19. Paperwork Reduction Act

• Pages: 981-1071

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PAPERWORK REDUCTION ACT

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981

Paperwork

Reduction

Act

Citations:

44 U.S.C. §§3501-3521 (2000 & Supp. II 2002); enacted December 11,

1980 by Pub. L. No. 96-511, 94 Stat. 2812, amended October 18, 1986 by

Pub. L. No. 99-591, title I, §101(m), 100 Stat. 3341-308, 3341-335; amended

and re-codified May 22, 1995 by Pub. L. No. 104-13, §2, 109 Stat. 163;

amended Oct. 30, 2000, by Pub. L. 106-398, Sec. 1 [[div. A], title X,

§§1064(a)-(b)], 114 Stat. 1654, 1654A-275; amended June 28, 2002, by

Pub. L. No. 107-198, §§2-3, 116 Stat. 732; amended August 21, 2002, by

Pub. L. No. 107-217, §3(l), 116 Stat. 1301; amended November 25, 2002 by

Pub. L. No. 107-296, §1005(c), 116 Stat. 2273; amended December 17,

2002 by Pub. L. No. 107-347, title III, §305(c)(3), 116 Stat. 2961.

Lead Agency:

The Office of Information and Regulatory Affairs (OIRA), Office of

Management and Budget, Eisenhower Executive Office Building, 1650 Penn-

sylvania Avenue NW, Washington, DC 20502, (202) 395-4852.

Overview:

The Paperwork Reduction Act has as its main purposes to “minimize the

paperwork burden for individuals, small businesses, educational and non-

profit institutions, Federal contractors, State, local and tribal governments,

and other persons . . . ; ensure the greatest possible public benefit . . . of

information collected. . . ; [and] and minimize the cost to the Federal Gov-

ernment of the creation, collection, maintenance, use, dissemination, and

disposition of information . . . .” 44 U.S.C. §3501. The Act statutorily estab-

lished the Office of Information and Regulatory Affairs (OIRA) in the Office

of Management and Budget (OMB), and assigned it responsibility for coordi-

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nating government information policies, including approving agency collec-

tions of information. The Act applies to all agencies in the executive branch,

as well as to the independent regulatory agencies. Only very narrow func-

tions are exempted from its coverage: (1) federal criminal matters or actions;

(2) civil and administrative actions, and investigations of specified individu-

als or entities; (3) compulsory process issued in connection with antitrust

proceedings; and (4) federal intelligence activities carried out under presi-

dential executive order. §3518.

Basic Clearance Requirement. The Act assigns to OIRA the function

of approving information collections. The Act provides that agencies “shall

not conduct or sponsor the collection of information” without first obtaining

the actual or inferred approval of the OMB Director. §3507(a)(2). The Act

(§3502(3)) defines “collection of information” as:

The obtaining, causing to be obtained, soliciting, or requiring the

disclosure to third parties or the public, of facts or opinions by or for

an agency, regardless of form or format, calling for either—

(i) answers to identical questions posed to, or identical reporting or

recordkeeping requirements imposed on, ten or more persons, other

than agencies, instrumentalities, or employees of the United States; or

(ii) answers to questions posed to agencies instrumentalities, or em-

ployees of the United States which are to be used for general statis-

tical purposes.

Note that the 1995 Amendments added “to third parties” in §3502(3) in

order to overrule the holding of Dole v. United Steelworkers of America, 494

U.S. 26 (1990).

The Act forbids OMB to approve any information collection for a period

of more than one year at a time. §3507(c)(3)(C). Failure to obtain OMB

approval of a collection of information triggers operation of the Act’s “public

protection provision,” §3512, which provides that no person shall be subject

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

subject to this subchapter if—(1) the collection of information does not dis-

play a valid control number assigned by the Director [of OMB] . . . ; or (2)

the agency fails to inform the person who is to respond to the collection of

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

information unless it displays a valid control number.

Clearance Procedure. The Act provides a general set of clearance pro-

cedures for approving agency information collections, with more specific

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procedures prescribed for information collections imposed through notice-

and-comment rulemakings.

Section 3507(d) of the Act prescribes the following procedure for infor-

mation collections contained in rules promulgated following notice and com-

ment:

•Each agency shall forward to OMB a copy of any proposed rule

which contains a collection of information, and any information that

OMB deems necessary to make the determination. This information

must be transmitted no later than publication of the notice of pro-

posed rulemaking (NPRM) in the Federal Register.

•Within 60 days after the notice of proposed rulemaking is published

in the Federal Register, OMB may file public comments on the col-

lection of information contained in the proposed rule.

•When a final rule is published in the Federal Register, the agency

shall explain how any collection of information contained in the

final rule responds to the comments filed by OMB or the public, and

the reason the comments were rejected.

•If OMB has received notice and failed to comment on an agency rule

within 60 days after the notice of proposed rulemaking, OMB may

not disapprove any collection of information specifically contained

in that rule.

•However, OMB may disapprove a collection of information where

(A) the collection of information was not specifically required by an

agency rule; (B) the agency failed to comply with the submission

requirements; (C) OMB finds within 60 days after publication of the

final rule that the agency’s response to OMB’s comments were un-

reasonable; or (D) OMB determines the agency has substantially

modified the collection of information in the final rule without giv-

ing OMB 60 days to review the modified requirement.

•OMB’s decision to disapprove the collection of information in the

rule, and its reasons for that decision, must be made publicly avail-

able and include an explanation of the reasons for such decision. But

OMB’s decision to approve or not act upon a rule is not subject to

judicial review.

OMB’s regulations implementing the Act (5 C.F.R. Part 1320) have added

certain requirements to the clearance process for collections of information

contained in proposed agency rules (5 C.F.R. §1320.11), current agency rules