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                                                      Calendar No. 124
114th Congress     }                                   {        Report
                                 SENATE
 1st Session       }                                   {        114-69

======================================================================



 
                   SECRET SCIENCE REFORM ACT OF 2015

                                _______
                                

                 June 22, 2015.--Ordered to be printed

                                _______
                                

    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 544]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 544) to prohibit the Environmental 
Protection Agency from proposing, finalizing, or disseminating 
regulations or assessments based upon science that is not 
transparent or reproducible, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill, as amended, do pass.

                    General Statement and Background

    Current law does not guarantee that Environmental 
Protection Agency (EPA) regulatory actions are based on the 
best available science, nor does it ensure the science used is 
transparent or independently verifiable. While numerous 
Administration policies and guidance recommend such safeguards, 
they fall short of meeting the open access and integrity 
standards for sound science.
    Aside from EPA-generated science, the Agency primarily 
relies on studies that have been conducted outside the Agency 
and peer reviewed. However, in many cases peer reviewers do not 
have access to underlying data and therefore cannot verify the 
findings of the studies under review. In 2014, a survey of 
experts in risk analysis and toxicology released by George 
Mason University found that only 16% of those surveyed said 
peer reviewers often or always have access to underlying data 
from critical studies. Moreover, peer review alone is not a 
sufficient check on science. In 2002, the National Research 
Council explained ``peer review alone does not detect fraud, 
validate factual findings . . . or substitute for the judgments 
of the scientific community as a whole.'' Further, in 2014 The 
Economist reported ``[m]odern scientists are doing too much 
trusting and not enough verifying--to the detriment of the 
whole of science, and of humanity. Too many of the findings 
that fill the academic ether are the result of shoddy 
experiments or poor analysis.''\1\
---------------------------------------------------------------------------
    \1\http://www.economist.com/news/leaders/21588069-scientific-
research-has-changed-world-now-it-needs-change-itself-how-science-goes-
wrong
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    EPA also has a record of relying on science conducted 
outside the Agency that is not available to the public--or to 
the EPA--and therefore cannot be replicated or verified by 
independent researchers. For example, virtually all Clean Air 
Act regulations under the Obama Administration have been 
justified by data sets collected by two non-governmental 
institutions over 30 years ago, which have been withheld from 
the public and cannot be replicated. In 2014, Congress learned 
this data either no longer exists, is of such poor quality that 
modeling results cannot be replicated, or has not been coded to 
facilitate independent analysis. However, EPA continues to rely 
on this data to support major regulations.
    Open access to data is consistent with requirements of 
major scientific journals, as well as the academic and 
scientific community. For example, Nature Partner Journal (NPG) 
states: ``NPG has consistently been an early mover in embracing 
[open access] as a natural consequence of new technologies . . 
. As of 2015, we publish 74 journals with an open access 
option, and 44 percent of the research articles we published in 
2014 were open access.''\2\ The following journals are fully 
open access: Nature Communications, Nature Partner Journals, 
Scientific Reports, Scientific Data, and 20 society and 
academic journals.\3\ Dr. John Graham, Dean, Indiana 
University, and former Administrator of the Office for 
Information and Regulatory Affairs stated in testimony before 
the House Committee on Science, Space and Technology in 
February 2014: ``Once environmental scientists have published 
their work in the peer-reviewed scientific community, it is 
already common practice for them to share their data with other 
scientists who have an interest in their research.'' In 2009, 
the Bipartisan Policy Center's Science for Policy Project 
recommended: ``Studies used in the formulation of regulation 
should be subject to data access requirements equivalent under 
the Data Access Act (Shelby Amendment) and its implementing 
circular regardless of who funded the study.'' In June 2013, 
the Administrative Conference of the U.S., an independent 
federal agency that provides expert advice and recommendations 
for improvement of federal agency procedures encouraged ``the 
disclosure of data, including both privately-funded and 
federally-funded research that an agency is considering.'' 
Accordingly, it is time for the EPA to use science that follows 
this practice.
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    \2\http://www.nature.com/authors/open_access/about_open_access.html
    \3\http://www.nature.com/authors/open_access/about_open_access.html
---------------------------------------------------------------------------
    Ensuring EPA action is based on technical and scientific 
information that is publicly available provides the much needed 
transparency and opportunity for verification to ensure public 
confidence in EPA action. Above all, independent verification 
and transparency improves the credibility of the science, which 
leads to better decision making at EPA and greater public 
health protection. As new datasets are made public, greater 
collaboration among public health experts could lead to more 
rapid advances in science that could save lives and lead to 
breakthroughs in new areas. Thus, in the spirit of advancing 
science and creating well-informed public policy at the EPA, S. 
544 is necessary to achieve these goals.

                     Objectives of the Legislation

    The purpose of S. 544, the ``Secret Science Reform Act of 
2015,'' is to prohibit the Environmental Protection Agency 
Administrator from finalizing, proposing, or disseminating a 
covered action unless all scientific and technical information 
relied on to support the covered action is the best available 
science, specifically identified, and publicly available in a 
manner that is sufficient for independent analysis and 
substantial reproduction of research results.

                      Section-by-Section Analysis


Section 1. Short Title

    This Act may be cited as the ``Secret Science Reform Act of 
2015.''

Sec. 2. Data Transparency

    Section 2 amends section 6(b) of the Environmental 
Research, Development, and Demonstration Authorization Act of 
1978 by striking and replacing the existing text.
    Paragraph (1) prohibits the Environmental Protection Agency 
(EPA) from taking a covered action unless the scientific and 
technical information relied on to support the covered action 
is the best available science, is specifically identified, and 
is publicly available online in a manner that is sufficient for 
independent analysis and substantial reproduction.
    The Committee does not intend for EPA to duplicate public 
access to scientific data that is already provided by others. 
For example, ClinicalTrials.gov currently lists 189,951 
studies. Similarly, the National Center for Biotechnology 
Information, a division of the National Library of Medicine at 
the National Institutes of Health (NIH) hosts 40 online 
literature and molecular biology databases. Most scientific 
journals are available online directly or through one of these 
databases. Moreover, if scientific or technical information is 
federally funded, the Data Access Act, Pub. L. No. 105-277, 
tit. III, 112 Stat. 2681, 2681-495 (1998), and subsequent 
guidance in the Office of Management and Budget's Circular A-
110, require such information to be ``made available to the 
public through the procedures established under [the Freedom of 
Information Act]'' if it is ``used by the federal government in 
developing an agency action.''\4\ Circular A-110 is clear that 
data access provisions applied even to mixed private/public 
funded research, stating ``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.''\5\ Experts have suggested that at least half 
the studies used by EPA are based on at least minimal federal 
funding, which would trigger the data access requirements under 
Circular A-110.
---------------------------------------------------------------------------
    \4\OMB Circular A-110, ``Uniform Administrative Requirements for 
Grants and Agreements With Institutions of Higher Education, Hospitals, 
and Other Non-Profit Organizations,'' 2 C.F.R. 215.36(d).
    \5\64 Fed. Reg. 5,684, 5,684 (Feb. 4, 1999).
---------------------------------------------------------------------------
    The Committee also does not intend for EPA to duplicate 
standards establishing sufficiency for independent analysis and 
substantial reproduction. As noted by Dr. Francis Collins and 
Dr. Lawrence Tabak in a comment on NIH plans to enhance 
reproducibility, published in Nature in January 2014, human 
clinical trials do not present a reproducibility problem due to 
stringent regulation of such trials.\6\ Accordingly, the 
Committee deems human clinical trials that meet current 
regulations applicable to such trials to meet the standards set 
forth in paragraph (1). Reproducibility has been an issue for 
preclinical research. To address this issue, NIH has adopted 
``Principles and Guidelines for Reporting Preclinical 
Research.''\7\ Included in those guidelines is a requirement 
that ``all datasets on which the conclusions of the paper rely 
must be made available upon request (where ethically 
appropriate) during consideration of the manuscript (by editors 
and reviewers) and upon reasonable request immediately upon 
publication.'' The Committee deems any information and 
technical information published in a journal or other 
publication under conditions that meet NIH's Principles and 
Guidelines to be information that is sufficient for independent 
analysis and substantial reproduction.
---------------------------------------------------------------------------
    \6\Collins, F. and Labak, L, NIH Plans to enhance reproducibility, 
Nature, Vol. 505, p. 612, Jan. 30, 2014, available at http://
www.nature.com/news/policy-nih-plans-to-enhance-reproducibility-1.14586
    \7\http://www.nih.gov/about/reporting-preclinical-research.htm
---------------------------------------------------------------------------
    S. 544 would not require EPA to collect, host, reanalyze, 
reproduce, disseminate, or otherwise make publicly available 
any scientific or technical information as defined in the bill. 
Rather, S. 544 would require EPA to base covered actions on 
scientific and technical information that is otherwise publicly 
available in a manner sufficient for independent analysis and 
substantial reproduction of research results. This provision 
would not significantly diminish the studies used by EPA for 
several reasons, including: electronic data has become a 
standard for scientific research in the digital age, many 
scientific journals publishing such studies require full 
transparency to verify research results, federal agencies 
including the EPA are already required to provide public access 
to data based on any federal funding, and certain federal 
agencies host existing data repositories that would meet the 
publicly available provision of this bill. Accordingly, this 
provision dramatically shifts any burden away from EPA.
    Insofar as the EPA seeks to rely on information that is not 
deemed to be sufficient for independent analysis and 
substantial reproduction as described above, the Committee 
expects agency officials to ask the researcher to make the 
scientific or technical information publicly available in a 
manner sufficient for independent analysis and substantial 
reproduction of research results. This type of communication 
and interaction between EPA and researchers is a common 
practice at the Agency. For instance, during the recent 
development of the National Ambient Air Quality Standards for 
Ozone, the online rulemaking docket reveals examples of EPA 
officials engaging with researchers asking for clarification or 
access to data.\8\ If the researcher informs EPA the scientific 
or technical information is not public and EPA wants to rely on 
their study for a covered action then EPA, similar to the 
policies of the National Science Foundation (NSF), NIH, and the 
National Aeronautics and Space Administration (NASA), could 
encourage the researcher to share the information through 
existing repositories.\9\
---------------------------------------------------------------------------
    \8\http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-
0699-0399;
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-0699-
0407;
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-0699-
0110.
    \9\http://www.crs.gov/pages/
Reports.aspx?PRODCODE=R42983#_Toc350167909
---------------------------------------------------------------------------
    Paragraph (2) clarifies that nothing in the section 
requires EPA to disseminate scientific and technical 
information, nor does the section supersede any 
nondiscretionary statutory requirements.
    The Committee does not expect EPA to itself collect or 
disseminate any information. As discussed above, there are 
ample venues for such dissemination. Nothing in this bill 
amends existing laws that protect confidential business 
information, trade secrets and other intellectual property from 
public disclosure. In addition, the Committee expects EPA to 
protect personnel and confidential information, as required by 
law. The National Academy of Sciences has confirmed that 
transparency and reproducibility in science is possible without 
any risks to confidentiality or privacy. In 2005, the Panel on 
Data Access for Research Purposes of the National Research 
Council stated in its report on Expanding Access to Research 
Data: Reconciling Risks and Opportunities: ``Nothing in the 
past suggest that increasing access to research data without 
damage to privacy and confidentiality rights is beyond 
scientific reach.''\10\ The House of Representatives Committee 
on Science, Space and Technology received a letter of support 
for a similar House bill in the 113th Congress from more than 
80 scientists, experts, and doctors, including two former EPA 
officials and two former chairs of EPA science committees, 
which stated that ``complying with [the Secret Science Reform 
Act] can be accomplished without imposing unnecessary burdens, 
discouraging research, or raising confidentiality concerns. 
Across different disciplines, numerous statistical and 
technical approaches exist to protect any sensitive 
information.''\11\
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    \10\http://www.nap.edu/catalog/11434/expanding-access-to-research-
data-reconciling-risks-and-opportunities
    \11\http://science.house.gov/sites/republicans.science.house.gov/
files/documents/Letter%20of%20Support%20for%20HR%204012%20-
%2087%20Experts.pdf
---------------------------------------------------------------------------
    Paragraph (3) defines the terms covered actions and 
scientific and technical information.
    Paragraph (4) requires EPA to carry out this subsection in 
a manner that does not exceed $1 million a year. Based on the 
fact that EPA itself will not be collecting or disseminating 
information, but instead will rely on other entities and 
repositories, the Committee believes that EPA can easily carry 
out its duties under this Act for $1 million a year.

Sec. 3. Preventing Censorship of Publicly Funded Science

    Section 3 states that the Act does not limit the ability of 
federal employees or agencies to use in official documents or 
presentations terms common in the peer-reviewed scientific 
literature, including terms relevant to climate change, 
pollution, toxic substance exposure or other risks.

                          Legislative History

    On February 24, 2015, S. 544, ``The Secret Science Reform 
Act of 2015'' was introduced by Senator Barrasso along with 
seven cosponsors in the Senate. On April 28, 2015, the Senate 
Committee on Environment and Public Works met to consider S. 
544. An amendment was offered by Senators Boxer and Markey and 
passed by a unanimous vote of 20 Ayes. The bill, as amended, 
was approved on April 28, 2015, by a vote of 11 Ayes and 9 
Nays.
    In the 113th Congress, S. 2613, ``The Secret Science Reform 
Act of 2014'' was introduced by Senator Barrasso along with 
seven cosponsors in the Senate and referred to the Senate 
Committee on Environment and Public Works on July 16, 2014.
    On March 18, 2015, H.R. 1030, ``The Secret Science Reform 
Act of 2015'' passed the House of Representatives by a vote of 
241 Ayes and 175 Nays. In the 113th Congress, H.R. 4012, ``The 
Secret Science Reform Act of 2014'' passed the House of 
Representatives by a vote of 237 Ayes and 190 Nays, on November 
19, 2014.

                                Hearings

    The Senate Committee on Environment and Public Works did 
not hold any hearings on S. 544, ``The Secret Science Reform 
Act of 2015.'' However, the House of Representatives held 
hearings in the 113th Congress regarding a House companion 
bill, H.R. 4012, ``The Secret Science Reform Act of 2014.''\12\
---------------------------------------------------------------------------
    \12\On February 11, 2014, the House of Representatives, Committee 
on Science, Space and Technology, Subcommittee on Environment, held a 
hearing on ``The Secret Science Reform Act'' and Ensuring Open Science 
at EPA. On November 14, 2013, the House of Representatives, Committee 
on Science, Space and Technology held a hearing Strengthening 
Transparency and Accountability within the Environmental Protection 
Agency.
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                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 544 on April 28, 2015. An amendment was adopted by 
roll call vote. Two amendments were rejected by roll call vote. 
The bill was ordered favorably reported, as amended, by roll 
call vote.

Amendment approved

    1. Amendment that would prevent censorship of terms used in 
peer-reviewed scientific literature from official federal 
documents or presentations (offered by Senators Boxer and 
Markey) (adopted by voice vote).

Amendments rejected

    A total of two additional amendments to the bill were 
offered and not approved by the Committee, as follows:
    1. Amendment that would strike requirement for scientific 
and technical information to be made publicly available and 
replace with requirement that the funding sources of scientific 
and technical information be made publicly available (offered 
by Senators Markey and Boxer) (rejected by a roll call vote of 
9 yeas, 11 nays).
    2. Amendment that would allow use of peer-reviewed science, 
even if based on data that is prohibited from public disclosure 
(offered by Senators Markey and Boxer) (rejected by a roll call 
vote of 9 yeas, 11 nays).

Final Committee vote to report

    S. 544, as amended by the Boxer/Markey amendment, was 
approved and ordered to be reported to the full Senate. The 
roll call vote to report the bill was 11 to 9 in favor 
(Senators Inhofe, Vitter, Barrasso, Capito, Crapo, Boozman, 
Sessions, Wicker, Fischer, Rounds, and Sullivan voted yea, and 
Senators Boxer, Carper, Cardin, Sanders, Whitehouse, Merkley, 
Gillibrand, Booker, and Markey voted nay).

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Environment and 
Public Works finds that S. 544 does not create any additional 
regulatory burdens, nor will it cause any adverse impact on the 
personal privacy of individuals.

                          Mandates Assessment

    In compliance with Section 423 of the Congressional Budget 
and Impoundment Control Act (as amended by Section 101(a)(2) of 
the Unfunded Mandate Reform Act, P.L. 10404), the Committee on 
Environment and Public Works has received a letter from the 
Congressional Budget Office included herein.

                          Cost of Legislation

                                                      June 5, 2015.
Hon. Jim Inhofe,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 544, the Secret 
Science Reform Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 544--Secret Science Reform Act of 2015

    Summary: S. 544 would amend the Environmental Research, 
Development, and Demonstration Authorization Act of 1978 to 
prohibit the Environmental Protection Agency (EPA) from 
proposing, finalizing, or disseminating a ``covered action'' 
unless all scientific and technical information used to support 
that action is publicly available online in a manner that is 
sufficient for independent analysis and substantial 
reproduction of research results. Covered actions would include 
assessments of risks, exposure, or hazards; documents 
specifying criteria, guidance, standards, or limitations; and 
regulations and regulatory impact statements.
    Although S. 544 would not require EPA to disseminate any 
scientific or technical information that it relies on to 
support covered actions, the bill would not prohibit EPA from 
doing so. Based on information from EPA, CBO expects that EPA 
would spend $250 million annually over the next few years to 
ensure the transparency of information and data supporting some 
covered actions, assuming the availability of appropriated 
funds.
    Enacting S. 544 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. S. 
544 contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act (UMRA) and would 
not affect the budgets of state, local, or tribal governments.
    Estimated cost to the Federal Government: This legislation 
would direct EPA to implement S. 544 using up to $1 million a 
year from amounts authorized to be appropriated for other 
activities under current law. Although S. 544 would not 
authorize additional appropriations to implement the 
requirements of the bill, CBO estimates that implementing S. 
544 would cost about $250 million a year for the next few 
years, subject to appropriation of the necessary amounts. Costs 
in later years would probably decline gradually from that 
level. The additional discretionary spending would cover EPA's 
costs of ensuring that the data underpinning the studies used 
to support EPA's regulations and other regulatory activities 
are accessible to the public in a format that enables 
independent analysis and reproduction of the results.
    Basis of estimate: Under current law, EPA typically spends 
about $500 million each year to support research and 
development activities, including assessments to determine the 
potential risk to public health from environmental 
contaminants. The number of studies involved in supporting 
covered actions depends on the complexity of the issue being 
addressed. For example, when addressing a recent issue with 
flaring at petroleum refineries, EPA relied on a dozen 
scientific studies. In contrast, when reviewing the National 
Ambient Air Quality Standards, the agency relied on thousands 
of scientific studies. In total, the agency relies on about 
50,000 scientific studies annually to perform its mission--
although some of those studies are used more than once from 
year to year.
    Although EPA provides some access to the scientific and 
technical information it uses when issuing regulations and 
performing other related activities, enacting this bill would 
require EPA to provide a greater degree of transparency. Based 
on information from EPA, CBO estimates that the agency would 
spend, on average, $10,000 per scientific study for activities 
to meet the bill's requirements. Specifically, such funding 
would cover the costs of obtaining all of the underlying data 
used in a study, reviewing the data to address any 
confidentially concerns, formatting the data for public access, 
providing access to the computer codes and models used in the 
study's analysis, and providing descriptions and documentation 
on how to access the data. Such activities could entail 
correspondence and negotiations with study authors and 
publishers and computer processing services to construct and 
maintain data bases to store study-related information.
    The costs of implementing S. 544 are uncertain because it 
is not clear how EPA would meet the bill's requirements. If EPA 
continued to rely on as many scientific studies as it has used 
in recent years, and worked to make all of the technical 
information used in such studies available to the public as 
directed by S. 544, then implementing the bill would cost at 
least several hundred million dollars a year. However, EPA 
could instead rely on significantly fewer studies each year in 
support of its mission, and limit its spending on increased 
transparency to a relatively small expansion of existing study-
related activity; in that scenario, implementing the bill would 
be much less costly.
    Thus, the costs of implementing S. 544 would ultimately 
depend on how EPA adapts to the bill's requirements. (It would 
also depend on the availability of appropriated funds to obtain 
access to all data underlying the scientific studies it uses 
and prepare it for use by the public.) CBO expects that EPA 
would modify its practices, at least to some extent, and would 
base its future work on fewer scientific studies, especially 
those studies that have easily accessible or transparent data. 
Any such modification of EPA practices would also have to take 
into consideration the concern that the quality of the agency's 
work could be compromised if that work relies on a 
significantly smaller collection of scientific studies; we 
expect that the agency would seek to reduce its reliance on 
numerous studies without sacrificing the quality of the 
agency's covered actions related to research and development.
    On balance--recognizing the significant uncertainty 
regarding EPA's potential actions under the bill--CBO expects 
that the agency would probably cut the number of studies it 
relies on by about one-half and that the agency would aim to 
limit the costs of the new activities required by the bill. As 
a result, CBO estimates the incremental costs to the agency 
would be around $250 million a year initially, subject to 
appropriation of the necessary amounts. In our assessment that 
figure lies near the middle of a broad range of possible 
outcomes under S. 544. CBO expects that the additional costs to 
implement the legislation would decline over time as EPA became 
more adept and efficient at working with authors and 
researchers to ensure that the data used to support studies are 
provided in a standardized and replicable form.
    Pay-As-You-Go Considerations: None.
    Intergovernmental and private-sector impact: S. 544 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO estimate: On March 11, 2015, CBO transmitted a 
cost estimate for H.R. 1030, the Secret Science Reform Act of 
2015, as ordered reported by the House Committee on Science, 
Space, and Technology on March 3, 2015. S. 544 and H.R. 1030 
are similar and the CBO cost estimates for each bill are the 
same.
    Estimate prepared by: Federal costs: Susanne S. Mehlman; 
Impact on state, local, and tribal governments: Jon Sperl; 
Impact on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Assistant Director for 
Budget Analysis.

MINORITY VIEWS OF BOXER, CARPER, CARDIN, SANDERS, WHITEHOUSE, MERKLEY, 
   GILLIBRAND, BOOKER, AND MARKEY ON S. 544, AS REPORTED BY THE EPW 
                               COMMITTEE

    The ``Secret Science Reform Act of 2015'' is an attempt to 
stifle the use of good science under the disguise of `good 
governance'. It would result in a reduction in the scientific 
and technical information available to the EPA to inform 
decisions on covered actions, thus diminishing the Agency's 
ability to protect public health and welfare.
    There are several major concerns with this bill.
    By requiring all data used by EPA in covered actions to be 
made publicly available by the scientist or journal in an 
online repository, the bill prevents EPA from using sound 
science from many sources on which it currently relies. Forcing 
scientists to make their intellectual property publicly 
available in order to be used to support covered actions by the 
EPA would have a chilling effect on research efforts, because 
safeguarding intellectual property is a critical driver for 
innovation. In addition, the human health studies available to 
the EPA would be vastly restricted due to medical records 
privacy laws that would preclude the publication of the data 
used therein online. The bill's `data transparency' provision 
would therefore severely decrease the number of studies the EPA 
could use, reduce the overall quantity of scientific 
information that could be relied upon to inform and support EPA 
covered actions, and discourage the scientific community from 
pursuing research in critically important environmental and 
health fields.
    The bill also leads to delays in the availability of 
scientific information to EPA because peer-reviewed studies 
typically cannot be made immediately available online. Most 
journals have embargo periods within which the content of the 
articles they publish cannot be released to the public. This 
would introduce delays between when a finding is accepted by 
peer-reviewed publications and when it could be used by the EPA 
to inform a covered action. This is another way in which the 
bill aims to stall and limit the EPA's ability to protect human 
health and the environment. Once a scientific or technical 
finding has been peer-reviewed, it should be made available to 
the EPA for prompt consideration, especially when it pertains 
to urgent and important public health and environmental 
matters.
    The bill also requires that the data EPA uses to support 
covered actions be reproducible, which precludes the use of 
studies related to one-time events and longitudinal studies. 
Longitudinal studies, such as a 40-year epidemiological study 
that follows patients throughout their lives, are often used in 
public health research, but would not be considered to be 
`reproducible' under this bill. Research on one-time events, 
like the Deepwater Horizon oil spill, can provide very valuable 
insights, furthering the understanding of physical and 
biological processes and systems, but would also not qualify as 
`reproducible' under this bill.
    In addition, requiring scientific and technical information 
be made public would introduce significant administrative 
costs. The Congressional Budget Office estimated that the 
annual implementation costs of S. 544 would amount to over $250 
million. Yet S. 544 provides only $1 million for this purpose.
    The White House issued a Statement of Administrative Policy 
(SAP) recommending a veto threat before the House of 
Representatives reported out a similar bill. The SAP explains, 
``The bill would impose arbitrary, unnecessary, and expensive 
requirements that would seriously impede the Environmental 
Protection Agency's (EPA's) ability to use science to protect 
public health and the environment, as required under an array 
of environmental laws, while increasing uncertainty for 
businesses and States.''\1\
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    \1\https://www.whitehouse.gov/sites/default/files/omb/legislative/
sap/114/saphr1030r_20150303.pdf. 
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    Health and scientific organizations have also expressed 
serious concerns about the legislation.\2\ According to the 
American Lung Association and American Thoracic Association, 
``the legislation [H.R. 1030]'' . . . will compel the U.S. 
Environmental Protection Agency to either ignore the best 
science by prohibiting the agency from considering peer-
reviewed research that is based on confidential patient 
information or force EPA to publically release confidential 
patient information, which would violate federal law. This is 
an untenable outcome that would completely undermine the 
ability of the EPA to perform its responsibilities under the 
Clean Air Act and myriad other federal laws. The legislation 
will not improve EPA's actions; rather it will stifle public 
health protections.'' In a letter to the Senate EPW Committee, 
the American Association for the Advancement of Science wrote, 
``while transparency and reproducibility are of utmost 
importance to the scientific community, this mandate [S. 544] 
is overly broad and will have severe unintended consequences.''
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    \2\Numerous scientific societies, research universities, and public 
health and environmental organizations oppose the legislation 
including: American Association for the Advancement of Science, 
American Lung Association, American Thoracic Society, American 
Statistical Association, American Association for Justice, American 
Public Health Association, Union of Concerned Scientists, National 
Physicians Alliance and the International Society for Environmental 
Epidemiology.
---------------------------------------------------------------------------
    During markup, the Committee considered three amendments as 
described in the Rollcall Votes section above. Passed by voice 
vote was a Boxer-Markey amendment preventing the censorship of 
scientists and their use of common scientific terms. Following 
several high profile instances of state government censorship 
of scientists, the amendment would ensure that EPA, federal 
officials or employees, or federal agencies are not censored 
when discussing peer-reviewed science.\3\ It would clarify that 
federal officials and employees can use terms that are common 
in peer-reviewed scientific literature, including terms related 
to climate change, air and water pollution impacts, and 
exposure to toxic chemicals.
---------------------------------------------------------------------------
    \3\See, ``In Florida, officials ban term `climate change''' Miami 
Herald (March 8, 2015) available at http://www.miamiherald.com/news/
state/florida/article12983720.html.
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    Two Markey-Boxer Amendments were rejected. The first one 
required that the funding sources of scientific and technical 
information be made publicly available, since transparency is 
the stated goal of this bill. The funding source of a research 
study used in regulatory activities should not be a secret, to 
avoid potential conflicts of interest. The second Markey-Boxer 
amendment would have allowed the EPA to use peer-reviewed 
science even if it cannot be made publicly available. This 
amendment would protect the EPA from limitations on accessing 
the data it needs to protect public health and the environment 
regardless of barriers to making that data immediately 
available to the public.
    In addition to issues with the bill itself, the Majority 
members of the Senate EPW Committee used an inadequate process 
to report S. 544 out of the Committee. Despite receiving a 
letter signed by all minority members of the EPW Committee 
asking to return to regular order by delaying the mark up of S. 
544 until the Committee had the opportunity to hear witness 
testimony about the bill, the majority decided to reject this 
request and moved forward with the mark up.\4\ Historically, 
significant bills are moved through the Committee without first 
holding a legislative hearing only if they represent a 
bipartisan consensus work product or have been considered 
through regular order in the previous Congress. S. 544 met 
neither of these tests. The Senate has never held a hearing on 
any version of the ``Secret Science Reform Act of 2015''. For 
this controversial, partisan legislation, the Committee should 
have held a legislative hearing to give all members the 
opportunity to understand the consequences of the bill.
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    \4\Letter available at: http://www.epw.senate.gov/public/
index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord;_id=d17ff777-
da8b-d123-ee8a-0f508d5a365b.
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                                   Barbara Boxer.
                                   Thomas R. Carper.
                                   Benjamin L. Cardin.
                                   Bernard Sanders.
                                   Sheldon Whitehouse.
                                   Jeff Merkley.
                                   Kirsten Gillibrand.
                                   Cory A. Booker.
                                   Edward Markey.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

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 ENVIRONMENTAL RESEARCH, DEVELOPMENT, AND DEMONSTRATION AUTHORIZATION 
ACT OF 1978

           *       *       *       *       *       *       *


  [Sec. 6. [42 U.S.C. 4363 note] (a) The Administrator of the 
Environmental Protection Agency shall establish a separately 
identified program to conduct continuing and long-term 
environmental research and development. Unless otherwise 
specified by law, at least 15 per centum of any funds 
appropriated to the Administrator for environmental research 
and development under section 2(a) of this Act or under any 
other Act shall be allocated for long-term environmental 
research and development under this section.
  [(b) The Administrator, after consultation with the Science 
Advisory Board, shall submit to the President and the Congress 
a report concerning the desirability and feasibility of 
establishing a national environmental laboratory, or a system 
of such laboratories, to assume or supplement the long-term 
environmental research functions created by subsection (a) of 
this section. Such report shall be submitted on or before March 
31, 1978, and shall include findings and recommendations 
concerning--
          [(1) specific types of research to be carried out by 
        such laboratory or laboratories;
          [(2) the coordination and integration of research to 
        be conducted by such laboratory or laboratories with 
        research conducted by existing Federal or other 
        research facilities;
          [(3) methods for assuring continuing long-range 
        funding for such laboratory or laboratories; and
          [(4) other administrative or legislative actions 
        necessary to facilitate the establishment of such 
        laboratory or laboratories.]
  (b)(1) The Administrator shall not propose, finalize, or 
disseminate a covered action unless all scientific and 
technical information relied on to support such covered action 
is--
          (A) the best available science;
          (B) specifically identified; and
          (C) publicly available online in a manner that is 
        sufficient for independent analysis and substantial 
        reproduction of research results.
  (2) Nothing in the subsection shall be construed as--
          (A) requiring the Administrator to disseminate 
        scientific and technical information; or
          (B) superseding any nondiscretionary statutory 
        requirement.
  (3) In this subsection--
          (A) the term `covered action' means a risk, exposure, 
        or hazard assessment, criteria document, standard, 
        limitation, regulation, regulatory impact analysis, or 
        guidance; and
          (B) the term `scientific and technical information' 
        includes--
                  (i) materials, data, and associated protocols 
                necessary to understand, assess, and extend 
                conclusions;
                  (ii) computer codes and models involved in 
                the creation and analysis of such information;
                  (iii) recorded factual materials; and
                  (iv) detailed descriptions of how to access 
                and use such information.
  (4) The Administrator shall carry out this subsection in a 
manner that does not exceed $1,000,000 per fiscal year, to be 
derived from amounts otherwise authorized to be appropriated.

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