U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

27–722 PDF 2006

IMPROVING INFORMATION QUALITY IN THE

FEDERAL GOVERNMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JULY 20, 2005

Serial No. 109–125

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

GINNY BROWN-WAITE, Florida

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON REGULATORY AFFAIRS

CANDICE S. MILLER, Michigan, Chairman

GINNY BROWN-WAITE, Florida

CHRIS CANNON, Utah

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

STEPHEN F. LYNCH, Massachusetts

WM. LACY CLAY, Missouri

CHRIS VAN HOLLEN, Maryland

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

ED SCHROCK, Staff Director

ROSARIO PALMIERI, Deputy Staff Director

ALEX COOPER, Clerk

KRISTA BOYD, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on July 20, 2005 ............................................................................... 1

Statement of:

Greenwood, Mark, partner, Ropes and Gray; Jeff Ruch, executive director,

Public Employees for Environmental Responsibility; William Kovacs,

vice president for Environment, Technology, and Regulation, U.S.

Chamber of Commerce; and Sidney A. Shapiro, university distinguished

chair in law, Wake Forest University ......................................................... 38

Greenwood, Mark ...................................................................................... 38

Kovacs, William ......................................................................................... 69

Ruch, Jeff ................................................................................................... 53

Shapiro, Sidney A. ..................................................................................... 80

Nelson, Kimberly T., Assistant Administrator and Chief Information Officer, U.S. Environmental Protection Agency; Tom Melius, Assistant Director for External Affairs, U.S. Fish and Wildlife Service, Department

of Interior; and Jim Scanlon, Acting Deputy Assistant Secretary for

Science and Data Policy, Department of Health and Human Services .... 5

Melius, Tom ............................................................................................... 13

Nelson, Kimberly T. .................................................................................. 5

Scanlon, Jim .............................................................................................. 20

Letters, statements, etc., submitted for the record by:

Greenwood, Mark, partner, Ropes and Gray, prepared statement of .......... 41

Kovacs, William, vice president for Environment, Technology, and Regulation, U.S. Chamber of Commerce, prepared statement of ...................... 72

Melius, Tom, Assistant Director for External Affairs, U.S. Fish and Wildlife Service, Department of Interior, prepared statement of ..................... 16

Miller, Hon. Candice S., a Representative in Congress from the State

of Michigan, prepared statement of ............................................................. 3

Nelson, Kimberly T., Assistant Administrator and Chief Information Officer, U.S. Environmental Protection Agency, prepared statement of ........ 7

Ruch, Jeff, executive director, Public Employees for Environmental Responsibility, prepared statement of ............................................................. 55

Scanlon, Jim, Acting Deputy Assistant Secretary for Science and Data

Policy, Department of Health and Human Services, prepared statement

of ..................................................................................................................... 23

Shapiro, Sidney A., university distinguished chair in law, Wake Forest

University, prepared statement of ............................................................... 82

(1)

IMPROVING INFORMATION QUALITY IN THE

FEDERAL GOVERNMENT

WEDNESDAY, JULY 20, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room

2154, Rayburn House Office Building, Hon. Candice S. Miller

(chairman of the subcommittee) presiding.

Present: Representatives Miller, Clay, and Lynch.

Staff present: Edward Schrock, staff director; Rosario Palmieri,

deputy staff director; Alex Cooper, clerk; Krista Boyd, minority

counsel; and Jean Gosa, minority assistant clerk.

Mrs. MILLER. Good morning, everyone. I am going to call the

hearing to order. We want to thank you all for joining us this

morning.

Our government has become increasingly reliant on scientific and

statistical information to make critical decisions about our health

and our safety, our economy, as well as our national defense. Part

of my job as a Member of Congress is to try to ensure that our government is relying on the very highest quality of information when

making decisions that affect millions of our citizens and thousands

of our businesses.

The Information Quality Act, sometimes referred to as the Data

Quality Act, was passed in the year 2001. The act required the Office of Information and Regulatory Affairs in the Office of Management and Budget to develop guidelines for ensuring and maximizing the quality, the objectivity, the utility, and the integrity of information that is disseminated to the public and to establish administrative mechanisms allowing affected persons to seek and obtain a correction of information. OMB issued its guidelines in February 2002, directing agencies to prepare their own guidance by

April 2002. Agencies have published their own guidelines, and they

have had 2 years of experience now in handling requests for correction of information.

Today we are here to review implementation by three agencies:

the Environmental Protection Agency, the U.S. Fish and Wildlife

Service of the Department of the Interior, and the Department of

Health and Human Services. Quality information is an absolute necessity for each of them to fulfill their missions. And whether it is

designating critical habitat for species protection, developing standards for water quality, analyzing and designating human carcinogens, or disseminating valuable public health information, the acVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
2

curacy and the quality of information must be, of course, of the

very highest caliber.

Today, we also live in an increasingly competitive global marketplace. Decisions by Federal agencies can impose millions of dollars

in compliance costs on companies or require them to re-engineer

their production processes to meet the requirements of regulations.

I fully support their attempts certainly to protect us from critical

health, safety and environmental threats. But the information that

we use to make those determinations certainly must be accurate

and objective.

The Information Quality Act is a ‘‘sunshine’’ in governmental

law, which is meant to provide greater transparency for the process

that produces research and regulation. Since its inception, less

than 100 requests for correction have been filed. Requests for correction of information have come from extremely varied groups.

Traditional business groups like the U.S. Chamber of Commerce

and the Kansas Corn Growers Association have been joined by environmental groups like the Public Employees for Environmental

Responsibility and also issue advocacy groups like the Americans

for Safe Access to challenge the quality of government-disseminated information. Agencies that have granted relief under the correction process have removed information from their Web sites,

they may have updated or added information to Web sites or documents, or linked further review to ongoing studies within the agency.

This, we think, is a very far cry from the danger that was supposed to occur as a result of the passage of this act. Some insisted

that there would be ‘‘death by data quality,’’ that agencies would

be overwhelmed with requests and that necessary regulation would

be stopped. The facts do not prove that case.

One way to make regulation and the actions of government agencies less controversial is to make sure that we are relying on the

very best available science, sound science, and the highest quality

of information.

Government information will only become more critical in the future as health, safety, and environmental regulation are increasingly tied to scientific research. When jobs and lives are on the

line, it certainly is our duty to make sure that the best information

is being used. And the Information Quality Act has provided us

with excellent mechanisms to accomplish that goal.

[The prepared statement of Hon. Candice S. Miller follows:]

3

4

5

Mrs. MILLER. We are waiting for our ranking member, Mr.

Lynch. I think he is on his way. But we will continue with the

hearing, and when he gets here we will certainly yield to him for

his opening statement.

Our first panel is prepared to testify, and it is the process in the

Government Reform Committee that we swear in all of our panelists, so, if you will, raise your right hands.

[Witnesses sworn.]

Mrs. MILLER. Thank you very much.

You all have the little boxes in front of you to give you the signal.

We try to keep the testimony to approximately 5 minutes. If it is

necessary for you to run over a bit, we do have time, certainly. But

when you see that yellow light, you know you are about a minute

away from that, so, if you could watch that a bit.

Our first witness has been before our group here before. This is

Kimberly T. Nelson. On November 30, 2001, Kimberly Nelson was

sworn into the position of Assistant Administrator for Environmental Information and the Chief Information Officer for the U.S.

Environmental Protection Agency. Prior to her joining the EPA,

Ms. Nelson served the Commonwealth of Pennsylvania for 22

years. Ms. Nelson graduated from Shippensburg University in 1978

with a bachelor in secondary education, political science, and from

the University of Pennsylvania in 1987 with a master in public administration.

We certainly thank you for your willingness to appear again before our committee, and the floor is yours, Ms. Nelson.

STATEMENTS OF KIMBERLY T. NELSON, ASSISTANT ADMINISTRATOR AND CHIEF INFORMATION OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY; TOM MELIUS, ASSISTANT DIRECTOR FOR EXTERNAL AFFAIRS, U.S. FISH AND WILDLIFE

SERVICE, DEPARTMENT OF INTERIOR; AND JIM SCANLON,

ACTING DEPUTY ASSISTANT SECRETARY FOR SCIENCE AND

DATA POLICY, DEPARTMENT OF HEALTH AND HUMAN SERVICES

STATEMENT OF KIMBERLY T. NELSON

Ms. NELSON. Thank you, Madam Chairman. I really do appreciate the opportunity to be here today, as we talk about the implementation across the Federal Government of the Information Quality Act and particularly regarding our own implementation at EPA.

EPA’s mission is to protect human health and the environment,

and it is highly dependent upon the collection, use and dissemination of information of very high quality. As EPA’s Assistant Administrator for the Office of Environmental Information and our CIO,

I work with colleagues throughout the agency to ensure that EPA

collects, manages, uses, and provides high quality environmental

information.

The Office of Environmental Information, which I lead, is responsible for a number of activities under the Information Quality Act.

A few of those are providing leadership to improve the quality and

utility of the information we use at EPA; fulfilling the information

needs for the agency while reducing the burden of collecting that

information; ensuring that the best practical and most cost-effecVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
6

tive technology is applied to meet EPA’s information needs; providing leadership in the integration, analysis and interpretation of environmental data; and ensuring that EPA works with all of its data

partners, both within the agency as well as outside.

As such, EPA takes implementation of the Information Quality

Act very seriously and views the act as an important component of

our overall approach to ensuring the use and dissemination of high

quality information. In October 2002, EPA published its information quality guidelines for ensuring and maximizing the quality of

information it disseminates and creating an administrative mechanism to enable the public to seek and obtain corrections of information they believe does not comply with EPA’s or OMB’s guidelines.

To date we have received at EPA 30 requests for correction and

10 requests for reconsideration. These requests have originated

from a diverse set of requesters and have focused on a wide range

of information types, including information that has been disseminated as part of a rulemaking, and distributed internal policies,

which are found in some of our data bases and contained in our

hazard and risk assessments and made available to the public on

our own Web site.

Our goal has been to respond within 90 days to a request for correction. My office manages that correction process and, as a first

step, identifies the EPA information owner to evaluate the request.

A cross-agency team then develops the response and submits it to

the EPA senior management for review. OMB, in its oversight role,

reviews the final draft to ensure consistent implementation across

the Federal Government. EPA posts all of its communications regarding requests on an IQG Web page that we have created.

If the requester is not satisfied with the response, they may file

a request for reconsideration within 90 days. The EPA information

owner presents the request to a three-member executive panel,

which I usually chair, unless I have to recuse myself when the request itself involves a program under my jurisdiction. This panel

assesses the request and issues a final decision. In response to a

request for correction and reconsideration, EPA has taken actions

to improve the quality and the transparency of the challenged information.

As you know, I have submitted a more detailed description of our

implementation of the Information Quality Act in my more formal

written statement, and I thank you today for the opportunity to

talk about that implementation. I am happy to answer any questions when the time suits.

[The prepared statement of Ms. Nelson follows:]

7

8

9

10

11

12

13

Mrs. MILLER. Thank you very much.

Our next panelist is Thomas Melius. I hope I am pronouncing

that correctly. Mr. Melius has been the Assistant Director for External Affairs of the Fish and Wildlife since March 2003. And, in

addition to overseeing the national programs for public affairs, congressional and legislative affairs, and acting as a Native American

liaison, he also provides oversight for the Service’s National Conservation Training Center in West Virginia. Mr. Melius has had a

20-year background in environmental and conservation issues.

We are certainly pleased to have you join us today, as well sir,

particularly when you told me you had spent some time in the

upper peninsula of Michigan.

Mr. MELIUS. Yes, I have. Thank you.

Mrs. MILLER. We appreciate your coming, and you have the floor.

STATEMENT OF TOM MELIUS

Mr. MELIUS. Thank you. As you mentioned, I am Tom Melius,

Assistant Director for External Affairs at the U.S. Fish and Wildlife Service, and we appreciate the opportunity to testify today regarding the Service’s implementation of the Information Quality

Act, commonly referred to internally as the IQA.

The goal of the IQA, as you have stated, is to ensure and maximize the quality, objectivity, utility, and integrity of information

disseminated by Federal agencies. The Service appreciates and

fully supports the IQA’s goal of ensuring the quality of scientific information used by government agencies and making this information transparent for the public. Science is the foundation of all of

our conservation efforts, and the Service has a long and proud tradition of scientific excellence.

Let me briefly outline for you how the IQA is implemented at the

Fish and Wildlife Service.

Affected persons or organizations may challenge the quality of information disseminated by the Service under IQA guidelines by filing a formal request for correction with the agency. Upon receipt,

these requests are reviewed for appropriateness under our own

IQA guidelines. Once a request is deemed to be appropriate, it is

routed to the program or the regional office responsible for the information being challenged.

After researching the issue and developing a draft response, the

reviewing office submits that decision to my office. My office coordinates with the Department and OMB personnel to ensure the accuracy of the response, and then I sign the document and deliver it

to the requester.

Responses are issued within 45 business days of receipt of the

original request, unless an extension is needed for additional review in which case the Service informs the requester of the extension and the reasons why it is needed.

If a request is approved, the Service will take the corrective action. If a request is denied, the requester has 15 business days to

appeal. Appeals are forwarded to the Service’s science advisor, who

conveys a team of program or regional personnel with knowledge

of the information in question. The team develops a recommendation, which is then considered by our director, who makes the final

decision on appeals.

14

In fiscal year 2003, the Service received six requests for correction of information under the IQA, and of these six, five met the

standards for consideration. One of the requests, dealing with

trumpeter swan, ultimately went through the full appeals process,

which involved reconsideration for the request by an independent

panel led by our science advisor.

In fiscal year 2004, the Service received five requests. Two of

these requests did not meet the standard for consideration and

were subsequently dismissed. The remaining three requests met

the standards; two involved the species of sage grouse and one involved the Florida panther. All of those have been completed, with

the Florida panther having gone through the full appeals process.

We have not received any requests, so far, for fiscal year 2005.

Based on our experience with the IQA thus far, though, we offer

these observations. First, we believe that the IQA has had beneficial effects on the way the Service considers the use of scientific

information in decisionmaking. Two examples come to mind. The

first deals with the proposed listing of the slick spot pepper grass,

a species of grass that had been proposed for listing under our Endangered Species Act. The second deals with the scientific information concerning recovery of the Florida panther.

In the case of the slick spot pepper grass, that IQA request did

require the Service to review the science that we had proposed in

the listing for that species. That review did have influence, though,

because our decision to move forward was not appropriate, so we

did not list that particular plant species. In the case of the Florida

panther, the IQA process identified areas where the Service had

not updated scientific information on that species, which was evolving at the time. And, as a result, the Service has accelerated its

schedule to correct and update particular files and data concerning

corrective actions for that.

In another observation, we have found that handling the request

for corrections under the IQA can be complex. Certainly, we have

learned that our own guidelines, which allow us only 45 days for

response to a request for correction, needs to be amended. We are

currently considering the best method to provide additional time

for review and response, while still responding to the public in a

timely manner. Our new guidelines announcing these revisions will

be reported in the Federal Register.

Finally, fulfilling our responsibilities under the IQA in a manner

that is consistent with our legal obligations under the Endangered

Species Act and the Administrative Procedures Act has presented

some unique challenges. Our current approach to an IQA request

that is received during a rulemaking process, but after the close of

that comment period, is to prepare a response prior to the final

rulemaking, but the release the response after the final rule is published. In such a case, all the issues raised in the IQA request are

addressed separately from the rulemaking. The responses, though,

to the questions do, however, inform the rulemaking process. This

approach has served to raise issues that may have been overlooked

in a more general rulemaking process, and we believe have helped

improve the product that we finally issue.

15

In general, the Service believes the IQA process is working and

provides a benefit to the public. We will continue to improve our

process as we gain experience with responding to IQA requests.

This concludes my testimony, Madam Chairman. I would be

pleased to answer any questions you may have. Thank you.

[The prepared statement of Mr. Melius follows:]

16

17

18

19

20

Mrs. MILLER. All right. Thank you very much.

And our next witness will be James Scanlon. Mr. Scanlon is the

Acting Deputy Assistant Secretary for Science and Data Policy with

the Department of Health and Human Services. He has been in

this position since July 2002. As Acting Director, Mr. Scanlon coordinates all health and non-health data collection analysis activities. Mr. Scanlon is an expert in the health data and research.

Again, we are very honored to have you with us today, sir, and

the floor is yours for your testimony. Thank you.

STATEMENT OF JIM SCANLON

Mr. SCANLON. Thank you, Madam Chairman. Thank you for the

opportunity to testify today about the implementation of the Information Quality Act within HHS. As you indicated in your statement, HHS administers more than 300 programs and is comprised

of 10 large operating divisions, including household names in the

public health world like NIH, CDC, the Food and Drug Administration, and the Federal Medicare and Medicaid agencies.

In the course of carrying out their missions, our agencies disseminate a wide variety of information to the public, and this

ranges from research, scientific and statistical reports to expert

and authoritative health and medical information aimed at the

general population.

Consequently, HHS is committed to supporting, developing, and

disseminating information consistent with the Information Quality

Act. It has long been an HHS goal to ensure that the best available

scientific and technical information is used to support agency policy

and regulatory and program decisionmaking.

Within HHS, we issued our HHS information quality guidelines,

as the other agencies did, in October 2002, and we created an extensive HHS information quality Web site to support implementation. In implementing the IQA within HHS, we took several approaches that may differ from other agencies because of our size

and the variety of our programs. First, we implemented the IQA

through our science policy and data policy channels, not our CIO

channels. Second, it became obvious early on that a one-size-fitsall approach across HHS would not work, so we developed a combination of HHS-wide umbrella guidelines with standard policies

and procedures, supplemented by agency-specific guidelines within

that overall framework.

Third, we designated a lead office, my office, as the lead coordinating office and implementing office to oversee implementation,

and we created an HHS-wide Information Quality Working group

with representatives from across HHS to ensure we had a coordinated and integrated approach across implementation.

The resulting guidelines, as I said, were issued in October 2002.

The purposes are twofold: to provide policy and procedural guidance to our own agency staff about what is expected, and to inform

the public about the policies and procedures that we do employ to

ensure the quality of the information we disseminate. Part I of our

guidelines on the Web site describes these department-wide umbrella guidelines and policies. Part II describes the agency-specific

policies. So FDA, NIH, CDC, and Medicare would have supplemental policies as well. Responsibility for implementing the guideVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
21

lines within the HHS operating divisions is the responsibility of the

head of that agency—for example, the head of the NIH—that disseminates the information.

Overall departmental level responsibility for oversight and coordination rests with my office within the Office of the Secretary.

As I indicated, our guidelines do contain an administrative mechanism that allows effective persons to seek and obtain correction of

information that they believe does not comply with the guidelines.

And we established a common format across HHS to make it easier

for complainants to deal with our various agencies.

Our Web site contains information about how to submit a request for correction and identifies the individuals in the agencies

to whom requests are to be submitted.

Let me turn now to response time for our first 2 years of experience.

Our initial goal was to respond to all requests for correction

within 60 calendar days of receipt. But our experience has shown

that actual response times generally are considerably longer. This

is because of the extensive expert staff time involved and the wide

range of agency scientific and legal reviews that are involved in assuring a complete and responsive response.

In cases where the request will require more than 60 calendar

days to resolve, the agency usually informs the requester that more

time is required and indicates the reason why. If the requester is

not satisfied with the original response, he or she may appeal that

decision within 30 days.

Our position on appeal is very liberal: we pretty much consider

any request for consideration that is submitted. And, generally, the

appeal is handled at least one program level above the originating

office, and usually involves senior HHS officials.

In terms of our experience with complaints, we have received 22

information requests for the first 2 years. Thirteen then went to

the appeal stage. All but four have been closed. In terms of agencies, most of the correction requests nine were aimed at our National Toxicology Program, other parts of NIH received an additional two; and FDA and CDC received four and three, respectively.

The challenges included a variety of topics in public health, for

example: CDC information on water fluoridation and sexually

transmitted diseases; NIH information on the health effects of

smokeless tobacco; and a number of correction requests aimed at

toxicology profiles developed by our National Toxicology Program.

So, virtually every agency has received at least one information

quality request.

All the requests are taken very seriously by the agency. There

are a number of examples where information on the Web site or

in reports was updated or expanded or incorporated into the next

version of periodic reports to reflect the updated information. For

example, at the National Institutes of Health, an information quality request concerning the health risks of smokeless tobacco pointed out some problems with the information the agency was disseminating, and NIH then updated the information, providing a

more complete and expansive set of information in support of the

risks associated with smokeless tobacco.

22

At our National Toxicology Program, a number of toxicology profiles have been updated and expanded or incorporated into next revisions based on the information quality complaint process.

Thank you for the opportunity to testify. I would be happy to answer any questions.

[The prepared statement of Mr. Scanlon follows:]

23

24

25

26

27

28

29

30

31

Mrs. MILLER. Thank you very much. I appreciate all of you coming. I tried to listen to all of your testimony here. One of the common elements that I was sort of picking out there is how many requests you get and how many days you had to respond. And I don’t

know if I wrote down the right information as you were testifying,

but I think I got 12 from Mr. Melius. Is that correct?

And, Mr. Scanlon, you said you had 22?

Mr. SCANLON. That’s correct, ma’am.

Mrs. MILLER. And then 60 days to respond.

And in your case, Mr. Melius, 45 days to respond.

And the EPA, I thought you said 30. But I am not sure how

many days they had to respond.

Ms. NELSON. We have received 30 so far, and we set 90 days as

our goal for response.

Mrs. MILLER. Ninety days, when they first passed the law—and

I was not here when they passed this law. I am trying to get myself

up to speed on exactly all the impetus behind it and how it is working and what kinds of things we could do to assist all the agencies.

Do you think it would be helpful, rather than each of you having

a different amount of days to respond in the appeals process, if we

had something—I know one size does not fit all, but is there anything that Congress could do to assist you with the amount of information for correction that you are getting and days to respond

and the appeals process, and all that, so that we had a common

theme throughout some of the agencies?

I will leave that open to any of you to answer.

Mr. MELIUS. I believe the guidelines that came out of OMB did

provide some flexibility for agencies, in establishing our own guidelines, to create a structure where we could meet an unknown demand, and we are adjusting as we are going through that. On behalf of the Fish and Wildlife Service, we may have been a little bit

too ambitious in our thoughts early on, that we could conduct reviews at the timeline that I identified.

In listening to my colleagues and other departments and agencies, they have a little bit more lengthier time, and we are finding

out, as I indicated, that is causing some need for some extensions.

So we are looking at a process through our revisions to give us a

little bit more time for responding, but yet still meeting in a timely

fashion that response. I am not certain the law needs to be

changed; it is more or less our own internal guidelines to implement that.

Mrs. MILLER. Your own experience as you go forward.

Ms. NELSON. I would also add to that. I think my experience

shows that there is an awful lot of discussion that occurs between

agencies and among the agencies on our experiences in implementing our own guidelines and the guidelines that have come down

from OMB. And I think what you will find is there will be a natural tendency to start to move toward some more consistent timeframes between and among the agencies as we all have our own

experiences.

I do think it is probably best left to the agencies to come up with

timeframes because we are all different, given the size and the

complexity and the structures of our organizations, in terms of how

many people we have to bring together and the complexity of the

32

issues we deal with. But I think you will begin to see more similarity in the future rather than less.

Mr. SCANLON. I think we have the same view. I don’t think the

law needs to be changed. And the OMB guidelines give us a fair

amount of flexibility, recognizing the agency missions and statutes.

We clearly estimated on the optimistic side when we projected a

60-day ability to turn around appeals and initial requests. We are

looking at empirically how much time they have actually taken,

and in our revision we probably would extend that. But, again, I

think we have the flexibility to do that without any changes in the

law.

Mrs. MILLER. OK. I appreciate that.

Just for my own, as I try to understand exactly the kinds of activity that this law is generating for your agencies; perhaps, Mr.

Melius, you could expand a little bit for me, if you would. You used

the example of the trumpeter swan. Now, what kind of information

would you have that somebody would question what you had about

the trumpeter swan? And you mentioned that particular request

went all the way through your appeal process. Could you sort of

lead me through?

Mr. MELIUS. Sure, I will use that example, because that did go

all the way through the appeals process. There was a petition to

list a portion of trumpeter swan population as a endangered and

threatened specie, and when you do that, information comes in

from a variety of avenues that we review to make sure that our action is based upon the best science available. And when information comes in like that and we react with either a proposal to list

or not to list, then information dealing with populations, the numbers of the species, is then challenged and reviewed to make sure

whatever we are using, from our biologists or other biologists is indeed the best science that we have available to us to make those

decisions.

On the trumpeter swan there was a proposal to request to make

the certain part of the population a specific entity under the Endangered Species Act. We decided not to do that. That was the end

result. But during that process, data that we had used was challenged, and initial response went back that after our first review

we decided not to change anything and continue with the process.

That was then appealed. A request came in for appeal. So, we

formed a panel of experts in trumpeter swan biology. They came

together and looked at the information that we had used to make

that decision, and, again, we did not need to correct information because of that appeal. Though one of the things that did come out

of that particular request was that when the Director of the Fish

and Wildlife Service did ask to have the compilation of those studies sent out for a peer review, other experts looked at it also. They

reported back to us after the peer review that, again, we had acted

properly and the data that was used to make that decision not to

list was appropriate.

Mrs. MILLER. Just one other question on that. Who would ask

you for that kind of information?

Mr. MELIUS. The particular group that had—you mean who had

asked for correcting that information?

Mrs. MILLER. Yes, yes.

33

Mr. MELIUS. That particular request came from PEER.

Mrs. MILLER. I am just trying to get a handle on the kinds of requests that you get for correction from the various agencies and if

there is a common theme. And I guess I would ask this to all the

different panelists. As you are getting requests for corrections, is

somebody tracking this? If you get eight requests all on the same

type of information that you have there, that is obviously a red flag

that perhaps something could be wrong with the information that

you have there, or that at least a lot of people have that consternation. Is somebody tracking the kinds of benchmarking, what kinds

of requests you are getting for correction? And then, if they go into

the appeals process, that you don’t start that up again? Do you

then put that all on your Web site so people can see that you have

corrected it?

Ms. NELSON. Madam Chairman, in EPA we do that. All requests

for correction, as well as the requests for reconsideration, are

tracked by my office. So everything comes in, we understand what

it is, we work with the work group, we review our answers. Ours

have actually been very varied in terms of the kinds of requests we

have received, the 30 requests we received, very little duplication

in terms of those. But once we begin to see those, that certainly

then should be, as you said, a flag that perhaps there is one particular area in the agency that needs a little bit more attention. We

have not seen that to date. But we have the information to know

if that were to exist.

Mr. MELIUS. We also have all of our requests listed on our Web

site, as well as all the information relating to each one of those

posted as soon as we complete that action. It varies, of the IQAs

that we have received, from an environmental group to a private

citizen to a homebuilder on one of them. So, it is not a distinct segment of the Nation that is just specifically asking for corrections,

it is kind of all over the board. But, again, we are only kind of 2

years into this process, and as we are implementing it we are trying to be as transparent with the requests that are coming in and

the actions we take by all of us having very active Web sites providing that information.

Mr. SCANLON. All of the incoming requests and the responses,

appeals and responses to appeals are monitored within HHS not

only by my office, but by our departmental work group. And we too

receive requests for virtually all segments of society, from private

citizens—as you would imagine, some of our health information is

directed at individual behavior or health facts—as well as industry

groups that might be affected by a listing or de-listing or a characterization about chemicals, as well as advocacy groups in some

cases, where they believe we hadn’t gone far enough in an advisory.

So we are quite varied. We haven’t seen really a systematic kind

of a problem.

The most popular of our requests, the National Toxicology Program has received most of the requests. That is almost the nature

of their work; they have to assess compounds, chemicals, and so on

for potential carcinogens, and it is a very elaborate science-based

process. But in virtually every case there were distinctions, for the

most part, that were updated. In virtually no case was the original

finding or the bottom line overturned. Nevertheless, they are lookVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
34

ing at their overall science review. Perhaps it is just because they

receive so many, and they are probably going to strengthen it in

a few places.

But as my colleagues have said, it is quite varied. There is not

a systematic pattern emerging, for the most part.

Mrs. MILLER. You know government is often accused of ‘‘make

work,’’ and sometimes we make work. Unfortunately, for the agencies that perhaps stops you from doing your regular regulatory

kinds of processes or other kinds of things that you should be

about. Again, I wasn’t here when the Information Quality Act was

passed, but I know there was quite a bit of debate at that time

about whether or not it would strain the resources of the agency,

whether or not it was really a worthwhile kind of endeavor for all

of you. Some have said that you might be overwhelmed with all

these different requests. I guess I don’t know what it all means in

relative terms to have 12 requests for correction. I am not quite

sure what all of that has been, your personal experiences. Could

you try to give me a handle on whether or not you feel that this

is a worthwhile act, that you do have the resources to comply?

Ms. NELSON. Would you like me to start?

Mrs. MILLER. Please.

Ms. NELSON. I will say I do believe it is a very worthwhile act.

I think anything that helps set the foundation and the core for

quality decisions is very worthwhile within the agency. I also believe you are correct. There was a lot of uncertainty in terms of the

volume of requests that were coming to an agency. At least for our

part, the volume is not what at least some people had projected before the guidelines went into place. We do take the act very, very

seriously. I think it is one reason we set a 90-day deadline when

we put our first guidelines in place. We knew that the issues EPA

deals with tend to be very, very complex, based on very difficult

issues that don’t always have a lot of certainty with them. So we

set a long deadline for that so that we could address these issues

in a very serious manner. It would certainly be easy to turn some

of these around quickly if you didn’t address them seriously, but

we try to do that.

That kind of attention to these very significant requests does result in a redirection of resources. I have to be honest in saying

that. When you take an act seriously, it does mean you are redirecting resources. Of course, there were no new resources. That

doesn’t mean, though, that redirection is harmful to the agency. In

some respects, I believe, even in areas where we have not granted

the request articulated or asked by the requester, we have in fact

made some changes within our organization that I believe make it

stronger and will result in better decisions in the future.

So, to summarize, yes, it has absorbed resources; yes, we have

had to redirect resources. I don’t think it has been overly burdensome, and I do think in many respects that redirection of resources

will make for a better agency in the future.

Mr. MELIUS. I would agree that the first year we were watching

and waiting to see just what type of requests, what volume of requests may come in. But as I have indicated, the management so

far with the dozen or so that have come into the Fish and Wildlife

Service and none yet this year, obviously, is manageable, though,

35

as I mentioned, we take it very seriously. And that means staff

time is devoted to the research, the analysis, the correction, if that

is the final outcome. But as my colleague has mentioned, it has

heightened the awareness of the quality and the transparency of

the work we do with the science. So, like I said, we support the

goals, and at this point we are able to manage and move forward

with this particular act.

Mr. SCANLON. Well, we too were concerned, at the initial passage

of the act, that we would be overwhelmed with requests, and it

turned out that, as we indicate, 22 over 2 years. We have managed

to absorb that within the current staffing patterns, though every

now and then, because some of these areas are very precise scientific areas, it may take some of our scientific staff away a little

bit to deal with that specific response. But normally we have absorbed it within the regular operations of the agency at the level

we are receiving now.

Some of the requests we received were quite elaborate legal

briefs, and I don’t think we were anticipating at the beginning that

we would be involving our legal staff quite as much as we did. In

many cases the correction request interacts with Administrative

Procedure Act requests such as rulemaking, citizen petition, and

other areas, and it actually takes a little while to disentangle how

it all fits together. But, again, we have managed to absorb that, so

far, into the current agency resources.

Mrs. MILLER. I have had not a number, but several people who

have said the act isn’t really working as it was originally designed,

and that they were even advocating for repeal. I am certainly not

getting the sense from any of you that—I don’t believe I am getting

that sense, that any of you think the act should be repealed. But

is there anything that, again, we could do or any suggestions you

may have on how it could be modified to assist the agencies in compliance, now that you have had a couple years of experience under

your belt? Particular suggestions that any of you may have, or are

you just going to continue to fine-tune the process that you have

put in place?

Start again with Ms. Nelson.

Ms. NELSON. I think the jury is still out on that question. October will mark the third anniversary of the implementation, but it

takes a while. Even though that is the 3rd year anniversary, we

really don’t have ‘‘3 years of experience.’’ I think it is still a little

too early. For ourselves, even within EPA, we are just at the process now—because now we have 30 requests—that we are beginning

to see enough that we can look for patterns or trends and understand whether we even want to modify our own guidelines. So, I

think it is just premature to do that at this point in time, to think

about changes to the act itself.

Mr. MELIUS. We would agree. Again, the guidance offered by

OMB and the subsequent guidelines that we have developed give

us that flexibility. And, as I mentioned, the one issue that we are

grappling with is just the timeline in getting a timely response

back.

The other issue, as my colleague mentioned—and we have not

had a situation, but it deals with making sure that we are following the Administrative Procedures Act properly. Many of our issues

36

deal with notices involving endangered species and some of them

are even court-ordered, imposing certain deadlines. We have not

had situations where a request comes in challenging information

that is up against a deadline ordered by a court, so we have not

had to face how you handle administration of IQA, and yet, you

still have a court-ordered deadline within an action. So our solicitors are still grappling, and legal time is being devoted to make

sure we have the right pathway figured out on that. But that is

more in our own guidance, not necessarily in the act.

Mr. SCANLON. Well, at HHS I think the concept of pre-dissemination quality review was an old and well established concept, so we

supported the goals of the Information Quality Act and had in fact

been practicing these before. I think the statute itself probably

doesn’t need any changes. In our view, it gives us enough flexibility. And the OMB guidelines give us enough flexibility to fine-tune

and adjust for what the experience may hold ahead. So I think,

again, it might be premature for any major changes.

Mrs. MILLER. Ms. Nelson, it is my understanding—you can correct me if I am wrong—that EPA does obviously a lot of this environmental modeling on various issues, and that oftentimes—I am

not sure really how often, but sometimes apparently the EPA will

go out into the private sector for various reasons. I am certain you

can’t afford to have all of those people on staff all the time for

every single thing that you do. But when you do use private concerns for some of your modeling, that, of course, is proprietary information; the model, the construct of the model may be built by

using software or what have you that is not really in the public domain, and a person that might question or want to ask for a correction of some of the information you may have up there is somewhat

disadvantaged if they are not able to access the foundation of the

modeling that has occurred there. How does that work and what

would a person have to avail themselves, the tools to be able to actually make a good analysis of whether or not what you have up

there is something they think is correct or whether they could request correction based on the modeling that you have, utilizing private concerns as well?

Ms. NELSON. This was an issue we discussed when our own

guidelines were being developed. I think you probably know that—

first of all, you know I don’t have a science background, so I will

be very careful venturing into the area of science, unlike my colleague at the other end of the table. EPA does, though, have a chief

science advisor, the Assistant Administrator for the Office of Research Development. Dr. Gelman, who served in that position at

the time we were developing our guidelines, was very active in the

development of those guidelines. He is no longer there and we have

somebody in an acting capacity, but still that role of chief science

advisor exists today.

The development of those particular models does fall under the

jurisdiction of the science advisor, and it is something we have

dealt with as an organization. Those models and the use of those

proprietary models is an issue that we are working through our

Science Policy Council, and we are waiting for some advice from

our Science Policy Council on that very issue. Once that policy has

been reviewed and we receive comments from the Council, we will

37

send that out for public input in terms of the use of proprietary

models in decisionmaking.

Sometimes that is the only thing we have available to us in

terms of making decisions. And I think that is something we do

have to keep in mind. Sometimes we just have to go with the best

available science, and that is what exists.

But if you would like a more detailed answer to that particular

question, I would be happy to consult our science advisor on that

issue, because I think that does more appropriately fall within his

realm than mine.

Mrs. MILLER. That would be helpful, if you could advance it to

the committee staff here. Perhaps if it is in draft form, maybe a

timeline as well of when we can look for that kind of a thing. That

would be very helpful. I appreciate that.

Ms. NELSON. Certainly.

Mrs. MILLER. Also, it is my understanding that one of the requests for correction to the EPA—back to Ms. Nelson here—was to

establish an interagency work group to look at some of the reviews

and that. Do you have any comment on how that might work and

what the agency’s response was to that particular avenue?

Ms. NELSON. Well, let me say in general I do think that the

interagency work groups are very valuable. We have used many of

those to get as far as we are on the information quality guidelines,

and we spend a great deal of our time throughout the agency on

interagency work groups. So I think it is an important way of doing

business today in the Federal Government, as we try to do a better

job of serving the citizen in a citizen-centric way.

The particular request to which you are referring I believe is

part of one that is under a request for reconsideration as we speak.

We are currently looking at the multiple facets of that particular

request for reconsideration. It is a very, very detailed and complex

matter, one that, as you alluded to, involves a number of agencies,

as well as a number of data bases and other issues affecting those

agencies. We are currently reviewing that and will address that

issue. But it would be premature at this point in time for me to

state what the agency’s final position is because we are currently

working collaboratively with those other partners on how best to

respond. But, in general, I would say I support the notion of working together across agency to better serve the citizen and to present

a more consistent view when we can do that, when it is appropriate.

Mrs. MILLER. I appreciate that. And, again, if you could keep the

committee up to speed on how you are proceeding with those kinds

of things, we find that very helpful also.

I want to thank all of our panelists. We have no other members

to ask you questions here, so before I dismiss you, I would like to

just ask if there is any question I have not asked. You all are working with this act and living with it everyday. If you were me, what

kind of questions would you be asking you? Is there something else

that the committee should be aware of that I have not asked you

the proper question?

I will start with Ms. Nelson.

Ms. NELSON. I think you have done a fine job. [Laughter.]

Mrs. MILLER. You are welcome in Michigan anytime. Thank you.

38

Mr. MELIUS. I think you have asked a lot of the very important

questions, and as all of us have said, we are learning as we are

going through this, and we are trying to be as responsive and

transparent as we can. And, I think it is a little bit too early yet,

but we are all learning as we move down this path.

Mr. SCANLON. I would agree. I think we have covered most of the

major issues. Again, we are learning almost month-by-month, and

it is a work in progress. And within the framework we have, I

think we just have to clarify a few more things and work them out.

Mrs. MILLER. All right. I will excuse you all and thank you very,

very much for your attendance this morning. All of your testimony

has been very enlightening. Thank you so much.

We will recess for a quick moment to empanel the next panel.

[Recess.]

Mrs. MILLER. Before you all sit down, I am going to ask you all

to stand up so I can swear you all in before we begin with our second panel. If you could just raise your right hands.

[Witnesses sworn.]

Mrs. MILLER. Thank you all, gentlemen.

All right, we have our second round of panelists ready. First up

is Mark Greenwood. Mr. Greenwood is a partner in the Washington, DC, office of Ropes and Gray, where he primarily practices environmental law. Prior to his joining Ropes and Gray in 1994, Mr.

Greenwood worked for the U.S. Environmental Protection Agency

for 16 years. He held a variety of senior positions in the Office of

General Counsel, all primarily dealing with legal environmental

issues. From 1990 until beginning to work for Ropes and Gray in

1994, Mr. Greenwood was the Director of the Office of Pollution

Prevention and Toxins.

Mr. Greenwood, we welcome you to the committee, and the floor

is yours, sir.

STATEMENTS OF MARK GREENWOOD, PARTNER, ROPES AND

GRAY; JEFF RUCH, EXECUTIVE DIRECTOR, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY; WILLIAM

KOVACS, VICE PRESIDENT FOR ENVIRONMENT, TECHNOLOGY, AND REGULATION, U.S. CHAMBER OF COMMERCE;

AND SIDNEY A. SHAPIRO, UNIVERSITY DISTINGUISHED

CHAIR IN LAW, WAKE FOREST UNIVERSITY

STATEMENT OF MARK GREENWOOD

Mr. GREENWOOD. Thank you, Madam Chairman. I serve as counsel to the Coalition for Effective Environmental Information. It is

a group of companies and business organizations interested in how

government agencies collect, manage, use, and disseminate environmental information.

We really appreciate the opportunity to appear before the committee today to talk about implementation of the Information Quality Act [IQA], as we sometimes call it. While our organization was

not involved in the enactment of this statute, we have been active

in its implementation.

In our view, the core objectives of the IQA represent commonsense values that the public, the agencies, and all interested parties should be able to embrace. While some groups have expressed

39

concern that the IQA will be used to undermine the core work of

the agencies, we do not see evidence warranting this concern.

In my remarks this morning, I will highlight a few of the points

from the longer written testimony which we submitted to the subcommittee.

I think it is important to recognize the key role that the IQA is

playing in the emerging role of E-Government. The power of the

Internet now allows agencies to deliver, to computer desktops all

over the world, data that has historically been kept in Governments’ internal files. The agencies have embraced this new capability with remarkable speed.

This trend toward E-Government offers many positive benefits.

But the benefits we all hope for will not materialize unless there

is a strong commitment to high quality information. This is where

the IQA steps in. By setting standards for information quality and

mechanisms to ensure compliance, the IQA is filling an essential

role that must be maintained and enhanced. In this sense, the IQA

should be considered one of the core good Government laws of the

information age equivalent to such statutes as the Freedom of Information Act.

The principles of the IQA represent common sense. Over a 2-year

period, OMB and the agencies developed a set of guidelines reflecting the following policies: agencies must use accurate data and explain the methods and assumptions used in their technical analyses; agencies must use the best available peer review data in making scientific judgments; agencies must communicate information

in an understandable way to interested audiences, including the

general public; and interested parties have a right to seek and obtain correction of information that does not meet the IQA standards.

We find it difficult to argue with those principles. Importantly,

these are neutral values that do not favor one faction over another.

To move the IQA, however, forward, in light of the controversy that

has occurred, we think it will be important to address some key implementation issues, which I would like to talk about for just a moment.

This agreement about the scope of the IQA and the nature of the

remedies under the statute have tended to dominate the correction

requests that have been filed so far. In particular, some correction

requests have become controversial because they have not focused

on informational remedies, which are the appropriate subject of the

IQA. Withdrawal of a regulation, for example, is not the right remedy for an IQA problem. While a rule may be improper if it is

based on flawed data, the question of whether a rule is valid is a

matter to be resolved under an agency’s organic statutes and the

Administrative Procedure Act, not the IQA. Clarification of the

remedies available under the IQA will help define the law’s appropriate role.

Another set of concerns about the IQA relates to questions about

accountability and oversight to assure agency compliance. At any

agency level, it has not been clear what internal management systems have been put in place to assure that the IQA standards will

be met. And, at a broader level, there is a substantial question of

40

whether judicial review is available for an agency to deny a correction request.

Now, some preliminary court decisions suggest that review is not

available, although this issue will probably not be definitively resolved in the courts for some time. We share the view of many parties that judicial review of IQA decisions should be available. But

other parties, including the Department of Justice, oppose that position.

A final set of implementation issues concerns what agencies need

to do to build information quality into the fabric of their operations.

OMB recognized this larger purpose by requiring agencies to develop some form of pre-dissemination review before information is

provided to the public. In particular, agencies should be identifying

patterns of errors in public information and developing solutions to

prevent future mistakes. Little information is available on how

agencies are implementing this aspect of the law.

In closing, thank you for the opportunity to address the committee on these matters. We encourage your continued interest in the

implementation of the IQA, and your leadership is necessary to resolve some of the implementation issues I have described. Thank

you.

[The prepared statement of Mr. Greenwood follows:]

41

42

43

44

45

46

47

48

49

50

51

52

53

Mrs. MILLER. Thank you very much.

Next is Jeffrey Ruch. I hope I am pronouncing that correctly.

Since 1997, Mr. Ruch has been the executive director of the Public

Employees for Environmental Responsibility. Mr. Ruch was one of

the founders of the PEER organization, and in its first 4 years he

served as the general counsel and program director. Prior to his

creating PEER, Mr. Ruch was the policy director and a staff attorney at the Government Accountability Project, and for the 17 years

leading up to this he was involved in California State government.

Mr. Ruch, we welcome you to the committee and look forward to

your testimony.

STATEMENT OF JEFF RUCH

Mr. RUCH. Thank you, Madam Chair. And I would like to begin

with the note that you sounded in your opening statement concerning transparency, and note that there is an inherent conflict between values of transparency and policies that require an administration to only speak with one voice. In the Federal Government,

if you only speak with one voice, that means that 1.8 million voices

must be stilled. And in the case of science or other technical matters, where the answers aren’t always clear-cut or in Black and

White, that can lead to an awful lot of unanticipated consequences.

I just want to note one.

We recently uncovered documents that the EPA’s science arm,

Office of Research and Development, now has a $5 to $10 million

budget for public relations activities that is designed to enhance its

corporate image, aid in product placement, and aid in marketing.

We are unclear as to what role public relations has with respect

to public science.

But more fundamentally, the issue I think that this subcommittee should be concerned with is that in Federal service now, truth

is a firing offense. So that employees can be fired for accurately

providing information of high utility and integrity. A key example—which is an Interior agency, not one of the three, but this case

has a shadow over the entire Department of Interior, and we think,

the Federal Government—involves the chief of the Park Police, Teresa Chambers, who was fired for her remarks as an official

spokesperson confirming information that had been provided to a

reporter by a union.

To the extent that those kind of cases stand, it has a chilling effect and makes it difficult for people to speak openly and provide

any measure of transparency in Federal service.

Now, specifically with respect to the quality of information, I

think as my testimony tried to make clear, in our perception, the

quality of information disseminated and relied upon by the Federal

Government is deteriorating, and the root causes of those are several. One is that scientists and specialists have almost no legal protection for raising problems. So, for example, questioning the methodology or the utility or the accuracy of a study is the sort of thing

that can lead to disciplinary action for which truth is no defense.

Second, even for those that have whistleblower protections, the

whistleblower protections have now been limited to people that go

outside the chain of command, so that specialists who raise problems inside the agency can be legally retaliated against for staying

54

within the chain of command. Almost perversely, the only way you

get legal protection is by going outside the chain of command. So,

these issues can’t be elevated. It is difficult to create a paper trail

so that the general citizenry can raise issues of transparency.

And, finally, as we document in the testimony, we see a growing

agency culture that rewards dissembling and dishonesty so that in

instances where the agency has been found to have been less than

candid, even to the point that there is a decision that the agency’s

action has violated the law, in more cases than now, the responsible official is rewarded or promoted.

Turning to the Information Quality Act, we likened it to a bucket

in a rowboat that is sinking. Now, a bucket is a good thing, but

your rowboat is still going to sink. The law has certain qualities,

but in the face of these overwhelming kinds of pressures, it really

doesn’t do much good.

First, one key weakness it has is that the Information Quality

Act requires the consent of the violator in order to work. We point

to the Army Corps of Engineers, which completely ignores all Data

Quality Act requirements; yet, there is no sanction.

Second, there is absolutely no standard for what constitutes quality information and there is no consistency. We pointed to examples

in the Fish and Wildlife Service, where the director, for no reason

at all, ignored the panel of scientists that had been convened to

oversee the review. And if asked in questions, I can give you other

examples where this becomes a problem.

And, third, there is no followup. With respect to the panther example, the agency announced the next day that no decision would

be changed by the Data Quality Act decision. The key documents

are still in place, and will be in place until the end of the year, and

maybe longer. The director who made the decision resigned and put

implementation in the hands of the official he overruled. And the

scientist who filed the challenge with us was fired. So, if that is

a victory, I guess I could be spared further victories.

With respect to recommendations, besides addressing the whistleblower issue, first, we strongly urge you to look at existing information quality laws, like NEPA, the Endangered Species Act.

These are far more meaningful measures and checks against information inaccuracy. Second, we very strongly urge that you look at

the absence of protections for public employees who come to Congress and provide you information. Those employees can be fired

without any legal recourse. And, finally, we think that something

needs to be done to address the agency culture that rewards those

that dissemble.

In conclusion, we think that unless Congress itself takes the

quality of information seriously, the quality of information won’t

improve. Thank you.

[The prepared statement of Mr. Ruch follows:]

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

Mrs. MILLER. Thank you very much.

Our next panelist, our next witness is Mr. William Kovacs. Mr.

Kovacs is a vice president of Environment, Technology, and Regulatory Affairs with the U.S. Chamber of Commerce. His principal

responsibility is to be the officer responsible for developing U.S.

Chamber policy on topics such as environment, energy, natural resources, agricultural and food safety, and regulatory and technology issues. Prior to joining the Chamber of Commerce, Mr.

Kovacs spent nearly 20 years practicing in private practice. He is

a recognized expert on environmental policy.

We certainly look forward to your testimony today. We appreciate your attendance before the committee, and the floor is yours,

Mr. Kovacs.

STATEMENT OF WILLIAM KOVACS

Mr. KOVACS. Thank you, Madam Chair. I am going to submit my

testimony for the record and just summarize it.

We really appreciate you having the oversight hearings on information. Everyone needs good information. Everyone, not just the

business community or Congress, but even the agencies. The reason we care so much is the fact that regulatory compliance costs

are estimated at about $850 billion annually. To put that in perspective, all the corporations in the United States pay about $123

billion in corporate taxes. So when you have 4,100 regulations a

year, and 191,000 regulations total, we see it as something where,

if we are going to spend this kind of money, we need to get it right

because we need to direct our resources to the right place.

Having said that, the Data Quality Act is certainly in its formative stages. The outcome as to its effectiveness is unknown, but I

can say—and after listening to the agencies, I think I probably

need to emphasize it—resistance by the agencies is certainly common. And the resistance falls in two areas. One is that they have

determined that the Data Quality Act is not reviewable by any

court, and, second, because it is not reviewable, the determination

of what is good quality data rests with the agency. So if those two

points are correct, then the Data Quality Act really will not be very

effective.

Having said that, the U.S. Chamber has decided that because of

the concerns we have for making sure there is good scientific data,

we have undertaken two actions: one, which is a hard-nosed action

against the Department of Health and Human Services, which was

just here, and that is now in litigation, and I will explain that a

little bit; and the second is the data inconsistency petition which

we have with EPA, and there we have taken a much more cooperative—although they may not view it that way, we have taken a

much more cooperative position.

On the salt litigation, what we have done here is we have asked

HHS, on the sodium study—and the reason we picked sodium was

it is something that affects, salt affects everyone in the public. And

they have come out with some guidelines, which say lower salt intake actually benefits everyone, all sub-populations. And we have

seen data that contradicts that. But that wasn’t the point. The

point was, what we did is we asked them, under the Data Quality

Act, to produce the data so that we could take the data and reproVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
70

duce the data to see if we could get the same scientific result. That

is one of the provisions of the act. HHS denied all of the data to

us at all points in time.

At that point we decided to sue them, and the defense is, as I

have mentioned before, that the agency has discretion and the act

is not judicially reviewable. If they win—and it is going to be argued later this year in the Fourth Circuit—the Data Quality Act

has very little effect on this.

Data inconsistency was the reason we picked this particular

issue—and we took a totally different approach. We aren’t hardnosed on this. We took 16 of the data bases of EPA, and on the

data bases they had different values assigned to the same chemical. So, for example, you could have chemical X in the ChemFate

data base having a value of 1. I am really simplifying this. And in

a Transport data base chemical X could have a value of a billion.

Now, the reason why these data bases are important is they

apply to every single risk assessment. These are the data bases

that apply to every risk assessment, every cleanup, and all of the

chemicals that are presently allowed to go on the market. So in

terms of having a broad, national impact, you are talking about all

of the data that is used to actually make health decisions. So we

thought, because of that—it was so simple—that we had to take it.

Now, with this particular data, we decided we were going to be

cooperative. This wasn’t going to be a game of ‘‘gotcha.’’ We weren’t

going to hide anything. We filed the petition and we gave all of the

scientific data to EPA and we said, look, your data bases are different. We think you need to involve NIST and USGS and other

people, because they use these data bases. The EPA flatly refused

us.

We did a petition for reconsideration, which has been mentioned.

We sent it out for a scientific study and the ground rules on our

scientists were as follows: you have complete independence to determine this data is inconsistent and you have complete independence to determine whether this data is good; you have complete

independence on making this data public, which we did to EPA;

and you have complete independence to publish it.

And we can now say that it has all been completely peer reviewed, and it has been accepted and will be published by the Journal on Environmental Science and Technology, one of the prominent journals in the world. And this is a public issue. They have

to get them straight.

Now, my conclusions—as I run out of time—one is neither approach, whether it be the hard-nosed litigation approach or the cooperative approach, has worked. In both instances the agencies

have appeared to resist. Two, if we prevail on the salt litigation,

then the Data Quality Act will mean something; there will be judicial review and the guidelines imposed by OMB will be meaningfulness.

If we don’t obtain judicial review through the courts, then we are

in a position where Congress has to decide either to give us judicial

review or live with the discretion that the agencies have over data.

And, finally, we have recommended that EPA bring forward this

interagency working group. You have agencies like NIST and the

71

Geological Survey that have great expertise in this area and really

could help us get these data bases or be consistent and correct.

Thank you very much.

[The prepared statement of Mr. Kovacs follows:]

72

73

74

75

76

77

78

79

80

Mrs. MILLER. Thank you. I appreciate that.

Our final witness has been to our committee on a previous issue,

and we certainly welcome him back, and that is Mr. Sidney Shapiro. Mr. Shapiro is a University Distinguished Chair in Law at

Wake Forest University and is a national scholar and expert in administrative law and regulatory policy. Mr. Shapiro received his

bachelors from the Wharton School of Finance at University of

Pennsylvania and his juris doctorate from the University of Pennsylvania Law school in 1973.

Mr. Shapiro, the floor is yours, sir.

STATEMENT OF SIDNEY A. SHAPIRO

Mr. SHAPIRO. Thank you, Madam Chair.

You mentioned that the IQA predates you. In late 2000, in fact,

Congress enacted the IQA as a two paragraph rider buried in an

appropriations bill. There were no hearings on the act and no one

referred to it during the debate on the larger bill. Moreover, there

was not, by any stretch, a consensus that the IQA was necessary

at the time of its enactment. There was no evidence that existing

mechanisms for the correction of information were inadequate, nor

was there any solid evidence that agency information was flawed

and in need of correction. I am not denying the regulation is often

controversial, but the disputes are almost always about regulatory

policy, not the accuracy of data.

Despite the lack of the need for an IQA, its defenders claim it

is a modest and useful attempt to vet the information on which

Government relies. In March 2005, the Center for Progressive Reform issued a report based on a review of IQA petitions. The report

demonstrates that the IQA has much more to do with creating new

opportunities to oppose and weaken regulation than the correction

of information. The report found eight reasons this was true.

First, regulated entities sought to censor information. These petitions wanted to exclude or withdraw inconvenient information entirely, rather than make some correction.

Second, many IQA petitions challenged agency policy decisions

and precautionary policies, rather than claiming some error in

technical or scientific data.

Third, other regulatory entities were making an end-run around

existing administrative procedures. These petitions attempted to

bypass traditional administrative opportunities to raise the same

arguments, or, having failed in those opportunities, to raise the arguments once again using an IQA petition.

Four, petitions were filed in an effort to delay already overdue

regulatory actions, which had already been the subject of extensive

opportunities for public participation.

Fifth, still other regulated entities sought to prevent action in

the face of incomplete, but accurate, information. There is a crucial

difference between incomplete and inaccurate information. Congress has authorized EPA and other agencies to act before there is

complete evidence about risk to humans and the environment. Regulated entities oppose such precautions and seek to camouflage

their opposition by claiming incomplete data is the equivalent of

poor quality data, which is politically convenient for them but simply not true.

81

Sixth, additional regulatory entities sought to use the IQA—rather than the Freedom of Information Act, as we have just heard—

to seek access to underlying data, even though the IQA gives no

access to data.

Seventh, regulated entities claim the IQA amended substantive

statutes and created new statutory requirements that an agency

has to meet before a regulation can be promulgated, which the act

clearly does not do.

Finally, regulated entities sought to sidestep the courts by attempting to discredit information that they could not exclude in judicial trials or would prefer not to encounter in future litigation.

Fortunately, agencies have rejected most of these efforts to undermine the regulatory process, but there is still a cost. The IQA

has resulted in delays in decisionmaking and consumption of agency resources that are needed to achieve substantive mandates.

Those who defend the IQA deny it is an effort to oppose regulation because there have been IQA petitions filed by environmental

and other pro-regulatory groups. However, most of the IQA petitions—72 percent of them—have been filed by regulated entities or

their trade associations. If this pattern continues—and I see no

reason it will not—regulated entities will dominate the complaint

process and heavily tilt it in the direction of disrupting regulatory

programs.

I believe the time has come for Congress to reevaluate the desirability of a separate, unneeded statute to aim at such a vague and

ultimately undefinable goal as information quality. I believe that

experience to date with the IQA establishes that it should be repealed.

Finally, Madam Chair, if I might, I would like to supplement my

testimony with an issue of the American Journal of Public Health,

which just came out today. It is about the development of good information in the Government and the politicization of science, and,

therefore, I believe it has direct relevance to this committee. Thank

you.

[The prepared statement of Mr. Shapiro follows:]

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

Mrs. MILLER. Without objection, we certainly will enter that as

part of your testimony.

And I certainly appreciate everyone on the panel appearing here

today. It is certainly my observation that our second panel in our

hearing today has a little more divergent observations of the IQA

than the first panel did. And I would start with Mr. Greenwood.

You mentioned, sir, that part of the implementation process, and

perhaps, some of the problems with implementing IQA is informational remedies that are available. And I think you suggested that

perhaps if they could clarify, clarification of some of the remedies

would be helpful if the agencies were able to do that. Could you

flush that out a little bit for me on how you might——

Mr. GREENWOOD. Sure. I think the point I am trying to clarify

there is that, as you heard from the other witness here, there is

a suggestion that you can directly attack a regulation through an

IQA petition. And the fact that it comes up in a rulemaking proceeding may give people the thought they can do that. Our sense

is you can’t do that. You are really challenging information. Most

of the time, when you want to get a remedy for information problems, you are adding information. And you are certainly not tampering with the regulatory process. You are simply adding information, clarifying, making something more understandable. And that

is usually an addition of information.

So I don’t know that the committee would necessarily have to

clarify this, but it would be one of these things that will probably

come out of the process over time, that many times when we talk

about information, we are not talking about withdrawing information or hiding anything. In fact, we are actually putting more information in the public domain to the benefit of everybody.

Mrs. MILLER. Following up on that, I think a common theme for

several of our witnesses was transparency and sunshine, or what

have you. And I think in your testimony you mentioned an analogy

between this and the Freedom of Information Act. Do you see similarities there?

Mr. GREENWOOD. I think these are very much parallel statutes

because the Freedom of Information Act is about making sure the

Government documents are accessible, and the Information Quality

Act is making sure that the rationale for how agencies have decided something is going to be also transparent. So I think, again,

it is all part of that network of laws that really should be there in

the information age to have the agency explain itself and provide

the documentation when appropriate.

Mrs. MILLER. Mr. Kovacs, if I could, I was very interested in your

talking about the Chamber’s litigation about sodium with the HHS

there. Is this a lawsuit that is just filed by the Chamber? Do you

have anybody filing an amicus? Is there any other interested parties?

Mr. KOVACS. We filed it jointly with the Salt Institute, and I believe it is the grocery manufacturers and the homebuilders who

have joined as amicus.

Mrs. MILLER. Just out of curiosity, why would the homebuilders

be interested in the sodium issue?

Mr. KOVACS. Well, I don’t know that they are interested at all

in the sodium issue. I think what they are interested in is whether

98

there is judicial review of the statute. And one of the points—if you

don’t mind, if I could just continue.

Mrs. MILLER. Certainly.

Mr. KOVACS. One of the points in the sodium that was the most

fascinating was really on the issue of mootness. One of the things

that HHS did several weeks before the trial in the District Court

was that they had filed a series of affidavits, which said all of the

data has been released, and, therefore, now that it is released, the

case is moot.

That caused us, then, literally at that time period, to hire an expert to go in and review all of the data that had been released and

file a counter-affidavit on that particular matter. And when we got

into court, after we had filed our affidavit, the first question that

the judge asked HHS is are we going to proceed on mootness. And

the first answer was no. And the reason it was no is because they

tried to say they released the data when they didn’t.

And this is why it is so complex and why the HHS needs some

many lawyers involved; it is because we are playing these kind of

games. Information that the Federal Government generates that

protects the health and safety of the people of the United States

needs to be in the public domain so that we understand it and can

challenge it, or accept it if it is right.

Mrs. MILLER. Could you tell me when you think you might get

an answer to your lawsuit, when that might be settled?

Mr. KOVACS. It is not going to be settled, I think that is pretty

clear. I think we are going to argue it later on this year, with an

answer probably in January or February timeframe.

Mrs. MILLER. Would it be your suggestion, then, to improve the

law, that the law does make accommodation for judicial review?

Mr. KOVACS. Right now, Madam Chair, we are very comfortable

with our arguments, and they are very simple, that when you have

a data quality petition and you have a review by the agency along

with an appeal, we view the decision on appeal as final agency action, and that gives us a right to judicial review within the courts.

And that has been pretty standard; it is how it is used in FOIA,

it is how it is used in NEPA. And there are thousands of lawsuits

on both FOIA and NEPA, so we think we are going to follow that

path. If not, we will be back.

Thank you.

Mrs. MILLER. I see. I appreciate that.

One other question for Mr. Kovacs. We are all, of course, very interested in our Nation’s competitiveness. When you see some of

these various studies about regulations, that is one of the things

this committee has spent a lot of time on, very oftentimes onerous

governmental burden of regulations, and how much it costs businesses, whether they are large, mid-sized, or small, and these

kinds of things.

Just out of curiosity, I wonder whether the Chamber or if you are

aware of any other groups that have done any studies on this particular act, the IQA, any kind of quantifying what the burden actually is on businesses, perhaps even individuals, but particularly

businesses and how it might harm our competitiveness?

Mr. KOVACS. Well, there are a lot of studies on the cost of regulation, I think, and the impact on competitiveness. Whether they

99

have been done in relation to the IQA, the IQA is just so new that

we are all sort of fumbling through this process. And the reason

the Chamber cares on the competitiveness issue so much is our CO

is really clear, we are going to pay the cost of regulation either

way. And even if you didn’t have regulation, we would regulate

ourselves because you would have so many lawsuits. So health and

safety is something that has to be protected no matter what. And

we are going to spend probably more than $850 billion next year

and more than that the year after. The question is let us spend the

money the right way, because, if we do, we are going to address

the right problem. If we spend the money the wrong way on regulatory issues, we are going to go 10 years out, and we are still

going to have the problem even after we have spent the money.

That is why we care.

Mrs. MILLER. I think my time has expired to questions, so I will

turn the floor over to Mr. Clay.

Mr. CLAY. Thank you very much, Madam Chair. And thank you

for conducting this hearing on this important subject.

Let me start with Mr. Shapiro. Good morning.

Mr. SHAPIRO. Good morning.

Mr. CLAY. We are hearing today from the other witnesses on this

panel basically that there is nothing wrong with wanting the Government to put out good information, and the Information Quality

Act helps to make sure that happens. Do you agree with their argument? And, if not, why not?

Mr. SHAPIRO. Perhaps I can give two responses. I appreciate the

question. First, everyone is interested in Government having the

best information possible and acting on it. But at the time the IQA

was adopted as an appropriations rider, it was largely, if not entirely, duplicative of existing administrative procedures, which

were going to the same purpose. Therefore, I think it is fair to say

that it is largely unnecessary. People already have opportunities to

seek the correction of erroneous information.

Second, there is a difference between information and data and

numbers. If the problem is that a number is wrong or that a piece

of data is wrong, it should be corrected. There is no excuse to having wrong data. But most of the disputes in regulation deal not

with is the No. 7 or is the No. 8; they deal with the kind of conclusions one makes from the available, and often conflicting, information that is in front of us. And those are policy issues. And the difficulty with the IQA is it inserts this process, these complaints,

these data complaints, right in the middle of the other administrative processes for dealing with policy. And, therefore, it is really not

about the correction of information. It is really about people trying

to get the agency to change their policy viewpoint.

Mr. CLAY. And you think that the IQA was duplicating the Paperwork Reduction Act?

Mr. SHAPIRO. Among others. Let me give you a good example. We

have heard here today—in fact, in the previous testimony by the

other panel—about an IQA petition that was received in the middle

of a rulemaking process. Now, anyone can comment on a rule, and

those who are interested often file detailed comments. And regulated entities in particular file detailed comments objecting to the

evidence, which the agency is using in making or offering a rule

100

to be adopted. The agency is required by existing law to make

available to any regulated entity all of the information, before it

goes to the final rule, that it is relying on. And at that point regulated entities, the public or anyone else, can come in and say that

scientific study is wrong, that one is incomplete, salt doesn’t do

what you say, salt only does this. So the rulemaking process

sweeps all of this into consideration, and then the agency looks at

all that information.

And, further, the courts require the agency, in rulemaking, before they promulgate the final rule, to respond to each and every

significant comment in the preamble to the final rule. So the agency cannot ignore these comments filed by the regulated entities. If

you have the IQA in the middle of this, then you are starting two

processes to do the same thing, and it is complex, it is duplicative,

it is unnecessary, and it wastes resources.

Mr. CLAY. Thank you.

Mr. SHAPIRO. Sorry for such a long answer.

Mr. CLAY. No problem.

Mr. Shapiro, it has been reported that industry groups met with

OMB earlier this year to discuss proposals to change the regulatory

system. One specific proposal that was reportedly raised was an

amendment to the IQA to explicitly provide for judicial review. Do

you have any concerns with this proposal?

Mr. SHAPIRO. I can’t imagine a way to make a bad situation

worse. What will happen if you add judicial review to the IQA is

that groups will be able to start collateral regulatory actions, judicial review actions, dealing with the same issues that are going

through the normal administrative process. So if an agency is dealing with a rulemaking and will eventually have to respond to all

the complaints about its information, as well as its policies, all that

will come up normally in judicial review. If there is judicial review

in the IQA, then someone will be able to start a separate judicial

action just dealing with some piece of data or some piece of information—or actually some policy in the rule—and take that up out

of context of the whole rulemaking and just attack that one piece

of data in a separate lawsuit, which loses sight of the overall picture and is a very bad way for us, I think, to determine whether

or not a rule is good or take some other action.

Mr. CLAY. OK. I thank you for your responses.

Thank you, Madam Chair.

Mrs. MILLER. Thank you.

Mr. Ruch? How is it pronounced?

Mr. RUCH. Ruch.

Mrs. MILLER. Ruch. OK. Mr. Ruch, I wanted to ask you, because

I think you were in the room when our first panel was here and

I was asking Mr. Melius about the trumpeter swan in my own effort to try to get a better handle on it. I have been informed you

actually were the one that asked for that particular correction, I

believe.

Mr. RUCH. Yes.

Mrs. MILLER. As I understood his testimony, he was saying that

the petition was actually denied, but they would give you some sort

of peer review. Do you think that having a better peer review before they disseminate the information could have helped your parVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
101

ticular case? Perhaps you could add a little bit for me of what that

particular case entailed.

Mr. RUCH. Sure. That result was the agency saying the data isn’t

broken, but we are going to fix it immediately. It involved the

trumpeter swan population in Greater Yellowstone and their natural migratory pattern—I am not a biologist—would have taken

them through Utah. But the Fish and Wildlife Service allowed

hunting of swans in Utah. So the issue of whether or not they were

protected under the Endangered Species Act affected whether or

not the swans were going to be shot as they flew south. That was

sort of the context.

We are a service organization for employees inside these agencies. We were approached by specialists within the agency to say

that the scientific basis for the agency’s decision that this was not

a distinct population that, therefore, jurisdictionally qualified for

protection, that the agency’s basis just couldn’t be supported by the

data, and that what they had was a non-peer reviewed summary

of information, and the key study, the lead author of that key study

claimed that her work was being misinterpreted by the agency.

So we view it because in many instances what is going on—in

our perception—inside these agencies, is that a politically predetermined action has been taken that is contrary to the weight of data

and to the opinion of the agency’s own specialists. Frankly, that is

what most environmental litigation is about, is the agency overruling its own environmental specialists. So we took those internal

objections, lodged them with the agency. The agency demurred. We

appealed. The agency put together a three-scientist panel who

agreed with us. That panel recommendation sat on the then-director’s desk from November, from before Thanksgiving, until I think

it was March, and he issued a one paragraph letter denying the appeal, offering no rationale except his inherent authority as the director.

We understand today—this is the first time we have heard—they

have completed the peer review. We haven’t seen it. But we viewed

that as an indication of just how weak it is. Notwithstanding what

the other witnesses said, generally speaking, it is our perception

that the Data Quality Act is used as the basis for obstruction only

when the agency chooses to use it as a pretext, not as the cause.

Mrs. MILLER. So, in your circumstance, you are going to find out

what their peer review actually—whatever their results are, whatever their conclusion is. Now, what do you think about judicial review, the possibility of having judicial review if you were not satisfied?

Mr. RUCH. We have described the law—and I think the same can

be said with respect to judicial review, which is this is slightly better than nothing, but only slightly. And the issue on judicial review

is—and the reason that the courts have not found it justiciable yet

is that the standards are so vague—utility, integrity, those kinds

of things—that they don’t qualify as sort of mandatory duties that

can be forced through the regular mechanisms of administrative

law. So if Congress wants to basically say, well, we are not going

to define these terms, we are just going to let the courts define

them, that is what judicial review would give you. If Congress, inVerDate 11-MAY-2000 09:11 Jun 07, 2006 Jkt 000000 PO 00000 Frm 00105 Fmt 6633 Sfmt 6633 D:\DOCS\27722.TXT HGOVREF1 PsN: HGOVREF1
102

stead, returned to this law and basically started making policy decisions about it, it would prescribe the limits of judicial review.

However, the reason I think that we are not as disturbed as

some of the other people in kind of, I guess, the world of public interest groups is we see the problem with agencies, science, particularly in the environmental area, as so bad and so polluted by politics that it is difficult to imagine how it is going to get worse.

Mrs. MILLER. You know, it would have seemed the easiest thing

was just to tell the trumpeter swans they couldn’t fly over Utah.

We wouldn’t have had that problem, right? [Laughter.]

Do you have any further questions, Mr. Clay?

Mr. CLAY. I have one more, Madam Chair, for Mr. Ruch.

The surveys of Federal agency scientists that you discussed are

very disturbing. I don’t believe that there is a problem with the

quality of science at Federal agencies. Scientists just want to do

their jobs and maintain the integrity of their work. The problem is

that this administration keeps interfering with the work scientists

are doing. Do you agree that the problem isn’t that there is a lack

of sound science in agencies, but the problem is really the political

interference with agency scientists? I would like to hear your

thoughts on it.

Mr. RUCH. We do concur. It has been our experience that this administration didn’t invent political intervention into science, but

what used to be kind of an extraordinary or unusual circumstance

is becoming routine. So what we have reported in the surveys that

we have done of scientists in agencies like the Fish and Wildlife

Service and NOAA Fisheries calls coming down even to the field

level—not just the regional office, but to the field level—and high

percentages of the scientists reporting scientific documents are

changed for non-scientific reasons.

One of the things we find most disturbing are high percentages

of scientists who are unclear what they are allowed to say not only

inside the agency, but outside the agency at scientific conferences.

So the larger point I was making about transparency, in our

mind, this goes to the agency specialists are very fearful—we think

they are scared to death—in that they feel that in issues particularly where there is any kind of controversy, they cannot tell the

truth.

Mr. CLAY. I thank you for that response.

Thank you, Madam Chair. That is all I have.

Mrs. MILLER. I want to thank all of our witnesses, our panelists,

for participating today in our hearing. I think it has been very,

very informative. Any other information that you might want to

submit for the record, we certainly will take that as well. And is

there anything that any of you have to add before we adjourn? Is

there a particular part of this act that you think we, again, haven’t

asked the right question that Congress should be aware of?

And I would start with you, Mr. Greenwood.

Mr. GREENWOOD. I guess I would only add one point. A lot of the

discussion in the hearing today has been about correction requests,

and I think that is appropriate in certainly the beginning of the

statute. That is probably the right thing to focus on. However, one

of the points I tried to make in my testimony, which I think is very

important, is thinking longer term about how you build quality into

103

agencies at the get-go. How do we make sure that things are right

the first time, so we don’t have to spend a lot of time going through

these correction requests and transaction costs associated with

those?

So I think over time it will be important. I hope that the committee can look at that issue and ask agencies how they are building

it into their way of doing business.

Mrs. MILLER. Thank you.

Mr. Ruch.

Mr. RUCH. We think the key issue is Congress spending more

time on oversight, on sort of the substance of these matters because, regardless of the rules, the agencies can easily come up with

ways to circumvent the rules. Let me give you an example. One of

the standards that is kicked around in the context of IQAs is

whether or not something is peer reviewed. We are dealing with a

matter in EPA where they have accepted an industry finance study

that says natural wetlands are a source of pollution in Florida, and

that the way to increase water quality is to replace them with golf

courses, because of water flow issues.

This study has been very controversial and EPA scientists resigned over it. The agency put it out for peer review and the peer

review came back largely negative. But the agency has taken the

position because it has been peer reviewed, regardless of the results, they can continue to use it. It is almost like form triumphs

over substance. And we think there is no substitute for just basic

oversight.

Mrs. MILLER. I appreciate that.

Mr. Kovacs.

Mr. KOVACS. I guess my final comment would be to really clear

up a mischaracterization. So often the Data Quality Act is just described as some rider on an appropriations bill. This is something

that Congress has struggled with since 1995. If you look at the Paperwork Reduction Act in that year, it said that the purpose of the

Paperwork Reduction Act is to ensure the greatest possible public

benefit and maximize the utility of information, created, collected,

maintained, used, shared, and disseminated for or by the Federal

Government.

And then when they weren’t getting any action out of OMB, in

1998, the House put in its Appropriations Committee report it

urged OMB to take this provision and develop rules. Again, in

1999, again in an appropriations report, it urged it again. And then

finally in 2000, Congress got tired of urging and it actually just put

in another statute.

So it wasn’t something that Congress just thought up overnight.

This has been a subject since 1995. And I think Congress got to

the point where they said, look, we are serious.

Mrs. MILLER. Mr. Shapiro.

Mr. SHAPIRO. Thank you. The IQA relates to many different processes through the Government, many different agencies in very

complicated and interrelated ways. And with all due respect, and

contrary to the last statement, I don’t think an appropriations rider

that was not the subject of hearings—and, frankly, I doubt that

most Members of Congress even knew about—is the appropriate

way to address such complexity.

104

Worse, by passing an act with such broad and vague language,

the legislature handed OMB essentially a blank check to write the

legislation itself, which, to me, raises important separation of powers questions. So, I really do think it is time for Congress to revisit

the statute, and our preference would be just to repeal it. Thank

you.

Mrs. MILLER. Well, again I want to thank you all so very, very

much for coming.

Mr. Kovacs, just one thing. You were talking about the Paperwork Reduction Act. That is also part of our purview here under

this committee. We will be doing some different things. But later

today the Congress is going to be reauthorizing NASA. My dad was

an aeronautical engineer; he worked on Redstone with Werner von

Braun. And I was talking to him last night about this bill coming

up, and he said, you know, Candice, it is all about paperwork. I

said, what do you mean, Dad? He said, well, when I was originally

a rocket scientist, it was very exciting times; we were able to just

shoot all kinds of things out into space. But once the Government

got involved, they would not allow us to shoot a missile until the

weight of the paperwork equaled the weight of the rocket. So I appreciate that with the paperwork reduction.

But, again, all of your testimony has been very interesting, and

we appreciate your attendance here today. Thank you so much.

[Whereupon, at 11:46 a.m., the subcommittee was adjourned.]

Æ