New Guidelines Open U.S. Data To Challenge

By a Washington Post Staff Writer
Tuesday, October 1, 2002; Page E01

Knowledge may be power in most places, but cold, hard data rule in Washington.

In the arduous process of creating a federal regulation, the bricks and mortar are the data underlying the rule—the scientific studies, the surveys, the risk assessments, morbidity estimates, the economic analysis. Regulators at federal agencies are the final arbiters in what goes into the mix and whether it's reliable. Challenges to their judgment usually end up in court years after the rule is conceived.

That all changes today. From now on, virtually every piece of information that the federal government makes public—through a rulemaking, a publication or a Web site—becomes open to challenge for its accuracy and veracity.

Thanks to an obscure provision in an appropriations bill two years ago, business groups and others who have sometimes criticized government information as being biased or of poor quality no longer have to wait until a rule is issued to seek corrective action. They can lodge a complaint about the agency's data, along with the basis of their challenge, and the federal agency has to respond in a timely way—probably 60 days.

In February, the Office of Management and Budget devised final guidelines to "provide policy and procedural guidance to federal agencies for ensuring and maximizing the quality, objectivity, utility and integrity of information disseminated by federal agencies." Today, some 93 agencies will release guidelines of their own, tailored to their individual missions, but reviewed by OMB.

OMB officials caution that it will not be easy to get a rulemaking reopened. "The impact on the regulatory process is speculative. Getting agencies to reopen a rule is a much bigger step than the [law] envisioned and it requires a much larger burden on the complainer," said John D. Graham, administrator of OMB's Office of Information and Regulatory Affairs (OIRA).

What may be more important than challenges to information backing proposed rules are those to the studies and information the government uses outside the regulatory structure, such as those that address global warming or health risks.

"It allows us to go in and have the government justify the information it's using. It allows us to challenge the information," said William Kovacs, vice president of environment, technology and regulatory affairs for the U.S. Chamber of Commerce. "A bad rule based on bad information means we spend money and don't achieve the health and safety benefits the rule set out to achieve."

The Center for Regulatory Effectiveness, which characterizes itself as a regulatory watchdog group that is supported by business and trade associations, was the impetus behind the new law, which was the subject of no hearings, debate or fanfare when added to a 2001 spending bill.

James J. Tozzi, the group's founder, was at OMB's office of regulatory review from 1972 to 1983. He said the center probably will be among the first to challenge a study the Environmental Protection Agency did as part of a rulemaking.

Business groups support the new program as a way to improve the quality of rulemaking.

"With this law, the quality of data underlying agency rules is likely to become a key issue in litigation challenging federal rules. Simply put, the data-quality law promises to have an immeasurable impact on every business that uses federal data, and on every business that is regulated by a federal agency," the U.S. Chamber of Commerce told its members in an informational paper.

The Chamber's Kovacs said the business group does not have a petition ready to go, but it has hired a special science adviser to review studies and assessments and has set its sights on everything from studies documenting the effect of salt in diets to forest-management practices.

The guidelines agencies make public today will reflect months of drafts, public comments and oversight from OMB. Some of the agency proposals tried to exempt certain types of information and minimize the effect and scope of the guidelines.

EPA, for example, said in its draft that the guidelines might not apply in certain situations and, overall, are not legally enforceable. In an interview, an EPA official, who didn't want to be identified, said the objectives of the guidelines make sense, in that the agency should be able to defend its work. They don't carry an obligation to act, the official added, "but we do take them seriously."

In a June 10 memo, OIRA's Graham told agencies that it's not good enough to simply restate their current policies:

"At a minimum, each agency must embrace the OMB quality definitions as information quality standards they are seeking to attain." He reminded agencies that they are not free to disregard their own guidelines, even if they include disclaimers.

Besides the review process, information federal agencies make public after today will have a hierarchy, with the most "influential" data being subjected to more disclosure and transparency. In some cases, studies and results have to be "reproducible," meaning an outside party should be able to get the approximately same results when it checks the agency's work.

Information supplied to the government by third parties, either as part of a rulemaking, or a challenge, also must meet the new standards.

The prospect of continual challenges has alarmed public-interest groups. They predict that rulemaking will suffer as agencies siphon off resources to defend their data.

"Our concern is that it will discourage agencies from disseminating information and slow or halt the issuance of protective regulations," said Wendy Keegan, a regulatory affairs fellow with Public Citizen's Congress Watch. "The possibilities are frightening."

Gary Bass, director of OMB Watch, a public interest group, said the spirit of the guidelines is laudable. But the application is worrisome. "This could cover anything from flight arrivals, toxics, and worker health and safety. It covers virtually every piece of information in the government. If you can't use a certain study, it may mean you can't do the rulemaking."

Graham believes even the doubters will end up using the guidelines. "A lot of groups will use this constructively to pursue their agendas. Information is a two-edged sword and it won't always favor the business community or the public interest community."

© 2002 The Washington Post Company