the importance of managing the entire Antarctic ecosystem and extended the scope of U.S. regulation to the relevant activities occurring south of the Antarctic convergence. Yet, while the administration proposal does this for mining, it does not do so for other activities in Antarctica, including tourism and fishing. The latter conclusion is particularly troubling since the Protocol should be implemented so as to encompass fishing expeditions.

Mining Ban: Although a cornerstone of the new Protocol is its prohibition on mining, the administration proposal perpetuates a potentially sweeping loophole in that provision by defining "Antarctic mineral resource activity" to exclude "scientific research." In the past, certain nations have sponsored seismic surveys four off-shore oil and gas resources in Antarctica and identified such efforts as scientific research even though they did not release data from these activities. In recognition of this practice, the Antarctic Protection Act called for an international agreement which ensures that the results of all scientific investigations relating to geological processes and structures are made openly available to the scientific community. Yet, while this agreement appears to have been reached informally, it is not reflected in the administration proposal.

Environmental Impact Assessment: In January 1993, the Court of Appeals for the D.C. Circuit ruled that NEPA applies to NSF's decisions about its projects in Antarctica. Although that litigation involved a challenge to NSF's operation of its incinerator in Antarctica, NSF claimed that even that action would affect its ability to cooperate with other nations in Antarctica. Yet, in reaching its decision, the Court unanimously concluded that NEPA would not threaten research activities undertaken by the U.S. with other nations in Antarctica. Indeed, through the 1970's, NSF prepared two environmental impact statements under NEPA for such joint operations. Nevertheless, the administration now seeks to carve out a gaping loophole by exempting permitting decisions from NEPA compliance and by allowing the Secretary of State to exempt a federal agency from compliance where that agency undertakes an action jointly or in cooperation with a foreign government. The Secretary's decision would not be subject to judicial review.

Comprehensive Pollution Control: With passage of the Antarctic Conservation Act ("ACA") in 1978, Congress directed NSF to establish a comprehensive pollution control program in Antarctica. Although the obligation to develop that program was non-discretionary, NSF took almost 15 years to issue regulations implementing this directive and those regulations fall far short of what the ACA required. The administration proposal would end this mandate to establish comprehensive pollution controls in Antarctica by repealing-the ACA and only requiring operators in Antarctica to comply with the minimal standards governing waste disposal contained in the Protocol.

Incineration: On June 14, 1993, NSF announced that incineration at McMurdo Station in Antarctica would no longer be its proposed action for managing food wastes at that base. That announcement followed the release of NSF data demonstrating that its "state of the art" incinerator releases significant concentrations of dioxins almost 10 times the concentrations permissible from much larger municipal waste incinerators in the U.S under EPA regulations. NSF had previously contended that its incinerator was in ft1ll compliance with EPA standards and that it did not produce "detectable" levels of dioxins. While this example makes it clear that incineration should be banned in Antarctica, the administration proposal would authorize incineration to go forward on the basis of a decision by NSF.

Sewage Discharges: Last year, NSF officials testified at a Congressional hearing that "there's no question that the primary treatment [of sewage outfall] that is allowed under the Treaty does not suffice*** [a]nd at least secondary treatment— that is, the removal of all solids-has to be undertaken." Yet, despite that statement, the administration proposal would authorize discharges of untreated sewage directly into Antarctic waters. That provision flies in the face of and is much weaker than Section 403 of the Clean Water Act, which establishes strict criteria and standards governing discharges of such wastes in the marine environment.

Landfills and Leaded Gasoline: As long ago as 1975, the parties to the Antarctic Treaty agreed that the use of leaded fuel in Antarctica should be avoided and they prohibited the burial of wastes at coastal stations there. Since that time, researchers have reported that leaded gasoline in Antarctica may be disrupting studies of pollution on a global scale. Moreover, they have documented the impacts of landfills in Antarctica, including the one that NSF illegally maintained at McMurdo Station for some ten years. Yet, even though alternatives to the use of leaded gasoline and landfills in Antarctica exist and are currently being used by NSF, the administration proposal does not expressly prohibit leaded gasoline and landfilling in Antarc

tica.

Incidental Take: Currently, under the ACA, NSF may only issue permits authorizing the taking of native mammals or birds to provide specimens for scientific study or for certain educational institutions. However, because of the Bush Administration's insistence during the Protocol negotiations, the Protocol authorizes parties to issue permits for "taking" and "harmful interference" of Antarctic wildlife incidental to scientific activities or construction and operation of support facilities. Unfortunately, the administration proposal now seeks to introduce this potentially sweeping loophole into U.S. law even though it would permit killing of Antarctic wildlife that is presently prohibited under the ACA, Marine Mammal Protection Act, and the Migratory Bird Treaty Act. Moreover, to make matters even worse, the administration proposal would not require compliance with NEPA in connection with this permit decision.

Tourism: During the past ten years, the number of tourists visiting Antarctica has increased dramatically. With that burgeoning industry, the Antarctic environment has been damaged by oil spills, and breeding wildlife are increasingly disturbed by large groups of tourists. Last year, the International Association of Antarctic Tour Operators ("LAATO") testified that it supported creation of a permitting scheme to regulate tourism, stating that “[o]nly in this way can responsible tourism * ** be successful in efforts to minimize impacts on the vulnerable environment of Antarctica." Nevertheless, the administration proposal only calls for a two year study to determine whether measures regulating tourism are necessary and it gives EPA up to two years to issue environmental assessment regulations governing tourist expeditions. In addition. the administration proposal offers no guidance as to precisely how the United States will ensure compliance with the impact assessment require

ment.

Review of Foreign Actions: In addition to largely abdicating responsibility for U.S. tourist operations, the administration proposal also fails to incorporate an effective mechanism involving the public in decisions about the adequacy of environmental documents prepared by other nations whose activities affect Antarctica. In fact. the proposal does not even direct an agency to review such proposals and comment on them. Instead, it simply directs EPA to issue regulations coordinating.review of assessments received from other parties. As a result, the new impact assessment process could become a paper exercise since Treaty countries are typically quite resistant to pressing each other on environmental issues. Opening the process to public input and requiring the administration to justify its reluctance to criticize another nation's actions where they are inconsistent with the Protocol or its annexes could facilitate compliance and enforcement.

Principles of Article 3: During negotiation of the Protocol, the Bush Administration successfully persuaded other nations to exempt the legally binding principles contained in Article 3 from the Protocol's compulsory dispute settlement procedures. Now. this administration seeks to weaken further Article 3 by including them as statements of policy and providing relevant agencies with "residual discretionary authority" to implement the principles. This proposal flies in the face of the Protocol's requirements and undercuts an important recommendation of the Committee on Antarctic Policy and Science established under the auspices of the National Academy of Sciences. It stated that the "implementing legislation should recognize and incorporate the environmental principles of the Protocol so that agencies will be directed firmly along their administrative pathways." The administration proposal hardly does this.

Agency Regulatory Responsibilities: Beyond falling short on these substantive issues, the administration proposal is also inadequate in its designation of agency responsibilities for protection of Antarctica. Indeed, with the exception of marine pollution. the proposal largely confers regulatory authority on NSF to implement the Protocol. That decision is quite troubling since NSF (essentially a scientific research institution) does not have as much expertise as EPA or NOAA on environmental matters. Moreover, and just as importantly, NSF is the agency responsible for operation of U.S. bases in Antarctica and will almost certainly be unwilling to draft strict rules and enforce such measures against itself. While the administration may contend that its schemes of consultation and concurrence redress this problem, they clearly do not.

Enforcement: In addition to substantially limiting the role that agencies other than NSF may play in ensuring effective protection of the Antarctic environment, the administration proposal also does not appear to provide such agencies with authority to take enforcement actions against those who violate the Act. Nor do such agencies have unilateral authority to modify or suspend a permit. This is particularly problematic when it comes to NSF, which would undoubtedly refrain from bringing an enforcement action against itself for violating the permit that it issued to itself. The absence of a provision allowing EPA, Coast Guard. and NOAA to bring

enforcement actions against NSF is inconsistent with the Federal Facilities Compli ance Act, which authorizes EPA to enforce certain environmental laws against other federal agencies.

Citizen Suits: Finally, although the Justice Department recently touted citizen suit provisions in environmental laws (stating that "a valuable public service is performed when private citizen groups join in the effort to secure compliance with environmental obligations") and the President made a campaign promise to "support legislation that allows ordinary citizens to sue federal agencies that ignore environmental laws," the administration remains divided over including such a provision in its proposal. To date, at least 16 environmental laws contain provisions allowing citizens to bring lawsuits. Like those statutes, the Antarctic implementing legisla tion should authorize lawsuits allowing citizens to bring actions against those who violate the Act and those who fail to perform non-discretionary duties under it.

CONCLUSION

In sum, Mr. Chairman, EDF is extremely disappointed with the administration's proposal to implement the Protocol on Environmental Protection to the Antarctic Treaty. On the other hand, we believe that S. 1427 offers a better starting point to address many of our concerns. To that end, we would be happy to work with you and other members of the Committee in addressing many of the problems raised by the administration proposal. Once again, thank you for the opportunity to testify today.

Senator KERRY. Thank you very much. We appreciate it. Ms. Sabella.

STATEMENT OF SUSAN SABELLA, GREENPEACE

Ms. SABELLA. Hi. Yes, I am Susan Sabella and I am here this afternoon representing my organization, Greenpeace, as well as the Antarctica Project and Friends of the Earth. We appreciate the opportunity to discuss and present our views on implementing legislation for the Protocol on Environmental Protection to the Antarctic Treaty, and in particular on your bill, the Antarctic Scientific Research, Tourism, and Marine Resources Act.

Greenpeace, the Antarctica Project, and Friends of the Earth joined together in the early 1980's with a common goal of providing Antarctica's near-pristine environment with lasting, strong, and comprehensive protection as a world park. Our chief focus was to defeat the convention on the regulation of Antarctic mineral resource activities and replace that regime with a comprehensive environmental protection agreement and a permanent ban on commercial mining and oil drilling in Antarctica.

As you know, a significant milestone in that campaign was reached on October 4, 1991, when the Antarctic treaty parties adopted the Protocol on Environmental Protection to the Antarctic Treaty. The protocol, which all of our groups support, designates Antarctica a natural reserve devoted to peace and science. It is an effort to update, strengthen, and make legally binding the Antarctic treaty's environmental recommendations, and to extend those recommendations to all visitors to the Antarctic.

In addition to its 50-year mining ban, the protocol establishes a set of overarching environmental principles, creates an advisory committee on environmental protection, and sets forth detailed rules in five annexes on EIA procedures, the protection of native fauna and flora, waste disposal, the prevention of marine pollution, and protected areas. But as you pointed out in your opening remarks, that was 2 years ago. And since then only 5 of the 26 consultative parties needed to ratify the protocol have done so, and none have enacted implementing legislation.

Ratification of the protocol is of paramount importance, and I think it is a goal that is getting lost at times in our own discussions. But until the protocol enters into force, the conduct of human activity in Antarctica will continue to be guided by a patchwork of voluntary and outdated rules. There will be little to compel parties to improve their environmental performance and, in fact, the Antarctic environment will be no more protected than it was before the protocol was adopted. Creating momentum within the Antarctic treaty system toward ratification and entry into force is critical, and ratification by the United States is a key ingredient to creating that momentum.

So, basically I am here today to stress the need for the United States to take a leadership role in making the protocol a reality. Not only does this mean moving forward with legislation expeditiously, but it means enacting a model statute which will demonstrate the importance and value that the United States attaches to the protocol and to protecting the Antarctic environment. And, moreover, which will set the standard for other parties to match. In this context, the United States must approach legislation not from the perspective of doing the minimum necessary to implement the protocol, but instead from the standpoint of building on the agreement to make it more effective in protecting the Antarctic environment from U.S. activities there. In other words, the protocol should be seen as a floor, not a ceiling. Its annex measures, in particular, should be viewed as minimum standards to be augmented and strengthened.

In addition, the legislation should shape the roles and responsibilities of agencies and departments in such a way that takes advantage of the expertise of those agencies and ensures full compliance with the protocol and the enabling statute by providing for meaningful oversight and enforcement of U.S. activities in Antarctica, including the U.S. Antarctic Program. Furthermore, given the remoteness of Antarctica, it is equally important that the regulatory structure established is transparent and facilitates public participation in the protection and governance of this special region.

The United States has a real opportunity to influence the way in which other parties give effect to the protocol, if it chooses to act promptly and lead by example. In 1990, as the United States began negotiations with the other Antarctic treaty parties on what was to become the protocol, Congress passed the Antarctic Protection Act, setting the stage for those talks and making possible the negotiation of the mining ban. We believe the United States must play as significant a role through ratification, and we believe that your bill, with our proposed changes, can achieve that goal.

We have provided you with written comments and I would be happy to answer any questions.

Senator KERRY. Thank you very much, Ms. Sabella. Mr. Splettstoesser.

STATEMENT OF JOHN SPLETTSTOESSER, DIRECTOR, INTERNATIONAL ASSOCIATION OF ANTARCTIC TOUR OPERATORS Mr. SPLETTSTOESSER. Thank you, Mr. Chairman. My name is John Splettstoesser. I live in Rockland, ME. Thank you for the op

portunity to address you today on the subject of tourism as it applies to the recently enacted protocol.

I am a geologist by profession and I spent much of my professional career, in fact, on Antarctic research, having worked there since 1960, beginning as a student, on a variety of research projects when I was associated with a number of major U.S. universities. But about 10 years ago in 1983 I made my first visit to the Antarctic on a tourist vessel, when I was employed part-time as a naturalist or lecturer on geology, glaciology, and history, and since that time on a part-time basis, when my teaching and other schedules have allowed, I have been on a total of nearly 40 cruises to Antarctica during 8 individual seasons. And, in fact, I am scheduled to be on several more in the next few months.

In 1991 the International Association of Antarctica Tour Operators, or IAATO, was formed, and I have been designed spokesperson by the members since that time, although I am not a fulltime member or, rather, employee of any of the companies that conduct tours in the Antarctic. I teach geology at a college in Maine when I am not in the field.

Because many people in this room have been to Antarctica and the rest probably have an interest in it or they would not be here, I will skip the parts of the background statistics and so forth of the continent that is given in my prepared testimony for filing in the record.

So, let's talk a little bit about tourism, which is why I am supposed to be here. It is not really known for certain when tourists first appeared in the Antarctic, but there are a number of documented cases of cruises on South American vessels to the Antarctic peninsula in the late 1950's. In 1969, Lars-Eric Lindblad had the Lindblad Explorer built, the first ice-strengthened vessel constructed specifically for tourism in Antarctica and, in fact, polar areas. That ship still sails to Antarctica and I have been a lecturer on her many times in the last 10 years and, in fact, will be on her again in January.

But like science and exploration, the tourism picture in Antarctica has also changed. From a single 95-passenger ship, the Explorer, and a handful of visitors, there have lately been as many as 12 tourist vessels and a total of some 6,000 to as many as 7,000 tourists in each of the last 2 years. These numbers are comparable to the total number of all scientists and support staff at all stations and field camps in summer. In fact, those numbers might slightly exceed the numbers of national programs in science.

Is this anything to be concerned about, 10,000 to 15,000 people on a continent larger than the United States and Western Europe combined spread over the 4-month summer? We do not know, and I am not sure if anybody does yet. I should add that the tourism industry, nearly all of which is ship-based, has no shore facilities. There are no stations for tourism in the Antarctic.

And, in fact, the total time the tourists actually spend on the continent, because they are ship-based, in a 4-month summer is less than 1 percent that of all others, all the science programs, in fact, because no tourists sleep on the continent overnight. With one exception, there is an airborne-supported tourism group which flies people to the interior. Last summer they had 127 people involved