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Paperwork Reduction Act (1980)

Paperwork Reduction Act (1980)

Jeffrey S. Lubbers


Excerpt from the Paperwork Reduction Act

[E]ach agency shall ... consult with members of the public and affected agencies ... to

  1. (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
  2. (ii) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
  3. (iii) enhance the quality, utility, and clarity of the information to be collected; and
  4. (iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques. [44 U.S.C. § 3506]

The Paperwork Reduction Act (PRA) of 1980 (P.L. 96-511, 94 Stat. 2812) was intended to minimize the amount of paperwork the public is required to complete at the behest of federal agencies. At the same time, because the PRA also recognizes that good information is essential to agencies' ability to serve the public successfully, it gives the Office of Management and Budget (OMB) the responsibility to weigh the practical utility of the information to the agency against the burden its collection imposes on the public. The act requires federal agencies to request the approval of the OMB before collecting information from the public.

GENERAL STRUCTURE OF THE ACT

The act established the Office of Information and Regulatory Affairs (OIRA) in OMB, and authorizes and requires it to perform an array of oversight functions relating to information resources in the federal government. More specifically, OIRA is given responsibility for coordinating government information policies, including the approval of agency collections of information (CIs). The act provides that agencies "shall not conduct or sponsor the collection of information" without first obtaining the go-ahead of OMB. The act applies to all agencies in the executive branch, including the independent regulatory agencies. OMB's general clearance procedures are, however, subject to the PRA's provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection. The act also contains the only statutory definition of "independent regulatory agency."

Only certain functions are exempted from the PRA's coverage, such as intelligence activities, criminal enforcement matters, civil and administrative actions, and investigations. This coverage gives OIRA a tremendous amount of clout within the federal governmenteven beyond what it already has with its budgetary and regulatory oversight roles. Failure to obtain OMB approval of a collection of information triggers the PRA's "public protection provision," which provides that "no person shall be subject to any penalty for failing to comply" with a CI that is subject to this chapter if the CI does not display a valid control number assigned by OMB.

Agencies must publish their proposed information collection in the Federal Register for a sixty-day public comment period. After reviewing the public comments and revising the proposed collection as appropriate, agencies submit the proposal to OMB for review, discussion, and approval (or disapproval). In seeking OMB's approval, the agency needs to demonstrate that the CI is the most efficient way to obtain information necessary for the proper performance of the agency's functions, that the information would not duplicate other information that the agency already maintains, and that the agency will make practical use of it. The agency also must certify that the proposed CI "reduces to the extent practicable and appropriate the burden" on respondents. The act applies to freestanding CIs (such as tax forms) as well as those embedded in proposed rules (such as reporting requirements).

The act requires the head of each agency, supported by his or her chief information officer, to be responsible for the agency's information collection activities. This includes reducing the amount of paperwork required of the public.

CIRCUMSTANCES LEADING TO THE ADOPTION OF THE ACT

The PRA was originally enacted in 1980, but it had precursors going back to the New Deal. President Franklin Roosevelt's concerns over the large number of statistical reports that federal agencies were requiring from business and industry led to a review of such reports and, ultimately, the enactment of the Federal Reports Act in 1942. That act gave the Bureau of the Budget (the precursor to OMB) the responsibility to review agency information requests. However, in 1974 Congress responded to continuing constituent complaints about paperwork burdens by creating a Commission on Federal Paperwork. The commission undertook numerous studies to determine the nature of the federal paperwork problem and to make recommendations for changes in statutes, regulations, and procedures. The final report was submitted in 1977, and Congress responded in 1980 by enacting the Paperwork Reduction Act.

EXPERIENCE UNDER THE ACT

Since the passage of the act, agencies have had to be much more careful about unnecessary paperwork burdens. For its part, OMB must produce an annual Information Collection Budget report, made available on the Internet, that contains examples of burden reduction achieved by its reviews. The act's goal of attaining an annual 5 percent government-wide reduction of paperwork burden is somewhat beyond OMB's control, because new laws contain new CIs, and also because over 80 percent of this burden is produced by the Treasury Department (chiefly, the Internal Revenue Service).

Conflicts over the interpretation of certain provisions of the act resulted in amendments. The 1986 amendment clarifies the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.

The 1995 amendments updated, strengthened, and recodified the act. It also settled the important question of whether the act covers agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public (rather than for the government). In 1990 the Supreme Court had ruled in Dole v. United Steelworkers that the act did not so require, but the 1995 amendments make clear that it does now. This means that many agency rules containing such requirements not previously reviewed by OIRA are subject to review.

RELATIONSHIP WITH OTHER LAWS

The act, in effect, serves as an amendment of the Administrative Procedure Act in that it adds additional OMB clearance procedures for proposed rules that contain CIs. It also shares the approach of the Regulatory Flexibility Act in requiring consideration of alternatives that produce fewer paperwork burdens on small entities.

See also: Administrative Procedure Act.

BIBLIOGRAPHY

Funk, William F. "The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law." Harvard Journal on Legislation 24 (1987): 1-116.

Lubbers, Jeffrey S. "Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995." Administrative Law Review 49 (1997): 111-121.

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