### §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 §1320.8;

\(ii\) Evaluated the public comments received under §1320.8(d) and
§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 §1320.9,

\(B\) The proposed collection of information in accordance with
§1320.10, §1320.11, or §1320.12, as appropriate,

\(C\) An explanation for the decision that it would not be appropriate,
under §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 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 §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 §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 §1320.10,
§1320.11 or §1320.12, the agency plans to request or has requested OMB
to conduct its review on an emergency basis under §1320.13; and

\(2\) OMB has approved the proposed collection of information, OMB\'s
approval has been inferred under §1320.10(c), §1320.11(i), or
§1320.12(e), or OMB\'s disapproval has been voided by an independent
regulatory agency under §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 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
§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 §1320.10. Agencies shall submit collections of
information contained in interim final rules or direct final rules in
accordance with the requirements of §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 §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 §1320.12.

\(4\) Special rules for emergency processing of collections of
information are set forth in §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;

\(vii\) 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 §1320.11 or §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 §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).

### §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
§1320.3(f) and §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 §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 §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.

\(1\) If OMB disapproves the whole of such a collection of information
(and the disapproval is not overridden under §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 §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. §6011(a) (statutory requirement for person to
file a tax return), 42 U.S.C. §6938(c) (statutory requirement for person
to provide notification before exporting hazardous waste).

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