16 U.S.C. § 2403a — Environmental impact assessment

Page 2180 TITLE 16—CONSERVATION § 2403a the person knows, or in the exercise of due care should have known, was taken in viola- tion of this chapter. (c) Exception for emergencies No act described in subsection (a)(1), (2), (3), (4), (5), (7), (12), or (13) or in subsection (b) shall be unlawful if the person committing the act reasonably believed that the act was committed under emergency circumstances involving the safety of human life or of ships, aircraft, or equipment or facilities of high value, or the pro- tection of the environment. (Pub. L. 95–541, § 4, Oct. 28, 1978, 92 Stat. 2049; Pub. L. 104–227, title I, § 103, Oct. 2, 1996, 110 Stat. 3036.) Editorial Notes REFERENCES IN TEXT The Act to Prevent Pollution from Ships, referred to in subsecs. (a)(5) and (b)(1), is Pub. L. 96–478, Oct. 21, 1980, 94 Stat. 2297, which is classified principally to chapter 33 (§ 1901 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 1901 of Title 33 and Tables. AMENDMENTS 1996—Pub. L. 104–227 reenacted section catchline without change and amended text generally. Prior to amendment, text consisted of subsec. (a) ‘‘In General’’, which set forth unlawful acts in pars. (1) to (4) and pro- vided that such acts would not be unlawful if com- mitted under emergency circumstances to prevent the loss of human life, and subsec. (b) ‘‘Exception’’, which provided that subsec. (a) would not apply with respect to any native mammal, native bird, or native plant held in captivity or to any offspring of such mammal, bird, or plant. § 2403a. Environmental impact assessment (a) Federal activities (1)(A) The obligations of the United States under Article 8 of and Annex I to the Protocol shall be implemented by applying the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to proposals for Federal agency activi- ties in Antarctica, as specified in this section. (B) The obligations contained in section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) shall apply to all proposals for Federal agency activities occur- ring in Antarctica and affecting the quality of the human environment in Antarctica or de- pendent or associated ecosystems, only as speci- fied in this section. For purposes of the applica- tion of such section 102(2)(C) under this sub- section, the term ‘‘significantly affecting the quality of the human environment’’ shall have the same meaning as the term ‘‘more than a minor or transitory impact’’. (2)(A) Unless an agency which proposes to con- duct a Federal activity in Antarctica deter- mines that the activity will have less than a minor or transitory impact, or unless a com- prehensive environmental evaluation is being prepared in accordance with subparagraph (C), the agency shall prepare an initial environ- mental evaluation in accordance with Article 2 of Annex I to the Protocol. (B) If the agency determines, through the preparation of the initial environmental evalua- tion, that the proposed Federal activity is likely to have no more than a minor or transitory im- pact, the activity may proceed if appropriate procedures are put in place to assess and verify the impact of the activity. (C) If the agency determines, through the preparation of the initial environmental evalua- tion or otherwise, that a proposed Federal activ- ity is likely to have more than a minor or tran- sitory impact, the agency shall prepare and cir- culate a comprehensive environmental evalua- tion in accordance with Article 3 of Annex I to the Protocol, and shall make such comprehen- sive environmental evaluation publicly avail- able for comment. (3) Any agency decision under this section on whether a proposed Federal activity, to which paragraph (2)(C) applies, should proceed, and, if so, whether in its original or in a modified form, shall be based on the comprehensive environ- mental evaluation as well as other consider- ations which the agency, in the exercise of its discretion, considers relevant. (4) For the purposes of this section, the term ‘‘Federal activity’’ includes all activities con- ducted under a Federal agency research program in Antarctica, whether or not conducted by a Federal agency. (b) Federal activities carried out jointly with for- eign governments (1) For the purposes of this subsection, the term ‘‘Antarctic joint activity’’ means any Fed- eral activity in Antarctica which is proposed to be conducted, or which is conducted, jointly or in cooperation with one or more foreign govern- ments. Such term shall be defined in regulations promulgated by such agencies as the President may designate. (2) Where the Secretary of State, in coopera- tion with the lead United States agency plan- ning an Antarctic joint activity, determines that— (A) the major part of the joint activity is being contributed by a government or govern- ments other than the United States; (B) one such government is coordinating the implementation of environmental impact as- sessment procedures for that activity; and (C) such government has signed, ratified, or acceded to the Protocol, the requirements of subsection (a) of this sec- tion shall not apply with respect to that activ- ity. (3) In all cases of Antarctic joint activity other than those described in paragraph (2), the requirements of subsection (a) of this section shall apply with respect to that activity, except as provided in paragraph (4). (4) Determinations described in paragraph (2), and agency actions and decisions in connection with assessments of impacts of Antarctic joint activities, shall not be subject to judicial re- view. (c) Nongovernmental activities (1) The Administrator shall, within 2 years after October 2, 1996, promulgate regulations to provide for— (A) the environmental impact assessment of nongovernmental activities, including tour- Page 2181 TITLE 16—CONSERVATION § 2404 1 See References in Text note below. ism, for which the United States is required to give advance notice under paragraph 5 of Arti- cle VII of the Treaty; and (B) coordination of the review of informa- tion regarding environmental impact assess- ment received from other Parties under the Protocol. (2) Such regulations shall be consistent with Annex I to the Protocol. (d) Decision to proceed (1) No decision shall be taken to proceed with an activity for which a comprehensive environ- mental evaluation is prepared under this section unless there has been an opportunity for consid- eration of the draft comprehensive environ- mental evaluation at an Antarctic Treaty Con- sultative Meeting, except that no decision to proceed with a proposed activity shall be de- layed through the operation of this paragraph for more than 15 months from the date of cir- culation of the draft comprehensive environ- mental evaluation pursuant to Article 3(3) of Annex I to the Protocol. (2) The Secretary of State shall circulate the final comprehensive environmental evaluation, in accordance with Article 3(6) of Annex I to the Protocol, at least 60 days before the commence- ment of the activity in Antarctica. (e) Cases of emergency The requirements of this section, and of regu- lations promulgated under this section, shall not apply in cases of emergency relating to the safety of human life or of ships, aircraft, or equipment and facilities of high value, or the protection of the environment, which require an activity to be undertaken without fulfilling those requirements. (f) Exclusive mechanism Notwithstanding any other provision of law, the requirements of this section shall constitute the sole and exclusive statutory obligations of the Federal agencies with regard to assessing the environmental impacts of proposed Federal activities occurring in Antarctica. (g) Decisions on permit applications The provisions of this section requiring envi- ronmental impact assessments (including initial environmental evaluations and comprehensive environmental evaluations) shall not apply to Federal actions with respect to issuing permits under section 2404 of this title. (h) Publication of notices Whenever the Secretary of State makes a de- termination under paragraph (2) of subsection (b) of this section, or receives a draft com- prehensive environmental evaluation in accord- ance with Annex I, Article 3(3) to the Protocol, the Secretary of State shall cause timely notice thereof to be published in the Federal Register. (Pub. L. 95–541, § 4A, as added Pub. L. 104–227, title I, § 104, Oct. 2, 1996, 110 Stat. 3038.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (a)(1)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. § 2404. Permits (a) In general The Director may issue permits which author- ize acts otherwise prohibited by section 2403(b) of this title. (b) Applications for permits (1) Applications for permits under this section shall be made in such manner and form, and shall contain such information, as the Director shall by regulation prescribe. (2) The Director shall publish notice in the Federal Register of each application which is made for a permit under this section. The notice shall invite the submission by interested par- ties, within 30 days after the date of publication of the notice, of written data, comments, or views with respect to the application. Informa- tion received by the Director as a part of any application shall be available to the public as a matter of public record. (c) Action by appropriate Secretaries on certain permit applications (1) If the Director receives an application for a permit under this section requesting authority to undertake any action with respect to— (A) any native mammal which is a marine mammal within the meaning of section 1362(5) 1 of this title; (B) any native mammal, native bird, or na- tive plant which is an endangered species or threatened species under the Endangered Spe- cies Act of 1973 (16 U.S.C. 1531 et seq.); or (C) any native bird which is protected under the Migratory Bird Treaty Act (16 U.S.C. 701 et seq.); the Director shall submit a copy of the applica- tion to the Secretary of Commerce or to the Secretary of the Interior, as appropriate (herein- after in this subsection referred to respectively as the ‘‘appropriate Secretary’’). (2) After receiving a copy of any application from the Director under paragraph (1) the appro- priate Secretary shall promptly determine, and notify the Director, whether or not any action proposed in the application also requires a per- mit or other authorization under any law ad- ministered by the appropriate Secretary. (3) If the appropriate Secretary notifies the Director that any action proposed in the appli- cation requires a permit or other authorization under any law administered by the appropriate Secretary, the Director may not issue a permit under this section with respect to such action unless such other required permit or authoriza- tion is issued by the appropriate Secretary and a copy thereof is submitted to the Director. The issuance of any permit or other authorization by the appropriate Secretary for the carrying out of any action with respect to any native mam- mal, native bird, or native plant shall not be deemed to entitle the applicant concerned to the