to this committee at the time it was evolved or being considered, possibly we might have prevented the decision by some commanding officer to dump oil, had there been the preceding committee hearings and evolution and discussion of this kind of policy. Let me go back to the specific example that I cited earlier.

Mr. TRAIN. Let me say that the ocean dumping policy which the President submitted to the Congress on the 7th of October and which will be the subject of a legislative submission, I am sure, early next year, was cleared by all Executive agencies, including the Department of Defense, and I am sure specifically the Navy.

Mr. MCCLOSKEY. By October 7?

Mr. TRAIN. Oh, yes.

Mr. MCCLOSKEY. I think that is correct. I think we are talking about July and August when we were asking for these reports and the administration was withholding them pending the final determination by the administration. But I have a real problem with the interpretation of this under section 102 because the statute clearly says:

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency

...

Let's assume that you have a project like the Peripheral Canal and you say "All right, first of all, it is the Secretary of the Interior who will be the responsible official." He then asks for the opinion of the Bureau of Sports Fisheries. The Bureau of Sport Fisheries is then the responsible official for giving a detailed statement to the Secretary of the Interior. He, in turn, may have to consult people outside of his own agency before he gives his comments. Those comments are to accompany the proposal through the existing agency review processes. I assume that is reviewed by the OMB, and yet the making public of those comments is through the existing agency review processes in the

statute.

Now, do I understand, and I want to be absolutely clear on this, that when someone asks for the head of an agency to give his comments, and that is, as I understand it, the comments and views of the appropriate Federal, State, and local agencies which are authorized to develop and enforce environmental standards, those comments shall be made available to the President, the CEQ and the public, and shall accompany the proposal through the existing agency review processes. Would you want to complete the agency review process before you make these public, because the statute says they will be made public and shall accompany the proposal through the agency review processes?

Mr. TRAIN. The statute doesn't say exactly what agency review process means. Presumably, it certainly means review through the Office of Management and Budget, and these comments are required. by our procedures to accompany the proposal through that review process.

Mr. MCCLOSKEY. Why in the statute would the Congress have said they shall be made public and accompany the proposal through the agency review processes and then permit an interpretation of the statute that they will be made public only upon completion of the agency review process?

Mr. TRAIN. I suppose that the distinction was drawn because until an agency review process has been completed you very likely do not

have a proposal, at least in any kind of final form, and there have been, for example, several major proposals that have been the subject of our comments and other agency comments that because of those comments have been withdrawn and have never seen the light of day. In other words, a final decision had not been made by the particular agency, and I think there is a real question of policy involved in dealing with that.

We all want full public disclosure and involvement. At the same time, do you also want full public disclosure and discussion of proposals which are going to be hit on the head and thrown out? I understand that the Corps of Engineers has pending on the shelf 25,000 or So water project proposals. I would hate to have all of those the subject of full disclosure and discussion and debate because I would hope that 99 percent of those are going to die a natural death, and doubtless will.

Mr. DINGELL. Would you yield?

Mr. MCCLOSKEY. I will yield.

Mr. DINGELL. We have here an Executive order in which the language is clear. We have here a statute in which the language is clear. It says, referring now to the impact statement "shall be made available to the President, the Council on Environmental Quality and to the public." It doesn't say they shall be made available to the President, the Council on Environmental Quality, and the public at different times. It says that they shall be made available to the President, the Council on Environmental Quality, and the public at the same time.

Mr. TRAIN. That is the final detailed statement.

Mr. DINGELL. All right; the final detailed statement, but then it goes on and says "and to the public as provided by section 552 of title 5," which is the freedom of information statute, which does apply the general policy of the Federal Government that governmental actions of this kind shall be open to the public to the fullest degree possible and actually the only thing which may be witheld under this statute from the public, as I read that statute, are certain specifically enumerated exceptions: national defense, national security, budgetary matters. Mr. TRAIN. Working memorandums.

Mr. DINGELL. Working memorandums, et cetera, but nowhere in this statute is the impact statement referred to as a working memorandum, and it also-I must reiterate the language of my friend, Mr. McCloskey-says "and shall accompany the proposal through the existing agency review processes."

So this says that it has to be filed at an earlier time because then come the agency review processes. Either you folks downtown are going to have to change your guidelines on making public draft statements, and I am not sure there is any justification or authorization in the statute for draft statements, or else you are going to have to change the interpretation that you have with regard to the accompaniment of this through the existing agency processes because the public is entitled to get it at the same time the President and the Council are. There is no distinction in this timing.

Mr. TRAIN. And they do, and they do.

Mr. DINGELL. Yes, but then if they do get it at the same time the President and the Council do, the thing that you are missing is that,

and you have said this, you are making it available to them after the review process is completed, and that is clearly not in conformity with the law. We have a very bad situation here that I believe has to be cleared up.

Mr. TRAIN. I disagree with your interpretation of the law there, Mr. Dingell. I think it does not provide clearly in the statute that these papers are to be made available prior to the time of final decision has been reached. I think that is the issue here. We talk about a draft paper or whatever, but we are really talking about whether or not the agency should inform the public in detail of a proposed action before the agency decides it wants to move ahead with that action. That is really what the issue is.

Mr. DINGELL. How, I am curious to know, is the public to be brought into this in the administration of this statute if you don't make this information available to them at the earliest possible moment?

Mr. TRAIN. Well, as I said, I think we do in most cases.

Mr. DINGELL. In most cases. It is the caveat and qualification that you put on there that sets my nerves on edge. I yield.

Mr. MCCLOSKEY. If I may give a precise example that troubled me and I think the Congress when it considered the legislation, Mr. Train, you remember the permit to fill a creek that comes into the Potomac River?

Mr. TRAIN. Hunting Creek.

Mr. MCCLOSKEY. Hunting Creek. In that case the Secretary of the Interior was required to report to the Secretary of the Army under the Fish and Wildlife Coordination Act what his opinions were and his opinions under the statute were to be based on the report of the National Park Service and the Bureau of Sport Fisheries, as I recall. Now, when he submitted his report to the Secretary of the Army he specifically overruled the recommendations of his Sport Fisheries and National Park Service and then as Congress got into the act we began to uncover the fact that the Secretary's decision overruled an agency that is now in his Department. This is the precise situation that concerns me, because if an adverse report is received at some early stage of the process and does not become available to the Congress and the public, then we cannot monitor the procedure as it goes forward until it may be too late. For in our judgment when that permit was granted and a person changed his position and perhaps prepared to fill the property in reliance on the permit and then the permit is later withdrawn, as it was in this case, the Federal Government might be liable for withdrawing permission to do something and having this man rely on that Government action.

Now, if we can't get at these adverse environmental comments at the lowest level of the procedures, we may hamper the Federal Government in its operations and may, in effect, cause liability. Certainly if those adverse impact reports are buried until the decision is made by the interpretation that you put on this law the Government may be hurt. That situation was the subject of hearings, of wide publicity, and preceded the enactment of this legislation, and I think justifies a contrary interpretation of congressional intent about these lower echelon reports

Mr. TRAIN. Of course, the new administration reversed that action, as you will recall.

Mr. MCCLOSKEY. We are delighted with the new commitment of this administration, and that was prior to the National Environmental Policy Act. Do I properly define the problem and the question, though?

Mr. TRAIN. I think the issue is very clear. I think we all share the same objective. I really do. We all believe honestly, sincerely, in public participation in the decisionmaking process. I think the question is how you get at this and you really have two choices. One is an attempt to legislate, and I use that in the broadest sense, either by an actual act of Congress or by Executive order or by guidelines, a rather ironclad rule of procedure which says that when you have reached a certain point you must inform the public even of what all the issues and alternatives are, even though a decision has not yet been made by your agency and try to spell this out in some way, and I promise you it is hard to define at what point this should be doneis it at the point where it is really just a glimmer in the eye of some fellow in the field, or is it after a division head has put his surname on the paper and it starts up the chain of command, or is it after the agency head, perhaps the Secretary, says "Well, I think this is a pretty good idea but we don't want to make a decision yet until we hear more about it." It is very hard, in all fairness, to try to define just what this point is.

The other alternative, it seems to me, is to proceed as we have been trying to proceed, which is what amounts to a broad general policy to seek to achieve compliance in practice to the fullest extent possible, recognizing that again we are dealing with a new animal here and we are having to change a lot of bureaucratic ways of looking at things, without at the same time building in a rigid rule of law which, as I pointed out earlier, could create a new right, a new judicial remedy, and possibly a very strong impediment to executive action. Maybe that is what you want, but I think these are what the issues are.

I also suggest as a matter of practice-maybe I have been a bureaucrat too long--if you require as a matter of lay disclosure of every diverse comment all down the line at some early stage, no matter what the level within the Department may be, you are going to find out, I think, that the comments just won't get made any more and there is a very real danger in seeking full public disclosure that you will hamstring effective public administration.

Mr. MCCLOSKEY. Do you think we further inhibit the expression of dissent within the administration by the enactment of such a law? Mr. TRAIN. Say that again, Mr. McCloskey.

Mr. MCCLOSKEY. Do you think we further inhibit the expression of dissent within the administration by the enactment of such a law? Mr. TRAIN. Well, I think there is complete freedom within this administration at all levels concerning environmental matters, and that is the only thing I can speak responsibly of, to comment objectively, freely and openly within the administration on all these matters. I certainly have never had the slightest impediment to the free expression within the executive branch, within the Executive Office of the President, of my personal views or the views of my Council or the separate views of any member of the Council.

Mr. MCCLOSKEY. Can we be assured, then, that, the final agency review process having been completed and the President having proposed the SST and having asked Congress to authorize it, we are in

possession of every single adverse comment against the SST by reason of its environmental impact that has been given at any stage of the procedure by any member of this administration?

Mr. TRAIN. To my knowledge, as I indicated earlier, Mr. McCloskey, a detailed statement on the SST has not been made public by the Department of Transportation nor has it made public the comments of the agencies that it may have received.

Mr. MCCLOSKEY. But how can that be if the final agency review process, in this case the decision by the President, has been made and yet we are still without it? Is the President himself violating the law when he urges Congress to do something, yet does not permit the making public of adverse comment?

Mr. TRAIN. Well, the requirement is on the agency itself. I don't think you interpret the President to be an agency.

Mr. MCCLOSKEY. Isn't he a responsible official when he makes a legislative proposal to the Congress on the SST? If he is the responsible official, isn't it required under this law that all reports, all comments, be made public at least at this time, even under your interpretation?

Mr. TRAIN. As I read the legislative situation, the formal proposal here has been made by the Department of Transportation as part of its appropriation, and that is the matter that is before Congress for

decision.

Mr. MCCLOSKEY. If that is so, how can anything be withheld that would include an adverse impact on the environment either by way of the detailed statement or the report?

Mr. TRAIN. I don't know if there are any adverse comments or not, but, as I indicated earlier, we have in writing to the Department of Transportation stated that a final detailed statement together with all comments should be made available to the public. The time is now appropriate.

Mr. MCCLOSKEY. The time would be today, like at the end of the close of business today. I believe we will put it on the Navy.

Mr. TRAIN. Yes, sir.

Mr. MCCLOSKEY. Thank you.

Mr. TRAIN. That is with respect to the Navy. I think it is up to Congress to decide whether or not a 102 is called for on the SST. Mr. MCCLOSKEY. At the close of the business day?

Mr. TRAIN. That is your problem at the moment.

Mr. DINGELL. I am reminded of a funny story that I heard the other day, not dealing with this particular administration but dealing with President Johnson. He was quoted as having told almost everybody that came into his administration that he didn't want any yes men and anybody who was in there he wanted to feel perfectly free to express whatever dissent he might have and he called them to his desk and said to them "Now, if you have any difference with this administration I want you to feel free to say so." Then he paused and said "If you do, you can always find another job."

Mr. TRAIN. That has not been my experience in this administration. Mr. DINGELL. Our problem here, Mr. Train, is that we have here both the Public Law 91-190 and the freedom of information statute, and I don't want you to leave this committee with the impression that it is your feeling that the agency, yours or any others, may pick and choose