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COMMENT BY:
National Mining Association
Dear Mr. Charney: The National Mining Association (NMA) is pleased to offer its comments on the Office of Management and Budget's (OMB) proposed revision to OMB Circular A-110, titled "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg. 5684-5 (February 4, 1999). NMA is a national trade association that includes the producers of most of the nation's coal, metals, industrial and agricultural minerals; the manufacturers of mining machinery, equipment, and supplies; mineral owners; the transportation and users of coal and minerals; and the engineering and consulting firms, financial institutions and other firms serving the mining industry. NMA and its members are particularly interested in OMB's proposed revisions, because NMA has specifically requested and been denied access to raw data held by third party researchers on behalf of the Environmental Protection Agency (EPA) in a recent high-profile rulemaking. In fact, although NMA appealed EPA's decision not to provide all of the requested data on May 2, 1997, NMA never received a decision on our appeal (notwithstanding the fact that FOIA requires a response to our appeal within 20 working days; 5 U.S.C. § 552(a)(6)(A)(ii) (1997)). The data sought by NMA relates to studies heavily relied upon by the agency in its proposed rule on particulate matter, 61 Fed. Reg. 65638 (Dec. 13, 1996). NMA needed access to this data to provide meaningful comments to EPA on the proposed rule. Had OMB's revisions been in effect in 1996, NMA could have accessed data critical to the mining industry's ability to fairly evaluate key studies that directly resulted in regulatory decisions that will have enormous consequences for our industry and many others. Therefore, NMA fully supports revisions to Circular A-110, and urges OMB to proceed with all deliberate speed to implement these important changes for the benefit of the public. NMA recommends that the language of Circular A- 110 be clarified to state specifically that: "the amended Circular shall apply to all Federally funded research, regardless of the level of funding or whether the award recipient is also using non-Federal funds." Such language in the Circular would faithfully implement Congressional intent, and would ensure that the revision provides the full benefits to the public anticipated by Congress. In addition, it would be consistent with numerous Federal agency policies, including EPA's, that apply restrictions on Federal grant money recipients that receive any Federal funds. See e.g. EPA's Interim Guidance on Environmental Justice, November 24, 1997 ("Acceptance of EPA funding creates an obligation on the recipient to comply with the regulations for as long as any EPA funding is extended). Providing public access to data underlying published research findings that are used by Federal policymakers is not only fair, but will result in improved rulemaking through openness and review of agency decision-making. Agency decisions that are based on sound science and logical inferences will be further validated, justified and upheld. Arbitrary agency actions that are not supported by the record and data will be discouraged. All the while, all nine of the current Freedom of Information Act (FOIA) exemptions will still apply, when warranted, so that certain confidential or sensitive information will continue to be protected from public scrutiny. NMA is pleased to support OMB's proposed revision to OMB Circular A-110, with the clarification that studies receiving any Federal funding that are relied upon by a Federal agency to develop policy or rules will be subject to FOIA requests. Thank you for your consideration of our views on this important issue. To aid your deliberations, NMA has attached copies our initial FOJA request, EPA's April 22, 1997 response, and NMA's May 2, 1997 appeal of EPA's initial determination of our FOIA request. Sincerely,
Bradford V. Frisby |
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