[Congressional Record Volume 150, Number 131 (Tuesday, November 16, 2004)]
[Extensions of Remarks]
[Pages E1977-E1978]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   CONFERENCE REPORT ON H.R. 4200, RONALD W. REAGAN NATIONAL DEFENSE 
                 AUTHORIZATION ACT FOR FISCAL YEAR 2005

                                 ______
                                 

                               speech of

                          HON. HENRY A. WAXMAN

                             of california

                    in the house of representatives

                        Friday, October 8, 2004

  Mr. WAXMAN. Mr. Speaker, I want to discuss a number of provisions 
included in the conference report for H.R. 4200, the Defense 
Authorization bill for fiscal year 2005.
  The conference report includes a provision that restricts from access 
under the Freedom of Information Act (FOIA), ``data that are collected 
by land remote sensing and are prohibited from sale to customers other 
than the United States and its affiliated users.'' The effect of this 
language is that non-confidential commercial satellite imagery, which 
the government has purchased, would be restricted from disclosure to 
the public. This section extends this restriction to products that are 
derived from those data. That would mean that maps, reports, and any 
other analyses or communications that are derived from the exempted 
satellite image would also be inaccessible through FOIA. This section 
also preempts State and local public disclosure laws that would provide 
access to these data.
  Public access to these data and products derived from these data is 
essential for effective participation in governmental actions, 
especially those by local governments that affect their daily lives. 
Government agencies use licensed and/or purchased imagery data in 
regulatory proceedings and numerous other mandated activities. The 
public requires access to this imagery in order to participate in these 
proceedings and importantly, to be informed about the activities of 
Government. This point was emphasized by the National Academy of 
Sciences in its recent report, Licensing Geographic Data and Services:

       When geographic data are used to design or administer 
     regulatory schemes or formulate policy, affect the rights and 
     obligations of citizens, or have likely value for the broader 
     society as indicated by a legislative or regulatory mandate, 
     the agency should evaluate whether the data should be 
     acquired under terms that permit unlimited public access or 
     whether more limited access may suffice to support the 
     agency's mandates and missions and the agency's actions in 
     judicial and other review. (page 229).

  The bill's sweeping exemption is even contradictory to the advice the 
administration has solicited on access to geospatial information. In a 
report prepared for the National Geospatial-Intelligence Agency, the 
RAND National Defense Research Institute recommends that Federal 
agencies and other organizations use an analytical process to assess 
the potential homeland security sensitivity of specific pieces of 
publicly available geospatial information and to determine if 
restricting access to these specific pieces would enhance security. 
They recommend that such a process include analysis of the usefulness 
of the information to an attacker; its uniqueness; and the expected 
societal benefits of access and the costs of restricting the 
information.

  The process through which this section was developed is contrary to 
the fundamental principles represented by the Freedom of Information 
Act. FOIA is a tool for protecting public

[[Page E1978]]

access to their government's actions. This amendment was developed 
behind closed doors. Laws that limit the use of FOIA for public 
oversight of government actions should only be enacted after wide 
public consultation and discussion, which has not occurred with this 
provision.
  Mr. Speaker, I am also disappointed with a provision of this 
conference report affecting OMB Circular A-76, which lays out the 
procedures used when the government privatizes work currently performed 
by federal employees. Under existing law, the private sector has the 
legal right to protest the results of such a public/private 
competition, but the public sector employees do not. This is 
fundamentally unfair.
  The Senate bill would have addressed this inequity by granting both 
the official who submits the agency's bid, and a person representing a 
majority of the affected federal employees legal standing to protest at 
both the GAO and in the Court of Federal Claims. Instead of adopting 
this approach, the conference report gives standing only to the agency 
official, and only at the GAO. The report also requires the agency 
official to file a protest if a majority of the affected federal 
employees request that he do so, unless the official determines there 
is no reasonable basis to protest. While this limited approach is an 
improvement over existing law, I would have preferred the original 
Senate language, and will continue working to ensure that federal 
employees have all the legal rights currently afforded to contractors.
  Finally, I strongly oppose section 3116, a provision that reverses an 
important aspect of the nation's nuclear waste cleanup policy. 
Specifically, it allows the Department of Energy to abandon millions of 
gallons of highly radioactive waste in leaking tanks in South Carolina 
and Idaho. It also sets a dangerous precedent for the cleanup of 
radioactive waste in Washington. This provision has not been adequately 
considered in either chamber of Congress.

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