Paperwork Reduction Act

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44 U.S.C. §§ 3501–3521 (2012); enacted Dec. 11, 1980, by Pub. L. No. 96-511, 94 Stat. 2812, amended Oct. 18, 1986, by Pub. L. No. 99-591, Title I, § 101(m), 100 Stat. 3341-308, 3341-335; amended and re-codified May 22, 1995, by Pub. L. No. 104-13, § 2, 109 Stat. 163; amended Oct. 30, 2000, by Pub. L. 106-398, Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275; amended June 28, 2002, by Pub. L. No. 107-198, §§ 2–3, 116 Stat. 732; amended Aug. 21, 2002, by Pub. L. No. 107-217, § 3(1), 116 Stat. 1301; amended Nov. 25, 2002, by Pub. L. No. 107-296, § 1005(c), 116 Stat. 2273; amended Dec. 17, 2002, by Pub. L. No. 107-347, title III, § 305(c)(3), 116 Stat. 2961; amended Dec. 20, 2006, by Pub. L. No. 109-435, Title VI, § 604(e), 120 Stat. 3242; amended July 30, 2008, by Pub. L. No. 110-289, Div. A, Title II, § 1216(e), 122 Stat. 2792; amended July 21, 2010, by Pub. L. No. 111-203, Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111; December 16, 2014, by Pub. L. No. 113-235, 128 Stat. 2537.

Lead Agency:

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

Overview

One of the main purposes of The Paperwork Reduction Act is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information . . . .” 44 U.S.C. § 3501. The Act statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The Act applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order. 44 U.S.C. § 3518.

Basic Clearance Requirement

The Act assigns to OIRA the function of approving information collections. The Act provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the OMB Director, who will determine whether the information collection is necessary for the proper performance of the agency’s functions. § 3507(a)(2). The Act (§ 3502(3)) defines “collection of information” as: The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either—

  • answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or
  • answers to questions posed to agencies instrumentalities, or employees of the United States which are to be used for general statistical purposes.

The 1995 Amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling the outcome in Dole v. United Steelworkers of America, 494 U.S. 26 (1990).

The Act forbids OMB from approving any information collection for a period of more than three years. § 3507(g). Failure to obtain OMB approval of a collection of information triggers operation of the Act’s “public protection provision,” § 3512, which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. See United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990); United States v. Smith, 866 F.2d 1092 (9th Cir.1989).

Clearance Procedure

The Act provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.

Section 3507(d) of the Act prescribes the following procedure for information collections contained in rules promulgated following notice and comment:

  1. Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the Federal Register.
  2. Within 60 days after the notice of proposed rulemaking is published in the Federal Register, OMB may file public comments on the collection of information contained in the proposed rule.
  3. When a final rule is published in the Federal Register, the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.
  4. If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.
  5. However, OMB may disapprove a collection of information where (A) the collection of information was not specifically required