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*Executive Committee Member
CHAIR
*C. Boyden Gray
2445 M Street NW
Washington, DC 20037-1435
CHAIR-ELECT
*Neil R. Eisner
U. S. Department of Transportation
400 7th Street, SW, Room 10424 (C-50)
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*Thomas D. Morgan
George Washington University Law School
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*Cynthia A. Drew
U.S. Department of Justice
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Boston University School of Law
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Washington University School of Law
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740 15th Street, NW
Washington, DC 20005-1022
(202) 662-1582
May
31, 2002
Docket
OEI-10014
Room B607 Northeast Mall
U.S. Environmental Protection Agency
401 M St. SW
Washington DC 20460
Dear
Colleagues:
The
Section of Administrative Law and Regulatory Practice of the American Bar
Association is pleased to submit comments on the proposed guidance for data
quality that your agency has proposed under Section 515 of Public Law
106-554. The views expressed herein are presented on behalf of the Section
of Administrative Law and Regulatory Practice. They have not been approved
by the House of Delegates or the Board of Governors of the American Bar
Association and, accordingly, should not be construed as representing the
position of the Association.These comments are focused on the mechanisms
proposed for implementation of section 515’s "correction of
information that does not comply with (OMB guidance)". In commenting
on the mechanisms we hope to improve them; these comments do not suggest
that any of the substantive objectives of the agency discussed in your
published proposal would or would not have our Section’s support. Because many
of the nation’s experts in the administrative process and information
policy are members of our Section, we hope to speak to the process and
procedural aspects of the proposed guidelines.
1.
EPA
expressly rejects having a correction request mechanism while a rulemaking
file remains open (p. 23 line 743). This may be too harsh. Historically,
delays in EPA rulemaking have in many cases far exceeded the norms for the
time of completion of rulemaking in other agencies. Certainly if a
commenter raises an issue concerning the quality of support for the content
of the agency proposed rule during the comment period, there should be no
need for separating that comment from the entire set of public comments.
But the effect of line 743 would be to "freeze" a request for
"timely" correction during all of the years from advance notice
of proposed rulemaking, through the stages of proposal, analysis, final
rule and perhaps also the remands of rules that have occurred frequently.
We recommend that the line 737 "freeze" period be much narrower:
"It pertains to EPA actions, during the 60 day comment period (or
extensions thereof) where the comment is most appropriately presented as
part of the rulemaking record for consideration by the rulemaking
decisional officials."
2.
It
seems unprecedented to conflate a "late" comment with a
"frivolous" comment in p. 23 line 750. The existence of the
section 515 process as a new statutory obligation should be conceded; the
data quality correction mechanism did not arise from section 553 of the
Administrative Procedure Act. By merging the two and dismissing as
"frivolous" (regardless of content of the comment) a
late-arriving request, EPA may be inviting judicial review and reversal. It
would be optimal to encourage rulemaking-related correction requests to
occur inside the 60-day comment period (or extensions) as part of comments
on the rule. But a later request should not be barred by the close of the
comment process. If its content is really frivolous (rather than being
chronologically detached from the comment period) then dismissal is
appropriate.
3.
The
statement that EPA "may elect not to correct…due to Agency priorities,
time constraints or resources" (p. 23 at 762) seems to defy the
section 515 mandate. Why would a prudent federal agency not correct a false
statement on its website? If the words "seek and obtain
correction" in the statute mean that the affected person can obtain
correction, how can the agency say that it cannot be obtained, once the
data is shown to be wrong or misleading? We would recommend greater respect
for the statute with words such as "may elect to postpone the
correction", together with a temporary marker on the agency website
that flags the data in red, informing the web visitor in the interim that
the data is acknowledged to be wrong and that it will be corrected in a
short time. This is particularly appropriate where a large data base is so
expensive to refresh with new data that a scheduled updating of the data
occurs on a monthly or quarterly basis; the temporary flag warns that the
data cannot be relied upon and will be removed soon.
4.
We
commend the innovative approach to appeals at p. 24 line 781. Because the
challenge seeking correction may involve substantive policy issues, it
seems to us appropriate that this collective effort involve senior policy
officials of the agency. We endorse the useful and efficient structure of a
central handling of incoming requests (p. 27) and we encourage the appeals
be handled within 90 days (p. 27).
5.
Use
of models as a basis for decisions carries with it the risk that the
model’s assumptions are flawed. This is a class of issues that seem quite
appropriate for data quality activities. The statement at p. 17 lines
541-544 that determinations of "remedies to address such
liability" are categorically excluded poses a concern as perhaps
overly broad. Models should be able to be evaluated and corrected. Lines
541-544 take the view that "adjudicative processes" that OMB says
are not a "dissemination" (67 F.R. 8460 col. 3 item 8) broadly
sweep in a very large set of "informal administrative action". We
urge that the set of excluded activities be made more narrow and that
models, in particular, be susceptible to correction requests.
6.
It
seems internally inconsistent to state that web site data will not be
subject to data quality mechanisms if it comes from "outside
sources" (p. 13 line 426) but that if the same data is used by EPA as
support for a rule, the data quality protections then begin to apply. (p.
17 line 554). We recommend that the same qualifying phrase be used on pages
13 and 17. Web site data submitted by one private person about another may
be incorrect and misleading; if EPA then uses that submitted data and
denies an opportunity to correct, under p. 13’s view, it would be contrary
to the OMB guidance, 67 F.R. 8454 col. 1.
7.
As
to the Request for Public Comments, we favor the phasing 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).
Thank you for considering these comments. If you wish
clarification of any portions, please contact Professor James O’Reilly,
Chair of the Committee on Government Information & Privacy, at (513)
556-0062.
Sincerely,
C. Boyden Gray
Section Chair
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