[Federal Register Volume 65, Number 244 (Tuesday, December 19, 2000)]
[Notices]
[Pages 79442-79449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32238]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
Council on Environmental Quality
Guidelines for Implementation of Executive Order 13141:
Environmental Review of Trade Agreements
AGENCY: Office of the United States Trade Representative and Council on
Environmental Quality.
ACTION: Guidelines for implementation of Executive order 13141-
environmental review of trade agreements: final.
-----------------------------------------------------------------------
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 careful assessment and consideration
of the environmental impacts of trade agreements, including, in certain
instances, 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.
The procedures called for by the Executive Order (the Guidelines)
are published below. USTR and CEQ developed the Guidelines through an
extensive public process and consultations with appropriate foreign
policy, environmental, and economic agencies and Congress. USTR and CEQ
have carefully taken public views into account in finalizing the
Guidelines, and the final Guidelines endeavor to reflect many of them.
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:
A. Background
Executive Order 13141 builds on U.S. experience with written
environmental reviews of previous trade agreements, including the North
American Free Trade Agreement (1991-92 and 1993), the Uruguay Round
Agreements (1994), and the proposed Accelerated Tariff Liberalization
initiative with respect to forest products (1999). The Order
institutionalizes the use of environmental reviews as an important tool
to help identify potential positive and negative environmental effects
of certain major trade agreements, and to facilitate consideration of
appropriate responses where effects are identified. Pursuant to the
Order, environmental reviews, along with a process of ongoing
assessment and evaluation, should help shape trade agreements that
contribute to the broader goal of sustainable development. The Order is
available on USTR's internet web site at www.ustr.gov.
USTR and CEQ developed the Guidelines called for by the Order in
consultation with interested agencies on the Trade Policy Staff
Committee (TPSC), including the Departments of Agriculture, Commerce,
Energy, Interior, Justice, State, Treasury and Transportation, the U.S.
Environmental Protection Agency, and the U.S. Agency for International
Development. The TPSC, established under section 242 of the Trade
Expansion Act of 1962, as amended (19 U.S.C. section 1872), is the
principal staff-level mechanism for interagency decisionmaking on U.S.
trade policy. The current participants in the TPSC process for purposes
of the Guidelines include agencies with relevant environmental,
economic and foreign policy expertise. See Guidelines, Appendix A.\1\
---------------------------------------------------------------------------
\1\ 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 the purview (e.g., instructions to negotiators on
specific issues relevant to a given trade agreement). These
recommendations take the form of a paper, which must then be cleared
by agencies on the TPSC.
---------------------------------------------------------------------------
As part of the process for developing the Guidelines, USTR and CEQ
sought to involve interested members of the public at significant
stages. At the outset, USTR and CEQ requested public comment concerning
issues the agencies should consider in developing the guidelines, and
received twenty-two sets of written comments. 65 FR 9757 (Feb. 22,
2000). USTR and CEQ also requested comment on draft guidelines
published in July, 2000, and received twenty-five sets of written
comments. 65 FR 42,743 (July 11, 2000). Eight individuals and
organizations presented testimony with regard to the draft guidelines
at the August 2 public hearing. All written comments and a
[[Page 79443]]
transcript of the hearing are available for public inspection in USTR's
reading room located at 600 17th Street NW., Washington, DC 20508.
USTR and CEQ also consulted extensively with the Trade and
Environmental Policy Advisory Committee (TEPAC), as well as other
interested advisory committees. TEPAC is part of the trade advisory
committee system established by Congress to provide private sector
information and advice on the priorities and direction of U.S. trade
policy. TEPAC sponsored several workshops on the Guidelines for TEPAC
members and other participants, which were open to the public. USTR,
CEQ, and other interested agencies participated in the public
workshops. TEPAC also submitted a divided recommendation prior to
publication of the draft Guidelines, and USTR and CEQ consulted
informally with interested TEPAC members throughout the development of
the Guidelines.
In addition, USTR and CEQ drew upon agencies' experience gained to
date in implementing the Executive Order in the review of the Jordan
Free Trade Agreement negotiations, see 65 FR 58,342 (September 28,
2000), and in planning for the review of the Free Trade Area of the
Americas negotiations. See 65 FR 75,763 (Dec. 4, 2000).
B. Public Comments
The views of the public played a significant role in shaping the
final Guidelines. USTR and CEQ benefitted from numerous constructive
comments provided by the public in written comments and at the August
2, 2000 hearing. Public views reflected many different perspectives,
including those of environmental organizations, industry, and
agriculture.
Public comments generally supported the overall goals of the
Executive Order and Guidelines, and noted that the draft Guidelines
represented a significant step forward toward achieving those goals.
However, a number of commenters expressed concern that the draft
Guidelines were insufficiently specific concerning how environmental
considerations would actually be integrated into the development of
U.S. trade negotiating objectives. Some of these commenters also
advocated more robust consideration of alternatives than provided for
in the draft Guidelines. Some commenters also favored more explicit
provision for engaging the public early in the negotiating process to
allow for a meaningful public role in shaping overall trade objectives
and negotiating positions. In particular, these commenters emphasized
that early public engagement would assist in identifying ``win-win''
opportunities where the opening of markets and reduction or elimination
of subsidies may yield environmental benefits.
From another perspective, other commenters were concerned that the
process outlined in the draft Guidelines was too prescriptive and
inflexible, and could thus hamper trade negotiators. A number of
commenters emphasized the need to ensure that reviews would be based on
an objective, impartial analysis of environmental effects and sound
scientific principles. They requested that the final Guidelines clarify
that positive as well as negative impacts would be considered, and
stressed that all government agencies with relevant expertise and all
interested advisory committees should be involved in the reviews.
Commenters differed concerning the degree to which reviews should
address global and transboundary environmental impacts. Several
commenters favored creating a presumption in favor of reviewing such
effects, while others argued that the reviews should normally be
limited to impacts within the United States.
Several commenters requested that the final Guidelines provide for
greater transparency in the negotiation process, including the release
of draft negotiating texts. While acknowledging that confidentiality
for some aspects of the negotiation might be appropriate, these
commenters argued that non-disclosure should be kept to a minimum, and
that cleared advisors should be used where confidentiality was
unavoidable.
Concerning agency roles, a number of commenters contended that CEQ
and environmental agencies should have a more prominent role in
conducting the reviews, while others argued that their role should be
less prominent. Several commenters criticized the way in which
governmental resource constraints were reflected in the draft
Guidelines and urged that reviews should not be conditioned on the
availability of resources.
Finally, several commenters pointed out that the draft Guidelines
omitted reference to possible implications of trade agreements for
state and local (as well as federal) environmental regulatory
authorities.
C. Principal Revisions to the Draft Guidelines
The final Guidelines have strengthened and clarified provisions
pertaining to early and proactive integration of environmental and
trade policy objectives. Specifically, Sections I and II of the
Guidelines expressly acknowledge that the written environmental review
process is not the sole means of integrating environmental concerns and
goals into a proposed trade agreement, and make clear that public input
will be sought even where no written environmental review is conducted
(Section II.7). The final Guidelines also clarify that informal public
outreach and consultations shall take place at an early stage in the
review process, and that information received at this stage will be
used to inform the development of U.S. negotiating objectives and
positions (Section III, A and B).
The final Guidelines provide further clarification that reviews
will consider positive as well as negative potential impacts of trade
agreements (see, e.g., Section IV.B.2, and Appendix C) and that
analysis will be objective and scientific (Section V.A.2). Objectivity
and balance in the reviews are further advanced through the active
involvement of a broad range of government agencies (Section VIII.A.5)
and relevant advisory committees (see, e.g., sections VI.6 and IV.4).
The final Guidelines also provide clarifications regarding possible
state, local, and tribal governmental regulatory issues (Sections
IV.B.2.b, V.B.1 and appendix C).
The final Guidelines make explicit (in a new Section IV.C) that the
extent of the analysis shall be proportionate to the significance of
anticipated environmental impacts. Where initial steps in the review
process indicate that environmental impacts are likely to be de
minimis, it will normally be appropriate to abbreviate the analysis.
Concerning global and transboundary impacts, the final Guidelines
provide some additional clarification to ensure that potential global
and transboundary impacts are appropriately identified in the scoping
process (Section V.B.5). However, the general approach of the draft
Guidelines has been retained in conformity with the Executive Order,
which provides that the focus of the review should be on impacts in the
United States, and examination of global and transboundary impacts may
be included as appropriate and prudent.
The final Guidelines include a new provision concerning
transparency and confidentiality in the review process (Section VI.6).
This is a difficult and complex issue, which has implications beyond
the scope of the Order and the Guidelines. The United States believes
that transparency and openness are vital to ensuring public
understanding and support for international trade policy, and is at the
forefront of efforts to improve transparency in the world
[[Page 79444]]
trading system. The United States is also committed to keeping the
public informed about trade negotiations and engaging in regular
dialogue with interested stakeholders. However, disclosure of certain
information to foreign governments could compromise the ability of
trade negotiators to obtain the best outcome for national interest.
Therefore, it is important to maintain a degree of confidentiality
concerning development of U.S. negotiating objectives and positions and
the conduct of negotiations.
The final Guidelines endeavor to strike a balance between these
goals. They state that sufficient information shall be provided to the
public to facilitate understanding and involvement in a meaningful
manner concerning U.S. negotiating objectives and the environmental
review process. However, to the extent that disclosure would impair the
United States' ability to develop negotiating objectives or conduct
negotiations, or would compromise proprietary or confidential
information, issues shall be addressed, where appropriate, through the
advisory committee system of cleared advisors.
The final Guidelines make clear that CEQ and USTR shall jointly
oversee the implementation of the Executive Order, including the
Guidelines, and consult at the outset of each review (Section VIII.A.1,
5). The final Guidelines also modify references to the role of
governmental resources (for example, the specific reference to
resources in connection with consideration of global and transboundary
effects is deleted, see Section V.B.5). However, because adequate
resources are critical to the effective implementation of the Order and
Guidelines, several provisions address the resource issue (Sections
II.5, VIII.A.2 and 6). Additional language clarifies that agencies
shall seek adequate resources to carry out their responsibilities
within their planning budgets (Section VIII.A.6).
Finally, the Guidelines are intended to be a living document. CEQ
and USTR retain the ability to revise the Guidelines, in consultation
with other agencies, advisory committees and the public, as experience
is gained with applying them to particular reviews (Section VIII.B.1).
If CEQ and USTR conclude that revision is appropriate, the public shall
be notified of the intent to revise and be given an opportunity to
comment on significant revisions.
Carmen Suro-Bredie,
Chair, Trade Policy Staff Committee, Office of the U.S. Trade
Representative.
Dinah Bear,
General Counsel, Council on Environmental Quality.
Guidelines for Implementation of Executive Order 13141 Council on
Environmental Quality and the United States Trade Representative
I. Purpose of the Guidelines
1. The Council on Environmental Quality (CEQ) and the United States
Trade Representative (USTR) issue these Guidelines pursuant to
Executive Order 13141, Environmental Review of Trade Agreements (the
Order). The purpose of the Guidelines is to implement the Order so as
to ensure that consideration of reasonably foreseeable environmental
impacts of trade agreements (both positive and negative), and
identification of complementarities between trade and environmental
objectives, are consistent and integral parts of the policymaking
process.
2. The primary focus of the Order and these Guidelines is on the
process for evaluating the environmental implications of certain major
proposed trade agreements, which will be the subject of written
environmental reviews (ERs). In addition, as recognized by the Order,
the broader goal of sustainable development shall also be advanced
through an ongoing process of assessment, evaluation and public
consultation by responsible Federal agencies, even where no ER is
conducted.
II. Environmental Review of Trade Agreements
1. Section 4(a) of the Order identifies three categories of
agreements for which an ER is mandated in light of their potential for
significant environmental impacts: (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(b) of the Order provides that agreements reached in
connection with enforcement and dispute resolution actions are not
covered by the Order.
3. Section 4(c) of the Order provides that ERs may also be
warranted for other agreements. A decision to initiate the ER process
for a Section 4(c) agreement shall be based on objective criteria.
4. The significance of reasonably foreseeable environmental impacts
shall be an essential factor in determining whether to conduct an ER
for a section 4(c) agreement. The assessment of this factor shall
include consideration of the following criteria:
a. The extent to which the agreement might affect environmentally
sensitive media and 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;
c. The magnitude and scope of reasonably foreseeable environmental
impacts; and
d. The magnitude of anticipated changes in trade flows.
5. In certain circumstances, additional factors, such as
negotiation timetables and the availability of relevant data,
analytical tools and expertise, may be considered in decisions
regarding section 4(c) agreements.
6. The 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.
7. 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 consultations,
assessment and evaluation applicable to the negotiation of all trade
agreements. As part of that process, USTR shall facilitate
identification of any relevant environmental issues by providing
opportunities for engaging the public, as well as through the early
initiation of the Trade Policy Staff Committee (TPSC) process.\1\
---------------------------------------------------------------------------
\1\ The Trade Policy Staff Committee (TPSC), established under
section 242 of the Trade Expansion Act of 1962, as amended, 19
U.S.C. section 1872, is the principal staff-level mechanism for
interagency decisionmaking on U.S. trade policy. The current
participants in the TPSC process with respect to the implementation
of these Guidelines include all agencies with relevant
environmental, economic and foreign policy expertise. See Appendix
A.
---------------------------------------------------------------------------
8. The decision not to conduct an ER for a Section 4(c) agreement
may be reassessed as appropriate.
III. Initiation of the 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. trade negotiating objectives and positions. The process is
intended to provide timely information
[[Page 79445]]
that will enable trade policymakers and negotiators to understand the
environmental implications of possible courses of action.
2. The goals of the ER process shall be achieved through a variety
of formal and informal means, flexible enough to accommodate the
different types of trade agreements and negotiating timetables. Early
in the negotiating process, public views on the broad objectives of the
proposed agreement shall be sought through informal public outreach and
consultation. As more is known about the shape of the proposed
agreement, the process shall become more formal and analytical, leading
to the issuance of the written ER documents.
3. Pursuant to Section 5 of the Order, while an ER shall be
undertaken sufficiently early in the negotiating process to inform the
development of negotiating positions, it shall not be a condition for
the timely tabling of specific negotiating positions.
B. Early Outreach and Consultations
1. When negotiation of the prospective trade agreement is first
under consideration, USTR, through the TPSC, shall seek information
regarding potential environmental concerns and benefits associated with
the commercial practices and trade policies under consideration. This
shall be accomplished through an ongoing, flexible process of
consultation with Congress, the interested public, and advisory
committees, and, in the normal case, Federal Register notice(s)
requesting public comment on environmental issues and other issues
concerning the negotiations. See Appendix B.
2. By virtue of their relevant expertise, TPSC agencies play an
important role in the development of trade policies and objectives.
Accordingly, throughout the ER process they shall provide analytical
expertise and shall bring important environmental issues to the
attention of the relevant TPSC subcommittee(s) in a timely manner.
3. The environmental information developed in this early stage
shall inform the development of U.S. negotiating objectives and
positions.
C. Initiating the Written Environmental Review
1. USTR, through the TPSC, shall initiate the formal written 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, allowing for the meaningful evaluation of its
potential environmental ramifications. See Appendix B.
2. Environmental issues shall be analyzed by the relevant TPSC
subcommittee(s) or, as appropriate, by a working group under the
subcommittee(s). 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 issues 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. The scoping process involves the identification of significant
issues to be analyzed in depth in the written ER, along with the
elimination from detailed study of those issues which are not
significant or have been covered by prior reviews.
2. The early involvement of agencies with relevant expertise and
the public in the scoping process helps assure that analysis is
adequate and that issues are identified in a timely manner.
3. Scoping includes consideration of the environmental dimensions
of the commercial practices and trade policies at issue, including ways
in which the potential 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 Intent to
Initiate Environmental Review, and shall seek the views of interested
advisory committees, including the Trade and Environment Policy
Advisory Committee (TEPAC). See Section VI and Appendix B.
B. The Scoping Process
1. Overview
a. The scoping process for the ER has two principal components: (i)
identification of issues; and (ii) selection and prioritization of
issues for review. 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 selecting
and prioritizing the significant issues that should be analyzed to
determine the environmental consequences of the trade agreement, if
any. 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 negotiations.
2. Identification of Issues
a. This step in the scoping process is meant to identify the range
of possible environmental impacts (both positive and negative)
associated with the trade agreement under consideration. However, not
all issues identified will necessarily be analyzed in the ER. The
second step in the scoping process, issue selection and prioritization
(described below), will be used to select important issues warranting
further 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 Congress, the public, and advisory committees.
(2) Where matters affecting state, local and tribal government
regulatory authority may be at issue, USTR shall consult with the
Intergovernmental Policy Advisory Committee (IGPAC) and other
appropriate sources of information.
3. Information Relevant to Scoping
a. Three types of information shall be considered when determining
the scope of the ER:
(1) the scope and objectives of the proposed trade agreement;
(2) a realistic range of alternative approaches for accomplishing
the broad objectives of the trade agreement; and
(3) types of reasonably foreseeable environmental impacts.
b. Ascertaining the Scope of the Proposed Trade Agreement
(1) The scope of the ER is a function of the scope and objectives
of the proposed trade agreement and the range of realistic approaches
for achieving those objectives. Thus, there should be a close and
interactive relationship
[[Page 79446]]
between the ERG and the TPSC subcommittee(s) responsible for the
negotiation.
(2) The ERG shall maintain continuing awareness of U.S. negotiating
goals as they evolve and ensure that the scope of the ER properly
reflects emerging environmental issues.
c. Ascertaining Options for Analysis
(1) Scoping shall be used to assist in identifying possible
alternative negotiating approaches and options for accomplishing the
broad objectives of the trade agreement, including approaches for
achieving environmental benefits. Options may also include
consideration of methods for addressing positive and negative
environmental impacts.
(2) The scoping process shall be used to gain an understanding of
options or approaches reflecting a realistic range of possible
negotiating outcomes. However, the options analyzed during the ER
process shall not constrain trade negotiators from considering others.
d. Ascertaining 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 C. Later, as
scoping progresses, some of the identified impacts may be eliminated
from consideration through the process of prioritization and analysis
described below.
(2) Domestic impacts are necessarily the primary concern and
priority for an ER conducted under the Executive Order and these
Guidelines. However, the scoping process shall also consider, pursuant
to Section IV.B.5, whether it is appropriate and prudent to examine
global and transboundary impacts.
(3) Consistent with existing legal requirements, the ERG may
consult with academic, federal, state or local entities, and/or other
interested groups that have relevant experience with economic and
environmental analyses and modeling techniques.
4. Selection and Prioritization of Issues and Considerations for
Establishing Scope
a. Once environmental issues have been sufficiently identified, the
ERG shall select and prioritize the issues and establish the scope of
the ER.
b. Considerations for establishing ER scope include:
(1) the perceived significance of potential environmental impacts;
(2) the relative importance placed on a particular issue by
governmental agencies, the public, and/or advisory committees;
(3) availability of analytical tools capable of assessing
environmental impacts at an adequate level of detail;
(4) existence of opportunities for building on, or incorporating by
reference, work already performed or being performed elsewhere in the
interagency process, so that the ER is not duplicative of other
efforts.
5. Special Considerations for the Scoping of Global and Transboundary
Impacts
(1) The scoping process for every ER shall be used to identify
whether reasonably foreseeable global and transboundary impacts might
be associated with the proposed trade agreement.
(2) Evaluation of whether it is appropriate and prudent to analyze
global and transboundary impacts in the ER shall include consideration
of the following:
(a) scope and magnitude of reasonably foreseeable global and
transboundary impacts;
(b) implications for U.S. interests, including international
commitments and programs for international cooperation;
(c) availability of relevant data and analytic tools for addressing
impacts outside the United States, including reviews performed by other
countries involved in negotiations or by regional or international
organizations; and
(d) diplomatic considerations.
C. Outcome of the Scoping Process
1. Once the scoping process has identified and prioritized
significant issues that warrant further analysis, the ERG shall plan
how to proceed, taking into account that the analysis should be
proportionate to the significance of anticipated impacts. Where initial
steps in the ER process indicate that environmental impacts are likely
to be de minimis, it will normally be appropriate to abbreviate the
analysis.
V. Analytical Content of the Review
A. General Principles
1. Since trade agreements exhibit broad variation, it is likely
that each ER will incorporate uniquely tailored analytical approaches.
A different mix of analytical methodologies may be needed for different
types of trade agreements.
2. The analysis shall entail an objective, rigorous assessment of
the environmental issues under consideration, and shall be based on
scientific information and principles, documented experience and
objective data. Analysis shall normally be both qualitative and
quantitative. The analytical process should take into consideration
assumptions and/or uncertainty in the data and methodologies and
document limitations due to those assumptions or uncertainties.
3. 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 reviews. 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 public comments.
B. Analysis of Implications for Environmental Laws and Regulations
1. The ER shall examine the extent to which the proposed trade
agreement may have implications for U.S. environmental regulations,
statutes and other obligations and instruments. The ER should also
analyze, as appropriate, any implications that the agreement may have
regarding the ability of state, local, and tribal authorities to
regulate with respect to environmental matters.
2. Examples of possible regulatory implications include impacts on
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; relevant product standards; 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 positive and negative
environmental impacts may flow from economic changes estimated to
result from the trade agreement. See Appendix C.
2. 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.
[[Page 79447]]
3. Environmental impacts shall be analyzed in comparison to a base
or baseline scenario. A baseline comparison shall take into account
those changes that 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. Key findings and supporting analysis of the ER shall be made
widely available to trade negotiators of the proposed agreement, as
well as to trade and environmental policymakers throughout the
government.
2. Where significant regulatory and/or economically driven
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 changes to negotiating positions as well
as environmental policy responses outside the trade agreement, such as
seeking possible changes to relevant U.S. domestic and international
environmental policies.
3. 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.
2. In addition to the public, advisory committees and Congress
shall regularly be consulted.
3. Procedures for public participation should be flexible, not
excessively burdensome, and responsive to needs for expedited action
and confidentiality. The period for public comment shall normally be
forty-five days, unless a shorter or longer period is appropriate.
4. Requests for public comment shall be far enough in advance of
critical junctures in the negotiation so 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 B provides guidance on the types and content of public
notification and participation.
5. Public hearings, notices in relevant publications, website
postings, and other mechanisms shall be employed as appropriate and
feasible. When the negotiating timetable permits, a public hearing or
hearings shall normally be conducted.
6. Consistent with the United States' commitment to transparency
and openness in the conduct of trade negotiations, sufficient
information shall be provided to the public to facilitate understanding
and involvement in a meaningful manner concerning U.S. negotiating
objectives and the ER process. To the extent that such disclosure would
impair the United States' ability to develop negotiating objectives or
conduct negotiations, or would compromise proprietary or confidential
information, issues shall be addressed, where appropriate, through the
advisory committee system of cleared advisors.
VII. Documentation of the Environmental Review Process
A. General Principles
1. Documentation is important for memorializing the ER process and
explaining the rationale for the conclusions reached. Documentation
also provides opportunities for integrating environmental
considerations into negotiating positions. To that end, the Draft ER
document, along with public comments, shall serve as one key means of
informing the negotiation process.
2. In addition to informing the public, Final ER documents should
serve as points of reference 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 steps and work products in
the ER process should be undertaken sufficiently early to be of benefit
to U.S. trade negotiators in developing negotiating positions.
4. Confidentiality concerns shall be taken into account when
developing the Draft and Final ER documents and preparing them for
public release.
B. The Environmental Review Documents
1. Consistency in the ER process, to the extent feasible given the
variations in trade agreements, should be reflected through a
consistent documentation format and content. Appendix D provides
information on the structure and content that shall normally be
followed for Draft and Final ER documents.
2. All ER documents shall be written in plain language and shall
provide the rationale for the scope of the review and the selected
methodology. ER documents shall also include a summary of key points
raised in public comments.
3. A Draft ER document shall normally be prepared and provided to
the public for comment. However, in unusual circumstances, such as when
a trade agreement is to be completed under a compressed negotiating
schedule, it may not be possible to produce a Draft ER document. In
such cases, the Final ER document shall be issued publicly as soon as
is feasible following the conclusion of the trade agreement.
4. When environmental implications that are substantially different
from those analyzed in the Draft ER document emerge in the course of
negotiations, an amended ER document may be prepared and made available
to the public, as USTR deems appropriate through the TPSC process.
VIII. Administrative Considerations
A. Roles and Responsibilities
1. CEQ and USTR shall jointly oversee the implementation of the
Executive Order, including these Guidelines.
2. 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 and as
part of that decision identify the resources available to perform the
ER. For those agreements subject to a mandatory ER, resources available
to perform the review shall be identified at the time of initiation of
the ER process.
3. 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. Where relevant, subsequent TPSC papers
shall include information regarding the findings of ERs and other
environmental assessments and evaluations undertaken.
4. USTR, through the TPSC, shall conduct the ER. Environmental
issues shall be analyzed by the ERG. 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.
5. USTR shall consult with CEQ at the outset of each environmental
review. CEQ and agencies with environmental
[[Page 79448]]
expertise shall play a prominent role in the conduct of the reviews.
Environmental agencies shall be principally responsible for providing
the expertise necessary to analyze impacts on environmental media and
natural resources within their areas of specialization. Similarly, the
expertise of economic agencies shall be drawn upon where appropriate,
and they shall be primarily responsible for identifying the economic
changes likely to flow from a proposed agreement.
6. Effective implementation of the Order and Guidelines depends
upon the availability of adequate resources and the full engagement of
all agencies with relevant expertise. USTR, CEQ, and all Federal
agencies subject to the Order shall seek adequate resources to carry
out their responsibilities under the Order. Budget requests through OMB
in support of these Guidelines must be written within each agency's
planning guidance level. 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.
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. If USTR and CEQ conclude that revision is
appropriate, the public shall be notified of the intent to revise and
be provided with an opportunity to comment on significant revisions.
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
Participants in the Trade Policy Staff Committee Process for Purposes
of the Guidelines
Chair
Office of the U.S. Trade Representative
Statutory Members
U.S. Department of Agriculture
U.S. Department of Commerce
U.S. Department of Labor
U.S. Department of State
U.S. Department of the Treasury
Invited Members
Council of Economic Advisers
Council on Environmental Quality
National Economic Council/National Security Council
Office of Management and Budget
U.S. Agency for International Development
U.S. Department of Defense
U.S. Department of Energy
U.S. Department of Health and Human Services/Food and Drug
Administration
U.S. Department of the Interior
U.S. Department of Justice
U.S. Department of Transportation
U.S. Environmental Protection Agency
Advisory Member
U.S. International Trade Commission
Appendix B
Public Notification and 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, and
notices may be combined with Federal Register notices issued for
other purposes (such as requests for comment on broader issues in
the negotiations). Federal Register notices shall normally be posted
on USTR's internet website.
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
2. Notice of Intent to Initiate Environmental Review and Request for
Comments on the Scope of Environmental Review
3. Notice of Availability of the Draft Environmental Review document
and Request for Comments (in the normal case where a draft ER
document is prepared for public comment)
4. Notice of Availability of the Final Environmental Review document
B. USTR shall also normally seek public views on environmental
issues through regular consultations with Congress, 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.
B. Notice of Intent to Initiate Environmental Review and Request
for Comments on Scope of Environmental Review
1. The notice and request shall normally provide information on
the following subjects:
a. key U.S. 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 U.S. economy likely to be affected (if
known),
e. environmental issues already identified through the TPSC
process and/or public input as potentially significant.
2. It may also be appropriate to request additional comments on
the scope of the environmental review 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 ER document is
prepared for public distribution, the Draft ER document shall be
made available to the public through publication of a notice of
availability in the Federal Register and posting on the USTR
website. Comments from the public will be requested.
D. Notice of Availability of Final Environmental Review Document
1. The Final ER document shall be made available to the public
through publication of a notice of availability in the Federal
Register and posting on the USTR website.
E. Availability of Public Comments
1. Public comments on environmental issues relating to the
particular trade agreement and the Draft ER shall be available for
public review in the USTR reading room, located at 600 17th Street
NW., Washington, DC 20508.
[[Page 79449]]
F. Revision of Guidelines
1. USTR and CEQ, in consultation with interested agencies, may
on occasion find it appropriate to revise and/or update these
Guidelines. When USTR and CEQ are considering a significant revision
of the Guidelines, the public shall be notified of the intent to
revise and given an opportunity to comment on any significant
revisions.
Appendix C
Types of Potential Environmental Impacts for Consideration
This appendix provides a list that may be useful for identifying
the range of reasonably foreseeable environmental impacts arising
from a proposed trade agreement. This 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 regardless of
whether they are included on this list.
Scoping with respect to economic effects typically will be
conducted through 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 of proposed trade disciplines on environmental laws and
regulations, the scoping will typically involve an iterative
exchange between those expert in the development, implementation,
and interpretation of trade texts and those expert in various fields
of environmental knowledge.
I. Regulatory Effects
A. Potential positive and negative implications of the proposed
trade agreement for U.S. environmental regulations, statutes, and
binding obligations such as multilateral environmental agreements,
as well as potential implications for the ability of state, local
and tribal authorities to regulate with respect to environmental
matters.
B. Potential positive and negative implications of the proposed
trade agreement for environmental policy instruments and other
environmental commitments.
II. Economic Effects (Compared to a Base or Projected Baseline)
A. Products, processes, or sectors that may be positively or
negatively affected by the proposed trade agreement, including the
effects of increases or decreases in the diffusion of environmental
products and technologies.
B. Changes in types or characteristics of goods and services and
their distribution.
C. Changes in volume, pattern, and modes of transportation
(e.g., increased or decreased potential for spread of invasive
species, or increased or decreased pollution impacts of
transportation equipment and infrastructure).
D. Structural changes (e.g., increased or decreased efficiency
in natural resource use)
E. Technology effects involving changes in the process of
production, including increased or decreased use of environmentally
responsible technology.
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 changes of standards
that stem from economic effects.
IV. Increased or Decreased Impacts on 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).
D. Endangered species and other species identified as
significant under law (e.g., certain 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 subject to
shared jurisdiction, such as Antarctica, the atmosphere (including
ozone and climate change features), outer space, and the high seas;
2. Migratory species, including straddling and highly migratory
fish stocks and migratory mammals;
3. Impacts relating to environmental issues 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;
5. Environmental resources and issues otherwise of concern to
the United States.
Appendix D
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., where confidentiality is appropriate, or where
there is a compressed negotiation timetable), it may be necessary to
adopt a modified documentation format. However, each ER document
shall normally contain the following sections:
(1) Summary
(2) Table of Contents
(3) Objectives of the Proposed Trade Agreement
(4) Scope of Review
(5) Analysis
(6) Findings and Conclusions
(7) 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 Review section should describe the principal
potential environmental impacts and/or regulatory issues or types of
laws and regulations identified in the scoping process. This section
should not be a compendium of all potential impacts, but only those
considered sufficiently important to warrant consideration for
including in the ER analysis. 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 Analysis section of the document should describe the
expected beneficial and adverse impacts of those negotiating options
or approaches 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 more appropriately be provided in an appendix). This
section should also describe proposed options (if any) for
addressing potential negative impacts and/or for enhancing benefits
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 ER 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. 00-32238 Filed 12-18-00; 8:45 am]
BILLING CODE 3190-01-U