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[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to end]
[Revised as of January 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1320.1]
[Page 141]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER III--OFFICE OF MANAGEMENT
AND BUDGET
PART 1320--CONTROLLING PAPERWORK BURDENS ON THE PUBLIC--Table of Contents
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.
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
[[Page 142]]
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.
[[Page 143]]
(ii) Any collection of information addressed to all
or a substantial
majority of an industry is presumed to involve ten or more persons.
(d) Conduct or Sponsor. A Federal agency is considered
to ``conduct
or sponsor'' a collection of information if the agency collects the
information, causes another agency to collect the information, contracts
or enters into a cooperative agreement with a person to collect the
information, or requires a person to provide information to another
person, or in similar ways causes another agency, contractor, partner in
a cooperative agreement, or person to obtain, solicit, or require the
disclosure to third parties or the public of information by or for an
agency. A collection of information undertaken by a recipient of a
Federal grant is considered to be ``conducted or sponsored'' by an
agency only if:
(1) The recipient of a grant is conducting the collection
of
information at the specific request of the agency; or
(2) The terms and conditions of the grant require specific
approval
by the agency of the collection of information or collection procedures.
(e) Director means the Director of OMB, or his or her
designee.
(f) Display means:
(1) In the case of forms, questionnaires, instructions,
and other
written collections of information sent or made available to potential
respondents (other than in an electronic format), to place the currently
valid OMB control number on the front page of the collection of
information;
(2) In the case of forms, questionnaires, instructions,
and other
written collections of information sent or made available to potential
respondents in an electronic format, to place the currently valid OMB
control number in the instructions, near the title of the electronic
collection instrument, or, 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.
[[Page 144]]
(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 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
[[Page 145]]
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
[[Page 146]]
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
(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
[[Page 147]]
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;
[[Page 148]]
(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 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.
[[Page 149]]
(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;
[[Page 150]]
(6) A test of the collection of information through
a pilot program,
if appropriate; and
(7) A plan for the efficient and effective management
and use of the
information to be collected, including necessary resources.
(b) Such office shall ensure that each collection of
information:
(1) Is inventoried, displays a currently valid OMB control
number,
and, if appropriate, an expiration date;
(2) Is reviewed by OMB in accordance with the clearance
requirements
of 44 U.S.C. 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
[[Page 151]]
(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 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.
[[Page 152]]
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
[[Page 153]]
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.
(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.
[[Page 154]]
(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
[[Page 155]]
submitted to OMB within 30 days of the notice's publication. The notice
shall direct comments to the Office of Information and Regulatory
Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of
the notice submitted to the Federal Register, together with the date of
expected publication, shall be included in the agency's submission to
OMB.
(d) Within 60 days after receipt of the collection of information or
publication of the notice under paragraph (c) of this section, whichever
is later, OMB shall notify the agency involved of its decision to
approve, to instruct the agency to make a substantive or material change
to, or to disapprove, the collection of information, and shall make such
decision publicly available. OMB shall provide at least 30 days for
public comment after receipt of the proposed collection of information
before making its decision, except as provided under Sec. 1320.13.
(e)(1) Upon approval of a collection of information, OMB shall
assign an OMB control number and an expiration date. OMB shall not
approve any collection of information for a period longer than three
years. Approval of any collection of information submitted under this
section will be for the full three-year period, unless OMB determines
that there are special circumstances requiring approval for a shorter
period.
(2) If OMB fails to notify the agency of its approval, instruction
to make substantive or material change, or disapproval within the 60-day
period, the agency may request, and OMB shall assign without further
delay, an OMB control number that shall be valid for not more than one
year.
(3) As provided in Sec. 1320.5(b) and Sec. 1320.6(a), an agency may
not conduct or sponsor a collection of information unless the collection
of information displays a currently valid OMB control number and the
agency informs potential persons who are to respond to the collection of
information that such persons are not required to respond to the
collection of information unless it displays a currently valid OMB
control number.
(f)(1) If OMB disapproves a collection of information contained in
an existing rule, or instructs the agency to make a substantive or
material change to a collection of information contained in an existing
rule, OMB shall:
(i) Publish an explanation thereof in the Federal Register; and
(ii) Instruct the agency to undertake a rulemaking within a
reasonable time limited to consideration of changes to the collection of
information contained in the rule and thereafter to 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
[[Page 156]]
(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.
[[Page 157]]
Sec. 1320.14 Public access.
(a) In order to enable the public to participate in and provide
comments during the clearance process, OMB will ordinarily make its
paperwork docket files available for public inspection during normal
business hours. Notwithstanding other provisions of this Part, and to
the extent permitted by law, requirements to publish public notices or
to provide materials to the public may be modified or waived by the
Director to the extent that such public participation in the approval
process would defeat the purpose of the collection of information;
jeopardize the confidentiality of proprietary, trade secret, or other
confidential information; violate State or Federal law; or substantially
interfere with an agency's ability to perform its statutory obligations.
(b) Agencies shall provide copies of the material submitted to OMB
for review promptly upon request by any person.
(c) Any person may request OMB to review any collection of
information conducted by or for an agency to determine, if, under this
Act and this part, a person shall maintain, provide, or disclose the
information to or for the agency. Unless the request is frivolous, OMB
shall, in coordination with the agency responsible for the collection of
information:
(1) Respond to the request within 60 days after receiving the
request, unless such period is extended by OMB to a specified date and
the person making the request is given notice of such extension; and
(2) Take appropriate remedial action, if necessary.
Sec. 1320.15 Independent regulatory agency override authority.
(a) An independent regulatory agency which is administered by two or
more members of a commission, board, or similar body, may by majority
vote void:
(1) Any disapproval, instruction to such agency to make material or
substantive change to, or stay of the effectiveness of OMB approval of,
any collection of information of such agency; or
(2) An exercise of authority under Sec. 1320.10(g) concerning such
agency.
(b) The agency shall certify each vote to void such OMB action to
OMB, and explain the reasons for such vote. OMB shall without further
delay assign an OMB control number to such collection of information,
valid for the length of time requested by the agency, up to three years,
to any collection of information as to which this vote is exercised. No
override shall become effective until the independent regulatory agency,
as provided in Sec. 1320.5(b) and Sec. 1320.6(2), has displayed the OMB
control number and informed the potential persons who are to respond to
the collection of information that such persons are not required to
respond to the collection of information unless it displays a currently
valid OMB control number.
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
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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 to Part 1320--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 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
[[Page 159]]
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
[[Page 160]]
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 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
[[Page 161]]
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.
[[Page 163]]
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