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CRE Assesses Agency Implementation of an Administrative Petition Process Under the OMB Data Quality Guidelines
CRE Review of Petition Processes at EPA
In order to stimulate debate on development of the Data Quality provision and its use of a petition process as an administrative correction mechanism, CRE undertook efforts in early 2000 to examine federal agencies' experiences to date with petition processes for other purposes, in order to gauge agencies' familiarity with such mechanisms. The Center chose to examine EPA as a test case, and the findings were eye-opening. The CRE report may be reviewed by clicking on the link provided below.*
* Please note in reviewing the CRE report that it references authority for the Data Quality provision under the FY 1999 Omnibus Appropriations Act (P.L. 105-277). This is so because the Data Quality statutory provisions passed in the FY 2001 Consolidated Appropriations Act (P.L. 106-554) were originally included in nearly identical form in report language associated with the FY 1999 Act. OMB never acted on the Data Quality report language, arguably having been engrossed in implementation of the statutory provisions for Data Access which were also included in the earlier law.
Nevertheless, since both legislative provisions called for government-wide standards for the quality of information disseminated to the public and both called for a petition process for correction of information which does not meet these standards, CRE's inquiry into agency (EPA) use of petition processes remains relevant to the Data Quality law ultimately passed in December 2000.
CRE's analysis revealed 399 existing references to petition processes in EPA's regulations, as found in the Code of Federal Regulation (CFR). However, due to the cross-referencing of certain regulatory provisions for the same petition process, CRE found that EPA had established 143 distinct petition processes on an agency-wide basis. Of these, at least 25 petition processes are open to any interested member of the public, and at least one of those provisions permits members of the public to obtain disclosure of data. The availability of such liberal petitioner standing provision has not resulted in a flood of petitions which has significantly impacted EPA's activities.
Types of Petition Processes Available at EPA
CRE's review of the relevant EPA provisions identified six functional categories of petition processes, including:
(1) Petition processes open to any concerned member of the public;
(2) Petitions for disclosure of information;
(3) Petitions to initiate rulemaking proceedings or to amend rules;
(4) Petitions for agency action that would constitute final agency action;
(5) Petitions for variances or exceptions; and
(6) Petitions for administrative hearings, including reconsideration and appeal.
Benefits of Agency Petition Processes
Benefits associated with agency petition processes include:
Less costs than litigation
Petition processes are relatively informal proceedings which routinely resolve disputes with an agency at an early stage. In most cases, the petition process will obviate the need to resort to expensive and time-consuming litigation of the issues which are the subject of the petition.
Creation of documentary record
The petition processes normally requires both the regulated party and the agency to prepare a written record of the facts at issue and the agency's reasoning for its decision. This record streamlines the arguments which may have to be considered by a higher regulatory review board or court.
Availability of judicial review, if necessary
Judicial review remains available under the Administrative Procedure Act, 5 U.S.C. § 500 et seq., if needed.
Petition processes have demonstrated their usefulness at various federal agencies as a means to resolve disputes relatively quick through an informal mechanism which enables the government to avoid costly litigation in most cases.
CRE Conclusions Regarding Agency Petition Processes for Data Quality and Other Purposes
Based upon its research, CRE has concluded:
Federal agencies already administer virtually hundreds of existing petition processes.
Such petition processes are crucial for ensuring due process and regulatory fairness for the private sector.
The fact that so many of these processes have already been implemented without placing undue resource burdens on the agencies demonstrates that the Data Quality petition mechanism can be implemented in an effective and efficient manner.
Consequently, CRE believes that implementation of this key aspect of the Data Quality guidelines will cause minimal disruption of ongoing agency activities.