[Congressional Record Volume 151, Number 153 (Thursday, November 17, 2005)]
[Senate]
[Pages S13168-S13172]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CHAMBLISS (for himself and Mr. Harkin):
  S. 2042. A bill to amend the Federal Insecticide, Fungicide, and 
Rodenticide Act to implement pesticide-related obligations of the 
United States under the international conventions or protocols known as 
the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol; 
to the Committee on Agriculture, Nutrition, and Forestry.
  Mr. CHAMBLISS. Mr. President, today, Senator Harkin and I are 
introducing the POPs, LRTAP POPs and PIC Implementation Act of 2005. 
This bill would amend the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA) to implement the United States' pesticide-
related obligations under the Stockholm Convention on Persistent 
Organic Pollutants (POPs Convention), the Aarhus Protocol on Persistent 
Organic Pollutants to the Geneva Convention on Long Range Transboundary 
Air Pollution (LRTAP POPs Protocol) and the Rotterdam Convention on the 
Prior Informed Consent Procedure for Certain Hazardous Chemicals and 
Pesticides in International Trade (PIC Convention).
  POPs are certain chemicals that are toxic, persist in the environment 
for an extended period of time and can bioaccumulate in the human food 
chain. POPs have been linked to adverse health effects on humans and 
animals. Due to their persistent characteristics and ability to 
circulate globally, POPs that are released in one part of the world can 
travel to neighboring regions and negatively affect environments where 
they are not produced or used.
  The United States has taken a leading role in reducing and 
eliminating the use POPs. For example, in the late 1970s, the United 
States prohibited the manufacture of new PCBs and severely restricted 
the use of remaining stocks. And over the past 35 years, the United 
States has had a strong regulatory process that restricted the 
production and use of dangerous pesticides. Even prior to signing the 
POPs Convention, the United States prohibited the sale of all the POPs 
pesticides initially targeted by the convention.
  In 2001, President George W. Bush signed the POPs Convention. Its 
ultimate goal is the safe management of hazardous chemicals. Over time, 
the convention will help bring an end to the production and use of 
dangerous pollutants around the world and to positively affect the U.S. 
environment and public health.
  Specifically, the convention requires all signatory nations to stop 
the production and use of 12 listed POPs, including DDT, PCBs and 
dioxins. Parties to the convention also agree to control sources of 
POPs by-products to reduce releases and provide for the safe handling 
and disposal of POPs in an environmentally sound manner. The convention 
includes a science-based procedure to allow other POPs to be added and 
provides technical and financial assistance to help developing 
countries manage and control POPs.
  In 1998, the United States and members of the United Nations Economic 
Commission for Europe (UN-ECE) negotiated a regional protocol on POPs 
under the auspices of the Convention on Long Range Transboundary Air 
Pollution (LRTAP). Informally, the agreement is called the LRTAP POPs 
Protocol. The goal of the protocol is to eliminate production and 
reduce emissions of POPs in North America and Europe.
  The LRTAP POPs Protocol was the basis for the POPs Convention. The 
two agreements are similar in purpose, except that the LRTAP treaty is 
regional and it does not include trade restrictions or the technical 
and financial assistance available to developing nations under the POPs 
Convention. Also, the LRTAP POPs Protocol includes four additional 
chemicals to the 12 listed in the POPs Convention.
  In 1998, the PIC Convention established an information-sharing 
process to promote cooperative efforts among the parties to the 
convention regarding trade in chemicals. The process is designed to 
help nations decide whether to allow a chemical to be imported. 
Basically, the PIC Convention provides for prior notification to 
potential importing countries by nations exporting chemicals that have 
been banned or severely restricted in the exporting country. Countries 
exporting the chemicals listed in the convention must generally ensure 
that the importing country has consented to import the chemical.
  The bill we are introducing today would prohibit the sale, 
distribution, use, production or disposal of any listed POPs pesticides 
or LRTAP POPs pesticide. It would establish notice and reporting 
procedures to ensure the American public is aware of potential actions 
and decisions made by the parties to the conventions. The bill also 
would add new export reporting and labeling requirements to ensure 
compliance with U.S. obligations under the PIC Convention.
  In order for the United States to become a party to the conventions, 
the Senate must ratify the POPs and PIC Conventions. Congress also must 
pass implementing legislation. This bill does not include a 
ratification resolution and it does not amend the Toxic Substances 
Control Act.
  At this time, the United States is not a party to the conventions and 
does not have a seat at the negotiating table. This weak position 
hampers the ability of our technical experts and negotiators to protect 
our leadership role in international pesticide policy and regulation. 
Our observer-only status also limits our ability to participate in the 
critical decisions that affect U.S. businesses and economic interests 
and our environment and public health. The delay in ratifying the 
conventions serves to marginalize us.
  The U.S. delegation was unable to fully participate in the first 
meeting of parties to the POPs Convention held in May 2005 in Punta del 
Este, Uruguay. The next meeting of the parties to the POPs Convention 
is May 2006. I urge my colleagues to ratify the conventions and pass 
implementing legislation so that the United States can reclaim its 
rightful place as a world leader in the safe management of hazardous 
chemicals.
  I look forward to working with my colleagues on the Senate Foreign 
Relations Committee and the Environment and Public Works Committee on 
this matter.
  Mr. HARKIN. Mr. President, today I am pleased to join with Chairman 
Chambliss in introducing legislation to implement the Stockholm 
Convention on Persistent Organic Pollutants, the

[[Page S13169]]

LRTAP POPs Protocol, and the Rotterdam PIC Protocol. These three 
agreements provide an international framework for controlling and 
eliminating the use of chemicals that have the greatest potential for 
long-term environmental damage. These persistent organic pollutants, or 
POPs, are chemicals that do not easily break down in the environment. 
As a result, they tend to move across international boundaries and bio-
accumulate--in other words, they travel up the food chain. This 
legislation modifies existing U.S. law under the Federal Insecticide, 
Fungicide and Rodenticide Act, FIFRA, to bring us into compliance with 
these agreements with regard to chemicals used in agriculture. 
Implementation of the agreements will also require modification of the 
Toxic Substances Control Act, TSCA.
  These conventions and protocols have already entered into force. But 
at this point, though the United States is a signatory to all of them, 
we have not ratified them. All of the chemicals that are listed in the 
agreement are already banned or tightly controlled under U.S. law, but 
the Stockholm Convention's Review Committee just met in Geneva and 
further meetings are planned, and decisions are being made without our 
delegation able to fully participate as a party to the agreement. The 
United States needs to ratify the convention in order to have a voice 
in this process.
  Our goal in writing this legislation is narrow. It has not been our 
intention to open up FIFRA as part of this process, but only to craft 
those changes compelled by our international commitments. That is not 
to say that FIFRA is perfect or could not be improved and 
strengthened--only that this is not the occasion to launch into 
changing the domestic law beyond the narrow goal of compliance with 
these agreements.
  Some have urged that this measure provide for automatic processes 
triggered by the decisions of the review committee overseeing the 
Stockholm Convention. For instance, if the review committee lists a 
chemical, they would have the United States automatically take steps to 
regulate or ban the chemical domestically. I have sympathy with that 
approach, and I would hope that our existing environmental laws would 
be used to restrict the use of such a chemical before international 
action, as they have with all the initial chemicals listed in the 
Stockholm Convention.
  But that is not what is called for in the Stockholm Convention. The 
convention that this legislation will implement does not compel parties 
to adopt new chemicals added to the convention in future years. 
Instead, the parties are allowed to opt in to the convention's 
restrictions. The legislation we are introducing today would allow for 
any information or studies generated as part of the international 
process to be used as part of a domestic regulatory action on the 
chemical, but would not provide an automatic process that compelled the 
Environmental Protection Agency, EPA, to take action. In essence, we 
are allowing the EPA to move forward and take action on a chemical if 
the case made in the international review for a ban is strong, and not 
make EPA reinvent the wheel and generate new data to back up their 
conclusions, while at the same time, not mandating EPA action to ban or 
regulate a chemical. This legislation strikes a fair balance and one 
that is consistent with the limited goal we have in this process to 
bring FIFRA into compliance with our international obligations.
  The most controversial aspects of this legislation are the provisions 
that deal with the process by which new chemicals are brought under the 
convention's control. It is critically important that the position of 
the United States in the international regulation of chemicals take 
into account the views of all parties--pesticide manufacturers, 
farmers, environmental scientists, State regulators--everyone who has a 
stake in the process.
  Under the Stockholm Convention, the process of listing new POPs 
chemicals follows a three-part process. The review committee determines 
whether a chemical satisfies the agreed screening criteria in the 
convention; if the criteria are satisfied, a risk profile is prepared; 
if on the basis of the risk profile, it is determined that global 
action is required, the committee or parties would consider listing the 
chemical.
  In each of these stages, the U.S. position should be informed by 
formal notice and comment periods as provided in existing law. The 
Federal notice and comment process is open, well developed, and well 
understood by stakeholders in the process. If this process is optional, 
there is the risk that the U.S. position could be formed without taking 
into account important views. While nothing in this legislation 
dictates that any particular position in this established process be 
taken by the administration, there is a requirement that the 
administration use this process to collect information to inform its 
position in the international body regarding any particular chemical.
  The administration's draft of this legislation gave the EPA 
Administrator permission to initiate a notice and comment period but 
did not require it. The argument for this position was a constitutional 
claim that the executive's authority over negotiations with other 
nations includes a right to rely on whatever information that the 
president chooses to use. The ``remedy'' for negotiating a faulty 
treaty, according to the letter received from the Department of 
Justice, is for the Senate to refuse to consent to the treaty.
  This position is not consistent with existing Federal law and is 
impractical particularly in a process like this one, where the 
negotiation in question would never be subject to ratification by the 
Senate. My concern with this constitutional theory resulted in an 
exchange of correspondence last year, when this bill was being drafted 
by then-Chairman Cochran.
  I wrote to then-Administrator Michael Leavitt at the EPA, asking for 
a written explanation of the administration's position on this issue. 
This resulted in two letters, one from Administrator Leavitt on behalf 
of the EPA dated March 25, 2004, and one from Assistant Attorney 
General William Moschella on behalf of the Department of Justice dated 
March 25, 2004. Finally, I requested an analysis of the constitutional 
issues raised by this provision from the American Law Division of the 
Congressional Research Service and received a memorandum dated March 
30, 2004. I will offer all of these letters and the CRS memorandum for 
inclusion in the Record at the end of my statement.
  Having reviewed all this material, I find that the administration's 
position is not well supported, and I would urge the Senate to reject 
any effort to include it in this legislation. The CRS memorandum on the 
EPA draft summarizes the state of the law as follows:
  Stated succinctly, the separation of powers doctrine ``implicit in 
the Constitution and well established in case law, forbids Congress 
from infringing upon the Executive Branch's ability to perform its 
traditional functions.'' The Supreme Court has established that in 
determining whether an act of Congress has violated the doctrine, ``the 
proper inquiry focuses on the extent to which it prevents the Executive 
Branch from accomplishing its constitutionally assigned functions.''
  The memo goes on to state that it is ``difficult to see how a 
mandatory notice and comment requirement would implicate this 
traditional executive function.'' The memorandum concludes that ``it 
does not appear that a mandatory notice and comment requirement would 
present any substantive separation of powers concerns.'' Clearly, there 
is no merit to the Justice Department's contention that mandatory 
notice and comment would be an unconstitutional intrusion into the 
President's exclusive prerogative over foreign policy. Clearly, future 
steps taken domestically to carry out these international agreements 
should be informed by the views of all stakeholders and build the 
record through the notice and comment procedure for domestic 
implementation of any international action. This legislation makes the 
right choice by mandating notice and comment.
  I appreciate the opportunity to work with Chairman Chambliss on this 
legislation, and with our committee's previous chair, Senator Cochran, 
whose staff worked tirelessly to develop this legislation. I am hopeful 
that we can work together with the other body to reach agreement on 
implementing legislation along the lines of this bill,

[[Page S13170]]

that will clear the way for ratification of the Stockholm Convention.
  I ask unanimous consent to include in the Record a letter to 
Administrator Michael Leavitt, his response from March 25, 2004, the 
response to the same letter by William Moschella on behalf of the 
Justice Department, and the memorandum of law from the Congressional 
Research Service.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         Committee on Agriculture,


                                      Nutrition, and Forestry,

                                Washington, DC, February 12, 2004.
     Hon. Michael Leavitt,
     Administrator, Environmental Protection Administration, 
         Washington, DC.
       Dear Administrator Leavitt: Thank you for your note asking 
     for my help in passing legislation to implement the Stockholm 
     Protocols. I certainly want to be helpful in that regard and 
     support moving implementing legislation quickly that will 
     enhance the ability of the Environmental Protection Agency to 
     eliminate the threat that persistent organic pollutants 
     (POPs) pose to our environment.
       As we move forward on this legislation, I believe it is 
     important to regulate not only the so-called ``dirty dozen'' 
     POPs that are explicitly controlled by the Stockholm 
     Protocols, but also to improve your agency's ability to 
     address these types of pollutants through the EPA's 
     regulatory system as expeditiously as possible, with 
     opportunities for public participation and comment. This 
     public participation and comment is particularly important to 
     inform the agency in its evaluation of potential new 
     pollutants brought before the review committee formed by this 
     legislation.
       One version of proposed implementing legislation would 
     provide for mandatory notice and comment periods to allow 
     public input at each of the three stages of the review 
     committee process. The most recent draft of the legislation 
     put forward by the EPA, however, makes each of these notice 
     and comment periods fully subject to the agency's discretion. 
     It has also been asserted that if Congress required the 
     agency to provide a notice and comment period based on action 
     of the international body, it would unconstitutionally 
     impinge on our national sovereignty. This is a novel 
     constitutional analysis that I would like to understand 
     better before this legislation moves forward.
       I request that, prior to our Committee taking up this 
     issue, you provide me with any legal analysis, legal 
     opinions, and citations to any legal authority supporting the 
     proposition that Congress cannot require the EPA to hold 
     notice and comment periods in response to the actions of an 
     international body. I know that you are as committed as I am 
     to move this legislation expeditiously, and I look forward to 
     receiving this information soon.
       Again, I look forward to working with you on this matter 
     and want to help in any way I can to assist you in your work 
     of improving our nation's environment.
           Sincerely,
                                                       Tom Harkin,
     Ranking Democratic Member.
                                  ____

                                       United States Environmental


                                            Protection Agency,

                                   Washington, DC, March 25, 2004.
     Hon. Tom Harkin,
     Ranking Member, Committee on Agriculture, Nutrition and 
         Forestry, U.S. Senate, Washington, DC.
       Dear Senator Harkin: Thank you very much for your letter of 
     February 12, 2004. I appreciate your willingness to support 
     the legislative efforts of the Administration to allow the 
     United States to become a Party to the Stockholm Convention 
     on Persistent Organic Pollutants, the Rotterdam Convention on 
     the Prior Informed Consent Procedure for Certain Hazardous 
     Chemicals and Pesticides in International Trade and the 
     Protocol on Persistent Organic Pollutants to the 1979 
     Convention on Long-Range Transboundary Air Pollution.
       In your letter, you noted a particular interest in the 
     discretionary notice and comment procedures contained within 
     the Administration's proposed legislation to implement the 
     FIFRA-related obligations of the three environmental treaties 
     referenced above. The Administration's proposal does not make 
     these notice and comment procedures mandatory, and you 
     requested additional information about the constitutional 
     concerns that underlie that decision. I asked my staff to 
     organize a meeting for the Department of Justice to discuss 
     its constitutional concerns with your legislative assistants 
     and to answer any questions. I understand that meeting 
     occurred on March 3, 2004.
       As you know, the Stockholm Convention creates an 
     international ``Persistent Organic Pollutants Review 
     Committee'' to evaluate whether various substances should be 
     added or removed from the Convention's coverage. The United 
     States expects to play a strong role at the international 
     meetings of the Review Committee, and, as you note in your 
     letter, the United States could use the notice and comment 
     procedures under the proposed bill to ``allow public input at 
     each of the three stages of the review committee process.''
       U.S. stakeholders will no doubt have a great deal of 
     expertise about proposed pollutants brought before the 
     international review committee, and the Administration 
     proposal specifically includes notice and comment procedures 
     to allow the Executive branch to take advantage of this 
     knowledge. The statutory notice and comment procedures are 
     precatory, however, because the Department of Justice has 
     advised the Administration that it has concluded that a 
     mandatory consultation requirement would raise constitutional 
     concerns with respect to the President's authority to conduct 
     negotiations with other nations. I have forwarded your letter 
     to the Department of Justice to respond to you more 
     specifically on this point.
       I do, however, agree with the concern behind your letter 
     that ``public participation and notice and comment is 
     particularly important to inform the agency in its evaluation 
     of potential new pollutants brought before the review 
     committee.'' The constitutional concerns that are presented 
     by a mandatory requirement could be avoided by fully 
     authorizing the Executive Branch to gather information from 
     the public, but not requiring the Executive Branch to 
     exercise that authority. In order to ensure that the public 
     is well informed about events that are taking place 
     internationally, and to provide an opportunity for the 
     consideration of public comment in the event that the 
     Administration does not execute the discretionary notice and 
     comment procedures, my staff has included a new section in 
     the legislation that I transmitted to you on February 25.
       In this section, there is a mandatory requirement that the 
     Administration publish a semiannual federal register notice 
     that provides a full description of the events occurring at 
     the international level and any domestic regulatory actions 
     that have been initiated. Because this requirement is based 
     on the calendar, relates to information that is publicly 
     available, and is not linked to decisions in the 
     international process, it does not raise the same 
     constitutional concerns. This new provision also obligates 
     the Environmental Protection Agency to consider comments 
     received as a result of these semiannual federal register 
     notices. I will be interested in your reaction to this 
     proposal, which I believe addresses our respective concerns.
       I appreciate the reiteration of your commitment to passing 
     this legislation and to completing the necessary steps for 
     the United States to deposit its instrument of consent to 
     join these three very important multilateral environmental 
     treaties. I look forward to working with you. If you have any 
     further questions or concerns, please contact me or your 
     staff may contact Peter Pagano in EPA's Office of 
     Congressional and Intergovernmental Relations, at (202) 564-
     3678.
           Sincerely,
     Michael O. Leavitt.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, March 25, 2004.
     Hon. Tom Harkin,
     Ranking Member, Committee on Agriculture, Nutrition, and 
         Forestry, U.S. Senate, Washington, DC.
       Dear Senator Harkin: The EPA has forwarded to the 
     Department of Justice your letter dated February 12, 2004, 
     regarding legislation proposed by the Administration to 
     implement the Stockholm Convention on Persistent Organic 
     Pollutants, the Rotterdam Convention on the Prior Informed 
     Consent Procedure for Certain Hazardous Chemicals and 
     Pesticides in International Trade, and the Protocol on 
     Persistent Organic Pollutants to the 1979 Convention on Long-
     Range Transboundary Air Pollution.
       Specifically, you are interested in the discretionary 
     notice and comment procedures contained within the 
     Administration's proposed legislation to implement the FIFRA-
     related obligations of the three environmental treaties 
     referenced above. At the request of the Department of 
     Justice, the Administration's proposal does not make these 
     consultations mandatory, and you requested additional 
     information about the constitutional concerns underlying that 
     decision.
       The Stockholm Convention creates an international 
     ``Persistent Organic Pollutants Review Committee'' to 
     evaluate whether various substances should be added to, or 
     removed from, the Convention's coverage. Also, as you note in 
     your letter, the notice and comment procedures under the 
     proposed bill would ``allow public input at each of the three 
     stages of the review committee process.'' The statutory 
     notice and comment procedures are precatory, however, because 
     a mandatory consultation requirement would raise 
     constitutional concerns.
       The Executive branch has sole authority over the United 
     States' negotiations with other nations. See, e.g., Letter to 
     Edmond Charles Genet, from Thomas Jefferson, Secretary of 
     State (1793), reprinted in 9 The Writings of Thomas Jefferson 
     256 (Andrew A. Lipscomb ed., 1903) (``[T]he President of the 
     United States. . . being the only channel of communication 
     between this country and foreign nations, it is from him 
     alone that foreign nations or their agents are to learn what 
     is or has been the will of the nation.''). The Supreme Court 
     has long concurred in this understanding of the President's 
     power, noting that this exclusive authority extends 
     throughout the entire ``field of negotiation.'' See United 
     States v. Curtiss-Wright Corp., 299 U.S. 304,319 (1936) (``In 
     this vast external realm, with its important, complicated, 
     delicate, and manifold problems, the President

[[Page S13171]]

     alone has the power to speak or listen as a representative of 
     the nation. He makes treaties with the advice and consent of 
     the Senate; but he alone negotiates. Into the field of 
     negotiation the Senate cannot intrude; and Congress itself is 
     powerless to invade it.''). See also New York Times Co. v. 
     United States, 403 U.S. 713, 728 (1971) (Stewart, J., 
     concurring) (``In the governmental structure created by our 
     Constitution, the Executive is endowed with enormous power in 
     the two related areas of national defense and international 
     relations.''); United States v. Louisiana, 363 U.S. 1, 35 
     (1960) (the President is ``the constitutional representative 
     of the United States in its dealings with foreign nations''); 
     Earth Island Inst. v. Christopher, 6 F.3d 648, 652-54 (9th 
     Cir. 1993); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 
     (D.C. Cir. 1985) (Scalia, J.) (``[B]road leeway'' is 
     ``traditionally accorded the Executive in matters of foreign 
     affairs.'').
       Within this constitutional framework, statutes cannot 
     direct the President to vote a certain way in an 
     international forum, and they cannot require that the 
     President consult with specific private organizations as he 
     prepares to cast such a vote. Congress can certainly assist 
     the President in his intentional negotiations by providing 
     him with the authority to gather information from private 
     citizens, cf. New York Times Co., 403 U.S. at 729-30, but it 
     remains for the President to decide how much, if any, 
     additional information is needed and what should be done with 
     it. If a proposed treaty is ill-informed, then the 
     Constitution provides the remedy: the Senate may refuse to 
     concur in that document. Joseph Story, 3 Commentaries on the 
     Constitution of the United States Sec. 1507 (1833) (``The 
     President is the immediate author and finisher of all 
     treaties; and all the advantages, which can be derived from 
     talents, information, integrity, and deliberate investigation 
     on the one hand, and from secrecy and despatch on the other, 
     are thus combined in the system. But no treaty, so formed, 
     becomes binding upon the country, unless it receives the 
     deliberate assent of two thirds of the Senate.''). What 
     Congress may not do is direct, through legislation, how the 
     President exercises his exclusive power to negotiate.
       The Administration's concerns over legislation that would 
     mandate consultation with Congress or with private parties in 
     connection with the conduct of international negotiations are 
     not new. Similar concerns were raised by the Department of 
     Justice under President Clinton, President George H. W. Bush, 
     and President Reagan. In each case, the Department objected 
     to legislative proposals that would have required that the 
     Executive branch consult in the context of international 
     negotiations. For example, during the Clinton administration, 
     the Department of Justice objected to legislative proposals 
     that would have directed the Executive branch to consult with 
     interested parties prior to negotiating trade agreements or 
     prior to taking a position before the World Trade 
     Organization. In 1991, the Department advised that the United 
     States Trade Representative could not be required to 
     periodically consult with interested parties on the progress 
     of international trade negotiations. During the Reagan 
     Administration, the Department wrote to Senator Lowell 
     Weicker explaining that a proposed consultation requirement 
     was objectionable because any provision that would require 
     that the Executive branch disclose information that might 
     interfere with the success of international negotiations 
     would be subject to a valid claim of executive privilege. 
     Presidents of both parties have also noted concerns about 
     appropriations legislation containing similar provisions, 
     and have stated that they would interpret such provisions 
     not to intrude into this exclusive constitutional power 
     over international negotiations. See Statement on Signing 
     the Foreign Operations, Export Financing, and Related 
     Programs Appropriations Act, 2001 36 Weekly Comp. Pres. 
     Doc. 2809-10 (Nov. 13, 2000) (Statement of President 
     Clinton) (``Certain provisions of the Act could interfere 
     with my sole constitutional authority in the area of 
     foreign affairs by directing or burdening my negotiations 
     with foreign governments and international organizations . 
     . . I will not interpret these provisions to limit my 
     ability to negotiate and enter into agreements with 
     foreign nations.''); Statement on Signing the Foreign 
     Operations, Export Financing, and Related Programs 
     Appropriations, 2002, 38 Weekly Comp. Pres. Doc. 49-50 
     (Jan. 10, 2002) (Statement of President Bush) (objecting 
     to . provision ``which purports to direct the Secretary of 
     State to consult certain international organizations in 
     determining the state of events abroad'' and noting this 
     and other provisions ``shall be construed consistent with 
     my constitutional authorities to conduct foreign affairs, 
     participate in international negotiations, and supervise 
     the Executive Branch'').
       In the pending legislation, the Department concluded that a 
     mandatory requirement for ``public participation and 
     comment'' would raise similar constitutional concerns and 
     therefore recommended that more precatory language be used.
       That said, the Department does not take issue with the 
     general belief that ``public participation and notice and 
     comment is particularly important to inform the 
     [Administration] in its evaluation of potential new 
     pollutants brought before the review committee.'' The 
     constitutional concerns that are presented by a mandatory 
     consultation requirement can be avoided by fully authorizing 
     the Executive Branch to gather information from the public, 
     but not requiring the Executive Branch to exercise that 
     authority. To ensure that the public is well informed about 
     events that are taking place internationally, and to provide 
     an opportunity for the consideration of public comment in the 
     event that the President chooses not to execute the 
     discretionary notice and comment procedures, the bill 
     requires that the Administration publish a semi-annual 
     Federal Register notice that provides a full description of 
     the events occurring at the international level and any 
     domestic regulatory actions that have been initiated. Because 
     this requirement based on the calendar, relates to 
     information that is publicly available, and is not linked to 
     decisions in the international process, this does not raise 
     the same constitutional concerns.
       We trust this provides an answer to your inquiry. We would 
     welcome the opportunity to assist you with any future 
     inquiries you may have. The Office of Management and Budget 
     has advised that there is no objection to the submission of 
     this letter from the standpoint of the Administration's 
     program.
       Sincerely,
                                                William Moschella,
     Assistant Attorney General.
                                  ____



                               Congressional Research Service,

                                   Washington, DC, March 30, 2004.
     Re: Validity of Provisions Mandating Notice and Comment 
         Proceedings in Response to the Decisions of Parties 
         Operating Pursuant to International Conventions and 
         Protocols.

       Hon. Tom Harkin: Pursuant to your request, this memorandum 
     analyzes certain provisions of a draft bill forwarded by the 
     Administration that would amend the Federal Insecticide, 
     Fungicide, and Rodenticide Act (FIFRA) to allow for the 
     implementation of the Stockholm Convention on Persistent 
     Organic Pollutants (POPs Convention), the Rotterdam 
     Convention on the Prior Informed Consent Procedure for 
     Certain Hazardous Chemicals and Pesticides in International 
     Trade (PIC Convention) and the Protocol on Persistent Organic 
     Pollutants to the Convention on Long-Range Transboundary Air 
     Pollution (LRTAP POPs Protocol). In pertinent part, the draft 
     bill would imbue the Administrator of the Environmental 
     Protection Agency (hereinafter referred to as 
     ``Administrator'') with discretionary authority to publish 
     notices in the Federal Register and to provide an opportunity 
     for comment in response to certain actions taken by parties 
     to the POPs Convention and the LRTAP POPs Protocol.
       The Administration has asserted that the notice and comment 
     provisions in its proposal are necessarily ``precatory'' in 
     nature, ``because a mandatory consultation requirement would 
     raise constitutional concerns.'' You have asked whether it 
     would be constitutionally problematic to make the notice and 
     comment provisions in the draft proposal mandatory, despite 
     the concerns raised by the Administration. A review of 
     relevant constitutional principles appears to indicate that 
     such a requirement would pass constitutional muster.


                            POPs Convention

       The POPs Convention was signed by the United States on May 
     31, 2001, and requires nations to reduce or eliminate the 
     production and use of listed chemicals. The POPs Convention 
     allows new chemicals to be added to the list by amendment to 
     the relevant treaty annexes, and an amendment may be proposed 
     by any party to the Convention. Amendments may be adopted at 
     a meeting of the Conference of the Parties after the 
     circulation of such a proposal to all parties at least six 
     months in advance of the meeting. The POPs convention also 
     creates a Persistent Organic Pollutants Review Committee 
     (POPs Review Committee) that is to consist of government-
     designated experts in chemical assessment or management. The 
     POPs Review Committee is charged generally with determining 
     whether a listing proposal submitted by a party meets 
     screening criteria established in the Convention, determining 
     whether global action is warranted regarding the proposal, 
     and recommending whether a proposed chemical should be 
     considered for listing by the Conference of the Parties.


                          LRTAP POPs Protocol

       The 1998 Aarhus Protocol on Persistent Organic Pollutants 
     (hereinafter referred to as ``LRTAP POPs Protocol'') amended 
     the Convention on Long-Range Transboundary Air Pollution with 
     the objective of eliminating discharges, emissions and losses 
     of listed persistent organic pollutants during their 
     production, use and disposal. Any party may offer an 
     amendment to add a new chemical to the LRTAP POPs Protocol, 
     which may be adopted by consensus of the parties represented 
     at a session of the Executive Body

[[Page S13172]]

     of the Convention. Prior to the addition of a chemical, the 
     LRTAP POPs Protocol requires the completion of a risk profile 
     on the chemical establishing that it meets selection criteria 
     specified under the protocol.


                           The Draft Proposal

       The Administration's draft proposal, as supplied by your 
     office, provides for the implementation of the PIC and POPs 
     Conventions and the LRTAP POPs Protocol. To effectuate this 
     implementation, the proposal imbues the Administrator with 
     the discretionary authority to publish notices in the Federal 
     Register in response to actions taken to add chemicals to the 
     list of those covered under the POPs Convention and the LRTAP 
     POPs Protocol specifically.
       As noted above, the POPs Convention establishes a POPs 
     Review Committee that is responsible for considering 
     proposals to add chemicals to those listed in the POPs 
     Convention and recommending to the Conference of the Parties 
     whether a proposed chemical should be considered for listing 
     by the Conference. In the event that the POPs Review 
     Committee does not forward a proposal, the Conference may 
     choose to consider the proposal on its own accord. Section 
     3(4) of the draft bill contains several provisions 
     authorizing the Administrator of the EPA to publish 
     notices in the Federal Register at certain stages of the 
     listing process and to provide an opportunity for comment 
     on a proposed listing. In particular, Section 3(4), 
     establishing a new 7 U.S.C. 136o(e)(3), authorizes the 
     publication of a notice and opportunity for comment after 
     a decision by the POPs Review Committee that a listing 
     proposal meets the screening criteria specified in the 
     POPs Convention or, alternatively, if the Conference of 
     the Parties decides that such a proposal should proceed.
       Likewise, a new 7 U.S.C. 136o(e)(4) would authorize the 
     publication of notice and opportunity for comment upon a 
     determination by the POPs Review Committee that a proposed 
     listing warrants global action, or, alternatively, if the 
     Conference of the Parties decides that the proposal should 
     proceed. Finally, a new 7 U.S.C. 136o(e)(5) would authorize 
     the publication of notice and opportunity for comment after 
     the POPs Review Committee recommends that the Conference of 
     the Parties consider making a listing decision regarding the 
     chemical at issue.
       Publication of notice and opportunity for comment would 
     also be authorized after a party to the LRTAP POPs Protocol 
     submits a risk profile in support of a proposal to add a 
     chemical to those already listed. Additional notice and 
     comment proceedings would be authorized in instances where 
     the Executive Body determines that further consideration of a 
     pesticide is warranted, as well as after the completion of a 
     technical review of a proposal to add a chemical to the LRTAP 
     POPs Protocol. It is interesting to note that while the draft 
     proposal makes the decision as to whether to engage at all in 
     notice and comment procedures discretionary, the 
     Administrator is required to provide detailed elements of 
     notice in the event that such procedures are offered.


                                analysis

       You have specifically inquired as to whether it would 
     violate the doctrine of separation of powers to make the 
     aforementioned discretionary notice and comment procedures 
     mandatory, irrespective of the general concern voiced by the 
     Administration that ``a mandatory consultation requirement 
     would raise constitutional concerns.'' An examination of 
     applicable principles and precedent appears to indicate that 
     a mandatory notice and comment requirement would be 
     constitutionally permissible.
       Stated succinctly, the separation of powers doctrine 
     ``implicit in the Constitution and well established in case 
     law, forbids Congress from infringing upon the Executive 
     Branch's ability to perform its traditional functions.'' The 
     Supreme Court has established that in determining whether an 
     act of Congress has violated the doctrine, ``the proper 
     inquiry focuses on the extent to which it prevents the 
     Executive Branch from accomplishing its constitutionally 
     assigned functions.'' Furthermore, as was noted by the Court 
     of Appeals for the Ninth Circuit in Confederated Tribes of 
     Siletz Indians v. United States:
       Although the Supreme Court has not announced a formal list 
     of elements to be considered when determining whether a 
     violation of the doctrine has taken place, it has 
     consistently looked to at least two factors: (1) the 
     governmental branch to which the function in question is 
     traditionally assigned, see Mistretta, 488 U.S. at 364, 109 
     S.Ct. at 65-51; Morrison v. Olson, 487 U.S. 654, 694-96, 108 
     S.Ct. 2597, 2620-22, 101 L.Ed. 2d 659 (1988); and (2) the 
     control of the function retained by the branch, see 
     Mistretta, 488 U.S. at 408-12, 109 S.Ct. at 673-75; Morrison, 
     487 U.S. at 692-96, 108 S.Ct. at 2619-22.
       Applying these factors to the case at hand, it appears 
     unlikely that a reviewing court would hold that mandatory 
     notice and comment provisions would violate the doctrine. As 
     is indicated by the DOJ letter, it seems that any argument 
     that a mandatory requirement would offend the separation of 
     powers doctrine would hinge on the assertion that such a 
     requirement necessarily constitutes an intrusion into the 
     core power of the Executive Branch over external affairs. 
     Specifically, in United States v. Curtiss-Wright Corp., the 
     Supreme Court declared:
       [n]ot only . . . is the federal power over external affairs 
     in origin and essential character different from that over 
     internal affairs, but participation in the exercise of the 
     power is significantly limited. In this vast external realm, 
     with its important, complicated, delicate and manifold 
     problems, the President alone has the power to speak or 
     listen as a representative of the nation. He makes treaties 
     with the advice and consent of the Senate; but he alone 
     negotiates. Into the field of negotiation the Senate cannot 
     intrude; and Congress itself is powerless to invade it. As 
     Marshall said in his great argument of March 7, 1800, in the 
     House of Representatives, `the President is the sole organ of 
     the nation in its external relations, and its sole 
     representative with foreign nations.'
       However, it is difficult to see how a mandatory notice and 
     comment requirement would implicate this traditional 
     executive function. Specifically, while it is generally 
     conceded that there are some powers enjoyed by the President 
     alone regarding foreign affairs, it is likewise evident that 
     Congress possesses wide authority to promulgate policies 
     respecting foreign affairs. Congress has often exercised 
     this authority to determine policy objectives for the 
     United States in international negotiations and to require 
     subsequent legislative approval of international 
     agreements before they may enter into force for the United 
     States.
       A mandatory notice and comment requirement would not appear 
     to be an attempt to control the substance of negotiations 
     between the United States and other parties to POPs 
     Convention or the LRTAP POPs Protocol. Instead, such a 
     requirement would simply establish that the Administrator 
     must publish notices in the Federal Register providing 
     information regarding chemicals that are being considered for 
     listing to either the Convention or the Protocol. A somewhat 
     analogous requirement in the international arena may be found 
     at 19 U.S.C. 3537, which requires the United States Trade 
     Representative to consult with the appropriate congressional 
     committees and to publish detailed notices in the Federal 
     Register whenever it is a party to any dispute settlement 
     proceedings under the WTO. Furthermore, it should be noted 
     that this notification provision could be likened to 
     reporting requirements that are often imposed by Congress. As 
     a general proposition, Congress is entitled to full access to 
     information that is in the possession of the Executive 
     Branch, subject to claims of executive privilege.
       In addition to the general assertion that a mandatory 
     notice and comment requirement would intrude on the 
     President's power over the ``field of negotiation'' in 
     foreign affairs, the DOJ letter states that any potential 
     requirement that the Administrator consult with private 
     parties or give consideration to comments received therefrom 
     would also be constitutionally problematic. However, it is 
     likewise difficult to ascertain how such a provision would 
     necessarily impair the ability of the executive branch to 
     carry out its core functions in this context. There is no 
     indication that such a provision would be drafted so as to 
     require the disclosure of sensitive information, or to 
     require the inclusion of such individuals in the actual 
     negotiation process. Rather, the notice and comment 
     procedures at issue would appear to be tailored to ensure 
     that the public is kept informed regarding ongoing 
     proceedings in this context, and is further afforded the 
     opportunity to comment on proposals under consideration. 
     Accordingly, it appears that such a dynamic would not raise 
     concerns any more significant than existing consultation 
     requirements. Based on these factors, it does not appear that 
     a mandatory notice and comment requirement would present any 
     substantive separation of powers concerns.

                                                T.J. Halstead,

                                             Legislative Attorney,
                                            American Law Division.
                                 ______