[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMPROVING INFORMATION QUALITY IN THE FEDERAL GOVERNMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 20, 2005
__________
Serial No. 109-125
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada BRIAN HIGGINS, New York
KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of
LYNN A. WESTMORELAND, Georgia Columbia
PATRICK T. McHENRY, North Carolina ------
CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont
VIRGINIA FOXX, North Carolina (Independent)
------ ------
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Regulatory Affairs
CANDICE S. MILLER, Michigan, Chairman
GINNY BROWN-WAITE, Florida STEPHEN F. LYNCH, Massachusetts
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
LYNN A. WESTMORELAND, Georgia
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Ed Schrock, Staff Director
Rosario Palmieri, Deputy Staff Director
Alex Cooper, Clerk
Krista Boyd, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on July 20, 2005.................................... 1
Statement of:
Greenwood, Mark, partner, Ropes and Gray; Jeff Ruch,
executive director, Public Employees for Environmental
Responsibility; William Kovacs, vice president for
Environment, Technology, and Regulation, U.S. Chamber of
Commerce; and Sidney A. Shapiro, university distinguished
chair in law, Wake Forest University....................... 38
Greenwood, Mark.......................................... 38
Kovacs, William.......................................... 69
Ruch, Jeff............................................... 53
Shapiro, Sidney A........................................ 80
Nelson, Kimberly T., Assistant Administrator and Chief
Information Officer, U.S. Environmental Protection Agency;
Tom Melius, Assistant Director for External Affairs, U.S.
Fish and Wildlife Service, Department of Interior; and Jim
Scanlon, Acting Deputy Assistant Secretary for Science and
Data Policy, Department of Health and Human Services....... 5
Melius, Tom.............................................. 13
Nelson, Kimberly T....................................... 5
Scanlon, Jim............................................. 20
Letters, statements, etc., submitted for the record by:
Greenwood, Mark, partner, Ropes and Gray, prepared statement
of......................................................... 41
Kovacs, William, vice president for Environment, Technology,
and Regulation, U.S. Chamber of Commerce, prepared
statement of............................................... 72
Melius, Tom, Assistant Director for External Affairs, U.S.
Fish and Wildlife Service, Department of Interior, prepared
statement of............................................... 16
Miller, Hon. Candice S., a Representative in Congress from
the State of Michigan, prepared statement of............... 3
Nelson, Kimberly T., Assistant Administrator and Chief
Information Officer, U.S. Environmental Protection Agency,
prepared statement of...................................... 7
Ruch, Jeff, executive director, Public Employees for
Environmental Responsibility, prepared statement of........ 55
Scanlon, Jim, Acting Deputy Assistant Secretary for Science
and Data Policy, Department of Health and Human Services,
prepared statement of...................................... 23
Shapiro, Sidney A., university distinguished chair in law,
Wake Forest University, prepared statement of.............. 82
IMPROVING INFORMATION QUALITY IN THE FEDERAL GOVERNMENT
----------
WEDNESDAY, JULY 20, 2005
House of Representatives,
Subcommittee on Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in
room 2154, Rayburn House Office Building, Hon. Candice S.
Miller (chairman of the subcommittee) presiding.
Present: Representatives Miller, Clay, and Lynch.
Staff present: Edward Schrock, staff director; Rosario
Palmieri, deputy staff director; Alex Cooper, clerk; Krista
Boyd, minority counsel; and Jean Gosa, minority assistant
clerk.
Mrs. Miller. Good morning, everyone. I am going to call the
hearing to order. We want to thank you all for joining us this
morning.
Our government has become increasingly reliant on
scientific and statistical information to make critical
decisions about our health and our safety, our economy, as well
as our national defense. Part of my job as a Member of Congress
is to try to ensure that our government is relying on the very
highest quality of information when making decisions that
affect millions of our citizens and thousands of our
businesses.
The Information Quality Act, sometimes referred to as the
Data Quality Act, was passed in the year 2001. The act required
the Office of Information and Regulatory Affairs in the Office
of Management and Budget to develop guidelines for ensuring and
maximizing the quality, the objectivity, the utility, and the
integrity of information that is disseminated to the public and
to establish administrative mechanisms allowing affected
persons to seek and obtain a correction of information. OMB
issued its guidelines in February 2002, directing agencies to
prepare their own guidance by April 2002. Agencies have
published their own guidelines, and they have had 2 years of
experience now in handling requests for correction of
information.
Today we are here to review implementation by three
agencies: the Environmental Protection Agency, the U.S. Fish
and Wildlife Service of the Department of the Interior, and the
Department of Health and Human Services. Quality information is
an absolute necessity for each of them to fulfill their
missions. And whether it is designating critical habitat for
species protection, developing standards for water quality,
analyzing and designating human carcinogens, or disseminating
valuable public health information, the accuracy and the
quality of information must be, of course, of the very highest
caliber.
Today, we also live in an increasingly competitive global
marketplace. Decisions by Federal agencies can impose millions
of dollars in compliance costs on companies or require them to
re-engineer their production processes to meet the requirements
of regulations. I fully support their attempts certainly to
protect us from critical health, safety and environmental
threats. But the information that we use to make those
determinations certainly must be accurate and objective.
The Information Quality Act is a ``sunshine'' in
governmental law, which is meant to provide greater
transparency for the process that produces research and
regulation. Since its inception, less than 100 requests for
correction have been filed. Requests for correction of
information have come from extremely varied groups.
Traditional business groups like the U.S. Chamber of
Commerce and the Kansas Corn Growers Association have been
joined by environmental groups like the Public Employees for
Environmental Responsibility and also issue advocacy groups
like the Americans for Safe Access to challenge the quality of
government-disseminated information. Agencies that have granted
relief under the correction process have removed information
from their Web sites, they may have updated or added
information to Web sites or documents, or linked further review
to ongoing studies within the agency.
This, we think, is a very far cry from the danger that was
supposed to occur as a result of the passage of this act. Some
insisted that there would be ``death by data quality,'' that
agencies would be overwhelmed with requests and that necessary
regulation would be stopped. The facts do not prove that case.
One way to make regulation and the actions of government
agencies less controversial is to make sure that we are relying
on the very best available science, sound science, and the
highest quality of information.
Government information will only become more critical in
the future as health, safety, and environmental regulation are
increasingly tied to scientific research. When jobs and lives
are on the line, it certainly is our duty to make sure that the
best information is being used. And the Information Quality Act
has provided us with excellent mechanisms to accomplish that
goal.
[The prepared statement of Hon. Candice S. Miller follows:]
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Mrs. Miller. We are waiting for our ranking member, Mr.
Lynch. I think he is on his way. But we will continue with the
hearing, and when he gets here we will certainly yield to him
for his opening statement.
Our first panel is prepared to testify, and it is the
process in the Government Reform Committee that we swear in all
of our panelists, so, if you will, raise your right hands.
[Witnesses sworn.]
Mrs. Miller. Thank you very much.
You all have the little boxes in front of you to give you
the signal. We try to keep the testimony to approximately 5
minutes. If it is necessary for you to run over a bit, we do
have time, certainly. But when you see that yellow light, you
know you are about a minute away from that, so, if you could
watch that a bit.
Our first witness has been before our group here before.
This is Kimberly T. Nelson. On November 30, 2001, Kimberly
Nelson was sworn into the position of Assistant Administrator
for Environmental Information and the Chief Information Officer
for the U.S. Environmental Protection Agency. Prior to her
joining the EPA, Ms. Nelson served the Commonwealth of
Pennsylvania for 22 years. Ms. Nelson graduated from
Shippensburg University in 1978 with a bachelor in secondary
education, political science, and from the University of
Pennsylvania in 1987 with a master in public administration.
We certainly thank you for your willingness to appear again
before our committee, and the floor is yours, Ms. Nelson.
STATEMENTS OF KIMBERLY T. NELSON, ASSISTANT ADMINISTRATOR AND
CHIEF INFORMATION OFFICER, U.S. ENVIRONMENTAL PROTECTION
AGENCY; TOM MELIUS, ASSISTANT DIRECTOR FOR EXTERNAL AFFAIRS,
U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF INTERIOR; AND JIM
SCANLON, ACTING DEPUTY ASSISTANT SECRETARY FOR SCIENCE AND DATA
POLICY, DEPARTMENT OF HEALTH AND HUMAN SERVICES
STATEMENT OF KIMBERLY T. NELSON
Ms. Nelson. Thank you, Madam Chairman. I really do
appreciate the opportunity to be here today, as we talk about
the implementation across the Federal Government of the
Information Quality Act and particularly regarding our own
implementation at EPA.
EPA's mission is to protect human health and the
environment, and it is highly dependent upon the collection,
use and dissemination of information of very high quality. As
EPA's Assistant Administrator for the Office of Environmental
Information and our CIO, I work with colleagues throughout the
agency to ensure that EPA collects, manages, uses, and provides
high quality environmental information.
The Office of Environmental Information, which I lead, is
responsible for a number of activities under the Information
Quality Act. A few of those are providing leadership to improve
the quality and utility of the information we use at EPA;
fulfilling the information needs for the agency while reducing
the burden of collecting that information; ensuring that the
best practical and most cost-effective technology is applied to
meet EPA's information needs; providing leadership in the
integration, analysis and interpretation of environmental data;
and ensuring that EPA works with all of its data partners, both
within the agency as well as outside.
As such, EPA takes implementation of the Information
Quality Act very seriously and views the act as an important
component of our overall approach to ensuring the use and
dissemination of high quality information. In October 2002, EPA
published its information quality guidelines for ensuring and
maximizing the quality of information it disseminates and
creating an administrative mechanism to enable the public to
seek and obtain corrections of information they believe does
not comply with EPA's or OMB's guidelines.
To date we have received at EPA 30 requests for correction
and 10 requests for reconsideration. These requests have
originated from a diverse set of requesters and have focused on
a wide range of information types, including information that
has been disseminated as part of a rulemaking, and distributed
internal policies, which are found in some of our data bases
and contained in our hazard and risk assessments and made
available to the public on our own Web site.
Our goal has been to respond within 90 days to a request
for correction. My office manages that correction process and,
as a first step, identifies the EPA information owner to
evaluate the request. A cross-agency team then develops the
response and submits it to the EPA senior management for
review. OMB, in its oversight role, reviews the final draft to
ensure consistent implementation across the Federal Government.
EPA posts all of its communications regarding requests on an
IQG Web page that we have created.
If the requester is not satisfied with the response, they
may file a request for reconsideration within 90 days. The EPA
information owner presents the request to a three-member
executive panel, which I usually chair, unless I have to recuse
myself when the request itself involves a program under my
jurisdiction. This panel assesses the request and issues a
final decision. In response to a request for correction and
reconsideration, EPA has taken actions to improve the quality
and the transparency of the challenged information.
As you know, I have submitted a more detailed description
of our implementation of the Information Quality Act in my more
formal written statement, and I thank you today for the
opportunity to talk about that implementation. I am happy to
answer any questions when the time suits.
[The prepared statement of Ms. Nelson follows:]
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Mrs. Miller. Thank you very much.
Our next panelist is Thomas Melius. I hope I am pronouncing
that correctly. Mr. Melius has been the Assistant Director for
External Affairs of the Fish and Wildlife since March 2003.
And, in addition to overseeing the national programs for public
affairs, congressional and legislative affairs, and acting as a
Native American liaison, he also provides oversight for the
Service's National Conservation Training Center in West
Virginia. Mr. Melius has had a 20-year background in
environmental and conservation issues.
We are certainly pleased to have you join us today, as well
sir, particularly when you told me you had spent some time in
the upper peninsula of Michigan.
Mr. Melius. Yes, I have. Thank you.
Mrs. Miller. We appreciate your coming, and you have the
floor.
STATEMENT OF TOM MELIUS
Mr. Melius. Thank you. As you mentioned, I am Tom Melius,
Assistant Director for External Affairs at the U.S. Fish and
Wildlife Service, and we appreciate the opportunity to testify
today regarding the Service's implementation of the Information
Quality Act, commonly referred to internally as the IQA.
The goal of the IQA, as you have stated, is to ensure and
maximize the quality, objectivity, utility, and integrity of
information disseminated by Federal agencies. The Service
appreciates and fully supports the IQA's goal of ensuring the
quality of scientific information used by government agencies
and making this information transparent for the public. Science
is the foundation of all of our conservation efforts, and the
Service has a long and proud tradition of scientific
excellence.
Let me briefly outline for you how the IQA is implemented
at the Fish and Wildlife Service.
Affected persons or organizations may challenge the quality
of information disseminated by the Service under IQA guidelines
by filing a formal request for correction with the agency. Upon
receipt, these requests are reviewed for appropriateness under
our own IQA guidelines. Once a request is deemed to be
appropriate, it is routed to the program or the regional office
responsible for the information being challenged.
After researching the issue and developing a draft
response, the reviewing office submits that decision to my
office. My office coordinates with the Department and OMB
personnel to ensure the accuracy of the response, and then I
sign the document and deliver it to the requester.
Responses are issued within 45 business days of receipt of
the original request, unless an extension is needed for
additional review in which case the Service informs the
requester of the extension and the reasons why it is needed.
If a request is approved, the Service will take the
corrective action. If a request is denied, the requester has 15
business days to appeal. Appeals are forwarded to the Service's
science advisor, who conveys a team of program or regional
personnel with knowledge of the information in question. The
team develops a recommendation, which is then considered by our
director, who makes the final decision on appeals.
In fiscal year 2003, the Service received six requests for
correction of information under the IQA, and of these six, five
met the standards for consideration. One of the requests,
dealing with trumpeter swan, ultimately went through the full
appeals process, which involved reconsideration for the request
by an independent panel led by our science advisor.
In fiscal year 2004, the Service received five requests.
Two of these requests did not meet the standard for
consideration and were subsequently dismissed. The remaining
three requests met the standards; two involved the species of
sage grouse and one involved the Florida panther. All of those
have been completed, with the Florida panther having gone
through the full appeals process.
We have not received any requests, so far, for fiscal year
2005.
Based on our experience with the IQA thus far, though, we
offer these observations. First, we believe that the IQA has
had beneficial effects on the way the Service considers the use
of scientific information in decisionmaking. Two examples come
to mind. The first deals with the proposed listing of the slick
spot pepper grass, a species of grass that had been proposed
for listing under our Endangered Species Act. The second deals
with the scientific information concerning recovery of the
Florida panther.
In the case of the slick spot pepper grass, that IQA
request did require the Service to review the science that we
had proposed in the listing for that species. That review did
have influence, though, because our decision to move forward
was not appropriate, so we did not list that particular plant
species. In the case of the Florida panther, the IQA process
identified areas where the Service had not updated scientific
information on that species, which was evolving at the time.
And, as a result, the Service has accelerated its schedule to
correct and update particular files and data concerning
corrective actions for that.
In another observation, we have found that handling the
request for corrections under the IQA can be complex.
Certainly, we have learned that our own guidelines, which allow
us only 45 days for response to a request for correction, needs
to be amended. We are currently considering the best method to
provide additional time for review and response, while still
responding to the public in a timely manner. Our new guidelines
announcing these revisions will be reported in the Federal
Register.
Finally, fulfilling our responsibilities under the IQA in a
manner that is consistent with our legal obligations under the
Endangered Species Act and the Administrative Procedures Act
has presented some unique challenges. Our current approach to
an IQA request that is received during a rulemaking process,
but after the close of that comment period, is to prepare a
response prior to the final rulemaking, but the release the
response after the final rule is published. In such a case, all
the issues raised in the IQA request are addressed separately
from the rulemaking. The responses, though, to the questions
do, however, inform the rulemaking process. This approach has
served to raise issues that may have been overlooked in a more
general rulemaking process, and we believe have helped improve
the product that we finally issue.
In general, the Service believes the IQA process is working
and provides a benefit to the public. We will continue to
improve our process as we gain experience with responding to
IQA requests.
This concludes my testimony, Madam Chairman. I would be
pleased to answer any questions you may have. Thank you.
[The prepared statement of Mr. Melius follows:]
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Mrs. Miller. All right. Thank you very much.
And our next witness will be James Scanlon. Mr. Scanlon is
the Acting Deputy Assistant Secretary for Science and Data
Policy with the Department of Health and Human Services. He has
been in this position since July 2002. As Acting Director, Mr.
Scanlon coordinates all health and non-health data collection
analysis activities. Mr. Scanlon is an expert in the health
data and research.
Again, we are very honored to have you with us today, sir,
and the floor is yours for your testimony. Thank you.
STATEMENT OF JIM SCANLON
Mr. Scanlon. Thank you, Madam Chairman. Thank you for the
opportunity to testify today about the implementation of the
Information Quality Act within HHS. As you indicated in your
statement, HHS administers more than 300 programs and is
comprised of 10 large operating divisions, including household
names in the public health world like NIH, CDC, the Food and
Drug Administration, and the Federal Medicare and Medicaid
agencies.
In the course of carrying out their missions, our agencies
disseminate a wide variety of information to the public, and
this ranges from research, scientific and statistical reports
to expert and authoritative health and medical information
aimed at the general population.
Consequently, HHS is committed to supporting, developing,
and disseminating information consistent with the Information
Quality Act. It has long been an HHS goal to ensure that the
best available scientific and technical information is used to
support agency policy and regulatory and program
decisionmaking.
Within HHS, we issued our HHS information quality
guidelines, as the other agencies did, in October 2002, and we
created an extensive HHS information quality Web site to
support implementation. In implementing the IQA within HHS, we
took several approaches that may differ from other agencies
because of our size and the variety of our programs. First, we
implemented the IQA through our science policy and data policy
channels, not our CIO channels. Second, it became obvious early
on that a one-size-fits-all approach across HHS would not work,
so we developed a combination of HHS-wide umbrella guidelines
with standard policies and procedures, supplemented by agency-
specific guidelines within that overall framework.
Third, we designated a lead office, my office, as the lead
coordinating office and implementing office to oversee
implementation, and we created an HHS-wide Information Quality
Working group with representatives from across HHS to ensure we
had a coordinated and integrated approach across
implementation.
The resulting guidelines, as I said, were issued in October
2002. The purposes are twofold: to provide policy and
procedural guidance to our own agency staff about what is
expected, and to inform the public about the policies and
procedures that we do employ to ensure the quality of the
information we disseminate. Part I of our guidelines on the Web
site describes these department-wide umbrella guidelines and
policies. Part II describes the agency-specific policies. So
FDA, NIH, CDC, and Medicare would have supplemental policies as
well. Responsibility for implementing the guidelines within the
HHS operating divisions is the responsibility of the head of
that agency--for example, the head of the NIH--that
disseminates the information.
Overall departmental level responsibility for oversight and
coordination rests with my office within the Office of the
Secretary.
As I indicated, our guidelines do contain an administrative
mechanism that allows effective persons to seek and obtain
correction of information that they believe does not comply
with the guidelines. And we established a common format across
HHS to make it easier for complainants to deal with our various
agencies.
Our Web site contains information about how to submit a
request for correction and identifies the individuals in the
agencies to whom requests are to be submitted.
Let me turn now to response time for our first 2 years of
experience.
Our initial goal was to respond to all requests for
correction within 60 calendar days of receipt. But our
experience has shown that actual response times generally are
considerably longer. This is because of the extensive expert
staff time involved and the wide range of agency scientific and
legal reviews that are involved in assuring a complete and
responsive response.
In cases where the request will require more than 60
calendar days to resolve, the agency usually informs the
requester that more time is required and indicates the reason
why. If the requester is not satisfied with the original
response, he or she may appeal that decision within 30 days.
Our position on appeal is very liberal: we pretty much
consider any request for consideration that is submitted. And,
generally, the appeal is handled at least one program level
above the originating office, and usually involves senior HHS
officials.
In terms of our experience with complaints, we have
received 22 information requests for the first 2 years.
Thirteen then went to the appeal stage. All but four have been
closed. In terms of agencies, most of the correction requests
nine were aimed at our National Toxicology Program, other parts
of NIH received an additional two; and FDA and CDC received
four and three, respectively.
The challenges included a variety of topics in public
health, for example: CDC information on water fluoridation and
sexually transmitted diseases; NIH information on the health
effects of smokeless tobacco; and a number of correction
requests aimed at toxicology profiles developed by our National
Toxicology Program. So, virtually every agency has received at
least one information quality request.
All the requests are taken very seriously by the agency.
There are a number of examples where information on the Web
site or in reports was updated or expanded or incorporated into
the next version of periodic reports to reflect the updated
information. For example, at the National Institutes of Health,
an information quality request concerning the health risks of
smokeless tobacco pointed out some problems with the
information the agency was disseminating, and NIH then updated
the information, providing a more complete and expansive set of
information in support of the risks associated with smokeless
tobacco.
At our National Toxicology Program, a number of toxicology
profiles have been updated and expanded or incorporated into
next revisions based on the information quality complaint
process.
Thank you for the opportunity to testify. I would be happy
to answer any questions.
[The prepared statement of Mr. Scanlon follows:]
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Mrs. Miller. Thank you very much. I appreciate all of you
coming. I tried to listen to all of your testimony here. One of
the common elements that I was sort of picking out there is how
many requests you get and how many days you had to respond. And
I don't know if I wrote down the right information as you were
testifying, but I think I got 12 from Mr. Melius. Is that
correct?
And, Mr. Scanlon, you said you had 22?
Mr. Scanlon. That's correct, ma'am.
Mrs. Miller. And then 60 days to respond.
And in your case, Mr. Melius, 45 days to respond.
And the EPA, I thought you said 30. But I am not sure how
many days they had to respond.
Ms. Nelson. We have received 30 so far, and we set 90 days
as our goal for response.
Mrs. Miller. Ninety days, when they first passed the law--
and I was not here when they passed this law. I am trying to
get myself up to speed on exactly all the impetus behind it and
how it is working and what kinds of things we could do to
assist all the agencies. Do you think it would be helpful,
rather than each of you having a different amount of days to
respond in the appeals process, if we had something--I know one
size does not fit all, but is there anything that Congress
could do to assist you with the amount of information for
correction that you are getting and days to respond and the
appeals process, and all that, so that we had a common theme
throughout some of the agencies?
I will leave that open to any of you to answer.
Mr. Melius. I believe the guidelines that came out of OMB
did provide some flexibility for agencies, in establishing our
own guidelines, to create a structure where we could meet an
unknown demand, and we are adjusting as we are going through
that. On behalf of the Fish and Wildlife Service, we may have
been a little bit too ambitious in our thoughts early on, that
we could conduct reviews at the timeline that I identified.
In listening to my colleagues and other departments and
agencies, they have a little bit more lengthier time, and we
are finding out, as I indicated, that is causing some need for
some extensions. So we are looking at a process through our
revisions to give us a little bit more time for responding, but
yet still meeting in a timely fashion that response. I am not
certain the law needs to be changed; it is more or less our own
internal guidelines to implement that.
Mrs. Miller. Your own experience as you go forward.
Ms. Nelson. I would also add to that. I think my experience
shows that there is an awful lot of discussion that occurs
between agencies and among the agencies on our experiences in
implementing our own guidelines and the guidelines that have
come down from OMB. And I think what you will find is there
will be a natural tendency to start to move toward some more
consistent timeframes between and among the agencies as we all
have our own experiences.
I do think it is probably best left to the agencies to come
up with timeframes because we are all different, given the size
and the complexity and the structures of our organizations, in
terms of how many people we have to bring together and the
complexity of the issues we deal with. But I think you will
begin to see more similarity in the future rather than less.
Mr. Scanlon. I think we have the same view. I don't think
the law needs to be changed. And the OMB guidelines give us a
fair amount of flexibility, recognizing the agency missions and
statutes. We clearly estimated on the optimistic side when we
projected a 60-day ability to turn around appeals and initial
requests. We are looking at empirically how much time they have
actually taken, and in our revision we probably would extend
that. But, again, I think we have the flexibility to do that
without any changes in the law.
Mrs. Miller. OK. I appreciate that.
Just for my own, as I try to understand exactly the kinds
of activity that this law is generating for your agencies;
perhaps, Mr. Melius, you could expand a little bit for me, if
you would. You used the example of the trumpeter swan. Now,
what kind of information would you have that somebody would
question what you had about the trumpeter swan? And you
mentioned that particular request went all the way through your
appeal process. Could you sort of lead me through?
Mr. Melius. Sure, I will use that example, because that did
go all the way through the appeals process. There was a
petition to list a portion of trumpeter swan population as a
endangered and threatened specie, and when you do that,
information comes in from a variety of avenues that we review
to make sure that our action is based upon the best science
available. And when information comes in like that and we react
with either a proposal to list or not to list, then information
dealing with populations, the numbers of the species, is then
challenged and reviewed to make sure whatever we are using,
from our biologists or other biologists is indeed the best
science that we have available to us to make those decisions.
On the trumpeter swan there was a proposal to request to
make the certain part of the population a specific entity under
the Endangered Species Act. We decided not to do that. That was
the end result. But during that process, data that we had used
was challenged, and initial response went back that after our
first review we decided not to change anything and continue
with the process. That was then appealed. A request came in for
appeal. So, we formed a panel of experts in trumpeter swan
biology. They came together and looked at the information that
we had used to make that decision, and, again, we did not need
to correct information because of that appeal. Though one of
the things that did come out of that particular request was
that when the Director of the Fish and Wildlife Service did ask
to have the compilation of those studies sent out for a peer
review, other experts looked at it also. They reported back to
us after the peer review that, again, we had acted properly and
the data that was used to make that decision not to list was
appropriate.
Mrs. Miller. Just one other question on that. Who would ask
you for that kind of information?
Mr. Melius. The particular group that had--you mean who had
asked for correcting that information?
Mrs. Miller. Yes, yes.
Mr. Melius. That particular request came from PEER.
Mrs. Miller. I am just trying to get a handle on the kinds
of requests that you get for correction from the various
agencies and if there is a common theme. And I guess I would
ask this to all the different panelists. As you are getting
requests for corrections, is somebody tracking this? If you get
eight requests all on the same type of information that you
have there, that is obviously a red flag that perhaps something
could be wrong with the information that you have there, or
that at least a lot of people have that consternation. Is
somebody tracking the kinds of benchmarking, what kinds of
requests you are getting for correction? And then, if they go
into the appeals process, that you don't start that up again?
Do you then put that all on your Web site so people can see
that you have corrected it?
Ms. Nelson. Madam Chairman, in EPA we do that. All requests
for correction, as well as the requests for reconsideration,
are tracked by my office. So everything comes in, we understand
what it is, we work with the work group, we review our answers.
Ours have actually been very varied in terms of the kinds of
requests we have received, the 30 requests we received, very
little duplication in terms of those. But once we begin to see
those, that certainly then should be, as you said, a flag that
perhaps there is one particular area in the agency that needs a
little bit more attention. We have not seen that to date. But
we have the information to know if that were to exist.
Mr. Melius. We also have all of our requests listed on our
Web site, as well as all the information relating to each one
of those posted as soon as we complete that action. It varies,
of the IQAs that we have received, from an environmental group
to a private citizen to a homebuilder on one of them. So, it is
not a distinct segment of the Nation that is just specifically
asking for corrections, it is kind of all over the board. But,
again, we are only kind of 2 years into this process, and as we
are implementing it we are trying to be as transparent with the
requests that are coming in and the actions we take by all of
us having very active Web sites providing that information.
Mr. Scanlon. All of the incoming requests and the
responses, appeals and responses to appeals are monitored
within HHS not only by my office, but by our departmental work
group. And we too receive requests for virtually all segments
of society, from private citizens--as you would imagine, some
of our health information is directed at individual behavior or
health facts--as well as industry groups that might be affected
by a listing or de-listing or a characterization about
chemicals, as well as advocacy groups in some cases, where they
believe we hadn't gone far enough in an advisory. So we are
quite varied. We haven't seen really a systematic kind of a
problem.
The most popular of our requests, the National Toxicology
Program has received most of the requests. That is almost the
nature of their work; they have to assess compounds, chemicals,
and so on for potential carcinogens, and it is a very elaborate
science-based process. But in virtually every case there were
distinctions, for the most part, that were updated. In
virtually no case was the original finding or the bottom line
overturned. Nevertheless, they are looking at their overall
science review. Perhaps it is just because they receive so
many, and they are probably going to strengthen it in a few
places.
But as my colleagues have said, it is quite varied. There
is not a systematic pattern emerging, for the most part.
Mrs. Miller. You know government is often accused of ``make
work,'' and sometimes we make work. Unfortunately, for the
agencies that perhaps stops you from doing your regular
regulatory kinds of processes or other kinds of things that you
should be about. Again, I wasn't here when the Information
Quality Act was passed, but I know there was quite a bit of
debate at that time about whether or not it would strain the
resources of the agency, whether or not it was really a
worthwhile kind of endeavor for all of you. Some have said that
you might be overwhelmed with all these different requests. I
guess I don't know what it all means in relative terms to have
12 requests for correction. I am not quite sure what all of
that has been, your personal experiences. Could you try to give
me a handle on whether or not you feel that this is a
worthwhile act, that you do have the resources to comply?
Ms. Nelson. Would you like me to start?
Mrs. Miller. Please.
Ms. Nelson. I will say I do believe it is a very worthwhile
act. I think anything that helps set the foundation and the
core for quality decisions is very worthwhile within the
agency. I also believe you are correct. There was a lot of
uncertainty in terms of the volume of requests that were coming
to an agency. At least for our part, the volume is not what at
least some people had projected before the guidelines went into
place. We do take the act very, very seriously. I think it is
one reason we set a 90-day deadline when we put our first
guidelines in place. We knew that the issues EPA deals with
tend to be very, very complex, based on very difficult issues
that don't always have a lot of certainty with them. So we set
a long deadline for that so that we could address these issues
in a very serious manner. It would certainly be easy to turn
some of these around quickly if you didn't address them
seriously, but we try to do that.
That kind of attention to these very significant requests
does result in a redirection of resources. I have to be honest
in saying that. When you take an act seriously, it does mean
you are redirecting resources. Of course, there were no new
resources. That doesn't mean, though, that redirection is
harmful to the agency. In some respects, I believe, even in
areas where we have not granted the request articulated or
asked by the requester, we have in fact made some changes
within our organization that I believe make it stronger and
will result in better decisions in the future.
So, to summarize, yes, it has absorbed resources; yes, we
have had to redirect resources. I don't think it has been
overly burdensome, and I do think in many respects that
redirection of resources will make for a better agency in the
future.
Mr. Melius. I would agree that the first year we were
watching and waiting to see just what type of requests, what
volume of requests may come in. But as I have indicated, the
management so far with the dozen or so that have come into the
Fish and Wildlife Service and none yet this year, obviously, is
manageable, though, as I mentioned, we take it very seriously.
And that means staff time is devoted to the research, the
analysis, the correction, if that is the final outcome. But as
my colleague has mentioned, it has heightened the awareness of
the quality and the transparency of the work we do with the
science. So, like I said, we support the goals, and at this
point we are able to manage and move forward with this
particular act.
Mr. Scanlon. Well, we too were concerned, at the initial
passage of the act, that we would be overwhelmed with requests,
and it turned out that, as we indicate, 22 over 2 years. We
have managed to absorb that within the current staffing
patterns, though every now and then, because some of these
areas are very precise scientific areas, it may take some of
our scientific staff away a little bit to deal with that
specific response. But normally we have absorbed it within the
regular operations of the agency at the level we are receiving
now.
Some of the requests we received were quite elaborate legal
briefs, and I don't think we were anticipating at the beginning
that we would be involving our legal staff quite as much as we
did. In many cases the correction request interacts with
Administrative Procedure Act requests such as rulemaking,
citizen petition, and other areas, and it actually takes a
little while to disentangle how it all fits together. But,
again, we have managed to absorb that, so far, into the current
agency resources.
Mrs. Miller. I have had not a number, but several people
who have said the act isn't really working as it was originally
designed, and that they were even advocating for repeal. I am
certainly not getting the sense from any of you that--I don't
believe I am getting that sense, that any of you think the act
should be repealed. But is there anything that, again, we could
do or any suggestions you may have on how it could be modified
to assist the agencies in compliance, now that you have had a
couple years of experience under your belt? Particular
suggestions that any of you may have, or are you just going to
continue to fine-tune the process that you have put in place?
Start again with Ms. Nelson.
Ms. Nelson. I think the jury is still out on that question.
October will mark the third anniversary of the implementation,
but it takes a while. Even though that is the 3rd year
anniversary, we really don't have ``3 years of experience.'' I
think it is still a little too early. For ourselves, even
within EPA, we are just at the process now--because now we have
30 requests--that we are beginning to see enough that we can
look for patterns or trends and understand whether we even want
to modify our own guidelines. So, I think it is just premature
to do that at this point in time, to think about changes to the
act itself.
Mr. Melius. We would agree. Again, the guidance offered by
OMB and the subsequent guidelines that we have developed give
us that flexibility. And, as I mentioned, the one issue that we
are grappling with is just the timeline in getting a timely
response back.
The other issue, as my colleague mentioned--and we have not
had a situation, but it deals with making sure that we are
following the Administrative Procedures Act properly. Many of
our issues deal with notices involving endangered species and
some of them are even court-ordered, imposing certain
deadlines. We have not had situations where a request comes in
challenging information that is up against a deadline ordered
by a court, so we have not had to face how you handle
administration of IQA, and yet, you still have a court-ordered
deadline within an action. So our solicitors are still
grappling, and legal time is being devoted to make sure we have
the right pathway figured out on that. But that is more in our
own guidance, not necessarily in the act.
Mr. Scanlon. Well, at HHS I think the concept of pre-
dissemination quality review was an old and well established
concept, so we supported the goals of the Information Quality
Act and had in fact been practicing these before. I think the
statute itself probably doesn't need any changes. In our view,
it gives us enough flexibility. And the OMB guidelines give us
enough flexibility to fine-tune and adjust for what the
experience may hold ahead. So I think, again, it might be
premature for any major changes.
Mrs. Miller. Ms. Nelson, it is my understanding--you can
correct me if I am wrong--that EPA does obviously a lot of this
environmental modeling on various issues, and that oftentimes--
I am not sure really how often, but sometimes apparently the
EPA will go out into the private sector for various reasons. I
am certain you can't afford to have all of those people on
staff all the time for every single thing that you do. But when
you do use private concerns for some of your modeling, that, of
course, is proprietary information; the model, the construct of
the model may be built by using software or what have you that
is not really in the public domain, and a person that might
question or want to ask for a correction of some of the
information you may have up there is somewhat disadvantaged if
they are not able to access the foundation of the modeling that
has occurred there. How does that work and what would a person
have to avail themselves, the tools to be able to actually make
a good analysis of whether or not what you have up there is
something they think is correct or whether they could request
correction based on the modeling that you have, utilizing
private concerns as well?
Ms. Nelson. This was an issue we discussed when our own
guidelines were being developed. I think you probably know
that--first of all, you know I don't have a science background,
so I will be very careful venturing into the area of science,
unlike my colleague at the other end of the table. EPA does,
though, have a chief science advisor, the Assistant
Administrator for the Office of Research Development. Dr.
Gelman, who served in that position at the time we were
developing our guidelines, was very active in the development
of those guidelines. He is no longer there and we have somebody
in an acting capacity, but still that role of chief science
advisor exists today.
The development of those particular models does fall under
the jurisdiction of the science advisor, and it is something we
have dealt with as an organization. Those models and the use of
those proprietary models is an issue that we are working
through our Science Policy Council, and we are waiting for some
advice from our Science Policy Council on that very issue. Once
that policy has been reviewed and we receive comments from the
Council, we will send that out for public input in terms of the
use of proprietary models in decisionmaking.
Sometimes that is the only thing we have available to us in
terms of making decisions. And I think that is something we do
have to keep in mind. Sometimes we just have to go with the
best available science, and that is what exists.
But if you would like a more detailed answer to that
particular question, I would be happy to consult our science
advisor on that issue, because I think that does more
appropriately fall within his realm than mine.
Mrs. Miller. That would be helpful, if you could advance it
to the committee staff here. Perhaps if it is in draft form,
maybe a timeline as well of when we can look for that kind of a
thing. That would be very helpful. I appreciate that.
Ms. Nelson. Certainly.
Mrs. Miller. Also, it is my understanding that one of the
requests for correction to the EPA--back to Ms. Nelson here--
was to establish an interagency work group to look at some of
the reviews and that. Do you have any comment on how that might
work and what the agency's response was to that particular
avenue?
Ms. Nelson. Well, let me say in general I do think that the
interagency work groups are very valuable. We have used many of
those to get as far as we are on the information quality
guidelines, and we spend a great deal of our time throughout
the agency on interagency work groups. So I think it is an
important way of doing business today in the Federal
Government, as we try to do a better job of serving the citizen
in a citizen-centric way.
The particular request to which you are referring I believe
is part of one that is under a request for reconsideration as
we speak. We are currently looking at the multiple facets of
that particular request for reconsideration. It is a very, very
detailed and complex matter, one that, as you alluded to,
involves a number of agencies, as well as a number of data
bases and other issues affecting those agencies. We are
currently reviewing that and will address that issue. But it
would be premature at this point in time for me to state what
the agency's final position is because we are currently working
collaboratively with those other partners on how best to
respond. But, in general, I would say I support the notion of
working together across agency to better serve the citizen and
to present a more consistent view when we can do that, when it
is appropriate.
Mrs. Miller. I appreciate that. And, again, if you could
keep the committee up to speed on how you are proceeding with
those kinds of things, we find that very helpful also.
I want to thank all of our panelists. We have no other
members to ask you questions here, so before I dismiss you, I
would like to just ask if there is any question I have not
asked. You all are working with this act and living with it
everyday. If you were me, what kind of questions would you be
asking you? Is there something else that the committee should
be aware of that I have not asked you the proper question?
I will start with Ms. Nelson.
Ms. Nelson. I think you have done a fine job. [Laughter.]
Mrs. Miller. You are welcome in Michigan anytime. Thank
you.
Mr. Melius. I think you have asked a lot of the very
important questions, and as all of us have said, we are
learning as we are going through this, and we are trying to be
as responsive and transparent as we can. And, I think it is a
little bit too early yet, but we are all learning as we move
down this path.
Mr. Scanlon. I would agree. I think we have covered most of
the major issues. Again, we are learning almost month-by-month,
and it is a work in progress. And within the framework we have,
I think we just have to clarify a few more things and work them
out.
Mrs. Miller. All right. I will excuse you all and thank you
very, very much for your attendance this morning. All of your
testimony has been very enlightening. Thank you so much.
We will recess for a quick moment to empanel the next
panel.
[Recess.]
Mrs. Miller. Before you all sit down, I am going to ask you
all to stand up so I can swear you all in before we begin with
our second panel. If you could just raise your right hands.
[Witnesses sworn.]
Mrs. Miller. Thank you all, gentlemen.
All right, we have our second round of panelists ready.
First up is Mark Greenwood. Mr. Greenwood is a partner in the
Washington, DC, office of Ropes and Gray, where he primarily
practices environmental law. Prior to his joining Ropes and
Gray in 1994, Mr. Greenwood worked for the U.S. Environmental
Protection Agency for 16 years. He held a variety of senior
positions in the Office of General Counsel, all primarily
dealing with legal environmental issues. From 1990 until
beginning to work for Ropes and Gray in 1994, Mr. Greenwood was
the Director of the Office of Pollution Prevention and Toxins.
Mr. Greenwood, we welcome you to the committee, and the
floor is yours, sir.
STATEMENTS OF MARK GREENWOOD, PARTNER, ROPES AND GRAY; JEFF
RUCH, EXECUTIVE DIRECTOR, PUBLIC EMPLOYEES FOR ENVIRONMENTAL
RESPONSIBILITY; WILLIAM KOVACS, VICE PRESIDENT FOR ENVIRONMENT,
TECHNOLOGY, AND REGULATION, U.S. CHAMBER OF COMMERCE; AND
SIDNEY A. SHAPIRO, UNIVERSITY DISTINGUISHED CHAIR IN LAW, WAKE
FOREST UNIVERSITY
STATEMENT OF MARK GREENWOOD
Mr. Greenwood. Thank you, Madam Chairman. I serve as
counsel to the Coalition for Effective Environmental
Information. It is a group of companies and business
organizations interested in how government agencies collect,
manage, use, and disseminate environmental information.
We really appreciate the opportunity to appear before the
committee today to talk about implementation of the Information
Quality Act [IQA], as we sometimes call it. While our
organization was not involved in the enactment of this statute,
we have been active in its implementation.
In our view, the core objectives of the IQA represent
common-sense values that the public, the agencies, and all
interested parties should be able to embrace. While some groups
have expressed concern that the IQA will be used to undermine
the core work of the agencies, we do not see evidence
warranting this concern.
In my remarks this morning, I will highlight a few of the
points from the longer written testimony which we submitted to
the subcommittee.
I think it is important to recognize the key role that the
IQA is playing in the emerging role of E-Government. The power
of the Internet now allows agencies to deliver, to computer
desktops all over the world, data that has historically been
kept in Governments' internal files. The agencies have embraced
this new capability with remarkable speed.
This trend toward E-Government offers many positive
benefits. But the benefits we all hope for will not materialize
unless there is a strong commitment to high quality
information. This is where the IQA steps in. By setting
standards for information quality and mechanisms to ensure
compliance, the IQA is filling an essential role that must be
maintained and enhanced. In this sense, the IQA should be
considered one of the core good Government laws of the
information age equivalent to such statutes as the Freedom of
Information Act.
The principles of the IQA represent common sense. Over a 2-
year period, OMB and the agencies developed a set of guidelines
reflecting the following policies: agencies must use accurate
data and explain the methods and assumptions used in their
technical analyses; agencies must use the best available peer
review data in making scientific judgments; agencies must
communicate information in an understandable way to interested
audiences, including the general public; and interested parties
have a right to seek and obtain correction of information that
does not meet the IQA standards.
We find it difficult to argue with those principles.
Importantly, these are neutral values that do not favor one
faction over another. To move the IQA, however, forward, in
light of the controversy that has occurred, we think it will be
important to address some key implementation issues, which I
would like to talk about for just a moment.
This agreement about the scope of the IQA and the nature of
the remedies under the statute have tended to dominate the
correction requests that have been filed so far. In particular,
some correction requests have become controversial because they
have not focused on informational remedies, which are the
appropriate subject of the IQA. Withdrawal of a regulation, for
example, is not the right remedy for an IQA problem. While a
rule may be improper if it is based on flawed data, the
question of whether a rule is valid is a matter to be resolved
under an agency's organic statutes and the Administrative
Procedure Act, not the IQA. Clarification of the remedies
available under the IQA will help define the law's appropriate
role.
Another set of concerns about the IQA relates to questions
about accountability and oversight to assure agency compliance.
At any agency level, it has not been clear what internal
management systems have been put in place to assure that the
IQA standards will be met. And, at a broader level, there is a
substantial question of whether judicial review is available
for an agency to deny a correction request.
Now, some preliminary court decisions suggest that review
is not available, although this issue will probably not be
definitively resolved in the courts for some time. We share the
view of many parties that judicial review of IQA decisions
should be available. But other parties, including the
Department of Justice, oppose that position.
A final set of implementation issues concerns what agencies
need to do to build information quality into the fabric of
their operations. OMB recognized this larger purpose by
requiring agencies to develop some form of pre-dissemination
review before information is provided to the public. In
particular, agencies should be identifying patterns of errors
in public information and developing solutions to prevent
future mistakes. Little information is available on how
agencies are implementing this aspect of the law.
In closing, thank you for the opportunity to address the
committee on these matters. We encourage your continued
interest in the implementation of the IQA, and your leadership
is necessary to resolve some of the implementation issues I
have described. Thank you.
[The prepared statement of Mr. Greenwood follows:]
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Mrs. Miller. Thank you very much.
Next is Jeffrey Ruch. I hope I am pronouncing that
correctly. Since 1997, Mr. Ruch has been the executive director
of the Public Employees for Environmental Responsibility. Mr.
Ruch was one of the founders of the PEER organization, and in
its first 4 years he served as the general counsel and program
director. Prior to his creating PEER, Mr. Ruch was the policy
director and a staff attorney at the Government Accountability
Project, and for the 17 years leading up to this he was
involved in California State government.
Mr. Ruch, we welcome you to the committee and look forward
to your testimony.
STATEMENT OF JEFF RUCH
Mr. Ruch. Thank you, Madam Chair. And I would like to begin
with the note that you sounded in your opening statement
concerning transparency, and note that there is an inherent
conflict between values of transparency and policies that
require an administration to only speak with one voice. In the
Federal Government, if you only speak with one voice, that
means that 1.8 million voices must be stilled. And in the case
of science or other technical matters, where the answers aren't
always clear-cut or in Black and White, that can lead to an
awful lot of unanticipated consequences. I just want to note
one.
We recently uncovered documents that the EPA's science arm,
Office of Research and Development, now has a $5 to $10 million
budget for public relations activities that is designed to
enhance its corporate image, aid in product placement, and aid
in marketing. We are unclear as to what role public relations
has with respect to public science.
But more fundamentally, the issue I think that this
subcommittee should be concerned with is that in Federal
service now, truth is a firing offense. So that employees can
be fired for accurately providing information of high utility
and integrity. A key example--which is an Interior agency, not
one of the three, but this case has a shadow over the entire
Department of Interior, and we think, the Federal Government--
involves the chief of the Park Police, Teresa Chambers, who was
fired for her remarks as an official spokesperson confirming
information that had been provided to a reporter by a union.
To the extent that those kind of cases stand, it has a
chilling effect and makes it difficult for people to speak
openly and provide any measure of transparency in Federal
service.
Now, specifically with respect to the quality of
information, I think as my testimony tried to make clear, in
our perception, the quality of information disseminated and
relied upon by the Federal Government is deteriorating, and the
root causes of those are several. One is that scientists and
specialists have almost no legal protection for raising
problems. So, for example, questioning the methodology or the
utility or the accuracy of a study is the sort of thing that
can lead to disciplinary action for which truth is no defense.
Second, even for those that have whistleblower protections,
the whistleblower protections have now been limited to people
that go outside the chain of command, so that specialists who
raise problems inside the agency can be legally retaliated
against for staying within the chain of command. Almost
perversely, the only way you get legal protection is by going
outside the chain of command. So, these issues can't be
elevated. It is difficult to create a paper trail so that the
general citizenry can raise issues of transparency.
And, finally, as we document in the testimony, we see a
growing agency culture that rewards dissembling and dishonesty
so that in instances where the agency has been found to have
been less than candid, even to the point that there is a
decision that the agency's action has violated the law, in more
cases than now, the responsible official is rewarded or
promoted.
Turning to the Information Quality Act, we likened it to a
bucket in a rowboat that is sinking. Now, a bucket is a good
thing, but your rowboat is still going to sink. The law has
certain qualities, but in the face of these overwhelming kinds
of pressures, it really doesn't do much good.
First, one key weakness it has is that the Information
Quality Act requires the consent of the violator in order to
work. We point to the Army Corps of Engineers, which completely
ignores all Data Quality Act requirements; yet, there is no
sanction.
Second, there is absolutely no standard for what
constitutes quality information and there is no consistency. We
pointed to examples in the Fish and Wildlife Service, where the
director, for no reason at all, ignored the panel of scientists
that had been convened to oversee the review. And if asked in
questions, I can give you other examples where this becomes a
problem.
And, third, there is no followup. With respect to the
panther example, the agency announced the next day that no
decision would be changed by the Data Quality Act decision. The
key documents are still in place, and will be in place until
the end of the year, and maybe longer. The director who made
the decision resigned and put implementation in the hands of
the official he overruled. And the scientist who filed the
challenge with us was fired. So, if that is a victory, I guess
I could be spared further victories.
With respect to recommendations, besides addressing the
whistleblower issue, first, we strongly urge you to look at
existing information quality laws, like NEPA, the Endangered
Species Act. These are far more meaningful measures and checks
against information inaccuracy. Second, we very strongly urge
that you look at the absence of protections for public
employees who come to Congress and provide you information.
Those employees can be fired without any legal recourse. And,
finally, we think that something needs to be done to address
the agency culture that rewards those that dissemble.
In conclusion, we think that unless Congress itself takes
the quality of information seriously, the quality of
information won't improve. Thank you.
[The prepared statement of Mr. Ruch follows:]
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Mrs. Miller. Thank you very much.
Our next panelist, our next witness is Mr. William Kovacs.
Mr. Kovacs is a vice president of Environment, Technology, and
Regulatory Affairs with the U.S. Chamber of Commerce. His
principal responsibility is to be the officer responsible for
developing U.S. Chamber policy on topics such as environment,
energy, natural resources, agricultural and food safety, and
regulatory and technology issues. Prior to joining the Chamber
of Commerce, Mr. Kovacs spent nearly 20 years practicing in
private practice. He is a recognized expert on environmental
policy.
We certainly look forward to your testimony today. We
appreciate your attendance before the committee, and the floor
is yours, Mr. Kovacs.
STATEMENT OF WILLIAM KOVACS
Mr. Kovacs. Thank you, Madam Chair. I am going to submit my
testimony for the record and just summarize it.
We really appreciate you having the oversight hearings on
information. Everyone needs good information. Everyone, not
just the business community or Congress, but even the agencies.
The reason we care so much is the fact that regulatory
compliance costs are estimated at about $850 billion annually.
To put that in perspective, all the corporations in the United
States pay about $123 billion in corporate taxes. So when you
have 4,100 regulations a year, and 191,000 regulations total,
we see it as something where, if we are going to spend this
kind of money, we need to get it right because we need to
direct our resources to the right place.
Having said that, the Data Quality Act is certainly in its
formative stages. The outcome as to its effectiveness is
unknown, but I can say--and after listening to the agencies, I
think I probably need to emphasize it--resistance by the
agencies is certainly common. And the resistance falls in two
areas. One is that they have determined that the Data Quality
Act is not reviewable by any court, and, second, because it is
not reviewable, the determination of what is good quality data
rests with the agency. So if those two points are correct, then
the Data Quality Act really will not be very effective.
Having said that, the U.S. Chamber has decided that because
of the concerns we have for making sure there is good
scientific data, we have undertaken two actions: one, which is
a hard-nosed action against the Department of Health and Human
Services, which was just here, and that is now in litigation,
and I will explain that a little bit; and the second is the
data inconsistency petition which we have with EPA, and there
we have taken a much more cooperative--although they may not
view it that way, we have taken a much more cooperative
position.
On the salt litigation, what we have done here is we have
asked HHS, on the sodium study--and the reason we picked sodium
was it is something that affects, salt affects everyone in the
public. And they have come out with some guidelines, which say
lower salt intake actually benefits everyone, all sub-
populations. And we have seen data that contradicts that. But
that wasn't the point. The point was, what we did is we asked
them, under the Data Quality Act, to produce the data so that
we could take the data and reproduce the data to see if we
could get the same scientific result. That is one of the
provisions of the act. HHS denied all of the data to us at all
points in time.
At that point we decided to sue them, and the defense is,
as I have mentioned before, that the agency has discretion and
the act is not judicially reviewable. If they win--and it is
going to be argued later this year in the Fourth Circuit--the
Data Quality Act has very little effect on this.
Data inconsistency was the reason we picked this particular
issue--and we took a totally different approach. We aren't
hard-nosed on this. We took 16 of the data bases of EPA, and on
the data bases they had different values assigned to the same
chemical. So, for example, you could have chemical X in the
ChemFate data base having a value of 1. I am really simplifying
this. And in a Transport data base chemical X could have a
value of a billion.
Now, the reason why these data bases are important is they
apply to every single risk assessment. These are the data bases
that apply to every risk assessment, every cleanup, and all of
the chemicals that are presently allowed to go on the market.
So in terms of having a broad, national impact, you are talking
about all of the data that is used to actually make health
decisions. So we thought, because of that--it was so simple--
that we had to take it.
Now, with this particular data, we decided we were going to
be cooperative. This wasn't going to be a game of ``gotcha.''
We weren't going to hide anything. We filed the petition and we
gave all of the scientific data to EPA and we said, look, your
data bases are different. We think you need to involve NIST and
USGS and other people, because they use these data bases. The
EPA flatly refused us.
We did a petition for reconsideration, which has been
mentioned. We sent it out for a scientific study and the ground
rules on our scientists were as follows: you have complete
independence to determine this data is inconsistent and you
have complete independence to determine whether this data is
good; you have complete independence on making this data
public, which we did to EPA; and you have complete independence
to publish it.
And we can now say that it has all been completely peer
reviewed, and it has been accepted and will be published by the
Journal on Environmental Science and Technology, one of the
prominent journals in the world. And this is a public issue.
They have to get them straight.
Now, my conclusions--as I run out of time--one is neither
approach, whether it be the hard-nosed litigation approach or
the cooperative approach, has worked. In both instances the
agencies have appeared to resist. Two, if we prevail on the
salt litigation, then the Data Quality Act will mean something;
there will be judicial review and the guidelines imposed by OMB
will be meaningfulness.
If we don't obtain judicial review through the courts, then
we are in a position where Congress has to decide either to
give us judicial review or live with the discretion that the
agencies have over data.
And, finally, we have recommended that EPA bring forward
this interagency working group. You have agencies like NIST and
the Geological Survey that have great expertise in this area
and really could help us get these data bases or be consistent
and correct.
Thank you very much.
[The prepared statement of Mr. Kovacs follows:]
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Mrs. Miller. Thank you. I appreciate that.
Our final witness has been to our committee on a previous
issue, and we certainly welcome him back, and that is Mr.
Sidney Shapiro. Mr. Shapiro is a University Distinguished Chair
in Law at Wake Forest University and is a national scholar and
expert in administrative law and regulatory policy. Mr. Shapiro
received his bachelors from the Wharton School of Finance at
University of Pennsylvania and his juris doctorate from the
University of Pennsylvania Law school in 1973.
Mr. Shapiro, the floor is yours, sir.
STATEMENT OF SIDNEY A. SHAPIRO
Mr. Shapiro. Thank you, Madam Chair.
You mentioned that the IQA predates you. In late 2000, in
fact, Congress enacted the IQA as a two paragraph rider buried
in an appropriations bill. There were no hearings on the act
and no one referred to it during the debate on the larger bill.
Moreover, there was not, by any stretch, a consensus that the
IQA was necessary at the time of its enactment. There was no
evidence that existing mechanisms for the correction of
information were inadequate, nor was there any solid evidence
that agency information was flawed and in need of correction. I
am not denying the regulation is often controversial, but the
disputes are almost always about regulatory policy, not the
accuracy of data.
Despite the lack of the need for an IQA, its defenders
claim it is a modest and useful attempt to vet the information
on which Government relies. In March 2005, the Center for
Progressive Reform issued a report based on a review of IQA
petitions. The report demonstrates that the IQA has much more
to do with creating new opportunities to oppose and weaken
regulation than the correction of information. The report found
eight reasons this was true.
First, regulated entities sought to censor information.
These petitions wanted to exclude or withdraw inconvenient
information entirely, rather than make some correction.
Second, many IQA petitions challenged agency policy
decisions and precautionary policies, rather than claiming some
error in technical or scientific data.
Third, other regulatory entities were making an end-run
around existing administrative procedures. These petitions
attempted to bypass traditional administrative opportunities to
raise the same arguments, or, having failed in those
opportunities, to raise the arguments once again using an IQA
petition.
Four, petitions were filed in an effort to delay already
overdue regulatory actions, which had already been the subject
of extensive opportunities for public participation.
Fifth, still other regulated entities sought to prevent
action in the face of incomplete, but accurate, information.
There is a crucial difference between incomplete and inaccurate
information. Congress has authorized EPA and other agencies to
act before there is complete evidence about risk to humans and
the environment. Regulated entities oppose such precautions and
seek to camouflage their opposition by claiming incomplete data
is the equivalent of poor quality data, which is politically
convenient for them but simply not true.
Sixth, additional regulatory entities sought to use the
IQA--rather than the Freedom of Information Act, as we have
just heard--to seek access to underlying data, even though the
IQA gives no access to data.
Seventh, regulated entities claim the IQA amended
substantive statutes and created new statutory requirements
that an agency has to meet before a regulation can be
promulgated, which the act clearly does not do.
Finally, regulated entities sought to sidestep the courts
by attempting to discredit information that they could not
exclude in judicial trials or would prefer not to encounter in
future litigation.
Fortunately, agencies have rejected most of these efforts
to undermine the regulatory process, but there is still a cost.
The IQA has resulted in delays in decisionmaking and
consumption of agency resources that are needed to achieve
substantive mandates.
Those who defend the IQA deny it is an effort to oppose
regulation because there have been IQA petitions filed by
environmental and other pro-regulatory groups. However, most of
the IQA petitions--72 percent of them--have been filed by
regulated entities or their trade associations. If this pattern
continues--and I see no reason it will not--regulated entities
will dominate the complaint process and heavily tilt it in the
direction of disrupting regulatory programs.
I believe the time has come for Congress to reevaluate the
desirability of a separate, unneeded statute to aim at such a
vague and ultimately undefinable goal as information quality. I
believe that experience to date with the IQA establishes that
it should be repealed.
Finally, Madam Chair, if I might, I would like to
supplement my testimony with an issue of the American Journal
of Public Health, which just came out today. It is about the
development of good information in the Government and the
politicization of science, and, therefore, I believe it has
direct relevance to this committee. Thank you.
[The prepared statement of Mr. Shapiro follows:]
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Mrs. Miller. Without objection, we certainly will enter
that as part of your testimony.
And I certainly appreciate everyone on the panel appearing
here today. It is certainly my observation that our second
panel in our hearing today has a little more divergent
observations of the IQA than the first panel did. And I would
start with Mr. Greenwood.
You mentioned, sir, that part of the implementation
process, and perhaps, some of the problems with implementing
IQA is informational remedies that are available. And I think
you suggested that perhaps if they could clarify, clarification
of some of the remedies would be helpful if the agencies were
able to do that. Could you flush that out a little bit for me
on how you might----
Mr. Greenwood. Sure. I think the point I am trying to
clarify there is that, as you heard from the other witness
here, there is a suggestion that you can directly attack a
regulation through an IQA petition. And the fact that it comes
up in a rulemaking proceeding may give people the thought they
can do that. Our sense is you can't do that. You are really
challenging information. Most of the time, when you want to get
a remedy for information problems, you are adding information.
And you are certainly not tampering with the regulatory
process. You are simply adding information, clarifying, making
something more understandable. And that is usually an addition
of information.
So I don't know that the committee would necessarily have
to clarify this, but it would be one of these things that will
probably come out of the process over time, that many times
when we talk about information, we are not talking about
withdrawing information or hiding anything. In fact, we are
actually putting more information in the public domain to the
benefit of everybody.
Mrs. Miller. Following up on that, I think a common theme
for several of our witnesses was transparency and sunshine, or
what have you. And I think in your testimony you mentioned an
analogy between this and the Freedom of Information Act. Do you
see similarities there?
Mr. Greenwood. I think these are very much parallel
statutes because the Freedom of Information Act is about making
sure the Government documents are accessible, and the
Information Quality Act is making sure that the rationale for
how agencies have decided something is going to be also
transparent. So I think, again, it is all part of that network
of laws that really should be there in the information age to
have the agency explain itself and provide the documentation
when appropriate.
Mrs. Miller. Mr. Kovacs, if I could, I was very interested
in your talking about the Chamber's litigation about sodium
with the HHS there. Is this a lawsuit that is just filed by the
Chamber? Do you have anybody filing an amicus? Is there any
other interested parties?
Mr. Kovacs. We filed it jointly with the Salt Institute,
and I believe it is the grocery manufacturers and the
homebuilders who have joined as amicus.
Mrs. Miller. Just out of curiosity, why would the
homebuilders be interested in the sodium issue?
Mr. Kovacs. Well, I don't know that they are interested at
all in the sodium issue. I think what they are interested in is
whether there is judicial review of the statute. And one of the
points--if you don't mind, if I could just continue.
Mrs. Miller. Certainly.
Mr. Kovacs. One of the points in the sodium that was the
most fascinating was really on the issue of mootness. One of
the things that HHS did several weeks before the trial in the
District Court was that they had filed a series of affidavits,
which said all of the data has been released, and, therefore,
now that it is released, the case is moot.
That caused us, then, literally at that time period, to
hire an expert to go in and review all of the data that had
been released and file a counter-affidavit on that particular
matter. And when we got into court, after we had filed our
affidavit, the first question that the judge asked HHS is are
we going to proceed on mootness. And the first answer was no.
And the reason it was no is because they tried to say they
released the data when they didn't.
And this is why it is so complex and why the HHS needs some
many lawyers involved; it is because we are playing these kind
of games. Information that the Federal Government generates
that protects the health and safety of the people of the United
States needs to be in the public domain so that we understand
it and can challenge it, or accept it if it is right.
Mrs. Miller. Could you tell me when you think you might get
an answer to your lawsuit, when that might be settled?
Mr. Kovacs. It is not going to be settled, I think that is
pretty clear. I think we are going to argue it later on this
year, with an answer probably in January or February timeframe.
Mrs. Miller. Would it be your suggestion, then, to improve
the law, that the law does make accommodation for judicial
review?
Mr. Kovacs. Right now, Madam Chair, we are very comfortable
with our arguments, and they are very simple, that when you
have a data quality petition and you have a review by the
agency along with an appeal, we view the decision on appeal as
final agency action, and that gives us a right to judicial
review within the courts. And that has been pretty standard; it
is how it is used in FOIA, it is how it is used in NEPA. And
there are thousands of lawsuits on both FOIA and NEPA, so we
think we are going to follow that path. If not, we will be
back.
Thank you.
Mrs. Miller. I see. I appreciate that.
One other question for Mr. Kovacs. We are all, of course,
very interested in our Nation's competitiveness. When you see
some of these various studies about regulations, that is one of
the things this committee has spent a lot of time on, very
oftentimes onerous governmental burden of regulations, and how
much it costs businesses, whether they are large, mid-sized, or
small, and these kinds of things.
Just out of curiosity, I wonder whether the Chamber or if
you are aware of any other groups that have done any studies on
this particular act, the IQA, any kind of quantifying what the
burden actually is on businesses, perhaps even individuals, but
particularly businesses and how it might harm our
competitiveness?
Mr. Kovacs. Well, there are a lot of studies on the cost of
regulation, I think, and the impact on competitiveness. Whether
they have been done in relation to the IQA, the IQA is just so
new that we are all sort of fumbling through this process. And
the reason the Chamber cares on the competitiveness issue so
much is our CO is really clear, we are going to pay the cost of
regulation either way. And even if you didn't have regulation,
we would regulate ourselves because you would have so many
lawsuits. So health and safety is something that has to be
protected no matter what. And we are going to spend probably
more than $850 billion next year and more than that the year
after. The question is let us spend the money the right way,
because, if we do, we are going to address the right problem.
If we spend the money the wrong way on regulatory issues, we
are going to go 10 years out, and we are still going to have
the problem even after we have spent the money. That is why we
care.
Mrs. Miller. I think my time has expired to questions, so I
will turn the floor over to Mr. Clay.
Mr. Clay. Thank you very much, Madam Chair. And thank you
for conducting this hearing on this important subject.
Let me start with Mr. Shapiro. Good morning.
Mr. Shapiro. Good morning.
Mr. Clay. We are hearing today from the other witnesses on
this panel basically that there is nothing wrong with wanting
the Government to put out good information, and the Information
Quality Act helps to make sure that happens. Do you agree with
their argument? And, if not, why not?
Mr. Shapiro. Perhaps I can give two responses. I appreciate
the question. First, everyone is interested in Government
having the best information possible and acting on it. But at
the time the IQA was adopted as an appropriations rider, it was
largely, if not entirely, duplicative of existing
administrative procedures, which were going to the same
purpose. Therefore, I think it is fair to say that it is
largely unnecessary. People already have opportunities to seek
the correction of erroneous information.
Second, there is a difference between information and data
and numbers. If the problem is that a number is wrong or that a
piece of data is wrong, it should be corrected. There is no
excuse to having wrong data. But most of the disputes in
regulation deal not with is the No. 7 or is the No. 8; they
deal with the kind of conclusions one makes from the available,
and often conflicting, information that is in front of us. And
those are policy issues. And the difficulty with the IQA is it
inserts this process, these complaints, these data complaints,
right in the middle of the other administrative processes for
dealing with policy. And, therefore, it is really not about the
correction of information. It is really about people trying to
get the agency to change their policy viewpoint.
Mr. Clay. And you think that the IQA was duplicating the
Paperwork Reduction Act?
Mr. Shapiro. Among others. Let me give you a good example.
We have heard here today--in fact, in the previous testimony by
the other panel--about an IQA petition that was received in the
middle of a rulemaking process. Now, anyone can comment on a
rule, and those who are interested often file detailed
comments. And regulated entities in particular file detailed
comments objecting to the evidence, which the agency is using
in making or offering a rule to be adopted. The agency is
required by existing law to make available to any regulated
entity all of the information, before it goes to the final
rule, that it is relying on. And at that point regulated
entities, the public or anyone else, can come in and say that
scientific study is wrong, that one is incomplete, salt doesn't
do what you say, salt only does this. So the rulemaking process
sweeps all of this into consideration, and then the agency
looks at all that information.
And, further, the courts require the agency, in rulemaking,
before they promulgate the final rule, to respond to each and
every significant comment in the preamble to the final rule. So
the agency cannot ignore these comments filed by the regulated
entities. If you have the IQA in the middle of this, then you
are starting two processes to do the same thing, and it is
complex, it is duplicative, it is unnecessary, and it wastes
resources.
Mr. Clay. Thank you.
Mr. Shapiro. Sorry for such a long answer.
Mr. Clay. No problem.
Mr. Shapiro, it has been reported that industry groups met
with OMB earlier this year to discuss proposals to change the
regulatory system. One specific proposal that was reportedly
raised was an amendment to the IQA to explicitly provide for
judicial review. Do you have any concerns with this proposal?
Mr. Shapiro. I can't imagine a way to make a bad situation
worse. What will happen if you add judicial review to the IQA
is that groups will be able to start collateral regulatory
actions, judicial review actions, dealing with the same issues
that are going through the normal administrative process. So if
an agency is dealing with a rulemaking and will eventually have
to respond to all the complaints about its information, as well
as its policies, all that will come up normally in judicial
review. If there is judicial review in the IQA, then someone
will be able to start a separate judicial action just dealing
with some piece of data or some piece of information--or
actually some policy in the rule--and take that up out of
context of the whole rulemaking and just attack that one piece
of data in a separate lawsuit, which loses sight of the overall
picture and is a very bad way for us, I think, to determine
whether or not a rule is good or take some other action.
Mr. Clay. OK. I thank you for your responses.
Thank you, Madam Chair.
Mrs. Miller. Thank you.
Mr. Ruch? How is it pronounced?
Mr. Ruch. Ruch.
Mrs. Miller. Ruch. OK. Mr. Ruch, I wanted to ask you,
because I think you were in the room when our first panel was
here and I was asking Mr. Melius about the trumpeter swan in my
own effort to try to get a better handle on it. I have been
informed you actually were the one that asked for that
particular correction, I believe.
Mr. Ruch. Yes.
Mrs. Miller. As I understood his testimony, he was saying
that the petition was actually denied, but they would give you
some sort of peer review. Do you think that having a better
peer review before they disseminate the information could have
helped your particular case? Perhaps you could add a little bit
for me of what that particular case entailed.
Mr. Ruch. Sure. That result was the agency saying the data
isn't broken, but we are going to fix it immediately. It
involved the trumpeter swan population in Greater Yellowstone
and their natural migratory pattern--I am not a biologist--
would have taken them through Utah. But the Fish and Wildlife
Service allowed hunting of swans in Utah. So the issue of
whether or not they were protected under the Endangered Species
Act affected whether or not the swans were going to be shot as
they flew south. That was sort of the context.
We are a service organization for employees inside these
agencies. We were approached by specialists within the agency
to say that the scientific basis for the agency's decision that
this was not a distinct population that, therefore,
jurisdictionally qualified for protection, that the agency's
basis just couldn't be supported by the data, and that what
they had was a non-peer reviewed summary of information, and
the key study, the lead author of that key study claimed that
her work was being misinterpreted by the agency.
So we view it because in many instances what is going on--
in our perception--inside these agencies, is that a politically
predetermined action has been taken that is contrary to the
weight of data and to the opinion of the agency's own
specialists. Frankly, that is what most environmental
litigation is about, is the agency overruling its own
environmental specialists. So we took those internal
objections, lodged them with the agency. The agency demurred.
We appealed. The agency put together a three-scientist panel
who agreed with us. That panel recommendation sat on the then-
director's desk from November, from before Thanksgiving, until
I think it was March, and he issued a one paragraph letter
denying the appeal, offering no rationale except his inherent
authority as the director.
We understand today--this is the first time we have heard--
they have completed the peer review. We haven't seen it. But we
viewed that as an indication of just how weak it is.
Notwithstanding what the other witnesses said, generally
speaking, it is our perception that the Data Quality Act is
used as the basis for obstruction only when the agency chooses
to use it as a pretext, not as the cause.
Mrs. Miller. So, in your circumstance, you are going to
find out what their peer review actually--whatever their
results are, whatever their conclusion is. Now, what do you
think about judicial review, the possibility of having judicial
review if you were not satisfied?
Mr. Ruch. We have described the law--and I think the same
can be said with respect to judicial review, which is this is
slightly better than nothing, but only slightly. And the issue
on judicial review is--and the reason that the courts have not
found it justiciable yet is that the standards are so vague--
utility, integrity, those kinds of things--that they don't
qualify as sort of mandatory duties that can be forced through
the regular mechanisms of administrative law. So if Congress
wants to basically say, well, we are not going to define these
terms, we are just going to let the courts define them, that is
what judicial review would give you. If Congress, instead,
returned to this law and basically started making policy
decisions about it, it would prescribe the limits of judicial
review.
However, the reason I think that we are not as disturbed as
some of the other people in kind of, I guess, the world of
public interest groups is we see the problem with agencies,
science, particularly in the environmental area, as so bad and
so polluted by politics that it is difficult to imagine how it
is going to get worse.
Mrs. Miller. You know, it would have seemed the easiest
thing was just to tell the trumpeter swans they couldn't fly
over Utah. We wouldn't have had that problem, right?
[Laughter.]
Do you have any further questions, Mr. Clay?
Mr. Clay. I have one more, Madam Chair, for Mr. Ruch.
The surveys of Federal agency scientists that you discussed
are very disturbing. I don't believe that there is a problem
with the quality of science at Federal agencies. Scientists
just want to do their jobs and maintain the integrity of their
work. The problem is that this administration keeps interfering
with the work scientists are doing. Do you agree that the
problem isn't that there is a lack of sound science in
agencies, but the problem is really the political interference
with agency scientists? I would like to hear your thoughts on
it.
Mr. Ruch. We do concur. It has been our experience that
this administration didn't invent political intervention into
science, but what used to be kind of an extraordinary or
unusual circumstance is becoming routine. So what we have
reported in the surveys that we have done of scientists in
agencies like the Fish and Wildlife Service and NOAA Fisheries
calls coming down even to the field level--not just the
regional office, but to the field level--and high percentages
of the scientists reporting scientific documents are changed
for non-scientific reasons.
One of the things we find most disturbing are high
percentages of scientists who are unclear what they are allowed
to say not only inside the agency, but outside the agency at
scientific conferences.
So the larger point I was making about transparency, in our
mind, this goes to the agency specialists are very fearful--we
think they are scared to death--in that they feel that in
issues particularly where there is any kind of controversy,
they cannot tell the truth.
Mr. Clay. I thank you for that response.
Thank you, Madam Chair. That is all I have.
Mrs. Miller. I want to thank all of our witnesses, our
panelists, for participating today in our hearing. I think it
has been very, very informative. Any other information that you
might want to submit for the record, we certainly will take
that as well. And is there anything that any of you have to add
before we adjourn? Is there a particular part of this act that
you think we, again, haven't asked the right question that
Congress should be aware of?
And I would start with you, Mr. Greenwood.
Mr. Greenwood. I guess I would only add one point. A lot of
the discussion in the hearing today has been about correction
requests, and I think that is appropriate in certainly the
beginning of the statute. That is probably the right thing to
focus on. However, one of the points I tried to make in my
testimony, which I think is very important, is thinking longer
term about how you build quality into agencies at the get-go.
How do we make sure that things are right the first time, so we
don't have to spend a lot of time going through these
correction requests and transaction costs associated with
those?
So I think over time it will be important. I hope that the
committee can look at that issue and ask agencies how they are
building it into their way of doing business.
Mrs. Miller. Thank you.
Mr. Ruch.
Mr. Ruch. We think the key issue is Congress spending more
time on oversight, on sort of the substance of these matters
because, regardless of the rules, the agencies can easily come
up with ways to circumvent the rules. Let me give you an
example. One of the standards that is kicked around in the
context of IQAs is whether or not something is peer reviewed.
We are dealing with a matter in EPA where they have accepted an
industry finance study that says natural wetlands are a source
of pollution in Florida, and that the way to increase water
quality is to replace them with golf courses, because of water
flow issues.
This study has been very controversial and EPA scientists
resigned over it. The agency put it out for peer review and the
peer review came back largely negative. But the agency has
taken the position because it has been peer reviewed,
regardless of the results, they can continue to use it. It is
almost like form triumphs over substance. And we think there is
no substitute for just basic oversight.
Mrs. Miller. I appreciate that.
Mr. Kovacs.
Mr. Kovacs. I guess my final comment would be to really
clear up a mischaracterization. So often the Data Quality Act
is just described as some rider on an appropriations bill. This
is something that Congress has struggled with since 1995. If
you look at the Paperwork Reduction Act in that year, it said
that the purpose of the Paperwork Reduction Act is to ensure
the greatest possible public benefit and maximize the utility
of information, created, collected, maintained, used, shared,
and disseminated for or by the Federal Government.
And then when they weren't getting any action out of OMB,
in 1998, the House put in its Appropriations Committee report
it urged OMB to take this provision and develop rules. Again,
in 1999, again in an appropriations report, it urged it again.
And then finally in 2000, Congress got tired of urging and it
actually just put in another statute.
So it wasn't something that Congress just thought up
overnight. This has been a subject since 1995. And I think
Congress got to the point where they said, look, we are
serious.
Mrs. Miller. Mr. Shapiro.
Mr. Shapiro. Thank you. The IQA relates to many different
processes through the Government, many different agencies in
very complicated and interrelated ways. And with all due
respect, and contrary to the last statement, I don't think an
appropriations rider that was not the subject of hearings--and,
frankly, I doubt that most Members of Congress even knew
about--is the appropriate way to address such complexity.
Worse, by passing an act with such broad and vague
language, the legislature handed OMB essentially a blank check
to write the legislation itself, which, to me, raises important
separation of powers questions. So, I really do think it is
time for Congress to revisit the statute, and our preference
would be just to repeal it. Thank you.
Mrs. Miller. Well, again I want to thank you all so very,
very much for coming.
Mr. Kovacs, just one thing. You were talking about the
Paperwork Reduction Act. That is also part of our purview here
under this committee. We will be doing some different things.
But later today the Congress is going to be reauthorizing NASA.
My dad was an aeronautical engineer; he worked on Redstone with
Werner von Braun. And I was talking to him last night about
this bill coming up, and he said, you know, Candice, it is all
about paperwork. I said, what do you mean, Dad? He said, well,
when I was originally a rocket scientist, it was very exciting
times; we were able to just shoot all kinds of things out into
space. But once the Government got involved, they would not
allow us to shoot a missile until the weight of the paperwork
equaled the weight of the rocket. So I appreciate that with the
paperwork reduction.
But, again, all of your testimony has been very
interesting, and we appreciate your attendance here today.
Thank you so much.
[Whereupon, at 11:46 a.m., the subcommittee was adjourned.]