02-25402. Final Report Implementing Office of Management and Budget Information Dissemination Quality Guidelines

AGENCY:

Office of the Chief Information Officer, Department of Energy (DOE).

ACTION:

Notice.

SUMMARY:

DOE gives notice of the final report to the Office of Management and Budget (OMB) that contains final DOE guidelines setting forth policy and procedures to ensure and maximize the quality, utility, objectivity, and integrity of the information that DOE disseminates to members of the public. DOE has prepared this final report pursuant to OMB government-wide guidelines under section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Act) (Pub.L. 106-554, 114 Stat. 2763).

DATES:

The guidelines in the final report to OMB are effective October 1, 2002.

ADDRESSES:

The final DOE report and guidelines in this notice are available on the web site of the DOE Chief Information Officer (CIO) at http://cio.doe.gov/​informationquality.

FOR FURTHER INFORMATION CONTACT:

Office of the Chief Information Officer, Attention: Ms. Deborah Henderson, U.S. Department of Energy, Room 8H-089, 1000 Independence Avenue, SW., Washington, DC 20585; [e-mail]; [phone].

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

The final report and guidelines in this notice are in response to OMB's Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (OMB guidelines), 67 FR 8452 (February 22, 2002) under section 515 of the Act. DOE's final guidelines apply to a wide variety of information disseminated to members of the public. The DOE final guidelines are modeled on the OMB guidelines with modifications specific to DOE. The principal modifications with explanations, are as follows:

1. DOE inserted the definitions before the operative portions of its final guidelines, and in order to enhance readability, opted to relocate some of the language in the OMB definitions (namely, that which provided policy as distinguished from strictly definitional material) among the operative sections of the guidelines.

2. DOE included general pre-dissemination review procedures which would provide for the originating DOE office to review information in light of the quality standards in the OMB and DOE guidelines and, in appropriate cases, for higher level internal review of the originating office's conclusions to ensure that the procedures are followed.

3. DOE included its own definition of “influential” when that term is applied to financial, scientific, or statistical information. Under the OMB guidelines, “influential” information of that type is supposed to meet the highest standards of quality and transparency (consistent with countervailing considerations such as confidentiality) and data must be capable of reproduction by a qualified individual outside of the agency. DOE decided to define “influential information” as information that DOE routinely embargoes because of its potential effect on markets, information on which a regulatory action with a $100 million per year impact is based, and other information products on a case-by-case basis. Routine embargo information occurs with regard to certain of the information products of DOE's Energy Information Administration. Currently, only some of the appliance energy conservation standards rulemakings under the Energy Policy and Conservation Act (42 U.S.C. 6295) have $100 million impacts on the economy. While DOE is committed to maintaining high standards of quality for all of its information products aimed at the public, DOE is not of the view that the impact of other information products warrants holding them to the most rigorous standards of transparency and reproducibility.

4. DOE included mandatory procedures, including content requirements, to be followed by members of the public in submitting requests for correction of information under the guidelines. With respect to information related to DOE documents subject to public comment, members of the public generally would have to submit requests for correction in the form of timely comments to ensure their consideration. However, the final guidelines allow for the possibility of DOE consideration of late-filed requests for correction. They also provide specifically for requests for correction applicable to final rules and final environmental impact statements. With respect to DOE documents that are not subject to public comment, members of the public would be required to submit requests for correction to the DOE CIO who would direct the request to the originating DOE program office. That office should provide at least an initial response within 60 days. A member of the public could request review of an adverse initial response through the DOE CIO. The CIO would direct the request for review to a higher level official of the DOE program office to whom the originating program office reports for a final decision (in which the DOE Office of General Counsel must concur) within 60 days.

5. Consistent with the OMB guidelines, DOE has modified the portion of the DOE guidelines calling for use of the criteria in the Safe Drinking Water Act Amendments of 1996 (SDWAA) (42 U.S.C 300g-1(b)(3)(A) and (B)) in the preparation of risk assessments. The modified guidelines specify criteria adapted from the SDWAA, applicable to information containing analyses of risks to human health, safety, and the environment.

II. Response to Public Comments and Modifications to Draft DOE Guidelines

Authority of OMB Guidelines. DOE received a comment arguing that DOE should ignore the definitions of “dissemination” and “information” in the OMB guidelines because, in the view of the commenter, OMB has no discretion under section 515 to exempt categories of information from the data quality guidelines. DOE also received comments arguing that DOE should disregard the OMB guidelines and rely instead on standards in the text of section 515 when DOE responds to a request for correction. DOE rejects these comments because section 515 does not apply directly to agencies. Rather, it grants OMB authority to issue directives to agencies, which are binding on the agencies as a matter of internal Executive Branch administration. Specifically, subsection (a) of section 515 requires OMB to issue government-wide information quality guidelines, and subsection (b) of section 515 requires that OMB include in its guidelines a requirement for agencies to “establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a).” Thus, section 515 specifically contemplates that compliance with section 515 in responding to requests for correction will be evaluated against the OMB guidelines and not the terms of section 515 itself.

Applicability of DOE guidelines. DOE's draft guidelines stated that they applied to information disseminated or re-disseminated on or after October 1, 2002. A commenter urged DOE to clarify the applicability of its guidelines by substituting the phrase “information that is still being disseminated by DOE on or after October 1, 2002.” DOE decided to clarify the applicability of its guidelines by using the phrase “information that is disseminated by DOE on or after October 1, 2002, regardless of when that information was first disseminated.”

Adjudicatory exemption. Consistent with the OMB guidelines, the DOE draft guidelines would exempt from the definition of “dissemination” documents related to adjudicatory proceedings in which there is an opportunity for trial-type proceedings to test information quality. In order to clarify the scope of the exemption, DOE has added examples. The examples are documents made available to the public in connection with a formal adjudicatory proceeding by the Nuclear Regulatory Commission to license a DOE facility and documents distributed to the public in Bonneville Power Administration ratemaking proceedings.

Supplemental DOE Element guidelines. The DOE draft guidelines authorize DOE Elements to adopt supplemental guidelines consistent with OMB and DOE guidelines. One of the comments argued that DOE Elements should be required to propose their supplemental guidelines for public comment because of the notice and comment rulemaking requirements of the Administrative Procedure Act (5 U.S.C. 553). DOE does not believe this is necessary because the draft guideline provision in question concerned the “process” the DOE Element would follow for reviewing information quality. These supplemental guidelines will contain either procedures or non-binding general statements of policy. Both types of policy are explicitly exempt from notice and comment rulemaking (5 U.S.C. 553(b)(A)).

Timely correction of information errors in documents subject to public comment. The DOE draft guidelines provided for the possibility of preliminary responses to requests for correction with regard to documents made available for public comment at an early stage in a proceeding. One of the comments questioned whether DOE's omission of a 60 day deadline for responding to a request for correction with regard to a document subject to public comment was inconsistent with the requirement in the OMB guidelines for “timely” responses. The commenter argued that there is a need for prompt responses because information disseminated by agencies in connection with a proposal can do significant harm. This suggestion of potential significant harm is speculative; notably, the commenter did not offer any example to support the argument. While commenters sometimes criticize the information on which DOE bases its proposed rules and draft environmental impact statements, DOE has never received a request to expedite a proceeding or otherwise withdraw information in question because of significant harm attributable to delay in taking final agency action. From time to time, DOE has received a comment so persuasive in criticizing the factual basis for a proposal that DOE decided either to repropose or to extend or reopen the comment period in a Federal Register notice describing the comment, stating DOE's preliminary reaction to the comment, and offering additional information or new policy options for comment. Although DOE has never experienced a case of significant harm that warranted an early definitive response to a comment, DOE is aware that other agencies may have experienced a rare case in which imminent harm of a significant nature might justify such a response. In supplemental guidance issued after the close of DOE's comment period on its draft guidelines, OMB recommended that agencies provide for consideration of request for correction prior to final agency action in appropriate circumstances. Consistent with that guidance and DOE's prior practice, DOE has modified its draft guidelines at paragraph IV.A.1.(C) to provide for consideration of a prompt, albeit preliminary, response on the merits to a request for correction if the requester adequately justifies the necessity for such a response.

Late-filed requests for correction of documents subject to public comment. DOE's draft guidelines would require members of the public to file requests for correction during the comment period. The draft guidelines were silent as to how DOE would treat late-filed requests for correction, and some of the commenters argued for greater flexibility or against any restriction to the comment deadline. DOE believes requests for correction in a notice and comment rulemaking should be treated the same way as comments under other crosscutting statutory requirements such as the Regulatory Flexibility Act. Accordingly, DOE responded to these commenters by providing in paragraph IV.A.1.(D) that DOE may consider late-filed requests for correction comments “to the same extent that DOE considers late-filed comments and time permits such consideration.” DOE has long had a practice of considering late-filed comments but has always reserved, and continues to reserve, the discretion to disregard such comments in appropriate circumstances.

Petitions for rulemaking and supplemental environmental impact statements. The DOE draft guidelines would require members of the public to file requests for correction of a final rule in the form of a petition for rulemaking and of a final environmental impact statement in the form of a petition for a supplemental environmental impact statement. One of the comments criticized this provision as overbroad and unnecessary because there will be times when the request for correction does not seek a change in the rule or the environmental impact statement. DOE has addressed this comment by limiting the requirement to file these requests for correction as petitions for rulemaking or for a supplemental environmental impact statement to circumstances in which the request for correction is actually aimed at changing the rule or the environmental impact statement. DOE's final guidelines impose the obligation to petition for a supplemental environmental impact if the person requesting the correction is claiming that there are significant new circumstances or information as provided in the governing Council on Environmental Quality regulations (40 CFR 1502.9(c)(1)(ii)).

Burden of demonstrating need for correction. The DOE draft guidelines proposed to place on the person requesting a correction the “burden of proof” to demonstrate the need for a correction. One commenter objected to this provision as an unreasonable disincentive and hurdle on request for corrections but did not explain why the provision is unreasonable. Another comment accepted the desirability of this provision but argued that DOE should add explicitly that it has the burden of maintaining an “administrative record” demonstrating that the information at issue complies with the OMB guidelines. DOE rejects the first comment out of concern that removing a burden to justify will promote frivolous requests. Anyone who requests a correction under the OMB and DOE guidelines should be required to explain the basis for the request as a prerequisite to any agency diversion of resources to respond. DOE rejects the second comment in part because the term “administrative record” is suggestive of the availability of judicial review. Also, the OMB and DOE guidelines require documentation of DOE action in response to a request for correction, and any additional recordkeeping requirements could be overly burdensome. In today's final guidelines, DOE has changed the term “burden of proof” to “burden of justification” because the former may misleadingly suggest that requests for correction should be focused on evidentiary standards and trial-type procedures rather than the need to correct information.

Definition of “influential information.” Consistent with the OMB guidelines, DOE defined the term “influential information” as information disseminated in connection with major rulemakings and information that is subject to embargo because of potential immediate effects on markets. DOE's draft definition also provided for a case-by-case designation of information as “influential.” One of the comments argued that case-by-case designations should be guided by OMB's tentative definition of “influential information” in its guidelines. OMB's definition referred to information that will have or does have a “clear and substantial impact on important public policies or important private sector decisions.” In DOE's view, OMB's language does not provide a clear enough line for consistent and efficient administration of the “influential information” concept in the DOE context. DOE prefers to gain experience in applying its own definition before deciding whether that definition needs to be supplemented with additional criteria to govern case-by-case designations of “influential information.”

Non-DOE information. Consistent with the OMB guidelines, DOE's guidelines apply to third party information that is either relied on or endorsed by DOE. Two commenters urged that DOE modify its draft DOE guidelines to cover third party data submissions that DOE neither relies on nor endorses and information disseminated by national laboratories under their own names. DOE rejects these comments because the OMB guidelines do not direct that agency guidelines shall apply to information produced by other entities that is neither relied on nor endorsed by the agency. Moreover, DOE is of the view that the limited resources available should be focused on addressing the quality of information that DOE relies on or endorses.

Definition of “affected person.” The OMB guidelines direct agencies to devise a request for correction procedure for “affected persons” (as defined by the OMB guidelines). DOE, however, omitted that definition in its draft guidelines and elected to allow any persons to submit requests for correction. DOE omitted the definition because it believes the underlying purpose of section 515 of the Act is to improve the quality of agency information whether or not the information has effects on particular individuals. A commenter argued in favor of a broad definition of “affected person” in order to lower what the commenter perceived as a potential hurdle to requests for correction. DOE believes its omission of the term “affected person” eliminates the potential hurdle entirely and that it has therefore gone beyond what this commenter suggested.

Separation of functions. The DOE draft guidelines provide for a prominent role for the originating office in processing requests for correction. With respect to requests filed in connection with notice and comment rulemaking and environmental impact statements, and with respect to appeals from initial decisions on requests for correction of information in documents not subject to public comment, DOE senior officials with concurrence from the DOE Office of General Counsel will make the final decision. Some commenters objected to the role of the originating office and argued that decisionmaking responsibility be assigned to an office independent of the originating office. DOE rejects these comments for several reasons. First, the OMB guidelines do not require or even contemplate separation of functions. Second, OMB has issued supplementary guidance indicating its approval of procedures involving a prominent role for agency Offices of General Counsel to assist agencies in following the directives of the OMB guidelines. Third, originating offices should be given the opportunity to correct erroneous information in the first instance since they are responsible for the information in question and are especially knowledgeable about the quality basis for the information.

Confidential information. Consistent with the OMB guidelines, the draft DOE guidelines provide for use of confidential information if necessary. A commenter argued that agencies should adopt a general prohibition against use of what the commenter described as “third party proprietary models.” The commenter further argued that if such a model must be used, the agencies should have the burden of demonstrating to OMB that no other option is available before contracting to use the model. DOE rejects this comment because: (1) The OMB guidelines do not require agencies to adopt such a policy; (2) the policy would be inconsistent with Executive Order 12866 which requires OMB clearance only of significant regulatory actions; and (3) the policy would be too restrictive. In the appliance energy conservation standards program under the Energy Policy and Conservation Act (42 U.S.C. 6295), DOE contracts with a third party to collect individual company data under arrangements providing for the third party to provide aggregate data only to DOE. This arrangement enhances the willingness of individual companies to divulge proprietary information, and DOE does not believe it should adopt a procedure to prohibit or otherwise jeopardize a data collection effort that is essential to carry out DOE's substantive standard-setting mandates under the Energy Policy and Conservation Act (or for that matter DOE's substantive mandates under any other statutory authority).

Reasonableness of 60-Day Decision Deadlines. With respect to information that is not subject to public comment, the DOE draft guidelines provide for 60 days as a goal for an initial decision and for appeals from an initial decision. A commenter argues that 60 days is too long and would undermine the effect of attempting to obtain corrective action. DOE disagrees for two reasons. First, the comment does not offer any example to demonstrate that a 60-day target would undermine the effect of attempting to obtain corrective action. Second, the 60-day target gives necessary time to carefully consider a request for correction and formulate and internally review a response while at the same time carrying out other, unrelated, and possibly priority duties. DOE draws support for the 60-day target from OMB supplemental guidance indicating the OMB is of the view that 60 days is a reasonable target period of time to arrive at a decision.

Paperwork Reduction Act. In its draft guidelines, DOE provided for DOE Elements to demonstrate that information collections will comply with the OMB and DOE guidelines when requesting clearance of new information collections. A commenter criticized this provision as wasteful and counterproductive because agencies are already required to demonstrate “practical utility” for proposed information collections. DOE disagrees because if the information to be collected is intended for dissemination to the public, the formulation of the information collection should appropriately take the OMB and DOE guidelines (including the basic standard of quality which goes beyond utility) into account.

Definition of “peer review.” Consistent with the OMB guidelines, the DOE draft guidelines provide for peer review in certain circumstances such as risk assessments. One comment criticized the term “peer review” as vague, and suggested that DOE adopt a definition for that term. In DOE's view, there is no need for a definition of the term “peer review” since the OMB guidelines are explicit about the elements of adequate “peer review.”

Information request docket. Consistent with the OMB guidelines, the DOE draft guidelines provide for annual reporting of actions on requests for correction but did not provide for a public docket at a DOE web site giving the current status of all requests for correction. One comment urged that the DOE guidelines should provide for such a docket. While the DOE CIO will maintain a web site with essential information for members of the public who want to file a request for correction or to print out the DOE guidelines, DOE declines to allocate scarce resources for the expensive, labor intensive effort the commenter requests. DOE's limited resources should be focused exclusively on complying with DOE's obligations under the OMB guidelines' directives.

Responding to requests for consideration. The DOE draft guidelines do not commit DOE to particular courses of action in responding to requests for consideration that concern information that is incorrect. One of the comments argued for an inflexible policy of correcting the information. DOE declines to accept this comment because the appropriate course of action should be determined in light of the particular facts and circumstances. In some instances, an acknowledgment of error may be all that is necessary, the document in question may not be subject to correction (e.g., effective final rules appliance energy conservation standards subject to 42 U.S.C. 6295(o)), and other measures may be needed to address any errors.

Effect of DOE guidelines on DOE Elements. The DOE guidelines do not purport to impose legally binding substantive policies on DOE Elements. A commenter argues that the DOE guidelines should be binding on DOE Elements. DOE rejects this comment because the DOE information collection procedures are not substantive rules and should therefore not be binding as such.

Substitute information. The DOE draft guidelines provide that members of the public must validate, insofar as they can, any information offered for DOE to adopt consistent with the OMB and DOE guidelines. A commenter argued against this provision because it is a disincentive to filing a request for correction. DOE rejects this comment because the procedures do not impose any obligation to submit substitute information and because those members of the public who do submit such information should make the case for the higher quality of the information they think DOE should adopt.

Complexity of procedures. The DOE draft guidelines contain specific procedures for members of the public to follow. One commenter criticized these procedures as complex and argued generally for simplification without offering any specifics. The procedures are a function of the variety of contexts in which DOE disseminates information and the omission of detailed procedures in section 515 of the Act and the OMB guidelines. DOE does not believe that its procedures are complex or difficult to understand or follow.

Risk assessments. Consistent with the OMB guidelines, DOE considered whether to add a variation of the criteria in the Safe Drinking Water Act Amendments of 1996 (42 U.S.C. 300g-1(b)(3) (A) and (B)) to its guidelines for preparing environmental risk assessments. In its notice inviting public comment on the draft guidelines, DOE stated that it was considering whether to add separate procedures intended to foster the preparation of comprehensive, informative and understandable ecological risk assessments, in addition to procedures for health risk assessments. One of the comments supported this approach but urged that DOE's proposal be modified to emphasize a number of elements that the commenter believed would add rigor, e.g., analysis of local populations of biota. DOE rejects this comment because the purpose of these guidelines is to provide general guides for the preparation of quality documents, not to mandate, or even to suggest a specific approach for risk assessment. DOE believes it should retain the discretion to tailor its assessment methodology so that it is appropriate for a given situation. DOE therefore revised its original proposal to make clear that it is a procedural guideline of general applicability and not intended as a policy statement with respect to analytic methodology. Given the general suitability of the criteria that DOE has included in today's final guidelines, DOE has concluded that there is no need for separate criteria for health and ecological risk assessments.

Other comments. DOE received other comments that raise issues outside the scope of this proceeding or do not offer specific suggestions for improving the DOE draft guidelines. Although the purpose of this proceeding is to establish procedures and a general statement of policy under the OMB guidelines, some commenters sought to have DOE reconsider substantive energy policies with which they disagree. Others raise questions about generic procedures that should be addressed to OMB such as a consistent policy regarding dissemination of information developed by an interagency risk assessment consortium committee and inclusion of information quality as a performance goal in performance plans under the Government Performance and Results Act. DOE has not responded to the issues these extraneous comments raise because they are out of scope or irrelevant.

III. OMB Review

Consistent with the OMB guidelines, DOE submitted this notice to OMB for review. OMB has completed its review.

Issued in Washington, DC on October 1, 2002.

Karen S. Evans,

Chief Information Officer.

Final Report to the Office of Management and Budget on Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Department of Energy

Introduction

This report is submitted to the Office of Management and Budget (OMB) by the Department of Energy (DOE) pursuant to OMB's Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (OMB guidelines), 67 FR 8452 (February 22, 2002) under section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub.L. 106-554, 114 Stat. 2763). The report includes DOE's guidelines to implement the policies and procedural guidance set forth in the OMB guidelines.

Background

DOE is responsible for the administration of a wide variety of national defense, energy supply, energy conservation, and nuclear waste cleanup programs authorized by law. DOE administers a system of national laboratories with active scientific research programs. DOE also disseminates a large volume of statistical reports through its Energy Information Administration. Although DOE is not a major regulatory agency, DOE has some rulemaking mandates and authorities, such as the appliance energy conservation program of test procedures and standards, that require the dissemination of financial, scientific, and statistical information. Like other agencies, DOE publishes draft and final environmental impact statements and environmental assessments under the National Environmental Policy Act, 42 U.S.C. 4321-4347.

Discussion of Guidelines

DOE has always maintained high standards of quality in the production of information disseminated to members of the public. As a source of scientific and statistical information on which members of the public and other government officials rely, DOE has long had procedures to assure adequate information quality. DOE's Energy Information Administration is a leader in this regard and has elaborate procedures to ensure the quality of its information products. DOE's Office of Energy Efficiency and Renewable Energy has elaborate special procedures for some of its rulemakings. That office has codified a general statement of policy in Appendix A to Subpart C of 10 CFR Part 430 with regard to its information quality review procedures for information used in its appliance energy conservation standards rulemakings.

The DOE guidelines set forth below are modeled on OMB guidelines and incorporate a basic standard of quality (including objectivity, utility, and integrity) in the development and dissemination of DOE or DOE-sponsored information to the public. They also incorporate the procedures that DOE has traditionally followed to review information products for adequate quality. In addition, the DOE guidelines provide a uniform set of procedures for members of the public who wish to request correction of information on a timely basis. These procedures will ensure that final DOE decisions with respect to requests for correction will be made by high-level management officials with the concurrence of the DOE Office of General Counsel.

DOE notes that section 515 establishes procedures and performance goals for the internal management of the Executive Branch. While seeking to establish a process that assures that DOE is attentive to the issue of information quality, neither section 515 nor the OMB Guidelines nor DOE's own Guidelines provide for judicially manageable standards regarding the quality of information that the agency may disseminate. Therefore, neither section 515 nor the OMB Guidelines nor DOE's Guidelines create private rights or contemplate judicial oversight of its directives through judicial review. Rather, the statute contemplates internal executive branch management of its directives, as evidenced by its directive to each agency to “report periodically to the Director” of OMB concerning “(i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and (ii) how such complaints were handled by the agency.” DOE's Guidelines likewise contemplate that internal executive branch management will be the mechanism for meeting the objectives of section 515.

The DOE Guidelines were prepared by the DOE Chief Information Officer, who is responsible for coordinating DOE's response to OMB's guidelines, in cooperation with other affected DOE offices. They have been approved by the Secretary of Energy.

Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated to the Public by the Department of Energy

I. Background

Section 515, Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554), directed the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal Agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal Agencies.” The OMB guidelines, published in the Federal Register on February 22, 2002 (67 FR 8452), direct agencies to issue by October 1, 2002, their own implementing guidelines that include administrative mechanisms allowing members of the public to seek and obtain correction of information disseminated by the agency that does not comply with the OMB or agency guidelines.

The Department of Energy (DOE) Information Quality Guidelines, issued by the Department's Chief Information Officer (CIO) pursuant to OMB's Guidelines, are intended to provide guidance to Departmental Elements (i.e., major DOE offices) on maximizing the quality, objectivity, utility, and integrity of information, including statistical information, disseminated to the public.

The DOE Guidelines also establish mechanisms for members of the public to seek and obtain administrative correction of disseminated information that does not comply with the quality requirements of these Guidelines. Finally, the Guidelines explain how the CIO will comply with OMB's annual reporting requirement concerning complaints from members of the public.

The DOE Information Quality Guidelines are effective on October 1, 2002.

II. Introduction

The CIO has designed these Guidelines to apply to a wide variety of DOE information dissemination activities that may range in importance and scope. They are intended to be sufficiently generic to fit all media, printed, electronic, or other forms. The CIO has sought to avoid the problems that would be inherent in developing detailed, prescriptive, “one-size-fits-all” DOE-wide guidelines that would artificially require different types of dissemination activities to be treated in the same manner.

The Guidelines are designed so that DOE Elements can apply them in a common sense and workable manner. It is important that these guidelines not impose unnecessary administrative burdens that would inhibit DOE Elements from continuing to take advantage of the Internet and other technologies to disseminate information to the public. In this regard, DOE Elements may incorporate the standards and procedures required by these guidelines into their existing information resources management and administrative practices rather than create new and potentially duplicative or contradictory processes. DOE Elements may rely on their implementation of the computer security provisions of the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq., to establish appropriate security safeguards for ensuring the integrity of the information that they disseminate.

III. DOE Information Quality Guidelines

A. What Definitions Apply to These Guidelines?

1. DOE Element means a major DOE office headed by an official whose position is subject to Senate confirmation or an office which directly reports to the Secretary, Deputy Secretary, or either of the DOE Under Secretaries.

2. Dissemination means DOE Element initiated or sponsored distribution of information to the public.

3. Influential means, when used in the context of scientific, financial, or statistical information, information (1) that is subject to embargo until the date of its dissemination by the Department or DOE Element disseminating the information because of potential market effects; (2) that is the basis for a DOE action that may result in an annual effect on the economy of $100 million or more; or (3) that is designated by a DOE Element as “influential.”

4. Information means any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms, including information that a DOE Element disseminates from a web page, but excluding the provision of hyperlinks to information that others disseminate.

5. Information dissemination product means any book, paper, map, machine-readable material, audiovisual production, or other documentary material, regardless of physical form or characteristic, a DOE Element disseminates to the public, including any electronic document, CD-ROM, or web page.

6. Integrity means the information has been secured and protected from unauthorized access or revision, to ensure that the information is not compromised through corruption or falsification.

7. Objectivity means the information is presented in an accurate, clear, complete, and unbiased manner and the substance of the information is accurate, reliable, and unbiased.

8. Quality means utility, objectivity, and integrity.

9. Reproducibility means capability of being substantially reproduced, subject to an acceptable degree of imprecision, and with respect to analytical results, “capable of being substantially reproduced” means that independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.

10. Subject to public comment means that DOE has made the information available for comment by members of the public, preliminary to making a final determination, through a notice in the Federal Register including, but not limited to, a notice of inquiry, an advance notice of proposed rulemaking, a notice of proposed rulemaking, a notice reopening or extending a comment period due to receipt of new information, a notice of availability of a draft environmental impact statement, a notice of a proposed information collection, or any other Federal Register notice that provides an opportunity for comment by members of the public regarding the quality of information on which a final determination may be based.

11. Utility means the usefulness of the information to its intended users, including the public.

B. Which public disseminations of information are and are not subject to these Guidelines?

These Guidelines apply to any public dissemination of information. The definitions of “information” and “dissemination” establish the scope of the applicability of the guidelines. “Information” means “any communication or representation of knowledge such as facts or data.” Consequently, “information” does not include opinions.

“Dissemination” is defined to mean agency initiated or sponsored distribution of information to the public, including, for example, a risk assessment prepared by a DOE Element to inform the agency's formulation of possible regulatory or other action. A DOE Element does not “initiate” the dissemination of information when a Federally employed scientist or Federal grantee or contractor publishes his or her research findings, even if the DOE retains ownership or other intellectual property rights because DOE paid for the research. In such cases, to avoid confusion, the DOE Element should ensure that the researcher includes an appropriate disclaimer that the views are the researcher's and do not necessarily reflect the views of DOE. However, if a DOE Element directs a Federally employed scientist or Federal grantee or contractor to disseminate information and retains authority to review and approve the information before release, then the DOE Element has sponsored the dissemination of the information.

“Dissemination” also does not include the following distributions:

(1) Press releases, including but not limited to fact sheets, press conferences or similar communications in any medium that announce, support the announcement or give public notice of information a DOE Element has disseminated elsewhere;

(2) Any inadvertent or unauthorized disclosure of information intended only for inter-agency and intra-agency communications;

(3) Correspondence with individuals or persons;

(4) Testimony and other submissions to Congress containing information a DOE Element has disseminated elsewhere;

(5) Responses to requests for DOE records under the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act or similar laws;

(6) Information in public filings (such as public comments received by DOE in rulemaking proceedings), except where the DOE Element distributes information submitted to it by a third party in a manner that suggests that the DOE Element endorses or adopts the information, or indicates in its distribution that it is using or proposing to use the information to formulate or support a regulation, guidance, or other DOE Element decision or position.

(7) Information contained in subpoenas or documents filed in connection with adjudicative proceedings (characterized by trial-type procedures with opportunity to test information quality), including DOE adjudicatory orders, opinions, amicus and other briefs, documents filed in Bonneville Power Administration's ratemaking proceedings, and documents submitted for purposes of a Nuclear Regulatory Commission licensing proceeding for a DOE facility;

(8) Procedural, operational, policy and internal manuals and memoranda prepared for the management and operation of DOE Elements that are not primarily intended for public dissemination;

(9) Archival records (including information made available to the public on a DOE web site to document historical DOE actions); and

(10) Communications intended to be limited to government employees or DOE contractors or grantees.

C. What Are the Responsibilities of DOE Elements for Ensuring Quality of Information Disseminated to the Public and Responding to Requests From Members of the Public for Correction of Information?

1. Ensuring Quality

As a guiding principle, DOE Elements should have as a performance goal that information disseminated to the public meets a basic level of quality. The quality of information disseminated by DOE Elements is measured by its utility, objectivity, and integrity. “Objectivity” focuses on whether the disseminated information is being presented in an accurate, clear, complete and unbiased manner and as a matter of substance, is accurate, reliable and unbiased. This includes whether the information is presented in the proper context. Sometimes, in disseminating certain types of information to the public, other information must also be disseminated in order to ensure an accurate, clear, complete, and unbiased presentation.

Also, DOE Elements should (to the extent possible, consistent with security, privacy, intellectual property, trade secrets, and confidentiality protections) identify the sources of the disseminated information and, in a scientific, financial, or statistical context, the supporting data and models, so that the public can assess for itself whether there may be some reason to question the objectivity of the sources. Where feasible, data should have full, accurate, transparent documentation, and possible sources of error affecting data quality should be identified and disclosed to users.

In addition, “objectivity” involves a focus on ensuring accurate, reliable, and unbiased information. In a scientific, financial, or statistical context, the original and supporting data should be generated, and the analytical results developed, using sound statistical and research methods. If the data and analytical results have been subjected to formal, independent, external peer review, the information may generally be presumed to be of acceptable objectivity. However, this presumption is rebuttable based on a persuasive showing by a member of the public seeking correction of information in a particular instance. If DOE Element-sponsored peer review is employed to help satisfy the objectivity standard, the review process employed should meet the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs to the President's Management Council (http://www.whitehouse.gov/​omb/​inforeg/​oira_​review-process.html),, namely “that (a) peer reviewers be selected primarily on the basis of necessary technical expertise, (b) peer reviewers be expected to disclose to agencies prior technical/policy positions they may have taken on the issues at hand, (c) peer reviewers be expected to disclose to agencies their sources of personal and institutional funding (private or public sector), and (d) peer reviews be conducted in an open and rigorous manner.”

Influential information. If a DOE Element is responsible for disseminating and disseminates influential scientific, financial information, a high degree of transparency of data and methods should be ensured to facilitate the reproducibility of such information by qualified third parties. “Influential” when used in the context of scientific, financial or statistical information, means information: (1) That is subject to embargo until its dissemination by DOE or a DOE Element disseminating the information because of potential market effects; (2) that is the basis for a DOE action that may result in an annual effect on the economy of $100 million or more; or (3) that is designated by a DOE Element as “influential.”

With regard to original and supporting data related thereto, these Guidelines do not direct that all disseminated original and supporting data be subjected to the reproducibility requirement applicable to influential information. DOE Elements may identify, in consultation with the relevant scientific and technical communities, those particular types of data that may practicably be subjected to the reproducibility requirement, given ethical, feasibility, confidentiality, privacy, trade secret, security, and intellectual property constraints. It is understood that reproducibility of data is an indication of transparency about research design and methods and thus a replication exercise (i.e. a new experiment, test, or sample) should not be required prior to each dissemination. At a minimum, DOE Elements should assure reproducibility for those kinds of original and supporting data according to “commonly accepted scientific, financial, or statistical standards.”

With regard to analytic results related thereto, DOE Elements generally should demonstrate sufficient transparency about data and methods that an independent reanalaysis could be undertaken by a qualified member of the public. These transparency standards apply to analysis of data from a single study as well as to analyses that combine information from multiple studies.

Making the data and models publicly available will assist in determining whether analytical results are capable of being substantially reproduced. However, the objectivity standard does not override other compelling interests such as privacy, trade secret, security, intellectual property, and other confidentiality protections.

In situations where public access to data and methods will not occur due to other compelling interests, DOE Elements should apply rigorous robustness checks to analytic results and document what checks were undertaken. DOE Elements should, however, disclose the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed. However, each DOE Element should define the type of robustness checks and the level of detail for documentation thereof, in ways appropriate for it given the nature and multiplicity of issues for which the DOE Element is responsible.

With regard to the dissemination of information containing analyses of risks to human health, safety and the environment, it is DOE policy for DOE Elements in complying with the OMB guidelines to apply the following criteria adapted from the Safe Drinking Water Act Amendments of 1996.

1. Use:

a. The best available peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and

b. Data collected by accepted methods (if the reliability of the method and the nature of decision justify use of the data).

2. Present information that is comprehensive, informative, and understandable.

3. Specify, to the extent practicable:

a. Each population addressed by any estimate of risk;

b. The expected risk or central estimate of risk for the populations addressed;

c. Each appropriate upper-bound or lower-bound estimate of risk;

d. Each significant uncertainty identified in the process of an assessment of risk and the studies that would assist in resolving the uncertainty; and

e. Peer-reviewed studies known to the DOE Element 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.

DOE Elements responsible for dissemination of vital health, environmental and medical information should interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information to medical providers, patients, health agencies, and the public.

“Utility” refers to the usefulness of the information to intended users including the public. In assessing the usefulness of information, DOE Elements need to consider the uses of the information they plan to disseminate not only from their perspective but also from the perspective of the public. As a result, when transparency of information is relevant for assessing the information's usefulness from the public's perspective, DOE Elements should take care to ensure that transparency has been addressed in its review of the information.

“Integrity” refers to security—the protection of information from unauthorized access or revision to ensure that information by DOE or DOE Elements is not compromised through corruption or falsification.

Pre-dissemination review procedures. Before disseminating information to members of the public, the originating office of the DOE Element is responsible for ensuring that the information is consistent with the OMB and DOE guidelines and that the information is of adequate quality for dissemination. If the information is influential financial, scientific, or statistical information, then, to the extent practicable, the DOE Element should provide for higher level review of the originating office's conclusions. Each DOE Element should identify for the CIO a high ranking official who is responsible for ensuring the accountability of the DOE Element's program offices in reviewing information to be disseminated to members of the public under the OMB and DOE guidelines.

As a matter of good and effective information resources management, DOE Elements may develop and post on their websites supplemental guidelines for the process they will follow for reviewing the quality (including objectivity, utility and integrity) of information before it is disseminated. DOE Elements should treat information quality as integral to every step of development of information, including creation, collection, maintenance, and dissemination. This process will enable every DOE Element to substantiate the quality of the information it has disseminated through documentation or other means appropriate to the information.

Paperwork Reduction Act. It is important that DOE Elements make use of OMB's Paperwork Reduction Act (PRA) clearance process to help improve the quality of information that the DOE Elements collect and disseminate to the public. DOE Elements already are required to demonstrate in their PRA submissions to OMB the “practical utility” of a proposed collection of information the DOE Element plans to disseminate. Additionally, for all proposed collections of information that will be disseminated to the public, DOE Elements should evaluate the proposed collection in light of the OMB and DOE guidelines, and based on that evaluation, state in their PRA clearance submissions to OMB that the proposed collection of information will result in information that will be collected, maintained, and used in a way consistent with the OMB and DOE information quality guidelines.

2. Responding to Requests From Members of the Public

To facilitate public review of information disseminated to the public, these Guidelines provide procedures allowing members of the public to seek and obtain correction of information disseminated to the public that does not comply with the quality provisions of the OMB and DOE guidelines. The procedures, set out in part IV below, provide separate mechanisms for information set forth or referenced in a DOE or DOE-sponsored document subject to public comment and all other DOE or DOE-sponsored information.

IV. Requests From Members of the Public for Correction of Publicly Disseminated Data

A. How Does a Member of the Public Request Correction of Publicly Disseminated Information?

1. Requests from members of the public seeking correction of DOE or DOE-sponsored documents subject to public comment, rulemaking notices, and environmental impact statements.

(A) With respect to information set forth or referenced with endorsement in a DOE or DOE-sponsored document subject to public comment on or after October 1, 2002, a member of the public must request correction within the comment period in a comment that:

(1) Specifically identifies the information in question and the document(s) containing the information;

(2) Explains with specificity the reasons why the information is inconsistent with the applicable quality standards in the OMB or DOE guidelines;

(3) Presents substitute information, if any, with an explanation showing that such information is consistent with the applicable quality standards in the OMB and DOE guidelines; and

(4) Justifies the necessity for, and the form of, the requested correction.

(B) A member of the public must file a request for correction of a document subject to public comment at the address for comments set forth in DOE's notice providing for public comment.

(C) If a member of the public requests correction of information set forth or referenced with endorsement in a document subject to public comment prior to publication of the final document and provides a justification of the necessity for an early response, DOE may consider providing a preliminary response including but not limited to a Federal Register notice describing the request for correction and reopening the comment period.

(D) If a member of the public files a request for correction under paragraph IV.A.1 of these guidelines after the close of a comment period, DOE may consider the request to the same extent that DOE considers late-filed comments and time permits such consideration.

(E) With respect to information that is set forth or referenced with endorsement in a notice of final rulemaking or a final regulation disseminated on or after October 1, 2002, (regardless of when first disseminated and regardless of whether there was prior notice and opportunity for public comment), a member of the public:

(1) Must file a request for correction with Office of the Chief Information Officer at the address provided in paragraph IV.A.2 of these guidelines;

(2) Must include in such a request the content required by paragraph IV.A.1 of these guidelines; and

(3) Must file such a request regarding the regulatory text or supporting information that would necessitate changes to the regulatory text as a petition for reconsideration or for regulatory amendments under 5 U.S.C. 553(e).

(F) With respect to information set forth or referenced with endorsement in a final environmental impact statement (and any related portion of a Record of Decision) disseminated on or after October 1, 2002, regardless of when first disseminated, a member of the public:

(1) Must file a request for correction with the Office of the Chief Information Officer at the address provided in paragraph IV.A.2 of these guidelines;

(2) Must include in such a request the content required by paragraph IV.A.1 of these guidelines; and

(3) Must file such a request in the form of a petition for a supplemental environmental impact statement if the petitioner asserts that are significant new circumstances or information as provided for in 40 CFR 1502.9(c)(1)(ii).

(G) With respect to information that is made subject to public comment on or after October 1, 2002, and that is set forth or referenced with endorsement in a DOE notice of final rulemaking or a final environmental impact statement (and any related portions of a Record of Decision), DOE may summarily deny a request for correction as untimely.

(H) A member of the public who files a request for correction under paragraph IV.A.1 has the burden of justification with respect to the necessity for correction as well as with respect to the timing and type of correction requested.

2. Requests from members of the public seeking correction of DOE or other DOE-sponsored documents.

(A) With respect to information set forth or referenced with endorsement in a DOE or DOE-sponsored document that is disseminated on or after October 1, 2002, regardless of when the information was first disseminated, and that is not subject to paragraph IV.A.1 of these guidelines, a member of the public must request correction by letter to the Office of the Chief Information Officer, Attention: DOE Quality Guidelines, U.S. Department of Energy, Forrestal Building—Room 8H-089, 1000 Independence Avenue NW., Washington, DC. 20585, or via Fax to [phone], or by providing the information called for at the CIO Web site: http://cio.doe.gov/​informationquality. This web site requests the information set forth in paragraph (B) below.

(B) If a member of the public requests correction of DOE or DOE-sponsored information by letter, addressed to the CIO, then the letter must:

(1) Specifically identify the information in question and the document(s) containing the information;

(2) Explain with specificity the reasons why the information is inconsistent with the applicable quality standards in the OMB Guidelines or DOE guidelines;

(3) Present substitute information, if any, with an explanation showing that such information is consistent with the OMB guidelines and the DOE implementing guidelines; and

(4) Justify the necessity for, and the form of, the requested correction.

(C) A member of the public who files a request for correction under paragraph IV.A.2 has the burden of justification with respect to the necessity for correction as well as with respect to the type of correction requested.

B. How Does DOE Process Requests for Correction?

1. Incomplete requests. If a request for correction is incomplete, DOE may seek clarification from the person submitting the request or return it without prejudice to resubmission.

2. Public notice of a request for correction. In selected cases, DOE may publish notice of the receipt of a request for correction and may invite public comment.

3. Participation by other interested persons. By letter, DOE may invite or allow other interested persons to comment on a request for correction.

4. Initial decisions. If the request for correction concerns information that does not involve a document subject to public comment, then the originating office of the DOE Element responsible for dissemination of the information should provide at least an initial decision within 60 days from the date of receipt. The response should contain a statement of reasons for the disposition. If an initial decision on a request for correction under this paragraph requires more than 60 days, then the DOE Element should inform the requestor that more time is required and indicate the reason why and an estimated decision date.

5. Administrative appeals. In the event DOE initially denies a request for correction of information not subject to public comment and the person who submitted the request would like additional review, then that person must submit a request for review, including a statement of reasons for modifying or reversing the initial decision, no later than 30 days from the date of that decision. A request for review under this paragraph must be submitted by e-mail to [e-mail] or by regular mail to Office of the Chief Information Officer, Attention: DOE Quality Guidelines, U.S. Department of Energy, Forrestal Building—Room 8H-089, 1000 Independence Avenue NW., Washington, DC 20585, or via Fax to [phone]. The CIO will direct the request for review to the DOE Element which supervises the originating DOE program office, and the DOE Element, with the concurrence of the Office of General Counsel, should issue a final decision for DOE (with a copy to the CIO) within 60 days from the date that the request for review is received. If a final decision on a request for correction under this paragraph requires more than 60 days, then the DOE Element should inform the requestor that more time is required and indicate the reason why and an estimated decision date.

6. Any corrective action will be determined by the nature and timeliness of the information, the magnitude of the error, and the cost of undertaking a correction. DOE Elements are not required to change, or in any way alter, the content or status of information simply based on the receipt of a request for correction. DOE Elements need not respond substantively to frivolous or repetitive requests for correction. Nor do DOE Elements have to respond substantively to requests that concern information not covered by the OMB or DOE Guidelines or from a person who has not justified the necessity for correction.

7. If DOE determines that a request for correction of information not subject to public comment has merit, DOE may respond by correcting the information in question and without issuing a decision explaining the reasons for accepting the request.

8. If DOE receives multiple requests for correction of information not subject to public comment, DOE may consolidate the requests and respond on a DOE web site, or by notice in the Federal Register, or by issuing a correction in similar form and manner as the original information was issued.

9. If a member of the public complains about information set forth or referenced with endorsement in a DOE or DOE-sponsored document and does not request correction under the OMB and DOE guidelines, then the complaint is not subject to processing as a request for correction under those guidelines.

10. If a member of the public requests correction of information first disseminated more than one year prior to the request and the information does not have a continuing significant impact on DOE projects or policy decisions or on important private sector decisions, DOE may regard the information as stale for purposes of responding to the request.

11. DOE may devise additional procedures on a case-by-case basis as may be appropriate to process requests for correction.

V. DOE Reporting Requirements

On an annual basis, the Office of the CIO (OCIO) will report to the Director of OMB on the requests for corrections received under these Guidelines. DOE elements must designate a reporting official, except as agreed otherwise between the DOE Element and the OCIO. The OCIO will work with the DOE Element reporting officials to develop the annual OMB report beginning January 1, 2004. The report will include the number of complaints received, nature of complaints (e.g., request for deletion or correction) and how they are resolved (i.e. g number corrected, denied, or pending review).