^®: CRE Regulatory Action of the Week

ABA Section on Administrative Law Issues Policy Letters to Agencies on Data Quality Guidelines
The American Bar Association's (ABA) Section on Administrative Law & Regulatory Practice has issued Policy Letters to eight key federal agencies on their Data Quality guidelines. While not representing the ABA as a whole, the Section's comment letters provided insightful recommendations on the process and procedural aspects of the proposed guidelines related to correction of information. For example, in its letter to EPA, the Section challenges the agency on several points, including: EPA's attempt to prohibit corrections during the pendency of an open rulemaking proceeding; the agency's suggestion (contrary to the statute) that it may elect to not correct certain information due to "Agency priorities, time constraints or resources"; or limits on subjecting models to the correction process. In light of the ABA Section's considerable expertise in matters of administrative law, CRE urges agency officials to carefully review and adopt the recommendations set forth in these important Policy Letters.

ABA Section on Administrative Law Issues Policy Letters to Agencies on Data Quality Guidelines

The American Bar Association's (ABA) Section on Administrative Law & Regulatory Practice has issued Policy Letters to eight key federal agencies on their Data Quality guidelines. While not representing the ABA as a whole, the Section's comment letters provided insightful recommendations on the process and procedural aspects of the proposed guidelines related to correction of information. Policy Letters (accessible through links below) were sent to:

ABA Section Letter to EPA

In its letter to EPA, the Section challenges the agency's stance on several points and makes related recommendations, including:

1. The Section recommended that EPA considerably narrow its attempt to prohibit corrections during the pendency of an open rulemaking proceeding. It notes that there is no reason to "freeze" a "timely" request for correction during the context of a rulemaking proceeding that could easily span years.
   
   
2. The Section states that it is "unprecedented" for the agency to give parallel treatment to late comments and frivolous comments, a suggested in its proposed guidelines. This position is particularly troubling because the Data Quality correction process arises from a separate statute - the Data Quality Act - and not section 553 of the Administrative Procedure Act. EPA may be inviting judicial review and reversal on this point.
   
   
3. The Policy Letter also challenges the agency's suggestion (contrary to the statute) that it may elect to not correct certain information due to "Agency priorities, time constraints or resources." Greater respect for the statute is urged, and it is suggested that if EPA is experiencing time or resource constraints, it should flag such problematic information and note that it will be corrected in the near future. (This option might be particularly appropriate in the context of large databases where overhauls are only feasible on a monthly or quarterly basis.)
   
   
4. The Section commends EPA on its innovative approach to appeals, in which the agency seeks to involve senior policy officials, due to the fact that Data Quality Act corrections may involve substantive policy issues. EPA is also urged to handle appeals within 90 days.
   
   
5. EPA is urged to make appropriate provisions for Data Quality Act review of models used as the basis for agency decision because there is always the risk that a model's assumptions may be flawed. The Section opposes the broad "adjudicative processes" exemption proposed by EPA, and it specifically calls for models to be subject to information correction requests.
   
   
6. The Section asks EPA to make a consistent statement as to when information from outside sources will be subject to the Data Quality Act guidelines and correction process.
   
   
7. In a final, catch-all point, the ABA Section states "As to the Request for Public Comments, we favor the phrasing in of the "influential" category (p.25); we recommend clarifying the term "robustness checks" (p.25); and we encourage the use of expert agency and other federal agency technical support in evaluating the merits of outside information (p.26)."

In light of the ABA Section's considerable expertise in matters of administrative law, CRE urges agency officials to carefully review and adopt the recommendations set forth in these important Policy Letters.