[Federal Register Volume 67, Number 195 (Tuesday, October 8, 2002)]
[Notices]
[Pages 62685-62695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25340]
[[Page 62685]]
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DEPARTMENT OF COMMERCE
Office of the Secretary
[Docket No. 020430099-2226-02]
RIN 0690-XX07
Guidelines for Ensuring and Maximizing the Quality, Objectivity,
Utility, and Integrity of Disseminated Information
AGENCY: Department of Commerce.
ACTION: Notice.
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SUMMARY: Section 515 of Public Law 106-554, the Treasury and General
Government Appropriations Act for Fiscal Year 2001, directs the Office
of Management and Budget (OMB) to issue government-wide guidelines that
``provide policy and procedural guidance to Federal agencies for
ensuring and maximizing the quality, objectivity, utility, and
integrity of information (including statistical information)
disseminated by Federal agencies.'' The OMB guidelines require that
agencies subject to the OMB guidelines must establish administrative
mechanisms allowing affected persons to seek and obtain correction of
information maintained and disseminated by the agency that does not
comply with the OMB guidelines or the agency guidelines. The OMB final
guidelines were published in the Federal Register on February 22, 2002.
Those guidelines direct that, by October 1, 2002, agencies publish
their information quality guidelines.
The Department of Commerce published its draft guidelines for
ensuring and maximizing the quality, objectivity, utility, and
integrity of disseminated information on its Internet Web site on May
1, 2002 and in the Federal Register on May 3, 2002 (67 FR 22398). The
Department of Commerce's response to the comments received is included
in the SUPPLEMENTARY INFORMATION section of this document.
This document implements section 515 for the Department of Commerce
and defines the Department of Commerce's information quality
guidelines. It may be revised periodically, based on experience,
evolving requirements in the Department of Commerce, and concerns
expressed by the public.
ADDRESSES: Correspondence should be sent to Thomas N. Pyke, Jr., Chief
Information Officer, Department of Commerce, 14th St. and Constitution
Ave. NW, Room 5029B, Washington, DC 20230. Send e-mail to
[email protected]. Department of Commerce operating units will
publish their information quality standards on the Web sites listed in
the SUPPLEMENTARY INFORMATION section of this document. Correspondence
on the operating unit standards should be addressed directly to the
contact noted in the operating unit standards.
FOR FURTHER INFORMATION CONTACT: Diana H. Hynek, Office of the Chief
Information Officer, Department of Commerce, 14th St. and Constitution
Ave. NW., Room 6625, Washington, DC 20230. Telephone (202) 482-0266 or
by e-mail to [email protected].
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of Commerce (``Commerce'' or ``Department'') is
one of the most diverse Federal departments, both in terms of its
mission and the information it provides to the public. We are
responsible for daily weather reporting, facilitating the use of
technology both at home and in the workplace, collecting statistics
that assist the public and private sector, and supporting the
environmental and economic health of U.S. communities. Our mission is
to promote job creation and improve living standards for all Americans
by creating an infrastructure that encourages economic growth,
technological competitiveness, and sustainable development,
conservation, and wise use of living marine resources.
To carry out this mission, three strategic goals have been
identified. They are to provide the information and the framework to
enable the economy to operate efficiently and equitably; provide the
infrastructure for innovation to enhance U.S. competitiveness; and
observe and manage the Earth's environment to promote sustainable
growth.
Commerce provides the basic economic data necessary to develop
sound business decisions, producing many of the commonly used economic
statistics issued by the U.S. Government. The Department also produces
information designed to encourage the use of science and technology in
the production of consumer goods and services.
Commerce plays an important role in the nation's global business
development. The Department develops and disseminates foreign market
research and international trade opportunities through its offices in
the United States and in 83 foreign countries. Commerce also monitors
and enforces compliance with U.S. trade laws and agreements, and
defends American firms from injurious foreign business practices by
administering U.S. antidumping and countervailing duty laws.
The oceanic and atmospheric programs at Commerce improve the
understanding and rational use of the natural environment to further
the Nation's safety, welfare, security, and commerce. These
responsibilities include predicting the weather, charting the seas, and
protecting the oceans and coastal areas.
Domestically, Commerce's programs promote long-term business
enterprises that create jobs for minority groups and in underdeveloped
areas across the United States. These programs are supported by
reports, publications, projections, and business expertise. The
Department provides services to citizens and private business as well
as to state, local, and tribal governments.
Commerce Commitment to Information Quality
Given the broad responsibilities of the Commerce Department in
scientific, technical, and statistical information, Commerce welcomes
the opportunity provided by the issuance of the Office of Management
and Budget information quality guidelines to demonstrate our thorough
and professional approach to information release.
Our goal is to ensure and maximize the quality of the information
we release to the public. We are committed to making the methods,
models, and processes that produce our information transparent and
rigorous. At the Commerce Department, we have a long tradition of
producing relevant, credible, high quality information to the public at
large, the academic community, and the private sector.
We believe that we uphold a high standard regarding information
quality through the use of quality control procedures for statistical
data collection and processing. The 2000 decennial census, conducted by
the Census Bureau, was the most accurate census in the history of the
Nation. Commerce has made significant strides in redesigning the
national income and product accounts by improving the conceptual
foundation and incorporating new estimating methods and other
statistical improvements. Our scientific research incorporates both
internal and external peer review as appropriate. The Department boasts
two Nobel Prize winners in science. We operate supercomputers that rank
in the Nation's top ten in processing power. These powerful computers
allow us a high degree of model resolution that increases the number of
data points
[[Page 62686]]
used to improve the accuracy of weather forecasts.
In summary, these Commerce guidelines are a continuation of our
commitment to information quality. We have a proven track record in
producing high quality information and welcome the opportunity to
present our information quality guidelines.
Guidelines for Ensuring and Maximizing the Quality, Objectivity,
Utility, and Integrity of Information Disseminated by the Department of
Commerce and Its Operating Units
Because of the diversity of Commerce's mission, we have taken a
distributed approach to preparing our information quality guidelines.
Outlined below are the responsibilities of the Department of Commerce
and the responsibilities of the individual operating units of the
Department.
I. Department of Commerce Responsibilities
The Department of Commerce Chief Information Officer (CIO) will
prepare and submit reports annually to the Director of the Office of
Management and Budget (OMB) regarding the number and nature of
complaints received by the Department of Commerce regarding Department
compliance with the OMB guidelines concerning the quality, objectivity,
utility, and integrity of information and how such complaints were
resolved, as required by section 515 of the Treasury and General
Government Appropriations Act for FY 2001 (Public Law 106-554) and the
OMB Guidelines.
II. Operating Unit Responsibilities
The operating units of the Department are organizational entities
outside the Office of the Secretary charged with carrying out specified
substantive functions (i.e., programs) of the Department. For purposes
of this document, operating unit responsibilities will apply to the
Office of the Secretary also.
1. By October 1, 2002, document and make available to the public
information quality standards that address the requirements of quality,
objectivity, utility, and integrity for all non-exempt information
disseminated by the operating unit.
2. By October 1, 2002, establish administrative mechanisms allowing
affected persons to seek and obtain correction of information
maintained and disseminated by the operating unit on or after October
1, 2002, that does not comply with these Department guidelines and the
OMB guidelines.
The operating unit will respond to all initial requests within 60
calendar days of receipt. If the request requires more than 60 calendar
days to resolve, the operating unit will inform the complainant that
more time is required and indicate the reason why and an estimated
decision date. The operating unit will respond to all requests for
appeals within 60 calendar days of receipt. If the request requires
more than 60 calendar days to resolve, the operating unit will inform
the complainant that more time is required and indicate the reason why
and an estimated decision date.
In cases where the operating unit disseminates a study, analysis,
or other information prior to the final operating unit action or
information product, requests for correction will be considered prior
to the final operating unit action or information product in those
cases where the operating unit has determined that an earlier response
would not unduly delay issuance of the operating unit action or
information product and the complainant has shown a reasonable
likelihood of suffering actual harm from the operating unit's
dissemination if the operating unit does not resolve the complaint
prior to the final operating unit action or information product.
Note: The guidelines addressed in items 1 and 2 cover
information disseminated on or after October 1, 2002, regardless of
when the information was first disseminated, except that pre-
dissemination review procedures shall apply only to information
first disseminated on or after October 1, 2002. Covered information
disseminated will comply with all applicable OMB Information Quality
Guidelines as well as these Department of Commerce Information
Quality Guidelines.
3. Beginning on October 1, 2002, demonstrate in the operating
unit's Paperwork Reduction Act (PRA) submissions to OMB the ``practical
utility'' of a proposed collection of information that the operating
unit plans to disseminate. Additionally, for all proposed collections
of information that will be disseminated to the public, demonstrate in
the operating unit's PRA clearance submissions to OMB that the proposed
collection of information will result in information that will be
collected, maintained, and used in a way consistent with applicable
information quality guidelines.
4. Assist the Department CIO in the preparation of annual reports
to OMB by providing information requested by the Department CIO.
Response to Comments
The Department and its operating units received eleven responses to
the request for comments. Four responses were received from public
interest groups; one was from a voluntary professional association; two
were from a for-profit corporation; and four were from industry
associations. Some of the comments contained in the submissions were
addressed either to the entire Federal government or to agencies other
than the Department. In this notice, the Department is responding only
to comments relevant to its applicable information quality standards.
In addition, the Department has received further guidance from OMB (OMB
guidance, June 10) on the development of information quality
guidelines, which helps the Department respond to some of the comments.
A detailed analysis of the comments, and the Department's response
based on both the comments and the OMB guidance, follows.
General
Comment: Some commenters suggested that the Department and its
operating units should view information quality as a ``performance
goal.'' One of these commenters requested, in particular, that the
National Oceanic and Atmospheric Administration (NOAA) list the names
of the component offices (e.g., National Marine Fisheries Service,
National Weather Service, etc.) that will be subject to the guidelines.
Response: In keeping with the guidance provided by OMB, the
Department views its information quality guidelines as performance
standards. NOAA's information quality guidelines apply to all its line
(component) offices.
Comment: Some commenters suggested that the Department provide
additional, subsequent opportunity in the future for further public
comment on the guidelines after publication on October 1, 2002. These
commenters noted that the Department's guidelines lack a centralized
focus and commitment to implementation of the new information quality
and oversight system and administrative correction mechanisms. These
commenters stated that the Department must establish a complete,
centrally focused and harmonized information correction system.
Response: Pursuant to public request, the Department extended for
30 days the period for public comments on its draft guidelines. While
the Department would like to gather additional public input, further
extension of the public
[[Page 62687]]
comment period, or a further round of comments, is not possible due to
the statute's October 1, 2002, deadline for implementation of the
Department's information quality guidelines.
Comment: Some commenters noted that the Department's guidelines
lack a centralized focus and commitment to implementation of the new
information quality and oversight system and administrative correction
mechanisms. These commenters stated that the Department must establish
a complete, centrally focused and harmonized information correction
system.
Response: As to adopting a single, central information correction
system, the Department's guidelines reflect the reality of the broad
scope of the Department's mandate, from conducting each decennial
census to forecasting the weather. In keeping with the first principle
stated by OMB in its own guidance to federal agencies, a one-size-fits-
all approach is not effective (67 FR at 8452). Were the Department or
some of its component operating units (OUs) to attempt to apply a
single centralized standard, it would necessarily be far less
specific--and less effective as a performance standard--than the
approach taken.
Comment: Several commenters urged the Department to establish a
permanent, dedicated area on its Web site where all documents, notices
of existing challenges to disseminated data, resolutions of those
challenges, uncorrected information found wanting, and other items
related to guidelines can be disseminated.
Response: The Department and its OUs will publish the information
quality guidelines as well as other appropriate information on their
respective Web sites for public use.
Comment: Some of the commenters pointed out that the guidelines
fail to require that the dissemination of the corrected data will be
accomplished in a manner equal to the dissemination of and proportional
to the significance and importance of the original data.
Response: The form of corrective action will be determined by the
nature and timeliness of the information involved and such factors as
the significance of the error on the use of the information and the
magnitude of the error.
Comment: Some commenters suggested that the Department's guidelines
have not proposed complete, functional, and responsible administrative
review mechanisms that will afford affected parties meaningful
opportunity to ensure data quality and obtain timely correction of
flawed information.
Response: OMB notes that under its guidelines ``agencies need only
ensure that their own guidelines are consistent with * * * OMB
guidelines, and then ensure that their administrative mechanisms
satisfy the standards and procedural requirements in the new agency
guidelines.'' (67 FR at 8453). In keeping with this directive, the
administrative review mechanisms adopted by the Department's OUs are
designed to ensure a fair opportunity to seek and obtain correction of
information that does not comply with applicable guidelines.
Comment: Some commenters urged a clear statement in the guidelines
that these mechanisms are available for challenges based on alleged
non-conformance with the OMB or the Department's guidelines.
Response: Administrative mechanisms are provided for appropriate
challenges based on all applicable guidelines.
Comment: One commenter urged the Department to make every effort to
clearly assert that the guidelines are not judicially reviewable and
that the Department is not legally bound by the guidelines and has the
right to depart from them when appropriate.
Response: The Department takes the mandate of Section 515 seriously
and has published information quality guidelines and standards designed
to ensure and maximize the quality of information that it disseminates
and will comply with those guidelines and standards. The Department
notes that the guidelines are not intended to provide any right to
judicial review.
Comment: One commenter suggested that the Department state that
public access to information is a central government responsibility
that the agency will uphold and that the guidelines should not impose
unnecessary administrative burdens that would inhibit agencies from
continuing to disseminate information that can be of great benefit and
value to the public. The commenter suggested that the Department should
look to Section 515 itself to determine the scope and components that
are required to be in the guidelines. This commenter also stated that
Section 515 should be reviewed as a clarification of the Paperwork
Reduction Act (PRA) and that the Department should state that
``quality'' is only one factor to consider. The commenter stated that
the agency must answer to its core substantive mission, operate within
budgetary constraints, and consider the benefits of timely
dissemination.
Response: The Department agrees that public access to information
is a central government responsibility and intends to apply its
information quality guidelines in ways conducive to wide dissemination
of information that is of benefit and value to the public. The
Department agrees that nothing in Section 515 is intended to diminish
or interfere with the Department's core substantive mission and
activities, or its ability to operate within budgetary constraints to
timely disseminate beneficial information to the public.
Comment: One commenter urged the Department to provide appropriate
policy direction to its operating units regarding the data quality
standards and pre-dissemination review procedures to ensure that the
OMB information quality standards will be met.
Response: Such policy direction has been an integral part of the
Department's implementation of OMB's guidelines.
Comment: Some commenters noted that the Department should provide
effective procedures for the timely correction of information
determined to be flawed and for appropriate prohibitions on further use
and dissemination of such information until it is corrected.
Response: In keeping with OMB's directive, the administrative
review mechanisms adopted by the Department's OUs are designed to
ensure a fair opportunity to seek and obtain correction of information
that does not comply with applicable guidelines. In any given instance,
the form of corrective action will be determined by the nature and
timeliness of the information involved and factors including, but not
limited to, the significance of the error on the use of the information
and the magnitude of the error.
Comment: Some commenters noted that the Department should revise
its draft guidelines to address the open issues, eliminate (or
carefully circumscribe and narrow) the proposed exemptions and
limitations, and set forth a complete, centrally focused data
correction scheme for the Department that implements new information
quality and oversight systems and the full administrative correction
mechanisms contemplated by Congress and OMB. The commenters stated that
the changes should include the specific measures recommended herein.
Response: The OMB guidelines clearly state that agencies should
incorporate the standards and procedures required by OMB's ``guidelines
into their existing information resources management and administrative
practices rather than create new and potentially duplicative
[[Page 62688]]
or contradictory processes.'' (67 FR at 8453)
Scope
Comment: Several commenters stated that the Department should
revise the ``Scope'' sentence to read: ``These guidelines cover
information disseminated (as defined in the OMB Guidelines) by the
Department on or after October 1, 2002, regardless of when the
information was first disseminated.''
Response: The Department has clarified that it is the pre-
dissemination review procedures that will apply only to information
first disseminated on or after October 1, 2002. The Scope section now
clearly states that the pre-dissemination review requirement applies to
information that the agency first disseminates on or after October 1,
2002, and that the administrative correction mechanisms apply to
information that the agency disseminates on or after October 1, 2002,
regardless of when the agency first disseminated the information. This
language is consistent with OMB's guidance to federal agencies.
Information Not Covered by the Department's Guidelines
Comment: Some commenters expressed concerns about the Department's
exemption of certain information from the guidelines. Some of these
commenters suggested that the exemptions be ``eliminated or narrowly
circumscribed'' to prevent undermining the mandate of the Act. One
commenter objected to OMB's creation of exemptions not authorized by
Section 515 and the inconsistency between OMB's ``dissemination''
exemptions in its Section 515 guidelines with OMB's broader definition
of ``dissemination'' in implementing the PRA. This commenter also
objected to additional exemptions proposed by federal agencies. One
commenter noted that OMB exempts some types and categories of
information from the guidelines and argues that neither OMB nor the
agencies has legal authority to exempt ``any information that an agency
has in fact made public.'' This commenter further objected to agency
inclusion of OMB exemptions and to any agency interpretations, changes,
or exemptions that differ from OMB's.
Response: The Department is implementing the guidance (guidelines
and June 10 supplemental information) developed by OMB. Comments
raising concerns with the OMB guidelines are outside the scope of the
Department's actions. The Department has clarified that the exemption
for press releases only applies to press releases themselves and not to
any background information on which the press release is based. The
Department and its OUs did not create exemptions in addition to those
outlined by OMB.
Comment: Two commenters noted that Section 515 lists no exceptions
to information disseminated by an agency and, therefore, the Department
should not attempt to restrict coverage by narrowing the
classifications of information covered. The commenters believe that all
information disseminated by the Department should be covered by the
guidelines, including information ``initiated or sponsored'' by the
Department and third party information that the Department disseminates
in a manner that reasonably suggests that the agency agrees with the
information. The commenters suggested that the Department should
include ``information contained in rulemaking dockets'' among the
classes of information covered.
Response: The Department notes that the information not covered by
the guidelines includes information that is not ``disseminated'' to the
public by the Department (such as intra- or inter-agency information or
responses to requests through FOIA, the Privacy Act, etc.) and
information that is already public (such as press releases, public
filings, etc.). The Department also points out that all ``information''
``disseminated''--as those terms are defined by OMB--by the Department
is covered by these guidelines, including third party information. In
addition, OMB exempted some types and categories of information within
the statutory directive to ``provide policy and procedural guidance to
Federal agencies for ensuring and maximizing the quality, objectivity,
utility, and integrity of information.'' The Department has no control
over the quality of information submitted to the agency during a
rulemaking. However, any such information on which the Department might
rely would be subject to the guidelines' provisions on third party
information.
Comment: Several commenters suggested that these exemptions,
especially, but not limited to, those covering adjudicatory proceedings
and notice and comment-type proposed action, may undermine the mandate
of Section 515. The commenters suggested that information dissemination
as part of a proposed rule or proposed NRDAR plan not be excluded from
the application of the guidelines. However, another commenter stated
that the rulemaking process affords adequate procedures and
opportunities for questioning and correcting information and that data
disseminated from a rulemaking process should not be eligible for
dispute under the information quality administrative mechanism.
Response: Regarding the commenters' suggestion that the Department
include adjudicatory proceedings within the coverage of the guidelines,
the Department notes that in the preamble to the OMB guidelines, OMB
stated:
There are well-established procedural safeguards and rights to
address the quality of adjudicatory decisions and to provide persons
with an opportunity to contest decisions. These guidelines do not
impose any additional requirements on agencies during adjudicative
proceedings and do not provide parties to such adjudicative
proceedings any additional rights of challenge or appeal (67 FR at
8454).
The Department agrees with this reasoning and has, therefore,
retained the exemption for adjudicatory processes.
The Department's guidelines, including those of all the OUs, do not
exempt information included in a rulemaking. However, the guidelines
maintain the integrity of the rulemaking process by addressing requests
for correction in a way that does not disrupt that process. This is in
keeping with OMB's frequent reiteration, in its guidance, that
disruption of existing processes is neither contemplated nor desired.
Further, the Department notes that the commenters may have
misunderstood the language in its draft guidelines concerning such
actions. Informal and formal rulemakings and Natural Resource Damage
Assessment and Restoration Plans (NRDAR Plans) are subject to these
guidelines. As such, the information quality standards remain
applicable to information disseminated as part of a proposed rule or a
proposed Natural Resource Plan.
Comment: Some commenters stated that there are no ``case-by-case''
exemptions from applicability of the guidelines and states that
``Congress clearly intended OMB's Data Quality guidelines to apply to
all information that agencies subject to the PRA in fact make public.''
The commenters' examples suggest that, with regard to the meaning of
``information,'' the reach of Section 515 is identical to that of the
PRA. The commenters complain that agency proposals ``exempt material
relating or [sic] adjudicatory proceedings or processes, including
briefs and other information submitted to courts.'' The commenters
state that
[[Page 62689]]
neither OMB nor any federal agency has authority to make this
exemption.
Response: This exemption was listed specifically by OMB in its own
information quality guidelines to federal agencies, and the Department
believes it is appropriate and in keeping with long-established
principles of adjudicative processes, which have many inherent
safeguards.
Standards and Pre-dissemination Review: Influential Information and
Objectivity
Comment: Two commenters pointed out that the Department failed to
provide any guidance on how influential scientific or technical
information will be subjected to the required higher standards for
quality and greater transparency. These commenters stated that the high
level of generality provides insufficient guidance to NOAA's Fisheries
Service, whose technical fishery conservation and management data is
used to regulate fisheries. Some other commenters stated that the
Department failed to address appropriate standards of objectivity for
influential information.
Response: The Department has revised the guidelines to provide
clearer guidance on quality standards for influential information and
objectivity. The Department recognizes the importance of influential
information that may be used in decisions such as fishery conservation
and management. NOAA has revised its guidelines to discuss meeting the
objectivity standard for influential information.
Comment: One commenter stated that the Department should narrowly
define ``influential'' information, employing a high threshold for
coverage to maximize its flexibility and preserve its ability to act in
a timely fashion.
Response: The Department recognizes that a balancing process is
involved in defining ``influential'' information. In keeping with OMB's
directive that each agency ``define `influential' in ways appropriate
for it given the nature and multiplicity of issues for which the agency
is responsible'' (67 FR at 8460), the Department's OUs have defined
``influential'' in ways appropriate to their specific missions and
activities, with the goal of ensuring and maximizing information
quality.
Comment: Some commenters suggested that the Department should
abandon its proposed ``objectivity'' standard and instead should adopt
the ``objectivity'' standard established by OMB for non-scientific,
non-financial and non-statistical information. These commenters stated
that the Department should also direct its operating units to do the
same.
Response: As the Department has noted above, OMB has stressed that
its guidelines are intended to be flexible and that a one-size-fits-all
approach has not been taken, and that it has deliberately allowed
agencies to tailor their guidelines to their mission and activities.
Comment: Two commenters stated that the Department should define
the categories of information that are ``influential'' scientific,
financial, and statistical information and include within those
categories all information disseminated in connection with NRDAR Plans.
Two commenters objected to the fact that some agencies neither adopted
OMB's definition of ``influential'' nor provided one of their own.
Response: The Department does not believe it is appropriate to list
prospectively all information that may be ``influential.'' Rather, the
OUs have defined the term ``influential,'' either by adopting or
adapting OMB's definition of that term, and will characterize specific
information as such when appropriate. Certain information, such as the
gross domestic product, can readily be predicted to consistently meet
BEA's definition. However, NRDAR Plans would not typically meet the
``influential'' threshold established by NOAA. Such Plans deal with
site-specific liabilities of one or several persons responsible for
unlawful releases of hazardous substances or oil. As such, NRDAR Plans
are not expected to have a genuinely clear and substantial impact on
major public policy and private sector decisions.
Comment: One commenter suggested that the Department should not
unduly limit the concept of ``quality'' information by narrow
definitions of the terms ``objectivity, utility, and integrity.'' This
commenter suggested that the Department should begin the description of
objectivity by pointing out that the term ``objectivity'' includes both
the substance of information and its presentation.
Response: The Department has revised the definitions of
objectivity, utility, and integrity, to incorporate the suggestion
concerning both the substance and presentation of information.
Comment: Some commenters objected to the use of policy-driven or
mission-driven assumptions or factors by agencies in connection with
risk assessments. These commenters stated that only numerical
information or factors can be considered in risk assessments and that
risk management policy decisions should be clearly separated from the
presentation of scientific data and analysis.
Response: The Department believes that an agency's (or operating
unit's) activities and decisions must be consistent with and based upon
its statutory mandate. Nothing in Section 515 or in the OMB guidelines
repeals or amends the specific statutes governing agency action.
Consistent with these statutes, the guidelines of all the Department's
OUs require an absence of bias in both the presentation and substance
elements of objectivity. In addition, the Department and all of its OUs
are committed to transparency about how analytic results are generated,
in terms of the specific data used, the various assumptions employed,
the specific analytic methods applied, and the statistical procedures
employed, consistent with other compelling interests such as privacy,
trade secrets, intellectual property, and other confidentiality
protections.
Comment: Several commenters pointed out that NOAA completely failed
to either adopt or adapt the quality principles of the Safe Drinking
Water Act (SDWA) for risk assessment. Two commenters stated that
federal agencies must adopt (not adapt) both the SDWA science quality
and risk assessment standards unless they conflict with other federal
statutory requirements. Two of the commenters suggested that NOAA
should adopt the SDWA standards, including a commitment to apply best
available science for all influential scientific information it
disseminates, including information disseminated in connection with
NRDAR plans. These commenters stated that NOAA should specifically
adopt the SDWA statutory risk criteria for health assessments and apply
them to NRDAR plans.
Response: Although Section 515 does not mention either risk
assessments or the Safe Drinking Water Act, the OMB guidelines clearly
direct agencies to adopt or adapt the risk principles of the SDWA.
Specifically, the OMB guidelines state that ``[w]ith regard to analysis
of risks to human health, safety and the environment maintained or
disseminated by the agencies, agencies shall either adopt or adapt the
quality principles applied by Congress to risk information used and
disseminated pursuant to the Safe Drinking Water Act Amendments of
1996.'' NOAA's guidelines meet this requirement. NOAA has included in
its guidelines a separate section discussing specifically the SDWA
criteria for risk assessments. This discussion explains the adaptation
of the SDWA criteria for ``influential''
[[Page 62690]]
information that constitutes assessment of risk to human health,
safety, or the environment.
As to the suggestion by some commenters that the SDWA criteria
apply to NRDAR Plans, the Department points out that NRDAR Plans are
based upon existing statutory, regulatory, and other guidance that may
not be completely compatible with the SDWA criteria. A natural resource
damage assessment (NRDA) addresses the adverse impacts of past unlawful
releases of hazardous substances or oil to determine the liability of
the person(s) responsible for those unlawful releases. This liability
is measured by the cost of actions to restore the natural resources
injured by the releases. Each NRDA is highly fact, site, and party-
specific. The impact of an NRDA on one or a few persons' liability for
past actions does not constitute the forward-looking impact intended to
be included in the category of influential information or SDWA risk
assessment. NRDAs are not risk assessments as that term is used in the
SDWA or the OMB guidelines. The action to be taken as a result of a
NRDA is mandated by law and designed to return the environment to the
condition it would have been had the release not occurred. Thus, NRDAs
are not analyses of the possible effects on the environment of taking
or not taking some future action as are SDWA risk assessments.
Comment: Two commenters urged NOAA to consider quality information
as that which is ``excellent, complete, up-to-date, and accurate.''
These commenters stated that NOAA should adopt and expand upon the
standards set forth in the SDWA, with more specific guidance regarding
all data, especially ``original data.'' The commenters suggested these
additional factors include:
(1) Whether the most accurate methods were used to collect information;
(2) Whether data measurement methodologies were validated;
(3) Whether quality assurance/quality control techniques were applied;
(4) Whether methods used produce data relevant to study hypotheses;
(5) Whether any experimental conditions were carefully controlled;
(6) Whether confounding factors were eliminated or successfully
controlled;
(7) Whether covariates were successfully controlled;
(8) Whether the degree and source of measurement variation were
determined;
(9) Whether the data were collected by those with requisite
qualifications;
(10) Whether study materials/populations were representative of
conclusions;
(11) Whether appropriate statistical methodologies were employed; and
(12) Whether weight-of-evidence analysis was applied to the
information.
Response: All of the Department's OUs strive to maintain and
disseminate information that is excellent, complete, up to date, and
accurate and their guidelines are designed to achieve that goal.
However, the suggested additional factors, which go beyond those
enumerated in the SDWA, are not all appropriate to every review of
influential information or to every risk assessment and therefore would
not be appropriate as standards. The Department notes that NOAA has
added additional criteria concerning risk assessment to its guidelines.
Comment: One commenter felt that OMB went far beyond the
congressional mandate to inappropriately ask agencies to adapt or adopt
the SDWA risk assessment principles. The commenter stated that
Department should state that the type of peer review envisioned by the
SDWA is inappropriate for all types of risk analysis and may conflict
with underlying statutes.
Response: In keeping with OMB's guidance, the Department has
adapted the risk assessment principles of the SDWA.
Standards and Pre-dissemination Review: Robustness
Commenter: One commenter stated that OMB's guidelines require
robustness checks for information that the agency cannot disclose, such
as Confidential Business Information, but which is material to
information that the agency does disseminate. The commenter proposed a
standard for such robustness checks. This commenter also stated that
OMB's ``general standard' for these robustness checks is ``that the
information is capable of being substantially reproduced, subject to an
acceptable degree of imprecision''' (citing 67 FR at 8452, 8457).
Response: The OMB Guidelines state that:
In situations where public access to data and methods will not
occur due to other compelling interests, agencies shall apply
especially rigorous robustness checks to analytic results and
document what checks were undertaken. Agency guidelines shall,
however, in all cases, require a disclosure of the specific data
sources that have been used and the specific quantitative methods
and assumptions that have been employed. Each agency is authorized
to define the type of robustness checks, and the level of detail for
documentation thereof, in ways appropriate for it given the nature
and multiplicity of issues for which the agency is responsible.
Where an operating unit of the Department relies on information
that cannot be disclosed to support influential information that it
disseminates, it performs and discloses robustness checks according to
the requirements set by OMB Guidelines and implemented in its own
information quality guidelines.
Standards and Pre-dissemination Review: Third Party Data
Comment: Some commenters suggested that information generated by
third parties, such as states, municipalities, and private entities,
that is relied upon and disseminated by the Department is subject to
the requirements of Section 515. The commenters stated that such
information is subject to the same data quality standards, pre-
dissemination review procedures, and administrative correction
mechanisms as information generated by the Department.
Response: The Department has added language specifically dealing
with third party information. The Department believes it may use
reliable outside information, even though third-party sources such as
states, municipalities, and universities are not themselves subject to
Section 515. The scientific instrumentalities of such third parties
play an appropriate role in providing scientific, financial, or
statistical information to federal agencies.
The diverse operating units of the Department use such third-party
information in varying ways. When used to develop information products
or to form the basis of a decision or policy, this information is then
subject to the OUs' guidelines. Thus, for an OU to use third-party
information, it must be of known quality, and any limitations,
assumptions, collection methods, or uncertainties concerning it must be
taken into account.
Comment: Some commenters acknowledged a distinction between
information generated outside the Department and not used, relied upon,
or endorsed by the Department, but merely made public by the
Department, and information generated outside the Department and used,
relied upon, or endorsed by the Department. Two of these commenters
stated that this was a distinction without a difference and that the
guidelines should apply to both types of dissemination. One commenter
stated that ``the data quality guidelines should clearly state that
they only apply to information disseminated from the
[[Page 62691]]
agency itself and not when the agency is merely acting as a conduit of
information.''
Response: For Section 515 to apply, information must be
``disseminated.'' By definition, ``dissemination'' means agency
initiated or sponsored distribution of information to the public. OU
guidelines apply to information that the OU disseminates. However,
dissemination does not include distribution limited to government
employees or agency contractors or grantees; intra-or inter-agency use
or sharing of government information; and responses to requests for
agency records under the Freedom of Information Act, the Privacy Act,
the Federal Advisory Committee Act or other similar law. This
definition also does not include distribution limited to correspondence
with individuals or persons, press releases, archival records, public
filings, subpoenas or adjudicative processes. When an OU distributes
information generated by a third party but in no way claims that
information as its own, the OU will inform the public that the
information is not subject to the Section 515 or applicable information
quality guidelines.
Comment: One commenter discussed Federal agencies' use of third-
party proprietary models, stating: ``The OMB guidelines further explain
that when public access to models is impossible for ``privacy, trade
secrets, intellectual property, and other confidentiality protections,:
an agency `shall apply especially rigorous robustness checks to
analytic results and documents what checks were undertaken'.'' [sic]
Response: The Department agrees that when public access to models
used to generate influential scientific, financial, or statistical
information is impossible, especially rigorous robustness checks should
be applied to analytic results and these checks should be disclosed.
Commenter: One commenter suggested that the Department prohibit use
of third-party proprietary models that are barriers to public access to
data in the guidelines, although the commenter did not cite a specific
model.
Response: Without a specific indication of practices by the
Department (or its OUs) using third-party models that the commenter
finds objectionable, it is not possible to prepare a specific response.
However, the Department strives for openness and transparency in all
its scientific, financial, and statistical activities, consistent with
applicable privacy, trade secrets, intellectual property, and other
confidentiality protections.
Comment: Some commenters noted that the Department should develop
provisions for new, and modify existing, contracts, cooperative
agreements, and grants that require Department partners to furnish
information that complies with the OMB and Department guidelines. The
commenters also stated that these new provisions should prohibit use by
these parties, in fulfilling their contractual, cooperative, or grant
agreement obligations with the Department, of information that is not
in compliance with the OMB and Department guidelines.
Response: The Department will consider any necessary modification
of new and existing contracts, cooperative agreements, and grants with
regard to the quality of information presented to the Department
through these vehicles. However, such documents already contain
provisions requiring work products to be of appropriately high quality.
National Assessment on Climate Change (NACC)
Comment: One commenter argued that, to the extent that the
Department or NOAA refers or links to, or otherwise disseminates the
first NACC, it is in violation of Section 515. The commenter further
claimed that continuing to disseminate the NACC is unacceptable under
the Act. The commenter continued with a lengthy, detailed condemnation
of the NACC, produced by the U.S. Global Change Research Project
(USGCRP).
Response: Although NOAA is one of many agencies that are partners
in the USGCRP (http://www.usgcrp.gov/usgcrp/usagency.html), NOAA's
activities in that capacity are the very sorts of activities that its
mission requires. Any information that NOAA disseminates in connection
with those activities, including any future contributions by NOAA to
any collective product such as the NACC, will be in full compliance
with NOAA's Information Quality Guidelines, when they become effective.
However, any request for correction of the NACC itself should be
addressed to the agency that created such information.
Standards and Pre-Dissemination Review: Peer Review
Comment: One commenter asked what the standard is for rebutting the
presumption of objectivity resulting from formal, independent, external
peer review. Another commenter questioned whether the presumption of
validity will apply if the agency does not comply with peer review
criticism, views, or recommendations.
Response: Consistent with OMB's guidelines (67 FR at 8452, 8454),
the Department's guidelines make clear that the presumption of
objectivity resulting from formal, independent, external peer review is
rebuttable and that the requester has the burden of rebutting the
presumption that information subjected to formal, independent, external
peer review is objective.
Comment: One commenter suggested that the Department should state
that ``influential'' information will not be subject to new formal,
external, independent peer review to meet the ``objectivity'' standard.
The commenter noted that, where peer review is employed, the Department
should commit to using appropriately balanced peer review panels and
avoid conflicts of interest.
Response: Formal, independent, external peer review is sometimes
available and is sometimes used, depending on the specific information
and program involved. But other means are also used to ensure
objectivity, according to the specific applicable information quality
standards. Where peer review is used, the Department attempts to
appropriately balance panels and to avoid conflicts of interest, while
at the same time ensuring that reviewers have sufficient knowledge of
the subject to provide meaningful review.
Melding of Processes
Comment: One commenter disagreed with the Department's position
that ``[r]equests to correct information contained within a Natural
Resource Plan must be made during the public comment period provided
when it is posted for comment.'' This commenter stated that Natural
Resource Plans can be highly technical, and it is not always apparent
whether they contain flawed information or conclusions at the time they
are first disseminated. This same commenter stated that the provision
in the draft guidelines stating that a comment or petition filed after
a comment period has closed, ``may be considered, at the discretion of
the agency * * * as a late comment.'' The commenter argued that Section
515 conveys independent rights granted to the public and neither
Section 515 nor OMB's guidelines contain any such restrictions in
instances where other notice and comment opportunities are available.
Response: The Department notes that, although Section 515 may not
speak to requests for correction filed during a public comment period,
OMB's guidance to the agencies does state that it is reasonable to meld
the Section 515 correction process with a notice and
[[Page 62692]]
comment process; therefore creating several procedures where an
existing process will achieve the same purpose is unnecessary. Also, it
is imperative that the operating unit drafting a rule or Natural
Resource Plan be aware of and take into account any demonstration of
incorrect information. Therefore, the guidelines continue to meld the
Section 515 process into existing public input processes where
appropriate. In addition, in some cases, public comment periods are
required and shaped by existing statutes or regulations.
Comment: Some commenters believe that the draft guidelines excluded
requests for information correction if they pertain to information
disseminated as part of a proposed rule or a Natural Resource Plan,
which is inconsistent with the objectives and terms of Section 515 and
with the OMB directive providing affected parties the unfettered right
to ``timely'' correction of flawed information. The commenters noted
that this approach also fails to address or redress the injury affected
persons may suffer outside the context of a specific rulemaking or
Natural Resource Plan during the pendency of long rulemaking or Natural
Resource Plan processes. The commenters noted that rulemakings, as well
as natural resource damage assessments and restoration decisions and
plans, may take years to complete, during which time discrete, easily
resolved and/or important data correction requests may languish without
response, all the while adversely affecting the general public and/or
the requester who is entitled to a timely response under Section 515.
The commenters stated that the Department's guidelines should provide
that discrete requests for objective information correction are to be
resolved in a timely fashion using the focused procedures of the
guidelines, rather than the unwieldy and daunting vehicle of a
rulemaking or some other extended decisionmaking process involving the
opportunity for notice and comment.
Response: As explained earlier, the Department has not excluded
from the administrative correction mechanism information disseminated
as part of a proposed rule or a Natural Resource Plan. The Department
notes that the responsible office may choose to provide a response
prior to the completion of a rulemaking or Natural Resource Plan, if
doing so is appropriate and will not delay the issuance of the final
action in the matter, particularly if the complainant can demonstrate
actual harm from the information or demonstrate substantial uncertainty
as to whether the proposed rule or Natural Resource Plan will take an
unusual length of time for final issuance.
Administrative Correction Mechanism
Comment: Some commenters stated that the information correction
mechanisms fail to meet the spirit, purpose, and objectives of Section
515 and the OMB guidelines.
Response: The Department has made numerous changes in the
administrative mechanism in response to these comments. The Department
does not intend to discourage requests for correction or erect
procedural barriers that could block legitimate complaints. It is in
the best interest of the Department and the public to timely correct
information that does not comply with its guidelines.
Savings Clause
Comment: Some commenters urged the elimination of the ``savings
clause'' intended to exempt from coverage certain unidentified
information challenges where unspecified ``different procedures'' for
correction may exist.
Response: The Department has deleted the ``savings clause'' from
its guidelines.
Affected Person
Comment: Several commenters suggested that the Department provide a
broader definition of ``affected persons'' who can invoke these
mechanisms, consistent with Congressional intent in Section 515 and
similar to the proposals of several federal agencies. These commenters
stated that the guidelines should also include procedures to enhance
notification of and participation by affected parties.
Some commenters argued that the Department and its operating units
definition of ``affected person'' resembles judicial requirement for
``standing,'' which neither Section 515 nor OMB's guidelines require.
The commenters urged the Department to adopt a definition of ``affected
person'' that includes ``anyone who uses the information, benefits from
it, or is harmed by it,'' as well as trade associations and other
groups who represent such persons.
Response: The Department never intended to limit the class of
affected persons. However, the Department has revised the definition of
``affected person'' to describe more clearly a broad class of affected
persons. Further, the revised definition is broad enough to include
trade associations and others who are related to or associated with
persons who may be affected.
Responsible Office
Comment: Some commenters recommended that the Department designate
which office within an operating unit would qualify as the responsible
office that may decide initial information correction requests. Several
commenters stated that the Department should create an independent,
dedicated appeal board outside the program office within which the
``responsible office'' resides to ensure uniform, objective, and timely
resolution of appeals of information correction request denials.
Response: The Department's operating units have taken varying
approaches to designating the responsible office, in each case using a
method that best fits their mission and activities. This is in keeping
with OMB's guidance, which has provided flexibility so that ``each
agency will be able to incorporate the requirements of these OMB
guidelines into the agency's own information resource management and
administrative practices.'' (67 FR at 8452). Also, as the Department
has noted above, OMB encouraged agencies to incorporate the standards
and procedures required by its guidelines into their existing
information resources management and administrative practices rather
than create new and potentially duplicative or contradictory processes.
Comment: One commenter complained that some agencies do not provide
any indication as to the official responsible for deciding the
disposition of requests for correction.
Response: The operating units of the Department do provide this
information.
Appeal Official
Comment: One commenter suggested that allowing the ``Appeal
Official'' to be only one administrative level above the official who
made the initial decision is not sufficiently removed from the office
that issued the contested information to ensure sufficient objectivity.
The commenter noted that appeals should be made to a centralized
Department-wide official, such as the Department's Chief Information
Officer or the Section 515 officer. The commenter also stated that the
guidelines should clearly state that the appeals officer should act in
an ``ombudsman'' capacity, to objectively assess information complaints
and not endeavor to uphold the agency's stated position.
Response: In all cases, the Department's intent is for the review
to be objective. The Appeal Official must be sufficiently removed to
make a fair
[[Page 62693]]
and objective review but at the same time needs to have enough
expertise to understand the issues. This involves a balance that
different operating units have met in different ways. However, in no
case is the appeal official in the same office as the one that decided
the initial complaint.
Comment: Some commenters asked for assurances that the heads of
responsible offices and appeal officials will be provided sufficient
resources to allow for meaningful initial information correction
requests and appeals of denials of such within the presumptive 60-day
time limit.
Response: The Department has designed its administrative mechanisms
to achieve timely response to requests for correction within available
resources.
Time Limits for Filing Requests
Comment: One commenter stated that the Department should
``establish a timeliness requirement for requests after which an agency
has the option to reject a request (e.g., a data quality complaint must
be made within three month's of the information's release).''
Response: Since the information quality guidelines apply to
information disseminated by the Department ``on or after October 1,
2002, regardless of when the information was first disseminated * *
*.'', the Department cannot limit requests for correction of
information based on a specific dissemination date. Moreover, the
Department believes that it is often difficult to define a specific
date of dissemination of information from which to establish a
timeliness requirement for a request for correction.
Comment: One commenter suggested that the Department clearly state
that the burden of proof lies squarely with the requester to
demonstrate both that they are an affected party and that the
challenged information does not comply with OMB's guidelines.
Response: The Department and its operating units have added to
their information quality guidelines a statement specifying that the
burden of proof is on the requester to show both the necessity and type
of correction sought and that, where appropriate, the requester has the
burden of rebutting the presumption that information subjected to
formal, independent, external peer review is objective. Additionally,
the definition of ``affected'' has been changed. ``Affected person'' as
now defined means an individual or entity that uses, benefits from, or
is harmed by the disseminated information at issue. Any initial request
for correction must include an explanation of how the requester is
affected.
Timely Review
Comment: Some commenters addressed the issue of setting
appropriate, specific time limits for agency decisions on information
correction requests. Two of these commenters proposed language that
provide agencies with flexibility for requests that may require a
longer time frame for response without allowing open-ended delays for
making decisions. Two commenters asked that the Department assure that
proper and strict limits be imposed on the ability of the responsible
offices to extend the time period for resolving initial information
correction requests beyond the presumptive 60 day limit.
Response: The Department has retained the language in its draft
guidelines: ``An initial decision will be communicated to the
requester, usually within 60 calendar days.''
In order to assist the Department in making a timely response, it
has added to its guidelines a list of corrective actions that may be
taken in response to a correction request, based on the nature and
timeliness of the information involved, as well as factors such as the
significance of the error on the use of the information, and the
magnitude of the error. Actions contained in that list include:
personal contacts via letter or telephone, form letters, press
releases, and postings on an appropriate Web site.
Comment: Some commenters suggested that the Department establish
effective procedures and schedules for the timely correction of
information determined to be flawed and for appropriate prohibitions on
further use and dissemination of such information until it is
corrected.
Response: The timetable for corrective action depends on many
factors, including but not limited to: the magnitude and significance
of the error, the timeliness of the information involved, the original
form of dissemination, and the nature of the correction. Any schedule
for correction is dependent on these and other factors that cannot be
determined in advance. According to the Department's model
administrative mechanism, which is used by most of the operating units,
the initial decision is a determination of whether the information
should be corrected and what, if any, corrective action should be
taken, and this decision is communicated to the requester.
Comment: Some commenters stated that the Department's guidelines
set unreasonable time frames for filing and addressing complaints
regarding some data that undercut accuracy requirements. The commenters
argued that an affected individual should be allowed to request
correction at any time after improper data is disseminated,
particularly for a fishery where timely, accurate distribution of data
is paramount.
Response: Timeliness is an important factor in the determination of
the appropriate response to an information correction request. The
Department has addressed this issue in its revised guidelines by adding
the list of corrective actions mentioned above, which recognizes
timeliness as an important factor in determining a remedy and which
includes withdrawal or correction of the information in question as a
form of correction where appropriate. The guidelines now contain the
statement: ``The form of corrective action will be determined by the
nature and timeliness of the information involved and such factors as
the significance of the error on the use of the information and the
magnitude of the error.''
Comment: One commenter believes that agencies must provide a
``specific time frame'' for decisions on information correction
requests.
Response: The Department provides time frames for response to
requests for correction of information that it has disseminated. A
single specific time limit for decision on requests for correction for
all of the Department operating units is not possible because of the
diverse missions of the Department's operating units. However, in all
cases the Department will endeavor to respond as soon as reasonably
possible, usually within 60 calendar days as stated in the Department's
guidelines.
Initial Requests
Comment: One commenter suggested that the guidelines should
explicitly state that the administrative mechanism applies only to
corrections of factual information and that the Department will not
consider interpretations of data and information, or requests for de-
publishing. The commenter stated that to avoid wasteful duplication of
effort the Department should limit complaints to information that is
not already subject to existing data quality programs and measures
(giving the example of rulemaking proceedings), and that complaints for
any data quality standard that presents a potential moving target
(i.e., ``best available evidence'') should be evaluated based on
information available at the time of dissemination.
[[Page 62694]]
The commenter urged that the Department's response to correction
requests should be proportional to the significance and importance of
the information in question to establish the necessary flexibility to
set aside a request that has been superceded or is otherwise outdated.
The commenter also stated that the Department should limit the
mechanism to only what is required in Section 515 to avoid any
possibility of creating new rights under administrative law. Finally,
the commenter noted that the Department needs adequate procedural
safeguards to avoid becoming mired down in minor data disputes, bad
faith requests, and frivolous, repetitive, or non-timely claims.
Response: Regarding consideration of interpretations of data and
information, the Department's information quality guidelines and
Section 515 itself are not designed to contemplate interpretations of
data and information apart from requests for correction of information
that is not in compliance with agency guidelines. Similarly, requests
for de-publishing would be considered only in the context of an
appropriate request for correction of Department-disseminated
information, in which case withdrawal of the affected information would
be one of the options considered if the information were found to be
incorrect.
Although the Department has not limited complaints to information
that is not already subject to existing data quality programs and
measures, the Department has designed its administrative mechanisms to
take advantage of existing processes that are designed to ensure the
quality of information, such as rulemakings. The Department agrees that
requests for correction should be evaluated based on the evidence
available at the time of dissemination. However, where it is possible,
timely, appropriate, and cost-effective to make corrections based on
later-acquired evidence that meets the Department's quality standards,
the Department will consider correction.
The Department agrees that its response to correction requests
should be proportional to the significance and importance of the
information in question (among other factors). The Department believes
its guidelines provide the necessary flexibility to deal with
superceded or outdated requests. The Department notes that its
guidelines provide that requests that are duplicative, repetitious, or
frivolous may be rejected and that information need not be corrected if
the correction would serve no useful purpose.
Comment: One commenter suggested that the Department's rigid
requirements for filing a request for correction serve as an entry
barrier against the requestor. The commenter pointed out that no other
federal agency has adopted such a rigid approach, which will terminate
with prejudice the majority of requests received. The commenter noted
that this practice could lead to retaining an acknowledged fact error
in Department information by having such high barriers to a substantive
examination of the error.
Response: The Department does not intend to place procedural
barriers in the way of legitimate requests for correction. Numerous
provisions in the Department's administrative correction mechanisms
have been modified to make the process easier to use. In addition,
provisions have been added allowing defective requests to be amended
and resubmitted.
Reconsideration of Requests
Comment: One commenter pointed out that the Department should be
aware that Section 515 does not address reconsideration of complaints
and that such a requirement is outside the scope of the statutory
requirements. Therefore, the commenter stated that the Department's
reconsideration process should remain fairly informal and limited in
scope, since the review mechanism is to ensure that initial agency
review was conducted with due diligence.
Response: Although the statutory language of Section 515 does not
address reconsideration or appeals from initial denials of requests for
correction, the Department has followed the OMB guidelines and, in
keeping with those guidelines has, through its OUs, devised appeal
processes ``that serve to address the genuine and valid needs of the
agency and its constituents without disrupting agency processes.'' (67
FR at 8458)
Contents of Request
Comment: Several commenters requested that the Department eliminate
the requirement of a ``proper request.'' One commenter explained that
the problem was that requesters whose requests were determined not to
be proper were not given the opportunity to amend the request, thereby
creating in effect a form of summary judgment with prejudice.
Response: To investigate a request for correction and respond to
the requester, the Department must have appropriate contact information
and sufficient information regarding the source of the information
disseminated and how the requester believes that information fails to
comply with the applicable information quality standards. This
information can only be provided by the requester. Therefore, the
Department has retained the requirement of a ``proper request'' but has
added that if a request is determined not to be proper, the requester
may amend the request and resubmit it.
Stating a Claim
Comment: Some commenters urged the elimination of the proposed
requirement that the responsible office make a preliminary
determination, on the basis of the strength of the assertions in the
request alone, that the information in question was based on non-
conformance with the Department's information quality standards before
objectively investigating and analyzing the request.
Response: This provision has been amended to clarify its purpose.
The provision was never meant to preclude any request for correction.
Rather it was meant to ensure that the Department could determine from
the request exactly what the requestor's claim or complaint is. A
request that cannot be understood is not possible to address. Along
with language clarifying this intent, language has been added stating
that a request determined to not state a claim ``may be amended and
resubmitted * * *''
Comment: One commenter strongly opposed the Department's position
that there is no appeal from a decision that a request does not state a
claim.
Response: The Department points out that an appeal is not necessary
for a decision by the responsible office that a request does not state
a claim because the guidelines clearly state that a denied request may
be amended and resubmitted for consideration. The elements of a valid
claim are listed in the guidelines. A refused claim may be amended to
ensure that these elements are included in the resubmission.
Duplicative Requests
Comment: One commenter stated that the Department should state that
if a request has been made and responded to, then a new, similar
request may be rejected as frivolous or duplicative.
Response: The Department has included a statement that requests
that are duplicative, repetitious, or frivolous may be rejected.
Criteria for Corrections
Comment: One commenter questioned whether the Department would
always correct information when it agrees (in some sense) with a
request for correction. The commenter suggested that agencies should be
required to correct information in all cases.
[[Page 62695]]
Response: The OMB guidelines provide that agencies are ``required
to undertake only the degree of correction that they conclude is
appropriate for the nature and timeliness of the information involved,
and explain such practices in their annual fiscal year reports to
OMB.'' (67 FR 8453) Further, the OMB guidelines direct agencies to
weigh the costs and benefits of higher quality information. The
Department's guidelines are in compliance OMB guidelines.
Substantially the Same and Acceptable Error
Comment: Several commenters objected to the Department's assertion
that it need not correct information that was within an ``acceptable
degree of imprecision'' and information that failed to meet the
applicable standards but would have been substantially the same or
statistically the same had the applicable standards been met. One of
these commenters also objected to the Department's assertion that it
would not correct information the correction of which would serve no
useful purpose.
Response: In the course of simplifying the Department's
administrative correction mechanisms, references to the concepts of
``acceptable degree of imprecision'' and ``substantially the same or
statistically the same'' have been removed from that part of the
Department's guidelines. However, these concepts are fundamental to
scientific inquiry and have not been discarded. In fact, the concept of
``acceptable degree of imprecision'' is inherent in OMB's view of
``reproducibility'' and is part of OMB's (and the Department's)
definition of that term (67 FR 8456, 8457, 8460). Similarly, concepts
of acceptable statistical variability are essential to the scientific
process. Information that falls within clearly delineated and
acceptable statistical ranges is in fact scientifically correct. The
Department has retained the assertion that no initial request for
correction will be considered under these procedures concerning
disseminated information the correction of which would serve no useful
purpose, but has explained what is meant by ``serve no useful
purpose.'' Specifically, ``[c]orrection of disseminated information
would serve no useful purpose with respect to information that is not
valid, used, or useful after a stated short period of time'' (such as a
weather forecast or atomic time). The Department points out that
information need not be corrected if the information would have been
substantially or statistically the same or if the information is within
an acceptable degree of error, in line with the scientific process.
Budget Constraints
Comment: Several commenters stated that budgetary constraints
should not be a basis for failing to correct information determined by
the Department to be flawed. Some of these commenters stated that
Section 515 gives the public the right to seek and obtain correction of
federally disseminated information. One commenter suggested that ``this
noncorrection of known errors seems to be too smooth a path of evasion
by the most interested staff members, against those requesters seeking
legitimate redress and whose claim of error is acknowledged to be
correct.''
Response: The Department points out that budgetary constraints do
not exempt information from any necessary correction. However, the OMB
guidelines direct agencies to weigh the costs and benefits of higher
quality information. The Department's intent in including the statement
regarding resources unavailable to that official is now more correctly
expressed, consistent with OMB's guidelines, as an examination of costs
and benefits of higher quality information.
Department of Commerce and Operating Unit Web Sites
The Web sites that publish the Department of Commerce's information
quality guidelines are noted below. The first site includes this
document for the Department of Commerce. The remaining sites document
the information quality guidelines for Commerce's operating units.
http://www.doc.gov/
http://www.osec.doc.gov/cio/oipr/OS%20Revised%20Info%20Qual%20Guidelines.htm
http://www.bxa.doc.gov/
http://www.esa.doc.gov/
http://www.bea.doc.gov/
http://www.census.gov/
http://www.doc.gov/eda/
http://www.ita.doc.gov/
http://www.mbda.gov/
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Dated: September 30, 2002.
Thomas N. Pyke, Jr.,
Chief Information Officer.
[FR Doc. 02-25340 Filed 10-1-02; 3:33 pm]
BILLING CODE 3510-CW-P