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Proposed Revision of
OMB Circular A-130,;
(65 Federal Register 19933 et seq.; April 13, 2000)

May 17, 2000

Mr. Tony Frater
Information Policy and Technology Branch
Office of Information and Regulatory Affairs
Office of Management and Budget
Executive Office of the President
Room 10236
New Executive Office Building
725 17th St., N.W.
Washington, D.C. 20503

RE: Proposed Revision of OMB Circular A-130, Management of Federal Information Resources; 65 Federal Register 19933 et seq.; April 13, 2000.

Dear Mr. Frater:

Introduction

The Center for Regulatory Effectiveness (CRE)1 has a continuing interest in improving the quality of information that Federal agencies disseminate to the public, including through the Internet. CRE also believes that Federal agencies need to establish a sound and transparent substantive and procedural basis for determining whether data and information upon which agencies base regulatory decisions are of high quality.

CRE's comments today address our strong belief that OMB should establish, through OMB Circular A-130, a clear procedure to allow affected members of the public to petition to correct government-disseminated information that is incorrect or that is misleading to the public, for example, because the information is not presented in appropriate scientific context. We propose specific text, below.

OMB Circular A-130 and the Role of the Agency Chief Information Officers

CRE believes that the revision of OMB Circular A-130, Management of Federal Information Resources, presents an excellent opportunity for OMB to direct Federal agencies to improve the quality and practical utility of "information created, collected, maintained, used, shared and disseminated by or for the Federal Government"2.

OMB Circular A-130 contains numerous policy directives that address the need for development, maintenance, dissemination, and modification of agency public information products and for senior-level management oversight to assure that agencies establish and maintain high quality information systems. Circular A-130 also establishes as Administration policy that agencies need a complaint resolution process and a designated senior official who is responsible for upholding the policies of the Circular and who has authority to correct data errors and to remedy poor data quality. See, Circular A-130, notably 9(a)(10).

On April 18, 2000, John T. Spotila, the Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget, wrote to Congresswoman Jo Ann Emerson in reply to a letter from her requesting OMB's response to language in the Conference Report of OMB's Appropriations in the FY 1999 Omnibus Appropriations Act, concerning the quality of information that Federal agencies disseminate to the public. (See, House Report 105-592, at page ___.) Mr. Spotila wrote:

The FY 1999 House Report language urged OMB to establish government-wide rules for ensuring the quality of federally-disseminated information. We appreciate the need for ensuring such quality and are sensitive to the possibility that OMB Circular A-130 might need to be updated or supplemented to deal with concerns in this area. OMB Circular A-130 already establishes complaint resolution procedures for perceived violations of data quality and other requirements in the Circular. Section 9(a)10 of the Circular contains a requirement that each agency CIO [Chief Information Officer] must:

"monitor agency compliance with the policies, procedures, and guidance in this Circular. Acting as an ombudsman, the [CIO] shall consider alleged instances of agency failure to comply with this Circular and recommend or take corrective action as appropriate."

The Circular also contains a specific requirement for agencies to report to OMB any alleged violations and their resolution:

"The [CIO] shall report annually, not later than February 1st of each year, to the Director [of OMB] those instances of alleged failure to comply with this Circular and their resolution." [Letter from John T. Spotila, April 18, 2000.]

CRE notes that OMB proposes to amend existing 9(a)10 by re-designating it as 9(a)4 and making express reference to the CIO's duty to "consider alleged instances of agency failure to comply with section 8(a) ["Information Management Policy"] of this Circular, and recommend or take appropriate corrective action". (65 Fed Reg. 19938.) CRE believes the proposed amendment to 9(a)10 maintains the CIO's authority to resolve disputes concerning the quality and presentation of data and information in Federal agency information products.

While CRE appreciates Mr. Spotila's statements concerning the complaint resolution authority of the CIOs pursuant to current Circular A-130, we believe that OMB should revise Circular A-130 to establish clear procedural principles for affected members of the public to petition to correct government-disseminated information that is incorrect or that is misleading to the public, for example, because the information is not presented in appropriate scientific context.3

CRE also believes that revising Circular A-130 to establish a clear process for petitioning for corrections will promote the purposes of the Paperwork Reduction Act and help implement the Circular's policy statement that:

It is [. . .] essential that the government [. . .] maximize the usefulness of government information. [Circular A-130, 7.c.]

CRE's Proposal to Amend Circular A-130

CRE proposes that OMB amend Circular A-130 to establish more specifically what type of complaint resolution procedures the CIO will employ in the role of ombudsman, as the CIO considers alleged instances of agency failure to comply with the Circular and recommends or takes corrective action as appropriate, pursuant to existing 9(a)10 (proposed 9(a)(4)).

CRE suggests that OMB:

  • Add a new sentence at the end of proposed 9(a)(4), as follows:

    When acting as ombudsman pursuant to this section, the Chief Information Officer will employ the procedures and criteria set forth in Appendix V to this Circular.

  • Add a new Appendix V, as suggested in the Attachment to this letter.
  • The Attachment provides procedures to allow affected persons to petition the CIO to correct defective data or information. We also suggest criteria for "standing" to file such petitions, which we believe will assure that the CIOs are not inundated with frivolous petitions to correct data or information.

    If you have any question concerning the CRE's comments on OMB's proposed revision to OMB Circular A-130, please contact me at: (202) 265-2383.

    Sincerely, Jim J. Tozzi
    Member, CRE Advisory Board


    1 The CRE was established in 1996, after the passage of the Congressional Review Act, to provide Congress with independent analyses of Federal agency regulations. From this initial organizing concept, CRE has grown into a nationally recognized clearinghouse to improve the Federal regulatory process. One such improvement in the Federal regulatory process is to assure that Federal agencies make decisions based on sound science. CRE has no members, but it receives, from time to time, financial support, services in kind, and work product from trade associations and private firms. The CRE Advisory Board consists of former career officials from OMB's Office of Information and Regulatory Affairs. (back to document)

    2 See, "Purposes" of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), at 3501(2). (back to document)

    3Appendix IV to OMB Circular A-130 affirms the importance of presenting information in appropriate context: Agencies should inform the public as to the limitations inherent in the information dissemination product (e.g., possibility of errors, degree of reliability, and validity) so that users are fully aware of the quality and integrity of the information. [. . .] [Circular A-130, Appendix IV, Analysis of Key Sections, at 3, following discussion of Section 8a(7).] (back to document)

    ATTACHMENT

    Appendix V to OMB Circular A-130 -
    CIO Ombudsman Complaint Resolution Procedures

    1. Purpose

    The purpose of this Appendix is to provide standardized procedures and criteria for considering alleged instances of agency failure to comply with section 8(a) of this Circular, as provided for in section 9(a)(4) of this Circular.

    2. Procedures and Criteria

    1. General. Each Federal agency CIO will, in the role of ombudsman pursuant to 9(a)(4), follow the procedures and criteria set forth in this Appendix V, to provide opportunity for affected members of the public to seek to correct defective or misleading data or information in agency public information products.

    2. Petition process. The CIO will establish a petition process under which an affected or interested party shall be able to file a petition with the agency to correct defective or misleading data or information. The petition process shall contain the following elements:

      1. Contents of petition. The petition shall identify:

        1. The petitioner;
        2. The challenged Federal data or information;
        3. The alleged defects in the data or information;
        4. The relief sought; and
        5. Whether the petitioner had, and took advantage of, any opportunity for public comment at the time the challenged data or information was created or at the time the decision was made to disseminate the data or information.

      2. Timing of agency response. The CIO shall send the petitioner an acknowledgment of receipt of the petition setting forth the date of receipt. The agency shall resolve the petition within 60 days of the date of receipt, unless the petition alleges immediate or irreparable harm, in which case subsection "b(iv)" of this 2 shall govern. If the CIO will not be able to respond within 60 days, the CIO shall provide notice to petitioner 15 days prior to expiration of the initial 60 day period, setting forth a valid reason beyond the agency's control.

      3. Prior opportunity for public comment. If, prior to the time the challenged Federal data or information was created, or prior to the time the decision was made to disseminate the data or information, the agency published a notice in the Federal Register providing all members of the public with a full and complete opportunity to review and comment on the data or information, including the methodologies and assumptions underlying the creation of the data or information, a petitioner shall not have standing unless the petitioner filed comments pursuant to such process.

      4. Emergency procedure; interim relief. If the petitioner alleges that the dissemination of defective data or information is causing, or threatens to cause, immediate irreparable harm, the agency shall immediately desist from such dissemination (including withdrawing existing dissemination) until final resolution of the petition (including any available judicial review). The petitioner shall be liable to the agency, for the all costs directly flowing from any interim relief requested by the petitioner and undertaken by the agency, but only to the extent that the petitioner does not prevail upon final disposition of the petition. If such direct costs are reasonably anticipated to exceed $_______ (based on the sole, unreviewable discretion of the CIO), then the petitioner shall be required to post a bond in such amount as a precondition of the provision of such interim relief.

    3. Standing to file data quality petitions.

      1. Affected or interested person. A person shall have standing to file a data quality petition pursuant to this procedure if such person is affected by or interested in the Federal data or information that is the subject of the petition. A person shall be deemed to be affected by or interested in the data or information, inter alia, if:

        1. The data or information pertains to the person, regardless of whether or not the data or information identifies the person;

        2. There is a reasonable possibility that the way in which the data or information is created, used, or disseminated has, is, or will adversely affect the person's health, safety, ability to use an environmental resource, economic interest, or reputation; or

        3. There is a reasonable possibility that a right or lawful activity of the person has, is, or will be impaired due to the way in which the data or information is created, used, or disseminated.

      2. Associational standing. An association or organization shall have standing to file a data quality petition if the one or more of its members are or will be affected by or interested in the creation, use, or dissemination of Federal data or information.

      3. Territorial limitation. The petitioner must be a United States resident or have significant business activities in the United States. This procedure is not intended to create rights in non-U.S. residents without significant contacts with, or activities in, the United States, even when the non-U.S. activities of such non-U.S. persons may arguably be affected by the creation, use, or dissemination of Federal data or information.