Difference between revisions of "Paperwork Reduction Act"

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*[https://www.usaid.gov/sites/default/files/documents/1868/OMB%2083-I%20(Paperwork%20Reduction%20Act%20Submission).pdf OMB Form 83-I] (rev’d Feb. 2004).
 
*[https://www.usaid.gov/sites/default/files/documents/1868/OMB%2083-I%20(Paperwork%20Reduction%20Act%20Submission).pdf OMB Form 83-I] (rev’d Feb. 2004).
 
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====[https://pra.digital.gov/ PRA Digital.gov Guide]====
  
 
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===ACUS Recommendations===

Revision as of 21:33, 31 May 2022

44 U.S.C. §§ 3501–3521 (2012); enacted by Pub. L. No. 96-511, 94 Stat. 2812, Dec. 11, 1980; amended by Pub. L. No. 99-591, Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by Pub. L. No. 104-13, § 2, 109 Stat. 163, May 22, 1995; amended by Pub. L. 106-398, Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by Pub. L. No. 107-198, §§ 2–3, 116 Stat. 732, June 28, 2002; amended by Pub. L. No. 107-217, § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by Pub. L. No. 107-296, § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by Pub. L. No. 107-347, title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by Pub. L. No. 109-435, Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by Pub. L. No. 110-289, Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by Pub. L. No. 111-203, Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; by Pub. L. No. 113-235, 128 Stat. 2537, Dec. 16, 2014.

Lead Agency:

Office of Management and Budget, Office of Information and Regulatory Affairs

Overview

One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. § 3501). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. § 3518).

In June 2019, OIRA launched an online Paperwork Reduction Act Guide. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.

Basic Clearance Requirement

The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions (§ 3507(a)(2)). The PRA (§ 3502(3)) defines “collection of information” as:

The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.

The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling Dole v. United Steelworkers of America, 494 U.S. 26 (1990).

The PRA forbids OMB from approving any information collection for a period of more than three years. § 3507(g). Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” (§ 3512), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. See United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990); United States v. Smith, 866 F.2d 1092 (9th Cir. 1989).

Clearance Procedure

The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.

Section 3507(d) prescribes the following procedure for information collections contained in rules promulgated following notice and comment:

  1. Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the Federal Register.
  2. Within 60 days after the notice of proposed rulemaking is published in the Federal Register, OMB may file public comments on the collection of information contained in the proposed rule.
  3. When a final rule is published in the Federal Register, the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.
  4. If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.
  5. However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.
  6. OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.

OMB’s regulations implementing the PRA (5 C.F.R. Part 1320) have added certain requirements to the clearance process for collections of information contained in proposed agency rules (5 C.F.R. § 1320.11), current agency rules (5 C.F.R. § 1320.12), and clearance of collections other than in proposed or current rules (5 C.F.R. § 1320.10).

  • Agencies should submit collections of information contained in proposed rules to the Federal Register for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).
  • Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).
  • On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).

For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:

  • On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the Federal Register, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).
  • Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).
  • If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).

OMB has also developed procedures that govern clearance for information collections in existing rules (§ 1320.12). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the Federal Register and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the Administrative Procedure Act (APA) or other applicable requirements.

Finally, OMB regulations (§ 1320.6(e)) make clear that the public protection provision in § 3512 of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: United States v. Patridge, 507 F.3d 1092 (7th Cir. 2007), reh’g and reh’g en banc denied, cert. denied, 552 U.S. 1280, reh’g denied, 553 U.S. 1062, cert. denied, 555 U.S. 909, post-conviction relief denied, 2010 WL 3025043; Salberg v. United States, 969 F.2d 379, 384 (7th Cir. 1992); United States v. Neff, 954 F.2d 698, 699–700, (11th Cir. 1992); United States v. Hicks, 947 F.2d 1356, 1359 (9th Cir. 1991); United States v. Kerwin, 945 F.2d 92 (5th Cir. 1991); United States v. Wunder, 919 F.2d 34, 38 (6th Cir. 1990).

Alternative Procedures

The PRA contains several variations from the general review procedures for review of agency information collections. Section 3507(j) establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests (§ 1320.13).

The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer (§ 3506(a)(2)), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” (§ 3507(i)). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. § 1320.7).

OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.§ 3507(f); 5 C.F.R. § 1320.15). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § 3502(5), which has been cross-referenced in a number of other statutes.

Agency Certifications

The regulations (5 C.F.R. § 1320.5(d)(1)) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.

In addition, OMB has established general guidelines (5 C.F.R. § 1320.5(d)(2)) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information

  1. that requires reporting more often than quarterly;
  2. that requires a written response in fewer than 30 days after receipt;
  3. that requires respondents to submit more than one original and two copies of a document;
  4. that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;
  5. that is not a statistical survey designed to produce valid and reliable statistical results;
  6. requires the use of a statistical data classification that has not been reviewed and approved by OMB;
  7. that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or
  8. that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.

Also pertinent to OMB’s authority is § 3518(e) of the PRA, which states:

Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.

Information Management

The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through Circular A-130, which sets out various policies agencies are to use in managing government information.

Legislative History

The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 (Pub. L. No. 77-831) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.

The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. See William Funk, The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law, 24 Harv. J. on Legis. 1 (1987).

Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying 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 completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.

It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in Dole v. United Steelworkers, 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.

In 2000, Congress changed references from “chapter” to “subchapter.”

In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 (Pub. L. No. 100-235) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.

In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”

In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. No. 111-203), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.

Bibliography

Legislative History and Congressional Documents

OMB/OIRA Documents and Resources

OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies

Other OMB/OIRA Documents

PRA Digital.gov Guide

ACUS Recommendations

GAO Documents

Other Government Documents

  • Comm’n on Fed. Paperwork, Final Summary Report (1977).
  • Comm’n on Fed. Paperwork, The Reports Clearance Process (1977).
  • Harold C. Relyea, Cong. Research Serv., RL30590, Paperwork Reduction Act Reauthorization and Government Information Management Issues (2007).
  • Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates (2009).
  • Small Bus. Admin., Office of Advocacy, Small Business Paperwork: Problems and Progress (1983).
  • Office of Pers. Mgmt., Paperwork Reduction Act (PRA) Guide (2011).

Books and Articles

  • Eugene Bardach, Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).
  • Pamela M. Foster, Comment, A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction, 6 Admin. L. J. Am. U. 153 (1992).
  • William F. Funk, The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law, 24 Harv. J. on Legis. 1 (1987).
  • Murray A. Indick, Ronald J. Greene & Daniel Squire, The Economic Growth and Regulatory Paperwork Reduction Act of 1996, 114 Banking L.J. 298 (1997).
  • Andrew L. Levy, The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency, 14 J. L. & Com. 99 (1994).
  • Jeffrey Lubbers, Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995, 49 Admin. L. Rev. 111 (1997).
  • Richard M. Neustadt, Taming the Paperwork Tiger: An Experiment in Regulatory Management, Regulation 28, Jan./Feb. 1981.
  • James T. O’Reilly, Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy, 10 J. Legis. 95 (1983).
  • Henry H. Perritt, Jr., Electronic Acquisition and Release of Federal Agency Information (Oct. 1, 1988) (report to ACUS).
  • Henry H. Perritt, Jr., Federal Agency Electronic Records Management and Archives (1990) (report to ACUS).
  • David Plocher, The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act), Gov’t Info. Q. 271 (1997).
  • Robert Rosacher & Thomas Davies, An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden, 45 Oil & Gas Tax Q. 791 (1997).
  • Stuart Shapiro, The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly (Feb. 15, 2012) (report to ACUS).
  • Stuart Shapiro, Paperwork Reduction Act Efficiencies (May 14, 2018) (report to ACUS)
  • Stuart Shapiro & Deanna Moran, The Checkered History of Regulatory Reform Since the APA, 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).

Agency Regulations

Office of Management and Budget (5 C.F.R. Part 1320)

Statutory Provisions

Paperwork Reduction Act

Title 44 U.S. Code

Chapter 35, Subchapter I—Federal Information Policy

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