[Senate Report 118-284]
[From the U.S. Government Publishing Office]
Calendar No. 687
118th Congress} { Report
SENATE
2d Session } { 118-284
=====================================================================
INFORMATION QUALITY ASSURANCE ACT
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
H.R. 7219
TO ENSURE THAT FEDERAL AGENCIES RELY ON THE
BEST REASONABLY AVAILABLE SCIENTIFIC,
TECHNICAL, DEMOGRAPHIC, ECONOMIC, AND
STATISTICAL INFORMATION AND EVIDENCE TO DEVELOP,
ISSUE OR INFORM THE PUBLIC OF THE NATURE AND
BASES OF FEDERAL AGENCY RULES AND GUIDANCE, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 9, 2024.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2025
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Lena C. Chang, Director of Governmental Affairs
James F. Hiebert, Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 687
118th Congress} { Report
SENATE
2d Session } { 118-284
=====================================================================
INFORMATION QUALITY ASSURANCE ACT
_______
December 9, 2024.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 7219]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 7219) to ensure
that Federal agencies rely on the best reasonably available
scientific, technical, demographic, economic, and statistical
information and evidence to develop, issue or inform the public
of the nature and bases of Federal agency rules and guidance,
and for other purposes, having considered the same, reports
favorably thereon with an amendment, in the nature of a
substitute, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis of the Bill, as Reported.............5
V. Evaluation of Regulatory Impact..................................6
VI. Changes in Existing Law Made by the Bill, as Reported............6
I. Purpose and Summary
H.R. 7219, the Information Quality Assurance Act, amends
Section 35 of title 44, United States Code, to ensure that
federal agencies rely on the best reasonably available
information when developing rules and guidance. The Act
requires that the Office of Management and Budget (OMB) update
implementing guidance from the Information Quality Act (IQA) to
explicitly apply information quality requirements to rules and
guidance. The Act also requires that agencies publish critical
factual material relied upon during the rulemaking and guidance
development process in a publicly available docket.
II. Background and Need for the Legislation
The executive branch carries out the laws that Congress
passes by issuing rules, which legally bind the public, and
guidance, which informs the public about how the executive
branch operates.\1\ Ensuring that agency regulations and
guidance are based on the best reasonably available information
and science is fundamental to ensuring the quality, durability,
transparency, and public accountability of the federal
government's actions.\2\ Administrative law experts and
advocacy groups that span the political spectrum have
highlighted the need for quality and transparent information
during the rulemaking and guidance development processes.
Agencies' failure to explain and document their work is one of
the most common reasons their actions are vacated and remanded
in court under the Administrative Procedure Act (APA), the
statute which sets the broad procedural requirements for agency
rulemaking.\3\
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\1\5 U.S.C. Sec. 553.
\2\Administrative Conference of the United States, Science in the
Administrative Process, 78 Fed. Reg. 41357 (July 10, 2013)
(Recommendation 2013-3).
\3\Wendy Wagner, Science in Regulation: A Study of Agency
Decisionmaking Approaches, Administrative Conference of the United
States (Feb. 18, 2013).
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Congress has taken steps in the past to improve the quality
of agency information dissemination and decision-making, but
many existing requirements do not explicitly cover the process
of disseminating information during the rulemaking and guidance
development process. In 2000, Congress passed the Information
Quality Act (IQA) to direct federal agencies to create
guidelines to ensure the quality, objectivity, utility, and
integrity of information disseminated by federal agencies.\4\
The IQA also required that federal agencies create
administrative mechanisms for the public to request corrections
to disseminated agency information. The IQA does not explicitly
mention rulemaking or guidance development, and there is
disagreement among agencies and administrative law scholars
about whether and how the IQA requirements apply to
rulemaking.\5\
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\4\44 U.S.C. Sec. 3516 note (2012); enacted by Public Law No. 106-
554 Sec. 515.
\5\Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 6th
ed., American Bar Association, at 181-183 (2018).
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This bill resolves that ambiguity by requiring the Director
of OMB to issue guidance which explicitly applies the IQA to
information disseminated relating to rules and guidance.
Consistent with existing implementing guidance under the IQA,
agencies are to rely on the best reasonably available
information that is fit-for-purpose when such information is
influential in informing policy decision-making.\6\ In this
context, fitness for purpose is meant to indicate that the best
reasonably available information may depend upon its potential
influence on policy decision-making, because the production of
higher quality information comes with higher costs. Similarly,
consistent with the IQA, this bill creates no new legal rights
or opportunities for judicial review.\7\
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\6\Office of Management and Budget, Improving Implementation of the
Information Quality Act, (M-19-15) (Apr. 24, 2019) (https://
www.cdo.gov/assets/documents/OMB-Improving-Implementation-of-Info-
Quality-Act-M-19-15.pdf).
\7\Mississippi Commission on Environmental Quality v. EPA, 790 F.3d
138, 184 (D.C. Cir. 2015) (holding ``almost every court that has
addressed an Information Quality Act challenge has held that the
statute `creates no legal rights in any third parties.''')
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Congress has also not explicitly addressed what information
agencies must make public as part of an administrative record
during the rulemaking and guidance development process. The APA
currently requires agencies to give notice of ``either the
terms or substance of the proposed rule or a description of the
subjects and issues involved.''\8\ The U.S. Court of Appeals
for the D.C. Circuit has notably interpreted this provision of
the APA to require agencies to disclose the factual basis for a
proposed rule.\9\ While this doctrine is widely-recognized by
most courts, the doctrine is not explicitly required by the
text of the APA, it has never been formally recognized by the
Supreme Court, and it has occasionally been called into
question by other courts.\10\ In 2016, the Section on
Administrative Law and Regulatory Practice of the American Bar
Association (ABA) recommended that Congress codify the
requirement that ``agencies provide public notice of, and
access to, all data, studies, and other information considered
or used by the agency in connection with its determination to
propose the rule that is not protected from disclosure.''\11\
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\8\5 U.S.C. Sec. 553(b)(3).
\9\Am. Radio Relay League v. FCC, 524 F.3d 227 (D.C. Cir. 2008);
Owner-Operator Independent Drivers Association v. FMCSA, 494 F.3d 188
(D.C. Cir. 2007); Portland Cement Association v. Ruckelshaus, 486 F.2d
375 (D.C. Cir. 1973); Chamber of Commerce v. SEC, 443 F.3d 890 (D.C.
Cir. 2006); AISI v. OSHA, 939 F.2d 975 (D.C. Cir. 1991); AMA v. Reno,
57 F.3d 1129 (D.C. Cir. 1995); Shands Jacksonville Med. Ctr. v.
Burwell, 139 F. Supp. 3d 240 (D.D.C. 2015).
\10\See Am. Radio Relay League v. FCC, 524 F.3d 227, 245-47 (D.C.
Cir. 2008) (Kavanaugh, J., concurring and dissenting); AARP v. EEOC,
489 F.3d 558, 567 (3d Cir. 2007).
\11\American Bar Association, House of Delegates Resolution 106B
(Feb. 8, 2016).
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This bill responds to the ABA recommendation by requiring
that agencies disclose or publish all critical factual material
relied upon during the rulemaking and guidance development
process. The bill also requires that agencies provide a
citation to any other source used to inform the rulemaking or
guidance development process. The term ``critical factual
material'' is meant to indicate all information which would
significantly affect the agency's decision, or if not disclosed
would affect the public's ability to effectively weigh in on
rulemaking or guidance development. This term in principle
matches the types of supporting materials required to be
disclosed under case law from the D.C. Circuit Court, and
includes, but is not limited to, reports, technical studies,
underlying data, methodologies, models, assumptions, budgetary
analysis, and actuarial materials, whether created by agency
staff or consultants.\12\
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\12\See cases at supra 9.
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Disclosure of critical factual material during the
rulemaking and guidance development process is meant to provide
the public an opportunity during the notice and comment process
to point out both cases when an agency disseminates erroneous
information itself and cases when an agency misapplies
otherwise accurate information. These disclosure requirements
apply to guidance documents with public administrative records,
and the bill does not intend to require that agencies create
public administrative records for guidance documents where such
public administrative records would not otherwise exist.\13\
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\13\For an example of a guidance document with a public
administrative record, see Centers for Medicare & Medicaid Services,
Inflation Reduction Act (IRA) Medicare Drug Price Negotiation Program
Draft Guidance; Comment Request, 89 Fed. Reg. 37229 (May 6, 2024).
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The bill seeks to maximize the public disclosure of
critical factual material while allowing agencies to take
certain reasonable steps to balance privacy, feasibility, and
intellectual property concerns raised by information
publication. Section 3522(c)(2)(A) of the bill requires that
critical factual material be published to the maximum extent
consistent with the Freedom of Information Act, the Privacy
Act, copyright law, or any other relevant statute which would
affect or limit publication. This section also requires that
critical factual material be published to the maximum extent
feasible, considering costs to the government, which is meant
to address circumstances like those where posting a full
dataset or study would require prohibitively large data-hosting
costs or licensing fees.
If publication does raise privacy, feasibility, or
intellectual property concerns, the bill directs agencies to
disclose and describe the basis for such concerns and to take
steps to maximize public access to the information in ways that
respond to the respective concern. For example, if publication
of a dataset relied upon during rulemaking would raise concerns
under the Privacy Act, the agency must describe the privacy
concerns and then may employ privacy-enhancing technologies
like data redaction techniques or differential privacy
practices to respond to such concerns.
If critical factual material is produced by an entity
outside of the government and requires license to access (for
example, a study was conducted by a researcher at a university
and published in an academic journal), agencies may provide
citations to or descriptions of the material. The bill is not
intended to require the full licensing and publication in an
administrative record of critical factual material which was
created by an entity outside the government.
III. Legislative History
Representative Lisa McClain (R-MI-9) introduced H.R. 7219,
the Information Quality Assurance Act, on February 5, 2024,
with original cosponsor Representative Katie Porter (D-CA-47).
The bill was referred to the House Committee on Oversight and
Accountability and the House Committee on the Judiciary. The
Committee on Oversight and Accountability considered H.R. 7219
at a meeting on February 6, 2024 and ordered it reported to the
House with an amendment, by a roll call vote of 41 yeas to 0
nays. The Committee on the Judiciary discharged the bill on
April 29, 2024. The House of Representatives considered H.R.
7219 on May 6, 2024, under suspension of the rules, and passed
the bill by a vote of 377 yeas to 4 nays.
The bill was referred to the Senate Committee on Homeland
Security and Governmental Affairs. The committee considered
H.R. 7219 at a business meeting on September 18, 2024. At the
business meeting, Senator Peters offered a substitute amendment
to the bill as well as a modification to the substitute
amendment. The Peters substitute amendment, as modified,
clarified the standard for information quality in the bill to
reflect that the best reasonably available information must be
fit for purpose, and changed the disclosure requirements for
information during the rulemaking and guidance process to
broaden what should be disclosed and when to provide citations
instead of original documents. The substitute amendment, as
modified, also clarified that the bill's requirements for
guidance documents apply only to guidance documents with public
administrative records, clarified that the bill creates no
additional opportunities or legal rights for judicial review
during the rulemaking process, and indicated that no new funds
are authorized to be appropriated to carry out the purposes of
the Act. The Committee adopted the modification to the Peters
substitute amendment, and the Peters substitute amendment as
modified, by unanimous consent, with Senators Peters, Hassan,
Sinema, Rosen, Ossoff, Blumenthal, Butler, Paul, Lankford,
Romney, Scott, and Marshall present. The bill, as amended by
the Peters substitute amendment as modified, was ordered
reported favorably by roll call vote of 12 yeas to 1 nay, with
Senators Peters, Hassan, Sinema, Rosen, Ossoff, Blumenthal,
Butler, Lankford, Romney, Scott, Hawley, and Marshall voting in
the affirmative, and Senator Paul voting in the negative.
Senators Carper and Johnson voted yea by proxy, for the record
only.
Consistent with Committee Rule 3(G), the Committee reports
the bill with a technical amendment by mutual agreement of the
Chairman and Ranking Member.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Information Quality Assurance Act.''
Section 2. Information quality assurance
Subsection (a) adds five new subsections to Subchapter 1 of
chapter 35 of Title 44, United States Code, as follows:
Section 3522(a)(1) requires the Director of OMB to
update guidelines issued under the Information Quality
Act (IQA) to improve information quality related to
rules and guidance and requires that the guidance be
consistent with other laws on information quality.
Section 3522(a)(2) requires that the guidance be
posted on the website of the OMB.
Section 3522(b)(1) requires that the updated guidance
direct agencies to use the best reasonably available
information that is fit for purpose when developing
rules and guidance.
Section 3522(b)(2) directs that this guidance be
available online.
Section 3522(b)(3) requires that agencies make
available the administrative correction mechanism for
information quality from the IQA, for information
relating to rules and guidance.
Section 3522(b)(4) specifies that agencies must
report on the number of information correction requests
under the IQA relating to rules and guidance.
Section 3522(c)(1) requires the Director of OMB to
issue guidance to direct agencies to make any critical
factual material for rules and guidance, as well as any
relevant citations to other materials, available in the
public administrative record as soon as reasonably
possible. This guidance may be included in the same
guidance required in 3522(a). Additionally, an agency
must provide notice in the relevant public
administrative record if it revises information that it
relies on during the rulemaking or guidance development
process.
Section 3522(c)(2)(A) requires that the OMB guidance
direct agencies to publish critical factual material in
public administrative records in ways that are
consistent with the Freedom of Information Act, the
Privacy Act, and copyright law. Additionally, the
guidance must require that agencies publish information
to the maximum extent feasible, considering costs to
the government. Finally, the OMB guidance must allow
agencies to exempt critical factual material if it is
inconsistent with other statutes which specifically
would limit disclosure.
Section 3522(c)(2)(B) requires that if critical
factual material is exempted from public disclosure
under 3522(c)(2)(A), then an agency explain why the
information is not public and steps the agency is
taking to increase access to the information.
Section 3522(c)(3)(A) requires that agencies make
critical factual material available as an open
government data asset.
Section 3522(c)(3)(B) directs that if critical
factual material is exempted from public disclosure
under 3522(c)(2)(A), then an agency may take steps to
maximize access to public information, make the
information available by citation or description, or
describe how a member of the public may obtain the
information from the entity which controls access
rights to the information.
Section 3522(d) clarifies that nothing in the act
creates new rights to judicial review or creates any
new rights under the Administrative Procedure Act.
Section 3522(e) provides definitions for ``evidence''
and ``the Information Quality Act.''
Subsection (b) amends the table of sections for subchapter
I of chapter 35 of title 44.
Subsection (c) specifies that no additional funds are
authorized to be appropriated to carry out this Act or the
amendments made by it.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
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TITLE 44--PUBLIC PRINTING AND DOCUMENTS
* * * * * * *
CHAPTER 35--COORDINATION OF FEDERAL INFORMATION POLICY
* * * * * * *
SUBCHAPTER I--FEDERAL INFORMATION POLICY
Table of sections
Sec.
3501. Purposes.
3502. Definitions.
3503. Office of Information and Regulatory Affairs.
3504. Authority and functions of Director.
3505. Assignment of tasks and deadlines.
3506. Federal agency responsibilities.
3507. Public information collection activities; submission to Director;
approval and delegation.
3508. Determination of necessity for information; hearing.
3509. Designation of central collection agency.
3510. Cooperation of agencies in making information available.
3511. Data inventory and Federal data catalogue.
3512. Public protection.
3513. Director review of agency activities; reporting; agency response.
3514. Responsiveness to Congress.
3515. Administrative powers.
3516. Rules and regulations.
3517. Consultation with other agencies and the public.
3518. Effect on existing laws and regulations.
3519. Access to information.
3520. Chief Data Officers.
3520A. Chief Data Officer Council.
3521. Authorization of appropriations.
3522. Information Quality Assurance.
* * * * * * *
Subchapter I--Federal Information Policy
* * * * * * *
3522. INFORMATION QUALITY ASSURANCE.
(a) In general.--Not later than 1 year after the date of
the enactment of the Information Quality Assurance Act, the
Director shall--
(1) update the guidelines issued under subsection (a)
of section 515 of the Consolidated Appropriations Act,
2001 (commonly known as the `Information Quality Act')
(Public Law 106-554; 114 Stat. 2763A-153)--
(A) to provide policy and procedural guidance
to the heads of Federal agencies for better
ensuring and maximizing the quality,
objectivity, utility, and integrity of
influential information or evidence--
(i) used by the heads of Federal
agencies to develop or issue rules and
guidance made available to the public;
or
(ii) disseminated to the public to
inform the public about the nature and
bases of such rules and guidance; and
(B) in a manner consistent with--
(i) this chapter; and
(ii) the amendments made by the
Foundations for Evidence-Based
Policymaking Act of 2018 (Public Law
115-435; 132 Stat. 5529); and
(2) make the guidelines updated under paragraph (1)
available on the website of the Office of Management
and Budget.
(b) Content of Guidelines.--In updating the guidelines
under subsection (a), the Director shall require that the head
of each Federal agency to which the guidelines apply, not later
than 1 year after the Director updates such guidelines--
(1) update any guidelines issued by the head of the
Federal agency under the Information Quality Act to
ensure that, in the case of influential information or
evidence, the best reasonably available information and
evidence that is fit-for-purpose is relied on in
developing, issuing, or informing the public about the
rules and guidance of the Federal agency;
(2) publish the guidelines updated by the head of the
Federal agency under paragraph (1) on the website of
the Federal agency;
(3) ensure the administrative mechanisms established
under subparagraph (B) of subsection (b)(2) of the
Information Quality Act are made available, as
applicable, with respect to seeking and obtaining the
correction of any influential information or evidence
disseminated by agencies that the Federal agency uses
to develop or issue a rule or guidance made available
to the public, or to inform the public of the nature
and basis of any rule or guidance of the Federal
agency, that does not comply with the guidelines issued
under paragraph (1); and
(4) include in the report required under subparagraph
(C) of subsection (b)(2) of the Information Quality Act
the information described under that subparagraph with
respect to any complaints received by the Federal
agency related to the accuracy of influential
information or evidence the Federal agency uses to
develop, issue, or inform the public of the nature and
bases of rules or guidance.
(c) Public Disclosure.--
(1) Availability.--
(A) In general.--Not later than 1 year after
the date of enactment of this section, the
Director shall issue guidance, which may be
included in the guidelines updated under
subsection (a), that directs the head of the
Federal agency to make available, except as
provided under paragraph (2), in the docket for
the rulemaking of any rule of the Federal
agency, or in the public administrative record
for any guidance--
(i) the critical factual material
upon which the head of the Federal
agency relied as part of the rulemaking
or guidance development process; and
(ii) a citation to any other source
used to inform the rulemaking or
guidance development process.
(B) Process.--
(i) In general.--Except as provided
under clause (ii), the guidance
required under subparagraph (A) shall
direct an agency to make available the
information that must be made available
under that subparagraph as soon as
reasonably possible before, but at a
minimum at, the time that the Federal
agency promulgates a rule or issues
guidance.
(ii) Notice and comment.--If a
Federal agency engages in notice and
comment rulemaking under section 553 of
title 5 or provides for public notice
and an opportunity to comment on
proposed guidance, the guidance
required under subparagraph (A) shall
direct the Federal agency to provide
notice and an opportunity to comment on
the critical factual material upon
which the head of the Federal agency
relied.
(C) Revisions.--If the critical factual
material under subparagraph (A)(i) is revised
in a manner that may materially affect the
rulemaking or guidance after the public is
given notice and an opportunity to comment
pursuant to subparagraph (B)(ii), but before
the rule or guidance is published, the head of
the Federal agency shall make the revision
available in the docket for the rulemaking or
in the applicable administrative record for the
guidance in a timely manner.
(2) Exception.--
(A) In general.--The guidance under paragraph
(1) shall direct the head of the Federal
agency--
(i) to implement paragraph (1),
consistent with this chapter, sections
552 and 552a of title 5, and any rights
under titles 17 and 35;
(ii) to implement paragraph (1) to
the maximum extent feasible,
considering costs to the Federal
Government; and
(iii) in implementing paragraph (1),
to not make available in the docket for
the rulemaking of any rule of the
Federal agency, or in the public
administrative record for any guidance,
as applicable, information that is
prohibited from being disclosed to the
public under any statute.
(B) Explanation to be included in docket or
administrative record.--If the head of the
Federal agency does not make critical factual
material available under paragraph (1), subject
to subparagraph (A) of this paragraph, the head
of the Federal agency shall include in the
docket for the rulemaking or the public
administrative record, if applicable, for the
guidance--
(i) an explanation as to why such
information cannot be made publicly
available; and
(ii) a description of any steps being
taken to increase access to such
information, even if the information
cannot be made public.
(3) Format of critical factual material.--
(A) In general.--Subject to paragraph (2) and
subparagraph (B), the head of each Federal
agency shall make available any critical
factual material required to be made available
under paragraph (1)(A) as an open Government
data asset.
(B) Exception.--If an exception under
paragraph (2)(A) applies, the head of a Federal
agency may--
(i) maximize public access to the
critical factual material to the extent
permitted by law;
(ii) make the critical factual
material available by citation or
description; and
(iii) place in the docket for the
rulemaking or the administrative record
for the guidance a specification of the
identity of the entity that holds a
legal right to prohibit or limit
reproduction, distribution, or public
display of the information and the
means by which a member of the public
may request to obtain a full copy of
the information from such holder.
(d) Limitation on Judicial Review.--Nothing in this section
shall be construed to authorize rights to judicial review,
other than to those rights in existence on the day before the
date of enactment of the Information Quality Assurance Act, or
create any additional rights under chapter 5 or 7 of title 5
(commonly referred to as the `Administrative Procedure Act').
(e) Definitions.--In this section:
(1) Evidence.--The term `evidence' has the meaning
given that term in section 3561.
(2) Information quality act.--The term `Information
Quality Act' means section 515 of the Treasury and
General Government Appropriations Act, 2001 (Public Law
106-554).
* * * * * * *
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