Click to submit a comment
CHECKLIST OF KEY CONCERNS
REGARDING AGENCY IMPLEMENTATION
OF DATA QUALITY LAW
Definition of "Dissemination"
The information quality guidelines apply to all
information that is "disseminated" by federal agencies. The OMB Guidelines
broadly define the term to mean "agency initiated or sponsored distribution of
information to the public." Certain distributions are expressly exempted:
inter-agency distributions; distributions limited to employees, contractors or
grantees; responses to Freedom of Information Act requests; correspondence with
individuals; press releases; archival records; public filings; subpoenas; and
adjudicative processes.
Possible subjects for comment:
- The agency should not attempt to further
limit the definition.
- Agency guidelines should recognize that
dissemination by a third party is "dissemination" by the agency if the
agency initiates or sponsors the distribution.
Definition of "Influential"
For scientific, financial or statistical
information deemed "influential," OMB mandates that agency guidelines
"include a high degree of transparency about data and methods to facilitate
the reproducibility of such information by qualified third parties." This
is a key element to the data quality law. OMB defines "influential" to mean
that the agency "can reasonably determine that dissemination of the information
will have or does have a clear and substantial impact on important public
policies or important private section decisions." Agencies are authorized
to further define the term as appropriate for the nature of their issues.
Possible subjects for comment:
- OMB has already defined the term - if an
agency re-defines the term, it should do so because of that agency's unique
issues, not merely to limit the amount of information that would otherwise
have to meet the heightened standards.
- Agency guidelines may state that information
should not be labeled as "influential" or "non-influential" at the time of
its dissemination. This approach should be opposed, given that the agency
must know whether data is influential prior to its dissemination to allow the
agency to meet the appropriate quality standard.
- The term should not be narrowly defined (e.g.,
there is no basis for the term having the same narrow definition as "economically
significant" under Executive Order 12866).
- Agencies may establish a hierarchy of data importance,
with corresponding levels of quality checks to be used. Such a system is acceptable,
but should not be used as a tool to avoid classifying data as influential.
- An agency may, within its guidelines, cite to
specific information the agency disseminates and deem the information either
"influential" or "non-influential." Such determinations should be carefully
scrutinized.
Third Party Data
In formulating regulations, agencies often use
information that was created by third parties. Agencies also frequently utilize
a third-party's analysis of underlying data. To the extent that agencies disseminate
such third party information, the data quality guidelines apply.
Possible subjects for comment:
- The same quality standards that are used for
agency-generated data should apply to third party-generated data, i.e., there
should not be a less stringent standard applied to third-party information
- When confidentiality concerns exist, full transparency
is not required by the OMB guidelines. However, in such circumstances, agencies must
apply "rigorous robustness checks" and must still disclose "the specific data sources
that have been used and the specific quantitative methods and assumptions that have
been employed." Nevertheless, agencies should use proprietary third party data only
as last resort when non-confidential information cannot be used.
- Agency guidelines should have an absolute ban
against the use of data that the agency itself cannot access because of
confidentiality issues.
- Robustness checks for confidential/proprietary
data and models (where OMB guidelines do not require transparency) should be
detailed and expansive.
- An agency may use the guidelines to impose
data quality standards on public comments submitted in response to proposed
rules. However, under no circumstance should such quality standards be more
stringent than those applied to the agency's own use of third party-generated data.
Complaint Process
Agency guidelines must establish a process by which
"affected persons" can seek correction of disseminated data that does not meet the
quality standards. Affected persons must also be given a right to appeal any denial
of their correction request.
Possible subjects for comment:
- Agency guidelines should address who will
adjudicate the request for correction and any appeal arising from the request.
The agency guidelines should recognize the need for a balance between the
reviewers' knowledge of the subject matter and the reviewers' objectivity.
- Requirements placed on complainants (e.g.,
description of information in issue, description of how complainant is affected)
should be reasonable.
- Time limits for agency review of complaints
should be reasonably short (30-45 days for each stage), although must be flexible
for complex issues.
- However, no time limits should be placed on
challenge of bad data, as information should be corrected whenever an error
is noted.
- The right to appeal should be limited to the complainant.
Definition of "Information"
Possible subject for comment:
- The OMB Guidelines exclude obvious opinions, but
other information should not be excluded by agency.
Process Created by Agency to Ensure Compliance
Possible subject for comment:
- OMB guidelines state that an agency's guidelines
should address "every step of an agency's development of information." The
process established by agency guidelines should therefore not be limited to
checking for adequate quality at the time of dissemination.
Effect on Rulemaking
The data quality guidelines and standards should
not be an impediment to rulemaking. However, data quality will be an integral
part of the rulemaking process, and the guidelines should not seek to limit the
role data quality will play.
Possible subjects for comment:
- Agencies should not limit an affected party's
right to seek correction during the rulemaking process (once dissemination has
occurred). Note that this is a separate issue from the question of when a party's
right to judicial review arises. Agency guidelines should not take a position on
the latter issue, which should be left to the courts.
- All information material to a rulemaking, whether
generated by the agency or a third party, should be presumed to be "influential"
Definition of "Affected" Person
Only an "affected" person has the right to file a
request for correction.
Possible subjects for comment:
- Agency guidelines should not equate the
rights of an "affected" person with the standing requirement for judicial
action (i.e., person with legal right to bring action). The agency's goal
should be to disseminate correct information regardless of how an error is
brought to agency's attention, and should therefore broadly define the term
"affected person."
Consolidation of Related Complaints
Possible subjects for comment:
- Complaints addressing the same disseminated
information should be heard together so that a final judgment can be reached.
- An agency may include provisions that require the
agency to notify interested parties when a challenge is submitted to the agency.
Such provisions, which may help to facilitate a final judgment, should ensure
that adequate notice is provided to all interested parties.
Handling of Disseminated Data while Challenge
and/or Appeal are Ongoing
Possible subjects for comment:
- Agency guidelines should, at a minimum, require
agencies to take steps to notify the public of an existing challenge.
- If a correction is made, agency guidelines
should require a level of dissemination of the correction equal to dissemination
of the original data.
Some Agencies are Subject to Multiple Levels
of Guidelines
Possible subject for comment:
- Sub-agency guidelines should be consistent with
both parent agency and OMB guidelines.
Coordination with Existing Programs/Processes
Many agencies have existing programs and processes
to ensure some level of informational quality. Agencies may therefore seek to utilize
these existing programs in the context of the new data quality guidelines.
Possible subject for comment:
- Check to ensure that both the procedural and
substantive aspects of existing programs, to the extent used by an agency to
assist in compliance with the data quality law, meet the heightened standards
set by the data quality law, including the OMB guidelines.
Human Health, Safety, and Environmental Risk Analyses
Specifically with regard to analysis of risks to
human health, safety and the environment, agencies are required to adopt or adapt
the quality principles set forth in the Safe Water Drinking Act amendments if 1996
(42 U.S.C. 300g-1(b)(3)(A) & (B)).
Possible subject for comment:
- Agencies, when adopting or adapting Safe Water
Drinking Act amendments, should not weaken the quality principles contained therein.
