A Reality Check on an Empirical Study: Comments on Inside the Administrative State

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to render such decision- making accountable and effective. Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ( OIRA ). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ( the authors ) decided to study presidential control from the perspective of those who experience it-those inside the agencies. They undertook a significant empirical study, interviewing top political appointees who served at the Environmental Protection Agency ( EPA ) during the George H.W. Bush and William J. Clinton Administrations. The authors find, based on their data, that presidential control is more complex and less positive than previous accounts acknowledge and that presidential involvement in rule-making may not sufficiently enhance political accountability and may not achieve regulatory efficacy. Because they acknowledge that the president has a role to play in controlling agency decision-making, they conclude that the model requires reworking and identify next steps in that direction. I served as the Administrator of OIRA during the Clinton Administration, I am unabashedly a proponent of centralized review of rule-making, and I have a very different take on some of the data presented in Bressman & Vandenbergh\u27s article. Nonetheless, I value continued productive dialogue, rather than an adversarial contest, on the issues. My comments in this Article, therefore, are presented as just that-comments, as in the thoughts, observations, or reactions of someone who has been involved in the process-with the hope that they may be useful to those doing follow-on work in this field

On amending Executive Order 12866

During the last six years, there has been a slow but steady change in the process by which regulations are developed and issued—specifically, in the balance of authority between the federal regulatory agencies and the Office of Management and Budget

A Reality Check on an Empirical Study: Comments on Inside the Administrative State

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to render such decision- making accountable and effective. Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ( OIRA ). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ( the authors ) decided to study presidential control from the perspective of those who experience it-those inside the agencies. They undertook a significant empirical study, interviewing top political appointees who served at the Environmental Protection Agency ( EPA ) during the George H.W. Bush and William J. Clinton Administrations. The authors find, based on their data, that presidential control is more complex and less positive than previous accounts acknowledge and that presidential involvement in rule-making may not sufficiently enhance political accountability and may not achieve regulatory efficacy. Because they acknowledge that the president has a role to play in controlling agency decision-making, they conclude that the model requires reworking and identify next steps in that direction. I served as the Administrator of OIRA during the Clinton Administration, I am unabashedly a proponent of centralized review of rule-making, and I have a very different take on some of the data presented in Bressman & Vandenbergh\u27s article. Nonetheless, I value continued productive dialogue, rather than an adversarial contest, on the issues. My comments in this Article, therefore, are presented as just that-comments, as in the thoughts, observations, or reactions of someone who has been involved in the process-with the hope that they may be useful to those doing follow-on work in this field

Hidden in Plain Sight: Why Regulations Need a Fresh Look

This year is the 10th anniversary of The Regulatory Review. Anniversaries are an occasion to celebrate and reflect on how far The Review has come, and where it might be going. There is obviously much to celebrate; in ten short years, you have built an “institution” that is widely read, cited, and viewed as authoritative by people of all stripes and all political persuasions. That is high praise indeed in our fraught world of today. But as you reflect on your accomplishments, have you given much thought to your name, The Regulatory Review? I raise the question of your name because regulations are so out of favor, criticized, denigrated, even despised by “right”-thinking people. In days past, regulations were once accepted, even welcomed, to set things right: But if regulations were once applauded—or even tolerated—that is no longer the case. The conventional wisdom today, at least by all appearances from speeches, news stories, blogs, books, and other media, is that regulations are costly, burdensome, and inconvenient—if not dangerously disruptive—to markets and life generally. We are told they inhibit innovation, impair our competitiveness, destroy jobs, and infringe on our liberties. Is that not what you hear on the campaign trail, at least from some candidates, every election cycle? Is that not what you hear in the halls of the U.S. Congress? Is that not what you hear from the White House? How did we get here? Why are regulations so unpopular with the people? Part of the explanation may be the normal ebb and flow of popular opinion. After the 60s and 70s—with the creation of the U.S. National Highway Traffic Safety Administration, the U.S. Environmental Protection Agency, and other regulatory agencies—we elected President Ronald Reagan, who vigorously campaigned against the government, and whose antipathy to regulations was well known and epitomized in his Executive Order 12,291. That order established the Office of Management and Budget’s centralized review of all proposed and final draft regulations and set decisional criteria for approval of those drafts—namely, requiring a regulation’s benefits to exceed its costs and to maximize net societal benefits. Then came President Bill Clinton. As now-Justice Elena Kagan wrote in her seminal piece for tenure at Harvard Law School, the Clinton Administration returned to a regulatory (rather than a deregulatory) approach, even though the benefits still always justified the costs, especially in the areas of environment, health, and safety. The pendulum swung back with President George W. Bush, particularly with environmental, health, and safety regulations. The Bush Administration had a deregulatory agenda, although the total number of new regulations issued during that Administration was nonetheless high because of all the regulations in the aftermath of 9/11, such as those strengthening the doors of cockpits, banning substances on airplanes—including liquids, gels, and anything that could be used as a weapon—and expanding the collection of information from citizens, notwithstanding privacy concerns. Then came President Barack Obama and the resurgence of new regulations in the face of intransigence (or gridlock) by Congress, especially with respect to: And now we have President Donald J. Trump, who at one point vowed to eliminate 75 percent of the regulations on the books, and whose initial chief strategist—Steve Bannon—advocated the “deconstruction of the administrative state.” Incidentally, the Trump Administration is not only hard at work trying to modify or rescind Obama-era regulations, but it is also adopting a “more lenient” enforcement policy of those regulations still on the books. For example, the Trump Administration has declined to impose fines at nursing homes on a per-incident, rather than a per-day basis, a move that has had grave implications with the outbreak of the coronavirus crisis. There is also potentially a newly resurgent player on the field: the U.S. Supreme Court, which—with two new appointees and one more waiting in the wings—is considering resurrecting the non-delegation doctrine (only administrative law lawyers who are deep in the weeds know this one) or limiting deference to agencies supposedly to reflect better the founding fathers’ perception of good government. The consequences of such judicial activity, if it were to follow the course urged by the more conservative Justices, would likely be fewer regulations and a higher hurdle for judicial affirmance of those regulations that are ultimately challenged in the courts. Are these developments part of the historic ebb and flow we have seen in the public’s attitude about regulations? Is this period we are in just part of a normal process? I think not. With great regret, I do not think there is anything normal about where we are. The antagonism to regulations today is palpable, and the rhetoric is all out of proportion to reality. Throughout the Reagan and both Bush Administrations, there may have been a strong disinclination to regulate, but there was also a recognition that some regulations were salutary. Think of President Reagan’s decision to require the removal of lead from gasoline, President George H.W. Bush’s leadership in securing passage of the 1990 amendments to the Clean Air Act, and President George W. Bush’s advocacy for, and issuance of regulations implementing, the No Child Left Behind Act. Today, with the Trump Administration, there is no “good” regulation—except perhaps to limit women’s reproductive rights and further restrict immigration. Regulations on businesses, financial institutions, or health care providers are presumed illegitimate and inappropriate, and the Administration thinks they should be reviewed and rescinded. If I am correct that there is something other than the normal ebb and flow at play, we ought to try to understand where the reason—or passion—is coming from so that we can at least consider whether there is something that could be done to rectify or ameliorate the situation. In that vein, one possible explanation, or at least a contributing factor, comes from political science and economics—namely, what is commonly known as the “collective action” problem. The theory posits that, when benefits are widely dispersed and costs are directed to a specific few, the beneficiaries are less able to mobilize support for their interests because of the “free rider” problem that occurs as groups get larger. In contrast, those who bear the burden are singular in their focus. Social scientists have observed this phenomenon in numerous areas where there are pure public goods, such as protection of air and water quality. The voices of those who appreciate the benefit are muted, while the opponents of the regulations (the polluters) howl. As a result, we can barely hear the drowned-out voices of any beneficiaries who try to speak out. Meanwhile, the critics’ cries for modification or repeal hog the airways and set the agenda. Not surprisingly, regulations get a bad name. Another possible explanation comes from the field of psychology and is known as “selective abstraction,” which was originally developed by famed psychiatrist Aaron Beck. The theory refers to the process of focusing on one detail while ignoring more relevant ones, and thinking of a whole experience as defined by that one element. To compound matters, people tend to focus only on the negative aspects of an experience. In other words, people tend to pocket or take for granted what is good for them, or from which they derive benefit, but that which is costly, or irritating, or hurtful to them remains a sore spot and never seems to scab over and heal. So we really do not think much about safe and efficacious drugs, sanitary hospitals, seatbelts or airbags, or well-performing government programs or well-functioning markets—unless and until something goes wrong. But we do harp on the absurd complexity of tax forms, or the long and complicated building and occupancy permit applications, or maybe how unconscionably difficult it is to sign up for health benefits or student loans. And when politicians call for cutting red tape or eliminating burdensome regulations, people join the chorus, forgetting the good that regulations can offer. There is also a possible third contributor to this phenomenon, which has always bothered me. Start with the politicians. Republicans, at least since President Reagan, have consistently attacked regulations—whether on the stump or in office. It is red meat for their audiences. Blame the government, blame Washington bureaucrats, blame regulations, blame red tape for all that ails you. A real crowd pleaser. A great applause line. Usually politicians are not very specific as to which regulations they want to eliminate. They just attack all regulations with a broad brush. What is even more noteworthy is that very few answer this attack. When was the last time there was a full-throated defense of the administrative state or of regulations generally? Democrats talk about health care as a human right, and a living wage as an entitlement, but they do not spell out that these benefits come first as legislation and then as implementing regulations. They too often fail to point to any of the successes of the administrative state—ingredient information or warning labels on food and medicine packaging, clean air to breathe, financial disclosures, and fair competition in the market, among others. And, significantly, not only do politicians rarely speak in defense of regulations, but most people in this country do not even know where regulations come from. (You know that Congress authorizes agencies to act; agencies are not free to follow their own whims.). Nor do most people know how regulations are developed—with extensive scientific, engineering, and economic analyses, and with elaborate processes for participatory engagement by those affected. And, most importantly, the public does not know what good regulations do for us. One of my deep frustrations is that the unbounded enthusiasm and support for STEM (science, technology, engineering, and math), although welcome, came at a cost. Gone from many schools is serious attention to physical education, music, art, and civics. At least a whole generation of students may have been taught about the military and how we defended our shores and brought an end to wars in Europe and the Far East in the mid-twenty-first century. But they have not learned much, if anything, about the civil service, the people who go to work every day in federal, state, and local governments to make their lives better. Although I wear a “D” jersey, I do not see this as a partisan issue. Indeed, let me invoke Chief Justice John Roberts here. In his most recent annual report, he asked the judiciary to “promote public confidence in the judiciary, both through their rulings and through civic outreach.” So too, Justice Sandra Day O’Connor used her prestige and authority after she stepped down from the Supreme Court to try to revive civics in our schools. Justice O’Connor even founded a technology company to develop an app that taught civics as a game, not unlike how the old School House Rock song about how a bill becomes a law had educated earlier generations of children. In any event, administrative law scholars and practitioners owe the same to the American public. The American public does not like or trust regulations. Who better, though, than lawyers and legal scholars to let them know what they are missing? Who better to talk about how to make the regulatory process better, without throwing out the baby with the bath water? Who better to provide the public with a roadmap, using your favorite tech platforms, working in person with individuals or groups—at schools or community centers—or conversing with friends, relatives, and even strangers, to help them understand and appreciate this invaluable tool in democracy’s toolkit? Think positively, and use the marvelous education you are receiving here at Penn, and your in-depth knowledge of the reality of regulations, to spread the word. Yes, proselytize if you will, but carry forward

Benefit-Cost Analysis Should Promote Rational Decisionmaking

If you are reading this essay, you probably do not need to be persuaded of the merits of benefit-cost analysis. But it may nonetheless be useful to remember the extended history of this approach to rational decision-making to better evaluate what may or may not be happening now under the Trump Administration. Use of benefit-cost analysis in rulemaking is often traced back to Presidents Richard Nixon, Gerald Ford, and Jimmy Carter, who each had an embryonic form of centralized review that used economic analysis for evaluating regulatory proposals. The election of President Ronald Reagan, who issued Executive Order 12,291 within a month of his inauguration, brought a dramatic change in the role of benefit-cost analysis in regulatory development. The order not only established systematic centralized review for all regulatory actions by executive branch agencies, but it also specified that draft regulatory actions would not be issued unless their potential benefits to society would outweigh the potential costs to society and that the regulatory options agencies selected would maximize net benefits to society. So it continued for the 12 years under Presidents Reagan and George H.W. Bush. Yet this step was not met with a unanimous, enthusiastic embrace of benefit-cost analysis. Indeed, in the late 1980s and early 1990s, there was substantial unease and often strident criticism of it. For many officials and observers, benefit-cost analysis was viewed as a tool—that is, an insidiously designed device—for deregulation. It appeared to critics to demand an inherently unequal equation, with costs being so much more easily quantifiable than benefits, and to foster an unaccountable, opaque process that displaced the decisionmaking of the regulatory agencies to which Congress had delegated decision-making authority. The Office of Information and Regulatory Affairs (OIRA) process was sometimes portrayed as a “big black hole.” With the election of President William Clinton, many observers thought he would revoke the “dreaded” Executive Order 12,291, scrap the whole system, and disband OIRA. But, in fact, had centralized review and the use of economic analysis not existed, it would have had to be invented. The virtues of analysis—as robust as needed, commensurate with the significance of the decision being made—are, to me, self-evident: the regulator must think through, with all available data and in a systematic and disciplined way, all the intended and unintended consequences of a proposed rule. An end product that reflects such informed consideration will necessarily be better than one that does not. The vices, or more accurately the limitations, of the original construct could be—and I think were—addressed by President Clinton’s Executive Order 12,866. Although that executive order retained the essential analytical framework of benefit-cost analysis and the net-benefit-to-society test, it emphasized that benefits and costs that cannot be quantified are nonetheless essential to consider. The term “outweigh,” which suggests more precision than might exist, was replaced with “justify”—that is, benefits should justify the costs of a new regulation. In addition, the Clinton order emphasized that the agencies were the repositories of the substantive expertise, a point that is repeated twice in the opening paragraphs. The order also limited review to “significant” regulatory actions and it incorporated various provisions for transparency and accountability—less than a black hole. Is Executive Order 12,866 perfect? No, not much is. But it has withstood the test of time. President George W. Bush amended some procedural provisions of President Clinton’s order, but he left in place the fundamental notion of benefit-cost analysis as the framework for regulatory decision-making. So too, President Barack Obama added some provisions in his own executive order but, again, maintained and even reinforced the basic principles. Now, we have President Donald J. Trump. What is his stance and what is he likely to do? The closest analogue for President Trump appears to be President Reagan. On the campaign trail, Reagan, like Trump, criticized regulations and promised to reduce regulatory burdens. And President Reagan, like President Trump, issued several executive orders regarding regulations within the first few months of his presidency. But even though there are similarities between the two, there are also significant differences that are troubling for present purposes. The most obvious difference stems from their executive orders. President Reagan’s order was based on textbook economic principles—the use of benefit-cost analysis to support rational decision-making. President Trump’s Executive Order 13,771—calling for agencies to rescind two existing regulations of comparable costs for every new regulation they issue—mentions “costs” 17 times and never mentions “benefits,” and it does not appear to be based on any principle other than eliminating regulations, no matter if the net benefits to society of the condemned regulations are significant. In the same vein, President Trump’s Executive Order 13,777, directing agencies to identify regulations as candidates for elimination, is similar to President Reagan’s establishment of a “Presidential Task Force on Regulatory Relief.” But whereas the real work of the Task Force was to be done by OIRA—which is governed largely by economic principles—it appears that the deregulation effort in the Trump Administration has been pushed back to the rulemaking agencies themselves, which are left to make decisions to “deregulate” based on who knows what. If we are to believe some of the stories we hear, the agencies are basing their decisions not on economic principles but rather on what the regulated entities find the most objectionable or irritating. Although I have often expressed great confidence in the analytical work of OIRA (as I do here), it bears noting that there have been several recent developments that raise red flags for the integrity of benefit-cost analysis and centralized review in this Administration. The U.S. Department of Labor recently issued a notice of proposed rulemaking seeking to rescind an Obama-era rule pertaining to how customers’ tips are pooled and distributed among employees and employers. The proposal reportedly did not include an unfavorable internal analysis showing that the proposed rescission could cost workers billions of dollars. Several months earlier, when the U.S. Environmental Protection Agency announced its intention to repeal the Clean Power Plan, the agency adjusted the discount rate and the treatment of energy savings to reduce the estimated costs of repealing the rule and ignored some of the Plan’s well-documented health benefits to justify the repeal on cost-benefit grounds. Both of these episodes are troubling for similar reasons: they undermine faith in the methodology of benefit-cost analysis and lend credence to those who say that it is simply a tool that can be manipulated to justify whatever the policy makers decide. These two examples may well be outliers, but it has yet to be determined how benefit-cost analysis will fare in this Administration

Reinvigorating the Paperwork Reduction Act

The Paperwork Reduction Act (PRA) sounds like possibly the driest, most boring, most inconsequential statute on record. It governs how agencies can gather information from the public—or require third-party disclosures by the public—through what are known as information collection requests. But there are important competing interests beneath the Act’s incredibly detailed provisions. Too many requests can impose an intolerable burden on the public, and too cumbersome a process for approving those requests in advance can reduce the availability of valuable information for government decision-makers. There is a way forward, but it requires changes from both the agencies and the White House Office of Management and Budget (OMB)—changes that neither has been inclined to undertake. The government’s need for information is enormous. It requires data to make informed policy decisions, monitor compliance with existing regulations, ensure accountability with statutory qualifications for various benefit programs, evaluate ongoing mandatory and voluntary governmental activities, obtain customer satisfaction feedback, and more. Yet every request for information imposes costs in terms of time and resources that add up to an extraordinary amount: currently almost 10 billion paperwork burden hours annually. Almost 80 percent of that burden belongs to the Internal Revenue Service, a product of a very complicated tax code that doles out deductions and credits for documented transactions. But the remainder is still significant and a chronic source of complaint from those who must respond to the information collection requests, especially small businesses, individuals, and even state and local governments. Each government agency has little incentive to curb its own demand for information: Agency officials often rationalize that asking just a few more questions could reveal interesting and possibly useful information. So, as with many things in the government, the PRA establishes a process for independent review at the agency itself and a second process for review at the White House Office of Information and Regulatory Affairs (OIRA) within OMB. The extended procedural steps in that two-tiered review process—including two distinct periods for public comment—not only jeopardize the certainty of ultimate approval, but also add greatly to the timeline for gathering information. Not surprisingly, many agency personnel see the PRA as a barrier to gathering information that would enable them to do their jobs better. And so the debate rages, or perhaps simmers, within Washington—truly, an inside-baseball phenomenon. The agencies complain that the PRA precludes them from getting needed information on a timely basis, and defenders of the PRA complain that agencies are both undisciplined and unresponsive to appeals for restraint in imposing burdens on the public. Most of these allegations are cast in sweeping terms—all or nothing, anti-PRA or pro-PRA. Unleash the agencies to do what they want, or keep a tight hold with a multi-layered review process on any and all information collection requests. But it does not have to be that way. There is a sensible way forward. When Congress passed new and greatly improved amendments to the Paperwork Reduction Act in 1995, OMB issued guidance to the agencies advising them about steps to take in their review and in OIRA’s review. The guidance also described procedures under which OMB could delegate approval authority to agencies that implemented a fair, independent process to review information collection requests. OMB stated that these delegations would be “an acknowledgement that the agency has met, and is able to continue to meet, the spirit and substance of the PRA.” This was a door opener, a carrot, an incentive for agencies to create appropriate internal review processes. At the time, there were few, if any, delegations made to the agencies, in large part because most agencies had little, if any, capacity to review information collection requests independently of the requesting office. This was similar to agencies’ somewhat limited capacity to undertake serious cost-benefit analyses of their regulatory proposals: Some agencies did have solid economic expertise and support, but others did not. Since the 1990s, most, if not all, agencies have developed internal expertise and capacity to do cost-benefit analyses. Some of the least capable agencies at the time are now able to prepare very competent regulatory impact analyses. Similarly, OIRA in the mid-1990s expected agencies to develop internal resources and capabilities to carry out PRA reviews effectively. Subsequent statutes like the Information Technology Management Reform Act of 1996 and the E-Government Act of 2002 should have helped these efforts—these Acts, respectively, required each agency to name a chief information officer and established a chief information officers council to provide advice on information management policies. But the expected increased delegation for PRA review to the agencies has never materialized. During the George W. Bush Administration, the U.S. Government Accountability Office published a report that found many agencies were not complying with provisions of the PRA, faulting both agencies’ internal processes and the relevant OMB guidance. OIRA acknowledged that the guidance was outdated and said it would explore alternative approaches to ensure compliance with the PRA. But nothing was done. Then, President Barack Obama’s OIRA sought to clarify agency obligations under the PRA and to streamline OMB approval for some types of information collections. All good, but there was still no movement towards greater delegation. Was OIRA reluctant to part with its power? Were agencies less than successful in developing their internal competence? It is difficult to say from the outside. It may even be difficult to gauge the situation accurately from the inside. But whatever the reason, the plant did not take root and begin to grow. And that is the situation today. The failure of agencies to develop the capability to review and approve their own information collection requests and the failure of OIRA either to push or to entice them to move in that direction has been a lost opportunity. The PRA should be administered to enable agencies to meet the government’s legitimate need for information without unduly burdening those who have and can supply that information. It deserves another look

Reinvigorating the Paperwork Reduction Act

The Paperwork Reduction Act (PRA) sounds like possibly the driest, most boring, most inconsequential statute on record. It governs how agencies can gather information from the public—or require third-party disclosures by the public—through what are known as information collection requests. But there are important competing interests beneath the Act’s incredibly detailed provisions. Too many requests can impose an intolerable burden on the public, and too cumbersome a process for approving those requests in advance can reduce the availability of valuable information for government decision-makers. There is a way forward, but it requires changes from both the agencies and the White House Office of Management and Budget (OMB)—changes that neither has been inclined to undertake. The government’s need for information is enormous. It requires data to make informed policy decisions, monitor compliance with existing regulations, ensure accountability with statutory qualifications for various benefit programs, evaluate ongoing mandatory and voluntary governmental activities, obtain customer satisfaction feedback, and more. Yet every request for information imposes costs in terms of time and resources that add up to an extraordinary amount: currently almost 10 billion paperwork burden hours annually. Almost 80 percent of that burden belongs to the Internal Revenue Service, a product of a very complicated tax code that doles out deductions and credits for documented transactions. But the remainder is still significant and a chronic source of complaint from those who must respond to the information collection requests, especially small businesses, individuals, and even state and local governments. Each government agency has little incentive to curb its own demand for information: Agency officials often rationalize that asking just a few more questions could reveal interesting and possibly useful information. So, as with many things in the government, the PRA establishes a process for independent review at the agency itself and a second process for review at the White House Office of Information and Regulatory Affairs (OIRA) within OMB. The extended procedural steps in that two-tiered review process—including two distinct periods for public comment—not only jeopardize the certainty of ultimate approval, but also add greatly to the timeline for gathering information. Not surprisingly, many agency personnel see the PRA as a barrier to gathering information that would enable them to do their jobs better. And so the debate rages, or perhaps simmers, within Washington—truly, an inside-baseball phenomenon. The agencies complain that the PRA precludes them from getting needed information on a timely basis, and defenders of the PRA complain that agencies are both undisciplined and unresponsive to appeals for restraint in imposing burdens on the public. Most of these allegations are cast in sweeping terms—all or nothing, anti-PRA or pro-PRA. Unleash the agencies to do what they want, or keep a tight hold with a multi-layered review process on any and all information collection requests. But it does not have to be that way. There is a sensible way forward. When Congress passed new and greatly improved amendments to the Paperwork Reduction Act in 1995, OMB issued guidance to the agencies advising them about steps to take in their review and in OIRA’s review. The guidance also described procedures under which OMB could delegate approval authority to agencies that implemented a fair, independent process to review information collection requests. OMB stated that these delegations would be “an acknowledgement that the agency has met, and is able to continue to meet, the spirit and substance of the PRA.” This was a door opener, a carrot, an incentive for agencies to create appropriate internal review processes. At the time, there were few, if any, delegations made to the agencies, in large part because most agencies had little, if any, capacity to review information collection requests independently of the requesting office. This was similar to agencies’ somewhat limited capacity to undertake serious cost-benefit analyses of their regulatory proposals: Some agencies did have solid economic expertise and support, but others did not. Since the 1990s, most, if not all, agencies have developed internal expertise and capacity to do cost-benefit analyses. Some of the least capable agencies at the time are now able to prepare very competent regulatory impact analyses. Similarly, OIRA in the mid-1990s expected agencies to develop internal resources and capabilities to carry out PRA reviews effectively. Subsequent statutes like the Information Technology Management Reform Act of 1996 and the E-Government Act of 2002 should have helped these efforts—these Acts, respectively, required each agency to name a chief information officer and established a chief information officers council to provide advice on information management policies. But the expected increased delegation for PRA review to the agencies has never materialized. During the George W. Bush Administration, the U.S. Government Accountability Office published a report that found many agencies were not complying with provisions of the PRA, faulting both agencies’ internal processes and the relevant OMB guidance. OIRA acknowledged that the guidance was outdated and said it would explore alternative approaches to ensure compliance with the PRA. But nothing was done. Then, President Barack Obama’s OIRA sought to clarify agency obligations under the PRA and to streamline OMB approval for some types of information collections. All good, but there was still no movement towards greater delegation. Was OIRA reluctant to part with its power? Were agencies less than successful in developing their internal competence? It is difficult to say from the outside. It may even be difficult to gauge the situation accurately from the inside. But whatever the reason, the plant did not take root and begin to grow. And that is the situation today. The failure of agencies to develop the capability to review and approve their own information collection requests and the failure of OIRA either to push or to entice them to move in that direction has been a lost opportunity. The PRA should be administered to enable agencies to meet the government’s legitimate need for information without unduly burdening those who have and can supply that information. It deserves another look

The NII a Year Later -- Progress in Building the Information Highway

The Samuel Lazerow Memorial Lecture was given on November 1, 1994 by Sally katzen, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC. The Lazerow lecture was presented by the School of Library and Information Science, University of Pittsburgh, the Carnegie Library of Pittsburgh, and the University of Pittsburgh Library System. It was sponsored by the Institute for Scientific Information, Philadelphia