government on the public and it appointed the office of management and budget to independently enforce agency's compliance with the act congress understood that the background presumption of judicial review meant the parties injured by the o m b his actions could challenge them in court we know that because congress carved out a single narrow exception for judicial review of o m b actions are newly promulgated regulations that exception is contained in the statutory subsection that expressly governs o m b s review of new regulations and the statute even says that it applies only when there is just been a rule making the court should reject the o m b as attempt to expand that narrow exception so as to swallow the general rule and override the strong presumption in favor of judicial review i'd like to address three they're not amenable to review to the rule here you don't have to submit those you know the words o m b did not act is that action appealable yes your m b did act in other words they made a determination that these particular information collections were not subject to the paperwork reduction act that was a final determination by o m b and so that's that's part of what we're challenging and the second is that oh and b certainly could not have acted pursuant to subsection d because if a and b was acting pursuant to subsection of the it violated every single procedure in that entire subsection it was late it didn't file comments on the rules it was years out of time to take any type of subsection the action and moreover the p t o submission to o m b made clear that it was not seeking an action under subsection d it was proceeding under subsection c or subsection age both of which don't apply to information co ax collections that are contained in newly promulgated rules subsection d embodies this time limitation that it can only function along with the pommel geishas of a of a notice and comment rule and we know and b involved in this the six would say the decision to approve or not act upon a collection of information contained in an agency rule shall not be subject to judicial review so if i read that alone can i also say that there are certain issues which could be reviewed in other words just reading the rule very carefully  it seems to me that one could appeal a an approval or not action on the collection of information if it weren't contained in the agency rule so your honor first of all that they we also could have judicial review of annoy and be decision to disapprove collections whether contained in the agency rule or not yes your honor and it would also suggest that the exemptions of certain rules from notice and comment under five u s c five fifty three a would also be appealable to the court yes your honor i think that would proceed under a subsection see that in other words the subsection c approval pathway oh what we've really got to find to find it not she dish will be reviewable is it got to be an approval or not action on collection information contained in the agency rule right well there's also i think a timing limitation i think the better way to look at section thirty five zero seven is that it has these three pathways for approval that apply at different times the subsection the pathway where that judicial review o m the p t o promulgated these rules years ago and they're not recent rules oh in be filed a single page you know a short notice in the federal register which kicks off this this p r a review process that was seeking approval of interpretation of sex and the application of it here we have to also conclude that the only applies to things that happened during a rule making process yes during an  argument that is the linchpin of our argument you don't accept that what do you think happens and six of them if we don't accept it i mean obviously our view is that that is not a permissible reading the statute because it causes absurd results as the district court recognize but if the court were to if the court were to hold that we still have a separate claim challenging the o m b s denial of mr hiatt section thirty five seventeen petition and frankly just if six bars it then what you're doing now and  here on review is just doing indirectly what the law says you cannot do directly but by serving it up on another platter a little bit later isn't that what's happening here i don't think that's right your honor congress inactivated the section thirty five seventeen petitioning process specifically to provide relief to the public for members of the public who are being injured by so called bootleg information collections in other words information collections that had never been approved by o m b but that isn't really even in the information collection as they are this is what happens it's what you have to do if you're going to file partake in a process after replication has been committed but been rejected or changed your honor the p describes information defines information collections very broadly and o m b s regulate implementing regulations do as well it's any type of soliciting information from more than a certain number of people and the rules that are issue i did use a list of information all the time in the form of of subsection d i'd like to just point out that parallel to such subsection desex is another provision that limits o m b s ability to make disapproval decisions to sixty days following the promulgating of a final rule if the six can apply outside of the rule making process years later that provision would apply as well what that would mean is that when an agency seeks an extension of an approval for information collection contained in a notice and comment rule even years later o m b would be  good morning your honor jennifer you tracked on behalf of the n b a they placed the court your honor through the p r congress created an a mechanism for the office of management and budget to oversee agency efforts to collect statistical information or answers to identical questions from more than ten people and acting this law congress made clear that when these collections are contained an agency rules that oversight function it should be conducted by o m b not by the courts this is confirmed by three five zero seventy six which precludes judicial review of any collection of information contained in an agency rule but is also confirmed by the structure in the legislative history of this act congress acts did not create a private right of action under the paperwork reduction act it also created section three five one two which expressively allows people challenging collections of information to raise its defenses to agency proceedings and to give a great amount of discretion to o m b in deciding whether to disapprove indeed if you look at three five zero seventy four which my colleague suggests is limited only to sixty days that's simply not true de force says that the director in the director's discretion can disapprove any collection of information that was not specifically do that your honor it is it is simply the case that these rules are not collections of information but that is not any question that this court has to answer because plaintiffs lawsuit is premised on the assumption that they are and in order for there to be review of the you would have to get around the six and the six expressly precludes judicial review of any collection of information contained in agency rule so again on the merits of the question  collection of information the six applies well your honor again the presumption the plaintiffs are making here and there very challenge rests on their ability to show that is a collection of information now the answer on the merits of that is of course no these rules do suggested that this is not something that they should get involved with they're saying it's just not and then i've got to determine whether that's a huge issue really reviewable decision and the only way under the six that reviewable is that it does approve or not act upon a collection of information contained in the agency rules and i guess that says that i would not have this i would not worry if they approve this collection of information not contained in the agency rules i could have judicial review of annoying be decision to disapprove the collections whether contained in the agency rule or not which i'm not sure this is it and it would also not not limit me from looking at the exemptions which are on notice from commenter under five fifty five fifty three a so i'm trying to say this request really doesn't seek judicial review that soft arrives and the six so why shouldn't it be reviewable well there are again if we're looking at the allegations in the plaintiff's complaint the very the very theory that this case is proceeding under is that these rules these things that went through notice and comment contain collections of information and that p t o has been acting pursuant to these rules collecting the collecting information and that that is a violation of the statute well but rather than proving or disapproving these requests the o m b declared the requests weren't even subject so it doesn't seem to me that the six applies at all if it isn't even subject to the p r a that's something that somebody ought to review someplace and nobody is giving them any place to let that happen you don't want that to be a final decision and therefore you don't want it to be out you don't want to suggest that i at all anything but discretionary and so therefore so he's left without a remedy well your honor he's not left without a remedy three hundred three five twelve he has the ability and this is how congress intended paperwork reduction act challenges to be raised he has the ability to raise the paperwork reduction act as a defense in any proceeding against a o l the supreme court also says that a petitioner shouldn't have to wait for a defense that a petitioner ought to be able to go forward and do something s army corps of engineers versus hawks we've long held the parties need not to wait reinforcement proceedings before challenging the action parties need not assume that such risks while waiting for the action to drop the hammer in order to give these day in court if he would have done it nothing and then force one perceiving would have been brought he would risk forfeiture of his patents so it doesn't seem to me that what you're arguing is remedy is appropriate decisions not to act on a collection of information contained in an agency role are not subject to additional review and indeed how to and be simply said we approve this collection of information regardless of whatever the statutory procedures were that also would not be  and the reason for this your honor yes just because and i'm worried about that because if i read the statute very carefully they could they could appeal if you will the approval of the judicial review of there could be judicial review of the o m b decision to deny the collections whether contained in the agency rule or not yes your honor and the reason for that is explained in the legislative history which is that did not would be well congress did not want oh and b to be able to essentially sync agency rules that were otherwise going through notice and comment for reasons outside of the statute and so there could be challenges allowing for these these has done what it's done which is to say we're not going to require you to move forward on this we're not going to require you to submit paperwork reduction act reports that is a decision not to act again we're not what they did here decision that the paperwork this is just doesn't even apply right it may well be that there's an exception and it may be that this isn't a collection of information but it does seem to me that's the next step that's trying to get in a word line all i was trying to say is i was trying to agree with her and see if they had done something you know under the authority to do something it would have got some kind of if you will they go through the agency they wish to do all this the first thing they do is they give let's just back up is it your position in response to judge paine's question that they decided not to act and then just gave an explanation or because because i guess qualitatively different than having the agency decide that this falls doesn't both in my question is yes they decide that this statutory scheme doesn't apply at all or did they did they get to step one decide not to act which they're allowed to do within this rubric the statutory scheme and then provide an explanation which is that  collection is a collection well initially or owner so we're talking back in the one nine hundred eighty s when this rule was promulgated the rules were sent to and b and b said nothing about these roles and i believe that that would be a decision not to act and so we have to assume  presumption of regularity which is exactly why does six provides that decisions not to act or decisions to disapprove an agency or sorry to approve an agency rule are not subject to judicial review and it would be strange indeed to suggest shooters or plaintiffs could simply wait a certain specified amount of time in order to bring these challenges decades later to collaterally attack the rules what about the new rules the new rules the amendments to the rule is your answer the sa have just a few quick points in rebuttal first as the first is that of course the o m b acted here twice in the court below the court and be argued that there was not final agency action it abandons that argument on appeal there of course two actions here one is the twenty thirteen provide much in the way of a remedy but i think that's even strength stronger with respect to the petitioning the claim that is the thirty five seventeen petition claim congress created a special petitioning provision to obtain relief specifically in circumstances like this to obtain pre enforcement and so of course that's the typical kind of thing that you would expect to be appealable in the courts of that somebody can actually obtain that kind of relief so even if the court finds that the challenge to the p r a action is part of the petition the petition the decision presents an entirely different issue