Most agencies successfully finalized their data quality guidelines on or about the Oct. 1, 2002 deadline, with few significant changes from draft guidelines produced months earlier. Nonetheless, there were some trends and overall similarities in the changes made from the draft guidelines to the final versions. . Generally, agencies:

• Further defined and clarified the administrative mechanism for requesting a correction of information or a reconsideration of a denied request. Many agencies fleshed this area out with additional requirements for a formal request or appeal, inclusion of response deadlines for the agency, and clarification on how the agency will handle requests. Example: The Nuclear Regulatory Commission's final guidelines, unlike its draft guidelines, details how requests will be handled, stating the NRC will, "Submit your [Information Correction Request] for review to an Initial Review Official (IRO) who is knowledgeable of the subject matter related to your ICR and who normally will be at the Branch Chief level and, in most cases, a member of the Senior Executive Service."
• Reworked requirements for filing a formal request for correction of information. One common addition requires that requestors explain how they are "affected" by the information. Since the guidelines were designed to allow "affected persons" to request corrections or file complaints about data quality, this requirement is a logical safeguard for agencies, providing grounds for dismissing requests when the parties are not affected by the information's dissemination. An important point is that the information itself must affect the requestor and not a decision or regulation based in part on the contested information. Example: The Federal Energy Regulatory Commission's (FERC) final guidelines builds on the six requirements for correction requests it had listed in its draft guidelines with two additional requirements:
  • "Explain why this information falls within the coverage of the guidelines, i.e., why it is not excluded from coverage."
  • "Describe how the person submitting the request is affected by the information error."
• Added or clarified a timetable for replying to requests for correction or reconsideration. In general, agencies commit to respond to requests within 30 to 60 days. For responses that exceed such a deadline, many agencies indicate they will provide a written explanation to the requestor, stating the reasons for delay and when the response can be expected. Example: Environmental Protection Agency's (EPA) draft guidelines did not provide any timetable for its response to an information correction request. However EPA added the following language into the final guidelines:
  "EPA's goal is to respond to requests within 90 days of receipt, by 1) providing either a decision on the request or 2) if the request requires more than 90 calendar days to resolve, informing the complainant that more time is require and indicate the reason why and an estimated decision date."
• Clarified timeliness requirements for requestors. Several agencies added a specific timeliness requirement (i.e., 60 days) for persons seeking a reconsideration of a denied request. For initial requests, several agencies left their timeliness requirements vague, typically providing only an example of a request made one year from initial dissemination. Others merely stated that requests and agency responses would be considered in relation to the timeliness of the information in question. Unfortunately, at least one agency that had a specific timeliness requirement for initial requests removed it from its final guidelines. Example: In its draft guidelines, the Nuclear Regulatory Commission (NRC) had no requirements that correction requests be made in a timely manner. However NRC's final data quality guidelines instruct requestors to:
  "Submit your Information Correction Request (ICR) within 60 calendar days of the initial information dissemination or within 60 calendars days of NRC notice of intent to rely, or its reliance, on the information."
  And for appeals:
  "Submit your appeal within 30 calendar days of receipt of NRC's notification of denial or notification of the corrective action."
• Included a "burden of proof" statement. This firmly establishes that requestors bear the full burden of proving that a correction is needed. Many agencies placed this statement near the administrative mechanism and the list of requirements for a request. Example: The National Institutes of Health added the following language, extremely similar to statements made in many other agencies' guidelines:
  "The resolution process addresses the valid needs of the complainant without disrupting NIH processes. Complainants should be aware that they bear the "burden of proof" with respect to the necessity for correction, as well as with respect to the type of correction they seek. In making a determination of whether or not to correct information, NIH may reject claims made in bad faith or without justification, and is required to undertake only the degree of correction that is appropriate for the nature and timeliness of the information involved."
• "Adapted" to Safe Drinking Water requirements for risk assessment. In its implementing guidelines, the Office of Management and Budget (OMB) directed agencies to "adopt" or "adapt" the risk assessment principles contained in the Safe Drinking Water Act (SDWA). All agencies stated they would "adapt," rather than "adopt," providing varying levels of detail on what this means. Several agencies did not address the SDWA principles in their draft guidelines, but added a section in their final guidelines to state that while they didn't typically engage in risk assessments, they would adapt the principles where applicable. Other agencies further detailed the adaptations they planned to use. Example: The Department of Labor added the following language after the draft guidelines failed to address the issue of risk assessment principles:
  "With regard to analysis of risks to human health, safety, and the environment maintained or disseminated by agencies, the Occupational Safety Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA), in performing risk analysis, are hereby adapting the standards contained in the Safe Drinking Water Act, as set forth in Appendix II. DOL does not anticipate that any other agencies will be performing such analysis of risks for their programs. However, to deal with unforeseen contingencies, DOL hereby adopts the Safe Drinking Water Act standards with respect to all programs other than OSHA and MSHA. Should it be necessary in the future for another DOL agency to perform such an analysis, DOL will consider, at that time, whether it is appropriate to adapt the Safe Drinking Water Act standards."
• Included troubling language on the application of the guidelines to rulemaking. Numerous agencies incorporated language recommended by OMB on the application of the guidelines to rulemakings, without any additional clarification. In some ways, the language attempts to safeguard the regulatory process from data quality challenges, but by explicitly sanctioning such challenges, it opens the door to interested parties to contest decisions in court and possibly delay or derail agency actions. It seems unlikely that many agencies realized how muddied this "clarification" could make things for rulemakings given that they sought to preserve flexibility in other areas. Example: Council on Environmental Quality's final data quality guidelines included the following language:
  "When a person wishes to challenge information that is disseminated in the course of a rulemaking or another administrative process that provides for public input, challenges to information should be brought forward within the context of public participation under the existing administrative framework. In cases where the agency disseminates a study, analysis, or other information prior to the final agency action or information product, requests for correction will be considered prior to the final agency action or information product in those cases where the agency has determined that an earlier response would not unduly delay issuance of the agency action or information product and the complainant has shown a reasonable likelihood of suffering actual harm from the agency's dissemination if the agency does not resolve the complaint prior to the final agency action or information product."
  OMB's Oversight Role On Oct. 4, days after agencies finalized their data quality guidelines, OMB issued a memo to the President's Management Council laying out an aggressive oversight plan. Specifically:
  • Each agency must submit an annual report to OMB summarizing the number and nature of data quality complaints received and how the agency handled them.
  • Agencies must inform OMB of any formal complaints and appeals received within seven days of receiving them. OMB also required agencies to invite OMB to any agency meetings with complainants.
  • Finally, OMB will offer further clarifying assistance and guidance to agencies after it gets a concrete sense of the issues raised in the complaint process.
  As agencies proceed down the likely difficult and contentious path of implementing the data quality guidelines, OMB is entrenching itself as the leader in this process -- demanding to be informed of, and involved in, every agency data quality dispute, and assuming responsibility for clarifying and improving the data quality process, above the agencies. Judicial Questions Loom Each agency has developed an administrative process for the "correction of information" as part of their final guidelines, allowing for challenges of data quality by affected parties, including an appeals process for those unhappy with an agency judgment. (The appeals process was added by OMB's implementing guidelines and was not contemplated by Congress in the Data Quality Act.) These challenges, for now, are ultimately decided by the agency itself. Yet industry has indicated its intent to challenge adverse decisions in court. If the courts get involved, this could give industry a new tool to block or delay regulation by litigating over the information that supports it. Most agencies seem to believe this won't happen -- that the guidelines are not subject to judicial review. However, this is no sure thing, and industry is determined to find out. Indeed, the Center for Regulatory Effectiveness, a conservative group allied with industry, has acknowledged that a "Win-in-Court" strategy could be used. This would create a longer, resource-draining process for agencies, which could divert resources from regulatory tasks. CRE contrasts this approach with the more balanced and less disruptive "Win-at-the-Agency" approach, which even CRE acknowledges is more consistent with intent of the Data Quality Act.