I am attracted to what Senator Hickenlooper says, that maybe we ought to rewrite this language. I do not say it is perfect, but I only want to explain it was put in there to help the Atomic Energy Commission and not to hurt it. Mr. Van Zandt? Representative VAN ZANDT. Some months ago, the Price subcommittee held extensive hearings on the subject of employee radiation hazards and workmen's compensation. To properly get into the picture we had to take a look at the laws of the several States. It was my opinion that we, as a committee, through the Commission, encouraged several States to write laws, which they have done, to control the radiation hazards that stem from byproduct, source, and special nuclear materials. Now, I have a comment here from my State on this particular section, and this is what it says: It would preclude State action to control radiation hazards until an agreement between the Atomic Energy Commission and the particular State went into effect. Is that right? That is their interpretation. Furthermore, it would nullify legislation which is already on the statute books of the several States. The effect would be to create confusion as to the status of existing laws, ordinances, and regulations, and the resulting legal entanglement would hamper an orderly transfer of certain Federal responsibilities to the State. Listen to this: If this section is not deleted it should at the very least be amended so as not to take effect until a further date, perhaps 2 years after the passage of the bill, in order that the States may have an opportunity to readjust our current regulations and enter into these agreements with the Atomic Energy Commission. This is one of the States that already has a law. Chairman ANDERSON. What State is that? Representative VAN ZANDT. Pennsylvania. If my memory serves me correctly, I think New York probably has the most effective complex of laws in this field. I think California follows them or may be ahead of them. Representative PRICE. In the subcommittee hearings you referred to, we put out a committee print which is available to all members, and on page 229 it lists many States that have some type of legislation dealing with this. I think every member of the committee ought to look that list over. Chairman ANDERSON. In connection with that, may I read from the Cole-Hickenlooper Act, chapter 1, "Declarations, findings, and purpose." Under section 2, "Findings," subsection c and d, it says: The processing and utilization of source, byproduct, and special nuclear material affect interstate and foreign commerce and must be regulated in the national interest. The processing and utilization of source, byproduct, and special material must be regulated in the national interest and in order to provide for the common defense and security and to protect the health and safety of the public. If they are affected with interstate commerce, I think probably some States would have a hard time contending the Federal Government had no interest in the field.1 1 For subsequent letter from AEC concerning subsection k, see p. 500. Go ahead, Mr. Chairman. I know you have some time limitation. Mr. MCCONE. The present bill, unlike H.R. 7214 and S. 1987, provides that any proposed agreement, or amendment thereto, with the States must be submitted to the Joint Committee on Atomic Energy and lie before it for 45 days before it may become effective. We prefer not to include such a provision in this bill. Chairman ANDERSON. I want to assure the Chairman it is to keep the Joint Committee informed. The fact is there is no criterion in the field and the impression might be left by some people that the Atomic Energy Commission might be whipping the States a little bit. And here in Congress they have spokesmen and representatives. If the agreements were submitted down here, we might be able to intercede in those cases where, because the Atomic Energy Commission owned the nuclear material, somebody might say they are taking a wrong advantage of the State, or something of that nature, and it is not for the purpose of making it impossible to operate. Mr. MCCONE. We feel the criteria in the bill and the provision for hearings, and all that sort of thing, will take care of that. Chairman ANDERSON. We grant you this was a new provision written in as a result of discussions of the committee. It is something you had not seen and, therefore, you have a perfect right to comment on it. Mr. MCCONE. The provision does not serve a useful purpose, since the bill contains provisions prescribing when the Commission may enter into agreements with the States and what the effect of such agreements will be. We do not propose any executive agreements which do not meet the statutory criteria. Particularly in view of the requirements of publication and opportunity of public participation which are included in the bill, we believe that full provision is made for keeping the Joint Committee informed as to the nature of proposed agreements with the States. The provision in the bill which provides for the establishment of the Federal Radiation Council is, I am told, objectionable to the Bureau of the Budget. I understand that the Bureau is writing a letter about this which I believe has been sent to the committee and I guess you have received it. Chairman ANDERSON. The letter is here. After you have left, if we have time, we will read it to the committee. (The letter referred to follows:) EXECUTIVE OFFICE OF THE PRESIDENT, Hon. CLINTON P. ANDERSON, BUREAU OF THE BUDGET, Washington, D.C., August 25, 1959. · Chairman, Joint Committee on Atomic Energy, MY DEAR MR. CHAIRMAN: On August 21, 1959, I wrote to you informing you of the results of the review, in which this Bureau participated, of Federal organization of radiological health activities. With that review as background, I believe that I should offer some comments on S. 2568, a bill to amend the Atomic Energy Act of 1954, as amended, with respect to cooperation with States. Specifically, I wish to discuss section 274h which is the chief feature which distinguishes S. 2568 from S. 1987, an administration-sponsored bill. Section 274h would establish in statute a Federal Radiation Council made up of the Surgeon General, the Chairman of the Atomic Energy Commission, the Secretary of Defense, the Secretary of Commerce, the Secretary of Labor, the Chairman of the National Academy of Sciences, the Chairman of the National Committee on Radiation Protection, or their designees, and two members appointed by the President. One such appointed member would be a qualified expert in the field of biology and medicine and one in the field of health physics, and either could be an employee of a private, State, or local agency concerned with radiation hazards and standards. The special assistant to the President for science and technology, or his designee, would be authorized to attend meetings, participate in the deliberations of, and to advise the Council. As you know, the long standing position of the executive branch is generally to oppose the establishment by statute of standing committees which are advisory to the President. The reasons for such a position are well and succinctly stated in the report of the first Commission on Organization of the Executive Branch on "General Management of the Executive Branch." We believe those general objections are applicable to the Council provided for in section 274h of S. 2568. The primary function of the Council is to advise the President. We believe that the President should have the utmost flexibility in selecting his immediate advisers. This flexibility would be denied to him in the event that the advisers were to be established by statute. In addition to our general bases for recommending against statutory arrangements of this kind, there are specific reasons why we believe the creation of a Federal Rediation Council by statute to be both unnecessary and undesirable. On August 14, 1959, the President issued Executive Order 10831 establishing the Federal Radiation Council. The differences between the Federal Radiation Council as established by the President and the Council which would be established by S. 2568 are not insignificant. Section 274h of S. 2568 would not only establish the Council as a statutory body and fix its membership in law, but it would, by broadening the membership to scientists outside the Government, considerably alter the character of the Council. Moreover, section 274h would confer statutory status upon the special assistant to the President for science and technology and upon the National Committee on Radiation Protection, steps which we are not prepared to support at this time. Radiological health activity is centered around the development, promulgation, and enforcement of operational rules and regulations (standards) for protection against radiation hazards. Practically all operational standards are derived from basic standards for exposure of humans to radiation. Fundamentally, setting basic radiation standards represents the establishment of a theoretical calculated risk. It involves passing judgment on the extent of the possible health hazard which is to be accepted in order to realize the known benefits of radiation. It also involves inevitably a compromise between total health protection (which might require foregoing the use of radiation) and the vigorous promotion of the use of radiation in order to achieve optimum benefits. Thus, while the establishment of basic standards of exposure is based on available scientific data and analysis, the decisions which must be made are, in their essence, matters of judgment beyond the scope of science. For this reason, the President has designated as his principal advisers in this matter the heads of the agencies who are statutorily responsible to him for carrying out the programs most significantly affected by the decisions made. This arrangement is in contrast to the provisions of S. 2568 wherein scientists with purely scientific responsibilities would be given the same status as public officials with broad statutory program responsibilities to the President. It is contemplated under the Executive order that the best scientific advice concerning radiation matters will be brought to bear upon the deliberations of the Council. Each member of the Council has available to him in his own agency scientific advice of the highest competence. In addition, the Council is specifically authorized to seek technical advice from any source it deems appropriate. The Council has as one of its first tasks the development of relationships with scientific bodies, such as the National Academy of Sciences and the National Committee on Radiation Protection, to assure that the President receives the advice that he needs from any source without jeopardizing the objectivity or freedom of the scientists involved. Those relationships should be developed over a period of time and caution should be exercised against prematurely establishing an inflexible arrangement such as would be set up under section 274h of S. 2568. With regard to specific membership of the Council as contemplated in S. 2568, I should like to make the following comments: While the capabilities and responsibilities of the Surgeon General are in the field of public health, the nature and composition of the Council makes more appropriate the membership on the Council of the Secretary of Health, Education, and Welfare as the head of the Department of which the Public Health Service is a part, and who is also the Department head responsible for the administration of the Food, Drug, and Cosmetic Act. Moreover, it would be disruptive to the normal and necessary relationships between the President and the Secretary of Health, Education, and Welfare were a subordinate of the Secretary made responsible by law for providing direct advice to the President. With regard to the proposed membership of the Secretary of Labor, the responsibilities of that Secretary admittedly are significant. There are, however, Secretaries with other important responsibilities, such as the Secretaries of Agriculture, the Interior, and the Treasury. To give membership to every officer with an interest in radiation would create a Council of a size much too large for effective effort. In this connection, it should be noted that the Secretary of Commerce is a member of the Council by virtue of his statutory responsibilities under 15 U.S.C. 272. The National Academy of Sciences and the National Committee on Radiation Protection appropriately select their own chairmen. That arrangement would, however, when coupled with the provision of S. 2568, which designates the heads of those organizations as members of the Council, deprive the President of the authority to select those two advisers. One further point is of significance. Decisions with regard to the basic standards referred to above are considered to be of such importance that responsibility for them cannot appropriately be vested in any officer short of the President. The views and advice of the Council which would be established by S. 2568 would, because of the Council's statutory origin, come to be identified by the public as independent and separable from those of the President. An organization constituted for the purpose of advising the President should be established under an arrangement which would require it to report only to the President if it is properly and fully to perform its assigned role. This is assured under the arrangement whereby the Council is established by Executive order. During the review which, among other things, led to the issuance of Executive Order 10831 the most careful consideration was given to whether the Federal Radiation Council should be established by statute. For the reasons outlined above, the conclusion was reached that the duties of the Council would be such as to make statutory status not only undesirable but seriously inappropriate. Accordingly, the Bureau of the Budget strongly recommends the enactment of S. 2568 without any provisions along the lines of section 274h. We also question the desirability of section 274e (2), which requires that proposed agreements between the Commission and the Governor of a State dealing with radiation health and safety regulation under this bill be submitted to the Joint Committee on Atomic Energy for 45 days prior to taking effect. We recognize the desire of the Congress to keep itself informed as to matters affecting legislation. We believe, however, that adequate arrangements for providing such information already exist without additional resort to a statutory 45-day waiting period. We therefore beli ye that the section is unnecessary. Sincerely yours, MAURICE H. STANS, Director. Mr. MCCONE. My view is that the Council should not be provided for in the law. The basic decisions on radiation are, in the final analysis, the responsibility of the President, who should be authorized to seek advice or counsel from persons of his own choice. This has already been done through the establishment by Executive order of the Federal Radiation Council, the composition of which may need to be changed as circumstances change. In establishing such a Council the President should have the heads of agencies as members. We have a few minor drafting changes in the bill to suggest. agreeable to the committee, I will ask the Commission staff to give them to the committee staff. Chairman ANDERSON. Could I stop here and point out there are organizations, like the Space Advisory Council and others, that have been set up that are open to the same objections. Did the President object to those when the bills were under consideration? Mr. MCCONE. I do not believe so. Chairman ANDERSON. I think I heard the testimony, and he did not object. Mr. MCCONE. I do not think he objected to the Space Council nor do I think he has ever objected to the National Security Council, which likewise is set up by law. Chairman ANDERSON. The National Security Council? Mr. MCCONE. Is set up by the National Security Act of 1947. Chairman ANDERSON. Yes. You recognize that the Federal Radiation Council as now constituted carefully omits any representation from the public, as such, and involves only the President's Cabinet and people who are appointed by the President, and it leaves no opportunity for any outside point of view. That is what the National Security Council tried to get away from, as does the Space Council, and various other groups. (The letter referred to on pp. 489 and 496 follows:) Hon. CLINTON P. ANDERSON U.S. ATOMIC ENERGY COMMISSION, Chairman, Joint Committee on Atomic Energy, August 26, 1959. DEAR SENATOR ANDERSON: At the hearings held by the Joint Committee on Atomic Energy this morning on S. 2568 and H.R. 8755, there was testimony by the Commission and general discussion concerning the first sentence of subsection k. This sentence provides that: "k. It is the intention of this Act that State laws and regulations concerning the control of radiation hazards from byproduct, source, and special nuclear materials shall not be applicable except pursuant to an agreement entered into with the Commission pursuant to subsection b.: Provided, however, That States may adopt registration requirements for such materials and may inspect the use of such materials within the State to assure compliance with the Commission's regulations." At the hearing, we recommended the omission of the sentence. In making this recommendation, we did not intend to change the substantive effect of the bill because we believe that under this bill, with or without the sentence, the Federal Government will clearly have "preempted" the regulation and control of radiation hazards from source, byproduct, and special nuclear materials. In either event, preemption will end in any State only upon the effective date of an agreement between the State and the Commission under subsection b. and only to the extent provided in the agreement. In suggesting the elimination of the sentence, we did not intend to leave any room for the exercise of concurrent jurisdiction by the States to control radiation hazards from those materials. Our sole purpose was to leave room for the courts to determine the applicability of particular State laws and regulations dealing with matters on the fringe of the preempted area in the light of all the provisions and purposes of the Atomic Energy Act, rather than in the light of a single sentence. For example, in the absence of the sentence, the courts might have greater latitude in sustaining certain types of zoning requirements which have purposes other than control of radiation hazards, even though such requirements might have an incidental effect upon the use of source, byproduct, and special nuclear materials licenses by the Commission. Sincerely yours, A. R. LUEDECKE, (Subsequently, Senator Anderson received the following letter dated August 28, 1959, from Arthur S. Flemming, Secretary of the Department of Health, Education, and Welfare :) |