The Data Quality Appropriations Rider: New Procedures
and Information Disclosure
by Sidney Shapiro
What process should agencies use to ensure the
quality of scientific and statistical data that they disseminate?
Federal agencies increasingly are seeking to fulfill their statutory missions
by disseminating information, particularly through the Internet, about the entities,
products and topics within their purview. Programs like the Toxic Release Inventory
(TRI), an annual, national compilation of chemical releases issued by the Environment
Protection Agency (EPA), create political and economic pressure on firms to
improve their performance, such as by reducing toxic exposures beyond the amounts
required by existing regulations. Other programs empower individuals
to alter their market activity in a manner that reduces their risk. The crash
worthiness ratings issued by the National Highway Safety Administration (NHTSA)
illustrate this potential. More broadly, information disclosure satisfies the
public’s right to know about potential hazards.
In 2001, Congress passed a two-paragraph provision buried in an appropriations
bill that requires agencies to ensure and maximize the quality of information
that they disseminate and to establish an error correction process. Congress
also gave the Office of Management and Budget (OMB) the power to issue guidelines
to agencies about how to implement the requirement. Rep. Jo Ann Emerson (R-MO)
sponsored the rider without legislative hearings, committee review, or debate.
Representative Emerson reportedly acted at the behest of Jim Tozzi, a former
OMB-official who runs the corporate sponsored Center for Regulatory Effectiveness.
As far as can be determined, few, if any, other members of Congress knew of
the appropriations rider at the time they voted for it. In February 2002, OMB
issued instructions telling agencies how to implement the legislation. After
seeking public input, agencies adopted permanent procedures to implement the
rider in October 2002.
What People are Fighting About
The appropriations rider requires OMB and agencies to establish procedures
to ensure the quality of information disseminated by government. While ensuring
high-quality information is a worthy goal, procedural requirements have an important
side effect – they slow down the government’s capacity to act and, if they are
sufficiently burdensome, they can bring government to a standstill. As a result,
the benefits of imposing additional procedures have to be balanced against the
consequences to the public of delaying agency action. In the case of data
quality, the goal of ensuring the quality of information has to be reconciled
with the substantive mission of an agency and the role of disseminated data
in the implementation of that mission. Unfortunately, Congress gave little
indication of how these competing goals were to be reconciled. It defined none
of the key terms of the rider, and left no legislative history. Just as nature
abhors a vacuum, an ill-defined statute invites government officials and interested
parties to interpret it to serve their own ends.
This vaguely worded data quality rider has the potential to harm the environment
and to reduce health and safety protections far beyond its modest length. There
is a crucial distinction between incomplete data and poor quality data. For
example, an excellent study of the adverse health effects of heightened blood
lead levels can be incomplete with respect to the hazards of heightened
levels of lead in the air if the rates of transfer between airborne lead and
blood lead are poorly understood. The absence of knowledge about air-to-blood
transfer rates might be interpreted by some, however, to mean that the scientific
evidence about the hazards of airborne lead to human health is of poor quality.
If the quality requirements of the data quality rider are interpreted to make
it harder to take protective action when data is incomplete, this will mark
a huge shift in American environmental policy, which since the 1970s has relied
upon the principle that we should base policy on the best available evidence.
In fact, one of the most successful protective actions ever taken was EPA’s
1973 decision to phase out the lead content in gasoline, when the air-to-blood
transfer rate was not completely understood. Policy decisions should take into
account the quality of the evidence as part of the process of deciding what
to do, but it is often wise to act before all the answers are in.
What’s At Stake?
- The public’s right to know about potential
hazards to themselves and to the environment.
- The ability of regulatory agencies to promulgate protective health,
safety and environmental regulations in a timely fashion.
Striking an appropriate balance between protecting the public and the environment
and improving the quality of information is therefore a complex matter. Refusing
to act until there is more information about a risk can result in substantial
harm to vital public purposes. The danger is that data quality will become
a goal in and of itself, rather than a means to ensure the most effective protection
of individuals and the environment under existing circumstances.
Industry and trade organizations are already expansively interpreting the rider,
arguing that it provides an open-ended remedy to them for government information
that they believe to be of insufficient quality. Environmental and other public
interest groups interpret the legislation in a narrow manner, doubting that
such sweep can be read into the statute’s plain text, especially given the absence
of any concrete guidance from Congress concerning the scope of the legislation.
The courts will eventually have to rule on the scope of the appropriations rider.
Even if the rider is not finally interpreted to prohibit basing action on incomplete
information about the extent of a risk, the dangers posed by the rider are real.
It takes years for an agency to promulgate a significant regulation because
regulators must first complete time-consuming and laborious analyses of the
potential impacts of proposed rules. This type of delay is so common it has
its own name—rulemaking “ossification”. The appropriations rider creates the
potential that the disclosure of data and other information will also become
Industry groups can be expected to use the new procedures in a strategic manner
to slow, or even stop, the release of information that is embarrassing or politically
inconvenient to them. The vague nature of the legislation invites such challenges.
Moreover, the rider provides no deterrents for multiple, meritless complaints.
Thus, the legislation will force agencies to devote considerable time and effort
to administering the mandatory review process for reviewing data before information
is disseminated and to the error-correction process after the information is
disclosed. The only way an agency can avoid these burdens is to decline to
make public information about the environmental and health and safety risks,
which agencies may do at least some of the time to save resources. Thus, the
public will likely receive less information in a less timely fashion.
The Center supports efforts to ensure that data and information disseminated
to the public are of high quality. This objective, however, must take into
account the impact of data quality activities on an agency’s substantive mission
and the role of disseminated data in the implementation of that mission. Nothing
in the language, structure, or history of the appropriations rider evidences
any considered congressional judgment to alter any agency’s substantive mandates.
A balanced approach to implementation of the rider would include the following
First, both OMB and the agencies have assumed that the rider applies to the
information that an agency references when it proposes a new or amended regulation.
CPR believes that the better reading of the law is that, while the legislation
applies to information in government reports and information posted on the Web,
it does not apply to data relied upon in rulemaking. The rulemaking process
already provides an adequate and fair procedural mechanism to determine the
quality of data, and the application of the rider to rulemaking will slow down
the rulemaking process without any offsetting advantages.
Decisions on the Table
- What standards and procedures should agencies
use to ensure the quality of information disseminated to the public?
- Does the appropriations rider apply to the rulemaking process?
- Will agency data quality decisions be subject to judicial review?
Close attention to the terms of the appropriations rider confirms that it does
not apply to rulemaking. The rider, as mentioned earlier, requires agencies
to create a new “administrative mechanism” to hear and resolve complaints about
data quality. This means Congress intended the rider to apply to contexts where
the dissemination of information is not already subject to an administrative
mechanism to correct data problems. This would not include rulemaking because
such a process already exists in rulemaking. Indeed, the rulemaking process
provides more stringent procedures regarding the vetting of data than the appropriations
rider, and the academic literature indicates that there are surprisingly few
instances where agencies have relied on unreliable science among the thousands
of public health and safety regulations promulgated annually. Since setting
up another process would be superfluous or redundant, it has to be assumed that
Congress had no such intention.
Second, the legislation requires that agencies ensure the “objectivity” of
information without defining that term. According to OMB, information is “objective”
when it is “accurate, reliable, and unbiased,” which requires the use of “sound
statistical and research methods regarding scientific, financial, or statistical
information.” OMB has defined “sound statistical and research methods” regarding
the analysis of risks to human health, safety and the environment as the use
of the principles applied by Congress to risk information used and disseminated
pursuant to the Safe Drinking Water Act Amendments (SDWA) of 1996, and it ordered
agencies to “either adopt or adapt” these principles. Agencies have chosen
to “adapt” the SDWA principles, but even this approach may result in the application
of the SDWA criteria in contexts where they may not be appropriate or helpful
to fulfilling an agency’s mandate. CPR’s position is that an agency should
not feel bound by a congressional prescription for the quality of scientific
data employed in establishing regulations under the SDWA in determining the
quality of information disseminated to the public in entirely different contexts.
Third, the legislation requires agencies to establish an “administrative mechanism”
to allow persons to seek and obtain the correction of information “maintained
and disseminated” by an agency that does not comply with its data quality guidelines.
When information is objective, this requirement makes sense. Agencies should
correct erroneous information when it is called to their attention. This requirement,
however, is problematic in the context of presenting information about human
and environmental risks. The characterization of such risks is a difficult
and controversial process in part because it involves difficult subjective judgments. The
need for such judgments arises because scientific information regarding risks
is often incomplete and inconsistent. Thus, it is often difficult to say that
a risk characterization is clearly “wrong,” given the degree to which assumptions,
policy choices, and judgments are embedded into every step of the risk assessment
process. In light of this reality, CPR believes that agencies are in compliance
with the rider when they clearly disclose the manner in which information was
derived and the assumptions on which it was based. Congress could not have
intended agencies to withhold risk information until scientists resolve all,
or even most, doubts about the extent to which a hazard is dangerous to people
or the environment because that would end information disclosure about most
risks. Industry and interest groups that disagree with an agency’s interpretation
of data are free to inform the public of their own assumptions and to offer
their own interpretations.
Fourth, CPR urges agencies to seek, and OMB to support, additional funding
to carry out responsibilities under the legislation. Since the appropriations
rider is an unfunded mandate from the agency’s perspective, compliance with
it will siphon off agency resources from other activities, including the promotion
of regulatory and information activities that protect the public and the environment.
In order that data quality not become a zero-sum game, agencies should request
from the Administration, if they are subject to OMB budget oversight, or from
Congress, if they are not, additional funding to meet these new responsibilities.
To the extent that agencies do not receive adequate funding for their data quality
activities, they should prioritize their responses to data quality complaints
and inform persons who file complaints when their complaint will be reviewed
or acted upon, if the agency will be delayed in responding. In addition, agencies
should save resources by dismissing data correction requests that are frivolous,
duplicative of other requests, refer to issues that have been the subject of
prior complaints that have been resolved, or that occur after reasonable time
deadlines set for the submission of such claims.
Finally, the legislation is silent concerning whether someone who files a data
quality complaint with an agency can obtain judicial review if the agency rejects
that complaint. In the past, courts have generally refused to review information
disclosure because the release of information does not determine legal rights
or obligations, which is a prerequisite for judicial review under the Administrative
Procedure Act (APA). Now, however, judges may undertake judicial review of
data quality complaints because agency rejection of a complaint is a determination
of a legal right. CPR’s position is that judicial review of data quality issues
is inappropriate and unnecessary to ensure agency compliance with OMB’s directions.
Judicial review is inappropriate because Congress failed to establish concrete
standards under which such review could occur, which indicates that it did not
intend that review be available. In addition, judicial review of claims under
the Data Quality Act is inappropriate because there is no indication in this
rider that Congress intended to provide a private right of legal action. Moreover,
even if the courts find such standards exist, judicial review would be inappropriate
unless a corporation or other entity could demonstrate that there were directly
and immediately harmed by the agency’s action, which is unlikely in most cases.
Finally, Congress assigned OMB the responsibility for monitoring agency compliance
with the legislation, which indicates that judicial review is unnecessary to
ensure such compliance.
The dissemination of information is an important aspect of the government’s
efforts to reduce the risk of injury to individuals and to the environment.
In 2001, Congress passed a vague appropriations rider requiring OMB and agencies
to establish procedures to ensure the quality of information that the government
disseminates. Industry groups support an expansive interpretation of the rider
that is likely to slow down the dissemination of information or even eliminate
it in some cases. CPR supports efforts to ensure the high quality of information,
but this objective must be carefully balanced to take account of the impact
of data quality activities on an agency’s substantive mission and the role of
disseminated data in the implementation of that mission.