ELIZABETH DOLE, SECRETARY OF LABOR, ET AL., PETITIONERS V. UNITED
STEELWORKERS OF AMERICA, ET AL.

   No. 88-1434

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the Petitioners

                      PARTIES TO THE PROCEEDINGS

   The petitioners are the Secretary of Labor and the Assistant
Secretary for Occupational Safety and Health.  The following
additional parties participated in the proceedings below:  the United
Steelworkers of America;  Public Citizen, Inc.; Building and
Construction Trades Department, AFL-CIO;  Associated Builders and
Contractors, Inc.; Associated General Contractors of America;
Construction Industry Trade Associations;  and United Technologies
Corporation.

            TABLE OF CONTENTS
   Question Presented
   Parties to the Proceedings
   Opinion below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
      A. The Paperwork Reduction Act
      B. The OMB regulations
      C. The present dispute
   Summary of argument
   Argument:
      The Paperwork Reduction Act directs OMB to review the
      disapproved provisions of the Secretary of Labor's hazard
      communication standard
      A. The Paperwork Reduction Act and OMB's implementing
         regulations establish that the relevant provisions of the
         hazard communication standard are information collection
         requests subject to OMB review and approval
      B. OMB's review does not impermissibly increase OMB's authority
         with respect to the substantive policies and programs of the
         Department of Labor
      C. The Paperwork Reduction Act's legislative history indicates
         that Congress intended to require OMB review in these
         circumstances
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-13a) is reported
at 855 F.2d 108.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 14a-17a) was
entered on August 19, 1988.  Petitions for rehearing were denied on
November 28, 1988 (Pet. App. 18a-21a).  The petition for a writ of
certiorari was filed on Monday, February 27, 1989, and was granted on
May 15, 1989.  The jurisdiction of this Court rests on 28 U.S.C.
1254(1).

             STATUTORY AND REGULATORY PROVISIONS INVOLVED

   The relevant statutory and regulatory provisions are set forth in
the addendum to this brief (Add., infra, 1a-25a).

                          QUESTION PRESENTED

   The Paperwork Reduction Act of 1980 requires, among other matters,
that the Office of Management and Budget (OMB) review federal agency
information collection activities to determine whether the collection
of information is necessary for the proper performance of the
functions of the agency.  In this case, OMB reviewed and disapproved
three provisions of the Secretary of Labor's hazard communication
standard, which requires employers to communicate chemical hazard
information to their employees.  The question presented, which arises
in a contempt action against the Secretary of Labor and the Assistant
Secretary of Labor for Occupational Safety and Health, is whether the
Paperwork Reduction Act's review process applies to agency
regulations, developed as part of the agency's statutory mission, that
require regulated entities to collect information for disclosure to
third parties.

                               STATEMENT

   The Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. 3501 et seq.,
requires, among other matters, that the Director of the Office of
Management and Budget (OMB) review federal agency information
collection requirements to determine whether they are necessary for
the proper performance of the functions of the agency.  In this case,
OMB reviewed and disapproved three provisions of the Secretary of
Labor's revised hazard communication standard, which requires
employers to communicate chemical hazard information to their
employees.  The United Steelworkers of America and Public Citizen,
Inc. (respondents), challenged the disapproval by seeking contempt
sanctions against the Director of OMB and the Secretary of Labor,
arguing that OMB lacked authority under the PRA to disapprove the
pertinent provisions and that the Secretary violated prior court
orders when she acceded to OMB's review and disapproval.  The court of
appeals, while declining to hold the Director of the Secretary in
contempt, agreed with the attack on OMB's authority and invalidated
the disapproval.

   A. The Paperwork Reduction Act

   The PRA is intended to minimize the burden and maximize the
usefulness of the federal government's many demands for the collection
and dissemination of information.  See 44 U.S.C. 3501 (1982 & Supp. IV
1986).  The PRA assigns principal responsibility for this task to the
Director of OMB, who is accountable, among other matters, for
establishing federal information policies and overseeing their
implementation.  See 44 U.S.C. 3504(a) and (b) (1982 & Supp. IV 1986).
 Specifically, the Director is charged with developing an "information
collection request" clearance process, in which he is to review and
approve "information collection requests proposed by agencies" and to
determine "whether the collection of information by an agency is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility for the
agency" (44 U.S.C. 3504(c)).

   The PRA defines the key term "information collection request" as "a
written report form, application form, schedule, questionnaire,
reporting or recordkeeping requirement, collection of information
requirement, or other similar method calling for the collection of
information" (44 U.S.C. 3502(11) (Supp. IV 1986)).  Of the three
methods of principal relevance here -- reporting requirements,
recordkeeping requirements and collection of information requirements
-- the PRA provides further explanation of the last two.  It defines
"recordkeeping requirement" as a "requirement imposed by an agency on
persons to maintain specified records" (44 U.S.C. 3502(17) (Supp. IV
1986)).  And it defines the term "collection of information" as:

      the obtaining or soliciting of facts or opinions by an agency
      through the use of written report forms, application forms,
      schedules, questionnaires, reporting or recordkeeping
      requirements, or other similar methods calling for either --

         (A) 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

         (B) answers to questions posed to agencies,
      instrumentalities, or employees of the United States which are
      to be used for general statistical purposes.

44 U.S.C. 3502(4).

   The PRA provides that each federal agency "shall be responsible for
carrying out its information management activities in an efficient,
effective, and economical manner and for complying with the
information policies, principles, standards, and guidelines prescribed
by the Director." 44 U.S.C. 3506(a).  Furthermore, a federal agency
"shall not conduct or sponsor the collection of information" unless
the agency (1) has taken action to reduce the paperwork burden;  (2)
has submitted the proposed information request and associated material
to the Director of OMB;  and (3) "the Director has approved the
proposed information collection request, or the period for (the
Director's) review of information collection requests * * * has
elapsed." 44 U.S.C. 3507(a) (1982 & Supp. IV 1986).  /1/

   The statute provides that before the Director approves a proposed
"information collection request" -- by determining that the collection
of information by an agency is "necessary for the proper performance
of the functions of the agency" and "will have practical utility" --
he "may give the agency and other interested persons an opportunity to
be heard or to submit statements in writing." 44 U.S.C. 3508.  If,
however, the Director determines that the collection of information by
an agency "is unnecessary, for any reason, the agency may not engage
in the collection of the information." Ibid.  /2/

   The PRA instructs the Director of OMB to "promulgate rules,
regulations, or procedures necessary to exercise the authority
provided by this chapter." 44 U.S.C. 3516.  The PRA also specifies the
effect of the Act on existing law.  It states:

      Except as otherwise provided in this chapter, the authority of
      an agency under any other law to prescribe policies, rules,
      regulations, and procedures for Federal information activities
      is subject to the authority conferred on the Director by this
      chapter.

44 U.S.C. 3518(a).  The PRA further provides:

      Nothing in this chapter shall be interpreted as increasing or
      decreasing the authority of the President, the Office of
      Management and Budget, or the Director thereof, under the laws
      of the United States, with respect to the substantive policies
      and programs of departments, agencies and offices, including the
      substantive authority of any Federal agency to enforce the civil
      rights laws.

44 U.S.C. 3518(e).

   B. The OMB Regulations

   The Director of OMB has promulgated regulations, pursuant to 44
U.S.C. 3516, implementing the PRA.  See 5 C.F.R. 1302.1 et seq.  The
regulations, which were first issued in 1983 (48 Fed. Reg. 13,689) and
were revised in 1988 (53 Fed. Reg. 16,618, 16,623), interpret the
statute's requirements and provide additional practical guidance on
the meaning of statutory terms and the manner in which OMB conducts
its paperwork review.  /3/

   For example, the OMB regulations provide extensive guidance on the
practical application of the statutory term "collection of
information." See 5 C.F.R. 1320.7(c).  As explained above, the PRA
defines this term as "the obtaining or soliciting of facts or opinions
by an agency" (44 U.S.C. 3502(4)).  The OMB regulations interpret that
phrase as including "any requirement or request for persons to obtain,
maintain, retain, report, or publicly disclose information" (5 C.F.R.
1320.7(c)).  More specifically, the OMB regulations explain:

      Requirements by an agency for a person to obtain or compile
      information for the purpose of disclosure to members 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.  * * *

5 C.F.R. 1320.7(c)(2).

   The PRA also specifies that an "information collection request" may
be conducted through various means, including "reporting or
recordkeeping requirement(s) * * * or other similar method(s) calling
for the collection of information" (44 U.S.C. 3502(11) (Supp. IV
1986)).  The OMB regulations interpret the term "recordkeeping
requirement" to include "requirements that information be maintained
or retained by persons but not necessarily provided to an agency" (5
C.F.R. 1320.7(p) (emphasis added)).  And the regulations define
"reporting requirement," a term not otherwise defined in the statute,
to mean "a requirement imposed by an agency on persons to provide
information to another person or to the agency" (5 C.F.R. 1320.7(q)
(emphasis added)).  /4/

   The OMB regulations set forth the general requirements that an
agency must meet to obtain the Director's approval, pursuant to 44
U.S.C. 3507 and 3508 (1982 & Supp. IV 1986), of an "information
collection request." See 5 C.F.R. 1320.4.  First, an agency must
demonstrate, in accordance with the statutory criteria, that "it has
taken every reasonable 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.  * *
      *.

5 C.F.R. 1320.4(b).  Next, OMB will determine, in accordance with 44
U.S.C. 3508, "whether the collection of information, as submitted by
the agency, is necessary for the proper performance of the agency's
functions." 5 C.F.R. 1320.4(c).  "In making this determination, OMB
will take into account the criteria listed in Section 1320.4(b), and
will consider whether the burden of the collection of information is
justified by its practical utility." 5 C.F.R. 1320.4(c).  /5/ Finally,
"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." 5 C.F.R.
1320.4(c)(1).

   C. The Present Dispute

   The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C.
651 et seq., is intended "to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions" (29
U.S.C. 651(b)).  To accomplish this goal, the OSH Act authorizes the
Secretary of Labor "to set mandatory occupational safety and health
standards applicable to businesses affecting interstate commerce" (29
U.S.C. 651(b)(3)).  These standards "require() conditions, or the
adoption or use of one or more practices, means, methods, operations,
or processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment" (29 U.S.C. 652(8)).
See 29 U.S.C. 655.  The Secretary has promulgated numerous standards
regulating occupational exposure to various chemical hazards.  See 29
C.F.R. 1910.1000-1910.1101.  This suit arises out of the Secretary of
Labor's efforts to promulgate a comprehensive hazard communication
standard, pursuant to the OSH Act, for the purpose of "ensur(ing) that
the hazards of all chemicals produced or imported are evaluated, and
that information concerning their hazards is transmitted to employers
and employees" (29 C.F.R. 1910.1200(a)(1)).  The question is whether
the Secretary's hazard communication standard is subject to OMB review
in accordance with the PRA.  /6/

   The Secretary first published a hazard communication standard in
1983.  That standard, which was limited to the manufacturing sector of
the economy, required covered employers to inform their employees of
all hazardous substances to which they are exposed in the workplace
through the use of container labels, material safety data sheets
(MSDSs), and employee training programs.  See 29 C.F.R.
1910.1200(a)(2) (1984);  48 Fed. Reg. 53,280 (1983).  OMB reviewed and
approved the standard under the PRA (ibid.).  A number of states and
employee interest groups objected to the standard on various other
grounds and sought judicial review.  /7/

   The court of appeals rejected most of the challenges to the
Secretary's hazard communication standard.  See United Steelworkers of
America v. Auchter (USWA I), 763 F.2d 728 (3d Cir. 1985).  The court
disagreed, however, with the Secretary's decision to limit the
standard's coverage to the manufacturing sector.  The Secretary had
explained that he was limiting the standard's coverage based on his
determination "to first regulate those industries with the greatest
demonstrated need" (48 Fed. Reg. at 53,286).  The court concluded,
however, that there was record evidence justifying extension of the
standard to the non-manufacturing sectors.  It therefore directed the
Secretary:

      to reconsider the application of the standard to employees in
      other sectors and to order its application to other sectors
      unless he can state reasons why such application would not be
      feasible.

USWA I, 763 F.2d at 736-738, 739.

   In response to the court's order, the Secretary reopened the record
to gather additional evidence about the economic and technological
feasibility of applying the hazard communication standard to
non-manufacturing industries.  See 50 Fed. Reg. 48,794 (1985).  Based
on this newly acquired evidence and on the previous rulemaking record,
the Secretary initiated a new rulemaking, with the expectation that
this would result in a final rule in early 1988.  See 52 Fed. Reg.
31,852, 31,854 (1987).  Respondents, who were among the parties to the
USWA I litigation, objected to the new rulemaking and moved the court
of appeals to hold the Assistant Secretary in contempt for failing to
revise the hazard communication standard based on the existing
administrative record.  The court of appeals agreed that the
regulatory revision should be based on the existing record and
directed, under threat of contempt sanctions, that the Secretary:

      within sixty days of the date of our order, publish in the
      Federal Register a hazard communication standard applicable to
      all workers covered by the OSH Act, including those which have
      not been covered in the hazard communication standard as
      presently written, or a statement of reasons why, on the basis
      of the present administrative record, a hazard communication
      standard is not feasible.

United Steelworkers of America v. Pendergrass (USWA II), 819 F.2d
1263, 1270 (3d Cir. 1987) (footnote omitted).  Although the federal
government disagreed with that ruling, the Solicitor General, after
rehearing was denied, determined not to file a petition for a writ of
certiorari.

   On August 24, 1987, the Secretary complied with the court's order
and issued a final revised hazard communication standard covering both
the manufacturing and the non-manufacturing sectors of the economy (29
C.F.R. 1910.1200).  See 52 Fed. Reg. 31,852.  In addition to the
extended coverage, the revised standard included several modifications
to the original standard designed to make the standard more suitable
to the non-manufacturing sector.  Id. at 31,860.  On September 10,
1987, the Department of Labor requested that OMB approve the paperwork
requirements associated with the revised standard.  Shortly
thereafter, OMB held a public meeting, pursuant to the PRA, to solicit
comments on the recordkeeping, disclosure, and other paperwork
requirements of the revised standard.  See 52 Fed. Reg. 36,652 (1987).
 Subsequently, on October 23, 1987, OMB notified the Department of
Labor that it approved all of the proposed regulations, estimated to
impose 54 million "burden hours" of paperwork annually, with the
exception of three particular provisions that the Secretary had added
to the standard.  Pet. App. 22a-44a.  It specifically disapproved:
(1) "the requirement that (MSDSs) be provided on multi-employer
worksites" either through the exchange of MSDSs among employers or
their maintenance at a central location at the worksite;  (2) the
paperwork requirements resulting from "coverage of any consumer
product excluded from the definition of 'hazardous chemical' under
Section 311(e)(3) of the Superfund Amendments and Reauthorization Act
of 1986" (i.e., "any substance packaged in the same form and
concentration as a consumer product whether or not it is used for the
same purpose as the consumer product" (id. at 36a));  and (3) the
paperwork requirements stemming from "coverage of any drugs regulated
by (the Food and Drug Administration) in the non-manufacturing sector"
including those not sold in solid, final form.  Id. at 25a, 43a.  See
52 Fed. Reg. 46,076 (1987);  29 C.F.R. 1910.1200(b)(6)(vii),
(b)(6)(viii), and (e)(2)(i) (1988).

   OMB's disapproval of the first requirement was based on its
determination that either of the options provided for in the
regulations -- mandatory exchange of potentially huge numbers of MSDSs
at the worksite or depositing this information at a central location
on the worksite -- would impose substantial paperwork requirements but
would have little, if any, practical utility.  See Pet. App. 30a-33a.
OMB determined that the relevant information could be made available
through less burdensome means.  As for the other disapprovals,
although OSHA had provided a limited exemption for consumer products
if used in the same manner as in normal consumer use, and a limited
exemption for drugs in solid form (i.e., tablets or pills), OMB
concluded that these exemptions did not go far enough.  Specifically,
OMB found that the remaining requirements would substantially
duplicate the disclosures required by the Consumer Product Safety
Commission (CPSC), would be inconsistent with Environmental Protection
Agency (EPA) requirements for consumer products, and would needlessly
replicate existing Food and Drug Administration (FDA) disclosures
required for drugs.  See id. at 33a-38a.  OMB instructed the Secretary
"to revise these requirements * * * or collect new information that
would warrant a reconsideration of our decision" (id. at 26a).  /8/

   Respondents returned once again to the court of appeals and
requested that court to hold the Secretary of Labor and the Director
of OMB (who was not a party to the 1985 or 1987 litigation) in
contempt.  They argued that the Secretary violated the earlier orders
when she acceded to OMB's review and disapproval of portions of the
standard, and, more fundamentally, that OMB lacked authority under the
Paperwork Reduction Act to disapprove the pertinent provisions of the
hazard communication standard.  The court of appeals, while declining
to hold the Secretary or the Director in contempt, agreed with the
attack on OMB's authority and invalidated the disapproval, in effect
restoring the standard to the form promulgated by the Secretary.
United Steelworkers of America v. Pendergrass (USWA III), Pet. App.
1a-13a.  The court recognized that the Paperwork Reduction Act
authorizes OMB to determine "whether the collection of information by
an agency is necessary for the proper performance of the functions of
the agency" (44 U.S.C. 3504(c)(2)).  See Pet. App. 7a.  It held,
however, that the pertinent provisions of the hazard communication
standard "are insulated from OMB authority" because they do not
"require the 'collection of information'" and they "embod(y)
substantive policy decision making entrusted to (the Secretary of
Labor)" (id. at 8a).

   The court of appeals first reasoned that the two provisions dealing
with consumer products and drugs are "exemptions from the labeling
requirements of the hazard communication standard" (Pet. App. 9a
(emphasis in original)) and that "(w)hatever else the terms
'collection of information' or 'information collection requests' may
refer to, they cannot possibly refer to these exemptions from labeling
requirements" (ibid.).  The court then concluded that the disapproved
provision dealing with information exchange at multi-employer
worksites does not involve a "collection of information" because it
"requires employers, not to compile, but simply to transmit
information to covered employees" (ibid.).  The court stated that
"(t)he exchange requirement no more constitutes the collection of
information within the meaning of the (PRA) than do the requirements
for preparation of MSDSs by chemical manufacturers or the requirement
of preservation of MSDSs by single employers" (id. at 11a).  The court
added that its conclusion was "reinforced" by other language in the
PRA that "disaffirms the intention to grant substantive lawmaking
authority to OMB" (ibid.).

   Having addressed the merits, the court of appeals then turned to
the question whether the employee groups were entitled to challenge
OMB's disapproval through a contempt motion directed at the Secretary
of Labor, rather than bringing an action for review of OMB's action
pursuant to the Administrative Procedure Act.  The court reasoned that
the Secretary's withdrawal of the disapproved provisions was
inconsistent with the court's prior orders and that relief by motion
was therefore appropriate.  Pet. App. 12a-13a.

                          SUMMARY OF ARGUMENT

   The Secretary of Labor's hazard communication standard requires
employers to collect and retain chemical hazard information and to
communicate that information to their employees.  The question in this
case is whether the Paperwork Reduction Act (PRA) authorizes OMB to
review the paperwork burdens imposed by that standard.  The Secretary,
proceeding in conformity with OMB's regulations and established
government practices, submitted the hazard communication standard to
OMB for examination and later notified the regulated parties that
three disapproved provisions would not go into effect.  The court of
appeals held, however, that the Secretary's action was improper
because OMB lacked authority to review the relevant provisions.  The
court's decision in this case, which respondents have aptly described
as an "idiosyncratic proceeding" (USWA Br. in Opp. 11), is wrong and,
if left uncorrected, would seriously compromise a congressionally
prescribed mechanism for improving government regulations.

   1. The PRA, by its terms, indicates that OMB is required to review
the Secretary of Labor's hazard communication standard.  The PRA
expressly directs OMB to "review() and approv(e) information
collection requests proposed by agencies" (44 U.S.C. 3404(c)(1)), and
it expressly defines an "information collection request" as, among
other things, a "reporting or recordkeeping requirement, collection of
information requirement, or other similar method calling for the
collection of information" (44 U.S.C. 3502(11) (Supp. IV 1986)).  The
hazard communication standard, and in particular the three disapproved
provisions, fall within that definition.  The provisions, which
require employers to compile, disclose, and distribute chemical hazard
information for the benefit of their employees, impose "reporting,"
"recordkeeping," and "collection of information" requirements.  The
PRA directs review by OMB of these requirements irrespective of
whether the information is provided to the government or directly to
third parties.

   OMB's implementing regulations likewise define a "collection of
information" requirements to include regulatory provisions such as the
hazard communication standard.  OMB's regulations state, among other
things, that a "collection of information" requirement includes an
agency demand that persons "obtain, maintain, retain, report, or
publicly disclose information" (5 C.F.R. 1320.7(c)).  OMB's
interpretation is clearly reasonable and entitled to judicial
deference.  Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).  Deference is particularly appropriate
because OMB was intimately involved in the creation of the
legislation, its interpretation reflects the construction of the
statute by the expert agency charged with its implementation, and OMB
has consistently adhered to that interpretation.

   2. The court of appeals erred in concluding that the PRA does not
give OMB "authority to second guess other federal agencies with
respect to the kinds of disclosure needed to accomplish substantive
policies entrusted to such agencies" (Pet. App. 10a).  The PRA
specifically instructs OMB to determine whether the agency's proposed
collection of information "is necessary for the proper performance of
the functions of the agency" (44 U.S.C. 3504(c)(2), 3508).  The court
of appeals' reliance on other provisions of the PRA, which require OMB
to exercise its authority in accordance with existing law (44 U.S.C.
3504(a) (1982 & Supp. IV 1986)) and which provide that the PRA should
not be interpreted to increase or decrease OMB's authority with
respect to "substantive policies and programs" (44 U.S.C. 3518(e)), is
misplaced.  Those general provisions do not rescind the express
statutory requirement that OMB review whether an agency has chosen
effective information collection methods to achieve its regulatory
objectives.

   The government's position is not only consistent with the statutory
language, it promotes Congress's express goal of minimizing paperwork
burdens and maximizing the usefulness of government information
collection activities.  OMB's centralized review of agency information
collection requests improves agency decisionmaking by providing an
objective "second look" at the agency's information collection
requirements to assure that they are useful, are not unduly
burdensome, and do not duplicate the requirements imposed by other
laws or regulations.  The court of appeals' invalidation of this
valuable intragovernmental review process only frustrates the
development of well-reasoned rules.  That result would not only thwart
Congress' objectives and the Executive Branch's functions, but it
would also increase the Judicial Branch's workload in reviewing
potentially defective agency action.

   3. This Court need not consult the PRA's legislative history to
resolve this case.  Nevertheless, the legislative record contains
powerful support for OMB's authority to review information collection
requests such as the hazard communication standard.  The hearings and
committee reports indicate that Congress intended the PRA to cover the
types of information collection activities involved here and that OMB
is entitled to review the paperwork obligations imposed by an agency
in seeking to accomplish its "substantive" policies.  The legislative
history therefore confirms that the disapproved provisions of the
Secretary of Labor's hazard communication standard fall within the
PRA's broad definition of information collection requests and that
they are subject to OMB review.

                               ARGUMENT

   THE PAPERWORK REDUCTION ACT DIRECTS OMB TO REVIEW THE DISAPPROVED
PROVISIONS OF THE SECRETARY OF LABOR'S HAZARD COMMUNICATION STANDARD

   Congress enacted the PRA to provide a mechanism for centralized
governmental review of agency information collection requests.
Detailed regulations implement the PRA and explain the scope of the
statute's coverage.  Based on the PRA's plain language and OMB's
regulations, the Secretary of Labor's hazard communication standard,
which requires regulated entities to compile, disclose, and distribute
information, properly falls within the PRA's scope and is therefore
subject to the Act's requirements.

   The court of appeals concluded that OMB lacked authority to review
the relevant provisions of the hazard communication standard and ruled
that the Secretary's submission of the standard to OMB for PRA review
therefore violated the court's previous orders.  The court of appeals'
decision thus squarely presents the question whether the PRA directs
review by OMB of regulatory provisions, such as those involved here,
that require entities to compile, disclose, and distribute
information.  We submit that the court's decision is inconsistent with
the language of the PRA, pervasively conflicts with OMB's regulations
and established government practices, and would defeat Congress's
objective of improving the government's regulatory efforts.  This
Court should reverse the judgment below and reinstate OMB's
disapproval of the three relevant provisions of the hazard
communication standard.  The Secretary may then reevaluate and, if
necessary, revise those provisions in response to OMB's concerns.  /9/

   A. The Paperwork Reduction Act And OMB's Implementing Regulations
Establish That The Relevant Provisions Of The Hazard Communication
Standard Are Information Collection Requests Subject To OMB Review And
Approval

   The central question in this case is whether the provisions of the
hazard communication standard at issue constitute "information
collection requests" that are subject to PRA review.  The starting
point for answering that question is, of course, the PRA's language.
E.g., Community for Creative Non-Violence v. Reid, No. 88-293 (June 5,
1989), slip op. 19.  "If the intent of Congress is clear, that is the
end of the matter;  for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-843 (1984).  Since Congress has set forth the PRA's general scope
and application in unusually comprehensive terms, the answer turns on
a correspondingly narrow issue of statutory construction.

   1. As we have explained, the PRA expressly directs OMB to "review()
and approv(e) information collection requests proposed by agencies"
(44 U.S.C. 3504(c)(1)).  The PRA expressly defines an "information
collection request" as, among other things, a "reporting or
recordkeeping requirement, collection of information requirement, or
other similar method calling for the collection of information" (44
U.S.C. 3502(11) (Supp. IV 1986)).  The issue then is whether the
hazard communication standard, and in particular the three disapproved
provisions, fall within the express definition of an "information
collection request."

   Both the original and the revised hazard communication standards --
which require employers to compile, disclose, and distribute chemical
hazard information -- involve a wide variety of "information
collection requests." For example, both hazard communication standards
require chemical manufacturers to develop hazard information, label
their chemical containers, and prepare material safety data sheets
(MSDSs) that are then sent to downstream employers that are engaged in
businesses that use or distribute chemicals.  See 29 C.F.R.
1910.1200(d), (f) and (g).  Even though there is no requirement to
send this information to the Department of Labor (or any other federal
agency), these government-compelled obligations to compile, disclose,
and distribute technical information impose -- in common parlance and
as specifically defined in the PRA -- "reporting," "recordkeeping,"
and "collection of information" requirements.

   Although the term "reporting requirement" is not specifically
defined by the Act, the accepted definition of the verb "report"
includes to "give an account of," "make a written record or summary
of," "announce or relate as the result of a special search (or)
examination," and "give notification." Webster's Third New
International Dictionary 1925 (1976).  The adjective "reporting"
denotes these same acts, which aptly describe the hazard communication
standard's information disclosure and dissemination requirements.  The
PRA itself defines a "recordkeeping requirement" as a "requirement
imposed by the agency to maintain specified records" (44 U.S.C.
3502(17) (Supp. IV 1986)), and it defines the "collection of
information" as "the obtaining or soliciting of facts or opinions by
an agency" through various means (44 U.S.C. 3502(4)).  Thus, those
terms encompass the hazard communication standard's compilation,
disclosure, and distribution requirements.  In addition, we note that
there is a substantial overlap between the terms.  See 44 U.S.C.
3502(4) (defining the collection of information to include soliciting
facts or opinions through reporting or recordkeeping requirements).

   Both the original and the revised hazard communication standards
also require chemical manufacturers and the downstream employers (1)
to prepare a written hazard communication program that describes the
manufacturer's or employer's general compliance plan and includes a
list of hazardous chemicals known to be present at the worksite (29
C.F.R. 1910.1200(e));  (2) to ensure proper labeling of containers
containing hazardous chemicals (29 C.F.R. 1910.1200(f));  and (3) to
collect and maintain copies of the MSDSs for chemicals that they use
and to make them readily accessible to employees (29 C.F.R.
1910.1200(g)).  Chemical manufacturers and downstream employers are
further required to provide information and training to their
employees with respect to the requirements of the hazard communication
standard and chemical hazards in the workplace.  These
government-compelled obligations to prepare instructions, and to
collect, disclose, and distribute information, similarly impose
"reporting," "recordkeeping" and "collection of information"
requirements.  For example, the employers' obligation to disclose
hazard information to their employees is a "reporting requirement,"
the obligation to compile copies of MSDSs is a "recordkeeping
requirement," and the obligation to prepare a hazard communication
program, including a list of hazardous chemicals, is a "collection of
information requirement."

   The three specific provisions at issue are an integral part of the
hazard communication standard's "information collection requests" and
accordingly are subject to PRA review.  The first two provisions,
which provide that the hazard communication standard "does not apply"
to certain consumer products (29 C.F.R. 1910.1200(b)(6)(vii)) and
certain FDA-regulated drugs (29 C.F.R. 1910.1200(b)(6)(viii)), are
limited exemptions from the standard's general requirements.  Since
the scope of these exemptions determines the breadth of the hazard
communication standard's reporting, recordkeeping, and collection of
information requirements, they serve to define the scope of the
standard's "information collection requests" and are subject to PRA
review.  The third provision, which obligates employers to exchange or
centrally maintain MSDSs at multi-employer worksites, is itself an
"information collection request" subject to PRA review.  It plainly
constitutes a recordkeeping requirement since it requires employers to
collect documents and store them at a specific location.

   We therefore submit that the PRA's specific terms demonstrate that
OMB was fulfilling its statutory responsibility in reviewing the
disapproved provisions of the hazard communication standard.  The
court of appeals was quite clearly wrong in concluding -- without any
supporting reasoning -- that the first two provisions are immunized
from PRA review because the term "'information collection requests' *
* * cannot possibly refer to these exemptions from labeling
requirements" (Pet. App. 9a).  /10/ Since the hazard communication
standard contains information collection requests, an exemption from
those requests defines the scope of the paperwork obligation imposed
by the agency and is subject to PRA review.  The court of appeals also
erred in concluding that the third disapproved provision is immune
from PRA scrutiny.  The court stated that "(t)he multi-employer MSDS
exchange provision requires employers, not to compile, but simply to
transmit information to covered employees" (ibid.), adding that the
PRA is aimed exclusively "at reducing the burden of paperwork required
by the federal government for its own regulatory or statistical
purposes" (id. at 10a).  That reasoning is incorrect.  /11/

   As we have explained, the PRA expressly defines the term
"information collection request" to include methods, such as reporting
or recordkeeping requirements, "calling for the collection of
information" (44 U.S.C. 3502(11) (1982 & Supp. IV 1986)).  That
definition indicates that the PRA's review provisions are triggered by
a government request for information collection, regardless of whether
the party charged with gathering the information is required to retain
it, transmit it to the government, or disseminate it to third parties.
 The PRA's definition of the term "collection of information" echoes
that point.  It defines that term disjunctively to include "the
obtaining or soliciting of facts or opinions by an agency" (44 U.S.C.
3502(4) (emphasis added)).  Thus, an agency request that parties
gather or develop facts or opinions results in a "collection of
information" regardless of whether the government -- or some other
entity -- ultimately obtains the resulting data.

   Indeed, the court of appeals' suggested distinction between the
paperwork associated with the hazard communication standard and
"paperwork required by the federal government for its own regulatory
or statistical purposes" (Pet. App. 10a) is illusory.  The Secretary
of Labor has no authority to require "paperwork" except for
"regulatory purposes." The hazard communication standard and its
associated information collection requests are intended to promote the
Secretary's regulatory objective of informing employees of workplace
chemical hazards.  /12/ By the same token, respondents' suggestion
that PRA review "applies only to information collected for
governmental use" (USWA Br. in Opp. 19) also fails.  The government
certainly "uses" the hazard communication standard's information
collection requests to promote employer communication of workplace
chemical hazards.  In fact, the government itself has direct access to
the resulting collections of information to fulfill its enforcement
responsibilities under the OSH Act.  /13/ Thus, respondents' argument
necessarily reduces to an assertion that the PRA should not apply
where the government imposes information collection requests primarily
to provide direct disclosure of information to third parties.  The
PRA's definition of the term "information collection request"
indicates, however, that the PRA does apply in that circumstance.

   2. We submit that the PRA is sufficiently clear that the judgment
of the court of appeals should be reversed on the basis of the
statutory language alone.  See Bethesda Hospital Ass'n v. Bowen, 108
S. Ct. 1255, 1258 (1988).  But even if the PRA were silent or
ambiguous with respect to the specific issue, a court should not
"simply impose its own construction on the statute" (Chevron U.S.A.,
467 U.S. at 843).  It is well settled that "a court may not substitute
its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency" (id. at 844).
OMB, which is charged with implementing the PRA, has issued
regulations that provide specific guidance on the question prsented in
this case.  The agency's interpretation is controlling if it "is based
on a permissible construction of the statute" (id. at 843).

   OMB prepared its regulations in accordance with Congress's express
directive to "promulgate rules, regulations, or procedures necessary
to exercise the authority provided by this chapter." 44 U.S.C. 3516.
Those regulations (which the court of appeals did not even
acknowledge) specifically and unambiguously address the precise
question at issue in this case:  whether the critical statutory term
"information collection request" -- which is defined to include a
"reporting or recordkeeping requirement, collection of information
requirement, or other similar method calling for the collection of
information" -- includes agency initiatives requiring the collection
of information for disclosure to third parties.

   The regulations give considerable attention to the meaning of the
term "collection of information." They recognize that the PRA defines
a "collection of information" to include "the obtaining or soliciting
of facts or opinions by an agency through the use of * * * reporting
or recordkeeping requirements, or other similar methods" (44 U.S.C.
3502(4)).  See 5 C.F.R. 1320.7(c).  But the regulations explain, in
accordance with the common meaning of the words used, that the
"soliciting of facts or opinions" can include an agency demand that
persons "obtain, maintain, retain, report, or publicly disclose
information" (5 C.F.R. 1320.7(c)).  OMB's regulations further state:

      Requirements by an agency for a person to obtain or compile
      information for the purpose of disclosure to members 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.  * * *.

5 C.F.R. 1320.7(c)(2).  OMB's implementing regulations thus construe a
"collection of information" requirement to include regulations such as
the Secretary of Labor's hazard communication standard.

   The regulations also define the other terms that are included in
the definition of an "information collection request" in such a manner
as to make clear that they apply to information collected for the
benefit of third parties.  OMB's regulations specify that a "reporting
requirement" can include an agency requirement that a person "provide
information to another person" (5 C.F.R. 1320.7(q)), and that a
"recordkeeping requirement" can include an agency requirement "that
information be maintained or retained by persons but not necessarily
provided to an agency" (5 C.F.R. 1320.7(p)).  They also provide that
"similar methods" can include "disclosure requirements," "labeling
requirements," "plans," and "instructions" (5 C.F.R. 1320.7(c)(1)).
See note 4, supra.  There can be little doubt then that under OMB's
regulations the hazard communication standard's provisions requiring
employers to communicate hazard information to employees through
compilation and maintenance of MSDSs, labeling, and written training
requirements constitute an information collection request.
Furthermore, that interpretation is clearly reasonable and entitled to
judicial deference.  Chevron U.S.A., 467 U.S. at 843-845.  As this
Court recently observed, where "the agency regulation is not in
conflict with the plain language of the statute, a reviewing court
must give deference to the agency's interpretation of the statute." K
mart Corp. v. Cartier, Inc., 108 S. Ct. 1811, 1817 (1988).

   In this case, OMB's regulatory interpretation is not only the most
sensible construction of the specific language at issue, but it also
is manifestly consistent with the PRA's objectives, as expressed by
"the language and design of the statute as a whole." K mart Corp., 108
S. Ct. at 1817.  The PRA's stated purpose is to minimize the public's
paperwork burdens while maximizing the usefulness of information that
must be collected, maintained, or disseminated pursuant to federal
requirements.  44 U.S.C. 3501 (1982 & Supp. IV 1986).  These
objectives are no less relevant and important when a federal agency
requires persons to collect information and disseminate it to third
persons, than when an agency requires such persons to collect
information and transmit it to the agency itself.  Indeed, the D.C.
Circuit recently recognized that point in Action Alliance of Senior
Citizens v. Bowen, 846 F.2d 1449 (1988), petition for cert. pending,
No. 88-849.  In Action Alliance, OMB had exercised its authority under
the PRA's predecessor statute -- the Federal Reports Act of 1942, 44
U.S.C. 3501 et seq. (1976) -- to disapprove, in part, a Department of
Health and Human Services regulation requiring federal funds
recipients to perform a "self-evaluation" of their compliance with the
Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., and to make
that self-evaluation available on request to the agency and the
public.  The court of appeals affirmed OMB's action, rejecting as
"pure pettifoggery" (846 F.2d at 1453) the appellants' claim that the
term "collection of information" includes only data submitted to the
agency.  The court explained:

      Appellants cannot seriously believe that in enacting the Reports
      Act Congress was concerned solely or primarily with private
      parties' costs of mailing data to Washington;  it is the
      record-keeping and data-gathering that constitute the burden.
      Moreover, OMB and its predecessor, the Bureau of the Budget,
      have interpreted the statutory term "collection of information"
      for nearly half a century to encompass "(a)ny general or
      specific requirement for the establishment or maintenance of
      records . . . which are to be used or be available for use in
      the collection of information." * * * Even under the deference
      we owe the agency, * * * we doubt we could uphold a view of the
      Reports Act that made physical delivery to an agency essential
      to the notion of "collection of information." Happily we
      confront no such oddity.

846 F.2d at 1453-1454.  /14/

   OMB's regulatory interpretation is not only sensible, it also has
other characteristics that counsel in favor of judicial deference.
For example, OMB was intimately involved in the creation of the
legislation.  See Miller v. Youakim, 440 U.S. 125, 144 (1979);  United
States v. American Trucking Ass'ns, 310 U.S. 534, 549 (1940).  See pp.
38-41, infra.  This Court has noted that "(a)dministrative
interpretations are especially persuasive where, as here, the agency
participated in developing the provision." Youakim, 440 U.S. at 144.
In addition, OMB's regulations represent the construction of a statute
by an agency "'charged with the responsibility of setting its
machinery in motion, of making the parts work efficiently and smoothly
while they are yet untried and new.'" Zenith Radio Corp. v. United
States, 437 U.S. 443, 450 (1978) (quoting Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933)).

   Furthermore, as our petition for a writ of certiorari explained,
OMB has consistently applied its regulatory interpretation to a wide
variety of information collection activities similar to those
presented in this case, including Environmental Protection Agency
(EPA) community right-to-know disclosures (52 Fed. Reg. 38,344
(1987)), Federal Trade Commission (FTC) textile fiber products
identification disclosures and fair packaging and labeling disclosures
(53 Fed. Reg. 5986 (1988);  id. at 13,159), and Food and Drug
Administration (FDA) nutrition labels (52 Fed. Reg. 28,607 (1987)), as
well as numerous other federally mandated disclosures.  See Pet.
17-18.  Indeed, as the D.C. Circuit recognized, OMB's interpretation
is an extension of the Bureau of the Budget's established practices
under the PRA's predecessor statute, the Federal Reports Act of 1942.
"This longstanding and consistent interpretation is entitled to
considerable weight." Zenith Radio Corp. v. United States, 437 U.S. at
450.  /15/

   Finally, we consider it significant that OMB and the Secretary of
Labor have consistently agreed that the hazard communication standard
is subject to PRA review.  The Secretary's notices of proposed
rulemaking and final rules have uniformly recognized that OMB review
is required by the PRA.  See 47 Fed. Reg. 12,092, 12,111 (1982) (J.A.
36-37);  48 Fed. Reg. 53,280 (1983) (J.A. 38-39), 52 Fed. Reg. 31,852,
31,870 (1987) (J.A. 40, 47-48);  53 Fed. Reg. 29,822, 29,826,
29,849-29,850 (1988) (J.A. 49, 63-64, 102-103).  When two Executive
Branch agencies agree that intra-governmental review is proper in
developing an effective regulation, courts should be especially
reluctant to interfere with that cooperative process.

   B. OMB's Review Does Not Impermissibly Increase OMB's Authority
With Respect To The Substantive Policies And Programs Of The
Department Of Labor

   The court of appeals offered a second reason for denying OMB
authority to review the relevant provisions of the Secretary of
Labor's hazard communication standard.  The court suggested that the
PRA does not give OMB "authority to second guess other federal
agencies with respect to the kinds of disclosure needed to accomplish
substantive policies entrusted to such agencies" (Pet. App. 10a).  See
also Pet. App. 8a, 11a.  The court's interpretation of the PRA is
incorrect and would defeat the PRA's basic purposes.

   1. Section 3508 of the PRA sets forth the standard that OMB must
apply in reviewing information collection requests.  It states in
relevant part:

      Before approving a proposed information collection request,
      (OMB) shall determine whether the collection of information by
      an agency is necessary for the proper performance of the
      functions of the agency, including whether the information will
      have practical utility.  * * *.  To the extent, if any, that the
      Director determines that the collection of information by an
      agency is unnecessary, for any reason, the agency may not engage
      in the collection of the information.

44 U.S.C. 3508 (emphasis added).  See also 44 U.S.C. 3504(c).  Thus,
the PRA states in the clearest possible terms that OMB shall review
agency information collection requests specifically to determine
whether the agency's proposed paperwork requirements are necessary to
accomplish the agency's functions.  Indeed, the Act specifically
provides that "the authority of an agency under any other law to
prescribe policies, rules, regulations, and procedures for Federal
information activities is subject to the authority conferred on the
Director by this chapter" (44 U.S.C. 3518(a) (emphasis added)).

   The court of appeals' contrary conclusion apparently resulted from
its exclusive focus on two other provisions of the PRA, Sections
3504(a) and 3518(e).  Section 3504(a), which describes OMB's general
responsibilities under the PRA, states that OMB shall exercise its
authority "consistent with applicable law." Section 3518(e), which
describes the PRA's relationship to other laws, states that the
statute shall not be interpreted "as increasing or decreasing the
authority of the President, (OMB), or the Director thereof, under the
laws of the United States, with respect to the substantive policies
and programs of departments, agencies and offices." These provisions,
particularly when read in conjunction with Section 3508 and Section
3518(a), do not support the court of appeals' conclusion.

   Section 3504(a)'s general requirement that OMB exercise its
authority "consistent with applicable law" does not prevent OMB from
discharging its statutorily conferred responsibility to disapprove
agency information collection requests that are not "necessary" for
the proper performance of the functions of the agency" (44 U.S.C.
3508).  The "consistency" provision obviously should not be read to
rescind other provisions of the PRA.  To hold otherwise "would be to
impute to Congress a purpose to paralyze with one hand what it sought
to promote with the other." Clark v. Uebersee Finanz-Korporation,
A.G., 332 U.S. 480, 489 (1947).  Rather, the "consistent with
applicable law" provision simply directs OMB to carry out its various
regulatory and information management activities in accordance with
such generally applicable statutes as the Administrative Procedure
Act, 5 U.S.C. 551 et seq., the Privacy Act of 1974, 5 U.S.C. 552a, and
government procurement laws.  In any event, since the PRA requires OMB
to disapprove unnecessary information collection requests, and we know
of no laws requiring agencies to collect information that they do not
need "for the proper performance" of their functions, OMB's exercise
of its disapproval authority necessarily is "consistent with
applicable law."

   OMB's disapproval authority also is entirely compatible with
Section 3518(e).  The court of appeals interpreted that provision,
which counsels that the PRA should not be interpreted as increasing or
decreasing OMB's authority "with respect to the substantive policies
and programs" of other agencies (44 U.S.C. 3518(e)), as
"disaffirm(ing) the intention to grant substantive lawmaking authority
to OMB" (Pet. App. 11a).  But as this Court recently explained, "the
terms 'substance' and 'procedure' precisely describe very little
except a dichotomy, and what they mean in a particular context is
largely determined by the purposes for which the dichotomy is drawn."
Sun Oil Co. v. Wortman, 108 S. Ct. 2117, 2124 (1988).  See also
Mistretta v. United States, 109 S. Ct. 647, 655 (1989).

   In the case of the PRA, Congress drew a distinction between OMB's
statutory duties -- including its expressly defined authority to
disapprove burdensome and unnecessary paperwork requirements -- and
other activities unrelated to paperwork reduction.  What the
substantive/non-substantive distinction means in this context,
therefore, is simply that OMB's authority over an agency's policies
and procedures under the PRA extends only to the review of information
collection requests, and no further.  The distinction does not -- and
could not -- mean that OMB has no authority under the PRA to redirect
agency policies and programs insofar as they entail excessive or
burdensome paperwork requirements.  /16/ As in the case of Section
3504(a), construing Section 3518(e) in that fashion would result in
imputing to Congress an improbable intent to "paralyze" the PRA's
information collection review process.  Clark, 332 U.S. at 489.  /17/

   2. The court of appeals thus erred in concluding that the PRA does
not require OMB to review "the kinds of disclosure needed to
accomplish substantive policies entrusted to such agencies" (Pet. App.
10a).  The statutory text plainly imposes such an obligation.
Sections 3504, 3508, and 3518 are completely compatible and, when read
in context, they produce a harmonious and sensible result.  As a
general matter, they recognize that while an agency has authority to
determine, in accordance with its statutory mandate, its regulatory
objectives, OMB is required to review whether the agency has chosen
effective information collection methods to achieve those objectives.
That result is consistent with the statutory language and promotes
Congress's express objective of minimizing the paperwork burden and
maximizing the usefulness of government information collection
activities.  See 44 U.S.C. 3501 (1982 & Supp. IV 1986).

   The court of appeals' reasoning in this respect rests on a deeper
fallacy.  Far from "thwarting" or "frustrating" agency policymaking
prerogatives, OMB's centralized review of information collection
requests improves agency decisionmaking.  OMB has developed expertise
in the specialized discipline of information management.  See
generally Information Management in Public Administration (F. Horton &
D. Marchand ed. 1982).  Its role as a government-wide reviewer of
agency information collection requests gives it an especially
knowledgeable perspective on the effectiveness and practical utility
of agency paperwork requirements.  And it can provide special insights
based on its familiarity with other information collection activities
within the government.  See generally Sierra Club v. Costle, 657 F.2d
298, 404-408 (D.C. Cir. 1981).  Thus, by allowing OMB to provide an
objective "second look" at an agency's collection of information
requirements in order to assure that they are useful, are not unduly
burdensome, and do not duplicate the requirements imposed by other
laws or regulations, the PRA's review process improves the quality of
the agency's efforts to implement its own programs and policies.

   OMB's review of the three disapproved provisions in this case
illustrates how that process was meant to work and how it can provide
a valuable mechanism for improving agency decisionmaking.  In
extending the hazard communication standard to embrace the entire
economy, the Secretary modified the standard's requirements in light
of a number of situations that generally are not encountered in the
manufacturing sector.  See 52 Fed. Reg. 31,852 (1987) (J.A. 40-47).
The Secretary of Labor determined, among other matters, that the
standard should assure that employees at multi-employer worksites have
access to hazard information concerning all of the hazards at the site
and that the standard should provide an exemption from its coverage
for consumer products and drugs that do not present genuine workplace
hazards.  Ibid.  OMB did not disagree with those determinations.
Rather, its review was limited to whether the paperwork requirements
associated with those objectives were necessary, including whether the
information collection requests imposed by the Secretary's regulation
would have "practical utility" (44 U.S.C. 3504(c), 3508).

   More specifically, OMB solicited comments from interested parties
and, based on the resulting record, found that the Secretary had
failed to provide an adequate justification for its three
modifications.  See 52 Fed. Reg. 46,076 (1987) (Pet. App. 22a-44a).
Although OMB disapproved the Secretary's methods in those three
respects, thus preventing their enforcement, OMB also suggested
alternative methods that OMB believed would achieve the Secretary's
regulatory goals.  Ibid.  In addition, OMB directed the Secretary to
take action "to revise these requirements * * * or collect new
information that would warrant a reconsideration of our decision" (id.
at 26a).  The Secretary has subsequently solicited public comment and
held hearings on what modifications (if any) should be made in light
of OMB's disapproval.  See 53 Fed. Reg. 29,822 (1988) (J.A. 49-102).
Clearly, completion of the supplemental rulemaking, including further
OMB review, should result in a better-reasoned rule.

   As previously explained, OMB's reasons for disapproving the three
provisions were that multi-employer worksite provisions imposed
substantial burdens without associated benefits (Pet. App. 30a-33a),
that the Secretary's consumer product exemption was incongruous with
CPSC's requirements as well as with EPA's related exemption under its
community right-to-know regulations (id. at 33a-36a), and that the
Secretary's drug exemption would result in substantial duplication of
disclosures already required by the FDA (id. at 37a).  By requiring
the Secretary to reconsider these provisions, OMB ensured that the
Secretary would either supply additional justification for the
original provisions or make appropriate revisions based on the
expanded rulemaking record.  The court of appeals' judgment holding
that the PRA review process cannot be applied in the circumstances
presented by this case can result only in devaluing the governmental
interest in reducing paperwork burdens created by regulatory
processes.  That result would not only thwart Congress's objectives
and impair Executive Branch functions, but it also would needlessly
increase the Judicial Branch's burdens in reviewing potentially
defective rules.

   C. The Paperwork Reduction Act's Legislative History Indicates That
Congress Intended To Require OMB Review In These Circumstances

   As we have explained, the PRA's express terms direct OMB to review
the disapproved provisions of the Secretary of Labor's hazard
communication standard.  To the extent that "the statute is silent or
ambiguous" (Chevron U.S.A., 467 U.S. at 843), OMB's exercise of its
authority "is based on a permissible construction of the statute"
(ibid.).  Thus, the Court need go no further.  Nonetheless, we think
it is relevant that the PRA's legislative history strongly supports
OMB's obligation to review the information collection activities such
as the hazard communication standard.  The legislative record
demonstrates, in particular, that Congress intended the PRA to cover
the types of information collection activities involved here and that
OMB is entitled to review the paperwork obligations imposed by an
agency as a method of accomplishing the agency's "substantive"
policies.

   The PRA was an outgrowth of Congress's efforts to update the
Federal Reports Act of 1942 and, more generally, to reduce government
paperwork burdens and improve the government's use and management of
information.  In 1974, Congress established the Commission on Federal
Paperwork "to reexamine the policies and procedures of the Federal
Government which have an impact on the paperwork burden" (Act of Dec.
27, 1974, Pub. L. No. 93-556, Section 1, 88 Stat. 1789).  The
Commission's members included the Director of OMB, who was responsible
for reviewing the information collection activities of Executive
Branch agencies under the Federal Reports Act (44 U.S.C. 3506, 3509
(1976)), and the Comptroller General, who was responsible for
reviewing the information collection activities of independent
agencies under that Act (44 U.S.C. 3512 (1976)).  See Section 4, 88
Stat. 1790.

   In 1977, the Commission on Federal Paperwork issued a study
entitled The Reports Clearance Process (Sept. 9, 1977) that described
some of the shortcomings of the Federal Reports Act's review process.
That study explained:

      The Act is not clear on its coverage of a major portion of the
      paperwork burden -- recordkeeping requirements -- although
      recordkeeping is covered in OMB Circular A-40, the primary
      guideline instruction, as well as other OMB and GAO guidelines.

Id. at 1.  The study further noted that "(n)ot all agencies covered by
the Federal Reports Act comply fully with its requirements" (ibid.).
The study later explained:

      For years, several of the regulatory agencies, particularly the
      Federal Trade Commission (FTC) and the Securities and Exchange
      Commission (SEC) held themselves exempt, not always with
      success, from the reports clearance control of the Bureau of the
      Budget.  The FTC took the position that its law enforcement
      responsibilities, mandated by the Congress, required the
      collection of information from business entities and industries
      which was for it alone to determine.  The SEC took a similar
      position with regard to the information needed in enforcing the
      disclosure requirements of the securities laws.

Id. at 43.  /18/

   In 1979, Senator Chiles introduced legislation to amend the Federal
Reports Act (S. 1411, 96th Cong., 1st Sess.), and the following year,
Representative Brooks introduced similar legislation (H.R. 6410, 96th
Cong., 2d Sess.).  In each instance the proposed legislation gave OMB
centralized authority to review information collection requests,
specifically clarifying, through the definition of the terms
"information collection request" and "collection of information" that
government-imposed recordkeeping requirements and other similar
requirements would be subject to OMB review.  See S. 1411, supra
(Section 3502(5) and (6));  H.R. 6410, supra (Section 3502(2) and
(9)).  Furthermore, both bills specifically authorized OMB to review
the information collection requests of independent agencies, such as
the SEC, but allowed those agencies to "override" OMB's decision to
disapprove specific requests.  See S. 1411, supra (Section 3509);
H.R. 6410, supra (Section 3507).

   In subsequent hearings, OMB and the Comptroller General testified
and submitted comments in favor of the legislation, specifically
noting that the proposed changes would cure the previously cited
deficiencies in the Federal Reports Act.  See Paperwork and Redtape
Reduction Act of 1979:  Hearing on S. 1411 Before the Subcomm. on
Federal Spending Practices and Open Government of the Senate Comm. on
Governmental Affairs, 96th Cong., 1st Sess. 24-60, 119-125 (1979)
(hereinafter S. 1411 Hearings);  Paperwork Reduction Act of 1980:
Hearings on H.R. 6410 Before a Subcomm. of the House Comm. on
Government Operations, 96th Cong., 2d Sess. 35-60, 88-108 (1980)
(hereinafter H.R. 6410 Hearings).

   Representatives of several independent agencies, including the SEC,
objected to a number of the proposed changes, contending that the
legislation's definition of "collection of information" was too broad
and that the legislation would substantially undermine their
regulatory independence.  See S. 1411 Hearings 61-87;  H.R. 6410
Hearings 313-336.  For example, Commissioner Evans of the SEC stated:

         In our view, the definition of collection of information in
      the Federal Reports Act under current law is limited to
      collection for statistical purposes and does not authorize
      review of disclosure or enforcement related information
      gathering.

         By contrast, the definition of "collection of information" in
      section 3502 of this bill which makes any request for
      information to 10 or more persons in a standard form subject to
      the approval provisions of the bill appears to be far more
      extensive.  This expansion of the Federal Reports Act is of
      major concern to us.

                      *   *   *   *   *

         Moreover, the standards in section 3507( /19/ ) demonstrate
      that it should not apply to the Commission's requirements for
      disclosure to the public.  These standards are based on the
      Government's need for information, but Commission disclosures
      are based on the need of the public for the information;  the
      information does not have practical utility to the Commission,
      but rather to the public.

S. 1411 Hearings 67-68.  Senator Chiles viewed the independent
agencies' objections skeptically, asking the representatives of the
SEC and the Federal Communication Commission (FCC) "why is it, each of
your independent regulatory missions are any different from that of
any executive agency regulatory mission like EPA or OSHA?" (id. at
84).  He later added,

      Well, you both make very persuasive arguments for the
      independence of your agencies and the sensitivity of what you
      are protecting.

         However, I fail to see that that is more persuasive than the
      environmental protection of this country.  I fail to see that it
      is more sensitive.  I fail to see that there is less pressure by
      concerns that would be trying to stop reports of regulations in
      regard to environmental matters or the safety of workers at the
      workplace.

S. 1411 Hearings 85.  /20/

   The House and Senate Committees decided to retain the broadened
definitions of the terms "information collection requests" and
"collection of information." The House Report on H.R. 6410 explained
that "the OMB Director is to ensure that the agencies, in developing
rules and regulations, use efficient methods to collect, use, and
disseminate the necessary information." H.R. Rep. No. 835, 96th Cong.,
2d Sess. 9 (1980).  The Report noted that "recordkeeping requirements
are specifically included in the reports clearance process" (id. at
19).  The Senate Report on S. 1411 agreed.  See S. Rep. No. 930, 96th
Cong., 2d Sess. 13 (1980).  It added that the definition of the term
"recordkeeping requirement" "includes information maintained by
persons which may be but is not necessarily provided to a Federal
agency" (id. at 40).  The Senate Report further explained that

      (T)he term "collection of information" has been clarified to
      eliminate the possibility that information collections be
      interpreted to apply only to situations where answers provided
      by respondents are to be used for statistical compilations of
      general public interest.  This interpretation, which has been
      employed by the (SEC), will not have any foundation.

Id. at 13.  Accord H.R. Rep. No. 835, supra, at 19.  The Senate Report
also explained:

         The "collection of information" definition does not change
      the scope of current authority and practice by the Director of
      OMB and the Comptroller General to promulgate rules and
      regulations needed to interpret the relationship of certain
      kinds of information to the definition of collection of
      information.

S. Rep. No. 930, supra, at 39.  The Committee Reports specifically
addressed the SEC's objections at the hearings that OMB oversight of
agency information collection activities would intrude on their
"substantive" policies.  The House Report stated:

         SEC (s)trongly recommended that H.R. 6410 be amended to
      narrow the definition of "collection of information" to exclude
      reporting required in connection with statutorily-authorized
      regulatory, enforcement, or oversight efforts.  SEC believes
      that the current Federal Reports Act definition is limited to
      collection for statistical purposes and does not authorize
      review of disclosure or enforcement-related information
      gathering.

         The Committee agrees with both FCC and SEC as to the close
      relationship between policymaking and information management.
      However, regulatory agencies in the executive branch, such as
      EPA, have been able to justify to OMB their need for information
      used to establish policy or for other purposes.  The independent
      regulatory agencies should also be capable of doing so.  * * *.
      The Committee's intent in making the changes in the definition
      was to clarify the existing definition to force SEC and any
      others who might apply a restrictive interpretation to comply
      with statutory information collection clearance requirements.

H.R. Rep. No. 835, supra, at 23.  The Senate Report also responded to
the SEC's concern regarding the application of the concept of
"practical utility" to public disclosure requirements:

         Information is also collected to form the basis for
      disclosure to the public.  For example, documents filed with the
      Securities and Exchange Commission by issuers of securities and
      by other persons subject to the Federal securities laws are
      designed for use by persons making investment and other
      financial decisions.  In this connection, Federally-mandated
      disclosures to the public by issuers and certain owners of
      securities are central to carrying out the purposes of the
      Federal securities laws.  Therefore, in considering whether
      information will have practical utility, the Director should
      consider, among other things, whether the agency can use the
      information either to carry out its regulatory or other
      functions or to make it available to the public for the use of
      persons who have an interest in entities or transactions over
      which the agency has jurisdiction.

S. Rep. No. 930, supra, at 39-40.

   The House and the Senate each passed substantially similar bills
(126 Cong. Rec. 6216-6217, 30,190-30,193 (1980)), and the House later
agreed to the Senate version of the bill (id. at 31,222-31,228)
without the need for a conference report.  The legislative debates and
floor amendments are consistent with the statements contained in the
Committee Reports.  See id. at 6208-6214, 30,170-30,179.  In 1986,
Congress reauthorized the PRA.  See Paperwork Reduction
Reauthorization Act of 1986, Pub. L. No. 99-591, Tit. VIII, 100 Stat.
3341-335.  Congress's reauthorization, if anything, reinforced the
PRA's broad coverage.  /21/

   Thus, the PRA's legislative history confirms that the statute means
what it says.  The PRA's broad definition of "information collection
requests" was intended to reach agency regulations, developed as part
of the agency's statutory mission, that require regulated entities to
gather or retain information for disclosure to third parties.  The
disapproved provisions of the Secretary of Labor's hazard
communication standard fall within the statutory definition and are
subject to OMB review.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   LAWRENCE G. WALLACE

      Acting Solicitor General /22/

   STUART E. SCHIFFER

      Acting Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   JEFFREY P. MINEAR

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   MARLEIGH D. DOVER

      Attorneys

   ROBERT P. DAVIS

      Solicitor Department of Labor

   ROBERT G. DAMUS

      Deputy General Counsel Office of Management and Budget

   JUNE 1989

   /1/ Section 3504(h)(1) requires an agency to submit a copy of a
proposed rule containing collection of information requirements to the
Director no later than the date of the publication of the notice of
proposed rulemaking.  44 U.S.C. 3504(h)(1).  The Director then has 60
days in which to file public comments on the rule's collection of
information requirements.  44 U.S.C. 3504(h)(2).  In publishing its
final rule, the agency must "explain how any collection of information
requirement contained in the final rule responds to the comments * * *
or explain why it rejected those comments." 44 U.S.C. 3504(h)(3).  The
Director may disapprove any collection of information requirement
contained in a final rule if the agency has failed to comply with
Section 3504(h)(1)'s submission requirements, if the Director
determines that the agency's response to his comments is unreasonable,
or if the agency has substantially modified the collection of
information requirement contained in the proposed rule.  44 U.S.C.
3504(h)(5)(B), (C) and (D).

   /2/ The PRA provides that, in the case of independent regulatory
agencies, the Director's disapproval "may be voided, if the agency by
a majority vote of its members overrides the Director's disapproval"
(44 U.S.C. 3507(c)).

   /3/ In this brief, we cite the revised OMB regulations as they will
appear in the 1989 Code of Federal Regulations.  Our petition for a
writ of certiorari cited the regulations as they appear in the 1988
Code of Federal Regulations.

   /4/ The OMB regulations further explain that "(s)imilar 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." 5
C.F.R. 1320.7(c)(1) (emphasis added).

   /5/ "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 to make it available to the public, either directly or by
means of a public disclosure or labeling requirement, for the use of
persons who have an interest in entities or transactions over which
the agency has jurisdiction." 5 C.F.R. 1320.7(o).

   /6/ The parties have set forth the Secretary's hazard communication
standard, as presently in effect, as well as excerpts of certain
federal register notices, in the joint appendix.

   /7/ The OSH Act specially provides for judicial review of
occupational safety and health standards in the court of appeals, and
it further provides that "(t)he determinations of the Secretary shall
be conclusive if supported by substantial evidence in the record
considered as a whole." 29 U.S.C. 655(f).

   /8/ On January 14, 1988, the Department of Labor notified OMB that
it would initiate a new rulemaking, but further explained that it
would not be possible to complete the rulemaking by March 1, 1988, the
date specified by OMB.  Pet. App. 27a, 45a-48a.  In early March, the
Department of Labor requested that OMB renew its 1983 approval of the
hazard communication standard's paperwork requirements.  On April 13,
1988, OMB approved all of the hazard communication standard's
paperwork requirements except the three previously disapproved
provisions.  Id. at 49a-58a.  The Department of Labor subsequently
solicited public comment and has held hearings on what modifications
(if any) should be made in light of OMB's disapproval.  See 53 Fed.
Reg. 29,822 (1988).

   /9/ The question presented by our petition and decided by the court
of appeals is whether the PRA authorizes OMB to review agency
regulations, such as the three disapproved provisions in this case,
that require regulated entities to collect information for disclosure
to third parties.  See Pet. i;  Pet. App. 6a-7a.  Because OMB directed
the Secretary of Labor to reconsider the disapproved provisions (Pet.
App. 25a-26a) and the court of appeals held OMB had no such authority,
no question is presented at this juncture concerning whether those
provisions should or should not ultimately be incorporated as part of
the hazard communication standard.  If this Court reverses the court
of appeals' judgment, that question would arise in the subsequent
administrative proceedings.  See note 8, supra.  If the Court affirms
the court of appeals' judgment, the question would be moot.

   /10/ The court of appeals mistakenly characterized these provisions
as "exemptions from labeling requirements" (Pet. App. 9a).  The
exemptions involved here relieve the employer not only from labeling
requirements (cf. 29 C.F.R. 1910.1200(b)(5)), but from all of the
standard's requirements with respect to those products, including MSDS
collection, retention and distribution, and employee training.  In any
event, labeling requirements are reporting requirements subject to OMB
review.  See 5 C.F.R. 1320.7(c).

   /11/ The court of appeals erred in stating that the multi-employer
exchange provision does not require employers to compile information.
Under that provision, an employer at a multi-employer worksite must
either exchange MSDSs with other employers or, together with other
employers, make their MSDSs available at a central worksite location.
Either option surely entails the "compilation" of information.  In any
event, PRA review authority does not turn on distinctions between
compilation and transmittal of information.  The PRA instructs the OMB
to "review() and approv(e) information collection requests proposed by
agencies" (44 U.S.C. 3504(c)(1)).  The multi-employer exchange
provision clearly is an information collection request because it
imposes, at a minimum, a "recordkeeping requirement" (44 U.S.C.
3502(11) (Supp. IV 1986)).

   /12/ The court of appeals also suggested in dicta that even "the
requirements for preparation of MSDSs by chemical manufacturers or the
requirement of preservation of MSDSs by single employers" do not
constitute "the collection of information within the meaning of the
(PRA)" (Pet. App. 11a).  As we have explained (see pp. 20-22, supra),
those reporting and recordkeeping requirements are plainly subject to
PRA review.

   /13/ The hazard communication standard specifically provides that
an employer must make the written hazard communication program and
MSDSs available, upon request, to the Assistant Secretary.  See 29
C.F.R. 1910.1200(e)(4) and (g)(11).

   /14/ As the D.C. Circuit recognized, OMB's interpretation is an
extension of the Bureau of the Budget's practices under the PRA's
predecessor statute, the Federal Reports Act.  The Bureau of the
Budget, and later OMB, interpreted the Federal Reports Act to require
"clearance" of agency "plans or forms" used to conduct or sponsor the
collection of information.  See Bureau of the Budget Regulation A
(Feb. 13, 1943).  We have reproduced Regulation A, which the D.C.
Circuit quotes, in the Addendum to this brief.  See pp. 16a-25a,
infra.  As the court noted, Regulation A specifically defined a "plan"
to include "(a)ny general or specific requirement for the
establishment or maintenance of records * * * which are to be used or
be available in the collection of information." See Add., infra, 17a.
Thus, OMB and its predecessor, the Bureau of the Budget, have reviewed
recordkeeping requirements that do not entail the transmission of
information to the agency for nearly 50 years.

   /15/ Congress amended and reenacted the PRA since OMB's 1983
promulgation of its regulations, see Paperwork Reduction
Reauthorization Act of 1986, Pub. L. No. 99-591, Tit. VIII, 100 Stat.
3341-335, yet in so doing gave no indication that it disagreed with
OMB's interpretation.  Congress's failure to criticize or overrule the
agency's 1983 regulations provides an additional basis for inferring
that OMB has correctly gauged Congress's intent.  See, e.g., United
States v. Rutherford, 442 U.S. 544, 554 (1979).

   /16/ As commentators have recognized, because the PRA expressly
gives OMB broad authority to determine whether information is
necessary for the proper performance of an agency's functions, OMB
review inevitably will affect agency activities, including policies
and programs that might be deemed -- in the abstract -- to be
"substantive." See Funk, The Paperwork Reduction Act:  Paperwork
Reduction Meets Administrative Law, 24 Harv. J. on Legis. 1, 104-110
(1987);  Note, The Paperwork Reduction Act in United Steelworkers v.
Pendergrass:  Undue Restriction and Unrealized Potential, 89 Colum. L.
Rev. 920, 931-932 (1989).  As those commentators also have recognized,
Congress must have intended that result.  See Funk, supra, 24 Harv. J.
on Legis. at 108 ("This second-guessing by OMB seems clearly intended
by the Act.");  Note, supra, 89 Colum. L. Rev. at 932 ("It would be
illogical to assume Congress did not recognize that such broad OMB
powers would have an impact on other agency mandates.").

   /17/ Respondent Public Citizen has suggested that "(e)ntirely aside
from OMB's responsibilities under the PRA, OMB has sweeping authority
under Executive Orders 12,291 and 12,498 to supervise comprehensively
the development of any regulatory action that imposes a paperwork
requirement" (P.C. Br. in Opp. 4), and "to review any information
collection and dissemination activities imposed by an Executive Branch
agency" (id. at 7).  Under that view, the PRA's grant of disapproval
power would not, in any event, result in any increase in OMB's
"authority * * * with respect to the substantive policies and programs
of departments, agencies, and offices" (44 U.S.C. 3518(e)).

   /18/ The Comptroller General made the same point in a 1976 report
to Congress:

         SEC believes that some of its activities involve collection
      of information subject to 44 U.S.C. 3512, but other SEC
      responsibilities involve the "disclosure" of information to the
      public rather than collection activities, and accordingly, are
      not subject to that provision.

Report to Congress by the Comptroller General, Status of GAO's
Responsibilities Under the Federal Reports Act, OSP-76-14 at 15 (May
28, 1976).  The Comptroller General further explained that "(t)he
underlying reasons for these agencies' refusal to submit most of their
forms to us for clearance are that they believe this would be an
intrusion into their regulatory responsibilities" (id. at 16).  He
recommended that Congress clarify the Federal Reports Act "to allow
the clearance agency to challenge the need for regulatory information"
(id. at 20).  The Comptroller General subsequently provided his report
to the Senate subcommittee with responsibility for paperwork reduction
legislation.  See Efforts to Reduce Federal Paperwork Burdens:
Hearing Before the Subcomm. on Federal Spending Practices and Open
Government of the Senate Comm. on Governmental Affairs, 95th Cong., 2d
Sess. 45, 66 (1978).

   /19/ Section 3507 of S. 1411 provided that OMB would determine
whether "the collection of information by a Federal agency is
necessary for the proper performance of the functions of the agency
and has practical utility for the agency." See S. 1411 Hearings 100.

   /20/ Senator Chiles later returned to the theme that the
independent regulatory agencies should be subject to the same review
as EPA and OSHA, stating:

      We are talking about not wanting to cripple the mission of the
      independent regulatory agencies nor the mission of the executive
      agencies like EPA and OSHA and all of the other agencies that
      are vital to the well-being of this country.  But at the same
      time, we are trying to put some governor on this thirst for
      information and some rational decisionmaking processes that
      Congress can review and that the people can hold accountable,
      and that we can say we are trying to get a handle on.

S. 1411 Hearings 87.

   /21/ Congress retained the definitions contained in the PRA but
clarified that an "information collection request" includes a
"collection of information requirement" (Section 812(1), 100 Stat.
3341-335).  See S. Rep. No. 347, 99th Cong., 2d Sess. 52 (1986).  The
purpose of this amendment was to make clear that the PRA's
requirements concerning "information collection requests" also applied
to "collection of information requirements" contained in existing or
proposed rules.  Ibid.

   /22/ The Solicitor General is disqualified in this case.

   APPENDIX