Cass Sunstein, Administrator of the Office of Management and Budget (OMB)’s Office of Information and Regulatory Affairs (OIRA) instructed the executive departments and independent regulatory agencies on August 9, 2012, to test their information collection forms under the Paperwork Reduction Act before using them. The instruction addresses a long-standing complaint that the burdens calculated by agencies are inaccurate or whimsical. The required testing – if enforced by OMB and made public – provides a new promise of agency accountability.
Short-form Paperwork Reduction: In its shortest and oversimplified form, the Paperwork Reduction Act requires agencies to acquire OMB’s approval before collecting information through identical questions from 10 or more persons. The PRA broadens “collection” to include required recordkeeping and notifying third parties. The PRA applies not only the executive branch agencies, but also the major independent regulatory agencies. Failure to acquire that approval (or a lapse in approval) creates an affirmative defense to adverse agency action for failing to provide the requested information.
Burden Complaints: In seeking OMB’s approval, agencies must establish the PRA amount of “burden” imposed by the information collection, defined to mean time, effort, or financial resources expended to generate, maintain, or provide information to or for agency, including:
Business and individuals often complain that agencies do not have or provide a clear understanding of the burdens created and that many of burden calculus used by the agencies are inaccurate or even whimsical. For the most part, agencies appear to “think through” what they believe is the burden created by their forms, and never actually conduct a time and motion study to determine whether their calculus is accurate.
New Instructions: Sunstein’s instructions hold promise because OMB must approve an agency’s PRA requests. Unlike many other “advisory” memoranda, this one may have teeth.
To the extent feasible and appropriate, especially for complex or lengthy forms, agencies shall engage in advance testing of information collections, including Federal forms, in order (1) to ensure that they are not unnecessarily complex, burdensome, or confusing, (2) to obtain the best available information about the likely burdens on members of the public (including small businesses), and (3) to identify ways to reduce burdens and to increase simplification and ease of comprehension. Such advance testing should occur either before proposing information collections to the public or during the public comment period required by the PRA.
Implementing this instruction will require agency planning and Sunstein’s memorandum offers guidance:
Advance testing might take the form of focus groups, in-person observations of users’ perceptions of the forms and questions (cognitive testing), web-based experiments, and randomized controlled experiments. When renewing information collection requests, agencies shall, to the extent feasible and appropriate, compile actual evidence about the burden imposed by those requests, and refine or simplify the requests on the basis of such evidence.
The focus of testing prior to or during the initial 60-day public comment period means that OMB will have the results of that testing at the critical decision point: approving or disapproving the request. The substantive testing of forms creates its own internal burdens, but
Public Release of Testing Results: OMB will possess the results of testing during the PRA 30-day public comment period while the agency request is pending OMB approval. Under the PRA, these comments from the public must be made public, but the real question is whether OMB will release the “test results” so that the public can assess the reliability of the agency calculus. Sunstein’s memorandum does not answer the question.
The result of “PRA testing” is critical technical information that must be available for public comment if the PRA information request is related to a rulemaking under the Administrative Procedure Act (APA). Rulemaking-related information requests must also be accounted for in assessing the burdens imposed on small business and other small entities under the Regulatory Flexibility Act (RFA).
Sunstein’s memorandum is a step in the right direction, and OMB should take another step, apply the same logic to non-rulemaking PRA testing, and publicly release all PRA testing results.