![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Request for Public Comment: Draft Guidelines for Implementation of Executive Order 13141: Environmental Review of Trade Agreements Notice of Public Hearing
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 11, 2000 (Volume 65, Number 133)]
[Notices]
[Page 42743-42750]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy00-122]
=======================================================================
-----------------------------------------------------------------------
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
-----------------------------------------------------------------------
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:
[[Page 42746]]
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
[[Page 42747]]
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.
[[Page 42748]]
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).
[[Page 42750]]
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