[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Rules and Regulations]
[Pages 44978-44996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21235]
[[Page 44977]]
_______________________________________________________________________
Part III
Office of Management and Budget
_______________________________________________________________________
5 CFR Part 1320
Reporting and Recordkeeping Requirements: Final Rule
Federal Register / Vol. 60, No. 167 / Tuesday, August 29, 1995 /
Rules and Regulations
[[Page 44978]]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements the Paperwork Reduction Act of 1995. The
Act changes existing law in several significant ways. It makes more
explicit the responsibilities of agencies in developing proposed
collections of information and submitting them for OMB review and
approval. Among other things it 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 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 Act also redefines ``collection of information''
explicitly to include third-party and public disclosures, and changes a
number of definitions and other provisions. This final rule amends
OMB's existing paperwork clearance rules to reflect these and other
legislative changes made by the Paperwork Reduction Act of 1995.
EFFECTIVE DATE: October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. 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 inquiries may be submitted via SMTP to Hill--
[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, telephone
number, and e-mail address in the text of the message.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Management and Budget (OMB) last issued 5 CFR Part
1320--Controlling Paperwork Burden on the Public--on May 10, 1988 [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)). The rationale supporting the 1988 rule 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).
The Paperwork Reduction Act of 1995 (Pub. L. 104-13 (May 22, 1995))
replaced 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, 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.
As a result of this legislative recodification of the Paperwork
Reduction Act, OMB published proposed changes to 5 CFR Part 1320 in a
Notice of Proposed Rulemaking (NPRM) on June 8, 1995 [60 FR 30438]. The
NPRM changed the order and structure of the 1988 rule 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 1988 rule are described in the NPRM.
In response to the NPRM, OMB received 50 comments. Each comment has
been considered in preparing this final rule. In developing this
recodification of 5 CFR Part 1320, OMB has also relied upon its 14
years of practical experience in administering the Paperwork Reduction
Act of 1980 and upon its 12 years of implementing 5 CFR Part 1320.
Some of the comments received were of an administrative nature--
that is, comments from agency staff requesting further elaboration or
explanation of how the paperwork clearance process will work
administratively. OMB staff have met with and are continuing to meet
with agency staff in order to answer this type of question. OMB also
notes that, in January 1989, the Office of Information and Regulatory
Affairs (OIRA) in OMB issued an Information Collection Review Handbook,
which was designed to offer detailed guidance to agency staff and the
public on OMB's paperwork clearance process. It is OMB's intention to
review and update that Handbook in light of the Paperwork Reduction Act
of 1995 and these implementing regulations, and--in that document--
provide more detailed elaboration and explanation.
Significant comments received in response to the NPRM, and any
significant changes are discussed below.
B. Legislative Intent
In issuing this final rule, OMB is fully cognizant of the
legislative intent of the draftsmen of the Paperwork Reduction Act of
1995: ``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 [as] 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).
C. Significant Comments or Changes
1. Proposed Sec. 1320.1 (``Purpose''): A comment suggested that the
last sentence of the statement of purpose more closely track the text
of 44 U.S.C. 3501(1) and (2). The final rule is modified accordingly.
2. Proposed Sec. 1320.3(c)(1) (Definition of ``collection of
information''): Several comments questioned the need for the provision
in proposed Sec. 1320.3(c)(1) to the effect that a collection of
information may include ``any other techniques or technological methods
used to monitor compliance with agency requirements''.
This provision was added in recognition that Federal agencies now
collect, and in the future will increasingly collect information by
having respondents use a wide variety of automated, electronic,
mechanical, and other technological means--as well as the more
traditional paper forms and interviews--to demonstrate compliance with
agency requirements. Congress was fully aware of the increased
respondent use of technology to collect, process, and disclose
information to an agency or the public. In the Paperwork Reduction Act,
a ``collection of information'' is defined to mean ``the obtaining * *
* or requiring the disclosure to third parties or the public'' of facts
or opinions, ``regardless of form or format'' (44 U.S.C. 3502(3)(A)).
The Congressional Committees explained that ``the phrase `regardless of
form or format' * * * clarifies that regardless of the instrument,
media, or method of agency action, a collection of information is any
[[Page 44979]]
agency action that calls for * * * identical reporting or recordkeeping
requirements, or third party information disclosure requirements. * * *
It also includes information collection activities regardless of
whether the collection is formulated or communicated in written, oral,
electronic or other form'' (H. Rpt. 104-37, p. 36; see S. Rpt. 104-8,
p. 37). This same awareness is reflected in the definition of
``burden'' in the 1995 Act, which expressly includes the burden of
``acquiring, installing, and utilizing technology and systems'' (44
U.S.C. 3502(2)(B)). The Committees stated their intent to have the
definition of burden include ``the resources expended for * * *
acquiring, installing, and utilizing technology to gather, obtain,
compile, or report'' information (H. Rpt. 104-37; see S. Rpt. 104-8, p.
35).
The final rule, in Sec. 1320.3(c)(1), is modified to make it clear
that, unless exempted, all agency collections of information are
subject to OMB review and approval under the Paperwork Reduction Act,
regardless of form or format, and regardless of whether the collections
are implemented through paper, voice, automation, electronics, or other
technological, scientific, or mechanical collection techniques.
3. Proposed Sec. 1320.3(c)(3) (Definition of ``collection of
information''): Proposed Sec. 1320.3(c)(3) provided that a ``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.'' Several comments
suggested that it would be useful to define ``general statistical
purposes,'' consistent with historical practice.
The legislative history of the 1980 Act is helpful. ``As used in
the definition [of collection of information], `general statistical
purposes' is intended to have precisely the same meaning as
`statistical compilations of general public interest' as the phrase
appears in the original [Federal] Reports Act'' (See S. Rpt. 96-930,
pp. 38-39).
Accordingly, in the final rule, a defining clause consistent with
this legislative history has been added to Sec. 1320.3(c)(3). The
clarification is intended to distinguish between statistics collected
for publication for the general public (such as studies of the Federal
workforce made by the Office of Personnel Management) and internal
statistics (information solicited from employees to support management
purposes such as improving customer service or conducting internal
audits of agency performance).
4. Proposed Sec. 1320.3(f)(3) (Definition of ``display'') and
proposed Sec. 1320.5(b)(2)(ii)(C): The proposed rule in
Sec. 1320.3(f)(3) stated that, in the case of collections of
information published in regulations in the Federal Register, an agency
may ``display'' the OMB control number by publishing it in the preamble
or the regulatory text for the final rule, in a technical amendment to
the final rule, in a separate notice announcing OMB approval of the
collection of information, and/or in the Code of Federal Regulations.
The proposed rule also recommended that, for ease of reference, the
agency also publish the control number in the Code of Federal
Regulations, even when the agency has already ``displayed'' the control
number by publishing it in the Federal Register. The proposed rule
contained a similar provision at Sec. 1320.5(b)(2)(ii)(C) regarding the
requirement to inform potential respondents that they are not required
to respond to the collection of information unless it displays a valid
control number.
A comment stressed that the Code of Federal Regulations does not
function independently of the Federal Register. Specifically, the
comment pointed out that materials that are in the preamble for a final
rule, or in a general notice in the Federal Register, will not be
codified in the Code of Federal Regulations. For this reason, the
comment expressed concern that the proposed rule's language might
wrongly suggest that materials which are published in a preamble or in
a notice indicating OMB approval would be codified in the Code of
Federal Regulations.
The comment's point is well taken. To avoid any ambiguity or
confusion on this matter, Sec. 1320.3(f)(3) and
Sec. 1320.5(b)(2)(ii)(C) are revised in the final rule, and additional
background explanation is included in this preamble.
With respect to Sec. 1320.3(f)(3), this provision has been revised
to make clear that, for purposes of the Act, an agency satisfies the
requirement to ``display'' the OMB control number if the control number
is published in the Federal Register or, alternatively, if the control
number is published in the Code of Federal Regulations. Either form of
publication satisfies the requirement to ``display'' the control
number. Both are not required. A similar revision has been made to
Sec. 1320.5(b)(2)(ii)(C).
As additional background explanation, consider the application of
Sec. 1320.3(f)(3). If the agency publishes (and thus ``displays'') the
control number in the Federal Register as part of the regulatory text
for the final rule or in a technical amendment to the final rule, then
the Office of the Federal Register will automatically place the control
number in the Code of Federal Regulations. By contrast, if the agency
publishes (and thus ``displays'') the control number in the Federal
Register as part of the preamble for the final rule or in a separate
notice announcing that OMB has approved the collection of information,
then the Office of the Federal Register will not automatically place
the control number in the Code of Federal Regulations. In the latter
situation, although the agency has already ``displayed'' the control
number by publishing it in the preamble or in a separate notice, OMB
recommends for ease of future reference that the agency also place the
control number in a table or codified section to be included in the
Code of Federal Regulations. In addition to aiding in future reference,
such a table or codification section would itself constitute an
alternative form of ``display.'' The placement of the control number in
regulations is governed by a regulation issued by the Administrative
Committee of the Federal Register, at 1 CFR 21.35. The same background
principles apply to the application of Sec. 1320.5(b)(2)(ii)(C).
5. Proposed Sec. 1320.3(h)(1) (Definition of ``information''): In
the NPRM, OMB clarified the exemption for ``certifications'' in
proposed Sec. 1320.3(h)(1) to ensure that the exempted certification is
used only to identify an individual in a routine, non-intrusive, non-
burdensome way. OMB further stated that the exemption is not to be
available for a certification that substitutes for a collection of
information to collect evidence of, or to monitor, compliance with
regulatory standards.
A comment objected to the burden of agency certification
requirements and, while supportive of the proposed clarification,
suggested the following amendment: ``A certification that requires more
than the identity of the respondent, the date, the respondent's
address, and the nature of the instrument will be considered to be
`information' unless and until the Agency demonstrates and OMB
determines that it is not `information' following OMB review and public
comment in accordance with the requirements of Sec. 1320.11.'' On the
other hand, another comment suggested that the use of certifications in
lieu of detailed records is a way to reduce, to the lowest possible
level, the burden imposed on respondents, and that a certification of
compliance with a regulatory requirement is a de minimis
[[Page 44980]]
activity compared to full recordkeeping. This commenter suggested that
the certification exemption be broadened to include any certification
of compliance with a regulatory requirement.
Given that the issue in dispute involves paperwork burdens--which
is one of the primary issues that OMB is to evaluate under the
Paperwork Reduction Act, it is appropriate for OMB to review such
certifications in order to evaluate the burden involved and balance
those concerns against agency need. For example, the one commenter
stated that certification requirements impose less burden than full
recordkeeping requirements. The imposition of less burden would of
course be an important consideration in evaluating a proposed
certification requirements under the ``practical utility''-``burden''
criteria. However, the fact that certification requirements may impose
less burden than full recordkeeping does not argue for exempting them
altogether from review. With respect to the other commenter's suggested
amendment, OMB believes that the provision in the NPRM should address
the commenter's fundamental concerns. Before concluding that the
provision should be revised further, OMB prefers to see whether any
issues arise in implementing this provision in the context of concrete
situations. The final rule is left unchanged.
6. Proposed Sec. 1320.3(k) (Definition of ``person''): In proposed
Sec. 1320.3(k), the definition of ``person'' included ``corporation
(including operations of government-owned, contractor-operated
facilities).'' One comment suggested that ``Government-owned
contractor-operated facilities contractors'' should be excluded from
this definition of ``person.''
This portion of proposed Sec. 1320.3(k) is identical to that found
in the OMB regulations since 1983 (see 5 CFR 1320.7(p) (1984); 5 CFR
1320.7(n) (1989)). As OMB explained in 1983: ``In response to a request
for clarification, the term `person' has been defined to include
`operations of government-owned contractor-operated facilities.' Such
operations are specifically excepted from the statutory definition of
`agency,' see 44 U.S.C. 3502(1) [(1981)]. Since they are not agencies,
but are private businesses falling within the purposes of the Act, they
are covered as `persons''' (48 FR 13677 [March 31, 1983]). Since
Congress did not substantively amend the definitions of ``agency'' and
``person'' in the 1995 Act, the final rule is left unchanged.
7. Proposed Sec. 1320.4 (``Coverage''): In the NPRM, OMB pointed
out that, for certain agency offices, including Chief Financial
Officers or Inspectors General, an investigation (a term used in 44
U.S.C. 3518(c)(1) and (2)) often carries the title of ``audit'' (a term
used in the Inspector General Act, Section 3(a), 5 U.S.C. App. 3).
Several Inspectors General suggested that the scope of the exemptions
should make specific reference to the word ``audit.'' The final rule is
modified accordingly, with equivalent amendments to Sec. 1320.4(a)(2),
Sec. 1320.4(b), and Sec. 1320.4(c). These changes are made for
clarification; no substantive change is intended.
8. Proposed Sec. 1320.6(e) (``Public Protection''): In the NPRM,
OMB stated in proposed Sec. 1320.6(e) that the Act's ``public
protection'' provision in 44 U.S.C. 3512 ``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''.
The proposed regulation also provided two examples of such a statute:
26 U.S.C. 6011(a) and 42 U.S.C. 6938(c).
In the preamble of the NPRM, OMB explained that the proposed
provision ``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. * * * 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
decided to impose a paperwork requirement on persons directly by
statute.'' 60 FR at 30441. Thus, the preamble described proposed
Sec. 1320.6(e) as stating the principle ``where Congress imposes a
collection of information directly on persons, by statute [as in those
two statutory examples in the proposed regulation], 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.'' Id. The preamble concluded by noting that ``[t]his
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.'' Id.
OMB received four comments regarding proposed Sec. 1320.6(e). These
comments criticized the provision as either too broad or too narrow.
For the reasons stated below, the final rule adopts the provision as
proposed.
Three comments objected to proposed Sec. 1320.6(e) as being too
broad. They stated that proposed Sec. 1320.6(e) would undermine agency
compliance with the Paperwork Reduction Act's requirements. These
commenters understood proposed Sec. 1320.6(e) to mean that agencies
would not be required to comply with the requirements of the Paperwork
Reduction Act with regard to paperwork requirements that agencies
impose in connection with those statutes in which Congress has imposed
collections of information directly on persons. These comments objected
to such a reading of the Act, pointing out that Congress intended the
agencies to comply with the Act's requirements with regard to all of
their collections of information, including those mandated by statute.
As one comment stated: ``Even if a collection is mandated by statute,
the law requires that the specifics be put out for public comment and
subjected to OMB review.'' For this reason, that comment objected that
proposed Sec. 1320.6(e) ``creates an unnecessary loophole and is a back
door signal to agencies to declare that their collection requirements
are mandated by statutory action and therefore not subject to public
comment and OMB review.'' Another comment made the same objection,
stating that proposed Sec. 1320.6(e) ``would enable federal agencies to
undermine and avoid fundamental requirements of this law [i.e., the
Paperwork Reduction Act] by mere assertion that collections of
information were statutorily mandated.'' Finally, the third comment
stated that the ``plain meaning'' of 44 U.S.C. 3512 ``is clear and
unambiguous; the regulations should be revised to make it clear that a
valid OMB control number and the notice that one does not have to
comply if a valid control number is not displayed should be required on
all covered information requests from the Federal government.''
In addition to the three comments that criticized proposed
Sec. 1320.6(e) as being too broad, OMB received one comment that took
the contrary view, contending that proposed Sec. 1320.6(e) was too
narrow. In summarizing proposed Sec. 1320.6(e), this comment stated
that ``1320.6(e) provides that the public
[[Page 44981]]
protection provision does not apply to noncompliance with collections
of information imposed on persons by statute. The preamble (at 30441)
explains that the scope of this provision is limited to collections of
information imposed `on persons directly by statute' and `does not
extend to situations in which a statute * * * directs an agency to
impose a collection of information on persons, and the agency does
so.''' (Emphasis supplied in comment.) According to the comment, ``This
distinction * * * is not supported by the case law,'' which in this
commenter's view, ``simply distinguishes collections of information
mandated by Congress in statute from those imposed by regulation under
an agency's discretionary authority.'' For this reason, the comment
concluded that proposed Sec. 1320.6(e) was too narrowly drawn, and
should be broadened: ``Thus, the scope of section 1320.6(e) should
cover all collections of information specifically mandated by statute,
regardless of whether Congress imposes them on persons directly or
through an agency.''
With respect to the criticism that proposed Sec. 1320.6(e) is too
broad, OMB did not intend in proposed Sec. 1320.6(e) or in the preamble
of the NPRM to suggest that the requirements of the Paperwork Reduction
Act do not apply to agency paperwork requirements that implement
mandates that Congress imposes on persons. We agree with these comments
that the legislative history to the Paperwork Reduction Act of 1980
indicates the Act's broad coverage with respect to agency collections
of information: ``Unless the collection of information is specifically
required by statutory law the Director's determination is final for
agencies which are not independent regulatory agencies. The fact the
collection of information is specifically required by statute does not,
however, relieve an agency of the obligation to submit the proposed
collection for the Director's review'' (S. Rpt. 96-930, at p. 49).
Accordingly, OMB's 1983 regulations implementing the 1980 Act
stated that ``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'' (5 CFR 1320.4(c)(1)
(1984)). This provision has remained in OMB's regulations since then.
Moreover, it was included in the proposed rule at Sec. 1320.5(e)(1),
where it is found in the final rule issued today.
OMB's intention in proposed Sec. 1320.6(e) was therefore not to
exempt any agency collections of information from the requirements of
the Paperwork Reduction Act. Instead, our intention was to address the
consequences under the Act's public protection provision if an agency
fails to comply with the Act's requirements with respect to a
particular collection of information. In the cases that OMB discussed
in the NPRM, the courts held that an agency's failure to comply with
the Act cannot preclude the enforcement of a requirement that Congress
in a statute has imposed on persons. The reason for this conclusion, as
those courts explained (see 60 FR 30441), was that Congress did not
subject its law-making process to the requirements of the Paperwork
Reduction Act.
In other words, Congress in the Paperwork Reduction Act did not
provide that Congress must comply with the Act's requirements, which
include seeking and obtaining OMB approval (and periodic reapproval),
when Congress passes a law that imposes paperwork requirements on the
public. OMB does not review laws for compliance with the Paperwork Act,
and thus, laws do not have to display OMB control numbers and do not
require subsequent OMB review and approval at least once every three
years.
This is not to say that an agency's implementing forms,
regulations, and other directives to the public are exempt from the
Act's requirements; those implementing forms, regulations, and
directives are indeed subject to the Act's requirements. However, it
does mean that an agency's failure to comply with the Act cannot
preclude the enforcement of a statute that imposes paperwork
requirements on persons. Otherwise, agency officials, by failing to
satisfy their statutory obligations, would have the power to nullify a
requirement that Congress imposes on persons by statute. The Act's
public protection provision does not have such a reach.
Accordingly, as we have clarified above, proposed Sec. 1320.6(e)
does not exempt any agency collections of information from the Act's
requirements. We believe that, with this clarification, we have
addressed the main concerns that were expressed by the three commenters
who considered proposed Sec. 1320.6(e) to be too broad. To the extent
that the comments are suggesting that the Act's public protection
provision precludes the Government from enforcing duties that Congress
imposes on persons by statute, we believe that the Act does not support
such an interpretation, for the reasons outlined above.
With respect to the one comment that criticized proposed
Sec. 1320.6(e) as being too narrow, we believe that the suggestion in
this comment is contrary to the Congressional intent behind the Act's
public protection provision and is contrary to administrative practice
generally. As noted above, this comment asserts that the case law
discussed in the proposed rule's preamble ``simply distinguishes
collections of information mandated by Congress in statute from those
imposed by regulation under an agency's discretionary authority.''
According to the comment, ``the scope of section 1320.6(e) should cover
all collections of information specifically mandated by statute,
regardless of whether Congress imposes them on persons directly or
through an agency.'' In other words, whereas OMB's proposed
Sec. 1320.6(e) stated that the public protection provision does not
apply to paperwork requirements that Congress imposes upon persons by
statute, the commenter's view is that the public protection provision
also does not apply to any paperwork requirement that an agency imposes
on persons in response to a statutory requirement that the agency
impose such a requirement.
OMB does not agree with this reading of the Act. As we explained
above, statutes are not subject to the Paperwork Reduction Act.
Therefore, Congress does not have to seek and obtain OMB approval for
the statutes that Congress enacts, and the Act's public protection
provision cannot preclude the enforcement of a statute that imposes
paperwork requirements on persons. It is an entirely different matter
when Congress in a statute requires an agency to impose a paperwork
requirement on persons.
In this regard, moreover, the comment's suggested reading of the
public protection provision would substantially narrow its scope.
Agencies impose many collections of information in response to mandates
that they receive from Congress (although, as OMB's regulation
indicates, see Sec. 1320.5(e)(1), these mandates may leave agencies
with varying degrees of discretion). Nothing in the Act's public
protection provision supports the comment's suggested distinction
between agency action that is ``mandated by Congress'' and agency
action that is ``discretionary,'' just as there is no such distinction
in the Administrative Procedure Act.
In sum, an agency's failure to comply with the Paperwork Reduction
Act cannot override a statutory obligation on persons that Congress
imposes on persons through statute. By contrast, an agency's failure to
comply with the requirements that Congress imposes on the agency in one
statute (in this case,
[[Page 44982]]
the Paperwork Reduction Act) can preclude the Government from enforcing
a requirement that the agency has imposed on persons, including when
the agency has imposed the requirement in order to comply with a
statutory obligation that Congress imposed on the agency in another
statute.
9. Proposed Sec. 1320.7(a) and (b) (``Agency head and Senior
Official responsibilities''): In the NPRM, OMB recognized that the
Inspectors General have an important statutory function that requires
independence in the conduct of their work. OMB sought 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. (60 FR 30440.)
All the Inspectors General who responded and one private party were
concerned about the need to protect the statutory independence of
Inspectors General, which is based on two sections of the Inspector
General Act (5 U.S.C. App. 3). First, ``each Inspector General * * * is
authorized * * * to make such investigations and reports relating to
the administration of the programs and operations of the applicable
establishment as are, in the judgment of the Inspector General,
necessary or desirable'' (Sec. 6(a)(2)). Second, ``each Inspector
General shall report to and be under the general supervision of the
head of the establishment involved or, to the extent such authority is
delegated, to the officer next in rank below such head, but shall not
report to, or be subject to supervision by, any other officer of such
establishment'' (Sec. 3(a)).
On the other hand, a comment suggested that ``unless the
information requested by the Inspectors General falls into one of the
categories of information expressly excluded from coverage by the
[Paperwork Reduction] Act under sections 3502(3) and 3518(c)(1) [of
title 44, U.S.C.], the Inspectors General must comply with the PRA and
implementing regulations.'' Two other comments expressed similar views.
One issue of particular concern to the Inspectors General was that
involving proposed Sec. 1320.4, discussed above. A second issue was a
suggestion in the comments that Inspectors General be added to the list
of agencies that are designated as independent regulatory agencies (see
44 U.S.C. 3502(5) and 5 CFR 1320.3(g)). With respect to this
suggestion, OMB does not believe that the Inspectors General qualify as
a ``similar agency designated by statute as a Federal independent
regulatory agency or commission'' under the statute.
A third issue of particular concern involves proposed
Sec. 1320.7(a) and (b), and the relationship of the agency head, the
Senior Official, and the Inspector General's office. Under proposed
Sec. 1320.7(a) and (b), the head of each agency is responsible for
carrying out agency responsibilities under this Act, but either may
designate a Senior Official to carry out these responsibilities or
``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'' (proposed Sec. 1320.7(b)). OMB
explained the need for the agency head to retain full undelegated
review authority in 1982: ``Section 3506 of the [Paperwork Reduction]
Act must be accommodated to other laws concerning intra-agency
structures, by providing that 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'' (47 FR 39521 [September 8, 1982]).
Given their concerns about institutional independence, the
Inspectors General suggested a number of alternatives--that the ``may''
in proposed Sec. 1320.7(b) be changed to ``shall''; that the agency
head designate the Inspector General to be the ``Senior Official''; or
that the agency head review a proposed collection of information by the
Inspector General and forward comments on it to OMB, but not be able to
``impound'' the proposed collection of information.
OMB is sensitive to the concerns that the Inspectors General have
raised regarding their independence under the Inspector General Act.
However, OMB is reluctant through provisions in a rulemaking
implementing the Paperwork Reduction Act to seek to establish agency
institutional relations between an agency head and the agency's
Inspector General, particularly as these relations are already well
established through statute and agency practice. It is also
inappropriate in this rulemaking for OMB to impose on agencies and
their Inspectors General an interpretation of the Inspector General
Act. However, in evaluating the three suggestions noted above, OMB must
bring to bear the terms of the Paperwork Reduction Act of 1995 and
OMB's experience in implementing the predecessor statutes.
On this basis, OMB has decided not to adopt these suggestions.
First, OMB disagrees with changing the ``may'' in proposed
Sec. 1320.7(b) to ``shall.'' The Inspectors General are not the only
independent components located within agency structures (e.g., the
Federal Energy Regulatory Commission within the Department of Energy).
While the final rule states that an agency head ``may'' retain full
undelegated review authority for any statutorily independent component
of the agency, it is not appropriate for OMB in this rulemaking to
compel an agency head to retain full undelegated review authority. OMB
notes, nonetheless, that it would be appropriate and consistent with
the structure and intent of the Paperwork Reduction Act for an agency
head to retain full undelegated Paperwork Reduction Act oversight
authority over an Inspector General. Second, OMB does not want to
encourage an agency head to designate an Inspector General as the
agency's Senior Official. Under 44 U.S.C. 3506(a)(2) and (b), an agency
head (other than in the Department of Defense) may delegate the
agency's Paperwork Reduction Act responsibilities only to ``a'' Senior
Official. For an Inspector General to undertake paperwork review and
clearance responsibilities for an entire agency may be both
inappropriate and impractical, particularly since the Senior Official's
responsibilities are broader than just paperwork review and clearance.
This regulation preserves the agency head's discretion to determine the
appropriate Senior Official for that agency. Third, the suggestion that
the regulation state that an agency head may review and comment on a
proposed collection of information, but may not ``impound'' it, appears
to involve an interpretation of the Inspector General Act. While this
regulation does not preclude an agency and its Inspector General from
establishing such an institutional relationship, it would not be
appropriate for OMB to mandate it in this rulemaking.
In sum, there are a number of ways, consistent with the Paperwork
Reduction Act, in which agency heads and Inspectors General could
decide to submit information clearance packages for OMB review, which
would be for them to decide. Because the proposed rule, in proposed
Sec. 1320.7(a) and (b), is neither prescriptive of an approach, nor
preclusive of any approach that serves this end, the final rule is left
unchanged. In addition, while OMB has not yet reached any firm
conclusions on this point, OMB believes that it would be worthwhile to
explore whether, in light of the Inspector General Act, it would be
consistent with the Paperwork Reduction Act for an Inspector General
[[Page 44983]]
to ``establish a process [within his or her office] * * * that is
sufficiently independent of [the Inspector General's] program
responsibility to evaluate fairly whether proposed collections of
information should be approved'' under the Act (44 U.S.C. 3506(c)(1)).
Under such an approach, the ``independent'' office within the Office of
Inspector General would develop information clearance packages for OMB
review (for those that are not otherwise exempt from review) and
transmit them directly to OMB for review, perhaps with copies
simultaneously to the agency head to permit the agency head to transmit
any comments to OMB as he or she may deem appropriate.
10. Proposed Sec. 1320.8(b)(2) (``Agency collection of information
responsibilities''): Proposed Sec. 1320.8(b)(2) instructs the agency
office established under Sec. 1320.7 to assure, under 44 U.S.C.
3506(c)(1)(B)(ii), that each agency collection of information ``is
reviewed'' by OMB in accordance with the clearance requirements of 44
U.S.C. 3507. One comment suggested the insertion of ``has been
reviewed''. We believe that, in context, this provision states an
ongoing responsibility and that the inserted phrase is not needed. The
final rule is left unchanged.
11. Proposed Sec. 1320.8(d)(2) (``Agency collection of information
responsibilities''): In the NPRM, OMB proposed that, where an agency
does not publish the proposed collection of information, together with
related instructions, as part of the Federal Register notice, the
agency either provide more than 60-day notice to permit timely receipt
of a copy by interested members of the public or explain how and from
whom a copy can be obtained without charge (including by electronic
access). See preamble discussion at 60 FR 30442. A comment suggested
that the 60-day advance notice provides sufficient time for those
interested to obtain a copy of the proposed collection of information
and to comment upon it.
OMB believes that the proposed provision is reasonable. It gives
agencies a choice of providing more than 60 days for comment, or
explaining in the Federal Register notice how and from whom a copy can
be obtained. The proposed provision therefore ensures that the public
receives ``60-day notice in the Federal Register,'' as 44 U.S.C.
3506(c)(2) requires. Accordingly, the provision is left unchanged in
the final rule.
12. Proposed Sec. 1320.9(f) (``Agency certifications for proposed
collections of information''): Proposed Sec. 1320.9(f) has each agency
include with its paperwork clearance package to OMB a certification
that the collection of information ``indicates for each recordkeeping
requirement the length of time persons are required to maintain the
records specified''. One concern is that the recordkeeper be made aware
of the length of the retention; a comment suggested that agencies
should be encouraged to publish the applicable retention period ``on
all relevant documents.'' Another concern is that at least some
existing retention periods are open-ended; for example, 26 CFR 1.6001-
1(e) requires records to ``be retained so long as the contents thereof
may become material in the administration of any internal revenue
law.''
In the final rule, this provision is left unchanged. It simply
reiterates the statutory requirement in 44 U.S.C. 3506(c)(3)(F). OMB
believes that any implementation issues that arise are best addressed
in particular concrete situations.
13. Proposed Sec. 1320.11(a) (``Clearance of collections of
information in proposed rules''): Under proposed Sec. 1320.11(a), the
agency is to include a statement, in a Notice of Proposed Rulemaking
containing collections of information, that those collections have been
submitted for OMB review, and that the public should direct their
comments to the Office of Information and Regulatory Affairs (OIRA)
within OMB.
Several comments pointed out that the statement in a proposed rule
concerning OMB review of collections of information needed to comply
with not only the requirements in proposed Sec. 1320.5(a)(1)(iv), but
also those in proposed Sec. 1320.8(d) (See 44 U.S.C. 3507(a)(1)(D) and
44 U.S.C. 3506(c)(2)(B)). In the final rule, Sec. 1320.11(a) is
modified to refer to both of these provisions.
In addition, several comments raised a concern with the following
sentence in proposed Sec. 1320.11(a): ``The statement shall request
that comments be submitted to OMB within 60 days of the notice's
publication.'' This sentence does not appear in the previously existing
counterpart Sec. 1320.13(a).
These comments pointed out that OMB is obligated both to ``provide
at least 30 days for public comment prior to making a decision'' under
proposed Sec. 1320.11 (see 44 U.S.C. 3507(b)), and also to make its
decision ``within 60 days'' (44 U.S.C. 3507(d)(1)(B)). The comments
suggested that OMB should change the sentence to have agencies request
the public to submit comments to OMB within 30 days of the notice's
publication, thus providing OMB adequate time to review the public's
comments before making its decision.
For the reasons discussed below, OMB is deleting this sentence from
Sec. 1320.11(a) in the final rule. For many Notices of Proposed
Rulemaking, agencies provide the public with 60 days to comment (cf.
Section 6(a)(1) in Executive Order No. 12866, 58 FR 51740 (October 4,
1993), which encourages agencies to ``afford the public a meaningful
opportunity to comment on any proposed regulation''). To change the
sentence in proposed Sec. 1320.11(a) to have agencies allow the public
only 30 days for comments to OMB, but to retain 60 days for comments to
the agency, may confuse the public and have the unintended consequence
of encouraging all the public comments to be submitted to OMB and the
agency within 30 days. On the other hand, to require agencies to
provide a 60-day comment period for OMB submissions may needlessly
confuse the public for those proposed rules for which the agency wishes
to allow a 30-day comment period (often used for routine or
administrative regulations) or a 90-day comment period (often used for
particularly significant regulations). In addition, the absence of this
sentence from the previously existing counterpart Sec. 1320.13(a) has
not appeared to interfere with the public's awareness of the need to
send pertinent comments to OMB in a timely manner. In addition to
deleting the sentence from proposed Sec. 1320.11(a), OMB has also
deleted a parallel ``30-day'' statement that was in proposed
Sec. 1320.5(a)(1)(iv). However, OMB has retained the parallel ``30-
day'' statements that were in proposed Sec. 1320.10(a) and in proposed
Sec. 1320.12(c).
OMB requests that agencies, in providing guidance in their
statement directing comments concerning collections of information to
OMB, point out that OMB is required to make a decision concerning the
collections of information contained in the proposed rule between 30
and 60 days after publication and that a comment to OMB is best assured
of having its full effect if OMB receives it within 30 days of
publication. Such a statement, however, should only be done in a way
that does not confuse the public concerning the comment period that the
agency wishes to provide for the proposed rule.
14. Proposed Sec. 1320.13 (``Emergency processing''): Proposed
Sec. 1320.13 (preamble) authorizes the agency head or Senior Official
to request emergency processing of an agency's submission of a
collection of information for review. One comment suggested that the
[[Page 44984]]
designee, authorized under Sec. 1320.7(e), should also be able to make
such a request.
OMB agrees, and the final rule is modified accordingly. An
emergency may arise when the agency head or Senior Official is not
available, for any reason. In order to make the lines of responsibility
clear, the designee authorized under this Part should be an individual
located in an office that is independent of the office with
responsibility for implementing the collection of information involved
(cf. 44 U.S.C. 3506(c)(1)).
Other Changes
15. In addition to the revisions discussed above, additional
revisions have been made. These were generally technical and non-
substantive in nature, designed to correct mistakes, improve clarity,
and remove ambiguities. For example, in the definition of ``collection
of information'' in Sec. 1320.3(c)(1), the reference to ``collections
of information contained in, derived from, or authorized by such rules
or regulations'' was removed as surplusage (being contained by
implication in the final sentence); the references to ``electronic'',
``mechanical'' and ``other technological'' collection techniques,
though implicit, were added to increase clarity; and ``recordkeeping''
in the last sentence was replaced with ``collection of information''
for clarity. Similarly, in the definition of ``information'' in
Sec. 1320.3(h), the added reference to ``estimate'' was implicit, but
increases clarity. In addition, proposed Sec. 1320.5(d)(2)(vii) was
dropped as surplusage; such collections of information are subject to
the same review and clearance process that applies to collections of
information generally. Other such changes are found in
Sec. 1320.3(b)(1)(vi), Sec. 1320.3(c) (preamble), Sec. 1320.3(g),
Sec. 1320.3(l), Sec. 1320.5(a)(1)(iii), Sec. 1320.5(a)(1)(iv),
Sec. 1320.5(a)(1)(iv)(B), Sec. 1320.5(b)(2)(ii)(D), Sec. 1320.5(d)(2),
Sec. 1320.5(h), Sec. 1320.8(a)(5), Sec. 1320.8(b)(3),
Sec. 1320.8(c)(2), Sec. 1320.8(d)(1)(ii) and (iv), Sec. 1320.12(b)(2),
Sec. 1320.12(f)(1)(ii), Sec. 1320.16(b)(1), and Appendix A1 and A2.
Other Comments
16. OMB received letters from several State agencies. The specific
comments varied, but the common theme was a concern that OMB's proposed
regulation would require the State agencies to obtain OMB Paperwork
Reduction Act approval for all the forms they use. The State agencies
believed this could undermine their ability to perform their mission.
The Paperwork Reduction Act applies to a collection of information
that is ``conducted or sponsored'' by an agency (i.e., Federal
agencies) (see Sec. 1320.3 (a) and (d); S. Rpt. 104-8, p. 36; H. Rpt.
104-37, p. 36). Accordingly, a State agency is not required to obtain
OMB approval in order to undertake, on its own initiative, to collect
information. However, in those cases where the State agency's
collection of information is being ``conducted or sponsored'' by a
Federal agency, then the Federal agency would need to obtain OMB
approval for the collection of information.
17. OMB received two comments expressing contradictory
interpretations of the following statutory provision involving agency
statistical policy and coordination: ``With respect to statistical
policy and coordination, each agency shall * * * protect respondents'
privacy and ensure that disclosure policies fully honor pledges of
confidentiality'' (44 U.S.C. 3506(e)(3)).
In its Paperwork Reduction Act regulation, OMB has addressed the
need to ensure confidentiality with respect to collections of
information generally. That provision has been found at 5 C.F.R.
1320.6(i) (1984). In the proposed rule, this provision was moved to
Sec. 1320.5(d)(2)(ix). The proposed rule also included additional
provisions regarding confidentiality, at Sec. 1320.5(d)(2)(viii) and
Sec. 1320.8(b)(3)(v). These provisions have been retained in this final
rule, at Sec. 1320.5(d)(2)(vii)-(viii) and Sec. 1320.8(b)(3)(v). To the
extent that issues involving the application of 44 U.S.C. 3506(e)(3)
arise in the course of the development and review of proposed
collections of statistical information, those issues are best addressed
in particular concrete situations.
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. Secs. 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, DC, August 21, 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.
5 CFR Part 1320 is revised to read 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 reduce,
minimize and control burdens and maximize the practical utility and
public benefit of the information created, collected, disclosed,
maintained, used, shared and disseminated by or for the Federal
government.
[[Page 44985]]
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:
(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 be able 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 or retain 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) A Collection of information may be in any form or format,
including the use of report forms; application forms; schedules;
questionnaires; surveys; reporting or recordkeeping requirements;
contracts; agreements; policy statements; plans; 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, electronic, mechanical, or other technological 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 collection
of information 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, that is, if the
results are to be used for statistical compilations of general public
interest, including compilations showing the status or implementation
of Federal activities and programs.
(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
[[Page 44986]]
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, for on-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
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). In the case of a collection of information
published in an issuance that is also included in the Code of Federal
Regulations, publication of the currently valid control number in the
Code of Federal Regulations constitutes an alternative means of
``display.'' In the case of a collection of information published in an
issuance that is also included in the Code of Federal Regulations, OMB
recommends for ease of future reference that, even where an agency has
already ``displayed'' the OMB control number by publishing it in the
Federal Register as a separate notice or in the preamble for the final
rule (rather than in the regulatory text for the final rule or in a
technical amendment to the final rule), the agency also place the
currently valid control number in a table or codified section to be
included in the Code of Federal Regulations. For placement of OMB
control numbers in the Code of Federal Regulations, see 1 CFR 21.35.
(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
Review 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 or estimate 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 agent 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
[[Page 44987]]
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, validity, adequacy, and reliability, and the
agency's ability to process the information it collects (or a person's
ability to receive and process that which is disclosed, 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 requirements or general purpose statistics (see
Sec. 1320.3(c)(3)), ``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 party, or during the conduct of
an administrative action, investigation, or audit 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 or audits
(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, audit, 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 a 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,
electronic, mechanical, or other technological 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 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, including the
estimated number of likely respondents, and proposed frequency of
response to the collection of information;
(5) an estimate of the total annual reporting and recordkeeping
burden that will result from the collection of information;
(6) notice that comments may be submitted to 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
[[Page 44988]]
(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 that is 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). In the case of a collection of information published in
an issuance that is also included in the Code of Federal Regulations,
publication of such information in the Code of Federal Regulations
constitutes an alternative means of providing it ``in a manner that is
reasonably calculated to inform the public.'' In the case of a
collection of information published in an issuance that is also
included in the Code of Federal Regulations, OMB recommends for ease of
future reference that, even where an agency has already provided such
information ``in a manner that is reasonably calculated to inform the
public'' by publishing it in the Federal Register as a separate notice
or in the preamble for the final rule (rather than in the regulatory
text for the final rule or in a technical amendment to the final rule),
the agency also publish such information along with a table or codified
section of OMB control numbers to be included in the Code of Federal
Regulations (see Sec. 1320.3(f)(3)).
(D) in other cases, and where OMB determines in advance in writing
that special circumstances exist, to use other means that are
reasonably calculated to inform the public of the information described
in paragraph (b)(2)(i) of this section.
(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) 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
(viii) 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
[[Page 44989]]
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 Part.
(h) An agency should consult with OMB before using currently
approved forms or other collections of information after the expiration
date printed thereon (in those cases where the actual form being used
contains an expiration date that would expire before the end of the use
of the form).
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 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. Sec. 6011(a) (statutory requirement for
person to file a tax return), 42 U.S.C. Sec. 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, electronic,
mechanical, or other technological 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;
[[Page 44990]]
(2) is reviewed by OMB in accordance with the clearance
requirements of 44 U.S.C. Sec. 3507; and
(3) informs and provides reasonable notice to the potential persons
to whom the collection of information is addressed of--
(i) the 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 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 a manner that is reasonably calculated to
inform the public (see 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, including the validity of
the methodology and assumptions used;
(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,
electronic, mechanical, or other technological 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
[[Page 44991]]
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 to 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 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) and Sec. 1320.8(d)(1) and (3), 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 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.
[[Page 44992]]
(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.
(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, approval shall be
granted for such period, which shall not exceed 60 days, unless
extended by the Director for an additional 60 days, and an OMB control
number assigned. Upon assignment of the 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.
(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
[[Page 44993]]
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 submit 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 subject to the procedures of this section, if the agency:
(1) has refused within a reasonable time to comply with an OMB
instruction to submit 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, or their designee, 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,
[[Page 44994]]
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.
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 delegate:
(1) Is sufficiently independent of program responsibility to
evaluate fairly 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 (1)(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 set by the
Board and 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
[[Page 44995]]
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 later
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.
(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 to obtain or retain 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 has
delivered this transmittal to OMB.
(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, electronic,
mechanical, or other
[[Page 44996]]
technological 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 or retain 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.
(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. 95-21235 Filed 8-28-95; 8:45 am]
BILLING CODE 3110-01-P
