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Date: December 16, 2005 -

The White House Office of Management & Budget (OMB) says EPA and other federal agencies have experienced minimal burdens from responding to data correction requests under the Information Quality Act (IQA), in an apparent effort to defuse a common criticism of the much-debated statute.

But critics note there has been no documentation of the amount of time and resources it takes for agencies to respond to each request under the five-year-old IQA, which allows the public to petition the federal government to correct data it disseminates.

At the same time, a senior OMB official says the office does not have a position on whether parties disputing government decisions under the act should be allowed to sue, even though the Department of Justice (DOJ) is arguing in court that federal actions under the act are not judicially reviewable. OMB says it is waiting for the courts to resolve the issue, but proponents of judicial review say they hope OMB’s stance can help them win White House support should they seek federal legislation amending the act to allow judicial review.

In its recently released 2005 report to Congress on the costs and benefits of federal regulations, OMB says federal agencies received 37 “non-frivolous” requests for correction in fiscal year 2004 and 48 the year before, with EPA receiving 25 requests for corrections and five appeals over that time span. Only 12 percent of the 85 total requests resulted in a correction, with 17 still pending. The White House, which says it has not compiled data yet on FY05 requests, says while implementing the act has been challenging, the law’s requirements are not “overly bureaucratic and time consuming” for federal agencies.

“The assumption that certain agencies would be overwhelmed by the volume of correction requests was one of the early perceptions,” OMB says in the report, which was released Dec. 7. “To the surprise of many, that has not been the case. . . . To our knowledge, the Information Quality Act has not affected the pace or length of rulemakings.” The report is available on

The assertion responds to a common critique that the act could slow the regulatory process and is used by industry to chill federal actions. Rena Steinzor, a law professor at the University of Maryland and a scholar at the liberal think tank Center for Progressive Reform, said this week at a discussion hosted by the District of Columbia Bar Association that even though there were 85 correction requests in FY03 and FY04, it “doesn’t tell you what the request is about” or how much time and effort it takes an agency to respond to each petition. “It has an invisible chilling effect on policies,” she said.

Critics say there has been little documentation on how cash-strapped agencies, like EPA, use resources to address these requests.

A new Government Accountability Office (GAO) report expected to be released early next year may shed light on the issue. At the request last January of Reps. Henry Waxman (D-CA) and Bart Gordon (D-TN), GAO is conducting a comprehensive review of how the IQA has affected federal actions and the degree to which OMB may influence agency decisions under the act.

Donald Arbuckle, a career deputy administrator in OMB’s regulatory office, said at the Dec. 12 bar association meeting that one of things “career staff worried about was that agencies would face hundreds of thousands of petitions, but that has not been the case.” Still, he added, agencies “have to devote time and resources” to respond to correction and appeal requests.

Arbuckle, who may serve in an acting capacity to fill the spot of vacating White House regulatory chief John Graham, acknowledged there are questions over whether the act provides judicial review, but he said, “We at OMB are not taking a position on that right now.” He later said, “Right now, we’re leaving it in the court’s hands.”

In Salt Institute, et al. v. Leavitt, the U.S. Court of Appeals for the 4th Circuit is considering whether the salt industry can challenge in court a dispute over a Health & Human Services (HHS) Department rejection of an IQA petition regarding government-disseminated data on salt intake. The industry is trying to overturn a lower court ruling that held the act does not provide judicial review, but DOJ is arguing that courts cannot review federal actions under the act. Oral arguments are scheduled for Feb. 2.

If the industry loses the case, IQA proponents fear the act will be rendered useless since federal agencies could not be held accountable for their actions. But critics of the act say that if the act provides judicial review, courts would be inundated with requests for correction from groups that dispute federal policy decisions.

The U.S. Chamber of Commerce, which is a party suing the government in the Salt Institute case, has indicated it will seek legislation amending the act to allow judicial review if industry loses in the 4th Circuit. Rep. Candice Miller (R-MI), chair of the House regulatory affairs subcommittee, has suggested she would offer legislation on the issue. Proponents hope OMB’s silence on the issue could attract White House support to move the legislation through Congress.

But at the same time, Jim Tozzi, a top official with the industry-funded group Center for Regulatory Effectiveness (CRE), told the bar conference this week that his group is “exploring other litigation in other circuits” over federal IQA actions.

Tozzi declined to specify the possible cases CRE is exploring. But his group is advising Americans for Safe Access, a medical marijuana advocacy group, in a lawsuit it is planning to file to compel HHS to act on its IQA petition seeking to revise federal data on the drug’s benefits (Inside EPA, Dec. 2, p1). -- Manu Raju

Source: Inside EPA via

Date: December 16, 2005

Issue: Vol. 26, No. 50

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