breeding grounds for seals, penguins, and other seabirds. Such visits place additional stress on these species, and could cause animals to abandon their breeding sites or increase the vulnerability of their eggs and young to predation. Indeed, the potential for such impacts is heightened by a significant increase in the number of tourists visiting Antarctica during the past decade. During the 1982/83 season, approximately 721 tourists visited Antarctica. Approximately 6,500 tourists reportedly visited Antarctica during the 1992-93 season. While these figures may appear small when compared to the total number of visitors visiting other parts of the world, it must be emphasized that most Antarctic tourist visits occur at only a few sites during a relatively short period of time (approximately three months) when Antarctic wildlife are breeding. At the same time, it must be noted that the Antarctic seaborne tourist industry is changing from one involving small expedition ships to vessels capable of carrying up to 800 passengers.

In anticipation of the potentially adverse impacts from a burgeoning tourist industry in Antarctica, a number of tour companies have formed the International Association of Antarctica Tour Operators (hereafter "IAATO") and pledged to follow certain voluntary guidelines. Those guidelines are based, in part, on earlier Treaty recommendations relevant to tourism. While that effort was a welcome development, it is not sufficient to govern a growing U.S. tourist industry in Antarctica. In fact, the IAATO guidelines do not constitute legally enforceable requirements. This is evidenced by one IAATO member's consistent violations of two rules set out in the IAATO guidelines, which require tour operators to (1) "ensure that for every 20-25 passengers there is 1 qualified naturalist/lecturer guide to conduct and supervise small groups ashore" and (2) "limit the number of passengers ashore to 100 at any one place at any one time." Despite these guidelines, NSF's observer program documented clear violations two years ago by one company-a charter member of IAATO. Although IAATO testified last year that non-compliance would result in revoking membership, the same company again operated in Antarctica this past year as a member of IAATO.

Unfortunately, despite the threat of increasing tourist activities in Antarctica, the administration proposal largely defers action on any significant measures to prevent environmental impacts. To be sure, the Protocol requires tour operators to prepare environmental impact assessments In connection with their expeditions to Antarctica. But the administration proposal would only require the EPA to promulgate regulations for nongovernmental expeditions, consistent with Annex I of the Protocol, within 24 months of enactment of the implementing legislation. Beyond that delay, the administration proposal makes no attempt to resolve outstanding legal issues concerning compliance with and enforcement of this requirement for tourist expeditions. One such issue concerns determinations that a particular expedition does not have "more than a minor or transitory impact" on the environment and therefore the operator need not prepare a comprehensive environmental evaluation. The administration proposal offers no guidance as to who makes such determinations and who as the right to challenge such findings. Ultimately, EDF believes that an agency such as NOAA or EPA must be responsible for reviewing such determinations and that finding must be subject to judicial review.

Moreover, while assessment of the environmental impact of tourist expeditions will clearly be useful, the EIA process alone only creates procedural requirements. Hence, even if a tour operator documents environmental impacts, there is nothing in the EIA provisions that require that operator to avoid or mitigate such impacts. Here too, the administration proposal is inadequate. It only calls for a two year study to be undertaken by the State Department "to determine whether or not additional measures should be taken with respect to Antarctic tourist activities." See Section 12. Indeed, that proposal falls short of what the U.S. tourist industry itself has testified is necessary for environmental protection in Antarctica. Last year, a representative from IAATO testified before the House Merchant Marine and Fisheries Committee that it supported creation of a permitting scheme to regulate tourism in Antarctica. Specifically, in response to a question from the Committee concerning IAATO's support for a permitting scheme administered by NOAA to govern tourist operations, Mr. Jolin Splettstoesser stated:

Total numbers of tourists visiting Antarctica during just the past three seasons for which data are available (1989-90, 1990-91, and 1991-92) were 2581, 4842, and 6495. Virtually all of these tourists, many of whom were either American or travelled to Antarctica on U.S. excursions, toured Antarctica aboard ships. While the total number of Antarctic tourists may seem small when compared to tourism in other parts of the world, it must be emphasized that tourist expeditions in Antarctica are concentrated in a relatively few, small wildlife sites during the breeding season. See Enzenbacher, Antarctic Tourism and Environmental Concerns, 25 Marine Poll. Bull. 258 (1992).

"A permitting scheme should be welcomed by all, not only tour operators but anyone working in Antarctica, because it provides for a standardized procedure with necessary control of all activity. Only in this way can responsible tourism, and other activities, be successful in efforts to minimize impacts on the vulnerable environment of Antarctica. The National Oceanic and Atmospheric Administration already has experience in sponsoring research programs in Antarctica, and would provide the experience and leadership role required for the permitting responsibility." 10

One need only look at impacts from uncontrolled tourist operations in the recent past to conclude that a regulatory program should be established. These impacts include an oil spill on the Antarctica Peninsula from an Argentine supply vessel carving 81 tourists (including approximately 40 U.S. citizens); helicopter flights sponsored by a U.S. tour company that reportedly scattered penguins in terror on each landing and take-off; and disruption of a lumber of sensitive wildlife breeding sites by large groups of tourists. In light of the dramatic growth in Antarctic tourism, it is clear that a regulatory Urogram should not await an additional study or the exercise of an agency's discretionary authority. Indeed, while the Protocol may contain general prohibitions against certain tourist activities, it does not specify minimum viewing distances for Antarctic wildlife; limit the frequency, size, and duration of visits to sensitive wildlife sites; require tour operators to utilize an appropriate number of certified staff to supervise such visits; or establish a program of coordination, monitoring, observation, and reporting for all U.S. tour operator visits to Antarctica. The implementing legislation should direct NOAA to do this.

CITIZEN SUITS AND FEDERAL AGENCY ENFORCEMENT

As the Committee well knows, NSF has been slow to implement certain of its nondiscretionary duties under the ACA. Indeed, almost 15 years passed before NSF promulgated mandatory regulations governing pollution in Antarctica.11 Of course, in the absence of such regulations, NSF's facilities in Antarctica seriously contaminated the environment with PCBs, heavy metals, asbestos, and dioxins. And, even if regulations outlawing the activities that resulted in this pollution had been in place, it is rather unlikely that NSF would have brought enforcement actions against itself to prevent such problems. Indeed, NSF has refrained from bringing enforcement actions against others who clearly violated the ACA when they scattered penguins in terror during helicopter flights or illegally entered internationally protected areas. To be sure, in testimony before the Merchant Marine and Fisheries Committee last year, NSF stated that its Inspector General had found its enforcement activities under the ACA to be "generally fair and in keeping with the overall intent of the ACA." However, NSF officials failed to apprise the Committee that the NSF Inspector General went on to criticize the agency over its failure to “require implementation of more formal processes" and to designate, train, or empower any officers to enforce the ACA.12

Nevertheless, while the administration proposal largely confers regulatory and permitting responsibilities to NSF, it does not create any mechanism to ensure that NSF and other agencies properly implement and enforce the legislation. In this respect, it will be important for the legislation to include a provision that allows citizens to bring lawsuits and which addresses, to the extent possible, standing problems created by Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992). As in other citizen suit provisions, the legislation should authorize any citizen to commence a civil action in U.S. District Court against any person (including the United States or any other governmental instrumentality or agency) who is alleged to be in violation or any standard, limitation, regulation, permit, or order issued the Act; and

10 See Antarctic Treaty Protocol on Environmental Protection: Hearings before the Subcomms. on Ocean., Great Lakes and the Outer Contin. Shelf, Coast Guard and Navig., and Fisheries and Wildlife Conserv. and the Envt., of the House Comm. on Merchant Marine and Fisheries, 102d Cong., 2d Sess. 162 (1992).

11 At the same time, the other agency charged with issuing regulations under the ACA-the State Department-has failed to promulgate mandatory regulations governing advance notifications under Section 7 of the ACA. That Section declares: "The Secretary of State shall prescribe such regulations as may be necessary and appropriate to implement, with respect to United States citizens, paragraph 5 of Article VII of the Treaty pertaining to the filing of advance notifications of expeditions to, and within, Antarctica." 16 U.S.C. §2406.

12 See Office of the Inspector General, National Science Foundation, Semiannual Report to the Congress. Number 6: October 1, 1991-March 31, 1992, at 25-26.

against any federal agency where there is alleged a failure of that agency to perform any act or duty under the Act which is not discretionary.13

Although some agencies have disputed the need for a citizen suit enforcement scheme, and that appears to be reason why the administration proposal is silent on this subject, the Department of Justice recently touted the importance of such provisions. in pertinent part, it stated that:

These provisions represent a recognition by Congress that the enforcement of the nation's environmental laws is too important to leave to the exclusive province of the Federal Government and that a valuable public service is performed when private citizen groups join in the effort to secure compliance with environmental obligations.

Hence, a citizen suit enforcement provision would ensure that the relevant federal agencies promulgate regulations in a timely manner and that they and their permit applicants comply with the standards and regulations established under the Act. Moreover, it would be consistent with the President's campaign promise to "support legislation that allows ordinary citizens to sue federal agencies that ignore environmental laws and regulations designed to preserve our environment-so government bureaucrats are made accountable for proper and effective environmental law enforcement." 14

Finally, in addition to providing EPA and NOAA with authority to promulgate regulations and issue permits implementing the Protocol, the implementing legislation must contain a provision allowing those agencies to bring enforcement actions against NSF and other federal agencies operating in Antarctica. Needless to say, the administration proposal does not contain such a provision. A model for this provision may be found in the Federal Facilities Compliance Act, which authorizes EPA to bring actions against other federal agencies for violations of federal environmental statutes.

Once again, thank you for the opportunity to present testimony to the Committee and for keeping the record open so as to allow for this more detailed analysis.

Sincerely,

BRUCE S. MANHEIM, Jr.,
Senior Attorney.

QUESTIONS ASKED BY SENATOR KERRY AND ANSWERS THERETO BY MR. SCULLY Question. How does the Administration proposal address environmental impact assessment in Antarctica, including with respect to joint activities?

Answer. Section 7 of the Administration proposal provides for environmental impact assessment of activities in Antarctica. Section 7(a)(1)(B) makes clear that the environmental impact assessment obligations contained in section 102(2)(C) of the National Environmental Policy Act (NEPA) apply to proposals for federal agency activities in Antarctica, as specified in the section.

In many respects, the requirements of the Environmental Protocol to the Antarctic Treaty with respect to environmental impact assessment are stricter than NEPA's requirements. The Administration's proposal makes clear that NEPA and the Protocol apply consistently with one another. In particular, it provides that, where there is some question as to whether NEPA would satisfy the Protocol's standards, the Protocol's standards apply.

-For example, the Protocol has a different standard for requiring a comprehensive environmental evaluation (CEE) than NEPA's standard for preparing an environmental impact assessment (the Protocol requires a CEE for all activities likely to have "more than a minor or transitory impact"; NEPA requires an EIA for major federal actions with a "significant" effect). Section 7(a)(2)(C) of the Administration's proposal requires agencies to prepare a CEE for proposed federal activities likely to

13 At least 16 environmental laws contain citizen suit provisions. These laws are the (1) Clean Air Act (42 U.S.C. § 7604); (2) Clean Water Act (33 U.S.C. § 1365), (3) Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9659); (4) Deep Seabed Hard Mineral Resources Act (30 U.S.C. § 1427); (5) Deepwater Port Act (33 U.S.C. § 1515); (6) Emergency Planning and Community Right-to-Know Act (42 U.S.C. §1 1046(aX1)); (7) Endangered Species Act (16 U.S.C. § 1540(g)); (8) Energy Policy and Conservation Act (42 U.S.C. § 6305), (9) Hazardous Liquid Pipeline Safety Act (49 App. U.S.C. §2014); (10) Ocean Thermal Energy Conversion Act (42 U.S.C. §9124); (11) Outer Continental Shelf Lands Act (43 U.S.C. § 1349); (12) Powerplant and Industrial Fuel Use Act (42 U.S.C. §8435); (13) Resource Conservation and Recovery Act (42 U.S.C. §6972); (14) Safe Drinking Water Act (42 U.S.C. §300j-8); (15) Surface Mining Control and Reclamation Act (30 U.S.C. §1270); and (16) the Toxic Substances Control Act (15 U.S.C. § 2619).

14 See The Clinton-Gore Plan on Protecting Our Environment.

have more than a minor or transitory impact and, to avoid any possible reading that "minor or transitory" is a less protective standard than the standard of NEPA, section 7(a)(4)(B) provides that activities that may have a "significant" impact within the meaning of NEPA are deemed to fall within the category of activities likely to have more than a minor or transitory impact.

-Since the Protocol applies to all activities in Antarctica, including non-governmental activities, while NEPA only applies to "major federal actions", section 7(c) requires the Environmental Protection Agency to promulgate regulations to provide for the environmental impact assessment of non-governmental activities.

-The Protocol prohibits a Party from deciding to proceed with an activity with more than a minor or transitory impact until the other Parties have had an opportunity to hear from the Committee for Environmental Protection (established by the Protocol) and consider the CEE at an Antarctic Treaty Consultative Meeting. NEPA, of course, does not contain such a requirement, so section 7(d) of the Administration's proposal incorporates the Protocol's requirement.

Environmental impact assessment of activities carried out jointly between the U.S. government and another government raise difficult issues, under both NEPA and the Protocol. The Administration is currently engaged in a comprehensive review to environmental impact assessment of extraterritorial activities, including activities conducted with other governments. The Administration believes that environmental impact assessment of joint activities in Antarctica should be undertaken consistently with the conclusions of that review.

Therefore, section 7(b) leaves to regulation how environmental impact assessment of such activities in Antarctica would be carried out. In particular, it provides that agencies designated by the President would define what activities are "joint" within the meaning of the legislation. The Administration would define the term in accordance with the outcome of its review.

It is possible that the definition would provide that some or all of the activities undertaken by the U.S. Government with another government would not be considered "joint" for the purposes of the legislation. If the definition provided that some such activities were "joints for the purposes of the legislation, then section 7(b)(3) would exempt such activities from judicial review in the United States. And, under section 7(b)(2), the legislation's requirements would not apply if another government was coordinating the environmental impact assessment of the activity.

Question. Would the Administration proposal weaken the prohibition on takings of Antarctic fauna and flora now contained in the Antarctic Conservation Act? Answer. The Administration proposal implements the provisions of the Protocol, including Annex II on Conservation of Antarctic Fauna and Flora. Annex II prohibits takings and harmful interference except in accordance with a permit. It defines "take" as to kill, injure, capture, handle or molest a native bird or mammal, or to remove or damage such quantities of native plants as to significantly affect their local distribution or abundance. "Harmful interference" includes activities that disturb concentrations of birds or seals, significantly damage concentrations of native plants, or result in significant adverse modification of the habitat of any species or population of native mammal, bird, plant, or invertebrate.

Permits for taking or harmful interference may be issued only to provide specimens for scientific purposes, to provide specimens for museums, zoos or other cultural or educational institutions, or to provide for unavoidable consequences of other scientific activities or the construction and operation of scientific support facilities. Annex II of the Protocol strengthens existing Antarctic Treaty measures-the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted by the Antarctic Treaty Consultative Parties. (The United States has implemented the Agreed Measures through the Antarctic Conservation Act of 1978.) Annex II of the Protocol, inter alia, broadens the definition of taking, adds specific prohibitions relating to native plants, and strengthens controls on harmful interference.

Annex II also clarifies the requirements relating to takings and harmful interference incidental to the construction and operation of scientific support facilities. The Agreed Measures prohibited takings without a permit, but did not address takings incidental to construction and operation of scientific support facilities. Some have argued that this omission should be read as prohibiting such takings completely. This is a misreading of the Agreed Measures. Such takings are an unavoidable consequence of the construction and operation of scientific support facilities, at least in coastal areas of Antarctica. The Antarctic Treaty Consultative Parties, including the United States, clearly did not intend to shut down all such facilities as a result of the operation of the prohibition on takings.

The Parties addressed this question in the Protocol. Annex II provides that such incidental takings are prohibited without a permit. it also provides that the issuance of permits shall be limited to ensure that no more native mammals, birds, or plants

are taken than are "strictly necessary," that only small numbers of native mammals and birds are killed, that in no case more are killed than can be replaced by natural reproduction in the following season, and that the diversity of species, including their habitats, in Antarctica is maintained.

The Administration's proposal would authorize the National Science Foundation to issue permits for taking or harmful interference in the circumscribed cases for which permits can be issues. The written concurrence of the National Oceanic and Atmospheric Administration would be required before a permit could be issued for taking incidental to the construction or operation of a scientific support facility.