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OFFICE OF MANAGEMENT AND BUDGET
AGENCY: Office of Management and Budget, Executive Office of the President.
5 CFR Part 1320
Control of Paperwork Burdens on the Public; Regulatory Changes Reflecting
Amendments to the Paperwork Reduction Act
53 FR 16618
May 10, 1988
ACTION: Final rule.
SUMMARY: This rule implements the amendments to the Paperwork Reduction Act of 1980 made by the Paperwork
Reduction Reauthorization Act of 1986. In amendments to 44 U.S.C. 3507, Congress sought to enable the public to par-
ticipate more fully and meaningfully in the Federal paperwork review process. Consistent with the purpose of these
legislative amendments, this rule requires agencies (1) to include, in the Federal Register notice that indicates submis-
sion to the Office of Management and Budget of an information collection clearance package, an estimate of the aver-
age burden hours per response and -- when seeking expedited OMB review -- a copy of the collection of information;
and (2) to indicate on each collection of information (or any related instructions) the estimated average burden hours per
response, together with a request that respondents direct to the agency and OMB any comments on the accuracy of the
estimate and suggestions for reducing the burden. In an amendment to 44 U.S.C. 3502(11), Congress also clarified the
applicability of the Paperwork Reduction Act to collections of information contained in proposed and current regula-
tions.
EFFECTIVE DATE: June 9, 1988.
FOR FURTHER INFORMATION CONTACT: Mr. Jefferson B. Hill, Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503 (202/395-3176).
TEXT: SUPPLEMENTARY INFORMATION:
A. Background
The Office of Management and Budget (OMB) issued 5 CFR Part 1320 -- Controlling Paperwork Burdens on the
Public -- on March 31, 1983 (48 FR 13666). This rule implemented provisions of the Paperwork Reduction Act of 1980
(Pub. L. 96-511, 44 U.S.C. Chapter 35) concerning agency responsibilities for obtaining OMB approval of their collec-
tions of information, and other paperwork control functions.
The Paperwork Reduction Reauthorization Act of 1986 (section 101(m) [Title VIII, Part A] of Pub. L. 99-500 (Oc-
tober 18, 1986) and 99-591 (October 30, 1986), 100 Stat. 1783-335, 3341-335) amended the Paperwork Reduction Act
of l980, effective October 30, 1986. As a result of these legislative amendments, OMB published proposed changes to 5
CFR Part 1320 in a Notice of Proposed Rulemaking (NPRM) on July 23, 1987 (52 FR 27768).
In response to this NPRM, OMB has received comments from 19 Federal agencies and 49 members of the public.
Each comment has been considered in preparing this final rule. In developing these amendments to 5 CFR Part 1320,
OMB has also relied upon its seven years of practical experience in administering the Paperwork Reduction Act of
1980, and upon its four and a half years of implementing 5 CFR Part 1320. Significant comments received in response
to the NPRM, and significant changes made in the amendments proposed therein, are discussed in detail below.
As a convenience to those wishing to use 5 CFR Part 1320, OMB is reprinting the entire Part as it is now amended.
Page 2
B. New Section 1320.21 -- Agency Disclosure of Estimated Burden
In the NPRM, OMB proposed adding a new § 1320.21 -- "Agency Display of Estimated Burden." (See proposed
amendment 24, 52 FR at 27772.) This section requires agencies to indicate on each instrument for the collection of in-
formation the estimated average burden hours per response, together with a request that the public direct any comments
concerning the accuracy of this burden estimate to the agency and to OMB's Office of Information and Regulatory Af-
fairs (OIRA). This proposal is intended to facilitate agency management of its collections of information, to reduce pa-
perwork burdens on the public, and to encourage more meaningful public participation in the paperwork reduction proc-
ess. As discussed below, the final regulation retains this provision with some modification.
This section drew many comments. The majority of the public comments supported this proposal, citing the reasons
given in the preamble to the proposed rule (52 FR at 27769-27770). However, several public comments and agency
comments expressed concerns that biased or skewed responses would be received from the public (e.g., only those tak-
ing longer than average would respond), that benefits of collections of information were being ignored (e.g., beneficiar-
ies of collections of information are not always the respondents), and that the costs to implement this section were too
high.
OMB does not find these arguments persuasive. First, since the Act's goal is to minimize the paperwork burden on
the public, it is only logical that agencies and OMB, in implementing the Act, need the input of those respondents who
are most burdened by a collection of information. As one comment stated, "[s]uch complaints are not intended to pro-
vide a statistically valid sample of the burden, but should provide a warning of paperwork burden that may not be justi-
fied in light of the perceived benefits" (Comment of National Security Industrial Association).
Second, this proposal does not ignore the benefits of collections of information. Agencies are already required, as
part of the paperwork clearance process, to justify the uses and explain the benefits of proposed collections of informa-
tion to OMB. The affected public has the opportunity to supplement agency statements of need and benefit, as well as to
point out the reporting burdens involved. Moreover, these descriptions of need and benefit are typically in instructions,
in regulatory preambles, and in the required Federal Register notices. n1
n 1 OMB believes that the American Bar Association (ABA) Section of Administrative Law excellently
captured these points when it stated that:
"We are aware of the arguments that this display would emphasize only the burden of the collection, not its
benefits, and that the responses and complaints that the agency or OMB might receive from the public as a result
might be skewed.
"While there is some merit to this argument, we believe that the benefits to be derived from the display of
the burden outweigh any negative effects. Accurate burden estimates for collections of information are critical to
the calculus to be applied under the Paperwork Reduction Act. At the same time, agencies have a natural ten-
dency to underrate the burden they impose on their respondents. Those who must comply with the collections
are in the best position to determine the burden associated with them, but no one wants to impose another report-
ing requirement on these respondents to collect the burden information. A display of the estimated burden on the
collection itself is a good compromise solution, because it is reasonable to expect that if the estimate is signifi-
cantly awry, respondents will bring this to the agency's or OMB's attention. In this way, over time, the burden
estimates can be refined."
Third, the cost of this new procedure has not been found to be high by the one Department (Interior) currently test-
ing this procedure on a trial basis. A legitimate cost issue, however, does arise with the possible redesign of forms. For
many forms, inclusion of this notice should require only a modest rearrangement of the requested data items; for those
forms that cannot be easily reformatted, agencies may include this notice on the instruction sheet or on a separate, at-
tached piece of paper. To allow adequate time to carry this out, OMB amends § 1320.21(c) to make this requirement
applicable only to collections of information and their instructions printed or otherwise reproduced (or newly communi-
cated or transmitted to the public by electronic or other means) after July 1, 1988.
There were a number of other comments on this proposed disclosure notice. Several requested clarification on
whether this notice requirement applies to collections of information contained in or imposed by regulations submitted
for review under § § 1320.12 (e.g., those "interim final" rules) and 1320.13. Section 1320.21 does apply to such collec-
tions of information because they are among the most burdensome imposed by the Federal government.
Page 3
Section 1320.21, however, does not apply to collections of information in current regulations that are only submit-
ted for OMB review under § 1320.14. When an agency submits an information collection contained in a current regula-
tion for review under § 1320.14, the agency does not propose changes to the current regulation, and therefore does not,
as part of the clearance process, include the disclosure notice in either the text or preamble to the regulation. Instead, the
agency provides the burden hour estimate and request for public comments as part of the Federal Register notice that
indicates submission to OMB of the information collection clearance package. An agency need not engage in rulemak-
ing solely to include the burden estimate and request for comments required by § 1320.21, nor need an agency engage
in rulemaking every time it revises burden estimates for collections of information contained in a current regulation,
unless the regulation itself otherwise undergoes regulatory amendment.
A comment requested clarification on whether the notice should be placed in the regulation's preamble or text. As
proposed, § 1320.21(b) provides that "the agency may display the burden estimate and request for comments * * * at
the beginning of the preamble to the proposed or final rule that contains the collection of information." On the other
hand, in the existing rule, § 1320.7(f) already defines "display," as that term is used in this rule, to require that the
OMB control number be published as part of the regulation's text, both when submitted for OMB review under §
1320.13 and when issued in final. n2 To eliminate this inconsistency between these two provisions, and to clarify the
meaning of § 1320.21(b), OMB is replacing the references to "display" in § 1320.21 with the words "disclose" and
"place." By "beginning of the preamble", OMB means at or near the beginning of the "SUPPLEMENTARY
INFORMATION" section of the proposed or final rule containing the collection of information.
n 2 With the deletion of the definition of "collection of information requirement," the definition of "display"
is now found in § 1320.7(e). See proposed amendment 8, 52 FR at 27771.
One comment recommended that the burden estimate and the request for comments be placed both in the text or
preamble of the regulation containing the collection of information and also on the forms or other information collection
instruments developed or relied upon to implement the regulatory collection of information. OMB agrees, and amends §
1320.21(b) accordingly.
In the "SUPPLEMENTARY INFORMATION" section of the NPRM, OMB also set forth two possible standard
formats for the disclosure notice, and asked whether a standard format should be required by regulation (52 FR at
27770). Responses were received both supporting and opposing inclusion of the standard format in the rule. One com-
ment, with which OMB agrees, recommended placing one particular provision of the standard format into the rule. This
change to § 1320.21(a)(2) requires agencies to request from the public not only comments concerning the accuracy of
the burden estimates, but also suggestions for reducing the burden itself.
To maintain needed agency flexibility, OMB has decided not to set forth a specific standard format in the rule.
Based on public comment, however, OMB recommends that agencies adopt the standard formats, as set forth below.
This agency disclosure notice should be included as part of each collection of information submitted for OMB review
under the Act. Any change from the alternative formats set forth below should be explained in the information collec-
tion clearance package:
Public reporting burden for this collection of information is estimated to average XX hours [or minutes] per re-
sponse, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection of information. Send comments regarding this burden esti-
mate or any other aspect of this collection of information, including suggestions for reducing this burden, to [title and
address of agency component]; and to the Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503.
Or
Public reporting burden for this collection of information is estimated to vary from XX to XX hours [or minutes]
per response, with an average of XX hours [or minutes] per response, including time for reviewing instructions, search-
ing existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of
information. Send comments regarding the burden estimate or any other aspect of this collection of information, includ-
ing suggestions for reducing this burden, to [title and address of agency component]; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
Page 4
C. 44 U.S.C. 3507 -- Public Notice
1. In new § 1320.15(b), OMB proposed a new procedure for agencies to follow when requesting an expedited re-
view (faster than 60 days from the date of submission). (See proposed amendment 20, 52 FR at 27772.) This proposal
was designed to ensure maximum public participation in the paperwork review process. New § 1320.25(b) would re-
quire an agency seeking expedited review to include, as part of its Federal Register notice, a copy of the collection of
information, together with any related instructions, for which it seeks OMB approval. An agency would also have to
indicate the time period within which it is asking OMB to take action. As described below, the final regulation retains
this requirement with some modification.
Proposed new § 1320.15(b) generated much comment, with almost all of the public comments supporting it and
most agency comments opposing it. The agencies' major concern was the potential cost and burden it would impose on
them. While there will be a cost (and administrative burden) to the agencies, OMB believes that this is more than offset
by the requirement's enhancement of public participation in the paperwork process. Moreover, because this additional
cost or burden in § 1320.15(b) is imposed only when agencies seek expedited review, agencies may avoid the cost or
burden entirely merely by allotting sufficient time for nonexpedited review.
Several comments expressed concern about how this new § 1320.15(b) would affect collections of information
contained in proposed regulations (i.e., those submitted for OMB review under § 1320.13). Such collections of infor-
mation are not subject to § 1320.15(b). Section 1320.13 applies to collections of information contained in proposed
rules published for public comment in the Federal Register. Such publication itself offers the public the opportunity to
comment. To impose a second publication requirement in § 1320.15(b) would be duplicative. OMB amends § 1320.15
by stating more clearly that only subsection (a), and not subsection (b), is applicable to § 1320.13.
Other comments raised concerns about implementation, such as informal requests for quick review action. This
concern is best handled on a case-by-case basis. n3 If agencies know, in advance of the submission to OMB, that they
will be requesting a quick review of a proposed collection of information, they should assume it will be treated like a
request for expedited OMB review under § 1320.18(g), and they should prepare the required Federal Register notice
and comply with new § 1320.15(b).
n 3 One comment asked how to handle irregularly shaped forms. Such issues should also be discussed with
OMB and handled on a case-by-case basis.
Agencies may also utilize the current emergency review procedures in § 1320.18(a)-(f).
Several public comments suggested procedural changes to the required Federal Register notice. First, they sug-
gested delaying the start of the OMB review period until the notice is published. In order to prevent excessive delay in
an agency's collection of needed information, however, the Paperwork Reduction Act generally requires OMB review to
be concluded within sixty (and in some cases, ninety) days "of receipt" of a collection of information (44 U.S.C.
3507(b)).
Second, the public comments suggested that OMB establish a minimum review period. In contrast, several agencies
raised a concern that the standard OMB review period would now become 60 days from receipt of the agency submis-
sion. As a general matter, this is OMB's goal, mainly to provide adequate time for public participation in the review
process. Agencies should take this time period into consideration when setting internal agency timetables for the prepa-
ration of OMB review submissions. To ensure that the public does receive adequate notice, agencies should also take
special care to comply with the provisions in § § 1320.12(a), 1320.13(b), and 1320.14(b), which require agencies to
forward to the Federal Register and to OMB, on or before the day of actual submission to OMB, the public notice indi-
cating submission of an agency's information collection clearance package.
Of course, emergency and expedited review procedures remain in place to handle special, and uncontrollable, cir-
cumstances. For example, OMB takes note of the fact that for certain types of information collections, such as biomedi-
cal research studies, normal review periods may be far less than 60 days.
One concern that was raised involves requests for expedited review of collections of information contained in "in-
terim final" regulations, referred to in one comment as "non-notice" regulations. In some instances, these regulations are
tied to agency enforcement actions. Depending on the nature of the enforcement action involved, pre-action disclosure
of the underlying collection of information may enable individuals to respond in a way to defeat the purpose of the ac-
Page 5
tion. Thus, OMB recognizes the need for exemptions to the requirement for advance publication, and is amending new §
1320.15(b) accordingly. If an agency demonstrates that advance publication would defeat the purpose of the collection
of information, OMB will consider the agency's request for exemption.
2. In new § 1320.15(a), "Federal Register notice of OMB review," OMB proposed to establish by regulation the
content of the Federal Register notice that each agency is required to publish when submitting a paperwork clearance
package to OMB for review under the Act. (See proposed amendment 20, 52 FR at 27772.) The notice would be re-
quired to contain, at a minimum, a title for the collection; a brief description of the need, use, likely respondents, fre-
quency of response, and burden estimates disaggregated into discrete components applicable to each separate informa-
tion collection instrument; the average hours per response; the frequency of response; and the likely number of respon-
dents. Furthermore, OMB encouraged agencies to state the basis for their burden estimates. As described below, the
final regulation adopts this proposed amendment.
Comments on this new § 1320.15(a) both supported and opposed disaggregating burden estimates. Those in oppo-
sition (primarily agencies) expressed concerns about the additional cost and administrative burden imposed on them by
this proposal, and asserted that it would duplicate information provided to OMB in the agency information collection
clearance packages. Public comments, however, clearly supported this section. Unless potential respondents receive
notice in the Federal Register of the estimated burden to be imposed upon them, they will probably lack the incentive to
contact the agency to request a copy of the information collection clearance package, and thus be unable to provide the
agency and OMB with timely and meaningful comments. Indeed, many public comments expressed a desire for addi-
tional information in the Federal Register notice, including the inclusion of OMB approval numbers, agency form num-
bers, more extensive discussions of major changes to collections or summaries of new collections, bases for burden es-
timates, and requested expiration dates.
OMB believes the public's need for the information proposed to be included in the Federal Register notice out-
weighs the potential increase in agency burdens and costs. The need for the additional information that the public com-
ments recommended, however, is not so clear. OMB, therefore, is not adopting any expansion of this proposal. n4
n 4 Several agencies raised concerns about specific situations in which they asserted that disaggregating
burden estimates in particular ways would impose substantial burden without commensurate benefits to the pub-
lic, e.g., in those cases in which different categories of respondents fill out different portions of a form, or fill out
the form at different intervals. These cases should be discussed individually with OMB and handled on a case-
by-case basis.
3. The proposed addition to § 1320.4(b)(3) would require agencies to indicate in their collection of information
clearance packages what practicable steps they have taken to consult with interested agencies and members of the public
in order to minimize the burden of the collection of information. (See proposed amendment 3, 52 FR at 27771.) The
final regulation adopts this section as proposed.
Public comments supported this amendment, with several suggesting that additional information be included in the
clearance packages. These suggestions included required discussions of why sampling or other less burdensome collec-
tion procedures were not undertaken, and discussions of the potential uses of comparable (not just duplicative) data.
OMB has not adopted these suggestions. OMB is now able to raise these and other appropriate concerns with the
agency as part of its review of each agency's information collection clearance package.
4. The NPRM's Supplementary Information section discussed 44 U.S.C. 3507(h), which requires, with one excep-
tion, that any written communication between OIRA and an agency or a member of the public concerning a proposed
collection of information be made available to the public (52 FR at 27769). OMB emphasized its support for this provi-
sion. However, OMB also raised in the NPRM a concern that complaints from possible whistleblowers about a collec-
tion of information might be hindered if these complainants believe that the sponsoring agency reviewing a substantive
complaint will be able to identify them and institute possible actions of reprisal, such as more intensified regulatory
enforcement, or a denial of a grant or other benefits.
OMB received a number of comments on this discussion, several supporting it, others expressing concerns about it,
and still others requesting clarification. For the purposes of clarification, OMB reiterates that it will follow the legal
requirements set forth in 44 U.S.C. 3507(h), notwithstanding the discussion of the Privacy Act in the NPRM. Thus,
those who provide OMB with any communications concerning a proposed collection of information, regardless of
whether they request confidentiality, should recognize that written communications concerning such collections of in-
Page 6
formation will be made available to the public and also, as a general matter, to the sponsoring agency, except for those
involving classified information.
OMB remains concerned about the potential discouragement of possible whistleblowers. As such, those who wish
to submit comments on proposed collections of information, but who do not wish to be identified to the sponsoring
agency, may need to consider in advance how best to do so. A comment from the ABA Section of Administrative Law
suggested submission of anonymous comments, but questioned whether OMB would "discount comments submitted
anonymously." OMB wants to assure the public that any substantive comment received on proposed collections of in-
formation, whether or not submitted anonymously, through an intermediary (e.g., a public interest group or a trade asso-
ciation), or with full disclosure of source, will be considered as part of any paperwork review and brought to the atten-
tion of the appropriate agency.
The paperwork clearance file will contain all written, nonclassified communications, including those submitted
anonymously or through intermediaries, and will be publicly available in OMB's docket library. Moreover, and as re-
quired by 44 U.S.C. 3507(b), any determination to approve, modify, or disapprove a proposed collection of information
and explanation thereof shall be publicly available.
D. 44 U.S.C. 3502(11) -- OMB Clearance Procedures
Several comments discussed proposed amendments to clarify the applicability of the public protection provisions in
44 U.S.C. 3512 (see proposed amendments 4 and 5, 52 FR at 27771) and, more generally, numerous technical amend-
ments replacing the terms "information collection request" and "collection of information requirement" with the term
"collection of information." n5 The purpose of this action was, consistent with the 1986 amendment to 44 U.S.C.
3502(11), to make clear (unless circumscribed by the clearance procedures in 44 U.S.C. 3504(h), involving collections
of information contained in proposed regulations) that all of the provisions of the Act apply to any collection of infor-
mation, whether called for by a printed form, oral question, or a proposed or current rule. These provisions include,
among many, the public protection provisions of the Act, the required Federal Register notices, and the three-year limit
on the duration of an OMB approval of a collection of information. (See 52 FR at 27768-69.)
n 5 For example, in response to one comment, OMB amends section 1320.14(i) to state more clearly which
collections of information would no longer be valid upon receiving a disapproval from OMB pursuant to that
section.
Several comments expressed concern with the statutory, three-year limit, namely, that an agency might try to nul-
lify regulatory provisions for reporting or recordkeeping simply by allowing OMB approval for a collection of informa-
tion contained in a current regulation to expire. OMB believes that this fear is unfounded. Congress debated and agreed
to the three-year limit to OMB approvals when it enacted the Paperwork Reduction Act in 1980. n6
n 6 OMB stated the underlying rationale for this three-year limit in the NPRM:
"[T]he three-year limit to paperwork approval, combined with the notice provisions in the Act, gives the
public the opportunity to comment on any collection of information (including any recordkeeping requirement)
contained in a current rule every three years, not just when the rule was first issued. After a respondent has com-
plied with a collection of information (including a recordkeeping requirement) contained in a current rule for
several years, the respondent should have clearer knowledge of the burdens involved, and the agency more con-
crete experience with the practical utility of the information obtained. Through this iterative review process, the
agency is able on a continuing basis to improve and reduce the burden of its collection of information." (52 FR
at 27768.)
More recently, when recommending passage of the 1986 Amendments, the Senate Committee on Governmental
Affairs explicitly discounted the danger that an agency might nullify these regulatory provisions simply by allowing
OMB approval to expire:
If an agency fails to resubmit a collection of information requirement after its clearance expires, the public protec-
tion clause of the Act would preclude the agency from penalizing persons who fail to respond to the collection of infor-
mation requirement. However, the rule requiring the collection of information would remain in effect, and in the com-
Page 7
mittee's view the agency could be sued successfully for failing to enforce its own rules ["Federal Management Reor-
ganization and Cost Control Act of 1986," Report to accompany S. 2230, Senate Committee on Governmental Affairs,
July 31, 1986, Report 99-347].
In addition to these protections, OMB requires all agencies to submit collections of information contained in rules
for review 90 days prior to the current expiration dates (§ 2320.14(a)). Every month, OMB routinely sends agency in-
formation collection clearance offices chronological listings of every collection of information that is going to expire
within 120 days. Thus, agencies that do not seek to renew a collection of information in an existing rule are in violation
of the OMB rule. To prevent inadvertent noncompliance with 5 CFR Part 1320, agencies should establish information
collection management tracking systems. In response to comments from the ABA Section of Administrative Law, OMB
is amending 5 CFR 1320.14(a) to stress the importance of agency compliance with this rule.
E. Other Amendments
The NPRM proposed a number of other amendments, including having agencies consider reducing burden through
the use of automated collection techniques or other forms of information technology (§ 1320.6(k); see proposed
amendment 7, 52 FR at 27771), having OMB make publicly available any OMB decision to approve or disapprove a
collection of information and explanation thereof (§ 1320.11(d); see proposed amendment 9, 52 FR at 27771), and
emergency processing requirements (§ 1320.18; see proposed amendment 22, 52 FR at 27772). These amendments
proposed in the NPRM received few substantive comments, and are adopted as proposed. n7
n 7 Upon further review of 5 CFR Part 1320, OMB has also decided to make the following technical
amendments:
(1) Various provisions in 5 CFR Part 1320 have taken effect on different dates. For example, OMB pub-
lished amendments to this Part on May 16, 1984 (49 FR 20792). As a result, the last sentence of § 1320.2,
which made this regulation effective on May 2, 1983, is obsolete and is therefore deleted.
(2) OMB amends § 1320.6(e) to clarify that it applies to collections of information that provide for any
payment or gift to respondents or potential respondents, including but not limited to compensation of respon-
dents for their time or other costs incurred in providing the information requested.
(3) The Civil Aeronautics Board no longer exists. The reference to it in § 1320.7(h) is therefore deleted.
(4) OMB amends § 1320.16(c) to state clearly that the new amendments to 5 CFR Part 1320 also apply to
Standard and Optional Forms, and to any other collections of information prescribed by another agency.
(5) OMB amends section 1(e) of Appendix A to correct two cross-references (the prior references to § §
1320.17 and 1320.19 are changed, respectively, to § § 1320.18 and 1320.20).
F. Additional Public Comments
In response to the NPRM, OMB also received a number of comments which, although they concern OMB's paper-
work review practices, neither address particular proposed amendments in the NPRM nor suggest alternative amend-
ments. Although OMB is not obligated to respond to such comments, a few of them raise issues of widespread concern
or interest. OMB therefore believes that a short discussion of these is worthwhile.
1. Several comments expressed a desire for OMB to explain how it reviews collections of information. OMB is
now drafting an "Information Collection Review Handbook" for use by OMB staff. When it is completed, the Hand-
book will be provided to agencies and to interested members of the public. This Handbook will describe agency and
OMB responsibilities under the Paperwork Reduction Act, the scope of the information collection review program, the
information collection review process, the types of information collections that are and are not covered by the Act, the
criteria for obtaining OMB approval, and public involvement in OMB reviews.
Some comments raised the kinds of issues that will be discussed in the Handbook. For example, the ABA Section
of Administrative Law questioned whether it was OMB's intent to approve collections of information in an existing rule
during the time agencies may seek to amend or repeal those collections of information through a regulatory amendment.
Similarly, an agency asked OMB to clarify, when OMB approves a collection of information contained in a proposed
Page 8
regulation, whether an existing, related regulatory information collection remains in force until the new regulatory in-
formation collection can take effect through completion of the amendatory rulemaking. n8
n 8 To answer these questions: A proposed regulatory information collection is reviewed under § 1320.13.
A current regulatory information collection is reviewed under § 1320.14. As a basic matter, if an information
collection in a proposed rule is going to change an information collection in a current rule, the agency should
take care to assure that the existing regulatory information collection continues to be approved by OMB while
the agency is conducting the regulatory amendment.
In addition, it is OMB practice to assure that this happens. When OMB approves a proposed regulatory in-
formation collection under § 1320.13, OMB allows the related current regulatory information collection to re-
main in effect until the approved, new or revised regulatory information collection takes effect, unless otherwise
noted -- in particular circumstances -- in the conditions of clearance. Similarly, even when OMB fails to approve
a proposed regulatory information collection submitted for review under § 1320.13, but instead files public
comments, OMB approves the related current regulatory information collection for at least as long as it takes to
resolve the dispute.
2. Several comments questioned whether financial monitoring, audit requirements, and audit guides are covered by
the Act. The answer varies from case to case, depending on whether the audit guide contains "identical" reporting or
recordkeeping requirements (see the amendment to § 1320.7(c)), and on whether the collection of information has been
previously approved as part of another paperwork clearance (see 48 FR 13675, March 31, 1983).
3. Comments also expressed a concern about the Information Collection Budget (ICB). While the ICB was not the
subject of the rulemaking, it is important to clarify an apparent misperception concerning the ICB and how it is used.
The ICB is a management tool and it is an adjunct to the individual case-by-case review required by the Paperwork Re-
duction Act and OMB's paperwork clearance procedures. It is used by agency officials in their planning and control
processes to review the totality of the collections of information their staff plans to keep, or put, in place during the
forthcoming year. OMB uses the ICB in conjunction with its management reviews of agencies, to assure that they com-
ply with the Act's direction to manage information needs and uses carefully. Some comments suggested that, through
the ICB, OMB may disapprove a collection of information. This is inaccurate; disapprovals of collections of informa-
tion may occur only as part of OMB's case-by-case review of each information collection clearance package, in accor-
dance with the procedures and policies of the Act.
4. Several members of the public asserted that OMB, in implementing the Paperwork Reduction Act, spends too
much time and effort in reviewing collections of information imposed on businesses. OMB believes that this criticism is
unwarranted, and that it may arise due to a lack of public awareness of how the Federal government's paperwork burden
weighs upon the various segments of our society. OMB records indicate that as of September 30, 1987, agencies esti-
mated that approximately 63 percent of all Federal reporting burden fell on businesses and other institutions (including
hospitals and universities), while 32 percent of the total fell on individuals and households, 4 percent on State and local
governments, and l percent on farms. Broken down by major Federal agency, the imposition of reporting and record-
keeping burden by respondent category is, as follows:
Active Information Collections, the Affected Public, Percent of Burden Hours by Agency
Agency 9 Individuals/ State Farms Business
households government (percent) and other
(percent) (percent) institutions
(percent)
Agriculture 22 64 10 4
Commerce 16 9 0 75
Defense 3 0 0 97
Education 30 10 0 60
Energy 0 0 1 99
HHS 15 9 0 76
HUD 2 53 0 45
Interior 10 18 0 72
Page 9
Active Information Collections, the Affected Public, Percent of Burden Hours by Agency
Agency 9 Individuals/ State Farms Business
households government (percent) and other
(percent) (percent) institutions
(percent)
Justice 83 0 0 17
Labor 1 6 0 93
State 99 0 0 1
DOT 2 4 0 94
Treasury 51 0 0 49
CFTC 0 0 0 100
CPSC 2 0 0 98
EEOC 0 98 0 2
EPA 1 3 0 96
FCC 1 2 0 97
FDIC 0 0 0 100
FEMA 13 87 0 0
FERC 0 0 0 100
FHLBB 0 0 0 100
FRS 0 0 0 100
FTC 0 0 0 100
GSA 4 0 0 96
ICC 3 0 0 97
NASA 0 0 0 100
NCUA 0 0 0 100
NSF 15 0 0 85
NRC 0 0 0 100
OPM 96 0 0 4
SEC 0 0 0 100
SBA 10 1 0 89
VA 83 2 0 15
All Government 32 4 1 63
9 The abbreviated agencies are as follows: HHS=Health and Human Services; HUD=Housing and Urban
Development; DOT= Transportation; CFTC=Commodity Futures Trading Commission; CPSC=Consumer
Product Safety Commission; EEOC=Equal Employment Opportunity Commission; EPA=Environmental Protec-
tion Agency; FCC=Federal Communications Commission; FDIC=Federal Deposit Insurance Corporation;
FEMA=Federal Emergency Management Agency; FERC=Federal Energy Regulatory Commission;
FHLBB=Federal Home Loan Bank Board; FRS=Federal Reserve System; FTC=Federal Trade Commission;
GSA=General Services Administration; ICC=Interstate Commerce Commission; NASA=National Aeronautics
and Space Administration; NCUA=National Credit Union Administration; NSF=National Science Foundation;
NRC=Nuclear Regulatory Commission; OPM=Office of Personnel Management; SEC=Securities and Exchange
Commission; SBA=Small Business Administration; VA=Veterans' Administration.
Regulatory Impact and Regulatory Flexibility Act Analysis
OMB has analyzed the effects of this rule under both Executive Order No. 12291 and the Regulatory Flexibility
Act. Copies of this analysis are available upon request. In summary, OMB has concluded that these amendments will
have a salutary impact on small entities through the reduction of unnecessary paperwork and that, while the costs and
benefits of procedural amendments such as these are largely unquantifiable, the amendments meet all the requirements
of the Executive Order.
List of Subjects in 5 CFR Part 1320
Page 10
Reporting and recordkeeping requirements, Paperwork, Collections of information.
Issued in Washington, DC, May 4, 1988.
James B. MacRae, Jr.,
Acting Administrator and Deputy Administrator, Office of Information and Regulatory Affairs.
5 CFR Part 1320 is revised to read as follows:
PART 1320 -- CONTROLLlNG PAPERWORK BURDENS ON THE PUBLIC
Sec.
1320.1 Purpose.
1320.2 Effect.
1320.3 Coverage.
1320.4 General requirements.
1320.5 Public protection.
1320.6 General information collection guidelines.
1320.7 Definitions.
1320.8 Agency head and senior official responsibilities.
1320.9 Delegation of approval authority.
1320.10 Information Collection Budget.
1320.11 Agency submissions of collections of information.
1320.12 Clearance of collections of information.
1320.13 Clearance of collections of information in proposed rules.
1320.14 Clearance of collections of information in current rules.
1320.15 Federal Register notice of OMB review.
1320.16 Collections of information prescribed by another agency.
1320.17 Interagency reporting.
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1320.18 Emergency and expedited processing.
1320.19 Public access.
1320.20 Independent regulatory agency override authority.
1320.21 Agency disclosure of estimated burden.
1320.22 Other authority.
Appendix A -- Agencies With Delegated Review and Approval Authority
Authority: 31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27, 29, 31, 35.
§ 1320.1 Purpose.
The purpose of this part is to implement the provisions of the Paperwork Reduction Act of 1980, as amended, (44
U.S.C. Chapter 35) (the Act) concerning collections of information. It is issued under the authority of section 3516 of
the Act, which provides that "The Director shall promulgate rules, regulations, or procedures necessary to exercise the
authority provided by this Chapter." It is designed to minimize and control burdens associated with the collection of
information by Federal agencies from individuals, businesses and other private institutions, and State and local govern-
ments. In the case of inter-agency reporting, this Part establishes policy and promulgates regulations to ensure the effec-
tive management of inter-agency reporting requirements in the executive branch, and is promulgated under the authority
of the Federal Records Act (44 U.S.C. Chapters 21, 25, 27, 29, 31) and section 104 of the Budget and Accounting Pro-
cedures Act of 1950 (31 U.S.C. 1111) as well as the Act.
§ 1320.2 Effect.
This Part supersedes and rescinds Circular No. A-40, Revised, dated May 3, 1973, and Transmittal Memorandum
No. 1, dated February 10, 1976.
§ 1320.3 Coverage.
The requirements of this Part apply to all agencies as defined in § 1320.7(a) and to all collections of information
conducted or sponsored by those agencies, as defined in § 1320.7(c), wherever conducted or sponsored, except for col-
lections of information:
(a) By compulsory process pursuant to the Anti-trust Civil Process Act or section 13 of the Federal Trade Commis-
sion Improvements Act or section 13 of the Federal Trade Commission Improvements Act of 1980;
(b) During the conduct of intelligence activities, as defined in Section 4-206 of Executive Order 12036, issued
January 24, 1978, or successor orders, including Executive Order 12333, issued December 4, 1981, or during the con-
duct of cryptologic activities that are communications securities activities; or
(c) During the conduct of a Federal criminal investigation or prosecution, during the disposition of a particular
criminal matter, 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 or investigation involving an agency against specific individuals
or entities. This exception applies during the entire course of the investigation or action, whether before or after formal
charges or complaints are filed or formal administrative action is initiated, but only after a case file or its equivalent is
opened with respect to a particular party. General 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.
§ 1320.4 General requirements.
(a) An agency shall not engage in a collection of information without obtaining Office of Management and Budget
(OMB) approval of the collection of information and displaying a currently valid OMB control number and, unless
OMB determines it to be inappropriate, an expiration date. An agency shall not continue to engage in such collection of
information after the expiration date of the control number, unless OMB has approved an extension. Each agency shall
ensure that collections of information required by law or necessary to obtain a benefit, and which are submitted to nine
Page 12
or fewer persons, inform potential respondents that the collection of information is not subject to OMB review under the
Act.
(b) To obtain OMB approval of a collection of information, an agency shall demonstrate that it has taken every rea-
sonable step to ensure that:
(1) The collection of information is the least burdensome necessary for the proper performance of the agency's
functions to comply with legal requirements and achieve program objectives;
(2) The collection of information is not duplicative of information otherwise accessible to the agency; and
(3) The collection of information 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 bur-
dens onto the public. It shall also comply with the general information collection guidelines set out in § 1320.6, where
applicable, and shall indicate, in its submission of a collection of information for OMB review, what practicable steps it
has taken to consult with interested agencies and members of the public in order to minimize the burden of that collec-
tion of information.
(c) 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
listed in § 1320.4(b), 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 imple-
mentation; and
(2) OMB will consider necessary any collection of information specifically required by an agency rule approved or
not acted upon by OMB pursuant to § § 1320.13 or 1320.14, but will independently assess any such collection of in-
formation to the extent that it deviates from the specifications of the rule.
(d) Except as provided in § 1320.20, to the extent that OMB determines that all or any portion of a collection of in-
formation by an agency is unnecessary, for any reason, the agency shall not engage in such collection or portion thereof.
§ 1320.5 Public protection.
(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failure to comply with
any collection of information:
(1) That does not display a currently valid OMB control number; or
(2) In the case of a collection of information required by law or to obtain a benefit which is submitted to nine or
fewer persons, that fails to state, as prescribed by § 1320.4(a), that it is not subject to OMB review under the Act.
The failure to display a currently valid OMB control number for a collection of information contained in a current
rule does not, as a legal matter, rescind or amend the rule; however, its 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.
(b) Whenever an agency has imposed a collection of information as a means for proving or satisfying a condition to
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 statement, as prescribed in § 1320.4(a), 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 respon-
dents to prove or satisfy the legal conditions in any other reasonable manner.
(1) If such a collection of information is disapproved in whole by OMB (and the disapproval is not overridden pur-
suant to § 1320.20), the agency shall grant the benefit to (or not impose the penalty on) otherwise qualified persons
without requesting further proof concerning the condition.
Page 13
(2) If such a collection of information is ordered modified by OMB (and the order is not overridden pursuant to §
1320.20) the agency shall permit respondents to prove or satisfy the condition by complying with the collection of in-
formation as so modified.
(c) 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 judicial or administrative process.
§ 1320.6 General information collection guidelines.
Unless the agency is able to demonstrate that such collection of information is necessary to satisfy statutory re-
quirements or other substantial need, OMB will not approve a collection of information:
(a) Requiring respondents to report information to the agency more often than quarterly;
(b) Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after
receipt of it;
(c) Requiring respondents to submit more than an original and two copies of any document;
(d) Requiring grantees to submit or maintain information other than that required under OMB Circular A-102 or A-
110;
(e) Providing for any payment of gift to respondents, other than remuneration of contractors or grantees;
(f) Requiring respondents to retain records, other than health, medical, or tax records, for more than three years;
(g) In connection with a statistical survey that is not designed to produce results that can be generalized to the uni-
verse of study;
(h) Unless the agency has taken all practicable steps to develop separate and simplified requirements for small
businesses and other small entities;
(i) Requiring respondents to submit proprietary, trade secret, or other confidential information unless the agency
can demonstrate that it has instituted procedures to protect its confidentiality to the extent permitted by law;
(j) Requiring respondents to maintain or provide information in a format other than that in which the information is
customarily maintained;
(k) Unless the agency has considered reducing the burden on respondents by use of automated collection techniques
or other forms of information technology.
§ 1320.7 Definitions.
For purposes of implementing the Paperwork Reduction Act and this Part, the following terms are defined as fol-
lows:
(a) "Agency" means any executive department, military department, government corporation, government con-
trolled corporation, or other establishment in the executive branch of the government, or any independent regulatory
agency, but does not include the General Accounting Office, Federal Election Commission, and governments of the
District of Columbia and of the territories and possessions of the United States, and their various subdivisions, or gov-
ernment-owned contractor-operated facilities including laboratories engaged in national defense research and produc-
tion activities.
(b) "Burden" means the total time, effort, or financial resources required to respond to a collection of information,
including that to read or hear instructions; to develop, modify, construct, or assemble any materials or equipment; to
conduct tests, inspections, polls, observations, or the like necessary to obtain the information; to organize the informa-
tion into the requested format; to review its accuracy and the appropriateness of its manner of presentation; and to main-
tain, disclose, or report the information.
(1) The time 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 or recordkeeping activities needed to comply are usual
and customary.
Page 14
(2) A collection of information sponsored by a Federal agency that is also sponsored by a unit of state or local gov-
ernment is presumed to impose a Federal burden except to the extent the agency shows that such state or local require-
ment would be imposed even in the absence of a Federal requirement.
(c) "Collection of information" means the obtaining or soliciting of information by an agency from ten or more per-
sons by means of identical questions, or identical reporting or recordkeeping requirements, whether such collection of
information is mandatory, voluntary, or required to obtain a benefit. For purposes of this definition, the "obtaining or
soliciting of information" includes any requirement or request for persons to obtain, maintain, retain, report, or publicly
disclose information. In the Act, a "collection of information requirement" is a type of "information collection request."
As used in this Part, a "collection of information" refers to the act of collecting information, to the information to be
collected, to a plan and/or an instrument calling for the collection of information, or any of these, as appropriate.
(1) A "collection of information" includes the use of written report forms, application forms, schedules, question-
naires, reporting or recordkeeping requirements, or other similar methods. Similar methods may include contracts,
agreements, policy statements, plans, information collection requests, collection of information requirements, rules or
regulations, information collection requests or collection of information requirements contained in, derived from, or
authorized by such rules or regulations, planning requirements, circulars, directives, instructions, bulletins, requests for
proposal or other procurement requirements, interview guides, oral communications, disclosure requirements, labeling
requirements, telegraphic or telephonic requests, automated collection techniques, and standard questionnaires used to
monitor compliance with agency requirements.
(2) Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to mem-
bers of the public or to 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) A "collection of information" includes questions posed to agencies, instrumentalities, or employees of the
United States, if the results are to be used for general statistical purposes.
(d) "Director" means the Director of OMB or his designee.
(e) "Display" means:
(1) In the case of forms, questionnaires, instructions, and other written collections of information, individually dis-
tributed to potential respondents, to print the OMB control number (and, unless OMB determines it to be inappropriate,
the expiration date) in the upper right hand corner of the front page of the collection of information;
(2) In the case of collections of information published in regulations, guidelines, and other issuances in the Federal
Register, to publish the OMB control number in the Federal Register (as part of the regulatory text or as a technical
amendment) and ensure that it will be included in the Code of Federal Regulations if the issuance is also included
therein;
(3) In other cases, and where OMB determines that special circumstances exist, to use other means to inform poten-
tial respondents of the OMB control number (and, unless OMB determines it to be inappropriate, the expiration date).
(f) An "Education agency or institution" means any public or private agency or institution with the primary function
of education.
(g) "A Federal education program" means any Federal activity with a primary purpose of offering instruction or af-
fecting an educational agency's or institution's ability to offer instruction.
(h) "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 Home Loan Bank
Board, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the
Mine Enforcement Safety and Health Review Commission, the National Credit Union Administration, the National La-
bor 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 15
(i) "General purpose statistics" are those collected chiefly for public and general government uses, without primary
reference to policy or program operations of the agency collecting the information.
(j) "Information" means any statement of fact or opinion, whether in numerical, graphic, or narrative form, and
whether oral or maintained on paper, magnetic tapes, 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, pro-
vided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address,
and the na