Appropriators reject 'secret science,' vote
to implement Shelby amendment
On July 13, the House Appropriations Committee voted 33 to 25 to
reject a proposal by Reps. David Price (D-NC) and Jim Walsh (R-NY)
that would have blocked implementation of the Shelby amendment for
one year. Enacted into law last Fall, the Shelby amendment requires
that the public be given access through the Freedom of Information
Act to data generated by federally-funded researchers.
In years past, this "secret science" has not been made available
for public review, despite the fact that it has been used to
generate federal policies and regulations, including the
Environmental Protection Agency's new particulate matter standards.
Codified last year, those regulations threaten to bring road
construction around the country to a grinding halt.
Through the Transportation Construction Coalition, AED has been
leading the construction industry's lobbying efforts to protect the
Shelby amendment and prevent the use of secret science in federal
policymaking. The TCC is a coalition made up of 27 construction
industry associations and unions chaired jointly by the American
Road and Transportation Builders Association and the Associated
General Contractors of America. AED Washington staff chair the TCC's
environmental subgroup and coordinated a lobbying push by TCC
members on the eve of the Appropriations Committee vote.
AED's Obadal testifies before House subcommittee
As part of AED's efforts to protect the Shelby amendment, on July
15 AED Washington Counsel Tony Obadal testified before the House
Government Reform Committee's Government Management, Information and
Technology Subcommittee. The focus of the hearing was HR 88, a bill
introduced earlier this year by Rep. George Brown, Jr. (D-FL) that
would repeal the Shelby amendment outright.
Testifying with Obadal against HR 88 were Prof. Jim O'Reilly, a
noted expert on the Freedom of Information Act; Jim Miller,
President Ronald Reagan's budget director; and Bill Kovacs, vice
president for environmental and regulatory affairs for the U.S.
Chamber of Commerce. Observers agreed that the hearing created a
solid record in support of the Shelby amendment that will make it
very difficult to move HR 88 through the Government Reform
Committee.
By a sad coincidence, Rep. Brown died on July 15, the day the
subcommittee was gathering testimony on his bill. It's unclear at
this point who, if anyone, will pick up the mantle and continue
Brown's fight against open government.
Now on to the Senate
With our important victories in the House behind us, the
battleground now shifts to the Senate. Sen. Daniel Patrick Moynihan
(D-NY) introduced legislation earlier this month that would not only
repeal the Shelby amendment but also would expand exceptions in the
Freedom of Information Act and would make changes to the Federal
Rules of Civil Procedures and Federal Rules of Evidence to prevent
scientific research data from being used in federal court. Although
no one is giving the Moynihan bill (S 1437) much chance of success,
we're not taking any chances and have already begun marshaling our
forces in opposition to the proposal. AED members are encouraged to
contact their senators in opposition to Moynihan's closed government
bill.
OMB continues Shelby amendment implementation process
There's also action on the secret science issue at the Office of
Management and Budget. On August 11, OMB published its revised
proposal to implement the Shelby amendment in the Federal
Register. OMB had been dragging its feet, apparently waiting to
see whether efforts to use the appropriations process to block the
Shelby amendment would succeed. They didn't. Now the Clinton
administration is trying to water down the Shelby amendment through
the implementation process.
Although the Shelby amendment clearly says that "all data"
produced under a federal grant or award has be made available to the
public, the OMB proposal limits the Shelby law's applicability to
data that is used to develop a formal regulation. This limitation
neglects the fact that agencies can use - and misuse - data in many
ways unrelated to the regulatory process (for example in damaging
reports, studies, and guidance material).
The OMB has also proposed limiting the Shelby amendment's
applicability to those regulations that cost the economy $100
million or more and wants to give individual researchers wide
discretion in determining what parts of their research should be
turned over for public review. This would in essence make every
researcher an FOIA officer and prevent any effective public
oversight of the science that the government uses to develop the
regulations that affect every aspect of our lives.
AED will be raising these issues and others when we submit our
comments on the OMB proposal later this month. If OMB does not carry
out the full intent of the Shelby law, organizations supporting
openness in government may have to take OMB to court or seek a
further legislative solution to get the Shelby language fully
implemented.