#  **It's The Law**

##  Office of the Assistant General Counsel for Finance and Litigation

**Federal Assistance Law Division**

Vol 8 Revised May 17, 1996

### Paperwork Reduction Act Amendments

by Ed Sharp

#### INTRODUCTION

The Paperwork Reduction Act of 1995 (Pub. L. 104-13, "revised PRA"),
which went into effect on October 1, 1995, considerably modifies the
previous law (Pub L. 96-511, 44 U.S.C. 3501 *et seq*.). On October 18,
1995, the Federal Assistance Law Division distributed a memorandum
discussing the revised PRA and included as attachments: (1) regulations
implementing the revised PRA (contained at 5 CFR Part 1320); (2) a
memorandum from Alice Rivlin, Director of the Office of Management and
Budget (OMB) transmitting the regulations to agency heads; (3) a
memorandum from Sally Katzen, Administrator of the Office Information
and Regulatory Affairs (OIRA) of OMB, discussing implementation of the
revised PRA; and (4) a memorandum from Michael Levitt, Assistant General
Counsel for Legislation and Regulation at the Department of Commerce
(DoC), asking for information on the revised PRA's effects on DoC
regulations. In addition, Barbara Fredericks, Assistant General Counsel
for Administration at the Department of Commerce, Michael Levitt, and
Alan Balutis, Director for Budget, Management and Information at the
Department of Commerce circulated a memorandum on October 11, 1995
addressing the revised PRA. This edition of "It's the Law" will discuss
in greater detail topics raised in those memoranda and attachments that
are of particular interest to those dealing with financial assistance.

Questions regarding the implementation of the PRA should be directed to
Gerald J. Tache, Information Collection Analysis Division Chief, (202)
482-3271. General legal questions on the revised PRA should be directed
to the Office of the Assistant General Counsel for Administration, (202)
482-5391. Legal questions pertaining to rule-based collections of
information should be directed to Dan Cohen of the Office of the
Assistant General Counsel for Legislation and Regulation, (202)
482-4144.

#### PURPOSE

The purpose of the revised PRA, as stated in the implementing
regulations, is 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."

WHAT DOES THE REVISED PRA COVER?

The revised PRA's applicability is very broad. It covers any information
that the Federal government itself seeks **or** causes to be generated,
reported or maintained, whether voluntary or mandatory. Information is
defined as "any statement 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." (1320.3(h)) A
"collection of information" is a requirement imposed on ten or more
persons and broadly includes "any requirement or request for a person to
obtain, maintain, retain, report, or publicly disclose information."
(See 1320.3(c). Thus, requirements for performance and financial
reporting, certifications, customer surveys, data retention, etc.
contained in application kits, solicitations, special award conditions,
correspondence, or just about anything else may constitute information
collections. As we will discuss, this definition is so inclusive that it
is more likely than not that something will constitute an information
collection.

HOW ARE THE PRA'S GOALS ACCOMPLISHED?

Before an agency can collect infor-mation, the revised PRA requires it
to: (i) ask for public comment; (ii) review those comments within the
agency and determine that the requirements are necessary; (iii) certify
to the Office of Management and Budget (OMB) that the collection is
necessary; and (iv) receive OMB approval for the collection. If this is
not done, the agency cannot collect the information and those persons
being asked to provide it can decline to do so with no penalties imposed
on them.

HOW DOES THE REVISED PRA AFFECT GRANT PROGRAM OPERATIONS?

Probably the most important change for grant programs is the provision
in 1320.8(d)(1), which deals with general requirements for collections
of infor-mation. This requires that an agency engage in a 60-day notice
and comment period on an information collection **before** it sends the
request to OMB. The agency then must publish a **second** notice in the
*Federal Register* on or before the date is submits an information
collection request to OMB to provide the public **30** days to comment
to OMB directly. OMB is required to wait **30 days** to receive the
comments before taking action and has **60 days** from the date of the
agency submission to respond to the collection request. Therefore, the
minimum time for clearance of information collection requests is **90
days** and can extend to **120 days** if OMB takes the full amount of
time allowed to it under the revised PRA. This means that programs must
submit their information collection requests as much as 4 months before
they need to begin collecting the information. And, realistically, given
internal Department of Commerce clearance requirements, several
additional weeks should be planned for.

As noted above, the revised PRA requires agencies to certify the need
for the collection when they forward a request to OMB for approval. This
**new responsibility** may increase the awareness of information
collection activities within agencies and thereby increase the scrutiny
of requests that are submitted. Additionally, since there is, for now at
least, heightened attention being given to paperwork reduction at OMB,
that agency too may pay especially close attention to what is submitted.
All of this could increase the demands for modifications to information
collections that are submitted, either within the agency or by OMB,
lengthening approval time even more. Therefore, we advise that programs
review their current information collection activities right away and
consult with the staff and offices listed in the Introduction to
determine what requires OMB approval. Otherwise, programs may be caught
short when they attempt an information collection that does not have
OMB's blessing.

WHAT SHOULD PROGRAMS LOOK FOR IN REVIEWING THEIR INFORMATION
COLLECTIONS?

Just about any requirement that a program is applying to 10 or more
persons **could** need OMB approval. And the list is larger now than it
used to be. For example, under the old PRA, **certifications and
assurances** were not categorized as collections of information. Under
the revised PRA, they may be. Section 1320.3(h)(1) provides that a
certification is an information collection 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." This means that
certifications and assurances (such as those on the SF-424 and CD-511),
because they would require a collection of information to show
compliance with the requirements, **are** information collections under
the revised PRA. (NOTE: Since the SF-424 series was promulgated by OMB
and the CD-511 implements govermentwide require-ments, individual
programs and agencies within the DoC do not need to seek clearance for
these forms.) An example of a certification that is not an information
collection might be a conflict of interest certification signed by a
proposed peer reviewer, since the person signing is providing a personal
assurance about his or her situation and does not have to keep any
records as part of the assurance. Program specific assurances and
certifications likely will need clearance under the revised PRA. Another
noteworthy change in the revised PRA (included to overturn a Supreme
Court decision), is a requirement for OMB review before agencies can
mandate that records are to be maintained for possible disclosure to
third parties, even if those records are not to be provided to the
Federal government. Thus, if a program requires that statistical
information be maintained for possible later review by a third-party
evaluator, that would require OMB review. Also, a requirement that
publications and reports contain an acknowledgment of the finding source
with a disclaimer of content might also require OMB approval.

If a program has a rule that **previously received OMB clearance** and
still has a valid control number, it is not required to receive
immediate approval for the information collections it contains. However,
when approval of the collection comes up for renewal, the new procedures
discussed above must be followed.

If a program has a rule that contains an information collection that
**did not previously require OMB approval** but now does, it must
**immediately apply** for that approval. Until that request is
submitted, the information collection **MUST BE DISCONTINUED**. Once the
submission has been made to OMB, the agency can resume the collection.

WHAT CAN PROGRAMS DO TO AVOID PRA REQUIREMENTS?

One option that program managers occasionally suggest in addressing PRA
requirements is to ask that information be submitted, but [not
mandate]{.underline} that a particular form be used. That will not work,
since Section 1320.3(c)(1) specifically states that a collection may be
in "any form or format."

What, then, about making the information collection "optional" or
voluntary"? That will not work, either. Even the old PRA applied to
voluntary submissions, and the revised PRA continues to do so as well.
(See Section 1320.3(c)(1)).

What **might** work is use of a term of award which does not ask for the
submission or retention of information, but merely further defines an
existing requirement for the recipient. Thus, the SF-424 assurance, in
which the person signing certifies that there is no conflict of interest
involved in the award, might have the phrase "conflict of interest" more
fully explained in a term of award without requiring an OMB paperwork
reduction review.

#### CONCLUSION

As we said earlier, programs need to [immediately]{.underline} examine
what they require of applicants, recipients and other members of the
public. This requires a review of announcements, applications kits,
application forms, terms and conditions and correspondence. If there is
a question about whether OMB approval is needed please seek legal
advice. We have previously identified information collections requiring
OMB review in application kits, surveys, and special award conditions.
While the PRA does provide for clearances on an emergency basis, that
authority is not apt to be invoked by OMB if a timing problem arises
from poor planning. As always, attorneys in the Federal Assistance Law
Division are available to work with you to speed up the review and
approval process, including serving as a liaison with other General
Counsel offices and DoC's Office of Information Collection Analysis.