A similar solution was enacted in the Elective Governor Act of 1947. Contrary to the present proposal which grants the authority to Congress, that statute granted great authority to the President to determine whether a federal law was applicable to Puerto Rico. Its Section 3 provided: "The President of the United States may, from time to In accordance with said provision President Truman issued Executive Orden 10005 of October 5, 1948, establishing an advisory commission to the President on the application of federal laws to Puerto Rico. As may be seen, this provision excluded the Congress from the final determination regarding the application of federal laws to Puerto Rico, and granted all the power to the President. In sum, the proposed subsections (b) and (c) to be added to Section 9 of the Federal Relations Act provide mechanisms to determine the application of federal laws to Puerto Rico resolves the issue of legitimacy. It also sets forth a clear policy for the application of federal law. These mechanisms make it easier for the courts to construe the Federal Relations Act to determine whether a federal law should apply to Puerto Rico in harmony with the stated policy. congressional Therefore, Mr. Chairman and distinguished members of the Committee, I urge you to give the most careful consideration to the proposals contained in subpart 4. These will contribute to improve the present relation between the Commonwealth of Puerto Rico and the United States, while providing a relatively simple mechanism to determine the applicability of federal statutory law to Puerto Rico, which at the same time will reduce litigation in this field. Thank you. June 16, 1989 The CHAIRMAN. Thank you very much, Mr. President. We are very sensitive to the economic, cultural, ecological interests of Puerto Rico, and about the need not to legislate with respect to Puerto Rico on matters that are inconsistent with those values unless there is an overriding national interest. In our hearings in Washington, we had a long discussion with the Governor about those provisions you have spoken of and pointed out at least I pointed out-that in my judgment the provisions of the law go too far in giving the Governor a veto. But I suggested that there might be alternative ways in which to achieve that very thing. Let me give you a proposal, or the outlines of a proposal and ask your judgment of it. Suppose that we adopted first a rule of statutory interpretation which would say in effect that unless the Congress specifically named Puerto Rico in a statute, it would be assumed that the statute did not apply to Puerto Rico. Secondly, that there be a commission set up to review existing laws to advise the Congress and Puerto Rico with respect to such changes in laws that would be proper or advisable in order to take any burdens of federal laws that should not properly be applicable to Puerto Rico. While a commission would be advisory only, the Congress would have its advice on what changes would be made. Finally, with respect to rules and regulations and administrative actions taken under laws, suppose we provided that the Governor of Puerto Rico would have the right to make an objection to those rules and regulations on the grounds that first, a uniform federal policy was not necessary. And, second, that the interests of Puerto Rico were inconsistent with those rules and regulations. And then provide that the agency would have within a period of time to make a finding that either they were consistent with the interests of Puerto Rico, or that they were required by a national uniform policy. And if they could not make those findings, then the rules and regulations would not be applicable to Puerto Rico. And that that action would be reviewable in court, but under a standard that is provided for the Administrative Procedures Act. That is, one where there is a presumption of validity if supported by substantial evidence. Otherwise, it could be declared illegal. What is your reaction to that proposed change, if that was not too much for you all at one time? Mr. AGOSTO. Well, Mr. Chairman, that certainly would be an improvement from what we have, no doubt. But let me go back to this proposal in sub-part 4 of bill 712. There is a question of legitimacy of some kind of participation of Puerto Rico in the process, which your proposal does not meet. And I would not call this procedure the Governor's veto, because actually, what the Governor would be doing is just the same as he would be doing with the agencies. He would be certifying to the Congress that some specific federal statute does not meet the policy established of differential treatment and that there is a local statute in conflict with that. And then the Congress has 60 days to decide where there is an overriding national interest that that specific law be applied to Puerto Rico. The CHAIRMAN. Well, I understand that procedure that you propose. But it seems to me that that procedure fixes a problem that is not a problem. We have heard the three resident commissioners; Mr. Fuster said there were a number of times when he could not get the Congress to go along with what he proposed. One example he gave was on maternity leave, I believe; shipping was another one, I think. The problem there was that those were the only examples that he could think of, but the Congress considered it, and considered that there was a national policy that they wanted to be brought out. What I fear is that under your proposal the Congress might not specifically focus on Puerto Rico. And that would give, in effect, the Governor a veto, which might be inconsistent with what the Congress really intended. It seems to me that your resident commissioners, in the legislative process, can focus the attention of Congress and make a choice as to whether it is applicable to Puerto Rico or not. Mr. AGOSTO. Well, I would like to make several comments in relation to that. I do not question the effectiveness of our resident commissioners, but I come back to this matter of legitimacy, of having a built-in system where Puerto Rico has some sort of participation in federal legislation that will be applicable to Puerto Rico, first. Second, I heard Don Jaime dealing with his colleagues and saying to them: I have no vote; my vote is of conscience. Well, it is good to have a good conscience, but it is better to have some written rules by which the conscience would abide. So I think that is important also. Let us not depend on persons, let us have the procedures, the systems, the institutions. So I think the problem really deals with two aspects. It is the practical aspect of Puerto Rico being able to fight for what he considers is best for Puerto Rico, and the effectiveness that we may have or not have at any point in time. Second, this is a matter of legitimacy of some type of participation. And again, Mr. Chairman, if you will excuse me, but I find it difficult to call this procedure a Governor's veto, because what he is actually doing is raising a question of applicability, in which case the Congress has the option of making a finding that there is an overriding national interest that the law be applied to Puerto Rico. And third, there is the private litigation. As of now, you have a number of cases where federal laws that apply to Puerto Rico have been questioned by private citizens. This procedure that we propose in sub-part 4 will considerably reduce even private litigation, because you will be saying beforehand, this federal law is not applicable to Puerto Rico; this federal law is applicable to Puerto Rico. So, that would not have to be litigated at all, because it has been already settled. So the litigation will be reduced, as I say in my statement, to only those cases in which the Congress does not make a specific finding that there is an overriding national interest and where the Governor has not made any certification. So it will be reduced immensely to only those instances. The CHAIRMAN. Senator McClure. Senator MCCLURE. Thank you very much, Mr. Chairman. ers; not ple mer ed ot e I am a little puzzled to know whether or not the provision that you are suggesting can be applied, and exactly how. I do not know whether or not you have the bill in front of you, but on page 44 of the bill, sub-part 3 establishes certain principles. Then, that is followed on the next page by sub-part 4, which is the implementation of federal policy. And it starts with an addition to existing federal statute, with the enactment of a new sub-section b. That provides the general outline that a federal statutory law or provision of such law is locally inapplicable unless it is consistent with the policy established in sub-part 3, and unless such federal statutory law has proper regard for the economic, cultural, ecological, geographic, demographic, and other local conditions of the Commonwealth of Puerto Rico. And that is followed by certain exceptions. And then we come on the next page to sub-section c which provides in addition to judicial determinations of the inapplicability of federal laws under sub-section b, it provides for the determination by the Governor and the review by the Congress and the President. So you have got about two or three different ways to test the applicability, the first being under the general principles as construed by a court, before you you get to the other question of the process initiated by the Governor of Puerto Rico. I am not quite certain that I know how those standards would be applied. I suspect you are not quite certain either, because it is up to a future court to determine. But I do not mean to nit-pick the proposal; I want to examine it just a little, however. For instance, does the Clean Air Act show "due regard for the ecology of Puerto Rico"? Would you view a challenge to the Clean Air Act's applicability to Puerto Rico as being a valid enactment of the statute, and how would the courts react to that? Mr. AGOSTO. I understand your concern, Senator McClure. I am not knowledgable of all the details of the Clean Air Act, so I cannot give you an opinion of whether it is consistent with the policy. But, taking into consideration the statements made by the Chairman, I would say this: This can be handled in several ways. If this is approved, it could be left to be applicable to existing legislation and new legislation. Of course, if you leave it open to existing legislation, then you will have a number of cases arising out of these provisions. You can reduce that by adopting the suggestion of creating a commission to study existing law. Senator MCCLURE. I understand that, but I am really trying to figure out how this would be interpreted by the court. Because, aside from the question that can be raised by the Governor in his certification, there is a statutory standard here, which is a consistency with the principles the Commonwealth set forth in sub-part 3, and it is up to the court to determine how to apply those principles under the statutory guidelines set forth in sub-paragraph b on page 45. And it says, "unless such Federal statutory law has proper regard for the economic, cultural, ecological, geographic, demographic, and other local conditions of the Commonwealth of Puerto Rico." Now the court is going to take any challenge to a federal |