What is the Purpose of this Posting? Consistent with The Office of Management and Budget's (OMB) Guidelines (for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies) implementing Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554), the Department is issuing guidelines explaining how the Department will ensure the quality of disseminated information. This document also explains how affected persons may seek and obtain corrections of information that does not comply with these guidelines.
When are These Guidelines Effective? These Guidelines are effective October 1, 2002.
Who Should Be Contacted for Further Information About These Guidelines? Steven B. Lott, Office of the Chief Information Officer, U. S. Department of Transportation, 202-366-1314 (not a toll-free call) or by e-mail at Steven.Lott@ost.dot.gov. For inquirie s on the Department's administrative mechanisms for persons to seek correction of information, please contact Robert Ashby, Office of the General Counsel, U. S. Department of Transportation; 202-366-9306 (not a toll-free call) or by e-mail at email@example.com. For inquirie s on the guidelines concerning statistical disseminated information, contact Dr. Patrick Flanagan, Bureau of Transportation Statistics, U.S. Department of Transportation; 202-366-4168 (not a toll-free call) or by e-mail at Pat.Flanagan@bts.dot.gov.
Comments and DOT Responses:
In response to its May 1, 2002, posting of the draft guidelines, the Department received eight substantive comments from members of the public. The commenters were the U.S. Chamber of Commerce (COC), the Center for Regulatory Effectiveness (CRE), Citizens for Sensible Safeguards (CSS), the American Bar Association Section on Administrative Law and Regulatory Practice (ABA), Senator Richard Durbin, the National Association of Manufacturers (NAM), the American Trucking Association (ATA), and Senator Joseph L. Lieberman. These commenters discussed a variety of issues. In the discussion of these comments, as well as in the DOT guidelines themselves, when we use the term "guidelines" we mean both the OMB guidelines and the DOT guidelines.
Scope of the Guidelines
COC, CRE, and NAM asserted that the guidelines should be viewed as legally binding rules. CSS asserted the contrary. It is clear from Section 515 and from the OMB guidelines that the purpose of the agency guidelines is to set forth policies, procedures, and recommendations for ensuring information quality. (It is our understanding that an earlier, never-enacted draft of the amendment that became Section 515 called for "regulations," a term replaced by "guidelines" in the final version). Congress is very experienced in creating mandates directing agencies to create legally binding regulations. Such provisions are a regular part of statutes that DOT and other agencies are required to implement. Where Congress chooses a different approach, as it did in Section 515, DOT would be acting contrary to statutory direction if it attempted to convert the intended flexible guidelines into hard and fast, legally binding rules. We have retained the "guidelines not rules" structure and language of the proposed guidelines.
COC suggested that DOT operating administrations should have a notice and comment process to modify or augment these DOT-wide guidelines. It is not clear that DOT operating administrations will ever issue their own equivalents of this document. What is more likely is that the operating administrations will determine internally how to apply DOT's guidelines to their own programs and information products. If it is useful for an operating administration to obtain public comment, or if an operating administration wished to depart significantly from the approach the DOT guidelines take, the operating administration could issue a draft for comment. Whether that course will be appropriate will be determined as the process of implementing these guidelines evolves.
Exceptions to Coverage
CRE asserted, per a lengthy legal memorandum provided to all the participating agencies, that it was contrary to statute for OMB or the agencies to make any exceptions to the definition of "dissemination" in the guidelines. The Department is not persuaded by CRE's analysis.
CRE's argument begins with the premise that Section 515 is an amendment to the Paperwork Reduction Act's (PRA) information dissemination requirements. This premise is incorrect. Section 515 is a free-standing statutory provision, which was assigned as a classification matter for purposes of codification as a "note" to 44 U.S.C. §3516, a portion of the PRA. A "note" does not amend the section or overall statute to which it is assigned. The assignment of the note to a particular section simply denotes that the codifiers decided upon a convenient place to insert the provision. The only direct connection between Section 515 and the PRA is that the Section 515 directs OMB to apply its guidelines to agencies that are subject to the PRA.
CRE is forced to take an indirect route to its conclusion because the text of Section 515 imposes no limits on OMB's discretion concerning exceptions to the definition of dissemination. There is, of course, little if any legislative history available for Section 515. In these circumstances, neither OMB nor other agencies confront a direct statutory limitation on their normal discretion to interpret statutes in a reasonable manner. It is reasonable to assume that Congress knows how to prohibit agencies from exercising regulatory discretion; Congress shows no sign of doing so in Section 515.
The thrust of CRE's position is that because other applications of the term "dissemination" (e.g., in OMB Circular A-130, the legislative history of portions of the 1995 amendments to the PRA) are broad, and do not have exceptions similar to those in the OMB guidelines, Congress intended to prohibit exceptions to "dissemination" in the context of Section 515. While CRE's argument is an interesting exercise in bootstrapping, it does not meet applicable legal tests for constraints on agency discretion.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), and its progeny provide the applicable standard of review in matters of agency interpretation of its discretion under a statute (it is important to note that the Chevron analysis is not limited to rulemaking matters). Under the Chevron analysis, judicial review of an agency's interpretation of a statute under its administration is limited to a two-step inquiry. At the first step, courts inquire into whether Congress has directly spoken to the precise question at issue. If a court comes to the unmistakable conclusion that Congress had an intention on the precise question at issue, our inquiry ends there; the court naturally must give effect to the unambiguously expressed intent of Congress. However, if the statute before the court is silent or ambiguous with respect to the specific issue, the court should proceed to the second step. At this stage, the court defers to the agency's interpretation of the statute if it is reasonable and consistent with the statute's purpose; the court is not free to impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.
As noted above, Section 515 contains no explicit, or even implied, prohibition on OMB or other agencies with respect to their discretion to make reasonable exceptions to the definition of dissemination in information quality guidelines. References to the 1995 PRA amendments and their legislative history are, at best, a very weak substitute for actual evidence that Congress intended to prohibit OMB and the agencies from acting reasonably with respect to use of "dissemination" years later when it enacted Section 515. Consequently, under the first part of the Chevron test, Section 515 is silent or ambiguous with respect to this issue. Under the second part of the test, it is clear that the exceptions that OMB and DOT have chosen to express are reasonable and advance the statute's purpose of improving information quality. Insisting on a "no exceptions" approach, while imposing unnecessary additional administrative burdens on agencies, does little to actually improve information quality in the areas of greatest concern to the public.
COC suggested that, with respect to correspondence sent to individuals, information that DOT has reason to believe would be distributed further by the recipient should be covered. For example, if DOT sends a letter to the head of an interest group, and we anticipate that the group will send copies to its members, we should apply the guidelines, notwithstanding the correspondence exception. The Department has not adopted this comment. The decision to distribute a letter is the recipient's not DOT's. The recipient's decision to do so does not trigger further obligations on DOT's part. Only if DOT sponsored or requested the further distribution (e.g., sends a letter to an interest group that requests the group to distribute the letter widely) would we agree that the correspondence exception would not apply.
The ABA suggested that we significantly limit or delete the "public filings" exception, such that material in a DOT docket would be covered by the guidelines. It appears that the ABA may have misunderstood the DOT's proposal in this regard. What DOT proposed, and what we have adopted in these final guidelines, is a provision that does apply the guidelines to docketed material, if and when the Department uses and disseminates the material. However, the mere fact that information is sitting in the docket, untouched by Departmental hands (aside from DMS personnel, perhaps), should not trigger applicability of the guidelines.
NAM disagrees with the proposal's handling of the exceptions for press releases and submissions to Congress, suggesting that the exceptions should apply only to information that has previously been disseminated subject to the guidelines. With respect to press releases and other ephemeral information products, DOT believes that it is difficult, and not very productive, to try to fit very short-lived, brief products of this sort into the guidelines' review and correction scheme. With respect to submissions to Congress, the Congressional legislative and oversight processes provide for a proven, effective means of correcting information that members of Congress believe to be flawed. A decision on a legislative provision can itself be a definitive judgment by Congress on the quality of information supporting or opposing the provision. While factual information presented to Congress (e.g., a study referred to a submission to a Congressional committee) that had not previously been subject to these guidelines would be subject to the administrative corrections process like any other information. Much material presented to Congress consists of agencies' policy views or information developed quickly in response to Congressional inquiries for which coverage under these guidelines is less apt.
CRE said that the definition of "affected person" should be broad, so as not to unnecessarily exclude persons who seek correction of information. NAM also suggested broadening of the term. The Department has not erected any elaborate "standing" requirement for seekers after correction. However, the statutory term "affected" person must be given some meaning; there must be some persons in the world who are "unaffected" if the term is not to be mere surplusage. Someone whose involvement with the information in question is merely that of a gadfly, bystander or interested reader, for example, could be an "unaffected" person.
In these guidelines, we use the term in the commonly understood way to mean a person who can show that he or she can be harmed by information that does not comply with the guidelines or can benefit from a correction of such information. We do not believe that it is useful to create an elaborate abstract definition of the term. Rather, in the guidance for the administrative corrections process, we ask requesters to explain how they are affected and provide discretion to DOT organizations to determine if the requester is an affected person who should receive a substantive response.
ABA said that if data is first disseminated before October 1, 2002, and retained on a Department's web site thereafter, it should be covered by the guidelines, evidently on the theory that it is continuously disseminated because it is still available to readers. In the Department's view, the ABA's position would give unreasonably retroactive effect to the guidelines with respect to documents that may be years old and were not subject to the pre-dissemination review provided in the guidelines. Maintenance of information on DOT web sites or paper files does not, in itself, subject information disseminated before this date to the guidelines. However, the Department's policy is to treat as subject to the guidelines information that we maintain in a way that is readily available to the public and that continues to play a significant, active role in Departmental programs or in private sector decisions. NAM essentially agreed with the Department's position on handling of data first disseminated before October 1, 2002.
COC and CRE said that the guidelines should not exclude rulemakings. They do not. Since there was evidently some misunderstanding on this point, the final guidelines make this point even more explicit than the proposal. The substantive requirements of the guidelines (objectivity, integrity, etc.) apply to information in rulemakings just as they do to other information. What is different is the mechanism used to respond to requests for correction. As in the proposal, the final guidelines state that the existing mechanism of a response to public comment on a notice of proposed rulemaking (NPRM) in the preamble will be the primary way in which the Department responds to requests for correction about information in the NPRM. CSS said that information in rulemaking documents should be excluded from the guidelines. We do not agree that this would either be desirable or consistent with the statute and OMB guidelines.
Commenters did make three useful points about the use of rulemaking and analogous mechanisms for responses to requests for correction. First, as COC pointed out, if an NPRM came out before October 1, 2002, with the final rule published after this date, the public would not have had the opportunity to comment with respect to conformity of information to these guidelines. For this reason, we have changed the language of the guidelines to state that we would reject a request for correction only if someone had previously had the chance to comment on a document with respect to compliance with the guidelines. This is a transitional issue that we expect would not arise frequently after the first year or two of our implementation of the guidelines.
Second, COC and CRE said that a problem with responding to comments in a final rule is that final rules can come out a very long time after a proposal. We agree that, if it appears to the Department that a final rule will be delayed a long time, or the requester has made a good case that a quicker response is necessary, the Department could exercise its discretion to issue a response before the final rule is issued. We have added language to this effect.
Third, COC also asked how the reconsideration process applied to rulemakings. In the case of information in an NPRM, the response of the Department in the preamble to the final rule would be the initial response. Normally, a request for reconsideration of the initial decision on the request for correction would be handled either as a request for reconsideration of the rule or amendment of the rule under agency guidelines. However, in the case where the requester sought a correction that did not affect the rule - and the agency agreed that a correction would not affect the rule - the Department would follow through the same reconsideration process applicable in non-rulemaking situations.
In terms of deciding whether to accept a request for correction from someone who could have commented on an NPRM, ABA urged that the Department distinguish between commenters and (especially unsophisticated) non-commenters, giving greater consideration to the latter. Everyone has the chance to comment on a rulemaking. Those who are unaware of the rulemaking or choose not to participate do not have their voices heard, whether with respect to the contents of the NPRM generally or with respect to information quality issues. We do not know of any means by which we can distinguish the relative sophistication of commenters about the rulemaking process.
COC asked that the guidelines clarify that information submitted by contractors and grantees, as well as commenters, may be subject to the guidelines. We agree, and have added another example. COC and CRE also ask that third-party proprietary models seldom or never be used, and that strong robustness checks be employed when they are. DOT agencies seldom, if ever, use third-party proprietary models. Robustness checks in this situation are called for by the OMB guidelines, and we have added language to this effect.
ATA asked that the guidelines specifically apply to the Federal Motor Carrier Safety Administration (FMCSA) "SafeStat" system. This is a web-available ranking system for the safety performance of motor carriers. The inputs for the system include data from state as well as FMCSA inspectors. ATA is concerned that if some of the data from state sources is erroneous, there is no present mechanism by which FMCSA can correct it. On the other hand, the state-generated information, while used and disseminated by FMCSA, is not owned or in the hands of FMCSA, making correction problematic at best.
We agree with ATA that data quality of the SafeStat system is important and that the system, as a general matter, is covered by these guidelines. However, like other information systems in which the Department inputs and then makes use of data supplied by the states, FMCSA does not own, possess, or control the state-generated data. This makes application of the guidelines' administrative correction mechanism difficult.
Suppose, for example, that a motor carrier contacts FMCSA and says that the SafeStat web site contains inaccurate information about the carrier (e.g., the system says there was a crash involving one of the carrier's trucks and the carrier denies it). The information came from a local law enforcement agency to a state safety agency, which in turn uploaded the information to FMCSA. How would FMCSA staff in Washington, or agency contractors in Massachusetts, determine whether the report is accurate? If information appears inaccurate, through what process could FMCSA, which has no authority over the law enforcement agency, get the agency to change the report if FMCSA believed it to be incorrect? If FMCSA changed the report in the Federal database, then there would be an inconsistency between the Federal and state/local data, as well as a potential disruption in the necessary close working relationship among the Federal/state/local parties involved. FMCSA can work with state partners to improve the transparency of data, include appropriate disclaimers in relevant databases, and correct some individual items where feasible. However, it would be misleading to portray these guidelines as a "magic bullet" that can effectively correct allegedly incorrect individual items in FMCSA or state databases on an across-the-board basis.
From a study FMCSA did of randomly selected motor carriers, it appears that the rate of errors in SafeStat data is small - on the order of ¼ of one percent. In addition, FMCSA already has in place some safeguards that fall under the general heading of pre-dissemination review, such as checking for discrepancies in incoming data and confirmation analysis of data prior to release. Nevertheless, FMCSA agrees that it has responsibility to facilitate the correction of the relatively infrequent errors in system data.
For this reason, FMCSA is currently developing additional data correction guidelines. The concept behind these guidelines is that FMCSA will provide more tools to the state to facilitate correction of motor carrier inspection and crash data. When motor carriers contact FMCSA with a concern about data accuracy, FMCSA will provide the information to the appropriate state Motor Carrier Safety Assistance Program (MCSAP) office, which would seek to resolve the matter and then notify the carrier of its action. Currently, states must re-upload the data to FMCSA's Motor Carrier Management Information System (MCMIS) in order to effect the change. However, FMCSA is enhancing MCMIS to allow state MCSAP offices direct access to make any needed changes in crash or inspection information. One action the MCSAP office could take with the enhanced system is to place a "hold" on disputed data so that it would not be included in the SafeStat system or other databases until the dispute is resolved. In the future, FMCSA will look at the possibility of automating this process further, perhaps through the use of an on-line correction request form that could be transmitted electronically to the appropriate state office. Before FMCSA issues final data correction guidelines, additional procedures will be developed and tested to ensure that data in error are corrected in a timely fashion.
The application of the guidelines to the SafeStat system is an example - the only one cited by commenters - of what may be a broader long-term issue. There may be a variety of programs in which the Department, or other Federal agencies, necessarily rely on or further disseminate information provided by state and local governments. Because of the action the Department takes with respect to the information, it appears that the information is subject to the guidelines. Yet application of the specific features of the guidelines may be very difficult. The Department, as it implements the guidelines over time, will work on ways of applying the principles and objectives of the guidelines in these situations, in ways that fit the individual circumstances of the programs involved.
Administrative Corrections Process
CRE and NAM asked that the deciding official for initial correction requests, as well as requests for reconsideration, be outside the office or organization that generated the information involved. Objectivity and a lack of personal investment in an information product are desirable qualities in a deciding official. So, however, is knowledge of the subject matter. Admittedly, these two qualities can be difficult to find in the same individual. The guidance to DOT organizations is to do the best they can to find such a combination. However, mandating that the deciding official be outside the organization that produced the information could guarantee that the decision maker was unfamiliar with the issues involved. At the reconsideration stage for requests involving influential information, the final guidelines specify a three-person panel that typically would employ two persons from other DOT organizations.
Several comments addressed timing. CRE thought that there should be a maximum 45day response period to requests for correction, while CSS thought there should be a 3month statute of limitations on requests for correction after the dissemination of information. CSS also thought there should be a disclaimer that responses should be limited to information available at the time of the dissemination, so that there would not be a "moving target" situation.
We believe that, given the press of work at the Department, establishing a 45-day response period might be promising more than we could reasonably deliver. We have modified the 90-day time frame of the proposal to be 60 days, though we will strive to respond to requests as soon as possible in any case. We also believe a 3-month statute of limitations is unreasonably short, and ignores the problem, raised by other commenters, that the importance of a piece of information may not be readily apparent when it is first disseminated. Therefore, we have retained the proposal's suggestion that the Department can choose not to make corrections of information that is more than one year old, unless the data remains significant in ongoing DOT or private sector activities and decisions. In the final version of the guidelines, we have made this point a consideration in the Department's decision on a request rather than a "filter" that would screen requests out of the system.
We agree with CSS that the Department should not have to face a "moving target" situation, and we have added language to this effect. ABA suggested that we put a "flag" in a web site to note information that we have agreed to correct but have not yet corrected. While we have not included language to this effect in the guidelines, we will consider, as we implement the guidelines, whether this idea is practical and desirable.
COC, CRE, NAM and ABA objected to the use of the $100 million criterion in the proposal's discussion of influential information. CRE and NAM also believed that the discussion was too restrictive in its treatment of influential. We have clarified the discussion of the $100 million figure: if something has an impact of $100 million or more, the impact is likely intense, but having an economic impact of that amount is not essential to finding an intense impact. Depending on the circumstances and parties involved, a lesser economic impact could also contribute to a determination that information is influential.
We do not believe that the discussion of this concept is too restrictive. Indeed, it is an excellent example of the guidance orientation of this document, being a discussion of a thinking process designed to help DOT officials make sound decisions on the issue of influential information. In our view, consideration of the breadth as well as the intensity of an impact is essential to a fair decision on whether information is influential. In the absence of such consideration, virtually any information of interest to a particular party could be declared influential, which would be inconsistent with the intent of the guidelines.
With respect to peer review, CRE asked the Department to address the standards for rebutting the presumption of the adequacy of peer-reviewed information, while CSS suggested that we address the limitations of peer review. We have incorporated language in response to both suggestions.
COC, CRE and NAM commented that the guidelines should specifically adopt or adapt (preferably the former) Safe Drinking Water Act (SDWA) standards for reviewing influential information in the context of risk analysis. CSS suggested adapting rather than adopting.
While the Department may disseminate information products that evaluate safety risks in various ways, the Department appears not to conduct many formal "risk analyses" of the kind often promulgated by health and environmental agencies. The SDWA model is probably not a close fit for most DOT activities. Nevertheless, the general principles of the SDWA have wide application, and the Department will adopt or adapt these principles, as applicable, to its evaluations of risks. The final guidelines call on DOT organizations to apply the SDWA standards to their risk-related products.
CSS suggested that we add language placing compliance with the guidelines in the context of other agency objectives, such as carrying out agency missions, staying within budget and priority restraints, and providing useful information to the public. We think this is a useful suggestion, and we have added such language.
NAM said that the guidelines should identify who the appropriate data quality official is in a DOT organization. The Department does not believe it would be productive to list these operating administration contact persons by name in the guidelines, as their identity will no doubt change from time to time. The Department will consider having a current directory of these operating administration contacts on its web site, however. It should be pointed out that the role of this official is not to make determinations on requests for correction; it is simply to act as a facilitator of the process within the DOT organization.