Controlling Paperwork Burdens on the Public; Regulatory Changes Reflecting Recodification of the Paperwork Reduction Act

SUMMARY: The recently enacted Paperwork Reduction Act of 1995 replaces

the Paperwork Reduction Act of 1980, as amended by the Paperwork

Reduction Reauthorization Act of 1986. The new Act redefines

``collection of information'' explicitly to include third-party and

public disclosures, requires agencies to seek public comment concerning

proposed collections of information through 60-day notice to the public

before submission for clearance by the Office of Management and Budget

(OMB) and thereafter to certify to OMB, e.g., that the proposed

collection reduces to the extent practicable and appropriate the burden

on respondents for small business, local government, and other small

entities, and indicates for each recordkeeping requirement the length

of time persons are required to maintain the records specified. The new

Act also makes more explicit the responsibilities of agencies in

developing proposed collections of information and submitting them for

OMB review and approval, and changes a number of definitions and other

provisions. OMB is proposing to amend its existing paperwork clearance

rules to reflect these and the other legislative changes made by the

Paperwork Reduction Act of 1995.

DATES: Comments must be received on or before August 7, 1995.

ADDRESSES: Please address all written comments to Jefferson B. Hill,

Office of Information and Regulatory Affairs, OMB, Washington, D.C.

20503. Comments may be submitted via facsimile to 202/395-7285.

Electronic mail comments may be submitted via SMTP to

[email protected] or via X.400 to G=Jefferson, S=Hill, PRMD=gov+eop,

ADMD+telemail, C=us. Comments submitted via electronic mail should

include the commenter's name, affiliation, postal address, and e-mail

address in the text of the message.

FOR FURTHER INFORMATION CONTACT: Jefferson B. Hill, Office of

Information and Regulatory Affairs, OMB, Washington, D.C. 20503 (202/

395-7340). Inquiries may be submitted via facsimile to 202/395-7285.

Electronic mail comments may be submitted via SMTP to

[email protected] or via X.400 to G=Jefferson, S=Hill, PRMD=gov+eop,

ADMD+telemail, C=us. Inquiries submitted via electronic mail should

include the commenter's name, affiliation, postal address, and e-mail

address in the text of the message.

SUPPLEMENTARY INFORMATION:

A. Background

On May 10, 1988, the Office of Management and Budget (OMB) issued 5

CFR Part 1320--Controlling Paperwork Burden on the Public [53 FR

16618]. The 1988 rule implemented the provisions of the Paperwork

Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C. Chapter 35), as

amended by the Paperwork Reduction Reauthorization Act of 1986 (Pub. L.

99-500 (October 18, 1986) and 99-591 (October 30, 1986), section

101(m)), concerning agency responsibilities for obtaining OMB approval

of their collection of information, and other paperwork control

functions.

The Paperwork Reduction Act of 1995 (Pub. L. 104-13 (May 22, 1995))

replaces the Paperwork Reduction Act of 1980, as amended in 1986. The

Paperwork Reduction Act of 1995 takes effect on October 1, 1995. The

procedural requirements of the Paperwork Reduction Act of 1980, as

amended in 1986, will continue to apply to collections of information

approved by OMB on or before September 30, 1995, and which have a valid

OMB control number expiring after that date.

OMB is proposing to amend 5 CFR Part 1320 in order to reflect the

legislative recodification of the Paperwork Reduction Act. In proposing

these amendments, OMB is fully cognizant of the legislative intent of

the draftsmen: ``To the extent the revision is a restatement of the

Paperwork Reduction Act of 1980, as amended in 1986, the legislation is

a reaffirmation of the law's scope, underlying purposes, requirements,

and legislative history. It is the intent of the [Senate] Committee

that the Act's prior legislative history remain unchanged and continue

to be viewed an important explanation of the Congressional intent

underpinning the Act's provisions'' (S. Rpt. 104-8, p. 35; see H. Rpt.

104-37, p. 35; H. Rpt. 104-99, pp. 27-28).

These proposed amendments change the order and structure of the

existing rules in order to clarify agency and OMB responsibilities, and

to elaborate upon the various requirements of the Paperwork Reduction

Act of 1995. The scope of these proposed changes, their legislative

basis, and their relation to the existing rule are described below. The

rationale supporting the existing rules is set forth at 53 FR 16618

(May 10, 1988), 52 FR 27768 (July 23, 1987), 48 FR 13666 (March 31,

1983), and 47 FR 39515 (September 8, 1982). References to ``44 U.S.C.

[section number]'' are references to the Paperwork Reduction Act of

1995, Pub. L. 104-13, unless explicitly stated otherwise.

B. Proposed Section 1320.1--Purpose

Proposed Sec. 1320.1 is equivalent to existing Sec. 1320.1. Added

to the proposed Sec. 1320.1 is a statement that the new rule is

designed to maximize the practical utility and public benefit of the

collection of information, an addition reflecting the legislative

changes in 44 U.S.C. 3501(2) and 44 U.S.C. 3504(c)(4). Deleted from the

proposed Sec. 1320.1 is a reference to inter-agency reporting, a

deletion reflecting the proposed deletion of existing Sec. 1320.17.

C. Proposed Section 1320.2--Effect

Proposed Sec. 1320.2 serves the same function as existing

Sec. 1320.2. The proposed Sec. states the effective date of the new

rule, and is derived from section 4 of Pub. L. 104-13.

D. Proposed Section 1320.3--Definitions

Proposed Sec. 1320.3 is equivalent to existing Sec. 1320.7. While

proposed Sec. 1320.3 serves the same function, OMB is proposing a

number of changes.

Proposed Sec. 1320.3(a) defining ``agency'' is substantively

identical to existing Sec. 1320.7(a).

Proposed Sec. 1320.3(b): This paragraph defining ``burden'' is

equivalent to existing Sec. 1320.7(b), except that it is amended to

reflect the legislative changes in 44 U.S.C. 3502(2). The detail added

by 44 U.S.C. 3502(2) clarifies the scope of this definition by

codifying OMB practice and understanding. As the floor manager for the

Paperwork Reduction Act of 1995, Senator Sam Nunn, stated at final

Senate passage, this bill ``modifies the Act's definition of burden to

capture the full range of regulatory paperwork compliance costs'' (141

Cong. Rec. S5399 (April 6, 1995)).

Proposed Sec. 1320.3(c): This paragraph defining ``collection of

information'' serves the same function as existing Sec. 1320.7(c), but

has been amended in one respect. Paragraph (c)(4) is equivalent to and

a combination of existing Sec. 1320.7(s) (``Ten or more persons'') and

the last two sentences in existing Sec. 1320.7(n) (``Person''), but is

moved to become a part of proposed Sec. 1320.3(c) in order to make it

clear that the limitations in paragraph (c)(4) apply

[[Page 30439]] only to the use of ``person'' in the context of ``ten or

more persons.'' In addition, the definition retains the ``third-party''

disclosure language found in existing Sec. 1320.7(c)(2). OMB's

interpretation of ``collection of information'' to include third-party

disclosures had been rejected by the Supreme Court in Dole v. United

Steelworkers of America, 494 U.S. 26 (1990), but was reaffirmed by

Congress in the 1995 Act (see 44 U.S.C. 3502(3)). In this regard, one

non-substantive change has been made. The reference to ``disclosure

requirements'' in existing Sec. 1320.7(c)(1) has been replaced by

``posting, notification, labeling, or similar disclosure requirements''

in proposed new Sec. 1320.3(c)(1), in order to parallel the formulation

in proposed new Sec. 1320.3(c)(2) (``through posting, notification,

labeling or similar disclosure requirements''), which is taken from

existing Sec. 1320.7(c)(2).

Proposed Sec. 1320.3(d): This paragraph defining ``conduct or

sponsor'' is equivalent to existing Sec. 1320.7(r) (``Sponsor''), which

defined both the conducting, and the sponsoring, of a collection of

information. The definition is amended to reflect the legislative

changes in 44 U.S.C. 3502(3)(A).

Proposed Sec. 1320.3(e) defining ``Director'' is equivalent to

existing Sec. 1320.7(d).

Proposed Sec. 1320.3(f): This paragraph defining ``display'' is

equivalent to existing Sec. 1320.7(e), but is amended in several ways

to clarify that ``display'' can be interpreted in common-sense ways

appropriate for electronic media, the Federal Register, and the Code of

Federal Regulations. As the Conference Report explains, ``[f]or

collections of information contained in a rule, agencies must provide

the required information in a manner reasonably calculated to inform

the public. Notice may be provided in the preamble to a final rule

containing the collection of information, or in a general notice in the

volume of the Code of Federal Regulations in which the agency's

regulations appear.'' H. Rep. 104-99, p. 37. These examples are

illustrative; the information may also be set forth, as in existing

Sec. 1320.5(e)(2), in the regulatory text of the final rule (including

through a technical amendment), or, as in proposed new

Sec. 1320.3(f)(2), in a separate notice in the Federal Register

announcing OMB approval.

Proposed Sec. 1320.3(g) defining ``independent regulatory agency''

is equivalent to existing Sec. 1320.7(h).

Proposed Sec. 1320.3(h): This paragraph defining ``information''

and the subparagraphs defining exemptions thereto are, with two

changes, identical to existing Sec. 1320.7(j). The exemption for

``certifications'' in existing Sec. 1320.7(j)(1) is clarified in order

to ensure that the exempted certification is used only to identify an

individual in a routine, non-intrusive, non-burdensome way. The

exemption will not be available for a certification that substitutes

for a collection of information to collect evidence of, or to monitor,

compliance with regulatory standards.

Proposed Sec. 1320.3(i) defining ``OMB'' is added for clarity.

Proposed Sec. 1320.3(j) defining ``penalty'' is equivalent to

existing Sec. 1320.7(m). The word ``penalty'' is used in proposed

Sec. 1320.6, and is based on 44 U.S.C. 3502(14).

Proposed Sec. 1320.3(k): This paragraph defining ``person'' is

equivalent to existing Sec. 1320.7(n), except that the last two

sentences in existing Sec. 1320.7(n) have been moved to proposed

Sec. 1320.3(c)(4) (``collection of information''). The purpose for

placing the limitations on the definition of ``person'' into proposed

Sec. 1320.3(c)(4) is to make it clear that the limitations in paragraph

(c)(4) apply only to the use of the word ``person'' in the context of

``ten or more persons.''

Proposed Sec. 1320.3(l): This paragraph defining ``practical

utility'' is equivalent to existing Sec. 1320.7(o), but is amended in

the final sentence to incorporate the definition of ``general purpose

statistics'' in existing Sec. 1320.7(i).

Proposed Sec. 1320.3(m): This paragraph defining ``recordkeeping

requirement'' is equivalent to existing Sec. 1320.7(p), but is amended

to reflect the legislative changes in 44 U.S.C. 3502(13). As with the

definition of ``collection of information'' in existing Sec. 1320.5(p),

although less explicitly, the definition of ``recordkeeping

requirement'' in existing Sec. 1320.7(p) included requirements that

persons maintain information for third parties. The precise scope of

existing Sec. 1320.5(p) was placed into some question by the Supreme

Court's decision in Dole v. United Steelworkers of America, 494 U.S. 26

(1990). However, in Action Alliance of Senior Citizens of Greater

Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir.), cert. denied, 502

U.S. 938 (1991), the Court of Appeals for the District of Columbia

Circuit rejected a broad reading of Dole, in the context of a

requirement to maintain (rather than disclose) information for third

parties. In the 1995 Act, Congress clarified the scope of

``recordkeeping requirement'' in 44 U.S.C. 3502(13).

E. Proposed Section 1320.4--Coverage

Proposed Sec. 1320.4 is equivalent to existing Sec. 1320.3, but is

amended to reflect the legislative rewording in 44 U.S.C. 3502(3)(B)

and 3518(c)(i)(D). No substantive change is intended in this section.

Paragraph (b) is based on 44 U.S.C. 3518(c)(2). Agencies from time

to time investigate general operations of their programs, to assess

factors including performance against statutory or regulatory

objectives, the effectiveness of financial systems, or the efficiency

of automated data systems. These programmatic reviews often involve

surveys or other means of posing identical questions to ten or more

persons without a focus on ``specific individuals or entities.'' Under

44 U.S.C. Sec. 3518(c)(2) and proposed paragraph 1320.4(b), the

collection of information during such general programmatic

investigations (other than information collected in an antitrust

investigation, as specified) are covered by the Act when ``undertaken

with reference to a category of individuals or entities such as a class

of licensees or an entire industry.'' However, as is made clear in 44

U.S.C. Sec. 3518(c)(1)(B)(ii) and proposed paragraph 1320.4(a)(2),

investigations are exempt from the Act when they involve ``an agency

against specific individuals or entities.''

Thus, for example, the Act does not apply to a law enforcement

investigation to determine whether persons are in compliance with the

law. See, e.g., Phillips Petroleum Co. v. Lujan, 963 F.2d 1380, 1382-

83, 1386-87 (10th Cir. 1992) (Paperwork Act does not apply to ``an

audit of the propriety of the royalty and other payment made by'' two

mineral lessees; the audit ``clearly falls within the parameters of

th[e] exemption'' for ``an administrative action or investigation

involving an agency against specific individuals or entities''); United

States v. Saunders, 951 F.2d 1065, 1066-67 (9th Cir. 1991) (Paperwork

Act does not apply to an IRS summons; ``An IRS investigation of a

taxpayer's failure to file her or his income tax return constitutes `an

agency action against specific individuals.' ''); Lonsdale v. United

States, 919 F.2d 1440, 1444-45 (10th Cir. 1990) (same as Saunders;

``the Paperwork Reduction Act is inapplicable to `information

collection request' forms issued during an investigation against an

individual to determine his or her tax liability''). However, the Act

does apply to a general programmatic investigation to determine whether

the agency's program achieves its statutory objectives. [[Page 30440]]

Finally, when conducted by certain agency offices, including Chief

Financial Officers or Inspectors General, an investigation often

carries the title of ``audit.'' OMB recognizes that the Inspectors

General have an important statutory function that requires independence

in the conduct of their investigations. OMB seeks public comment on how

best to implement the objectives of the Paperwork Reduction Act of 1995

while maintaining the practical ability of the Inspectors General to

perform their statutory functions.

F. Proposed Section 1320.5--General Requirements

In general, proposed Sec. 1320.5 reflects a number of legislative

changes to 44 U.S.C. 3506(c) and 3507(a), and in light of those

legislative changes amends and consolidates provisions in existing

Sec. 1320.4, Sec. 1320.6, Sec. 1320.11, Sec. 1320.15, and Sec. 1320.21.

The purpose of this section is to provide a road-map of agency

clearance obligations under this Part.

Proposed Sec. 1320.5(a): This paragraph, in subparagraph (1)(i)-

(iii) and subparagraphs (2)-(3), provides an outline of agency and OMB

obligations for clearing proposed collections of information under this

Part, and reflects the legislative changes in 44 U.S.C. 3507(a).

Paragraph 1320.5(a)(1)(iii) identifies the information that an

agency is to submit to OMB as part of its submission of a proposed

collection of information for clearance.

In response to President Clinton's statement at the signing of the

Paperwork Reduction Act of 1995, to direct agencies to permit

electronic submission of responses, the agency, under proposed

Sec. 1320.5(a)(1)(iii)(E), is to include in its submission to OMB a

statement about whether (and is so, to what extent) the proposed

collection of information involves the use of automated collection

techniques or other forms of information technology (including

permitting electronic submission of responses); the agency is also to

explain to OMB its basis for this decision. This builds on activities

undertaken earlier in the process. Proposed Sec. 1320.8(a)(5) requires

the agency to evaluate this issue in its consideration of the

collection of information, and proposed Sec. 1320.8(d)(1)(iv) requires

the agency to seek public comments on this issue.

In addition, the information to be submitted under paragraph

1320.5(a)(1)(iii)(C) includes an explanation of the decision that it

would not be appropriate, under proposed Sec. 1320.8(b)(1), for a

proposed collection of information to display an expiration date. Under

proposed Sec. 1320.5(a)(1)(iii)(D), an agency is to explain a decision

to provide for any payment or gift to respondents, other than

remuneration of contractors or grantees. This information also

includes, under proposed Sec. 1320.5(a)(1)(iii)(F), a summary of the

public comments received under proposed Sec. 1320.8(d), including

actions taken by the agency in response to the comments, and the date

and page of publication in the Federal Register of the notice therefor.

This paragraph, in subparagraph (1)(iv), provides the information

that agencies are to set forth in the Federal Register notice

announcing that the agency has submitted a proposed information

collection for OMB clearance. Subparagraph (1)(iv) is equivalent to

existing Sec. 1320.15, but is amended to reflect the legislative

changes in 44 U.S.C. 3507(a)(1)(D). Subparagraph (1)(iv) also directs

agencies, except as provided in proposed Sec. 1320.13(d), to request

public comments within 30 days of publication because, under 44 U.S.C.

3507(b), OMB is directed to provide at least 30 days for public comment

prior to making its decision concerning the agency's clearance request.

Proposed Sec. 1320.5(b): This paragraph stresses the agency's

obligation, under 44 U.S.C. 3512, to display a currently valid OMB

control number and to inform the persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number. This paragraph, in subparagraph (ii)(A)-(B),

elaborates on possible ways in which the agency can so inform the

respondents. This paragraph serves the same function in the first

sentence in existing Sec. 1320.4(a). As noted above, with respect to

the definition of ``display'' in proposed new Sec. 1320.3(f), the

Conference Report explains that ``[f]or collections of information

contained in a rule, agencies must provide the required information in

a manner reasonably calculated to inform the public. Notice may be

provided in the preamble to a final rule containing the collection of

information, or in a general notice in the volume of the Code of

Federal Regulations in which the agency's regulations appear.'' H. Rep.

104-99, p. 37. These examples are illustrative; the information may

also be set forth, as in existing Sec. 1320.5(e)(2), in the regulatory

text of the final rule (including through a technical amendment), or,

as in proposed new Sec. 1320.3(f)(2) and proposed new

Sec. 1320.5(b)(2)(ii)(B), in a separate notice in the Federal Register

announcing OMB approval.

Proposed Sec. 1320.5(c): This paragraph is equivalent to existing

Sec. 1320.11(e), and identifies the sections in this Part under which

an agency should submit different kinds of proposed collections of

information, specifically, for collections of information contained in

proposed rules published for public comment in the Federal Register and

for current regulations that were published as final rules in the

Federal Register. Subparagraph (5) of this paragraph defines when a

submission to OMB is deemed to have been received, and applies with

respect to the time frames for OMB review. This subparagraph is

equivalent to existing Sec. 1320.11(j), except that it has been revised

to clarify that it applies only to the receipt of a ``properly

submitted'' package. If OMB concludes that a package has not been

``properly submitted,'' OMB will notify the agency of this conclusion

and indicate what corrective steps need to be taken.

Proposed Sec. 1320.5(d)(1): Subparagraph (1) of this paragraph is

equivalent to existing Sec. 1320.4(b)(1), (b)(2), and the first two

sentences of (b)(3). The third sentence of existing Sec. 1320.4(b)(3)

is no longer necessary. The guidelines set forth in existing

Sec. 1320.6 have been moved to proposed new Sec. 1320.5(d)(2), which

immediately follows, and the requirement to discuss the ``practical

steps'' for consultation have been superseded by the 1995 Act's

requirements for a comment period prior to submission to OMB.

Proposed Sec. 1320.5(d)(2). Subparagraph (2) of this paragraph is

equivalent to existing Sec. 1320.6. Existing Sec. 1320.6(e) is now

reflected in proposed Sec. 1320.5(a)(1)(iii)(D); existing Sec. 1320.6

(h) and (j) are now reflected in proposed Sec. 1320.9(c) and (f); and

existing Sec. 1320.6(k) is now reflected in proposed

Sec. 1320.5(a)(1)(iii)(D), Sec. 1320.8(a)(5), and

Sec. 1320.8(d)(1)(iv). These guidelines are also amended by adding

three new provisions. Subparagraph (2)(vi) directs agencies to avoid

using statistical data classifications that have not been reviewed and

approved by OMB. Subparagraph (2)(vii) directs agencies to avoid

collecting information at the request of another country or an

international organization unless such request has been reviewed,

coordinated, and approved by OMB. Subparagraph (2)(viii) directs

agencies not to make confidentiality pledges to respondents unless they

have adequate authority to honor such pledges. An agency need not

comply with each of the policy [[Page 30441]] directives listed under

subparagraph (2) of this paragraph if the agency is able to

demonstrate, in its submission for OMB clearance, that such

characteristic of the collection of information is necessary to satisfy

statutory requirements or other substantial need.

Proposed Sec. 1320.5(e) is substantively identical to existing

Sec. 1320.4(c).

Proposed Sec. 1320.5(f) is substantively identical to a combination

of existing Sec. 1320.4(d) and Sec. 1320.11(i).

Proposed Sec. 1320.5(g) is equivalent to existing Sec. 1320.11(h),

but is amended to reflect the legislative changes in 44 U.S.C.

3507(h)(3).

Proposed Sec. 1320.5(h) is added to request agencies to consult

with OMB before continuing to use OMB-approved forms or other

collections of information after the expiration date printed thereon

(e.g., using copies of old forms to conduct a collection of information

that OMB has reapproved for continued use). Continuing to use such

forms may confuse the public which, under proposed Sec. 1320.5(b) and

proposed Sec. 1320.6, is being advised that absent a valid OMB control

number the collection of information is unenforceable.

G. Proposed Section 1320.6--Public Protection

Proposed Sec. 1320.6 is equivalent to existing Sec. 1320.5, but is

amended to reflect the legislative changes in 44 U.S.C. 3512.

Proposed Sec. 1320.6(a)(1) states that no person is to be subject

to any penalty for failing to comply with a collection of information

that is subject to the requirements of this Part if the collection of

information does not display a currently valid OMB control number.

Proposed Sec. 1320.6(a)(2) states that no person is to be subject

to any penalty for failing to comply with a collection of information

that is subject to the requirements of this Part if the agency fails to

inform the person who is to respond to the collection of information

that such person is not required to respond to the collection of

information unless it displays a currently valid OMB control number.

Proposed Sec. 1320.6(b) states that the protections provided by 44

U.S.C. 3512(a) and proposed Sec. 1320.6(a) may be raised in the form of

a complete, defense, bar, or otherwise to the imposition of such

penalties at any time during the agency administrative process in which

such penalty may be imposed or judicial action applicable thereto.

Proposed Sec. 1320.6(c) is equivalent to existing Sec. 1320.5(b).

Proposed Sec. 1320.6(d) is identical to existing Sec. 1320.5(c).

Proposed Sec. 1320.6(e) is new. This paragraph points out that,

under existing law, the public protections provided by proposed

Sec. 1320.6(a) do not preclude the imposition of a penalty on a person

for failing to comply with a collection of information that is imposed

on the person by statute, e.g., 26 U.S.C. 6011(a) (statutory

requirement for person to file a tax return), 42 U.S.C. 6938(c)

(statutory requirement for person to provide notification before

exporting hazardous waste).

This paragraph is based on the principle announced by the courts in

several cases which addressed the issue of whether the public

protection provided by 44 U.S.C. 3512 could preclude the Federal

government from prosecuting persons for their failure to perform

paperwork duties imposed upon them by statute. See Salberg v. United

States, 969 F.2d 379 (7th Cir. 1992); United States v. Neff, 954 F.2d

698 (11th Cir. 1992); United States v. Dawes, 951 F.2d 1189 (10th Cir.

1991); United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991); United

States v. Wunder, 919 F.2d 34 (6th Cir. 1990). In those cases, the

courts concluded that Congress, in enacting the Paperwork Reduction

Act, did not intend to require itself to comply with the requirements

of that Act (and seek and obtain OMB approval) whenever Congress

decides to impose a paperwork requirement on persons directly by

statute.1

\1\ See Salberg, supra, at 384 (``Salberg was convicted of

violating a statute. It was a federal statute--26 U.S.C. Sec. 7203--

not a regulation or an instruction book that required Salberg to

file an income tax return. Statutes are not subject to the PRA * * *

.''); Neff, supra, at 700 (``Congress did not enact the PRA's public

protection provision to allow OMB to abrogate any duty imposed by

Congress. * * * So the PRA provides Neff no refuge from his

statutorily-imposed duty to file income tax returns''); Dawes,

supra, at 1192 (``We would be inclined to follow the general

analysis of Wunder and Hicks and hold that the operation of the PRA

in these circumstances did not repeal the criminal sanctions for

failing to file an income tax return because the obligation to file

is a statutory one.''); Hicks, supra at 1359 (``where Congress sets

forth an explicit statutory requirement that the citizen provide

information, and provides statutory criminal penalties for failure

to comply with the request, that is another matter. This is a

legislative command, not an administrative request.''); Wunder,

supra, at 38 (``the requirement to file a tax return is mandated by

statute, not regulation. Defendant was not convicted of violating a

regulation, but of violating a statute which required him to file an

income tax return.'').

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There is no legislative history pertinent to the Paperwork

Reduction Act of 1995 that suggests that Congress intended to change

this court interpretation for 44 U.S.C. 3512.

Accordingly, where Congress imposes a collection of information

directly on persons, by statute (as, e.g., in 26 U.S.C. Sec. 6011(a)

and 42 U.S.C. Sec. 6938(c)), then the public protection provided by

proposed Sec. 1320.6(a) would not preclude the imposition of penalties

for a person's failure to comply with the statutory mandate. This

principle, however, does not extend to situations in which a statute

authorizes, or directs, an agency to impose a collection of information

on persons, and the agency does so. In such cases, the agency is

obligated to comply with the Paperwork Reduction Act of 1995 in

imposing the paperwork requirement (just as the agency must comply with

other applicable statutes--e.g., the Administrative Procedure Act in

the case of regulations), and the public protection provided by

proposed Sec. 1320.6(a) would apply to such paperwork requirements.

H. Proposed Section 1320.7--Agency Head and Senior Official

Responsibilities

Proposed Sec. 1320.7 is equivalent to existing Sec. 1320.8, but is

amended to reflect the legislative changes in 44 U.S.C. 3506(a).

Proposed Sec. 1320.7(c) calls upon the Senior Official to head an

office responsible for ensuring agency compliance with the

implementation of the information policies and information resources

management responsibilities established under the Paperwork Reduction

Act of 1995, and reflects the legislative changes in 44 U.S.C.

3506(a)(3). Proposed Sec. 1320.7(d) calls upon the Senior Official to

establish a process within that office that is sufficiently independent

of program responsibility to evaluate fairly whether proposed

collections of information should be approved under this Part, and

reflects the legislative changes in 44 U.S.C. 3506(c)(1).

I. Proposed Section 1320.8--Agency Collection of Information

Responsibilities

In general, proposed Sec. 1320.8 is new, and reflects the

legislative changes in 44 U.S.C. 3506(c) (1) and (2). Basically, this

proposed section sets forth the information collection development

responsibilities for each agency.

Proposed Sec. 1320.8(a) reflects the legislative changes in 44

U.S.C. 3506(c)(1)(A). In general, agencies need, in developing new

collections of information and in deciding whether to continue existing

ones, to evaluate the need for each aspect of the information

collection, estimate respondent burdens, and, if appropriate, test the

collection of information through a pilot program. Also, in response to

President Clinton's statement at the signing of the

[[Page 30442]] Paperwork Reduction Act of 1995, to direct agencies to

permit electronic submission of responses, the agency is to evaluate

whether (and if so, to what extent) the burden on respondents can be

reduced through the use of automated collection techniques or other

forms of information technology, e.g., permitting electronic submission

of responses. Subsequent in the process, proposed Sec. 1320.8(d)(1)(iv)

requires the agency to seek public comments on this issue, and proposed

Sec. 1320.5(a)(1)(iii)(D) requires the agency to state, in its eventual

submission to OMB, whether (and to what extent) the collection of

information involves such techniques, and the agency must explain to

OMB the basis for its decision.

Proposed Sec. 1320.8 (b) and (c) reflect the legislative changes in

44 U.S.C. 3506(c)(1)(B). Agencies need to ensure that each collection

of information is inventoried, displays a currently valid OMB control

number, and, if appropriate, an expiration date; and is reviewed by OMB

in accordance with the clearance requirements of 44 U.S.C. 3507. As

part of the information clearance package (through the means suggested

in proposed Sec. 1320.8(c)), the agency needs to inform and provide

fair notice to potential respondents of the policy reasons for which

the information is planned to be and/or has been collected; the way in

which such information is planned to be and/or has been used for the

proper performance of the functions of the agency; the estimated

burden; whether responses are voluntary, required to obtain a benefit,

or mandatory; and the fact that an agency may not conduct or sponsor,

and the respondent is not required to respond to, a collection of

information unless it displays a valid OMB control number. Together

with the estimate of burden, agencies are to request that the public

direct to the agency any comments concerning the accuracy of this

burden estimate and any suggestions for reducing this burden; this

request for public comments concerning the burden estimate is

equivalent to that included in existing Sec. 1320.21(a)(2).

Proposed Sec. 1320.8(d) reflects the legislative changes in 44

U.S.C. 3506(c)(2). Unless the proposed collection of information is

contained in a Notice of Proposed Rulemaking and the agency seeks OMB

clearance under proposed Sec. 1320.11, or unless exempted under

proposed Sec. 1320.13, the agency needs, for each new proposed

collection of information or extension of an existing one to provide

60-day notice in the Federal Register, and otherwise consult with the

members of the public and affected agencies. In this notice, under

paragraph (d)(1) of this section, the agency needs to solicit comment

on the need for the information, its practical utility, the accuracy of

the agency's burden estimate, and on ways to minimize burden on

respondents, including through the use of automated collection

techniques or other forms of information technology. Under paragraph

(d)(2) of this section, if an agency chooses not to publish the

proposed collection of information in the Federal Register, the agency

should provide more than a 60-day notice to permit timely receipt of a

copy by mail, or should explain how interested persons may obtain a

copy (including, if applicable, how to obtain electronic access to the

proposed collection of information).

J. Proposed Section 1320.9--Agency Certifications for Proposed

Collections of Information

In general, proposed Sec. 1320.9 is new, and reflects the

legislative changes in 44 U.S.C. 3506(c)(3). Basically, this proposed

section sets forth the content of agency certifications accompanying

proposed collections of information submitted for OMB clearance.

As part of an agency's submission of a proposed collection of

information to OMB for clearance, an agency needs to send, along with

the other information called for by proposed Sec. 1320.5(a)(1)(iii)(B)-

(E), a certification that the information collection meets certain

standards and provide a record supporting such certification. The

agency needs to certify that the proposed collection of information,

e.g., is needed; not unnecessarily duplicative; reduces to the extent

practicable and appropriate the burden on respondents, including, for

small business, local government, and other small entities, the use of

the techniques outlined in the Regulatory Flexibility Act; is written

in unambiguous terminology; is to be implemented in ways consistent

with the existing reporting and recordkeeping practices of the

respondents; indicates for each recordkeeping requirement the length of

time documents are to be retained; informs potential respondents of the

information called for under proposed Sec. 1320.8(b)(3); has been

developed by an office that has planned for the efficient and effective

management of the information to be collected; uses effective and

efficient statistical survey methodology; and to the maximum extent

practicable, uses appropriate information technology to reduce burden

and improve data quality.

K. Proposed Section 1320.10--Clearance of Collections of Information,

Other Than Those Contained in Proposed Rules or in Current Rules

Proposed Sec. 1320.10 is equivalent to existing Sec. 1320.12, but

is amended to reflect the legislative changes in 44 U.S.C. 3507.

Proposed Sec. 1320.10(a): This paragraph is equivalent to existing

Sec. 1320.12(a). This paragraph provides that the agency notice in the

Federal Register required by proposed Sec. 1320.5(a)(1)(iv) request

that public comments be submitted within at least 30 days of

publication to OMB. OMB is obligated to provide at least 30 days for

public comment prior to making a decision under this proposed section

under 44 U.S.C. 3507(b), but would like to receive public comments at

the end of that period in order to be prepared to make a decision if

the need so dictates.

Proposed Sec. 1320.10(b): This paragraph is equivalent to existing

Sec. 1320.12(b). Reflecting 44 U.S.C. 3507(c)(2), this paragraph

provides that OMB is obligated to make its decision within 60 days

after receipt of the proposed collection of information or publication

of the notice under paragraph (a) of this section, whichever is later.

Proposed Sec. 1320.10(c): This paragraph is equivalent to existing

Sec. 1320.12(c). The maximum time period for OMB review is 60, rather

than 90, days, reflecting the legislative change in 44 U.S.C.

3507(c)(3).

Proposed Sec. 1320.10(d): This paragraph is equivalent to existing

Sec. 1320.12(d), except that it is expanded to reflect the legislative

changes in 44 U.S.C. 3512(a)(2). An agency may not conduct or sponsor a

collection of information unless the collection of information displays

a currently valid OMB control number and the agency informs potential

respondents that such respondents are not required to respond to the

collection of information unless it displays a currently valid OMB

control number.

Proposed Sec. 1320.10(e) is new, and reflects the legislative

changes in 44 U.S.C. 3507(h)(1). This paragraph outlines the procedures

an agency needs to follow before it seeks to extend an OMB approval for

an ongoing collection of information. The agency needs to conduct the

review established in proposed Sec. 1320.8, including the seeking of

comment from the public under Sec. 1320.8(d), and submit, no later than

60 days before the expiration date, the collection of information for

review and approval under this Part, which shall include an explanation

of how the agency has used the information it has

[[Page 30443]] collected. This paragraph does not apply to a collection

of information contained in a published current rule which has been

approved by OMB and has a currently valid OMB control number because

such a collection needs to be submitted for OMB clearance under

proposed Sec. 1320.12.

Proposed Sec. 1320.10(f) is equivalent to the first five sentences

in existing Sec. 1320.11(f) (see proposed Sec. 1320.12(i)).

Proposed Sec. 1320.10(g) is equivalent to the sixth sentence in

existing Sec. 1320.11(f).

L. Proposed Section 1320.11--Clearance of Collections of Information in

Proposed Rules

Proposed Sec. 1320.11 is equivalent to existing Sec. 1320.13, but

is amended to reflect the legislative changes in 44 U.S.C. 3507(d).

Proposed Sec. 1320.11(a): This paragraph is equivalent to existing

Sec. 1320.13(a). This paragraph provides that the agency notice in the

Federal Register, required by proposed Sec. 1320.5(a)(1)(iv), request

that public comments be submitted to OMB within 30 days of the notice's

publication. Under the 1995 Amendments, OMB is obligated to provide at

least 30 days for public comment prior to making a decision, 44 U.S.C.

3507(b); however, OMB must make its decision within 60 days under 44

U.S.C. 3507(d)(1)(B). Therefore, while OMB will of course attempt to

consider all comments that OMB receives before OMB makes its decision,

a public comment is best assured of having maximum impact if it is

received within 30 days of the notice's publication.

Proposed Secs. 1320.11 (b), (c), and (d) are equivalent to existing

Secs. 1320.13 (b), (c), and (d).

Proposed Sec. 1320.11(e) is new, reflecting the legislative change

in 44 U.S.C. 3507(b) that OMB is obligated to provide at least 30 days

for public comment prior to making a decision.

Proposed Secs. 1320.11 (f), (g), (h), (i), and (j) are equivalent

to existing Secs. 1320.13 (e), (f), (g), (h), and (i).

Proposed Sec. 1320.11(k) is equivalent to the first sentence in

existing Sec. 1320.13(j). Proposed Sec. 1320.11(l) serves the same

function as the second and third sentences in existing Sec. 1320.13(j),

but is amended to reflect the legislative change in 44 U.S.C.

3512(a)(2).

M. Proposed Section 1320.12--Clearance of Collections of Information in

Current Rules

Proposed Sec. 1320.12 is equivalent to existing Sec. 1320.14, but

is amended to reflect the legislative changes in 44 U.S.C. 3507.

Proposed Sec. 1320.12(a): This paragraph is equivalent to existing

Sec. 1320.14(a), but is amended to reflect the legislative change in 44

U.S.C. 3507(h)(1). This paragraph outlines the procedures an agency

needs to follow before it seeks to extend an OMB approval for a

collection of information published current rule which has been

approved by OMB and has a currently valid OMB control number. The

agency needs to conduct the review established in proposed Sec. 1320.8,

including the seeking of comment from the public under Sec. 1320.8(d),

and submit, no later than 60 days before the expiration date, the

collection of information for review and approval under this Part,

which shall include an explanation of how the agency has used the

information it has collected.

Proposed Sec. 1320.12(b) is new. It is equivalent to proposed

Sec. 1320.12(a), except that it applies a collection of information

contained in a published current rule that was not required to be

submitted for OMB review under the Paperwork Reduction Act at the time

the collection of information was made part of the rule, but which

collection of information is now subject to the Paperwork Reduction Act

of 1995. Specifically, this paragraph may apply to published current

rule that contains a ``disclosure to third parties or the public'' (see

proposed Sec. 1320.3(c)) or particular kinds of ``recordkeeping

requirement'' (see proposed Sec. 1320.3(m)(2)-(4)), that were exempt

from OMB review under Dole v. United Steelworkers of America, 494 U.S.

26 (1990), or a certification or other affirmation that the agency uses

as a substitute for a collection of information to collect evidence of,

or to monitor, compliance with regulatory standards (see proposed

Sec. 1320.3(h)(1)). Added at the end of proposed Sec. 1320.12(b) is an

instruction equivalent to proposed Sec. 1320.11(l).

Proposed Sec. 1320.12(c): This paragraph is equivalent to existing

Sec. 1320.14(b). This paragraph provides that the agency notice in the

Federal Register required by proposed Sec. 1320.5(a)(1)(iv) request

that public comments be submitted within at least 30-days of

publication to OMB. OMB is obligated to provide at least 30 days for

public comment prior to making a decision under this proposed section

under 44 U.S.C. 3507(b), but would like to receive public comments at

the end of that period in order to be prepared to make a decision if

the need so dictates.

Proposed Sec. 1320.12(d): This paragraph is equivalent to existing

Sec. 1320.14(c). Reflecting 44 U.S.C. 3507(c)(2), this paragraph

provides that OMB is obligated to make its decision within 60 days

after receipt of the proposed collection of information or publication

of the notice under paragraph (a) of this section, whichever is later.

This paragraph also contains a new last sentence, reflecting the

legislative change in 44 U.S.C. 3507(b) that OMB is obligated to

provide at least 30 days for public comment prior to making a decision.

Proposed Sec. 1320.12(e): This paragraph is equivalent to existing

Sec. 1320.14(e). The maximum time period for OMB review is 60, rather

than 90, days, reflecting the legislative change in 44 U.S.C.

3507(c)(3).

Proposed Sec. 1320.12(f): Paragraph (f)(1) (i) and (ii) is amended

to reflect the legislative changes in 44 U.S.C. 3507(h)(2). Paragraph

(f)(1)(iii) is equivalent to existing Sec. 1320.14(f). Paragraph (f)(2)

is equivalent to Sec. 1320.14(g).

Proposed Sec. 1320.12(g) is equivalent to existing Sec. 1320.14(h).

Proposed Sec. 1320.12(h): Paragraph (h)(1) is equivalent to

existing Sec. 1320.14(i). Paragraph (h)(2) is equivalent to the second

sentence in existing Sec. 1320.5(a)(2).

Proposed Sec. 1320.12(i): This paragraph is equivalent to the first

three sentences of existing Sec. 1320.11(f) (see proposed

Sec. 1320.10(f)).

N. Proposed Section 1320.13--Emergency Processing

Proposed Sec. 1320.13 is equivalent to existing Sec. 1320.18, but

is amended to reflect the legislative changes in 44 U.S.C. 3507(b),

(c), and (j). OMB is proposing to delete existing Sec. 1320.18(g)

concerning ``expedited'' processing. Given the legislative changes in

44 U.S.C. 3507(b) and (c), OMB is obligated, unless OMB receives a

request for emergency processing under this section, to provide at

least 30 days for public comment prior to making a decision and make

its decision within 60 days after receipt of the clearance request or

publication of the notice in the Federal Register required by proposed

Sec. 1320.5(a)(1)(iv), whichever is later.

O. Proposed Section 1320.14--Public Access

Proposed Sec. 1320.14(a) is equivalent to existing Sec. 1320.19.

Proposed Sec. 1320.14(b) is equivalent to existing Sec. 1320.11(b).

Proposed Sec. 1320.14.(c) is new, and reflects the legislative

changes in 44 U.S.C. 3517(b). Any person may request OMB to review any

collection of [[Page 30444]] information conducted by or for an agency

to determine, if a person is obligated to maintain, provide, or

disclose the information to or for an agency. Unless the request is

frivolous, OMB is, in coordination with the responsible agency, to

respond to the request within 60 days (unless notice is given of an

extension to a specified date) and to take appropriate remedial action,

as necessary.

P. Proposed Section 1320.15--Independent Regulatory Agency Override

Authority

Proposed Sec. 1320.15 is equivalent to existing Sec. 1320.20,

except that it is amended to reflect the legislative changes in 44

U.S.C. 3507(f) and 44 U.S.C. 3512(a).

Q. Proposed Section 1320.16--Delegation of Approval Authority

Proposed Sec. 1320.16 is equivalent to existing Sec. 1320.9, except

that it is amended to reflect the legislative changes in 44 U.S.C.

3506(a)(3).

R. Proposed Section 1320.17--Information Collection Budget

Proposed Sec. 1320.17 is equivalent to the first and last sentences

in existing Sec. 1320.10.

S. Proposed Section 1320.18--Other Authority

Proposed Sec. 1320.18 is equivalent to existing Sec. 1320.22.

T. Appendix A--Agencies with Delegated Review and Approval Authority

Proposed new Appendix A is substantively identical to existing

Appendix A. Appendix A contains the delegations to the Federal Reserve

Board and to the Federal Communications Commission. OMB is proposing to

make only conforming changes, e.g., to revise the section cross-

references in the delegations to the proposed sections in the

regulation. No substantive changes are proposed.

Q. Other Amendments

Other proposed amendments to 5 CFR Part 1320 include the deletion

of terms that are no longer used in this Part, e.g., ``Educational

agency or institution'' and ``A Federal education program,'' and of

sections that are no longer pertinent, e.g., existing Sec. 1320.16,

entitled ``Collections of information prescribed by another agency,''

and existing Sec. 1320.17, entitled ``Interagency reporting.''

Assessment of Potential Costs and Benefits and Regulatory Flexibility

Act Analysis

OMB has analyzed the effects of this rule under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). Copies of this analysis are

available upon request. In summary, OMB has concluded that these

amendments will have a salutary impact on small entities through the

reduction of unnecessary paperwork.

For purposes of the Unfunded Mandates Reform Act of 1995 (P.L. 104-

4), as well as Executive Order No. 12875, this rule does not include

any Federal mandate that may result in increased expenditures by State,

local, and tribal governments, or by the private sector.

Issued in Washington, D.C., May 31, 1995.

Sally Katzen,

Administrator, Office of Information and Regulatory Affairs.

List of Subjects in 5 CFR Part 1320

Reporting and recordkeeping requirements, Paperwork, Collections of

information.

For the reasons set forth in the preamble, OMB proposes to revise 5

CFR Part 1320 as follows:

PART 1320: CONTROLLING PAPERWORK BURDENS ON THE PUBLIC

Sec.

1320.1 Purpose.

1320.2 Effect.

1320.3 Definitions.

1320.4 Coverage.

1320.5 General requirements.

1320.6 Public protection.

1320.7 Agency head and Senior Official responsibilities.

1320.8 Agency collection of information responsibilities.

1320.9 Agency certifications for proposed collections of

information.

1320.10 Clearance of collections of information, other than those

contained in proposed rules or in current rules.

1320.11 Clearance of collections of information in proposed rules.

1320.12 Clearance of collections of information in current rules.

1320.13 Emergency processing.

1320.14 Public access.

1320.15 Independent regulatory agency override authority.

1320.16 Delegation of approval authority.

1320.17 Information collection budget.

1320.18 Other authority.

Appendix A: Agencies With Delegated Review and Approval Authority

Authority: 31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27,

29, 31, 35.

Sec. 1320.1 Purpose.

The purpose of this part is to implement the provisions of the

Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (the Act)

concerning collections of information. It is issued under the authority

of section 3516 of the Act, which provides that ``The Director shall

promulgate rules, regulations, or procedures necessary to exercise the

authority provided by this chapter.'' It is designed to minimize and

control burdens and maximize the practical utility and public benefit

of the collection of information by or for Federal agencies from

individuals, small businesses, educational and nonprofit institutions,

Federal contractors, State, local and tribal governments, and other

persons.

Sec. 1320.2 Effect.

(a) Except as provided in paragraph (b) of this section, this part

takes effect on October 1, 1995.

(b)(1) In the case of a collection of information for which there

is in effect on September 30, 1995, a control number issued by the

Office of Management and Budget under 44 U.S.C. Chapter 35, the

provisions of this part shall take effect beginning on the earlier of:

(i) The date of the first extension of approval for or modification

of that collection of information after September 30, 1995; or

(ii) The date of the expiration of the OMB control number after

September 30, 1995.

(2) Prior to such extension of approval, modification, or

expiration, the collection of information shall be subject to 5 CFR

part 1320, as in effect on September 30, 1995.

Sec. 1320.3 Definitions.

For purposes of implementing the Act and this part, the following

terms are defined as follows:

(a) Agency means any executive department, military department,

Government corporation, Government controlled corporation, or other

establishment in the executive branch of the government, or any

independent regulatory agency, but does not include:

(1) The General Accounting Office;

(2) Federal Election Commission;

(3) The governments of the District of Columbia and the territories

and possessions of the United States, and their various subdivisions;

or

(4) Government-owned contractor-operated facilities, including

laboratories engaged in national defense research and production

activities.

(b)(1) Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency,

including: [[Page 30445]]

(i) Reviewing instructions;

(ii) Developing, acquiring, installing, and utilizing technology

and systems for the purpose of collecting, validating, and verifying

information;

(iii) Developing, acquiring, installing, and utilizing technology

and systems for the purpose of processing and maintaining information;

(iv) Developing, acquiring, installing, and utilizing technology

and systems for the purpose of disclosing and providing information;

(v) Adjusting the existing ways to comply with any previously

applicable instructions and requirements;

(vi) Training personnel to respond to a collection of information;

(vii) Searching data sources;

(viii) Completing and reviewing the collection of information; and

(ix) Transmitting, or otherwise disclosing the information.

(2) The time, effort, and financial resources necessary to comply

with a collection of information that would be incurred by persons in

the normal course of their activities (e.g., in compiling and

maintaining business records) will be excluded from the ``burden'' if

the agency demonstrates that the reporting, recordkeeping, or

disclosure activities needed to comply are usual and customary.

(3) A collection of information conducted or sponsored by a Federal

agency that is also conducted or sponsored by a unit of State, local,

or tribal government is presumed to impose a Federal burden except to

the extent that the agency shows that such State, local, or tribal

requirement would be imposed even in the absence of a Federal

requirement.

(c) Collection of information means, except as provided in

Sec. 1320.4, the obtaining, causing to be obtained, soliciting, or

requiring the disclosure to an agency, third parties or the public of

information by or for an agency by means of identical questions posed

to, or identical reporting, recordkeeping, or disclosure requirements

imposed on, ten or more persons, whether such collection of information

is mandatory, voluntary, or required to obtain a benefit. ``Collection

of information'' includes any requirement or request for persons to

obtain, maintain, retain, report, or publicly disclose information. As

used in this part, ``collection of information'' refers to the act of

collecting or disclosing information, to the information to be

collected or disclosed, to a plan and/or an instrument calling for the

collection or disclosure of information, or any of these, as

appropriate.

(1) ``Collection of information'' includes the use of report forms,

application forms, schedules, questionnaires, surveys, reporting or

recordkeeping requirements, or other similar methods. Similar methods

may include contracts; agreements; policy statements; plans; rules or

regulations; collections of information contained in, derived from, or

authorized by such rules or regulations; planning requirements;

circulars; directives; instructions; bulletins; requests for proposal

or other procurement requirements; interview guides; oral

communications; posting, notification, labeling, or similar disclosure

requirements; telegraphic or telephonic requests; automated collection

techniques; standard questionnaires used to monitor compliance with

agency requirements; or any other techniques or technological methods

used to monitor compliance with agency requirements. A ``collection of

information'' may implicitly or explicitly include related

recordkeeping requirements.

(2) Requirements by an agency for a person to obtain or compile

information for the purpose of disclosure to members of the public or

the public at large, through posting, notification, labeling or similar

disclosure requirements constitute the ``collection of information''

whenever the same requirement to obtain or compile information would be

a ``collection of information'' if the information were directly

provided to the agency. The public disclosure of information originally

supplied by the Federal government to the recipient for the purpose of

disclosure to the public is not included within this definition.

(3) ``Collection of information'' includes questions posed to

agencies, instrumentalities, or employees of the United States, if the

results are to be used for general statistical purposes.

(4) As used in paragraph (c) of this section, ``ten or more

persons'' refers to the persons to whom a collection of information is

addressed by the agency within any 12-month period, and to any

independent entities to which the initial addressee may reasonably be

expected to transmit the collection of information during that period,

including independent State, territorial, tribal or local entities and

separately incorporated subsidiaries or affiliates. For the purposes of

this definition of ``ten or more persons,'' ``persons'' does not

include employees of the respondent acting within the scope of their

employment, contractors engaged by a respondent for the purpose of

complying with the collection of information, or current employees of

the Federal government (including military reservists and members of

the National Guard while on active duty) when acting within the scope

of their employment, but it does include retired and other former

Federal employees.

(i) Any recordkeeping, reporting, or disclosure requirement

contained in a rule of general applicability is deemed to involve ten

or more persons.

(ii) Any collection of information addressed to all or a

substantial majority of an industry is presumed to involve ten or more

persons.

(d) Conduct or Sponsor. A Federal agency is considered to ``conduct

or sponsor'' a collection of information if the agency collects the

information, causes another agency to collect the information,

contracts or enters into a cooperative agreement with a person to

collect the information, or requires a person to provide information to

another person, or in similar ways causes another agency, contractor,

partner in a cooperative agreement, or person to obtain, solicit, or

require the disclosure to third parties or the public of information by

or for an agency. A collection of information undertaken by a recipient

of a Federal grant is considered to be ``conducted or sponsored'' by an

agency only if:

(1) The recipient of a grant is conducting the collection of

information at the specific request of the agency; or

(2) The terms and conditions of the grant require specific approval

by the agency of the collection of information or collection

procedures.

(e) Director means the Director of OMB, or his or her designee.

(f) Display means:

(1) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents (other than in an electronic format), to place the

currently valid OMB control number on the front page of the collection

of information;

(2) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents in an electronic format, to place the currently valid OMB

control number in the instructions, near the title of the electronic

collection instrument, or, foron-line applications, on the first screen

viewed by the respondent;

(3) In the case of collections of information published in

regulations, guidelines, and other issuances in the Federal Register,

to publish the currently valid OMB control number in the Federal

Register (for example, in the case of a collection of information in a

[[Page 30446]] regulation, by publishing the OMB control number in the

preamble or the regulatory text for the final rule, in a technical

amendment to the final rule, or in a separate notice announcing OMB

approval of the collection of information) and/or in the Code of

Federal Regulations. For ease of future reference, OMB recommends that,

even where an agency has already ``displayed'' the OMB control number

by publishing it in the Federal Register, the agency also publish the

currently valid OMB control number in the Code of Federal Regulations.

(4) In other cases, and where OMB determines in advance in writing

that special circumstances exist, to use other means to inform

potential respondents of the OMB control number.

(g) Independent regulatory agency means the Board of Governors of

the Federal Reserve System, the Commodity Futures Trading Commission,

the Consumer Product Safety Commission, the Federal Communications

Commission, the Federal Deposit Insurance Corporation, the Federal

Energy Regulatory Commission, the Federal Housing Finance Board, the

Federal Maritime Commission, the Federal Trade Commission, the

Interstate Commerce Commission, the Mine Enforcement Safety and Health

Commission, the National Labor Relations Board, the Nuclear Regulatory

Commission, the Occupational Safety and Health Review Commission, the

Postal Rate Commission, the Securities and Exchange Commission, and any

other similar agency designated by statute as a Federal independent

regulatory agency or commission.

(h) Information means any statement of fact or opinion, regardless

of form or format, whether in numerical, graphic, or narrative form,

and whether oral or maintained on paper, electronic or other media.

``Information'' does not generally include items in the following

categories; however, OMB may determine that any specific item

constitutes ``information'':

(1) Affidavits, oaths, affirmations, certifications, receipts,

changes of address, consents, or acknowledgments; provided that they

entail no burden other than that necessary to identify the respondent,

the date, the respondent's address, and the nature of the instrument

(by contrast, a certification would likely involve the collection of

``information'' if an agency conducted or sponsored it as a substitute

for a collection of information to collect evidence of, or to monitor,

compliance with regulatory standards, because such a certification

would generally entail burden in addition to that necessary to identify

the respondent, the date, the respondent's address, and the nature of

the instrument);

(2) Samples of products or of any other physical objects;

(3) Facts or opinions obtained through direct observation by an

employee or agency of the sponsoring agency or through nonstandardized

oral communication in connection with such direct observations;

(4) Facts or opinions submitted in response to general

solicitations of comments from the public, published in the Federal

Register or other publications, regardless of the form or format

thereof, provided that no person is required to supply specific

information pertaining to the commenter, other than that necessary for

self-identification, as a condition of the agency's full consideration

of the comment;

(5) Facts or opinions obtained initially or in follow-on requests,

from individuals (including individuals in control groups) under

treatment or clinical examination in connection with research on or

prophylaxis to prevent a clinical disorder, direct treatment of that

disorder, or the interpretation of biological analyses of body fluids,

tissues, or other specimens, or the identification or classification of

such specimens;

(6) A request for facts or opinions addressed to a single person;

(7) Examinations designed to test the aptitude, abilities, or

knowledge of the persons tested and the collection of information for

identification or classification in connection with such examinations;

(8) Facts or opinions obtained or solicited at or in connection

with public hearings or meetings;

(9) Facts or opinions obtained or solicited through nonstandardized

follow-up questions designed to clarify responses to approved

collections of information; and

(10) Like items so designated by OMB.

(i) OMB refers to the Office of Management and Budget.

(j) Penalty includes the imposition by an agency or court of a fine

or other punishment; a judgment for monetary damages or equitable

relief; or the revocation, suspension, reduction, or denial of a

license, privilege, right, grant, or benefit.

(k) Person means an individual, partnership, association,

corporation (including operations of government-owned contractor-

operated facilities), business trust, or legal representative, an

organized group of individuals, a State, territorial, tribal, or local

government or branch thereof, or a political subdivision of a State,

territory, tribal, or local government or a branch of a political

subdivision;

(l) Practical utility means the actual, not merely the theoretical

or potential, usefulness of information to or for an agency, taking

into account its accuracy, adequacy, and reliability, and the agency's

ability to process the information it collects (or the public's ability

to process the information it receives, in the case of a third-party or

public disclosure) in a useful and timely fashion. In determining

whether information will have ``practical utility,'' OMB will take into

account whether the agency demonstrates actual timely use for the

information either to carry out its functions or make it available to

third-parties or the public, either directly or by means of a third-

party or public posting, notification, labeling, or similar disclosure

requirement, for the use of persons who have an interest in entities or

transactions over which the agency has jurisdiction. In the case of

recordkeeping or general purpose statistics, which are those statistics

collected chiefly for public and general government uses and without

primary reference to policy or program operations of the agency

collecting the information, ``practical utility'' means that actual

uses can be demonstrated.

(m) Recordkeeping requirement means a requirement imposed by or for

an agency on persons to maintain specified records, including a

requirement to:

(1) Retain such records;

(2) Notify third parties, the Federal government, or the public of

the existence of such records;

(3) Disclose such records to third parties, the Federal government,

or the public; or

(4) Report to third parties, the Federal government, or the public

regarding such records.

Sec. 1320.4 Coverage.

(a) The requirements of this Part apply to all agencies as defined

in Sec. 1320.3(a) and to all collections of information conducted or

sponsored by those agencies, as defined in Sec. 1320.3(c) and (d),

wherever conducted or sponsored, but, except as provided in paragraph

(b) of this section, shall not apply to collections of information:

(1) During the conduct of a Federal criminal investigation or

prosecution, or during the disposition of a particular criminal matter;

(2) During the conduct of a civil action to which the United States

or any official or agency thereof is a part, or during the conduct of

an administrative [[Page 30447]] action or investigation involving an

agency against specific individuals or entities;

(3) By compulsory process pursuant to the Antitrust Civil Process

Act and section 13 of the Federal Trade Commission Improvements Act of

1980; or

(4) During the conduct of intelligence activities as defined in

section 3.4(e) of Executive Order No. 12333, issued December 4, 1981,

or successor orders, or during the conduct of cryptologic activities

that are communications security activities.

(b) The requirements of this part apply to the collection of

information during the conduct of general investigations (other than

information collected in an antitrust investigation to the extent

provided in paragraph (a)(3) of this section) undertaken with reference

to a category of individuals or entities such as a class of licensees

or an entire industry.

(c) The exception in paragraph (a)(2) of this section applies

during the entire course of the investigation or action, whether before

or after formal charges or complaints are filed or formal

administrative action is initiated, but only after a case file or

equivalent is opened with respect to a particular party. In accordance

with paragraph (b) of this section, collections of information prepared

or undertaken with reference to a category of individuals or entities,

such as a class of licensees or an industry, do not fall within this

exception.

Sec. 1320.5 General requirements.

(a) An agency shall not conduct or sponsor a collection of

information unless, in advance of the adoption or revision of the

collection of information--

(1) The agency has--

(i) Conducted the review required in Sec. 1320.8;

(ii) Evaluated the public comments received under Sec. 1320.8(d)

and Sec. 1320.11;

(iii) Submitted to the Director, in accordance with such procedures

and in such form as OMB may specify,

(A) The certification required under Sec. 1320.9;

(B) The proposed collection of information in accordance with

Sec. 1320.10, Sec. 1320.11, or Sec. 1320.12, as appropriate;

(C) An explanation for the decision that it would not be

appropriate, under Sec. 1320.8(b)(1), for a proposed collection of

information to display an expiration date;

(D) An explanation for the decision to provide for any payment or

gift to respondents, other than remuneration of contractors or

grantees;

(E) A statement indicating whether (and if so, to what extent) the

proposed collection of information involves the use of automated

collection techniques or other forms of information technology, e.g.,

permitting electronic submission of responses, and an explanation for

the decision;

(F) A summary of the public comments received under Sec. 1320.8(d),

including actions taken by the agency in response to the comments, and

the date and page of the publication in the Federal Register of the

notice therefor; and

(G) Copies of pertinent statutory authority, regulations, and such

related supporting materials as OMB may request; and

(iv) Published, except as provided in Sec. 1320.13(d), a notice

(requesting comments within 30 days) in the Federal Register--

(A) Stating that the agency has made such submission; and

(B) Setting forth--

(1) A title for the collection of information;

(2) A summary of the collection of information;

(3) A brief description of the need for the information and

proposed use of the information;

(4) A description of the likely respondents and proposed frequency

of response to the collection of information;

(5) An estimate of the total annual reporting and recordkeeping

burden that shall result from the collection of information, which

shall for each collection of information be disaggregated and set forth

in terms of the estimated average burden hours per response, the

proposed frequency of response, and the estimated number of likely

respondents;

(6) Notice that comments may be submitted to the agency and OMB;

and

(7) The time period within which the agency is requesting OMB to

approve or disapprove the collection of information if, at the time of

submittal of a collection of information for OMB review under

Sec. 1320.10, Sec. 1320.11 or Sec. 1320.12, the agency plans to request

or has requested OMB to conduct its review on an emergency basis under

Sec. 1320.13; and

(2) OMB has approved the proposed collection of information, OMB's

approval has been inferred under Sec. 1320.10(c), Sec. 1320.11(i), or

Sec. 1320.12(e), or OMB's disapproval has been voided by an independent

regulatory agency under Sec. 1320.15; and

(3) The agency has obtained from the Director a control number to

be displayed upon the collection of information.

(b) In addition to the requirements in paragraph (a) of this

section, an agency shall not conduct or sponsor a collection of

information unless:

(1) The collection of information displays a currently valid OMB

control number; and

(2)(i) The agency informs the potential persons who are to respond

to the collection of information that such persons are not required to

respond to the collection of information unless it displays a currently

valid OMB control number.

(ii) An agency shall provide the information described in paragraph

(b)(2)(i) of this section in a manner that is reasonably calculated to

inform the public.

(A) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents (other than in an electronic format), the information

described in paragraph (b)(2)(i) of this section is provided ``in a

manner that is reasonably calculated to inform the public'' if the

agency includes it either on the form, questionnaire or other

collection of information, or in the instructions for such collection.

(B) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents in an electronic format, the information described in

paragraph (b)(2)(i) of this section is provided ``in a manner that is

reasonably calculated to inform the public'' if the agency places the

currently valid OMB control number in the instructions, near the title

of the electronic collection instrument, or, for on-line applications,

on the first screen viewed by the respondent;

(C) In the case of collections of information published in

regulations, guidelines, and other issuances in the Federal Register,

the information described in paragraph (b)(2)(i) of this section is

``provided in a manner reasonably calculated to inform the public'' if

the agency publishes such information in the Federal Register (for

example, in the case of a collection of information in a regulation, by

publishing such information in the preamble or the regulatory text, or

in a technical amendment to the regulation, or in a separate notice

announcing OMB approval of the collection of information) and/or in the

Code of Federal Regulations. For ease of future reference, OMB

recommends that, even where an agency has already provided such

information and informed the [[Page 30448]] public by publishing it in

the Federal Register, the agency is encouraged to also publish such

information in the Code of Federal Regulations.

(D) In other cases, and where OMB determines in advance in writing

that special circumstances exist, to use other means to inform

potential respondents of such information.

(c)(1) Agencies shall submit all collections of information, other

than those contained in proposed rules published for public comment in

the Federal Register or in current regulations that were published as

final rules in the Federal Register, in accordance with the

requirements in Sec. 1320.10. Agencies shall submit collections of

information contained in interim final rules or direct final rules in

accordance with the requirements of Sec. 1320.10.

(2) Agencies shall submit collections of information contained in

proposed rules published for public comment in the Federal Register in

accordance with the requirements in Sec. 1320.11.

(3) Agencies shall submit collections of information contained in

current regulations that were published as final rules in the Federal

Register in accordance with the requirements in Sec. 1320.12.

(4) Special rules for emergency processing of collections of

information are set forth in Sec. 1320.13.

(5) For purposes of time limits for OMB review of collections of

information, any submission properly submitted and received by OMB

after 12:00 noon will be deemed to have been received on the following

business day.

(d)(1) To obtain OMB approval of a collection of information, an

agency shall demonstrate that it has taken every reasonable step to

ensure that the proposed collection of information:

(i) Is the least burdensome necessary for the proper performance of

the agency's functions to comply with legal requirements and achieve

program objectives;

(ii) Is not duplicative of information otherwise accessible to the

agency; and

(iii) Has practical utility. The agency shall also seek to minimize

the cost to itself of collecting, processing, and using the

information, but shall not do so by means of shifting disproportionate

costs or burdens onto the public.

(2) Unless the agency is able to demonstrate, in its submission for

OMB clearance, that such characteristic of the collection of

information is necessary to satisfy statutory requirements or other

substantial need, OMB will not approve a collection of information--

(i) Requiring respondents to report information to the agency more

often than quarterly;

(ii) Requiring respondents to prepare a written response to a

collection of information in fewer than 30 days after receipt of it;

(iii) Requiring respondents to submit more than an original and two

copies of any document;

(iv) Requiring respondents to retain records, other than health,

medical, government contract, grant-in-aid, or tax records, for more

than three years;

(v) In connection with a statistical survey, that is not designed

to produce valid and reliable results that can be generalized to the

universe of study;

(vi) Requiring the use of a statistical data classification that

has not been reviewed and approved by OMB;

(vii) Collecting information at the request of another country or

an international organization unless such request has been reviewed,

coordinated, and approved by OMB;

(viii) That includes a pledge of confidentiality that is not

supported by authority established in statute or regulation, that is

not supported by disclosure and data security policies that are

consistent with the pledge, or which unnecessarily impedes sharing of

data with other agencies for compatible confidential use; or

(ix) Requiring respondents to submit proprietary, trade secret, or

other confidential information unless the agency can demonstrate that

it has instituted procedures to protect the information's

confidentiality to the extent permitted by law--

(e) OMB shall determine whether the collection of information, as

submitted by the agency, is necessary for the proper performance of the

agency's functions. In making this determination, OMB will take into

account the criteria set forth in paragraph (d) of this section, and

will consider whether the burden of the collection of information is

justified by its practical utility. In addition:

(1) OMB will consider necessary any collection of information

specifically mandated by statute or court order, but will independently

assess any collection of information to the extent that the agency

exercises discretion in its implementation; and

(2) OMB will consider necessary any collection of information

specifically required by an agency rule approved or not acted upon by

OMB under Sec. 1320.11 or Sec. 1320.12, but will independently assess

any such collection of information to the extent that it deviates from

the specifications of the rule.

(f) Except as provided in Sec. 1320.15, to the extent that OMB

determines that all or any portion of a collection of information is

unnecessary, for any reason, the agency shall not engage in such

collection or portion thereof. OMB will reconsider its disapproval of a

collection of information upon the request of the agency head or Senior

Official only if the sponsoring agency is able to provide significant

new or additional information relevant to the original decision.

(g) An agency may not make a substantive or material modification

to a collection of information after such collection of information has

been approved by OMB, unless the modification has been submitted to OMB

for review and approval under this art.

(h) An agency should consult with OMB before continuing to use OMB-

approved forms or other collections of information after the expiration

date printed thereon (in those cases for which an expiration date is

printed thereon).

Sec. 1320.6 Public protection.

(a) Notwithstanding any other provision of law, no person shall be

subject to any penalty for failing to comply with a collection of

information that is subject to the requirements of this part if:

(1) The collection of information does not display, in accordance

with Sec. 1320.3(f) and Sec. 1320.5(b)(1), a currently valid OMB

control number assigned by the Director in accordance with the Act; or

(2) The agency fails to inform the potential person who is to

respond to the collection of information, in accordance with

Sec. 1320.5(b)(2), that such person is not required to respond to the

collection of information unless it displays a currently valid OMB

control number.

(b) The protection provided by paragraph (a) of this section may be

raised in the form of a complete defense, bar, or otherwise to the

imposition of such penalty at any time during the agency administrative

process in which such penalty may be imposed or in any judicial action

applicable thereto.

(c) Whenever an agency has imposed a collection of information as a

means for proving or satisfying a condition for the receipt of a

benefit or the avoidance of a penalty, and the collection of

information does not display a currently valid OMB control number or

inform the potential persons who are to respond to the collection of

information, as prescribed in Sec. 1320.5(b), the agency shall not

treat a person's failure to comply, in and of itself, as grounds for

withholding the benefit or imposing the [[Page 30449]] penalty. The

agency shall instead permit respondents to prove or satisfy the legal

conditions in any other reasonable manner.

(1) If OMB disapproves the whole of such a collection of

information (and the disapproval is not overridden under Sec. 1320.15),

the agency shall grant the benefit to (or not impose the penalty on)

otherwise qualified persons without requesting further proof concerning

the condition.

(2) If OMB instructs an agency to make a substantive or material

change to such a collection of information (and the instruction is not

overridden under Sec. 1320.15), the agency shall permit respondents to

prove or satisfy the condition by complying with the collection of

information as so changed.

(d) Whenever a member of the public is protected from imposition of

a penalty under this section for failure to comply with a collection of

information, such penalty may not be imposed by an agency directly, by

an agency through judicial process, or by any other person through

administrative or judicial process.

(e) The protection provided by paragraph (a) of this section does

not preclude the imposition of a penalty on a person for failing to

comply with a collection of information that is imposed on the person

by statute--e.g., 26 U.S.C. 6011(a) (statutory requirement for person

to file a tax return), 42 U.S.C. 6938(c) (statutory requirement for

person to provide notification before exporting hazardous waste).

Sec. 1320.7 Agency head and Senior Official responsibilities.

(a) Except as provided in paragraph (b) of this section, each

agency head shall designate a Senior Official to carry out the

responsibilities of the agency under the Act and this part. The Senior

Official shall report directly to the head of the agency and shall have

the authority, subject to that of the agency head, to carry out the

responsibilities of the agency under the Act and this part.

(b) An agency head may retain full undelegated review authority for

any component of the agency which by statute is required to be

independent of any agency official below the agency head. For each

component for which responsibility under the Act is not delegated to

the Senior Official, the agency head shall be responsible for the

performance of those functions.

(c) The Senior Official shall head an office responsible for

ensuring agency compliance with and prompt, efficient, and effective

implementation of the information policies and information resources

management responsibilities established under the Act, including the

reduction of information collection burdens on the public.

(d) With respect to the collection of information and the control

of paperwork, the Senior Official shall establish a process within such

office that is sufficiently independent of program responsibility to

evaluate fairly whether proposed collections of information should be

approved under this part.

(e) Agency submissions of collections of information for OMB

review, and the accompanying certifications under Sec. 1320.9, may be

made only by the agency head or the Senior Official, or their designee.

Sec. 1320.8 Agency collection of information responsibilities.

The office established under Sec. 1320.7 shall review each

collection of information before submission to OMB for review under

this part.

(a) This review shall include:

(1) An evaluation of the need for the collection of information,

which shall include, in the case of an existing collection of

information, an evaluation of the continued need for such collection;

(2) A functional description of the information to be collected;

(3) A plan for the collection of information;

(4) A specific, objectively supported estimate of burden, which

shall include, in the case of an existing collection of information, an

evaluation of the burden that has been imposed by such collection;

(5) An evaluation of whether (and if so, to what extent) the burden

on respondents can be reduced by use of automated collection techniques

or other forms of information technology, e.g., permitting electronic

submission of responses;

(6) A test of the collection of information through a pilot

program, if appropriate; and

(7) A plan for the efficient and effective management and use of

the information to be collected, including necessary resources.

(b) Such office shall ensure that each collection of information:

(1) Is inventoried, displays a currently valid OMB control number,

and, if appropriate, an expiration date;

(2) Is reviewed by OMB in accordance with the clearance

requirements of 44 U.S.C. 3507; and

(3) Informs and provides fair notice to the potential persons to

whom the collection of information is addressed of--

(i) The policy reasons the information is planned to be and/or has

been collected;

(ii) The way such information is planned to be and/or has been used

to further the proper performance of the functions of the agency;

(iii) An estimate, to the extent practicable, of the average burden

of the collection (together with a request that the public direct to

the agency any comments concerning the accuracy of this burden estimate

and any suggestions for reducing this burden);

(iv) Whether responses to the collection of information are

voluntary, required to obtain or retain a benefit (citing authority),

or mandatory (citing authority);

(v) The nature and extent of confidentiality to be provided, if any

(citing authority); and

(vi) The fact that an agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a currently valid OMB control number.

(c)(1) An agency shall provide the information described in

paragraphs (b)(3) (i) through (v) of this section as follows:

(i) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents (except in an electronic format), such information can be

included either on the form, questionnaire or other collection of

information, as part of the instructions for such collection, or in a

cover letter or memorandum that accompanies the collection of

information.

(ii) In the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents in an electronic format, such information can be included

either in the instructions, near the title of the electronic collection

instrument, or, for on-line applications, on the first screen viewed by

the respondent;

(iii) In the case of collections of information published in

regulations, guidelines, and other issuances in the Federal Register,

such information can be published in the Federal Register (for example,

in the case of a collection of information in a regulation, by

publishing such information in the preamble or the regulatory text to

the final rule, or in a technical amendment to the final rule, or in a

separate notice announcing OMB approval of the collection of

information).

(iv) In other cases, and where OMB determines in advance in writing

that special circumstances exist, agencies [[Page 30450]] may use other

means to inform potential respondents.

(2) An agency shall provide the information described in paragraph

(b)(3)(vi) of this section in accordance with Sec. 1320.5(b)(2)(ii).

(d)(1) Before an agency submits a collection of information to OMB

for approval, and except as provided in paragraphs (d)(3) and (d)(4) of

this section, the agency shall provide 60-day notice in the Federal

Register, and otherwise consult with members of the public and affected

agencies concerning each proposed collection of information, to solicit

comment to:

(i) Evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(ii) Evaluate the accuracy of the agency's estimate of the burden

of the proposed collection of information;

(iii) Enhance the quality, utility, and clarity of the information

to be collected; and

(iv) Minimize the burden of the collection of information on those

who are to respond, including through the use of appropriate automated

collection techniques or other forms of information technology, e.g.,

permitting electronic submission of responses.

(2) If the agency does not publish a copy of the proposed

collection of information, together with the related instructions, as

part of the Federal Register notice, the agency should--

(i) Provide more than 60-day notice to permit timely receipt, by

interested members of the public, of a copy of the proposed collection

of information and related instructions; or

(ii) Explain how and from whom an interested member of the public

can request and obtain a copy without charge, including, if applicable,

how the public can gain access to the collection of information and

related instructions electronically on demand.

(3) The agency need not separately seek such public comment for any

proposed collection of information contained in a proposed rule to be

reviewed under Sec. 1320.11, if the agency provides notice and comment

through the notice of proposed rulemaking for the proposed rule and

such notice specifically includes the solicitation of comments for the

same purposes as are listed under paragraph (d)(1) of this section.

(4) The agency need not seek or may shorten the time allowed for

such public comment if OMB grants an exemption from such requirement

for emergency processing under Sec. 1320.13.

Sec. 1320.9 Agency certifications for proposed collections of

information.

As part of the agency submission to OMB of a proposed collection of

information, the agency (through the head of the agency, the Senior

Official, or their designee) shall certify (and provide a record

supporting such certification) that the proposed collection of

information--

(a) Is necessary for the proper performance of the functions of the

agency, including that the information to be collected will have

practical utility;

(b) Is not unnecessarily duplicative of information otherwise

reasonably accessible to the agency;

(c) Reduces to the extent practicable and appropriate the burden on

persons who shall provide information to or for the agency, including

with respect to small entities, as defined in the Regulatory

Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:

(1) Establishing differing compliance or reporting requirements or

timetables that take into account the resources available to those who

are to respond;

(2) The clarification, consolidation, or simplification of

compliance and reporting requirements; or

(3) An exemption from coverage of the collection of information, or

any part thereof;

(d) Is written using plain, coherent, and unambiguous terminology

and is understandable to those who are to respond;

(e) Is to be implemented in ways consistent and compatible, to the

maximum extent practicable, with the existing reporting and

recordkeeping practices of those who are to respond;

(f) Indicates for each recordkeeping requirement the length of time

persons are required to maintain the records specified;

(g) Informs potential respondents of the information called for

under Sec. 1320.8(b)(3);

(h) Has been developed by an office that has planned and allocated

resources for the efficient and effective management and use of the

information to be collected, including the processing of the

information in a manner which shall enhance, where appropriate, the

utility of the information to agencies and the public;

(i) Uses effective and efficient statistical survey methodology

appropriate to the purpose for which the information is be collected;

and

(j) To the maximum extent practicable, uses appropriate information

technology to reduce burden and improve data quality, agency efficiency

and responsiveness to the public.

Sec. 1320.10 Clearance of collections of information, other than those

contained in proposed rules or in current rules.

Agencies shall submit all collections of information, other than

those contained either in proposed rules published for public comment

in the Federal Register (which are submitted under Sec. 1320.11) or in

current rules that were published as final rules in the Federal

Register (which are submitted under Sec. 1320.12), in accordance with

the following requirements:

(a) On or before the date of submission to OMB, the agency shall,

in accordance with the requirements in Sec. 1320.5(a)(1)(iv), forward a

notice to the Federal Register stating that OMB approval is being

sought. The notice shall direct requests for information, including

copies of the proposed collection of information and supporting

documentation, to the agency, and shall request that comments be

submitted to OMB within 30 days of the notice's publication. The notice

shall direct comments to the Office of Information and Regulatory

Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of

the notice submitted to the Federal Register, together with the date of

expected publication, shall be included in the agency's submission to

OMB.

(b) Within 60 days after receipt of the proposed collection of

information or publication of the notice under paragraph (a) of this

section, whichever is later, OMB shall notify the agency involved of

its decision to approve, to instruct the agency to make a substantive

or material change to, or to disapprove, the collection of information,

and shall make such decision publicly available. OMB shall provide at

least 30 days for public comment after receipt of the proposed

collection of information before making its decision, except as

provided under Sec. 1320.13. Upon approval of a collection of

information, OMB shall assign an OMB control number and, if

appropriate, an expiration date. OMB shall not approve any collection

of information for a period longer than three years.

(c) If OMB fails to notify the agency of its approval, instruction

to make substantive or material change, or disapproval within the 60-

day period, the agency may request, and OMB shall assign without

further delay, an OMB control number that shall be valid for not more

than one year.

(d) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct [[Page 30451]] or sponsor a collection of information

unless the collection of information displays a currently valid OMB

control number and the agency informs potential persons who are to

respond to the collection of information that such persons are not

required to respond to the collection of information unless it displays

a currently valid OMB control number.

(e)(1) In the case of a collection of information not contained in

a published current rule which has been approved by OMB and has a

currently valid OMB control number, the agency shall:

(i) Conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.8(d); and

(ii) After having made a reasonable effort to seek public comment,

but no later than 60 days before the expiration date of the OMB control

number for the currently approved collection of information, submit the

collection of information for review and approval under this Part,

which shall include an explanation of how the agency has used the

information that it has collected.

(2) The agency may continue to conduct or sponsor the collection of

information while the submission is pending at OMB.

(f) Prior to the expiration of OMB's approval of a collection of

information, OMB may decide on its own initiative, after consultation

with the agency, to review the collection of information. Such

decisions will be made only when relevant circumstances have changed or

the burden estimates provided by the agency at the time of initial

submission were materially in error. Upon notification by OMB of its

decision to review the collection of information, the agency shall

submit it to OMB for review under this part.

(g) For good cause, after consultation with the agency, OMB may

stay the effectiveness of its prior approval of any collection of

information that is not specifically required by agency rule; in such

case, the agency shall cease conducting or sponsoring such collection

of information while the submission is pending, and shall publish a

notice in the Federal Register to that effect.

Sec. 1320.11 Clearance of collections of information in proposed

rules.

Agencies shall submit collections of information contained in

proposed rules published for public comment in the Federal Register in

accordance with the following requirements:

(a) The agency shall include, in accordance with the requirements

in Sec. 1320.5(a)(1)(iv), in the preamble to the Notice of Proposed

Rulemaking a statement that the collections of information contained in

the proposed rule, and identified as such, have been submitted to OMB

for review under section 3507(d) of the Act. The statement shall

request that comments be submitted to OMB within 60 days of the

notice's publication. The notice shall direct comments to the Office of

Information and Regulatory Affairs of OMB, Attention: Desk Officer for

[name of agency].

(b) All such submissions shall be made to OMB not later than the

day on which the Notice of Proposed Rulemaking is published in the

Federal Register, in such form and in accordance with such procedures

as OMB may direct. Such submissions shall include a copy of the

proposed regulation and preamble.

(c) Within 60 days of publication of the proposed rule, but subject

to paragraph (e) of this section, OMB may file public comments on

collection of information provisions. The OMB comments shall be in the

form of an OMB Notice of Action, which shall be sent to the Senior

Official or agency head, or their designee, and which shall be made a

part of the agency's rulemaking record.

(d) If an agency submission is not in compliance with paragraph (b)

of this section, OMB may, subject to paragraph (e) of this section,

disapprove the collection of information in the proposed rule within 60

days of receipt of the submission. If an agency fails to submit a

collection of information subject to this section, OMB may, subject to

paragraph (e) of this section, disapprove it at any time.

(e) OMB shall provide at least 30 days after receipt of the

proposed collection of information before submitting its comments or

making its decision, except as provided under Sec. 1320.13.

(f) When the final rule is published in the Federal Register, the

agency shall explain how any collection of information contained in the

final rule responds to any comments received from OMB or the public.

The agency shall include an identification and explanation of any

modifications made in the rule, or explain why it rejected the

comments. If requested by OMB, the agency shall include OMB's comments

in the preamble to the final rule.

(g) If OMB has not filed public comments under paragraph (c) of

this section, or has approved without conditions the collection of

information contained in a rule before the final rule is published in

the Federal Register, OMB may assign an OMB control number prior to

publication of the final rule.

(h) On or before the date of publication of the final rule, the

agency shall submit the final rule to OMB, unless it has been approved

under paragraph (g) of this section (and not substantively or

materially modified by the agency after approval). Not later than 60

days after publication, but subject to paragraph (e) of this section,

OMB shall approve, instruct the agency to make a substantive or

material change to, or disapprove, the collection of information

contained in the final rule. Any such instruction to change or

disapprove may be based on one or more of the following reasons, as

determined by OMB:

(1) The agency has failed to comply with paragraph (b) of this

section;

(2) The agency had substantially modified the collection of

information contained in the final rule from that contained in the

proposed rule without providing OMB with notice of the change and

sufficient information to make a determination concerning the modified

collection of information at least 60 days before publication of the

final rule; or

(3) In cases in which OMB had filed public comments under paragraph

(c) of this section, the agency's response to such comments was

unreasonable, and the collection of information is unnecessary for the

proper performance of the agency's functions.

(i) After making such decision to approve, to instruct the agency

to make a substantive or material change to, or disapprove, the

collection of information, OMB shall so notify the agency. If OMB

approves the collection of information or if it has not acted upon the

submission within the time limits of this section, the agency may

request, and OMB shall assign an OMB control number. If OMB disapproves

or instructs the agency to make substantive or material change to the

collection of information, it shall make the reasons for its decision

publicly available.

(j) OMB shall not approve any collection of information under this

section for a period longer than three years. Approval of such

collection of information will be for the full three-year period,

unless OMB determines that there are special circumstances requiring

approval for a shorter period.

(k) After receipt of notification of OMB's approval, instruction to

make a substantive or material change to, disapproval of a collection

of information, or failure to act, the agency shall publish a notice in

the Federal Register to inform the public of OMB's decision.

[[Page 30452]]

(l) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct or sponsor a collection of information unless the

collection of information displays a currently valid OMB control number

and the agency informs potential persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number.

Sec. 1320.12 Clearance of collections of information in current rules.

Agencies shall submit collections of information contained in

current rules that were published as final rules in the Federal

Register in accordance with the following procedures:

(a) In the case of a collection of information contained in a

published current rule which has been approved by OMB and has a

currently valid OMB control number, the agency shall:

(1) Conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.8(d); and

(2) After having made a reasonable effort to seek public comment,

but no later than 60 days before the expiration date of the OMB control

number for the currently approved collection of information, submit the

collection of information for review and approval under this part,

which shall include an explanation of how the agency has used the

information that it has collected.

(b)(1) In the case of a collection of information contained in a

published current rule that was not required to be submitted for OMB

review under the Paperwork Reduction Act at the time the collection of

information was made part of the rule, but which collection of

information is now subject to the Act and this Part, the agency shall:

(i) Conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.(8)(d); and

(ii) After having made a reasonable effort to seek public comment,

submit the collection of information for review and approval under this

part, which shall include an explanation of how the agency has used the

information that it has collected.

(2) The agency may continue to conduct or sponsor the collection of

information while the submission is pending at OMB. In the case of a

collection of information not previously approved, a control number

shall be granted for such period, which shall not exceed 60 days,

unless extended by the Director for an additional 60 days. Upon

assignment of an interim OMB control number, and in accordance with

Sec. 1320.3(f) and Sec. 1320.5(b), the agency shall display the number

and inform the potential persons who are to respond to the collection

of information that such persons are not required to respond to the

collection of information unless it displays a currently valid OMB

control number and the agency informs potential persons who are to

respond to the collection of information that such persons are not

required to respond to the collection of information unless it displays

a currently valid OMB control number.

(c) On or before the day of submission to OMB under paragraphs (a)

or (b) of this section, the agency shall, in accordance with the

requirements set forth in Sec. 1320.5(a)(1)(iv), forward a notice to

the Federal Register stating that OMB review is being sought. The

notice shall direct requests for copies of the collection of

information and supporting documentation to the agency, and shall

request that comments be submitted to OMB within 30 days of the

notice's publication. The notice shall direct comments to the Office of

Information and Regulatory Affairs of OMB, Attention: Desk Officer for

[name of agency]. A copy of the notice submitted to the Federal

Register, together with the date of expected publication, shall be

included in the agency's submission to OMB.

(d) Within 60 days after receipt of the collection of information

or publication of the notice under paragraph (c) of this section,

whichever is later, OMB shall notify the agency involved of its

decision to approve, to instruct the agency to make a substantive or

material change to, or to disapprove, the collection of information,

and shall make such decision publicly available. OMB shall provide at

least 30 days for public comment after receipt of the proposed

collection of information before making its decision, except as

provided under Sec. 1320.13.

(e) (1) Upon approval of a collection of information, OMB shall

assign an OMB control number and an expiration date. OMB shall not

approve any collection of information for a period longer than three

years. Approval of any collection of information submitted under this

section will be for the full three-year period, unless OMB determines

that there are special circumstances requiring approval for a shorter

period.

(2) If OMB fails to notify the agency of its approval, instruction

to make substantive or material change, or disapproval within the 60-

day period, the agency may request, and OMB shall assign without

further delay, an OMB control number that shall be valid for not more

than one year.

(3) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct or sponsor a collection of information unless the

collection of information displays a currently valid OMB control number

and the agency informs potential persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number.

(f) (1) If OMB disapproves a collection of information contained in

an existing rule, or instructs the agency to make a substantive or

material change to a collection of information contained in an existing

rule, OMB shall:

(i) Publish an explanation thereof in the Federal Register; and

(ii) Instruct the agency to undertake a rulemaking within a

reasonable time limited to consideration of changes to the collection

of information contained in the rule and thereafter to subject the

collection of information for approval or disapproval under

Sec. 1320.10 or Sec. 1320.11, as appropriate; and

(iii) Extend the existing approval of the collection of information

(including an interim approval granted under paragraph (b) of this

section) for the duration of the period required for consideration of

proposed changes, including that required for OMB approval or

disapproval of the collection of information under Sec. 1320.10 or

Sec. 1320.11, as appropriate.

(2) Thereafter, the agency shall, within a reasonable period of

time not to exceed 120 days, undertake such procedures as are necessary

in compliance with the Administrative Procedure Act and other

applicable law to amend or rescind the collection of information, and

shall notify the public through the Federal Register. Such notice shall

identify the proposed changes in the collections of information and

shall solicit public comment on retention, change, or rescission of

such collections of information. If the agency employs notice and

comment rulemaking procedures for amendment or rescission of the

collection of information, publication of the above in the Federal

Register and submission to OMB shall initiate OMB clearance procedures

under section 3507(d) of the Act and Sec. 1320.11. All procedures shall

be completed within a reasonable period of time to be determined by OMB

in consultation with the agency.

(g) OMB may disapprove, in whole or in part, any collection of

information [[Page 30453]] subject to the procedures of this section,

if the agency:

(1) Has refused within a reasonable time to comply with an OMB

instruction to subject the collection of information for review;

(2) Has refused within a reasonable time to initiate procedures to

change the collection of information; or

(3) Has refused within a reasonable time to publish a final rule

continuing the collection of information, with such changes as may be

appropriate, or otherwise complete the procedures for amendment or

rescission of the collection of information.

(h) (1) Upon disapproval by OMB of a collection of information

subject to this section, except as provided in paragraph (f)(1)(iii) of

this section, the OMB control number assigned to such collection of

information shall immediately expire, and no agency shall conduct or

sponsor such collection of information. Any such disapproval shall

constitute disapproval of the collection of information contained in

the Notice of Proposed Rulemaking or other submissions, and also of the

preexisting information collection instruments directed at the same

collection of information and therefore constituting essentially the

same collection of information.

(2) The failure to display a currently valid OMB control number for

a collection of information contained in a current rule, or the failure

to inform the potential persons who are to respond to the collection of

information that such persons are not required to respond to the

collection of information unless it displays a currently valid OMB

control number, does not, as a legal matter, rescind or amend the rule;

however, such absence will alert the public that either the agency has

failed to comply with applicable legal requirements for the collection

of information or the collection of information has been disapproved,

and that therefore the portion of the rule containing the collection of

information has no legal force and effect and the public protection

provisions of 44 U.S.C. 3512 apply.

(i) Prior to the expiration of OMB's approval of a collection of

information in a current rule, OMB may decide on its own initiative,

after consultation with the agency, to review the collection of

information. Such decisions will be made only when relevant

circumstances have changed or the burden estimates provided by the

agency at the time of initial submission were materially in error. Upon

notification by OMB of its decision to review the collection of

information, the agency shall submit it to OMB for review under this

part.

Sec. 1320.13 Emergency processing.

An agency head or the Senior Official may request OMB to authorize

emergency processing of submissions of collections of information.

(a) Any such request shall be accompanied by a written

determination that:

(1) The collection of information:

(i) Is needed prior to the expiration of time periods established

under this part; and

(ii) Is essential to the mission of the agency; and

(2) The agency cannot reasonably comply with the normal clearance

procedures under this part because:

(i) Public harm is reasonably likely to result if normal clearance

procedures are followed;

(ii) An unanticipated event has occurred; or

(iii) The use of normal clearance procedures is reasonably likely

to prevent or disrupt the collection of information or is reasonably

likely to cause a statutory or court ordered deadline to be missed.

(b) The agency shall state the time period within which OMB should

approve or disapprove the collection of information.

(c) The agency shall submit information indicating that it has

taken all practicable steps to consult with interested agencies and

members of the public in order to minimize the burden of the collection

of information.

(d) The agency shall set forth in the Federal Register notice

prescribed by Sec. 1320.5(a)(1)(iv), unless waived or modified under

this section, a statement that it is requesting emergency processing,

and the time period stated under paragraph (b) of this section.

(e) OMB shall approve or disapprove each such submission within the

time period stated under paragraph (b) of this section, provided that

such time period is consistent with the purposes of this Act.

(f) If OMB approves the collection of information, it shall assign

a control number valid for a maximum of 90 days after receipt of the

agency submission.

Sec. 1320.14 Public access.

(a) In order to enable the public to participate in and provide

comments during the clearance process, OMB will ordinarily make its

paperwork docket files available for public inspection during normal

business hours. Notwithstanding other provisions of this part, and to

the extent permitted by law, requirements to publish public notices or

to provide materials to the public may be modified or waived by the

Director to the extent that such public participation in the approval

process would defeat the purpose of the collection of information;

jeopardize the confidentiality of proprietary, trade secret, or other

confidential information; violate State or Federal law; or

substantially interfere with an agency's ability to perform its

statutory obligations.

(b) Agencies shall provide copies of the material submitted to OMB

for review promptly upon request by any person.

(c) Any person may request OMB to review any collection of

information conducted by or for an agency to determine, if, under this

Act and this part, a person shall maintain, provide, or disclose the

information to or for the agency. Unless the request is frivolous, OMB

shall, in coordination with the agency responsible for the collection

of information:

(1) Respond to the request within 60 days after receiving the

request, unless such period is extended by OMB to a specified date and

the person making the request is given notice of such extension; and

(2) Take appropriate remedial action, if necessary.

Sec. 1320.15 Independent regulatory agency override authority.

(a) An independent regulatory agency which is administered by two

or more members of a commission, board, or similar body, may by

majority vote void:

(1) Any disapproval, instruction to such agency to make material or

substantive change to, or stay of the effectiveness of OMB approval of,

any collection of information of such agency; or

(2) An exercise of authority under Sec. 1320.10(g) concerning such

agency.

(b) The agency shall certify each vote to void such OMB action to

OMB, and explain the reasons for such vote. OMB shall without further

delay assign an OMB control number to such collection of information,

valid for the length of time requested by the agency, up to three

years, to any collection of information as to which this vote is

exercised. No override shall become effective until the independent

regulatory agency, as provided in Sec. 1320.5(b) and Sec. 1320.6(2),

has displayed the OMB control number and informed the potential persons

who are to respond to the collection of information that such persons

are not required to respond to the collection of information unless it

displays a currently valid OMB control number. [[Page 30454]]

Sec. 1320.16 Delegation of approval authority.

(a) OMB may, after complying with the notice and comment procedures

of the Administrative Procedure Act, delegate OMB review of some or all

of an agency's collections of information to the Senior Official, or to

the agency head with respect to those components of the agency for

which he or she has not delegated authority.

(b) No delegation of review authority shall be made unless the

agency demonstrates to OMB that the Senior Official or agency head to

whom the authority would be delegated:

(1) Is sufficiently independent of program responsibility to

evaluate failure whether proposed collections of information should be

approved;

(2) Has sufficient resources to carry out this responsibility

effectively; and

(3) Has established an agency review process that demonstrates the

prompt, efficient, and effective performance of collection of

information review responsibilities.

(c) OMB may limit, condition, or rescind, in whole or in part, at

any time, such delegations of authority, and reserves the right to

review any individual collection of information, or part thereof,

conducted or sponsored by an agency, at any time.

(d) Subject to the provisions of this part, and in accordance with

the terms and conditions of each delegation as specified in appendix A

to this part, OMB delegates review and approval authority to the

following agencies:

(1) Board of Governors of the Federal Reserve System; and

(2) Managing Director of the Federal Communications Commission.

Sec. 1320.17 Information collection budget.

Each agency's Senior Official, or agency head in the case of any

agency for which the agency head has not delegated responsibility under

the Act for any component of the agency to the Senior Official, shall

develop and submit to OMB, in such form, at such time, and in

accordance with such procedures as OMB may prescribe, an annual

comprehensive budget for all collections of information from the public

to be conducted in the succeeding twelve months. For good cause, OMB

may exempt any agency from this requirement.

Sec. 1320.18 Other authority.

(a) OMB shall determine whether any collection of information or

other matter is within the scope of the Act, or this part.

(b) In appropriate cases, after consultation with the agency, OMB

may initiate a rulemaking proceeding to determine whether an agency's

collection of information is consistent with statutory standards. Such

proceedings shall be in accordance with the informal rulemaking

procedures of the Administrative Procedure Act.

(c) Each agency is responsible for complying with the information

policies, principles, standards, and guidelines prescribed by OMB under

this Act.

(d) To the extent permitted by law, OMB may waive any requirements

contained in this part.

(e) Nothing in this part shall be interpreted to limit the

authority of OMB under this Act, or any other law. Nothing in this part

or this Act shall be interpreted as increasing or decreasing the

authority of OMB with respect to the substantive policies and programs

of the agencies.

Appendix A--Agencies With Delegated Review and Approval Authority

1. The Board of Governors of the Federal Reserve System

(a) Authority to review and approve collection of information

requests, collection of information requirements, and collections of

information in current rules is delegated to the Board of Governors

of the Federal Reserve System.

(1) This delegation does not include review and approval

authority over any new collection of information or any modification

to an existing collection of information that:

(i) Is proposed to be collected as a result of a requirement or

other mandate of the Federal Financial Institutions Examination

Council, or other Federal executive branch entities with authority

to require the Board to conduct or sponsor a collection of

information.

(ii) Is objected to by another Federal agency on the grounds

that agency requires information currently collected by the Board,

that the currently collected information is being deleted from the

collection, and the deletion will have a serious adverse impact on

the agency's program, provided that such objection is certified to

OMB by the head of the Federal agency involved, with a copy to the

Board, before the end of the comment period specified by the Board

on the Federal Register notices specified in paragraph (a)(3)(i) of

this section 1.

(iii) Would cause the burden of the information collections

conducted or sponsored by the Board to exceed by the end of the

fiscal year the Information Collection Budget allowance provided to

the Board by OMB for the fiscal year-end.

(2) The Board may ask that OMB review and approve collections of

information covered by this delegation.

(3) In exercising delegated authority, the Board will:

(i) Provide the public, to the extent possible and appropriate,

with reasonable opportunity to comment on collections of information

under review prior to taking final action approving the collection.

Reasonable opportunity for public comment will include publishing a

notice in the Federal Register informing the public of the proposed

collection of information, announcing the beginning of a 60-day

public comment period, and the availability of copies of the

``clearance package,'' to provide the public with the opportunity to

comment. Such Federal Register notices shall also advise the public

that they may also send a copy of their comments to the Federal

Reserve Board and to the OMB/OIRA Desk Officer.

(A) Should the Board determine that a new collection of

information or a change in an existing collection must be instituted

quickly and that public participation in the approval process would

defeat the purpose of the collection or substantially interfere with

the Board's ability to perform its statutory obligation, the Board

may temporarily approve of the collection of information for a

period not to exceed 90 days without providing opportunity for

public comment.

(B) At the earliest practical date after approving the temporary

extension to the collection of information, the Board will publish a

Federal Register notice informing the public of its approval of the

collection of information and indicating why immediate action was

necessary. In such cases, the Board will conduct a normal delegated

review and publish a notice in the Federal Register soliciting

public comment on the intention to extend the collection of

information for a period not to exceed three years.

(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve

Board with a copy of the Board's Federal Register notice not late

than the day the Board files the notice with the Office of the

Federal Register.

(iii) Assure that approved collections of information are

reviewed not less frequently than once every three years, and that

such reviews are normally conducted before the expiration date of

the prior approval. Where the review has not been completed prior to

the expiration date, the Board may extend the report, for up to

three months, without public notice in order to complete the review

and consequent revisions, if any. There may also be other

circumstances in which the Board determines that a three-month

extension without public notice is appropriate.

(iv) Take every reasonable step to conduct the review

established under 5 CFR 1320.8, including the seeking of public

comment under 5 CFR 1320.8(d). In determining whether to approve a

collection of information, the Board will consider all comments

received from the public and other agencies. The Board will not

approve a collection of information that it determines does not

satisfy the guidelines set forth in 5 CFR 1320.5(d)(2), unless it

determines that departure from these guidelines is necessary to

satisfy statutory requirements or other substantial need.

(v)(A) Assure that each approved collection of information

displays, as required by 5 CFR 1320.6, a currently valid OMB control

number and the fact that a person is not required to respond to a

collection of information unless it displays a currently valid OMB

control number. [[Page 30455]]

(B) Assure that all collections of information, except those

contained in regulations, display the expiration date of the

approval, or, in case the expiration date has been omitted, explain

the decision that it would not be appropriate, under 5 CFR

1320.5(a)(1)(iii)(C), for a proposed collection of information to

display an expiration date.

(C) Assure that each collection of information, as required by 5

CFR 1320.8(b)(3), informs and provides fair notice to the potential

respondents of why the information is being collected; the way in

which such information is to be used; the estimated burden; whether

responses are voluntary, required, required to obtain a benefit, or

mandatory; the confidentiality to be provided; and the fact that an

agency may not conduct or sponsor, and the respondent is not

required to respond to, a collection of information unless it

displays a currently valid OMB control number.

(vi) Assure that each approved collection of information,

together with a completed form OMB 83-I, a supporting statement, a

copy of each comment received from the public and other agencies in

response to the Board's Federal Register notice or a summary of

these comments, the certification required by 5 CFR 1320.9, and a

certification that the Board has approved of the collection of

information in accordance with the provisions of this delegation is

transmitted to OMB for incorporation into OMB's public docket files.

Such transmittal shall be made as soon as practical after the Board

has taken final action approving the collection. However, no

collection of information may be instituted until the Board receives

written or oral notification from OMB or OMB staff that the

transmittal has been received.

(b) OMB will:

(1) Provide the Board in advance with a block of control numbers

which the Board will assign in sequential order to and display on,

new collections of information.

(2) Provide a written notice of action to the Board indicating

that the Board approvals of collections of information that have

been received by OMB and incorporated into OMB's public docket files

and an inventory of currently approved collections of information.

(3) Review any collection of information referred by the Board

in accordance with the provisions of section 1(a)(2) of this

appendix.

(c) OMB may review the Board's paperwork review process under

the delegation. The Board will cooperate in carrying out such a

review. The Board will respond to any recommendations resulting from

such review and, if it finds the recommendations to be appropriate,

will either accept the recommendations or propose an alternative

approach to achieve the intended purpose.

(d) This delegation may, as provided by 5 CFR 1320.16(c), be

limited, conditioned, or rescinded, in whole or in part at any time.

OMB will exercise this authority only in unusual circumstances and,

in those rare instances, will do so, subject to the provisions of 5

CFR 1320.10(f) and 1320.10(g), prior to the expiration of the time

period set for public comment in the Board's Federal Register

notices and generally only if:

(1) Prior to the commencement of a Board review (e.g., during

the review for the Information Collection Budget). OMB has notified

the Board that it intends to review a specific new proposal for the

collection of information or the continued use (with or without

modification) of an existing collection;

(2) There is substantial public objection to a proposed

information collection: or

(3) OMB determines that a substantially inadequate and

inappropriate lead time has been provided between the final

announcement date of the proposed requirement and the first date

when the information is to be submitted or disclosed. When OMB

exercises this authority it will consider that the period of its

review began the date that OMB received the Federal Register notice

provided for in section 1(a)(3)(i) of this appendix.

(e) Where OMB conducts a review of a Board information

collection proposal under section 1(a)(1), 1(a)(2), or 1(d) of this

appendix, the provisions of 5 CFR 1320.13 continue to apply.

2. The Managing Director of the Federal Communications Commission.

(a) Authority to review and approve currently valid (OMB-

approved) collections of information, including collections of

information contained in existing rules, that have a total annual

burden of 5,000 hours or less and a burden of less than 500 hours

per respondent is delegated to the Managing Director of the Federal

Communications Commission.

(1) This delegation does not include review and approval

authority over any new collection of information, any collections

whose approval has lapsed, any substantive or material modification

to existing collections, any reauthorization of information

collections employing statistical methods, or any information

collections that exceed a total annual burden of 5,000 hours or an

estimated burden of 500 hours per respondent.

(2) The Managing Director may ask that OMB review and approve

collections of information covered by the delegation.

(3) In exercising delegated authority, the Managing Director

will:

(i) Provide the public, to the extent possible and appropriate,

with reasonable opportunity to comment on collections of information

under review prior to taking final action on reauthorizing an

existing collection. Reasonable opportunity for public comment will

include publishing a notice in the Federal Register and an FCC

Public Notice informing the public that a collection of information

is being extended and announcing the beginning of a 60-day comment

period, notifying the public of the ``intent to extend an

information collection,'' and providing the public with the

opportunity to comment on the need for the information, its

practicality, the accuracy of the agency's burden estimate, and on

ways to minimize burden, including the use of automated collection

techniques or other forms of information technology, e.g.,

permitting electronic submission of responses. Such notices shall

advise the public that they may also send a copy of their comments

to the OMB/Office of Information and Regulatory Affairs desk officer

for the Commission.

(A) Should the Managing Director determine that a collection of

information that falls within the scope of this delegation must be

reauthorized quickly and that public participation in the

reauthorization process interferes with the Commission's ability to

perform its statutory obligation, the Managing Director may

temporarily reauthorize the extension of an information collection,

for a period not to exceed 90 days, without providing opportunity

for public comment.

(B) At the earliest practical date after granting this temporary

extension to an information collection, the Managing Director will

conduct a normal delegated review and publish a Federal Register

notice soliciting public comment on its intention to extend the

collection of information for a period not to exceed three years.

(ii) Assure that approved collections of information are

reviewed not less frequently than once every three years and that

such reviews are conducted before the expiration date of the prior

approval. When the review is not completed prior to the expiration

date, the Managing Director will submit the lapsed information

collection to OMB for review and reauthorization.

(iii) Assure that each reauthorized collection of information

displays an OMB control number and, except for those contained in

regulations or specifically designated by OMB, displays the

expiration date of the approval.

(iv) Inform and provide fair notice to the potential

respondents, as required by 5 CFR 1320.8(b)(3), of why the

information is being collected; the way in which such information is

to be used; the estimated burden; whether responses are voluntary,

required, required to obtain a benefit, or mandatory; the

confidentiality to be provided; and the fact that an agency may not

conduct or sponsor, and the respondent is not required to respond

to, a collection of information unless it displays a currently valid

OMB control number.

(v) Transmit to OMB for incorporation into OMB's public docket

files, a report of delegated approval certifying that the Managing

Director has reauthorized each collection of information in

accordance with the provisions of this delegation. The Managing

Director shall also make the certification required by 5 CFR 1320.9,

e.g., that the approved collection of information reduces to the

extent practicable and appropriate, the burden on respondents,

including, for small business, local government, and other small

entities, the use of the techniques outlined in the Regulatory

Flexibility Act. Such transmittals shall be made no later than 15

days after the Managing Director has taken final action

reauthorizing the extension of an information collection.

(vi) Ensure that the personnel in the Commission's functional

bureaus and offices responsible for managing information collections

receive periodic training on procedures related to meeting the

requirements of this part and the Act. [[Page 30456]]

(b) OMB will:

(1) Provide notice to the Commission acknowledging receipt of

the report of delegated approval and its incorporation into OMB's

public docket files and inventory of currently approved collections

of information.

(2) Act upon any request by the Commission to review a

collection of information referred by the Commission in accordance

with the provisions of section 2(a)(2) of this appendix.

(3) Periodically assess, at its discretion, the Commission's

paperwork review process as administered under the delegation. The

Managing Director will cooperate in carrying out such an assessment.

The Managing Director will respond to any recommendations resulting

from such a review and, if it finds the recommendations to be

appropriate, will either accept the recommendation or propose an

alternative approach to achieve the intended purpose.

(c) This delegation may, as provided by 5 CFR 1320.16(c), be

limited, conditioned, or rescinded, in whole or in part at any time.

OMB will exercise this authority only in unusual circumstances.

[FR Doc. 95-14007 Filed 6-7-95; 8:45 am]

BILLING CODE 3110-01-P