[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
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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.]

                                 
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