PRA-101 — The procedures, scope, and power of the Paperwork Reduction Act

Enacted in 1980 and amended in 1995, the Paperwork Reduction Act (PRA, 44 U.S.C. § 3501 et seq.) is a less-known but an important law to rein-in federal agency regulatory burdens on the American public.  The PRA provides a comprehensive scheme to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons resulting from the collection of information by or for the Federal Government.”  44 U.S.C. § 3501(1).  The Act established the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) to oversee federal agency compliance with the PRA and to review and approve information collection (IC) conducted by government agencies. 44 U.S.C. § 3503.

The PRA requires OMB to review most information collection requests sought by agencies. 44 U.S.C. § 3504(a). The agency, including every agency in the government except the Federal Election Commission, the GAO and the US Postal Office, must establish an internal process to review proposed collections of information before they are sent over to OMB for approval. The process must be coordinated by an agency office that is independent of program responsibilities.  The Act specifies a number of considerations that agencies must weigh for each proposed IC: evaluating the need for it, estimating the burdens in responding, and if appropriate, testing it through a pilot program. Id. § 3506(c)(1)(A). Unless the IC is part of a notice of proposed rulemaking (or unless it is exempted), agencies must provide sixty days' notice in the Federal Register and otherwise consult with the public and affected agencies, for each new proposed IC or each extension of OMB approval for an existing IC. The Federal Register notice must seek comments on the need for the information, its practical utility, the accuracy of the agency's burden estimate, and ways to minimize that burden. Only after providing this sixty-day notice, do agencies submit their paperwork clearance packages to OMB for clearance and approval. Id. § 3506(c)(2)(A). As part of its submission to OMB, the agency must submit a formal certification (along with a record supporting it, including the public comments) that each proposed IC is needed; is not unnecessarily duplicative; reduces, to the extent practicable and appropriate, the burden on respondents, including small businesses and small government entities; is written in "unambiguous terminology"; is implemented in ways consistent with the existing record-keeping practices of respondents; and indicates how long respondents must keep the documents. Id. § 3506(c)(3).

When the agency submits the proposed IC to OMB, the agency must also publish a second notice of the request for OMB approval in the Federal Register. Id. § 3507(a)(1)(D).  In this notice, the agency must summarize and describe the need for the proposed IC, describe likely respondents, estimate the number of respondents and the burden per respondent, the total annual burden, and give notice that the comments may be submitted to OMB and the agency. Id.  The agency submits Form OMB 83-I, "Paperwork Reduction Act Submission," a supporting statement, and the draft IC with supporting documentation to OMB for review.  OMB has sixty days to review the submission but, in practice, has to make its decision after thirty days and within sixty days of the submission, as the PRA specifies that the public has thirty days to comment to the OMB. Id. § 3507(b).

If OMB approves the request, it issues a control number which must be displayed on the collection. Id. §§ 3507(c)(3)(B), 3512.  In addition to this control number, the agency must include a notice to respondents on the form or on the IC instrument.  This notice must include the reasons the information is being collected; the way it will be used; the estimated burden; whether responses are voluntary, required to obtain a benefit, or mandatory; and a statement that the respondent is not required to respond unless the IC displays a valid OMB control number. Id. § 3507(c)(1)(B).  If the agency's IC fails to display the OMB control number and the disclaimer that no response is required without the control number, then no respondent can be penalized in any way for failure to comply with the IC request.  This is known as the "public protection provision." Id. § 3512.  This protection can be invoked "in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.” Id. § 3512(b).

The OMB may not approve the IC for a period of longer than three years. Id. § 3507(g).  An automatic approval for one year is entered if OMB fails to act within the sixty-day period, and a control number must issue. Id. § 3507(c)(3).  Agencies are bound by an OMB decision to disapprove an IC, except independent regulatory agencies that are permitted to override OMB's disapproval of an IC by a majority vote of the members of the board or commission.  The term "independent regulatory agency" is defined in the statute and a list is included in the definition. Id. § 3502(5).

It is the agency’s responsibility to identify and bring up ICs for OMB PRA clearance.  Major violations of the PRA are typically due to agencies simply not properly identifying ICs that are in fact cognizable under the PRA but were never submitted for OMB review.  The term often used for such unaccounted ICs is “bootlegging.”

The process described above is for reviewing free-standing ICs that are not included as part of proposed or current rules.  Distinct procedures govern OMB review of ICs that are free-standing, in proposed rules, or in current rules and OMB’s regulations helpfully separate these three categories or submissions. 5 C.F.R. §§ 1320.10-1320.12.

For ICs in proposed rules, the agency includes all the above-described information in the preamble to the notice of proposed rulemaking, which also states that the IC has been submitted to the OMB and directs comments to the OMB desk officer for the agency. 44 U.S.C. § 3507(d)(1); 5 C.F.R. § 1320.11(a).  Within sixty days the OMB may either approve the IC or file comments with the agency to be placed in the record. 44 U.S.C. § 3507(d)(1)(B); 5 C.F.R. § 1320.11(c).  If OMB fails to comment on a rule of which it has received notice, it may not disapprove the IC contained in that rule. 44 U.S.C. § 3507(d)(3). If comments are filed, the agency will obviously have to react to those comments as it prepares to send its draft final rule to OMB for its regular rulemaking review.  Thus, OMB's two processes—rulemaking review and paperwork review—are joined together here, giving the OMB substantial visibility into the merits of the proposed IC.  It is theoretically possible, of course, that OMB will ultimately approve a final rule even if the agency does not accede to its paperwork comments, but in any event the agency has to explain in the preamble to the final rule how it responded to OMB's comments. 5 C.F.R. § 1320.11(f).  If OMB is unsatisfied with the agency's response to its comments, it may disapprove the IC within sixty days of publication of the final rule. 44 U.S.C. § 3507(d)(4)(C).

If the IC is in an existing rule, it still must be reviewed by OMB, upon expiration of the control number. 44 U.S.C. § 3507(h); 5 C.F.R. § 1320.12(a).  For IC in an existing rule that was not required to be submitted for OMB review under the PRA at the time the collection of information was made part of the rule, but which IC is now subject to the PRA, the agency may still enforce the rule during the review period, but if OMB disapproves the IC, then the agency will be directed to undertake a rulemaking and complete it within 120 days, limited to consideration of changes in the IC. Id. § 1320.12(b).

Procedures for emergency processing by the OMB are available, if requested by the agency head or a designated senior official of the agency. 44 U.S.C. § 3507(j); 5 C.F.R. § 1320.13.  OMB may issue a formal delegation to agencies to handle their own approvals of ICs, provided the OMB finds that the senior official in charge is sufficiently independent of the program responsibilities to be trusted with this responsibility. 44 U.S.C. § 3507(i); 5 C.F.R. § 1320.16.

The PRA provides a little-known procedure under which any person may request the OMB to review any collection of information conducted by or for an agency to determine, if, under the PRA, a person shall comply with that IC request of the agency. 44 U.S.C. § 3517(b).  The PRA further provides that “the [OMB] shall … (1) respond to the request within 60 days … unless such period is extended by [OMB] to a specified date and the person making the request is given notice of such extension; and (2) take appropriate remedial action, if necessary.” Id. § 3517(b)(1)-(2).

Definition of “Collection of Information”
The PRA does not apply to collections of information that take place in the course of intelligence activities, federal criminal investigations or prosecutions, federal civil actions, antitrust investigations, or administrative investigations against specific individuals or entities. 44 U.S.C. § 3518(c); 5 C.F.R. § 1320.4(a).  Otherwise, the PRA's coverage is quite broad, providing that a "collection of information" includes

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 format, calling for either answers to identical questions posed to or identical reporting or record keeping requirements on ten or more persons, other than agencies, instrumentalities, or employees of the United States. 44 U.S.C. § 3502(3)(A).

It also covers "answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.” Id. § 3502(3)(A)(ii).

To ensure agency compliance with this definition, OMB's regulation contains an extensive list of items that are included within the definition:

report forms, application forms, schedules, questionnaires, surveys, reporting or record keeping requirements, contracts, agreements, policy statements, plans, rules or regulations, planning requirements, circulars, directives, instructions, bulletins, RFPs, interview guides, oral communications, postings, notifications, labeling or similar disclosure requirements, telegraphic or telephonic requests, automated, electronic, mechanical, or other technological collection techniques, or questionnaires used to monitor compliance with agency requirements. 5 C.F.R. § 1320(3)(c)(1).

Similar broad definitions in OMBs rule are offered for the ten-or-more-persons requirement (including any queries within a twelve month period), Id. § 1320.3(c)(4), agency "conduct or sponsorship," Id. § 1320.3(d), and "burden.” Id. § 1320.3(b)(1).

While the PRA does not define "information," the OMB's regulation defines it as follows: "any statement or estimate of fact or opinion, regardless of form or format, whether in numerical, graphic, or narrative form and whether oral or maintained on paper, electronic or other media.” Id. § 1320.3(h).

Because this definition of information is potentially broad, OMB regulation includes a lengthy list of what is generally not considered information covered under the PRA. Id.  Affidavits, oaths, affirmations, etc., are not covered, “provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument,” but a "certification" is covered if an agency substituted it for some other regulatory or informational requirement. Id. § 1320.3(h)(1).  This list also includes physical samples, direct observation by employees (but only if it does not involve standardized oral communication), most solicitations in the Federal Register, clinical examinations, requests directed to a single person, aptitude or employment exams, and solicitations at public hearings. Id. § 1320.3(h)(2)-(8).  Also not covered are “[f]acts or opinions obtained or solicited through nonstandardized followup questions designed to clarify responses to approved collections of information.” Id. § 1320.3(h)(9).  To top this list off, a catch-all exemption of items “like” those enumerated above may be designated by OMB. Id. § 1320.3(h)(10).

Annual Information Collection Budget
The OMB and agencies are to develop an annual Information Collection Budget, summarizing the changes from previous years and setting new goals. Id. § 1320.17.  These annual reports, which also contain lists of PRA violations are available on OMB website.

The PRA introduces substantial opportunities for reducing the burdens imposed on the public by federal agencies in wielding their regulatory power.  It requires agencies to find ways to reduce paperwork burdens on the public while carrying on their mission.  Importantly, it enables public participation in that process.  However, for the promise of the PRA to be realized, agencies must not frustrate the intent of its provisions.  They must not (i) make mere pro-forma submissions, or (ii) withhold relevant information required by the public to provide informed comments on the burden estimates and on ways to reduce such burdens, or (iii) otherwise ignore the public comments altogether.  Agencies do a better job in assessing and properly balancing the costs and benefits of their regulatory programs when they fully comply with the PRA.  ACET will work to educate interested and affected members of the public and to promote agency accountability and transparency under the PRA to properly account for and minimize the burdens of laws and regulations that are central to America’s world leadership in technology, innovation, and intellectual property protection.