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Overregulating the Bureaucrats

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By John Pearson
February 14, 2017

“And, I can’t defend this. I will say that at times there have been regulations that required us to do things—”

This is General Mattis, Secretary of Defense, responding to a question from Senator Tillis at his nomination hearing as to why a request for proposal (RFP) to replace an Air Force sidearm was 680 pages long and why the procurement had not been completed after nine years. See the full question and answer in the hearing testimony from pages 88 through 91.

Senator Tillis points out only 39 pages of the RFP contain technical specifications, and he agrees some of the language in the RFP may be directly the result of requirements imposed by Congress. He asks General Mattis to pledge to tell him what role legislation may have played in making this document so complex — It is the Defense Federal Acquisition Regulation Supplement (DFARS), which the Department of Defense is required to follow.

In an earlier column, I stressed the overwhelming number of regulations federal agencies in the U.S. have to deal with. Federal agencies must comply with many of the same rules that apply to the private sector such as the “reasonable accommodation” provision of the Americans for Disabilities Act, but they also must deal with numerous rules that apply only to the federal government.

question-423604_640The new administration is promising to reduce regulations that are particularly burdensome to the private sector. Federal agencies could stand some deregulation as well.

I would like to highlight two regulations I noticed were especially burdensome when I was a federal employee. By “regulation”, I am referred to the underlying statute and its implementation.

My first example is the Paperwork Reduction Act (PRA). The PRA requires an agency to obtain approval from the Office of Management and Budget (OMB) in most cases before the agency collects any information from the public. This means, effectively, paper and electronic forms that collect information from the public must receive OMB approval or the agency is in violation of the law. The PRA seems to assume federal bureaucrats cannot be trusted to collect information necessary to implement the legislation assigned to their agency.

The Department of Health and Human Services (HHS) has a web page devoted to the PRA. On that page, you can see:

  • Links to the act and to OMB’s guidance to agencies regarding implementation (the link to OMB’s site isn’t operational at this writing because of the change of administrations).
  • Guidance for completing an Information Request (ICR) package with the necessary supporting statement and attachments. The guidance describes the numerous steps in the six to nine month PRA approval process.
  • Reference to the Information Collection Inventory. OMB keeps track of what collections are approved, under review or expired.
  • Reference to the Annual Information Collection Budget. OMB maintains an information budget that tracks the burden of information collections on the public.
  • Reference to the agency’s Information Collection Review staff. The PRA is so burdensome HHS needs a separate PRA staff to coordinate the ICRs originating from within the agency.

I found the Computer Matching Act and Privacy Protection Act of 1988 was another law that imposed an expensive paper-work exercise on federal agencies.

Here is the IRS’s manual for dealing with the Computer Matching Act (CMA). The law requires agencies to have Data Integrity Boards and formal computer matching agreements in place before they can do even the most routine computer matching. I found it was obtaining and maintaining approval of the computer matching agreements that was so paperwork intensive. Other aspects of the law were less problematic.

Here’s an excerpt from a GAO analysis of the CMA done in 2013 that seems to confirm my assessment.

“Several agency and office of inspector general officials stated that the act’s rigorous requirements and short time frames discouraged them from pursuing CMAs. Officials at six agencies stated that CMA review processes were lengthy and resource-intensive and that statutory durations for conducting matching activities were too short. Similarly, officials from offices of the inspector general at four agencies stated that the length of the approval process and the requirement that proposed agreements be approved by data integrity boards discouraged them from computer matching.”

I noticed the CMA at times had a negative effect on operations because ongoing computer matching, which the agency depended on, could be suspended if CMA paperwork was not kept current. The CMA seems to assume bureaucrats cannot be trusted to properly use the data in the thousands of computer databases of the federal government. However, failure to perform computer matching can lead to wasteful workarounds and failure to detect waste, fraud and abuse.

Policy makers should bear in mind every staff hour expended on meeting the requirements of the PRA, the CMA, convoluted procurement requirements or other questionable overhead is an hour lost to meeting the agency’s program objectives. When working on these overhead issues, employees are not working on program implementation; they are not working on quality of delivery; and they are certainly not working on customer service issues.

Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].

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