The Information Quality Act: OMB’s Guidance and Initial Implementation

Order Code RL32532 CRS Report for Congress Received through the CRS Web The Information Quality Act: OMB’s Guidance and Initial Implementation Updated September 19, 2006 Curtis W. Copeland Specialist in American National Government Government and Finance Division Congressional Research Service ˜ The Library of Congress The Information Quality Act: OMB’s Guidance and Initial Implementation Summary The Information Quality Act (IQA), sometimes referred to as the Data Quality Act, was enacted in December 2000 as Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554). The act required the Office of Management and Budget (OMB) to issue guidance to federal agencies designed to ensure the “quality, objectivity, utility, and integrity” of information disseminated to the public. It also required agencies to issue their own information quality guidelines, and to establish administrative mechanisms that allow affected persons to seek correction of information maintained and disseminated by the agencies that does not comply with the OMB guidance. Although some observers said the IQA would improve the quality of agency information, others viewed the act as a tool by which regulated parties could slow or even stop new health, safety, and environmental standards. Because of the scant legislative history of the IQA and its lack of detail, OMB’s guidance interpreting key provisions in the act has a major effect on its implementation. In those guidelines, OMB noted that the act applies to virtually all federal agencies and established the broad scope of the guidelines by defining “information” as “any communication or representation of knowledge such as facts or data, in any medium or form.” Similarly, the guidelines define “dissemination” as any “agency initiated or sponsored distribution of information to the public.” OMB indicated that “quality” encompasses elements of utility, objectivity, and integrity, and said agencies can generally presume that data are “objective” if they have been subject to an independent peer review process. In December 2005, OMB provided Congress with a report on the implementation of the IQA during FY2003 and FY2004. The report said the agencies received only 85 substantive IQA-related correction requests during those two fiscal years, but noted that the agencies received many other requests that were similar to those received before the IQA. Of the 85 requests, 45 were initially denied by the agencies. Of these, 28 were subsequently appealed, with 13 of those appeals denied by the end of FY2004. In August 2006, the Government Accountability Office (GAO) reported that better oversight and guidance by OMB were needed. GAO’s comments, as well as comments from OMB and others, suggest several possible areas for improvement of the IQA’s implementation. A major test of the IQA may be whether agencies’ denials of information correction requests are subject to judicial review. In March 2006, the U.S. Court of Appeals for the Fourth Circuit ruled that the act does not permit judicial review. Two district courts had previously reached a similar conclusion, and the Department of Justice issued a brief stating that the IQA does not permit judicial review. This report will be updated in the event of significant developments in the administration, judicial interpretation, or legislative oversight of the IQA. Contents The Act and Related Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Initial Assessments of the IQA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The IQA and the Shelby Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 OMB’s Information Quality Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Definition of Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Dissemination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Objectivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Influential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Risk Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Correction Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Correction Requests and the APA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Posting of Correction Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Agency Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 OMB’s 2004 Report on IQA Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Preconceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Complications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Disposition of Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Requests on Minor Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Other IQA Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 OMB Watch’s View of the OMB Report . . . . . . . . . . . . . . . . . . . . . . . . . . 16 OMB’s 2005 Report on IQA Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 GAO’s 2006 Report on IQA Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 The IQA and Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 District Court Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Circuit Court Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Possible Improvements and Modifications . . . . . . . . . . . . . . . . . . . . . . . . . 22 The IQA and Peer Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 The Information Quality Act: OMB’s Guidance and Initial Implementation In recent years, both the volume and the types of information that federal agencies disseminate to the public have increased dramatically. Some forms of information dissemination are direct; agencies provide the public with data on such issues as agricultural production, labor trends, population changes, criminal justice activities, and environmental emissions. Other forms of information dissemination are more indirect in that the information forms the basis of agencies’ regulations or other policies. For example, on the basis of information derived from scientific research, regulatory agencies may decide to permit or ban the introduction of a new drug, reduce the levels of exposure to a particular pesticide, or change the way that automobiles are manufactured. In both forms of dissemination, it is important that the underlying data be of sufficient quality to ensure accurate information and to support sound decision making. In December 2000, Congress passed and the President signed the Treasury and General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554). Section 515 of that more than 700-page bill has subsequently been referred to as the “Data Quality Act” or the “Information Quality Act” (IQA) (codified at 44 U.S.C. 3504(d)(1) and 3516). Although little noticed at the time, the IQA has subsequently been the subject of intense debate and controversy. The act required the Office of Management and Budget (OMB) to issue guidance to federal agencies designed to ensure the “quality, objectivity, utility, and integrity” of information disseminated to the public. It also required agencies to issue their own information quality guidelines, and to establish administrative mechanisms that allow affected persons to seek correction of information maintained and disseminated by the agencies that does not comply with the OMB guidance. This report describes the IQA and OMB’s and the agencies’ information quality guidelines, noting how several key terms are defined, how risk-related information is to be treated, and how agencies’ correction processes should be established. The report also reviews OMB’s report on the first year of the IQA’s implementation, focusing on the correction requests received during that period and how they were resolved. It also describes a critical comment on that report by a nongovernmental organization. Finally, this report examines the issue of judicial review and the IQA, and explores some suggested improvements and modifications to the act’s implementation. The Act and Related Issues The IQA amended the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. Chapter 35), which already required OMB to develop and oversee the CRS-2 implementation of policies, principles, standards, and guidelines to apply to federal agency dissemination of public information. The PRA also required agencies to manage their information resources to improve the integrity, quality, and utility of information to all users within and outside the agency.”1 Also already in place were a variety of nonstatutory requirements related to information dissemination (e.g., OMB Circular A-130 on “Management of Federal Information Resources”). Therefore, the IQA can be seen as an extension of these previous statutory and nonstatutory requirements. Representative Jo Ann Emerson is generally regarded as the primary sponsor of the IQA.2 The act, in its entirety, reads as follows: (a) IN GENERAL. — The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act. (b) CONTENT OF GUIDELINES. — The guidelines under subsection (a) shall (1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and (2) require that each Federal agency to which the guidelines apply (A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency by not later than 1 year after the date of issuance of the guidelines under subsection (a); (B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and (C) report periodically to the Director (i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and (ii) how such complaints were handled. As noted previously, these provisions were inserted as Section 515 of the more than 700-page Treasury and General Government Appropriations Act for Fiscal Year 2001. There were no hearings or debates specifically on these provisions and no committee reports were filed. However, OMB had previously been urged by individual Members or committees to develop similar guidance on several previous 1 2 44 U.S.C. 3506(b)(1)(C). Some press reports attribute the IQA to Jim Tozzi, a former OMB official, who is currently head of the Center for Regulatory Effectiveness. The Center describes itself on its website as receiving “financial support, services in kind, and work product from trade associations and private firms,” and says its primary goals are to ensure that (1) the public has access to information used to develop federal regulations and (2) information that federal agencies disseminate to the public is of the highest quality. See []. CRS-3 occasions.3 In response to these suggestions, in April 2000, OMB said that its Circular A-130 already established complaint resolution procedures, and also said the following: At the present time, OMB is not convinced that new “one-size-fits-all” rules will add much to the existing OMB guidance and oversight activity and the procedures followed by individual agencies. We are reluctant to issue more regulations without a clear sense that they would be useful in promoting data quality. We are also concerned that new regulations might prove counterproductive to the goal of increasing data quality ... [in that the] ... administrative requirements could consume significant agency resources.4 However, with the passage of the IQA in December 2000, OMB was obligated to develop the required information quality guidance.5 Initial Assessments of the IQA Supporters of the IQA, many of whom represent businesses and other regulated parties, considered it an extremely important tool to oversee the work of rulemaking agencies. In fact, the U.S. Chamber of Commerce6 said the act was “the most significant change to the federal rulemaking process since the Administrative Procedure Act was enacted more than 50 years ago,” and said it would have “a revolutionary impact on the regulatory process.” These supporters contended that the IQA and the resultant OMB and agency guidelines would improve the quality of agency science and regulation and force agencies to regulate based on the best science available. Some of these proponents also maintained that the act would help agencies defend their regulations against lawsuits and would reduce the number of lawsuits filed. Critics of the IQA and the guidelines, including many environmental and public interest groups such as OMB Watch7 and Public Citizen,8 said the law was a tool by which regulated parties can slow and possibly stop new health, safety, and environmental standards, and that could lead to the revision or elimination of existing 3 See, for example, the House report on the Treasury, Postal Service, and General Government Appropriations Bill, 1999 (H.Rept. 105-592), p. 49. 4 Letter from John T. Spotilla, Administrator of OIRA, to the Honorable Jo Ann Emerson, April 18, 2000, available at []. 5 OMB representatives told CRS on Dec. 9, 2004, that the agency could have issued guidelines on information quality even if the IQA had not been enacted. 6 The Chamber of Commerce describes itself on its website as the world’s largest not-forprofit business federation. See []. 7 OMB Watch describes itself on its website as a “nonprofit research and advocacy organization dedicated to promoting government accountability and citizen participation in public policy decisions.” See []. 8 Public Citizen describes itself on its website as a “national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch, and the courts.” See []. CRS-4 standards. They contended that the act could have a chilling effect on agency distribution and use of scientific information. These critics foresaw a flood of data quality challenges, correction requests, and court suits on a wide range of scientific issues, which could tie up agency resources and significantly delay health, safety, and environmental regulations. Critics have also noted that since “quality” is a subjective term and some regulations are based on “best available data,” regulations could be arbitrarily rejected under the IQA, or may never be developed at all because of concerns about running afoul of the act.9 The IQA and the Shelby Amendment The IQA should not be confused with an earlier provision popularly known as the “Shelby Amendment,” which was a two-sentence rider attached to the Treasury and Postal section of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY1999 (P.L. 105-277, enacted on October 21, 1998). The Shelby Amendment was the culmination of a two-year effort to make federally funded research data (which are often used to develop new regulations) accessible to the public. The provision directed OMB to amend 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 the Freedom of Information Act” (FOIA, codified at 5 U.S.C. 552). OMB’s revisions to the circular took effect in November 1999.10 As a result of the changes, in response to a covered FOIA request, agencies are required to obtain certain types of research data from grantees and provide the requester access to the data.11 OMB views the Shelby Amendment and the IQA as compatible and mutually enforcing in that they promote public access to quality government information. OMB’s Information Quality Guidelines Because of the scant legislative history of the IQA and its lack of detail, OMB’s guidance interpreting key provisions in the act has a major effect on its implementation. OMB published proposed government-wide IQA guidelines in the Federal Register on June 28, 2001 (66 Federal Register 34489), and published final guidelines (with a request for further comments on certain points) on September 28, 2001 (66 Federal Register 49718). OMB later republished the guidelines (after making changes pursuant to public comments) on February 22, 2002 (67 Federal 9 For a discussion of this issue, see Rick Weiss, “‘Data Quality’ Law is Nemesis of Regulation,” Washington Post, Aug. 16, 2004, p. A-1. 10 Office of Management and Budget, “OMB Circular A-110, ‘Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,’” 64 Federal Register 54926, Oct. 8, 1999. 11 For a thorough discussion of the Shelby Amendment and OMB Circular A-110, see CRS Report RL30376, Public Access to Data From Federally Funded Research: OMB Circular A-110 and Issues for Congress, by Eric A. Fischer and Genevieve J. Knezo. CRS-5 Register 8452).12 OMB noted that the guidelines apply to all federal agencies that are subject to the Paperwork Reduction Act — Cabinet departments, independent regulatory agencies (e.g., the Federal Communications Commission), and other independent agencies (e.g., the Environmental Protection Agency, or EPA). Agencies not subject to the PRA (and therefore not covered by the IQA or OMB’s guidelines) are the Government Accountability Office (GAO), the Federal Election Commission, and government-owned contractor-operated facilities (e.g., laboratories engaged in national defense research and production activities). General Requirements The OMB guidelines describe OMB and agency responsibilities under the act, including agency reporting requirements. For example, the guidelines note that the IQA essentially requires covered agencies to do three things: (1) issue their own guidelines by October 1, 2002, (2) establish administrative mechanisms allowing affected persons to seek correction of information that they believe does not comply with these guidelines, and (3) report periodically to OMB on the number and nature of the complaints that the agencies received. The guidelines also require the agencies to designate the Chief Information Officer or some other official to be responsible for agency compliance, and required them to develop agency-specific guidelines and administrative correction mechanisms. OMB said the agencies must permit the public to comment on their guidelines and correction mechanisms, and then must submit them to OMB for review before publishing them in final form. OMB also said the report on the number and nature of complaints received should be done on a fiscal year basis, with the first such report due to OMB on January 1, 2004. Definition of Key Terms The OMB guidelines also define a number of key terms that are undefined in the IQA, and those definitions have had a significant effect on how the act is implemented. OMB said “quality” encompasses elements of utility, objectivity, and integrity. The definitions of some of these and other terms are relatively straightforward and noncontroversial. For example, OMB defined “utility” as the “usefulness of the information to its intended users, and said “integrity” refers to the “security of information — protection of the information from unauthorized access or revision, to ensure that the information is not compromised through corruption or falsification.” The definitions of other terms such as “information,” “dissemination,” and “objectivity” have proven to be much more controversial because they establish the scope and applicability of the guidelines. Stricter quality standards apply to “influential” information, so the definition of that term is also important. Information. OMB established the broad scope of the act by defining “information” in the guidelines as “any communication or representation of knowledge such as facts or data, in any medium or form.” OMB went on to say that the definition includes information that the agency disseminates through its Web page, but does not include hyperlinks to information that other organizations 12 For a copy of the OMB guidelines, see [ reproducible2.pdf]. CRS-6 disseminate. Neither does covered “information” include individuals’ opinions that the agency makes clear are neither factual nor the agency’s views. Dissemination. The IQA only applies to information that is “disseminated” by federal agencies, so the definition of that word also has a major effect on the act’s scope of coverage. The OMB guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public.” Therefore, to understand “dissemination” one must understand the terms “agency initiated” and “agency sponsored.” Agency Initiated. The guidelines make it clear that an agency can initiate the distribution of information either directly or indirectly. Cited as examples of agency initiated disseminations are (1) a risk assessment prepared by the agency to inform the agency’s formulation of possible regulatory or other action, and (2) information prepared by an outside party and disseminated by an agency “in a manner that reasonably suggests that the agency agrees with the information.” In this regard, OMB said that a third-party study used by an agency in support of a notice of proposed rulemaking is also covered by the IQA. Others contend, however, that this position runs counter to the approach taken in the PRA (which the IQA amends), which suggests that information in a notice of proposed rulemaking is information that is “used” or “accessed” by the public, not information that is “disseminated” by an agency (and therefore would not be covered by the IQA). Agency Sponsored. OMB said an agency has “sponsored” an information dissemination if it directs a third party to distribute information or if an agency has the authority to review and approve it before it is distributed. The guidelines go on to say, however, that dissemination does not include distributions that are limited to government employees, contractors, or grantees; inter-agency or intra-agency use or sharing of government information; responses to requests for information under FOIA, the Privacy Act, or the Federal Advisory Committee Act; or correspondence with individuals, press releases, or public filings. Objectivity. The OMB guidelines state that “objectivity” is a function of both presentation (i.e., whether the information is presented in an accurate, clear, complete, and unbiased manner) and substance (i.e., whether the information is accurate, reliable, and unbiased). OMB indicated that agencies can presume that data are sufficiently “objective” if they have been subject to an independent peer review process (e.g., as used by scientific journals), but a member of the public can rebut this presumption “based on a persuasive showing by the petitioner in a particular instance.” Influential Information. Additional IQA obligations apply to scientific, financial, or statistical information that is “influential.” OMB representatives told CRS during the preparation of this report that agencies were given substantial discretion in how this term is defined because a “one-size-fits-all” approach would have been inappropriate.13 For example, the guidelines define the word “influential” 13 Meeting with representatives of OMB’s Office of Information and Regulatory Affairs, (continued...) CRS-7 in this context as information that “the agency can reasonably determine” will have or does have a “clear and substantial impact on important public policies or important private sector decisions” when disseminated to the public. OMB authorized the covered agencies to define “influential” in ways appropriate for them, but indicated that the data and analytic results related to influential information should meet certain “reproducibility” and “transparency” standards. Specifically, OMB said that agency guidelines should “generally require sufficient transparency about data and methods that an independent reanalysis could be undertaken by a qualified member of the public” and would generate similar results. Critics, however, have questioned how agencies are to know in advance of dissemination when information will be “influential,” or what constitutes an “important public policy.” Risk Information When agencies disseminate information related to the analysis of risks to human health, safety, and the environment, the OMB guidelines require agencies to “adopt or adapt” the “quality principles” that Congress established in the Safe Drinking Water Act Amendments of 1996 (42 U.S.C. 300g-1(b)(3)(A) and (B)). When basing actions under this act on science, the amendments require EPA to use “the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices” and to use “data collected by accepted methods or best available methods.” When presenting risk information to the public concerning safe drinking water, the amendments also require EPA (where “practicable”) to identify a “central estimate of risk” for specific populations, upperbound and lower-bound estimates of risk, and “each significant uncertainty identified in the process of the assessment.” OMB said that through these amendments, “Congress adopted a basic quality standard for the dissemination of public information about risks of adverse health effects.” However, critics have questioned whether it is appropriate for OMB’s guidelines to export risk analysis principles established for the Safe Drinking Water Act to agency actions under other environmental, health, and safety statutes. Correction Mechanisms OMB’s data quality guidelines also generally describe the “administrative mechanisms” that agencies are required to establish to allow “affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines.” Specifically, the guidelines state that the mechanisms should be “flexible, appropriate to the nature and timeliness of the disseminated information, and incorporated into agency information resources management and administrative practices.” They go on to say that the agencies must make decisions within “appropriate time periods,” and must “notify the affected persons of any corrections made.” Agencies also must establish an “administrative appeal process” to review the agencies’ initial decisions, and must specify “appropriate time limits” for the resolution of requests for reconsideration. The preamble to the guidelines indicates that, to ensure objectivity, the office that 13 (...continued) Dec. 9, 2004. CRS-8 originally disseminates the information should not have responsibility for both the initial response and resolution of a disagreement. Correction Requests and the APA. Differences of opinion exist regarding the relation of these “administrative mechanisms” and the commenting process under the Administrative Procedure Act (APA).14 Some contend that the APA process already provides a mechanism by which the affected public can seek correction of information relied on in rulemaking, so no additional correction process is needed. Others believe that the mechanisms contemplated in the IQA are in addition to the APA commenting process. OMB representatives told CRS during this review that agencies should handle correction requests submitted during the public comment period for a rule through the APA commenting process.15 After the comment period is over, though, OMB said that members of the affected public who were dissatisfied with how their correction requests were handled through the APA process could appeal the agency’s decision through the agency’s IQA administrative appeal process. Posting of Correction Requests. On August 30, 2004, OMB instructed agencies to post their information quality correction requests for FY2004 and for subsequent years on “publicly-available web pages.”16 Specifically, OMB said agencies should include “a copy of each correction request, the agency’s formal response(s), and any communications regarding appeals.” In addition, for each request, OMB recommended that agencies “provide a few sentences describing the request and any subsequent response.” OMB said the information should be disclosed by December 1, 2004. Agency Guidelines As noted previously, the IQA required each covered agency to issue its own information quality guidelines within one year of the issuance of the OMB guidelines. To develop their guidelines, the agencies reportedly used the OMB guidelines as a starting point, obtained comments from the public on their proposed guidelines, and submitted the draft final guidelines to OMB for review and comment. On October 4, 2002, OMB indicated that it had completed its review of agencies’ draft information quality guidelines, and laid out a series of steps designed to guide 14 The APA (5 U.S.C. 551 et seq.) is the most longstanding and broadly applicable set of rulemaking requirements. The act generally requires agencies to publish a notice of proposed rulemaking in the Federal Register, allow public comments, and (after considering the comments) publish a final rule. 15 Meetings with representatives from OMB’s Office of Information and Regulatory Affairs, Sept. 15, 2004, and Dec. 9, 2004. The OMB representatives said that correction requests submitted during other types of comment periods should be handled the same way. 16 For a copy of this memorandum, see [ info_quality_posting_083004.pdf]. OMB said it hoped agencies would eventually post information quality correspondence for FY2003 as well. CRS-9 and oversee agencies’ implementation of their guidelines.17 For example, OMB requested that the agencies provide the office with copies of certain types of complaints (e.g., those involving “major policy questions” that are likely to be of interest to more than one agency), and asked to be invited to any meetings with outside parties concerning those complaints. OMB has published agencies’ guidelines on its website, although it cautioned the public that the list is not complete and will be updated as more guidelines are posted online.18 In that listing, Cabinet departments often provided overall guidelines as well as guidelines for major subunits within the departments. For example, the Department of Agriculture provided guidelines for all of the department as well as guidelines for the Agricultural Research Service, the Food Safety and Inspection Service, the Forest Service, and six other agencies or offices within the department. However, separate IQA guidelines are not listed for some major agencies within Cabinet departments. For example, separate guidelines are not listed for some major regulatory agencies within the Department of Labor (e.g., the Occupational Safety and Health Administration and the Mine Safety and Health Administration) or the Department of Transportation (e.g., the Federal Highway Administration or the National Highway Traffic Safety Administration). OMB representatives said that it was up to the departments and agencies to determine how their guidelines would be presented on this website.19 Concerns have also been raised regarding certain agencies’ IQA guidelines. In November 2004, GAO reported that the Census Bureau had issued information quality guidelines that contain general quality goals and principles, and had also issued a new standard that allows individuals to request corrections.20 However, with the exception of this standard, GAO said that the Bureau “did not provide specific guidelines or procedures on the implementation of the general principles articulated in the information quality guidelines.” GAO recommended that the Bureau accelerate its efforts to establish comprehensive data quality standards, and include the implementation of those standards in its plans for the 2010 Census. Also, in an August 2006 report, GAO reported that the Department of Homeland Security (DHS) did not have department-level guidelines covering its 22 component agencies, and that 44 of 86 independent agencies had not posted guidelines on their websites and may not have them in place.21 As a result, GAO said, “users of 17 For a copy of this memo, see [ 100402.pdf]. 18 For copies of the agencies’ information quality guidelines, see [http://www.whitehouse. gov/omb/inforeg/agency_info_quality_links.html]. 19 Meeting with representatives from OMB’s Office of Information and Regulatory Affairs, Sept. 15, 2004. 20 U.S. Government Accountability Office, Data Quality: Census Bureau Needs to Accelerate Efforts to Develop and Implement Data Quality Review Standards, GAO-05-86 (Washington: Nov. 17, 2004). 21 U.S. Government Accountability Office, Information Quality Act: Expanded Oversight (continued...) CRS-10 information from these agencies may not know whether agencies have guidelines or know how to request correction of information.” Also, of the 19 cabinet departments and agencies that had guidelines, in 15 of the agencies the online information was difficult to locate. GAO recommended that OMB work with DHS and other agencies without guidelines to ensure that they fulfill their IQA responsibilities, and clarify its guidance to agencies on improving the public’s access to IQA information. OMB’s 2004 Report on IQA Implementation The IQA required agencies to report periodically to OMB on the information quality complaints they received, but the act did not require that OMB report to Congress on its implementation. Subsequently, though, a reporting requirement was established. The conference report on H.R. 2673, the Consolidated Appropriations Act of 2004, indicated that the conferees were “concerned that agencies are not complying fully with the requirements of the [IQA],” and directed OMB to submit a report to the House and Senate Committees on Appropriations by June 1, 2004, on whether agencies had been “properly responsive” to public requests for correction of information pursuant to the IQA.22 The conference report also said that OMB should suggest changes to the act or to OMB’s guidelines to “improve the accuracy and transparency of agency science.” On April 30, 2004, OMB provided a report to Congress on the implementation of the IQA during FY2003. OMB said the report was based on two types of information: (1) the reports that the act required agencies to provide to OMB by January 1, 2004, on the correction requests that they received, and (2) the experiences and insights from OMB staff who have worked with the agencies. Overall, OMB said the number of substantive correction requests that the agencies responded to were “relatively small,” and said it was “premature to make broad statements about both the impact of the correction request process and the overall responsiveness of the agencies.” OMB also said that it was “not prepared to make suggestions for legislative changes at this point in time,” but did make several recommendations to improve the administration of the act. Specifically, OMB said that agencies should (1) consider putting their correction requests on publicly available Web pages (as some agencies have already done), (2) work harder to improve the timeliness of their responses, (3) ensure that they have sufficient scientific and technical staff to respond to the requests, (4) consult with OMB earlier in the response process, and (5) work on guidance that they can use to determine which requests are “influential.” 21 (...continued) and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act, GAO-06-765, Aug. 23, 2006. 22 “Implementation of the Federal Data Quality Act,” Congressional Record, daily edition, vol. 149 (Nov. 25, 2003), p. H12699. CRS-11 Preconceptions OMB said that several of the preconceptions regarding the act’s implementation did not appear to be correct.23 For example: ! OMB said that although some assumed that certain agencies would be overwhelmed by the volume of IQA correction requests, only about 35 “substantive” requests appeared to have been “stimulated” by the act during its first year of implementation. Of these 35 requests, more than half were received by EPA, the Department of Health and Human Services, and the Department of the Interior. OMB said the agencies classified eight of the requests as “influential,” 15 as “noninfluential,” and 12 as “undetermined.”24 Many other information correction requests that the agencies had commonly received before the IQA was enacted were received via the agencies’ IQA websites and e-mail addresses and handled through the IQA process. For example, OMB said that of the 24,618 requests received government-wide, the Federal Emergency Management Agency received 24,433 requests to correct maps used in the flood insurance program, and the Department of Transportation received 89 requests to correct individual data items on the Federal Motor Carrier Safety Administration reports. ! OMB said that although some expected the information quality correction process to be used only by industry, the requests during the first year of implementation came from all segments of society (e.g., private citizens, corporations, farm groups, and liberal and conservative nongovernmental organizations). However, OMB did not provide any summary data regarding the number of requests by source.25 OMB representatives told CRS during the preparation of this report that some public interest groups made a conscious decision not to submit correction requests.26 ! OMB said other pre-implementation concerns were that the IQA would slow down the rulemaking process and reduce the issuance of agency information. The report said, however, that there was no evidence that the act had affected either the pace or length of 23 For a copy of this report, see [ quality_rpt.pdf]. 24 OMB some agencies were reluctant to classify requests as influential because of concerns from legal staff, lack of clarity regarding how the word is defined, and the potential implications of classifying a correction request as influential. 25 OMB’s report did contain an appendix listing the correction requests that the agencies received, including the names of the requesters. Therefore, readers could use this raw data to determine the most frequent types of requesters. 26 Meeting with representatives from OMB’s Office of Information and Regulatory Affairs, Dec. 9, 2004. CRS-12 rulemaking, or that agencies’ information dissemination had diminished. OMB said it was relying on its own perceptions of these issues, and did not indicate that it had attempted to systematically collect those data. Also, OMB said that agencies discovered that it took longer than expected to respond to correction requests and to implement the appeals process. In particular, OMB noted that some of the larger agencies found it difficult to locate the correct specialist and ensure that he/she has enough time to devote to the request. ! Finally, OMB said that although the expectation was that the IQA was aimed primarily at federal rulemaking, most of the correction requests received during FY2003 were directed at reports, notices, and agency Web pages — not regulations. OMB also noted, though, that these disseminations may ultimately lead to federal, state, or local rules. Complications On the other hand, OMB also said that the implementation of the IQA had some “complications.” In particular, OMB said that it discovered that “the notion of what constitutes ‘dissemination’ is not straightforward.” For example, the report indicated that agencies have had to determine whether a regional office employee making an oral statement at a public meeting, or responding to a citizen via e-mail, constituted “dissemination” of information. In some cases, requests for correction were denied because of how the term was defined. For example, in a correction request to the Forest Service within the Department of Agriculture, the complainant requested correction of a document entitled “Guidance Criteria for Determining the Effects of On-Going Grazing and Issuing Term Grazing Permits on Selected Threatened and Endangered Species, and Species Proposed for Listing and Proposed and Designated Critical Habitat.” Specifically, the complainant contended that certain information in that guidance did not incorporate other information published by the Forest Service, thereby rendering it inaccurate and incomplete. The Forest Service denied the request, stating that the data did not meet the definition of “disseminated” under either the Department of Agriculture or the OMB data quality guidelines.27 OMB also said that correction requests often hinge on the interpretations of science or analyses, and that several reasonable inferences could be drawn when dealing with uncertain scientific issues. The report noted that most “non-frivolous” correction requests had been denied because the agencies’ interpretations were defended as reasonable, and said the requests “might have been better focused if they had addressed the inadequate treatment of uncertainty rather than the accuracy of information.” 27 Although not presented in the OMB report, the Forest Service’s response to this correction request indicated that the guidance was primarily intended for internal and interagency use, and had only been sent to a few members of the public. CRS-13 Finally, OMB said that although most of the agency guidelines indicate that correction requests will typically be responded to within 60 to 90 days, many of the agencies (e.g., EPA and the Departments of Agriculture, Health and Human Services, and Transportation) were “taking significantly longer to respond.” In particular, OMB said it took the agencies more than five months to respond to eight of the requests. OMB said that it expected future requests to be processed and responded to more quickly now that the agencies have processed their first data quality requests. Disposition of Requests OMB said that 16 of the 35 substantive requests for correction were appealed, and six of those appeals were still pending at the end of FY2003. Although many of the requests for correction were initially denied by the agencies (e.g., because the agencies believed the information already met the act’s requirements or because the agencies said the information subject to the complaint was not covered by the IQA), many of these and other requests resulted in full or partial corrective actions by the agencies. For example: 28 ! The Chemical Products Corporation (CPC) requested that an abstract of a draft technical report be removed from a National Toxicology Program (NTP) website because a sample tested in the studies included in the report contained a contaminant that rendered the report invalid.28 NTP initially added information about the contaminant to the website, but on appeal the agency decided to remove the abstract entirely. The response to the appeal also indicated that additional information from ongoing work would eventually be incorporated into a revised abstract and technical report, which would be submitted for peer review and subsequent publication. ! CPC also asked EPA to reconsider the oral reference dose for barium because it believed an objective scientific evaluation would determine a different critical effect. EPA initially rejected the request, but later decided to revise the information for barium to include a more explicit and transparent analysis of data from animals and to conduct an independent peer review of the revision. ! An attorney asked EPA to stop disseminating the 1986 “Guidance for Preventing Asbestos Disease Among Auto Mechanics” (commonly called the “Gold Book”) and to post a statement on the agency’s website that the guidance is no longer scientifically current, or to update the Gold Book. The agency said that it was in the process of updating the Gold Book, and would include a note in both hard copy and electronic versions of the current document that the update was underway. The NTP, within the Department of Health and Human Services, is an interagency program headquartered at the National Institutes of Health’s National Institute of Environmental Health Sciences in Research Triangle Park, North Carolina. CRS-14 ! A maritime industry consultant requested that the Maritime Administration within the Department of Transportation either correct or remove a study showing the mileage of inland barges or provide supporting documentation. The Maritime Administration decided to remove the study from its website and recognized that a more up-to-date study was needed. ! Several environmental groups requested that the Forest Service reopen the comment period for a December 2002 proposed rule on national forest system land and resource management planning because the review that the Service conducted was not readily available to the public in an understandable format. The Forest Service provided the groups with the requested information and made it available to the public on its website, and said the agency was still in the process of considering comments on the rule. In one case, an aquaculture business asked the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) to correct its and the Department of the Interior’s Fish and Wildlife Service’s reliance on studies used to specify conditions under which permits would be issued for aquaculture projects engaged in the rearing of salmon. Although the correction request and initial appeals were denied, the requesters ultimately indicated they would not continue to appeal because their concerns had been addressed. The OMB report indicated that the business viewed this outcome as “mutually beneficial,” and said the company appreciated the agencies’ responsiveness. Requests on Minor Issues As OMB mentioned in its report, many of the IQA correction requests listed in the office’s report for FY2003 involved relatively minor information quality issues that the agencies easily addressed. For example: ! A request to the Department of Labor’s Occupational Safety and Health Administration (OSHA) asked that the name of a trade association be corrected (from “American Dental Hygiene Association” to “The American Dental Hygienists’ Association”). Other OSHA-directed requests were to correct a reference to a table number in its regulations, to add text and figures to another rule, to correct the Standard Industrial Classification code for a company, and to correct the date of publication of an EPA pamphlet. ! A request to the Civil Rights Division of the Department of Justice noted that the character set used for the Vietnamese translation of a brochure on voting rights was incorrect. ! A request to the Centers for Disease Control and Prevention within the Department of Health and Human Services asked for redirection of a link on the CDC website to general (rather than technical) information on gonorrhea. CRS-15 ! Many of the requests to the National Archives and Records Administration (NARA) were to correct minor errors such as (1) misidentification of individuals in a photograph of President Nixon and Elvis Presley, (2) incorrect identification of the name of John Glenn’s spacecraft, and (3) the wrong birthday for a 19th century West Point cadet. Although determining whether a requested correction is “minor” is inherently subjective, nearly half of the correction requests listed in OMB’s report appeared to be of this nature. For some of the agencies (e.g., OSHA and NARA), virtually all of their correction requests appeared to be minor. Other IQA Requests Several of the correction requests included in the OMB report did not appear to be handled by the agencies in the same manner or did not appear to be the types of requests that the OMB guidelines seemed to have contemplated. For example, in some cases, the agencies treated requests for the addition of information as a data quality request, with the agencies sometimes acceding to those requests and other times denying them. For example, the American Heart Association asked that OSHA add a paragraph to its guidelines for first aid programs mentioning that the association provides training in cardio-pulmonary resuscitation and the use of automated external defibrillators. OSHA agreed to do so. In another case, the Chamber of Commerce requested that EPA revise the minutes of an October 2002 meeting of the Executive Committee of the Science Advisory Board to include a comment made by the chairman of the committee. EPA denied the request, stating that documents generated and published by Federal Advisory Committee Act committees are not considered EPA information disseminations and are therefore not subject to the IQA correction request process. In this EPA Science Advisory Board case and several other cases, agencies denied correction requests as being outside of the scope of the IQA, but nevertheless included those requests and denials in their IQA reports. For example, the Competitive Enterprise Institute requested that NOAA within the Department of Commerce should cease dissemination of the National Assessment on Climate Change because of fatal data flaws. NOAA denied the request because the agency said it did not involve “information” that is “disseminated” pursuant to NOAA’s information quality guidelines, but included the request in its IQA report to OMB. In still other cases, agencies considered comments received from the public regarding proposed rules as IQA correction requests. For example, a contractor association filed a correction request indicating that a proposed rule issued by the Fish and Wildlife Service within the Department of the Interior did not adequately consider economic impacts, and used erroneous assumptions and inappropriate measurements in its analysis of boat speed zones and their effect on manatees. The Service said it reviewed the comments submitted concerning the proposed rule within the context of the rulemaking process, and that no further action was necessary. In another case, EPA said it also considers requests for correction on a proposed rule during the public commenting process. However, in yet another case, the Consumer CRS-16 Product Safety Commission indicated that under its information quality guidelines, the administrative correction mechanism “does not apply to information disseminated by the CPSC through a comprehensive public comment process.” OMB Watch’s View of the OMB Report Although various organizations have expressed concerns about the IQA, OMB’s guidelines, and the way the statute has been implemented, comments from OMB Watch — a nonprofit public interest group — tend to exemplify many of those concerns. In July 2004, OMB Watch published a report entitled “The Reality of Data Quality Act’s First Year: A Correction of OMB’s Report to Congress.”29 OMB Watch said that OMB’s IQA report was “seriously flawed” because it was biased and contained inaccurate data and misleading information. Specifically, the organization said that OMB’s report: ! ! understated the number of information quality challenges. (OMB Watch said there were 98 challenges instead of the 35 that OMB reported.) overstated the extent to which IQA challenges that were denied were appealed (OMB Watch said it was 28%, not “most” as OMB said.) ! failed to disclose that nearly three-quarters of the IQA challenges were from industry. ! provided no data to support its claims that the IQA had not slowed down agency rulemaking or dissemination activities. ! did not cover such issues as the judicial reviewability of the information quality guidelines, the scope of OMB’s oversight and authority, and the burden that agencies bear in implementing the IQA. In summary, OMB Watch said that OMB’s report to Congress “contains so many problems that it would not meet the standards established under the agency’s own information quality guidelines.” Nevertheless, OMB Watch said it was clear that the IQA “has had a significant impact on government operations,” and said Congress should hold hearings on the act to determine if modifications are needed. OMB’s 2005 Report on IQA Implementation In December 2005, as part of its annual report on the costs and benefits of federal regulations, OMB updated its 2004 report on IQA implementation.30 The 29 30 For a copy of this report, see []. Office of Management and Budget, Office of Information and Regulatory Affairs, Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of (continued...) CRS-17 report provided information on correction requests received in 2003 and 2004, repeated many of the observations included in the earlier report about IQA implementation, and offered several “helpful tips for stakeholders interested in writing an effective correction request.” OMB noted that agencies’ interpretation of what qualifies as an IQA correction request “has not been consistent,” with some counting requests that were similar to those previously received and that did not appear to be generated by the act, and others not counting those requests. Therefore, OMB cautioned readers “against drawing any conclusions about trends or year-to-year comparisons.”31 In its report, OMB decided to include some correction requests “despite the fact that some arguably are not generated by the Act.” Therefore, OMB revised the number of correction requests received in FY2003 from 35 to 48. OMB said it considered only 37 requests to be generated by the IQA during FY2004. Therefore, OMB included a total of 85 correction requests for both years (48 plus 37). OMB reported that 10 of those 85 requests led to the correction or partial correction of information (many of which, OMB said, were without significant policy implications), 13 were resolved through other processes (e.g., treated as comments on proposed rules), 17 were pending at the end of FY2004, and 45 had been denied. Of the 45 denied requests (which OMB characterized as “more substantive in nature”), 28 had been appealed, and 13 had been denied again by the end of the fiscal year. Because so few substantive correction requests had been received by the agencies (85 in two years, compared to more than 3 million Freedom of Information Act requests during FY2003), OMB said it was still not prepared to make suggestions for legislative changes to the IQA. However, OMB pointed out that it had issued a memorandum to the President’s Management Council requesting that agencies post all IQA correspondence on their websites by December 1, 2004, and noted that many agencies had done so. As it did in its earlier report, OMB noted that the number of substantive IQA requests received had been fewer than some had anticipated, that the correction request process had been used by virtually all sectors of society, and that, “to our knowledge, the (act) has not affected the pace or length of rulemakings.”32 OMB also again noted that it had learned that “what constitutes a ‘dissemination’ is not straightforward,” and also said that most non-frivolous requests were denied because “a reasonable scientist could interpret the available information the way the agency 30 (...continued) Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, Dec. 2005, pp. 55-77. 31 Ibid, p. 58. 32 Ibid, p. 65. CRS-18 had,” meaning “it is possible for neither the agency nor the requestor to be incorrect.”33 Finally, OMB included a section in its 2005 report on the IQA that listed “tips that will bolster the quality of correction requests and make them easier for agencies to address in a rigorous and timely fashion.”34 For example, OMB said the public should (1) submit correction requests as part of the traditional comment process when the information is under public review (e.g., when rules are out for public comment); (2) provide agencies with peer-reviewed references to scientific sources that support their viewpoint; (3) be as specific as possible and suggest specific changes that need to be made; and (4) request withdrawal of a dissemination only as a last resort. GAO’s 2006 Report on IQA Implementation As noted previously in this report, GAO reported in August 2006 on agencies’ implementation of the IQA, concluding that DHS and a number of independent agencies did not have guidelines covering their information, and those agencies that had IQA guidelines often did not make that information easy for the public to locate.35 As a result, GAO recommended that OMB work with DHS and other agencies without guidelines to ensure that they fulfill their IQA responsibilities, and clarify its guidance to agencies on improving the public’s access to IQA information. GAO also said that the significant decline in IQA-related requests from FY2003 to FY2004 was caused by changes in the way that FEMA and other agencies treated correction requests, and that more than half of the substantive requests that agencies received during these two years came from businesses, trade groups, or other profitoriented organizations. GAO reported that the impact of the IQA on agencies’ operations could not be determined because neither the agencies nor OMB have mechanisms needed to determine those impacts. Nevertheless, GAO analysis of requests indicated that they can take from a month to more than two years to resolve, and that certain program staff or units have seen their workloads increase without an increase in resources. Finally, GAO said that 16 correction requests related to rulemaking had been handled under the Administrative Procedure Act, not the IQA. The IQA and Judicial Review Some observers see judicial review as the crucial test of the act’s future effectiveness. If judicial review is permitted, agencies may find themselves subject to potentially endless legal challenges to their regulations and other types of information disseminations, which could make them less likely to issue similar regulations in the future. On the other hand, the absence of judicial review may 33 Ibid, p. 63. 34 Ibid, p. 70. 35 U.S. Government Accountability Office, Information Quality Act, GAO-06-765, op. cit. CRS-19 encourage agencies to pay less attention to the IQA and make them more subject to administrative directives provided by OMB. Law journal articles do not convey any consensus in the legal community as to whether an agency’s response to a data quality challenge is subject to judicial review, or whether a court in reviewing a regulation might be influenced by a data quality challenge to the underlying data. However, recent decisions by two district courts and a circuit court suggest that judicial review is not available under the act. District Court Actions The first lawsuit alleging failure to comply with the act was filed in August 2003 (Competitive Enterprise Institute v. Bush, D.D.C. No 03-1670), and involved the White House Office of Science and Technology Policy’s report to the President and Congress on climate change. The lawsuit argued that models used in the climate change assessment were not peer reviewed and produced erroneous predictions, and asserted that agency actions were judicially reviewable under the IQA. However, in November 2003 both parties agreed to dismiss the lawsuit because the White House science office offered to issue a disclaimer stating that the national assessment had not been subject to a review under the Office’s data quality standards. In the first IQA-related case to be addressed by a court, on June 21, 2004, a U.S. district court ruled that the act does not permit judicial review regarding an agency’s compliance with its provisions.36 In that case involving the Missouri River, the court first noted that the IQA does not specifically provide for a private cause of action. The court then noted that judicial review was generally available under the Administrative Procedure Act, but not if the agency is acting within the discretion provided by Congress. That discretion is generally considered to have been provided if the statute at issue is written in such broad terms that “there is no law to apply.”37 In this case, the court said that such terms as “quality,” “objectivity,” “utility,” and “integrity” are not defined in the IQA, and the history of the legislation does not provide any indication as to the scope of these terms. Therefore, absent any “‘meaningful standard’ against which to evaluate the agency’s discretion, the Court finds that Congress did not intend the IQA to provide a private cause of action.” In an article on the case, OMB Watch noted that the court did not address whether the APA permits judicial review of an agency’s failure to comply with the OMB guidelines interpreting the IQA or an agency’s compliance with its own guidelines.38 Also, given the limited discussion of the IQA in this case, OMB Watch said it “is most likely not the last word from the courts” on the IQA. On June 25, 2004 — four days after the above court decision — the Department of Justice (DOJ) filed a brief recommending the dismissal of a lawsuit filed under the IQA by the Chamber of Commerce and the Salt Institute against the National Heart, Lung, and Blood Institute (NHLBI) within the National Institutes of Health. The 36 In re: Operation of the Missouri River Sys. Litig., No. 03-MD-1555 at 49 (D. Minn. June 21, 2004) (order granting motions for summary judgment). 37 Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). 38 For a copy of this article, see []. CRS-20 lawsuit challenged the NHLBI’s statements concerning sodium consumption and health effects. The DOJ brief said that the plaintiffs lacked standing to challenge the agency’s underlying study on sodium consumption, and also said that there was no statutory basis for the court to review the agency’s action because the IQA does not permit judicial review. Specifically, DOJ said the following: “Plainly, nothing in the text of the statute indicates that Congress intended for the federal courts [emphasis in the original] to serve as ongoing monitors of the ‘quality’ of information maintained and disseminated by federal agencies. Rather, the language and structure of the IQA reflects Congress’s intent that any challenge to the quality of information disseminated by a federal agency should take place in administrative proceedings before federal agencies. Simply put, Congress nowhere provided a new judicial avenue for private parties to enforce the terms of the IQA.” DOJ also noted the above-mentioned Missouri River court case, noting that “the first and only court to address this issue recently determined that the IQA does not provide for private cause of action.” The Chamber of Commerce and Salt Institute filed a brief on July 16, 2004, challenging DOJ’s arguments. On November 15, 2004, the U.S. District Court for the Eastern District of Virginia (Alexandria Division) ruled in this case that the Salt Institute and the Chamber of Commerce lacked standing to sue (e.g., they had suffered no “injury in fact”), and that judicial review of the agency’s decision making was not available. Specifically, the court ruled that there is no private right of action under the IQA, saying that the “language in the IQA reflects Congress’s intent that any challenges to the quality of information disseminated by federal agencies should take place in administrative proceedings before federal agencies and not the courts.”39 The court also said that judicial review under the APA was not available because the agency’s actions did not constitute a “final agency action” (i.e., one in which “rights or obligations have been determined, or from which legal consequences will flow”),40 and because the agency decisions were within the discretion provided to the agency by law.41 The court went on to say that [n]either the IQA nor the OMB guidelines provide judicially manageable standards that would allow meaningful judicial review to determine whether an agency properly exercised its discretion in deciding a request to correct a prior communication. In fact, the guidelines provide that “agencies, in making their determination of whether or not to correct information, may reject claims made in bad faith or without justification, and are required to undertake only the degree of correction that they conclude is appropriate for the nature and timeliness of the information involved.” 67 Fed. Reg. at 8458. Courts have determined that 39 Salt Institute and the Chamber of Commerce of the United States of America v. Tommy G. Thompson, Secretary, U.S. Department of Health and Human Services, Civil Action No. 04-359, Nov. 15, 2004, p. 24. 40 41 See Bennet v. Spear, 520 U.S. 154, 178 (1997). The APA (5 USC701(a)(2)) expressly prohibits judicial review when the agency action is “committed to agency discretion by law.” CRS-21 regulations containing similar language granted sufficient discretion to agencies to preclude judicial review under the APA. 42 The court also rejected the plaintiffs’ claim that NHLBI had violated the Shelby Amendment, again saying that the plaintiffs lacked standing to sue, and that the agency had merely applied the terms of the circular that OMB had revised to implement the amendment. Circuit Court Action On March 6, 2006, the U.S. Court of Appeals for the Fourth Circuit dismissed the appeal by the Salt Institute and the Chamber of Commerce, agreeing with the district court that the appellants lacked standing because they did not suffer an injury from the published data.43 The Fourth Circuit concluded that the IQA “creates no legal rights in any third parties,” including any right to “information or to correctness.” Therefore, the court argued, “appellants cannot establish injury in fact and, therefore, lack Article III standing to pursue their case in the federal courts.” Concluding Observations The Fourth Circuit’s determination regarding whether agencies’ actions are subject to judicial review under the IQA may have a major effect on the act’s implementation. If judicial review is unavailable under the act, some observers believe that agencies will be more likely to deny information correction requests. Also, oversight of agencies’ actions to implement the statute will likely fall more heavily on the executive branch (i.e., OMB) and on Congress. In the wake of this decision, some critics of the act’s implementation have suggested that Congress amend the IQA and specifically provide for judicial review. Others have suggested focusing on new test cases, believing that the Salt Institute case did not represent the best case to test whether the IQA was subject to judicial review (e.g., because the appellants’ request was that information be made public, not that it be corrected). Another approach some have suggested is for OMB to take a more active role in reviewing agencies’ decisions under the act, perhaps as part of their regulatory review responsibilities under Executive Order 12866. Even in the absence of judicial review, the IQA can still have a significant impact on federal agencies and their information dissemination activities. OMB’s reports on the implementation of the act during FY2003 and FY2004 provided numerous examples of agencies changing their information dissemination practices in response to administrative requests for correction from affected parties. For example, in June 2004, the National Institute on Aging within the National Institutes of Health agreed to revise its website and printed publications, eliminating statements 42 43 Salt Institute v. Thompson, p. 27. Salt Institute; Chamber of Commerce of the United States of America v. Michael O. Leavitt, Secretary of Health and Human Services, No. 05-1097, Mar. 6, 2006. CRS-22 indicating that smokeless tobacco products are no less safe than cigarettes. The change was a direct result of an IQA correction request filed by the National Legal and Policy Center.44 IQA correction requests have also been filed by groups and in policy areas that few observers anticipated.45 The IQA may also be having an effect on information dissemination in the states. The Center for Regulatory Effectiveness has reportedly drafted and promoted a model state version of the act that is derived from the federal legislation and the OMB guidelines.46 The State of Wisconsin has adopted data quality legislation,47 and other states are reportedly planning to do so. Possible Improvements and Modifications As noted previously, OMB’s first report to Congress included several suggested improvements in the administration of the IQA (e.g., putting correction requests on agencies’ Web pages and improving the timeliness of agencies’ responses to those requests). None of the actions that OMB suggested appear to require congressional action; each could be implemented by OMB and the agencies administratively. Similarly, GAO’s August 2006 recommendations could be implemented by OMB and the agencies without congressional involvement. The observations of other interested parties suggest additional possible areas of clarification or refinement in either the IQA or in any subsequent reporting requirements. For example, OMB Watch indicated that OMB’s reports to Congress should have examined the effect that the IQA was having on the pace of the regulatory process and on agency resources. OMB said it was not aware of any data indicating that the IQA was slowing down rulemaking, but also said agencies were finding that it took longer than expected to respond to correction requests and to implement the appeals process. GAO reported that neither the agencies nor OMB have mechanisms to determine the costs or other impacts of the IQA on agency operations. To improve oversight regarding these issues, either Congress or OMB could initiate the collection of more systematic and reliable data regarding the IQA’s effect on rulemaking or agencies’ resources. 44 “Government Watchdog Group Successfully Challenges Federal Health Policy on Data Quality Act Grounds,” PR Newswire, July 14, 2004. 45 For example, in October 2004, Americans for Safe Access (a Berkeley, California advocacy group) filed an IQA correction request with the Department of Health and Human Services asserting that the department’s statements that marijuana has no medical use in treatment in the United States “misstates the scientific evidence and ignores numerous reports and studies demonstrating the medical utility of marijuana and its constituent compounds.” 46 Chris Mooney, “Paralysis by Analysis: Jim Tozzi’s Regulation to End All Regulation,” Washington Monthly, 5 (May 1, 2004), p. 23. 47 2003 Wisconsin Act 145 took effect on July 1, 2004, and relates to administrative rulemaking regarding small businesses. Among other things, it requires agencies to “ensure the accuracy, integrity, objectivity, and consistency of the data” used to develop a proposed rule. CRS-23 OMB Watch also indicated that OMB’s initial report was flawed in its characterization of the number of correction requests and the source of those requests. Some of the disagreements on those issues may flow from differences of opinion regarding what types of actions should be considered in an IQA correction request. For example, it is not clear whether Congress intended the IQA correction request process to apply to ! many of the relatively minor issues listed in OMB’s report (e.g., the dates of publication of a pamphlet or the names of persons in a photograph). ! the tens of thousands of requests to revise FEMA flood insurance rate maps and other items that had been addressed administratively before the IQA came into being. ! comments filed regarding proposed rules or requests that the public comment periods for proposed rules be reopened. OMB’s 2005 report notes that agencies are inconsistent in how they treat such submissions, with some characterizing them as IQA correction requests and others deciding not to do so. GAO reported that the sharp decline in the number of IQA requests was a result of certain agencies changing how they classified correction requests. To clarify these and other issues, either Congress or OMB could better define the scope of the act or the issues to be included in any future report. Clarification could also be provided regarding whether correction requests that the agencies determine to involve issues outside the scope of the IQA (e.g., a challenge to the minutes of a federal advisory committee meeting) should be included in a report that is supposed to list correction requests under the act. The IQA and Peer Review In its final IQA guidelines, OMB encouraged (but did not require) the use of peer reviews in the development of agency-disseminated information. As noted previously in this report, OMB indicated that agencies can presume that data are sufficiently “objective” if they have been subject to an independent peer review process (e.g., as used by scientific journals), but said a member of the public could rebut this presumption “based on a persuasive showing by the petitioner in a particular instance.” OMB also indicated that journal peer review may not be sufficient for information likely to have an important public policy or private sector impact. Finally, the IQA guidelines set minimum standards for the transparency of agency-sponsored peer review (e.g., disclosure of reviewers’ prior technical or policy positions and sources of funding). On September 15, 2003, OMB published a proposed bulletin on “Peer Review and Information Quality” in the Federal Register that would, when made final, provide a standardized process by which all significant regulatory information would CRS-24 be peer reviewed.48 OMB said it received 187 comments on the draft peer review bulletin, many of which were critical of the proposed requirements. On April 28, 2004, OMB published a revised peer review bulletin in the Federal Register that the office said “incorporates many of the diverse perspectives and suggestions voiced during the comment period.”49 The revised bulletin essentially required agencies to take three actions (to the extent permitted by law): (1) have a peer review conducted on all “influential scientific information” that the agency intends to disseminate (changed from “significant regulatory information” in the proposed bulletin); (2) have all “highly influential scientific assessments” peer reviewed according to more specific and demanding standards; and (3) indicate what “influential” and “highly influential” information the agency plans to peer review in the future. By focusing on scientific information (not just regulatory information), the bulletin was significantly broader than the proposed document. It also gave agencies much more discretion to decide when information is “influential” and therefore requires a peer review, but also gives OMB significant authority to decide when a “scientific assessment” is “highly influential”and, therefore, requires more specific peer review procedures. On December 16, 2004, OMB published a final version of the peer review bulletin that was substantially similar to the April 2004 revised document.50 Changes to the revised bulletin include a requirement that the names of peer reviewers be disclosed to the public, and an annual reporting requirement for the agencies to allow OMB to track how agencies are using the bulletin. The bulletin became effective for all “influential scientific information” (including “highly influential scientific assessments”) on June 16, 2005. On December 16, 2005, agencies began posting peer review agendas for influential scientific information. OMB said in its 2005 report on the IQA that it considered several agencies’ agendas to be “exemplary in form,” and specifically cited those of the U.S. Coast Guard, the Department of Transportation, and the Food Safety Inspection Service. 48 Office of Management and Budget, Executive Office of the President, “Proposed Bulletin on Peer Review and Information Quality,” 68 Federal Register 54023 (Sept. 15, 2003). This bulletin had been released to the public via OMB’s website on Aug. 29, 2003. For a copy of this proposed bulletin, see [ info_quality.pdf]. 49 Office of Management and Budget, Executive Office of the President, “Revised Information Quality Bulletin on Peer Review,” 69 Federal Register 23230 (Apr. 28, 2004). This revised bulletin had been released to the public via OMB’s website on April 15, 2004. To view a copy of this revised bulletin, see [ peer_review041404.pdf]. 50 To view a copy of this final bulletin, see [ peer2004/peer_bulletin.pdf].