In the eternal struggle to resist out-of-control federal regulators, a new super hero has emerged. Well, perhaps not a super hero, but definitely a super tool to assist the common folk who daily struggle to protect private property rights.

The Data Quality Act is now the law of the land. It emerged from Congress under the radar, buried in a general appropriations bill. In December 2000, Congress enacted Section 515(a) of the Treasury and General Appropriations bill. The provisions of this Act direct that each and every federal agency set forth a procedure for allowing individual challenges to the quality and integrity of data disseminated to the public. The Office of Management of the Budget (OMB) was ordered to issue guidelines controlling these processes and to exercise oversight of compliance by each agency.

Specifically, the Act directed OMB to establish, by September 30, 2001, guidelines setting policy for the federal agencies which would ensure and maximize “the quality, objectivity, utility and integrity of information…disseminated by Federal agencies…” Section 515(b) ordered OMB to also require each agency to issue specific guidelines which would assure the quality and integrity of data of all information which that agency disseminates. In addition, Congress ordered that the agency guidelines provide administrative process “allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency.”

The Data Quality Act was enacted as an amendment to the Paper Reduction Act. So, it is now found at 44 U.S.C. 3502. The Paper Reduction Act established a national policy that the government should assure quality and integrity of data. But, it provided no specific administrative method by which an individual could challenge the data disseminated by an agency.

In the new Act, Congress took a giant step toward establishing a practical, effective manner for the public to participate in achieving the national purpose of assuring quality, objectivity and integrity of data used and disseminated by the agencies. Previously, members of the public could challenge, under the Administrative Procedure Act, federal agency decisions and actions, but there was no effective way to challenge the quality of the underlying data. In the absence of any structure for those outside government to challenge the quality and integrity of data used by the agencies, the nation has witnessed repeated harm resulting from use of flawed data.

The details regarding the flawed data used by agencies to condemn the farmers in the Klamath Basin gained national attention. Only a political appeal to the top of the Interior Department was available. And, it took a political decision to initiate a review which found and pointed out the flaws in the data upon which the agencies had relied.

A myriad of examples demonstrate the need for a method for challenging quality and integrity. Recently, a non-profit organization discovered a critical flaw in a study upon which the Environmental Protection Agency had been setting Clean Air standards and regulations for two years. The Health Effects Institute of Boston is an organization jointly funded by the EPA and industry. It discovered a software glitch which caused inaccurate exaggerations of effect of air pollution on health. The error in the study caused figures to be off by as much as 23%. Again, basically this review came from within the agency, or at least was made possible through funding from the agency. An outsider would have had no avenue to challenge the study.

In the intermountain west, ranchers and local governments are facing the threat of reduced grazing as a result of emphasis on protecting the sage grouse. The BLM in Idaho has used a “Sage Grouse Framework” for nearly two years to help frame its plans and management actions. The “Framework” has been roundly criticized by scientists, ranchers, grazing associations and local government effected economically and culturally by proposed reductions. But, there was no way for these critics outside the structure of government to effectively challenge the quality and accuracy of the data contained in that Framework.

The Data Quality Act provides the mechanism for members of the public to launch challenges to the use of such data. OMB followed the congressional mandate, issuing policy guidelines requiring every federal agency to set forth an administrative process for public challenges to data. The individual agency guidelines were filed with OMB for review, and final guidelines became effective October 1, 2002.

Congress stated no exemptions from the requirements set forth in the Data Quality Act. Nevertheless, as one might expect, many of the agencies drafted guidelines exempting from the challenge process the dissemination of data critical to carrying out their particular agendas. The effort was typical of the resistance of an administrative agency to any Congressional mandate which conflicts with, or even differs from, the bureaucratic agenda of the agency.

Many objections to these agency attempts at self-exemption were filed with OMB and the agencies. The Center for Regulatory Effectiveness pointed out that the language of the Data Quality Act did not allow exemptions. CRE also pointed out that legislative history of the Act evidenced no intent to allow exemptions. In fact, to allow exemptions would be contrary to the precise language of the Paperwork Reduction Act. That Act stated an express purpose to “improve the quality and use of Federal information to strengthen the decisionmaking, accountability, and openness in Government and society.” To achieve that purpose, the Act required agencies to maintain the quality of data used in “any information, regardless of form or format, that the agency discloses, disseminates, or makes available to the public.” No exemptions were stated. In keeping with that policy, the Data Quality Act allows no exemptions from the requirement that data be subject to administrative challenge.

Center for Regulatory Effectiveness (CRE) pointed out that the United States Supreme Court has held that any exemption from public information statutes must be clearly and specifically stated in the statute. U.S. Department of Defense v. Federal Labor Rel. Authority, 510 U.S. 487 (1994); Dole v. United Steelworkers of America, 429 U.S. 26 (1990).

The Commissioners of Owyhee County, Idaho objected specifically to the Department of Interior and Bureau of Land Management attempts to exempt many uses of data from challenge. The Commissioners stated “The legislative history of the Act [Data Quality Act] makes it clear that the intent of Congress, as well as the legislative language, is to mandate each agency to establish a process by which persons affected by the agency’s operations can challenge the quality of data and information disseminated by the agency without exception.”

The County warned that the BLM’s attempts to create exemptions would not be weakly accepted:

“If the Draft guidelines are adopted, BLM will consider itself complaint free in any process critical to the [ranchers of the County]. But, the County warns that it will not be complaint free. The County, and hopefully all permittees adversely affected by these exemptions, will file complaints pursuant to, and as contemplated by, the Data Quality Act, and will see those complaints through to conclusion. As previously stated, the County will encourage such actions throughout the west, and will encourage “watch-dog” organizations to coordinate such actions. Congress has given us the tools to challenge the agencies, and those tools should be put to use.”

The Data Quality Act does constitute a valuable tool which should be “put to use” by individuals, businesses and organizations who suffer from regulations based on data which the agency selectively chooses because it supports the bureaucratic agenda. But, like any common everyday tool, it must be used correctly and appropriately. The Act will not, itself, remedy the wrongs resulting from use of flawed data. The Act is not a self-enforcing statute. Individuals must put the challenge tool to work, they must use the challenge process to enforce what Congress has mandated. They must use the Act and the process it has provided.

Not only must the Act be used. It must be used effectively. If one merely advises the agency of the existence of the Act in comments to a proposed action, there will not be effective resolution of any issue. No agency will alter a decision because of such general comments. Simply citing the Act to an agency in an attempt to deter a proposed decision or action will not prevent the action, and will not alter the agency’s agenda. Simply citing the Act in a political discussion with the agency, or threatening its use in such discussion will not deter a proposed decision or action and will not alter the agency’s agenda in time to do the protestor any good. Instead, the challenge process authorized by the Act must be used.

To effectively use the challenge process, one must first review the specific Data Quality guidelines issued by the agency. The guidelines are called the “Information Quality Guidelines,” and they can be found by accessing the website of the specific agency or the OMB. The guidelines for the Department of Interior, the BLM, the Fish and Wildlife Service, and the Forest Service are available on the Stewards website.

The complaint challenging the data must be prepared and filed in strict accordance with the terms of the specific agency guidelines. One should not simply put together a letter complaining about the quality, objectivity or integrity of data and expect a good result from the agency. The complaint must be carefully put together in strict accordance with the guidelines. It should be recognized that the burden of proof will be on the person challenging the data. So, the complaint should include specific examples of the flaws in the data, and should be supported with documentation available to the complainant.

Once the complaint is filed, the complainant must be sure that the agency is aware that the progress of the complaint is being closely followed. Make sure that the agency responds to the complaint in writing, advising as to the process of review which will take place and the timeline within which an answer can be expected. Even though not required by the guidelines, the complainant should offer to meet with agency review personnel to personally discuss the data and its flaws. If the agency agrees, be sure to attend the meeting well prepared to discuss specifically the flaws in the data, not just complaints against the agency. More than likely, the agency will not agree to such a meeting, and one should get the denial in writing. If the agency refuses to put the denial in writing, the complainant should write a letter to the agency stating that a personal meeting was requested and that the request was denied.

The OMB guidelines went even a step further than specifically required by Congress. OMB told the agencies to provide for an appeal from the initial ruling of the agency. With great reluctance, and much bureaucratic muttering, the agencies provided such an appeal, pointing out that Congress had not mandated such step. However, Congress gave OMB wide authority and responsibility as to oversight. The OMB requirement of an appeal certainly falls within that authority.

It is as yet unclear to many whether judicial review will be available to challenge an agency’s denial of a complaint as to data. Many believe that the denial will be subject to judicial review under the Administrative Procedure Act, if not otherwise. Many spokesmen for industry have stated their intent to challenge adverse agency decisions in court. CRE seems to have taken the position that judicial review of agency decisions will be sought. Certainly, one advantage of judicial review is that the agency may be diverted from strenuous use of flawed data pending outcome of the review.

Already, the Act has been put to use. In November 2002, CRE, with the Kansas Corn Growers Association filed a complaint with the Environmental Protection Agency. They challenge dissemination of a scientific study suggesting that atrazine, a weed killer widely used in the mid-west, has endocrine-disrupting effects on frogs. CRE has broadened its complaint to challenge not only the integrity of the study, but also the use of such scientific study by the government agency prior to establishment of adequate validation protocols.

If adverse agency decisions are tested in court, and the complainant is granted standing to seek judicial review, the impact will be incredible. Such review may then make it possible to raise the issue of quality of data with the court, an issue which is normally not available in a court proceeding. The hope is that the provisions of the Data Quality Act, and of the agency’s guidelines themselves, will open the review beyond the “arbitrary and capricious” standard which often restricts the usefulness of judicial review of agency decisions.

The Data Quality Act, and the resultant guidelines, now allows data quality complaints to move outside hand-wringing meetings and into the realm of formal decision. Federal decisions and actions will certainly be affected if the Act and its resultant process is used widely and appropriately.

Permission to reprint is granted in whole or in part with attribution
to Stewards of the Range. Copyright 2002