▪ In total the aforementioned statutes require that the underlying data in government sponsored studies must be made available to the public and that they be “reproducible” as defined below.
▪ Although the statues give OMB the discretion to fine tune the requirements set forth therein so as to minimize their burden as it did with the Data Quality Act, the statutes do not provide OMB with the discretion to unduly limit the scope of a statute as was the case with the regulations issued by OMB regarding the implementation of the Data Access Act.
▪ OMB limited the Data Access Act by having it apply to only those documents which carry the force and effect of law, a de minimis interpretation of the statute. Had the regulations issued by OMB complied with the requirements of the Data Access Act a significant segment of the regulation currently under review by OMB might not be needed.
In a similar fashion OMB also limited the scope of the Data Quality Act because it requires that data be capable of being replicated not reproduced. Data is replicated when one uses an algorithm identical to that used by the author to convert raw data into usable information and reaches the same conclusion; data is reproduced when on examines the raw data and is not constrained by the choice of algorithms and reaches the same conclusion.
EPA is moving to correct the aforementioned limitation in the implementation of the Data Access Act in the NPRM it has just issued but it cannot unilaterally overturn the OMB Circular 110 which implements the Act. With respect to the issue of replicating data versus reproducing data it is not clear as to whether EPA has changed the status quo. However it is possible that EPA has reduced the reach of the DQA in that a literal reading of the NPRM might lead one to conclude that it only applies to the use of models in environmental rulemaking.
▪ Nearly two decades have passed since the enactment of the aforementioned statutes and during this period of time they have assumed an increasingly greater role in the governance of the administrative state.
Also see this post.