<DOC> [109th Congress House Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:27722.wais] 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 ______ U.S. GOVERNMENT PRINTING OFFICE 27-722 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON GOVERNMENT REFORM TOM DAVIS, Virginia, Chairman CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois CHRIS CANNON, Utah WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland DARRELL E. ISSA, California LINDA T. SANCHEZ, California GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland JON C. PORTER, Nevada BRIAN HIGGINS, New York KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of LYNN A. WESTMORELAND, Georgia Columbia PATRICK T. McHENRY, North Carolina ------ CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont VIRGINIA FOXX, North Carolina (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 STEPHEN F. LYNCH, Massachusetts CHRIS CANNON, Utah WM. LACY CLAY, Missouri MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland LYNN A. WESTMORELAND, Georgia 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 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 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 accuracy 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:] [GRAPHIC] [TIFF OMITTED] T7722.001 [GRAPHIC] [TIFF OMITTED] T7722.002 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-effective 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:] [GRAPHIC] [TIFF OMITTED] T7722.003 [GRAPHIC] [TIFF OMITTED] T7722.004 [GRAPHIC] [TIFF OMITTED] T7722.005 [GRAPHIC] [TIFF OMITTED] T7722.006 [GRAPHIC] [TIFF OMITTED] T7722.007 [GRAPHIC] [TIFF OMITTED] T7722.008 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. 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. 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:] [GRAPHIC] [TIFF OMITTED] T7722.009 [GRAPHIC] [TIFF OMITTED] T7722.010 [GRAPHIC] [TIFF OMITTED] T7722.011 [GRAPHIC] [TIFF OMITTED] T7722.012 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-fits-all 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 guidelines 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. 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:] [GRAPHIC] [TIFF OMITTED] T7722.013 [GRAPHIC] [TIFF OMITTED] T7722.014 [GRAPHIC] [TIFF OMITTED] T7722.015 [GRAPHIC] [TIFF OMITTED] T7722.016 [GRAPHIC] [TIFF OMITTED] T7722.017 [GRAPHIC] [TIFF OMITTED] T7722.018 [GRAPHIC] [TIFF OMITTED] T7722.019 [GRAPHIC] [TIFF OMITTED] T7722.020 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 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. 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 looking 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, 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 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 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. 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 common-sense values that the public, the agencies, and all interested parties should be able to embrace. While some groups have expressed 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 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:] [GRAPHIC] [TIFF OMITTED] T7722.021 [GRAPHIC] [TIFF OMITTED] T7722.022 [GRAPHIC] [TIFF OMITTED] T7722.023 [GRAPHIC] [TIFF OMITTED] T7722.024 [GRAPHIC] [TIFF OMITTED] T7722.025 [GRAPHIC] [TIFF OMITTED] T7722.026 [GRAPHIC] [TIFF OMITTED] T7722.027 [GRAPHIC] [TIFF OMITTED] T7722.028 [GRAPHIC] [TIFF OMITTED] T7722.029 [GRAPHIC] [TIFF OMITTED] T7722.030 [GRAPHIC] [TIFF OMITTED] T7722.031 [GRAPHIC] [TIFF OMITTED] T7722.032 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 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:] [GRAPHIC] [TIFF OMITTED] T7722.033 [GRAPHIC] [TIFF OMITTED] T7722.034 [GRAPHIC] [TIFF OMITTED] T7722.035 [GRAPHIC] [TIFF OMITTED] T7722.036 [GRAPHIC] [TIFF OMITTED] T7722.037 [GRAPHIC] [TIFF OMITTED] T7722.038 [GRAPHIC] [TIFF OMITTED] T7722.039 [GRAPHIC] [TIFF OMITTED] T7722.040 [GRAPHIC] [TIFF OMITTED] T7722.041 [GRAPHIC] [TIFF OMITTED] T7722.042 [GRAPHIC] [TIFF OMITTED] T7722.043 [GRAPHIC] [TIFF OMITTED] T7722.044 [GRAPHIC] [TIFF OMITTED] T7722.045 [GRAPHIC] [TIFF OMITTED] T7722.046 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 reproduce 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 hard-nosed 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 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:] [GRAPHIC] [TIFF OMITTED] T7722.047 [GRAPHIC] [TIFF OMITTED] T7722.048 [GRAPHIC] [TIFF OMITTED] T7722.049 [GRAPHIC] [TIFF OMITTED] T7722.050 [GRAPHIC] [TIFF OMITTED] T7722.051 [GRAPHIC] [TIFF OMITTED] T7722.052 [GRAPHIC] [TIFF OMITTED] T7722.053 [GRAPHIC] [TIFF OMITTED] T7722.054 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. 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:] [GRAPHIC] [TIFF OMITTED] T7722.055 [GRAPHIC] [TIFF OMITTED] T7722.056 [GRAPHIC] [TIFF OMITTED] T7722.057 [GRAPHIC] [TIFF OMITTED] T7722.058 [GRAPHIC] [TIFF OMITTED] T7722.059 [GRAPHIC] [TIFF OMITTED] T7722.060 [GRAPHIC] [TIFF OMITTED] T7722.061 [GRAPHIC] [TIFF OMITTED] T7722.062 [GRAPHIC] [TIFF OMITTED] T7722.063 [GRAPHIC] [TIFF OMITTED] T7722.064 [GRAPHIC] [TIFF OMITTED] T7722.065 [GRAPHIC] [TIFF OMITTED] T7722.066 [GRAPHIC] [TIFF OMITTED] T7722.067 [GRAPHIC] [TIFF OMITTED] T7722.068 [GRAPHIC] [TIFF OMITTED] T7722.069 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 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 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 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 particular 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, instead, 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 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. 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.] <all>