Department of Commerce Information Quality report for FY 2003

Year-End Information Quality Report Format

I. Cover Sheet: Requests for Correction Received FY 2003

Department Name: Department of Commerce

Period Covered: 10-1-02 through 9-30-03

Agency Receiving Correction Request: Department of Commerce (DOC), National Oceanic and Atmospheric Administration (NOAA)

• Requestor: Steven P. Quarles & Richard J. Mannix, of Crowell and Moring, Attorneys for Atlantic Salmon of Maine (ASM), an aquaculture business.

• Date Received: The date of ASM’s request for correction is March 28, 2003. However, the request was received by NOAA’s 515 Officer on March 31, 2003.

• Summary of Request: ASM requested correction of data used by the U.S. Fish and Wildlife Service (FWS) and NOAA National Marine Fisheries Service (referred to collectively by ASM as “the Services”), in a draft Biological Opinion (“draft Corps BO”) prepared pursuant to Section 7(b) of the Endangered Species Act (ESA), to propose the imposition of conditions upon existing Section 10 permits issued by U.S. Army Corps of Engineers (“Corps”) for the installation and maintenance of fish pens on the coast of Maine. ASM stated that the Services relied, in part, upon a conclusion contained in a 1999 genetic study conducted by Dr. T.L. King and others. The Services found Atlantic salmon to be a Distinct Population Segment (DPS), based in part upon genetics, and declared the DPS to be in danger of extinction.

The services also issued a final Biological Opinion (“final EPA BO”) related to the U.S. Environmental Protection Agency’s (“EPA’s”) approval of the State of Maine’s application to administer the National Pollutant Discharge Elimination System (“NPDES”) permit program under the Clean Water Act. As in the draft Corps BO, the Services relied in the final EPA BO upon the same conclusion contained in the King Study, together with follow-on studies, to specify conditions under which permits will be issued for aquaculture projects engaged in the rearing of salmon and operating in or discharging to Maine waters that are virtually identical to the conditions contained in the draft Corps BO.

The major issues identified by ASM in the request included:

o “The King study data have not been made available to affected parties, but dissemination of its conclusions is the basis for ongoing regulatory decision making”

o “The conclusion adopted from the King study and disseminated by the Services does not meet the objectivity standards of the Services’ guidelines.”

o “Reliance by the Services on the conclusion of the King study did not satisfy the DQA [Data Quality Act] requirements of transparency and reproducibility.”

o “The failure of the King study conclusion to meet the DQA standards for objectivity, transparency, and reproducibility was confirmed in the context of a request for injunctive relief sought by the State of Maine.”

• Description of Requested Correction: “ASM respectfully requests that the Services undertake appropriate corrective action with respect to their reliance on the King Study as a basis for imposing conditions on Corps’ permitting of salmon penning operations in Maine waters as well as on other agency actions. This should include, at a minimum, suspension of the issuance of a final Biological Opinion to the Corps, notification to the State of Maine of re-evaluation of a critical premise in the final EPA BO, evaluation of the King Study under DQA standards and the principles espoused by the Services’ in their Guidelines, and the solicitation and review of additional scientific study and opinion currently available on the genetic conclusion reached in the King Study and the theory of outbreeding depression.”

• Influential: ____Yes __X__ No ____ Undetermined

• First Agency Response: ____ in progress __X__ completed; July 3, 2003. [NOTE: The request for correction was filed by ASM jointly to NOAA and FWS. On May 30, 2003, NOAA informed ASM that the response would be sent by July 3, 2003, so that NOAA and FWS could coordinate their responses.]

• Resolution: NOAA denied the request for correction. NOAA explained that the Final EPA BO was developed according to published standards, which include Section 7 of the ESA, its case law and legislative history, and the consultation regulations at 50 CFR part 402. Those studies in the Final EPA BO with which ASM took issue are of known quality and from sources acceptable to the relevant scientific and technical communities. It is NOAA Fisheries’ policy and a requirement of the ESA to use the best available scientific and commercial information when writing a BO. As to the draft Corps BO, the response noted that a request for correction under Section 515 cannot be used as a means to secure a particular decision from NOAA Fisheries regarding the final outcome of the BO prior to the completion of the deliberative process generating the document. Nor does Section 515 amend or repeal any other statutory or regulatory mandates governing the production of the Corps BO.

• Appeal Request: __X__ none ____ in progress ____ completed

On July 23, 2003, ASM hand delivered to the Assistant Administrator for Fisheries for NOAA a notice of appeal and request for extension of time for filing the appeal. ASM did not agree with NOAA’s denial and indicated a desire to file an appeal. ASM also wanted an extension of time on the deadline for filing an appeal, since FWS had not yet responded to ASM’s request for correction. However, this filing was not accepted as a formal appeal by NOAA because the request was not submitted in the manner required under the NOAA Information Quality Guidelines. On July 25, 2003, NOAA responded to ASM and explained the appeal process, pointing out the correct procedure for filing a request for appeal. Also, on July 25, ASM hand delivered another notice of appeal and extension of time to the same office, not following the NOAA Information Quality Guidelines. FWS responded to ASM’s request for correction on August 7, 2003. The NOAA and FWS responses had been coordinated and were substantively similar. Finally, on August 18, 2003, ASM sent a final letter to the program office indicating that they would not appeal the initial agency response. In the letter, ASM stated: “Our concerns about quality control/quality assurance have apparently been addressed and independent laboratories may now be able to reproduce the genetic scoring of Dr. King’s protocol. This has been one of the more mutually beneficial outcomes of this process, and we do appreciate the Services’ responsiveness on these matters.”

• Summary of Request for Reconsideration: N/A

• Type of Appeal Process Used: N/A

• Appeal Resolution: N/A

Agency Receiving Correction Request: DOC/NOAA

• Requestor: Christopher C. Horner; Competitive Enterprise Institute (CEI); public interest group

• Date Received: Dated February 19, 2003, but received by mail at NOAA on February 26, 2003

• Summary of Request: CEI alleged that NOAA disseminated the “National Assessment on Climate Change” (NACC) because “the entirety of the relevant USGCRP [US Global Change Research Program] is now effectively located in and out of NOAA’s Global and Climate Change Program.” CEI also alleged that the NACC violates requirements of “objectivity” and “utility” by the “inappropriate use of and reliance upon computer models and data that upon scrutiny are demonstrably meaningless” and that USGCRP “failed to perform the necessary science underlying regional and sectoral analyses.”

• Description of Requested Correction: CEI suggested that the NACC’s fatal data flaws are such that NOAA should cease dissemination.

• Influential: ____Yes ____ No _X_ Undetermined. [NOTE: NOAA did not reach the point of determining whether the NACC was “influential” because NOAA denied the request as “it does not involve ‘information’ that is ‘disseminated’ pursuant to NOAA information Quality Guidelines.”]

• First Agency Response: ____ in progress __X__ completed; response was sent on April 25, 2003

• Resolution: This request concerned an information product that was developed by a Federal Advisory Committee Act (FACA) committee. NOAA denied the request for the reasons stated above under “Influential.” Effectively identical requests were submitted to EPA and Office of Science and Technology Policy (OSTP). OSTP acknowledged that it was the appropriate agency to consider the request, but denied it on the ground that the NACC, as a product of a FACA committee and not relied upon by OSTP, was not “information” under their guidelines.

Appeal Request: __X__ none ____ in progress ____ completed

• Summary of Request for Reconsideration: N/A

• Type of Appeal Process Used: N/A

• Appeal Resolution: N/A

Agency Receiving Correction Request: DOC/National Telecommunications and Information Administration (NTIA)

• Requestor: N2H2, Inc.

900 Fourth Avenue, Suite 3600
Seattle, WA 98164

• Date Received: August 16, 2003 telephone request

• Summary of Request: The Children’s Internet Protection Act (CIPA) requires schools and libraries that receive federal funds for discounted telecommunications, Internet access, or internal connections services to adopt an Internet safety policy and employ technological protections that block or filter certain visual depictions deemed obscene, pornographic, or harmful to minors. The Act required the National Telecommunications and Information Administration (NTIA) to prepare a report to Congress, evaluating whether available technology measures adequately addressed the needs of educational institutions, and whether Internet safety policies were effective. Among the outreach activities undertaken in this regard, NTIA published a Request for Comment. In response to NTIA’s request, N2H2, Inc. provided written comments and an accompanying table of filtering effectiveness tests conducted on a number of currently available market products.

NTIA published its report entitled Children’s Internet Protection Act: Study of Protection Measures on August 15, 2003. This version inadvertently excluded a portion of N2H2’s table.

• Description of Requested Correction: On August 16, 2003, N2H2 requested that NTIA publish its table of filtering effectiveness tests in its entirety, as the version presented in the report appeared to have been truncated.

• Influential: ____Yes __X__ No ____ Undetermined

• First Agency Response: ____ in progress __X__ completed. The Web site was corrected August 19, 2003, and the hardcopy on August 23, 2003.

• Resolution: NTIA reprinted hard copies of the report with the corrected table within one week. The agency also destroyed all remaining hard copies of the original report containing the erroneous table. Within three days of the request, NTIA also corrected the version of the report available on its website, posting an advisory that, as a result of a technical error, the complete table was not published in the earlier posted version of the report. A link to the corrected table and revised report was also made available.

• Appeal Request: __X__ none ____ in progress ____ completed

• Summary of Request for Reconsideration: N/A

• Type of Appeal Process Used: N/A

• Appeal Resolution: N/A