[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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