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http://www.smith-robertson.com/Environmental/news-014.asp DATA QUALITY ACT: FEDERAL AGENCIES MUST PROMULGATE DATA QUALITY GUIDELINES In December 2000, Congress passed the Data Quality Act (the
"DQA"), a little-noticed provision that has the potential to
dramatically change how federal agencies make their decisions in matters as
varied as Environmental Impact Statements and Endangered Species Act permits.
The DQA, which went into effect October 1, 2002, requires every federal agency,
including the Environmental Protection Agency and the U.S. Fish and Wildlife
Service, to establish "guidelines ensuring and maximizing the quality, objectivity,
utility, and integrity of information (including statistical
information)." The key provisions of the DQA require that these agencies: establish agency data quality guidelines consistent with
general standards of reliability, utility, and objectivity; ensure that all
information they disseminate to the public complies with those guidelines; and allow citizens to petition the agency to challenge
particular information as inconsistent with the guidelines. Agency decisions on DQA citizen petitions would likely be
subject to challenge in court. Proponents of the DQA suggest that it will improve the
information base on which policies are made. As James Tozzi of the Center for
Regulatory Effectiveness recently told The New York Times, "Now in the
world's most powerful government you're going to have to issue information
that's accurate." Others point out that the law, by setting a government
standard for scientific quality, could also help industry prevail in lawsuits
claiming rules relied on poor data or analysis. "This is the biggest
sleeper there is in the regulatory area and will have an impact so far beyond
anything people can imagine," said William L. Kovacs, the vice president
for environment, technology and regulatory affairs of the United States Chamber
of Commerce. "This is the first time where, if the data is not good, you
can actually begin challenging the agency." The following summary demonstrates how the DQA could have
these substantial impacts. Background The Data Quality Act was passed as part of the FY 2001
Consolidated Appropriations Act (Pub. L. No. 106-554. codified at 44 U.S.C. §
3516, note.) The DQA requires the Office of Management and Budget
("OMB") to develop government-wide standards for data quality in the
form of guidelines, which OMB has done through a series of rule makings. See 67
Fed. Reg. 8,452 (Feb. 22, 2002). Individual agencies must then promulgate their
own conforming guidelines based upon OMB's model, taking into account each
agency's unique programs and information products. The agencies' conforming
Data Quality guidelines must include an administrative mechanism through which
the interested public may petition for the correction of information which is
inaccurate, misleading, or otherwise not in accordance with the guidelines. Data Quality Standards Under the Data Quality Act, as interpreted by the OMB
guidelines, agency information disseminated to the public is subject to the
following new quality standards: It must be based on the best available, peer-reviewed science
and supporting studies conducted in accordance with sound and objective
scientific practices; and on data collected by accepted methods or best
available methods (if the reliability of the method and the nature of the
decision justifies use of the data). It must have utility. Utility requires
that the information be useful to intended users. These include Congress and
the Executive Branch, as well as the public. It must have objectivity. Objectivity requires that agency
information be accurate, reliable, unbiased, and developed using sound
statistical and research methods. The federal agencies' data quality guidelines must be
consistent with OMB's guidelines, but they could and should also be more
program specific. Citizen Petitions Agencies subject to the Data Quality Act must also create
processes for the public to petition agencies to change information that does
not comply with the DQA, as implemented by OMB's and individual agencies'
guidelines. All "affected persons" may file a Data Quality Act
petition. The OMB guidelines define "affected persons" as
"people who may benefit or be harmed by the disseminated
information," including "people who are seeking to address
information about themselves as well as persons who use information." 66
Fed. Reg. 49,718 (September 28, 2001). All information currently being disseminated by an agency,
for example through availability on the agency's website, is subject to a Data
Quality Act petition, regardless of when the information was first
disseminated. 66 Fed. Reg. at 49,724. The "affected person," however,
carries the burden of demonstrating that the agency failed to comply with the
DQA when challenging information released before October 1, 2002. The burden of
proof shifts to the agency when the challenged information was released after
October 1, 2002, which is when the DQA became effective. When an affected person files a petition to correct
information disseminated by an agency, the agency is required to consider whether
and how to correct the disputed information, and the agency is required to
notify the affected person of the corrections made. If the person who requested
the correction does not agree with the agency's decision, the person may then
file for reconsideration within the agency. Each agency is required to
establish an administrative appeal process to review the agency's initial
decision, and specify time limits in which to resolve such requests for
reconsideration. 67 Fed. Reg. at 8,459. An agency's final decision on an administrative petition
under the DQA would be final agency action subject to judicial review under the
Administrative Procedure Act. 5 U.S.C. § 504. For more information, please feel free to contact Alan Glen. To view a copy of the OMB guidelines, please go to: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=R2-59-filed.pdf |