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THE PAPERWORK REDUCTION ACT AT 25:

OPPORTUNITIES TO STRENGTHEN AND IMPROVE THE LAW

HEARING

BEFORE THE

SUBCOMMITTEE ON REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 8, 2006

Serial No. 109–171

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON REGULATORY AFFAIRS

CANDICE S. MILLER, Michigan, Chairman

GINNY BROWN-WAITE, Florida

CHRIS CANNON, Utah

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

STEPHEN F. LYNCH, Massachusetts

WM. LACY CLAY, Missouri

CHRIS VAN HOLLEN, Maryland

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

ED SCHROCK, Staff Director

ROSARIO PALMIERI, Deputy Staff Director

KRISTINA HUSAR, Professional Staff Member

BENJAMIN CHANCE, Clerk

KRISTA BOYD, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on March 8, 2006 .............................................................................. 1

Statement of:

Kovacs, William L., vice president, Environment, Technology, and Regulatory Affairs, U.S. Chamber of Commerce; Andrew M. Langer, manager, regulatory policy, National Federation of Independent Business;

Linda D. Koontz, Director, Information Management Issues, U.S. Government Accountability Office; and J. Robert Shull, director of regulatory policy, OMB Watch ............................................................................ 38

Koontz, Linda D. ....................................................................................... 67

Kovacs, William L. .................................................................................... 38

Langer, Andrew M. ................................................................................... 51

Shull, J. Robert .......................................................................................... 104

Miller, James, chairman, Board of Governors, U.S. Postal Service; and

Sally Katzen, visiting professor, George Mason University Law School .. 14

Katzen, Sally .............................................................................................. 20

Miller, James ............................................................................................. 14

Letters, statements, etc., submitted for the record by:

Davis, Hon. Tom, a Representative in Congress from the State of Virginia, prepared statement of ........................................................................ 130

Katzen, Sally, visiting professor, George Mason University Law School,

prepared statement of ................................................................................... 24

Koontz, Linda D., Director, Information Management Issues, U.S. Government Accountability Office, prepared statement of .............................. 69

Kovacs, William L., vice president, Environment, Technology, and Regulatory Affairs, U.S. Chamber of Commerce, prepared statement of ......... 40

Langer, Andrew M., manager, regulatory policy, National Federation of

Independent Business, prepared statement of ........................................... 54

Lynch, Hon. Stephen F., a Representative in Congress from the State

of Massachusetts, prepared statement of ................................................... 10

Miller, Hon. Candice S., a Representative in Congress from the State

of Michigan, prepared statement of ............................................................. 4

Miller, James, chairman, Board of Governors, U.S. Postal Service, prepared statement of ........................................................................................ 17

Shull, J. Robert, director of regulatory policy, OMB Watch, prepared

statement of ................................................................................................... 106

(1)

THE PAPERWORK REDUCTION ACT AT 25: OPPORTUNITIES TO STRENGTHEN AND IMPROVE THE LAW

WEDNESDAY, MARCH 8, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:06 p.m., in room

2154, Rayburn House Office Building, Hon. Candice Miller (chairman of the subcommittee) presiding.

Present: Representatives Miller and Lynch.

Staff present: Ed Schrock, staff director; Rosario Palmieri, deputy staff director; Kristina Husar, professional staff member; Joe

Santiago, GAO detailee; Benjamin Chance, clerk; Krista Boyd, minority counsel, Jean Gosa, minority assistant clerk.

Mrs. MILLER OF MICHIGAN. Good afternoon. I would like to call

the hearing to order here, to begin.

On March 7, 1995, the U.S. House of Representatives passed the

Paperwork Reduction Act of 1995 by a vote of 423 to 0—which is

remarkable, I believe. But here we are, 11 years and 1 day later,

reviewing what we have accomplished since then and since the

PRA passed originally just over 25 years ago.

Although we have established a very strong system and eliminated hundreds of millions of hours of unnecessary paperwork, we

have added billions of hours of paperwork burden even faster.

Since its passage in 1980, we have increased total governmentwide

burden by over 400 percent to more than 8 billion hours today. If

future Members of Congress were to look back and say that our actions today increased the burden another 400 percent in another 25

years, to over 30 billion hours, then I would say, unfortunately,

that we have failed.

In a time of increasing global competitiveness, the United States

must be the best place in the entire world to do business. Part of

being the best place in the world to do business means that we

have to quench the Federal Government’s appetite for unnecessary

information. And no one can say with a straight face that every

single form or every question or every recordkeeping requirement

of the Government is absolutely necessary.

So we have set out as a Congress many times to put the right

structure in place to create incentives, to reduce burden, and the

disincentives to increase burden. But even now we do not seem to

have the right formula yet.

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In 1995 we established a set of certification requirements to force

agencies to do the tough work of justifying their information collections. These requirements would force agencies to prove that they

were avoiding duplication of information, reducing burden on the

public and small entities, writing their forms in plain English, and

that the information that they were collecting was really necessary

to their programs. The GAO has conducted a comprehensive study

of agency certifications and found them wanting. Agencies were

missing or provided partial support for 65 percent of the collections

in GAO’s sample. Most agencies are not fulfilling their requirements for public consultation as well.

The watchdog for these agencies is the office we created in 1980

within the Office of Management and Budget, known as the Office

of Information and Regulatory Affairs [OIRA]. This agency reviews

each of these collections and can approve its use for up to 3 years.

The Office has also had the responsibility of coordinating percentage reduction targets between agencies and reporting annually to

the Congress on progress toward burden reduction.

As we have demanded more and more of OIRA, we have given

it fewer resources. As the size and scope of Government has increased, OIRA has shrunk. It would be a different story if we had

achieved our burden reduction goals while reducing OIRA’s resources, but that is not the case. At the same time that OIRA’s

budget decreased, the budgets devoted to writing, administering,

and enforcing regulations went from $11 billion in 1980 to $44 billion today. And while OIRA’s staff has declined from 90 down to

50 employees, the staff dedicated to writing, administrating, and

enforcing regulations has increased from 146,000 in 1980 to over

242,000 today.

I think the staff has put a chart up so you can follow what we

are saying with all these numbers. You look at the line there.

Part of the work that we must do in our review of the PRA is

reauthorizing appropriations for OIRA which expired in 2001. We

want to make sure that they have the resources that they need to

do the job that Congress has an expectation of them to do. And

OIRA’s other functions, including regulatory review, are as critical

as ever. Burden imposed by regulation is every bit as costly and

serious as burden imposed by paperwork. In fact, they are often

two sides of the same coin. New regulations impose new paperwork

requirements.

The specific burden reduction targets of the 1995 PRA were not

accomplished. That act required a target for reducing governmentwide burden by 40 percent between 1996 and 2001. If that would

have been achieved, total burden would have measured 4.6 billion

hours in 2001 rather than 7.5 billion hours—again, I think the

staff has put up an additional chart so that you can have a visual

of some of the numbers that we are talking about here as well—

and we wouldn’t be on our way to more than 9 billion hours during

the next year.

We have a very, very big challenge ahead of us. Chairman Davis

and I are in the process of writing legislation to improve the PRA

and our Government’s efforts at burden reduction. And that is why

I am so glad today that we have such excellent witnesses to testify

before our committee. We are certainly looking forward to your tesVerDate 11-MAY-2000 12:40 Sep 14, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 D:\DOCS\29707.TXT HGOVREF1 PsN: HGOVREF1
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timony and your counsel on how we can amend the law to reduce

unnecessary Government burdens and improve our Nation’s competitiveness.

[The prepared statement of Hon. Candice S. Miller follows:]

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Mrs. MILLER OF MICHIGAN. And just at the right moment, my

ranking member, Representative Lynch, has arrived and we appreciate his attendance here. He has just been a remarkable member

of our committee. I would like to recognize him for his opening

statement.

Mr. LYNCH. Thank you, Chairwoman. I appreciate your kind remarks. I am happy to support the efforts of the committee to reauthorize and improve the Paperwork Reduction Act and the ultimate

goal of making Government paperwork less complex and more efficient.

It is beyond argument that the promise of democracy and the

fullness of individual rights and the ideals of equal protection and

access to Government under the law can never be attained if the

communications we seek to carry out the work of Government are

drafted in such a way that their meaning and their object remain

a complete mystery after being read. The Tax Code, which is the

bane of many of us here on this committee, which applies to every

single working soul in America regardless of their education, is

today written in a style and language that is not unlike the technical specifications for the space shuttle. It is no surprise that the

IRS accounts for about 80 percent of the Government’s paperwork

burden.

Many other Government forms that are central to the basic

rights of our citizens, by their sheer volume and complexity place

too big a burden on the citizens trying to complete them. I think

the Commission to Government by Alfred E. Smith, the Governor

of New York, said it best when they said that Democracy does not

merely mean periodic elections; it also means that Government

must be accountable to people between elections. And in order to

hold their Government to account, the people must have a Government that they can understand. When Americans are required by

their Government to fill out forms, they should be able to do it

without spending unnecessary hours and difficulty trying to understand and complete these forms.

We will hear a lot today about the paperwork burden, the estimates of how many hours Americans are spending every year filling out various forms. OMB estimates that the current paperwork

burden is almost 10.5 billion hours. OMB also says that the number may be somewhat inflated because of adjustments being made

to some IRS forms, but even that being said, the paperwork burden

is significantly higher than just 6 years ago. In fiscal year 2000,

the paperwork burden was 7.4 billion hours. I can see the impact

alone of the Patriot Act on so many of our industries in compliance

with various forms has probably contributed greatly to that.

However, it is misleading to only talk about the burdens of information collection. Information for a variety of purposes and many

information collections do provide agencies and the public with extremely valuable information. Just a few examples: The FDA requiring drug manufacturers to list warnings and other safety information on prescription drug labels. The Bureau of Customs and

Border Protection requires ships to provide cargo manifests and

other information 24 hours before loading, and we are all familiar

with the security concerns in our ports. It is based on that information that Customs can refuse to allow high-risk cargo into the

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United States. Another area as well, Mine Safety and Health Administration requirements hold mine operators to the requirement

that they keep records of miners’ exposures to toxic chemicals, and

miners then have the right to get copies of that information.

It is the role of Government to balance the power of commercial

interests against the public’s right to have access to that information. In many cases, when industry has a few employers that are

overwhelming in size and power that it is only the role of Government that can actually intervene on behalf of our citizens. It is our

role of Government to provide that balance.

Unfortunately, burden reduction is sometimes used to rationalize

efforts to weaken public health and safety protections. One recent

example of this is EPA’s proposed changes to the Toxic Release Inventory Program. Last September, EPA proposed a rule that would

allow thousands of facilities to avoid disclosing details about the

toxic chemicals that they are releasing into the environment, information that is relied upon greatly by local communities. The EPA

rationale for this proposal was that it would reduce the time industry has to spend filling out toxic release forms. But EPA’s own

analysis found that the proposed rule would only save facilities an

average of 20 hours per year and, in monetary terms, about $2.50

per day. Yet under EPA’s proposal, as much as 10 percent of those

communities that currently had a facility reporting under the

Toxics Release Inventory could lose all the data about local toxic

chemical releases.

So agencies need to find a way to reduce the burden of filling out

paperwork, but the key is to find ways to make reporting easier

and less time consuming without sacrificing the quality and the nature of some of the information that is actually collected and made

public. One good example is a recent effort by the IRS to make

some of its tax forms easier to understand so that the forms will

take less time to complete. As any taxpayer knows, there is a lot

more we should do to simplify the process of filing taxes.

In the end, I look forward to working with Chairman Miller and

Chairman Davis on reauthorizing the Paperwork Reduction Act. I

believe we can work together on a bipartisan basis for legislation

that makes improvements on the Paperwork Reduction Act without

controversial provisions aimed at slowing down or weakening the

regulatory process, that part of the process that does serve the public interest.

We have some very distinguished witnesses joining us today. I

want to thank you, and I look forward to hearing your thoughts.

[The prepared statement of Hon. Stephen F. Lynch follows:]

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Mrs. MILLER OF MICHIGAN. Thank you very much.

Now, because Government Reform is an oversight committee, it

is a practice of the committee to swear in all of our witnesses. So

if you will rise and raise your right hands.

[Witnesses sworn.]

Mrs. MILLER OF MICHIGAN. Thank you very much.

Our first witness today is certainly no stranger to Capitol Hill.

Dr. Jim Miller is an expert on various public policy issues, including Federal and State regulatory programs, industrial organization,

antitrust and intellectual property, and the effects of various laws

and regulations on the overall economy. During the Reagan administration, Dr. Miller served in numerous capacities, including the

Administrator for Information and Regulatory Affairs at OMB, a

member of the National Security Council, and a Director of the Office of Management and Budget.

Dr. Miller is often seen on television and appears in newspaper

articles, where he comments on public issues. He is a distinguished

fellow of the Center for Study of Public Choice at George Mason

University, a distinguished fellow of the Mercatus Center at George

Mason University, and a senior fellow of the Hoover Institution at

Stanford University.

He and his wife Demaris live away from the hustle and bustle

of Washington, out in—how do you pronounce that? Rappahannock

County? Rappahannock County, VA. And as you just mentioned before we began our hearing, not only do you have a very good last

name, but your daughter-in-law’s name is Candice.

Mr. MILLER. Absolutely.

Mrs. MILLER OF MICHIGAN. That is amazing. I have only met one

other Candice Miller in my entire life, so that is just an interesting

fact. Dr. Miller, welcome so much. We are interested in your testimony. You do have the floor, sir.

STATEMENTS OF JAMES MILLER, CHAIRMAN, BOARD OF GOVERNORS, U.S. POSTAL SERVICE; AND SALLY KATZEN, VISITING PROFESSOR, GEORGE MASON UNIVERSITY LAW SCHOOL

STATEMENT OF JAMES MILLER

Mr. MILLER. Thank you, Madam Chairman, and Congressman

Lynch. It is a pleasure to be here. Thank you for inviting me. It

is an honor to be here with Sally Katzen.

As you pointed out, I was head of OIRA at one point. In fact, I

was the very first administrator of OIRA. I was the first Oiranian,

as we called ourselves. And it is a memory that I relish.

I think enacting the PRA, the Paperwork Reduction Act, was one

of the best things Congress has done. It is very important that you

did this and that you continue to support it. And the reasons are

that what is at stake is so large, as Congressman Lynch was pointing out. The paperwork burden is so large. And, chairman, you

were pointing out there is so much in terms of resources that are

allocated by ordinary Americans to this effort.

Also, the regulatory burden, the effects of regulatory activity,

both positive and negative, is so large, the effects are so large, the

impact is so large, that it is just really important that you have an

institutional way of dealing with this.

15

Let me just give you a couple of figures I checked out. The regulatory burden, according to Mark Crain, who is a professor of economics, is like $1.113 billion. That is over $1 trillion a year. The

Tax Foundation has concluded that the Internal Revenue Code imposes paperwork costs equal to something like $256 billion a year.

Now, I know that there are people that would contest those, some

have higher numbers, some lower numbers; but the numbers are

staggering when you think about them.

Overall, I think successive administrations have done a good job

of employing the act. If you just look at the OIRA Web page, I

think you will be impressed by the variety and the depth, the

breadth of scope of activities and the depth of activities that they

have engaged in. I think the work of OIRA and other Federal agencies in the paperwork and the regulatory spheres should be governed by three principles.

The first is have sufficient information to know what you are

doing. Too often, Government agencies promulgate regulation and

promulgate paperwork reductions without knowing what they are

doing. Too often, people just sound the alarm and say stop, it

doesn’t make any sense without knowing what the information is.

So first, have requisite information.

Second, you ought to apply the principle of cost-effectiveness.

This is very commonsensical kinds of advice. That is to say, for any

given cost of a regulation or a paperwork requirement, you ought

to achieve the maximum benefits from that. Or alternatively, the

flip side, you ought to, for any given level of benefits, you ought to

find a way to achieve those benefits at the lowest cost. That is the

second principle.

The third principle is a little more difficult to employ in that it

sort of envisions a schedule. You think of the stringency of a paperwork requirement or of a regulatory requirement going from least

stringent to most stringent. You want to think of the benefits. Of

course, the extra benefits decline as the extra costs increase. But

you want to secure that level of stringency where the difference between the benefits and the costs are greatest: the net benefits. You

want to maximize net benefits.

Now, those three principles were articulated by OIRA and by

President Reagan in the 1980’s and they have been followed pretty

well since then. But as, Congressman Lynch, you pointed out, 80

percent of the paperwork burden is from the IRS. And as you pointed out, Madam Chairman, in your letter of invitation, those numbers have gone up, and you just said those numbers have gone

up—why? The burden has gone up. Why?

Well, is it the fault of OIRA? I don’t think that is probable. Is

it the fault of IRS? IRS has done a lot to try to secure a lower burden, simplification and things. I think the real fault is that Congress and the President continue to enact tax simplifications that

end up making the Tax Code longer—the shelf that houses the Tax

Code longer and longer. And so, it means that the cost of filling out

all the forms and complying with the requirements of the Tax Code

are greater.

The one thing that you could do—I am not suggesting it is easy—

but if you were to pass a flat tax, boy, would that reduce the

amount of paperwork burden. I mean, it would cut it enormously.

16

Failing that, you might think of having people file with the IRS

every other year instead of every year. I once suggested that to an

IRS commissioner. I thought he was going to fall out of his chair.

But if you think about it, when you file, it is really a settling up,

isn’t it? You pay your income tax and, you know, but you just settle

up once a year. That is what filing is. And maybe file every other

year and it would reduce—it wouldn’t cut it in half, but it would

reduce the paperwork burden. And there are simple rules. You

know, if you were born in an odd-number year, you file in an oddnumber year. Even-number, file in an even-number year. Of course,

with joint returns, you would have to have some rule about whose

birthday applied there.

Similarly with the regulatory area, a lot of the problem of regulatory burden is because of mandates. Sometimes Congress passes

a law that says the agency has to promulgate a regulation a certain

way no matter what the cost. Well, I mean, that is kind of nonsensical. They ought to be able to make some adjustments, some judgments about the minute benefits at some point and the enormous

cost in others. I think this is something that you really should look

into.

Now, if you will permit me just a level of abstraction here. Your

committee and your sister committee over in the Senate are really

the only committees that are focused directly on trying to limit the

paperwork burden and the regulatory burden. You are limiting.

Most other committees are engaged in activities that increase the

paperwork burden and increase the regulatory burden. And so you

are at a big disadvantage. How do you provide some institutional

arrangement where the Congress, as a whole has to make those

kinds of tradeoffs?

My suggestion—it is not original with me, but I think it is a very

good one—is to have a regulatory budget; that is so Members of

Congress think of the regulation in total. Do you realize that the

total burden of regulation and paperwork is about twice, over twice

all discretionary spending? And it is approaching half of the total

Federal financial budget.

Now, again, this is an enormous resource cost. And I am suggesting that Congress and the President impose, through regulatory activity and paperwork activity—and it is one I don’t think Congress

has the institutional equipment to really come to grips with. And

so if you had a regulatory budget, if you had the President every

year propose, along with a financial budget, which I used to help

put together as OMB Director, a regulatory budget. So then the

Congress and the committees would have to deal with priorities

and deal with the excesses, and reduce excesses but make sure that

they were doing the right thing in promulgating and making sure

the agencies carried out the regulations that made sense and the

paperwork that made sense.

I think that a regulatory budget wouldn’t solve everything, just

like reconciliation doesn’t solve everything on the budget side, but

I think it would go a long way toward improving the regulatory

performance of the Federal Government.

Thank you, Ma’am.

[The prepared statement of Mr. Miller follows:]

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Mrs. MILLER OF MICHIGAN. Thank you very much.

Our next witness this afternoon is Sally Katzen. Ms. Katzen

served during the administration of Bill Clinton as a Deputy Director for Management in the Office of Management and Budget and

as Deputy Assistant to the President for Economic Policy, and Deputy Director of the National Economic Council, and as Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget. In addition, she served in the

Carter administration as General Counsel and then Deputy Director for Program Policy of the Council of Wage and Price Stability

in the Executive Office of the President.

Before joining the Clinton administration, she was a partner in

the Washington, DC, law firm of Wilmer Cutler & Pickering, where

she specialized in regulatory and legislative matters. She was elected in 1988 as Chair of the Section of Administrative Law and Regulatory Practice of the American Bar Association, and she served

as a public member and vice chairman of the adjunct professor at

Georgetown Law Center. In 1990 she was elected president of the

Women’s Legal Defense Fund.

We certainly—oh, you also taught at the University of Michigan

Law School. I can’t pass that without going on about that. I happened to be in Ohio yesterday and there was a lot of talk about the

Buckeyes and Go Blue.

So we certainly welcome you, Ms. Katzen. We welcome you to the

committee and look forward to your testimony.

STATEMENT OF SALLY KATZEN

Ms. KATZEN. I greatly appreciate your invitation for me to testify

today, although having to follow Jim Miller is sort of a tough act

to come behind. But in any event, I have provided written testimony which I would ask be included in the record. That testimony

endorses the reauthorization of the PRA and it reflects a number

of very specific suggestions for strengthening the act that I hope

will be useful to you all.

I would like to use the few minutes available to me for the oral

presentation to focus on what I think the goals of the PRA should

be. I think that it is more complicated than what might appear at

first glance.

Chairman Miller, you, and the invitation to testify, and Mr. Miller, have all talked about reducing the burden. We are told that the

total burden imposed by Government information requests is in the

order of 9 billion hours. That is a big number. I will not dispute

that. There is, therefore, a natural impulse to want to do something, whatever it would take to reduce it. But I think that there

are several intermediate steps that we have to go through.

First, I am concerned that references to total burden hours is

somewhat misleading. That is because I believe that not all of the

8 billion hours or 9 billion hours are the same. Mr. Miller mentioned the IRS and the fact that it alone accounts for over 80 percent of the total burden hours. Now, that number is affected by the

number of people Mr. Lynch mentioned who have to fill out the

1040 or the 1040-EZ. But the large IRS burden numbers are also

a factor of the complexity of the Tax Code and the very complicated

and often quite detailed forms that most sophisticated corporations,

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with their legions of accountants and lawyers, fill out to obtain special—as in favorable—tax treatments, which Congress has decided

is wholly appropriate, in fact desirable.

Consider the form for accelerated depreciation, or the one for oil

and gas depletion allowances. Now, surely those who spend the

hours filling out those forms have made a calculation, however informal, that the burden of doing the paperwork is outweighed,

often greatly outweighed, by the benefit of obtaining the resulting

large, often very large, tax advantage.

Now, assuming for present purposes that dramatically revising

the Tax Code is not within the jurisdiction of this subcommittee,

and therefore passing for the moment Mr. Miller’s endorsement of

flat tax. It is within the scope of the jurisdiction of this committee

to consider whether the total burden hours makes sense in light of

the fact that individuals struggling with a 1040-EZ to pay their

taxes is not the same thing as the hours spent by trained lawyers

and accountants on the multitude of complicated forms enabling

their clients to reduce their taxes.

So should we really keep emphasizing total burden hours? Consider also that the burden hours attributable to the IRS are of a

wholly different sort than the burden hours represented by, for example, filling out a form for a small business loan, or for a student

loan, or to obtain veterans benefits, or Social Security disability

payments. All of which are also included in this total number that

people keep talking about. The IRS forms are the basis for a liability. The ones I have just mentioned are the basis for an applicant

to receive a benefit—which, again, Congress in its infinite wisdom

has decided is a good thing.

I am not saying the latter forms should not be as streamlined

and simplified as possible so that the burden is kept to a minimum

without sacrificing information essential to programmatic accountability. After all, we want some confidence that only those eligible

for a program are receiving payments and that the agency has sufficient information to monitor and evaluate whether the program

is achieving its objectives.

The point I am making is that calling the paperwork necessary

for a benefits program, calling that a burden and counting those

hours required to fill out those forms to obtain the benefits as part

of the total burden hours, masks the qualitative difference between

these forms and those sponsored by the IRS.

There are other types of burden hours included in the total that

are very different, even from the ones I just identified, and those

are called ‘‘third-party disclosures’’ requirements: Employers must

post information announcing the presence of a toxic chemical in the

workplace; that is included. Pharmaceutical companies must supply package inserts as to the implications of a drug; that is included. And my favorite is the nutrition labeling for food. I can

hardly get down an aisle in a grocery store without running into

some consumer standing there with two packages, looking at the

back of them and comparing, and then tossing one of them into his

cart. This is information the American people want and use, and

it enhances their health and perhaps even their safety.

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Now, this leads me to the second point that I want to make, and

that is, that burden is one side of the equation, but it is not, and

should not be the only consideration.

The 1995 act reflects another purpose, and that is to enable ‘‘the

greatest possible public benefit . . . and maximize the utility of information . . . collected . . . by . . . the Government. That is designed to improve the quality of the information that the Federal

agencies need for rational decisionmaking.’’

Regrettably, this side of the equation has gotten relatively short

shrift in the discussions about the PRA. Yet, the benefit or utility

side is not a new ingredient. Both the legislative and the executive

branch have recognized that Federal agencies need information for

informed decisionmaking. Mr. Miller’s first point was that before

taking action, policymakers should have adequate information.

Where do they get it?

Actually, political leaders from both political parties—this is not

a partisan issue—have recognized that information is a valuable,

indeed essential assets, and this is true not only for the public sector but for the private sector as well. It is significant that a lot of

the information collected by the Government is, in fact, disseminated to the public, either in its raw state or with some processing.

Consider, for example, weather information, census data—

stripped of its personal identifiers—and economic indicators. This

information is highly valued and sought after by industry and the

academy so that they can work this information and then ultimately use it to enhance our safety, to decide on marketing strategies and to make investment decisions. When we clamp down on

information, we are the losers.

Now, I also want to agree with Mr. Miller’s observation that,

while you are here considering reducing the burden, there are committees in both Houses of Congress thinking about increasing it.

They are doing it for a reason, though. It is not just foolhardy.

There is a concern about preventing fraud in Government programs. There is a concern about enabling informed choices, as Mr.

Lynch mentioned, to enhance national security. That was the basis

of the Patriot Act, which imposed an enormous burden if you are

thinking in terms of only that side of the equation. Presumably,

Congress felt it would produce an enormous benefit at the same

time. As I say, this should not be a surprise, because we are, after

all, in an information age.

Because the benefit side does not get the same attention that the

burden side has gotten, we are sending a message both to the agencies and to OMB that they will satisfy congressional concerns only

if they shut down new surveys, if they close off new inquiries and

if they cut back new requests for information. And I am aware of

a significant amount of anecdotal information that says agencies

have given up. They don’t even send to OMB those information collection requests unless statutorily mandated, and that is why the

numbers are going up, because they are statutorily mandated. That

is what the OMB reports have shown year after year. New congressional mandates have outpaced whatever efforts the agencies have

made to cut back, but they don’t send these needed inquiries

through because they feel that the burden reduction side pressure

is so great.

23

If this is, in fact, accurate—and I would encourage some empirical research to decide if it is or not—then I think it is a most unfortunate development. And your committee would do well to help

right the balance.

I would like to pick up on some of the things that Mr. Lynch

said. Without oversimplifying, all the key words begin with ‘‘B’’: We

talk burden. We should also talk benefit. And we should talk balance. And I think that will bring us a long way philosophically to

achieving what we need.

Again, I have specific suggestions in my testimony and would be

pleased to answer any questions you might have on that or any

other subject.

[The prepared statement of Ms. Katzen follows:]

24

25

26

27

28

29

30

31

Mrs. MILLER OF MICHIGAN. All right. Thank you so much. We appreciate that. I certainly agree with you, Ms. Katzen. We do have

to look at, as you said, the three Bs, cost/benefit analysis, and

sometimes it is difficult to make that kind of analysis strictly monetarily. As you mentioned, some of the food labeling and these

kinds of things, we really do need to look at it all.

You know, it is interesting because we have had a number of

hearings in this committee talking about the onerous burden of

Government regulations, and both of you, I think, referenced cost

of the burden. We have had testimony from the Small Business Association saying that they have done some studies that indicate

that particularly in small businesses, the cost of compliance with

all of these forms and all kinds of regulations and other kinds of

burdens that are put on them could be interpolated to $7,000 or

$8,000 an employee. We have had former Governor Engler from the

great State of Michigan, testify—he, of course, now serves as the

executive director of the National Association of Manufacturers—

talking about their analyses which seem to indicate the structural

costs of American-made goods to be 22, 23 points higher than any

of our foreign competitors, principally due to burden and governmental regulations and what have you. So there are so many

things that we have done in our society and as a Nation that are

so important to protect the health, safety, and welfare of our citizens, and yet we do have to look at what is reasonable, I think,

as well.

It is interesting, though, as both of you have talked, that you

can’t hardly talk about this issue without, obviously, looking at the

IRS. As you mentioned, it is about 80 percent of all the burden.

And it is an unfortunate reality when you see Members of Congress

coming saying, ‘‘We are here from the Government. We are here to

help you.’’ And every time we think about tax reform—and I no

longer am going to use those terms, ‘‘reform’’—perhaps tax simplification is the way that we would focus on the kinds of things

we may be able to do to assist. When you hear numbers, you know,

over, I think, $225 billion last year annually just for the American

citizens to comply with the tax forms, something needs to be looked

at there.

I would ask my first question to Dr. Miller, you mentioned—I

was taking some notes here—what I thought was interesting, a

regulatory budget within the—and if you could expand on that a

bit, are you suggesting that there would be a line item within the

particular agencies and within the committees? Or how would that

be structured?

Mr. MILLER. I would see a regulatory budget being put together

by the President, which had an overall amount and would have the

amounts by agency, and even perhaps by program, that they could

impose on the American people, things coming up. I would, as I

mentioned in my written statement, which I hope that you will accept for the record——

Mrs. MILLER OF MICHIGAN. Without objection.

Mr. MILLER. Thank you. I suggested that you treat existing regulations much as you treat entitlement programs, the financial ones.

That is, the agencies continue to have those regulations, but new

regulations would be analogous to discretionary spending that you

32

would have to appropriate every year. So Congress would have to

appropriate. You could also review existing—just like Ways and

Means and Finance reviews existing entitlement programs, you

could review existing regulatory and paperwork requirements.

Madam Chairman, I would like to just comment on Ms. Katzen’s

observations. I agree that there are certainly important, legitimate

uses of paperwork. I wouldn’t take that back for a moment. I think

that those are—many and varied paperwork requirements out

there are very justified. There is no question that there is very important information. Just to touch base on the example she started

off with, accountants and lawyers and firms applying for special

dispensations, etc., she is making my point. My point is you need

to simplify the Tax Code. You need a flat tax. You should not have

all this. Those are real resources. If those lawyers and accountants

were not doing that, they could be doing something useful. Right?

And they are doing that instead of something useful because the

Tax Code is established the way it is.

So if you simplified the Tax Code, if you had a flat tax, I think

you would increase productivity a lot because you would have people doing productive things rather than those things today that are

pushing notes around.

Mrs. MILLER OF MICHIGAN. You know, to followup a little bit on

that, because this is a fascinating discussion, the concept of a flat

tax, I think it may be too much of a huge change to go to that initially, but perhaps—and there has been some debate in Congress

about whether you would actually offer an option to people either

to do it the way we have always done it or do a flat tax and see

how it would go. But there have been quite a few articles about

that. I know we have had a lot of debate.

Mr. MILLER. Yes. Madam Chairman, I think that is an excellent

idea. It was one of my most important things when I campaigned

and lost for the U.S. Senate, saying that people should have an option. They could file under the existing Tax Code if they want, or

file under a new flat tax if they want. And if you gave people the

option, I suspect most people would elect to file under the flat tax

because it would be, in effect, so much easier.

I was invited to be on a TV show 2 days ago, and I had to say

no. You know why? Because I was working to put together all this

stuff for the tax—my personal income tax and my wife’s personal

income tax. I mean, it is a big burden.

Mrs. MILLER OF MICHIGAN. It absolutely is.

One other question on that, not to keep getting off the subject,

but this is a fascinating area, I think. Do you have any opinion on

the President’s commission on tax simplification, not tax reform,

tax simplification? You know, everybody thought that would be of

great benefit and that we were all very anxious to see what kinds

of recommendations they would come forward with to get away

from some of this burden, and immediately, when they started saying they were going to do away with the mortgage deductions and

those kinds of things, off we all went.

Mr. MILLER. Right, right. Well, Madam Chairman, I am kind of

reluctant to criticize it. I know some people who are on the Commission, some very, very smart people that I think work very hard.

They probably, from the word go, realized or took to heart the point

33

you made, that going to a flat tax might be too radical, so they

tried to do something to simplify the Tax Code and make it more

efficient without going that far. So it is kind of a halfway measure,

in that sense, and it is very important who thought what—I do not

endorse either of their two alternatives that they came up with.

Mrs. MILLER OF MICHIGAN. I might ask a question of both of you,

I suppose. I had the staff put up these graphs earlier about OIRA,

since we have two experts here on that agency. When you were

there—this is something we have heard, I have heard, since I have

had this chairmanship, over and over and over again about the inadequate resources that OIRA has. When you were there, did they

have adequate resources? Has this been sort of a common element

there? Do you have any comment on where all of that is going,

what you think it might need today to be able to do the job that

we have asked them to do?

Ms. KATZEN. I think that OIRA has a lot of responsibilities, as

does OMB, and they are physically and psychologically closer to the

President than any of the other agencies, and they act as a watchdog, is I think the word you used, for the work of the Federal Government. And I don’t think you could ever have too many resources

there.

The idea is to use the resources that you have in the most efficient and effective way. One of the suggestions that I included in

my written testimony was that, rather than reviewing all paperwork requests, the Congress authorize OMB to review only those

that are significant so that they can focus their attention on the

ICRs, the information collection requests, that are the most important and significant.

You cited the fact that the Reagan administration, I believe had

something like 90. I think when I was there, we had 50, and in the

most recent past, the Administrator has increased it by another 5

or 6.

Another body or two would undoubtedly help, but another body

or two is not going to make a huge amount of difference. I think

thinking about what it is you are trying to achieve and focusing the

limited resources that you have would be better emphasis on the

right syllable, as they say.

I would, if I could, use this opportunity to make two points about

the previous conversation, the colloquy that you had with Mr. Miller. The first is that these many tax complications—the oil and gas

depletion amounts, the accelerated depreciation forms, which I

used, as examples—industry doesn’t resist them. As far as I know,

they are up here asking for them. They want them. They want

them so that their lawyers and accountants can spend their time

on those things, and it would be—as you said, once you start getting rid of a mortgage deduction, which affects a lot of people, or

even a special interest, if I could use that term, tax provision, you

are going to find that people, corporations, businesses, including

sometimes small businesses that take advantage of accelerated depreciation, for example, will be very concerned because they want

those complications.

The second point has to do with the regulatory budget. It sounds

good, but—and it is a big ‘‘but’’—analysis is only as good as the

data is a truism in this field. You have a regulatory budget. You

34

put down a certain cost. Where is the information for that? The

cost that everybody is talking about of the huge amount of $1 trillion in regulatory expenses, those are calculated under the basis of

ex ante, estimates of what the cost will be if the regulation comes

into effect. In fact, most of the empirical work shows that once the

regulation is issued, American ingenuity kicks in, and it takes less

cost.

Now, I am not saying that the cost is trivial. I am not saying that it is not seriously consequential. But while he cites $1.1 trillion, there are lots of other figures which are in the $30 and $40

billion range rather than trillion dollar range.

The disparity reflects the fact that the data is not that good. We

do not have a really firm handle. That being the case, a regulatory

budget based on that kind of data would be, I think, problematic.

Mrs. MILLER OF MICHIGAN. OK. Thank you very much.

I recognize Representative Lynch.

Mr. LYNCH. Thank you very much. And just to followup on that

point, it is difficult. It sounds great about, you know, cost/benefit

analysis on any one of these proposals, but when you get down to

measuring that—and I know that Dr. Miller mentioned Professor

Crain. But when we have tried to replicate his numbers to basically get what he got and go through the process that he implemented, it has been very difficult getting information from him in

terms of allowing us, on this committee to basically parse out his

whole process in arriving at this mass of numbers. So a lot of that

is still very much in debate.

And, again, on a lot of this information that we get, it is totally

the cost side. There is no calculation made for lives saved or accidents prevented or, you know, contamination to our environment

or, you know, even in the nuclear regulatory sphere, the worst-case

scenarios that could develop in the absence of some of these regulations.

So I am not so much sold on the idea that there is a quantifiable

amount that we could point to and say we are going to save this

and get rid of regulation. I do agree that there is a whole lot out

there that is completely useless, and we need to figure out how to

get rid of it, and that we ought to try to work on those parts of

the regulatory framework in this country that could be eliminated

with, I think, a bipartisan and fairly unanimous consensus. I think

there is a lot that we agree on.

The other thing that I would like to see tapped into is some of

the agencies themselves, if we could somehow incentivize cleaning

up the regulatory framework that is out there—and these, you

know, folks at the IRS know better than anyone the redundancy

that is there, the complexity that is there, to no purpose, and

things that we could actually get some of the folks in the agency

to say—you know, somehow incentivize it, to have them reporting

to us how they best can clean up their own shop, how we could reduce the regulatory burden for people who worked through those

agencies. And I think we can do a lot to reduce the burden without

ever—well, eventually we have to get to some of the issues that are

contentious, but I think there is a whole lot of work that can be

done right off the bat, right from the get-go, just to eliminate the

regulatory burden without putting any of the controversial stuff in

35

play. I think it is just so burdensome out there and so complex, and

some of it has just built over, you know, as a matter of time and

from one administration to another. There seem to be layers and

layers of bureaucracy and complexity that, you know, have built up

like a residue over our entire economy.

What I would like to do is just ask you both, what do you think

the best way of getting at the agencies to help us make the reporting easier, but retaining the quality of the data and the value of

information that we are getting through these ICRs? And you mentioned, Ms. Katzen, about the fact that we have a lot that we are

doing on, let’s call them, insignificant—ICRs that are not really

going to give us the bang for their buck in terms of the number

of people or the number of requests or the number of—the degree

of scope for these different information collection requests. How do

we approach that issue within the wider question, which is, how

do we get the agencies to help?

Ms. KATZEN. One suggestion that I make in the written testimony that I would like to emphasize is that currently OMB approval last 3 years, so at the end of a current information collection

request, the agency comes back in and it says they would like to

extend it for another 3 years, and there is a little rubber stamp

that says ‘‘Granted,’’ and then they come back 3 years later.

What I suggest is building on a phrase that is in the act now

that says the agency shall show how it is useful. You incentivize

the agencies by saying: We are going to take that seriously. You

make a showing, a compelling showing, that it is used and useful.

And we will give you not a 3-year extension but a 5-year extension

or a 7-year extension or a 10-year extension.

It then is to their benefit to make the showing and, by the way,

knowing that this will happen, maybe they should be focusing on

how they are using the information that they are getting.

It also would have the salutary effect of reducing or streamlining

OMB’s processes so, again, the routine ones that are being used

and useful would not clutter up and take the time from the others.

I think that is one way of doing it.

Another way of doing it is pure anecdotal, and that is, one moment when I was Administrator of OIRA, a staff member complained about a particular form, that it was incomprehensible and

that it just—you could not follow it. And so almost—I am not sure

why I did this, I picked up the phone and I called the person who

had certified this. And I said, ‘‘I do not understand Question 17

here. What are you getting at or why are you getting at it?’’ And

there was silence at the other end of the phone as the person scurried to figure out, what form is she talking about?

I then said, ‘‘I tell you what. Let me fax this over to you. You

have estimated this will take 20 minutes to fill out. Let me fax it

to you and then call me in 20 minutes and tell me how you are

doing.’’

I did get a call within 20 minutes to withdraw the form.

Now, that is just one incident, but I think if you can reach the

people who are responsible at the agencies, that is where—it does

not have to all be at OMB. It should start with the culture at the

agencies. And one of the other suggestions I make—I am sorry I

seem to be running on, but one of the other suggestions I make is

36

that we vested this in the CIO’s office in the 1995 act, that they

should be the internal agency watchdog, because we wanted an office that was dispassionate, not attached to the programmatic office, so that they could say, ‘‘Hey, why do you really need that?’’

And have the stature and the clout within the agency to be able

to say that.

CIOs have had a mixed—and I think GAO has said CIOs have

had mixed results. Some of them have taken the job seriously.

Some of them are more interested in the technology side. Some of

them are more interested in other aspects. And I think that one

ought to consider giving the agencies some flexibility from an internal office that would really do the job right and have, if you want,

OMB approve their other kinds of operations.

Those kinds of ways to get to the agency would, I think, be very

beneficial.

Mr. LYNCH. Yes. Well, I agree with your first and last assessments that creating that incentive, giving them a waiver from the

3-year review, if they can show that, you know, a given regulation

is necessary and is rock solid and, you know, there is general consensus that it is necessary and it serves a valuable purpose. I also

think the idea of having that—and I do not know if you call it a

task force or whatever it is, if you want to take it out of the CIO’s

office and give it to a task force that is going to say, ‘‘You know

what, we are going to help ourselves.’’ We are going to jettison

these regs that are just absolutely slowing productivity or just, you

know, stopping us from doing our job.

Those are two great ideas. I don’t think there is much cost in

that either, in going through that process. One is merely, as I say,

incentivizing through the process, and the other is really an organizational function, just shifting it and giving it to somebody who will

actually do the job.

Thank you for your testimony.

Mrs. MILLER OF MICHIGAN. Thank you. Before we move on to the

next panel, Dr. Miller, when I had asked the question previously

about whether or not you thought there were adequate resources

in OIRA when you were there, Ms. Katzen answered but you did

not. Could you for the record tell me what your thoughts were on

that?

Mr. MILLER. Well, I thought we did. I thought we did. Again, the

role of OIRA is not to do all the analysis but to review the analysis.

Just like an editor of a major law journal or an economics journal

or statistical journal is not supposed to perform all the analysis

themselves, but to basically review the analysis presented to them

and decide which is worth publishing.

The high number at the beginning of the Reagan administration

is a reflection of the fact that, if I am not mistaken, there was a

statistical group that came over from Commerce that was attached

to OIRA and then was later moved, I think to Labor or back to

Commerce. So that 90 figure is somewhat inflated. They were not

really doing this OIRA kind of thing, so that moved.

You know, as Ms. Katzen was saying, they could certainly use a

few more people there, but I don’t think there is a tremendous

shortage of personnel at OIRA. But I would like to respond on the

37

question of incentives, if I might, that Mr. Lynch, Congressman

Lynch raised.

Mrs. MILLER OF MICHIGAN. Certainly.

Mr. MILLER. If you had a regulatory budget, even without a regulatory budget, if you allow the agency to zero sum, that is to say,

you tell the agency you have a burden of such and such on such

and such, but you would like to issue a new regulation, new paperwork burden, if you can reduce the paperwork burden, the regulatory burden in this area, you can increase it here. And so allow

them to prioritize—just like agencies when they come to OMB with

their budgets during the budget season, you know, they have to

justify these things, and they tradeoff. You know, they say, well,

the President has agreed you can increase your budget 0.1 percent,

or something like that. Well, they have to have priorities and they

make those kinds of judgments. So I think that would be helpful.

On the question of Mark Crain, I must admit to a little favoritism here because Mark is not only—he is the Simon professor of

economics at Lafayette College. He is a former colleague of mine

at George Mason University. He is a former student of mine when

I taught economics at Texas A&M. And if Ms. Boyd could give him

a call—I talked to him 2 days ago—I am sure that he would be

more than happy to respond, and his telephone number is 610–

330–5315. He would be more than happy to respond to any question you might have. I am, of course, looking at the paper he did,

I guess for the Small Business administration.

Mrs. MILLER OF MICHIGAN. OK. Well, I certainly want to thank

you on behalf of the entire committee very, very much for coming.

We certainly appreciate it, and we will ask you to move aside for

the next panel.

Mr. MILLER. Thank you.

Ms. KATZEN. Thank you.

Mrs. MILLER OF MICHIGAN. Thank you both so very, very much.

[Witnesses sworn.]

Mrs. MILLER OF MICHIGAN. Thank you very much. We are going

to probably be called for votes here. It could be in 10 minutes, it

could be in 20 minutes, at which time we will be voting for quite

a long time. So I would like to start with the panel and see if we

cannot get all the testimony on before that happens, and I would

ask you to sort of keep an eye on the timers that you have before

you and try to adhere to our 5-minute rule, if you could, in this circumstance.

Our next witness is Mr. William Kovacs, who is the vice president of Environment, Technology, and Regulatory Affairs for the

U.S. Chamber of Commerce. Mr. Kovacs is the primary officer responsible for developing the Chamber’s policy on environment, energy, natural resources, agriculture and food safety, regulatory and

technology issues, and we are certainly glad to have you join the

committee today, Mr. Kovacs. We look forward to your testimony,

sir.

38

STATEMENTS OF WILLIAM L. KOVACS, VICE PRESIDENT, ENVIRONMENT, TECHNOLOGY, AND REGULATORY AFFAIRS, U.S.

CHAMBER OF COMMERCE; ANDREW M. LANGER, MANAGER,

REGULATORY POLICY, NATIONAL FEDERATION OF INDEPENDENT BUSINESS; LINDA D. KOONTZ, DIRECTOR, INFORMATION MANAGEMENT ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; AND J. ROBERT SHULL, DIRECTOR

OF REGULATORY POLICY, OMB WATCH

STATEMENT OF WILLIAM KOVACS

Mr. KOVACS. Thank you, Madam Chairman, Congressman Lynch,

and the committee for inviting the Chamber to testify here today.

I am going to submit my testimony for the record and just summarize some of the key points.

As we all know and we have heard, the Paperwork Reduction Act

is more than about reduction. It is really about the reduction of paperwork, the collection of necessary paperwork, and it is also about

the use and dissemination of good quality data, which is something

that really is the highlight of what the Chamber has been focusing

on.

When we talk about paperwork reduction, this has really been a

burden and a challenge that the Congress and OMB have had to

deal with. It started with the Federal Reports Act, and since then,

Congress and OMB have seen the Paperwork Reduction Act in

1980, 1986, 1995. We have seen the Data Quality Act, which was

an amendment to the Paperwork Reduction Act. We have seen

Data Access. We have seen a number of regulatory reform efforts

out of OMB, which is both peer review, risk assessment, good guidance, as well as Executive orders. Just to followup on a question

that Congressman Lynch asked, we have also seen efforts by Congress to really get the agencies to do exactly what you ask: identify

those regulations that are really no longer needed. And we have

seen that through Section 610 of the Regulatory Flexibility Act. We

have seen it in the nomination process. And we have seen it in Executive orders. And so where are we after 64 years of effort? I think

that is really what the question is.

I think on the paperwork reduction side, it is a very mixed bag.

You do have Congress putting more and more requirements on

agencies, and you will see at this point in time about 10 billion

hours, so that is going to be the largest in history.

On the information colleague side, I think where we, you can

really make a difference, there is an enormous amount of frustration. GAO is here and they are going to talk about it, but they have

done the analysis on what the CIOs do, and the CIOs are to certify

that the efforts taken by the agencies are really efforts to get at

the kind of data that they need and that is necessary. And there

are actually 10 criteria, and GAO found that in 2005 that 98 percent of the CIOs certified the eight—98 percent of the 8,211 certifications requested were actually approved by the agencies and accepted by OMB. However, when GAO decided to do a review, they

found 65 percent of those actually had missing or no data at all to

support it. So that really is a problem, and I will be back to that

in my recommendations.

39

And, finally, what we think is the most important is the Data

Quality Act. Here is an example where Congress in 2001 said to

the agencies we do have the kind of burden that we have, whether

it is $1.1 trillion or maybe it is $500 billion, who cares? The fact

is it is enormous. There are 4,000 regulations a year, 102,000 regulations out there, and they cannot all be necessary, and no human

being can read them. That is the problem. And so the Data Quality

Act took the position that the agencies were to use the best quality

data, the objective data, the most useful data. And 2 days ago, as

I think you know by this time, the Fourth Circuit Court of Appeals

ruled that the Data Quality Act was not enforceable, that there

was absolutely no human being on Earth that had the standing to

pursue it, and that it is an act that is solely between OMB and the

agencies. So if you are looking for guidance as to how to move forward, you have to keep that process in mind.

So what do we do? Well, we have three options that I think are

practical. One is if you want private parties to really support you

on it and take action against the agencies to deal with the paperwork issue, then you have to put judicial review at the center. It

is just that simple.

If you want this to continue to be between OMB and the various

agencies, several things have to happen. OMB has to be serious

about the process. This is the first thing. And it can be serious in

two ways. One, it can tell the agencies, look, you have—when you

file these certifications or when you do this data quality request,

you have to have a mechanism of somewhat independent review,

and that can be either an administrative law judge or—we don’t

care, but it has to be someone independent of the agency.

In terms of the certification process, I think you have a serious

chance there of doing something that really could be monumental,

and that is, if you have all the CIOs rubber-stamping all of these

issues, there seems to be just a complete lack of concern, and if

anyone has ever looked at one of the paperwork submission requests, it actually gives you the criteria on the back side in very

simple, plain English, and yet the CIOs rubber-stamp it. You know,

if a corporate official did this—you know, they worry about Sarbanes-Oxley. Even if you were a small builder in Michigan and you

worried about storm water and you didn’t—let’s say you didn’t

have your Zip Code on it. Well, if you didn’t have your Zip Code

on the submission, they would hit you for $50. If you did not talk

about weather conditions, just omitted it the day you filed the

form, that is $500. And if you did not pay it within 30 days, the

fine then would be $32,500 a day.

So what I am saying is the simple answer is I think you need

to make the CIOs accountable, and I think you can do that through

the Office of Personnel Management. Anyway, I think my time has

expired, but I would be glad to answer any questions.

Thank you.

[The prepared statement of Mr. Kovacs follows:]

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Mrs. MILLER OF MICHIGAN. Thank you very much.

Our next witness is Andrew Langer, who is the manager of Regulatory Policy for the National Federation of Independent Business.

He is in charge of making the voices of small businesses heard

whenever new regulations would have a negative impact on Main

Street. Mr. Langer.

STATEMENT OF ANDREW M. LANGER

Mr. LANGER. Thank you. I want to thank you for the opportunity

to testify on this. I have testified before this committee and several

congressional committees on this issue a number of times, and we

are really at a crossroads here in terms of reducing paperwork and

the paperwork burden on small businesses. So I am really thankful

that I have the opportunity today.

NFIB, of course, is the Nation’s largest small business trade association with 600,000 members whose average employee size is

five employees. So we represent the smallest of the small.

The problem of paperwork is two-pronged. We focus on two sides

of the issue: we focus on paperwork that has to do with regulations

that are coming down the pipeline, and we focus on the problem

of paperwork from regulations that are already on the books. We

have a great many tools available to deal with reducing the burden

of regulations that are coming down the pipeline, and those systems, when they work, work fairly well. They do need improvement. But we spend very little time dealing with the issue of the

paperwork that is already on the books, which is the vast preponderance of the problem, frankly, as Bill said.

Everyone involved in regulations—the regulated community, activist stakeholders, Members of Congress and their staffs, the Federal agencies and their personnel—all must ask the same question:

What is it that we want from the regulated community in the end?

After all, I am not here, NFIB is not here, we are not here engaged

in this discussion on an academic basis. I have not grown frustrated with the regulatory process and the paperwork caused by it

on mere philosophical grounds. We are here to talk about real solutions to a real problem, a problem that has real impacts for real

people. You have called this hearing because you want to explore

real solutions, meaningful relief for those small businesses. So I repeat the question: What is it that we want?

The answer, at least in NFIB’s estimation, is simple: we want

the regulated community to understand what their responsibilities

are, what paperwork they need to fill out, in as simple and as easy

a manner as possible. We want them to spend as little time as possible having to figure out what their responsibilities are, what they

need to do to comply, and then going out and complying with them.

What is more, our members want to be in compliance with the

law. They want to keep their workers and their communities safe

and secure, and the last thing they want is for a Government inspector to show up at their offices to fine them for some minor

transgression.

But, unfortunately, we have created a regulatory state that is so

complex that it is next to impossible for any business, any small

business, to be in compliance with 100 percent of the law 100 percent of the time. It is a grossly unfair situation. It creates the situVerDate 11-MAY-2000 12:40 Sep 14, 2006 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 D:\DOCS\29707.TXT HGOVREF1 PsN: HGOVREF1
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ation where any small business could become the victim of an erstwhile Federal regulator interested in playing a game of ‘‘gotcha.’’

And in an era where an increasing number of Federal inspections

are being driven by disgruntled former employees filing meritless

complaints against their employers, small businesses are growing

more vulnerable each and every day with each and every new regulation that comes out. And the stakes are much higher because of

the way the laws work.

Consider for a moment the fact that most Federal environmental

regulations—and Mr. Lynch talked about TRI. For most Federal

environmental regulations, they carry criminal penalties. And

these criminal penalties are under what is called strict liability, the

concept that you need not know that what you are doing is a crime

in order for you to be charged as a criminal. Instead, under strict

liability, all the Government needs to do is prove that you knew

that you were doing the act that you were doing at the time you

were doing it.

So what does this mean for paperwork? Let’s say you are a small

business owner filling our Clean Water Act paperwork forms and

you make a mistake. You leave off your Zip Code, you make some

clerical error, you transpose two numbers, and you sign the bottom.

And all of a sudden a Federal inspector comes out and looks

through your paperwork—paperwork you have spent blind hours

doing, you have been doing other paperwork as well. You can be

charged criminally under the Clean Water Act for making that mistake under strict liability because all the inspector would have to

do is say, ‘‘You knew you were filling out a form, right?’’ ‘‘Of course,

I did. I signed the bottom of it.’’ You are guilty. And this is not an

abstract thing. People have gone to jail because of this.

So I want you to consider this as we think about going about reducing the amount of paperwork. Because the regulatory state continues to grow and the paperwork continues to increase, it is ever

more important that we strengthen those gatekeeping roles, which

is why NFIB, in my written comments, I said—and I want to submit those for the record, obviously—that OIRA needs to be fully

funded. And I don’t think I need to repeat the arguments of those

that came before me because I agree with all of them as to why

OIRA needs to be fully funded, obviously because one of the reasons, the main reasons, is because as the number of regulations

and those writing them continues to grow, the resources at OIRA

have continued to shrink.

I think clearly—and I have spoken on this before—something

needs to be done about tax paperwork, and I can talk about that

as we move forward. But one of the things I want to focus on very,

very briefly—and it is absolutely important—is one of these real solutions, and I talk about it extensively in my testimony. It is the

issue of the business compliance one-stop, or business.gov or the

Business Gateway, as it is called, the idea being very, very simple,

and it really gets to the heart of the matter. We want small businesses to be able to go to a Web site, those that use computers—

and about 92 percent of small businesses use computers in some

aspect of their business. And so if they choose to do so, they go to

a Web site, they enter in some very simple plain-English data

about their business, maybe their industrial classification code, the

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number of employees, and their Zip Code, and a data base spits out

every Federal regulation that applies to them. It spits out everything that they need to do to comply with that regulation in very

simple—no more than two pages of information. And if we are

lucky, it walks them through how they go about complying. It allows them, if they so voluntarily choose to do so, to fill out that information on the computer itself. And it spits edit, gets all the information organized for them and it sends it out.

Now, the SBA has been working on this for a number of years.

We supported them through it, and we have something called business.gov that is out there. But it is just in its infant stages, and

the time is now to take that seriously. We have an opportunity on

our hands as you move forward with reducing Federal paperwork,

through the reauthorization of the Paperwork Reduction Act, to

take this in hand, and it is going to take congressional leadership

and leadership from the executive branch in order to do this. But

we have to start somewhere, and we have to start now.

I look forward to taking any questions, especially if you have any

on the Toxics Release Inventory, and I will conclude with that.

[The prepared statement of Mr. Langer follows:]

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Mrs. MILLER OF MICHIGAN. I thank you. I think what we are

going to do is recess at this time. We have a series of six votes, so

we will probably be, I would say, a good hour. We need to recess

for about an hour, with your indulgence. I don’t know if you can

stay until we come back. If you could do that, that would be very

much appreciated, and thank you very much. We will adjourn for

an hour.

[Recess.]

Mrs. MILLER OF MICHIGAN. Calling the hearing back to order,

our next witness is Linda D. Koontz, Director, Information Management Issues at the Government Accountability Office. At the

GAO she is responsible for issues concerning the collection, the use,

and the dissemination of Government information in an era of rapidly changing technology. She has been heavily involved in directing studies concerning the Paperwork Reduction Act’s implementation, information access and dissemination, e-government, electronic records management, data mining, and privacy. And in addition to all of this, she has lead responsibility for information technology management issues at various agencies, including the Department of Veterans Affairs and Housing and Urban Development

and the Social Security Administration as well.

We certainly welcome you to the committee today, and the floor

is yours.

STATEMENT OF LINDA KOONTZ

Ms. KOONTZ. Thank you very much for inviting us here today to

participate in the subcommittee’s hearing on the Paperwork Reduction Act. I will be very brief.

Last year, we reported to you the results of our study on implementation of agency review requirements. We found, quite simply,

that agencies have not implemented the rigorous review process

envisioned by the Congress. Specifically, we reported that governmentwide agency CIOs generally reviewed information collections

before they were submitted to OMB and certified that the required

standards in the act were met. However, our review of 12 case

studies shows that CIOs provided these certifications despite often

missing or inadequate support from the program offices sponsoring

the collections. Further, although the law requires CIOs to provide

support for certifications, agency files contained little evidence that

CIO reviewers had made efforts to get program offices to improve

the support they offered. Numerous factors had contributed to

these problems, including a lack of management support and weaknesses in OMB guidance. As a result, we concluded that OMB,

agencies, and the public had reduced assurance that the standards

in the act were consistently met.

To address these weaknesses, we recommended that OMB and

the agencies take steps to improve review processes and compliance

with the act. The agencies we reviewed have since taken action to

respond to each of our recommendations.

In our report, we also noted that IRS and EPA had established

additional evaluative processes that focused specifically on reducing burden. In contrast to the CIO reviews, which did not reduce

burden, both IRS and EPA have reported reductions in actual burVerDate 11-MAY-2000 12:40 Sep 14, 2006 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 D:\DOCS\29707.TXT HGOVREF1 PsN: HGOVREF1
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den as a result of their targeted efforts. There appeared to be a

number of factors contributing to their success.

First, these efforts specifically focused on results, reducing burden, and maximizing the utility of the information collected.

Second, they benefited from high-level executive support within

the agency, extensive involvement of program office staff with appropriate expertise, and aggressive outreach to stakeholders.

In our report, we concluded that these approaches to burden reduction were promising alternatives to the current process outlined

in the PRA, and we suggested that the Congress consider mandating pilot projects to target some collections for rigorous review

along these lines.

We also cautioned, however, that such approaches would probably be more resource-intensive than the current process and might

not be warranted at all agencies since not all had the level of paperwork issues that face agencies like IRS and EPA. Consequently,

we advised that it was critical that any efforts to expand the use

of these approaches consider these factors.

In summary, Madam Chairman, the information collection review process appeared to have little effect on information burden.

As our review showed, the CIO review process as currently implemented tended to lack rigor, allowing agencies to focus on clearing

an administrative hurdle rather than on performing substantive

analysis. Although we made recommendations in our report regarding specific process improvements, the main point that I would like

to make today is that it is not enough to tweak the process. Instead, we would like to refocus agency and OMB attention away

from the current concentration on administrative procedures and

toward the goals of the act, minimizing burden while maximizing

utility. By doing this, we could help to move toward the outcomes

that the Congress intended.

I look forward to further discussion on how the law and its implementation can be improved. This completed my statement, and

I will be happy to answer questions at the appropriate time.

[The prepared statement of Ms. Koontz follows:]

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Mrs. MILLER OF MICHIGAN. All right. Thank you very much.

The final witness of the day is Mr. Robert Shull, who joined

OMB Watch in 2004 as its director of Federal regulatory policy.

Prior to going to OMB Watch, Mr. Shull was a training specialist

and child advocate where he worked at Children’s Rights, which is

a nonprofit organization in New York. This organization works nationwide filing class action civil rights suits on behalf of abused

and neglected children in order to reform foster care. He holds degrees from the University of Virginia as well as Stanford Law, and

we certainly welcome you to the committee today and look forward

to your testimony as well, Mr. Shull. The floor is yours.

STATEMENT OF ROBERT SHULL

Mr. SHULL. Now it is on. All right. All those fancy degrees, and

I can’t get a mic on.

I want to say it is actually easy for me to come here and fumble

about with the mic, because Professor Katzen came in and gave

such a nuanced and very thorough discussion of many of the same

points that I would like to raise.

I would like to pick up on something that Mr. Langer said. He

said that these issues that we are talking about today—information

and burden—are not an abstract thing because people have been

arrested. And I want to add my wholehearted agreement that these

are not abstract issues, because in addition to the people who have

been arrested, people have died. Think about all the people who

built their homes in Love Canal who did not know where their

homes were being built and what was underneath them. Or think

today about the first responders who rushed to the World Trade

Center after September 11th not knowing what they were breathing and not knowing that they needed to bring certain protective

equipment with them.

Information does come with a burden, but information comes

with benefits. And that is the point that Professor Katzen wanted

to make, and it is the point that I want to underscore.

I think that there is cause for alarm, not because of the reports

of burden hour increase, but because we have come here to talk

about reauthorization of the Paperwork Reduction Act, and I have

heard at least three panelists talk about issues beyond regulation,

talking about regulatory policy and changes to the regulatory process that would be very controversial, and I say very harmful to the

public.

The first point that I would like to stress is that the reports of

burden hour increases may be exaggerated, in large part because,

as the GAO pointed out in its testimony last time, there is no

science that goes into the calculation of these burden hours. They

may not be a reliable estimate of anything.

Professor Katzen also elaborated very thoroughly some other

issues that need to be raised if we are going to assess burden

hours, at least from a governmentwide perspective. I would like to

stress that the causes for burden hour increases can be things like

changing priorities. After September 11th, the Nation realized we

need to put more attention on the security of the food supply and

the safety of our ports, and that is going to mean more information

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and that will in turn mean more burden that gets calculated in

these burden hour increases.

Additionally, there are outside factors like Hurricane Katrina.

There are more people who are filing for national flood insurance

benefits or public benefits, and those people who file—when the

populations who file increase, the reported burden hour increase

governmentwide will also increase. That particular factor has already been designated by OMB every year in its adjustments category, but the program changes, although OMB stresses that new

statutes and such factors can be responsible for those burden hour

increases, they are not always precisely measuring just how much

a factor that is. And so I just want to caution that when we consider burden hour increases, that is another very important factor.

I also need to say that burden hours, above all, without context,

cannot be the basis of our policy discussions because they can lead

to misguided policy. Mr. Miller spoke about changing to a flat tax,

and it is absolutely true that changing from our progressive income

tax to a flat tax or even eliminating Federal income taxes altogether would absolutely drive down governmentwide reports of burden hours. But that would also mean less revenue to the Federal

Government to do the things that we expect the Federal Government to do. It would mean losing something really valuable like the

progressive income tax that protects people at the low end and asks

people at the high end of the economic strata to pony up their fair

share in a fair way.

Another point that needs to be stressed is that we need this information for a purpose, and if we focus on burden hour reductions

above all, we could be just shifting this informational burden. Because we need this information, we need food safety labeling, we

need information to protect the public, the States might have to

pick up the role that the Federal Government might be abdicating

in the event of across-the-board burden reduction targets.

Another problem that has not been brought up is that the PRA

itself is an act that comes with its own bureaucracy. It really is in

many ways the worst—it brings out the worst of Government.

There is paperwork involved in the Paperwork Reduction Act.

There are technicalities of all sorts that I explain my written statement and would be happy to submit more information on.

I would like to stress that the real focus should be shifting to information resources management. There are many fixes, even just

simply changing the name of the bill that gets put forward to reauthorize the PRA, that could refocus OIRA’s attention on the ‘‘I’’ of

OIRA, on information technology and information resource management, which could reduce burden in many ways without reducing the quality or level of information that we receive.

I have gone over time. I apologize. I would be happy to answer

questions.

[The prepared statement of Mr. Shull follows:]

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Mrs. MILLER OF MICHIGAN. Thank you very much.

You know, one of the reasons I wanted to actually get on this

committee when I first came to Government, I liked the name of

the committee, ‘‘Government Reform.’’ I like to think of myself as

a Government reformer, and I like to think of myself as sort of a

common-sense approach to Government. And we had a hearing last

week that I was going to ask a question on. Actually, I thought it

was sort of an interesting hearing and certainly a topic—and Mr.

Lynch and I have introduced a piece of bipartisan legislation about

some of the—talking about all of the burden with the paperwork

and everything. In this case, we were talking about plain English,

where somebody that was actually trying to comply could understand what the Government was trying to ask them to comply

with. And the testimony was fascinating. In fact, one of the fellows,

who happened to be from Michigan, Cooley Law School, had written this book, ‘‘Lifting the Fog of Legalese: Essays on Plain Language.’’ And as I said, I thought it was just a fascinating evaluation

of how much time is spent in compliance, and again, you know, he

articulated some various examples. He had given the first example,

you could not understand—even if you were an attorney, you could

not understand in many cases what the Government was asking

you to comply with on some of these things.

I guess I would just ask all of you generally if you think that the

possibility of having some of these various collections written in

plain English would be an advantageous act as well.

Mr. LANGER. Yes, I think that would definitely be helpful. One

of the problems that we deal with—and I am NFIB’s sort of principal liaison with the executive branch folks—is this idea both of

plain English and putting a limit on compliance guides. You know,

OSHA, for instance, put out a compliance guide on communication

of hazardous materials. We all can agree that, you know, what is

communicating what is hazardous and what isn’t hazardous is an

important thing. But if you are a small business owner, having

something the size of a telephone book to go through to learn what

you need to do to comply is ridiculous. Someone is going to look at

that and just go—you know, they are going to go blank.

We talked about TRI earlier, and Mr. Lynch brought it up. And

the issue—you know, one of the issues that we had to deal with

as they were reformulating TRI was the fact that they would not

put executive summaries into the changes that were being advocated, and all I wanted was for them to simply put out, you know,

a couple of pages saying here is a guide, here is what you need to

do, maybe attached to the Table of Contents or with an index, for

more information go here; but here are the basic things that you

need to do.

And I would just point out, you know, just a couple of things Mr.

Shull brought up, just very quickly. With regards to Love Canal,

Hooker Chemical let the community know what was hazardous

there. They didn’t have to, and what they were doing was fully in

accordance with the law. So Love Canal I don’t think is really apropos. Neither is September 11th only because September 11th was

not an issue of paperwork burden and paperwork reduction. And

the thing is, you know, what mistakes EPA might have made in

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nesses’ burdens in filling out paperwork. So I don’t think those are

terribly accurate issues.

We have no beef about the idea of protecting lives, but when you

are talking about small businesses and—you have a situation

where small businesses are different than larger businesses. When

you have a business that has only five employees, invariably it is

the owner who has to divine what the regulations say and what

they need to do. They are not the large companies that are out

there that are even building buildings like the World Trade Towers. You know, those companies can hire compliance specialists. My

folks can’t. They don’t. They simply can’t afford it. And yet they are

being treated in the same way. That is one of our big issues with

the TRI. And I am sorry Congressman Lynch isn’t here for me to

talk about that because, you know, one of the things with reforming the TRI that we have been dealing with is this issue that the

reforms being proposed would account for 99 percent of the data

that is currently out there, and the vast majority of the businesses

that would be impacted emit 50 pounds—they emit either nothing

or they emit less than 50 pounds of any chemical, and they should

be treated differently.

So with that, I will conclude. I know I went way over with that,

but, yes, plain English would help.

Mrs. MILLER OF MICHIGAN. I would like to ask Mr. Kovacs as

well: have you had discussion over there at the Chamber about

plain English or something along those lines?

Mr. KOVACS. Well, we like plain English. Our CEO requires everything that we send around to be less than one page. So no matter how complex it is, we have to break it down. And I think the

theory is that unless you can break it down and explain it, you

really don’t understand.

When we look at the regulations—my shop is also the regulatory

side—I mean, they occupy shelves. I don’t know how a small business person—I am just saying this. I have a group—I have a team

of lawyers, and we have problems with them. And so if you give

it to a small business that is worried about running it, it is really

very difficult.

The point I tried to make to Congressman Lynch was the Congress has been very good about—you have a lot of these laws to

really help get a handle on this. You have to figure out a way to

get cooperation from the agencies. They have the expertise. They

are the ones who know what regulations are right, what regulations are wrong, what regulations do not work, and they have Section 610 of the Reg. Flex. Act, which they are supposed to come

back to you with a plan and say this works, this—no one ever does

it, and that is where I think the frustration is.

Mrs. MILLER OF MICHIGAN. Mr. Shull.

Mr. SHULL. We actually fully agree that plain language would be

a very important step to take. In fact, we wholeheartedly encourage

and we support the bill that you introduced, and I think that it is

exactly the kind of thing that I wanted to stress—after fumbling

about with the mic—that really the goal of improving, taking

things to the next step with the Paperwork Reduction Act, we really should be focusing on not just some across-the-board burden

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ing information without actually reducing the information itself.

And I think that plain language is an example of the kind of thing

that would make it much easier for businesses to find out what information they need to provide and actually provide it. I think that

other examples might be—the Toxics Release Inventory has come

up, and EPA has produced the TRI-ME software that is supposed

to make it easier for businesses to report the toxics that they have

released into our air and our water and in our own backyards.

There are other things that we could do. For example, if businesses have to complete a lot of forms that require the same bits

of information, even name, address, that kind of thing, there possibly should be a data base that allows them to get all of that information pulled out and filled out automatically on every form that

they fill out that requires that information. That is something that

would save businesses time and money, but not rob the public of

the information that it needs to keep itself safe and healthy.

When I brought up, arguably inapposite, examples of Love Canal

and September 11th, I really meant to make a broader point that

the Paperwork Reduction Act is about so much more than just the

paperwork clearance process. It is meant to be a comprehensive information resources management law, and there are many components of the PRA that include dissemination requirements, that include information security privacy, electronic records and

archiving, and these are aspects that GAO has reported over the

years OMB has been deficient—I mean really from the very beginning of the life of the PRA—OMB has been deficient in paying sufficient attention to these aspects of its responsibility. And we could

really significantly advance the very things that we have just

talked about using, say, information technology to make reporting

easier if OMB started shifting more of its resources away from regulatory reviews that are not sanctioned by any law or away from

the paperwork clearance process even, and into this broader universe of activities that really is responsible for the law.

Mrs. MILLER OF MICHIGAN. Yes, I appreciate all those comments.

You know, I am a firm believer that obviously Government does

not create jobs, the private sector does, and it is for us to try to

create an environment to encourage entrepreneurship, etc. I think

on to this plain English thing, because I really believe that it is a

psychological barrier for small businesses and people that want to

start their own businesses and those kinds of things. So I was very

glad that Representative Lynch and I were able to, as I say, have

that hearing, and I appreciate your comments on the legislation.

One of the questions that I asked the other panel and that we

are still not—I am a person who believes generally less Government is better and less Government regulation is better, less taxes

are better, etc. That is my ideology. But at the same time, you

know, Government certainly has a role to play in so many areas,

as we were talking about here today, and particularly OIRA. And

so I guess I would ask the panel as well, as I asked the previous

panel, do you think that they currently have enough resources or

are you finding some difficulty in the amount of resources that the

Government has provided them in order for them to do their jobs?

If anyone has any comment on that, I would be interested.

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Mr. KOVACS. My comment is simple. What is lacking over at

OIRA or even within the agencies is the will. I don’t think we need

any more laws. I don’t think we need—maybe if you had more oversight, and you are certainly doing that. But at the end of the day,

the question comes down to whether or not they want to do it. And

I used the example before of certifications. It is very simple. You

look at it, and then at the end it gives you—and it says, ‘‘On behalf

of the Federal agency, I certify that this request complies with 5

CFR 13.9.’’ What is it? You know, does it avoid duplication? Does

it get at information that is only necessary? Is this a proper agency

function? These are really simple questions.

So if you have 65 percent of the CIOs filing requests that do not

have any of the supporting information, that is a willpower question. When you go to OMB or OIRA and you ask them about the

data quality—you know, they have done a great job, if you read

their regulations, on good practices or risk assessment, peer review,

it is good. It is well written. And they talk about how you integrate

the science and how you make sure that it is the best-quality information and it is not 10 years out of date. It is not a question of

whether they—it is a question of they don’t implement—they don’t

have the willpower, nor have they set up the mechanisms. And yet

the courts are telling us it is their responsibility. So this is a willpower question, not more laws.

Mr. LANGER. From a procedural aspect of it, I will talk about two

specific examples. No. 1, on the paperwork side of things—and I

will just blanket say, no, I don’t think OIRA has enough resources.

One of the issues—the last time I testified before this subcommittee, I brought a bootleg form, and it is a bootleg form that has not

gone through the approval process yet; nevertheless, it is being

used by agency personnel.

If we are not to sort of—you know, to repeat what Sally said earlier about, you know, garbage in, garbage out, or she says in her

testimony, if you are not getting an accurate picture of what is actually out there and what is actually being used in terms of paperwork, you are not going to get an accurate, you know, sort of idea

of what the total burden is. I think if OIRA had more resources,

they would be about to ferret out those forms much more easily.

And then from a general regulatory standpoint, again the answer

is no, and I point to OIRA’s annual picture of the costs and benefits

of regulation. The fact is I take great stock in Mark Crain’s report,

and the reason why I do is because it is a comprehensive look at

the state of Federal regulation, and it goes along with what a lot

of folks on the outside are saying about the regulatory state. But

when you get to OIRA’s annual snapshot of the costs of regulation,

they are only looking at major rules, and the reason why is because

they don’t have the resources to look beyond those major rules.

So you get these different numbers, and the media looks at them

and they say, OK, OIRA is saying it is X, Crain is saying it is Y,

Crain is clearly overstating it and OIRA is saying—you are saying

that OIRA is understating it. Well, the reason why OIRA is understating it is because they are only looking at a dozen rules, when,

as we know—how many rules did you say there were, Bill?

Mr. KOVACS. 192,000.

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Mr. LANGER. 192,000. So, I mean, if you are looking at 11 major

rules—and for our, for our members, it is never one rule, it is never

one big rule that they can point to. It is always 1,000 little itty,

bitty things they have to do. You have TRI, which takes 100 hours

to do the paperwork for, or 60 hours, depending who you talk to.

You have this, and you have that. So, you know, you are looking

these cumulative things, and to look at the major rules presents a

hugely inaccurate picture. So, yes, more resources for OIRA.

Mr. SHULL. First of all, I have to say that I take the position that

both OIRA and Crain and Hopkins are wildly overestimating regulatory compliance costs, but that is a debate for another time.

I really think that it would be incredibly inappropriate to ask for

more resources devoted to OIRA at this time. I mean, this is a time

in which we are cutting budgets or trying to eliminate programs

like Evenstart, public housing. I mean, at such a time to devote

more resources to the office that focuses on Government paperwork, I think many people in the public would find obscene. There

are just way too many problems that actually this information paperwork reviews would help us determine more about and would

help us focus more of our Government resources on that at such

a time to focus on OIRA’s budget and getting more people to do

more regulatory reviews or more paperwork reviews would not well

serve the public.

It is actually not even clear that if OIRA had more resources and

more staffing that they would actually devote more time to the paperwork clearance process. They have devoted significant amounts

of time to regulatory reviews that they haven’t been asked by Congress to do. Moreover, there is this large universe of activities that

even from the beginning with what has been called full funding,

OIRA still didn’t pay sufficient attention to on the information resource management side of things. And it means that there are a

lot of wasted opportunities.

We could have more things like TRI-ME that makes the Toxics

Release Inventory reporting easier. We could have—I mean, if

OIRA really devoted its resources to information resource management, maybe we would have this business gateway that would

make it easier for businesses to comply with regulations without

reducing the public’s protection that it needs. OIRA is really letting

us down with the resources that it has, and it has been doing that

from the beginning. It has a real job on information resources management, and I think it is time for Congress to send that signal to

OIRA.

Ms. KOONTZ. I just wanted to add that what we found in our

study was that 65 percent of the certifications that were made were

supported with either no—the certification was made without any

support or with only partial support. And I think as some of the

other witnesses have said, this is not all a matter of resources. I

sat down and looked at these files as well, and when you see that

the certification was made and then you go to the place where the

support was supposed to be provided and it is one sentence or it

is very little information, it would not take much time on the part

of OIRA to say that the support was not there for the certification,

we are going to give it back to you, agency, maybe we would like

to see something a little better next time.

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Mrs. MILLER OF MICHIGAN. I appreciate that. I have a number

of other questions, but looking at the hour, it is almost 5 o’clock.

You have been so patient with us this afternoon. We appreciate

that. Rather than asking any additional questions, I might just ask

you generally, is there a question that I should have asked you

that we haven’t that you would like to put on the record? I will

start with Mr. Kovacs. It is a free question for you.

Mr. KOVACS. As long as it is a free question, let me try. You

know, when you look at the regulatory process and what Congress

has done, one of the things that comes to mind is that the system

right now is almost—not almost, it is literally overwhelming. It is

overwhelming to me, and I run an organization that deals with this

all the time. I am sure it is overwhelming to you when you look

at it. And it is overwhelming, frankly, to the agencies.

I think with the tools that you have, like the Performance and

Results Act, with Regulatory Flexibility, you almost, as a Congress,

could turn around and say, look, we have fooled with this for 64

years, and we obviously are playing a game, and the agencies are

winning because they are at the controls—to a large extent, there

is nobody at the control other than what you tell them to do

through the budget, but other than that, once they get their money,

they go home and do what they want.

And I think you could say to them, you know, we are going to

give you so much in appropriations and you are going to have to

really run this as a business; you are going to have to set up your

priorities, and you are going to have to tell us what performance

you are going to go for and what you will expect and what the business community will expect, and that gives you some regulatory

certainty, but we are not going to try to deal with every issue that

affects everything in the world because I think we waste a tremendous number of resources on that.

I guess just the example that I would like to use, if you want to

the EPA—and we have testified about this before. We have this

data quality indication where they have 16 data bases and all the

data bases are inconsistent with each other. They just—they don’t

need 16 data bases that are inconsistent. They need to have the

right answers. And that is where their resources should be.

Second, they have hundreds of models for how they model air

pollution, and water pollution. They don’t need hundreds so that

every staff person has their favorite model and can take it off the

shelf. They need to get the models together, and there is so much

waste. And I don’t want to get into waste, fraud, and abuse, but

what they need to do is focus on what the priorities are, where they

can protect public health the most, and that is where they need to

do it. And if they don’t get everything done but they get the major

things done, that is a huge step forward, and not fight around the

edges.

So that would be my free suggestion. Thank you.

Mrs. MILLER OF MICHIGAN. Thank you. I appreciate that.

Mr. Langer.

Mr. LANGER. You know, it is funny because as I am sitting here

listening to Mr. Shull, I am talking about costs and benefits and

how much we spend and how much time we spend measuring the

costs. And it seems to me that on the other side of this issue there

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is the costs and benefits of what we are doing in terms of reducing

paperwork. And it is not just in the abstract. We are not cutting

costs of small businesses for the sake of small businesses. It is

what we are gaining down the road.

And so we might be cutting certain—we might be expending resources on OIRA at the sake of some other social programs that

many Americans might not find acceptable. But what we are doing

down the road is we are freeing up businesses’ greater time and

greater resources so they can hire those people so that we might

not have to give them, you know, housing allowances because they

are getting a better wage because they are going to have a better

job.

So I want to just leave you with that idea, that we are not just,

again, doing this for the sake of just cutting it, that there are benefits down the road in terms of the American economy. The American Shareholders Association is about to come out with a report

discussing the drag that regulation has on capitalization. The National Association of Manufacturers has come to you and talked to

you about the impact of regulation on the manufacturing sector.

To me, there was never any mystery during the 2004 election as

to why Ohio’s economy tanked. There was a reason why manufacturing fled Ohio, and it had everything to do with the great regulatory state that was created over the last 30 years. There is a direct relationship there.

And in the end, what we are talking about here is prioritization,

as Bill said. We want government to prioritize what is important

and what is not important. One of those things that I like about

OIRA and what they are doing now, they have a great guidance

that they have just put out on comparative risk assessment, which

next to cost/benefit analysis is the hallmark of good regulation.

And, frankly, I want an OIRA that is doing more of that because

the Government needs somebody to look over the shoulders of the

regulated entities, the regulated community to determine whether

or not they are doing the right thing. I think the American people

want that. I think that is the hallmark of good government.

You know, the fact is that down the road we want a government

that protects the rights and interests of the citizens of this country,

and OIRA does that and should do more of that.

Thank you.

Mrs. MILLER OF MICHIGAN. Thank you.

Ms. Koontz.

Ms. KOONTZ. I would just like to summarize some of the things

that we think need to be done from this point on because of the

work we have done.

Obviously, first of all, we do think that Congress should consider

the pilot projects that we mentioned in our report and in doing so

empower agencies to experiment in sort of a controlled fashion

some alternative ways of reducing burden. And we outline our full

statement all the different considerations that would have to go

into that.

Second, the second issue deals with public consultation. Public

consultation is very important in terms of burden reduction, and

one of the things that we saw particularly in the IRS model that

was very effective was this sort of sustained outreach to the afVerDate 11-MAY-2000 12:40 Sep 14, 2006 Jkt 000000 PO 00000 Frm 00132 Fmt 6633 Sfmt 6633 D:\DOCS\29707.TXT HGOVREF1 PsN: HGOVREF1
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fected community, to trade groups, to the public, and others. And

right now most of the public consultation is focused on the use of

the Federal Register, and what we would like to see through pilot

projects or some other means is some experimentation or some use

of alternative ways of reaching the public, including using the Web

sites, which I think the public is becoming much more accustomed

to that being the public—the agency’s face to the public. So we

would like to see more of that.

And, third—and this does not have to do with amending the law.

It has to go with putting in place the kind of rigorous processes in

the agencies that Congress had in mind when they passed the

amendments in 1995, and to ensure that the certifications are

based, in fact, on justifications.

Mrs. MILLER OF MICHIGAN. Thank you.

Mr. Shull.

Mr. SHULL. I would like to make two final points.

One is that there is still a need for more transparency in OIRA’s

implementation of its responsibilities under the Paperwork Reduction Act. It is really unacceptable that in the information age, the

Office of Information and Regulatory Affairs does not have an online docket where the public can go to file comments, to get copies

of the information collections that are under review, and to get copies of OIRA’s feedback to the agencies. That is possible. It is possible, as we know, with the electronic dockets for rulemaking. It

really should be happening now for the Paperwork Reduction Act

and the paperwork clearance process.

The other is that, again, we started by talking about the Paperwork Reduction Act is information resources management law, and

many times in the course of this discussion, we have been talking

about regulation. And I have seen some suggestions from the prepared statements from NFIB and from the Chamber, and I really

want to stress that those ideas would really harm the public. They

are really harmful, and above all, they are really controversial, and

ultimately bipartisan, and would really divert too much attention

away from the crucial issues of information resources management

during the reauthorization of the Paperwork Reduction Act. And I

really want to strongly suggest that this be a clean reauthorization

without extraneous, non-germane riders that would put the public

health and safety at risk.

Mrs. MILLER OF MICHIGAN. Well, again, thank you so very, very

much, all of you. I sincerely appreciate your attendance here at the

hearing today at the committee. I think it has been fascinating

from my perspective, at any rate, and as we move forward with

this reauthorization of the PRA, we certainly will take your input

and suggestions into consideration. And we have some ideas for

even possibly some other legislation that may come out of some of

this testimony as well today.

So, again, we thank you so very, very much. The meeting is adjourned.

[Whereupon, at 5:03 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Tom Davis follows:]

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