A legal aide working for the Tobacco Institute Inc. has been visiting the mailroom of the General Services Administration regularly for the last two weeks to count favorable and unfavorable public comments about the agency's proposed ban on smoking in federal offices.
The ban was proposed May 22 by GSA Adminstrator Terence C. Golden as part of what he called a "total wellness program," and would extend to all but private offices in the 6,800 federal buildings the GSA owns or leases.
The Tobacco Institute, a trade organization of tobacco companies that spends more than $2 billion a year on advertising, opposes the ban.
GSA spokesman Joseph Slye said the decision to allow the legal aide to examine the mail before the public comment period ended yesterday was done "with the support of our legal counsel. Ordinarily the letters are not made public" until the end of the comment period. He said he could not explain why the tobacco representative was given mailroom access.
But Scott Stapf, assistant to the president of the Tobacco Institute, said, "This was not any kind of special arrangement. We exercised our rights to look at the public comments. Under Federal Register rules they become a matter of public record upon receipt. We were far from alone."
There is normally a 60-day comment period for proposed federal rules following their publication in the Federal Register. The Administrative Procedures Act says the comment record is open for public scrutiny, but gives agencies latitute on when and how.
GSA said that 90 percent of the comments received support the ban. "This is not a popularity contest," said GSA's Slye. "We are looking for substantive comments. When a box of form letters comes in that is instigated by lobbyists and all say the same thing, on identical cards -- most of them unsigned -- they are treated as one comment we need to address. We were looking for quality rather than votes."
However, Stapf charges that the GSA is "jiggling the books." He said, "The GSA is completely mischaracterizing the public docket. We are watching very closely the public comments. As of the close of business Monday, they had received 24,124 signatures, of which 17,021 were opposing the rule.
The small tempest in the mailroom illustrates how a knowledge of the largely invisible procedures of federal rule-making is valued by high-stakes lobbyists, one lobbyist said.
Matthew Myers, staff director of the Coalition on Smoking or Health, which represents the American Cancer Society, the American Heart Association and the American Lung Association, said that his agency did not have the resources to have an aide tabulate the results. "We occasionally call over and ask what's going on," he said. "I'm not surprised," he added, that the institute is checking the mail.
Myers said he saw nothing wrong with allowing the institute access to the early returns.
Slye said GSA received many copies of three form letters objecting to the rule as discriminatory because private offices, where smoking may be allowed, are generally occupied by white males. Other form letters said smoking was none of the government's business, the rule was too restrictive and public funds shouldn't be spent to police it.