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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)
Washington, DC 20590
VICE CHAIR
*Thomas D. Morgan
George Washington University Law School
720 20th Street, NW
Washington, DC 20052
SECRETARY
*Cynthia A. Drew
U.S. Department of Justice
ENRD/PO Box 23986
Washington, DC 20552-3986
ASSISTANT SECRETARY
Jonathan J. Rusch
Washington, DC
BUDGET OFFICER
*David W. Roderer
Office of Federal Housing Enterprise Oversight
1700 G Street, NW, 4th Floor
Washington, DC 20552
ASSISTANT BUDGET OFFICER
Daniel Cohen
Washington, DC
SECTION DELEGATES TO THE
HOUSE OF DELEGATES
*Ernest Gellhorn
George Mason University School of Law
2907 Normanstone Lane
Washington, DC 20008
*Ronald A, Cass
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215
IMMEDIATE PAST CHAIR
*Ronald M. Levin
Washington University School of Law
Campus Box 1120
St. Louis, MO 63130
COUNCIL MEMBERS
Stephen Calkins
Detroit, MI
H. Russell Frisby
Washington, DC
Daniel B. Rodriguez
San Diego, CA
Lynne K. Zusman
Washington, DC
John F. Cooney
Washington, DC
David Frederick
Washington, DC
Lisa A. Whitney
New York, NY
Renee M. Landers
Boston, MA
John F. Duffy
Williamsburg, VA
Cynthia R. Farina
Ithaca, NY
Leonard A. Leo
Washington, DC
Sidney A. Shapiro
Lawrence, KS
COUNCIL MEMBERS EX OFFICIO STATE ADMINISTRATIVE LAW
Jim Rossi
Tallahassee, FL
EXECUTIVE BRANCH
Viet Dinh
Washington, DC
LEGISLATIVE BRANCH
Hannah Sistare
Washington, DC
JUDICIARY
Merrick Garland
Washington, DC
ADMINISTRATIVE JUDICIARY
Judith Ann Dowd
Washington, DC
ADMINISTRATIVE & REGULATORY
LAW NEWS
EDITOR
William F. Funk
Portland, OR
ASSOCIATE EDITOR
William S. Morrow, Jr.
Washington, DC
ADMINISTRATIVE LAW REVIEW
CHAIR OF FACULTY BOARD
Thomas O. Sargentich
Washington, DC
STUDENT EDITOR-IN-CHIEF
Allison Carle
Washington, DC
ABA BOARD OF GOVERNORS LIAISON
Hunter Patrick
Cody, WY
YOUNG LAWYERS DIVISION LIAISON
Lori Davis
Lexington, KY
LAW STUDENT DIVISION LIAISON
Christine Monte
Washington, DC
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740 15th Street, NW
Washington, DC 20005-1022
(202) 662-1582
May
31, 2002
Docket
OST-2002-11996
Office of Dockets, Room PL-401
U.S. Department of Transportation
400 7th St. SW
Washington DC 20590-0001
Re:
Information Quality Guidelines
Dear
Colleague:
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.
The
decision to use $100,000,000 as the "influential" threshold (p. 5
and p. 21 item XI A) appears to conflate the threshold for the Major Rule
rulemaking executive order's OIRA jurisdiction with the Section 515 role of
OIRA. They are distinct roles. The use of this very high threshold as a
barrier to data quality evaluations means that many fewer impactful rules
will be subjected to transparency review. We urge the Department to revisit
the "high impact" norm it is proposing and to drop the dollar
threshold approach to transparency. The threshold for the major rule
processes was intentionally set high because the cost of procedural steps
triggered for "major rules" was so great; by contrast the
marginal additional cost of assuring quality and responding to correction
requests is far less.
2.
The
decision to deny correction requests for website errors on the basis that
the website contained the same error on Sept. 30, 2002 (p. 22 item XI-C)
appears to directly conflict with OMB item III(4)'s second sentence at 67
F.R. 8459 col. 1. This should be changed as in conflict with the OMB
Guidelines.
3.
Item
VIII-f at page 18, last sentence, presupposes that the same person is both
rulemaking commenter and correction requester. The affected person seeking
correction may not have known that a rulemaking was underway, especially if
the request comes from an individual or small business. The decision (p. 4
last paragraph) to not even consider a correction request that might have
been raised during the comment period that has "come and gone" is
too harsh. The paragraph conflates rule adoption and information correction;
the correction may be sought without undoing the rule. DOT should consider
drawing a distinction between the correction request that comes from an
entity that actively participated in the rulemaking, and others whose
interests were not likely to have been protected by the scrutiny given to
proposed rules by sophisticated commenters.
4.
DOT
asks how information review principles could be applied to the
subobjectives made by private sector persons (p. 3). We note that Section
515 does not attempt to do so and that the constitutional right to petition
for redress does not require the petitioner to meet any particular level of
detail. The variety of inputs received from the public make this a
virtually impossible task. If a rulemaking support issue arises then the
program office responsible for the rule can ask for additional support for
a submission on a case by case basis. But transforming these Guidelines
into a qualitative screen for private inputs would be a poor use of DOT
resources,
5.
Page
9 item IV-f would exclude filings, but may be better framed as filings that
are not subobjectives of statistical or technical data presented for the
adoption of policy based on the content of the study. Section 515 was
remedial, and agency data submitted in rulemaking dockets was among the set
of data for which quality and correction mechanisms were intended. There
will likely be instances of technical supportive data that go into a docket
as "filings" but which should be subjected to the quality review
process. We recommend a clarification and narrowing, if not simply
elimination, of this limitation.
6.
More
than one person may be affected by a DOT report or web data set. Item
VIII-d-6 at page 17 blocks all subsequent requests for correction if the
first request was poorly done, even if the data is wrong or the requests
have obvious merit. There can be a more user-friendly way to do this same
function; if the request previously considered was dismissed for reasons of
process inadequacy or did not reach the merits of the agency data, then the
subsequent request should be considered.
7.
Data
base "flags" regarding errors are used by other agencies such as
the EPA Office of Environmental Information while an acknowledged error in
agency data sets is pending revision, e.g. prior to a monthly
"refresh" of the entire data base. Item VIII-e para. 5 at page 18
should be revised to state that where an error is acknowledged and the
website containing the error will be unaltered for some period of time, the
IT staff will make reasonable efforts to signal to users that the data is
suspect pending removal.
8.
We
recommend the appeal panel used by EPA serve as a model for the appeal
process described in IX at p. 19. This will enhance the perception of
fairness in the reconsideration.
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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