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

SUMMARY: This rule implements the Paperwork Reduction Act of 1995. The

Act changes existing law in several significant ways. It makes more

explicit the responsibilities of agencies in developing proposed

collections of information and submitting them for OMB review and

approval. Among other things it requires agencies to seek public

comment concerning proposed collections of information through 60-day

notice to the public before submission for clearance by the Office of

Management and Budget (OMB) and thereafter to certify to OMB that the

proposed collection reduces to the extent practicable and appropriate

the burden on respondents for small business, local government, and

other small entities, and indicates for each recordkeeping requirement

the length of time persons are required to maintain the records

specified. The Act also redefines ``collection of information''

explicitly to include third-party and public disclosures, and changes a

number of definitions and other provisions. This final rule amends

OMB's existing paperwork clearance rules to reflect these and other

legislative changes made by the Paperwork Reduction Act of 1995.

EFFECTIVE DATE: October 1, 1995.

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

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

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

Electronic mail inquiries may be submitted via SMTP to Hill--

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

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

include the commenter's name, affiliation, postal address, telephone

number, and e-mail address in the text of the message.

SUPPLEMENTARY INFORMATION:

A. Background

The Office of Management and Budget (OMB) last issued 5 CFR Part

1320--Controlling Paperwork Burden on the Public--on May 10, 1988 [53

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

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

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

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

101(m)). The rationale supporting the 1988 rule is set forth at 53 FR

16618 (May 10, 1988), 52 FR 27768 (July 23, 1987), 48 FR 13666 (March

31, 1983), and 47 FR 39515 (September 8, 1982).

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

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

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

procedural requirements of the Paperwork Reduction Act of 1980, as

amended in 1986, continue to apply to collections of information

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

OMB control number expiring after that date.

As a result of this legislative recodification of the Paperwork

Reduction Act, OMB published proposed changes to 5 CFR Part 1320 in a

Notice of Proposed Rulemaking (NPRM) on June 8, 1995 [60 FR 30438]. The

NPRM changed the order and structure of the 1988 rule in order to

clarify agency and OMB responsibilities, and to elaborate upon the

various requirements of the Paperwork Reduction Act of 1995. The scope

of these proposed changes, their legislative basis, and their relation

to the 1988 rule are described in the NPRM.

In response to the NPRM, OMB received 50 comments. Each comment has

been considered in preparing this final rule. In developing this

recodification of 5 CFR Part 1320, OMB has also relied upon its 14

years of practical experience in administering the Paperwork Reduction

Act of 1980 and upon its 12 years of implementing 5 CFR Part 1320.

Some of the comments received were of an administrative nature--

that is, comments from agency staff requesting further elaboration or

explanation of how the paperwork clearance process will work

administratively. OMB staff have met with and are continuing to meet

with agency staff in order to answer this type of question. OMB also

notes that, in January 1989, the Office of Information and Regulatory

Affairs (OIRA) in OMB issued an Information Collection Review Handbook,

which was designed to offer detailed guidance to agency staff and the

public on OMB's paperwork clearance process. It is OMB's intention to

review and update that Handbook in light of the Paperwork Reduction Act

of 1995 and these implementing regulations, and--in that document--

provide more detailed elaboration and explanation.

Significant comments received in response to the NPRM, and any

significant changes are discussed below.

B. Legislative Intent

In issuing this final rule, OMB is fully cognizant of the

legislative intent of the draftsmen of the Paperwork Reduction Act of

1995: ``To the extent the revision is a restatement of the Paperwork

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

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

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

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

to be viewed [as] an important explanation of the Congressional intent

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

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

C. Significant Comments or Changes

1. Proposed Sec. 1320.1 (``Purpose''): A comment suggested that the

last sentence of the statement of purpose more closely track the text

of 44 U.S.C. 3501(1) and (2). The final rule is modified accordingly.

2. Proposed Sec. 1320.3(c)(1) (Definition of ``collection of

information''): Several comments questioned the need for the provision

in proposed Sec. 1320.3(c)(1) to the effect that a collection of

information may include ``any other techniques or technological methods

used to monitor compliance with agency requirements''.

This provision was added in recognition that Federal agencies now

collect, and in the future will increasingly collect information by

having respondents use a wide variety of automated, electronic,

mechanical, and other technological means--as well as the more

traditional paper forms and interviews--to demonstrate compliance with

agency requirements. Congress was fully aware of the increased

respondent use of technology to collect, process, and disclose

information to an agency or the public. In the Paperwork Reduction Act,

a ``collection of information'' is defined to mean ``the obtaining * *

* or requiring the disclosure to third parties or the public'' of facts

or opinions, ``regardless of form or format'' (44 U.S.C. 3502(3)(A)).

The Congressional Committees explained that ``the phrase `regardless of

form or format' * * * clarifies that regardless of the instrument,

media, or method of agency action, a collection of information is any

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agency action that calls for * * * identical reporting or recordkeeping

requirements, or third party information disclosure requirements. * * *

It also includes information collection activities regardless of

whether the collection is formulated or communicated in written, oral,

electronic or other form'' (H. Rpt. 104-37, p. 36; see S. Rpt. 104-8,

p. 37). This same awareness is reflected in the definition of

``burden'' in the 1995 Act, which expressly includes the burden of

``acquiring, installing, and utilizing technology and systems'' (44

U.S.C. 3502(2)(B)). The Committees stated their intent to have the

definition of burden include ``the resources expended for * * *

acquiring, installing, and utilizing technology to gather, obtain,

compile, or report'' information (H. Rpt. 104-37; see S. Rpt. 104-8, p.

35).

The final rule, in Sec. 1320.3(c)(1), is modified to make it clear

that, unless exempted, all agency collections of information are

subject to OMB review and approval under the Paperwork Reduction Act,

regardless of form or format, and regardless of whether the collections

are implemented through paper, voice, automation, electronics, or other

technological, scientific, or mechanical collection techniques.

3. Proposed Sec. 1320.3(c)(3) (Definition of ``collection of

information''): Proposed Sec. 1320.3(c)(3) provided that a ``collection

of information'' includes questions posed to agencies,

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

are to be used for ``general statistical purposes.'' Several comments

suggested that it would be useful to define ``general statistical

purposes,'' consistent with historical practice.

The legislative history of the 1980 Act is helpful. ``As used in

the definition [of collection of information], `general statistical

purposes' is intended to have precisely the same meaning as

`statistical compilations of general public interest' as the phrase

appears in the original [Federal] Reports Act'' (See S. Rpt. 96-930,

pp. 38-39).

Accordingly, in the final rule, a defining clause consistent with

this legislative history has been added to Sec. 1320.3(c)(3). The

clarification is intended to distinguish between statistics collected

for publication for the general public (such as studies of the Federal

workforce made by the Office of Personnel Management) and internal

statistics (information solicited from employees to support management

purposes such as improving customer service or conducting internal

audits of agency performance).

4. Proposed Sec. 1320.3(f)(3) (Definition of ``display'') and

proposed Sec. 1320.5(b)(2)(ii)(C): The proposed rule in

Sec. 1320.3(f)(3) stated that, in the case of collections of

information published in regulations in the Federal Register, an agency

may ``display'' the OMB control number by publishing it in the preamble

or the regulatory text for the final rule, in a technical amendment to

the final rule, in a separate notice announcing OMB approval of the

collection of information, and/or in the Code of Federal Regulations.

The proposed rule also recommended that, for ease of reference, the

agency also publish the control number in the Code of Federal

Regulations, even when the agency has already ``displayed'' the control

number by publishing it in the Federal Register. The proposed rule

contained a similar provision at Sec. 1320.5(b)(2)(ii)(C) regarding the

requirement to inform potential respondents that they are not required

to respond to the collection of information unless it displays a valid

control number.

A comment stressed that the Code of Federal Regulations does not

function independently of the Federal Register. Specifically, the

comment pointed out that materials that are in the preamble for a final

rule, or in a general notice in the Federal Register, will not be

codified in the Code of Federal Regulations. For this reason, the

comment expressed concern that the proposed rule's language might

wrongly suggest that materials which are published in a preamble or in

a notice indicating OMB approval would be codified in the Code of

Federal Regulations.

The comment's point is well taken. To avoid any ambiguity or

confusion on this matter, Sec. 1320.3(f)(3) and

Sec. 1320.5(b)(2)(ii)(C) are revised in the final rule, and additional

background explanation is included in this preamble.

With respect to Sec. 1320.3(f)(3), this provision has been revised

to make clear that, for purposes of the Act, an agency satisfies the

requirement to ``display'' the OMB control number if the control number

is published in the Federal Register or, alternatively, if the control

number is published in the Code of Federal Regulations. Either form of

publication satisfies the requirement to ``display'' the control

number. Both are not required. A similar revision has been made to

Sec. 1320.5(b)(2)(ii)(C).

As additional background explanation, consider the application of

Sec. 1320.3(f)(3). If the agency publishes (and thus ``displays'') the

control number in the Federal Register as part of the regulatory text

for the final rule or in a technical amendment to the final rule, then

the Office of the Federal Register will automatically place the control

number in the Code of Federal Regulations. By contrast, if the agency

publishes (and thus ``displays'') the control number in the Federal

Register as part of the preamble for the final rule or in a separate

notice announcing that OMB has approved the collection of information,

then the Office of the Federal Register will not automatically place

the control number in the Code of Federal Regulations. In the latter

situation, although the agency has already ``displayed'' the control

number by publishing it in the preamble or in a separate notice, OMB

recommends for ease of future reference that the agency also place the

control number in a table or codified section to be included in the

Code of Federal Regulations. In addition to aiding in future reference,

such a table or codification section would itself constitute an

alternative form of ``display.'' The placement of the control number in

regulations is governed by a regulation issued by the Administrative

Committee of the Federal Register, at 1 CFR 21.35. The same background

principles apply to the application of Sec. 1320.5(b)(2)(ii)(C).

5. Proposed Sec. 1320.3(h)(1) (Definition of ``information''): In

the NPRM, OMB clarified the exemption for ``certifications'' in

proposed Sec. 1320.3(h)(1) to ensure that the exempted certification is

used only to identify an individual in a routine, non-intrusive, non-

burdensome way. OMB further stated that the exemption is not to be

available for a certification that substitutes for a collection of

information to collect evidence of, or to monitor, compliance with

regulatory standards.

A comment objected to the burden of agency certification

requirements and, while supportive of the proposed clarification,

suggested the following amendment: ``A certification that requires more

than the identity of the respondent, the date, the respondent's

address, and the nature of the instrument will be considered to be

`information' unless and until the Agency demonstrates and OMB

determines that it is not `information' following OMB review and public

comment in accordance with the requirements of Sec. 1320.11.'' On the

other hand, another comment suggested that the use of certifications in

lieu of detailed records is a way to reduce, to the lowest possible

level, the burden imposed on respondents, and that a certification of

compliance with a regulatory requirement is a de minimis

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activity compared to full recordkeeping. This commenter suggested that

the certification exemption be broadened to include any certification

of compliance with a regulatory requirement.

Given that the issue in dispute involves paperwork burdens--which

is one of the primary issues that OMB is to evaluate under the

Paperwork Reduction Act, it is appropriate for OMB to review such

certifications in order to evaluate the burden involved and balance

those concerns against agency need. For example, the one commenter

stated that certification requirements impose less burden than full

recordkeeping requirements. The imposition of less burden would of

course be an important consideration in evaluating a proposed

certification requirements under the ``practical utility''-``burden''

criteria. However, the fact that certification requirements may impose

less burden than full recordkeeping does not argue for exempting them

altogether from review. With respect to the other commenter's suggested

amendment, OMB believes that the provision in the NPRM should address

the commenter's fundamental concerns. Before concluding that the

provision should be revised further, OMB prefers to see whether any

issues arise in implementing this provision in the context of concrete

situations. The final rule is left unchanged.

6. Proposed Sec. 1320.3(k) (Definition of ``person''): In proposed

Sec. 1320.3(k), the definition of ``person'' included ``corporation

(including operations of government-owned, contractor-operated

facilities).'' One comment suggested that ``Government-owned

contractor-operated facilities contractors'' should be excluded from

this definition of ``person.''

This portion of proposed Sec. 1320.3(k) is identical to that found

in the OMB regulations since 1983 (see 5 CFR 1320.7(p) (1984); 5 CFR

1320.7(n) (1989)). As OMB explained in 1983: ``In response to a request

for clarification, the term `person' has been defined to include

`operations of government-owned contractor-operated facilities.' Such

operations are specifically excepted from the statutory definition of

`agency,' see 44 U.S.C. 3502(1) [(1981)]. Since they are not agencies,

but are private businesses falling within the purposes of the Act, they

are covered as `persons''' (48 FR 13677 [March 31, 1983]). Since

Congress did not substantively amend the definitions of ``agency'' and

``person'' in the 1995 Act, the final rule is left unchanged.

7. Proposed Sec. 1320.4 (``Coverage''): In the NPRM, OMB pointed

out that, for certain agency offices, including Chief Financial

Officers or Inspectors General, an investigation (a term used in 44

U.S.C. 3518(c)(1) and (2)) often carries the title of ``audit'' (a term

used in the Inspector General Act, Section 3(a), 5 U.S.C. App. 3).

Several Inspectors General suggested that the scope of the exemptions

should make specific reference to the word ``audit.'' The final rule is

modified accordingly, with equivalent amendments to Sec. 1320.4(a)(2),

Sec. 1320.4(b), and Sec. 1320.4(c). These changes are made for

clarification; no substantive change is intended.

8. Proposed Sec. 1320.6(e) (``Public Protection''): In the NPRM,

OMB stated in proposed Sec. 1320.6(e) that the Act's ``public

protection'' provision in 44 U.S.C. 3512 ``does not preclude the

imposition of a penalty on a person for failing to comply with a

collection of information that is imposed on the person by statute''.

The proposed regulation also provided two examples of such a statute:

26 U.S.C. 6011(a) and 42 U.S.C. 6938(c).

In the preamble of the NPRM, OMB explained that the proposed

provision ``is based on the principle announced by the courts in

several cases which addressed the issue of whether the public

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

government from prosecuting persons for their failure to perform

paperwork duties imposed upon them by statute. * * * In those cases,

the courts concluded that Congress, in enacting the Paperwork Reduction

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

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

decided to impose a paperwork requirement on persons directly by

statute.'' 60 FR at 30441. Thus, the preamble described proposed

Sec. 1320.6(e) as stating the principle ``where Congress imposes a

collection of information directly on persons, by statute [as in those

two statutory examples in the proposed regulation], then the public

protection provided by proposed Sec. 1320.6(a) would not preclude the

imposition of penalties for a person's failure to comply with the

statutory mandate.'' Id. The preamble concluded by noting that ``[t]his

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

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

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

obligated to comply with the Paperwork Reduction Act of 1995 in

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

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

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

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

OMB received four comments regarding proposed Sec. 1320.6(e). These

comments criticized the provision as either too broad or too narrow.

For the reasons stated below, the final rule adopts the provision as

proposed.

Three comments objected to proposed Sec. 1320.6(e) as being too

broad. They stated that proposed Sec. 1320.6(e) would undermine agency

compliance with the Paperwork Reduction Act's requirements. These

commenters understood proposed Sec. 1320.6(e) to mean that agencies

would not be required to comply with the requirements of the Paperwork

Reduction Act with regard to paperwork requirements that agencies

impose in connection with those statutes in which Congress has imposed

collections of information directly on persons. These comments objected

to such a reading of the Act, pointing out that Congress intended the

agencies to comply with the Act's requirements with regard to all of

their collections of information, including those mandated by statute.

As one comment stated: ``Even if a collection is mandated by statute,

the law requires that the specifics be put out for public comment and

subjected to OMB review.'' For this reason, that comment objected that

proposed Sec. 1320.6(e) ``creates an unnecessary loophole and is a back

door signal to agencies to declare that their collection requirements

are mandated by statutory action and therefore not subject to public

comment and OMB review.'' Another comment made the same objection,

stating that proposed Sec. 1320.6(e) ``would enable federal agencies to

undermine and avoid fundamental requirements of this law [i.e., the

Paperwork Reduction Act] by mere assertion that collections of

information were statutorily mandated.'' Finally, the third comment

stated that the ``plain meaning'' of 44 U.S.C. 3512 ``is clear and

unambiguous; the regulations should be revised to make it clear that a

valid OMB control number and the notice that one does not have to

comply if a valid control number is not displayed should be required on

all covered information requests from the Federal government.''

In addition to the three comments that criticized proposed

Sec. 1320.6(e) as being too broad, OMB received one comment that took

the contrary view, contending that proposed Sec. 1320.6(e) was too

narrow. In summarizing proposed Sec. 1320.6(e), this comment stated

that ``1320.6(e) provides that the public

[[Page 44981]]

protection provision does not apply to noncompliance with collections

of information imposed on persons by statute. The preamble (at 30441)

explains that the scope of this provision is limited to collections of

information imposed `on persons directly by statute' and `does not

extend to situations in which a statute * * * directs an agency to

impose a collection of information on persons, and the agency does

so.''' (Emphasis supplied in comment.) According to the comment, ``This

distinction * * * is not supported by the case law,'' which in this

commenter's view, ``simply distinguishes collections of information

mandated by Congress in statute from those imposed by regulation under

an agency's discretionary authority.'' For this reason, the comment

concluded that proposed Sec. 1320.6(e) was too narrowly drawn, and

should be broadened: ``Thus, the scope of section 1320.6(e) should

cover all collections of information specifically mandated by statute,

regardless of whether Congress imposes them on persons directly or

through an agency.''

With respect to the criticism that proposed Sec. 1320.6(e) is too

broad, OMB did not intend in proposed Sec. 1320.6(e) or in the preamble

of the NPRM to suggest that the requirements of the Paperwork Reduction

Act do not apply to agency paperwork requirements that implement

mandates that Congress imposes on persons. We agree with these comments

that the legislative history to the Paperwork Reduction Act of 1980

indicates the Act's broad coverage with respect to agency collections

of information: ``Unless the collection of information is specifically

required by statutory law the Director's determination is final for

agencies which are not independent regulatory agencies. The fact the

collection of information is specifically required by statute does not,

however, relieve an agency of the obligation to submit the proposed

collection for the Director's review'' (S. Rpt. 96-930, at p. 49).

Accordingly, OMB's 1983 regulations implementing the 1980 Act

stated that ``OMB will consider necessary any collection of information

specifically mandated by statute or court order, but will independently

assess any collection of information to the extent that the agency

exercises discretion in its implementation'' (5 CFR 1320.4(c)(1)

(1984)). This provision has remained in OMB's regulations since then.

Moreover, it was included in the proposed rule at Sec. 1320.5(e)(1),

where it is found in the final rule issued today.

OMB's intention in proposed Sec. 1320.6(e) was therefore not to

exempt any agency collections of information from the requirements of

the Paperwork Reduction Act. Instead, our intention was to address the

consequences under the Act's public protection provision if an agency

fails to comply with the Act's requirements with respect to a

particular collection of information. In the cases that OMB discussed

in the NPRM, the courts held that an agency's failure to comply with

the Act cannot preclude the enforcement of a requirement that Congress

in a statute has imposed on persons. The reason for this conclusion, as

those courts explained (see 60 FR 30441), was that Congress did not

subject its law-making process to the requirements of the Paperwork

Reduction Act.

In other words, Congress in the Paperwork Reduction Act did not

provide that Congress must comply with the Act's requirements, which

include seeking and obtaining OMB approval (and periodic reapproval),

when Congress passes a law that imposes paperwork requirements on the

public. OMB does not review laws for compliance with the Paperwork Act,

and thus, laws do not have to display OMB control numbers and do not

require subsequent OMB review and approval at least once every three

years.

This is not to say that an agency's implementing forms,

regulations, and other directives to the public are exempt from the

Act's requirements; those implementing forms, regulations, and

directives are indeed subject to the Act's requirements. However, it

does mean that an agency's failure to comply with the Act cannot

preclude the enforcement of a statute that imposes paperwork

requirements on persons. Otherwise, agency officials, by failing to

satisfy their statutory obligations, would have the power to nullify a

requirement that Congress imposes on persons by statute. The Act's

public protection provision does not have such a reach.

Accordingly, as we have clarified above, proposed Sec. 1320.6(e)

does not exempt any agency collections of information from the Act's

requirements. We believe that, with this clarification, we have

addressed the main concerns that were expressed by the three commenters

who considered proposed Sec. 1320.6(e) to be too broad. To the extent

that the comments are suggesting that the Act's public protection

provision precludes the Government from enforcing duties that Congress

imposes on persons by statute, we believe that the Act does not support

such an interpretation, for the reasons outlined above.

With respect to the one comment that criticized proposed

Sec. 1320.6(e) as being too narrow, we believe that the suggestion in

this comment is contrary to the Congressional intent behind the Act's

public protection provision and is contrary to administrative practice

generally. As noted above, this comment asserts that the case law

discussed in the proposed rule's preamble ``simply distinguishes

collections of information mandated by Congress in statute from those

imposed by regulation under an agency's discretionary authority.''

According to the comment, ``the scope of section 1320.6(e) should cover

all collections of information specifically mandated by statute,

regardless of whether Congress imposes them on persons directly or

through an agency.'' In other words, whereas OMB's proposed

Sec. 1320.6(e) stated that the public protection provision does not

apply to paperwork requirements that Congress imposes upon persons by

statute, the commenter's view is that the public protection provision

also does not apply to any paperwork requirement that an agency imposes

on persons in response to a statutory requirement that the agency

impose such a requirement.

OMB does not agree with this reading of the Act. As we explained

above, statutes are not subject to the Paperwork Reduction Act.

Therefore, Congress does not have to seek and obtain OMB approval for

the statutes that Congress enacts, and the Act's public protection

provision cannot preclude the enforcement of a statute that imposes

paperwork requirements on persons. It is an entirely different matter

when Congress in a statute requires an agency to impose a paperwork

requirement on persons.

In this regard, moreover, the comment's suggested reading of the

public protection provision would substantially narrow its scope.

Agencies impose many collections of information in response to mandates

that they receive from Congress (although, as OMB's regulation

indicates, see Sec. 1320.5(e)(1), these mandates may leave agencies

with varying degrees of discretion). Nothing in the Act's public

protection provision supports the comment's suggested distinction

between agency action that is ``mandated by Congress'' and agency

action that is ``discretionary,'' just as there is no such distinction

in the Administrative Procedure Act.

In sum, an agency's failure to comply with the Paperwork Reduction

Act cannot override a statutory obligation on persons that Congress

imposes on persons through statute. By contrast, an agency's failure to

comply with the requirements that Congress imposes on the agency in one

statute (in this case,

[[Page 44982]]

the Paperwork Reduction Act) can preclude the Government from enforcing

a requirement that the agency has imposed on persons, including when

the agency has imposed the requirement in order to comply with a

statutory obligation that Congress imposed on the agency in another

statute.

9. Proposed Sec. 1320.7(a) and (b) (``Agency head and Senior

Official responsibilities''): In the NPRM, OMB recognized that the

Inspectors General have an important statutory function that requires

independence in the conduct of their work. OMB sought public comment on

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

1995 while maintaining the practical ability of the Inspectors General

to perform their statutory functions. (60 FR 30440.)

All the Inspectors General who responded and one private party were

concerned about the need to protect the statutory independence of

Inspectors General, which is based on two sections of the Inspector

General Act (5 U.S.C. App. 3). First, ``each Inspector General * * * is

authorized * * * to make such investigations and reports relating to

the administration of the programs and operations of the applicable

establishment as are, in the judgment of the Inspector General,

necessary or desirable'' (Sec. 6(a)(2)). Second, ``each Inspector

General shall report to and be under the general supervision of the

head of the establishment involved or, to the extent such authority is

delegated, to the officer next in rank below such head, but shall not

report to, or be subject to supervision by, any other officer of such

establishment'' (Sec. 3(a)).

On the other hand, a comment suggested that ``unless the

information requested by the Inspectors General falls into one of the

categories of information expressly excluded from coverage by the

[Paperwork Reduction] Act under sections 3502(3) and 3518(c)(1) [of

title 44, U.S.C.], the Inspectors General must comply with the PRA and

implementing regulations.'' Two other comments expressed similar views.

One issue of particular concern to the Inspectors General was that

involving proposed Sec. 1320.4, discussed above. A second issue was a

suggestion in the comments that Inspectors General be added to the list

of agencies that are designated as independent regulatory agencies (see

44 U.S.C. 3502(5) and 5 CFR 1320.3(g)). With respect to this

suggestion, OMB does not believe that the Inspectors General qualify as

a ``similar agency designated by statute as a Federal independent

regulatory agency or commission'' under the statute.

A third issue of particular concern involves proposed

Sec. 1320.7(a) and (b), and the relationship of the agency head, the

Senior Official, and the Inspector General's office. Under proposed

Sec. 1320.7(a) and (b), the head of each agency is responsible for

carrying out agency responsibilities under this Act, but either may

designate a Senior Official to carry out these responsibilities or

``may retain full undelegated review authority for any component of the

agency which by statute is required to be independent of any agency

official below the agency head'' (proposed Sec. 1320.7(b)). OMB

explained the need for the agency head to retain full undelegated

review authority in 1982: ``Section 3506 of the [Paperwork Reduction]

Act must be accommodated to other laws concerning intra-agency

structures, by providing that an agency head may retain full

undelegated review authority for any component of the agency which by

statute is required to be independent of any agency official below the

agency head'' (47 FR 39521 [September 8, 1982]).

Given their concerns about institutional independence, the

Inspectors General suggested a number of alternatives--that the ``may''

in proposed Sec. 1320.7(b) be changed to ``shall''; that the agency

head designate the Inspector General to be the ``Senior Official''; or

that the agency head review a proposed collection of information by the

Inspector General and forward comments on it to OMB, but not be able to

``impound'' the proposed collection of information.

OMB is sensitive to the concerns that the Inspectors General have

raised regarding their independence under the Inspector General Act.

However, OMB is reluctant through provisions in a rulemaking

implementing the Paperwork Reduction Act to seek to establish agency

institutional relations between an agency head and the agency's

Inspector General, particularly as these relations are already well

established through statute and agency practice. It is also

inappropriate in this rulemaking for OMB to impose on agencies and

their Inspectors General an interpretation of the Inspector General

Act. However, in evaluating the three suggestions noted above, OMB must

bring to bear the terms of the Paperwork Reduction Act of 1995 and

OMB's experience in implementing the predecessor statutes.

On this basis, OMB has decided not to adopt these suggestions.

First, OMB disagrees with changing the ``may'' in proposed

Sec. 1320.7(b) to ``shall.'' The Inspectors General are not the only

independent components located within agency structures (e.g., the

Federal Energy Regulatory Commission within the Department of Energy).

While the final rule states that an agency head ``may'' retain full

undelegated review authority for any statutorily independent component

of the agency, it is not appropriate for OMB in this rulemaking to

compel an agency head to retain full undelegated review authority. OMB

notes, nonetheless, that it would be appropriate and consistent with

the structure and intent of the Paperwork Reduction Act for an agency

head to retain full undelegated Paperwork Reduction Act oversight

authority over an Inspector General. Second, OMB does not want to

encourage an agency head to designate an Inspector General as the

agency's Senior Official. Under 44 U.S.C. 3506(a)(2) and (b), an agency

head (other than in the Department of Defense) may delegate the

agency's Paperwork Reduction Act responsibilities only to ``a'' Senior

Official. For an Inspector General to undertake paperwork review and

clearance responsibilities for an entire agency may be both

inappropriate and impractical, particularly since the Senior Official's

responsibilities are broader than just paperwork review and clearance.

This regulation preserves the agency head's discretion to determine the

appropriate Senior Official for that agency. Third, the suggestion that

the regulation state that an agency head may review and comment on a

proposed collection of information, but may not ``impound'' it, appears

to involve an interpretation of the Inspector General Act. While this

regulation does not preclude an agency and its Inspector General from

establishing such an institutional relationship, it would not be

appropriate for OMB to mandate it in this rulemaking.

In sum, there are a number of ways, consistent with the Paperwork

Reduction Act, in which agency heads and Inspectors General could

decide to submit information clearance packages for OMB review, which

would be for them to decide. Because the proposed rule, in proposed

Sec. 1320.7(a) and (b), is neither prescriptive of an approach, nor

preclusive of any approach that serves this end, the final rule is left

unchanged. In addition, while OMB has not yet reached any firm

conclusions on this point, OMB believes that it would be worthwhile to

explore whether, in light of the Inspector General Act, it would be

consistent with the Paperwork Reduction Act for an Inspector General

[[Page 44983]]

to ``establish a process [within his or her office] * * * that is

sufficiently independent of [the Inspector General's] program

responsibility to evaluate fairly whether proposed collections of

information should be approved'' under the Act (44 U.S.C. 3506(c)(1)).

Under such an approach, the ``independent'' office within the Office of

Inspector General would develop information clearance packages for OMB

review (for those that are not otherwise exempt from review) and

transmit them directly to OMB for review, perhaps with copies

simultaneously to the agency head to permit the agency head to transmit

any comments to OMB as he or she may deem appropriate.

10. Proposed Sec. 1320.8(b)(2) (``Agency collection of information

responsibilities''): Proposed Sec. 1320.8(b)(2) instructs the agency

office established under Sec. 1320.7 to assure, under 44 U.S.C.

3506(c)(1)(B)(ii), that each agency collection of information ``is

reviewed'' by OMB in accordance with the clearance requirements of 44

U.S.C. 3507. One comment suggested the insertion of ``has been

reviewed''. We believe that, in context, this provision states an

ongoing responsibility and that the inserted phrase is not needed. The

final rule is left unchanged.

11. Proposed Sec. 1320.8(d)(2) (``Agency collection of information

responsibilities''): In the NPRM, OMB proposed that, where an agency

does not publish the proposed collection of information, together with

related instructions, as part of the Federal Register notice, the

agency either provide more than 60-day notice to permit timely receipt

of a copy by interested members of the public or explain how and from

whom a copy can be obtained without charge (including by electronic

access). See preamble discussion at 60 FR 30442. A comment suggested

that the 60-day advance notice provides sufficient time for those

interested to obtain a copy of the proposed collection of information

and to comment upon it.

OMB believes that the proposed provision is reasonable. It gives

agencies a choice of providing more than 60 days for comment, or

explaining in the Federal Register notice how and from whom a copy can

be obtained. The proposed provision therefore ensures that the public

receives ``60-day notice in the Federal Register,'' as 44 U.S.C.

3506(c)(2) requires. Accordingly, the provision is left unchanged in

the final rule.

12. Proposed Sec. 1320.9(f) (``Agency certifications for proposed

collections of information''): Proposed Sec. 1320.9(f) has each agency

include with its paperwork clearance package to OMB a certification

that the collection of information ``indicates for each recordkeeping

requirement the length of time persons are required to maintain the

records specified''. One concern is that the recordkeeper be made aware

of the length of the retention; a comment suggested that agencies

should be encouraged to publish the applicable retention period ``on

all relevant documents.'' Another concern is that at least some

existing retention periods are open-ended; for example, 26 CFR 1.6001-

1(e) requires records to ``be retained so long as the contents thereof

may become material in the administration of any internal revenue

law.''

In the final rule, this provision is left unchanged. It simply

reiterates the statutory requirement in 44 U.S.C. 3506(c)(3)(F). OMB

believes that any implementation issues that arise are best addressed

in particular concrete situations.

13. Proposed Sec. 1320.11(a) (``Clearance of collections of

information in proposed rules''): Under proposed Sec. 1320.11(a), the

agency is to include a statement, in a Notice of Proposed Rulemaking

containing collections of information, that those collections have been

submitted for OMB review, and that the public should direct their

comments to the Office of Information and Regulatory Affairs (OIRA)

within OMB.

Several comments pointed out that the statement in a proposed rule

concerning OMB review of collections of information needed to comply

with not only the requirements in proposed Sec. 1320.5(a)(1)(iv), but

also those in proposed Sec. 1320.8(d) (See 44 U.S.C. 3507(a)(1)(D) and

44 U.S.C. 3506(c)(2)(B)). In the final rule, Sec. 1320.11(a) is

modified to refer to both of these provisions.

In addition, several comments raised a concern with the following

sentence in proposed Sec. 1320.11(a): ``The statement shall request

that comments be submitted to OMB within 60 days of the notice's

publication.'' This sentence does not appear in the previously existing

counterpart Sec. 1320.13(a).

These comments pointed out that OMB is obligated both to ``provide

at least 30 days for public comment prior to making a decision'' under

proposed Sec. 1320.11 (see 44 U.S.C. 3507(b)), and also to make its

decision ``within 60 days'' (44 U.S.C. 3507(d)(1)(B)). The comments

suggested that OMB should change the sentence to have agencies request

the public to submit comments to OMB within 30 days of the notice's

publication, thus providing OMB adequate time to review the public's

comments before making its decision.

For the reasons discussed below, OMB is deleting this sentence from

Sec. 1320.11(a) in the final rule. For many Notices of Proposed

Rulemaking, agencies provide the public with 60 days to comment (cf.

Section 6(a)(1) in Executive Order No. 12866, 58 FR 51740 (October 4,

1993), which encourages agencies to ``afford the public a meaningful

opportunity to comment on any proposed regulation''). To change the

sentence in proposed Sec. 1320.11(a) to have agencies allow the public

only 30 days for comments to OMB, but to retain 60 days for comments to

the agency, may confuse the public and have the unintended consequence

of encouraging all the public comments to be submitted to OMB and the

agency within 30 days. On the other hand, to require agencies to

provide a 60-day comment period for OMB submissions may needlessly

confuse the public for those proposed rules for which the agency wishes

to allow a 30-day comment period (often used for routine or

administrative regulations) or a 90-day comment period (often used for

particularly significant regulations). In addition, the absence of this

sentence from the previously existing counterpart Sec. 1320.13(a) has

not appeared to interfere with the public's awareness of the need to

send pertinent comments to OMB in a timely manner. In addition to

deleting the sentence from proposed Sec. 1320.11(a), OMB has also

deleted a parallel ``30-day'' statement that was in proposed

Sec. 1320.5(a)(1)(iv). However, OMB has retained the parallel ``30-

day'' statements that were in proposed Sec. 1320.10(a) and in proposed

Sec. 1320.12(c).

OMB requests that agencies, in providing guidance in their

statement directing comments concerning collections of information to

OMB, point out that OMB is required to make a decision concerning the

collections of information contained in the proposed rule between 30

and 60 days after publication and that a comment to OMB is best assured

of having its full effect if OMB receives it within 30 days of

publication. Such a statement, however, should only be done in a way

that does not confuse the public concerning the comment period that the

agency wishes to provide for the proposed rule.

14. Proposed Sec. 1320.13 (``Emergency processing''): Proposed

Sec. 1320.13 (preamble) authorizes the agency head or Senior Official

to request emergency processing of an agency's submission of a

collection of information for review. One comment suggested that the

[[Page 44984]]

designee, authorized under Sec. 1320.7(e), should also be able to make

such a request.

OMB agrees, and the final rule is modified accordingly. An

emergency may arise when the agency head or Senior Official is not

available, for any reason. In order to make the lines of responsibility

clear, the designee authorized under this Part should be an individual

located in an office that is independent of the office with

responsibility for implementing the collection of information involved

(cf. 44 U.S.C. 3506(c)(1)).

Other Changes

15. In addition to the revisions discussed above, additional

revisions have been made. These were generally technical and non-

substantive in nature, designed to correct mistakes, improve clarity,

and remove ambiguities. For example, in the definition of ``collection

of information'' in Sec. 1320.3(c)(1), the reference to ``collections

of information contained in, derived from, or authorized by such rules

or regulations'' was removed as surplusage (being contained by

implication in the final sentence); the references to ``electronic'',

``mechanical'' and ``other technological'' collection techniques,

though implicit, were added to increase clarity; and ``recordkeeping''

in the last sentence was replaced with ``collection of information''

for clarity. Similarly, in the definition of ``information'' in

Sec. 1320.3(h), the added reference to ``estimate'' was implicit, but

increases clarity. In addition, proposed Sec. 1320.5(d)(2)(vii) was

dropped as surplusage; such collections of information are subject to

the same review and clearance process that applies to collections of

information generally. Other such changes are found in

Sec. 1320.3(b)(1)(vi), Sec. 1320.3(c) (preamble), Sec. 1320.3(g),

Sec. 1320.3(l), Sec. 1320.5(a)(1)(iii), Sec. 1320.5(a)(1)(iv),

Sec. 1320.5(a)(1)(iv)(B), Sec. 1320.5(b)(2)(ii)(D), Sec. 1320.5(d)(2),

Sec. 1320.5(h), Sec. 1320.8(a)(5), Sec. 1320.8(b)(3),

Sec. 1320.8(c)(2), Sec. 1320.8(d)(1)(ii) and (iv), Sec. 1320.12(b)(2),

Sec. 1320.12(f)(1)(ii), Sec. 1320.16(b)(1), and Appendix A1 and A2.

Other Comments

16. OMB received letters from several State agencies. The specific

comments varied, but the common theme was a concern that OMB's proposed

regulation would require the State agencies to obtain OMB Paperwork

Reduction Act approval for all the forms they use. The State agencies

believed this could undermine their ability to perform their mission.

The Paperwork Reduction Act applies to a collection of information

that is ``conducted or sponsored'' by an agency (i.e., Federal

agencies) (see Sec. 1320.3 (a) and (d); S. Rpt. 104-8, p. 36; H. Rpt.

104-37, p. 36). Accordingly, a State agency is not required to obtain

OMB approval in order to undertake, on its own initiative, to collect

information. However, in those cases where the State agency's

collection of information is being ``conducted or sponsored'' by a

Federal agency, then the Federal agency would need to obtain OMB

approval for the collection of information.

17. OMB received two comments expressing contradictory

interpretations of the following statutory provision involving agency

statistical policy and coordination: ``With respect to statistical

policy and coordination, each agency shall * * * protect respondents'

privacy and ensure that disclosure policies fully honor pledges of

confidentiality'' (44 U.S.C. 3506(e)(3)).

In its Paperwork Reduction Act regulation, OMB has addressed the

need to ensure confidentiality with respect to collections of

information generally. That provision has been found at 5 C.F.R.

1320.6(i) (1984). In the proposed rule, this provision was moved to

Sec. 1320.5(d)(2)(ix). The proposed rule also included additional

provisions regarding confidentiality, at Sec. 1320.5(d)(2)(viii) and

Sec. 1320.8(b)(3)(v). These provisions have been retained in this final

rule, at Sec. 1320.5(d)(2)(vii)-(viii) and Sec. 1320.8(b)(3)(v). To the

extent that issues involving the application of 44 U.S.C. 3506(e)(3)

arise in the course of the development and review of proposed

collections of statistical information, those issues are best addressed

in particular concrete situations.

Assessment of Potential Costs and Benefits and Regulatory Flexibility

Act Analysis

OMB has analyzed the effects of this rule under the Regulatory

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

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

amendments will have a salutary impact on small entities through the

reduction of unnecessary paperwork.

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

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

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

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

Issued in Washington, DC, August 21, 1995.

Sally Katzen,

Administrator, Office of Information and Regulatory Affairs.

List of Subjects in 5 CFR Part 1320

Reporting and recordkeeping requirements, Paperwork, Collections of

information.

5 CFR Part 1320 is revised to read as follows:

PART 1320--CONTROLLING PAPERWORK BURDENS ON THE PUBLIC

Sec.

1320.1 Purpose.

1320.2 Effect.

1320.3 Definitions.

1320.4 Coverage.

1320.5 General requirements.

1320.6 Public protection.

1320.7 Agency head and Senior Official responsibilities.

1320.8 Agency collection of information responsibilities.

1320.9 Agency certifications for proposed collections of

information.

1320.10 Clearance of collections of information, other than those

contained in proposed rules or in current rules.

1320.11 Clearance of collections of information in proposed rules.

1320.12 Clearance of collections of information in current rules.

1320.13 Emergency processing.

1320.14 Public access.

1320.15 Independent regulatory agency override authority.

1320.16 Delegation of approval authority.

1320.17 Information collection budget.

1320.18 Other authority.

Appendix A: Agencies with Delegated Review and Approval Authority

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

29, 31, 35.

Sec. 1320.1 Purpose.

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

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

concerning collections of information. It is issued under the authority

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

promulgate rules, regulations, or procedures necessary to exercise the

authority provided by this chapter.'' It is designed to reduce,

minimize and control burdens and maximize the practical utility and

public benefit of the information created, collected, disclosed,

maintained, used, shared and disseminated by or for the Federal

government.

[[Page 44985]]

Sec. 1320.2 Effect.

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

takes effect on October 1, 1995.

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

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

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

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

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

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

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

September 30, 1995.

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

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

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

Sec. 1320.3 Definitions.

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

terms are defined as follows:

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

Government corporation, Government controlled corporation, or other

establishment in the executive branch of the government, or any

independent regulatory agency, but does not include:

(1) the General Accounting Office;

(2) Federal Election Commission;

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

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

or

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

laboratories engaged in national defense research and production

activities.

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

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

provide information to or for a Federal agency, including:

(i) reviewing instructions;

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

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

information;

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

and systems for the purpose of processing and maintaining information;

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

and systems for the purpose of disclosing and providing information;

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

applicable instructions and requirements;

(vi) training personnel to be able to respond to a collection of

information;

(vii) searching data sources;

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

(ix) transmitting, or otherwise disclosing the information.

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

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

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

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

the agency demonstrates that the reporting, recordkeeping, or

disclosure activities needed to comply are usual and customary.

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

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

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

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

requirement would be imposed even in the absence of a Federal

requirement.

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

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

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

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

to, or identical reporting, recordkeeping, or disclosure requirements

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

is mandatory, voluntary, or required to obtain or retain a benefit.

``Collection of information'' includes any requirement or request for

persons to obtain, maintain, retain, report, or publicly disclose

information. As used in this Part, ``collection of information'' refers

to the act of collecting or disclosing information, to the information

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

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

appropriate.

(1) A Collection of information may be in any form or format,

including the use of report forms; application forms; schedules;

questionnaires; surveys; reporting or recordkeeping requirements;

contracts; agreements; policy statements; plans; rules or regulations;

planning requirements; circulars; directives; instructions; bulletins;

requests for proposal or other procurement requirements; interview

guides; oral communications; posting, notification, labeling, or

similar disclosure requirements; telegraphic or telephonic requests;

automated, electronic, mechanical, or other technological collection

techniques; standard questionnaires used to monitor compliance with

agency requirements; or any other techniques or technological methods

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

information'' may implicitly or explicitly include related collection

of information requirements.

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

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

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

disclosure requirements constitute the ``collection of information''

whenever the same requirement to obtain or compile information would be

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

provided to the agency. The public disclosure of information originally

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

disclosure to the public is not included within this definition.

(3) Collection of information includes questions posed to agencies,

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

are to be used for general statistical purposes, that is, if the

results are to be used for statistical compilations of general public

interest, including compilations showing the status or implementation

of Federal activities and programs.

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

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

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

independent entities to which the initial addressee may reasonably be

expected to transmit the collection of information during that period,

including independent State, territorial, tribal or local entities and

separately incorporated subsidiaries or affiliates. For the purposes of

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

include employees of the respondent acting within the scope of their

employment, contractors engaged by a respondent for the purpose of

complying with the collection of information, or current employees of

the Federal government (including military reservists and members of

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

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

Federal employees.

(i) Any recordkeeping, reporting, or disclosure requirement

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

or more persons.

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

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

persons.

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

or

[[Page 44986]]

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

information, causes another agency to collect the information,

contracts or enters into a cooperative agreement with a person to

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

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

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

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

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

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

agency only if:

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

information at the specific request of the agency; or

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

by the agency of the collection of information or collection

procedures.

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

(f) Display means:

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

written collections of information sent or made available to potential

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

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

of information;

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

written collections of information sent or made available to potential

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

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

collection instrument, or, for on-line applications, on the first

screen viewed by the respondent;

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

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

to publish the currently valid OMB control number in the Federal

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

regulation, by publishing the OMB control number in the preamble or the

regulatory text for the final rule, in a technical amendment to the

final rule, or in a separate notice announcing OMB approval of the

collection of information). In the case of a collection of information

published in an issuance that is also included in the Code of Federal

Regulations, publication of the currently valid control number in the

Code of Federal Regulations constitutes an alternative means of

``display.'' In the case of a collection of information published in an

issuance that is also included in the Code of Federal Regulations, OMB

recommends for ease of future reference that, even where an agency has

already ``displayed'' the OMB control number by publishing it in the

Federal Register as a separate notice or in the preamble for the final

rule (rather than in the regulatory text for the final rule or in a

technical amendment to the final rule), the agency also place the

currently valid control number in a table or codified section to be

included in the Code of Federal Regulations. For placement of OMB

control numbers in the Code of Federal Regulations, see 1 CFR 21.35.

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

that special circumstances exist, to use other means to inform

potential respondents of the OMB control number.

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

the Federal Reserve System, the Commodity Futures Trading Commission,

the Consumer Product Safety Commission, the Federal Communications

Commission, the Federal Deposit Insurance Corporation, the Federal

Energy Regulatory Commission, the Federal Housing Finance Board, the

Federal Maritime Commission, the Federal Trade Commission, the

Interstate Commerce Commission, the Mine Enforcement Safety and Health

Review Commission, the National Labor Relations Board, the Nuclear

Regulatory Commission, the Occupational Safety and Health Review

Commission, the Postal Rate Commission, the Securities and Exchange

Commission, and any other similar agency designated by statute as a

Federal independent regulatory agency or commission.

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

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

narrative form, and whether oral or maintained on paper, electronic or

other media. ``Information'' does not generally include items in the

following categories; however, OMB may determine that any specific item

constitutes ``information'':

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

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

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

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

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

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

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

compliance with regulatory standards, because such a certification

would generally entail burden in addition to that necessary to identify

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

the instrument);

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

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

employee or agent of the sponsoring agency or through nonstandardized

oral communication in connection with such direct observations;

(4) facts or opinions submitted in response to general

solicitations of comments from the public, published in the Federal

Register or other publications, regardless of the form or format

thereof, provided that no person is required to supply specific

information pertaining to the commenter, other than that necessary for

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

of the comment;

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

from individuals (including individuals in control groups) under

treatment or clinical examination in connection with research on or

prophylaxis to prevent a clinical disorder, direct treatment of that

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

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

such specimens;

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

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

knowledge of the persons tested and the collection of information for

identification or classification in connection with such examinations;

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

with public hearings or meetings;

(9) facts or opinions obtained or solicited through nonstandardized

follow-up questions designed to clarify responses to approved

collections of information; and

(10) like items so designated by OMB.

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

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

or other punishment; a judgment for monetary damages or equitable

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

license, privilege, right, grant, or benefit.

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

corporation (including operations of government-owned contractor-

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

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

government or branch thereof, or a

[[Page 44987]]

political subdivision of a State, territory, tribal, or local

government or a branch of a political subdivision;

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

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

into account its accuracy, validity, adequacy, and reliability, and the

agency's ability to process the information it collects (or a person's

ability to receive and process that which is disclosed, in the case of

a third-party or public disclosure) in a useful and timely fashion. In

determining whether information will have ``practical utility,'' OMB

will take into account whether the agency demonstrates actual timely

use for the information either to carry out its functions or make it

available to third-parties or the public, either directly or by means

of a third-party or public posting, notification, labeling, or similar

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

entities or transactions over which the agency has jurisdiction. In the

case of recordkeeping requirements or general purpose statistics (see

Sec. 1320.3(c)(3)), ``practical utility'' means that actual uses can be

demonstrated.

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

an agency on persons to maintain specified records, including a

requirement to:

(1) Retain such records;

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

the existence of such records;

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

or the public; or

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

regarding such records.

Sec. 1320.4 Coverage.

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

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

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

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

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

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

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

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

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

an administrative action, investigation, or audit involving an agency

against specific individuals or entities;

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

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

1980; or

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

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

or successor orders, or during the conduct of cryptologic activities

that are communications security activities.

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

information during the conduct of general investigations or audits

(other than information collected in an antitrust investigation to the

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

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

licensees or an entire industry.

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

during the entire course of the investigation, audit, or action,

whether before or after formal charges or complaints are filed or

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

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

accordance with paragraph (b) of this section, collections of

information prepared or undertaken with reference to a category of

individuals or entities, such as a class of licensees or an industry,

do not fall within this exception.

Sec. 1320.5 General requirements.

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

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

collection of information--

(1) the agency has--

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

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

and Sec. 1320.11;

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

and in such form as OMB may specify,

(A) the certification required under Sec. 1320.9,

(B) the proposed collection of information in accordance with

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

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

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

information to display an expiration date;

(D) an explanation for a decision to provide for any payment or

gift to respondents, other than remuneration of contractors or

grantees;

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

proposed collection of information involves the use of automated,

electronic, mechanical, or other technological collection techniques or

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

submission of responses, and an explanation for the decision;

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

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

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

notice therefor; and

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

related supporting materials as OMB may request; and

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

the Federal Register--

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

(B) setting forth--

(1) a title for the collection of information;

(2) a summary of the collection of information;

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

proposed use of the information;

(4) a description of the likely respondents, including the

estimated number of likely respondents, and proposed frequency of

response to the collection of information;

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

burden that will result from the collection of information;

(6) notice that comments may be submitted to OMB; and

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

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

submittal of a collection of information for OMB review under

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

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

Sec. 1320.13; and

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

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

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

regulatory agency under Sec. 1320.15; and

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

be displayed upon the collection of information.

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

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

information unless:

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

control number; and

[[Page 44988]]

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

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

respond to the collection of information unless it displays a currently

valid OMB control number.

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

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

inform the public.

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

written collections of information sent or made available to potential

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

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

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

agency includes it either on the form, questionnaire or other

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

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

written collections of information sent or made available to potential

respondents in an electronic format, the information described in

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

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

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

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

on the first screen viewed by the respondent.

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

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

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

provided ``in a manner that is reasonably calculated to inform the

public'' if the agency publishes such information in the Federal

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

regulation, by publishing such information in the preamble or the

regulatory text, or in a technical amendment to the regulation, or in a

separate notice announcing OMB approval of the collection of

information). In the case of a collection of information published in

an issuance that is also included in the Code of Federal Regulations,

publication of such information in the Code of Federal Regulations

constitutes an alternative means of providing it ``in a manner that is

reasonably calculated to inform the public.'' In the case of a

collection of information published in an issuance that is also

included in the Code of Federal Regulations, OMB recommends for ease of

future reference that, even where an agency has already provided such

information ``in a manner that is reasonably calculated to inform the

public'' by publishing it in the Federal Register as a separate notice

or in the preamble for the final rule (rather than in the regulatory

text for the final rule or in a technical amendment to the final rule),

the agency also publish such information along with a table or codified

section of OMB control numbers to be included in the Code of Federal

Regulations (see Sec. 1320.3(f)(3)).

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

that special circumstances exist, to use other means that are

reasonably calculated to inform the public of the information described

in paragraph (b)(2)(i) of this section.

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

than those contained in proposed rules published for public comment in

the Federal Register or in current regulations that were published as

final rules in the Federal Register, in accordance with the

requirements in Sec. 1320.10. Agencies shall submit collections of

information contained in interim final rules or direct final rules in

accordance with the requirements of Sec. 1320.10.

(2) Agencies shall submit collections of information contained in

proposed rules published for public comment in the Federal Register in

accordance with the requirements in Sec. 1320.11.

(3) Agencies shall submit collections of information contained in

current regulations that were published as final rules in the Federal

Register in accordance with the requirements in Sec. 1320.12.

(4) Special rules for emergency processing of collections of

information are set forth in Sec. 1320.13.

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

information, any submission properly submitted and received by OMB

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

business day.

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

agency shall demonstrate that it has taken every reasonable step to

ensure that the proposed collection of information:

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

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

program objectives;

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

agency; and

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

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

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

costs or burdens onto the public.

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

OMB clearance, that such characteristic of the collection of

information is necessary to satisfy statutory requirements or other

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

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

often than quarterly;

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

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

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

copies of any document;

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

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

than three years;

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

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

universe of study;

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

has not been reviewed and approved by OMB;

(vii) that includes a pledge of confidentiality that is not

supported by authority established in statute or regulation, that is

not supported by disclosure and data security policies that are

consistent with the pledge, or which unnecessarily impedes sharing of

data with other agencies for compatible confidential use; or

(viii) requiring respondents to submit proprietary, trade secret,

or other confidential information unless the agency can demonstrate

that it has instituted procedures to protect the information's

confidentiality to the extent permitted by law.

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

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

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

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

will consider whether the burden of the collection of information is

justified by its practical utility. In addition:

(1) OMB will consider necessary any collection of information

specifically mandated by statute or court order, but will independently

assess any collection of information to the extent that the agency

exercises discretion in its implementation; and

(2) OMB will consider necessary any collection of information

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

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

any such collection of

[[Page 44989]]

information to the extent that it deviates from the specifications of

the rule.

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

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

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

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

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

Official only if the sponsoring agency is able to provide significant

new or additional information relevant to the original decision.

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

to a collection of information after such collection of information has

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

for review and approval under this Part.

(h) An agency should consult with OMB before using currently

approved forms or other collections of information after the expiration

date printed thereon (in those cases where the actual form being used

contains an expiration date that would expire before the end of the use

of the form).

Sec. 1320.6 Public protection.

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

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

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

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

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

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

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

respond to the collection of information, in accordance with

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

collection of information unless it displays a currently valid OMB

control number.

(b) The protection provided by paragraph (a) of this section may be

raised in the form of a complete defense, bar, or otherwise to the

imposition of such penalty at any time during the agency administrative

process in which such penalty may be imposed or in any judicial action

applicable thereto.

(c) Whenever an agency has imposed a collection of information as a

means for proving or satisfying a condition for the receipt of a

benefit or the avoidance of a penalty, and the collection of

information does not display a currently valid OMB control number or

inform the potential persons who are to respond to the collection of

information, as prescribed in Sec. 1320.5(b), the agency shall not

treat a person's failure to comply, in and of itself, as grounds for

withholding the benefit or imposing the penalty. The agency shall

instead permit respondents to prove or satisfy the legal conditions in

any other reasonable manner.

(1) If OMB disapproves the whole of such a collection of

information (and the disapproval is not overridden under Sec. 1320.15),

the agency shall grant the benefit to (or not impose the penalty on)

otherwise qualified persons without requesting further proof concerning

the condition.

(2) If OMB instructs an agency to make a substantive or material

change to such a collection of information (and the instruction is not

overridden under Sec. 1320.15), the agency shall permit respondents to

prove or satisfy the condition by complying with the collection of

information as so changed.

(d) Whenever a member of the public is protected from imposition of

a penalty under this section for failure to comply with a collection of

information, such penalty may not be imposed by an agency directly, by

an agency through judicial process, or by any other person through

administrative or judicial process.

(e) The protection provided by paragraph (a) of this section does

not preclude the imposition of a penalty on a person for failing to

comply with a collection of information that is imposed on the person

by statute--e.g., 26 U.S.C. Sec. 6011(a) (statutory requirement for

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

requirement for person to provide notification before exporting

hazardous waste).

Sec. 1320.7 Agency head and Senior Official responsibilities.

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

agency head shall designate a Senior Official to carry out the

responsibilities of the agency under the Act and this Part. The Senior

Official shall report directly to the head of the agency and shall have

the authority, subject to that of the agency head, to carry out the

responsibilities of the agency under the Act and this Part.

(b) An agency head may retain full undelegated review authority for

any component of the agency which by statute is required to be

independent of any agency official below the agency head. For each

component for which responsibility under the Act is not delegated to

the Senior Official, the agency head shall be responsible for the

performance of those functions.

(c) The Senior Official shall head an office responsible for

ensuring agency compliance with and prompt, efficient, and effective

implementation of the information policies and information resources

management responsibilities established under the Act, including the

reduction of information collection burdens on the public.

(d) With respect to the collection of information and the control

of paperwork, the Senior Official shall establish a process within such

office that is sufficiently independent of program responsibility to

evaluate fairly whether proposed collections of information should be

approved under this Part.

(e) Agency submissions of collections of information for OMB

review, and the accompanying certifications under Sec. 1320.9, may be

made only by the agency head or the Senior Official, or their designee.

Sec. 1320.8 Agency collection of information responsibilities.

The office established under Sec. 1320.7 shall review each

collection of information before submission to OMB for review under

this Part.

(a) This review shall include:

(1) an evaluation of the need for the collection of information,

which shall include, in the case of an existing collection of

information, an evaluation of the continued need for such collection;

(2) a functional description of the information to be collected;

(3) a plan for the collection of information;

(4) a specific, objectively supported estimate of burden, which

shall include, in the case of an existing collection of information, an

evaluation of the burden that has been imposed by such collection;

(5) an evaluation of whether (and if so, to what extent) the burden

on respondents can be reduced by use of automated, electronic,

mechanical, or other technological collection techniques or other forms

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

responses;

(6) a test of the collection of information through a pilot

program, if appropriate; and

(7) a plan for the efficient and effective management and use of

the information to be collected, including necessary resources.

(b) Such office shall ensure that each collection of information:

(1) is inventoried, displays a currently valid OMB control number,

and, if appropriate, an expiration date;

[[Page 44990]]

(2) is reviewed by OMB in accordance with the clearance

requirements of 44 U.S.C. Sec. 3507; and

(3) informs and provides reasonable notice to the potential persons

to whom the collection of information is addressed of--

(i) the reasons the information is planned to be and/or has been

collected;

(ii) the way such information is planned to be and/or has been used

to further the proper performance of the functions of the agency;

(iii) an estimate, to the extent practicable, of the average burden

of the collection (together with a request that the public direct to

the agency any comments concerning the accuracy of this burden estimate

and any suggestions for reducing this burden);

(iv) whether responses to the collection of information are

voluntary, required to obtain or retain a benefit (citing authority),

or mandatory (citing authority);

(v) the nature and extent of confidentiality to be provided, if any

(citing authority); and

(vi) the fact that an agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a currently valid OMB control number.

(c)(1) An agency shall provide the information described in

paragraphs (b)(3)(i) through (v) of this section as follows:

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

written collections of information sent or made available to potential

respondents (except in an electronic format), such information can be

included either on the form, questionnaire or other collection of

information, as part of the instructions for such collection, or in a

cover letter or memorandum that accompanies the collection of

information.

(ii) in the case of forms, questionnaires, instructions, and other

written collections of information sent or made available to potential

respondents in an electronic format, such information can be included

either in the instructions, near the title of the electronic collection

instrument, or, for on-line applications, on the first screen viewed by

the respondent;

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

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

such information can be published in the Federal Register (for example,

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

publishing such information in the preamble or the regulatory text to

the final rule, or in a technical amendment to the final rule, or in a

separate notice announcing OMB approval of the collection of

information).

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

that special circumstances exist, agencies may use other means to

inform potential respondents.

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

(b)(3)(vi) of this section in a manner that is reasonably calculated to

inform the public (see Sec. 1320.5(b)(2)(ii)).

(d)(1) Before an agency submits a collection of information to OMB

for approval, and except as provided in paragraphs (d)(3) and (d)(4) of

this section, the agency shall provide 60-day notice in the Federal

Register, and otherwise consult with members of the public and affected

agencies concerning each proposed collection of information, to solicit

comment to:

(i) evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(ii) evaluate the accuracy of the agency's estimate of the burden

of the proposed collection of information, including the validity of

the methodology and assumptions used;

(iii) enhance the quality, utility, and clarity of the information

to be collected; and

(iv) minimize the burden of the collection of information on those

who are to respond, including through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

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

submission of responses.

(2) If the agency does not publish a copy of the proposed

collection of information, together with the related instructions, as

part of the Federal Register notice, the agency should--

(i) provide more than 60-day notice to permit timely receipt, by

interested members of the public, of a copy of the proposed collection

of information and related instructions; or

(ii) explain how and from whom an interested member of the public

can request and obtain a copy without charge, including, if applicable,

how the public can gain access to the collection of information and

related instructions electronically on demand.

(3) The agency need not separately seek such public comment for any

proposed collection of information contained in a proposed rule to be

reviewed under Sec. 1320.11, if the agency provides notice and comment

through the notice of proposed rulemaking for the proposed rule and

such notice specifically includes the solicitation of comments for the

same purposes as are listed under paragraph (d)(1) of this section.

(4) The agency need not seek or may shorten the time allowed for

such public comment if OMB grants an exemption from such requirement

for emergency processing under Sec. 1320.13.

Sec. 1320.9 Agency certifications for proposed collections of

information.

As part of the agency submission to OMB of a proposed collection of

information, the agency (through the head of the agency, the Senior

Official, or their designee) shall certify (and provide a record

supporting such certification) that the proposed collection of

information--

(a) is necessary for the proper performance of the functions of the

agency, including that the information to be collected will have

practical utility;

(b) is not unnecessarily duplicative of information otherwise

reasonably accessible to the agency;

(c) reduces to the extent practicable and appropriate the burden on

persons who shall provide information to or for the agency, including

with respect to small entities, as defined in the Regulatory

Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:

(1) establishing differing compliance or reporting requirements or

timetables that take into account the resources available to those who

are to respond;

(2) the clarification, consolidation, or simplification of

compliance and reporting requirements; or

(3) an exemption from coverage of the collection of information, or

any part thereof;

(d) is written using plain, coherent, and unambiguous terminology

and is understandable to those who are to respond;

(e) is to be implemented in ways consistent and compatible, to the

maximum extent practicable, with the existing reporting and

recordkeeping practices of those who are to respond;

(f) indicates for each recordkeeping requirement the length of time

persons are required to maintain the records specified;

(g) informs potential respondents of the information called for

under Sec. 1320.8(b)(3);

(h) has been developed by an office that has planned and allocated

resources for the efficient and effective management and use of the

information to be collected, including the processing of the

information in a manner which

[[Page 44991]]

shall enhance, where appropriate, the utility of the information to

agencies and the public;

(i) uses effective and efficient statistical survey methodology

appropriate to the purpose for which the information is to be

collected; and

(j) to the maximum extent practicable, uses appropriate information

technology to reduce burden and improve data quality, agency efficiency

and responsiveness to the public.

Sec. 1320.10 Clearance of collections of information, other than those

contained in proposed rules or in current rules.

Agencies shall submit all collections of information, other than

those contained either in proposed rules published for public comment

in the Federal Register (which are submitted under Sec. 1320.11) or in

current rules that were published as final rules in the Federal

Register (which are submitted under Sec. 1320.12), in accordance with

the following requirements:

(a) On or before the date of submission to OMB, the agency shall,

in accordance with the requirements in Sec. 1320.5(a)(1)(iv), forward a

notice to the Federal Register stating that OMB approval is being

sought. The notice shall direct requests for information, including

copies of the proposed collection of information and supporting

documentation, to the agency, and shall request that comments be

submitted to OMB within 30 days of the notice's publication. The notice

shall direct comments to the Office of Information and Regulatory

Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of

the notice submitted to the Federal Register, together with the date of

expected publication, shall be included in the agency's submission to

OMB.

(b) Within 60 days after receipt of the proposed collection of

information or publication of the notice under paragraph (a) of this

section, whichever is later, OMB shall notify the agency involved of

its decision to approve, to instruct the agency to make a substantive

or material change to, or to disapprove, the collection of information,

and shall make such decision publicly available. OMB shall provide at

least 30 days for public comment after receipt of the proposed

collection of information before making its decision, except as

provided under Sec. 1320.13. Upon approval of a collection of

information, OMB shall assign an OMB control number and, if

appropriate, an expiration date. OMB shall not approve any collection

of information for a period longer than three years.

(c) If OMB fails to notify the agency of its approval, instruction

to make substantive or material change, or disapproval within the 60-

day period, the agency may request, and OMB shall assign without

further delay, an OMB control number that shall be valid for not more

than one year.

(d) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct or sponsor a collection of information unless the

collection of information displays a currently valid OMB control number

and the agency informs potential persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number.

(e)(1) In the case of a collection of information not contained in

a published current rule which has been approved by OMB and has a

currently valid OMB control number, the agency shall:

(i) conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.8(d); and

(ii) after having made a reasonable effort to seek public comment,

but no later than 60 days before the expiration date of the OMB control

number for the currently approved collection of information, submit the

collection of information for review and approval under this Part,

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

information that it has collected.

(2) The agency may continue to conduct or sponsor the collection of

information while the submission is pending at OMB.

(f) Prior to the expiration of OMB's approval of a collection of

information, OMB may decide on its own initiative, after consultation

with the agency, to review the collection of information. Such

decisions will be made only when relevant circumstances have changed or

the burden estimates provided by the agency at the time of initial

submission were materially in error. Upon notification by OMB of its

decision to review the collection of information, the agency shall

submit it to OMB for review under this Part.

(g) For good cause, after consultation with the agency, OMB may

stay the effectiveness of its prior approval of any collection of

information that is not specifically required by agency rule; in such

case, the agency shall cease conducting or sponsoring such collection

of information while the submission is pending, and shall publish a

notice in the Federal Register to that effect.

Sec. 1320.11 Clearance of collections of information in proposed

rules.

Agencies shall submit collections of information contained in

proposed rules published for public comment in the Federal Register in

accordance with the following requirements:

(a) The agency shall include, in accordance with the requirements

in Sec. 1320.5(a)(1)(iv) and Sec. 1320.8(d)(1) and (3), in the preamble

to the Notice of Proposed Rulemaking a statement that the collections

of information contained in the proposed rule, and identified as such,

have been submitted to OMB for review under section 3507(d) of the Act.

The notice shall direct comments to the Office of Information and

Regulatory Affairs of OMB, Attention: Desk Officer for [name of

agency].

(b) All such submissions shall be made to OMB not later than the

day on which the Notice of Proposed Rulemaking is published in the

Federal Register, in such form and in accordance with such procedures

as OMB may direct. Such submissions shall include a copy of the

proposed regulation and preamble.

(c) Within 60 days of publication of the proposed rule, but subject

to paragraph (e) of this section, OMB may file public comments on

collection of information provisions. The OMB comments shall be in the

form of an OMB Notice of Action, which shall be sent to the Senior

Official or agency head, or their designee, and which shall be made a

part of the agency's rulemaking record.

(d) If an agency submission is not in compliance with paragraph (b)

of this section, OMB may, subject to paragraph (e) of this section,

disapprove the collection of information in the proposed rule within 60

days of receipt of the submission. If an agency fails to submit a

collection of information subject to this section, OMB may, subject to

paragraph (e) of this section, disapprove it at any time.

(e) OMB shall provide at least 30 days after receipt of the

proposed collection of information before submitting its comments or

making its decision, except as provided under Sec. 1320.13.

(f) When the final rule is published in the Federal Register, the

agency shall explain how any collection of information contained in the

final rule responds to any comments received from OMB or the public.

The agency shall include an identification and explanation of any

modifications made in the rule, or explain why it rejected the

comments. If requested by OMB, the agency shall include OMB's comments

in the preamble to the final rule.

[[Page 44992]]

(g) If OMB has not filed public comments under paragraph (c) of

this section, or has approved without conditions the collection of

information contained in a rule before the final rule is published in

the Federal Register, OMB may assign an OMB control number prior to

publication of the final rule.

(h) On or before the date of publication of the final rule, the

agency shall submit the final rule to OMB, unless it has been approved

under paragraph (g) of this section (and not substantively or

materially modified by the agency after approval). Not later than 60

days after publication, but subject to paragraph (e) of this section,

OMB shall approve, instruct the agency to make a substantive or

material change to, or disapprove, the collection of information

contained in the final rule. Any such instruction to change or

disapprove may be based on one or more of the following reasons, as

determined by OMB:

(1) the agency has failed to comply with paragraph (b) of this

section;

(2) the agency had substantially modified the collection of

information contained in the final rule from that contained in the

proposed rule without providing OMB with notice of the change and

sufficient information to make a determination concerning the modified

collection of information at least 60 days before publication of the

final rule; or

(3) in cases in which OMB had filed public comments under paragraph

(c) of this section, the agency's response to such comments was

unreasonable, and the collection of information is unnecessary for the

proper performance of the agency's functions.

(i) After making such decision to approve, to instruct the agency

to make a substantive or material change to, or disapprove, the

collection of information, OMB shall so notify the agency. If OMB

approves the collection of information or if it has not acted upon the

submission within the time limits of this section, the agency may

request, and OMB shall assign an OMB control number. If OMB disapproves

or instructs the agency to make substantive or material change to the

collection of information, it shall make the reasons for its decision

publicly available.

(j) OMB shall not approve any collection of information under this

section for a period longer than three years. Approval of such

collection of information will be for the full three-year period,

unless OMB determines that there are special circumstances requiring

approval for a shorter period.

(k) After receipt of notification of OMB's approval, instruction to

make a substantive or material change to, disapproval of a collection

of information, or failure to act, the agency shall publish a notice in

the Federal Register to inform the public of OMB's decision.

(l) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct or sponsor a collection of information unless the

collection of information displays a currently valid OMB control number

and the agency informs potential persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number.

Sec. 1320.12 Clearance of collections of information in current rules.

Agencies shall submit collections of information contained in

current rules that were published as final rules in the Federal

Register in accordance with the following procedures:

(a) In the case of a collection of information contained in a

published current rule which has been approved by OMB and has a

currently valid OMB control number, the agency shall:

(1) conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.8(d); and

(2) after having made a reasonable effort to seek public comment,

but no later than 60 days before the expiration date of the OMB control

number for the currently approved collection of information, submit the

collection of information for review and approval under this Part,

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

information that it has collected.

(b)(1) In the case of a collection of information contained in a

published current rule that was not required to be submitted for OMB

review under the Paperwork Reduction Act at the time the collection of

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

information is now subject to the Act and this Part, the agency shall:

(i) conduct the review established under Sec. 1320.8, including the

seeking of public comment under Sec. 1320.(8)(d); and

(ii) after having made a reasonable effort to seek public comment,

submit the collection of information for review and approval under this

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

information that it has collected.

(2) The agency may continue to conduct or sponsor the collection of

information while the submission is pending at OMB. In the case of a

collection of information not previously approved, approval shall be

granted for such period, which shall not exceed 60 days, unless

extended by the Director for an additional 60 days, and an OMB control

number assigned. Upon assignment of the OMB control number, and in

accordance with Sec. 1320.3(f) and Sec. 1320.5(b), the agency shall

display the number and inform the potential persons who are to respond

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

respond to the collection of information unless it displays a currently

valid OMB control number.

(c) On or before the day of submission to OMB under paragraphs (a)

or (b) of this section, the agency shall, in accordance with the

requirements set forth in Sec. 1320.5(a)(1)(iv), forward a notice to

the Federal Register stating that OMB review is being sought. The

notice shall direct requests for copies of the collection of

information and supporting documentation to the agency, and shall

request that comments be submitted to OMB within 30 days of the

notice's publication. The notice shall direct comments to the Office of

Information and Regulatory Affairs of OMB, Attention: Desk Officer for

[name of agency]. A copy of the notice submitted to the Federal

Register, together with the date of expected publication, shall be

included in the agency's submission to OMB.

(d) Within 60 days after receipt of the collection of information

or publication of the notice under paragraph (c) of this section,

whichever is later, OMB shall notify the agency involved of its

decision to approve, to instruct the agency to make a substantive or

material change to, or to disapprove, the collection of information,

and shall make such decision publicly available. OMB shall provide at

least 30 days for public comment after receipt of the proposed

collection of information before making its decision, except as

provided under Sec. 1320.13.

(e)(1) Upon approval of a collection of information, OMB shall

assign an OMB control number and an expiration date. OMB shall not

approve any collection of information for a period longer than three

years. Approval of any collection of information submitted under this

section will be for the full three-year period, unless OMB determines

that there are special circumstances requiring approval for a shorter

period.

(2) If OMB fails to notify the agency of its approval, instruction

to make substantive or material change, or disapproval within the 60-

day period, the agency may request, and OMB shall

[[Page 44993]]

assign without further delay, an OMB control number that shall be valid

for not more than one year.

(3) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may

not conduct or sponsor a collection of information unless the

collection of information displays a currently valid OMB control number

and the agency informs potential persons who are to respond to the

collection of information that such persons are not required to respond

to the collection of information unless it displays a currently valid

OMB control number.

(f)(1) If OMB disapproves a collection of information contained in

an existing rule, or instructs the agency to make a substantive or

material change to a collection of information contained in an existing

rule, OMB shall:

(i) publish an explanation thereof in the Federal Register; and

(ii) instruct the agency to undertake a rulemaking within a

reasonable time limited to consideration of changes to the collection

of information contained in the rule and thereafter to submit the

collection of information for approval or disapproval under

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

(iii) extend the existing approval of the collection of information

(including an interim approval granted under paragraph (b) of this

section) for the duration of the period required for consideration of

proposed changes, including that required for OMB approval or

disapproval of the collection of information under Sec. 1320.10 or

Sec. 1320.11, as appropriate.

(2) Thereafter, the agency shall, within a reasonable period of

time not to exceed 120 days, undertake such procedures as are necessary

in compliance with the Administrative Procedure Act and other

applicable law to amend or rescind the collection of information, and

shall notify the public through the Federal Register. Such notice shall

identify the proposed changes in the collections of information and

shall solicit public comment on retention, change, or rescission of

such collections of information. If the agency employs notice and

comment rulemaking procedures for amendment or rescission of the

collection of information, publication of the above in the Federal

Register and submission to OMB shall initiate OMB clearance procedures

under section 3507(d) of the Act and Sec. 1320.11. All procedures shall

be completed within a reasonable period of time to be determined by OMB

in consultation with the agency.

(g) OMB may disapprove, in whole or in part, any collection of

information subject to the procedures of this section, if the agency:

(1) has refused within a reasonable time to comply with an OMB

instruction to submit the collection of information for review;

(2) has refused within a reasonable time to initiate procedures to

change the collection of information; or

(3) has refused within a reasonable time to publish a final rule

continuing the collection of information, with such changes as may be

appropriate, or otherwise complete the procedures for amendment or

rescission of the collection of information.

(h)(1) Upon disapproval by OMB of a collection of information

subject to this section, except as provided in paragraph (f)(1)(iii) of

this section, the OMB control number assigned to such collection of

information shall immediately expire, and no agency shall conduct or

sponsor such collection of information. Any such disapproval shall

constitute disapproval of the collection of information contained in

the Notice of Proposed Rulemaking or other submissions, and also of the

preexisting information collection instruments directed at the same

collection of information and therefore constituting essentially the

same collection of information.

(2) The failure to display a currently valid OMB control number for

a collection of information contained in a current rule, or the failure

to inform the potential persons who are to respond to the collection of

information that such persons are not required to respond to the

collection of information unless it displays a currently valid OMB

control number, does not, as a legal matter, rescind or amend the rule;

however, such absence will alert the public that either the agency has

failed to comply with applicable legal requirements for the collection

of information or the collection of information has been disapproved,

and that therefore the portion of the rule containing the collection of

information has no legal force and effect and the public protection

provisions of 44 U.S.C. 3512 apply.

(i) Prior to the expiration of OMB's approval of a collection of

information in a current rule, OMB may decide on its own initiative,

after consultation with the agency, to review the collection of

information. Such decisions will be made only when relevant

circumstances have changed or the burden estimates provided by the

agency at the time of initial submission were materially in error. Upon

notification by OMB of its decision to review the collection of

information, the agency shall submit it to OMB for review under this

Part.

Sec. 1320.13 Emergency processing.

An agency head or the Senior Official, or their designee, may

request OMB to authorize emergency processing of submissions of

collections of information.

(a) Any such request shall be accompanied by a written

determination that:

(1) The collection of information:

(i) Is needed prior to the expiration of time periods established

under this Part; and

(ii) Is essential to the mission of the agency; and

(2) The agency cannot reasonably comply with the normal clearance

procedures under this Part because:

(i) Public harm is reasonably likely to result if normal clearance

procedures are followed;

(ii) An unanticipated event has occurred; or

(iii) The use of normal clearance procedures is reasonably likely

to prevent or disrupt the collection of information or is reasonably

likely to cause a statutory or court ordered deadline to be missed.

(b) The agency shall state the time period within which OMB should

approve or disapprove the collection of information.

(c) The agency shall submit information indicating that it has

taken all practicable steps to consult with interested agencies and

members of the public in order to minimize the burden of the collection

of information.

(d) The agency shall set forth in the Federal Register notice

prescribed by Sec. 1320.5(a)(1)(iv), unless waived or modified under

this section, a statement that it is requesting emergency processing,

and the time period stated under paragraph (b) of this section.

(e) OMB shall approve or disapprove each such submission within the

time period stated under paragraph (b) of this section, provided that

such time period is consistent with the purposes of this Act.

(f) If OMB approves the collection of information, it shall assign

a control number valid for a maximum of 90 days after receipt of the

agency submission.

Sec. 1320.14 Public access.

(a) In order to enable the public to participate in and provide

comments during the clearance process, OMB will ordinarily make its

paperwork docket files available for public inspection during normal

business hours. Notwithstanding other provisions of this Part, and to

the extent permitted by law,

[[Page 44994]]

requirements to publish public notices or to provide materials to the

public may be modified or waived by the Director to the extent that

such public participation in the approval process would defeat the

purpose of the collection of information; jeopardize the

confidentiality of proprietary, trade secret, or other confidential

information; violate State or Federal law; or substantially interfere

with an agency's ability to perform its statutory obligations.

(b) Agencies shall provide copies of the material submitted to OMB

for review promptly upon request by any person.

(c) Any person may request OMB to review any collection of

information conducted by or for an agency to determine, if, under this

Act and this Part, a person shall maintain, provide, or disclose the

information to or for the agency. Unless the request is frivolous, OMB

shall, in coordination with the agency responsible for the collection

of information:

(1) Respond to the request within 60 days after receiving the

request, unless such period is extended by OMB to a specified date and

the person making the request is given notice of such extension; and

(2) Take appropriate remedial action, if necessary.

Sec. 1320.15 Independent regulatory agency override authority.

(a) An independent regulatory agency which is administered by two

or more members of a commission, board, or similar body, may by

majority vote void:

(1) Any disapproval, instruction to such agency to make material or

substantive change to, or stay of the effectiveness of OMB approval of,

any collection of information of such agency; or

(2) An exercise of authority under Sec. 1320.10(g) concerning such

agency.

(b) The agency shall certify each vote to void such OMB action to

OMB, and explain the reasons for such vote. OMB shall without further

delay assign an OMB control number to such collection of information,

valid for the length of time requested by the agency, up to three

years, to any collection of information as to which this vote is

exercised. No override shall become effective until the independent

regulatory agency, as provided in Sec. 1320.5(b) and Sec. 1320.6(2),

has displayed the OMB control number and informed the potential persons

who are to respond to the collection of information that such persons

are not required to respond to the collection of information unless it

displays a currently valid OMB control number.

Sec. 1320.16 Delegation of approval authority.

(a) OMB may, after complying with the notice and comment procedures

of the Administrative Procedure Act, delegate OMB review of some or all

of an agency's collections of information to the Senior Official, or to

the agency head with respect to those components of the agency for

which he or she has not delegated authority.

(b) No delegation of review authority shall be made unless the

agency demonstrates to OMB that the Senior Official or agency head to

whom the authority would be delegate:

(1) Is sufficiently independent of program responsibility to

evaluate fairly whether proposed collections of information should be

approved;

(2) Has sufficient resources to carry out this responsibility

effectively; and

(3) Has established an agency review process that demonstrates the

prompt, efficient, and effective performance of collection of

information review responsibilities.

(c) OMB may limit, condition, or rescind, in whole or in part, at

any time, such delegations of authority, and reserves the right to

review any individual collection of information, or part thereof,

conducted or sponsored by an agency, at any time.

(d) Subject to the provisions of this Part, and in accordance with

the terms and conditions of each delegation as specified in Appendix A

to this part, OMB delegates review and approval authority to the

following agencies:

(1) Board of Governors of the Federal Reserve System; and

(2) Managing Director of the Federal Communications Commission.

Sec. 1320.17 Information collection budget.

Each agency's Senior Official, or agency head in the case of any

agency for which the agency head has not delegated responsibility under

the Act for any component of the agency to the Senior Official, shall

develop and submit to OMB, in such form, at such time, and in

accordance with such procedures as OMB may prescribe, an annual

comprehensive budget for all collections of information from the public

to be conducted in the succeeding twelve months. For good cause, OMB

may exempt any agency from this requirement.

Sec. 1320.18 Other authority.

(a) OMB shall determine whether any collection of information or

other matter is within the scope of the Act, or this Part.

(b) In appropriate cases, after consultation with the agency, OMB

may initiate a rulemaking proceeding to determine whether an agency's

collection of information is consistent with statutory standards. Such

proceedings shall be in accordance with the informal rulemaking

procedures of the Administrative Procedure Act.

(c) Each agency is responsible for complying with the information

policies, principles, standards, and guidelines prescribed by OMB under

this Act.

(d) To the extent permitted by law, OMB may waive any requirements

contained in this Part.

(e) Nothing in this Part shall be interpreted to limit the

authority of OMB under this Act, or any other law. Nothing in this Part

or this Act shall be interpreted as increasing or decreasing the

authority of OMB with respect to the substantive policies and programs

of the agencies.

Appendix A--Agencies with Delegated Review and Approval Authority

1. The Board of Governors of the Federal Reserve System

(a) Authority to review and approve collection of information

requests, collection of information requirements, and collections of

information in current rules is delegated to the Board of Governors

of the Federal Reserve System.

(1) This delegation does not include review and approval

authority over any new collection of information or any modification

to an existing collection of information that:

(i) Is proposed to be collected as a result of a requirement or

other mandate of the Federal Financial Institutions Examination

Council, or other Federal executive branch entities with authority

to require the Board to conduct or sponsor a collection of

information.

(ii) Is objected to by another Federal agency on the grounds

that agency requires information currently collected by the Board,

that the currently collected information is being deleted from the

collection, and the deletion will have a serious adverse impact on

the agency's program, provided that such objection is certified to

OMB by the head of the Federal agency involved, with a copy to the

Board, before the end of the comment period specified by the Board

on the Federal Register notices specified in paragraph (1)(3)(i) of

this section 1.

(iii) Would cause the burden of the information collections

conducted or sponsored by the Board to exceed by the end of the

fiscal year the Information Collection Budget allowance set by the

Board and OMB for the fiscal year-end.

(2) The Board may ask that OMB review and approve collections of

information covered by this delegation.

(3) In exercising delegated authority, the Board will:

(i) Provide the public, to the extent possible and appropriate,

with reasonable

[[Page 44995]]

opportunity to comment on collections of information under review prior

to taking final action approving the collection. Reasonable

opportunity for public comment will include publishing a notice in

the Federal Register informing the public of the proposed collection

of information, announcing the beginning of a 60-day public comment

period, and the availability of copies of the ``clearance package,''

to provide the public with the opportunity to comment. Such Federal

Register notices shall also advise the public that they may also

send a copy of their comments to the Federal Reserve Board and to

the OMB/OIRA Desk Officer.

(A) Should the Board determine that a new collection of

information or a change in an existing collection must be instituted

quickly and that public participation in the approval process would

defeat the purpose of the collection or substantially interfere with

the Board's ability to perform its statutory obligation, the Board

may temporarily approve of the collection of information for a

period not to exceed 90 days without providing opportunity for

public comment.

(B) At the earliest practical date after approving the temporary

extension to the collection of information, the Board will publish a

Federal Register notice informing the public of its approval of the

collection of information and indicating why immediate action was

necessary. In such cases, the Board will conduct a normal delegated

review and publish a notice in the Federal Register soliciting

public comment on the intention to extend the collection of

information for a period not to exceed three years.

(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve

Board with a copy of the Board's Federal Register notice not later

than the day the Board files the notice with the Office of the

Federal Register.

(iii) Assure that approved collections of information are

reviewed not less frequently than once every three years, and that

such reviews are normally conducted before the expiration date of

the prior approval. Where the review has not been completed prior to

the expiration date, the Board may extend the report, for up to

three months, without public notice in order to complete the review

and consequent revisions, if any. There may also be other

circumstances in which the Board determines that a three-month

extension without public notice is appropriate.

(iv) Take every reasonable step to conduct the review

established under 5 CFR 1320.8, including the seeking of public

comment under 5 CFR 1320.8(d). In determining whether to approve a

collection of information, the Board will consider all comments

received from the public and other agencies. The Board will not

approve a collection of information that it determines does not

satisfy the guidelines set forth in 5 CFR 1320.5(d)(2), unless it

determines that departure from these guidelines is necessary to

satisfy statutory requirements or other substantial need.

(v)(A) Assure that each approved collection of information

displays, as required by 5 CFR 1320.6, a currently valid OMB control

number and the fact that a person is not required to respond to a

collection of information unless it displays a currently valid OMB

control number.

(B) Assure that all collections of information, except those

contained in regulations, display the expiration date of the

approval, or, in case the expiration date has been omitted, explain

the decision that it would not be appropriate, under 5 CFR

1320.5(a)(1)(iii)(C), for a proposed collection of information to

display an expiration date.

(C) Assure that each collection of information, as required by 5

CFR 1320.8(b)(3), informs and provides fair notice to the potential

respondents of why the information is being collected; the way in

which such information is to be used; the estimated burden; whether

responses are voluntary, required to obtain or retain a benefit, or

mandatory; the confidentiality to be provided; and the fact that an

agency may not conduct or sponsor, and the respondent is not

required to respond to, a collection of information unless it

displays a currently valid OMB control number.

(vi) Assure that each approved collection of information,

together with a completed form OMB 83-I, a supporting statement, a

copy of each comment received from the public and other agencies in

response to the Board's Federal Register notice or a summary of

these comments, the certification required by 5 CFR 1320.9, and a

certification that the Board has approved of the collection of

information in accordance with the provisions of this delegation is

transmitted to OMB for incorporation into OMB's public docket files.

Such transmittal shall be made as soon as practical after the Board

has taken final action approving the collection. However, no

collection of information may be instituted until the Board has

delivered this transmittal to OMB.

(b) OMB will:

(1) Provide the Board in advance with a block of control numbers

which the Board will assign in sequential order to and display on,

new collections of information.

(2) Provide a written notice of action to the Board indicating

that the Board approvals of collections of information that have

been received by OMB and incorporated into OMB's public docket files

and an inventory of currently approved collections of information.

(3) Review any collection of information referred by the Board

in accordance with the provisions of section 1(a)(2) of this

Appendix.

(c) OMB may review the Board's paperwork review process under

the delegation. The Board will cooperate in carrying out such a

review. The Board will respond to any recommendations resulting from

such review and, if it finds the recommendations to be appropriate,

will either accept the recommendations or propose an alternative

approach to achieve the intended purpose.

(d) This delegation may, as provided by 5 CFR 1320.16(c), be

limited, conditioned, or rescinded, in whole or in part at any time.

OMB will exercise this authority only in unusual circumstances and,

in those rare instances, will do so, subject to the provisions of 5

CFR 1320.10(f) and 1320.10(g), prior to the expiration of the time

period set for public comment in the Board's Federal Register

notices and generally only if:

(1) Prior to the commencement of a Board review (e.g., during

the review for the Information Collection Budget). OMB has notified

the Board that it intends to review a specific new proposal for the

collection of information or the continued use (with or without

modification) of an existing collection;

(2) There is substantial public objection to a proposed

information collection: or

(3) OMB determines that a substantially inadequate and

inappropriate lead time has been provided between the final

announcement date of the proposed requirement and the first date

when the information is to be submitted or disclosed. When OMB

exercises this authority it will consider that the period of its

review began the date that OMB received the Federal Register notice

provided for in section 1(a)(3)(i) of this Appendix.

(e) Where OMB conducts a review of a Board information

collection proposal under section 1(a)(1), 1(a)(2), or 1(d) of this

Appendix, the provisions of 5 CFR 1320.13 continue to apply.

2. The Managing Director of the Federal Communications Commission

(a) Authority to review and approve currently valid (OMB-

approved) collections of information, including collections of

information contained in existing rules, that have a total annual

burden of 5,000 hours or less and a burden of less than 500 hours

per respondent is delegated to the Managing Director of the Federal

Communications Commission.

(1) This delegation does not include review and approval

authority over any new collection of information, any collections

whose approval has lapsed, any substantive or material modification

to existing collections, any reauthorization of information

collections employing statistical methods, or any information

collections that exceed a total annual burden of 5,000 hours or an

estimated burden of 500 hours per respondent.

(2) The Managing Director may ask that OMB review and approve

collections of information covered by the delegation.

(3) In exercising delegated authority, the Managing Director

will:

(i) Provide the public, to the extent possible and appropriate,

with reasonable opportunity to comment on collections of information

under review prior to taking final action on reauthorizing an

existing collection. Reasonable opportunity for public comment will

include publishing a notice in the Federal Register and an FCC

Public Notice informing the public that a collection of information

is being extended and announcing the beginning of a 60-day comment

period, notifying the public of the ``intent to extend an

information collection,'' and providing the public with the

opportunity to comment on the need for the information, its

practicality, the accuracy of the agency's burden estimate, and on

ways to minimize burden, including the use of automated, electronic,

mechanical, or other

[[Page 44996]]

technological collection techniques or other forms of information

technology, e.g., permitting electronic submission of responses.

Such notices shall advise the public that they may also send a copy

of their comments to the OMB/Office of Information and Regulatory

Affairs desk officer for the Commission.

(A) Should the Managing Director determine that a collection of

information that falls within the scope of this delegation must be

reauthorized quickly and that public participation in the

reauthorization process interferes with the Commission's ability to

perform its statutory obligation, the Managing Director may

temporarily reauthorize the extension of an information collection,

for a period not to exceed 90 days, without providing opportunity

for public comment.

(B) At the earliest practical date after granting this temporary

extension to an information collection, the Managing Director will

conduct a normal delegated review and publish a Federal Register

notice soliciting public comment on its intention to extend the

collection of information for a period not to exceed three years.

(ii) Assure that approved collections of information are

reviewed not less frequently than once every three years and that

such reviews are conducted before the expiration date of the prior

approval. When the review is not completed prior to the expiration

date, the Managing Director will submit the lapsed information

collection to OMB for review and reauthorization.

(iii) Assure that each reauthorized collection of information

displays an OMB control number and, except for those contained in

regulations or specifically designated by OMB, displays the

expiration date of the approval.

(iv) Inform and provide fair notice to the potential

respondents, as required by 5 CFR 1320.8(b)(3), of why the

information is being collected; the way in which such information is

to be used; the estimated burden; whether responses are voluntary,

required, required to obtain or retain a benefit, or mandatory; the

confidentiality to be provided; and the fact that an agency may not

conduct or sponsor, and the respondent is not required to respond

to, a collection of information unless it displays a currently valid

OMB control number.

(v) Transmit to OMB for incorporation into OMB's public docket

files, a report of delegated approval certifying that the Managing

Director has reauthorized each collection of information in

accordance with the provisions of this delegation. The Managing

Director shall also make the certification required by 5 CFR 1320.9,

e.g., that the approved collection of information reduces to the

extent practicable and appropriate, the burden on respondents,

including, for small business, local government, and other small

entities, the use of the techniques outlined in the Regulatory

Flexibility Act. Such transmittals shall be made no later than 15

days after the Managing Director has taken final action

reauthorizing the extension of an information collection.

(vi) Ensure that the personnel in the Commission's functional

bureaus and offices responsible for managing information collections

receive periodic training on procedures related to meeting the

requirements of this part and the Act.

(b) OMB will:

(1) Provide notice to the Commission acknowledging receipt of

the report of delegated approval and its incorporation into OMB's

public docket files and inventory of currently approved collections

of information.

(2) Act upon any request by the Commission to review a

collection of information referred by the Commission in accordance

with the provisions of section 2(a)(2) of this Appendix.

(3) Periodically assess, at its discretion, the Commission's

paperwork review process as administered under the delegation. The

Managing Director will cooperate in carrying out such an assessment.

The Managing Director will respond to any recommendations resulting

from such a review and, if it finds the recommendations to be

appropriate, will either accept the recommendation or propose an

alternative approach to achieve the intended purpose.

(c) This delegation may, as provided by 5 CFR 1320.16(c), be

limited, conditioned, or rescinded, in whole or in part at any time.

OMB will exercise this authority only in unusual circumstances.

[FR Doc. 95-21235 Filed 8-28-95; 8:45 am]

BILLING CODE 3110-01-P