[Congressional Record Volume 141, Number 64 (Thursday, April 6, 1995)]
[Senate]
[Pages S5273-S5277]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PAPERWORK REDUCTION ACT OF 1995--CONFERENCE REPORT

  Mr. THOMAS. Mr. President, this request has been agreed to by both 
the minority and the majority leaders.
  I ask unanimous consent that the Senate now turn to the consideration 
of the conference report to accompany 
[[Page S5274]] S. 244, the paperwork reduction bill; that the 
conference report be agreed to; and that the motion to reconsider be 
laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendment of the House to the bill (S. 244) 
     to further the goals of the Paperwork Reduction Act to have 
     Federal agencies become more responsible and publicly 
     accountable for reducing the burden of Federal paperwork on 
     the public, and for other purposes, having met, after full 
     and free conference, have agreed to recommend and do 
     recommend to their respective Houses this report, signed by a 
     majority of the conferees.

  (The conference report is printed in the House proceedings of the 
Record of April 3, 1995.)
  Mr. ROTH. Mr. President, I am pleased to state that our bipartisan 
efforts to strengthen the Paperwork Reduction Act, which began in the 
last Congress, has now in this Congress become bicameral. The conferees 
were able to resolve the differences between the Houses so that before 
the week is over the Congress will have concluded its work on a bill 
that significantly improves upon current law.
  As my colleagues know, the 1980 Act established within OMB the Office 
of Information and Regulatory Affairs [OIRA]. That offices was directed 
to review the paperwork burdens created by the Federal Government. All 
collections of information from 10 or more persons must, with very few 
exceptions, be reviewed by OIRA for their need and practical utility 
and must receive a clearance number before they can become effective.
  The fundamental purpose of this review process is to reduce the 
paperwork burden on the American public. Hence, the name given to this 
legislation. However, before this legislation now pending, because of 
the Supreme Court decision in Dole versus Steelworkers, not all 
paperwork burdens caused by the Federal Government had to be reviewed 
and cleared. The Court said that the act applied to paperwork that 
flowed from a private party to the Federal Government and not to 
instances where the Federal Government required a person to provide 
information to another person.
  As a policy matter, I have never favored the distinction made in the 
Dole case. The conference report makes clear that neither House of 
Congress accepts this distinction. The Dole case is overturned, and the 
scope of OIRA's review authority is, as a consequence, enlarged by 50 
percent. This change marks a major breakthrough in our paperwork 
reduction efforts.
  In noting the major effect of this legislation, I do not mean to 
imply that it was a major issue with the House. It was not. In fact, in 
view of the breadth of this legislation, the issues in disagreement 
were relatively few.
  Perhaps the most significant disagreement concerned the duration of 
the authorization of appropriations for OIRA. The Senate bill provided 
$8 million for each of the next 5 years, while the House had an 
indefinite and permanent authorization. The conferees compromised on 
the Senate version for an additional year. This 6-year authorization 
will prompt us to review the legislation at some future time, which was 
the underlying rationale of the Senate provision.
  The House argued that OIRA has clearly been established as a matter 
of policy, if not in law, as a central organ of the Federal Government 
and a key instrument of current regulatory reform efforts. The Senate 
responded that it was not its position to sunset either the Paperwork 
Reduction Act or OIRA. The lack of a permanent authorization of 
appropriations for OIRA has never before, even when it has expired, 
caused OIRA to terminate.
  I agree that OIRA has become a necessary and permanent
   policeman of paperwork and regulation. But I also continue to hold 
my longstanding commitment to limited authorizations. Six years is a 
substantial period of time. A lot can change in 6 years. In 2001, it is 
entirely appropriate that Congress review the status of our paperwork 
reduction efforts and the role of OIRA.

  A second major issue of disagreement between the Houses concerned the 
annual percentage goals for Governmentwide reductions in paperwork 
burdens. The Senate set a 5 percent goal for each of the next 5 years. 
The House set a 10 percent annual goal forever. Of course, all the 
conferees would like to see substantial reductions. The question was a 
practical one: what goal was realistically achievable? Once we had 
decided on a 6-year timeframe, the issue became more focused. While the 
House conferees made clear that their 10 percent goal was to be set 
annually with respect to a new paperwork baseline that would include 
new congressional paperwork mandates, Senate conferees were still 
concerned that 10 percent a year for 6 years was unrealistic. After 
some discussion, it was agreed that the paperwork reduction goals of 
the Federal Government should be set at 10 percent for each of the 
first 2 years and 5 percent for each of the other 4 years.
  A third major issue of disagreement concerned the House provision 
which permitted OIRA to charge the users of Government information more 
than the cost of disseminating such information. While there might be 
some instances where such an authority would be appropriate, the House 
provision was not crafted in any such limited manner. The Senate 
conferees thought it was a little late in the legislative process to 
start isolating circumstances where charges in addition to 
dissemination costs might be appropriate. Not having addressed this 
issue at all in the Senate bill, the Senate conferees asked that the 
House recede. And the House agreed.
  Mr. President, the topic that captured more time in conference 
discussion than any other was that of redrafting section 3512, which 
provides public protection against agency noncompliance with the 
Paperwork Reduction Act. Since 1980, the act has provided a fundamental 
protection to every citizen that he or she need not comply with, or 
respond to, a collection of information if such collection does not 
display a valid control number given by OMB as evidence that the 
collection was reviewed and approved by OIRA. And if the collection 
does not display a valid control number, the agency may not impose any 
penalty on the citizen who fails to comply or respond.
  In order to strengthen and underscore congressional desire to protect 
the public, the conferees included a definition of penalty at the end 
of section 3502 to make clear that the term not only applies to the 
payment of a fine but also to the denial of a benefit. What this means 
is that if an agency does not comply with this act, it is in serious 
trouble. If an agency does not act on a citizen's request for a 
Government benefit because the citizen did not complete a form that 
fails to display a valid OMB clearance number, it is the agency--not 
the citizen--that
 stands in violation of law. Once this is determined, the agency would 
not only owe the citizen the benefits due but also perhaps interest as 
well.

  Now there are some who may grumble that this provision is too weak. 
Since 1980, section 3512 has included an alternative clause of public 
protection requiring the collection of information to state that if it 
did not display a valid OMB control number, it was not subject to the 
act. Some may view that second clause as a tautology. That is how 
agencies have interpreted it. But some others have believed that it 
requires: First, that every effort by the Government to collect 
information, even those not covered by the act, be accompanied by a 
statement advising that such collection is not required to have a 
clearance number; and second, that consequently a failure to provide 
such advice would subject the collection of information to the public 
protection sanctions of section 3512, even though the collection was 
not subject to the act.
  Now the act specifies in section 3518 certain exceptions from the 
act. A subpoena is one example. Also, by definition, a collection of 
information falls under the act only if 10 or more persons are 
involved. My view is that since a subpoena is not covered by the act's 
clearance requirements and since a request for information made to nine 
or fewer individuals is likewise not covered, then in such cases the 
sanctions of section 3512 have no application. It is simply foolish, in 
my opinion, to require an agency to inform a person it is 
[[Page S5275]] dealing with about the laws that do not apply.
  So with the concurrence of all the Senate conferees, this second 
clause was rewritten to be both feasible and useful. It now requires 
the agency to inform the person who is to respond to collections of 
information governed by the act that such person is not required to 
respond to the collection of information unless it displays a valid 
control number from OMB. This statement of how section 3512 operates to 
protect the public technically need not appear on the collection of 
information itself. That is because the term collection of information 
includes more than Government requests for information. An example of 
an additional item included within the definition might be a 
recordkeeping requirement. In such case, the collection of information 
might not be a Government form but instead a legal requirement about 
which the agency provides instructions.
  While the conferees provided some flexibility regarding the second 
clause of section 3512(a), it is their intention that the agency inform 
those who are to respond in a manner reasonably calculated to bring the 
matter to their attention. If the collection is a Government form to be 
completed and submitted by a person, then that form should bear the 
necessary statement to fulfill the requirements of section 3512(a)(2). 
If the collection concerns something else, such as recordkeeping, then 
the agency should make it section 3512(a)(2) statement as clearly as 
possible in some document, such as instructions
 regarding such recordkeeping.

  Moreover, in section 3512(b) the conferees made clear that the 
protections of section 3512 may be raised at any time during the life 
of the matter. The protections cannot be waived. Failure to raise them 
at any early stage does not preclude later assertion of rights under 
this section, regardless of any agency or judicial rules to the 
contrary.
  I believe that as a result of our changes to section 3512 we have 
substantially strengthened that section and, in turn, the entire act. 
Any agency that fails to comply with the clearance provisions of this 
act does so at its peril. Any collection of information, unless 
excepted by this act, must be cleared by OMB. And this applies to all 
agencies, including independent agencies.
  Neither the House nor the Senate sought to change the policy of the 
1980 Act that all agencies, including independent agencies, have their 
information collections, even those by regulation, subjected to OMB 
review and approval. So while exceptions are made for certain law 
enforcement and intelligence activities, none is made for duck hunting 
or the safety and soundness regulations of banking agencies, 
Apparently, no difficulties have arisen in the last 15 years under the 
1980 Act. So no change is made from current law.
  The final major item of disagreement concerned the standard by which 
regulations which include information collections are judged. Under 
current law, OMB reviews such agency rules and comments thereon 
applying the standard of section 3508--whether the collection is 
unnecessary) and thereafter approves or disapproves after receiving the 
agency's response to OMB's comments. By what standard does OMB decide? 
Current law allows OMB to disapprove if the agency's response was 
unreasonable. The House sought to tidy up by cross-referencing section 
3508 rather than using the current law's formulation of unreasonable.
  As a practical matter, there is no real difference between whether 
the agency's response to OMB's comments are unreasonable in light of 
OMB's views on whether the agency's collection is unnecessary under 
section 3508 and whether the collection is unnecessary under that 
section. Since both standards--unreasonable and unnecessary--lack 
precision, there is nothing in current law to stop OMB, unless 
persuaded by the agency's response, from disapproving a regulatory 
collection because it would be unnecessary under section 3508.
  Some of my Senate colleagues believe that the House position 
undermined an important difference--a zone of deference to be accorded 
agency rulemaking. The argument is that OMB may disapprove a regulation 
only if the agency's response is unreasonable even if OMB believes that 
collection is unnecessary. While the argument tracks the words of 
current law, I am not persuaded that the zone of deference has any 
dimension to it at all. Nor do I see what benefit would derive from 
making a distinction between collections undertaken as part of a 
regulation and those outside of a regulation, which are
 covered only by section 3508. Either way, if the collections are 
unnecessary, they should be disapproved. What is the compelling 
argument for allowing unnecessary collections to burden the American 
public simply because the agency's response was not unreasonable?

  Ultimately, the conferees decided to keep current law because it 
satisfied more conferees then did the House version's unambiguous 
language. Current law satisfies the majority of conferees who believe 
that nothing stops OMB from disapproving a regulatory collection found 
to be unnecessary while it allows others to argue that some 
metaphysical zone of deference is preserved for regulatory collections.
  Mr. President, when we last came to the floor on S. 244, the Senate 
adopted several amendments that did not directly bear upon the 
Paperwork Reduction Act. Only one of those amendments survived the 
conference. That amendment by Senator Coverdell sought to reduce small 
business compliance burdens with the Quarterly Financial Report Program 
at the Bureau of the Census. With some minor modifications, this 
provision has been transformed in conference from a pilot project to a 
permanent program change. The provision, as modified, has the support 
of its original sponsor and of the Census Bureau.
  Two amendments dealing with the elimination of unnecessary reports to 
Congress--one by Senator McCain and one by Senator Levin--were dropped 
at the insistence of the House. Conferees had received correspondence 
from various congressional committees and agencies raising technical 
and other concerns about these provisions. Representative Clinger, who 
chaired the conference, indicated that he favored the purpose of the 
reports-elimination provisions but could not hold up the Paperwork 
Reduction Act while various concerns with these nongermane amendments 
were addressed. He said he would introduce a companion bill in the 
House and would seek to move the legislation there.
  Finally, an amendment that expressed the sense of the Senate 
regarding the Oregon option was also dropped in conference at the 
insistence of the House conferees.
  Mr. President, the Paperwork Reduction Act of 1995 passed both Houses 
on rollcall votes with not a single dissenting voice. I am pleased to 
report that the conferees have resolved all differences between the two 
bodies with the result that we have even a stronger bill than before. 
It should be noted that we could not have moved so swiftly to passage 
and through conference without the bipartisan cooperation of Senator 
Nunn, the chief sponsor of S. 244, and Senator Glenn, the ranking 
minority member of the Committee on Governmental Affairs. I commend 
them for their hard work on this legislation not only in this Congress 
but in the last. Their effort set a mark not only in the Senate but in 
the House and made enactment of this legislation possible within the 
first 100 days of the 104th Congress.
  I urge my colleagues to approve this conference report.
  Mr. GLENN. Mr. President, it gives me great pleasure to rise before 
my colleagues today and urge their acceptance of the conference report 
on our bipartisan legislation to reauthorize the Paperwork Reduction 
Act. This day has been a long time in coming. At long last, we can take 
our final step toward presenting the President with a bill that I am 
sure he will sign and that I am equally confident will reduce paperwork 
and improve the management of Federal information resources.
  Passage of this legislation is an accomplishment that I am very proud 
of. Reauthorization of the act was one of my major priorities during my 
6 years as chairman of the Governmental Affairs Committee. After 
several years of discordant debate about the act's implementation, we 
fashioned a bipartisan bill that resolved outstanding issues and moved 
the act forward to more clearly address new Information 
[[Page S5276]] Age issues. This bill was unanimously passed by the 
Senate on October 6, 1994.
  Unfortunately, the House was unable to act before the end of the 103d 
Congress. The legislation that we have before us today is this same 
bill, with only a few minor changes. This year's House bill itself was 
also modeled very, very closely on our bill. I am thus very proud of 
the leadership our committee provided in the last Congress, the 
bipartisan cooperation that continued into this Congress, and the 
accomplishment that we now have before us.
  The Paperwork Reduction Act is a vitally important law. Originally 
enacted in 1980, and reauthorized in 1986, the act serves two closely 
related and very essential public purposes. First, the act is key to 
the ongoing effort to reduce Government paperwork burdens on the 
American public. Too often, our citizens--individuals, businesses, 
State and local governments, academic institutions, nonprofit 
organizations, and more--are burdened by having to fill out 
questionnaires and forms that simply are not needed to implement the 
laws of the land. Too much time and money is wasted in an effort to 
satisfy bureaucratic excess.
  The Paperwork Reduction Act of 1980 took up the battle by 
transforming a leaky review process--created in 1942--into a strong 
centralized OMB clearance process to control the information appetite 
of agencies all across the Federal Government. The Paperwork Reduction 
Act of 1995 strengthens this process, primarily by increasing the 
paperwork reduction responsibilities of the individual agencies, so 
that we can make new progress in fighting Government redtape.
  The act's second core purpose is to improve Federal information 
resources management. This is not a separate or secondary goal. 
Reducing the costs and improving the efficiency and effectiveness of 
Government information activities is an essential element of paperwork 
reduction. As the 1977 Federal paperwork Commission commented, how can 
Federal agencies reduce paperwork if they don't know what information 
they possess or how best to use it? We simply cannot reduce paperwork 
burdens on the American people unless we can get more efficient and 
effective information activities out of Federal agencies.
  Our entry into the Information Age signals an even more fundamental 
truth. We cannot provide efficient and effective Government operations 
without efficient and effective information activities. Program 
operations, service delivery, agency policy formulation and decisions--
all now depend increasingly on information technology.
  The scale of this transformation of the Government from a paper-
driven to a computer-driven operation is staggering. The Federal 
Government is now spending over $25 billion each year on information 
technology. We have truly entered the Information Age. Automated data 
processing for program applications, electronic benefits transfer for 
food stamps distribution, electronic data interchange to speed up 
Federal contracting, direct deposit for more efficient delivery of pay 
and retirement benefits, computer matching to catch tax cheats, high 
capacity telecommunication networks and video-conferencing for more 
efficient work across the Nation and even the globe. These innovations 
are already a part of Government. They also suggest some of the 
opportunities still to come for improving Government operations.
  Unfortunately, as oversight by our committee and others has shown, 
the Government is not realizing the full potential of this 
technological revolution. The Federal Government is simply wasting 
millions and millions of dollars on poorly designed and often 
incompatible systems. This must stop.
  The Paperwork Reduction Act of 1980 took a first step on the road to 
reform when it created information resources management [IRM] policies 
to be overseen by OMB. The Paperwork Reduction Act of 1995 strengthens 
that mandate and establishes new requirements for agency IRM 
improvements. These requirements focus on agency responsibility for IRM 
improvement, including results-oriented performance standards. These 
strengthened requirements add needed detail to the larger IRM 
framework, with its essential oversight role for OMB, to ensure that we 
have both management results and accountability. The legislation 
balances process controls with program and management responsibility to 
provide IRM improvements without stifling micromanagement.
  In serving these twin, closely related statutory purposes of 
paperwork reduction and information resources management, the Paperwork 
Reduction Act of 1995 includes several notable accomplishments.
  We reauthorize the act for 6 years. While the House proposed a 
permanent authorization, the conference agreement contains a definite 
reauthorization period. While the difficulties in reauthorizing the act 
between 1983 and 1986, and again from 1989 to the present, may suggest 
to some that the act ought to be permanently reauthorized, I draw a 
very different conclusion. It is precisely because the act is so 
important, because it concentrates significant power in OMB--which is 
the President's enforcer, if there ever was one--and because there has 
been so much controversy about OMB's actions under the act--and its 
related regulatory review powers--that every effort must be made to 
provide and sustain serious congressional oversight.
  Without a periodic reauthorization schedule, I am afraid that our 
oversight would suffer. With the requirement for reauthorization, we 
are required to scrutinize the act and its implementation, and 
persevere in resolving differences and arriving at any needed statutory 
reforms. The reforms found in the Paperwork Reduction Act of 1995 are 
the product of this reauthorization process and proof of its 
importance.
  We strengthen the paperwork clearance process in several ways. The 
most important reform is the establishment of new detailed requirements 
for agencies to evaluate paperwork proposals and solicit public comment 
on them before the proposals go to OMB for review. These new 
requirements will, first of all, ensure the more thoughtful development 
of only truly ``necessary'' agency information collection proposals. 
Just as importantly, these requirements will also help agencies more 
clearly and
 thoroughly make their case for such proposals, and thus prepare for a 
fair hearing before OMB on what is or is not ``necessary for the proper 
performance of the agency's functions,'' as the law puts it. Together, 
I believe, these expanded agency requirements provide the greatest 
opportunity for progress in the war against red tape.

  We also strengthen the paperwork process by overturning the Dole 
versus United Steelworkers Supreme Court decision regarding OSHA's 
hazard communication standard, so that information disclosure 
requirements are covered by the OMB paperwork clearance process. This 
ends a controversy of several years and clarifies that the act covers 
all paperwork requirements, not just information that is collected for 
an agency's own use.
  In other respects, the act's OMB paperwork clearance standards remain 
unchanged. In fact, the decision to overturn the Supreme Court ``Haz 
Comm'' decision is only appropriate given the continuing integrity of 
the procedure for OMB review of information collections required by 
regulation. As provided under the original 1980 act, after commenting 
on regulatory paperwork requirements in a proposed rule, OMB may 
disapprove a final rule paperwork requirement only if it finds that the 
agency's response to its comments are ``unreasonable.'' As Senator 
Kennedy said at the time, ``[Without this provision,] this legislation 
would permit OMB to overturn * * * [an agency rulemaking] decision 
without even requiring OMB to justify its decision publicly. This 
violates basic notices of fairness upon which the Administrative 
Procedure Act is based, as well as concepts of due process embodied in 
the U.S. Constitution.'' (S30178, November 19, 1980). With this 
legislative history so clear, I am very pleased that the House receded 
to the Senate on this point in the current legislation--our committee 
and the Senate having already clearly decided to maintain unchanged the 
paperwork clearance standards of the act.
  The Paperwork Reduction Act of 1995 also provides needed detail to 
the act's general provisions on information dissemination. OMB policy 
guidance responsibilities are delineated, as are the operational 
responsibilities of individual Federal agencies. The primary 
[[Page S5277]] theme running through these provisions is the obligation 
of Federal agencies to conduct their dissemination activities in such a 
way as to ensure that the public has timely and equitable access to 
public information. A major element of this obligation is the mandate 
to make information available on a nondiscriminatory and nonexclusive 
basis so as to avoid disadvantaging any class of information users. 
Public information is public. It should not become a source of revenue 
for agencies or a means by which to exercise proprietary-like controls 
on information.
  Finally, the legislation requires the development of a Government 
Information Locator Service [GILS] to ensure improved public access to 
government information, especially that maintained in electronic 
format, and makes other improvements in the areas of government 
statistics, records management, computer security, and the management 
of information technology.
  These are important reforms. Of course, reaching broad bipartisan 
agreement on this legislation has involved considerable compromise. 
There has been give and take on both sides. The result, like most 
compromises, has displeased some. I believe, however, that the 
legislation represents a practical compromise that addresses many real 
issues and moves the Government forward toward the reduction of 
paperwork burdens on the public and improvements in the management of 
Federal information resources. It should be supported for its very 
significant provisions.
  Even with this accomplishment, it should be clearly understood that 
the legislative compromise does not resolve conflicting views on the 
OMB paperwork and regulatory review
 controversies that have dogged congressional oversight of the 
Paperwork Reduction Act. As I said in my additional views in our 
committee report:

       Support for the original act and for the current 
     legislation should not . . . lead anyone to overlook the 
     problems that have frustrated full implementation of the law. 
     Fifteen years of Committee oversight have produced a record 
     replete with criticisms, largely directed at OMB, for 
     unbalanced implementation of the Act. Slighting statistics, 
     records management, information technology management, 
     privacy and security, and other aspects of information 
     resources management, OMB devoted itself to a paperwork 
     clearance and regulatory review process that occasioned 
     repeated charges of interference with substantive agency 
     decision-making. I believe that this record should not be 
     obscured . . .'' (S. Report No. 104-8, p. 59):

  This record should remind us of our continuing obligation to oversee 
the act, at the same time that we move forward with the current 
legislation to better fulfill its very important purposes.
  In conclusion, the legislation before us strengthens the Paperwork 
Reduction Act. It also remains true to the intent of the original 1980 
act. Both the administration and the General Accounting Office concur 
in this judgment and support the legislation. I am very proud of our 
accomplishment in bringing this legislation to final passage of the 
conference report. This has been a cooperative bipartisan effort. We 
could not be here without the hard work of Senator Nunn and Senator 
Roth, who is now chairman of the Governmental Affairs Committee. I 
would also single out Senator Bingaman, my good friend from New Mexico, 
who, when he was on our committee, initiated the reauthorization effort 
in 1989. And, of course, as always, Senator Carl Levin of Michigan has 
played an important role, working to ensure that our committee's 
consideration of the legislation helped the fight both against 
paperwork and for Government efficiency.
  This really has been a long-haul effort. And through those years, a 
small group of staff have labored long and hard, again and again 
working over drafts and coming up with legislative language to help us 
reach the point we are at today. I want to thank Frank Polk of Senator 
Roth's staff, Bill Montalto with Senator Nunn, and Len Weiss and David 
Plocher of my staff. We could not be here today without their work. 
Finally, I want to thank Jeff Hill and Bruce McConnell of OMB's Office 
of Information and Regulatory Affairs, and Dan Latta and Chris Hoenig 
of GAO's Accounting and Information Management Division. Their 
technical assistance throughout the legislative process was essential, 
and they deserve our thanks for their help.
  We are now one short step from final enactment of the Paperwork 
Reduction Act of 1995. I strongly urge my colleagues to join in 
supporting this very important legislation.
  The PRESIDING OFFICER. Without objection, the conference report is 
agreed to.
  So the conference report was agreed to.
  Mr. THOMAS. Mr. President, I ask unanimous consent to proceed as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________