PUBLIC COMMENT ON THE CRE DRAFT DATA QUALITY RULE

Commenter: James V. DeLong

Affiliation: Principal, Regulatory Policy Center

Comment:

July 7, 2000

CRE's proposal that OMB establish a petition process to allow interested persons to correct dubious agency data should be acted upon promptly, and favorably.

Anyone familiar with regulatory actions can cite numerous instances of agency reliance on dubious or incomplete data. EPA is egregious on this score. See, for example, almost any of its proclamations about how many lives will be saved by a particular measure, estimates that always rely on extreme, and improbable, assumptions. Another example is the pending OSHA rule on ergonomics.

One area in the proposed CRE rule needs further development. CRE's proposal would provide that an agency action on a petition is a final agency action, which means, as a matter of administrative law, that it would be subject to judicial review. However, courts are extremely reluctant to second guess agency decisions on data and research issues, since judges are well aware of their own lack of competence in these areas. This creates a substantial possibility that agencies will quickly learn how to turn the petition process into a pro forma exercise that they walk through before endorsing their original conclusions.

Perhaps CRE should consider, in its proposed rule, urging OMB to create a review body outside of the agency to examine the agency's decision. The body could include representatives of OMB, scientific agencies such as NAS, and perhaps private citizens chosen for expertise in the area of concern. This body would not necessarily have power to reverse an agency's judgment (though it could be given such power), but its comments on the agency's conclusions would providing a reviewing court with an additional source of expertise that would not be interested as either the agency or the petitioner.