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Legal Analyses


2010 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003-


The Information Quality Act—Antiregulatory Costs of Mythic Proportions?

Learning to Live With the Data Quality Act

Information Quality and the Law, or, How to Catch a Difficult Horse

Major Law Firm Concurs With CRE On Applicability of Data Quality Act to Universities
The distinguished law firm McKenna, Long and Aldridge, acting at the request of the American Council on Education, has supported CRE's view on the applicability of the Data Quality Act to universities. Specifically, the firm concurred with CRE's view that, "it would be in the self interest of universities to make sure that information they submit to federal agencies meets DQA standards, thus enhancing the likelihood that federal agencies will publish the information..." McKenna, Long and Aldridge also concurred with CRE's view that the Data Quality Act in no way restricts the ability of universities to produce and disseminate information. As a member of CRE's Board of Advisor's noted, "universities can write whatever they want... If universities want their research to be used by the government, they will have to comply with the Data Quality Act, but that doesn't mean that there is a legal obligation to do so."

  • Click to read article in Research USA (September 29, 2003).
  • Click to comment.
  • Libels on Government Websites: Exploring Remedies for Federal Internet Defamation.

  • Click to read article.
  • Click to read applicability of the Data Quality Act.
  • The 411 on 515: How OIRA's Expanded Information Roles in 2002 Will Impact Rulemaking and Agency Publicity Actions

  • Click to read article.
  • NHTSA Advises Public That Rulemaking Comments Must Meet Data Quality Act Standards

  • Click to read article.
  • Legal Review Says Universities Not Subject To Data Quality Act

  • Click to read article from Research USA (September 29, 2003).
  • CPR Letter to EPA/OIRA Challenges Misreading of Data Quality Act

  • Click to read
  • Poisonous Procedure "Reform": In Defense of Environmental Right to Know.

  • Click to read.
  • Center for Progressive Regulation Comments on Draft EPA Data Quality Guidelines
    The Center for Progressive Regulation (CPR), a recently organized association of academicians, provided EPA and other agencies with comments on their draft Data Quality guidelines. The CPR comments raised a number of concerns including the possibility of "death by data quality" which CPR views as the Data Quality equivalent of "paralysis by analysis." CPR also requests that agencies and OMB support additional funding for the carrying out of Data Quality responsibilities. To address concerns from a number of organizations regarding potential delays from implementation of the Data Quality Act, CRE has issued a draft Interpretive Bulletin designed to promote efficiency in the federal Data Quality program.

  • Click to read CPR comments
  • Click to read and comment on draft CRE Interpretive Bulletin No. 1

  • OMB Affirms Requirement for Timely Agency Responses to Data Quality Complaints During Rulemakings
    In a September 5th memorandum from Office of Information and Regulatory Affairs (OIRA) Administrator John Graham, OMB thanked federal agencies for the significant progress they have made in developing their draft Data Quality guidelines. The OMB memo also provided additional guidance on process issues so as to promote uniformity across agencies. Among the guidance provided by OMB was specific recommended language to ensure that agencies respond to Data Quality Act complaints during rulemakings in a timely fashion.

  • Click to review the OMB memorandum and attachment
  • CRE Regulatory Services

  • FedLaw Website
    CRE has committed to update the FedLaw website on a continuing basis. To this end, the Center looks forward to receiving requests from governmental and non-governmental entities regarding relevant additions or modifications to the site. For example, based upon one such request, CRE recently added LAW AND POLITICS: INTERNET GUIDE to FedLaw's "General Research and Reference" and "How-to Legal-related Sites" sections. This site is designed as a one-stop source for legal research, including informative and current law- related resources on the Internet. Links posted on LAW AND POLITICS offer a brief description and are chosen for their informational value, based upon four criteria: quality, accuracy of content, presentation, and utility. CRE looks forward to further input as it seeks to maintain the FedLaw website as a useful public resource.

  • Click to Access the FedLaw website
  • Click to submit a comment
  • CRE Regulatory Services

  • Washington Legal Foundation (WLF) Article Seeks Increased Judicial Review of Agency Science
    Alan Raul and Julie Zampa, of Sidley Austin Brown & Wood LLP, recently authored a WLF Legal Backgrounder entitled "Deeper Judicial Scrutiny Needed for Agencies' Use of Science." This thought-provoking article analyzed new ground broken by the Tozzi v. DHHS case in terms of expanding judicial review of federal agencies' use of science. Data Quality Act guidelines are also discussed as a positive step to improve transparency of agency decisionmaking and the quality of agency science. However, the article notes that courts have adopted very inconsistent approaches in conducting reviews of agency science, with some serious and probative, but others overly deferential. The authors conclude that the Tozzi case took a valuable step by increasing availability of judicial review, one which courts must build upon by exercising these enhanced powers so as to review agency science in a more consistent, predictable, and probative manner.

  • Click to review the WLF Legal Backgrounder
  • Click to submit a comment
  • CRE Regulatory Services

  • OMB Firm on Obligation of Agencies to Comply with its Data Quality Guidelines
    OMB's Administrator of OIRA issued a memorandum for all federal agencies pointing out a number of areas in which agency draft guidelines did not appear to be consistent with the OMB guidelines. The memorandum emphasized that agencies need to "commit" to standards which are either the same as those in the OMB guidelines or are consistent with them (§ III). It also requested that agencies not insert statements in their guidelines suggesting that they were free to ignore the OMB guidelines (§ V). CRE also notes, however, that the OIRA memorandum did not cite or quote the provisions of the Paperwork Reduction Act of 1995 which provided the original legal basis for OMB's authority and the agencies' responsibility to comply with the OMB guidelines. The relevant statutory text is therefore provided below.

  • Click for text of statutory provisions
  • CRE Regulatory Services
  • Submit a comment

  • OMB's Supplementary Guidance on Data Quality: 1 Step Forward, 1 Leap Back
    OMB recently issued supplementary guidance clarifying how federal agencies should interpret OMB's earlier government-wide guidelines implementing the Data Quality Act. OMB's latest guidance made several advances, in that it addresses a number of inconsistencies among agencies. For example, the new guidance eliminates agency attempts to apply the guidelines on a case-by-case basis. However, OMB stepped backward by not sufficiently clarifying that agencies cannot shield entire categories of information from coverage under the Data Quality Act guidelines. Consequently, CRE believes that when OMB reviews agencies' conforming Data Quality guidelines beginning on August 1st, OMB should again specifically curtail agencies' attempts, as they did in their originally proposed guidelines, to exempt information through their broad definition of "archival data"and through their use of loopholes to exempt a significant portion of the rulemaking process from the Data Quality Act.

  • Click to review OMB's press release and memorandum to the President's Management Council regarding interpretation of the OMB Data Quality guidelines.
  • Click to review OMB's appendix of Additional Quotations of Proposed Agency Provisions Organized by Topic. (PDF 1.5MB)
  • Click to submit a comment
  • Information Quality Guidelines: CRE Issues Legal Opinion Stating that OMB Lacks Authority to Create Exemptions from Data Quality Guidelines
    When OMB issued its government-wide Data Quality guidelines, it created a select number of exemptions from the guideline's applicability. A number of agencies went far beyond the OMB exemptions to such a degree as to nearly eviscerate the Data Quality Act. CRE has issued a legal opinion that concludes OMB and the other federal agencies lack authority to create exemptions from the Data Quality guidelines. CRE's opinion is based on the fact that the Data Quality guidelines are issued under the Information Dissemination requirements of the Paperwork Reduction Act. 44 U.S.C. §§ 3504(d)(1); 3516 note.

  • Read entire article
  • Review the CRE Legal memorandum
  • CRE Regulatory Services
  • Submit a comment

  • Data Quality: Partners of Washington, D.C. Law Firm Author Article on Impacts of Tozzi v. DHHS Case: CRE Sees Major Implications for Data Quality Act
    Partners at Bergeson & Campbell, P.C., a D.C. law firm specializing in chemical, medical device, and diagnostic product approval and regulation, recently authored an article entitled "The Tozzi Decision: Another Arrow in Manufacturers' Quiver in Product Defense Wars." Although the article emphasized the importance of the court's decision for designations in the National Toxicology Program's Report on Carcinogens Program, CRE believes that it will have even greater significance for judicial review under the Data Quality Act. For example, the opinion provides precedent for standing when information disseminated by a federal agency is causing harm to a company or person to whom the information relates.

  • Click to read the Bergeson & Campbell article on Tozzi v. DHHS from the EPA Administrative Law Reporter
  • Click to submit a comment

    Tozzi Decision

  • Click to read
  • Data Quality Act: Guidelines Apply to Public Submissions to Agencies
    In remarks to the National Economists Club, OIRA Administrator Dr. John Graham said that Data Quality requirements apply to third-parties submitting information to federal agencies. Since the guidelines apply to virtually all information disseminated by agencies, Dr. Graham explained that trade associations and other third parties which submit information to the government intended for citation or other use, must ensure that their information complies with Data Quality standards. Federal contractors are also required to adhere to OMB's Data Quality requirements.

  • Click to read an excerpt from BNA's Daily Environment Report
  • Click to submit comment

  • Executive Branch Officials Opine that Agency Denials of Data Quality Act Petitions are Judicially Reviewable
    During the March 21st NAS Data Quality Workshop, Executive Branch officials expressed their opinion that denials of agency petitions under the Data Quality Act will be judicially reviewable. While the views expressed do not necessarily represent those of their Departments, they expressed a viewpoint long held by CRE and other stakeholders. They went on to note, however, that there may be a difference between what constitutes an "affected person" who may bring a Data Quality petition and a litigant who would have standing to bring a court challenge. It was also noted that agencies will certainly rely upon the administrative record to defend their actions in denying an appeal during the informal adjudication phase so that a court does not later find these actions to be arbitrary and capricious.

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    Federal Court Requires That Agency Risk Assessments Be Reproducible And Transparent
    In an important recent opinion, the United States District Court for the Eastern District of California suspended rules issued by the Department of Agriculture in part because the risk assessment underlying the rules was not reproducible and transparent. Harlan Land Company v. Dept. of Agriculture, CV-00-6106 (Sept. 21, 2001).

  • Click to read more
  • Comment on Item
  • View past CRE Regulatory Action of the Week items

    D.C. Court Of Appeals Rules In Tozzi v. DHHS That When An Agency Issues A Pejorative Statement, The Statement Is Judicially Reviewable: Major Implications For The Federal Data Quality Act (FDQA)
    This case holds that a corporation can sue when an agency makes a pejorative statement against a corporation, product, or person, before such a statement is incorporated in a final rule. This opinion will have a major impact on the Data Quality Law because an agency denial of a petition for correction will be reinforced by the standing and reviewability criteria in this opinion. Notwithstanding the courts deference to an agency's interpretation of its own rules, the opinion sets a major precedent on both a government-wide basis and for EPA's upcoming dioxin reassessment in particular.

  • Read item
  • Read Bureau of National Affairs Article (pdf 264 kb)
  • Read Bergeson & Campbell article on Tozzi v. DHHS from the EPA Administrative Law Reporter
  • Read Tozzi v. DHHS
  • Comment on Item
  • View past CRE Regulatory Action of the Week items

    OMB Issues Landmark Guidelines on Data Quality for Federal Agencies
    Pursuant to statutory requirements enacted last year, OMB has issued proposed guidelines that set quality thresholds for information disseminated by the federal government. This congressional mandate for Data Quality was in response to federal agencies' growing use of the Internet and other communications mechanisms that permit dissemination of information that either expands existing regulations, is a precursor to new federal regulations, acts as an incentive for state and/or local authorities to regulate, or affects consumer perceptions. The 45-day public comment period on the proposed guidelines ends August 13, 2001. CRE commends OMB for the timely issuance of this important guidance.

  • Click here to review key components of OMB's proposed Data Quality guidelines.
  • Click to submit comment

  • CRE Assesses Agency Implementation of an Administrative Petition Process Under the OMB Data Quality Guidelines
    OMB recently published Data Quality guidelines for federal government information, which provide additional detail regarding the administrative petition process to be used to challenge agency information. CRE believes that the burdens associated with this correction mechanism will be minimal in light of the considerable experience which agencies already have with petition processes. For example, at EPA alone, CRE has documented 399 existing references to petition processes in the agency's regulations. Consequently, CRE believes that implementation of this key aspect of the Data Quality guidelines will cause minimal disruption of ongoing agency activities.

  • Click to read more, including CRE's analysis of petition processes at EPA
  • Click here to review OMB's final Data Quality Guidelines
  • Comment on Item
  • View past CRE Regulatory Action of the Week items

    President Signs Data Quality Legislation (Federal Data Quality Act (FDQA)) (Public Law 106-554 Section 515)
    The Congress has passed and the President has signed important new Data Quality legislation as part of the FY 2001 Consolidated Appropriations Act (Public Law 106-554). Building upon the Data Quality report language contained in the FY 1999 Omnibus Appropriations Act (P.L. 105-277), this new provision requires OMB to develop government-wide standards for the quality of information used and disseminated by the federal government, with such standards to be completed not later than September 30, 2001. OMB must also include a mechanism through which the interested public can petition agencies to correct information which does not meet the OMB standard. Congress has provided for broad input in developing the Data Quality standard, mandating that OMB shall seek "public and Federal agency involvement."

  • Click to read more, including the Statutory Language for Data Quality and Past Report Language