placed in the record as if read in full, and we welcome your opening, Mr. Scully, if you want to lead off.

STATEMENT OF TUCKER SCULLY, DIRECTOR, OFFICE OF OCEAN AFFAIRS, DEPARTMENT OF STATE

Mr. SCULLY. Thank you, Mr. Chairman.

Mr. Chairman, I am very pleased to be here before this committee to discuss the legislation to implement the Antarctic protocol. We much appreciate the initiative in scheduling this hearing, as well as the flexibility that the committee has shown in its scheduling.

Senator Kerry described very well, I think, the provisions of the protocol itself, so I will not dwell upon a repetition of those provisions. Suffice it to say that the protocol represents innovative new provisions, building on the Antarctic treaty, to protect the Antarctic environment and to promote the conduct of scientific research there.

The step that remains in order for the United States to become a party to this important agreement is the enactment of implementing legislation. As Senator Kerry also noted, the Senate has already given its advice and consent to ratification.

For these reasons, Mr. Chairman, we in the administration have been working to develop agreed comprehensive legislation to implement the protocol. We have prepared a draft bill which is before the committee.

The bill, entitled the Antarctic Environmental Protection Act of 1993, would repeal two pieces of existing legislation, the Antarctic Conservation Act of 1978, and replace that act with legislation which enacts measures to implement the provisions of the protocol, and it would also repeal the Antarctic Protection Act of 1990 and create a new prohibition, permanent prohibition on Antarctic mineral resource activities in Antarctica, consistent with the protocol. As Senator Kerry also noted, work has been completed on all provisions of the draft administration bill with the exception of one section, that which deals with judicial review and citizen suits. Additional work will be required to complete work on that section.

We also agreed very much with the need to move rapidly in terms of implementing this protocol and therefore enacting the necessary legislation. For that reason, we have conveyed to the committee the draft administration bill as it stands-that is, complete except for the one section on which work remains. The draft administration bill as transmitted represents and reflects the full agreement of all agencies.

In this summary, Mr. Chairman, I would like to address the provisions of the draft administration bill from the point of view of the provisions of the protocol itself. The prepared statement addresses them more in terms of the sequence in which they appear in the draft administration legislation.

I would note also that, like the legislation introduced by Senator Kerry, our legislation rests on the premise that the U.S. Antarctic Program will continue to be managed and funded on a single-agency basis by the National Science Foundation, but insofar as the provisions of the bill before you, the administration bill, first, the bill prohibits mineral resource activities as indicated, prohibits any

activity relating to Antarctic mineral resources in Antarctica, except for scientific research.

The responsibility of the regulatory authority with respect to this prohibition is lodged in this bill with the National Oceanic and Atmospheric Administration of the Department of Commerce, with NOAA.

With respect to environmental impact assessment, article 8 of the protocol and annex 1 of the protocol set forth detailed requirements for environmental impact assessment not only for governmental activities but also for nongovernmental activities in Antarctica, including tourism.

The draft administration bill would implement these provisions with respect to Federal agency activities in Antarctica by applying the National Environmental Policy Act of 1969, NEPA, to such activities. The legislation leads to regulation, and does not prejudge the way in which activities conducted jointly by the United States and other parties to the protocol in Antarctica will be subject to environmental impact assessment.

With respect to nongovernmental activities in Antarctica, including tourism, the legislation authorizes the Environmental Protection Agency to promulgate regulations necessary to implement the EIA procedures of the protocol.

Annex 2 of the protocol includes detailed provisions for the flora and fauna, including prohibitions on the taking of, or harmful interference with any native plant, any native mammal, any native bird in Antarctica, except in accordance with a permit. Any permits for the taking or harmful interference with such species may only be issued in accordance with very strictly limited criteria, and only generally for scientific purposes.

Annex 5 of the protocol also adds protections for flora and fauna in its provisions for dealing with protected areas in Antarctica. With respect to agency responsibilities on this point, Mr. Chairman, the draft legislation would accord to the National Science Foundation the regulatory authority with respect to conservation of fauna and flora, and with respect to protected areas, including the authority to issue permits for individual U.S. scientists.

However, with respect to any permits that might need to be issued for the taking or harmful interference with flora and fauna incidental to the operation or construction of U.S. facilities in Antarctica, the authority of the National Science Foundation to issue permits would also require the concurrence of NOAA, the National Oceanic and Atmospheric Administration.

Annex 3 to the protocol includes detailed provisions for a waste disposal and waste management in Antarctica. The draft administration bill incorporates detailed provisions on these points. First, it reiterates the protocol's specific requirements with regard to retrograde of waste, with regard to incineration, with regard to waste disposal on land and at sea, including sewage discharge, provisions relating to storage of waste, and provisions relating to the prohibition of the introduction of certain products into Antarctica.

The legislation also provides that regulations be issued on incineration which take fully into account the Clean Air Act, and article 3 of the protocol, as well as the specific obligations of annex 3 itself, and require issuance of permits for any incineration.

Third, on waste, the legislation would include a requirement that regulations be issued specifying specifically which waste must be removed from Antarctica and not disposed of there, and finally, the legislation would prohibit, except in accordance with a permit, all disposal of waste in Antarctica, including a requirement that permits for sewage discharge take fully into account the provisions of article 3 of the protocol as well as the specific provisions of the relevant annex, annex 3.

With respect to the regulatory responsibilities in this area, the National Science Foundation, with the written concurrence of EPA, would have the authority to develop waste disposal and waste management regulations. The authority to issue permits would be lodged with NSF in consultation with EPA.

With respect to marine pollution, the legislation provides that— and this is annex 4 of the protocol-provides for the implementation of that annex by amending the act to prevent pollution from ships, which is the act that implements the relevant international convention, the MARPOL 1973-78 convention, and lodges the regulatory authority in this area with the U.S. Coast Guard.

With respect to the environmental principles of article 3, Mr. Chairman, the draft administration bill would include article 3 verbatim as a declaration of U.S. policy.

It would include a finding indicating that because of the legally binding character of article 3, residual regulatory authority is included in the legislation to allow for action to implement article 3 should a situation arise that is not addressed by the provisions of the annexes.

Finally, it would grant to each responsible agency, each agency with regulatory authority, residual authority to issue regulations to deal with matters when it determines that there is a matter that is not covered by the annexes to the protocol, or in situations where that agency believes that stricter regulatory action is required in relation to that specific subject area.

There are additional provisions in the legislation, Mr. Chairman, and I have addressed them in a prepared statement, regarding oversight of U.S. activities in Antarctica, with regard to monitoring, with regard to enforcement.

I would mention in particular, before concluding, Mr. Chairman, the issue of tourism and nongovernmental activities in Antarctica. First of all, the provisions of the protocol itself all apply to tourism as they do to other human activities in Antarctica, so the protocol itself significantly regulates tourist activities as well as other nongovernmental activities.

In addition, the draft bill proposed by the administration would include a requirement that vessels transporting passengers to Antarctica comply with the provisions of the marine pollution annex, annex 4 to the protocol, second, a requirement that those who are organizing expeditions to Antarctica fully inform all expedition members as to the obligations with which they must comply, and finally, a provision calling for a study, an interagency study to be completed within 2 years, to address the issue of tourism and make recommendations where appropriate for additional actions.

Mr. Chairman, in conclusion, the draft administration legislation which is now before you seeks to build upon and synthesize ideas

that are contained in S. 1427, as well as draft bills that have been introduced into the House. We believe that the administration's proposal represents a balanced and innovative basis for U.S. implementation of the protocol.

The consensus achieved by the agency certainly represents a product of long and concerted effort. We are committed to redoubling our efforts to complete the work on the remaining section of the legislation as rapidly as possible, and we look forward to working with you and your colleagues, including those on the House side, to enact implementing legislation, which as you mentioned, Mr. Chairman, will set the standard for all parties to this important new environmental agreement.

I thank you very much.

[The prepared statement of Mr. Scully follows:]

PREPARED STATEMENT OF R. TUCKER SCULLY

Mr. Chairman: I am pleased to appear before the committee to discuss legislation to implement the protocol on environmental protection to the Antarctic treaty. We appreciate your initiative in arranging this hearing and, in particular, your flexibility as to its timing.

Let me begin with a few words about the protocol itself. The Antarctic treaty consultative parties adopted and opened for signature the protocol on environmental protection to the Antarctic treaty, including four annexes, on October 4, 1991, in Madrid.

All 26 consultative parties, including the United States, have signed the protocol. The consultative parties adopted an additional annex to the protocol at Bonn on October 17, 1991. The Senate gave its advice and consent to ratification of the protocol, including the annexes, on October 7, 1992.

The protocol builds upon the Antarctic treaty to extend and improve the treaty's effectiveness as a mechanism for ensuring the protection of the Antarctic environment. The protocol is intended to replace existing recommendations under the treaty addressing the protection of the Antarctic environment, including the agreed measures for the conservation of Antarctic fauna and flora. It does not affect other agreements on the Antarctic to which the United States is a party, such as the Convention on the Conservation of Antarctic Marine Living Resources and the Convention on the Conservation of Antarctic Seals.

The protocol designates Antarctica as a natural reserve, devoted to peace and science. It prohibits mineral resource activities, other than scientific research, in Antarctica. Its annexes, which form an integral part of the protocol, set out specific rules on environmental impact assessment, conservation of Antarctic fauna and flora, waste disposal and management, the prevention of marine pollution, and area protection and management. The protocol establishes a committee for environmental protection to provide advice and recommendations to the Antarctic treaty consultative meetings on the implementation of the protocol, and includes provisions on settlement of disputes.

As noted earlier, the United States signed the protocol upon its adoption two years ago, in October, 1991. The Senate gave its advice and consent to the ratification of the protocol a year ago, in October, 1992. Enactment of implementing legislation is the remaining step required for the United States to deposit its instrument of ratification and, thereby, become a party to the protocol. (To date, five other signatory nations have become parties Spain, Ecuador, Peru, France and Norway.) Early entry into force and implementation of the protocol constitutes the highest priority of our Antarctic policy. For this reason, we in the administration have been working to develop agreed comprehensive legislation to implement the protocol.

We have prepared a draft bill, entitled the Antarctic Environmental Protection Act of 1993, which would repeal the Antarctic Conservation Act of 1978 and replace it with legislation which enacts measures to implement the provisions of the protocol and annexes. It would also repeal the Antarctic Protection Act of 1990 and create a new prohibition on mineral resource activities in Antarctica consistent with the protocol.

Work has been completed on all provisions of the draft bill, with the exception of one section-that dealing with judicial review and citizen suits. Additional work will be required among the agencies to complete that section.

We fully concur with the need to move rapidly to enact comprehensive implementing legislation and do not wish to see further delay in the initiation of congressional consideration. Therefore, we have conveyed to the committee the draft administration legislation as it stands, without the section (section 14 on judicial review and citizen suits) that remains to be completed. The draft administration bill, as transmitted, reflects the full agreement of all agencies.

The text of the draft administration legislation is also attached to this testimony and let me turn to its salient features.

Findings, purpose and policy:

The legislation would find, in conformity with article 2 of the protocol, that Antarctica is a natural reserve, devoted to peace and science.

The purpose of the bill is to provide legislative authority to implement the protocol.

The legislation would incorporate the environmental principles of article 3 of the protocol as a statement of U.S. national policy.

Prohibited acts:

Section 4(a) of the bill lists prohibited actions; section 4(b) lists actions that would be prohibited unless carried out with a permit.

Section 4(a)(1) would make it unlawful for any person to engage in, provide assistance to, or knowingly finance any Antarctic mineral resource activity. This provision reflects article 7 of the protocol, which states: "Any activity relating to mineral resources, other than scientific research, shall be prohibited." This legislation would repeal the Antarctic Protection Act, which was intended as an interim measure pending entry into force of an international agreement providing an indefinite ban on Antarctic mineral resource activities. Article 7, which has no termination date and is not reviewable for fifty years following entry into force of the protocol, constitutes such an indefinite ban.

The legislation would prohibit several activities concerning waste in Antarctica. It would be unlawful to: introduce certain specified products; to dispose of certain types of waste, except through removal; to engage in open burning of waste after March 1, 1994; and to dispose of any waste onto ice-free land areas or into fresh water systems. In addition, section 4(b) of the legislation would prohibit disposal of any waste in Antarctica without a permit, except as otherwise authorized under the act to prevent pollution from ships. All of these prohibitions are based on provisions of annex of the protocol.

Section 4(b) of the legislation would prohibit any person from introducing into Antarctica any member of a non-native species and from engaging in any taking or harmful interference in Antarctica without a permit, in conformity with annex II of the protocol.

Section 4(b) would also prohibit entering specially protected areas without a permit, in conformity with annex V of the protocol.

Regulations:

The legislation would authorize the NSF Director, the Secretary of Commerce, the EPA Administrator, the Secretary of State, and the Secretary of the Department in which the Coast Guard operates to promulgate regulations to implement the provisions of the protocol. In particular, the legislation would provide for:

• The NSF Director to promulgate regulations on protection of flora and fauna, and of specially protected areas, in accordance with specific requirements drawn from annexes II and V of the protocol;

• The NSF Director, with the concurrence of the EPA Administrator, to promulgate regulations on waste disposal and management, in accordance with specific requirements drawn from annex III of the protocol;

• The Secretary of Commerce to promulgate regulations on Antarctic mineral resource activity;

The Secretary of State to promulgate regulations on the filing of advance notice of expeditions to and within Antarctica; and

The Secretary of the Department in which the Coast Guard is operating to promulgate regulations on marine pollution, including contingency planning and response action.

The legislation would also provide authority to promulgate additional regulations to implement the protocol, including regulations to address a situation not covered by the annexes to the protocol or in which a more rigorous or supplemental requirement is necessary.

Permits:

The legislation would set out terms and conditions on the issuance of permits by the NSF Director for activities otherwise prohibited under section 4(b). The legislation would require the director to consult with the EPA Administrator before issuing a permit to dispose of waste, and to receive the concurrence of the Secretary of Com