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NRCA's comments about DOL's data quality initiative, June 2002

On June 28, NRCA submitted comments to the Department of Labor (DOL) about its draft data quality guidelines. NRCA’s comments follow.



June 28, 2002

Mrs. Theresa M. O'Malley
Executive Officer
Information Technology Center
U.S. Department of Labor
Room N-1301
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Draft Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Department of Labor

Dear Mrs. O'Malley:

On behalf of the National Roofing Contractors Association ("NRCA"), I appreciate the opportunity to provide comments on the Department of Labor's ("DOL") draft data quality guidelines. Established in 1886, NRCA is one of the construction industry's oldest trade associations and the voice of professional roofing contractors worldwide. NRCA is an association of roofing, roof deck, and waterproofing contractors; industry-related associate members, including manufacturers, distributors, architects, consultants, engineers, and city, state, and government agencies; and international members. NRCA has more than 4,600 members from all 50 states and 54 countries and is affiliated with 105 local, state, regional and international roofing contractor associations.

I. History

In the closing days of the 106th Congress, the Data Quality Act was passed as part of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554). Included as an amendment without great fanfare, the Data Quality Act required the Director of the Office of Management and Budget ("OMB") to issue guidelines that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by agencies. Alarmed by the enormous and growing volume of information disseminated daily by federal agencies, and concerned that much of the data was of poor or questionable quality, Congress was eager to guarantee that the information used by agencies in the federal rulemaking process conform with the demanding rigors of sound scientific and statistical standards.

On February 22, 2002, pursuant to this Congressional mandate, OMB issued a notice of standards to improve the quality of various types of information disseminated by governmental agencies (67 Fed. Reg. 8452-60). Specifically, OMB directed agencies "with regard to analysis of risks to human health, safety, and the environment…to either adopt or adapt the quality principles applied by Congress to risk information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996 ("SDWA")." DOL, as one of the agencies subject to OMB's notice, then sought to implement this directive with its own agency-specific guidelines, which it issued on May 1, 2002.

II. Concerns with the DOL Draft Guidelines

After reviewing the May 1 draft guidelines, NRCA believes the guidelines include a number of opportunities for improvement and further consideration in areas ranging from definitional limits to statutory obligations to methodological standards. NRCA is aware that DOL will be receiving numerous and extensive comments from a broad spectrum of interested parties, many of whom are industry allies of NRCA and with whom NRCA is in agreement on many of the objections that will be raised in their comments. As such, rather than retreading traveled ground, NRCA will limit its discussion to the following two points.

  • Paradigm

    NRCA is encouraged by DOL's action and believes the draft guidelines represent a good faith effort to comply with the OMB directive, but NRCA strongly believes that the guidelines would be improved substantially by conforming more closely with the SDWA risk assessment model cited in the OMB directive.

    The SDWA risk assessment principles, which the Department and OSHA must "adopt or adapt," provide for a program of risk analysis that integrates risk assessment, risk management and risk communication. Specifically, the SDWA principles require the following:

  • To the degree that an agency action is based on science, the agency shall use:

    1. the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and

    2. data collected by accepted methods or best available methods (if reliability of the method and the nature of the decision justify use of the data).

  • In the dissemination of public information about risks, the agency shall ensure that the presentation of information on risk effects is comprehensive, informative, and understandable.

  • In a document made available to the public in support of a regulation, the agency shall specify, to the extent practicable:

    1. each population addressed by any estimate of public health effects;

    2. the expected risk or central estimate of risk for the specific populations;

    3. each appropriate upper-bound or lower-bound estimate of risk;

    4. each significant uncertainty identified in the process of the assessment of risk effects and the studies that would assist in resolving the uncertainty; and

    5. peer-reviewed studies known to the agency that support, are directly relevant to, or fail to support any estimate of risk effects and the methodology used to reconcile inconsistencies in the scientific data.

    Claiming a need to comply with specific rulemaking requirements in the Occupational Safety and Health Act, DOL and the Occupational Safety and Health Administration ("OSHA") chose to "adapt" rather than to "adopt" these standards. Regrettably, several of OSHA's adaptations weaken SDWA principles and frustrate attainment of the important public policy goals intended by passage of the Data Quality Act. In a memorandum dated June 10, 2002, and addressed to the President's Management Council, John D. Graham, Administrator of the Office of Information and Regulatory Affairs in OMB, clearly reiterated the Administration's policy commitment to the SDWA principles. NRCA is hopeful that DOL's final guidelines will conform with the Administration's stated policy.

  • Scope and Applicability

    DOL's draft guidelines contain troubling disclaimers regarding the OMB directive, and run counter to the spirit and letter of the Data Quality Act. DOL states that the guidelines "are intended to improve the internal management of the Federal government" and "are not intended to impose any binding requirements or obligations on the Department." However, the OMB directive requires agencies to issue guidelines and explicitly states that "agencies shall establish administrative mechanisms allowing affected persons to seek and obtain, where appropriate, timely correction of information maintained and disseminated by the agency that does not comply with OMB or agency guidelines." The June 10 Graham memo appropriately reasserts this requirement, which was statutorily affirmed in the Data Quality Act.

    DOL also asserts that dissemination of information "does not include agency citation to or discussion of information that was prepared by others and considered by the agency in the performance of its responsibilities." This clearly contradicts the OMB guidelines, which state that "if an agency, as an institution, disseminates information prepared by an outside party in a manner that reasonably suggests that the agency agrees with the information, this appearance of having the information represent agency views makes agency dissemination of the information subject to these guidelines." (67 FR 8454, February 22, 2002). Graham's June 10 memorandum reinforces this statement of policy when it notes that the preamble in the OMB guidelines provided an example concerning the applicability of the "information quality standards to third-party studies relied upon by an agency as support for a proposed rulemaking, even if the third-party studies had been published before the agency's use of them." (67 FR 8457, February 22, 2002)
III. Conclusion

Again, on behalf of NRCA, I want to thank you for providing the public the opportunity to comment on DOL's draft guidelines. NRCA believes the existing draft guidelines are a marked improvement over the status quo, but also is convinced that adherence to the quality principles embodied in the SDWA paradigm would improve upon the existing guidelines and better enable DOL to fulfill both the requirements of the OMB directive and DOL's rulemaking mission. NRCA also believes that a proper interpretation of the OMB guidelines leads to a conclusion that the guidelines are in fact binding. NRCA encourages DOL to give strong consideration to the above concerns as well to those comments offered by other informed and well-intentioned parties.

Sincerely,

R. Craig Silvertooth
Director of Federal Affairs





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