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Antarctic Non-Governmental Expeditions
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[Federal Register: August 13, 2001 (Volume 66, Number 156)]
[Rules and Regulations]
[Page 42450-42452]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au01-9]
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NATIONAL SCIENCE FOUNDATION
45 CFR Parts 672 and 673
RIN 3145-AA36
Antarctic Non-Governmental Expeditions
AGENCY: National Science Foundation (NSF).
ACTION: Final rule.
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SUMMARY: NSF is issuing a final rule that implements the amendments to
the Antarctic Conservation Act of 1978 contained in the Antarctic
Science, Tourism, and Conservation Act of 1996. These regulations
require that U.S. non-governmental expeditions using non-U.S. flagged
vessels for Antarctic voyages ensure that the vessel has an emergency
response plan. The regulation also requires that U.S. non-governmental
expeditions doing business in the United States notify passengers and
crew of their Antarctic Conservation Act obligations.
DATES: Effective Date: NSF is publishing this rule to become effective
September 12, 2001.
FOR FURTHER INFORMATION CONTACT: Anita Eisenstadt, Assistant General
Counsel, National Science Foundation, 4201 Wilson Boulevard, Room 1265,
Arlington, Virginia 22230.
SUPPLEMENTARY INFORMATION: On June 4, 1998, the National Science
Foundation (NSF) published a proposed rule to implement emergency
response plan and environmental protection information requirements
contained in the Antarctic Conservation Act of 1978, as amended by the
Antarctic Science, Tourism, and Conservation Act of 1996 (ASTCA), and
invited public comment on the proposed rule (63 FR 30438). NSF received
written comments from the International Association of Antarctica Tour
Operators (IAATO) and the U.S. Environmental Protection Agency (EPA).
IAATO expressed uncertainty as to whether NSF is the appropriate
Federal agency to issue a rule implementing Article 15 of the Protocol
on Environmental Protection to the Antarctic Treaty (the Protocol) with
respect to vessels. In enacting ASTCA, Congress reaffirmed NSF's role
as the lead Federal agency in Antarctica with longstanding
responsibility for ensuring that U.S. scientific activities and tourism
are conducted with an eye to preserving the unique values of the
Antarctic region. (16 U.S.C. 2401(a)(3)). Article 15 of the Protocol
requires that the U.S. Government provide for prompt and effective
response action to environmental emergencies arising from scientific
research programs, tourism and non-governmental activities in
Antarctica. The U.S. Coast Guard has issued regulations which implement
this obligation with respect to U.S. flagged vessels. However, many
U.S. non-governmental expeditions charter non-U.S. flagged vessels. To
ensure that the U.S. obligation to comply with Article 15 is met for
all activities in Antarctica for which advance notice is required under
Article VII of the Antarctic Treaty, it was necessary to have a
regulation addressing Article 15 obligations for those U.S. non-
governmental expeditions which charter non-U.S. flagged vessels.
Section 6(a) of the Antarctic Conservation Act, as amended by ASTCA,
authorizes NSF to issue such regulations as are necessary and
appropriate to implement the Protocol and the ACA. It is under this
authority, and to fully meet the U.S. obligations under Article 15,
that NSF is issuing this regulation.
IAATO also suggested that the proposed rule could be interpreted as
an attempt to govern the operations of foreign flag vessels. The U.S.
obligation under the Protocol is to ensure that all expeditions for
which advance notice is required by the United States under the Treaty
are prepared to provide for prompt and effective response actions to
environmental emergencies, regardless of the flag state or the state of
registry of the vessel being used for the expedition. This regulation
regulates the U.S. expedition organizer rather than the foreign flagged
vessel by requiring the expedition organizer to make provision for
prompt and effective response action as required under Article 15. The
expedition organizer may do so by contract. NSF has revised the
language in Sec. 673.1, Purpose of Regulations, of the final rule to
provide clarification in this respect.
IAATO also noted that different national authorities may impose
different rules to implement Article 15 and that amending Shipboard Oil
Pollution Emergency Plans (``SOPEPs'') will be an iterative process.
IAATO commented that the regulatory requirements should be flexible
enough to accommodate varying approaches to response plans. IAATO
sought clarification as to whether the preamble language, stating that
a plan which met Coast Guard's rule implementing Article 15 would also
meet the requirements of this regulation, would limit such flexibility.
NSF agrees that a flexible approach is necessary. The regulation does
not dictate the detailed content of the response plan and the reference
to the Coast Guard regulation was merely intended to provide consistent
guidance on one acceptable approach to the content of an effective
response plan.
EPA also submitted written comments on the proposed rule. EPA
expressed concern with the language in Sec. 673.4 which limited the
requirement for providing environmental protection information to
persons organizing non-governmental expeditions ``who do business'' in
the United States. The limitation to an entity who ``does business in
the United States'' reflects the specific statutory language contained
in section 4(a)(6) of the ACA, as amended by ASTCA. The scope of
coverage for the response action provisions in the rule is not limited
to organizers ``who do business'' in the United States.
EPA also expressed concern that the proposed rule appeared to be
limited to tour operators rather than all non-governmental operators.
Of course, the majority of non-governmental operators are tour
operators. However, to the extent that any language contained in the
preamble to the proposed rule would have given the impression that the
rule is limited to tour operators, NSF wishes to clarify that the rule
applies to all categories of non-governmental expeditions organized in
or proceeding from the United States and required to give notice under
Article VII(5) of the Antarctic Treaty. In order to avoid any
[[Page 42451]]
misperception about the scope of the rule, NSF is changing the title of
part 673 to Antarctic Non-Governmental Expeditions. However, as noted
above, the environmental protection information provision is limited in
applicability to expedition organizers who do business in the United
States as provided in section 4(a)(6) of the ACA.
EPA also raised concerns that the preamble to the proposed rule
gave the impression that requirements to amend SOPEPs were being levied
on non-U.S. flagged vessels. However, the rule regulates the U.S.
expedition organizer rather than the foreign flagged vessel by
requiring the expedition organizer who uses non-U.S. flagged vessels to
ensure that the vessel owner or operator has an emergency response
plan.
EPA suggested that NSF might wish to incorporate preamble language
in the final rule stating that ``* * * any plan which satisfies the
requirements contained in 33 CFR 151.26 of the Coast Guard regulations
will also satisfy the requirements of this rule.'' NSF's reference to
the Coast Guard regulation was intended to provide consistent guidance
to Antarctic expedition organizers. NSF considered EPA's suggestion and
has modified the final rule to incorporate this provision.
EPA also suggested that NSF add definitions to its final rule found
in EPA's interim final rule for environmental impact assessment of non-
governmental activities in Antarctica. Specifically, EPA suggested
adding definitions for Antarctic Treaty area and operator. Since NSF
has defined ``Antarctica'' as the area south of 60 degrees south
latitude which is also the Antarctic Treaty area, NSF will consistently
use the single term ``Antarctica'' throughout the regulation. NSF does
not believe that the addition of the term ``operator'' to the
regulation would provide any additional clarification to the rule.
Finally, EPA recommends that NSF change the term ``tour operators''
to ``nongovernmental operators'' in Sec. 673.4(b). This provision in
the rule preserves the option for NSF to prepare educational
information at its discretion for dissemination to passengers aboard
tourist vessels. Since the vast majority of nongovernmental expeditions
to Antarctic are tourist expeditions, NSF is limiting the mandatory
distribution of such materials to tour operators. This information
could certainly be provided to other non-governmental expeditions but
mandatory dissemination is not needed.
Determinations:
A. Executive Order 12866
NSF has determined, under the criteria set forth in Executive Order
12866, that this rule is not a significant regulatory action requiring
review by the Office of Information and Regulatory Affairs.
B. Regulatory Flexibility Act
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), it
is hereby certified this rule will not have significant impact on a
substantial number of small businesses.
C. Paperwork Reduction Act
For purposes of the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.), the collection of information requirements have been approved by
the Office of Management and Budget (OMB No. 3145-0180).
D. Unfunded Mandates Act
The Unfunded Mandates Act of 1995 (Pub. L. 104-4) requires agencies
to prepare several analytic statements before proposing any rule that
may result in annual expenditures of $100 million by State, local,
Indian Tribal governments, or the private sector. Since this rule will
not result in expenditures of this magnitude, it is hereby certified
that such statements are not necessary.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
804). The rule will not result in an annual effect on the economy of
$100 million or more; result in a major increase in cost or prices; or
have significant adverse effects on competition, employment,
investment, productivity, innovation or on the ability of the United
States-based companies to compete with foreign-based companies in
domestic and export markets.
F. Executive Order 13132: Federalism
The rule 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. Therefore, in accordance with section 6 of Executive
Order 13132, NSF has determined that this rule does not have sufficient
federal implications to warrant the preparation of a federalism summary
impact statement.
G. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of the Executive Order 12988.
H. Executive Order 13175: Tribal Consultation
This rule does not have tribal implications.
I. The Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.), provides that
agencies shall submit a report, including a copy of all final rules, to
each House of Congress and the Comptroller General of the United
States. The Foundation has submitted this report, identifying this rule
as non-major.
List of Subjects
45 CFR Part 672
Administrative practice and procedure, Antarctica.
45 CFR Part 673
Administrative practice and procedure, Antarctica, Oil pollution,
Vessels.
Dated: August 7, 2001.
Lawrence Rudolph,
General Counsel, National Science Foundation.
The National Science Foundation hereby amends 45 CFR part 672, and
adds 45 CFR part 673 as follows:
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 2401 et. seq.
2. The part heading to part 672 is revised to read as follows:
PART 672--ENFORCEMENT AND HEARING PROCEDURES
Sec. 672.3 [Amended]
3. In Sec. 672.3, remove and reserve paragraph (h) and redesignate
paragraph (i) as (h).
4. Part 673 is added to read as follows:
PART 673--ANTARCTIC NON-GOVERNMENTAL EXPEDITIONS
Sec.
673.1 Purpose of regulations.
673.2 Scope.
673.3 Definitions.
673.4 Environmental protection information.
673.5 Emergency response plan.
Authority: 16 U.S.C. 2401 et. seq.
Sec. 673.1 Purpose of regulations.
The purpose of the regulations in this part is to implement the
Antarctic Conservation Act of 1978, Public Law
[[Page 42452]]
95-541, as amended by the Antarctic Science, Tourism and Conservation
Act of 1996, Public Law 104-227, and Article 15 of the Protocol on
Environmental Protection to the Antarctic Treaty done at Madrid on
October 4, 1991. Specifically, this part requires that all non-
governmental expeditions, for which advance notice by the United States
is required under the Antarctic Treaty, who use non-flagged vessels
ensure that the vessel owner or operator has an appropriate emergency
response plan. This part is also designed to ensure that expedition
members are informed of their environmental protection obligations
under the Antarctic Conservation Act.
(Approved by the Office of Management and Budget under control
number 3145-0180).
Sec. 673.2 Scope.
The requirements in this part apply to non-governmental expeditions
to or within Antarctica for which the United States is required to give
advance notice under Paragraph (5) of Article VII of the Antarctic
Treaty.
Sec. 673.3 Definitions.
In this part:
Antarctica means the area south of 60 degrees south latitude.
Expedition means an activity undertaken by one or more non-
governmental persons organized within or proceeding from the United
States to or within Antarctica for which advance notification is
required under Paragraph 5 of Article VII of the Antarctic Treaty.
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.
Sec. 673.4 Environmental protection information.
(a) Any person who organizes a non-governmental expedition to
Antarctica and who does business in the United States shall notify
expedition members of the environmental protection obligations of the
Antarctic Conservation Act.
(b) The National Science Foundation's Office of Polar Programs may
prepare for publication and distribution explanation of the prohibited
acts set forth in the Antarctic Conservation Act, as well as other
appropriate educational material for tour operators, their clients, and
employees. Such material provided to tour operators for distribution to
their passengers and crew shall be disseminated prior to or during
travel to the Antarctic.
Sec. 673.5 Emergency response plan.
Any person organizing a non-governmental expedition to or within
Antarctica who is transporting passengers aboard a non-U.S. flagged
vessel shall ensure that:
(a) The vessel owner's or operator's shipboard oil pollution
emergency plan, prepared and maintained according to Regulation 26 of
Annex I of the International Convention for the Prevention of Pollution
from Ships, 1973, as modified by the Protocol of 1978 relating thereto
(MARPOL 73/78), has provisions for prompt and effective response action
to such emergencies as might arise in the performance of the vessel's
activities in Antarctica. Any emergency response plan which satisfies
the requirements contained in 33 CFR 151.26 of the U.S. Coast Guard
regulations will also satisfy the requirements of this paragraph. If
the vessel owner or operator does not have a shipboard oil pollution
emergency plan, a separate plan for prompt and effective response
action is required.
(b) The vessel owner or operator agrees to take all reasonable
measures to implement the plan for a prompt and effective response
action in the event of an emergency, taking into account considerations
of risk to human life and safety.
[FR Doc. 01-20274 Filed 8-10-01; 8:45 am]
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