[Federal Register Volume 60, Number 110 (Thursday, June 8, 1995)]
[Proposed Rules]
[Pages 30438-30456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14007]
[[Page 30437]]
_______________________________________________________________________
Part VI
Office of Management and Budget
_______________________________________________________________________
5 CFR Part 1320
Controlling Paperwork Burdens on the Public; Regulatory Changes
Reflecting Recodification of the Paperwork Reduction Act; Proposed Rule
Federal Register / Vol. 60, No. 110 / Thursday, June 8, 1995 /
Proposed Rules
[[Page 30438]]
OFFICE OF MANAGEMENT AND BUDGET
5 CFR Part 1320
Controlling Paperwork Burdens on the Public; Regulatory Changes
Reflecting Recodification of the Paperwork Reduction Act
AGENCY: Office of Management and Budget, Executive Office of the
President.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The recently enacted Paperwork Reduction Act of 1995 replaces
the Paperwork Reduction Act of 1980, as amended by the Paperwork
Reduction Reauthorization Act of 1986. The new Act redefines
``collection of information'' explicitly to include third-party and
public disclosures, requires agencies to seek public comment concerning
proposed collections of information through 60-day notice to the public
before submission for clearance by the Office of Management and Budget
(OMB) and thereafter to certify to OMB, e.g., that the proposed
collection reduces to the extent practicable and appropriate the burden
on respondents for small business, local government, and other small
entities, and indicates for each recordkeeping requirement the length
of time persons are required to maintain the records specified. The new
Act also makes more explicit the responsibilities of agencies in
developing proposed collections of information and submitting them for
OMB review and approval, and changes a number of definitions and other
provisions. OMB is proposing to amend its existing paperwork clearance
rules to reflect these and the other legislative changes made by the
Paperwork Reduction Act of 1995.
DATES: Comments must be received on or before August 7, 1995.
ADDRESSES: Please address all written comments to Jefferson B. Hill,
Office of Information and Regulatory Affairs, OMB, Washington, D.C.
20503. Comments may be submitted via facsimile to 202/395-7285.
Electronic mail comments may be submitted via SMTP to
[email protected] or via X.400 to G=Jefferson, S=Hill, PRMD=gov+eop,
ADMD+telemail, C=us. Comments submitted via electronic mail should
include the commenter's name, affiliation, postal address, and e-mail
address in the text of the message.
FOR FURTHER INFORMATION CONTACT: Jefferson B. Hill, Office of
Information and Regulatory Affairs, OMB, Washington, D.C. 20503 (202/
395-7340). Inquiries may be submitted via facsimile to 202/395-7285.
Electronic mail comments may be submitted via SMTP to
[email protected] or via X.400 to G=Jefferson, S=Hill, PRMD=gov+eop,
ADMD+telemail, C=us. Inquiries submitted via electronic mail should
include the commenter's name, affiliation, postal address, and e-mail
address in the text of the message.
SUPPLEMENTARY INFORMATION:
A. Background
On May 10, 1988, the Office of Management and Budget (OMB) issued 5
CFR Part 1320--Controlling Paperwork Burden on the Public [53 FR
16618]. The 1988 rule implemented the provisions of the Paperwork
Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C. Chapter 35), as
amended by the Paperwork Reduction Reauthorization Act of 1986 (Pub. L.
99-500 (October 18, 1986) and 99-591 (October 30, 1986), section
101(m)), concerning agency responsibilities for obtaining OMB approval
of their collection of information, and other paperwork control
functions.
The Paperwork Reduction Act of 1995 (Pub. L. 104-13 (May 22, 1995))
replaces the Paperwork Reduction Act of 1980, as amended in 1986. The
Paperwork Reduction Act of 1995 takes effect on October 1, 1995. The
procedural requirements of the Paperwork Reduction Act of 1980, as
amended in 1986, will continue to apply to collections of information
approved by OMB on or before September 30, 1995, and which have a valid
OMB control number expiring after that date.
OMB is proposing to amend 5 CFR Part 1320 in order to reflect the
legislative recodification of the Paperwork Reduction Act. In proposing
these amendments, OMB is fully cognizant of the legislative intent of
the draftsmen: ``To the extent the revision is a restatement of the
Paperwork Reduction Act of 1980, as amended in 1986, the legislation is
a reaffirmation of the law's scope, underlying purposes, requirements,
and legislative history. It is the intent of the [Senate] Committee
that the Act's prior legislative history remain unchanged and continue
to be viewed an important explanation of the Congressional intent
underpinning the Act's provisions'' (S. Rpt. 104-8, p. 35; see H. Rpt.
104-37, p. 35; H. Rpt. 104-99, pp. 27-28).
These proposed amendments change the order and structure of the
existing rules in order to clarify agency and OMB responsibilities, and
to elaborate upon the various requirements of the Paperwork Reduction
Act of 1995. The scope of these proposed changes, their legislative
basis, and their relation to the existing rule are described below. The
rationale supporting the existing rules is set forth at 53 FR 16618
(May 10, 1988), 52 FR 27768 (July 23, 1987), 48 FR 13666 (March 31,
1983), and 47 FR 39515 (September 8, 1982). References to ``44 U.S.C.
[section number]'' are references to the Paperwork Reduction Act of
1995, Pub. L. 104-13, unless explicitly stated otherwise.
B. Proposed Section 1320.1--Purpose
Proposed Sec. 1320.1 is equivalent to existing Sec. 1320.1. Added
to the proposed Sec. 1320.1 is a statement that the new rule is
designed to maximize the practical utility and public benefit of the
collection of information, an addition reflecting the legislative
changes in 44 U.S.C. 3501(2) and 44 U.S.C. 3504(c)(4). Deleted from the
proposed Sec. 1320.1 is a reference to inter-agency reporting, a
deletion reflecting the proposed deletion of existing Sec. 1320.17.
C. Proposed Section 1320.2--Effect
Proposed Sec. 1320.2 serves the same function as existing
Sec. 1320.2. The proposed Sec. states the effective date of the new
rule, and is derived from section 4 of Pub. L. 104-13.
D. Proposed Section 1320.3--Definitions
Proposed Sec. 1320.3 is equivalent to existing Sec. 1320.7. While
proposed Sec. 1320.3 serves the same function, OMB is proposing a
number of changes.
Proposed Sec. 1320.3(a) defining ``agency'' is substantively
identical to existing Sec. 1320.7(a).
Proposed Sec. 1320.3(b): This paragraph defining ``burden'' is
equivalent to existing Sec. 1320.7(b), except that it is amended to
reflect the legislative changes in 44 U.S.C. 3502(2). The detail added
by 44 U.S.C. 3502(2) clarifies the scope of this definition by
codifying OMB practice and understanding. As the floor manager for the
Paperwork Reduction Act of 1995, Senator Sam Nunn, stated at final
Senate passage, this bill ``modifies the Act's definition of burden to
capture the full range of regulatory paperwork compliance costs'' (141
Cong. Rec. S5399 (April 6, 1995)).
Proposed Sec. 1320.3(c): This paragraph defining ``collection of
information'' serves the same function as existing Sec. 1320.7(c), but
has been amended in one respect. Paragraph (c)(4) is equivalent to and
a combination of existing Sec. 1320.7(s) (``Ten or more persons'') and
the last two sentences in existing Sec. 1320.7(n) (``Person''), but is
moved to become a part of proposed Sec. 1320.3(c) in order to make it
clear that the limitations in paragraph (c)(4) apply
[[Page 30439]] only to the use of ``person'' in the context of ``ten or
more persons.'' In addition, the definition retains the ``third-party''
disclosure language found in existing Sec. 1320.7(c)(2). OMB's
interpretation of ``collection of information'' to include third-party
disclosures had been rejected by the Supreme Court in Dole v. United
Steelworkers of America, 494 U.S. 26 (1990), but was reaffirmed by
Congress in the 1995 Act (see 44 U.S.C. 3502(3)). In this regard, one
non-substantive change has been made. The reference to ``disclosure
requirements'' in existing Sec. 1320.7(c)(1) has been replaced by
``posting, notification, labeling, or similar disclosure requirements''
in proposed new Sec. 1320.3(c)(1), in order to parallel the formulation
in proposed new Sec. 1320.3(c)(2) (``through posting, notification,
labeling or similar disclosure requirements''), which is taken from
existing Sec. 1320.7(c)(2).
Proposed Sec. 1320.3(d): This paragraph defining ``conduct or
sponsor'' is equivalent to existing Sec. 1320.7(r) (``Sponsor''), which
defined both the conducting, and the sponsoring, of a collection of
information. The definition is amended to reflect the legislative
changes in 44 U.S.C. 3502(3)(A).
Proposed Sec. 1320.3(e) defining ``Director'' is equivalent to
existing Sec. 1320.7(d).
Proposed Sec. 1320.3(f): This paragraph defining ``display'' is
equivalent to existing Sec. 1320.7(e), but is amended in several ways
to clarify that ``display'' can be interpreted in common-sense ways
appropriate for electronic media, the Federal Register, and the Code of
Federal Regulations. As the Conference Report explains, ``[f]or
collections of information contained in a rule, agencies must provide
the required information in a manner reasonably calculated to inform
the public. Notice may be provided in the preamble to a final rule
containing the collection of information, or in a general notice in the
volume of the Code of Federal Regulations in which the agency's
regulations appear.'' H. Rep. 104-99, p. 37. These examples are
illustrative; the information may also be set forth, as in existing
Sec. 1320.5(e)(2), in the regulatory text of the final rule (including
through a technical amendment), or, as in proposed new
Sec. 1320.3(f)(2), in a separate notice in the Federal Register
announcing OMB approval.
Proposed Sec. 1320.3(g) defining ``independent regulatory agency''
is equivalent to existing Sec. 1320.7(h).
Proposed Sec. 1320.3(h): This paragraph defining ``information''
and the subparagraphs defining exemptions thereto are, with two
changes, identical to existing Sec. 1320.7(j). The exemption for
``certifications'' in existing Sec. 1320.7(j)(1) is clarified in order
to ensure that the exempted certification is used only to identify an
individual in a routine, non-intrusive, non-burdensome way. The
exemption will not be available for a certification that substitutes
for a collection of information to collect evidence of, or to monitor,
compliance with regulatory standards.
Proposed Sec. 1320.3(i) defining ``OMB'' is added for clarity.
Proposed Sec. 1320.3(j) defining ``penalty'' is equivalent to
existing Sec. 1320.7(m). The word ``penalty'' is used in proposed
Sec. 1320.6, and is based on 44 U.S.C. 3502(14).
Proposed Sec. 1320.3(k): This paragraph defining ``person'' is
equivalent to existing Sec. 1320.7(n), except that the last two
sentences in existing Sec. 1320.7(n) have been moved to proposed
Sec. 1320.3(c)(4) (``collection of information''). The purpose for
placing the limitations on the definition of ``person'' into proposed
Sec. 1320.3(c)(4) is to make it clear that the limitations in paragraph
(c)(4) apply only to the use of the word ``person'' in the context of
``ten or more persons.''
Proposed Sec. 1320.3(l): This paragraph defining ``practical
utility'' is equivalent to existing Sec. 1320.7(o), but is amended in
the final sentence to incorporate the definition of ``general purpose
statistics'' in existing Sec. 1320.7(i).
Proposed Sec. 1320.3(m): This paragraph defining ``recordkeeping
requirement'' is equivalent to existing Sec. 1320.7(p), but is amended
to reflect the legislative changes in 44 U.S.C. 3502(13). As with the
definition of ``collection of information'' in existing Sec. 1320.5(p),
although less explicitly, the definition of ``recordkeeping
requirement'' in existing Sec. 1320.7(p) included requirements that
persons maintain information for third parties. The precise scope of
existing Sec. 1320.5(p) was placed into some question by the Supreme
Court's decision in Dole v. United Steelworkers of America, 494 U.S. 26
(1990). However, in Action Alliance of Senior Citizens of Greater
Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir.), cert. denied, 502
U.S. 938 (1991), the Court of Appeals for the District of Columbia
Circuit rejected a broad reading of Dole, in the context of a
requirement to maintain (rather than disclose) information for third
parties. In the 1995 Act, Congress clarified the scope of
``recordkeeping requirement'' in 44 U.S.C. 3502(13).
E. Proposed Section 1320.4--Coverage
Proposed Sec. 1320.4 is equivalent to existing Sec. 1320.3, but is
amended to reflect the legislative rewording in 44 U.S.C. 3502(3)(B)
and 3518(c)(i)(D). No substantive change is intended in this section.
Paragraph (b) is based on 44 U.S.C. 3518(c)(2). Agencies from time
to time investigate general operations of their programs, to assess
factors including performance against statutory or regulatory
objectives, the effectiveness of financial systems, or the efficiency
of automated data systems. These programmatic reviews often involve
surveys or other means of posing identical questions to ten or more
persons without a focus on ``specific individuals or entities.'' Under
44 U.S.C. Sec. 3518(c)(2) and proposed paragraph 1320.4(b), the
collection of information during such general programmatic
investigations (other than information collected in an antitrust
investigation, as specified) are covered by the Act when ``undertaken
with reference to a category of individuals or entities such as a class
of licensees or an entire industry.'' However, as is made clear in 44
U.S.C. Sec. 3518(c)(1)(B)(ii) and proposed paragraph 1320.4(a)(2),
investigations are exempt from the Act when they involve ``an agency
against specific individuals or entities.''
Thus, for example, the Act does not apply to a law enforcement
investigation to determine whether persons are in compliance with the
law. See, e.g., Phillips Petroleum Co. v. Lujan, 963 F.2d 1380, 1382-
83, 1386-87 (10th Cir. 1992) (Paperwork Act does not apply to ``an
audit of the propriety of the royalty and other payment made by'' two
mineral lessees; the audit ``clearly falls within the parameters of
th[e] exemption'' for ``an administrative action or investigation
involving an agency against specific individuals or entities''); United
States v. Saunders, 951 F.2d 1065, 1066-67 (9th Cir. 1991) (Paperwork
Act does not apply to an IRS summons; ``An IRS investigation of a
taxpayer's failure to file her or his income tax return constitutes `an
agency action against specific individuals.' ''); Lonsdale v. United
States, 919 F.2d 1440, 1444-45 (10th Cir. 1990) (same as Saunders;
``the Paperwork Reduction Act is inapplicable to `information
collection request' forms issued during an investigation against an
individual to determine his or her tax liability''). However, the Act
does apply to a general programmatic investigation to determine whether
the agency's program achieves its statutory objectives. [[Page 30440]]
Finally, when conducted by certain agency offices, including Chief
Financial Officers or Inspectors General, an investigation often
carries the title of ``audit.'' OMB recognizes that the Inspectors
General have an important statutory function that requires independence
in the conduct of their investigations. OMB seeks public comment on how
best to implement the objectives of the Paperwork Reduction Act of 1995
while maintaining the practical ability of the Inspectors General to
perform their statutory functions.
F. Proposed Section 1320.5--General Requirements
In general, proposed Sec. 1320.5 reflects a number of legislative
changes to 44 U.S.C. 3506(c) and 3507(a), and in light of those
legislative changes amends and consolidates provisions in existing
Sec. 1320.4, Sec. 1320.6, Sec. 1320.11, Sec. 1320.15, and Sec. 1320.21.
The purpose of this section is to provide a road-map of agency
clearance obligations under this Part.
Proposed Sec. 1320.5(a): This paragraph, in subparagraph (1)(i)-
(iii) and subparagraphs (2)-(3), provides an outline of agency and OMB
obligations for clearing proposed collections of information under this
Part, and reflects the legislative changes in 44 U.S.C. 3507(a).
Paragraph 1320.5(a)(1)(iii) identifies the information that an
agency is to submit to OMB as part of its submission of a proposed
collection of information for clearance.
In response to President Clinton's statement at the signing of the
Paperwork Reduction Act of 1995, to direct agencies to permit
electronic submission of responses, the agency, under proposed
Sec. 1320.5(a)(1)(iii)(E), is to include in its submission to OMB a
statement about whether (and is so, to what extent) the proposed
collection of information involves the use of automated collection
techniques or other forms of information technology (including
permitting electronic submission of responses); the agency is also to
explain to OMB its basis for this decision. This builds on activities
undertaken earlier in the process. Proposed Sec. 1320.8(a)(5) requires
the agency to evaluate this issue in its consideration of the
collection of information, and proposed Sec. 1320.8(d)(1)(iv) requires
the agency to seek public comments on this issue.
In addition, the information to be submitted under paragraph
1320.5(a)(1)(iii)(C) includes an explanation of the decision that it
would not be appropriate, under proposed Sec. 1320.8(b)(1), for a
proposed collection of information to display an expiration date. Under
proposed Sec. 1320.5(a)(1)(iii)(D), an agency is to explain a decision
to provide for any payment or gift to respondents, other than
remuneration of contractors or grantees. This information also
includes, under proposed Sec. 1320.5(a)(1)(iii)(F), a summary of the
public comments received under proposed Sec. 1320.8(d), including
actions taken by the agency in response to the comments, and the date
and page of publication in the Federal Register of the notice therefor.
This paragraph, in subparagraph (1)(iv), provides the information
that agencies are to set forth in the Federal Register notice
announcing that the agency has submitted a proposed information
collection for OMB clearance. Subparagraph (1)(iv) is equivalent to
existing Sec. 1320.15, but is amended to reflect the legislative
changes in 44 U.S.C. 3507(a)(1)(D). Subparagraph (1)(iv) also directs
agencies, except as provided in proposed Sec. 1320.13(d), to request
public comments within 30 days of publication because, under 44 U.S.C.
3507(b), OMB is directed to provide at least 30 days for public comment
prior to making its decision concerning the agency's clearance request.
Proposed Sec. 1320.5(b): This paragraph stresses the agency's
obligation, under 44 U.S.C. 3512, to display a currently valid OMB
control number and to inform the persons who are to respond to the
collection of information that such persons are not required to respond
to the collection of information unless it displays a currently valid
OMB control number. This paragraph, in subparagraph (ii)(A)-(B),
elaborates on possible ways in which the agency can so inform the
respondents. This paragraph serves the same function in the first
sentence in existing Sec. 1320.4(a). As noted above, with respect to
the definition of ``display'' in proposed new Sec. 1320.3(f), the
Conference Report explains that ``[f]or collections of information
contained in a rule, agencies must provide the required information in
a manner reasonably calculated to inform the public. Notice may be
provided in the preamble to a final rule containing the collection of
information, or in a general notice in the volume of the Code of
Federal Regulations in which the agency's regulations appear.'' H. Rep.
104-99, p. 37. These examples are illustrative; the information may
also be set forth, as in existing Sec. 1320.5(e)(2), in the regulatory
text of the final rule (including through a technical amendment), or,
as in proposed new Sec. 1320.3(f)(2) and proposed new
Sec. 1320.5(b)(2)(ii)(B), in a separate notice in the Federal Register
announcing OMB approval.
Proposed Sec. 1320.5(c): This paragraph is equivalent to existing
Sec. 1320.11(e), and identifies the sections in this Part under which
an agency should submit different kinds of proposed collections of
information, specifically, for collections of information contained in
proposed rules published for public comment in the Federal Register and
for current regulations that were published as final rules in the
Federal Register. Subparagraph (5) of this paragraph defines when a
submission to OMB is deemed to have been received, and applies with
respect to the time frames for OMB review. This subparagraph is
equivalent to existing Sec. 1320.11(j), except that it has been revised
to clarify that it applies only to the receipt of a ``properly
submitted'' package. If OMB concludes that a package has not been
``properly submitted,'' OMB will notify the agency of this conclusion
and indicate what corrective steps need to be taken.
Proposed Sec. 1320.5(d)(1): Subparagraph (1) of this paragraph is
equivalent to existing Sec. 1320.4(b)(1), (b)(2), and the first two
sentences of (b)(3). The third sentence of existing Sec. 1320.4(b)(3)
is no longer necessary. The guidelines set forth in existing
Sec. 1320.6 have been moved to proposed new Sec. 1320.5(d)(2), which
immediately follows, and the requirement to discuss the ``practical
steps'' for consultation have been superseded by the 1995 Act's
requirements for a comment period prior to submission to OMB.
Proposed Sec. 1320.5(d)(2). Subparagraph (2) of this paragraph is
equivalent to existing Sec. 1320.6. Existing Sec. 1320.6(e) is now
reflected in proposed Sec. 1320.5(a)(1)(iii)(D); existing Sec. 1320.6
(h) and (j) are now reflected in proposed Sec. 1320.9(c) and (f); and
existing Sec. 1320.6(k) is now reflected in proposed
Sec. 1320.5(a)(1)(iii)(D), Sec. 1320.8(a)(5), and
Sec. 1320.8(d)(1)(iv). These guidelines are also amended by adding
three new provisions. Subparagraph (2)(vi) directs agencies to avoid
using statistical data classifications that have not been reviewed and
approved by OMB. Subparagraph (2)(vii) directs agencies to avoid
collecting information at the request of another country or an
international organization unless such request has been reviewed,
coordinated, and approved by OMB. Subparagraph (2)(viii) directs
agencies not to make confidentiality pledges to respondents unless they
have adequate authority to honor such pledges. An agency need not
comply with each of the policy [[Page 30441]] directives listed under
subparagraph (2) of this paragraph if the agency is able to
demonstrate, in its submission for OMB clearance, that such
characteristic of the collection of information is necessary to satisfy
statutory requirements or other substantial need.
Proposed Sec. 1320.5(e) is substantively identical to existing
Sec. 1320.4(c).
Proposed Sec. 1320.5(f) is substantively identical to a combination
of existing Sec. 1320.4(d) and Sec. 1320.11(i).
Proposed Sec. 1320.5(g) is equivalent to existing Sec. 1320.11(h),
but is amended to reflect the legislative changes in 44 U.S.C.
3507(h)(3).
Proposed Sec. 1320.5(h) is added to request agencies to consult
with OMB before continuing to use OMB-approved forms or other
collections of information after the expiration date printed thereon
(e.g., using copies of old forms to conduct a collection of information
that OMB has reapproved for continued use). Continuing to use such
forms may confuse the public which, under proposed Sec. 1320.5(b) and
proposed Sec. 1320.6, is being advised that absent a valid OMB control
number the collection of information is unenforceable.
G. Proposed Section 1320.6--Public Protection
Proposed Sec. 1320.6 is equivalent to existing Sec. 1320.5, but is
amended to reflect the legislative changes in 44 U.S.C. 3512.
Proposed Sec. 1320.6(a)(1) states that no person is to be subject
to any penalty for failing to comply with a collection of information
that is subject to the requirements of this Part if the collection of
information does not display a currently valid OMB control number.
Proposed Sec. 1320.6(a)(2) states that no person is to be subject
to any penalty for failing to comply with a collection of information
that is subject to the requirements of this Part if the agency fails to
inform the person who is to respond to the collection of information
that such person is not required to respond to the collection of
information unless it displays a currently valid OMB control number.
Proposed Sec. 1320.6(b) states that the protections provided by 44
U.S.C. 3512(a) and proposed Sec. 1320.6(a) may be raised in the form of
a complete, defense, bar, or otherwise to the imposition of such
penalties at any time during the agency administrative process in which
such penalty may be imposed or judicial action applicable thereto.
Proposed Sec. 1320.6(c) is equivalent to existing Sec. 1320.5(b).
Proposed Sec. 1320.6(d) is identical to existing Sec. 1320.5(c).
Proposed Sec. 1320.6(e) is new. This paragraph points out that,
under existing law, the public protections provided by proposed
Sec. 1320.6(a) do not preclude the imposition of a penalty on a person
for failing to comply with a collection of information that is imposed
on the person by statute, e.g., 26 U.S.C. 6011(a) (statutory
requirement for person to file a tax return), 42 U.S.C. 6938(c)
(statutory requirement for person to provide notification before
exporting hazardous waste).
This paragraph is based on the principle announced by the courts in
several cases which addressed the issue of whether the public
protection provided by 44 U.S.C. 3512 could preclude the Federal
government from prosecuting persons for their failure to perform
paperwork duties imposed upon them by statute. See Salberg v. United
States, 969 F.2d 379 (7th Cir. 1992); United States v. Neff, 954 F.2d
698 (11th Cir. 1992); United States v. Dawes, 951 F.2d 1189 (10th Cir.
1991); United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991); United
States v. Wunder, 919 F.2d 34 (6th Cir. 1990). In those cases, the
courts concluded that Congress, in enacting the Paperwork Reduction
Act, did not intend to require itself to comply with the requirements
of that Act (and seek and obtain OMB approval) whenever Congress
decides to impose a paperwork requirement on persons directly by
statute.1
\1\ See Salberg, supra, at 384 (``Salberg was convicted of
violating a statute. It was a federal statute--26 U.S.C. Sec. 7203--
not a regulation or an instruction book that required Salberg to
file an income tax return. Statutes are not subject to the PRA * * *
.''); Neff, supra, at 700 (``Congress did not enact the PRA's public
protection provision to allow OMB to abrogate any duty imposed by
Congress. * * * So the PRA provides Neff no refuge from his
statutorily-imposed duty to file income tax returns''); Dawes,
supra, at 1192 (``We would be inclined to follow the general
analysis of Wunder and Hicks and hold that the operation of the PRA
in these circumstances did not repeal the criminal sanctions for
failing to file an income tax return because the obligation to file
is a statutory one.''); Hicks, supra at 1359 (``where Congress sets
forth an explicit statutory requirement that the citizen provide
information, and provides statutory criminal penalties for failure
to comply with the request, that is another matter. This is a
legislative command, not an administrative request.''); Wunder,
supra, at 38 (``the requirement to file a tax return is mandated by
statute, not regulation. Defendant was not convicted of violating a
regulation, but of violating a statute which required him to file an
income tax return.'').
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There is no legislative history pertinent to the Paperwork
Reduction Act of 1995 that suggests that Congress intended to change
this court interpretation for 44 U.S.C. 3512.
Accordingly, where Congress imposes a collection of information
directly on persons, by statute (as, e.g., in 26 U.S.C. Sec. 6011(a)
and 42 U.S.C. Sec. 6938(c)), then the public protection provided by
proposed Sec. 1320.6(a) would not preclude the imposition of penalties
for a person's failure to comply with the statutory mandate. This
principle, however, does not extend to situations in which a statute
authorizes, or directs, an agency to impose a collection of information
on persons, and the agency does so. In such cases, the agency is
obligated to comply with the Paperwork Reduction Act of 1995 in
imposing the paperwork requirement (just as the agency must comply with
other applicable statutes--e.g., the Administrative Procedure Act in
the case of regulations), and the public protection provided by
proposed Sec. 1320.6(a) would apply to such paperwork requirements.
H. Proposed Section 1320.7--Agency Head and Senior Official
Responsibilities
Proposed Sec. 1320.7 is equivalent to existing Sec. 1320.8, but is
amended to reflect the legislative changes in 44 U.S.C. 3506(a).
Proposed Sec. 1320.7(c) calls upon the Senior Official to head an
office responsible for ensuring agency compliance with the
implementation of the information policies and information resources
management responsibilities established under the Paperwork Reduction
Act of 1995, and reflects the legislative changes in 44 U.S.C.
3506(a)(3). Proposed Sec. 1320.7(d) calls upon the Senior Official to
establish a process within that office that is sufficiently independent
of program responsibility to evaluate fairly whether proposed
collections of information should be approved under this Part, and
reflects the legislative changes in 44 U.S.C. 3506(c)(1).
I. Proposed Section 1320.8--Agency Collection of Information
Responsibilities
In general, proposed Sec. 1320.8 is new, and reflects the
legislative changes in 44 U.S.C. 3506(c) (1) and (2). Basically, this
proposed section sets forth the information collection development
responsibilities for each agency.
Proposed Sec. 1320.8(a) reflects the legislative changes in 44
U.S.C. 3506(c)(1)(A). In general, agencies need, in developing new
collections of information and in deciding whether to continue existing
ones, to evaluate the need for each aspect of the information
collection, estimate respondent burdens, and, if appropriate, test the
collection of information through a pilot program. Also, in response to
President Clinton's statement at the signing of the
[[Page 30442]] Paperwork Reduction Act of 1995, to direct agencies to
permit electronic submission of responses, the agency is to evaluate
whether (and if so, to what extent) the burden on respondents can be
reduced through the use of automated collection techniques or other
forms of information technology, e.g., permitting electronic submission
of responses. Subsequent in the process, proposed Sec. 1320.8(d)(1)(iv)
requires the agency to seek public comments on this issue, and proposed
Sec. 1320.5(a)(1)(iii)(D) requires the agency to state, in its eventual
submission to OMB, whether (and to what extent) the collection of
information involves such techniques, and the agency must explain to
OMB the basis for its decision.
Proposed Sec. 1320.8 (b) and (c) reflect the legislative changes in
44 U.S.C. 3506(c)(1)(B). Agencies need to ensure that each collection
of information is inventoried, displays a currently valid OMB control
number, and, if appropriate, an expiration date; and is reviewed by OMB
in accordance with the clearance requirements of 44 U.S.C. 3507. As
part of the information clearance package (through the means suggested
in proposed Sec. 1320.8(c)), the agency needs to inform and provide
fair notice to potential respondents of the policy reasons for which
the information is planned to be and/or has been collected; the way in
which such information is planned to be and/or has been used for the
proper performance of the functions of the agency; the estimated
burden; whether responses are voluntary, required to obtain a benefit,
or mandatory; and the fact that an agency may not conduct or sponsor,
and the respondent is not required to respond to, a collection of
information unless it displays a valid OMB control number. Together
with the estimate of burden, agencies are to request that the public
direct to the agency any comments concerning the accuracy of this
burden estimate and any suggestions for reducing this burden; this
request for public comments concerning the burden estimate is
equivalent to that included in existing Sec. 1320.21(a)(2).
Proposed Sec. 1320.8(d) reflects the legislative changes in 44
U.S.C. 3506(c)(2). Unless the proposed collection of information is
contained in a Notice of Proposed Rulemaking and the agency seeks OMB
clearance under proposed Sec. 1320.11, or unless exempted under
proposed Sec. 1320.13, the agency needs, for each new proposed
collection of information or extension of an existing one to provide
60-day notice in the Federal Register, and otherwise consult with the
members of the public and affected agencies. In this notice, under
paragraph (d)(1) of this section, the agency needs to solicit comment
on the need for the information, its practical utility, the accuracy of
the agency's burden estimate, and on ways to minimize burden on
respondents, including through the use of automated collection
techniques or other forms of information technology. Under paragraph
(d)(2) of this section, if an agency chooses not to publish the
proposed collection of information in the Federal Register, the agency
should provide more than a 60-day notice to permit timely receipt of a
copy by mail, or should explain how interested persons may obtain a
copy (including, if applicable, how to obtain electronic access to the
proposed collection of information).
J. Proposed Section 1320.9--Agency Certifications for Proposed
Collections of Information
In general, proposed Sec. 1320.9 is new, and reflects the
legislative changes in 44 U.S.C. 3506(c)(3). Basically, this proposed
section sets forth the content of agency certifications accompanying
proposed collections of information submitted for OMB clearance.
As part of an agency's submission of a proposed collection of
information to OMB for clearance, an agency needs to send, along with
the other information called for by proposed Sec. 1320.5(a)(1)(iii)(B)-
(E), a certification that the information collection meets certain
standards and provide a record supporting such certification. The
agency needs to certify that the proposed collection of information,
e.g., is needed; not unnecessarily duplicative; reduces to the extent
practicable and appropriate the burden on respondents, including, for
small business, local government, and other small entities, the use of
the techniques outlined in the Regulatory Flexibility Act; is written
in unambiguous terminology; is to be implemented in ways consistent
with the existing reporting and recordkeeping practices of the
respondents; indicates for each recordkeeping requirement the length of
time documents are to be retained; informs potential respondents of the
information called for under proposed Sec. 1320.8(b)(3); has been
developed by an office that has planned for the efficient and effective
management of the information to be collected; uses effective and
efficient statistical survey methodology; and to the maximum extent
practicable, uses appropriate information technology to reduce burden
and improve data quality.
K. Proposed Section 1320.10--Clearance of Collections of Information,
Other Than Those Contained in Proposed Rules or in Current Rules
Proposed Sec. 1320.10 is equivalent to existing Sec. 1320.12, but
is amended to reflect the legislative changes in 44 U.S.C. 3507.
Proposed Sec. 1320.10(a): This paragraph is equivalent to existing
Sec. 1320.12(a). This paragraph provides that the agency notice in the
Federal Register required by proposed Sec. 1320.5(a)(1)(iv) request
that public comments be submitted within at least 30 days of
publication to OMB. OMB is obligated to provide at least 30 days for
public comment prior to making a decision under this proposed section
under 44 U.S.C. 3507(b), but would like to receive public comments at
the end of that period in order to be prepared to make a decision if
the need so dictates.
Proposed Sec. 1320.10(b): This paragraph is equivalent to existing
Sec. 1320.12(b). Reflecting 44 U.S.C. 3507(c)(2), this paragraph
provides that OMB is obligated to make its decision within 60 days
after receipt of the proposed collection of information or publication
of the notice under paragraph (a) of this section, whichever is later.
Proposed Sec. 1320.10(c): This paragraph is equivalent to existing
Sec. 1320.12(c). The maximum time period for OMB review is 60, rather
than 90, days, reflecting the legislative change in 44 U.S.C.
3507(c)(3).
Proposed Sec. 1320.10(d): This paragraph is equivalent to existing
Sec. 1320.12(d), except that it is expanded to reflect the legislative
changes in 44 U.S.C. 3512(a)(2). An agency may not conduct or sponsor a
collection of information unless the collection of information displays
a currently valid OMB control number and the agency informs potential
respondents that such respondents are not required to respond to the
collection of information unless it displays a currently valid OMB
control number.
Proposed Sec. 1320.10(e) is new, and reflects the legislative
changes in 44 U.S.C. 3507(h)(1). This paragraph outlines the procedures
an agency needs to follow before it seeks to extend an OMB approval for
an ongoing collection of information. The agency needs to conduct the
review established in proposed Sec. 1320.8, including the seeking of
comment from the public under Sec. 1320.8(d), and submit, no later than
60 days before the expiration date, the collection of information for
review and approval under this Part, which shall include an explanation
of how the agency has used the information it has
[[Page 30443]] collected. This paragraph does not apply to a collection
of information contained in a published current rule which has been
approved by OMB and has a currently valid OMB control number because
such a collection needs to be submitted for OMB clearance under
proposed Sec. 1320.12.
Proposed Sec. 1320.10(f) is equivalent to the first five sentences
in existing Sec. 1320.11(f) (see proposed Sec. 1320.12(i)).
Proposed Sec. 1320.10(g) is equivalent to the sixth sentence in
existing Sec. 1320.11(f).
L. Proposed Section 1320.11--Clearance of Collections of Information in
Proposed Rules
Proposed Sec. 1320.11 is equivalent to existing Sec. 1320.13, but
is amended to reflect the legislative changes in 44 U.S.C. 3507(d).
Proposed Sec. 1320.11(a): This paragraph is equivalent to existing
Sec. 1320.13(a). This paragraph provides that the agency notice in the
Federal Register, required by proposed Sec. 1320.5(a)(1)(iv), request
that public comments be submitted to OMB within 30 days of the notice's
publication. Under the 1995 Amendments, OMB is obligated to provide at
least 30 days for public comment prior to making a decision, 44 U.S.C.
3507(b); however, OMB must make its decision within 60 days under 44
U.S.C. 3507(d)(1)(B). Therefore, while OMB will of course attempt to
consider all comments that OMB receives before OMB makes its decision,
a public comment is best assured of having maximum impact if it is
received within 30 days of the notice's publication.
Proposed Secs. 1320.11 (b), (c), and (d) are equivalent to existing
Secs. 1320.13 (b), (c), and (d).
Proposed Sec. 1320.11(e) is new, reflecting the legislative change
in 44 U.S.C. 3507(b) that OMB is obligated to provide at least 30 days
for public comment prior to making a decision.
Proposed Secs. 1320.11 (f), (g), (h), (i), and (j) are equivalent
to existing Secs. 1320.13 (e), (f), (g), (h), and (i).
Proposed Sec. 1320.11(k) is equivalent to the first sentence in
existing Sec. 1320.13(j). Proposed Sec. 1320.11(l) serves the same
function as the second and third sentences in existing Sec. 1320.13(j),
but is amended to reflect the legislative change in 44 U.S.C.
3512(a)(2).
M. Proposed Section 1320.12--Clearance of Collections of Information in
Current Rules
Proposed Sec. 1320.12 is equivalent to existing Sec. 1320.14, but
is amended to reflect the legislative changes in 44 U.S.C. 3507.
Proposed Sec. 1320.12(a): This paragraph is equivalent to existing
Sec. 1320.14(a), but is amended to reflect the legislative change in 44
U.S.C. 3507(h)(1). This paragraph outlines the procedures an agency
needs to follow before it seeks to extend an OMB approval for a
collection of information published current rule which has been
approved by OMB and has a currently valid OMB control number. The
agency needs to conduct the review established in proposed Sec. 1320.8,
including the seeking of comment from the public under Sec. 1320.8(d),
and submit, no later than 60 days before the expiration date, the
collection of information for review and approval under this Part,
which shall include an explanation of how the agency has used the
information it has collected.
Proposed Sec. 1320.12(b) is new. It is equivalent to proposed
Sec. 1320.12(a), except that it applies a collection of information
contained in a published current rule that was not required to be
submitted for OMB review under the Paperwork Reduction Act at the time
the collection of information was made part of the rule, but which
collection of information is now subject to the Paperwork Reduction Act
of 1995. Specifically, this paragraph may apply to published current
rule that contains a ``disclosure to third parties or the public'' (see
proposed Sec. 1320.3(c)) or particular kinds of ``recordkeeping
requirement'' (see proposed Sec. 1320.3(m)(2)-(4)), that were exempt
from OMB review under Dole v. United Steelworkers of America, 494 U.S.
26 (1990), or a certification or other affirmation that the agency uses
as a substitute for a collection of information to collect evidence of,
or to monitor, compliance with regulatory standards (see proposed
Sec. 1320.3(h)(1)). Added at the end of proposed Sec. 1320.12(b) is an
instruction equivalent to proposed Sec. 1320.11(l).
Proposed Sec. 1320.12(c): This paragraph is equivalent to existing
Sec. 1320.14(b). This paragraph provides that the agency notice in the
Federal Register required by proposed Sec. 1320.5(a)(1)(iv) request
that public comments be submitted within at least 30-days of
publication to OMB. OMB is obligated to provide at least 30 days for
public comment prior to making a decision under this proposed section
under 44 U.S.C. 3507(b), but would like to receive public comments at
the end of that period in order to be prepared to make a decision if
the need so dictates.
Proposed Sec. 1320.12(d): This paragraph is equivalent to existing
Sec. 1320.14(c). Reflecting 44 U.S.C. 3507(c)(2), this paragraph
provides that OMB is obligated to make its decision within 60 days
after receipt of the proposed collection of information or publication
of the notice under paragraph (a) of this section, whichever is later.
This paragraph also contains a new last sentence, reflecting the
legislative change in 44 U.S.C. 3507(b) that OMB is obligated to
provide at least 30 days for public comment prior to making a decision.
Proposed Sec. 1320.12(e): This paragraph is equivalent to existing
Sec. 1320.14(e). The maximum time period for OMB review is 60, rather
than 90, days, reflecting the legislative change in 44 U.S.C.
3507(c)(3).
Proposed Sec. 1320.12(f): Paragraph (f)(1) (i) and (ii) is amended
to reflect the legislative changes in 44 U.S.C. 3507(h)(2). Paragraph
(f)(1)(iii) is equivalent to existing Sec. 1320.14(f). Paragraph (f)(2)
is equivalent to Sec. 1320.14(g).
Proposed Sec. 1320.12(g) is equivalent to existing Sec. 1320.14(h).
Proposed Sec. 1320.12(h): Paragraph (h)(1) is equivalent to
existing Sec. 1320.14(i). Paragraph (h)(2) is equivalent to the second
sentence in existing Sec. 1320.5(a)(2).
Proposed Sec. 1320.12(i): This paragraph is equivalent to the first
three sentences of existing Sec. 1320.11(f) (see proposed
Sec. 1320.10(f)).
N. Proposed Section 1320.13--Emergency Processing
Proposed Sec. 1320.13 is equivalent to existing Sec. 1320.18, but
is amended to reflect the legislative changes in 44 U.S.C. 3507(b),
(c), and (j). OMB is proposing to delete existing Sec. 1320.18(g)
concerning ``expedited'' processing. Given the legislative changes in
44 U.S.C. 3507(b) and (c), OMB is obligated, unless OMB receives a
request for emergency processing under this section, to provide at
least 30 days for public comment prior to making a decision and make
its decision within 60 days after receipt of the clearance request or
publication of the notice in the Federal Register required by proposed
Sec. 1320.5(a)(1)(iv), whichever is later.
O. Proposed Section 1320.14--Public Access
Proposed Sec. 1320.14(a) is equivalent to existing Sec. 1320.19.
Proposed Sec. 1320.14(b) is equivalent to existing Sec. 1320.11(b).
Proposed Sec. 1320.14.(c) is new, and reflects the legislative
changes in 44 U.S.C. 3517(b). Any person may request OMB to review any
collection of [[Page 30444]] information conducted by or for an agency
to determine, if a person is obligated to maintain, provide, or
disclose the information to or for an agency. Unless the request is
frivolous, OMB is, in coordination with the responsible agency, to
respond to the request within 60 days (unless notice is given of an
extension to a specified date) and to take appropriate remedial action,
as necessary.
P. Proposed Section 1320.15--Independent Regulatory Agency Override
Authority
Proposed Sec. 1320.15 is equivalent to existing Sec. 1320.20,
except that it is amended to reflect the legislative changes in 44
U.S.C. 3507(f) and 44 U.S.C. 3512(a).
Q. Proposed Section 1320.16--Delegation of Approval Authority
Proposed Sec. 1320.16 is equivalent to existing Sec. 1320.9, except
that it is amended to reflect the legislative changes in 44 U.S.C.
3506(a)(3).
R. Proposed Section 1320.17--Information Collection Budget
Proposed Sec. 1320.17 is equivalent to the first and last sentences
in existing Sec. 1320.10.
S. Proposed Section 1320.18--Other Authority
Proposed Sec. 1320.18 is equivalent to existing Sec. 1320.22.
T. Appendix A--Agencies with Delegated Review and Approval Authority
Proposed new Appendix A is substantively identical to existing
Appendix A. Appendix A contains the delegations to the Federal Reserve
Board and to the Federal Communications Commission. OMB is proposing to
make only conforming changes, e.g., to revise the section cross-
references in the delegations to the proposed sections in the
regulation. No substantive changes are proposed.
Q. Other Amendments
Other proposed amendments to 5 CFR Part 1320 include the deletion
of terms that are no longer used in this Part, e.g., ``Educational
agency or institution'' and ``A Federal education program,'' and of
sections that are no longer pertinent, e.g., existing Sec. 1320.16,
entitled ``Collections of information prescribed by another agency,''
and existing Sec. 1320.17, entitled ``Interagency reporting.''
Assessment of Potential Costs and Benefits and Regulatory Flexibility
Act Analysis
OMB has analyzed the effects of this rule under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Copies of this analysis are
available upon request. In summary, OMB has concluded that these
amendments will have a salutary impact on small entities through the
reduction of unnecessary paperwork.
For purposes of the Unfunded Mandates Reform Act of 1995 (P.L. 104-
4), as well as Executive Order No. 12875, this rule does not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, or by the private sector.
Issued in Washington, D.C., May 31, 1995.
Sally Katzen,
Administrator, Office of Information and Regulatory Affairs.
List of Subjects in 5 CFR Part 1320
Reporting and recordkeeping requirements, Paperwork, Collections of
information.
For the reasons set forth in the preamble, OMB proposes to revise 5
CFR Part 1320 as follows:
PART 1320: CONTROLLING PAPERWORK BURDENS ON THE PUBLIC
Sec.
1320.1 Purpose.
1320.2 Effect.
1320.3 Definitions.
1320.4 Coverage.
1320.5 General requirements.
1320.6 Public protection.
1320.7 Agency head and Senior Official responsibilities.
1320.8 Agency collection of information responsibilities.
1320.9 Agency certifications for proposed collections of
information.
1320.10 Clearance of collections of information, other than those
contained in proposed rules or in current rules.
1320.11 Clearance of collections of information in proposed rules.
1320.12 Clearance of collections of information in current rules.
1320.13 Emergency processing.
1320.14 Public access.
1320.15 Independent regulatory agency override authority.
1320.16 Delegation of approval authority.
1320.17 Information collection budget.
1320.18 Other authority.
Appendix A: Agencies With Delegated Review and Approval Authority
Authority: 31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27,
29, 31, 35.
Sec. 1320.1 Purpose.
The purpose of this part is to implement the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (the Act)
concerning collections of information. It is issued under the authority
of section 3516 of the Act, which provides that ``The Director shall
promulgate rules, regulations, or procedures necessary to exercise the
authority provided by this chapter.'' It is designed to minimize and
control burdens and maximize the practical utility and public benefit
of the collection of information by or for Federal agencies from
individuals, small businesses, educational and nonprofit institutions,
Federal contractors, State, local and tribal governments, and other
persons.
Sec. 1320.2 Effect.
(a) Except as provided in paragraph (b) of this section, this part
takes effect on October 1, 1995.
(b)(1) In the case of a collection of information for which there
is in effect on September 30, 1995, a control number issued by the
Office of Management and Budget under 44 U.S.C. Chapter 35, the
provisions of this part shall take effect beginning on the earlier of:
(i) The date of the first extension of approval for or modification
of that collection of information after September 30, 1995; or
(ii) The date of the expiration of the OMB control number after
September 30, 1995.
(2) Prior to such extension of approval, modification, or
expiration, the collection of information shall be subject to 5 CFR
part 1320, as in effect on September 30, 1995.
Sec. 1320.3 Definitions.
For purposes of implementing the Act and this part, the following
terms are defined as follows:
(a) Agency means any executive department, military department,
Government corporation, Government controlled corporation, or other
establishment in the executive branch of the government, or any
independent regulatory agency, but does not include:
(1) The General Accounting Office;
(2) Federal Election Commission;
(3) The governments of the District of Columbia and the territories
and possessions of the United States, and their various subdivisions;
or
(4) Government-owned contractor-operated facilities, including
laboratories engaged in national defense research and production
activities.
(b)(1) Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency,
including: [[Page 30445]]
(i) Reviewing instructions;
(ii) Developing, acquiring, installing, and utilizing technology
and systems for the purpose of collecting, validating, and verifying
information;
(iii) Developing, acquiring, installing, and utilizing technology
and systems for the purpose of processing and maintaining information;
(iv) Developing, acquiring, installing, and utilizing technology
and systems for the purpose of disclosing and providing information;
(v) Adjusting the existing ways to comply with any previously
applicable instructions and requirements;
(vi) Training personnel to respond to a collection of information;
(vii) Searching data sources;
(viii) Completing and reviewing the collection of information; and
(ix) Transmitting, or otherwise disclosing the information.
(2) The time, effort, and financial resources necessary to comply
with a collection of information that would be incurred by persons in
the normal course of their activities (e.g., in compiling and
maintaining business records) will be excluded from the ``burden'' if
the agency demonstrates that the reporting, recordkeeping, or
disclosure activities needed to comply are usual and customary.
(3) A collection of information conducted or sponsored by a Federal
agency that is also conducted or sponsored by a unit of State, local,
or tribal government is presumed to impose a Federal burden except to
the extent that the agency shows that such State, local, or tribal
requirement would be imposed even in the absence of a Federal
requirement.
(c) Collection of information means, except as provided in
Sec. 1320.4, the obtaining, causing to be obtained, soliciting, or
requiring the disclosure to an agency, third parties or the public of
information by or for an agency by means of identical questions posed
to, or identical reporting, recordkeeping, or disclosure requirements
imposed on, ten or more persons, whether such collection of information
is mandatory, voluntary, or required to obtain a benefit. ``Collection
of information'' includes any requirement or request for persons to
obtain, maintain, retain, report, or publicly disclose information. As
used in this part, ``collection of information'' refers to the act of
collecting or disclosing information, to the information to be
collected or disclosed, to a plan and/or an instrument calling for the
collection or disclosure of information, or any of these, as
appropriate.
(1) ``Collection of information'' includes the use of report forms,
application forms, schedules, questionnaires, surveys, reporting or
recordkeeping requirements, or other similar methods. Similar methods
may include contracts; agreements; policy statements; plans; rules or
regulations; collections of information contained in, derived from, or
authorized by such rules or regulations; planning requirements;
circulars; directives; instructions; bulletins; requests for proposal
or other procurement requirements; interview guides; oral
communications; posting, notification, labeling, or similar disclosure
requirements; telegraphic or telephonic requests; automated collection
techniques; standard questionnaires used to monitor compliance with
agency requirements; or any other techniques or technological methods
used to monitor compliance with agency requirements. A ``collection of
information'' may implicitly or explicitly include related
recordkeeping requirements.
(2) Requirements by an agency for a person to obtain or compile
information for the purpose of disclosure to members of the public or
the public at large, through posting, notification, labeling or similar
disclosure requirements constitute the ``collection of information''
whenever the same requirement to obtain or compile information would be
a ``collection of information'' if the information were directly
provided to the agency. The public disclosure of information originally
supplied by the Federal government to the recipient for the purpose of
disclosure to the public is not included within this definition.
(3) ``Collection of information'' includes questions posed to
agencies, instrumentalities, or employees of the United States, if the
results are to be used for general statistical purposes.
(4) As used in paragraph (c) of this section, ``ten or more
persons'' refers to the persons to whom a collection of information is
addressed by the agency within any 12-month period, and to any
independent entities to which the initial addressee may reasonably be
expected to transmit the collection of information during that period,
including independent State, territorial, tribal or local entities and
separately incorporated subsidiaries or affiliates. For the purposes of
this definition of ``ten or more persons,'' ``persons'' does not
include employees of the respondent acting within the scope of their
employment, contractors engaged by a respondent for the purpose of
complying with the collection of information, or current employees of
the Federal government (including military reservists and members of
the National Guard while on active duty) when acting within the scope
of their employment, but it does include retired and other former
Federal employees.
(i) Any recordkeeping, reporting, or disclosure requirement
contained in a rule of general applicability is deemed to involve ten
or more persons.
(ii) Any collection of information addressed to all or a
substantial majority of an industry is presumed to involve ten or more
persons.
(d) Conduct or Sponsor. A Federal agency is considered to ``conduct
or sponsor'' a collection of information if the agency collects the
information, causes another agency to collect the information,
contracts or enters into a cooperative agreement with a person to
collect the information, or requires a person to provide information to
another person, or in similar ways causes another agency, contractor,
partner in a cooperative agreement, or person to obtain, solicit, or
require the disclosure to third parties or the public of information by
or for an agency. A collection of information undertaken by a recipient
of a Federal grant is considered to be ``conducted or sponsored'' by an
agency only if:
(1) The recipient of a grant is conducting the collection of
information at the specific request of the agency; or
(2) The terms and conditions of the grant require specific approval
by the agency of the collection of information or collection
procedures.
(e) Director means the Director of OMB, or his or her designee.
(f) Display means:
(1) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents (other than in an electronic format), to place the
currently valid OMB control number on the front page of the collection
of information;
(2) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents in an electronic format, to place the currently valid OMB
control number in the instructions, near the title of the electronic
collection instrument, or, foron-line applications, on the first screen
viewed by the respondent;
(3) In the case of collections of information published in
regulations, guidelines, and other issuances in the Federal Register,
to publish the currently valid OMB control number in the Federal
Register (for example, in the case of a collection of information in a
[[Page 30446]] regulation, by publishing the OMB control number in the
preamble or the regulatory text for the final rule, in a technical
amendment to the final rule, or in a separate notice announcing OMB
approval of the collection of information) and/or in the Code of
Federal Regulations. For ease of future reference, OMB recommends that,
even where an agency has already ``displayed'' the OMB control number
by publishing it in the Federal Register, the agency also publish the
currently valid OMB control number in the Code of Federal Regulations.
(4) In other cases, and where OMB determines in advance in writing
that special circumstances exist, to use other means to inform
potential respondents of the OMB control number.
(g) Independent regulatory agency means the Board of Governors of
the Federal Reserve System, the Commodity Futures Trading Commission,
the Consumer Product Safety Commission, the Federal Communications
Commission, the Federal Deposit Insurance Corporation, the Federal
Energy Regulatory Commission, the Federal Housing Finance Board, the
Federal Maritime Commission, the Federal Trade Commission, the
Interstate Commerce Commission, the Mine Enforcement Safety and Health
Commission, the National Labor Relations Board, the Nuclear Regulatory
Commission, the Occupational Safety and Health Review Commission, the
Postal Rate Commission, the Securities and Exchange Commission, and any
other similar agency designated by statute as a Federal independent
regulatory agency or commission.
(h) Information means any statement of fact or opinion, regardless
of form or format, whether in numerical, graphic, or narrative form,
and whether oral or maintained on paper, electronic or other media.
``Information'' does not generally include items in the following
categories; however, OMB may determine that any specific item
constitutes ``information'':
(1) Affidavits, oaths, affirmations, certifications, receipts,
changes of address, consents, or acknowledgments; provided that they
entail no burden other than that necessary to identify the respondent,
the date, the respondent's address, and the nature of the instrument
(by contrast, a certification would likely involve the collection of
``information'' if an agency conducted or sponsored it as a substitute
for a collection of information to collect evidence of, or to monitor,
compliance with regulatory standards, because such a certification
would generally entail burden in addition to that necessary to identify
the respondent, the date, the respondent's address, and the nature of
the instrument);
(2) Samples of products or of any other physical objects;
(3) Facts or opinions obtained through direct observation by an
employee or agency of the sponsoring agency or through nonstandardized
oral communication in connection with such direct observations;
(4) Facts or opinions submitted in response to general
solicitations of comments from the public, published in the Federal
Register or other publications, regardless of the form or format
thereof, provided that no person is required to supply specific
information pertaining to the commenter, other than that necessary for
self-identification, as a condition of the agency's full consideration
of the comment;
(5) Facts or opinions obtained initially or in follow-on requests,
from individuals (including individuals in control groups) under
treatment or clinical examination in connection with research on or
prophylaxis to prevent a clinical disorder, direct treatment of that
disorder, or the interpretation of biological analyses of body fluids,
tissues, or other specimens, or the identification or classification of
such specimens;
(6) A request for facts or opinions addressed to a single person;
(7) Examinations designed to test the aptitude, abilities, or
knowledge of the persons tested and the collection of information for
identification or classification in connection with such examinations;
(8) Facts or opinions obtained or solicited at or in connection
with public hearings or meetings;
(9) Facts or opinions obtained or solicited through nonstandardized
follow-up questions designed to clarify responses to approved
collections of information; and
(10) Like items so designated by OMB.
(i) OMB refers to the Office of Management and Budget.
(j) Penalty includes the imposition by an agency or court of a fine
or other punishment; a judgment for monetary damages or equitable
relief; or the revocation, suspension, reduction, or denial of a
license, privilege, right, grant, or benefit.
(k) Person means an individual, partnership, association,
corporation (including operations of government-owned contractor-
operated facilities), business trust, or legal representative, an
organized group of individuals, a State, territorial, tribal, or local
government or branch thereof, or a political subdivision of a State,
territory, tribal, or local government or a branch of a political
subdivision;
(l) Practical utility means the actual, not merely the theoretical
or potential, usefulness of information to or for an agency, taking
into account its accuracy, adequacy, and reliability, and the agency's
ability to process the information it collects (or the public's ability
to process the information it receives, in the case of a third-party or
public disclosure) in a useful and timely fashion. In determining
whether information will have ``practical utility,'' OMB will take into
account whether the agency demonstrates actual timely use for the
information either to carry out its functions or make it available to
third-parties or the public, either directly or by means of a third-
party or public posting, notification, labeling, or similar disclosure
requirement, for the use of persons who have an interest in entities or
transactions over which the agency has jurisdiction. In the case of
recordkeeping or general purpose statistics, which are those statistics
collected chiefly for public and general government uses and without
primary reference to policy or program operations of the agency
collecting the information, ``practical utility'' means that actual
uses can be demonstrated.
(m) Recordkeeping requirement means a requirement imposed by or for
an agency on persons to maintain specified records, including a
requirement to:
(1) Retain such records;
(2) Notify third parties, the Federal government, or the public of
the existence of such records;
(3) Disclose such records to third parties, the Federal government,
or the public; or
(4) Report to third parties, the Federal government, or the public
regarding such records.
Sec. 1320.4 Coverage.
(a) The requirements of this Part apply to all agencies as defined
in Sec. 1320.3(a) and to all collections of information conducted or
sponsored by those agencies, as defined in Sec. 1320.3(c) and (d),
wherever conducted or sponsored, but, except as provided in paragraph
(b) of this section, shall not apply to collections of information:
(1) During the conduct of a Federal criminal investigation or
prosecution, or during the disposition of a particular criminal matter;
(2) During the conduct of a civil action to which the United States
or any official or agency thereof is a part, or during the conduct of
an administrative [[Page 30447]] action or investigation involving an
agency against specific individuals or entities;
(3) By compulsory process pursuant to the Antitrust Civil Process
Act and section 13 of the Federal Trade Commission Improvements Act of
1980; or
(4) During the conduct of intelligence activities as defined in
section 3.4(e) of Executive Order No. 12333, issued December 4, 1981,
or successor orders, or during the conduct of cryptologic activities
that are communications security activities.
(b) The requirements of this part apply to the collection of
information during the conduct of general investigations (other than
information collected in an antitrust investigation to the extent
provided in paragraph (a)(3) of this section) undertaken with reference
to a category of individuals or entities such as a class of licensees
or an entire industry.
(c) The exception in paragraph (a)(2) of this section applies
during the entire course of the investigation or action, whether before
or after formal charges or complaints are filed or formal
administrative action is initiated, but only after a case file or
equivalent is opened with respect to a particular party. In accordance
with paragraph (b) of this section, collections of information prepared
or undertaken with reference to a category of individuals or entities,
such as a class of licensees or an industry, do not fall within this
exception.
Sec. 1320.5 General requirements.
(a) An agency shall not conduct or sponsor a collection of
information unless, in advance of the adoption or revision of the
collection of information--
(1) The agency has--
(i) Conducted the review required in Sec. 1320.8;
(ii) Evaluated the public comments received under Sec. 1320.8(d)
and Sec. 1320.11;
(iii) Submitted to the Director, in accordance with such procedures
and in such form as OMB may specify,
(A) The certification required under Sec. 1320.9;
(B) The proposed collection of information in accordance with
Sec. 1320.10, Sec. 1320.11, or Sec. 1320.12, as appropriate;
(C) An explanation for the decision that it would not be
appropriate, under Sec. 1320.8(b)(1), for a proposed collection of
information to display an expiration date;
(D) An explanation for the decision to provide for any payment or
gift to respondents, other than remuneration of contractors or
grantees;
(E) A statement indicating whether (and if so, to what extent) the
proposed collection of information involves the use of automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses, and an explanation for
the decision;
(F) A summary of the public comments received under Sec. 1320.8(d),
including actions taken by the agency in response to the comments, and
the date and page of the publication in the Federal Register of the
notice therefor; and
(G) Copies of pertinent statutory authority, regulations, and such
related supporting materials as OMB may request; and
(iv) Published, except as provided in Sec. 1320.13(d), a notice
(requesting comments within 30 days) in the Federal Register--
(A) Stating that the agency has made such submission; and
(B) Setting forth--
(1) A title for the collection of information;
(2) A summary of the collection of information;
(3) A brief description of the need for the information and
proposed use of the information;
(4) A description of the likely respondents and proposed frequency
of response to the collection of information;
(5) An estimate of the total annual reporting and recordkeeping
burden that shall result from the collection of information, which
shall for each collection of information be disaggregated and set forth
in terms of the estimated average burden hours per response, the
proposed frequency of response, and the estimated number of likely
respondents;
(6) Notice that comments may be submitted to the agency and OMB;
and
(7) The time period within which the agency is requesting OMB to
approve or disapprove the collection of information if, at the time of
submittal of a collection of information for OMB review under
Sec. 1320.10, Sec. 1320.11 or Sec. 1320.12, the agency plans to request
or has requested OMB to conduct its review on an emergency basis under
Sec. 1320.13; and
(2) OMB has approved the proposed collection of information, OMB's
approval has been inferred under Sec. 1320.10(c), Sec. 1320.11(i), or
Sec. 1320.12(e), or OMB's disapproval has been voided by an independent
regulatory agency under Sec. 1320.15; and
(3) The agency has obtained from the Director a control number to
be displayed upon the collection of information.
(b) In addition to the requirements in paragraph (a) of this
section, an agency shall not conduct or sponsor a collection of
information unless:
(1) The collection of information displays a currently valid OMB
control number; and
(2)(i) The agency informs the potential persons who are to respond
to the collection of information that such persons are not required to
respond to the collection of information unless it displays a currently
valid OMB control number.
(ii) An agency shall provide the information described in paragraph
(b)(2)(i) of this section in a manner that is reasonably calculated to
inform the public.
(A) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents (other than in an electronic format), the information
described in paragraph (b)(2)(i) of this section is provided ``in a
manner that is reasonably calculated to inform the public'' if the
agency includes it either on the form, questionnaire or other
collection of information, or in the instructions for such collection.
(B) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents in an electronic format, the information described in
paragraph (b)(2)(i) of this section is provided ``in a manner that is
reasonably calculated to inform the public'' if the agency places the
currently valid OMB control number in the instructions, near the title
of the electronic collection instrument, or, for on-line applications,
on the first screen viewed by the respondent;
(C) In the case of collections of information published in
regulations, guidelines, and other issuances in the Federal Register,
the information described in paragraph (b)(2)(i) of this section is
``provided in a manner reasonably calculated to inform the public'' if
the agency publishes such information in the Federal Register (for
example, in the case of a collection of information in a regulation, by
publishing such information in the preamble or the regulatory text, or
in a technical amendment to the regulation, or in a separate notice
announcing OMB approval of the collection of information) and/or in the
Code of Federal Regulations. For ease of future reference, OMB
recommends that, even where an agency has already provided such
information and informed the [[Page 30448]] public by publishing it in
the Federal Register, the agency is encouraged to also publish such
information in the Code of Federal Regulations.
(D) In other cases, and where OMB determines in advance in writing
that special circumstances exist, to use other means to inform
potential respondents of such information.
(c)(1) Agencies shall submit all collections of information, other
than those contained in proposed rules published for public comment in
the Federal Register or in current regulations that were published as
final rules in the Federal Register, in accordance with the
requirements in Sec. 1320.10. Agencies shall submit collections of
information contained in interim final rules or direct final rules in
accordance with the requirements of Sec. 1320.10.
(2) Agencies shall submit collections of information contained in
proposed rules published for public comment in the Federal Register in
accordance with the requirements in Sec. 1320.11.
(3) Agencies shall submit collections of information contained in
current regulations that were published as final rules in the Federal
Register in accordance with the requirements in Sec. 1320.12.
(4) Special rules for emergency processing of collections of
information are set forth in Sec. 1320.13.
(5) For purposes of time limits for OMB review of collections of
information, any submission properly submitted and received by OMB
after 12:00 noon will be deemed to have been received on the following
business day.
(d)(1) To obtain OMB approval of a collection of information, an
agency shall demonstrate that it has taken every reasonable step to
ensure that the proposed collection of information:
(i) Is the least burdensome necessary for the proper performance of
the agency's functions to comply with legal requirements and achieve
program objectives;
(ii) Is not duplicative of information otherwise accessible to the
agency; and
(iii) Has practical utility. The agency shall also seek to minimize
the cost to itself of collecting, processing, and using the
information, but shall not do so by means of shifting disproportionate
costs or burdens onto the public.
(2) Unless the agency is able to demonstrate, in its submission for
OMB clearance, that such characteristic of the collection of
information is necessary to satisfy statutory requirements or other
substantial need, OMB will not approve a collection of information--
(i) Requiring respondents to report information to the agency more
often than quarterly;
(ii) Requiring respondents to prepare a written response to a
collection of information in fewer than 30 days after receipt of it;
(iii) Requiring respondents to submit more than an original and two
copies of any document;
(iv) Requiring respondents to retain records, other than health,
medical, government contract, grant-in-aid, or tax records, for more
than three years;
(v) In connection with a statistical survey, that is not designed
to produce valid and reliable results that can be generalized to the
universe of study;
(vi) Requiring the use of a statistical data classification that
has not been reviewed and approved by OMB;
(vii) Collecting information at the request of another country or
an international organization unless such request has been reviewed,
coordinated, and approved by OMB;
(viii) That includes a pledge of confidentiality that is not
supported by authority established in statute or regulation, that is
not supported by disclosure and data security policies that are
consistent with the pledge, or which unnecessarily impedes sharing of
data with other agencies for compatible confidential use; or
(ix) Requiring respondents to submit proprietary, trade secret, or
other confidential information unless the agency can demonstrate that
it has instituted procedures to protect the information's
confidentiality to the extent permitted by law--
(e) OMB shall determine whether the collection of information, as
submitted by the agency, is necessary for the proper performance of the
agency's functions. In making this determination, OMB will take into
account the criteria set forth in paragraph (d) of this section, and
will consider whether the burden of the collection of information is
justified by its practical utility. In addition:
(1) OMB will consider necessary any collection of information
specifically mandated by statute or court order, but will independently
assess any collection of information to the extent that the agency
exercises discretion in its implementation; and
(2) OMB will consider necessary any collection of information
specifically required by an agency rule approved or not acted upon by
OMB under Sec. 1320.11 or Sec. 1320.12, but will independently assess
any such collection of information to the extent that it deviates from
the specifications of the rule.
(f) Except as provided in Sec. 1320.15, to the extent that OMB
determines that all or any portion of a collection of information is
unnecessary, for any reason, the agency shall not engage in such
collection or portion thereof. OMB will reconsider its disapproval of a
collection of information upon the request of the agency head or Senior
Official only if the sponsoring agency is able to provide significant
new or additional information relevant to the original decision.
(g) An agency may not make a substantive or material modification
to a collection of information after such collection of information has
been approved by OMB, unless the modification has been submitted to OMB
for review and approval under this art.
(h) An agency should consult with OMB before continuing to use OMB-
approved forms or other collections of information after the expiration
date printed thereon (in those cases for which an expiration date is
printed thereon).
Sec. 1320.6 Public protection.
(a) Notwithstanding any other provision of law, no person shall be
subject to any penalty for failing to comply with a collection of
information that is subject to the requirements of this part if:
(1) The collection of information does not display, in accordance
with Sec. 1320.3(f) and Sec. 1320.5(b)(1), a currently valid OMB
control number assigned by the Director in accordance with the Act; or
(2) The agency fails to inform the potential person who is to
respond to the collection of information, in accordance with
Sec. 1320.5(b)(2), that such person is not required to respond to the
collection of information unless it displays a currently valid OMB
control number.
(b) The protection provided by paragraph (a) of this section may be
raised in the form of a complete defense, bar, or otherwise to the
imposition of such penalty at any time during the agency administrative
process in which such penalty may be imposed or in any judicial action
applicable thereto.
(c) Whenever an agency has imposed a collection of information as a
means for proving or satisfying a condition for the receipt of a
benefit or the avoidance of a penalty, and the collection of
information does not display a currently valid OMB control number or
inform the potential persons who are to respond to the collection of
information, as prescribed in Sec. 1320.5(b), the agency shall not
treat a person's failure to comply, in and of itself, as grounds for
withholding the benefit or imposing the [[Page 30449]] penalty. The
agency shall instead permit respondents to prove or satisfy the legal
conditions in any other reasonable manner.
(1) If OMB disapproves the whole of such a collection of
information (and the disapproval is not overridden under Sec. 1320.15),
the agency shall grant the benefit to (or not impose the penalty on)
otherwise qualified persons without requesting further proof concerning
the condition.
(2) If OMB instructs an agency to make a substantive or material
change to such a collection of information (and the instruction is not
overridden under Sec. 1320.15), the agency shall permit respondents to
prove or satisfy the condition by complying with the collection of
information as so changed.
(d) Whenever a member of the public is protected from imposition of
a penalty under this section for failure to comply with a collection of
information, such penalty may not be imposed by an agency directly, by
an agency through judicial process, or by any other person through
administrative or judicial process.
(e) The protection provided by paragraph (a) of this section does
not preclude the imposition of a penalty on a person for failing to
comply with a collection of information that is imposed on the person
by statute--e.g., 26 U.S.C. 6011(a) (statutory requirement for person
to file a tax return), 42 U.S.C. 6938(c) (statutory requirement for
person to provide notification before exporting hazardous waste).
Sec. 1320.7 Agency head and Senior Official responsibilities.
(a) Except as provided in paragraph (b) of this section, each
agency head shall designate a Senior Official to carry out the
responsibilities of the agency under the Act and this part. The Senior
Official shall report directly to the head of the agency and shall have
the authority, subject to that of the agency head, to carry out the
responsibilities of the agency under the Act and this part.
(b) An agency head may retain full undelegated review authority for
any component of the agency which by statute is required to be
independent of any agency official below the agency head. For each
component for which responsibility under the Act is not delegated to
the Senior Official, the agency head shall be responsible for the
performance of those functions.
(c) The Senior Official shall head an office responsible for
ensuring agency compliance with and prompt, efficient, and effective
implementation of the information policies and information resources
management responsibilities established under the Act, including the
reduction of information collection burdens on the public.
(d) With respect to the collection of information and the control
of paperwork, the Senior Official shall establish a process within such
office that is sufficiently independent of program responsibility to
evaluate fairly whether proposed collections of information should be
approved under this part.
(e) Agency submissions of collections of information for OMB
review, and the accompanying certifications under Sec. 1320.9, may be
made only by the agency head or the Senior Official, or their designee.
Sec. 1320.8 Agency collection of information responsibilities.
The office established under Sec. 1320.7 shall review each
collection of information before submission to OMB for review under
this part.
(a) This review shall include:
(1) An evaluation of the need for the collection of information,
which shall include, in the case of an existing collection of
information, an evaluation of the continued need for such collection;
(2) A functional description of the information to be collected;
(3) A plan for the collection of information;
(4) A specific, objectively supported estimate of burden, which
shall include, in the case of an existing collection of information, an
evaluation of the burden that has been imposed by such collection;
(5) An evaluation of whether (and if so, to what extent) the burden
on respondents can be reduced by use of automated collection techniques
or other forms of information technology, e.g., permitting electronic
submission of responses;
(6) A test of the collection of information through a pilot
program, if appropriate; and
(7) A plan for the efficient and effective management and use of
the information to be collected, including necessary resources.
(b) Such office shall ensure that each collection of information:
(1) Is inventoried, displays a currently valid OMB control number,
and, if appropriate, an expiration date;
(2) Is reviewed by OMB in accordance with the clearance
requirements of 44 U.S.C. 3507; and
(3) Informs and provides fair notice to the potential persons to
whom the collection of information is addressed of--
(i) The policy reasons the information is planned to be and/or has
been collected;
(ii) The way such information is planned to be and/or has been used
to further the proper performance of the functions of the agency;
(iii) An estimate, to the extent practicable, of the average burden
of the collection (together with a request that the public direct to
the agency any comments concerning the accuracy of this burden estimate
and any suggestions for reducing this burden);
(iv) Whether responses to the collection of information are
voluntary, required to obtain or retain a benefit (citing authority),
or mandatory (citing authority);
(v) The nature and extent of confidentiality to be provided, if any
(citing authority); and
(vi) The fact that an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
(c)(1) An agency shall provide the information described in
paragraphs (b)(3) (i) through (v) of this section as follows:
(i) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents (except in an electronic format), such information can be
included either on the form, questionnaire or other collection of
information, as part of the instructions for such collection, or in a
cover letter or memorandum that accompanies the collection of
information.
(ii) In the case of forms, questionnaires, instructions, and other
written collections of information sent or made available to potential
respondents in an electronic format, such information can be included
either in the instructions, near the title of the electronic collection
instrument, or, for on-line applications, on the first screen viewed by
the respondent;
(iii) In the case of collections of information published in
regulations, guidelines, and other issuances in the Federal Register,
such information can be published in the Federal Register (for example,
in the case of a collection of information in a regulation, by
publishing such information in the preamble or the regulatory text to
the final rule, or in a technical amendment to the final rule, or in a
separate notice announcing OMB approval of the collection of
information).
(iv) In other cases, and where OMB determines in advance in writing
that special circumstances exist, agencies [[Page 30450]] may use other
means to inform potential respondents.
(2) An agency shall provide the information described in paragraph
(b)(3)(vi) of this section in accordance with Sec. 1320.5(b)(2)(ii).
(d)(1) Before an agency submits a collection of information to OMB
for approval, and except as provided in paragraphs (d)(3) and (d)(4) of
this section, the agency shall provide 60-day notice in the Federal
Register, and otherwise consult with members of the public and affected
agencies concerning each proposed collection of information, to solicit
comment to:
(i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information;
(iii) Enhance the quality, utility, and clarity of the information
to be collected; and
(iv) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
(2) If the agency does not publish a copy of the proposed
collection of information, together with the related instructions, as
part of the Federal Register notice, the agency should--
(i) Provide more than 60-day notice to permit timely receipt, by
interested members of the public, of a copy of the proposed collection
of information and related instructions; or
(ii) Explain how and from whom an interested member of the public
can request and obtain a copy without charge, including, if applicable,
how the public can gain access to the collection of information and
related instructions electronically on demand.
(3) The agency need not separately seek such public comment for any
proposed collection of information contained in a proposed rule to be
reviewed under Sec. 1320.11, if the agency provides notice and comment
through the notice of proposed rulemaking for the proposed rule and
such notice specifically includes the solicitation of comments for the
same purposes as are listed under paragraph (d)(1) of this section.
(4) The agency need not seek or may shorten the time allowed for
such public comment if OMB grants an exemption from such requirement
for emergency processing under Sec. 1320.13.
Sec. 1320.9 Agency certifications for proposed collections of
information.
As part of the agency submission to OMB of a proposed collection of
information, the agency (through the head of the agency, the Senior
Official, or their designee) shall certify (and provide a record
supporting such certification) that the proposed collection of
information--
(a) Is necessary for the proper performance of the functions of the
agency, including that the information to be collected will have
practical utility;
(b) Is not unnecessarily duplicative of information otherwise
reasonably accessible to the agency;
(c) Reduces to the extent practicable and appropriate the burden on
persons who shall provide information to or for the agency, including
with respect to small entities, as defined in the Regulatory
Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:
(1) Establishing differing compliance or reporting requirements or
timetables that take into account the resources available to those who
are to respond;
(2) The clarification, consolidation, or simplification of
compliance and reporting requirements; or
(3) An exemption from coverage of the collection of information, or
any part thereof;
(d) Is written using plain, coherent, and unambiguous terminology
and is understandable to those who are to respond;
(e) Is to be implemented in ways consistent and compatible, to the
maximum extent practicable, with the existing reporting and
recordkeeping practices of those who are to respond;
(f) Indicates for each recordkeeping requirement the length of time
persons are required to maintain the records specified;
(g) Informs potential respondents of the information called for
under Sec. 1320.8(b)(3);
(h) Has been developed by an office that has planned and allocated
resources for the efficient and effective management and use of the
information to be collected, including the processing of the
information in a manner which shall enhance, where appropriate, the
utility of the information to agencies and the public;
(i) Uses effective and efficient statistical survey methodology
appropriate to the purpose for which the information is be collected;
and
(j) To the maximum extent practicable, uses appropriate information
technology to reduce burden and improve data quality, agency efficiency
and responsiveness to the public.
Sec. 1320.10 Clearance of collections of information, other than those
contained in proposed rules or in current rules.
Agencies shall submit all collections of information, other than
those contained either in proposed rules published for public comment
in the Federal Register (which are submitted under Sec. 1320.11) or in
current rules that were published as final rules in the Federal
Register (which are submitted under Sec. 1320.12), in accordance with
the following requirements:
(a) On or before the date of submission to OMB, the agency shall,
in accordance with the requirements in Sec. 1320.5(a)(1)(iv), forward a
notice to the Federal Register stating that OMB approval is being
sought. The notice shall direct requests for information, including
copies of the proposed collection of information and supporting
documentation, to the agency, and shall request that comments be
submitted to OMB within 30 days of the notice's publication. The notice
shall direct comments to the Office of Information and Regulatory
Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of
the notice submitted to the Federal Register, together with the date of
expected publication, shall be included in the agency's submission to
OMB.
(b) Within 60 days after receipt of the proposed collection of
information or publication of the notice under paragraph (a) of this
section, whichever is later, OMB shall notify the agency involved of
its decision to approve, to instruct the agency to make a substantive
or material change to, or to disapprove, the collection of information,
and shall make such decision publicly available. OMB shall provide at
least 30 days for public comment after receipt of the proposed
collection of information before making its decision, except as
provided under Sec. 1320.13. Upon approval of a collection of
information, OMB shall assign an OMB control number and, if
appropriate, an expiration date. OMB shall not approve any collection
of information for a period longer than three years.
(c) If OMB fails to notify the agency of its approval, instruction
to make substantive or material change, or disapproval within the 60-
day period, the agency may request, and OMB shall assign without
further delay, an OMB control number that shall be valid for not more
than one year.
(d) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may
not conduct [[Page 30451]] or sponsor a collection of information
unless the collection of information displays a currently valid OMB
control number and the agency informs potential persons who are to
respond to the collection of information that such persons are not
required to respond to the collection of information unless it displays
a currently valid OMB control number.
(e)(1) In the case of a collection of information not contained in
a published current rule which has been approved by OMB and has a
currently valid OMB control number, the agency shall:
(i) Conduct the review established under Sec. 1320.8, including the
seeking of public comment under Sec. 1320.8(d); and
(ii) After having made a reasonable effort to seek public comment,
but no later than 60 days before the expiration date of the OMB control
number for the currently approved collection of information, submit the
collection of information for review and approval under this Part,
which shall include an explanation of how the agency has used the
information that it has collected.
(2) The agency may continue to conduct or sponsor the collection of
information while the submission is pending at OMB.
(f) Prior to the expiration of OMB's approval of a collection of
information, OMB may decide on its own initiative, after consultation
with the agency, to review the collection of information. Such
decisions will be made only when relevant circumstances have changed or
the burden estimates provided by the agency at the time of initial
submission were materially in error. Upon notification by OMB of its
decision to review the collection of information, the agency shall
submit it to OMB for review under this part.
(g) For good cause, after consultation with the agency, OMB may
stay the effectiveness of its prior approval of any collection of
information that is not specifically required by agency rule; in such
case, the agency shall cease conducting or sponsoring such collection
of information while the submission is pending, and shall publish a
notice in the Federal Register to that effect.
Sec. 1320.11 Clearance of collections of information in proposed
rules.
Agencies shall submit collections of information contained in
proposed rules published for public comment in the Federal Register in
accordance with the following requirements:
(a) The agency shall include, in accordance with the requirements
in Sec. 1320.5(a)(1)(iv), in the preamble to the Notice of Proposed
Rulemaking a statement that the collections of information contained in
the proposed rule, and identified as such, have been submitted to OMB
for review under section 3507(d) of the Act. The statement shall
request that comments be submitted to OMB within 60 days of the
notice's publication. The notice shall direct comments to the Office of
Information and Regulatory Affairs of OMB, Attention: Desk Officer for
[name of agency].
(b) All such submissions shall be made to OMB not later than the
day on which the Notice of Proposed Rulemaking is published in the
Federal Register, in such form and in accordance with such procedures
as OMB may direct. Such submissions shall include a copy of the
proposed regulation and preamble.
(c) Within 60 days of publication of the proposed rule, but subject
to paragraph (e) of this section, OMB may file public comments on
collection of information provisions. The OMB comments shall be in the
form of an OMB Notice of Action, which shall be sent to the Senior
Official or agency head, or their designee, and which shall be made a
part of the agency's rulemaking record.
(d) If an agency submission is not in compliance with paragraph (b)
of this section, OMB may, subject to paragraph (e) of this section,
disapprove the collection of information in the proposed rule within 60
days of receipt of the submission. If an agency fails to submit a
collection of information subject to this section, OMB may, subject to
paragraph (e) of this section, disapprove it at any time.
(e) OMB shall provide at least 30 days after receipt of the
proposed collection of information before submitting its comments or
making its decision, except as provided under Sec. 1320.13.
(f) When the final rule is published in the Federal Register, the
agency shall explain how any collection of information contained in the
final rule responds to any comments received from OMB or the public.
The agency shall include an identification and explanation of any
modifications made in the rule, or explain why it rejected the
comments. If requested by OMB, the agency shall include OMB's comments
in the preamble to the final rule.
(g) If OMB has not filed public comments under paragraph (c) of
this section, or has approved without conditions the collection of
information contained in a rule before the final rule is published in
the Federal Register, OMB may assign an OMB control number prior to
publication of the final rule.
(h) On or before the date of publication of the final rule, the
agency shall submit the final rule to OMB, unless it has been approved
under paragraph (g) of this section (and not substantively or
materially modified by the agency after approval). Not later than 60
days after publication, but subject to paragraph (e) of this section,
OMB shall approve, instruct the agency to make a substantive or
material change to, or disapprove, the collection of information
contained in the final rule. Any such instruction to change or
disapprove may be based on one or more of the following reasons, as
determined by OMB:
(1) The agency has failed to comply with paragraph (b) of this
section;
(2) The agency had substantially modified the collection of
information contained in the final rule from that contained in the
proposed rule without providing OMB with notice of the change and
sufficient information to make a determination concerning the modified
collection of information at least 60 days before publication of the
final rule; or
(3) In cases in which OMB had filed public comments under paragraph
(c) of this section, the agency's response to such comments was
unreasonable, and the collection of information is unnecessary for the
proper performance of the agency's functions.
(i) After making such decision to approve, to instruct the agency
to make a substantive or material change to, or disapprove, the
collection of information, OMB shall so notify the agency. If OMB
approves the collection of information or if it has not acted upon the
submission within the time limits of this section, the agency may
request, and OMB shall assign an OMB control number. If OMB disapproves
or instructs the agency to make substantive or material change to the
collection of information, it shall make the reasons for its decision
publicly available.
(j) OMB shall not approve any collection of information under this
section for a period longer than three years. Approval of such
collection of information will be for the full three-year period,
unless OMB determines that there are special circumstances requiring
approval for a shorter period.
(k) After receipt of notification of OMB's approval, instruction to
make a substantive or material change to, disapproval of a collection
of information, or failure to act, the agency shall publish a notice in
the Federal Register to inform the public of OMB's decision.
[[Page 30452]]
(l) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may
not conduct or sponsor a collection of information unless the
collection of information displays a currently valid OMB control number
and the agency informs potential persons who are to respond to the
collection of information that such persons are not required to respond
to the collection of information unless it displays a currently valid
OMB control number.
Sec. 1320.12 Clearance of collections of information in current rules.
Agencies shall submit collections of information contained in
current rules that were published as final rules in the Federal
Register in accordance with the following procedures:
(a) In the case of a collection of information contained in a
published current rule which has been approved by OMB and has a
currently valid OMB control number, the agency shall:
(1) Conduct the review established under Sec. 1320.8, including the
seeking of public comment under Sec. 1320.8(d); and
(2) After having made a reasonable effort to seek public comment,
but no later than 60 days before the expiration date of the OMB control
number for the currently approved collection of information, submit the
collection of information for review and approval under this part,
which shall include an explanation of how the agency has used the
information that it has collected.
(b)(1) In the case of a collection of information contained in a
published current rule that was not required to be submitted for OMB
review under the Paperwork Reduction Act at the time the collection of
information was made part of the rule, but which collection of
information is now subject to the Act and this Part, the agency shall:
(i) Conduct the review established under Sec. 1320.8, including the
seeking of public comment under Sec. 1320.(8)(d); and
(ii) After having made a reasonable effort to seek public comment,
submit the collection of information for review and approval under this
part, which shall include an explanation of how the agency has used the
information that it has collected.
(2) The agency may continue to conduct or sponsor the collection of
information while the submission is pending at OMB. In the case of a
collection of information not previously approved, a control number
shall be granted for such period, which shall not exceed 60 days,
unless extended by the Director for an additional 60 days. Upon
assignment of an interim OMB control number, and in accordance with
Sec. 1320.3(f) and Sec. 1320.5(b), the agency shall display the number
and inform the potential persons who are to respond to the collection
of information that such persons are not required to respond to the
collection of information unless it displays a currently valid OMB
control number and the agency informs potential persons who are to
respond to the collection of information that such persons are not
required to respond to the collection of information unless it displays
a currently valid OMB control number.
(c) On or before the day of submission to OMB under paragraphs (a)
or (b) of this section, the agency shall, in accordance with the
requirements set forth in Sec. 1320.5(a)(1)(iv), forward a notice to
the Federal Register stating that OMB review is being sought. The
notice shall direct requests for copies of the collection of
information and supporting documentation to the agency, and shall
request that comments be submitted to OMB within 30 days of the
notice's publication. The notice shall direct comments to the Office of
Information and Regulatory Affairs of OMB, Attention: Desk Officer for
[name of agency]. A copy of the notice submitted to the Federal
Register, together with the date of expected publication, shall be
included in the agency's submission to OMB.
(d) Within 60 days after receipt of the collection of information
or publication of the notice under paragraph (c) of this section,
whichever is later, OMB shall notify the agency involved of its
decision to approve, to instruct the agency to make a substantive or
material change to, or to disapprove, the collection of information,
and shall make such decision publicly available. OMB shall provide at
least 30 days for public comment after receipt of the proposed
collection of information before making its decision, except as
provided under Sec. 1320.13.
(e) (1) Upon approval of a collection of information, OMB shall
assign an OMB control number and an expiration date. OMB shall not
approve any collection of information for a period longer than three
years. Approval of any collection of information submitted under this
section will be for the full three-year period, unless OMB determines
that there are special circumstances requiring approval for a shorter
period.
(2) If OMB fails to notify the agency of its approval, instruction
to make substantive or material change, or disapproval within the 60-
day period, the agency may request, and OMB shall assign without
further delay, an OMB control number that shall be valid for not more
than one year.
(3) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may
not conduct or sponsor a collection of information unless the
collection of information displays a currently valid OMB control number
and the agency informs potential persons who are to respond to the
collection of information that such persons are not required to respond
to the collection of information unless it displays a currently valid
OMB control number.
(f) (1) If OMB disapproves a collection of information contained in
an existing rule, or instructs the agency to make a substantive or
material change to a collection of information contained in an existing
rule, OMB shall:
(i) Publish an explanation thereof in the Federal Register; and
(ii) Instruct the agency to undertake a rulemaking within a
reasonable time limited to consideration of changes to the collection
of information contained in the rule and thereafter to subject the
collection of information for approval or disapproval under
Sec. 1320.10 or Sec. 1320.11, as appropriate; and
(iii) Extend the existing approval of the collection of information
(including an interim approval granted under paragraph (b) of this
section) for the duration of the period required for consideration of
proposed changes, including that required for OMB approval or
disapproval of the collection of information under Sec. 1320.10 or
Sec. 1320.11, as appropriate.
(2) Thereafter, the agency shall, within a reasonable period of
time not to exceed 120 days, undertake such procedures as are necessary
in compliance with the Administrative Procedure Act and other
applicable law to amend or rescind the collection of information, and
shall notify the public through the Federal Register. Such notice shall
identify the proposed changes in the collections of information and
shall solicit public comment on retention, change, or rescission of
such collections of information. If the agency employs notice and
comment rulemaking procedures for amendment or rescission of the
collection of information, publication of the above in the Federal
Register and submission to OMB shall initiate OMB clearance procedures
under section 3507(d) of the Act and Sec. 1320.11. All procedures shall
be completed within a reasonable period of time to be determined by OMB
in consultation with the agency.
(g) OMB may disapprove, in whole or in part, any collection of
information [[Page 30453]] subject to the procedures of this section,
if the agency:
(1) Has refused within a reasonable time to comply with an OMB
instruction to subject the collection of information for review;
(2) Has refused within a reasonable time to initiate procedures to
change the collection of information; or
(3) Has refused within a reasonable time to publish a final rule
continuing the collection of information, with such changes as may be
appropriate, or otherwise complete the procedures for amendment or
rescission of the collection of information.
(h) (1) Upon disapproval by OMB of a collection of information
subject to this section, except as provided in paragraph (f)(1)(iii) of
this section, the OMB control number assigned to such collection of
information shall immediately expire, and no agency shall conduct or
sponsor such collection of information. Any such disapproval shall
constitute disapproval of the collection of information contained in
the Notice of Proposed Rulemaking or other submissions, and also of the
preexisting information collection instruments directed at the same
collection of information and therefore constituting essentially the
same collection of information.
(2) The failure to display a currently valid OMB control number for
a collection of information contained in a current rule, or the failure
to inform the potential persons who are to respond to the collection of
information that such persons are not required to respond to the
collection of information unless it displays a currently valid OMB
control number, does not, as a legal matter, rescind or amend the rule;
however, such absence will alert the public that either the agency has
failed to comply with applicable legal requirements for the collection
of information or the collection of information has been disapproved,
and that therefore the portion of the rule containing the collection of
information has no legal force and effect and the public protection
provisions of 44 U.S.C. 3512 apply.
(i) Prior to the expiration of OMB's approval of a collection of
information in a current rule, OMB may decide on its own initiative,
after consultation with the agency, to review the collection of
information. Such decisions will be made only when relevant
circumstances have changed or the burden estimates provided by the
agency at the time of initial submission were materially in error. Upon
notification by OMB of its decision to review the collection of
information, the agency shall submit it to OMB for review under this
part.
Sec. 1320.13 Emergency processing.
An agency head or the Senior Official may request OMB to authorize
emergency processing of submissions of collections of information.
(a) Any such request shall be accompanied by a written
determination that:
(1) The collection of information:
(i) Is needed prior to the expiration of time periods established
under this part; and
(ii) Is essential to the mission of the agency; and
(2) The agency cannot reasonably comply with the normal clearance
procedures under this part because:
(i) Public harm is reasonably likely to result if normal clearance
procedures are followed;
(ii) An unanticipated event has occurred; or
(iii) The use of normal clearance procedures is reasonably likely
to prevent or disrupt the collection of information or is reasonably
likely to cause a statutory or court ordered deadline to be missed.
(b) The agency shall state the time period within which OMB should
approve or disapprove the collection of information.
(c) The agency shall submit information indicating that it has
taken all practicable steps to consult with interested agencies and
members of the public in order to minimize the burden of the collection
of information.
(d) The agency shall set forth in the Federal Register notice
prescribed by Sec. 1320.5(a)(1)(iv), unless waived or modified under
this section, a statement that it is requesting emergency processing,
and the time period stated under paragraph (b) of this section.
(e) OMB shall approve or disapprove each such submission within the
time period stated under paragraph (b) of this section, provided that
such time period is consistent with the purposes of this Act.
(f) If OMB approves the collection of information, it shall assign
a control number valid for a maximum of 90 days after receipt of the
agency submission.
Sec. 1320.14 Public access.
(a) In order to enable the public to participate in and provide
comments during the clearance process, OMB will ordinarily make its
paperwork docket files available for public inspection during normal
business hours. Notwithstanding other provisions of this part, and to
the extent permitted by law, requirements to publish public notices or
to provide materials to the public may be modified or waived by the
Director to the extent that such public participation in the approval
process would defeat the purpose of the collection of information;
jeopardize the confidentiality of proprietary, trade secret, or other
confidential information; violate State or Federal law; or
substantially interfere with an agency's ability to perform its
statutory obligations.
(b) Agencies shall provide copies of the material submitted to OMB
for review promptly upon request by any person.
(c) Any person may request OMB to review any collection of
information conducted by or for an agency to determine, if, under this
Act and this part, a person shall maintain, provide, or disclose the
information to or for the agency. Unless the request is frivolous, OMB
shall, in coordination with the agency responsible for the collection
of information:
(1) Respond to the request within 60 days after receiving the
request, unless such period is extended by OMB to a specified date and
the person making the request is given notice of such extension; and
(2) Take appropriate remedial action, if necessary.
Sec. 1320.15 Independent regulatory agency override authority.
(a) An independent regulatory agency which is administered by two
or more members of a commission, board, or similar body, may by
majority vote void:
(1) Any disapproval, instruction to such agency to make material or
substantive change to, or stay of the effectiveness of OMB approval of,
any collection of information of such agency; or
(2) An exercise of authority under Sec. 1320.10(g) concerning such
agency.
(b) The agency shall certify each vote to void such OMB action to
OMB, and explain the reasons for such vote. OMB shall without further
delay assign an OMB control number to such collection of information,
valid for the length of time requested by the agency, up to three
years, to any collection of information as to which this vote is
exercised. No override shall become effective until the independent
regulatory agency, as provided in Sec. 1320.5(b) and Sec. 1320.6(2),
has displayed the OMB control number and informed the potential persons
who are to respond to the collection of information that such persons
are not required to respond to the collection of information unless it
displays a currently valid OMB control number. [[Page 30454]]
Sec. 1320.16 Delegation of approval authority.
(a) OMB may, after complying with the notice and comment procedures
of the Administrative Procedure Act, delegate OMB review of some or all
of an agency's collections of information to the Senior Official, or to
the agency head with respect to those components of the agency for
which he or she has not delegated authority.
(b) No delegation of review authority shall be made unless the
agency demonstrates to OMB that the Senior Official or agency head to
whom the authority would be delegated:
(1) Is sufficiently independent of program responsibility to
evaluate failure whether proposed collections of information should be
approved;
(2) Has sufficient resources to carry out this responsibility
effectively; and
(3) Has established an agency review process that demonstrates the
prompt, efficient, and effective performance of collection of
information review responsibilities.
(c) OMB may limit, condition, or rescind, in whole or in part, at
any time, such delegations of authority, and reserves the right to
review any individual collection of information, or part thereof,
conducted or sponsored by an agency, at any time.
(d) Subject to the provisions of this part, and in accordance with
the terms and conditions of each delegation as specified in appendix A
to this part, OMB delegates review and approval authority to the
following agencies:
(1) Board of Governors of the Federal Reserve System; and
(2) Managing Director of the Federal Communications Commission.
Sec. 1320.17 Information collection budget.
Each agency's Senior Official, or agency head in the case of any
agency for which the agency head has not delegated responsibility under
the Act for any component of the agency to the Senior Official, shall
develop and submit to OMB, in such form, at such time, and in
accordance with such procedures as OMB may prescribe, an annual
comprehensive budget for all collections of information from the public
to be conducted in the succeeding twelve months. For good cause, OMB
may exempt any agency from this requirement.
Sec. 1320.18 Other authority.
(a) OMB shall determine whether any collection of information or
other matter is within the scope of the Act, or this part.
(b) In appropriate cases, after consultation with the agency, OMB
may initiate a rulemaking proceeding to determine whether an agency's
collection of information is consistent with statutory standards. Such
proceedings shall be in accordance with the informal rulemaking
procedures of the Administrative Procedure Act.
(c) Each agency is responsible for complying with the information
policies, principles, standards, and guidelines prescribed by OMB under
this Act.
(d) To the extent permitted by law, OMB may waive any requirements
contained in this part.
(e) Nothing in this part shall be interpreted to limit the
authority of OMB under this Act, or any other law. Nothing in this part
or this Act shall be interpreted as increasing or decreasing the
authority of OMB with respect to the substantive policies and programs
of the agencies.
Appendix A--Agencies With Delegated Review and Approval Authority
1. The Board of Governors of the Federal Reserve System
(a) Authority to review and approve collection of information
requests, collection of information requirements, and collections of
information in current rules is delegated to the Board of Governors
of the Federal Reserve System.
(1) This delegation does not include review and approval
authority over any new collection of information or any modification
to an existing collection of information that:
(i) Is proposed to be collected as a result of a requirement or
other mandate of the Federal Financial Institutions Examination
Council, or other Federal executive branch entities with authority
to require the Board to conduct or sponsor a collection of
information.
(ii) Is objected to by another Federal agency on the grounds
that agency requires information currently collected by the Board,
that the currently collected information is being deleted from the
collection, and the deletion will have a serious adverse impact on
the agency's program, provided that such objection is certified to
OMB by the head of the Federal agency involved, with a copy to the
Board, before the end of the comment period specified by the Board
on the Federal Register notices specified in paragraph (a)(3)(i) of
this section 1.
(iii) Would cause the burden of the information collections
conducted or sponsored by the Board to exceed by the end of the
fiscal year the Information Collection Budget allowance provided to
the Board by OMB for the fiscal year-end.
(2) The Board may ask that OMB review and approve collections of
information covered by this delegation.
(3) In exercising delegated authority, the Board will:
(i) Provide the public, to the extent possible and appropriate,
with reasonable opportunity to comment on collections of information
under review prior to taking final action approving the collection.
Reasonable opportunity for public comment will include publishing a
notice in the Federal Register informing the public of the proposed
collection of information, announcing the beginning of a 60-day
public comment period, and the availability of copies of the
``clearance package,'' to provide the public with the opportunity to
comment. Such Federal Register notices shall also advise the public
that they may also send a copy of their comments to the Federal
Reserve Board and to the OMB/OIRA Desk Officer.
(A) Should the Board determine that a new collection of
information or a change in an existing collection must be instituted
quickly and that public participation in the approval process would
defeat the purpose of the collection or substantially interfere with
the Board's ability to perform its statutory obligation, the Board
may temporarily approve of the collection of information for a
period not to exceed 90 days without providing opportunity for
public comment.
(B) At the earliest practical date after approving the temporary
extension to the collection of information, the Board will publish a
Federal Register notice informing the public of its approval of the
collection of information and indicating why immediate action was
necessary. In such cases, the Board will conduct a normal delegated
review and publish a notice in the Federal Register soliciting
public comment on the intention to extend the collection of
information for a period not to exceed three years.
(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve
Board with a copy of the Board's Federal Register notice not late
than the day the Board files the notice with the Office of the
Federal Register.
(iii) Assure that approved collections of information are
reviewed not less frequently than once every three years, and that
such reviews are normally conducted before the expiration date of
the prior approval. Where the review has not been completed prior to
the expiration date, the Board may extend the report, for up to
three months, without public notice in order to complete the review
and consequent revisions, if any. There may also be other
circumstances in which the Board determines that a three-month
extension without public notice is appropriate.
(iv) Take every reasonable step to conduct the review
established under 5 CFR 1320.8, including the seeking of public
comment under 5 CFR 1320.8(d). In determining whether to approve a
collection of information, the Board will consider all comments
received from the public and other agencies. The Board will not
approve a collection of information that it determines does not
satisfy the guidelines set forth in 5 CFR 1320.5(d)(2), unless it
determines that departure from these guidelines is necessary to
satisfy statutory requirements or other substantial need.
(v)(A) Assure that each approved collection of information
displays, as required by 5 CFR 1320.6, a currently valid OMB control
number and the fact that a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. [[Page 30455]]
(B) Assure that all collections of information, except those
contained in regulations, display the expiration date of the
approval, or, in case the expiration date has been omitted, explain
the decision that it would not be appropriate, under 5 CFR
1320.5(a)(1)(iii)(C), for a proposed collection of information to
display an expiration date.
(C) Assure that each collection of information, as required by 5
CFR 1320.8(b)(3), informs and provides fair notice to the potential
respondents of why the information is being collected; the way in
which such information is to be used; the estimated burden; whether
responses are voluntary, required, required to obtain a benefit, or
mandatory; the confidentiality to be provided; and the fact that an
agency may not conduct or sponsor, and the respondent is not
required to respond to, a collection of information unless it
displays a currently valid OMB control number.
(vi) Assure that each approved collection of information,
together with a completed form OMB 83-I, a supporting statement, a
copy of each comment received from the public and other agencies in
response to the Board's Federal Register notice or a summary of
these comments, the certification required by 5 CFR 1320.9, and a
certification that the Board has approved of the collection of
information in accordance with the provisions of this delegation is
transmitted to OMB for incorporation into OMB's public docket files.
Such transmittal shall be made as soon as practical after the Board
has taken final action approving the collection. However, no
collection of information may be instituted until the Board receives
written or oral notification from OMB or OMB staff that the
transmittal has been received.
(b) OMB will:
(1) Provide the Board in advance with a block of control numbers
which the Board will assign in sequential order to and display on,
new collections of information.
(2) Provide a written notice of action to the Board indicating
that the Board approvals of collections of information that have
been received by OMB and incorporated into OMB's public docket files
and an inventory of currently approved collections of information.
(3) Review any collection of information referred by the Board
in accordance with the provisions of section 1(a)(2) of this
appendix.
(c) OMB may review the Board's paperwork review process under
the delegation. The Board will cooperate in carrying out such a
review. The Board will respond to any recommendations resulting from
such review and, if it finds the recommendations to be appropriate,
will either accept the recommendations or propose an alternative
approach to achieve the intended purpose.
(d) This delegation may, as provided by 5 CFR 1320.16(c), be
limited, conditioned, or rescinded, in whole or in part at any time.
OMB will exercise this authority only in unusual circumstances and,
in those rare instances, will do so, subject to the provisions of 5
CFR 1320.10(f) and 1320.10(g), prior to the expiration of the time
period set for public comment in the Board's Federal Register
notices and generally only if:
(1) Prior to the commencement of a Board review (e.g., during
the review for the Information Collection Budget). OMB has notified
the Board that it intends to review a specific new proposal for the
collection of information or the continued use (with or without
modification) of an existing collection;
(2) There is substantial public objection to a proposed
information collection: or
(3) OMB determines that a substantially inadequate and
inappropriate lead time has been provided between the final
announcement date of the proposed requirement and the first date
when the information is to be submitted or disclosed. When OMB
exercises this authority it will consider that the period of its
review began the date that OMB received the Federal Register notice
provided for in section 1(a)(3)(i) of this appendix.
(e) Where OMB conducts a review of a Board information
collection proposal under section 1(a)(1), 1(a)(2), or 1(d) of this
appendix, the provisions of 5 CFR 1320.13 continue to apply.
2. The Managing Director of the Federal Communications Commission.
(a) Authority to review and approve currently valid (OMB-
approved) collections of information, including collections of
information contained in existing rules, that have a total annual
burden of 5,000 hours or less and a burden of less than 500 hours
per respondent is delegated to the Managing Director of the Federal
Communications Commission.
(1) This delegation does not include review and approval
authority over any new collection of information, any collections
whose approval has lapsed, any substantive or material modification
to existing collections, any reauthorization of information
collections employing statistical methods, or any information
collections that exceed a total annual burden of 5,000 hours or an
estimated burden of 500 hours per respondent.
(2) The Managing Director may ask that OMB review and approve
collections of information covered by the delegation.
(3) In exercising delegated authority, the Managing Director
will:
(i) Provide the public, to the extent possible and appropriate,
with reasonable opportunity to comment on collections of information
under review prior to taking final action on reauthorizing an
existing collection. Reasonable opportunity for public comment will
include publishing a notice in the Federal Register and an FCC
Public Notice informing the public that a collection of information
is being extended and announcing the beginning of a 60-day comment
period, notifying the public of the ``intent to extend an
information collection,'' and providing the public with the
opportunity to comment on the need for the information, its
practicality, the accuracy of the agency's burden estimate, and on
ways to minimize burden, including the use of automated collection
techniques or other forms of information technology, e.g.,
permitting electronic submission of responses. Such notices shall
advise the public that they may also send a copy of their comments
to the OMB/Office of Information and Regulatory Affairs desk officer
for the Commission.
(A) Should the Managing Director determine that a collection of
information that falls within the scope of this delegation must be
reauthorized quickly and that public participation in the
reauthorization process interferes with the Commission's ability to
perform its statutory obligation, the Managing Director may
temporarily reauthorize the extension of an information collection,
for a period not to exceed 90 days, without providing opportunity
for public comment.
(B) At the earliest practical date after granting this temporary
extension to an information collection, the Managing Director will
conduct a normal delegated review and publish a Federal Register
notice soliciting public comment on its intention to extend the
collection of information for a period not to exceed three years.
(ii) Assure that approved collections of information are
reviewed not less frequently than once every three years and that
such reviews are conducted before the expiration date of the prior
approval. When the review is not completed prior to the expiration
date, the Managing Director will submit the lapsed information
collection to OMB for review and reauthorization.
(iii) Assure that each reauthorized collection of information
displays an OMB control number and, except for those contained in
regulations or specifically designated by OMB, displays the
expiration date of the approval.
(iv) Inform and provide fair notice to the potential
respondents, as required by 5 CFR 1320.8(b)(3), of why the
information is being collected; the way in which such information is
to be used; the estimated burden; whether responses are voluntary,
required, required to obtain a benefit, or mandatory; the
confidentiality to be provided; and the fact that an agency may not
conduct or sponsor, and the respondent is not required to respond
to, a collection of information unless it displays a currently valid
OMB control number.
(v) Transmit to OMB for incorporation into OMB's public docket
files, a report of delegated approval certifying that the Managing
Director has reauthorized each collection of information in
accordance with the provisions of this delegation. The Managing
Director shall also make the certification required by 5 CFR 1320.9,
e.g., that the approved collection of information reduces to the
extent practicable and appropriate, the burden on respondents,
including, for small business, local government, and other small
entities, the use of the techniques outlined in the Regulatory
Flexibility Act. Such transmittals shall be made no later than 15
days after the Managing Director has taken final action
reauthorizing the extension of an information collection.
(vi) Ensure that the personnel in the Commission's functional
bureaus and offices responsible for managing information collections
receive periodic training on procedures related to meeting the
requirements of this part and the Act. [[Page 30456]]
(b) OMB will:
(1) Provide notice to the Commission acknowledging receipt of
the report of delegated approval and its incorporation into OMB's
public docket files and inventory of currently approved collections
of information.
(2) Act upon any request by the Commission to review a
collection of information referred by the Commission in accordance
with the provisions of section 2(a)(2) of this appendix.
(3) Periodically assess, at its discretion, the Commission's
paperwork review process as administered under the delegation. The
Managing Director will cooperate in carrying out such an assessment.
The Managing Director will respond to any recommendations resulting
from such a review and, if it finds the recommendations to be
appropriate, will either accept the recommendation or propose an
alternative approach to achieve the intended purpose.
(c) This delegation may, as provided by 5 CFR 1320.16(c), be
limited, conditioned, or rescinded, in whole or in part at any time.
OMB will exercise this authority only in unusual circumstances.
[FR Doc. 95-14007 Filed 6-7-95; 8:45 am]
BILLING CODE 3110-01-P
