According to a news source, a think tank with links to industry interests has suggested that a recent federal appeals court ruling could give parties challenging agency rulemaking data under the Data Quality Act (DQA) the ability to obtain judicial review of the agencies’ responses to their DQA petitions. The DQA required the Office of Management and Budget (OMB) to provide guidance to federal agencies “for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of . . . the Paperwork Reduction Act.” Each federal agency was required to “establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency,” if that information did not comply with OMB’s guidelines.

When adopted, the DQA was viewed as a way for industry interests to slow down rulemaking by giving them a process for challenging the data and research upon which agencies relied. A 2006 Fourth Circuit Court of Appeals ruling appeared to close the courts to industry challenges of federal agencies’ DQA decisions, with the court determining that the DQA “creates no legal rights in any third parties.”

The Center for Regulatory Effectiveness (CRE) reportedly contends that Prime Time International Co. v. Vilsack, No. 09-5099 (D.C. Cir., decided March 26, 2010), by embracing a government argument that the U.S. Department of Agriculture (USDA) action at issue was an “adjudication” and thus specifically exempt from the DQA under OMB’s guidelines, means that challenges to data underlying agency actions that are not adjudications could potentially be reviewed in court.

The plaintiff in Prime Time sought disclosure and correction under DQA of the data that USDA used to calculate assessments owed by the plaintiff under a federal tobacco support program. USDA did not respond, and Prime Time sought to challenge that non-response in court. Because the court found that the USDA’s determination of Prime Time’s assessments was an adjudication that could be appealed administratively and then via judicial review, it affirmed the district court’s dismissal of Prime Time’s claim that USDA violated the DQA.

Reaching this conclusion, the court relied on OMB’s definition of information dissemination in a manner that excluded documents prepared and distributed in the context of adjudicative proceedings. The court characterized OMB’s definition as “binding,” which CRE apparently claims supports its conclusion that DQA petitions involving non-adjudicatory agency actions could be reviewed in court. See, April 30, 2010.