Environmental Groups File Data Quality Challenge on Forest Service Proposed Rule
by Guest Blogger, 7/16/2003
A request filed recently to the U.S. Department of Agriculture challenges the data quality of information supporting a Forest Service Federal Register Notice for Proposed Rulemaking, specifically information referred to in the National Forest System Land and Resource Management Planning (LRMP) proposed rulemaking. The request was jointly filed by Sierra Club, John Muir Project of Earth Island Institute, Gifford Pinchot Task Force, National Forest Protection Alliance and Heartwood. The petitioners question a review, a workshop, and other information used in the revised proposed National Forest Management Act (NFMA) planning regulations. The review, conducted by personnel, looked at the "implementability" of the 2000 NFMA planning rule. The workshop also examined the implementability of the 2000 rule, but worked with field-level planners and used a business analysis model the Forest Service developed. Apparently, based on information gathered from the review and workshop, the Forest Service suspended its 2000 planning regulations and began this latest effort to revise the rule. The petitioners claim that the information used to justify the LRMP rulemaking violate the transparency and objectivity standards of the Department of Agriculture's Data Quality Guidelines. The challenge specifically notes that the information fails to meet the transparency standard requiring that information be "subject the analysis to formal, independent, external peer review." The petition also specifies that the challenged information fails to meet the objectivity requirement that "the presentation of information is comprehensive, informative, and understandable." In addition, because new rules are being created from the information, the petitioners assert the rule must be considered "influential." The petitioners assert that the rulemaking, the information and the reliance on "reviews and workshops" all violate the higher data quality standards for "Influential Regulatory Information." The claim is that these higher standards, specifically using the best science and supporting studies, and collecting data by acceptable or best available methods, were not used. The petitioners claim that none of the information from the review or workshop has been made public. The challenge notes that should the information remain uncorrected, the petitioners, as well as other interested parties, can neither adequately assess the proposed rule nor provide accurate comments. Additionally, the challenge notes that the inaccurate and incomplete information not only abridges petitioners' ability to petition the government effectively, but it also prevents them from fulfilling their roles as stewards of the environment and good government. Finally, the petitioners imply that the erroneous information will create a rule more destructive to the environment. In order to correct the information, the challenge recommends the Forest Service make all information referred to in the Proposed Rulemaking, especially the review and workshop proceedings, available to the public on the agency's website. The petitioners also request reopening the rulemaking comment period to allow the new information to be adequately considered. The USDA Forest Service responded in a June 9th letter, stating that the data quality challenge will be considered within the proposed rulemaking's public comment process, since the challenge was filed prior to the April 7th deadline for public comments. This seems to be a reasonable method for handling data quality challenges during a rulemaking and avoiding burdensome delays in an already slow process. Of course if serious enough data quality issues are deemed valid then it might become necessary, as this petition requested, to reopen the rulemaking process. In response to that request, the Forest Service stated that they had no current plans to extend or reopen the comment period. In response to the request for information the agency provided an electronic link to a report that they assert contains all of the information the petitioners requested. However, it remains unclear whether this report was adequately publicized, and therefore fully considered, during the public comment period. Additionally, the Forest Service provided the petitioners with a paper copy of their detailed report "Land and resource Management Planning: The Status of Activities" which the agency submitted to the House and Senate Committees on Appropriations. There is no indication that this report was made available to the public as a part the information for consideration during the proposed rulemaking public comment period. The agency also noted that the petitioners can submit a reconsideration request after the publication of the final rule if they are dissatisfied with this decision. However, the Forest Service also noted that requests for reconsideration filed after a 45-day deadline may be denied as untimely. The agency notes in their response letter that publication of the final rule is not expected until this winter. Typically the deadline is 45 days from having received the agency's initial decision on a request. If the Forest Service is suggesting that the final rule and the response to public comments will act as the agency's decision on this request rather than this letter, they have not made that point clear enough.