Testimony in a House hearing on the Paperwork Reduction Act (PRA) revealed industry groups' intentions of using PRA reauthorization to push an anti-regulatory agenda.

The Paperwork Reduction Act (PRA) establishes the guiding policies for the collection, dissemination and management of government information. Since its inception in 1980, the PRA has had a major impact on regulatory policy, even though it grants the White House no statutory authority to conduct regulatory reviews.

The PRA covers a broad spectrum of information management policy issues, including information dissemination, technology, security, and archiving. The March 8 hearing before the Regulatory Affairs Subcommittee of the House Government Reform Committee, however, focused primarily on the information clearance provisions of the law, which give OMB's Office of Information and Regulatory Affairs (OIRA) the authority to review and approve or disapprove any collection of information from 10 or more people by a federal agency. OIRA and the agencies are also required to work together to establish goals for reducing the total paperwork "burden." Though these provisions attempt to limit agency information collection activities, the total number of burden hours each year continues to rise. According to subcommittee chair Candice Miller (R-MI), the burden has increased 400 percent since the bill's passage in 1980.

Cutting Compliance Time, Not Information

Two witnesses stressed that the topic framed for the hearing -- how to reduce burden hours -- would not be the best way to approach reauthorization of the PRA.

OMB Watch's regulatory policy director Robert Shull argued that information technology has made the collection of information potentially easier and less burdensome than ever, and the PRA should be updated to reflect the new potential of technology to reduce reporting and recordkeeping burden without reducing the quantity, quality, or utility of the information collected. Moreover, according to Shull, the reported increase in burden hours could reflect any number of factors external to agencies -- such as new legislative mandates or more people filling out forms -- rather than gratuitous increases in paperwork. In fact, an increase in information collection is not necessarily a bad thing, Shull testified, given that it could also represent an increase in information needs being addressed.

Additionally, Sally Katzen, former administrator for OIRA under President Clinton, pointed out that not all burden should be counted the same way. When an individual receives a benefit from filling out an information request in order to receive a tax break, for instance, the information collection should not be considered a burden. As Katzen pointed out, in choosing to fill out the form for accelerated depreciation for oil and gas depletion allowances, the individual or company has already determined that the potential reward is worth the information collection burden. Moreover, these kinds of information burdens are actively sought out by industry. "Surely those who spend the hours filling out those forms have made the calculation (however informal) that the burden of doing the paperwork is outweighed (often greatly outweighed) by the benefit of obtaining the resulting tax advantage," according to Katzen.

Katzen also explained that requiring disclosure of information, such as requiring employers to post information about toxic chemicals in the workplace, can often be less costly than seeking regulation. Viewed in this light, even a large information collection burden might actually save the affected parties time and money.

Measuring information burden as an aggregated whole can obscure how and why the information collection is being imposed. Katzen called for a more nuanced approach to evaluating information burden and requested that reauthorization of the PRA resist implementing stringent burden reduction goals.

A Wolf in Sheep's Clothing: Industry's Anti-Regulatory Agenda

While much of the testimony addressed how to relieve information burden without reducing the quality or quantity of needed information collections, some witnesses used the opportunity to push non-germane, anti-regulatory proposals. Representatives from the U.S. Chamber of Commerce and the National Federation of Independent Businesses (NFIB), as well as former OIRA administrator James Miller, suggested "reforms" to the act that could have dangerous consequences for public health and safety provisions.

For instance, while recommending some changes to reduce burden, William Kovacs of the U.S. Chamber of Commerce also recommended codifying OIRA's regulatory review authority under Executive Order 12,866. This move would have little to do with information policy but would greatly increase OIRA's role in agency rulemaking and would legislate the use of cost-benefit analysis. Kovacs also recommended "look-back" studies that would open up the books on existing regulations, even those with proven efficacy.

Both Kovacs and Andrew Langer, Regulatory Policy Manager for the NFIB, recommended increasing OIRA's budget (calling it "full funding" of OIRA), without specifying that the money go to information management policy. Currently, same OIRA desk officer who reviews information collections under the PRA also reviews rulemakings, a role which has not been sanctioned by Congress. This linkage between paperwork and regulatory review began under the Reagan administration when OIRA was created. The PRA created OIRA to implement the law, and the Reagan administration issued an executive order that gave regulatory review powers to OIRA.

Langer also took the opportunity to recommend "regulatory sunsets," which would require all regulations to be periodically reviewed and re-justified in order to continue. Many versions of regulatory sunsets have come up in legislative proposals, but none has ever been enacted at the federal level. In Langer's version, "[a]ny regulation that is not reviewed at that ten-year point would be automatically sunset, and for a regulation to remain in place, its existence would have to be justified."

James Miller, who was the first OIRA administrator and the first to link paperwork and regulatory reviews, applied his reform suggestions for paperwork reduction to the regulatory process throughout his testimony. His ideas included applying controversial net benefits requirements, which seek to maximize the difference between the cost and benefit of a regulation or information collection, rather than optimizing the benefits. Applying this criterion to policy decisions could mean sacrificing the level of protection needed to keep people safe and healthy.

Miller also derided the congressional mandates that require regulation without consideration of cost. He called for a joint bill on paperwork and regulation that would mandate a regulatory and information collection budget, like the financial budget. According to Miller, under this plan, "[b]urdens pursuant to requirements/rules presently in force would be treated in the same way as entitlements in the financial budget. . . . But new requirements/regulations, as with discretionary spending, would have to be 'appropriated' and could not be promulgated unless they were within the scope of the relevant 'appropriation.'"

OMB Watch's Shull warned that such non-germane proposals would be bad for public health and safety and could derail the reauthorization of the bill.

Beyond Paperwork: Harnessing Technology to Improve Information Management

Because the PRA actually covers the entirety of information management policy, a reauthorization presents an opportunity to address broader issues surrounding government information, according to testimony by Shull.

While OIRA has been focusing on the information collection process, the agency has done much less to enhance information technology, security or dissemination, for instance. In his testimony, Shull referred to several GAO studies showing how OIRA has fallen behind on its information management duties.

Shull also pointed out the way information technology can be used to reduce burden and increase public access to information. Cutting-edge innovations such as nanotechnology can make information collection practically burden-free. Other technologies can make filling out forms faster and easier. Other initiatives already underway can also help relieve the burden on business, such as the Business Gateway, which small business groups urge should be improved to allow small-business owners to enter information about their businesses and receive details of applicable federal regulations.

The 1995 reauthorization of the Paperwork Reduction Act expired in 2001, leaving the PRA without designated appropriations though still enforceable. A bill to reauthorize the PRA has not yet been introduced, but both Reps. Miller and Tom Davis (R-VA), who chairs the House Government Reform Committee, have stated publicly that PRA reauthorization is a high priority for the 109th Congress.