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120358204
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CEQ [Council on Environmental Quality] Language-OMB [Office of Management and Budget] Master 5:40pm February 23, 1993
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120358204
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CEQ [Council on Environmental Quality] Language-OMB [Office of Management and Budget] Master 5:40pm February 23, 1993
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Records of the Council on Environmental Quality (Clinton Administration)
Kathleen McGinty's Files
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FOIA Number: 2012-0769-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Council on Environmental Quality
Series/Staff Member:
Kathleen (Katie) McGinty
Subseries:
OA/ID Number:
2572
FolderID:
Folder Title:
CEQ [Council on Environmental Quality] Language - OMB [Office of Management and Budget]
Master 5:40 PM February 23, 1993
Stack:
Row:
Section:
Shelf:
Position:
S
61
5
4
3
THE WHITE HOUSE
WASHINGTON
Kathleen McGinty
Office on Environmental
Policy
Ka
Room 360
(jI
a
Issue Files Box /
R:
(June 1993 - June 1994)
WASHINGTON
Rathleen McGinty
Office On Environmental
Policy
Room 360
Legislative Referrals. -Box2
Issue Files
(June 1993-June 1994)
ENCLOSURES FILED OVERSIZE ATTACHMENTS
2572
2573
12/22/92
18:28
PE+VPE TRANS OFC
003
) Par you can get the Nevada gain to help.
7.
The mock hearing needs to be scheduled at least three days before the hearing date,
tentatively 1/7/92. [Michael Berman/Jim Hamilton]
Me.
8
A briefing needs to be prepared and scheduled for Administrator-designee Browner on
Congressional action on the Nevada nuclear waste site, statements made during the
campaign about the nuclear waste issue, and any developments from the policy people
during the Transition. Administrator-designee Browner needs to fully briefed on the
issue. [Katie McGinty/Kate Kimball]
Kate
9.
The Environmental Forum piece on the Butte, MT, site needs to be acquired (as well
kinha
as the BNA piece on Administrator-designee Browner). [Katie McGinty/Kate
Kimball]
(Cate
10.
Kiwbar
A briefing paper needs to be prepared on specific EPA-related problems in the home
state of each Member of the Committee. [Katie McGinty/Kate Kimball]
11.
A decision needs to be made about how to use business support (not for testimony,
unless the need arises). [Loretta Ucelli/Michael Berman/Bob Hattoy]
are
12.
A full briefing needs to be prepared (and Administrator-designee Brown needs to be
briefed) on the WTI incinerator issue. [Katie McGinty/Kate Kimball]
13.
A decision needs to be made on the issue of who should introduce Administrator-
designee Browner (Senator Graham, Senator Mack?, Governor Chiles?). [Michael
Berman/Kay Casstevens/Susan Brophy]
14.
Decisions need to be made about Senators not on the Environment and Public Works
Committee to whom Administrator-designee Browner needs to pay attention.
[Michael Berman/Kay Casstevens/Susan Brophy]
15.
Similar decisions need to be made about actions with the House side. [Michael
Berman/Kay Casstevens/Susan Brophy]
If there are any additions or corrections, please contact Nestor at 973-1781. Thank you.
#####
Pm 358
-iom NITSOS
MmT-
F:VHAS\MMFI\NEPA001
[Discussion Draft]
H.L.C. COMMITTEE
5-24:29
OMB MASTER MARKUP
REFLECTING AGENCY COMMENTS AS
[DISCUSSION DRAFT] OF 5:40P.M.
FEB 03, 1993,
103D CONGRESS
1ST SESSION
H.R.
IN THE HOUSE OF REPRESENTATIVES
Mr.
introduced the following bill: which was referred to the Committee
on
-
A BILL
To amend the National Environmental Policy Act of 1969
to transfer functions of the Council on Environmental
Quality to the Secretary [of the Environment], and for
other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE
4
This Act may be cited as the " Act of 1993"
-
F:VHAS\MMFIANEPA001
[Discussion Draft]
HLC.
2
1 SEC. 2 TRANSFER OF FUNCTIONS OF COUNCIL ON ENVI-
2
RONMENTAL QUALITY: TERMINATION OF
1
3
COUNCIL AND OFFICE OF ENVIRONMENTAL
4
QUALITY.
5
(a) TRANSFER OF FUNCTIONS.-There are hereby
6 transferred to the Secretary [of the Environment] (here-
7 inafter in this Act referred to as the "Secretary") all func-
EPA
and
II
8 tions of the Council on Environmental Quality under titles
9 I of the National Environmental Policy Act of 1969 (42
10 U.S.C. 4321 et seq.) and any other law, as in effect on
11 the day before the date of the enactment of this Act.
12
(b) TERMINATION OF COUNCIL AND OFFICE.-The
13 Council on Environmental Quality created by section 202
14 of the National Environmental Policy Act of 1969 (12
15 C.S.C. 4312) and the Office of Environmental Quality es.
16 tablished by section 203 of the Environmental Quality Im-
17 provement Act of 1970 (±2 U.S.C. 4372) are hereby ter-
18 minated
19
(c) TRANSFER OF PROPERTY AND RECORDS.-The
20 President shall ensure that all property owned or con-
21 trolled by the Council on Environmental Quality, the Of-
22 fice of Environmental Quality, or the Director or Deputy
23 Director of that Office (including all books, papers, mate-
24 rials, supplies, and equipment) and all documents and
25 records of those agencies and officials are transferred to
26 the Secretary.
February 17 1993 12:52 D m)
F.AHAS\MMFI\NEPA001
[Discussion Draft]
H.L.C.
3
1
(d) SAVINGS PROVISIONS-
2
(1) EXISTING RIGHTS, DUTIES, AND OBLIGA.
3
TIONS NOT AFFECTED.-Nothing in this Act affects
4
the validity of any right, duty, or obligation of the
5
United States, any agency of the United States. or
6
any other person, which-
7
(A) arises under or pursuant to any provi-
8
sion of law referred to or amended or repealed
9
by this Act; and
10
(B) existed on the day before the date of
11
the enactment of this Act
12
(2) CONTINUATION OF SUITS.-
13
(1) IN GENERAL-No action or other pro-
14
ceeding commenced by or against the Council
15
on Environmental Quality or the Office of Envi-
16
ronmental Quality (as in existence on the day
17
before the date of the enactment of this Act)
18
shall abate by reason of the enactment of this
19
Act.
20
(B) SUBSTITUTION OF PARTIES.-In any
21
action or proceeding against the Council on En-
22
vironmental Quality or the Office of Environ-
23
mental Quality (as in existence on the day be-
24
fore the date of the enactment of this Act) the
Februan, " 12.92
F:\HAS\MM1FI\NEPA001
[Discussion Draft)
H.L.C.
t
1
Secretary shall be substituted as a party to the
2
action or proceeding.
3
(e) CONTINUATION OF ORDERS, RESOLUTIONS, DE.
4 TERMINATIONS, AND REGULATIONS.-All orders, resolu-
5 tions, determinations, and regulations which-
6
(1) have been issued, made, prescribed, or al-
7
lowed to become effective by the Council on Environ-
8
mental Quality, the Office of Environmental Quality,
9
the Director or Executive Director of that Office, or
10
a court of competent jurisdiction, in the performance
11
of any function of any such agency or officer (other
12
than functions under provisions of law which are re-
13
pealed by this Act); and
14
(2) are in effect on the date this Act takes ef.
15
fect (or become effective after such date pursuant to
16
the terms of the order, resolution determination or
17
regulation, as in effect on such date),
18 shall continue in effect according to the terms of such or-
19 aders, resolutions. determinations, and regulations, and
20 shall be enforceable by or against the Secretary until
21 modified, terminated, set-aside, or superseded in accord-
22 ance with applicable law by the Secretary, by any court
23 of competent jurisdiction, or by operation of law.
24
(f) REFERENCES IN FEDERAL Law.-dny reference
25 in any Federal law to the Council on Environmental Qual-
F:AHAS\MMFI\NEPA001
[Discussion Draft]
H.L.C.
5
1 ity, the Office of Environmental Quality, or any officer
2 of the Office of Environmental Quality is deemed to-be
3 a reference to the Secretary or the [Department of the
4 Environment], as appropriate.
5
(g) CONFORMING AMENDMENTS.-
6
(1) NATIONAL ENVIRONMENTAL POLICY ACT OF
7
1969.-The National Environmental Policy Act of
8
1969 is amended-
9
(1) in section 2 (42 U.S.C. 4321) by-
(Prover
10
(i) inserting "and" after "man;"; and
11
(ii) striking "; and to establish" and
12
all that follows through the end of the sen-
13
tence and inserting a period;
14
(B) by inserting after section 2 the fol-
15
lowing.
16
"SECRETARY DEFINED
17
"SEC. 3. is used in this Act the term 'Secretary'
18 means the Secretary [of the Environment]."
19
(C) in section 102(B) (42 U.S.C. 4331(B))
20
by striking "Council on Environmental Quality"
21
and inserting "Secretary";
22
(D) in section 102(C) (42 U.S.C. 4331(C))
23
in the matter following subparagraph (v) by
24
striking "Council on Environmental Quality"
25
and inserting "Secretary,"; and
F:\HAS\MMFI\NEPA.001
[Discussion Draft)
H.C.
6
1
(E) in section 102(I) (42 U.S.C. 4331(I))
2
by striking "Council on Environmental Quality"
3
and all that follows through the end of the sen-
4
tence and inserting "Secretary.".
5
(2) ENVIRONMENTAL QUALITY DIPROVEMENT
6
ACT OF 1970.-The Environmental Quality Improve-
7
ment Act of 1970 (42 U.S.C. 4372 et seq.) is re-
8
pealed.
-
[Note that you might want some of the provi-
sions of the Environmental Quality Improvement
Act of 1970 to remain in effect. See, e.g., sections
EPA
202(a) and (b) and 204 (42 U.S.C. 4371(a) and (b),
yes
4373). Also, what is to become of amounts (if any)
remaining in the Office of Environmental Quality
Management Fund established under section 206
EPA
(42 U.S.C. 4375)i]
[Are there any references to the Council or Office in
yes,there
any other laws that we need to conformi]
(See
9 SEC. 3. FUNCTIONS OF SECRETARY UNDER TITLE II OF NA-
list)
10
TIONAL ENVIRONMENTAL POLICY ACT OF
11
1969.
12
Title II of the National Environmental Policy Act of
13 1969 (42 U.S.C. 4341 et seq.) is amended to read as fol-
14 lows:
F:AHAS\MMFI\NEPA001
[Discussion Draft)
HLC.
7
1 "TITLE II-IMPLEMENTATION OF
2
NATIONAL ENVIRONMENTAL
3
POLICY
CEQ -reconcile
4 "SEC. 201. ENVIRONMENTAL QUALITY REPORT.
with be 108 rept
5
"The Secretary shall transmit to the Congress on
an Environmental
6 July 1 of each year an Environmental Quality Report
statistics. Sec en I
7 which shall set forth
8
(I) the status and condition of the major nat-
EPA these reports
9
ural, manmade, or altered environmental classes of
au different
10
the Nation, including the air, the_aquatic, including
EPA
Pres.
transmits
11
marine, estuarine, and fresh water. and the terres-
currently this regards ISSUE)
12
trial environment, including the forest, dryland, wet-
(NOT 1 BIG 13 14
land, range. urban suburban. and rural environ-
ment;
15
"(2) current and foreseeable trends in the qual-
16
ity, management, and utilization of such environ-
17
ments and the effects of those trends on the social,
18
economic, and other requirements of the Nation;
19 :
"(3) the adequacy of available natural resources
20
for fulfilling human and economic requirements of
21
the Nation in the light of expected population pres-
22
sures;
23
"(4) a review of the programs and activities (in-
24
cluding regulatory activities) of the Federal Govern-
25
ment, the State and local governments, and non-
F:\HAS\MMF1ANEFA001
[Discussion Draft)
H.L.C.
8
1
governmental entities or individuals. with particular
2
reference to their effect on the environment and on
3
the conservation, development. and utilization of
4
natural resources; and
5
"(5) a program for remedying the deficiencies
6
of eristing programs and activities, together with
7
recommendations for legislation
[This is from current section 201 of NEPA]
8 "SEC. 202. ADDITIONAL STUDY, ASSISTANCE, AND ADVI-
9
SORY FUNCTIONS OF SECRETARY.
10
"The Secretary shall-
11
"(1) gather timely and authoritative informa-
12
tion concerning the conditions and trends and the
13
quality of the environment both current and prospec-
14
tive, analyze and interpret such information for the
15
purpose of determining whether such conditions and
16
trends are interfering, or are likely To interfere, with
17
the achievement of the policy set forth in title I and
18
compile and submit to the President studies relating
19
to such conditions and trends;
Commer effects
[This is from current section 204(2) of NEPA]
hispoleshould
20
"(2) review and appraise the various programs
G. within the
21
and activities of the Federal Government in light of
EXOP. Selth Se. 22
the policy set forth in title I for the purpose of de-
23
termining the extent to which such programs and
F:\HAS\MMF1\NEPA001
[Discussion Draft]
H.L.C.
9
1
activities are contributing to the achievement of such
2
policy, and make recommendations to the President
3
with respect thereto;
[This is from current section 201(3) of NEPA]
CEQ - should This
4
"(3) develop and recommend to the President
go to OEP?
5
national policies to foster and promote the improve-
6
Se: Sith
ment of environmental quality to meet the con-
7
servation, social, economic, health, and other re-
8
quirements and goals of the Nation;
[This is from current section 204(4) of NEPA]
9
"(4) conduct investigations, studies, surveys, re-
10
search, and analyses relating to ecological systems
11
and environmental quality,
[This is from current section 204(5) of NEPA]
12
"(5) document and define changes in the natu-
13
ral environment, including plant and animal SyS-
14
tems, and accumulate necessary data and other in-
15
formation for a continuing analysis of these changes
16
or trends and interpretation of their underlying
17
causes;
[This is from current section 20+(6) of NEPA]
18
"(6) report at least once each year to the Presi-
19
dent on the state and the condition of the environ-
20
ment;
[This is from current section 204(7) of NEPA]
F:\HAS\MMFI\NEPA001
[Discussion Draft]
H.L.C.
10
1
"(7) make and furnish such studies, reports
2
thereon, and recommendations with respect to mat-
3
ters of policy and legislation as the President may
4
request;
Energy
9
[This is from current section 204(8) of NEPA]
Internor
5
"(8) provide for the integration of sustainable
questions
this
6
development principles in the development and im-
-
7
plementation of Federal policies;
clarified
[This is new policy.]
8
"(9) assist the Federal agencies and depart-
POT
9
ments in appraising the effectiveness of existing and
objects
ctr.
10
proposed facilities, programs, policies, and activities
11
of the Federal Government. and those specific major
12
projects designated by the President which do not
13
require individual project authorization by the Con-
14
gress, which affect environmental quality,
15
"(10) assist the President in-
16
"(d) coordinating implementation of title I
17
by all Federal agencies and in resolving con-
18
flicts between agencies with respect to that im-
19
plementation; and
20
"(B) coordinating among the Federal de-
21
partments and agencies those programs and ac.
22
tivities which affect, protect, and improve envi-
23
ronmental quality:
F:\EAS\MMF1\NEPA001
[Discussion Draft)
H.L.C.
11
1
"(11) assist the Federal departments and agen-
2
cies in the development and interrelationship of envi-
3
ronmental quality criteria and standards established
4
through the Federal Government; and
Commerce objects:
5
"(12) collect, collate, analyze, and interpret
cucimvents effort
6
to define BES role
data and information on environmental quality, eco-
So en.
7
logical research, and evaluation
[Paragraphs (9), (10), (11), and (12) are
drawn from current paragraphs (2), (5), (6), and
(7), respectively, of section 203(d) of the Environ-
mental Quality Improvement Act of 1970.]
8 "SEC. 203. POLICY REVIEW FUNCTIONS OF SECRETARY.
MAJOR
9
"(a) REVIEW AND COMMENT.-
ISSUE
!
Commerce
10
"(1) IN GENERAL-The Secretary shall review
11
express
and comment in writing on the environmental im-
concern N
12
pact of any matter relating to duties and responsibil-
Sr 203(a)a(b)13 13
ities of the Secretary. contained in any-
14
"(d) legislation proposed by any Federal
15
department or agency;
16
"(B) newly authorized Federal projects for
17
construction and any major Federal agency ac-
18
tion (other than a project for construction) to
19
which section 102(2)(C) applies; and
F:\HAS\MMFIANEPA001
[Discussion Draft]
H.L.C.
ISSUE
12
1
"(C) proposed regulations published by any
2
department or agency of the Federal Govern-
3
ment.
4
"(2) AVAILABILITY OF COMMENTS.-The Sec-
5
retary shall make public the written comments of
6
the Secretary under paragraph (1) at the conclusion
7
of any such review.
8
"(b) DETERMINATIONS OF SECRETARY.-If the Sec-
9 retary determines that any such proposed legislation,
10 project, action, or proposed regulation is unsatisfactory
my
11 from the standpoint of public health or welfare or environ-
12 mental quality the Secretary shall publish that determina-
13 tion and submit it to the President.
[Subsections (a) and (b) are drawn from section 309
OMB & SEVEPAL
of the Clean Air Act.]
MAJOR AGENCIES
14
"(c) LOITATION ON AGENCY ACTIONS.-If the Sec-
OBJECT
15 retary makes a determination described in subsection (b)
Commerces
16 regarding any proposed legislation, project, action, or pro-
Intern
17 posed regulation, the agency proposing or conducting the
fastice
18 legislation, project, action, or regulation may not proceed
19 with the matter, unless before the end of the 45-day period
agency
20 beginning on the date the Secretary publishes the
21 determination-
-
22
"(1) the head of the agency submits to the
23
President a written appeal of the determination;
F.\HAS\MMFI\NEPA001
[Discussion Draft)
H.L.C.
13
1
"(2) the President issues a written order
2
which—
r
3
"(d) overrides the determination of the
4
Secretary; and
5
"(B) explains the basis for that override;
6
and
7
"(3) the President submits to the Committee on
8
Environment and Public Works of the Senate and
9
the Committee on Merchant Marine and Fisheries of
10
the House of Representatives a copy of-
...
exampter some an
11
"(d) the appeal of the head of the agency,
NEPA
12
and
13
"(B) the order of the President.
EPA-WAS
scope
14 "SEC. 204. REGULATORY FUNCTIONS OF SECRETARY.
?
15
"The Secretary shall promulgate regulations govern-
16 ing the implementation of this Act by all Federal agencies
Commerce
17 (including independent regulatory commissions), which in-
Is this
18 clude provisions for public review and comment on the de-
role approp.
19 tailed statements required by section 102(2)(C) and, as
detmay
20 appropriate, on other documents prepared pursuant to
also have
concern
21 this Act.
[This is new policy.]
LOMB staff suggest deletion
F:\HAS\MMFI\NEPA001
[Discussion Draft)
HLC.
14
CEQ - modifyso 1 "SEC. 205. OFFICE OF NATIONAL ENVIRONMENTAL POLICY.
that functions an 2
"(a) ESTABLISHMENT-There is established in the
Thank an
delegated to an
3 [Department of the Environment] the Office of National
LPA
Asst for seen. 4 Environmental Policy.
5
"(b) FUNCTIONS.-The Secretary shall delegate to
6 the head of the Office of National Environmental Policy
EPA doesn't
7 the responsibility for administering the functions of the
want this
8 Secretary under this Act.
codified joan
9 "SEC. 207. AUTHORIZATION OF APPROPRIATIONS
Do
10
"There are anthorized to be appropriated to the Sec-
:. Delete
11 retary to carry out this Act $ for each of the fiscal
12 years
,
which shall remain available until expended.".
13 SEC. 4. MONITORING AND PREDICTING ENVIRONMENTAL
Commerce
EPA-Shard
14
CHANGES.
15
Title I of the National Environmental Policy Act of
"unsure" of
delete in
intent ofthis intent
16 1969 (42 U.S.C. 4321 et seq.) is amended by inserting
Add thes
17 after section 105 the following.
provision see sealth. in.
responsibility
-
18
"MONTTORING AND PREDICTING ENVIRONMENTAL
to list of
19
CHANGES
Dept fareting Dept furctions
20
"SEC. 106. The Under Secretary of Commerce for
disted in
21 Oceans and Atmosphere shall assist and advise the Presi-
See, 200 2
22 dent on policies and programs of the Federal Government
23 affecting environmental quality, by reviewing the adequacy
this dropt
24 of existing systems for monitoring and predicting environ-
25 mental changes in order to achieve effective coverage and
[olla 304
26 efficient use of research facilities and other resources.".
0f 2036) 8
February 17.
+7 Enon Quallyty west
Act of 1970,
F:AHAS\MMF1\NEPA.001
[Discussion Draft]
H.L.C.
13
[This is drawn from section 203(d)(3) of the Envi-
ronmental Quality Improvement Act of 1970 (12 U.S.C.
of
4372(d)(3)).]
Ddwin Browner officts
EPA -- INTERNATIONAL ACTIVITIES
to this longuage;
Sec. 102. FINDINGS
Browner will speak
The Congress finds that --
with McGinty
(1) recent concern with Federal environmental policy has
highlighted the necessity of assigning to protection of the
domestic and international environment a priority which is at
least equal to that assigned to other functions of the Federal
government;
(2) protection of the environment increasingly involves
cooperation with foreign states, including the most highly
industrialized states all of whose top environmental officials
have ministerial status;
Sec. 103. ESTABLISHMENT OF THE DEPARTMENT OF THE ENVIRONMENT
(f) International Responsibilities of the Secretary -- (1) The
Secretary, in addition to exercising his international
responsibilities under existing provisions of law, is authorized
and encouraged to --
(A) cooperate with the Secretary of State in carrying out
the latter's primary responsibility for the negotiation of
international agreements, representation of the United States in
international organizations, and coordination of international
activities, on matters within the purview of the Secretary; and
(B) ensure the domestic implementation of matters primarily
within the purview of the Secretary that are provided for in
international agreements; and
(C) with the concurrence of the Secretary of State,
Incooperation with {NSCA
participate in international agreements and other arrangements
with foreign governments and international organizations or other
bodies of foreign states on matters within the purview of the
Secretary; and
(D)
(1) conduct research on and apply existing research
capabilities to the nature and impacts of international
environmental problems and develop responses to such problems;
and
In cooperation with SNSC
(ii) With the concurrence of the Secretary of State and
in cooperation with such Federal Agencies as may be appropriate,
improve the quality of the environment through:
-- the use of contracts, assistance agreements, interagency
agreements, international agreements, other arrangements for
supporting or conducting activities such as education, training,
cooperate with the Decretary of State on matters
NSC
requiring international impolementation;
monitoring, research, development, investigations, experiments,
demonstrations, surveys, studies, and emergency response;
-- the provision of technical, financial, legal and other
assistance; and
-- cooperation with other foreign governments and
international organizations;
(iii) on request from or with the concurrence of a
foreign government or international organization, and with the
consent of the employee concerned and with the concurrence of the
Secretary of State, to arrange for the assignment or detail of an
employee of the Department to a foreign government or
international organization (with or without reimbursement to the
United States government) or notwithstanding any other provision
of law to arrange for the assignment or detail, of an employee of
a foreign government or international organization to the
Department (with or without compensation by the Department); and
(1v) upon compliance with all statutory requirements
and Executive Branch directives concerning staffing at U.S. posts
abroad, and with the consent of the employee concerned, assign an
employee of the Department to and U.S. post abroad.
(2) The Secretary of State shall consult with the Secretary, on
matters primarily within the purview of the Secretary, and such
other persons as he determines appropriate on the activities
described under paragraph (1) (A).
DMB
February 23, 1993
NRD Comments on draft bill on CEQ termination:
NRD recommends deletion of section 203 of the proposed bill, due
to concern about the delegation to the Secretary of the
Environment of virtual veto authority over actions proposed by
other Federal agencies. This proposed language does not
constitute a simple transfer of existing CEQ authority, but
rather creates a completely new authority to which heads of most
other Federal agencies will most certainly object.
NRD recommends that, in place of the proposed section 203,
language be included in the draft bill that amends section 309 of
the Clean Air Act, to substitute "the President" for "the Council
on Environmental Quality." This will have the effect of allowing
the Secretary to refer matters directly to the President, without
also granting the objectionable veto authority. Under current
CEQ NEPA regulations (promulgated under general authority granted
by NEPA, EQIA and Executive Orders 11514 and 11991), CEQ has the
option of referring to the President matters involving
irreconcilable differences between agencies.
EXECUTIVE OFFICE OF THE PRESIDENT
23-Feb-1993 11:58am
TO:
Elyse H. Fitter
TO:
Richard A. Mertens
TO:
Ronald K. Peterson
FROM:
Raymond P. Kogut
Office of Mgmt and Budget, GMD
CC:
Robert B. Rideout
CC:
Debra L. Williams
SUBJECT:
LRM #I-64, Amdts to S 171
As proposed in section 2 (page 2), (a) transfer of function takes
place from CEQ/OEQ to the Secretary of the Environment, with (b)
terminating CEQ/OEQ.
5 USC 3503 provides that when a function is transferred from one
agency to another, the employees in the function (identified by
the losing agency) follow function and must be transferred to a
position in the gaining agency before the gaining agency may
appoint anyone from another source to that position. No mention
of personnel is made in the proposed amendments -- there is no
need to if the above is expected and understood.
I have raised the above only as an alert. If some other
disposition of personnel is expected or planned, consideration
should be given to including needed special provisions in the
bill.
SENT BY:OFFICE MGT & BUDGET ; 2-23-93 ; 5:35PM :
2023956835-
5681;# 1
OFFICE OF MANAGEMENT AND BUDGET
FAX COVER SHEET
NUMBER OF PAGES:
DATE: 2/23/93
Excluding this Cover Sheet)
TO: HOLLY FITTER
AGENCY & ROOM NO:
OFFICE NO:
TELEFAX NO:
FROM: NEIL SHAPIRO
AGENCY:
OFFICE NO:
TELEFAX NO:
SPECIAL INSTRUCTIONS:
HERE ARE THE GM COMMENTS.
A FEW POINTS IMENTIONED ON THE
PHONE WERE PROPPED,
SENT BY:OFFICE MGT & BUDGET
; 2-23-93 ; 5:35PM ;
2023958835-
5691:# 2
0mB/
G.M. Comments on Discussion Draft Amendments to S. 171
This draft goes far beyond simply shifting the CEQ
responsibilities for NEPA over to the new Department of the
Environment, e.g., Section 203 ("Policy Review Functions of
Secretary").
GM oppcses the following NEPA amendments in Section 3:
Section 203 (0). This is an unprecedented and unwarranted
encroachment on the authority of the President and threatens the
management of the entire executive branch. In effect, it
elevates the Department of the Environment above all the rest of
the executive branch by giving the Secretary vete power over just
about anything. This provision obviously will be in conflict
with a great number of other statutes (like the Administrative
Procedure Act) and will interfere with the orderly function of
the rest of the executive branch. Finally, it deprives the
President of the ability to reverse a determination by the
Secretary after the 45-day period or if the President does not
wish to put his position in writing. The President's manner of
resolving policy disputes between the Secretary and other
agencies should not be limited by statute.
Section 205. Requiring the Secretary to create a new office is
needless layering and the confusing delegation of the "functions
of the Secretary" appears to be an unnecessary encroachment on
the Secretary's managerial discretion.
In addition, Section 2 (c) does not reflect the fact that CEQ
is a part of the EOP, and the President announced that its policy
functions would be assumed by the White House. Shouldn't the
White House retain some of the CEQ documents and records?
02/23/93
16:50
202 647 5095
DOS LEGIS AFFAIR
2
003/004
United States Department of State
Washington, D.C. 20520
FEB 23 1993
Dear Mr. Panetta:
Thank you for the opportunity to comment on
additional proposed amendments to S. 171. The Department of
State has the following comments on these proposals.
With respect to proposed Section 103 (f), this provision is
acceptable, noting that the various references to the primary
responsibility of the Secretary of State and the need for State
Department concurrence are indispensable aspects of its
acceptability.
We understand that much of the first part of the
proposed amendment is intended to accomplish a shifting of
current CEQ responsibilities to the new Department of the
Environment. However, 8 wholessle transfer of such
responsibilities raises numerous questions which the State
Department would need to have answered before further comments
are possible:
--
.It is the State Department's understanding that the sum
total of the new environmental department's international
responsibilities in S. 171 would be contained in Section
103(f). It is on that basis that the Department can clear
the proposed language in Section 103 (f). Is there any
intention/expectation that the new proposed amendments to
S. 171 other than Section 103 (f) apply to any
international activities? (For example, section
202 (10) (B) of Title II would be unacceptable if there were
any intention to have this section apply to international
activities.)
--
Regarding section 201 of Title II, would the Environmental
Quality Report be prepared through an interagency process?
--
In numerous provisions of section 202 of Title II, the
Department of Environment is to submit "to the President"
studies, reports, advice, recommendations, etc. How would
these functions interact with the role 06 the new White
House Office of Environmental Policy? Further, would such
studies, reports, advice, etc. be prepared through an
interagency process?
The Honorable
Leon Panetta, Director,
Office of Management and Budget.
02/23/93 16:51
202 647 5095
DOS LEGIS AFFAIR
1
004/004
--
Concerning section 202 (10) (A) of Title II, it would be
acceptable to the State Department for the Department of
the Environment to coordinate domestic implementation of
Title I (which includes NEPA).
In addition, unless it were crystal clear that Section
203 did not apply to any conceivable functions of the State
Department, we would find that Section unacceptable. In the
foreign affairs arena, this Section, particularly "limitation
on agency actions," would constitute an unacceptable purported
Congressional restraint on the President's foreign affairs
powers.
Sincerely,
G. Burth
Robert A. Bradtke,
Acting Assistent Secretary
for Legislative Affairs
02-23-93 03:58PM
TO 9/395-5691
P002/002
Memorandum
U.S. Department of
Transportation
Office of the Secretary
of Transportation
ACTION: Policy's Comments on Draft Bill/
S.171
Date
Subject
FEB 23 1993
Joseph F. Canny
Cam
Reply to
From
Deputy Assistant Secretary for Policy
Altn 01
and International Affairs
To
Thomas Herlihy
Assistant General Counsel for Legislation
The draft Bill would amend the National Environmental Policy Act
to abolish the Council on Environmental Quality and transfer its
functions to the Department of the Environment.
Section 202(9) would have Department of the Environment assist
the President in coordination of title I (procedural requirements
of NEPA), including resolution of conflicts. Strongly we object
to this provision because the NEPA "ombudsman" should be a more
of a neutral entity. EPA currently reviews EISs and CEQ provides
guidance. EPA could be in the position of recommending a
referral and arbitrating the same referral under this proposal.
Moreover, Section 203 would give policy authority to the
Secretary of the Environment to determine that an action is
environmentally unsatisfactory. Section 203(c) provides that if
the Secretary makes such a determination, the agency proposing
the action may not proceed with the matter unless the agency
appeals, the President overrides the Secretary and the President
submits to the Congress a copy of the appeal and order. We
strongly object to this proposal. This changes NEPA from a
statute which charges each agency of the government to consider
impacts of its actions on the environment to one which gives
another agency the ability to stop a project. This would, in
effect, give the Secretary of the Environment veto authority over
a wide range of Department of Transportation actions. We
strongly oppose this fundamental change to policy. The current
NEPA process works well and the referral to CEQ has provided an
avenue for resolving disputes which agencies could not resolve
among themselves.
As an alternative approach, essential CEQ functions could be
preserved and transferred to the new White House Environmental
Policy office, thereby avoiding the concerns noted above.
02/23/93 03:58:26:
EOP OASIS FAX->
; Msg :063353 2 Pages Page 1
EXECUTIVE OFFICE OF THE PRESIDENT
Washington, D.C.
FAX TRANSMITTAL COVER SHEET
DATE:
23-Feb-93
TO:
FITTER
SUBJECT:
DISCUSSION DRAFT -- S 171
FROM:
BEVERLY B. THIERWECHTER (202) 395-3593
OFFICE OF MGMT AND BUDGET, BRCD
If there are any problems receiving this transmission,
please call the sender, or (202) 395-7370.
02/23/93 03:58:45;
EOP OASIS FAX->
;
Msg 063353 2 Pages
Page
2
On page 6, the draft mentions the need to include language on the
disposition of the management fund. The same is true for the S&E
account.
What happens to the funds in the S&E account if the law becomes
enacted in FY 1993? What happens to the appropriation for FY
1993? Since funds are annual, unobligated balances expire at the
end of FY 1993. What happens to the obligated balances after that
point?
There are several approaches
the language could authorize the
new Department of the Environment to make payments out of the S&E
account to liquidate prior obligations after CEQ/OEP terminate, or
it could authorize that the balances be transferred to the new
Department.
In addition, the draft does not seem to address what happens to
the staff in CEQ/OEP. Shouldn't Hilda Schreiber take a look at
this draft to determine what is necessary in this area?
02/23/93
15:27
202 586 3394
GC-13
+++ Ron Peterson
002/002
Presed
February 23, 1993
r
TO:
Holly Fitter/Ron Peterson
OMB
FROM:
Ted Pulliam
DOE
Phone: 202/586-6718
FAX: 202/586-5870
SUBJECT: DOE Comments on Draft Bill to Transfer Functions of the
Council on Environmental Quality to the Department of
the Environment
Among other things, the draft CEQ bill proposes a major expansion
of the NEPA process. It would allow the Department of the
Environment to veto, subject to Presidential override, major
agency actions ($ 203). NOW NEPA is purely procedural and cannot
compel a particular outcome.
DOE strongly opposes this expansion:
O
It would delay, or possibly kill, many proposals that are of
general public benefit.
-
It would set up a self-defeating conflict of interest
in the executive branch. EPA's mandate and historical
practice has been to protect the environment. It would
be very difficult for it, as the Department of the
Environment, to be an impartial arbiter of the benefit
of projects with diverse public purposes.
-
A possible result of having the new Department as the
arbiter would be that agencies would appeal many
decisions to the President, with attendant delays, and
the White House would be required to increase its staff
or establish yet a new office to handle these appeals
with no commensurate increase in the benefits to the
environment beyond the present NEPA review process.
0
It is micromanagement by Congress of the President's
operation of the executive branch and unnecessary. If the
President chooses, he now could establish his own procedures
for resolving conflicts between two agencies regarding
environmental or other policies.
o
If this provision were attached to a Department of the
Environment bill, it may make the bill more controversial
and possibly delay or kill it.
202 586 3394
+++ Ron Peterson
1
02/23/93
17:34
GC-13
001/001
202 586 3394
February 23, 1993
TO:
Holly Fitter
OMB
FROM:
Ted Pulliam
IP
DOE
Phone: 202/586-6718
FAX: 202/586-5870
SUBJECT: Additional Comment on CEQ Bill
Section 205(b) would delegate all NEPA responsibilites to a new
office director in the Department of the Environment. It will be
difficult for an office director to carry out all the USDE NEPA
responsibilities on an equal standing with assistant secretaries
or higher within USDE and in other agencies. If the USDE is to
have these responsibilities, we recommend that the functions be
delegated to an assistant secretary.
SENT BY:Xerox Telecopier 7020 : 2-23-93 ; 3:33PM :
2023773151-
93955681:# 1
TELEFAX TRANSMITTAL
TO:
Ran Peterson
(
X7 302 )
(Fax#
X 5691 )
482
FROM:
Kelly Brown
( 202-377-2724 )
482
(Fax# 202-377-0512 )
DATE:
2/23/93
NUMBER OF PAGES TO FOLLOW:
(2)
SUBJECT:
Commerce Commests an Discussion
Draft of S. 171 ( Re: CEQ
Functions)
Ron - -
-
REMARKS:
FYI- Jorathan Sallet
(Doc Secretary's office) may well
be forwarding these comments
to Katie 4%inty
Kell
SENT BY:Xerox Telecopier 7020 : 2-23-93 ; 3:33PM
;
2023773451-
93955881:# 2
A
a
/
UNITED STATES DEPARTMENT OF COMMERCE
! am /
Office of the General Counsel
Washington, D.C. 20230
TELEFAX TRANSMITTAL
February 23, 1993
TO:
Ron Peterson, OMB (395-6194; FAX # 395-5691)
FROM:
Kelly Brown, DOC (482-2724; FAX # 482-0512)R
Ketzmen
SUBJECT: Department of Commerce (Commerce) comments on Discussion Draft of
Amendments for S. 171, the Department of the Environment Act of 1993, to
Transfer of the Functions the Council of Environmental Equality (CEQ) to the
Secretary of the Environment
Number of Pages to Follow:
(1)
Upon a quick review, this office has analyzed the discussion draft to transfer the functions of
the Council on Environmental Quality to the Secretary of the Environment and have
identified the following problems with the text. The following comments focus on the
discussion draft's conforming amendments to various sections of the National Environmental
Policy Act of 1969 (NEPA), as amended.
The draft would require the new Department of the Environment to review the
programs of the Federal Government and make recommendations to the
President. This provision could be problematic; if the Administration would
like to conduct such a review, it should within the Executive Office of the
President. One cabinet agency should not be reviewing program decisions of
another. [Amending Section 202(2) of NEPAJ
The draft would transfer to the new Department data collection and analysis
functions of CBQ. This would circumvent our efforts to ensure that other
provisions of S. 171 (specifically, provisions creating a Bureau of
Environmental Statistics) do not allow the new Department to duplicate
information collection, analysis and archiving functions of other agencies.
[Amending Section 202(12) of NEPA]
The draft unnecessarily and inappropriately would give the new Department
authority over regulations, legislation and actions of other agencies to the
extent that they affect public health, welfare or the environment. Any adverse
determination by the new Department would be published and submitted to the
President. [Amending Section 203(a) and (b) of NEPA] [Note: While
OMB has indicated that this language is taken from section 309 of the Clean
Air Act, we question whether it is necessary to include the language again in
this legislation.]
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In addition, the bill would allow the new Department to halt any agency
legislation, regulation or action for 45 days, unless the agency submits a
written appeal to the President, the President issues a written order overriding
the determination of the new department, and the President submits to
Congressional committees a copy of the appeal and the order of the President.
[Amending Section 203(c) of NEPA]
Section 203 imparts too much authority to a single Federal agency over other
Federal agencies. The authority granted by section 203 is also unnecessary, as
OMB and the White House currently coordinate interagency views on
legislation, regulation and actions initiated by the various agencies.
Furthermore, by providing for public review of internal, interagency
disagreements, Section 203 of the draft would hinder the ability of the
Executive Branch to effectively coordinate policy among the various agencies.
The draft requires the Under Secretary of Commerce for Oceans and
Atmosphere to review the adequacy of existing systems for monitoring and
predicting environmental changes in order to achieve effective coverage and
efficient use of research facilities and other resources. While we do not have
any objections to this provision at this time, we are unsure of the intent or the
effect of this provision.
-
2
SENT BY:CEQ Jackson PI.
; 2-23-93 ; 3:34PM ;
2023953744-
5691;# 2
EXECUTIVE OFFICE OF THE PRESIDENT
COUNCIL ON ENVIRONMENTAL QUALITY
WASHINGTON, D.C. 20503
TO:
Ronald K. Peterson (for Assistant Director for
Legislative Reference)
FROM:
Dinah Bear
Denah Bear
-
=
General Counsel
DATE:
February 23, 1993
RE:
Discussion Draft of Amendments to 8.171
We have several technical comments on the discussion draft; to
wit:
1. The requirement for the Environmental Quality Report
(current and proposed Section 201 of the National
Environmental Policy Act) should be reconciled with the
requirement for an Environmental StatisticsAnnual Report
contained in Section 108 of S. 171. The two are not
inconsistent, but perhaps the latter could be made part of
the former, as to avoid unnecessary costs and duplication.
2. Some thought should be given to the desirability of
transferring Section 204 (4) of NEPA to the Department of
Environment ("develop and recommend to the President
national policies to foster and promote the improvement of
environmental quality to meet the conservation, social,
economic, health, and other requirements and goals of the
Nation"). This function appears to be precisely what the
Office of Environmental Policy (OEP) is intended to
accomplish, and thus could be seen as duplicative.
3. Section 205 creates a new Office of National
Environmental Policy in the Department, and directs the
Secretary to delegate to the head of that office the
responsibilities for administering the functions contained
in this bill. We strongly advise that this be modified so
that the functions will be delegated to an Assistant
Secretary slot. Each of the other statutes administered by
EPA is overseen by an Assistant Secretary. It will do great
harm to oversight of NEPA responsibilities if they are
vested at an office level, both within the Department and in
carrying out oversight responsibilities for the entire
executive branch. We recommend the creation of a new
Assistant Secretary position - perhaps Assistant Secretary
for Federal Activities. We note that the administration's
technical amendments to S.171, circulated earlier this week,
contain a recommended addition from 12 to 13 for the number
of authorized assistant secretaries.
Recycled Paper
703 614 8391
FEB 23 '93 15:28
FROM OSD-LRS
TO PETERSON
PAGE. 001
of
DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
WASHINGTON, D.C. 20301-1600
February 23, 1993
MEMORANDUM FOR RON PETERSON
SUBJECT: S. 171 and Discussion Draft; LRM # I-64
We would defer to the Department of Justice as to the
constitutionality of section 203 of the proposed bill as it
relates to the manner in which the President recommends measures
to the consideration of the Congress as he deems necessary and
expedient (section 3, Article II of the Constitution). Executive
Order 12,778 would appear a more appropriate review mechanism
should such a policy be determined appropriate for the submission
of legislation. The proposed procedure sets up a burdensome
process that would multiply rather than simplify the submission
of legislation by an administration.
Section 204 should state that the President rather than the
Secretary is authorized to promulgate regulations regarding the
governance of the proposed department. The Administrative
Procedure Act (5 U.S.C. 551, et seq.) sets forth procedures for
publication and review of proposed public regulations.
Samuel T. Brick, Jr.
Director, Legislative Reference
Service
** TOTAL PAGE. 001 **
EXECUTIVE OFFICE OF THE PRESIDE
23-Feb-1993 03:25pm
TO:
Elyse H. Fitter
FROM:
Jerry L. Coffey
Office of Mgmt and Budget, OIRA
CC:
Steven D. Aitken
SUBJECT:
comments on S 171 Amendments
LRM #I-64
Views RE: Discussion Draft of Amendments for S 171
We concur, with the following changes.
Insert in section 103 (f), after the phrase "existing provisions
clate
of law,' the following words:
$1
"and consistent with the orderly and efficient conduct of
the work of the Executive Branch,"
Analysis:
In our comments of February 3 on earlier language in this bill,
we asserted that:
1) that language did not appear to be inconsistent with E.O.
10033, and
2) that it did not appear that there is any intent to alter
the responsibilities assigned to OMB by E.O. #10033 for the
oversight and coordination of international data
collections.
Consultations with the Department of State indicate that
consistency with E.O. #10033 was not explicitly considered in
developing the current revisions to the language. Since the new
paragraph 103 (f) (B) authorizes the Secretary to "ensure the
domestic implementation of matters ... that are provided for in
international agreements", it might be construed as intending to
override the direction of the President in E.O. #10033. Such an
interpretation might draw further support from the listing in
subparagraph (D) (ii) of "monitoring, research,
...
surveys,
[and]
studies" as tasks that might be accomplished through use of
international agreements.
Since the Bureau of Environmental Statistics must still rely on
the data collections and expertise of other statistical agencies
to perform its mission, the coordination established_ in E.O.
#10033 will still be needed. The language proposed to be added
above makes clear that there is no intent to alter the authority
of the President to assure an orderly and efficient discharge of
U.S. responsibilities vis-a-vis international organizations.
TEL:
Feb 23 93
17:34 No 007 P.02
NUCLEAN
UNITED STATES
STATES
NUCLEAR REGULATORY COMMISSION
WASHINGTON, D. C. 20555
UNITED
#***s
February 23, 1993
CHAIRMAN
Mr. Bernard H. Martin
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Martin:
The Nuclear Regulatory Commission has reviewed the discussion
draft of amendments to S. 171, the Department of the Environment
Act of 1993. We wish to share with you some significant concerns
about the possible impact of the draft on the work of the Nuclear
Regulatory Commission.
-
In particular, the Commission is concerned about proposed section
203 (page 11 of discussion draft), which provides that the
Secretary of the Environment "shall review and comment in writing
on the environmental impact of any matter relating to duties and
responsibilities of the Secretary" contained in any legislation
proposed by any Federal agency, regulations published by any
Federal agency, and any Environmental Impact Statement relating
to Federal projects for construction or a major Federal agency
action. Section 203 goes on to provide that if the Secretary
determines that any such proposed legislation, regulation, or
action is unsatisfactory from the standpoint of public health or
welfare or environmental quality, the agency may not proceed
unless the President overrides the Secretary's determination.
The phrase "relating to duties and responsibilities of the
Secretary" in section 203 is unclear but, if interpreted broadly,
could be read to give the Secretary of the Environment a virtual
veto over actions by the NRC. This would seriously compromise
the statutory independence of this agency, and would be
inconsistent with our statutory mandate independently to protect
public health and safety in the use of source, byproduct and
special nuclear materials. The result would be to increase
uncertainty about any regulatory action we consider necessary to
protecting the public health and safety and possibly to undermine
our ability to protect the public health and safety. At the very
least, it will increase considerably the time required for any
action the NRC proposes, particularly if the Secretary is also
burdened with reviewing actions of other Federal agencies. The
Commission strongly opposes any measure that could have these
consequences and, for these reasons, specifically opposes section
203. CEQ has no such authority currently, so this would be a new
authority rather than a simple transfer of a CEQ authority to the
TEL:
Feb 23 93 17:34 No. 007 P.03
-
- 2 -
Department of the Environment. We would prefer to see Section
203 struck, but at the very least, would insist that it not be
made applicable to independent regulatory agencies.
of
Similarly, Section 204 may be read to extend CEQ's current
mandate over the independent regulatory agencies in a way
inconsistent with current law and practice.
The Commission appreciates the opportunity to comment on these
amendments and while the NRC fully supports and complies with
NEPA, we cannot concur in amendments that could diminish the
independent status of this agency.
Sincerely,
hm belin
Ivan Selin
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EXECUTIVE OFFICE OF THE PRESIDENT
COUNCIL OF ECONOMIC ADVISERS
WASHINGTON, D.C. 20500
THE CHAIRMAN
February 24, 1993
MEMORANDUM FOR ALICE RIVLIN
DEPUTY DIRECTOR OF OMB
FROM:
LAURA D. TYSON
CHAIR, COUNCIL OF ECONOMIC ADVISERS
RE:
Proposed Administration Amendment to S-171
The Administration is proposing to submit the attached draft legislation as an
amendment to S.171, the bill raising EPA to the new Department of Environment
(USDE).
Most of the attached draft legislation is aimed at abolishing CEQ and
transferring its functions to USDE. The President announced the proposal to abolish
CEQ last week; the idea of vesting CEQ's powers in EPA/USDE is new.
What is of most concern, however, is Section 203 (pp. 11-13):
Section 203 would provide that the Secretary of USDE shall review all
actions, projects. legislation. and regulations proposed by any Federal agency
for their environmental impacts. This review function would expand a similar
duty under the Clean Air Act.
If the Secretary finds that any action, project, legislation, or regulation
is "unsatisfactory from the standpoint of public health or welfare or
environmental quality," the Secretary's finding will then prohibit the agency
from proceeding with the matter, unless, within 45 days:
--
the Secretary's decision is appealed to the President
:
the President overrides that decision in writing with an explanation
--
the President's written order is submitted to the Congress.
These power and appeals processes are entirely new proposals.
Concern #1. Policy Balance. The potential environmental effects of a proposed
action by any Federal agency are obviously important, and they need to be fully
considered in the design and implementation of Federal policy. Nonetheless, the
power of review proposed in Section 203 appears to be unprecedented, unparalleled
and unwarranted. Section 203, as written, allows for an effective prohibition by the
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2
EPA of agency actions that it deems unsatisfactory and requires a written override
of EPA's decision by the President to loosen the prohibition. No other agency
currently has the right to prohibit other agencies from proceeding with an action that
it deems to be unsatisfactory relative to its mission.
Concern #2. Presidential authority. Moreover, as an institutional matter wholly
apart from the environment, Section 203, as written, essentially makes the President
answer to a cabinet Secretary (and to Congressional committees), instead of the
other way around. The President will be obliged to undertake repeated, potentially
embarrassing decisions in a fishbowl. Usually Presidential resolution of interagency
disputes is the highest and last resort for resolving them. Section 203, as written,
would require the President to intervene to settle disputes between the EPA and
other agencies on a regular basis. Presidential discretion could be seriously
compromised as a result.
Attachment
cc:
Bernard H. Martin
Assistant Director for Legislative Reference
FEB 25 '93 14:21
PAGE. 002
OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE
EXECUTIVE OFFICE OF THE PRESIDENT
WASHINGTON
20506
A
February 25, 1993
MEMORANDUM
TO:
Ronald K. Peterson
Assistant Director for Legislative Reference
FROM:
Frederick L. Montgomery In
Executive Director for Policy Coordination
SUBJECT: USTR COMMENTS ON AMENDMENTS TO S. 171-(Department of
the Environment Bill)
The Office of the U.S. Trade Representative submits the
following comments regarding the proposed amendments to S. 171,
which would abolish the Council on Environmental Quality and
transfer its functions to the proposed Department of the
Environment, and which would clarify the international activities
of the Department of the Environment.
of greatest institutional concern to USTR is the EPA
International Activities Amendment and Section 203 (c) of the NEPA
amendments (see below). Other comments are offered from USTR's
perspective as part of the Executive Office of the President.
EPA International Activities Amendments to S. 171.
Section 103(f) (D) (ii) (authorizing the Secretary, "with the
concurrence of the Secretary of State and in cooperation with
such Federal Agencies as may be appropriate", to "improve the
quality of the environment through
the use of
...
international agreements". We recommend amending to read
"international environmental agreements" to clarify that this
does not include the authority to negotiate trade agreements.
Section 2 (c) -- Transfer of Property and Records.
The transfer of "all books, papers, materials. " from
within the Executive Office of the President to an Executive
Agency may remove those materials from the purview of the
President's Executive Privilege. We defer to the White House
Counsel and the Department of Justice on whether such would be
the case, and whether it presents an issue of concern.
Section 201 -- Environmental Quality Report.
In the limited time available for review we have not
conducted a detailed comparison of the various environmental
reporting requirements contained within S. 171 and its proposed
amendments. There may be, however, significant overlap between
FEB 25 '93 14:22
PAGE 003
- 2 -
the former CEQ Annual Report function (Section 201) and the
annual report to the President on the state of the environment
(Section 202) (6) (both of which would be delegated to the Office
of Environmental Policy by Section 205 (b) ) and the proposed
annual statistical report to be required of the Bureau of
Environmental Statistics (S. 171 Section 108 (c) ) Costs might be
reduced by coordinating or combining those functions.
section 201 (5), requiring the Secretary to transmit
legislative recommendations to Congress as part of an annual
Environmental Quality Report, should be modified to make the
submission of legislative recommendations discretionary. As was
noted in the Draft Administration Technical Corrections package,
in reference to Section 117 of S. 171: "Article II, Section 3 of
the Constitution confers on the President plenary authority to
submit whatever legislative proposals he deems 'necessary and
expedient' at any time that he chooses."
Section 202 (8) -- requiring the Secretary to "provide for the
integration of sustainable development principles in the
development and implementation of Federal policies."
we are unsure how a single Federal agency could "provide"
for this unilaterally, and are concerned that the language
implies that the Department of the Environment would be the only
agency seeking to integrate sustainable development principles
into its policies. In light of the need to coordinate with those
agencies responsible for developing and implementing relevant
federal policies, the language should be changed from "provide
for" to "facilitate".
Section 203 -- Policy Review Functions of Secretary.
We share the concerns of other Federal agencies and offices
regarding the extraordinary authority given to the Secretary in
Section 203 (c), in which a single agency is granted the
unilateral authority to determine whether other agencies'
legislation, projects, regulations, and other major agency
actions may go forward, and in which the only way to reverse an
adverse determination is a written appeal to the President.
Moreover, we question the constraints placed on the President by
the short time frame and requirement that the President's
decision be in writing. The additional requirement that the
President must submit the agency's appeal and the President's
written order to certain Senate and House committees seems like
an unusual intrusion into executive privilege and the separation
of powers.
We note that this legislation does not define what is an
"agency" for purposes of the requirements of Sections 203 and
204. Assuming for the purposes of commenting on this legislation
that Executive Office entities would be "agencies" subject to
FEB 25 '93 14:22
PAGE. 004
- 3 -
these provisions, the result would be to give the Secretary (or,
more accurately, an office director below the Secretary, given
the mandated delegation of authority in Section 205 (b)) veto
power over USTR and every other entity within the EOP (including
the NSC, NEC, OMB, the new Office of Environmental Policy, etc.).
These concerns may counsel for giving the Office of
Environmental Policy within the White House, rather than the
Department of the Environment, the decision regarding whether a
project should go forward. If this authority is to reside within
a particular agency, it may be appropriate to clarify the meaning
of "unsatisfactory" or to raise the standard. In addition, an
exclusion for EOP entities may be advisable.
As a technical matter, we also note that the authority given
the Secretary in Section 203 (a) and (b) was already granted to
the EPA Administrator by Section 309 of the Clean Air Act.
Accordingly, a conforming amendment to the Clean Air Act would be
needed.
Section 204 -- Regulatory Functions of Secretary.
This amendment appears to give the Secretary authority to
promulgate regulations binding on other Federal agencies. The
reference to "this Act" is ambiguous in light of the fact that
this language is proposed as an amendment to S. 171 (i.e., does
"this Act" refer to S. 171 or to NEPA?). Moreover, the language
appears overly broad, possibly implying a grant of authority to
the Secretary to promulgate regulations binding. on other federal
agencies for a wide range of implementing activity (e.g.,
regulations regarding data collection by other agencies to
implement the Secretary's report writing functions).
It might be useful to clarify that the Secretary would be
responsible only for generally applicable NEPA regulations, while
reserving federal agencies' existing authority to promulgate
their own, agency-specific, supplemental NEPA regulations.
section 205 (b) -- Functions of the Office of National
Environmental Policy.
We question the mandatory delegation of the Secretary's new
authorities to the head of the Office of National Environmental
Policy, an apparently subordinate officer within the same
Department. This would appear to be a matter best left to the
head of the agency.
COMMENTS.171
February 25, 1993
** TOTAL PAGE. 004 **
K. McGINTY
-iom NITSOS
mm+-
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[Discussion Draft]
H.L.C. CommiTTee
OMB MASTER MARKUP
5-2429
REFLECTING AGENCY COMMENTS AS
[DISCUSSION DRAFT] OF 5:40P.M.
FEB 03, 1993,
103D CONGRESS
1ST SESSION
H.R.
IN THE HOUSE OF REPRESENTATIVES
Mr.
introduced the following bill: which was referred to the Committee
on
-
A BILL
To amend the National Environmental Policy Act of 1969
to transfer functions of the Council on Environmental
Quality to the Secretary [of the Environment], and for
: other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4
This Act may be cited as the " Act of 1993".
-
F:\HAS\MMF1\NEPA001
[Discussion Draft]
HLC.
2
1 SEC. 2. TRANSFER OF FUNCTIONS OF COUNCIL ON ENVI-
2
RONMENTAL QUALITY: TERMINATION OF
3
COUNCIL AND OFFICE OF ENVIRONMENTAL
4
QUALITY.
5
(a) TRANSFER OF FUNCTIONS.-There are hereby
6 transferred to the Secretary [of the Environment] (here-
7 inafter in this Act referred to as the "Secretary") all func-
EPA
and II
8 tions of the Council on Environmental Quality under titles
9 I of the National Environmental Policy Act of 1969 (42
10 U.S.C. 4321 et seq.) and any other law, as in effect on
11 the day before the date of the enactment of this Act.
12
(b) TERMINATION OF COUNCIL AND OFFICE.-The
13 Council on Environmental Quality created by section 202
14 of the National Environmental Policy Act of 1969 (12
15 U.S.C. 4342) and the Office of Environmental Quality es-
16 tablished by section 203 of the Environmental Quality Im-
17 provement Act of 1970 (42 U.S.C. 4372) are hereby ter-
18 minated
19
(c) TRANSFER OF PROPERTY AND RECORDS.-The
20 President shall ensure that all property owned or con-
21 trolled by the Council on Environmental Quality, the Of-
22 fice of Environmental Quality, or the Director or Deputy
23 Director of that Office (including all books, papers, mate-
24 rials, supplies, and equipment) and all documents and
25 records of those agencies and officials are transferred to
26 the Secretary.
February 17. 1993 12:52 m)
F:\HAS\MMF1\NEPA001
Discussion Draft]
H.L.C.
3
1
(d) SAVINGS PROVISIONS-
2
(1) EXISTING RIGHTS, DUTIES, AND OBLIGA-
3
TIONS NOT AFFECTED.-Nothing in this Act affects
4
the validity of any right, duty, or obligation of the
5
United States, any agency of the United States, or
6
any other person, which-
7
(1) arises under or pursuant to any provi-
8
sion of law referred to or amended or repealed
9
by this Act; and
10
(B) existed on the day before the date of
11
the enactment of this Act.
12
(2) CONTINUATION OF SUITS.-
13
(1) IN GENERAL.-No action or other pro-
14
ceeding commenced by or against the Council
15
on Environmental Quality or the Office of Envi-
16
ronmental Quality (as in existence on the day
17
before the date of the enactment of this Act)
18
shall abate by reason of the enactment of this
19
Act.
20
(B) SUBSTITUTION OF PARTIES.-In any
21
action or proceeding against the Council on En-
22
vironmental Quality or the Office of Environ-
23
mental Quality (as in existence on the day be-
24
fore the date of the enactment of this Act) the
February 17
F:\HAS\MMFI\NEPA001
[Discussion Draft]
HLC.
H
1
Secretary shall be substituted as a party to the
2
action or proceeding.
3
(e) CONTINUATION OF ORDERS, RESOLUTIONS, DE-
4 TERMINATIONS, AVD REGULATIONS-All orders, resolu-
5 tions, determinations, and regulations which-
6
(1) have been issued, made, prescribed, or al-
7
lowed to become effective by the Council on Environ-
8
mental Quality, the Office of Environmental Quality,
9
the Director or Executive Director of that Office, or
10
a court of competent jurisdiction, in the performance
11
of any function of any such agency or officer (other
12
than functions under provisions of law which are re-
13
pealed by this Act); and
14
(2) are in effect on the date this Act takes ef-
15
fect (or become effective after such date pursuant to
16
the terms of the order, resolution. determination or
17
regulation, as in effect on such date),
18 shall continue in effect according to the terms of such or-
19 aders, resolutions. determinations, and regulations, and
20 shall be enforceable by or against the Secretary until
21 modified, terminated, set-aside, or superseded in accord-
22 ance with applicable law by the Secretary, by any court
23 of competent jurisdiction, or by operation of law.
24
(f) REFERENCES IN FEDERAL Law-dny reference
25 in any Federal law to the Council on Environmental Qual-
F:AHAS\MMFI\NEPA001
[Discussion Draft]
H.L.C.
5
1 ity, the Office of Environmental Quality, or any officer
2 of the Office of Environmental Quality is deemed to be
3 a reference to the Secretary or the [Department of the
4 Environment], as appropriate.
5
(g) CONFORMING AMENDMENTS.-
6
(1) NATIONAL ENVIRONMENTAL POLICY ACT OF
7
1969.-The National Environmental Policy Act of
EPA
8
1969 is amended-
9
(1) in section 2 (42 U.S.C. 4321) by-
(Prover
applied
10
(i) inserting "and" after "man;"; and
twice.
11
(ii) striking "; and to establish" and
12
all that follows through the end of the sen-
13
tence and inserting a period;
14
(B) by inserting after section 2 the fol-
15
lowing.
-16
"SECRETARY DEFINED
17
"SEC. 3. As used in this Act the term 'Secretary'
18 means the Secretary [of the Environment].";
19
(C) in section 102(B) (42 U.S.C. 4331(B))
20
by striking "Council on Environmental Quality"
21
and inserting "Secretary";
22
(D) in section 102(C) (42 U.S.C. 4331(C))
23
in the matter following subparagraph (T) by
24
striking "Council on Environmental Quality"
25
and inserting "Secretary,"; and
F:\HAS\MMFI\NEPA.001
[Discussion Draft]
EL.C.
6
1
(E) in section 102(I) (42 U.S.C. 4331(I))
2
by striking "Council on Environmental Quality"
3
and all that follows through the end of the sen-
4
tence and inserting "Secretary.".
5
(2) ENVIRONMENTAL QUALITY DIPROVEMENT
6
ACT OF 1970.-The Environmental Quality Improve-
7
ment Act of 1970 (42 U.S.C. 4372 et seq.) is re-
8
pealed.
-
[Note that you might want some of the provi-
sions of the Environmental Quality Improvement
Act of 1970 to remain in effect. See, e.g., sections
EPA
202(a) and (b) and 204 (42 U.S.C. 4371(a) and (b),
yes
4373). Also, what is to become of amounts (if any)
thes'
remaining in the Office of Environmental Quality
Management Fund established under section 206
EPA would fuils
EPA
(42 U.S.C. 4375)?]
the
[Are there any references to the Council or Office in
yes,
any other laws that we need to conformi]
(See
9 SEC. 3. FUNCTIONS OF SECRETARY UNDER TITLE II OF NA-
list)
10
TIONAL ENVIRONMENTAL POLICY ACT OF
11
1969.
12
Title II of the National Environmental Policy Act of
13 1969 (42 U.S.C. 4341 et seq.) is amended to read as fol-
14 lows:
F:\HAS\MMFI\NEPA001
[Discussion Draft)
HLC.
7
1 "TITLE N-IMPLEMENTATION OF
2
NATIONAL ENVIRONMENTAL
3
POLICY
CEQ - -reconcile
4 "SEC. 201. ENVIRONMENTAL QUALITY REPORT.
with Are 108 rept
5
"The Secretary shall transmit to the Congress on
on Environmental
6 July 1 of each year an Environmental Quality Report
statistics. See en 1
7 which shall set forth
8
(1) the status and condition of the major nat-
EPA
these reports
9
ural, manmade, or altered environmental classes of
au different
10
the Nation, including the air, the aquatic, including
EPA currently Pres. transists
11
marine, estuarine, and fresh water. and the terres-
12
trial environment, including the forest, dryland, wet-
this reform issue)
(NOT A BIG 13
land, range, urban suburban. and rural environ-
14
ment;
15
"(2) current and foreseeable trends in the qual-
16
ity, management, and utilization of such environ-
17
ments and the effects of those trends on the social,
18
economic, and other requirements of the Nation;
19 i
"(3) the adequacy of available natural resources
20
for fulfilling human and economic requirements of
21
the Nation in the light of expected population pres-
22
sures;
23
"(4) a review of the programs and activities (in-
24
cluding regulatory activities) of the Federal Govern-
25
ment, the State and local governments, and non-
F:\HLAS\MMF1\NEFA001
[Discussion Draft)
H.L.C.
8
1
governmental entities or individuals. with particular
2
reference to their effect on the environment and on
3
the conservation, development. and utilization of
4
natural resources; and
5
"(5) a program for remedying the deficiencies
6
of existing programs and activities, together with
7
recommendations for legislation
[This is from current section 201 of NEPA]
8 "SEC. 202. ADDITIONAL STUDY, ASSISTANCE, AND ADVI-
9
SORY FUNCTIONS OF SECRETARY.
10
"The Secretary shall-
11
"(1) gather timely and authoritative informa-
12
tion concerning the conditions and trends and the
13
quality of the environment both current and prospec-
14
tive, analyze and interpret such information for the
15
purpose of determining whether such conditions and
16
trends are interfering, or are likely to interfere, with
17
the achievement of the policy set forth in title I. and
18
compile and submit to the President studies relating
19
to such conditions and trends;
Commer objects
[This is from current section 204(2) of NEPAJ
This poleshould
20
"(2) review and appraise the various programs
6. withen the
21
and activities of the Federal Government in light of
EXOP. Selth 22
the policy set forth in title I for the purpose of de-
23
termining the extent to which such programs and
F:\HAS\MMF1\NEPA001
[Discussion Draft]
HLC.
9
1
activities are contributing to the achievement of such
2
policy, and make recommendations to the President
3
with respect thereto;
[This is from current section 201(3) of NEPA]
CEQ - should This
4
"(3) develop and recommend to the President
go to OEP?
5
national policies to foster and promote the improve-
6
So th.
ment of environmental quality to meet the con-
7
servation, social, economic, health, and other re-
8
quirements and goals of the Nation;
[This is from current section 204(4) of NEPA]
9
"(4) conduct investigations, studies, surveys, re-
10
search, and analyses relating to ecological systems
11
and environmental quality,
[This is from current section 204(5) of NEPA]
12
"(5) document and define changes in the natu-
13
ral environment, including plant and animal sys-
14
tems, and accumulate necessary data and other in-
15
formation for a continuing analysis of these changes
16
or trends and interpretation of their underlying
17
causes;
[This is from current section 204(6) of NEPA]
18
"(6) report at least once each year to the Presi-
19
dent on the state and the condition of the environ-
20
ment;
[This is from current section 204(7) of NEPA]
F:\HAS\MMF1\NEPA001
[Discussion Draft]
H.L.C.
10
1
"(7) make and furnish such studies, reports
2
thereon, and recommendations with respect to mat-
3
ters of policy and legislation as the President may
4
request;
Energy
&
[This is from current section 20+(8) of NEPA]
Internor
5
"(8) provide for the integration of sustainable
what questions this
6
development principles in the development and im-
must
-
7
plementation of Federal policies;
&
clarified
[This is new policy.]
8
"(9) assist the Federal agencies and depart-
POT
9
ments in appraising the effectiveness of existing and
objects 200 etc.
10
proposed facilities, programs, policies, and activities
11
of the Federal Government. and those specific major
12
projects designated by the President which do not
13
require individual project authorization by the Con-
14
gress, which affect environmental quality,
15
"(10) assist the President in-
16
"(d) coordinating implementation of title I
17
by all Federal agencies and in resolving con-
18
flicts between agencies with respect to that im-
19
plementation; and
20
"(B) coordinating among the Federal de-
21
partments and agencies those programs and ac-
22
tivities which affect, protect, and improve envi-
23
ronmental quality;
F:\EAS\MMF1\NEPA.001
[Discussion Draft]
H.L.C.
11
1
"(11) assist the Federal departments and agen-
2
cies in the development and interrelationship of envi-
3
ronmental quality criteria and standards established
4
through the Federal Government; and
Commerce objects:
5
"(12) collect, collate, analyze, and interpret
cucimvents effort
6
to define BES role
data and information on environmental quality, eco-
Seo en.
7
logical research, and evaluation
[Paragraphs (9), (10), (11), and (12) are
drawn from current paragraphs (2), (5), (6), and
(7), respectively, of section 203(d) of the Environ-
mental Quality Improvement Act of 1970.]
8 "SEC. 208. POLICY REVIEW FUNCTIONS OF SECRETARY.
MAJOR
9
"(a) REVIEW 1VD COMMENT.-
ISSUE
!
Commerce
10
"(1) IN GENERAL.-The Secretary shall review
11
expresses
and comment in writing on the environmental im-
concern M
12
pact of any matter relating to duties and responsibil-
Sr 203(a)4(b)13 13
ities of the Secretary, contained in any-
14
"(d) legislation proposed by any Federal
15
department or agency;
16
"(B) newly authorized Federal projects for
17
construction and any major Federal agency ac-
18
tion (other than a project for construction) to
19
which section 102(2)(C) applies; and
F:\HAS\MMFI\NEPA001
[Discussion Draft]
H.L.C.
ISSUE
12
1
"(C) proposed regulations published by any
2
department or agency of the Federal Govern-
3
ment.
4
"(2) AVAILABILITY OF COMMENTS.-The Sec-
5
retary shall make public the written comments of
6
the Secretary under paragraph (1) at the conclusion
7
of any such review.
8
"(b) DETERMINATIONS OF SECRETARY.-If the Sec-
9 retary determines that any such proposed legislation,
10 project, action, or proposed regulation is unsatisfactory
11 from the standpoint of public health or welfare or environ-
12 mental quality the Secretary shall publish that determina-
13 tion and submit it to the President.
[Subsections (a) and (b) are drawn from section 309
OMB & SEVERAL
of the Clean Air Act.]
MAJOR AGENCIES
14
"(c) LOIITATION ON AGENCY ACTIONS.-If the Sec-
OBJECT
15 retary makes a determination described in subsection (b)
Commerce
16 regarding any proposed legislation, project, action, or pro-
Interior
17 posed regulation, the agency proposing or conducting the
fustice
18 legislation, project, action, or regulation may not proceed
19 with the matter, unless before the end of the 45-day period
agency
20 beginning on the date the Secretary publishes the
21 determination-
-
22
"(1) the head of the agency submits to the
23
President a written appeal of the determination;
F:\HAS\MMFI\NEPA001
[Discussion Draft)
H.L.C.
13
1
"(2) the President issues a written order
2
which—
3
"(1) overrides the determination of the
4
Secretary; and
5
"(B) explains the basis for that override;
6
and
7
"(3) the President submits to the Committee on
8
Environment and Public Works of the Senate and
9
the Committee on Merchant Marine and Fisheries of
10
the House of Representatives a copy of-
some
an
examples
11
"(d) the appeal of the head of the agency,
NEPA
12
and
13
"(B) the order of the President.
EPA-whiting
scope
14 "SEC. 204. REGULATORY FUNCTIONS OF SECRETARY.
?
15
"The Secretary shall promulgate regulations govern-
16 ing the implementation of this Act by all Federal agencies
Commerce
17 (including independent regulatory commissions), which in-
Is this
18 clude provisions for public review and comment on the de-
role approp.
19 tailed statements required by section 102(2)(C) and, as
Introy Int may
20 appropriate, on other documents prepared pursuant to
also have
concern
21 this Act.
[This is new policy.]
Coms stoff suggest debtem
F:\HAS\MMFI\NEPA001
[Discussion Draft)
H.L.C.
11
CEQ modifys 1 "SEC. 205. OFFICE OF NATIONAL ENVIRONMENTAL POLICY.
that functions as an
2
"(a) ESTABLISHDMENT.-There is established in the
They
delegated to an
3 [Department of the Environment] the Office of National
Asst for seen. 4 Environmental Policy.
5
"(b) FUNCTIONS.-The Secretary shall delegate to
terve LPA
6 the head of the Office of National Environmental Policy
EP doesn't
7 the responsibility for administering the functions of the
want this
8 Secretary under this Act.
codified joan
9 "SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
10
"There are anthorized to be appropriated to the Sec-
Delete
11 retary to carry out this Act $ for each of the fiscal
:.
12 years
, which shall remain available until expended.".
13 SEC. 4. MONITORING AND PREDICTING ENVIRONMENTAL
Commerce
EPA-Shoold
14
CHANGES.
delete See ;
15
Title I of the National Environmental Policy Act of
"unsure" of
ofthis
16 1969 (42 U.S.C. 4321 et seq.) is amended by inserting
responsibilities Add thes
17 after section 105 the following.
provision, see sealth. its.
-
18
"MONTTORING AND PREDICTING ENVIRONMENTAL
to list of
19
CHANGES
Dept furctions
20
"SEC. 106. The Under Secretary of Commerce for
disted
21 Oceans and Atmosphere shall assist and advise the Presi-
See, 200 8
22 dent on policies and programs of the Federal Government
this droft
23 affecting environmental quality, by reviewing the adequacy
24 of existing systems for monitoring and predicting environ-
25 mental changes in order to achieve effective coverage and
[olla's 304
26 efficient use of research facilities and other resources.".
0f 2036) 8
February 17.
th Enon
Act of 1970,
F:\HAS\MMF1\NEPA001
[Discussion Draft]
H.L.C.
15
[This is drawn from section 203(d)(3) of the Envi-
ronmental Quality Improvement Act of 1970 (42 U.S.C.
4372(d)(3)).]
Admin Browner officts
EPA -- INTERNATIONAL ACTIVITIES
to this longuage;
Sec. 102. FINDINGS
Browner will spenk
The Congress finds that --
with Ginty
(1) recent concern with Federal environmental policy has
highlighted the necessity of assigning to protection of the
domestic and international environment a priority which is at
least equal to that assigned to other functions of the Federal
government;
(2) protection of the environment increasingly involves
cooperation with foreign states, including the most highly
industrialized states all of whose top environmental officials
have ministerial status;
D. Coffey
Sec. 103. ESTABLISHMENT OF THE DEPARTMENT OF THE ENVIRONMENT
or
(f) International Responsibilities of the Secretary (1) The
Secretary, in addition to exercising his international
Executive
responsibilities under existing provisions of law, is authorized
Order
and encouraged to --
(A) cooperate with the Secretary of State in carrying out
the latter's primary responsibility for the negotiation of
international agreements, representation of the United States in
international organizations, and coordination of international
activities, on matters within the purview of the Secretary; and
(B) ensure the domestic implementation of matters primarily
within the purview of the Secretary that are provided for in
international agreements; and
(C) with the concurrence of the Secretary of State,
Incorperation with {NSCA
participate in international agreements and other arrangements
with foreign governments and international organizations or other
bodies of foreign states on matters within the purview of the
Secretary; and
(D)
(1) conduct research on and apply existing research
capabilities to the nature and impacts of international
and environmental problems and develop responses to such problems;
cooperation with SNSC
(ii)
With the concurrence of
the Secretary of State and
A
in cooperation with such Federal Agencies as may be appropriate,
improve the quality of the environment through:
-- the use of contracts, assistance agreements, interagency
agreements, international agreements, other arrangements for
supporting or conducting activities such as education, training,
cooperate with the Decretary of- State on matters
NSC
requiring international implementation;
monitoring, research, development, investigations, experiments,
demonstrations, surveys, studies, and emergency response;
-- the provision of technical, financial, legal and other
assistance; and
-- cooperation with other foreign governments and
international organizations;
(iii) on request from or with the concurrence of a
foreign government or international organization, and with the
consent of the employee concerned and with the concurrence of the
Secretary of State, to arrange for the assignment or detail of an
employee of the Department to a foreign government or
international organization (with or without reimbursement to the
United States government) or notwithstanding any other provision
of law to arrange for the assignment or detail, of an employee of
a foreign government or international organization to the
Department (with or without compensation by the Department) , and
(iv) upon compliance with all statutory requirements
and Executive Branch directives concerning staffing at U.S. posts
abroad, and with the consent of the employee concerned, assign an
employee of the Department to and U.S. post abroad.
(2) The Secretary of State shall consult with the Secretary, on
matters primarily within the purview of the Secretary, and such
other persons as he determines appropriate on the activities
described under paragraph (1) (A).
February 23, 1993
NRD Comments on draft bill on CEQ termination:
NRD recommends deletion of section 203 of the proposed bill, due
to concern about the delegation to the Secretary of the
Environment of virtual veto authority over actions proposed by
other Federal agencies. This proposed language does not
constitute a simple transfer of existing CEQ authority, but
rather creates a completely new authority to which heads of most
other Federal agencies will most certainly object.
NRD recommends that, in place of the proposed section 203,
language be included in the draft bill that amends section 309 of
the Clean Air Act, to substitute "the President" for "the Council
on Environmental Quality." This will have the effect of allowing
the Secretary to refer matters directly to the President, without
also granting the objectionable veto authority. Under current
CEQ NEPA regulations (promulgated under general authority granted
by NEPA, EQIA and Executive Orders 11514 and 11991), CEQ has the
option of referring to the President matters involving
irreconcilable differences between agencies.
EXECUTIVE OFFICE OF THE PRESIDENT
23-Feb-1993 11:58am
TO:
Elyse H. Fitter
TO:
Richard A. Mertens
TO:
Ronald K. Peterson
FROM:
Raymond P. Kogut
Office of Mgmt and Budget, GMD
CC:
Robert B. Rideout
CC:
Debra L. Williams
SUBJECT:
LRM #I-64, Amdts to S 171
As proposed in section 2 (page 2), (a) transfer of function takes
place from CEQ/OEQ to the Secretary of the Environment, with (b)
terminating CEQ/OEQ.
5 USC 3503 provides that when a function is transferred from one
agency to another, the employees in the function (identified by
the losing agency) follow function and must be transferred to a
position in the gaining agency before the gaining agency may
appoint anyone from another source to that position. No mention
of personnel is made in the proposed amendments -- there is no
need to if the above is expected and understood.
I have raised the above only as an alert. If some other
disposition of personnel is expected or planned, consideration
should be given to including needed special provisions in the
bill.
SENT BY:OFFICE MGT & BUDGET ; 2-23-93 ; 5:35PM ;
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OFFICE OF MANAGEMENT AND BUDGET
FAX COVER SHEET
NUMBER OF PAGES:
1
DATE: 2/23/93
Excluding this Cover Sheet)
TO: HOLLY FITTER
AGENCY & ROOM NO:
OFFICE NO:
TELEFAX NO:
FROM: NEIC SHAPIRO
AGENCY:
OFFICE NO:
TELEFAX NO:
SPECIAL INSTRUCTIONS:
HERE ARE THE GM COMMENTS.
A FEW POINTS IMENTIONED ON THE
PHONE WERE PROPPED,
SENT BY:OFFICE MGT & BUDGET : 2-23-93 ; 5:35PM
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G.M. Comments on Discussion Draft Amendments to S. 171
This draft goes far beyond simply shifting the CEQ
responsibilities for NEPA over to the new Department of the
Environment, e.g., Section 203 ("Policy Review Functions of
Secretary").
GM opposes the following NEPA amendments in Section 3:
Section 203 (c). This is an unprecedented and unwarranted
encroachment on the authority of the President and threatens the
management of the entire executive branch. In effect, it
elevates the Department of the Environment above all the rest of
the executive branch by giving the Secretary vete power over just
about anything. This provision obviously will be in conflict
with a great number of other statutes (like the Administrative
Procedure Act) and will interfere with the orderly function of
the rest of the executive branch. Finally, it deprives the
President of the ability to reverse a determination by the
Secretary after the 45-day period or if the President does not
wish to put his position in writing. The President's manner of
resolving policy disputes between the Secretary and other
agencies should not be limited by statute.
Section 205. Requiring the Secretary to create a new office is
needless layering and the confusing delegation OF the "functions
of the Secretary" appears to be an unnecessary encroachment on
the Secretary's managerial discretion.
In addition, Section 2 (c) does not reflect the fact that CEQ
is a part of the EOP, and the President announced that its policy
functions would be assumed by the White House. Shouldn't the
White House retain some of the CEQ documents and records?
02/23/93 16:50
202 647 5095
DOS LEGIS AFFAIR
003/004
United States Department of State
Washington, D.C. 20520
FEB 23 1393
Dear Mr. Panetta:
Thank you for the opportunity to comment on
additional proposed amendments to S. 171. The Department of
State has the following comments on these proposals.
With respect to proposed Section 103 (f), this provision is
acceptable, noting that the various references to the primary
responsibility of the Secretary of State and the need for State
Department concurrence are indispensable aspects of its
acceptability.
We understand that much of the first part of the
proposed amendment is intended to accomplish a shifting of
current CEQ responsibilities to the new Department of the
Environment. However, a wholessle transfer of such
responsibilities raises numerous questions which the State
Department would need to have answered before further comments
are possible:
--
.It is the State Department's understanding that the sum
total of the new environmental department's international
responsibilities in S. 171 would be contained in Section
103 (f). It is on that basis that the Department can clear
the proposed language in Section 103(f). Is there any
intention/expectation that the new proposed amendments to
S. 171 other than Section 103(f) apply to any
international activities? (For example, section
202 (10) (B) of Title II would be unacceptable if there were
any intention to have this section apply to international
activities.)
-- Regarding section 201 of Title II, would the Environmental
Quality Report be prepared through an interagency process?
-- In numerous provisions of section 202 of Title II, the
Department of Environment is to submit "to the President"
studies, reports, advice, recommendations, etc. How would
these functions interact with the role 06 the new White
House Office of Environmental Policy? Further, would such
studies, reports, advice, etc. be prepared through an
interagency process?
The Honorable
Leon Panetta, Director,
Office of Management and Budget.
02/23/93
16:51
202 647 5095
DOS LEGIS AFFAIR
004/004
-
--
Concerning section 202 (10) (A) of Title II, it would be
acceptable to the State Department for the Department of
the Environment to coordinate domestic implementation of
Title I (which includes NEPA).
In addition, unless it were crystal clear that Section
203 did not apply to any conceivable functions of the State
Department, we would find that Section unacceptable. In the
foreign affairs arena, this Section, particularly "limitation
on agency actions," would constitute an unacceptable purported
Congressional restraint on the President's foreign affairs
powers.
Sincerely,
Mult G. Burth
Robert A. Bradtke,
Acting Assistant Secretary
for Legislative Affairs
02-23-93 03:58PM
TO 9/395-5691
P002/002
Memorandum
U.S. Department of
Transportation
Office of the Secretary
of Transportation
ACTION: Policy's Comments on Draft Bill/
Subject
S.171
Date
FEB 23 1993
Joseph F. Canny for Cam
Reply to
From
Deputy Assistant Secretary for Policy
Altn of
and International Affairs
To
Thomas Herlihy
Assistant General Counsel for Legislation
The draft Bill would amend the National Environmental Policy Act
to abolish the Council on Environmental Quality and transfer its
functions to the Department of the Environment.
Section 202(9) would have Department of the Environment assist
the President in coordination of title I (procedural requirements
of NEPA), including resolution of conflicts. Strongly we object
to this provision because the NEPA "ombudsman" should be a more
of a neutral entity. EPA currently reviews EISs and CEQ provides
guidance. EPA could be in the position of recommending a
referral and arbitrating the same referral under this proposal.
Moreover, Section 203 would give policy authority to the
Secretary of the Environment to determine that an action is
environmentally unsatisfactory. Section 203(c) provides that if
the Secretary makes such a determination, the agency proposing
the action may not proceed with the matter unless the agency
appeals, the President overrides the Secretary and the President
submits to the Congress a copy of the appeal and order. We
strongly object to this proposal. This changes NEPA from a
statute which charges each agency of the government to consider
impacts of its actions on the environment to one which gives
another agency the ability to stop a project. This would, in
effect, give the Secretary of the Environment veto authority over
a wide range of Department of Transportation actions. We
strongly oppose this fundamental change to policy. The current
NEPA process works well and the referral to CEQ has provided an
avenue for resolving disputes which agencies could not resolve
among themselves.
As an alternative approach, essential CEQ functions could be
preserved and transferred to the new White House Environmental
Policy office, thereby avoiding the concerns noted above.
02/23/93 03:58:26;
EOP OASIS FAX->
; Msg :063353 2 Pages Page 1
.
EXECUTIVE OFFICE OF THE PRESIDENT
Washington, D. C.
FAX TRANSMITTAL COVER SHEET
DATE:
23-Feb-93
TO:
FITTER
SUBJECT:
DISCUSSION DRAFT -- S 171
FROM:
BEVERLY B. THIERWECHTER (202) 395-3593
OFFICE OF MGMT AND BUDGET, BRCD
If there are any problems receiving this transmission,
please call the sender, or (202) 395-7370.
02/23/93 03:58:45;
EOP OASIS FAX->
;
Msg :063353 2 Pages
Page
2
On page 6, the draft mentions the need to include language on the
disposition of the management fund. The same is true for the S&E
account.
What happens to the funds in the S&E account
if the law becomes
enacted in FY 1993? What happens to the appropriation for FY
1993? Since funds are annual, unobligated balances expire at the
end of FY 1993. What happens to the obligated balances after that
point?
There are several approaches
the language could authorize the
new Department of the Environment to make payments out of the S&E
account to liquidate prior obligations after CEQ/OEP terminate, or
it could authorize that the balances be transferred to the new
Department.
In addition, the draft does not seem to address what happens to
the staff in CEQ/OEP. Shouldn't Hilda Schreiber take a look at
this draft to determine what is necessary in this area?
02/23/93
15:27
202 586 3394
GC-13
Ron Peterson
002/002
Prised
February 23, 1993
TO:
Holly Fitter/Ron Peterson
OMB
FROM:
Ted Pulliam
DOE
Phone: 202/586-6718
FAX: 202/586-5870
SUBJECT: DOE Comments on Draft Bill to Transfer Functions of the
Council on Environmental Quality to the Department of
the Environment
Among other things, the draft CEQ bill proposes a major expansion
of the NEPA process. It would allow the Department of the
Environment to veto, subject to Presidential override, major
agency actions ($ 203). Now NEPA is purely procedural and cannot
compel a particular outcome.
DOE strongly opposes this expansion:
o
It would delay, or possibly kill, many proposals that are of
general public benefit.
-
It would set up a self-defeating conflict of interest
in the executive branch. EPA's mandate and historical
practice has been to protect the environment. It would
be very difficult for it, as the Department of the
Environment, to be an impartial arbiter of the benefit
of projects with diverse public purposes.
-
A possible result of having the new Department as the
arbiter would be that agencies would appeal many
decisions to the President, with attendant delays, and
the White House would be required to increase its staff
or establish yet a new office to handle these appeals
with no commensurate increase in the benefits to the
environment beyond the present NEPA review process.
0
It is micromanagement by Congress of the President's
operation of the executive branch and unnecessary. If the
President chooses, he now could establish his own procedures
for resolving conflicts between two agencies regarding
environmental or other policies.
o
If this provision were attached to a Department of the
Environment bill, it may make the bill more controversial
and possibly delay or kill it.
202 586 3394
GC-13
Ron Peterson
001/001
02/23/93
17:34
202 586 3394
February 23, 1993
TO:
Holly Fitter
OMB
FROM:
Ted Pulliam
DOE
Phone: 202/586-6718
FAX: 202/586-5870
SUBJECT: Additional Comment on CEQ Bill
Section 205 (b) would delegate all NEPA responsibilites to a new
office director in the Department of the Environment. It will be
difficult for an office director to carry out all the USDE NEPA
responsibilities on an equal standing with assistant secretaries
or higher within USDE and in other agencies. If the USDE is to
have these responsibilities, we recommend that the functions be
delegated to an assistant secretary.
SENT BY:Xerox Telecopier 7020 ; 2-23-93 ; 3:33PM ;
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93955691:# 1
TELEFAX TRANSMITTAL
-
TO:
Ron Peterson
(
X7 302 )
(Fax#
X 5691 )
487
FROM:
Kelly Brown
( 202-377-2724 . )
482
(Fax# 202-377-0512 )
DATE:
2/23/93
NUMBER OF PAGES TO FOLLOW:
(2)
SUBJECT:
Commerce Comments an Discussion
Draft of S. 171 ( Re: CEQ
Functions)
Ron -
1
REMARKS:
FYI- Jorathan Sallet
(Doc Secretary's office) may well
be forwarding these comments
to Katie McGiaty
Keef
SENT BY:Xerox Telecopier 7020 ; 2-23-93 ; 3:33PM
2023773451-
93955691:# 2
a
a
(
UNITED STATES DEPARTMENT OF COMMERCE
10 stares of /
Office of the General Counsel
Washington, D.C. 20230
TELEFAX TRANSMITTAL
February 23, 1993
TO:
Ron Peterson, OMB (395-6194; FAX # 395-5691)
FROM:
Kelly Brown, DOC (482-2724; FAX # 482-0512)
Ketzmen
SUBJECT:
Department of Commerce (Commerce) comments on Discussion Draft of
Amendments for S. 171, the Department of the Environment Act of 1993, to
Transfer of the Functions the Council of Environmental Equality (CEQ) to the
Secretary of the Environment
Number of Pages to Follow:
(1)
Upon a quick review, this office has analyzed the discussion draft to transfer the functions of
the Council on Environmental Quality to the Secretary of the Environment and have
identified the following problems with the text. The following comments focus on the
discussion draft's conforming amendments to various sections of the National Environmental
Policy Act of 1969 (NEPA), as amended.
The draft would require the new Department of the Environment to review the
programs of the Federal Government and make recommendations to the
President. This provision could be problematic; if the Administration would
like to conduct such a review, it should within the Executive Office of the
President. One cabinet agency should not be reviewing program decisions of
another. [Amending Section 202(2) of NEPAJ
The draft would transfer to the new Department data collection and analysis
functions of CEQ. This would circumvent our efforts to ensure that other
provisions of S. 171 (specifically, provisions creating a Bureau of
Environmental Statistics) do not allow the new Department to duplicate
information collection, analysis and archiving functions of other agencies.
[Amending Section 202(12) of NEPA]
The draft unnecessarily and inappropriately would give the new Department
authority over regulations, legislation and actions of other agencies to the
extent that they affect public health, welfare or the environment. Any adverse
determination by the new Department would be published and submitted to the
President. [Amending Section 203(a) and (b) of NEPA] [Note: While
OMB has indicated that this language is taken from section 309 of the Clean
Air Act, we question whether it is necessary to include the language again in
this legislation.]
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In addition, the bill would allow the new Department to halt any agency
legislation, regulation or action for 45 days, unless the agency submits a
written appeal to the President, the President issues a written order overriding
the determination of the new department, and the President submits to
Congressional committees a copy of the appeal and the order of the President.
[Amending Section 203(c) of NEPA]
Section 203 imparts too much authority to a single Federal agency over other
Federal agencies. The authority granted by section 203 is also unnecessary, as
OMB and the White House currently coordinate interagency views on
legislation, regulation and actions initiated by the various agencies.
Furthermore, by providing for public review of internal, interagency
disagreements, Section 203 of the draft would hinder the ability of the
Executive Branch to effectively coordinate policy among the various agencies.
The draft requires the Under Secretary of Commerce for Oceans and
Atmosphere to review the adequacy of existing systems for monitoring and
predicting environmental changes in order to achieve effective coverage and
efficient use of research facilities and other resources. While we do not have
any objections to this provision at this time, we are unsure of the intent or the
effect of this provision.
-
2
SENT BY:CEQ Jackson PI.
; 2-23-93 ; 3:34PM ;
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EXECUTIVE OFFICE OF THE PRESIDENT
COUNCIL ON ENVIRONMENTAL QUALITY
WASHINGTON, D.C. 20503
TO:
Ronald K. Peterson (for Assistant Director for
FROM:
Dinah Bear
Legislative Reference) Denah
General Counsel
Dear
DATE:
February 23, 1993
RE:
Discussion Draft of Amendments to 8.171
We have several technical comments on the discussion draft; to
wit:
1. The requirement for the Environmental Quality Report
(current and proposed Section 201 of the National
Environmental Policy Act) should be reconciled with the
requirement for an Environmental StatisticsAnnual Report
contained in Section 108 of S. 171. The two are not
inconsistent, but perhaps the latter could be made part of
the former, as to avoid unnecessary costs and duplication.
2. Some thought should be given to the desirability of
transferring Section 204 (4) of NEPA to the Department of
Environment ("develop and recommend to the President
national policies to foster and promote the improvement of
environmental quality to meet the conservation, social,
economic, health, and other requirements and goals of the
Nation"). This function appears to be precisely what the
Office of Environmental Policy (OEP) is intended to
accomplish, and thus could be seen as duplicative.
3. Section 205 creates a new Office of National
Environmental Policy in the Department, and directs the
Secretary to delegate to the head of that office the
responsibilities for administering the functions contained
in this bill. We strongly advise that this be modified SO
that the functions will be delegated to an Assistant
Secretary elot. Each of the other statutes administered by
EPA is overseen by an Assistant Secretary. It will do great
harm to oversight of NEPA responsibilities if they are
vested at an office level, both within the Department and in
carrying out oversight responsibilities for the entire
executive branch. We recommend the creation of a new
Assistant Secretary position - perhaps Assistant Secretary
for Federal Activities. We note that the administration's
technical amendments to S.171, circulated earlier this week,
contain a recommended addition from 12 to 13 for the number
of authorized assistant secretaries.
Recycled Paper
703 614 8391
FEB 23 '93 15:28 FROM OSD-LRS
TO PETERSON
PAGE. 001
DEPARTMENT of
DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
WASHINGTON, D.C. 20301-1600
February 23, 1993
MEMORANDUM FOR RON PETERSON
SUBJECT: S. 171 and Discussion Draft; LRM # I-64
We would defer to the Department of Justice as to the
constitutionality of section 203 of the proposed bill as it
relates to the manner in which the President recommends measures
to the consideration of the Congress as he deems necessary and
expedient (section 3, Article II of the Constitution). Executive
Order 12, 778 would appear a more appropriate review mechanism
should such a policy be determined appropriate for the submission
of legislation. The proposed procedure sets up a burdensome
process that would multiply rather than simplify the submission
of legislation by an administration.
Section 204 should state that the President rather than the
Secretary is authorized to promulgate regulations regarding the
governance of the proposed department. The Administrative
Procedure Act (5 U.S.C. 551, et seq.) sets forth procedures for
publication and review of proposed public regulations.
Samuel T. Brick, Jr.
Director, Legislative Reference
Service
** TOTAL PAGE. 001 **
EXECUTIVE OFFICE OF THE PRESIDE
23-Feb-1993 03:25pm
TO:
Elyse H. Fitter
FROM:
Jerry L. Coffey
Office of Mgmt and Budget, OIRA
CC:
Steven D. Aitken
SUBJECT:
comments on S 171 Amendments
LRM #I-64
Views RE: Discussion Draft of Amendments for S 171
We concur, with the following changes.
Insert in section 103 (f), after the phrase "existing provisions
State
of law," the following words:
pages
"and consistent with the orderly and efficient conduct of
the work of the Executive Branch,"
Analysis:
In our comments of February 3 on earlier language in this bill,
we asserted that:
1) that language did not appear to be inconsistent with E.O.
10033, and
2) that it did not appear that there is any intent to alter
the responsibilities assigned to OMB by E.O. #10033 for the
oversight and coordination of international data
collections.
Consultations with the Department of State indicate that
consistency with E.O. #10033 was not explicitly considered in
developing the current revisions to the language. Since the new
paragraph 103 (f) (B) authorizes the Secretary to "ensure the
domestic implementation of matters ... that are provided for in
international agreements", it might be construed as intending to
override the direction of the President in E.O. #10033. Such an
interpretation might draw further support from the listing in
subparagraph (D) (ii) of "monitoring, research,
...
surveys,
[and]
studies" as tasks that might be accomplished through use of
international agreements.
Since the Bureau of Environmental Statistics must still rely on
the data collections and expertise of other statistical agencies
to perform its mission, the coordination established in E.O.
#10033 will still be needed. The language proposed to be added
above makes clear that there is no intent to alter the authority
of the President to assure an orderly and efficient discharge of
U.S. responsibilities vis-a-vis international organizations.
TEL:
Feb 23 93
17:34 No. 007 P.02
NUCLEAR
REGULAT
UNITED STATES
STATES
NUCLEAR REGULATORY COMMISSION
WASHINGTON, D. C. 20555
UNITED
*****
February 23, 1993
CHAIRMAN
Mr. Bernard H. Martin
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Martin:
The Nuclear Regulatory Commission has reviewed the discussion
draft of amendments to S. 171, the Department of the Environment
Act of 1993. We wish to share with you some significant concerns
about the possible impact of the draft on the work of the Nuclear
Regulatory Commission.
In particular, the Commission is concerned about proposed section
203 (page 11 of discussion draft), which provides that the
Secretary of the Environment "shall review and comment in writing
on the environmental impact of any matter relating to duties and
responsibilities of the Secretary" contained in any legislation
proposed by any Federal agency, regulations published by any
Federal agency, and any Environmental Impact Statement relating
to Federal projects for construction or a major Federal agency
action. Section 203 goes on to provide that if the Secretary
determines that any such proposed legislation, regulation, or
action is unsatisfactory from the standpoint of public health or
welfare or environmental quality, the agency may not proceed
unless the President overrides the Secretary's determination.
The phrase "relating to duties and responsibilities of the
Secretary" in section 203 is unclear but, if interpreted broadly,
could be read to give the Secretary of the Environment a virtual
veto over actions by the NRC. This would seriously compromise
the statutory independence of this agency, and would be
inconsistent with our statutory mandate independently to protect
public health and safety in the use of source, byproduct and
special nuclear materials. The result would be to increase
uncertainty about any regulatory action we consider necessary to
protecting the public health and safety and possibly to undermine
our ability to protect the public health and safety. At the very
least, it will increase considerably the time required for any
action the NRC proposes, particularly if the Secretary is also
burdened with reviewing actions of other Federal agencies. The
Commission strongly opposes any measure that could have these
consequences and, for these reasons, specifically opposes section
203. CEQ has no such authority currently, so this would be a new
authority rather than a simple transfer of a CEQ authority to the
TEL:
Feb 23 93 17:34 No. .007 P.03
-
- 2 -
Department of the Environment. We would prefer to see Section be
203 struck, but at the very least, would insist that it not
made applicable to independent regulatory agencies.
Similarly, Section 204 may be read to extend CEQ's current
mandate over the independent regulatory agencies in a way
inconsistent with current law and practice.
Commission appreciates the opportunity to comment on these
The amendments and while the NRC fully supports and complies with
NEPA, we cannot concur in amendments that could diminish the
independent status of this agency.
Sincerely,
hm belin
Ivan Selin
-