This article was authored by Gisselle Bourns, Attorney Advisor at ACUS, Jennifer Nou, Professor of Law at the University of Chicago Law School, and Stuart Shapiro, Professor at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University.
This article first appeared in the Regulatory Review's series on "Improving Agency Procedure" that focuses on the ACUS Recommendations adopted at the June 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
The Paperwork Reduction Act (PRA) has long been accused of adding excessive delay to the process of federal agencies producing surveys and other valuable information gathering efforts. Other experts have praised the PRA for serving as a necessary constraint on the ability of agencies to burden the public. In its recent plenary session, the Administrative Conference of the United States (ACUS) approved a set of recommendations to improve the operation of the PRA. These proposals build on related suggestions from 2012, which considered statutory changes.
The PRA, originally passed in 1980 and amended twice since then, is intended to reduce the burden of information collections on the public and to maximize the usefulness of the information collected to the government. To do so, the PRA requires agencies to follow a specific process before they can collect information from 10 or more members of the public.
This process entails first publishing a notice in the Federal Register and giving the public sixty days to comment on the proposed information collection. Once that comment period ends, an agency must then submit the proposed information collection to the Office of Information and Regulatory Affairs (OIRA) with a detailed supporting statement, while at the same time, publishing a second notice in the Federal Register giving the public another thirty days to comment. Then, after the second comment period ends, OIRA has another thirty days to decide whether to approve the information collection.
Although this process undoubtedly improves some information collections, it may also result in undue delays or agencies avoiding the worthwhile collection of information altogether.
Within the constraints of the PRA, agencies and OIRA have taken some steps to facilitate the information collection process. A few years ago, OIRA issued a series of memoranda designed to highlight ways to make the process more efficient for certain types of information collections. In particular, these memos highlighted the use of “generic” and “fast-track” clearances.
Under a “generic clearance,” an agency can submit a request for approval to OIRA for a certain class of information collections, such as pretesting of surveys and customer satisfaction surveys. If OIRA approves the generic clearance, then the agency can submit individual collections falling under that generic class to OIRA without the Federal Register notices. OIRA considers the individual collections in an expedited time frame. A “fast-track” clearance is a subset of generic clearances for information collections used by agencies to assess their service delivery.
Until recently, the extent to which agencies had used these and other measures that have the potential to improve the information collection process had not been studied. To fill this gap, last year, ACUS commissioned a report to evaluate whether and how agencies have used the processes outlined in OIRA’s memoranda and consider other potential avenues for achieving further efficiencies. The report found that agencies had made extensive use of generic and fast-track clearances but that there were other opportunities to expedite certain clearances.
ACUS’s Committee on Regulation considered the report and proposed recommendations over the course of two meetings. These meetings epitomized one of the things ACUS does best: bringing diverse perspectives to bear on thorny problems. In this case, ACUS brought together officials from OIRA, PRA clearance officers from many agencies, and other current and former agency and OIRA officials, as well as top scholars in administrative law and representatives of the public.
The result was a series of recommendations adopted by ACUS’s Assembly at its 69th Plenary Session. Some of the recommendations are directed to OIRA; others are directed to agencies. The recommendations encourage OIRA and agencies to collaborate on matters such as providing training to agency officials about the administration of the PRA and expedited clearance processes. In addition, ACUS supports expanding the use of generic clearances when agencies engage in testing the usability of websites and other applications. ACUS also supports further developing common forms, which are standardized forms that multiple agencies use to collect the same information from the public. To this end, ACUS suggests that OIRA invite agencies to “provide a list of potential common forms,” publish that list, and “facilitate agency coordination and implementation of promising candidates.”
ACUS’s recommendations also identify other practical improvements to the PRA review process. For instance, OIRA should work with agency PRA clearance officers to revise the supporting statement requirements on information collection submissions to curtail preparation time while maintaining the practical use of the collection. Similarly, OIRA could consider improvements to the user interface, workflow, and the usability of the internal computer system used to submit information collections to OIRA. Finally, ACUS also highlights that, for information collection requests without changes from previous approvals, agencies may consolidate the first Federal Register notice for extensions after internally identifying related collections due for renewal.
Implementation of these recommendations—which we think is likely given the excellent cooperation exhibited between agencies and OIRA during ACUS committee meetings—has the potential to facilitate the information collection and review process for both OIRA and agencies. Doing so will likely lead to reduced delays in obtaining necessary and useful information from the public while preserving the benefits of OIRA review and public participation in the information collection process. ACUS hopes that these recommendations will be just the start and not the end to administrative innovations—spurring an ongoing process of consultation between OIRA, agency PRA clearance officers, and other appropriate experts to continually improve the PRA clearance process.