The Information Quality Act: the little statute that could (or couldn't?) Applying the Safe Drinking Water Act Amendments of 1996 to the federal communications commission.

• Author: Ressmeyer, Kellen

1. INTRODUCTION II. THE INFORMATION QUALITY ACT A. Risk Analysis Under the Safe Drinking Water Act B. Office of Management and Budget's Safe Drinking Water Act Amendments of 1996 C. The Safe Drinking Water Act Amendments of 1996: A Review of Criticisms III. HEALTH, SAFETY, AND ENVIRONMENTAL INFORMATION UNDER THE FCC GUIDELINES A. The FCC Has Neither Adopted Nor Adapted the Safe Drinking Water Act Standard B. The FCC Engages in Analysis of Risks to Human Health, Safety, and the Environment; Therefore, the FCC Should Adopt or Adapt the Safe Drinking Water Act Standard of C. Regulation of Environmental Risk." FCC Environmental Regulations D. Regulation of Risks to Public Health & Safety: Radio frequency Exposure Regulations IV. SOCIAL RISK ANALYSIS UNDER THE OMB GUIDELINES: APPLICATION OF THE SAFE DRINKING WATER ACT AMENDMENTS OF 1996 TO SOCIAL SCIENCE A. Regulatory Authority B. Social Science as Risk Analysis Under the OMB Guidelines 1. Psychological Harms to Human Health and Safety 2. Physical Harms to Human Health and Safety V. SAFE DRINKING WATER ACT AMENDMENTS OF 1996: THE RISK OF RISK ANALYSIS UNDER THE INFORMATION QUALITY ACT A. Incorporation of the SDWAA by the FCC is Consistent with the Information Quality Act B. The Safe Drinking Water Act--Good Government Under the Data Quality Act C. To Adapt or Adopt?: That is the Question D. Adaptation of the Safe Drinking Water Act: Something to Consider VII. CONCLUSION I. INTRODUCTION

   This is the era of regulation by information. (1) More than at any other time in American history, (2) U.S. lawmakers rely upon information in the formation of state policy. With this in mind, Congress has passed several laws designed to ensure the quality of government-disseminated information. (3) However, Congress had no such design when it passed the Information Quality Act ("IQA")--also referred to as the Data Quality Act. (4) Slipped into the Treasury and General Government Appropriations Act for Fiscal Year 2001 (5) as an appropriations rider, the IQA was subject to no legislative hearings, no committee review, and no congressional debate. (6)

   At first blush, the IQA appears to be benign--a good government statute. (7) Despite its seemingly good intentions, (8) the IQA has been met with fierce public resistance. (9) Written by industry lobbyist Jim Tozzi' who now heads the Center for Regulatory Effectiveness ("CRE"), the IQA comes at the heels of several unsuccessful attempts by Tozzi to get Congress to raise the evidentiary requirement of regulation. (10) Not discouraged, Tozzi worked with Jo Ann Emerson (R-Mo.) (11) who snuck the IQA--two sentences long--into the 712-page Treasury and General Government Appropriations Act for Fiscal Year 2001. (12)

   Despite its size, the IQA "packs quite a wallop." (13) The IQA's mandate is four pronged: (1) Public Law 106-554 [section] 515(a) entrusts the Office of Management and Budget ("OMB") with providing "policy and procedural" guidance to federal agencies to ensure the "quality, objectivity, utility and integrity" ("quality") of federally disseminated information; (2) [section] 515(b)(2)(A) compels each individual agency to formulate their own guidelines in an effort to achieve the same objective; (3) [section] 515(b)(2)(B) requires each agency, in formulating those guidelines, to establish an appeals process whereby third parties may challenge the quality of disseminated information; and (4) [section] 515(b)(2)(C) demands that each agency periodically update the OMB as to the number of complaints received and the agency's response--quite the feat for the two-sentence long appropriations rider.

   What the IQA does not do, however, has fueled the debate between public interest groups and the private sector. The IQA seeks to "maximize the quality, objectivity, utility, and integrity of information" (14) disseminated by the federal government (15)--yet provides no explanation of those terms. (16) Buried within 2001's Appropriations Bill, the IQA has no legislative history. On the method of interpretation, Congress is effectively silent. Therefore, as a matter of administrative law, (17) the IQA vests the OMB with immense discretion.

   The OMB exercised that discretion in 2002 when it finalized its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by Federal Agencies ("Guidelines"). (18) In a controversial move, the OMB incorporated the EPA's Safe Drinking Water Act Amendments of 1996 ("SDWAA" or "the 1996 Amendments") (19) as its general scientific standard for risk assessment. Since their inception by the OMB in 2002 the Guidelines, including the SDWAA, have received hostile public reception. (20)

   This Note will argue that, as written, the OMB Guidelines under the IQA require the FCC to adopt or adapt the SDWAA when it engages in the analysis of risks to human health, safety, and the environment. Part II will provide a brief summary of the history, substance, and criticisms of the IQA and the SDWAA. Part III will contend that the FCC engages in and disseminates information related to risk analysis for the purposes of coverage under the SDWAA. Part IV will argue that social risk analysis--e.g., agency evaluations of the hazards of exposure to certain content on viewers--also falls under the purview of the broad standard articulated by the OMB. Part V will evaluate what the SDWAA mean for the FCC. This Note will end with the assertion that, for the purposes of the OMB Guidelines, the FCC is subject to the SDWAA, and will conclude with suggestions on how to appropriately incorporate the SDWAA in a way that will mitigate the negative effects while remaining true to the goals of the IQA, the White House Office of Management and Budget, and the FCC.

2. THE INFORMATION QUALITY ACT

   In 2002, the OMB promulgated its Guidelines as per the IQA. (21) Already displeased with the IQA's stealth beginnings, vague directive, and costly appeals mechanism, (22) the OMB fueled anti-IQA fire when it borrowed the 1996 Amendments from the Safe Drinking Water Act ("SDWA"). (23) This section will survey the SDWAA, beginning with a brief history of the SDWA, a summary of the 1996 Amendments under the OMB Guidelines, and concluding with a review of the criticisms against the use of the SDWAA in this context.

   1. Risk Analysis Under the Safe Drinking Water Act

      Congress passed the SDWA in 1974, authorizing the EPA to set national health-based standards for drinking water based upon the best available science. In 1996, the SDWA was amended to confirm the EPA's commitment to water contamination prevention in an effort to increase public participation in SDWA programs by Ranting better access to information used by the EPA, among other things. (24)

   2. Office of Management and Budget's Safe Drinking Water Act Amendments of 1996

      Under the Guidelines, all agencies must adopt or adapt the SDWAA in their use of information related to the analysis of health, safety, or the environment. (25) This standard is two-pronged. First, agencies must (1) make use of "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...." (26) Second, agencies must:

      [I]n a document made available to the public in support of a regulation [to specify, to the extent practicable--(i) each population addressed by any estimate [of applicable risk effects]; (ii) the expected risk or central estimate of risk for the specific populations [affected]; (iii) each appropriate upper-bound or lower-bound estimate of risk; (iv) each significant uncertainty identified in the process of the assessment of [risk] effects and the studies that would assist in resolving the uncertainty; and (v) 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. (27) Under the Guidelines, agency presentation of information to the public must be "comprehensive, informative and understandable." (28)

   3. The Safe Drinking Water Act Amendments of 1996: A Review of Criticisms

      The SDWAA were undoubtedly promulgated with environmental risk in mind. However, the OMB posits that, in passing the 1996 Amendments, Congress "adopted a basic standard of quality for the use of science in agency decision-making." (29) The OMB formalized that position in the Guidelines, establishing the SDWAA as the standard for risk analysis. (30)

      Opponents of the Guidelines contest the OMB's adoption of the SDWAA principles for risk analysis in general, for reasons not the least of which are, that a review of the relevant legislative history will reveal no such adoption by Congress. (31) Disputants' concerns are twofold: first, implementation of the SDWAA will require the expense of limited federal resources; and second, the added administrative burden will clog the wheels of the regulatory process. (32)

      First, the use of rigorous evidentiary requirements, such as in the SDWAA, seems at odds with the goals of risk analysis--namely, avoidance and/or mitigation of risk. The very purpose of risk analysis--to evaluate the likelihood of some uncertain harm--suggests, at least in some cases, a precautionary approach. In some cases, this precautionary approach is legally compelled. (33) In these instances, added constraints that impede or stop the process altogether, such as the SDWAA would be both counterintuitive and counterproductive.

      As a result, opponents argue that the IQA's rigorous scientific requirements (SDWAA standard included) will stall the regulatory process. (34) "Every time you create a new set of check boxes before the agency can do something, you increase the risk of the agency not doing it." (35) Certainly, the extra regulatory hurdle that is the OMB's SDWAA standard for risk...