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COMMENT BY:
Edison Electric Institute (EEI)
Dear Mr. Charney: The Edison Electric Institute (EEI) appreciates the opportunity to submit comments on the above-referenced Federal Register notice. In the notice, the Office of Management and Budget (OMB) proposes to amend its Circular A-110 to make publicly available under the Freedom of Information Act (FOIA) certain data relied on by federal agencies in developing policies or rules. To achieve this goal, the proposed revision of Circular A-110 would require agencies that rely on data compiled by a federal grantee to obtain the data so the information can be made available to the public. In proposing this revision to Circular A-110, OMB is implementing a provision of Public Law (PL) 105-277 that requires OMB to amend "Section 36 of OMB Circular A-110 to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under" FOIA. In a floor statement supporting this provision of the statute, Senator Lott indicated that its purpose was to assure that "the public has access to the research and underlying data used by the Federal government in developing policy and rules." 144 Cong. Rec. S 12134 (10/9/98). Senator Shelby echoed this sentiment, and Senator Campbell added, "The Conferees recognize that this language covers data not currently covered by" FOIA, and "applies to all Federally funded research data regardless of whether the awarding agency has the data at the time the request is made." Id EEI has a direct interest in this provision of PL 105-277 and OMB's proposed revision of Circular A-110. EEI is the association of the nation's shareholder-owned electric utilities, international affiliates, and industry associates worldwide. Our U.S. members serve over 90 percent of all customers served by the shareholder-owned segment of the industry. They generate approximately three-quarters of all the electricity generated by electric companies in the country and service about 70 percent of all ultimate customers in the nation. EEI's members are heavily regulated by federal and state agencies, not only in the electricity rate making context, but also in the environmental, occupational health and safety, securities, tax, and myriad other contexts. Working with our members, EEI frequently participates in the development of federal policy and regulations. In particular, we comment in response to Federal Register notices of proposed guidelines, policy statements, and rules. In order to provide meaningful comments on the federal agency proposals, we need to be able to review the entire record on which those proposals are based, and to provide feedback not just on the proposals themselves, but on the underlying data on which they are based. In fact, part of the impetus for the disclosure requirement of PL 105-277 is that the U.S. Environmental Protection Agency (EPA) relied on data from a federally-funded research project by Harvard University in setting the agency's proposed PM2.5 rules, which address airborne particulate matter 2.5 microns in size or smaller. The PM2.5 rules will have a significant impact on our industry. EEI, as a member of the Utility Air Regulatory Group (UARG), sought the data to which EPA referred in a "data effects survey" in the rulemaking, so we could provide meaningful comments on the rules. But Harvard declined to provide the data we sought. EPA's proposed PM2.5 limits are heavily debated even by its own Scientific Advisory Board, and the data underlying the proposed rule are crucial to the debate. Yet the companies that would be among the most directly affected by the rule were not given an adequate opportunity to evaluate and comment on the underlying data set and conclusions based on the data. This is especially ironic given that the public funded compilation of the data, which were not then made publicly available despite EPA's reliance on the data in its rulemaking. As Congress recognized in enacting FOIA, information relied on by federal agencies in decisions that affect the public should be made available to the public for scrutiny. As Justices Brennan and Marshall noted in dissent in Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977 (1980), "FOIA is a broad enactment meant to open the processes of Government to public inspection. It reflects a finding that if left to themselves agencies would operate in near secrecy. FOIA was, therefore, enacted to provide access to information to enable 'an informed electorate,' so 'vital to the proper operation of a democracy,' to govern itself. S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965)." 445 U.S. at 189 (footnote omitted). To some extent, even the majority in the Forsham case seemed to recognize the importance of access to information on which federal agency decisions are based. In that case, the Food and Drug Administration (FDA) relied in part on data stemming from a federally-funded research program in suspending a prescription drug used to treat diabetes. The Court did not permit the petitioners to obtain the underlying data from the research program, on the grounds that the FDA had not reviewed the original data so those data were not an "agency record" under FOIA. But the Court noted that, according to the court of appeals involved in the case, the "data reviewed by the FDA have been made available to petitioners." Id at 178, n. 7.
EEI Generally Supports OMB's Proposal. EEI encourages OMB to adopt the proposed changes to Circular A- 110, with three improvements. As OMB proposes, federally-funded research data that are relied on by federal agencies in their decision making must be made available to the public, at least to the extent the resulting decisions will affect a regulated community. But OMB should improve its proposal through three clarifications. First, the data need to be made available at the proposal stage of the decision-making process or earlier, not after agency decisions already have been made. Second, all data on which an agency relies in making its decision need to be made available, whether "published" or not. Third, if an agency selects just part of a data set or a study based on a data set to support a proposed decision, the overall data set needs to be available for review and comment by the regulated community and the public, not just the study or part of the data selected, to ensure that the study or selected data are representative and understood in context. Thus, EEI would not limit public access to research findings that "were" used by the federal government, as the current proposal now does. The best time for a federal agency to consider comments on the record on which it proposes to base its decision is when the decision is at a formative stage. Waiting until after the decision has been made based on data that "were" used by the agency is too late. The credibility of regulations and other agency decisions would be strengthened if the access provisions were to extend to all data used in support of regulatory decisions, both existing as well as proposed or future regulations. Furthermore, all of the information relied on by the agency needs to be made available, not just the "published" research findings. We strongly support a preference for the use of published, peer-reviewed studies in agency decision making such studies are the foundation of sound science that should support agency decisions. However, if an agency is going to rely on unpublished data and information, such data most calls for public scrutiny and the opportunity for public comment before the agency relies on it. Similarly, if an agency selects just part of a data set to support its decision, or relies on studies based on an underlying data set, public access to the overall data set to put the data in proper perspective and ensure that it is accurately represented in the agency proceeding is warranted. OMB is to be complimented on its proposed revisions to Circular A-110, as far as the revisions go. The proposed revisions are straightforward, relatively comprehensive, flexible in application, and accommodating to existing policies and procedures under Circular A-110, FOIA (5 U.S.C. § 552), the Paperwork Reduction Act (4 U.S.C. § 3501), and other existing policy and procedural requirements at federal agencies. The approach taken by OMB in its proposed revisions to OMB Circular A-1 10 also provides ample flexibility to federal agencies to develop more detailed and tailored procedures specific to their own needs and circumstances. Efforts have been underway in recent years to improve and strengthen access to information relied on by the government in decisions that affect the regulated community. This includes the framework of procedures and exemptions contained in FOIA as well as other government regulatory polices. It is now widely accepted that the quicker and more complete the public's access to such data is, the more robust and effective an agency's proposed policy decisions are likely to be. At the same time, professional and scientific research organizations, academic institutions, and state governments have been improving and strengthening access to the information they develop, possess, or use, as a way of enlightening public debate. Such broader access to data and other information fosters informed discussion within the scientific and professional communities, where substantial expertise on the subject can be applied. By facilitating and encouraging the opportunities for full and comprehensive discussion within the scientific community, we increase the probability that federal regulations and policies will achieve stated public policy objectives in the most targeted and efficient ways. By promoting review of information on which federal agencies base decisions, OMB will help promote a knowledge base that is stronger because it has broad scientific support. In turn, this will increase the credibility and soundness of federal agency regulatory and public policy decisions. OMB's Proposed Revisions Are Consistent With Data Sharing Efforts and Confidentiality Provisions Already in Place The OMB's proposed revisions are consistent with, and build on, existing policies and procedures to expand the public's access to data used in regulatory decision making. For example, the FDA, the National Institute of Justice at the Department of Justice, the National Institutes of Health, the National Aeronautics and Space Administration, and the Public Health Service are just a few of the federal agencies with rules, procedures, and policies that strengthen and facilitate the public's access to scientific data used in public policy decision making. Similarly, the President's Executive Order No. (EO) 13045 on Children's Health issued on April 21, 1997 sets forth requirements for access to research funded by the federal government on children's health effects. The Executive Order requires the development of a plan to ensure that researchers and Federal research agencies "have access to information on all research conducted or funded by the Federal Government that is related to adverse health risks in children. ... It shall include recommendations to encourage that such data ... is available to the public, the scientific and academic communities, and all Federal agencies." E0 13045 §~ 4-40 1, 402. In the scientific and academic communities there is also widespread support and discussion for more timely and open access to data used in federal regulatory decisions. The National Research Council, the Institute of Medicine of the National Academy of Sciences and the American Physical Society are just a few examples of organizations with policies encouraging the free flow of scientific information and maximized access to scientific data. The academic community has also traditionally encouraged the free flow of scientific or academic research. Duke University's policy addresses the entitlement of extramural research sponsors, which would likely include the federal government, while the Massachusetts Institute of Technology (MIT) recommends that research data should "be retained for a sufficient period to allow examination and further analysis by others" who want to see the data after a study based on them is published. Fostering Academic Integrity, Report of the Committee on Academic Responsibility, Appointed by the President and Provo of MIT, April 15, 1992. There are certainly many other institutions, including the University of California at San Francisco, the University of Minnesota and the University of Pennsylvania to cite just a few, that have developed policies which encourage and stimulate free and full review and discussion of academic or research data. While each institution has framed the issue in ways that respond to its unique needs and priorities, the pattern of maximum practical disclosure and fullest scientific discussion is evident in all of the policies. The federal government should do no less, and the OMB revisions to Circular A-110 are a significant step in the right direction.
FOIA Will Generally Address Confidentiality Some commenters have expressed concerns that the proposed revisions of Circular A-11O will conflict with existing FOIA policies and procedures, in particular FOIA's protections against harmful disclosures. However, OMB's proposal is sufficiently focused and flexible that it should integrate well with existing FOIA rules, including FOIA's privacy and confidentiality provisions. EEI strongly supports non-disclosure of personal information on named individuals and confidential business information on named companies. Properly applied, FOIA protects such sensitive information. In particular, FOIA exemptions "b(4)" and "b(6)" cover "trade secrets and commercial or financial information obtained from a person and privileged or confidential" and "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 5 52(b). FOIA specifies that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." Id Thus, for example, the identity of the company to which commercial and financial information pertains should be withheld, if that provides sufficient confidentiality, or the data themselves may need to be masked in part or aggregated to provide such confidentiality. Indeed, public-private cost-sharing research partnerships are increasingly common, in part because such partnerships can help meet the needs of federal regulatory agencies in the face of budget constraints. In this context, it would make sense for OMB to allow the private sector participants in such jointly-funded projects the opportunity to make recommendations to the appropriate federal agency on whether, and if so to what extent, the data should be withheld from disclosure pursuant to current FOIA exemptions. As these cost-sharing partnerships become more common and involve regulatory proposals with more significant economic and social implications, it may make some sense to provide the opportunity for agencies to consider the unique perspective of partner organizations in the private sector. OMB Might Consider Adding Definitions to Help Clarify the Proposed Revisions The proposed revisions to Circular A-110 contain several terms that might benefit from clearer OMB guidance as to their intended meaning. This could be accommodated by adding a new subsection on "definitions." Terms that might be included in this new subsection could include "within a reasonable time," "data," "used," "produced under an award," "published research findings," and "developing policy or rules." In any case, we suggest a review of these and other terms used in the proposed revisions to ensure that their meaning is as clear and unambiguous as possible. We would be pleased to supply more specific suggestions if requested. Again, EEI appreciates the opportunity to comment on OMB's proposed revisions to Circular A-110. We would be happy to provide additional information or thoughts on these matters. If you have any questions about these comments, please contact Henri Bartholomot on EEI staff. Sincerely yours, Paul Bailey |
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