Impact Assessment of Nongovernmental Activities in Antarctica

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Part II

Environmental Protection Agency

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40 CFR Part 8

Environmental Impact Assessment of Nongovernmental Activities in

Antarctica; Proposed Rule

Proposed Rules

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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.

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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:

irector,

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 Multi-Year 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

(``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

. 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

t 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

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

l 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

escribed 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

he 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

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

ica. 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

tivity 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

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

ent 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

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

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

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

sed 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

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.

nd 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

y 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

repare 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

arding

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.

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

ly 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

proposed regulations and transmit its comments to the operator within

120 days following publication of notice of availability in the Federal

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

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.

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, large-scale 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

tions 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.

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

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

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.

uld an activity require a CEE, the

operator should consult with EPA

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

Multi-Year 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 mor

xpeditions; (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

onmental 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

or 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

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

thereof; (3) significant information obtained and any action taken in

consequence thereof with regard to monitoring from IEEs and CEEs; and

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

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

rty 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;

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-for-

profit 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

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-for-

profit 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

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

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

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

, 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

l 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 cost-effective 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

romulgating 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 cost-effective 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

l 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

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 n

rator may be included within one