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COMMITTEE PRINT NO.3

SEC. 306. AUTHORIZATIONS.—There are hereby author

2 ized to be appropriated such funds as are necessary for the

3 purposes of this Act.

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SEC. 307. SEPARABILITY.-If any provision of this

5 Act or the applicability thereof is held invalid, the remainder 6 of this Act shall not be affected thereby.

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The CHAIRMAN. The committee will come to order.

We are meeting now in open session, since that is the rule of this committee, for the markup of S. 2589.

I will say to my colleagues at the table, we have here John Schaeffer who is assistant to Governor Love, Roy Neimiller who is assistant to Governor Ash. We will have avalable to us, of course, various attorneys and so on from the various departments and agencies that may raise questions.

May I say to the staff people, that you coordinate this with Mr. Schaeffer, I think you should coordinate this for the executive branch and raise whatever questions you wish to raise or proposals for amendments.

Normally, we don't mark up a bill in this fashion, but, in light of the urgency of the issue that is before us, we want to have available the latest position of the administration on any of the matters that will be taken up.

The first section is section 101 which contains the congressional findings which runs over to page 3. It starts on page 2 of the bill. The first item; I will ask for Mr. Van Ness to comment on the amendment proposed by Senator Johnston

Senator MCCLURE. Before we do that, may I ask one general question about the format of Committee Print No. 3.

We were here all day yesterday and I am sure there were an awful lot of suggestions made by an awful lot of witnesses for proposed amendments or variations in the theme but I notice that we have, in the margin, a great many such proposals and comments but I note there were some suggestions that were not printed and I wonder what, in general, we can expect is printed in the margin as proposed amend

ments.

The CHAIRMAN. I will ask Mr. Van Ness to explain how the current markup of Committee Print No. 3 differs from Committee Print No. 2. Senator MCCLURE. First of all, let me say I recognize it is a monumental task to have done this quickly.

The CHAIRMAN. One of those all night jobs.

Senator MCCLURE. I don't want to be understood as being critical. I just want to know where we are going to start.

Mr. Van Ness.

Mr. VAN NESS. Committee Print No. 3 is Committee Print No. 2 we had yesterday.

There have been some technical changes and corrections of errors. The right hand column does contain proposed amendments. Those are amendments we discussed at the hearing yesterday or which were suggested by counsel.

In any case, where we did have the specific language, we did print the amendment in the right hand column.

It should be understood that the administraton representatives have made avalable something on the order of 20 or 30 different amendments, none of which are printed in here because they became available this morning.

I think as the committee works its way through the billThe CHAIRMAN. We announced yesterday they would have until 9:30 this morning to get the amendments in.

May I ask, and I think Senator McClure wanted to know whether there have been any substantive changes in Committee Print No. 3 over Committee Print No. 2, other than the proposed amendments in the right hand column?

Mr. VAN NESS. I am not aware of any substantive changes. The changes are to pick up some word details, some inconsistencies, getting some time frames in order. If I come upon any, I will certainly bring them to the committee's attention.

Senator MCCLURE. I appreciate the explanation.

I guess the thing that made me wonder is, for instance, on page 9 where we are talking about air standards. I think Administrator Train had said a strict prohibition could not be put in this bill and that change was not picked up as a proposed amendment and I just wondered.

Mr. VAN NESS. Yes, and on that issue, the Public Works Committee chairman, Senator Randolph, has asked Senator Jackson to delete the whole variance provision with the understanding that his Committee would bring out an amendment to the Clean Air Act.

The CHAIRMAN. He is introducing that bill today.

Mr. MCCLURE. I know. I am cosponsoring it.

The CHAIRMAN. I think they have a hearing Monday.
Mr. McCLURE. That is correct.

The CHAIRMAN. The first amendment is by Senator Johnston, which appears on page 3; this relates, I believe, to the inclusion of a finding that the regulations would cover not only interstate, but intrastate delivery of energy resources. This raises a whole new jurisdictional question on the part of the Federal Government; principally, the issue of intrastate gas. The Chair indicated yesterday that he felt it would be unwise to take up this whole national gas issue in this bill and he would oppose any such move. And, therefore, I advised our session here, when Senator Johnston was present, that I would oppose deregulation or the inclusion of intrastate gas as distinguished from interstate regulations. So, I would hope that that amendment will be adopted.

Senator FANNIN. I would just like to question what was intended by Senator Johnston.

I understood that (f) would be deleted. It was exempted. What is remaining?

The CHAIRMAN. The effective regulation of interstate and foreign commerce in energy; I don't know that we want that in.

Senator FANNIN. You say you want it in. For what purpose? The CHAIRMAN. Because, if you don't have that in your finding, you cannot deal, of course, constitutionally with the moves that the President will have to make here.

The part he addressed himself to was solely the issue of intrastate. Senator FANNIN. That is what I say.

The CHAIRMAN. Do you want to take away from him his constitutional authority to handle interstate and foreign commerce?

Senator FANNIN. I don't believe we are but the deletion of this language won't change the statutes.

The CHAIRMAN. This is the predicate on which the President operates; the constitutional predicate is the regulation of interstate and foreign commerce.

Now, he can regulate intrastate commerce if you specifically find it effects interstate commerce but you do not want to take away-I will ask the administration to comment on that.

Senator FANNIN. On that basis you will take out the intrastate completely.

The CHAIRMAN. The regulation of he suggests that after "resources" on line 12, insert the words, "other than natural gas" and that will cover other intrastate matters but it will not cover natural gas.

Senator FANNIN. So we are not taking over intrastate matters in natural gas. Is that the intent?

The CHAIRMAN. Yes, where it effects interstate commerce.

May I say, Senator Fannin, so we do not go 'round and 'round here, defending an administration proposal, this is the administration's language, is it not, Mr. Schaeffer? That is the way it was submitted to us and I will ask you to explain that.

Mr. SCHAEFFER. You are speaking of subparagraph (f)?

The CHAIRMAN. I am on page 3 of the committee print and it is subsection (f).

This is the language submitted to us by the administration.

Mr. SCHAEFFER. I would have to check our draft but if the bill says it is, then I would agree.

This is, as you know from Governor Love's testimony yesterday, related to a broader issue. The President, the administration believed we should have emergency powers to deal with natural gas and we recognize that you do not but I just wanted to restate that today, that the administration would prefer language similar to what has been submitted informally to Mr. Van Ness before which would grant authority to the FPC to regulate the price of natural gas in the emergency.

The CHAIRMAN. And to assume jurisdiction over intrastate natural gas, as well.

Mr. SCHAEFFER. No, sir.

The CHAIRMAN. That is what this would do; the original language. But, the point is, I think we are in agreement here that we were going to leave out the argument over natural gas. If not, we are going to be on it for weeks.

That is up to my colleagues, whatever they want to do.

Senator ABOUREZK. Does this allow the President to regulate natural gas? Is that the purpose of the amendment?

The CHAIRMAN. No.

The purpose of the amendment is that today the FPC does not have control over intrastate gas solely produced and consumed within the confines of a given State. There is no Federal authority to regulate natural gas under those circumstances.

Now, the import of this amendment will give the Government control over intrastate natural gas.

My point is: I don't want to have the issue brought up of natural gas as it relates to intrastate gas or the regulation of it. You start down that road and we will be here for many weeks.

Senator MCCLURE. Mr. Chairman, as I read subsection (f), there is an effort to extend the interstate commerce clause jurisdiction to

intrastate deliveries of energy and the purpose of that amendment is to delete that reference, as far as natural gas is concerned.

The CHAIRMAN. That's right, but not as to other matters.

Senator MCCLURE. This, within the context of an emergency situation with a cutoff date in the bill, I can support. I do not like it but I can support it because there is an emergency and I think the amendment does only affect that extension as far as natural gas is concerned. The CHAIRMAN. Mr. Schaeffer, do you have a comment? Mr. SCHAEFFER. Yes, sir.

Excluding consideration of natural gas as a basic issue, which is your desire, it is the administration's position that we would accept this language. The intent of the intrastate provision was over other fuels, as well; particularly in dealing with allocation systems and such. The language was provided by Justice. I am not a lawyer. It was preceded in our draft by another draft which, in the opinion of Justice Department, made it also more clear that we were dealing with interstate and foreign commerce.

I can read you the paragraph if you would be interested.
Our Justice Department believes that

Senator FANNIN. Mr. Chairman, I certainly don't want to hold up the proceedings but I would like to know the contention of having the Federal Government regulate intrastate delivery of energy

resources.

Here we have regulatory authorities at the State level. Do we need the Federal Government to control those State authorities? That is what we would be doing.

The CHAIRMAN. May I make a comment here?

This, of course, is merely findings by the Congress and, unless you insert a finding here relating to intrastate matters, you would not be able to reach in and do anything about coal, for example, because that is purely an intrastate matter until it moves in interstate commerce. Is that correct?

Mr. SCHAEFFER. Sir, I would agree with you.

The CHAIRMAN. From a legal point of view, unless you have this language, I think you run into trouble where you need to make some initial moves that would require, say, the movement of coal in a given situation. But they can come back and say you did not have the finding here by the Congress that we do want action on matters that may be purely intrastate and I take it the administration supports the language that they submitted in that regard.

Mr. SCHAEFFER. Yes, sir.

We are already facing these types of decisions moving fuels intrastate in the propane allocation system and the middle distillate allocation system that the administration is already administering.

We can see lots of difficulties with having to deal with any given State and this language, provided by the Justice Department, was intended to make the purpose clear that we would have that authority. The CHAIRMAN. What is the wish of the committee? Is there objection to the Johnston amendment first?

The Chair hears none.

Without objection, the Johnston amendment will be agreed to. Are there further amendments to section 101?

Mr. SCHAEFFER. Mr. Chairman, may I state also one general thing.

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