[Federal Register Volume 65, Number 133 (Tuesday, July 11, 2000)]
[Notices]
[Pages 42743-42750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17418]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

COUNCIL ON ENVIRONMENTAL QUALITY


Request for Public Comment: Draft Guidelines for Implementation 
of Executive Order 13141: Environmental Review of Trade Agreements 
Notice of Public Hearing

AGENCY: Office of the United States Trade Representative and Council on 
Environmental Quality

ACTION: Notice of request for written public comment; notice of public 
hearing

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SUMMARY: On November 16, 1999, President Clinton signed Executive Order 
13141. 64 FR 63169 (Nov. 18, 1999). The Order makes explicit the United 
States' commitment to a policy of ongoing assessment and evaluation of 
the environmental impacts of trade agreements, and in certain 
instances, the conduct of written environmental reviews. The Order 
directs the Office of the United States Trade Representative (USTR) and 
the Council on Environmental Quality (CEQ) to oversee implementation of 
the Order, including the development of procedures pursuant to the 
Order.
    This notice seeks public comment on draft Guidelines for 
implementing the Executive Order. USTR and CEQ developed the draft 
Guidelines through an extensive interagency process with active 
participation from interested foreign policy, environmental, and 
economic agencies. USTR and CEQ also solicited input from advisory 
committees and the public. 65 Fed. Reg. 9757 (Feb. 22, 2000). The 
resulting draft Guidelines endeavor to assure that consideration of the 
environmental implications of trade agreements is an integral part of 
the policymaking process, and that environmental analysis is undertaken 
sufficiently early to inform the development of U.S. negotiating 
positions and objectives. Further, the draft Guidelines make public 
participation an integral component.

FOR FURTHER INFORMATION CONTACT: Office of the U.S. Trade 
Representative, Environment and Natural Resources Section, telephone 
202-395-7320, or Council on Environmental Quality, telephone 202-456-
6224.

SUPPLEMENTARY INFORMATION:

[[Page 42744]]

A. Executive Order 13141 and the Trade Policy Staff Committee 
(TPSC) Process

    The United States has relevant experience with environmental 
reviews of trade agreements, including the North American Free Trade 
Agreement in 1991-92 and the Uruguay Round Agreements in 1994. Most 
recently, in November, 1999, the United States prepared a study of the 
economic and environmental effects of the proposed Accelerated Tariff 
Liberalization initiative with respect to forest products. Building on 
this experience, Executive Order 13141 institutionalizes, for the first 
time, the procedures for integrating consideration of environmental 
issues into the negotiating process. The Order recognizes that 
environmental reviews are an important tool to help identify potential 
environmental effects of trade agreements, both positive and negative, 
and to help facilitate consideration of appropriate responses to those 
effects whether in the course of negotiations, through other means, or 
both.
    Sections 1 and 4(a) of the Order commit the United States to 
careful assessment and consideration of the environmental impacts of 
future trade agreements, including environmental reviews of certain 
major agreements (comprehensive multilateral trade rounds, multilateral 
or bilateral free trade agreements, and major new agreements in natural 
resource sectors). Further, Section 4(c) of the Order provides that 
environmental reviews may also be done for other agreements based on 
such factors as the significance of reasonably foreseeable 
environmental impacts, although it is anticipated that most sectoral 
liberalization agreements will not require reviews.
    Pursuant to section 5(a) of the Order, reviews shall be written; 
initiated through a Federal Register notice outlining the proposed 
agreement and soliciting public comment and information on the scope of 
the review; and undertaken sufficiently early in the process to inform 
the development of negotiating positions. This section of the Order 
also acknowledges that the environmental review process shall not be a 
condition for the timely tabling of particular negotiating proposals. 
Written environmental reviews shall be made available in draft form for 
public comment where practicable, and shall be made available to the 
public in final form. Section 5(b) of the Order provides that, as a 
general matter, the focus of reviews will be on impacts in the United 
States; however, reviews may also examine global and transboundary 
impacts as appropriate and prudent.
    In accordance with the Order, environmental reviews will be 
conducted by USTR through the Trade Policy Staff Committee (TPSC). The 
TPSC is the basic mechanism for interagency decisionmaking on U.S. 
trade policy. It is a senior-civil-servant-level committee established 
by section 242 of the Trade Expansion Act of 1962, as amended (19 
U.S.C. section 1872). The composition of the TPSC includes 
environmental agencies as the scope of its work has expanded. The basic 
work of the TPSC is performed by a network of staff-level subcommittees 
and task forces, organized by geographical region and/or sector. The 
committees prepare recommendations on subjects within their purview 
(e.g., instructions to negotiators on specific issues relevant to a 
given trade agreement). These recommendations take the form of a paper, 
which then must be cleared by agencies on the TPSC.

B. Public Comments and Advisory Committee Recommendations

    On February 22, 2000, USTR and CEQ requested the views of the 
public concerning issues the agencies should consider when developing 
guidelines for implementing the Order, including general views on how 
the environmental review process should work; mechanisms for involving 
the public; the timing and process for conducting written reviews; and 
appropriate methodologies for assessing environmental impacts in the 
context of trade negotiations. 65 Fed. Reg. 9757. Twenty-two sets of 
comments were received from a broad spectrum of the public, including 
representatives of industry, agriculture, and environmental 
organizations. USTR's advisory committee, the Trade and Environment 
Policy Advisory Committee (TEPAC), also submitted recommendations (with 
one dissent) concerning implementation of the Order.
    The process for developing the draft Guidelines (attached below) 
involved vigorous discussions and input from a broad spectrum of 
agencies and interested parties. The resulting draft endeavors to 
strike a careful balance assuring that environmental issues are 
factored into the development of U.S. negotiating objectives and 
positions, while also providing sufficient flexibility to address the 
wide variety of trade agreements and negotiating timetables. The draft 
Guidelines also take into account significant public comments received, 
including advisory committee recommendations. Following is a summary of 
how public comments have been addressed in the draft.

1. General Comments

    In general, public comments supported the Executive Order's 
objective of integrating environmental considerations into the 
development of trade negotiating objectives and positions. Some 
commenters emphasized that reviews should be a proactive tool for 
improving environmental performance through trade policy development, 
and that public involvement was critical to restore public confidence 
in trade liberalization as a national goal. They also stressed the 
importance of a process of ongoing assessment and evaluation of the 
environmental implications of trade agreements (including agreements 
that do not receive a review). Other commenters urged that reviews 
consider the potential environmental benefits as well as potential 
negative impacts of trade liberalization, and stressed that the 
Guidelines should not set the bar so high that reviews become a 
deterrent to trade rather than a beneficial analytical tool. Almost all 
commenters emphasized the use of the environmental review process to 
identify ``win-win'' opportunities where opening markets and reducing 
or eliminating subsidies hold promise for yielding environmental 
benefits.
    In response, the draft Guidelines provide that positive as well as 
negative environmental impacts will be considered in reviews, and 
recognize that reviews should be used as appropriate to identify areas 
in which the trade agreement can complement U.S. environmental 
objectives. Further, they envision that public input is an essential 
component of the review and provide for public participation at key 
points in the review process, including opportunities to comment on the 
scope of the review and, in most cases, on a draft review document. 
While the focus of the Executive Order, and therefore of the draft 
Guidelines, is necessarily on agreements that warrant an environmental 
review, the draft Guidelines also clarify the process of ongoing 
environmental evaluation and assessment applicable to all agreements.

2. Specific Issues

    Regarding specific issues, TEPAC and a number of commenters 
stressed the importance of initiating the reviews as early as feasible 
in the process in order to maximize the usefulness of environmental 
analysis in informing negotiating positions. The draft Guidelines 
incorporate this approach, though they recognize that no bright

[[Page 42745]]

line test is possible and that there should be sufficient information 
available about the United States' negotiating objectives to make 
analysis meaningful.
    TEPAC and a number of commenters emphasized the importance of 
determining the appropriate scope of the environmental review 
(``scoping''). As a result, the draft Guidelines endeavor to address 
the scoping process in detail. They provide for early involvement of 
interested agencies and the public to help assure that significant 
issues are identified early in the process and that government 
resources are targeted effectively.
    Commenters differed over whether reviews should normally examine 
environmental impacts outside the United States. TEPAC and several 
commenters recommended that reviews should presumptively examine such 
effects, while other commenters contended that examination of effects 
outside the United States should be limited. Consistent with the 
Executive Order, the draft Guidelines acknowledge that domestic impacts 
are the primary concern and priority of the reviews. However, the draft 
Guidelines provide that global and transboundary impacts will be 
included in the scoping process for every review, including opportunity 
for public input. The draft Guidelines further elaborate on some of the 
considerations relevant to inclusion of global and transboundary 
impacts in a review.
    Several commenters contended that reviews should be presumptively 
done for agreements covered by Section 4(c) of the Order (for which 
reviews are not mandated), while other commenters generally favored a 
more limited application. The draft Guidelines provide that USTR, 
through the TPSC, will conduct an objective process for making 
decisions whether to conduct a review for a Section 4(c) agreement, and 
make the significance of reasonably foreseeable environmental impacts 
an essential criterion in such decisions. The draft Guidelines 
elaborate on considerations relevant to the assessment of significance, 
as well as noting operational constraints that may be appropriate to 
consider in certain circumstances. Further, the draft Guidelines 
provide that a decision not to conduct a review for a Section 4(c) 
agreement does not relieve agencies of their obligation to consider 
environmental issues under the process of ongoing assessment and 
evaluation applicable to all trade agreements.
    A number of commenters suggested that the reviews should include an 
examination of changes expected to occur as a result of the trade 
agreement compared with the situation assuming no trade agreement. In 
order to accomplish this and to isolate any environmental impacts 
resulting from the proposed trade agreement from the other sources of 
environmental change, the draft Guidelines provide that environmental 
impacts will be analyzed in comparison to a base or baseline scenario.
    Finally, many commenters acknowledged that prescription of a 
particular methodology for environmental review of trade agreements is 
not possible, given the variety of trade agreements and the emerging 
state of methodological development. However, they stressed that 
methodologies should be objective and science-based. The draft 
Guidelines provide that analysis should be based on scientific 
information and principles, documented experience, and objective data, 
while acknowledging assumptions and uncertainties in methodologies or 
data. TEPAC also recommended that interested agencies identify sources 
of data and analytical methodologies within and outside of the U.S. 
government, which could serve as a basis for specific environmental 
analyses. In response, the draft Guidelines provide that agencies 
should use best efforts to develop such assessment capacity.

Requests To Participate in Public Hearing

    A public hearing will be held on Wednesday and Thursday, August 2 
and 3, 2000, beginning at 9:30 am, at 1724 F Street NW., Washington, DC 
20508. Persons wishing to provide oral testimony should provide written 
notification of their intention by Tuesday, July 25, 2000, to Gloria 
Blue, Executive Secretary, Trade Policy Staff Committee, Office of the 
U.S. Trade Representative, room 122, 600 Seventeenth Street, NW., 
Washington, DC 20508. The notification should include: (1) the name, 
address and telephone number of the person presenting the testimony; 
and (2) the organization represented, if any.
    Parties presenting oral testimony should also submit a written 
statement, in 20 copies, by Monday, July 31, 2000, to Gloria Blue at 
the above address. Remarks at the hearing should be limited to no more 
than ten minutes to allow for possible questions from the Chairs and 
the interagency panel. Participants should provide 20 typed copies of 
their oral statement.

Submission of Written Comments

    Persons wishing to submit written comments on the draft Guidelines 
in response to this notice should provide 20 copies no later than 
Friday, August 25, 2000. Comments should be addressed to Gloria Blue at 
the above address, marked ATTN: Draft Guidelines for Implementation of 
Executive Order 13141--Environmental Review of Trade Agreements.
    Submissions will be available for public inspection at the USTR 
Reading Room, Room 101, Office of the U.S. Trade Representative, 600 
Seventeenth Street, NW., Washington, DC. An appointment to review the 
file may be made by calling Brenda Webb at (202) 395-6186. The Reading 
Room is open to the public from 10 a.m. to 12 noon and from 1 p.m. to 4 
p.m., Monday through Friday.

Carmen Suro-Bredie,
Chair, Trade Policy Staff Committee.
Dinah Bear,
General Counsel, Council on Environmental Quality.

Guidelines for Implementation of Executive Order 13141

I. Purpose of the Guidelines

    1. The purpose of these Guidelines is to implement Executive Order 
13141, Environmental Review of Trade Agreements. They are meant to 
ensure that consideration of reasonably foreseeable environmental 
impacts of trade agreements (both positive and negative), and 
identification of complementaries between trade and environment 
objectives, are consistent and integral parts of the trade and 
environmental policymaking process.

II. Environmental Review of Trade Agreements

    1. Section 4(a) of the Executive Order identifies three categories 
of agreements for which an Environmental Review (ER) is mandated: (1) 
Comprehensive multilateral trade rounds; (2) bilateral or plurilateral 
free trade agreements; and (3) major new trade liberalization 
agreements in natural resource sectors.
    2. Section 4(c) of the Executive Order provides that ERs may also 
be done for other agreements. The decision whether to conduct an ER in 
such cases shall be based on an objective assessment of the particular 
agreement.
    3. The significance of reasonably foreseeable environmental impacts 
shall be an essential factor in determining whether to conduct an ER 
for Section 4(c) agreements. The assessment of this factor shall 
include consideration of the following:

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    a. The extent to which the agreement might affect environmentally 
sensitive resources and/or result in substantial changes in trade flows 
of products or services that could confer environmental harms or 
benefits;
    b. The extent to which the agreement might affect U.S. 
environmental laws, regulations, policies, and/or international 
commitments; and
    c. The magnitude and scope of reasonably foreseeable environmental 
impacts.
    4. In certain circumstances, it may be appropriate also to consider 
operational constraints when determining whether to conduct an ER for 
Section 4(c) agreements. Such constraints may relate to the negotiation 
timetable, the lack of available relevant data and analytical tools, 
and the relative priority among competing needs for environmental 
expertise in trade-related activities.
    5. The Executive Order anticipates that most sectoral 
liberalization agreements will not require an ER because it is expected 
that they are unlikely to result in significant environmental impacts.
    6. A decision not to conduct an ER for a Section 4(c) agreement 
will not relieve the Federal government of the obligation to consider 
environmental issues under the process of ongoing assessment and review 
applicable to all trade agreements, see Section VIII. The decision not 
to conduct an ER may be reassessed as appropriate.

III. Initiation of the Written Environmental Review Process

A. General Principles

    1. The overarching goal of the ER process is to ensure that, 
through the consistent application of principles and procedures, 
environmental considerations are integrated into the development of 
U.S. positions in trade negotiations. In order to accomplish this goal, 
the ER process should be initiated early enough to maximize the 
usefulness of environmental information and analysis for informing 
negotiating positions.
    2. Pursuant to Section 5 of the Executive Order, the ER process 
shall not be a condition for the timely tabling of specific negotiating 
position.

B. Process Considerations

    1. USTR, through the Trade Policy Staff Committee (TPSC) 
interagency process, shall initiate the ER process with a notice in the 
Federal Register as soon as possible once sufficient information exists 
concerning the scope of the proposed trade agreement. See Appendix A.
    2. Environmental issues shall be analyzed by the relevant TPSC 
subcommittee(s) conducting the negotiation or, as appropriate, by a 
working group under the subcommittee established for such purpose. For 
purposes of these Guidelines, the term Environmental Review Group (ERG) 
refers to any TPSC group tasked with the environmental review of trade 
agreements under these Guidelines.
    3. In order to expedite the initiation of the ER process for a 
particular trade agreement, it may be desirable to analyze discrete 
aspects of the proposed agreement as sufficient information becomes 
available. In all cases, the final ER document should address 
identified environmental impacts in a comprehensive manner.
    4. For some agreements that fall under Section 4(c) of the 
Executive Order, the need for an ER may not be identified until after 
specific negotiating positions have been established or are under 
development. In such cases, the ER process shall be initiated as soon 
as feasible thereafter.

IV. Determining the Scope of the Environmental Review

A. General Principles

    1. In order to target governmental resources effectively, the scope 
of the ER must be considered in advance of the analysis of potential 
environmental impacts. The early involvement of interested agencies and 
the public in the scoping process helps assure that the analysis is 
adequate and that issues are identified early in the process.
    2. The scoping process involves the identification of significant 
issues to be analyzed in depth in the ER, along with the elimination 
from detailed study of those issues which are not significant or have 
been covered by prior reviews.
    3. Scoping includes consideration of the environmental dimensions 
of the regulatory and trade policies at issue, including ways in which 
the trade agreement can complement U.S. environmental objectives.
    4. USTR, through the TPSC, shall request public comment on the 
scope of the ER through the Federal Register Notice of Initiation, and 
shall seek the views of advisory committees, including the Trade and 
Environment Policy Advisory Committee (TEPAC). See Section VI and 
Appendix A.

B. The Scoping Process

1. Overview
    a. The scoping process for the ER has two principal components: (i) 
identification of issues; and (ii) prioritization of issues. The first 
component focuses on soliciting input and determining the types of 
environmental impacts that could result from the proposed trade 
agreement. The second component focuses on prioritizing the significant 
issues that should be analyzed to determine environmental consequences 
of the trade agreement. The result of an effective scoping process is a 
targeted, analytical work plan.
    b. Issue identification and prioritization is an iterative process. 
Negotiating positions are likely to undergo continual adjustment until 
the agreement is completed. The steps taken to establish the scope of 
the ER may, therefore, be revisited throughout the process.
2. Identification of Issues
    a. This step in the scoping process is meant to identify the range 
of possible environmental concerns. However, not all issues identified 
will necessarily be analyzed in the ER. The second step in the scoping 
process, issue prioritization (described below), will be used to select 
important issues warranting analysis.
b. Solicitation of Information
    (1) The scoping process shall draw upon the knowledge of any agency 
with relevant expertise in the subject matter under consideration, as 
well as the views of the public and advisory committees.
c. Information Relevant to Scoping
    (1) Three types of information shall be considered when determining 
the scope of the ER:
    (a) The scope and objectives of the proposed trade agreement;
    (b) A realistic range of alternative approaches for accomplishing 
the broad objectives of the trade agreement; and
    (c) Types of reasonably foreseeable environmental impacts.
d. Scope of the Proposed Trade Agreement
    (1) The scope of the ER is a function of the scope of the proposed 
trade agreement. Thus, the ERG shall maintain continuing awareness of 
the negotiation goals as they evolve. Relevant TPSC working groups 
should confer with the ERG to ensure that the scope of the ER properly 
reflects emerging environmental issues.
e. Alternative Negotiating Approaches
    (1) Where a range of alternative negotiating approaches is under 
consideration for accomplishing the broad objectives of the trade 
agreement, the scoping process should be used to gain an understanding 
of important

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elements likely to be at issue in the negotiations.
    (2) Negotiating approaches identified for analysis shall be 
compared with a base or baseline scenario. Alternative approaches may 
also include consideration of methods for addressing positive and 
negative environmental impacts. See Section V.
f. Types of Reasonably Foreseeable Environmental Impacts
    (1) During the initial stages of scoping, a range of reasonably 
foreseeable environmental impacts (both positive and negative) should 
be considered for inclusion in the ER. See Appendix B. Later, as 
scoping progresses, some of the identified impacts may be eliminated 
from consideration through the process of prioritization described 
below.
    (2) Domestic impacts are necessarily the primary concern and 
priority of the Executive Order and these Guidelines. However, the 
scoping process shall also consider pursuant to Section IV.B.4, whether 
it is appropriate and prudent to examine global and transboundary 
impacts.
    (3) The ERG may consult, consistent with existing legal 
requirements, with academic, federal, state or local entities, and/or 
other interested groups that have relevant experience with economic and 
environmental analyses and modeling techniques.
3. Prioritization of Issues and Considerations for Establishing Scope
    a. Once the environmental issues have been sufficiently identified, 
the ERG shall prioritize the issues and establish the scope of the ER.
    b. Considerations for establishing ER scope include:
    (1) The relative importance placed on a particular issue by 
governmental agencies, the informed public, and/or advisory committees;
    (2) Availability of analytical tools capable of assessing 
environmental impacts at an adequate level of detail; and
    (3) Existence of opportunities for building on or incorporating by 
reference work already performed or being performed elsewhere in the 
interagency process.
4. Special Considerations for the Scoping of Global and Transboundary 
Impacts
    (1) The scoping process for every ER shall examine whether it is 
appropriate and prudent to examine such global and transboundary 
impacts.
    (2) Evaluation of whether it is appropriate and prudent to examine 
global and transboundary impacts shall include consideration of the 
following:
    (a) scope and magnitude of reasonably foreseeable global and 
transboundary impacts;
    (b) implications for U.S. international commitments and programs 
for international cooperation;
    (c) availability of necessary data and analytic tools for 
addressing impacts outside the U.S.;
    (d) diplomatic considerations;
    (e) availability of government resources.

V. Analytical Content

A. General Principles

    1. Since trade agreements exhibit broad variation, and because the 
science of environmental impact modeling is rapidly evolving, it is 
likely that each ER will incorporate uniquely tailored analytical 
approaches. A different mix of analytical methodologies will be needed 
for different types of trade agreements.
    2. Analysis shall be both qualitative and quantitative and 
environmental impacts should be analyzed on the basis of scientific 
information and principles, documented experience and objective data. 
The analytical process should take into consideration assumptions and/
or uncertainty in the data and methodologies and document any 
limitations due to those assumptions or uncertainties.

B. Analysis of Regulatory Environmental Impacts

    1. The ER shall examine the extent to which the trade agreement has 
impacts on U.S. environmental laws and obligations. Examples of such 
impacts include the ability to maintain, strengthen and enforce laws, 
regulations and policies on pollution control; control of toxic and 
hazardous wastes and materials; protection of natural resources, 
wildlife and endangered species; product standards relevant to human 
health, safety, and the environment; control and regulation of 
pesticides; food safety; and the public's ability to obtain information 
regarding the environment.

C. Analysis of Economically Driven Environmental Impacts

    1. The ER shall examine the extent to which environmental impacts 
may flow from economic changes estimated to result from the trade 
agreement. Application of modeling techniques may provide a useful 
approach for estimating such environmental impacts. However, modeling 
and other economic analytical techniques, in and of themselves, are 
unlikely to provide an exclusive means for assessing areas of 
environmental concern. For example, prevailing tools for assessing the 
economic effect of comprehensive trade agreements rely on aggregation 
of resource sectors to estimate broad trends, while estimates of 
environmental impact generally benefit from a more local or regional 
analysis.
    2. Environmental impacts will be analyzed in comparison to a base 
or baseline scenario. Such a comparison shall take into account that 
changes are likely to occur in the economy and the environment even in 
the absence of the proposed trade agreement.

D. Identifying Ways To Address Environmental Impacts

    1. Where significant environmental impacts have been identified, 
there shall be an analysis of options to mitigate negative impacts and 
create or enhance positive impacts. Options may include both changes to 
negotiating positions and also measures outside the trade agreement, 
including possible changes or additions to relevant U.S. environmental 
laws, regulations, policies, and other existing measures. To the extent 
possible, costs and benefits associated with various forms of 
mitigation or enhancement should also be assessed.
    2. Where options that address identified impacts are described in 
the ER document, they may include options for post-agreement actions 
for agencies to consider, such as actions to assess the accuracy of the 
analysis.

VI. Public Participation

    1. Provision for public participation in the review and assessment 
of environmental impacts of trade agreements is an essential component 
of these Guidelines, and is meant to ensure that the public and the 
government benefit from an open and inclusive process of trade policy 
development. In addition to public participation, the ERG shall also 
consult with advisory committees.
    2. Procedures for public participation should be flexible, not 
excessively burdensome, and responsive to needs for expedited action 
and confidentiality. The period for public comment will normally be 
forty-five days, unless a shorter or longer period is appropriate.
    3. Public notification shall be far enough in advance of critical 
junctures that, to the extent practicable, the public has a reasonable 
opportunity to prepare and submit comments to be taken into account 
during the ER process. Appendix A provides guidance on the types and 
content of public notification.

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    4. Public hearings, notices in relevant publications, web site 
postings, and other mechanisms shall be employed as appropriate and 
feasible. When the negotiating timetable permits, a public hearing or 
hearings shall normally be scheduled.

VII. Documentation of the Environmental Review Process

A. General Principles

    1. The primary purpose for documenting the ER is to memorialize the 
process and explain the rationale for the conclusions reached. 
Documentation also provides numerous opportunities for integrating 
environmental considerations into negotiating positions. To that end, 
the Draft ER, along with public comments, shall serve as a means of 
informing the negotiation process.
    2. In addition to informing the public, the Final ER should serve 
as a record for subsequent ERs so that lessons can be learned and 
information drawn from the effort.
    3. In order to factor environmental considerations into the 
development of trade negotiations, relevant work products resulting 
from the ER process should be completed far enough in advance to be of 
benefit to the U.S. trade negotiators. However, pursuant Section 5 of 
the Executive Order, completion of ER documentation shall not be a 
condition for the timely tabling of specific negotiating positions.
    4. The need for confidentiality shall be taken into account when 
developing ER documentation.

B. The Environmental Review Documents

    1. Consistency in the ER process, to the extent allowed by 
variations in trade agreements, should be reflected through a 
consistent documentation format and content. Appendix C provides 
information on the structure and content that shall normally be 
followed for draft and final ER documents.
    2. All ER documentation shall be written in plain language and 
shall provide the rationale for the scope of the analysis and the 
selected methodology. The ER documents shall also include a summary of 
key points raised in public comments.
    3. A Draft ER document for public comment shall normally be 
prepared. However, in unusual circumstances, such as when a trade 
agreement is to be completed under a compressed negotiating schedule, a 
Draft document may not be possible. In such cases, the Final ER 
document shall be issued publically as soon as is feasible following 
the conclusion of the trade agreement.
    4. As deemed appropriate by USTR through the TPSC process, amended 
ER document(s) (draft and/or final) may be completed and made available 
to the public when negotiations lead to a trade agreement with 
environmental implications that are substantially different from those 
analyzed.

VIII. The Process of Ongoing Environmental Assessment and 
Evaluation

    1. It is the continuing responsibility of the Federal government to 
factor environmental considerations into the development of its trade 
negotiating objectives and positions. This is accomplished for all 
trade agreements through a process of ongoing assessment and 
evaluation, including those cases where an ER is not conducted.
    2. USTR shall facilitate the process of ongoing assessment and 
evaluation of trade agreements through early consultations with 
interested agencies, advisory committees and the public. In notices 
USTR issues requesting comment on broad issues early in the development 
of a trade agreement, USTR shall also normally request comment on 
environmental issues.
    3. Agencies should bring important environmental issues to the 
attention of the relevant TPSC subcommittee(s). If post-agreement 
actions are warranted or desirable, they may be undertaken by the 
responsible agency.
    4. Agencies shall use best efforts to identify sources of data and 
analytical methodologies available within and outside of the U.S. 
government, which would then provide a foundation for subsequent 
specific environmental analyses. A list of such sources shall be 
created and made available to the public. The list may be updated over 
time, including on the basis of comments from the public.

IX. Administrative Considerations

A. Roles and Responsibilities

    1. Regardless of whether a written ER is mandated, USTR shall 
initiate the TPSC process for examining environmental issues as early 
as feasible in the consideration of potential trade agreements. For 
those agreements falling within the 4(c) category, USTR, through the 
TPSC, shall also determine whether an agreement warrants an ER. The 
decision whether to proceed with an ER shall be reflected in the TPSC 
paper(s) initiating negotiations. These paper(s) shall include, as 
appropriate, discussion of the environmental issues identified at this 
early stage in the TPSC process, and recommendations on how they should 
be addressed.
    2. USTR, through the TPSC, shall conduct the ER. Environmental 
issues shall be analyzed by the relevant TPSC subcommittee(s) 
conducting the negotiation and/or, as appropriate, an ERG established 
for such purpose. Membership in the ERG shall be open to all interested 
agencies, and shall include, at a minimum, those agencies with relevant 
expertise in economic and environmental assessment.
    3. In order for the Executive Order to be effectively implemented, 
it is essential that adequate resources be available. Upon request from 
USTR, with the concurrence of the Deputy Director for Management of the 
Office of Management and Budget, Federal agencies shall, to the extent 
permitted by law and subject to the availability of appropriations, 
provide analytical and financial resources and support, including the 
detail of appropriate personnel to USTR to carry out these Guidelines.
    4. While environmental analyses of an agreement shall draw upon 
multiple agency perspectives, CEQ and agencies with environmental 
expertise shall play a prominent role in the conduct of environmental 
reviews. Environmental agencies shall bear principal responsibility for 
providing the expertise necessary to analyze impacts on environmental 
media and natural resources within their areas of specialization.

B. Implementation and Oversight

    1. CEQ and USTR shall jointly exercise general oversight of the 
implementation of these Guidelines including their periodic review and 
update as necessary.
    2. These Guidelines are intended only to improve the internal 
management of the executive branch and do not create any right, 
benefit, trust or responsibility, substantive or procedural, 
enforceable at law or equity by a party against the United States, its 
agencies, its officers or any person.

Appendix A: Public Participation Considerations

    This appendix provides details on the format for particular 
elements of public participation described in the Guidelines. The 
time between key steps in the trade negotiation process will vary 
depending on the type and scope of the proposed agreement as well as 
the dynamics of the negotiation. For that reason, the precise number 
and timing of Federal Register notices and other mechanisms for 
public participation cannot be prescribed with specificity.

[[Page 42749]]

Federal Register notices shall also normally be posted on USTR's 
internet web site.

I. Minimum Requirements for Public Participation in Environmental 
Review Process

    A. At a minimum, the public shall be involved at the following 
stages of the Environmental Review process:
    1. Notice of Intent to Conduct Environmental Review (may be 
combined with other notices USTR issues early in the development of 
a trade agreement)
    2. Notification of Intent to Initiate Environmental Review and 
Request for Comments on the Scope of Environmental Review
    3. Notification of Availability of the Draft Environmental 
Review document and Request for Comments (in the normal case where a 
draft document is prepared)
    4. Notification of Availability of the Final Environmental 
Review document
    B. USTR shall also normally seek public views on environmental 
issues though periodic meetings with advisory committees and the 
interested public.

II. Guidance for Particular Public Notifications

A. Notice of Intent to Conduct Environmental Review

    1. USTR shall notify the public of a decision to conduct an 
Environmental Review of the agreement. This notice may be combined 
with USTR notices requesting comment on broad issues early in the 
development of a trade agreement, which normally will request 
comment on environmental issues.

B. Notice of Intent to Initiate Environmental Review and Request for 
Comments on Scope

    1. The notice and request shall normally provide information on 
the following subjects:
    a. key US negotiating objectives,
    b. the elements and topics expected to be under consideration 
for coverage by the proposed agreement,
    c. the countries expected to participate in the agreement,
    d. the sectors of the US economy likely to be affected (if 
known),
    e. environmental issues already identified through the 
interagency process as potentially significant.
    2. The notice may also explain how the public can obtain more 
information about the scoping process.
    3. It may be possible to combine this notice with Federal 
Register notices issued for other purposes (e.g., when USTR issues 
requests comment on broad issues associated with the trade agreement 
early in its development).
    4. It may also be appropriate to request comments on the scope 
of the environmental review on multiple occasions as new information 
emerges and/or negotiating objectives shift.

C. Notice of Availability of Draft Environmental Review Document and 
Request for Comments

    1. In the normal circumstance where a Draft Environmental Review 
document is prepared, the Draft ER shall be made available to the 
public through publication of a notice of availability in the 
Federal Register, and comments from the public will be requested.

D. Notice of Availability of Final Environmental Review Document

    1. The Final Environmental Review document shall be made 
available to the public through publication of a notice of 
availability in the Federal Register.

E. Availability of Public Comments

    1. Public comments on environmental issues relating to the 
particular trade agreement shall be available for public review in 
the USTR reading room.

F. Revision of Guidelines

    1. USTR and CEQ through the TPSC may on occasion find it 
appropriate to revise and/or update these Guidelines. Public 
participation in the revision process shall include notification of 
the intent to revise and an opportunity for public comment on any 
significant revisions.

Appendix B: Types of Potential Environmental Impacts for Consideration

    This appendix provides a list of types of impacts and may be 
useful for identifying the range of reasonably foreseeable 
environmental impacts for a proposed trade agreement. The list is 
illustrative and is intended to provide a general frame-of-reference 
for assisting in establishing the scope of the ER. The scope of any 
review must be determined on a case-by-case basis and all reasonably 
foreseeable environmental effects, both positive and negative, 
should be considered during scoping for the environmental review 
whether or not they are included on this list.
    Scoping with respect to economic effects typically will result 
from an iterative exchange between those responsible for economic 
analysis and those with expertise in various areas of environmental 
concern. Similarly, with respect to the potential effects on 
environmental regulations of proposed trade disciplines, the scoping 
will typically involve an iterative exchange between those expert in 
the development and interpretation of trade texts and those expert 
in the development and interpretation of various fields of 
environmental regulation.

I. Regulatory Effects

    A. Potential impacts of the proposed trade agreement on U.S. 
environmental regulations, statutes, other binding obligations such 
as multilateral environmental agreements.
    B. Potential impacts of the proposed trade agreement on 
environmental policy instruments and other commitments.

II. Economic Effects (Compared to a Base or Projected Baseline)

    A. Products, processes, environmentally sensitive sectors or 
regions that may be affected by the proposed trade agreement.
    B. Changes in types or characteristics of goods and services and 
their distribution.
    C. Changes in volume, pattern, and modes of transportation 
(e.g., relating to invasive species or pollution impacts of 
transportation equipment and infrastructure).
    D. Structural changes (e.g., expansion or contraction of an 
environmentally sensitive sector in a certain country or region).
    E. Technology effects involving changes in the process of 
production, including use of environmentally responsible technology.
    F. Effect of the size of economies involved.

III. Environmental Effects (Related to Economic Effects Identified 
Above)

    A. Changes in level, intensity, geographic distribution and 
temporal scope of variables used to measure the affected environment 
in comparison with base values (using either base year or baseline 
trend as appropriate).
    B. Interaction of trade-related impacts with other impacts on 
the relevant media or resources.
    C. Environmental effects resulting from any changes of standards 
that stem from economic effects.

IV. Environmental Media and Resources

    A. Air quality and atmosphere (including climate, ozone).
    B. Fresh water quality and resources (including both surface and 
ground), soil retention and quality.
    C. Protected or environmentally sensitive terrestrial and marine 
areas, (e.g., national parks, national wildlife refuges, wetlands, 
marine sanctuaries).

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    D. Endangered species and other species identified as 
significant under law (e.g., marine mammals, migratory birds).
    E. Marine, aquatic and terrestrial biodiversity, including 
species, genetic variety and ecosystems and the potential for 
invasive species to compromise such biodiversity; also ecosystem 
productivity and integrity, living resources and ecosystem services.
    F. Environmental quality related to human health, including 
changes in environmental exposure to toxic substances (e.g., 
increases or decreases in exposure to pesticide residues on food).
    G. Transboundary and global impacts may include those on:
    1. Places not subject to national jurisdiction or places subject 
to shared jurisdiction, such as Antarctica, atmosphere (including 
ozone and climate change features), outer space, and the high seas;
    2. Migratory species, including straddling and highly migratory 
fish stocks and whale;
    3. Impacts relating to other environmental problems identified 
by the international community as having a global dimension and 
warranting a global response;
    4. Transboundary impacts involving the boundaries of the United 
States.

Appendix C: Structure and Content of Environmental Review Documents

    This appendix provides details on the structure and content of 
the draft and final environmental review documents. In certain 
circumstances (e.g. confidentiality, compressed schedule) it may be 
necessary to adopt a modified documentation format, however, each ER 
document shall normally consist of the following sections:
    (1) Summary
    (2) Table of Contents
    (3) Objectives of the Proposed Trade Agreement
    (4) Scope of Environmental Impacts Reviewed
    (5) Environmental Impacts & Response Options
    (6) Findings and Conclusions
    (7) List of Preparers
    (8) Appendices

I. Guidance for Particular ER Document Sections

    A. The Objectives section of the ER document should present an 
overview of the goals and negotiating history of the particular 
trade agreement under consideration. This section may highlight the 
perceived benefits of the agreement and related objectives for 
pursuing it.
    B. The Scope of Impacts section should describe only those 
resources and/or regulations that were selected for review through 
the scoping process. This section should not be a compendium of all 
potentially impacted areas, but only those considered by the ERG to 
be sufficiently important to warrant analysis in the ER. This 
section of the ER document should also provide a brief presentation 
of the rationale employed during the issue prioritization process 
and the criteria used for establishing the scope of the ER and 
eliminating issues deemed irrelevant.
    C. The Environmental Impacts section of the document should 
describe the expected impacts of those negotiating positions 
selected for review, which should be compared to a base or baseline 
scenario that estimates conditions that would exist in the absence 
of the proposed trade agreement. The described impacts should 
include both beneficial and adverse impacts. This section should 
summarize the analytical methodology used in determining the 
environmental impacts, including assumptions made and uncertainties 
in the data and methodology (a description of the methodology may 
best be provided in an appendix). The Environmental Impacts section 
of the ER document may also include a description of actions 
proposed for addressing negative impacts and/or for enhancing 
beneficial consequences of the proposed trade agreement.
    D. The Conclusions section of the document should summarize the 
potential environmental impacts expected from the proposed trade 
agreement, and may present options for addressing those impacts. 
This section of the document may also include discussion of any 
post-agreement actions when responsible agencies determine that such 
actions are warranted or desirable.
    E. The number and nature of Appendices for each Environmental 
Review document will vary according to the nature of the trade 
agreement under review. In general, the use of appendices is 
encouraged whenever inclusion of technical and/or supporting data 
would improve clarity and aid in the understanding of the review 
process. At a minimum, a summary of key issues identified by the 
public during the ER process should be included as an appendix of 
both the draft and final ER documents.
[FR Doc. 00-17418 Filed 7-10-00; 8:45 am]
BILLING CODE 3190-01-U