Paperwork Reduction Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 999-1068

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PAPERWORK REDUCTION ACT

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999

Paperwork

Reduction

Act

Citations:

44 U.S.C. §§ 3501–3521 (2012); enacted Dec. 11, 1980, by Pub. L. No.

96-511, 94 Stat. 2812, amended Oct. 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 Aug. 21, 2002, by Pub. L. No. 107-217, § 3(1), 116

Stat. 1301; amended Nov. 25, 2002, by Pub. L. No. 107-296, § 1005(c), 116

Stat. 2273; amended Dec. 17, 2002, by Pub. L. No. 107-347, title III, §

305(c)(3), 116 Stat. 2961; amended Dec. 20, 2006, by Pub. L. No. 109-435,

Title VI, § 604(e), 120 Stat. 3242; amended July 30, 2008, by Pub. L. No.

110-289, Div. A, Title II, § 1216(e), 122 Stat. 2792; amended July 21, 2010,

by Pub. L. No. 111-203, Title III, Subtitle A, § 315, Title X, Subtitle H, §

1100D, 124 Stat. 1524, 124 Stat. 2111.

Lead Agency:

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

Management and Budget, 725 17th St. NW, Washington, DC 20503, (202)

395-4852.

Overview:

One of the main purposes of The Paperwork Reduction Act is to “mini-

mize the paperwork burden for individuals, small businesses, educational and

nonprofit institutions, Federal contractors, State, local and tribal govern-

ments, and other persons . . . ; ensure the greatest possible public benefit . . .

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

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

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

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

Office of Management and Budget (OMB) and assigned it responsibility for

coordinating government information policies, including approving agency

collections of information. The Act applies to all agencies in the executive

branch, as well as to the independent regulatory agencies. Only very narrow

functions are exempted from its coverage: (1) federal criminal matters or

actions; (2) civil and administrative actions and investigations of specified

individuals or entities; (3) compulsory process issued in connection with an-

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

presidential executive order. 44 U.S.C. § 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 statisti-

cal purposes.

The 1995 Amendments amended the definition of “collection of infor-

mation” in § 3502(3) explicitly to include requiring persons to collect infor-

mation for the purpose of disclosing it to the public or third parties as opposed

to federal agencies only, thereby overruling the outcome in Dole v. United

Steelworkers of America, 494 U.S. 26 (1990).

The Act forbids OMB from approving any information collection for a

period of more than three years. § 3507(g). Failure to obtain OMB approval

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

tion provision,” § 3512, which provides that “no person shall be subject to

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

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PAPERWORK REDUCTION ACT

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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.” Although there have

been numerous attempts to utilize the public protection provision to chal-

lenge agency collections of information or as a defense to actions for the

failure to file required documents or for filing false information, they have

been unsuccessful almost without exception. Indeed, the only exceptions ap-

pear to be two cases prosecuting persons for mining on Forest Service land

without having filed the required plan of operations, a requirement that did

not contain a valid control number. See United States v. Hatch, 919 F.2d

1394 (9th Cir. 1990); United States v. Smith, 866 F.2d 1092 (9th Cir.1989).

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

cedures for approving agency information collections, with more specific

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