April 27, 2005

The Honorable Sherwood L. Boehlert

Chairman, Committee on Science

U.S. House of Representatives

Washington, DC 20515-6301

Dear Mr. Chairman:

This letter provides the Department of Commerce's views on H.R. 50, the
"National Oceanic and Atmospheric Administration \[NOAA\] Act." The
Department strongly supports the Committee's efforts to pass a NOAA
Organic Act, legislation we believe should codify the establishment and
purposes of NOAA.

While the Department supports the intent of H.R. 50, we have serious
concerns about the version reported out of the Subcommittee on
Environment, Technology, and Standards. We continue to prefer the
recently transmitted Administration bill, and believe that H.R. 50
should be modified as outlined below.

Most importantly, the bill should be amended to allow NOAA to determine
how best to structure the organization to meet current and future
challenges. An organizational structure that serves the Nation well
today may not be the best structure to serve the Nation in twenty years.
Sections of H.R. 50 read more like an authorization bill than a true
organic act. We believe it would be more appropriate to handle specific
programmatic charges through authorization bills that are revisited
every few years and would be happy to work with the Committee on such
bills.

NOAA's ability to fulfill its mission would be strengthened if the bill
directed establishment of only three positions, the Under Secretary
(Administrator), Assistant Secretary (Deputy Administrator) and Deputy
Under Secretary, giving NOAA the flexibility to decide now and in the
future what additional senior positions should be established or
maintained. Additionally, the bill should codify in one place NOAA's
core administrative authorities, now residing in over two hundred
separate statutes. We will continue to work with the Committee to
resolve these concerns.

The bill should encompass the full spectrum of NOAA's responsibilities,
including programs to protect and restore the Nation's fisheries and its
responsibilities to provide products fostering safe transportation on
marine highways. We understand that the Committee will be working with
other Committees with jurisdiction over other aspects of NOAA's programs
to address this issue.

In light of the broad scope of H.R. 50 overall, we believe it is
necessary to include a clause similar to Section 108 in the bill that
has been transmitted by the Administration that this Act will not affect
or otherwise supersede other laws or responsibilities of other Federal
agencies. Likewise, we are concerned that some of the changes to the
proposed NOAA Science Advisory Board and reporting requirements for NOAA
are very broadly written and recommend that they be narrowed to more
appropriately reflect that they apply only to NOAA's programs and
functions and not to parallel activities that are the responsibility of
other agencies.

The Honorable Sherwood L. Boehlert

Page 2

Sections 9 and 12 of the bill raise concerns under the Recommendations
Clause of the Constitution. The Recommendations Clause vests in the
President discretion to recommend to Congress \"such Measures as he
shall judge necessary and expedient.\" To the extent that these sections
require the Administrator of NOAA to recommend measures to Congress,
they violate the Recommendations Clause. We suggest that these
provisions be deleted or rephrased to specify that the making of any
recommendations is discretionary. In addition, Section 8 of the bill
also raises constitutional concerns. Although we would be pleased as a
matter of comity to provide scientific information when Congress so
requests, there are separation of powers concerns with the attempt by
Section 8 of the bill to create an entity inside the Executive Branch
that is obligated to serve the Congress on coequal terms with its
obligations to serve the Executive Branch. Enclosed are recommendations
that would satisfy these constitutional concerns.

The Department of Commerce appreciates the opportunity to present views
on H.R. 50 and looks forward to working with you to ensure passage of a
satisfactory NOAA Organic Act codifying the establishment and purposes
of NOAA. Should you be interested, the Department would welcome the
opportunity to provide more detailed comments as technical drafting
assistance.

The Office of Management and Budget has advised that there is no
objection to the transmittal of these views from the standpoint of the
Administration's program.

Sincerely,

Jane T. Dana

Acting General Counsel

Enclosure

cc: The Honorable Bart Gordon, Ranking Member

> The Honorable Vernon J. Ehlers, Chairman,
>
> Subcommittee on Environment, Technology, and Standards
>
> The Honorable David Wu, Ranking Member,
>
> Subcommittee on Environment, Technology, and Standards

Modifications to Sections 8, 9 and 12 to Satisfy Constitutional Concerns

\(1\) In Section 8 we suggest striking the phrase \"the Committee on
Commerce, Science and Transportation of the Senate, or the Committee on
Science or on Resources of the House of Representatives\" from Section
8(a) and striking the phrase \"and the appropriate requesting party\" in
Section 8(d)(1). At a minimum, we suggest replacing \"advice\" with
\"information\" in Section 8(a) and replacing \"to the Administrator and
the appropriate requesting party\" with \"through the Administrator\" in
section 8(d)(1).

\(2\) In Sections 9(a)(1) and 9(b)(1) we suggest replacing \"shall
include\" with \"should include\" to ensure that the provisions are
consistent with the President\'s constitutional authority to submit for
consideration of the Congress such measures as the President deems
necessary.

\(3\) In Section 12(b) we recommend striking "and budget proposal" and
striking "proposal for" to render the provision consistent with the
President's constitutional authority to submit for consideration of the
Congress such measures as the President deems necessary.