[Federal Register Volume 76, Number 159 (Wednesday, August 17, 2011)]
[Notices]
[Pages 51060-51064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20915]


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MARINE MAMMAL COMMISSION


Guidelines for Ensuring and Maximizing the Quality, Objectivity, 
Utility, and Integrity of Information

AGENCY: Marine Mammal Commission.

ACTION: Final guidelines.

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SUMMARY: The Marine Mammal Commission adopts these guidelines to ensure 
and maximize the quality, objectivity, utility, and integrity of 
information disseminated by the agency in accordance with the directive 
issued by the Office of Management and Budget (67 FR 8452-8460), 
pursuant to section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001.

FOR FURTHER INFORMATION CONTACT: Michael L. Gosliner, General Counsel, 
Marine Mammal Commission, 4340 East-West Highway, Room 700, Bethesda MD 
20814; telephone: (301) 504-0087; fax: (301) 504-0099

Background

    Section 515 of the Treasury and General Government Appropriations 
Act for Fiscal Year 2001 (Pub. L. 106-554) 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.'' Pursuant to this directive, OMB issued guidelines 
on 22 February 2002 (67 FR 8452-8460) that direct each federal agency 
to (1) Issue its own guidelines ensuring and maximizing the quality, 
objectivity, utility, and integrity of information disseminated by the 
agency; (2) establish administrative mechanisms to allow affected 
persons to seek and obtain correction of information that does not 
comply with the OMB guidelines or the agency's guidelines, and (3) 
report periodically to the director of OMB on the number and nature of 
complaints received by the agency regarding the accuracy of information 
disseminated by the agency and how such complaints were handled by the 
agency.
    The Marine Mammal Commission was established under the Marine 
Mammal Protection Act of 1972 to provide independent oversight of the 
marine mammal conservation policies and programs being carried out by 
federal agencies. The Commission is charged with developing, reviewing, 
and making recommendations on domestic and international actions and

[[Page 51061]]

policies of all federal agencies with respect to marine mammal 
protection and conservation and with carrying out a research program. 
In carrying out its mission, the Commission develops and disseminates 
scientific and other information and reviews information provided by 
other federal agencies.
    To comply with the OMB directive, the Marine Mammal Commission 
published proposed agency guidelines on 27 June 2011 (76 FR 37376) 
intended to ensure and maximize the quality, objectivity, utility, and 
integrity of information that is disseminated by the agency. The 
Commission solicited comments on the proposed guidelines and received 
one set of comments. Those comments are summarized, and the 
Commission's responses are provided, in the subsequent discussion.

Comments and Responses

    The only comments on the Commission's proposed guidelines were 
submitted by the Center for Regulatory Effectiveness. The Center 
commended the Commission on its proposed guidelines and advocated that 
final guidelines be published as soon as possible. The Center also 
recommended that the proposed guidelines be amended in certain respects 
before they are finalized--first, by revising when requests for 
correction would not be considered, and second, by providing fixed and 
definite dates for taking action on requests for correction.
    In the section concerning the administrative process for correction 
of information, the Commission identified five criteria under which a 
request for correction would not be considered. Included in these 
criteria were instances in which the ``the [requested] correction would 
serve no useful purpose'' and when the request is deemed ``to be 
duplicative, repetitious, or frivolous.'' The commenter thought that 
these criteria should be deleted because they are beyond the 
Commission's authority and because they may be subject to 
administrative abuse. The commenter did not believe that the 
Information Quality Act allowed the Commission the latitude to decide 
when corrections would be useful or when requests are frivolous or do 
not warrant a response.
    The Commission believes that these exceptions are consistent with 
the guidelines for ensuring and maximizing the quality, objectivity, 
utility, and integrity of information disseminated by federal agencies 
published by OMB on 22 February 2002. Those guidelines state that--

    Overall, OMB does not envision administrative mechanisms that 
would burden agencies with frivolous claims. Instead, the correction 
process should serve to address the genuine and valid needs of the 
agency and its constituents without disrupting agency processes. 
Agencies, in making their determination of whether or not to correct 
information, may reject claims made in bad faith or without 
justification, and 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.

    Furthermore, these exceptions are consistent with similar 
exceptions included in the guidelines adopted by other agencies. For 
example, guidelines published by the National Science Foundation 
specify that the agency ``may reject claims made in bad faith, or 
without justification. The Foundation need not respond substantively to 
such requests, nor to frivolous, repetitive, or stale requests.* * *'' 
Guidelines published by the National Oceanic and Atmospheric 
Administration explain that a request for consideration will not be 
considered if it concerns ``disseminated information the correction of 
which would serve no useful purpose [such as when the information is 
not valid, used, or useful after a stated short period of time]'' and 
that ``requests that are duplicative, repetitious, or frivolous may be 
rejected.'' In addressing similar comments, the Council on 
Environmental Quality amended its proposed guidelines to provide that 
the agency's ``response will be proportional to the nature or the 
request'' and that it ``will generally not substantively respond to a 
request that is duplicative of an earlier request.''
    The Commission does not share the commenter's concern that these 
exceptions are subject to abuse. Consistent with the guidance from OMB, 
the Commission would report on all requests for correction received 
during the fiscal year and explain its practices for responding to such 
requests, including those that fit within the scope of any of the 
exceptions. In addition, the Commission did not intend that it would 
simply ignore, without explanation, any request that it determined fell 
within any of the exceptions. Rather, the responsible official would 
return the request to the person who submitted it, indicating that 
further action would not be taken and identifying the exception on 
which the determination was based. Clarifying language to that effect 
has been added to the final guidelines.
    The Center also advocated that the Commission delete the proposed 
exception concerning information disseminated in the course of a 
rulemaking or similar administrative process that includes an 
opportunity for public comment and a mechanism to dispute or challenge 
the information in question. For the most part, the Commission is not a 
regulatory agency. Rather, it provides recommendations concerning 
regulatory needs to other agencies, which are responsible under the 
Marine Mammal Protection Act and other statutes for adopting and 
implementing such regulations. As such, there would be very few 
instances when this exception would be applicable. As such, the 
Commission has decided to delete the proposed exception.
    The Center also submitted comments on two timing provisions 
included in the proposed guidelines. The proposed guidelines specified 
that ``[w]ithin 60 days of the receipt of a properly filed request, the 
Commission will provide a final decision on the request or a statement 
of the status of the request and an estimated decision date.'' The 
provision concerning the consideration of an appeal of an initial 
determination also would have provided the Commission some flexibility 
as to when it responded. Under the proposed guidelines, the official 
responsible for considering an appeal would provide a decision to the 
requester, ``usually within 60 calendar days of receipt of the 
appeal.'' The Center believes that the Commission's guidelines should 
guarantee action on a request for correction or an appeal by a specific 
date. The commenter thought that the flexibility for responding 
contained in the proposed guidelines would give the Commission the 
``discretion to extend forever any final action'' and was contrary to 
the requirement of the Information Quality Act that requesters be able 
to ``seek and obtain'' correction of information that does not comply 
with the Act or the Commission's guidelines. The Center recommended 
that the Commission establish a strict 60-day time limit for initial 
decisions and a 30-day time limit for decisions on appeals.
    By including some degree of flexibility in the draft guidelines as 
to when it responds to initial requests and appeals, the Commission did 
not intend to suggest that it could extend action indefinitely. In most 
instances, the Commission believes that it will be able to respond to 
requests and appeals within the timeframes specified in the proposed 
guidelines--60 days for initial requests and 60 days for appeals. In 
any case in which the initial decision is extended beyond 60 days, the 
Commission would specify an estimated response date. The Commission

[[Page 51062]]

continues to believe that some flexibility is appropriate to allow the 
Commission time to consider and respond to complex requests or to 
follow the review procedures set forth in the guidelines, which may 
include review by members of the Commission's Committee of Scientific 
Advisors on Marine Mammals, who serve on a part-time basis, or by 
outside experts. To provide a thorough and objective review of 
information correction requests, there may be instances when more time 
is needed, particularly if the review requires specialized scientific 
knowledge and/or is pending when those with the necessary expertise are 
not available (e.g., during a researcher's field season). The situation 
may be exacerbated in the case of appeals, because the pool of 
potential reviewers would be further limited because the responsible 
official would need to be someone not materially involved in reviewing 
the initial request.
    Because of these considerations, the Commission declines to adopt 
the commenter's request that strict deadlines be established in all 
cases. Nevertheless, the Commission has amended the guidelines in 
several ways to address the Center's concerns. The guidelines have been 
revised to indicate that the Commission's goal is to provide a decision 
on each request for correction within 60 days. In the event that 
resolving a request requires more time, the Commission will notify the 
requester, explaining the reasons that more time is needed and 
providing an estimated decision date. Similar notice and explanation 
requirements have been added to the appeals section of the guidelines.

Definitions

    The following definitions, which are consistent with the 
definitions included in the directive published by OMB on 22 February 
2002, are used in and apply to the Marine Mammal Commission's 
guidelines--
    1. ``Affected'' persons are those who use, may benefit from, or may 
be harmed by the disseminated information.
    2. ``Dissemination'' means agency-initiated or sponsored 
distribution of information to the public. Dissemination does not 
include the distribution of information limited to government employees 
or agency contractors or grantees; intra- or inter-agency use of 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.
    3. ``Influential,'' when used in the phrase ``influential 
scientific, financial, or statistical information,'' means that the 
agency can reasonably determine that dissemination of the information 
will have or does have a clear and substantial impact on important 
public policy and private sector decisions.
    4. ``Information'' means any communication or representation of 
facts or data in any medium or form including textual, numerical, 
cartographic, narrative, or audiovisual.
    5. ``Integrity'' refers to security--the protection of information 
from unauthorized access or revision--to ensure that the information is 
not compromised through corruption or falsification.
    6. ``Objectivity'' is a measure of whether disseminated information 
is accurate, reliable, and unbiased and whether that information is 
presented in an accurate, clear, complete, and unbiased manner.
    7. ``Person'' means an individual, partnership, association, 
corporation, business trust, or legal representative, an organized 
group of individuals, a regional, national, state, territorial, tribal, 
or local government or branch, or a political subdivision of a state, 
territory, tribal, or local government, or a branch of a political 
subdivision, or an international organization.
    8. ``Quality'' encompasses the ``utility,'' ``objectivity,'' and 
``integrity'' of disseminated information. Thus, the government-wide 
guidelines and the Commission's guidelines may refer to these statutory 
terms collectively as ``quality.''
    9. ``Reproducibility'' means that the information is capable of 
being substantially reproduced, subject to an acceptable degree of 
imprecision. For information judged to be more or less influential, the 
degree of imprecision that is tolerated will be reduced or increased 
accordingly. With respect to analytic results, ``capable of being 
substantially reproduced'' means that independent analysis of the 
original or supporting data using identical methods would generate 
similar analytic results, subject to an acceptable degree of 
imprecision or error.
    10. ``Transparency'' refers to a clear description of the methods, 
data sources, assumptions, outcomes, and related information that will 
allow a data user to understand how the information product was 
designed or produced.
    11. ``Utility'' refers to the usefulness of the information to the 
Commission, other federal agencies, and other intended users, including 
the public.

Scope of the Guidelines

    Information Disseminated and Covered by These Guidelines: Subject 
to the exceptions noted below, all information disseminated by the 
agency is subject to these guidelines. This includes Commission reports 
and recommendations provided to other agencies, and postings to the 
Commission's Web site.
    Information Not Covered by These Guidelines: The following 
information and communications are not covered by the applicable data 
quality requirements and not subject to these guidelines--
     Information for which distribution is intended to be 
limited to government employees or agency contractors or grantees.
     Information for which distribution or sharing is intended 
to be limited to intra- or inter-agency use.
     Responses to requests for agency records under the Freedom 
of Information Act, the Privacy Act, the Federal Advisory Committee 
Act, or other similar law.
     Information relating solely to correspondence with 
individuals or persons.
     Press releases, fact sheets, press conferences, or similar 
communications in any medium that announce, support the announcement 
of, or give public notice of information that the Commission has 
disseminated elsewhere.
     Archival records, including library holdings.
     Archival information disseminated by the Commission before 
October 1, 2002, and still maintained as archival material.
     Public filings.
     Subpoenas.
     Information limited to adjudicative processes, such as 
pleadings, including information developed during the conduct of any 
criminal or civil action or administrative enforcement action, 
investigation, or audit against specific parties, or information 
distributed in documents limited to administrative action determining 
the rights and liabilities of specific parties under applicable 
statutes and regulations.
     Solicitations (e.g., program announcements and requests 
for proposals).
     Hyperlinks to information that another person 
disseminates, as well as paper-based information from other sources 
referenced, but not approved or endorsed by the Commission.

[[Page 51063]]

     Policy manuals and management information produced for the 
internal management and operations of the Commission and not primarily 
intended for public dissemination.
     Information presented to Congress as part of legislative 
or oversight processes, such as testimony of Commission officials, and 
information or drafting assistance provided to Congress in connection 
with proposed or pending legislation, that is not simultaneously 
disseminated to the public. (However, information that would otherwise 
be covered by applicable guidelines is not exempted from compliance 
merely because it is also presented to Congress.)
     Documents not authored by the Commission and not intended 
to represent the Commission's views, including information authored and 
distributed by Commission grantees, as long as the documents are not 
disseminated by the Commission (see definition of ``dissemination'').
     Research data, findings, reports and other materials 
published or otherwise distributed by employees or by Commission 
contractors or grantees that are identified as not representing the 
Commission's views.
     Opinions where the presentation makes it clear that what 
is being offered is not the official view of the Commission.

Information Quality Standards and Pre-Dissemination Review

    The Marine Mammal Commission remains committed to ensuring the 
quality, objectivity, utility, and integrity of the information it 
disseminates. To meet this objective, the Commission has established 
various pre-dissemination review procedures. The applicable review 
procedures vary depending on the type of information being disseminated 
and the extent to which such information is considered influential.
    All reports disseminated by the Commission undergo multiple levels 
of review by knowledgeable individuals prior to publication to ensure 
that the information each report contains is of a high quality and 
supports the conclusions reached. In addition to the report drafters, 
reviewers generally include other staff members, members of the 
Commission's Committee of Scientific Advisors on Marine Mammals, and 
the Commissioners. When appropriate, Commission reports also are 
provided to other agencies, experts outside the federal government, and 
stakeholders in the relevant issue for review prior to publication.
    Section 203 (c) of the Marine Mammal Protection Act (16 U.S.C. 
1403(c)) requires the Commission to consult with its Committee of 
Scientific Advisors on Marine Mammals ``on all studies and 
recommendations which it may propose to make or has made, on research 
programs conducted or proposed to be conducted [by the Commission], and 
on all applications for scientific permits.'' The Committee of 
Scientific Advisors consists of nine scientists ``knowledgeable in 
marine ecology and marine mammal affairs'' appointed by the Chairman of 
the Commission after consulting with the Chairman of the Council on 
Environmental Quality, the Secretary of the Smithsonian Institution, 
the Director of the National Science Foundation, and the Chairman of 
the National Academy of Sciences. This appointment process helps to 
ensure that the Commission has ready access to a panel of knowledgeable 
experts in matters related to marine mammals and marine science, 
including members from the academic community and elsewhere outside of 
government. By submitting all agency recommendations and research 
programs to the Committee for review prior to adoption or 
dissemination, the Commission not only obtains policy advice, but has, 
in essence, a standing peer-review body to vet the quality of the 
information on which Commission recommendations are based before it is 
disseminated.
    Information posted on the Commission's Web site consists largely of 
Commission reports and recommendations. These documents already have 
been subjected to extensive review prior to being disseminated. Other 
information also may be posted on the Web site, including information 
on marine mammal species and issues of special concern. As with other 
materials disseminated by the Commission, and as appropriate, such 
information is vetted by Commission staff, members of the Committee of 
Scientific Advisors on Marine Mammals, the Commissioners, and outside 
experts prior to posting.
    In exigent circumstances (e.g., when responding to emergencies such 
as oil spills or unusual mortality events that pose a risk to natural 
resources), it may not be possible for the Commission to provide full 
review of information prior to dissemination. In such cases, the 
Commissioners, the Commission's Executive Director, or the Commission's 
General Counsel may waive temporarily the information quality standards 
applicable to the dissemination of information. To the extent 
practicable, the Commission will provide public notice of any such 
waiver, explaining the reason for the waiver, identifying the official 
responsible for issuing the waiver, and indicating the expected 
duration of the waiver. To the extent practicable, full review of 
information disseminated under a waiver will be conducted after release 
of that information and revisions will be made as appropriate.

Information Integrity

    The Commission maintains and posts material to its Web site through 
a contract. The contractor is responsible for, and has instituted 
safeguards and security measures to protect, the integrity of the 
information that it posts to the Commission's Web site.

Administrative Process for Correction of Information

    Overview: Any affected person (see definition above) may request, 
where appropriate, timely correction of disseminated information that 
does not comply with applicable information quality guidelines. The 
burden of proof is on the requester to show both the necessity for and 
type of correction sought.
    Procedures for Submission of Initial Requests for Correction: An 
initial request for correction of disseminated information must be made 
in writing and submitted to: General Counsel, Marine Mammal Commission, 
4340 East-West Highway, Room 700, Bethesda, MD 20814, and marked to 
indicate that it is an information correction request. Any request for 
correction must include--
    1. A description of the facts or data the requester seeks to have 
corrected;
    2. An explanation of how the requester is an affected person with 
respect to the disputed facts or data;
    3. The factual basis for believing the facts or data sought to be 
corrected are inconsistent with Commission or OMB information 
guidelines;
    4. A proposed resolution, including the factual basis for believing 
the facts or data in the requester's proposed resolution are correct;
    5. The consequences of not adopting the proposed resolution; and
    6. The requester's contact information, including name, address, 
daytime Telephone number, and e-mail address.

No initial request for correction will be considered under these 
procedures if the request concerns--

    1. A matter not involving information as defined in these 
guidelines;
    2. Information that has not been disseminated as defined in these 
guidelines;

[[Page 51064]]

    3. Disseminated information, the correction of which would serve no 
useful purpose; or
    4. Requests that are deemed to be duplicative, repetitious, or 
frivolous.

If the Commission determines that any of these exceptions apply, the 
responsible official will return the request to the person who 
submitted it, indicating that further action on the request will not be 
taken, identifying the applicable exception or exceptions, and 
explaining the basis for applying each of those exceptions in that 
particular instance.

    The Commission's goal is to provide a final decision on every 
properly filed request for correction within 60 days of receipt. If a 
request requires more than 60 days to resolve, the Commission will 
advise the requester that more time is needed, along with an 
explanation of the reason or reasons that more time is needed and an 
estimated decision date.
    Action by the Responsible Official on Initial Requests for 
Correction: Upon receipt of a properly filed request, the responsible 
official will make a preliminary determination as to whether the 
request reasonably demonstrates, on the strength of the assertions made 
in the request alone, and assuming they are true and correct, that the 
information disseminated was based on a misapplication or non-
application of the Commission's applicable information quality 
standards. The responsible official will communicate his or her initial 
determination concerning the sufficiency of a request, and otherwise 
specify the status of the request to the requester, usually within 30 
days of receipt. A final determination that a request does not state a 
proper claim will be communicated, along with an explanation of the 
deficiencies, to the requester, usually within 60 days of receipt. The 
requester may correct the deficiencies, otherwise amend, and resubmit 
the request.
    If the responsible official preliminarily determines that a 
properly filed request indicates that there may be a valid claim, the 
Commission will institute an objective review process to investigate 
and analyze relevant material in a manner consistent with established 
internal procedures to determine whether the disseminated information 
complies with the Commission's information quality standards. During 
such a review the Commission may consult with members of its Committee 
of Scientific Advisors on Marine Mammals or outside experts to obtain 
their views on the quality, objectivity, utility, and integrity of the 
disputed information. After considering the record as a whole, the 
responsible official will make an initial decision as to whether the 
information should be corrected and what, if any, corrective action 
should be taken. At its discretion, the Commission may provide the 
requester with an opportunity to discuss the request with the 
responsible official or other reviewers.
    If the Commission determines that corrective action is appropriate, 
corrective measures may be taken through a number of forms, including, 
but not limited to, personal contacts via letter or telephone, form 
letters, press releases, postings on an appropriate Web site, or 
withdrawal or amendment of the information in question. 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, the use or anticipated use of the information, and the magnitude 
of the error.
    The responsible official will communicate his or her decision or 
indicate the status of the request to the requester, usually within 60 
days of receipt of the request. That communication will specify the 
agency's initial decision, the basis for that decision, and whether, 
and, if so, what corrective action has been or will be taken. In 
addition, an initial decision will indicate the name and title of the 
official responsible for making the decision, a notice that the 
requester may appeal an initial denial within 30 days of that denial, 
and the name and title of the official to whom an appeal may be 
submitted. An initial denial will become a final agency decision if no 
appeal is filed within 30 days of that denial.
    Appeal From an Initial Denial: An appeal of an initial denial must 
be filed within 30 days of the date of the initial decision. Any such 
appeal must be in writing and addressed to the official identified in 
the initial decision. An appeal of an initial denial must include:
    1. The requester's name, current home or business address, and 
telephone number or e-mail address (in order to ensure timely 
communication);
    2. A copy of the original request and any correspondence regarding 
the initial denial; and
    3. A statement of the reasons why the requester believes the 
initial denial to be in error.
    The official responsible for considering an appeal will be a 
Commissioner or a senior staff member who was not materially involved 
in reviewing the initial request or in making the initial decision. A 
decision concerning the appeal will be based on the entirety of the 
information in the appeal record. Generally, no opportunity for a 
personal appearance, oral argument, or hearing concerning the appeal 
will be provided; however, at his or her discretion, the official 
responsible for considering the appeal may discuss the request with the 
appellant. The official responsible for considering the appeal will 
make every effort to make and communicate his or her decision to the 
requester within 60 calendar days of receipt of the appeal. In the 
event that more time is needed, the responsible official will inform 
the appellant and provide an explanation of the reason or reasons that 
more time is needed, along with an estimated decision date.

Reporting Requirements

    The Commission will submit an annual report to OMB by 1 January of 
each year specifying the number and type of correction requests 
received during the previous year and how any such requests were 
resolved. These reports will explain the Commission's practices for 
responding to such requests, including those that fit within the scope 
of any of the exceptions under which a request was not considered. The 
Commission will submit its initial report in the first reporting cycle 
following adoption of final guidelines.

    Dated: August 11, 2011.
Timothy J. Ragen,
Executive Director, Marine Mammal Commission.
[FR Doc. 2011-20915 Filed 8-16-11; 8:45 am]
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