b'Paperwork Reduction Act of 1980\nThe provisions of the Paperwork Reduction Act of 1980 giving the Office of Management and Budget\nauthority to review and approve agency \xe2\x80\x9cinformation collection requests\xe2\x80\x9d do not apply to reporting\nand recordkeeping requirements contained in agency regulations which came into existence prior\nto the effective date of the 1980 Act. However, new regulations containing reporting or rec\xc2\xad\nordkeeping requirem ents must be developed in accordance with the procedures set forth in 44\nU S.C . \xc2\xa7 3504(h).\nSection 3504(h) provides the exclusive procedure for OM B review and possible disapproval of\ninformation collection requirements contained in or specifically required by agency regulations;\nthe more stringent procedures for OMB review set forth in 44 U.S C. \xc2\xa7\xc2\xa7 3504(c) and 3507 apply\nonly to agency information collection requests issued pursuant to or deriving from regulations.\nThe language and history of other provisions of the Paperwork Reduction Act, as well as its general\nschem e, support the conclusion that OM B has no authority under either \xc2\xa7 3504(h) or \xc2\xa7 3507 to\nreview and disapprove existing agency regulations. Nonetheless, OMB is given substantial\nauthority over existing regulations by other provisions of the Act, including \xc2\xa7 3504(b).\n\nJune 22, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE\nVICE PRESIDENT AND FOR THE COUNSEL TO THE DIRECTOR,\nOFFICE OF MANAGEMENT AND BUDGET\nThis responds to your request for our opinion concerning the application of the\nPaperwork Reduction Act (the Act) to regulations that impose paperwork bur\xc2\xad\ndens.1This question has arisen, you have explained, because the Department of\nthe Treasury has taken the position that Internal Revenue Service (IRS) regula\xc2\xad\ntions which impose paperwork burdens are not subject to those provisions of the\nAct directing the Office of Management and Budget (OMB) to review and\napprove an \xe2\x80\x9cinformation collection request.\xe2\x80\x9d That term is defined by the Act as\ncovering \xe2\x80\x9ca written report form, application form, schedule, questionnaire,\nreporting or recordkeeping requirement, or other similar method calling for the\ncollection of information.\xe2\x80\x9d2 Under the Act, OMB is directed to review and\n1The foperwork Reduction Act, Pub. L N o. 511, 96th Cong., 2d Sess (1980), 94 Stat. 2812, 44 U.S C\n\xc2\xa7\xc2\xa7 3501-3520, took effect on April 1, 1981 In this opinion, the words \xe2\x80\x9cregulation\xe2\x80\x9d and \xe2\x80\x9crule" will be used\ninterchangeably. See 5 U.S C \xc2\xa7 551(4).\n2 Section 3502(11) of the Act, 44 U S C. \xc2\xa7 3502(11) (Supp. V 1981). Rirther citations to the Act will exclude the\nadditional reference to Title 44 of the 1981 Supplement to United States Code Annotated, which includes the same\nsection numbers as the Act itself.\n\n388\n\n\x0capprove each \xe2\x80\x9cinformation collection request,\xe2\x80\x9d and to assign to each a control\nnumber that signifies OMB approval.3 The Act provides that no person shall be\nsubject to any penalty for failing to maintain or to provide information pursuant\nto an information collection request that has not itself been assigned the neces\xc2\xad\nsary control number.4 In the present case, the Treasury Department argues that\nthe portion of any regulation which imposes a paperwork burden is not an\n\xe2\x80\x9cinformation collection request\xe2\x80\x9d for purposes of the Act. In response, you have\nargued that the portion of a regulation imposing a paperwork burden is an\n\xe2\x80\x9cinformation collection request,\xe2\x80\x9d and therefore is subject to OMB review and\napproval, and the assignment of a control number under the Act.\nIn addressing this issue, our analysis will proceed in four sections. First, we\nwill summarize the Act\xe2\x80\x99s provisions that are relevant to this dispute. Second, we\nwill set forth the central arguments of the Department of the Treasury, on the one\nhand, and OMB, on the other hand, as advanced in several memoranda addressed\nto this office.5 Third, we will set forth our own analysis of the statute and its\nlegislative history. Fourth, we will discuss in particular the additional arguments\nadvanced on behalf of OMB\xe2\x80\x99s position in your memorandum of April 23, 1982.\nAs we will explain in considerably more detail in the balance of this memoran\xc2\xad\ndum, we have concluded that requirements for the maintenance and provision of\ninformation contained in regulations that came into existence prior to the effec\xc2\xad\ntive date of the Act are not subject to the information collection request approval\nprocedures contained in \xc2\xa7\xc2\xa7 3504(c) and 3507 of the Act, but that new regulations\nmust be developed in accordance with the OMB coordination process created by\n\xc2\xa7 3504(h). OMB is, however, given broad powers by the Act to initiate and\nreview proposals for changes in existing regulations and to coordinate and\nimprove agency information practices whether contained in regulations or\nelsewhere. The IRS is subject to OMB\xe2\x80\x99s authority in this regard to the same extent\nas other Executive Branch agencies. The Paperwork Reduction Act is a broad\ncharter for OMB to manage, coordinate and improve federal information prac\xc2\xad\ntices limited, of course, by existing agency authority over the substantive content\nof policies and programs.\n\nI. Summary of the Act\nThe Paperwork Reduction Act of 1980 supplanted the Federal Reports Act of\n1942.6The purpose of the 1942 statute was to minimize the burdens of furnishing\n\xe2\x80\x9cinformation\xe2\x80\x9d that were placed by the federal government on business enterprises\nand others.7 \xe2\x80\x9cInformation\xe2\x80\x9d was defined in the 1942 statute as \xe2\x80\x9cfacts obtained or\nsolicited by the use of written report forms, application forms, schedules,\n3 See \xc2\xa7\xc2\xa7 3504(c)(3)(A) (the OMB Director\xe2\x80\x99s information collection request clearance functions "shall include\n. . ensuring that all information collection requests . display a control number\xe2\x80\x9d) & 3507(f)\n4 See \xc2\xa7 3512\n5 For the sake of convenience, we will refer to the position expressed in your memoranda as \xe2\x80\x9cOMB\'s position,"\nfor those memoranda are concerned pnmarily with the powers that may be exercised by OMB under the Act\n6 The latter statute was 56 Stat 1078, 44 U S C \xc2\xa7\xc2\xa7 3501-3511 (1976)\n1 See 44 U.S C \xc2\xa7 3501 (1976).\n\n389\n\n\x0cquestionnaires, or other similar methods calling either for answers to identical\nquestions from ten or more persons other than agencies . . . of the United States\nor for answers to questions from agencies . . . of the United States which are to\nbe used for statistical compilations of general public interest.\xe2\x80\x9d (Emphasis\nadded.)8\nThe Paperwork Reduction Act is described in the report of the Senate Commit\xc2\xad\ntee on Governmental Affairs as a \xe2\x80\x9crewrite\xe2\x80\x9d of the 1942 statute in response to\nrenewed concerns in the late 1970s about the burdens imposed on the private\nsector by the government in its collection of information.9 One of the specific\nchanges made by the 1980 Act is its elimination of an exemption for the IRS\xe2\x80\x94\nand certain other agencies\xe2\x80\x94that had existed under the Federal Reports Act.10\nThis is one of the chief reasons why the issue before us has arisen at this time. The\n1980 Act\xe2\x80\x99s general purposes are to minimize \xe2\x80\x9cthe Federal paperwork burden for\nindividuals, small businesses, State and local governments, and other persons,\xe2\x80\x9d\nminimize the cost to the federal government of collecting, maintaining, using and\ndisseminating information and \xe2\x80\x9cmake uniform Federal information policies and\npractices.\xe2\x80\x9d \xc2\xa7 3501. The term \xe2\x80\x9cburden\xe2\x80\x9d is defined as \xe2\x80\x9cthe time, effort, or financial\nresources expended by persons to provide information to a Federal agency.\xe2\x80\x9d11\nMany of the 1980 Act\xe2\x80\x99s key provisions apply to an \xe2\x80\x9cinformation collection\nrequest.\xe2\x80\x9d The definition of an \xe2\x80\x9cinformation collection request\xe2\x80\x9d covers not only\nthe items covered by the 1942 statute, such as a written report form, application\nform, schedule, questionnaire, or other similar method for collecting informa\xc2\xad\ntion, but also a \xe2\x80\x9creporting or recordkeeping requirement.\xe2\x80\x9d Thus, as noted earlier,\nthe 1980 statute defines an \xe2\x80\x9cinformation collection request\xe2\x80\x9d as \xe2\x80\x9ca written report\nform, application form, schedule, questionnaire, reporting or recordkeeping\nrequirement, or other similar method calling for the collection of information.\xe2\x80\x9d\n(Emphasis added.)12The Act defines the \xe2\x80\x9ccollection of information\xe2\x80\x9d as the use of\nany of the foregoing methods to obtain facts or opinions in response to \xe2\x80\x9cidentical\nquestions posed to, or identical reporting or recordkeeping requirements im\xc2\xad\nposed on, ten or more persons, other than agencies . . . of the United States\xe2\x80\x9d or\n\xe2\x80\x9canswers to questions posed to agencies. . . of the United States which are to be\nused for general statistical purposes.\xe2\x80\x9d (Emphasis added.)13 A \xe2\x80\x9crecordkeeping\nrequirement\xe2\x80\x9d is defined as \xe2\x80\x9ca requirement imposed by an agency on persons to\nmaintain specified records.\xe2\x80\x9d14The term \xe2\x80\x9creporting requirement\xe2\x80\x9d is not separately\ndefined.\nIn addition to including a \xe2\x80\x9creporting or recordkeeping requirement\xe2\x80\x9d in the\ndefinition of an \xe2\x80\x9cinformation collection request,\xe2\x80\x9d the Paperwork Reduction Act\n\xe2\x80\x9c 44 U.S C. \xc2\xa7 3502 (1976) See H R Rep No 2722, 77th Cong., 2d Sess (1942), S Rep. No 1651, 77th\nC o n g .,2d Sess (1942); 88 Cong. Rec 9165(1942). See also Emerson Electric Co v Schlesinger, 609 F2d 898,\n905 (8th Cir. 1979) (the \xe2\x80\x9ctwo-fold purpose" of the Federal Reports Act was to \xe2\x80\x9celiminate unnecessary duplication of\neffort by federal agencies in collecting information and to reduce the paperwork burden on persons supplying the\ninformation"), Shell Oil Co v Department o f Energy, A ll F Supp. 413, 419-20 (D Del. 1979)\n9 S. Rep No 930, 96th Cong , 2d Sess 13 (1980)\n10 See 44 U.S C \xc2\xa7 3507 (1976)\n11 Section 3502(3)\n12 Section 3502(11).\n13 Section 3502(4).\n14 Section 3502(16)\n\n390\n\n\x0cstrengthened considerably the role of OMB in overseeing agencies\xe2\x80\x99 information\ncollection activities.15 Under \xc2\xa7 3504(a), the OMB director \xe2\x80\x9cshall develop and\nimplement Federal information policies, principles, standards, and guidelines\nand shall provide direction and oversee the review and approval of information\ncollection requests\xe2\x80\x9d and \xe2\x80\x9cthe reduction of the paperwork burden.\xe2\x80\x9d The general\ninformation policy functions of the Director are set forth in \xc2\xa7 3504(b). These\nfunctions include, inter alia, \xe2\x80\x9cdeveloping and implementing uniform and con\xc2\xad\nsistent information resources management policies and overseeing the develop\xc2\xad\nment of information management principles\xe2\x80\x9d (\xc2\xa7 3504(b)(1)), as well as \xe2\x80\x9c initia\xc2\xad\nting and reviewing proposals for changes in legislation, regulations, and agency\nprocedures to improve information practices . . (\xc2\xa7 3504(b)(2)) (emphasis\nadded). Also, the Director is charged with \xe2\x80\x9ccoordinating, through the review of\nbudget proposals and as otherwise provided in this section [\xc2\xa7 3504], agency\ninformation practices\xe2\x80\x9d (\xc2\xa7 3504(b)(3)) and \xe2\x80\x9cevaluating agency information man\xc2\xad\nagement practices to determine their adequacy and efficiency, and to determine\ncompliance of such practices with the policies, principles, standards, and\nguidelines promulgated by the Director\xe2\x80\x9d (\xc2\xa7 3504(b)(5)).\nUnder \xc2\xa7 3504(d), the Director is assigned certain statistical policy and coordi\xc2\xad\nnation functions, including the development of \xe2\x80\x9clong range plans for the im\xc2\xad\nproved performance of Federal statistical activities and programs,\xe2\x80\x9d \xe2\x80\x9cdeveloping\nand implementing Government-wide policies, principles, standards, and\nguidelines concerning statistical collection procedures and methods\xe2\x80\x9d and\n\xe2\x80\x9cevaluating statistical program performance and agency compliance with Gov\xc2\xad\nernment-wide policies, principles, standards, and guidelines.\xe2\x80\x9d Section 3504(e)\nassigns to the Director broad records management functions, which include\npromoting the coordination of records management with the information pol\xc2\xad\nicies, principles and guidelines established by OMB under this Act. Section\n3504(f) assigns to the Director certain privacy functions, which involve the\ndevelopment and implementation of policies and guidelines regarding informa\xc2\xad\ntion disclosure and confidentiality in compliance with the Privacy Act, 5 U.S.C.\n\xc2\xa7 552a. Section 3504(g) assigns to the Director functions involving automatic\ndata processing and telecommunications, including the development of federal\npolicies and guidelines to govern the federal activities in these areas. Taken as a\nwhole, this array of explicit powers granted to OMB under \xc2\xa7 3504 is a formidable\nexpression of Congress\xe2\x80\x99 intent to give OMB the tools necessary to act as the\ncentral authority in the oversight of the federal government\xe2\x80\x99s information man\xc2\xad\nagement processes.\nOf particular importance to the issues considered in this opinion are the\nauthorities granted the OMB Director under \xc2\xa7\xc2\xa7 3504(c) and 3507, including,\ninter alia, the power to review and approve \xe2\x80\x9cinformation collection requests\nproposed by agencies\xe2\x80\x9d under \xc2\xa7 3504(c)(1), to determine whether the collection\nof information is \xe2\x80\x9cnecessary for the proper performance of the functions of the\nagency\xe2\x80\x9d under \xc2\xa7 3504(c)(2), and to ensure that all information collection\n15 See \xc2\xa7 3504\n\n391\n\n\x0crequests, among other things, \xe2\x80\x9cdisplay a control number\xe2\x80\x9d assigned to them by\nOMB under \xc2\xa7\xc2\xa7 3504(c)(3)(A) and 3507. In addition, the OMB Director was\nrequired, upon enactment of the statute, to \xe2\x80\x9cset a goal to reduce the then existing\nburden of Federal collections of information by 15 per centum by October 1,\n1982,\xe2\x80\x9d and \xe2\x80\x9cfor the year following, [to] set a goal to reduce the burden which\nexisted upon enactment by an additional 10 per centum. . . .\xe2\x80\x9d16\nThe Act\xe2\x80\x99s \xe2\x80\x9ccontrol number\xe2\x80\x9d requirement in \xc2\xa7\xc2\xa7 3504(c)(3)(A) and 3507 as\xc2\xad\nsumes special significance in light of two additional provisions. Under \xc2\xa7 3507(f),\nan agency \xe2\x80\x9cshall not engage in a collection of information without obtaining from\nthe Director a control number to be displayed upon the information collection\nrequest.\xe2\x80\x9d Also, under \xc2\xa7 3512, \xe2\x80\x9cno person shall be subject to any penalty for\nfailing to maintain or provide information to any agency if the information\ncollection request involved was made after December 31, 1981, and does not\ndisplay a current control number assigned by the Director, or fails to state that\nsuch request is not subject\xe2\x80\x9d to the Act.\nThe statute specifically directs that \xe2\x80\x9c[e]ach agency shall be responsible fo r. . .\ncomplying with the information policies, principles, standards, and guidelines\nprescribed by the Director.\xe2\x80\x9d17More particularly, the Act requires that an \xe2\x80\x9cagency\nshall not conduct or sponsor the collection of information unless, in advance of\nthe adoption or revision of the request for collection of such information,\xe2\x80\x9d the\nagency has, inter alia, \xe2\x80\x9csubmitted to the Director [of OMB] the proposed\ninformation collection request [and] copies of pertinent regulations and other\nrelated materials\xe2\x80\x9d and the Director \xe2\x80\x9chas approved the proposed information\ncollection request, or the period for review of information collection requests by\nthe Director provided under subsection (b) [60 days, with a possible additional 30\ndays] has elapsed.\xe2\x80\x9d18\nIn addition to these provisions pertaining to an \xe2\x80\x9cinformation collection re\xc2\xad\nquest\xe2\x80\x9d as defined in the Act, there is a provision, \xc2\xa7 3504(h), dealing specifically\nwith regulations. Since the relationship between \xc2\xa7 3504(h) and the procedures\nset forth in \xc2\xa7\xc2\xa7 3504(c) and 3507 regarding an \xe2\x80\x9cinformation collection request\xe2\x80\x9d is\nthe major issue in the present dispute, we will explain the requirements of\n\xc2\xa7 3504(h) in some detail.\nEach agency is directed to forward to the OMB Director a copy of \xe2\x80\x9cany\nproposed rule which contains a collection cf information requirement\xe2\x80\x9d as soon as\npracticable, and no later than the publication of a notice of proposed rulemaking\nin the Federal Register. (Emphasis added.)19 Within 60 days after the notice of\nproposed rulemaking is published in the Federal Register, the OMB Director\n\xe2\x80\x9cmay file public comments pursuant to the standards set forth in section 3508 on\nthe collection cf information requirement contained in the proposed rule.\xe2\x80\x9d\n(Emphasis added.)20 When a final rule is published, \xe2\x80\x9cthe agency shall explain\n16 Section 3505(1)\n17 Section 3506(a).\n18 Sections 3507(a)(2) & (3)\n19 Section 3504(h)( 1)\n20 Section 3504(h)(2). Section 3508 provides that "[bjefore approving a proposed information collection request,\nthe Director shall determine whether the collection of information by an agency is necessary for the proper\nperformance of the functions of the agency, including whether the information will have practical utility . . . \xe2\x80\x9d\n\n392\n\n\x0chow any collection cf information requirement\xe2\x80\x9d contained therein responds to\nany comments made by the Director or the public, or explain why the agency\nrejected those comments. (Emphasis added.)21\nThe OMB Director is not authorized to disapprove any collection of informa\xc2\xad\ntion requirement contained in an agency rule if he received notice of the rule and\nif he failed to comment on it within 60 days of publication of the notice of\nproposed rulemaking.22 However, \xe2\x80\x9c[n]othing in this section\xe2\x80\x9d may be read as\nbarring the Director, in his discretion:\n(A) from disapproving any information collection request\nwhich was not specifically required by an agency rule;\n(B) from disapproving any collection cf information require\xc2\xad\nment contained in an agency rule, if the agency failed to comply\nwith the requirements of paragraph (1) of this subsection; or\n(C) from disapproving any collection of information require\xc2\xad\nment contained in a final agency rule, if the Director finds within\nsixty days of the publication of the final rule that the agency\xe2\x80\x99s\nresponse to his comments filed pursuant to paragraph (2) of this\nsubsection was unreasonable; [or]\n(D) from disapproving any collection cf information require\xc2\xad\nment where the Director determines that the agency has substan\xc2\xad\ntially modified in the final rule the collection of information\nrequirement contained in the proposed rule where the agency has\nnot given the Director the information required in paragraph (1),\nwith respect to the modified collection cf information require\xc2\xad\nment, at least sixty days before the issuance of the final rule.\n(Emphasis added.)23\nThe subsection requires the OMB Director to \xe2\x80\x9cmake publicly available any\ndecision to disapprove a collection of information requirement contained in an\nagency rule, together with the reasons for such decision.\xe2\x80\x9d24 Furthermore,\n\xc2\xa7 3504(h)(8) states that the subsection \xe2\x80\x9cshall apply only when an agency pub\xc2\xad\nlishes a notice of proposed rulemaking and requests public comments.\xe2\x80\x9d Al\xc2\xad\nthough, as noted earlier, the phrase \xe2\x80\x9cinformation collection request\xe2\x80\x9d is defined in\n\xc2\xa7 3502(11), the recurring phrase in \xc2\xa7 3504(h), \xe2\x80\x9ccollection of information re\xc2\xad\nquirement,\xe2\x80\x9d is not separately defined in the statute.\n\nII. Arguments Advanced by the Treasury Department and OMB\nWe have received a number of memoranda setting forth both the Treasury\nDepartment\xe2\x80\x99s and OMB\xe2\x80\x99s positions regarding the Paperwork Reduction Act\xe2\x80\x99s\n21 Section 3504(h)(3)\n22 See \xc2\xa7 3504(h)(4).\n23 Section 3504(h)(5).\n24 Section 3504(h)(6)\n\n393\n\n\x0capplication to regulations that impose paperwork burdens.25 In general, the\nTreasury Department\xe2\x80\x99s view is that the only provision in the Act setting forth\nprocedures for OMB review and possible disapproval of informational aspects of\nregulations is \xc2\xa7 3504(h). In contrast, OMB\xe2\x80\x99s position is that not only \xc2\xa7 3504(h),\nbut also provisions dealing with an \xe2\x80\x9cinformation collection request,\xe2\x80\x9d including\n\xc2\xa7 3507, set forth procedures for OMB review of regulations that impose paper\xc2\xad\nwork burdens. We will summarize in turn each of these opposing interpretations.\nA . Treasury Department Position\n\nThe Treasury Department argues that the only provision in the Act setting forth\nspecific procedures for OMB review and possible disapproval of aspects of\nregulations imposing paperwork burdens is \xc2\xa7 3504(h).26 If Treasury is correct in\nthis regard, the exclusive, specific procedural mechanism establishing OMB\xe2\x80\x99s\nresponsibilities for the review of regulations would be that created by \xc2\xa7 3504(h),\nas opposed to the mechanism for OMB\xe2\x80\x99s review of forms and questionnaires\nestablished by \xc2\xa7\xc2\xa7 3507 and 3504(c).27\nThe Treasury Department advances three major arguments on behalf of its\ninterpretation. The first argument rests on the language and purposes of\n\xc2\xa7 3504(h) itself. Treasury notes that \xc2\xa7 3504(h) establishes a detailed procedural\nscheme for OMB review of collection of information requirements in regula\xc2\xad\ntions, and that no other provision in the statute deals in such a way with\nregulations. Treasury contends that this fact supports the inference that Congress\nintended \xc2\xa7 3504(h) to provide the exclusive set of specified procedures for OMB\n25 We have received the following memoranda from Treasury: (1) Memorandum from Cora Beebe, Assistant\nSecretary, Department of the Treasury, (o Christopher DeMuth, Administrator for Information and Regulatory\nAffairs, OM B, dated Dec. 24, 1981, (2) Memorandum from Kenneth Gideon. Chief Counsel, IRS, to Cora Beebe,\ndated Dec 23, 1981, (3) Memorandum from Arnold Intrater, Assistant General Counsel, Treasury Department, to\nCora Beebe, dated Dec. 29, 1981, (4) Letter to Assistant Attorney General Theodore B. Olson from Peter Wallison,\nGeneral Counsel, Treasury Department, dated Feb 8, 1982; (5) Memorandum to Assistant Attorney General\nTheodore B Olson from Peter Wallison, General Counsel, Treasury Department, also dated Feb. 8, 1982, and (6)\nundated staff memorandum, received in March 1982, responding to certain questions we asked at a meeting with\nTreasury representatives on March 9, 1982.\nWe have received the following memoranda setting forth OM B\xe2\x80\x99s position (1) Memorandum from C. Boyden\nGray, Counsel to the Vice President, and M ichael J. Horowitz, Counsel to the Director, Office of Management and\nBudget, to Assistant Attorney General Theodore B Olson, dated Jan. 15, 1982, containing your opinion request,\n(2) a draft staff memorandum dated March 1, 1982, responding to Treasury\xe2\x80\x99s letter and memorandum of Feb 8,\n1982; and (3) Memorandum from C Boyden Gray, Counsel to the Vice President, and Michael J. Horowitz,\nCounsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B. Olson,\ndated April 23, 1982, responding to a memorandum from Assistant Attorney General Olson to Robert Bedell,\nDeputy General Counsel, OM B, dated Apnl 5, 1982, which identified certain issues raised in various submissions\nthis office had received\nIn addition, we have received a memorandum generally supporting the Treasury position from Eric Fygi, Deputy\nGeneral Counsel, Department of Energy, dated Mar. 26, 1982.\n26 Section 3504(b)(2) provides that the \xe2\x80\x9cgeneral information policy functions\xe2\x80\x9d of the OMB Director shall include\n\xe2\x80\x9cinitiating and reviewing proposals for changes in legislation, regulations, and agency procedures to improve\ninformation practices . . . (Emphasis added.) Thus, Treasury could not\xe2\x80\x94 and does not\xe2\x80\x94 argue that \xc2\xa7 3504(h) is\nthe only provision dealing at all with regulations. Rather, Treasury contends that the only specific procedures\ngoverning OMB review and possible disapproval of informational aspects of regulations under the Act are those set\nforth in \xc2\xa7 3504(h). As discussed earlier, \xc2\xa7 3504(b) gives OMB rather broad review, oversight, and coordination\npowers with regard to regulations.\n27 There are a number of differences in the two sets of procedures Section 3504(h), for instance, does not provide\nfor the assignment of control numbers to regulations Section 3507, along with \xc2\xa7 3504(c), does require OMB to\nreview and approve information collection requests and to ensure that such requests display control numbers.\n\n394\n\n\x0creview and possible disapproval of informational aspects of regulations under the\nAct. This inference is also said to be supported by the notion that if \xc2\xa7 3504(h)\nwere not the exclusive set of specified procedures for OMB review of regulations,\nbut that instead \xc2\xa7\xc2\xa7 3504(c) and 3507 also could apply to regulations imposing\npaperwork burdens, \xc2\xa7 3504(h) would be rendered essentially superfluous.\nIn support of this conclusion, Treasury relies in addition on the statement by\nSenator Kennedy when he introduced on the Senate floor an amendment to\n\xc2\xa7 3504(h) that ultimately was enacted. Under \xc2\xa7 3504(h) of the bill as reported out\nof the Senate Committee on Governmental Affairs, OMB was directed to ensure\nthat agencies, in developing rules and regulations, used efficient methods for\ncollecting information.28 Senator Kennedy expressed concern about \xc2\xa7 3504(h) as\nreported out of the Committee because it \xe2\x80\x9c would permit the Director of OMB to\noverturn a rule which was adopted by an agency without providing any pro\xc2\xad\ncedural rights for the people affected by the rule or for the agency that promul\xc2\xad\ngated the rule.\xe2\x80\x9d 29 Accordingly, Senator Kennedy introduced an amendment to\n\xc2\xa7 3504(h) containing the detailed set of procedures that we summarized in the\nprevious section. In view of this history, the Treasury Department contends that if\na provision of the Act which lacks the procedural formalities set forth in\n\xc2\xa7 3504(h)\xe2\x80\x94 namely, \xc2\xa7 3507\xe2\x80\x94were available for use as the mechanism for OMB\nreview and potential disapproval of informational aspects of regulations, the\nfundamental purpose of the amendment to \xc2\xa7 3504(h) would be frustrated.\nTreasury\xe2\x80\x99s second major contention is that the statute\xe2\x80\x99s provisions other than\n\xc2\xa7 3504(h) support its reading of \xc2\xa7 3504(h). Section 3507(a)(2)(A) provides that\nno agency shall conduct or sponsor the collection of information unless \xe2\x80\x9c the\nagency . . . has submitted to the Director [of OMB] the proposed information\ncollection request, copies of pertinent regulations and other related materials as\nthe Director may specify.\xe2\x80\x9d (Emphasis added.) Treasury suggests that this lan\xc2\xad\nguage establishes a clear distinction between an \xe2\x80\x9c information collection re\xc2\xad\nquest,\xe2\x80\x9d on the one hand, and \xe2\x80\x9c related materials\xe2\x80\x9d such as \xe2\x80\x9cpertinent regula\xc2\xad\ntions,\xe2\x80\x9d on the other hand. This distinction is said to buttress the idea that\nregulations should be treated as entirely separate from an \xe2\x80\x9c information collection\nrequest\xe2\x80\x9d subject to review under \xc2\xa7 3507.\nFurthermore, Treasury\xe2\x80\x99s argument depends on a comparison of the first and\nlast sentences of \xc2\xa7 3507(c), as follows:\nAny disapproval by the Director, in whole or in part, cf a\nproposed information collection request cf an independent reg\xc2\xad\nulatory agency, or an exercise of authority under section 3504(h)\nor 3509 concerning such an agency, may be voided, if the agency\nby a majority vote cf its members overrides the Director\xe2\x80\x99s disap\xc2\xad\nproval or exercise of authority. The agency shall certify each\noverride to the Director, shall explain the reasons for exercising\n28 See S Rep No 930. 96lh Cong., 2d Sess. 88 (1980).\n29 126Cong.Rec 30178 (1980). The language of \xc2\xa7 3504(h) as contained in the predecessor Senate bill is quoted\nat pages 18 and 19 infra.\n\n395\n\n\x0cthe override authority. Where the override concerns an informa\xc2\xad\ntion collection request, the Director shall without further delay\nassign a control number to such request, and such override shall\nbe valid for a period cf three years. (Emphasis added.)\nSection 3507(c) was included in the Act to provide a means by which so-called\nindependent agencies could preserve a measure of their \xe2\x80\x9c independence\xe2\x80\x9d by\noverriding OMB disapprovals of their actions under the Act.30 In the first\nsentence of \xc2\xa7 3507(c), reference is made to a \xe2\x80\x9c disapproval . . . of a proposed\ninformation collection request . . ., or an exercise of authority under section\n3504(h) or 3509. . . . \xe2\x80\x9d (Emphasis added.)31 In the last sentence, only a disap\xc2\xad\nproval of an information collection request is referred to: "Where the override\nconcerns an information collection request, the Director shall without further\ndelay assign a control number to such request. . . .\xe2\x80\x9d (Emphasis added.) The\nomission in the last sentence of any reference to exercises of authority under\n\xc2\xa7 3504(h) or \xc2\xa7 3509 is viewed by Treasury as supporting its position that\nCongress never intended that control numbers should be assigned to regulations\nunder \xc2\xa7 3504(h), or, indeed, \xc2\xa7 3509. Under this interpretation, the last sentence\nof \xc2\xa7 3507(c) is a purposeful reflection of Congress\xe2\x80\x99 intent to keep entirely\nseparate the procedures governing regulations set forth in \xc2\xa7 3504(h), on the one\nhand, and the procedures governing an \xe2\x80\x9c information collection request\xe2\x80\x9d set\nforth in \xc2\xa7 3507 (including the control number requirement), on the other hand.32\nTreasury\xe2\x80\x99s third main argument rests on certain passages in the legislative\nhistory. For instance, Treasury finds support in the explanation of an \xe2\x80\x9c informa\xc2\xad\ntion collection request\xe2\x80\x9d in the Senate Committee report, which states that the\nterm \xe2\x80\x9crefers to the actual instrument used for a collection of information.\xe2\x80\x9d33\nTreasury argues that a form or questionnaire issued pursuant to a regulation could\nbe an \xe2\x80\x9c actual instrument\xe2\x80\x9d for the collection of information, but that it is an\nunduly strained use of words to say that a portion of a regulation itself could be\nsuch an \xe2\x80\x9c actual instrument.\xe2\x80\x9d\n10 See H.R. Rep No. 835. 96th Cong , 2d Sess 21-22 (1980), S. Rep No. 9 3 0 ,96th Cong., 2d Sess 14-15,47\n(1980)\n31 Section 3509 provides that the OMB Director \xe2\x80\x9c may designate a central collection agency to obtain information\nfor two or more agencies if the Director determines that the needs of such agencies for information will be\nadequately served by a single collection agency, and such sharing of data is not inconsistent with any applicable\nlaw\xe2\x80\x9d\n32 Treasury also argues that certain language in \xc2\xa7 3504(h) supports its position For instance, Treasury notes that\n\xc2\xa7 3504(h)(2) slates that within 60 days after publication in the Federal Register of a notice of proposed rulemaking,\nthe OMB Director \xe2\x80\x9c may file public comments pursuant to the standards set forth in section 3508 on the collection of\ninformation requirement contained in the proposed rule \xe2\x80\x9d The standards set forth in \xc2\xa7 3508 apply when the Director\nis deciding whether to approve a proposed \xe2\x80\x9c information collection request \xe2\x80\x9d Treasury argues that if a collection of\ninformation requirement for purposes of \xc2\xa7 3504(h) were to be treated in the same manner as an information\ncollection request under \xc2\xa7 3507, as OMB suggests, it would have been unnecessary for Congress to cross-reference\n\xc2\xa7 3508 in \xc2\xa7 3504(h)(2).\nIn addition, Treasury notes that \xc2\xa7 3504(h)(5)(A) specifically provides that nothing in \xc2\xa7 3504(h) prevents the\nOMB Director \xe2\x80\x9c from disapproving any information collection request which was not specifically required by an\nagency rule\n\xe2\x80\x9d Treasury suggests that by including this provision in \xc2\xa7 3504(h), Congress reaffirmed that the\ndisapproval of an \xe2\x80\x9c information collection request\xe2\x80\x9d is an entirely separate matter from the review of a \xe2\x80\x9c collection of\ninformation requirement" under \xc2\xa7 3504(h)\n33 S Rep No 930, 96th Cong , 2d Sess. 39 (1980)\n\n396\n\n\x0cIn addition, Treasury relies on a statement by Congressman Horton during\ndebate on the bill shortly before it passed the House of Representatives. Con\xc2\xad\ngressman Horton\xe2\x80\x99s comments focused on \xc2\xa7 3504(h), as follows:\nOMB\'s authority to review and comment on portions cf proposed\nregulations which require the collection of information is supple\xc2\xad\nmental to that agency\'s authority to approve or reject specific\ninformation collection requests. No matter what its action may\nhave been with regard to a proposed regulation, OMB may freely\napprove or reject any specific collection request deriving from\nsuch a regulation. (Emphasis added.)34\nTreasury stresses that Congressman Horton apparently distinguished between\nOMB\xe2\x80\x99s authority \xe2\x80\x9c to review and comment on portions of proposed regulations\xe2\x80\x9d\nunder \xc2\xa7 3504(h), on the one hand, and OMB\xe2\x80\x99s authority \xe2\x80\x9cto approve or reject\nspecific information collection requests,\xe2\x80\x9d on the other hand (emphasis added).\nThis distinction is said to support Treasury\xe2\x80\x99s basic position that provisions\nauthorizing OMB to \xe2\x80\x9c approve or reject\xe2\x80\x9d an information collection request,\nincluding \xc2\xa7 3507, are necessarily separate from and should not be confused with\nthe procedures forOMB \xe2\x80\x9c review and comment\xe2\x80\x9d on regulations under \xc2\xa7 3504(h).\nB. OMB Position\nThe position of the Office of Management and Budget and the Office of the\nVice President, as reflected in your memoranda to us, is that Treasury wrongly\ninterprets the Act when it concludes that \xc2\xa7 3504(h) is the only provision setting\nforth specific procedures governing OMB review of regulations imposing paper\xc2\xad\nwork burdens.\nA central argument supporting OMB\xe2\x80\x99s position is that the statute\xe2\x80\x99s definition of\nan \xe2\x80\x9c information collection request\xe2\x80\x9d is broad enough to encompass portions of\nregulations that impose reporting or recordkeeping requirements. The definition\nis as follows:\n. . . a written report form, application form, schedule, question\xc2\xad\nnaire, reporting or recordkeeping requirement, or other similar\nmethod calling for the collection of information. (Emphasis\nadded.)35\nOMB argues that a regulation which contains a \xe2\x80\x9creporting or recordkeeping\nrequirement\xe2\x80\x9d by definition contains an \xe2\x80\x9c information collection request\xe2\x80\x9d subject\nto the procedures of \xc2\xa7 3507.36\n34 126 Cong Rec 31228 (1980).\n33 Section 3502(11)\n36 Assuming arguendo that a regulation could contain an \xe2\x80\x9c information collection request\xe2\x80\x9d as defined in\n\xc2\xa7 3502(11) of the Act, a question would arise whether the entire regulation should be deemed such a \xe2\x80\x9c request,\xe2\x80\x9d or\nwhether only some segregable portion of a regulation containing the request, if any, should be so viewed For\npurposes of this opinion, we will speak about the possibility of a regulation \xe2\x80\x9ccontaining" an \xe2\x80\x9c information collection\nrequest\xe2\x80\x9d (when describing OMB\'s position) without deciding this additional question, which we need not decide for\npurposes of our analysis\n\n397\n\n\x0cOMB buttresses its position by referring to a statement in the Senate Commit\xc2\xad\ntee report that \xe2\x80\x9c [t]he imposition of a federal paperwork burden does not depend\non how the questions are asked of the respondent, but rather on the fact the\nFederal government has asked or sponsored the asking of questions.\xe2\x80\x9d 37 This\nstatement is said to support the view that the \xe2\x80\x9c actual instrument\xe2\x80\x9d used for the\ncollection of information need not be a form, but could be an oral comment, a\nregulation, or any other means of communicating the request.\nFurthermore, OMB contends that an interpretation of the Act which does not\ntreat reporting or recordkeeping requirements in regulations as information\ncollection requests subject to \xc2\xa7 3507 would frustrate the Act\xe2\x80\x99s underlying pur\xc2\xad\npose, namely, the reduction of the paperwork burden imposed by the federal\ngovernment. One of the ways the Paperwork Reduction Act sought to achieve this\npurpose was to eliminate the exemption that had applied to the IRS and certain\nother entities under the Federal Reports Act.38 OMB argues that the elimination\nof the IRS exemption is inconsistent with Treasury\xe2\x80\x99s view that IRS regulations\nmay be reviewed by OMB only under \xc2\xa7 3504(h).\nIn support of its view that all regulations containing reporting or recordkeeping\nrequirements must be assigned control numbers under \xc2\xa7 3507, OMB refers to\npassages in the legislative history stating that each \xe2\x80\x9cinformation collection\nrequest\xe2\x80\x9d should be assigned a control number. For example, OMB refers to a\nstatement in the Senate Committee report that \xe2\x80\x9c no agency shall engage in a\ncollection of information without obtaining from the Director a control number to\nbe displayed upon the information collection request.\xe2\x80\x9d (Emphasis added.)39\nAnother passage in the report relied upon by OMB states:\nThe Director\xe2\x80\x99s responsibility to ensure all collections of informa\xc2\xad\ntion display a control number corresponds to the requirement of\nsection 3507(0 which states an agency shall not engage in a\ncollection of information without obtaining a control number\nfrom the Director. (Emphasis added.)40\nIn response to Treasury\xe2\x80\x99s discussion of the Senate\xe2\x80\x99s amendment to \xc2\xa7 3504(h),\nOMB suggests that the amendment\xe2\x80\x99s purposes can be achieved under its inter\xc2\xad\npretation of the Act. OMB argues that all that \xc2\xa7 3504(h) requires is that once new\nrulemaking commences, the procedures of \xc2\xa7 3504(h) are to be followed. This is\nconsistent, OMB suggests, with its view that under \xc2\xa7 3507 OMB can review and\napprove (or not approve) information collection requests contained in regulations\nthat already were in existence when the Act became effective. If OMB disap\xc2\xad\nproves such a request in such a regulation, under OMB\xe2\x80\x99s view the agency has two\nchoices: it could either revise the information collection request in accordance\n37 S. Rep. No 930, 96th Cong., 2d Sess 39 (1980). As we discuss later in this memorandum, this statement is\ntaken somewhat out of context by OMB In context, it appears to relate exclusively to the distinction between oral\nand written requests for information\n38 See S. Rep. No 930, 96th Cong , 2d Sess. 13 (1980); H R. Rep. No. 835, 96th Cong., 2d Sess. 19 (1980).\n39 S Rep. No 930, 96th Cong , 2d Sess 48 (1980).\n40 Id at 42\n\n398\n\n\x0cwith OMB\xe2\x80\x99s concerns, assuming that this could be done without altering the\nunderlying regulation, or initiate new rulemaking to change the regulation in\norder to accommodate OMB\xe2\x80\x99s position.41 Under OMB\xe2\x80\x99s interpretation, only the\nlatter action would trigger the procedures of \xc2\xa7 3504(h).\nIn addition, OMB disputes the Treasury Department\xe2\x80\x99s reading of the last\nsentence of \xc2\xa7 3507(c), which provides that \xe2\x80\x9c [w]here the override concerns an\ninformation collection request, the Director shall without further delay assign a\ncontrol number to such request, and such override shall be valid for a period of\nthree years.\xe2\x80\x9d As noted earlier, the first sentence of the subsection refers to OMB\ndisapprovals of a proposed information collection request or an exercise of\nOMB\xe2\x80\x99s authority under \xc2\xa7\xc2\xa7 3504(h) or 3509. OMB argues that the introductory\nphrase in the last sentence, \xe2\x80\x9c [w]here the override concerns an information\ncollection request,\xe2\x80\x9d implicitly distinguishes between OMB disapproval of an\ninformation collection request\xe2\x80\x94 whether or not subject to \xc2\xa7\xc2\xa7 3504(h )\xe2\x80\x94and an\nexercise of authority under \xc2\xa7 3509, which pertains to the designation of a central\ncollection agency and thus has no bearing on the clearance of information\nrequests. In short, OMB\xe2\x80\x99s position is that \xc2\xa7 3507(c) lends no support to Trea\xc2\xad\nsury\xe2\x80\x99s view that the Act distinguishes between the review of information collec\xc2\xad\ntion requests (and the assignment of control numbers thereto), on the one hand,\nand exercises of authority under \xc2\xa7 3504(h), on the other hand.42\n\nIII. Analysis of the Act\xe2\x80\x99s Language and Legislative History\nBefore developing our own analysis of the statute, it appears necessary to\nclarify precisely the issue before us. As we understand the fundamental dispute\npresented to us for resolution, Treasury and OMB are not in disagreement about\nthe status of forms, schedules, or questionnaires which are issued pursuant to\nstatutes or regulations and which impose paperwork burdens. Both appear to be\nin agreement\xe2\x80\x94and we concur\xe2\x80\x94that such forms, schedules, or questionnaires in\ngeneral are \xe2\x80\x9c information collection requests\xe2\x80\x9d under the Act subject, among other\nthings, to \xc2\xa7 3507.43 Furthermore, Treasury does not contend that regulations\nimposing paperwork burdens are not subject to any of the Act\xe2\x80\x99s requirements.\nRather, Treasury argues, as stated above, that regulations are subject to the OMB\nreview-and-possible-disapproval mechanism stated in the Act in \xc2\xa7 3504(h), not\nto the mechanism set forth in \xc2\xa7\xc2\xa7 3504(c) and 3507. That is the specific issue we\nmust address.\nIn analyzing this issue, we will turn first to \xc2\xa7 3504(h) and its legislative\nhistory. We then will discuss other provisions of the statute. Finally, we will\nexamine the Act\xe2\x80\x99s general scheme.\n41 See Memorandum from C Boyden Gray and Michael Horowitz, entitled \xe2\x80\x9c Paperwork Reduction A ct," at page\n4 (Jan. 15, 1982) This memorandum also argues that regulations proposed and promulgated after the Act\xe2\x80\x99s effective\ndate ultimately are to be assigned control numbers under \xc2\xa7 3507 after the regulations have been promulgated in a\nmanner consistent with \xc2\xa7 3504(h).\n42 The arguments set forth in the memorandum of C Boyden Gray and Michael Horowitz dated April 23, 1982,\nwill be discussed in greater detail in section IV below.\n43 The ultimate decision, of course, whether or not a particular form is an \xe2\x80\x9c information collection request\xe2\x80\x9d will\nturn on the facts of each case as analyzed in light of the Act\xe2\x80\x99s provisions.\n\n399\n\n\x0cA. Section 3504(h)\n\n(1) The House and Senate bills. A full understanding of \xc2\xa7 3504(h) requires\nknowledge of the provision\xe2\x80\x99s history. Both of the bills reported out of the\nresponsible committees of the House of Representatives and the Senate contained\na \xc2\xa7 3504(h), which in both cases granted OMB broad powers to review regula\xc2\xad\ntions imposing paperwork burdens. Section 3504(h) of the House bill, H.R.\n6410, provided:\n(h) Other functions of the Director shall include ensuring that, in\ndeveloping rules and regulations, agencies\xe2\x80\x94\n(1) utilize efficient methods to collect, use, and disseminate\nnecessary information;\n(2) provide an early and substantial opportunity for the pub\xc2\xad\nlic to comment on proposed means of collecting informa\xc2\xad\ntion related to such rules and regulations; and\n(3) make assessments of the consequences of alternative\nmethods of implementing the statutory goals of such\nrules and regulations (including alternative methods of\ncollecting information). (Emphasis added.)44\nSection 3504(h) of the Senate bill, S. 1411, provided:\n(h) The Director shall, subject to section 3507(c) of this chap\xc2\xad\nter,45 ensure that, in developing rules and regulations, agen\xc2\xad\ncies\xe2\x80\x94\n(1) utilize efficient means in the collection, use, and dis\xc2\xad\nsemination of information;\n(2) provide an early and meaningful opportunity for the\npublic to comment on proposed means for collection of\ninformation; and\n(3) assess the consequences of alternative means for the\ncollection, use, and dissemination of information. (Em\xc2\xad\nphasis added.)46\nThe meaning of these predecessor provisions may be confirmed by reference to\nthe relevant committee reports. Both reports explained that \xc2\xa7 3504(h) in the\nrespective bills constituted a general authorization for OMB to assure that\nagencies, in developing regulations, minimized the paperwork burden imposed\nby the federal government. As the report of the House Committee on Govern\xc2\xad\nment Operations put it:\nUnder H.R. 6410, the OMB Director is to ensure that the\nagencies, in developing rules and regulations, use efficient meth44 H R Rep. No. 835. 96th Cong . 2d Sess 44 (1980).\nSection 3507(c). which gives independent regulatory agencies the power to override OMB disapprovals under\nthe Act. is quoted above\n4,1 S. Rep No. 930. 96th C ong., 2d Sess. 88 (1980).\n\n400\n\n\x0cods to collect, use, and disseminate the necessary information.\nThe Committee views this function as similar to the present OMB\nfunction of overseeing agency activities under Executive Order\n12044 [which was the Carter Administration Executive Order\ndealing with regulatory reform].47\nA question was raised during the hearings as to whether the\nbill\xe2\x80\x99s language meant the OMB office was to have a regulatory\nreform function. Regulatory reform is a separate issue from the\nfunction assigned by H .R. 6410. Under the bill, OMB is assigned\nthe responsibility for reviewing, [sic] reporting and recordkeep\xc2\xad\ning requirements imposed on the public by regulations. Regulato\xc2\xad\nry reform, on the other hand, deals with major modifications in\nagency responsibilities. The Committee intends that OMB con\xc2\xad\ntinue its effort in overseeing the information aspects of Govern\xc2\xad\nment regulations. However, the assignment cf regulatory reform\nto the Office of Federal Information Policy would dilute the\ninformation functions assigned under this bill. (Emphasis\nadded.)48\nAs the report of the Senate Committee on Governmental Affairs explained:\nSection 3504(h) of the bill mandates the Director to ensure that\nin developing rules and regulations agencies take steps to mini\xc2\xad\nmize the information burden of regulations. The Committee\nviews this function as similar to the present OMB function to\n47 Executive Order No. 12044, 43 Fed Reg. 12661 (1978), entitled Improving Government Regulations,\ncontained a number of provisions calling upon agency heads to improve the analysis underlying new regulations,\nparticularly regulations that met the order\xe2\x80\x99s criteria of \xe2\x80\x9c significant\xe2\x80\x9d regulations in economic or other terms (\xc2\xa7 2(e))\nFor instance, a regulatory analysis was required for significant regulations Such an analysis was to include a careful\nexamination of possible alternatives to the approach ultimately proposed by the agency and a justification of the\nchoice that was made (\xc2\xa7\xc2\xa7 2 & 3). In addition, the order required agencies periodically lo review their existing\nregulations to determine whether they were achieving the order\xe2\x80\x99s goals, which included, among other things,\nminimizing compliance costs, paperwork and other burdens on the public (\xc2\xa7\xc2\xa7 4 & 1(e)) Section 5 gave general\npowers of oversight of the order\xe2\x80\x99s provisions to OMB Sections 5(a) and 5(b) required agencies to prepare reports for\nimplementing the order and to submit the reports to OMB for review and approval. Section 5(c) provided that OMB\n\xe2\x80\x9c shall assure the effective implementation of this Order." Accordingly, Executive Order No 12044 required\nagencies to review new and existing regulations in terms of such goals as minimizing paperwork and other burdens\non the public, and it assigned to OMB general authonty to assure the achievement of these goals The Order did not\nset forth specific procedures by which OMB was to conduct its oversight activities.\n48 H.R.Rep. No 835,96thCong , 2d Sess. 9 (1980) A later passage in the House Committee report underscored\nthat the bill was intended to cover regulations imposing paperwork burdens This point was made in the context of a\ndiscussion of the bill\xe2\x80\x99s definition of the \xe2\x80\x9c collection of information," which included a reference to a \xe2\x80\x9c reporting and\nrecordkeeping requirement.\xe2\x80\x9d The report noted that the Securities and Exchange Commission had strongly\nrecommended that the bill \xe2\x80\x9c be amended to narrow the definition of \xe2\x80\x98collection of information\xe2\x80\x99 to exclude reporting\nrequired in connection with statutonly authorized [sic] regulatory, enforcement, or oversight efforts \xe2\x80\x9d The\nCommittee agreed with the SEC about the close relationship between policymaking and information management\nissues, but added that regulatory agencies in the Executive Branch, such as the Environmental Protection Agency,\n\xe2\x80\x9c have been able to justify to OMB their need for information used to establish policy or for other purposes.\xe2\x80\x9d The\nCommittee concluded that the independent regulatory agencies \xe2\x80\x9c should also be capable of doing so.\xe2\x80\x9d The\nCommittee confirmed that its broad definition of a \xe2\x80\x9c collection of information\xe2\x80\x9d was intended to clarify the term \xe2\x80\x99s\ncoverage \xe2\x80\x9cto force SEC and any others who might apply a restrictive interpretation to comply with statutory\ninformation collection clearance requirements. The Committee fully expects [the] SEC to comply with the \xe2\x80\x98more\nextensive\xe2\x80\x99 definition of collection of information as contained in H R 6410 \xe2\x80\x9d Id at 23\n\n401\n\n\x0coversee agency activities under Executive Order 12044.49 The\nimportance of this linkage between OM B\xe2\x80\x99s existing responsibility\nfor overseeing the regulatory process with the closely related\ninform ation management functions assigned by the bill was\nstressed by the Comptroller General in his comments to the\nCommittee[:]\nThis relationship between the regulatory process and infor\xc2\xad\nmation management is reflected in OM B\xe2\x80\x99s existing Office of\nRegulatory and Information Policy. We believe this com\xc2\xad\nbination of functions has worked well. The p rin cip a l areas o f\ngrow th in Federal p a p erw o rk burdens are a sso cia ted with\nnew regulations. Therefore, it seems appropriate to retain\n\nthe existing link between the functions for controlling both\nregulatory and paperwork burdens.\nThe Committee intends that the Director of OMB continue efforts\nto oversee the information management and burden aspects of\ngovernment regulations. This em phasis has great prom ise fo r\nm inim izing the explosion c f p aperw ork dem ands on the pu blic\nbecau se new regulations are causing the greatest growth in infor\xc2\xad\nm ation requirem ents. However, the C om m ittee does not intend\nthat \xe2\x80\x98regu latory reform\xe2\x80\x99 issues which go beyond the scope c f\ninform ation m anagem ent an d burden b e assign ed to the office by\nthe D irector. Recent initiatives such as the trucking and airline\n\nderegulations are examples of regulatory reform issues whose\nassignment to the Office would dilute the information function\nassigned by this bill. (Emphasis added.)50\nAccordingly, both the House and the Senate Committees confirmed that\n\xc2\xa7 3504(h) in the House and Senate bills was designed to ensure that agencies, in\ndevelopin g regulations, minimized the paperwork burden associated with the\nregulations. Although OMB\xe2\x80\x99s function under \xc2\xa7 3504(h) was acknowledged to\nhave some similarities with the oversight role performed during the Carter\nAdministration under Executive Order No. 12044, it was sharply distinguished\nby both Committees from general \xe2\x80\x9c regulatory reform\xe2\x80\x9d activities. It is notewor\xc2\xad\nthy that the Senate Committee report specifically referred to the burdens imposed\nby \xe2\x80\x9c new\xe2\x80\x9d regulations as the principal problem to be addressed.\n(2) Debate in the Senate and House: the amendment of \xc2\xa7 3504(h). If \xc2\xa7 3504(h)\nhad been enacted as it was reported out of the Senate and House Committees, it\nnot only would have authorized OMB to review the development of agency rules\nin terms of paperwork considerations, but also would have done so without\nspecifying in any detail the procedural steps to be taken in the course of such\nreview. However, \xc2\xa7 3504(h) was significantly amended on the Senate floor on\nNovember 19, 1980. Senator Kennedy provided the following statement of\n49 For a description of Executive Order N o. 12044, see note 47, supra\n50 S. Rep No 930, 96th C ong., 2d Sess. 8 -9 (1980); see also id. at 15.\n\n402\n\n\x0creasons for his amendment, which passed the Senate in the form in which he\nproposed it and finally was enacted:\nA s reported out c f the Governm ental Affairs C om m ittee, the\nlegislation raises som e serious concerns about the role o f the\nOffice o f M anagem ent an d B udget (OM B) in overseeing the\ninformation collection activities c f Federal agencies. While I\n\ncertainly support strong executive management of the Federal\nregulatory system, this management objective should be tem\xc2\xad\npered by other legitimate public policy concerns. This legislation\nwould perm it the D irector o f OMB to overturn a rule which was\nadopted by an agen cy without providing any p rocedu ral rights fo r\nthe peo p le affected b y the rule o r f o r the agency that prom u lgated\nthe rule. Thus, even if any agency has complied with all the\n\nappropriate procedural requirements for public notice and com\xc2\xad\nment, and has spent years compiling an adequate agency record,\nthis legislation would permit OMB to overturn that agency deci\xc2\xad\nsion without even requiring OMB to justify its decision publicly.\nThis violates basic notions o f fairn ess upon which the Adm in\xc2\xad\nistrative Procedure A ct is based, as w ell a s concepts c f due\np rocess em bodied in the U .S. Constitution.\n\nMr. President, I have proposed several amendments, accepted\nby the Governmental Affairs Committee, which deal with this,\nand other concerns. . . . Most importantly, / have spon sored an\nam endm ent which lim its the authority cfO M B to overturn rep o rt\xc2\xad\ning, recordkeeping, and other information collection require\xc2\xad\nm ents ad o p ted by a Federal agen cy in a rulem aking proceeding.\nThis am endm ent establish es a p rocedu ral scheme which governs\nO M B \xe2\x80\x99s relationship with the Federal agencies.\n\nFirst, an agency is required to notify OMB as soon as possible,\nbut no later than the date upon which a notice of proposed\nrulemaking is published in the Federal Register, of a proposed\ninformation collection requirement.\nSecond, the Director of OMB is required to comment on the\nagency\xe2\x80\x99s information collection requirements in the proposed rule\nwithin 60 days or forfeit its rights to review those requirements at\na later time. In these comments, the Director of OMB would\nsuggest alternative methods of collecting information more\nefficiently.\nThird, when the agency adopts its final rule, it must respond to\nthose comments by modifying the information collection require\xc2\xad\nments or by explaining why it rejected OMB\xe2\x80\x99s suggestions.\nIf the agency does not forward a copy of its proposed informa\xc2\xad\ntion collection requirements to OMB, OMB retains its right to\nreview that request even though it has not filed comments during\n403\n\n\x0cthe rulemaking proceedings. Moreover, if an agency intends to\nm odify substantially the information collection requirements\nwhich were in the proposed rule, this amendment insures that\nOMB has at least 60 days to comment on these modified require\xc2\xad\nments before the final rule is issued.\nThis am endm ent w ou ld provide the final po w er to OM B to\noverturn an agen cy\xe2\x80\x99s recordkeepin g o r reporting requirem ents\non ly i f it m ade a public fin din g th at the agency\'s response was\n\xe2\x80\x98u n reason able.\xe2\x80\x99 . . .\nThis am endm ent would not affect O M B \xe2\x80\x99s righ t to review form s\no r o th er information collection requests which were not specifi\xc2\xad\nca lly requ ired b y an a g en cy rule.\nIn essen ce, th is am endm ent is d esig n ed to fo rc e the agen cy and\nO M B to co n sider information collection requirem ents ea rly in the\np ro c e ss w ith a meaningful opportu n ity f o r p u b lic com m ent on\nO M B \xe2\x80\x99s altern atives. (Emphasis added.)51\n\nSeveral aspects of the foregoing explanation are worthy of note. First, the\namendment to \xc2\xa7 3504(h) was specifically designed to establish a set of pro\xc2\xad\ncedures by which OMB would review and comment on information collection\nrequirements in proposed rules. The amendment was offered in response to the\nconcern that, absent such procedures, OMB could \xe2\x80\x9c overturn a rule which was\nadopted by an agency without providing any procedural rights for the people\naffected by the rule or for the agency that promulgated the rule.\xe2\x80\x9d 52\nA central aspect of the amendment\xe2\x80\x99s procedural scheme was the requirement\nthat OMB state publicly any decision to overturn an information collection\nrequirement in a proposed rule in order to be consistent with what Senator\nKennedy described as \xe2\x80\x9c basic notices of fairness upon which the Administrative\nProcedure Act is based, as well as concepts of due process embodied in the U.S.\nC onstitution.\xe2\x80\x9d 126 Cong. Rec. 30178 (1980). Also, under the amended\n\xc2\xa7 3504(h), OM B\xe2\x80\x99s power ultimately to overturn an agency\xe2\x80\x99s recordkeeping or\nreporting requirement in a proposed rule is limited to certain circumstances, such\nas when OMB makes a public finding that the requirement is \xe2\x80\x9c unreasonable.\xe2\x80\x9d\nIn addition, Senator Kennedy distinguished OMB\xe2\x80\x99s power to review regula\xc2\xad\ntions under \xc2\xa7 3504(h) from OM B\xe2\x80\x99s power to review \xe2\x80\x9c forms or other information\ncollectio n requ ests which were not specifically required by an agency ru le!\xe2\x80\x99\n(Emphasis added.) This distinction supports the proposition that the review\nunder \xc2\xa7 3504(h) of collection of information requirements required by, or con\xc2\xad\ntained in, a rule should not be confused with the review under other provisions of\nthe statute of an \xe2\x80\x9c information collection request\xe2\x80\x9d not specifically required by a\nrule. This distinction also is reflected in a statement supporting Senator Ken\xc2\xad\nnedy\xe2\x80\x99s amendment made by Senator Danforth, who, after noting that the amend\xc2\xad\nment\xe2\x80\x99s purpose was to \xe2\x80\x9c prevent OMB from undoing a collection of information\n51 126 Cong. Rec 30178 (1980)\n52 Id\n\n404\n\n\x0crequirement specifically contained in an agency rule after that requirement has\ngone through the administrative rulemaking process if the OMB Director ignores\nthe rulemaking process,\xe2\x80\x9d added:\n/ note, however, that this lim itation on OM B\'s authority is\nconfined to requirem ents specifically contained in agency rules. It\ndoes not disturb O M B \xe2\x80\x99s authority to block information collection\nrequests issued pursuant to rules, neither is it license to agencies\nto avoid OMB review of paperkeeping requirements bootstrapped\nto vague requirements in agency rules. (Emphasis added.)53\nAs Senator Danforth thus confirmed, \xc2\xa7 3504(h) as amended does not disturb\nOM B\xe2\x80\x99s power to reject information collection requests issued pursuant to rules,\nas distinct from information collection requirements specifically con tain ed in\nrules.\nOn December 1, 1980, the House of Representatives debated the bill as\namended by the Senate.54 The most extensive explanation offered on the House\nfloor of the amended \xc2\xa7 3504(h) was the following by Congressman Horton:\nThe most significant difference between the two measures [the\nSenate and House bills] is the inclusion of a new subsection\n3504(h) in the Senate version. The Senate provision is innovative\nin that it attem pts to link the regulation-w riting p ro cess w ith the\ncollection o f information by the F ederal Governm ent. The p ro v i\xc2\xad\nsion d oes this by m andating that OM B review and com m ent on\neach p ro p o sed regulation which contains a requirem ent f o r the\ncollection o f inform ation.\n\nBecause subsection 3504(h) which the Senate has added to the\nbill is extremely complex, I think it is essential to clarify three\npoints about it:\nFirst, O M B \xe2\x80\x99s authority to review an d com m ent on p o rtio n s c f\np ro p o se d regulations which require the collection o f information\nis supplem ental to that a g en cy\xe2\x80\x99s authority to approve o r reject\nspecific information collection requests. N o m a tter w hat its a c \xc2\xad\ntion m ay have been with regard to a p ro p o se d regulation, OMB\nm ay fre e ly approve o r reject any specific collection request deriv\xc2\xad\ning fro m such a regulation.\n\nSecond, in reviewing proposed regulations, OMB may disap\xc2\xad\nprove any collection requirement which it finds \xe2\x80\x98unreasonable\xe2\x80\x99\xe2\x80\x94\nwhich is to say, not of sound judgment in the opinion of the OMB\nDirector. The purpose of \xc2\xa7 3504(h)(5)(C) [the provision em\xc2\xad\npowering OMB to disapprove \xe2\x80\x9c unreasonable\xe2\x80\x9d requirements] is\n53 126 Cong. Rec 30179 (1980)\n54 See 126 Cong Rec. 31227 (1980) (remarks of Chairman Brooks) (noting that one of the major respects in\nwhich the Senate bill differed from the House bill was that the former \xe2\x80\x9c insures that OMB\'s review of agency\ninformation collection requests will be coordinated with agency rulemaking procedures established by the\nAdministrative Procedure Act or other similar legislation\n.\xe2\x80\x9d )\n\n405\n\n\x0cnot to restrict unduly the ability of OMB to act, but to insure that\nin acting, OMB [does] have justification for what it does.\nThird, decisions by OMB under this provision are not reviewable in court. Section 3504(h)(9) states that there shall be no\njudicial review of any OMB decision to approve or not act upon a\nproposed regulation; because the power to approve implies the\npower to disapprove, this paragraph in effect forbids court chal\xc2\xad\nlenge of any decision to pursue any of the options open to OMB\xe2\x80\x94\napproval, disapproval, or inaction. (Emphasis added.)55\nO f particular significance in Congressman Horton\xe2\x80\x99s explanation of \xc2\xa7 3504(h) is\nthe distinction between OMB\xe2\x80\x99s authority to \xe2\x80\x9c review and comment\xe2\x80\x9d on portions\nof regulations specifically requiring the collection of information under\n\xc2\xa7 3504(h), on the one hand, and OMB\xe2\x80\x99s authority to \xe2\x80\x9c approve or reject\xe2\x80\x9d\ninformation collection requests deriving from regulations, on the other hand. As\nCongressman Horton observed: \xe2\x80\x9c No matter what its action may have been in\nregard to a proposed regulation, OMB may freely approve or reject any specific\ncollection request deriving from such a regulation.\xe2\x80\x9d\nThis legislative history of \xc2\xa7 3504(h) as amended strongly suggests that it was\nintended as the exclusive mechanism for OMB review of regulations containing\ninformation collection requirements. If this were not so, the provision\xe2\x80\x99s amend\xc2\xad\nment by itself would not have been sufficient to assure that OMB would follow\ncertain prescribed procedures when reviewing rules under the statute. It seems\nclear from the legislative record that the amendment\xe2\x80\x99s sponsor, Senator Kennedy,\nconsidered that the amendment of \xc2\xa7 3504(h) would be sufficient to achieve this\npurpose.\nFurthermore, the remarks of Senator Kennedy, Senator Danforth, and Con\xc2\xad\ngressman Horton\xe2\x80\x94 who provided the most extensive comments on the amended\n\xc2\xa7 3504(h) in the legislative history\xe2\x80\x94 all draw a distinction between OMB review\nunder \xc2\xa7 3504(h) of information collection requirements contained in or specifi\xc2\xad\ncally requ ired b y regulations, on the one hand, and OM B\xe2\x80\x99s approval or disap\xc2\xad\nproval of information collection requests issued pursuant to or deriving from\nregulations, on the other hand. This distinction supports the notion that\n\xc2\xa7 3504(h) was intended as the exclusive mechanism for OMB review and\npossible disapproval of aspects of regulations specifically imposing information\nburdens, as distinguished from OMB review of information collection requests\nissued under, pursuant to, or entirely apart from regulation.\nFinally, this history strongly suggests that \xc2\xa7 3504(h) and only \xc2\xa7 3504(h )\xe2\x80\x94 not\n\xc2\xa7 3507\xe2\x80\x94 sets forth the procedures governing regulations for purposes of this Act.\nIt would be entirely inexplicable for Congress on the one hand to establish a\ndetailed and specific process for OMB participation in developing new regula\xc2\xad\ntions based on a manifest concern with fairness, due process, and APA pro\xc2\xad\ncedures, while on the other hand allowing existing and longstanding regulations\n55 126 Cong. Rec. 31228 (1980)\n\n406\n\n\x0cto be swept aside or partially overturned without any of the same procedural\nsafeguards. The amendment to \xc2\xa7 3504(h) does not make sense if \xc2\xa7 3507 could be\nused with respect to either \xe2\x80\x9c new\xe2\x80\x9d or \xe2\x80\x9c old\xe2\x80\x9d regulations.\n(3) The language of \xc2\xa7 3504(h) as enacted. Even though nothing in \xc2\xa7 3504(h)\nspecifically states that it provides the exclusive procedure for OMB review of\ncollection of information requirements in rules, the provision\xe2\x80\x99s language, in our\nview, confirms that view. First, although the Act gives OMB broad powers of a\ngeneral nature over federal information practices, \xc2\xa7 3504(h) is the only provision\nin the statute explicitly establishing a process for OMB review and possible\ndisapproval of collection of information requirements in rules. It would be\nanomalous for Congress to set forth such a detailed procedure and, at the same\ntime, to permit OMB to follow an entirely different procedure under another\nprovision, such as \xc2\xa7 3507, without cross-referencing this possibility in\n\xc2\xa7 3504(h). Although not dispositive, the principle of statutory construction,\n\xe2\x80\x9c expressio unius est exclusioalterius,\xe2\x80\x9d has some application here. This principle\nmay be translated as \xe2\x80\x9c the expression of one thing is the exclusion of another.\xe2\x80\x9d\nBlack\xe2\x80\x99s Law Dictionary 521 (5th ed. 1979). Under this maxim, when a statute or\nother legal instrument expressly includes certain things in one provision\xe2\x80\x94 such\nas the procedure in \xc2\xa7 3504(h)\xe2\x80\x94 the drafters usually may be understood to have\nintended to exclude other things not expressly addressed\xe2\x80\x94 such as a parallel but\nmarkedly different procedure for OMB review of regulations under \xc2\xa7 3507\xe2\x80\x94\nfrom the coverage of that provision. Id. Although the maxim is by no means\nconclusive, such a result is normally presumed, absent affirmative contrary\nindication in a statute\xe2\x80\x99s language or legislative history.56 The application of the\nmaxim is more persuasive when the language of the statute, its legislative history,\nand other factors point to the same result.\nFurthermore, \xc2\xa7 3504(h) establishes a relatively detailed set of procedures for\nOMB review of portions of regulations containing collection of information\nrequirements. These procedures would be rendered essentially superfluous if\nOMB could, at its option, review any given regulation under \xc2\xa7 3507, which lacks\nthe procedural requirements of \xc2\xa7 3504(h). If this were possible, it is difficult to\nunderstand why Congress would have included \xc2\xa7 3504(h) in the statute.\nIn addition, certain details of the language of \xc2\xa7 3504(h) buttress the conclusion\nthat it provides the exclusive procedural mechanism for OMB review of regula\xc2\xad\ntions expressly stated in the Act. Section 3504(h)(2) provides that within 60 days\nafter a notice of proposed rulemaking is published in the Federal Register, the\nOMB Director \xe2\x80\x9c may file public comments pursuant to the stan dards se t fo rth in\nsection 3 5 0 8 on the collection of information requirement contained in the\nproposed rule\xe2\x80\x9d (emphasis added). The standards set forth in \xc2\xa7 3508 are the ones\napplied by OMB before approving a proposed \xe2\x80\x9c information collection request,\xe2\x80\x9d\n56 See, e.g ., Morris v. Gressette, 432 U.S. 491, 506 n 22 (1977); Wachovia Bank & Trust Co. v. National Student\nMarketing Corp., 650 F 2d 342, 354\xe2\x80\x9455 (D C Cir. 1980), cert, denied. 452 U.S. 954 (1981), 2A, C Sands,\nSutherland Statutory Construction \xc2\xa7 47.25 (4th ed. 1973)\n\n407\n\n\x0csuch as under \xc2\xa7 3507.57 If the drafters of \xc2\xa7 3504(h) had intended that OMB could\nreview regulations under \xc2\xa7 3507, it would have been unnecessary for them to\ninclude in \xc2\xa7 3504(h)(2) a specific reference to the standards contained in \xc2\xa7 3508,\nfor in that case, the standards set forth in \xc2\xa7 3508 would have applied\nautomatically.\nIt also is noteworthy that under \xc2\xa7 3508, the OMB Director \xe2\x80\x9c may give the\nagency and other interested persons an opportunity to be heard or to submit\nstatements in writing.\xe2\x80\x9d Section 3508 also contains no requirement that OMB\nprovide a public statement of its views. In contrast, \xc2\xa7 3504(h)(2) authorizes the\nOMB Director only to file public comments about a collection of information\nrequirement in a proposed rule. This contrast further indicates that the procedures\nof \xc2\xa7 3504(h) are fundamentally distinguishable from those applying under other\nprovisions of the Act, including \xc2\xa7\xc2\xa7 3507 and 3508.\nAlso, \xc2\xa7 3504(h)(5)(A) provides that nothing in \xc2\xa7 3504(h) prevents the OMB\nDirector, in his discretion, \xe2\x80\x9c from disapproving any information collection re\xc2\xad\nq u est which was not specifically requ ired b y an agen cy ru le" (emphasis added).\nThis subsection thus distinguishes between a collection of information require\xc2\xad\nment reviewed by OMB under \xc2\xa7 3504(h), on the one hand, and OMB approval or\ndisapproval of an \xe2\x80\x9c information collection request\xe2\x80\x9d that is not \xe2\x80\x9c specifically\nrequired\xe2\x80\x9d by an agency rule, on the other hand. As noted earlier, such a\ndistinction supports the conclusion that \xc2\xa7 3504(h) applies to collection of infor\xc2\xad\nmation requirements required by or contained in regulations, whereas other\nprovisions of the Act, including \xc2\xa7 3507, apply to an \xe2\x80\x9c information collection\nrequest\xe2\x80\x9d made pursuant to (or entirely apart from) a regulation.\nB . O th er P rovision s c f the Act\n\nThe foregoing interpretation o f \xc2\xa7 3504(h), which in our view is most consist\xc2\xad\nent with its language and legislative history, appears consistent with the statute\xe2\x80\x99s\nother major provisions, which we will discuss in numerical sequence.\n(1)\nSection 3501: \xe2\x80\x9cPurpose.\xe2\x80\x9d Section 3501 states in general terms the Act\xe2\x80\x99s\nbasic purpose, which includes minimizing the federal paperwork burden and\ncoordinating, integrating, and making more uniform federal information policies\nand practices. OMB argues that the Act\xe2\x80\x99s purpose would be undercut by an\ninterpretation of the Act which construed \xc2\xa7 3504(h) as the exclusive mechanism\nfor OMB review o f regulations containing collection of inform ation\nrequirements.\nWe have several difficulties with this argument. First, it is exceedingly\ngeneral. Although the statement of the Act\xe2\x80\x99s purpose is quite broad and sweeping\n57 Section 3508 provides\nBefore approving a proposed information collection request, the Director shall determine whether\nthe collection of information by an agency is necessary for the proper performance of the functions of\nthe agency, including w hether the information will have practical utility. Before making a determina\xc2\xad\ntion the D irector may give the agency a n d other interested persons an opportunity to be heard or to\nsubmit statements in writing. To the extent, if any, that the Director determines that the collection of\ninformation by an agency is unnecessary, for any reason, the agency may not engage in the collection\nof the information. (Emphasis added.)\n\n408\n\n\x0cO\n\nand would support an expansive role for OMB, the broad purpose cannot serve to\novercome the specific procedures in the Act itself. In fact, the Act has multiple\naims, including that of providing in \xc2\xa7 3504(h) for a set of procedures that will\nstructure OM B\xe2\x80\x99s review of proposed regulations in a manner consistent with the\npublic procedures governing rulemaking. That particular end must be respected\nalong with the general purpose of reducing federal paperwork burdens and\ncoordinating federal information practices.\nFurthermore, it does not appear that an interpretation of \xc2\xa7 3504(h) as providing\nthe exclusive procedures for OMB\xe2\x80\x99s review of regulations would prevent OMB\nfrom effectively discharging its duties of reducing federal paperwork burdens.\nFirst, OMB retains full authority under \xc2\xa7 3507 to review all forms, question\xc2\xad\nnaires, and similar information collection requests issued pursuant to rules\nwithout having to follow the procedures set forth in \xc2\xa7 3504(h). Second, under\n\xc2\xa7 3504(h) itself, OMB ultimately can disapprove a collection of information\nrequirement in certain circumstances.58 Third, as noted above, OMB is given\nadditional, general authorities under other provisions of the Act, including the\nother subsections of \xc2\xa7 3504, to initiate and review proposals for changes in\nregulations and agency procedures in order to improve government information\npractices.\nOMB\xe2\x80\x99s primary concern may be that Treasury\xe2\x80\x99s interpretation of \xc2\xa7 3504(h) as\nthe exclusive set of procedures for OMB review of regulations effectively would\nmean that OMB cannot review regulations such as those promulgated by the IRS\nthat were already in existence when the Act became effective. This would be the\ncase because \xc2\xa7 3504(h) rather clearly applies only to rules proposed and promul\xc2\xad\ngated after the Act became effective.59 If \xc2\xa7 3504(h) is the only provision\nspecifying procedures for OMB review of regulations, it follows that the Act does\nnot establish an express procedural mechanism for OMB review and potential\ndisapproval of regulations already in existence when the Act became effective.\nOMB objects to an interpretation leading to such a \xe2\x80\x9cgap\xe2\x80\x9d in the Act\xe2\x80\x99s coverage.\nHowever, to the extent that this is a \xe2\x80\x9cgap\xe2\x80\x9d in coverage, it is not inconsistent with\nlegislative history. As noted above, the Act\xe2\x80\x99s legislative history supports the\nproposition that Congess believed that \xe2\x80\x9cnew\xe2\x80\x9d regulations caused the greatest\npaperwork burdens.60 For that reason, it is neither surprising nor anomalous for\nCongress to have concentrated on fashioning a specific procedure for OMB\nreview of regulations proposed and promulgated after the Act\xe2\x80\x99s effective date. If,\non the other hand, Congress has intended to reopen existing regulations\xe2\x80\x94 or at\n58 See \xc2\xa7\xc2\xa7 3504(h)(5)(B), (C) and (D)\n59 This is so because \xc2\xa7 3504(h) only deals with rules once they are \xe2\x80\x9cproposed \xe2\x80\x9d \xe2\x80\x9cThis subsection shall apply only\nwhen an agency publishes a notice of proposed rulemaking and requests public comments \xe2\x80\x9d \xc2\xa7 3504(h)(8)\nfurthermore, there would be no practical way for \xc2\xa7 3504(h) to apply retroactively to rules already promulgated in\nfinal form when the Act became effective That would require submitting all existing rules that impose paperwork\nrequirements to a new notice and comment process. This is simply not contemplated by \xc2\xa7 3504(h). Thus, we agree\nwith OMB that \xc2\xa7 3504(h) establishes a set of procedures that applies only to rules proposed and promulgated after\nthe A ct\xe2\x80\x99s effective date\n60 See S. Rep. No. 9 3 0 ,96th Cong , 2d Sess. 8-9(1980). In the passage from the Senate Committee report quoted\nabove, it is stated that the bill\xe2\x80\x99s emphasis on OMB oversight of the development of regulations \xe2\x80\x9chas great promise for\nminimizing the explosion of paperwork demands on the public because new regulations are causing the greatest\ngrowth in information requirements\xe2\x80\x9d (emphasis added).\n\n409\n\n\x0cleast those that contained some reporting or recordkeeping requirements\xe2\x80\x94 with\nthe attendant uncertainty that that would cause regarding the legal status of those\nregulations during the process contemplated by the Act, we would have expected\nto find express legislative history on the subject.\nMoreover, OMB does have the authority under \xc2\xa7 3504(b)(2) to initiate and\nreview proposals for changes in regulations and to develop some orderly process\nfor such an examination. OMB simply may not employ with respect to existing\nregulations the procedures, including the disapproval mechanisms, contained in\n\xc2\xa7 3504(h) or \xc2\xa7 3507.\nFinally, we must bear in mind the late Judge Jerome Frank\xe2\x80\x99s admonition: \xe2\x80\x9cThe\nlegislative process is inherently such that, on occasions, the applications of a\nstatute in practice disclose inconsistencies. While the literal meaning of a statute\nmust yield to its evident purpose or policy, where a statutory provision accords\nwith that purpose, the courts should seldom enlarge that provision, in the interest\nof symmetry or uniformity, in order to supply an omission.\xe2\x80\x9d61 In this case, the\nliteral terms of \xc2\xa7 3504(h)\xe2\x80\x94which apply to regulations proposed and promul\xc2\xad\ngated after the Act\xe2\x80\x99s effective date\xe2\x80\x94are in accord with the provision\xe2\x80\x99s stated\npurpose of addressing the major increases in the federal paperwork burden\nderiving from new regulations. In such a situation, it would be inappropriate to\n\xe2\x80\x9csupply an omission\xe2\x80\x9d in \xc2\xa7 3504(h) in \xe2\x80\x9cthe interest of symmetry or uniformity\xe2\x80\x9d by\nreading this or another provision as applying to regulations that were already\nproposed and promulgated at the time the Act became effective.62 Such a reading\nalso would conflict with the customary canon of statutory construction that,\nunless there is clear indication to the contrary, a statute should be read as applying\nprospectively to conditions or events occurring after the statute becomes\neffective.63\nAccordingly, it does not appear that the A ct\xe2\x80\x99s general purpose would be\nundermined or violated by an interpretation of \xc2\xa7 3504(h) as the only provision\nsetting forth procedures for OMB review of regulations under the Act.\n(2)\nSection 3502: \xe2\x80\x9cDefinitions.\xe2\x80\x9d One of the A ct\xe2\x80\x99s critical definitions is that of\nan \xe2\x80\x9c information collection request,\xe2\x80\x9d which includes, in addition to a \xe2\x80\x9cwritten\nreport form ,\xe2\x80\x9d \xe2\x80\x9capplication form,\xe2\x80\x9d \xe2\x80\x9cschedule,\xe2\x80\x9d and \xe2\x80\x9cquestionnaire,\xe2\x80\x9d a \xe2\x80\x9creporting\nor recordkeeping requirement . . . calling for the collection of information.\xe2\x80\x9d64\nThere can be little doubt that, on its face, this definition could be read to apply to\nportions of regulations imposing reporting or recordkeeping requirements. The\nquestion is whether it must or should be read in such a manner.\nAlthough we acknowledge the breadth of the definition of an \xe2\x80\x9cinformation\ncollection request,\xe2\x80\x9d we do not believe that it must be read to cover portions of\n61 G uiseppi v. Walling, 144 F.2d 608, 614 (2d Cir. 1944). See also Addison v H olly H dl Fruit Products, Inc., 322\nU .S. 607, 617 (1944) (\xe2\x80\x9c Legislation introducing a new system is at best empirical, and not infrequently administra\xc2\xad\ntion reveals gaps or inadequacies o f one sort or another that may call for amendatory legislation But it is no warrant\nfor extending a statute that experience may disclose that it should have been made more comprehensive\xe2\x80\x9d).\n62 Again, we note that forms issued pursuant to regulations may well be subject to \xc2\xa7 3507 Also, if regulations\nwere to be newly proposed or revised, the rulemaking proceedings would also be subject to \xc2\xa7 3504(h)\n63 S ee generally 2A, C. Sands, Sutherland Statutory Construction, ch. 41 (4th ed 1973). See also note 93 infra.\n64 Section 3502(11)\n\n410\n\n\x0cregulations imposing paperwork burdens. This conclusion rests in part on the fact\nthat the actual method by which information is collected would be embraced by\n\xc2\xa7 3507 in a manner which could not conveniently cover existing regulations, and\non the fact that \xc2\xa7 3504(h), the Act\xe2\x80\x99s only provision setting forth specific pro\xc2\xad\ncedures for OMB review of regulations, speaks not of an \xe2\x80\x9cinformation collection\nrequest\xe2\x80\x9d but rather of \xe2\x80\x9ccollection of information requirements\xe2\x80\x9d contained in\nregulations. Even though it might be possible to view this difference in termi\xc2\xad\nnology as highly technical and merely the result of inadvertence, it is more in\naccord with the canon of construction of giving effect to every word, clause, and\nsentence in a statute65 to take seriously the difference in terms used by Congress.\nCongress spoke about an \xe2\x80\x9cinformation collection request\xe2\x80\x9d as being subject,\ninter alia, to \xc2\xa7 3507 on the one hand, and about \xe2\x80\x9ccollection of information\nrequirements\xe2\x80\x9d in regulations as being subject to \xc2\xa7 3504(h) on the other hand. If\nCongress had sought to make information burdens imposed by regulations\nsubject to \xc2\xa7 3507, it could have so provided in \xc2\xa7 3507, either directly or by\nmeans of a cross-reference in that section to the provisions in \xc2\xa7 3504(h) govern\xc2\xad\ning review of collection of information requirements in regulations. That Con\xc2\xad\ngress not only did not do so but also used a different, albeit quite similar, term in\nspeaking about regulations strengthens the conclusion that Congress intended\ncollection of information requirements in regulations to be subject to the pro\xc2\xad\ncedures of \xc2\xa7 3504(h) alone.\nFurthermore, we do not believe that the Act\xe2\x80\x99s definition of an \xe2\x80\x9cinformation\ncollection request\xe2\x80\x9d should be read as necessarily including \xe2\x80\x9ccollection of infor\xc2\xad\nmation requirements\xe2\x80\x9d contained in regulations.66 To do so would, in our view,\nundermine the intended function of \xc2\xa7 3504(h), which was to provide a specific set\nof procedures to structure OMB review and potential disapproval of collection of\ninformation requirements in proposed regulations. If regulations also could be\nreviewed under \xc2\xa7 3507\xe2\x80\x94a provision that lacks the procedures of \xc2\xa7 3504(h)\xe2\x80\x94\nthere would be no apparent purpose for including \xc2\xa7 3504(h) in the statute.\nMoreover, a construction of the term \xe2\x80\x9cinformation collection request\xe2\x80\x9d as\napplying to the portion of a regulation that imposes a collection of information\nrequirement would appear inconsistent with the major discussion of the defini\xc2\xad\ntion of an information collection request in the Senate Committee report. That\nreport explains:\nThe term \xe2\x80\x98information collection request\xe2\x80\x99 refers to the actual\ninstrum ent used f o r a collection c f inform ation. It is the informa\xc2\xad\n65 See 2A, C. Sands, Sutherland Statutory Construction \xc2\xa7 46 06 (4th ed 1973)\n66 We note that the term \xe2\x80\x9ccollection of information requirement" is not defined in the Act, although a \xe2\x80\x9ccollection of\ninformation\xe2\x80\x9d is defined in \xc2\xa7 3502(4) as.\n. . the obtaining or soliciting of facts or opinions by an agency through the use of written report\nforms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or\nother similar methods calling for either\xe2\x80\x94\n(A) answers to identical questions posed to, o r identical reporting or recordkeeping require\xc2\xad\nments imposed on, ten or more persons, other than agencies, instrumentalities, or employees of\nthe United States, or\n(B) answers to questions posed to agencies, instrumentalities, or employees of the United\nStates which are to be used for general statistical purposes . .\n\n411\n\n\x0ction collection request which must be submitted to the Director in\naccordance with the clearance requirements of Section 3507.\n(Emphasis added.)67\nThe phrase, \xe2\x80\x9cactual instrument used for a collection of information,\xe2\x80\x9d is not\ndefined in the statute and thus is to be interpreted in light of its ordinary meaning.\nAn \xe2\x80\x9cinstrument\xe2\x80\x9d is generally understood as the means by which, the tool or\ndevice by which, something is to be accomplished\xe2\x80\x94 that is, in this context, the\nform or questionnaire or schedule on which information is supplied or submit\xc2\xad\nted.68 In contrast, a \xe2\x80\x9cregulation\xe2\x80\x9d is defined as \xe2\x80\x9can authoritative rule or principle,\xe2\x80\x9d\nor \xe2\x80\x9ca rule . . . having the force of law issued by an executive authority of a\ngovernment.\xe2\x80\x9d69 Accordingly, we believe that the term \xe2\x80\x9cactual instrument\xe2\x80\x9d refers\nto the form or some similar reporting or recordkeeping instrument pursuant to\nwhich information is transmitted by the citizen to the government, and not the\nportion of a regulation imposing the information requirement itself. It would\nappear to strain common usage to assert that such a portion of a regulation is itself\nan \xe2\x80\x9cactual instrument\xe2\x80\x9d for the collection of information. Such usage is not\nstrained by speaking of a form issued pursuant to a regulation as an \xe2\x80\x9cactual\ninstrument\xe2\x80\x9d for the collection of information.\nAccordingly, we conclude that the term \xe2\x80\x9cinformation collection request\xe2\x80\x9d need\nnot and should not be construed as synonymous with the term \xe2\x80\x9ccollection of\ninformation requirement\xe2\x80\x9d in \xc2\xa7 3504(h). In our view, the Act\xe2\x80\x99s requirements\napplying to an \xe2\x80\x9cinformation collection request\xe2\x80\x9d\xe2\x80\x94 including those in \xc2\xa7 3507\xe2\x80\x94 do\nnot apply as a definitional matter to a \xe2\x80\x9ccollection of information requirement\xe2\x80\x9d in a\nregulation.\n(3)\nSection 3507: \xe2\x80\x9cPublic information collection activities\xe2\x80\x94 submission to\nDirector; approval and delegation.\xe2\x80\x9d Section 3507 requires agencies to obtain\nOMB approval of a proposed \xe2\x80\x9cinformation collection request\xe2\x80\x9d before conducting\nor sponsoring the collection of information.70 Having discussed the definition of\nan \xe2\x80\x9cinformation collection request,\xe2\x80\x9d we must now consider whether the language\nof \xc2\xa7 3507 is consistent with an interpretation of \xc2\xa7 3504(h) as providing the only\nexpress set of procedures for OMB review of rules under the Act. We believe that\nit is.\nFirst, \xc2\xa7 3507(a)(2)(A) requires an agency, before making an information\ncollection request, to submit to OMB \xe2\x80\x9cthe proposed information collection\nrequ est, c o p ie s o f pertin en t regulations and other related materials as the Director\nmay specify . .\n(emphasis added). It seems noteworthy that the reference here\nto \xe2\x80\x9cpertinent regulations\xe2\x80\x9d is separated by a comma from the reference to an\n\xe2\x80\x9cinformation collection request.\xe2\x80\x9d This separation is consistent with the view that\n67 S Rep No 930, 96th C ong., 2d Sess. 39 (1980).\n66 See W ebster\xe2\x80\x99s Third New International Dictionary 1172 (1976).\n69 Id at 1913; see also B lack\xe2\x80\x99s Law Dictionary 1156 (5th ed. 1979) (defining a regulation as \xe2\x80\x9ca regulatory\nprinciple\xe2\x80\x9d or a \xe2\x80\x9cprecept\xe2\x80\x9d or \xe2\x80\x9crule .\nprescribed for management or government\xe2\x80\x9d).\n70 See also \xc2\xa7 3504(c) (providing that the information collection request clearance and other paperwork control\nfunctions o f the OMB Director \xe2\x80\x9cshall include . . reviewing and approving information collection requests\nproposed by agencies\xe2\x80\x9d and \xe2\x80\x9censuring that all information collection requests\nare inventoried, display a control\nnum ber and, when appropriate, an expiration date\xe2\x80\x9d).\n\n412\n\n\x0cportions of regulations which impose paperwork burdens are not themselves\ninformation collection requests for purposes of \xc2\xa7 3507. If a portion of a regula\xc2\xad\ntion imposing a paperwork burden were an information collection request, the list\nin \xc2\xa7 3507(a)(2)(A) of items to be submitted to OMB would appear redundant, for\nthe same item\xe2\x80\x94 that is, part of a regulation imposing a paperwork burden\xe2\x80\x94\nwould be referenced twice, once as an \xe2\x80\x9cinformation collection request\xe2\x80\x9d and once\nas a \xe2\x80\x9cpertinent regulation.\xe2\x80\x9d71 We believe that the reference to \xe2\x80\x9cpertinent regula\xc2\xad\ntions\xe2\x80\x9d means that OMB, in evaluating an information collection request under the\ncriteria specified in the Act, should be furnished all material, including in\nparticular regulations in light of which a form itself must be assessed.\nSecond, \xc2\xa7 3507(b) directs OMB, within 60 days of the receipt of a proposed\ninformation collection request, to notify the agency concerned of its decision \xe2\x80\x9cto\napprove or disapprove the request.\xe2\x80\x9d OMB\xe2\x80\x99s decision is to be made \xe2\x80\x9cpublicly\navailable,\xe2\x80\x9d but is not required to be published or to be accompanied by a\nstatement of reasons. Id. This procedure is sharply distinguishable from that\nprovided for by \xc2\xa7 3504(h). Section 3504(h) requires OMB to file public com\xc2\xad\nments on a proposed collection of information requirement in an agency rule\n(\xc2\xa7 3504(h)(2)), and to make publicly available its reasons for any disapproval of\nsuch a requirement (\xc2\xa7 3504(h)(6)). In view of these differences and the canon of\nconstruction that statutes should be read to give effect to each provision in them,72\nthe most natural reading of \xc2\xa7 3507(b) is that it must apply in different situations\nthan does \xc2\xa7 3504(h). If this were not the case, then as a practical matter the less\nformal procedures of \xc2\xa7 3507 could be expected to supplant the more formal\nprocedures of \xc2\xa7 3504(h).\nThird, in our view \xc2\xa7 3507(c) does tend to confirm that OMB is not to assign\ncontrol numbers to regulations reviewed under \xc2\xa7 3504(h). Section 3507(c)\nprovides in pertinent part:\nAny disapproval by the Director, in whole or in p a rt, c f a\np ro p o se d information collection request c f an independent reg\xc2\xad\nulatory agency, or an exercise c f authority under section 3504(h)\no r 3509 concerning such an agency, m ay be voided, if the agency\n\nby a majority vote of its members overrides the Director\xe2\x80\x99s disap\xc2\xad\nproval or exercise of authority. . . . Where the override concerns\nan information collection request, the D irecto r shall without\nfu rth er delay assign a control num ber to such a request, and such\n\noverride shall be valid for a period of three years. (Emphasis\nadded.)\n71 It could be argued that the reference to \xe2\x80\x9cpertinent regulations\xe2\x80\x9d should be read as referring to regulations other\nthan the one containing a particular information collection request This gloss on the statute, however, finds no\nspecific support in the language of \xc2\xa7 3507(a)(2)(A). In any event, if Congress intended that portions of regulations\ncould themselves be information collection requests, it chose a most indirect and awkward way of phrasing its intent\nwhen it directed an agency to submit to OM B \xe2\x80\x9cthe proposed information collection request, copies c f pertinent\nregulations and other related materials as the Director may specify, . \xe2\x80\x9d (emphasis added)\n72 Statutory construction must start with the language of the statute concerned See. e g , Detroit Trust Co v The\nThomas Barium, 293 U S 21, 38 (1934) (a court is not \xe2\x80\x9cat liberty to imply a condition which is opposed to the\nexplicit terms of the statute. . .T o [so] h o ld . . . is not to construe the Act but to amend it.\xe2\x80\x9d), Fedorenko v United\nStates, 449 U.S. 490, 513 (1981)\n\n413\n\n\x0cThe commas after \xe2\x80\x9cagency\xe2\x80\x9d at two places in the first sentence of \xc2\xa7 3507(c)\xe2\x80\x94\nwhich deals with any disapproval \xe2\x80\x9cof a proposed information collection request\nof an independent regulatory agency, or an exercise of authority under section\n3504(h) or 3509 concerning such an agency, may be voided . . \xe2\x80\x94 serve to\ndistinguish between OMB disapprovals of an information collection request, on\nthe one hand, and actions under \xc2\xa7\xc2\xa7 3504(h) and 3509, on the other hand.73 The\nlast sentence of \xc2\xa7 3507(c) provides that where \xe2\x80\x9cthe override concerns an informa\xc2\xad\ntion collection request,\xe2\x80\x9d OMB shall without further delay assign a control\nnumber to such a request. The absence in the last sentence of any reference to\n\xc2\xa7 3504(h) or \xc2\xa7 3509 suggests that OMB is not to assign control numbers under\nthose provisions. If it were otherwise, one would expect Congress to have\nincluded some reference to \xc2\xa7 3504(h) in the last sentence of \xc2\xa7 3507(c).\nThis analysis of the language of \xc2\xa7 3507(c) supports the notion that the Act\nshould be read as providing for two different sets of procedures for OMB review:\nthose in \xc2\xa7\xc2\xa7 3504(c) and 3507 (including the assignment of control numbers),\nwhich apply to information collection requests (forms, questionnaires and the\nlike), and those in \xc2\xa7 3504(h) (not including the assignment of control numbers),\nwhich apply to collection of information requirements in regulations. That\ninterpretation of \xc2\xa7 3507(c) is sustained by a passage in the Senate Committee\nreport, which distinguishes between an independent agency\xe2\x80\x99s override of an\nOMB disapproval of an \xe2\x80\x9cinformation collection request\xe2\x80\x9d and its override of an\nexercise of authority under \xc2\xa7 3504(h) \xe2\x80\x9cconcerning rules and regulations\xe2\x80\x9d:\nAn independent regulatory agency may be [sic] a majority vote of\nits members override a n y disapproval of the Director o f an infor\xc2\xad\nm ation collection request. The override authority also applies to\nan exercise o f the D irector\'s authority under section 3504(h)\n(con cernin g ru les and regulations) and under section 3509 (des\xc2\xad\n\nignation of a central collection agency). (Emphasis added.)74\nIf the term \xe2\x80\x9cinformation collection request\xe2\x80\x9d included an information requirement\nin a regulation, there would have been no reason to add to the statement that an\nindependent agency may override an OMB disapproval of an information collec\xc2\xad\ntion request the statement that the override authority \xe2\x80\x9calso\xe2\x80\x9d applies to OMB\naction relative to \xe2\x80\x9crules and regulations\xe2\x80\x9d under \xc2\xa7 3504(h).\nFourth, \xc2\xa7 3507(d) provides that the OMB Director \xe2\x80\x9cmay not approve an\ninformation collection request for a period in excess of three years.\xe2\x80\x9d If this\nprovision applied to portions of regulations containing collection of information\nrequirements, the result would be that at least those portions of regulations\ncontaining collection of information requirements could be effective for no more\nthan three years without subsequent OMB approval. Such an arrangement would\nhave major effects on the administrative process that has been in existence at least\n73 Under \xc2\xa7 3509, the OM B Director \xe2\x80\x9cmay designate a central collection agency to obtain information for two or\nmore agencies if the Director determines that the needs of such agencies for information will be adequately served by\na single collection agency, and such sharing o f data is not inconsistent with any applicable law \xe2\x80\x9d\n74 S Rep. No. 930, 96th C o n g .t 2d Sess 15 (1980).\n\n414\n\n\x0csince the enactment of the Administrative Procedure Act in 1946. In effect, such\nan arrangement would involve the operation of a kind of \xe2\x80\x9csunset\xe2\x80\x9d provision for\nagency regulations, under which regulatory provisions would automatically\nlapse after a certain tim e unless affirmative steps were taken to renew a\nregulation.\nWithout expressing any view regarding the merits of such a provision or its\nlegality if it were enacted by Congress, we must approach with a sense of caution\nan interpretation of the Act that would require such a far-reaching result in the\nabsence of any clear expression by Congress that this was its intent. We have not\nbeen referred to, nor have we found, any provision or statement indicating\nspecifically that Congress sought, in passing the Act, to subject agency regula\xc2\xad\ntions to such a \xe2\x80\x9csunset\xe2\x80\x9d-type provision. This is of special significance because a\nwide class of \xe2\x80\x9csunset\xe2\x80\x9d provisions, usually involving a lapse of statutory authority\nafter a certain number of years absent affirmative re-authorization by Congress,\nhas been the subject of the contemporary debate about \xe2\x80\x9cregulatory reform.\xe2\x80\x9d75 The\nAct\xe2\x80\x99s legislative history specifically and clearly states that Congress did not\nintend for the statute to be used as a vehicle for \xe2\x80\x9cregulatory reform\xe2\x80\x9d in any broad\nsense.76These factors, taken together, support the view that \xc2\xa7 3507(d) should not\nbe read as applying to portions of regulations which contain collection of\ninformation requirements.\nIn short, we believe that the language of \xc2\xa7 3507 is consistent with the\ninterpretation of \xc2\xa7 3504(h) as providing the only set of procedures for OMB\nreview of regulations under the Act.\n(4) Section 3512: \xe2\x80\x9cPublic Protection.\xe2\x80\x9d Section 3512 provides that \xe2\x80\x9cno person\nshall be subject to any penalty for failing to maintain or provide information to\nany agency\xe2\x80\x9d pursuant to an information collection request made after Decem\xc2\xad\nber 31, 1981, if the request does not \xe2\x80\x9cdisplay a current control number assigned\nby the Director [of OMB], or fails to state that such request is not subject to this\nchapter.\xe2\x80\x9d The purpose of this provision is to provide an effective incentive for\nagencies to comply with the Act\xe2\x80\x99s requirement that a control number be displayed\non each \xe2\x80\x9cinformation collection request.\xe2\x80\x9d77 The question here is whether \xc2\xa7 3512\nwas intended to apply in the context of regulations containing collection of\ninformation requirements.\nAlthough the legislative history is not necessarily conclusive on this point, it\ndoes suggest that \xc2\xa7 3512 was intended to apply to forms, questionnaires, or\nsimilar methods of collecting information, not to regulations as such. For\ninstance, in the report of the House Committee on Government Operations, the\nfollowing explanation of \xc2\xa7 3512 is provided:\n75 See. e g . Federal Regulation* Roads to Reform, Final Report o f the American Bar Association\xe2\x80\x99s Commission\non Law and the Economy, 105-111 (1979).\nlb See H R Rep. No 835, 96th Cong., 2d Sess. 9 (1980) (\xe2\x80\x9cRegulatory reform is a separate issue from the\nfunction assigned by H.R. 6410. . . . [T]he assignment of regulatory reform to the Office of Federal Information\nPolicy would dilute the information functions assigned under this bill\xe2\x80\x9d), S. Rep. No. 9 3 0 ,96th Cong , 2d Sess 8-9\n{1980) (\xe2\x80\x9c|T]he Committee does not intend that \'regulatory reform\xe2\x80\x99\xe2\x80\x99 issues which go beyond the scope of information\nmanagement and burden be assigned to the Office by the Director\xe2\x80\x9d)\n77S e * H R Rep. No 835, 96th Cong , 2d Sess 20(1980), S Rep No 9 3 0 ,96th Cong , 2d Sess. 2, 52 (1980)\n\n415\n\n\x0c[T]he bill stipulates that no penalty may be imposed on a person\nwho fails to respond to an information collection request which\nwas not approved in accordance with the law\xe2\x80\x99s provisions. . . .\nH .R . 6 4 1 0 w ou ld allow th e pu blic, b y refusing to answ er these\nq u e stio n n a ire s, to help c o n tro l \xe2\x80\x9co u tla w form s" (emphasis\n\nadded).78\nSimilarly, Senator Chiles, a sponsor of the Senate bill, stated during hearings\nbefore his subcommittee in 1979 that \xe2\x80\x9c[f]orm s without an OMB num ber on them\nw ill b e \xe2\x80\x98b o o tleg fo rm s\xe2\x80\x99 that the public can ignore.\xe2\x80\x9d (Emphasis added.)79 During\nthe same hearing, Senator Bellmon explained: \xe2\x80\x9cUnder S. 1411 [a] businessman,\nwhen he g ets a ll th ese fo rm s, unless they have th at OMB stam p in the upper righth an d corner, that stamp of approval, he will know that th at is a bootleg fo rm that\n\nhe can throw away\xe2\x80\x9d (emphasis added).80\nAlthough other statements in the legislative history refer more generally to\n\xc2\xa7 3 5 1 2 \xe2\x80\x99s coverage of \xe2\x80\x9c information collection requests,\xe2\x80\x9d81 the emphasis on\n\xe2\x80\x9cbootleg forms\xe2\x80\x9d in much of the legislative record strongly suggests that Congress\nparticularly had in mind \xc2\xa7 3512\xe2\x80\x99s application to forms and similar methods of\ncollecting information. Although this fact alone does not necessarily establish\nthat only forms and similar items\xe2\x80\x94 as distinct from regulations\xe2\x80\x94 are subject to\nthe control number requirements of \xc2\xa7\xc2\xa7 3507 and 3512, it is entirely consistent\nwith such an interpretation of the Act.\n(5)\nSection 3518: \xe2\x80\x9cEffect on existing laws and regulations.\xe2\x80\x9d Section 3518(e)\nprovides that \xe2\x80\x9c[njothing in this chapter shall be interpreted as increasing or\ndecreasing the authority of the President, the Office of Management and Budget\nor the Director thereof, under the laws of the United States, with respect to the\nsubstantive policies and programs of departments, agencies and offices . . . .\xe2\x80\x9d82\nThis provision evidently distinguishes between the \xe2\x80\x9csubstantive policies and\nprograms of departments, agencies and offices,\xe2\x80\x9d which are not to be affected by\nthe Act, and the procedural requirements governing paperwork imposed by the\nAct. We grant that this distinction may be a difficult one to maintain in practice.\nNonetheless, Congress required that it be maintained. This fact casts doubt on an\ninterpretation of the Act that would effectively shift, without any clearly ex\xc2\xad\npressed intent to do so, a measure o f substantive control over rulemaking from an\nagency to OM B.83\n78 H .R . Rep. No 835, 96th C ong., 2d Sess. 20 (1980)\n79 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcomm. on Federal Spending Practices\nand Open Government o f the Senate Comm on Governmental Affairs, 96th Cong , I st Sess. 7 ( 1979) (remarks of\nSen. Chiles).\n80 Id. at 12\n81 See, e g , S. Rep No. 930, 96th Cong., 2d Sess 52 (1980). \xe2\x80\x9cInformation collection requests which do not\ndisplay a current control number or, if not, indicate why nol, are to be considered \'bootleg\' requests and may be\nignored by the public \xe2\x80\x9d (Emphasis added )\n82 Section 3518(a) states that \xe2\x80\x9c [ejxcept as otherwise provided in this chapter, the authority of an agency under any\nother law to prescribe policies, rules, regulations, and procedures for Federal information activities is subject to the\nauthority conferred on the Director by this c h a p te r\xe2\x80\x9d Although this provision confirms that the Act applies to\nregulations, it does not provide guidance regarding the question whether \xc2\xa7 3504(h) sets forth the only procedures\nfor OM B review of regulations under the Act.\n83 See 126 Cong. Rec. 30178 (1980) (\xe2\x80\x9cSection 3518 specifically states that this bill does not change existing\nrelations of the President and OMB with respect to the substance of agency programs.\xe2\x80\x9d) (Remarks of Sen Chiles.)\n\n416\n\n\x0cAs noted earlier, one of the chief consequences of OMB\xe2\x80\x99s interpretation is that\nportions of regulations imposing paperwork burdens would be \xe2\x80\x9capproved\xe2\x80\x9d by\nOMB for no more than three years. After expiration of the approval period, they\nwould lapse and require new approval to remain effective. This would arguably\ngive OMB a much greater measure of control over the rulemaking process.\nAlthough by itself this point is not particularly definitive, it certainly is not\ninconsistent with the view set forth above that \xc2\xa7 3504(h) provides the exclusive\nset of procedures for OMB review of regulations under the Act.\nC. G en eral Schem e c f the A c t\n\nWe have concluded that an interpretation of \xc2\xa7 3504(h) as providing the only\nexpress procedures for OMB review and disapproval of informational portions of\nregulations, as stated in A above, appears consistent with each of the Act\xe2\x80\x99s major\nprovisions in addition to \xc2\xa7 3504(h). We believe that such an interpretation also is\nconsistent with the statute\xe2\x80\x99s general scheme.\nOne general argument against such an interpretation that is implicit in OMB\xe2\x80\x99s\nposition rests on the fact that the foregoing interpretation would divide the world\nof paperwork burdens into basically two categories\xe2\x80\x94 those imposed by regula\xc2\xad\ntions and those imposed by forms or similar documents\xe2\x80\x94 and would control each\ncategory with a different set of OMB review procedures. This division, it might\nbe contended, seems at odds with the Act\xe2\x80\x99s general aim of reducing all federal\npaperwork burdens, not just those imposed by forms, questionnaires or similar\nmethods of information collection.\nA significant weakness of this argument, however, is that it essentially assumes\nits own conclusion, namely, that the Act does not distinguish for purposes of\nOMB review between paperwork burdens imposed by regulations and such\nburdens imposed by forms of questionnaires. That, of course, is the central\nquestion to be resolved here.\nIn addition, this argument presumes that the practical effect of an interpreta\xc2\xad\ntion of \xc2\xa7 3504(h) as providing the only express procedures for OMB review of\nregulations would be substantially to undermine OMB\xe2\x80\x99s efforts to reduce the\nfederal paperwork burden. However, as an empirical matter, it has not been\ndemonstrated that such an interpretation of \xc2\xa7 3504(h) would so constrict OMB\xe2\x80\x99s\neffectiveness under the Act. OMB is given broad general powers under\n\xc2\xa7 3504(b). Also, \xc2\xa7 3504(h) itself authorizes OMB ultimately to disapprove\ncollection of information requirements contained in proposed regulations en\xc2\xad\nacted after the effective date of the Act.84Moreover, there is no dispute that forms\nor questionnaires issued pursuant to regulations are subject to OMB review under\n\xc2\xa7 3507.\nFurthermore, this argument fails to take account of a number of passages in the\nlegislative history indicating generally that Congress was especially concerned\nwith the paperwork burden imposed by agency forms, questionnaires, or similar\n84 See \xc2\xa7 3504(h)(5).\n\n417\n\n\x0citems. This is not to say that Congress was not also concerned with regulations, as\nit clearly was. However, Congress was particularly concerned about forms. This\nemphasis is reflected at several points in the legislative history.\nFor instance, the House Committee report described the Act as strengthening\nthe Federal Reports Act of 1942 by requiring OMB \xe2\x80\x9cto review and approve most\nof th e fo rm s a n d questionnaires used by the Federal agencies to collect informa\xc2\xad\ntion from the public.\xe2\x80\x9d (Emphasis added.)85 In another passage, the House report\ndescribed the basic problem addressed by the Act as follows: \xe2\x80\x9cInefficiencies in\ncurrent Federal information practice drastically reduce the effectiveness of the\nGovernment while, at the same time, drowning our citizens in a sea o f fo rm s,\nq u estionn aires, a n d reports." (Emphasis added.)86\nIn a similar vein, the Senate Committee report stated:\nF ederal p a p e rw o rk requirements, w hether they are tax fo rm s,\nm edicare fo rm s, financial loans, jo b application s, o r com pliance\nreports, are som ething each individual touches, feels, an d works\non. The cumulative impact is excessive. . . .\n\nSeveral small business counselors testified that many clients\nrefuse to expand their business because of the added paperwork\nthey would face. One cou n selor ta p ed together the fo rm s any\np o te n tia l sm all business p e r so n m ust know ju s t to think abou t\ngettin g into business. They stretch ed a cro ss an entire room.\n\n(Emphasis added.)87\nSuch references to \xe2\x80\x9csomething each individual touches, feels, and works on\xe2\x80\x9d and\ntaped-together forms stretching across an entire room are vivid reminders that\nCongress sought, by passing the Act, particularly to control the paperwork\nburden imposed by forms, questionnaires, and similar instruments for informa\xc2\xad\ntion collection.\nThe emphasis on forms also is reflected in testimony during hearings on the\nrelevant bills. Of particular interest is the explanation by the former Associate\nDirector of OMB of the elimination of the exemption for the IRS that had been\ncontained in the Federal Reports Act:\nThe argu m en ts th a t were m ade on b eh a lf c f IRS were basically\nth at new tax fo rm s have to b e prep a red within extrem ely short tim e\nlim its. The delays would be extremely important and costly to\n\ntaxpayers.\nThey a lso ra ise d the argum ent that the tax fo rm is extrem ely\ncom plex a n d technical an d there w as not very much that you could\nd o to im prove the form s as a resu lt[,] and the third argum ent. . .\n\nis that the collection of revenue is a unique function and unlike\n85 H .R . Rep No 835, 96th Cong , 2d Sess. 18 (1980).\n84 Id. at 3\n87 S Rep. No. 930, 96th C ong , 2d Sess. 3 (1980).\n\n418\n\n\x0canything else the Federal Government does and, therefore, no\xc2\xad\nbody outside that function should have a role in deciding what\ninformation goes in it.\nWe viewed those arguments as not persuasive. (Emphasis\nadded.)88\nAt another point in this testimony, the OMB representative further highlighted\nthe underlying importance of the IRS\xe2\x80\x99 forms:\nFrom the beginning, OMB\xe2\x80\x99s ability to control reporting burdens\nhas been limited from exemptions to the Federal Reports Act. A ll\nc f the fo rm s c f the Internal Revenue S ervice and most of the\nreports of the bank regulatory agencies h ave not been review ed by\nany unit ou tside that agency . . . . B ecause c f these provisions,\nalm ost three-quarters c f the p u blic reporting burden is excluded\nfro m O M B review. (Emphasis added.)89\n\nThese and other statements in the legislative history90 confirm that Congress\xe2\x80\x99\nattention was drawn particularly to the problem of controlling the paperwork\nburden imposed by government forms, questionnaires, and similar items. This\nspecial concern is consistent with our conclusion that Congress set forth a\nparticularly rigorous mechanism for OMB review of forms under the Act. This\ndoes not deny that Congress also was concerned with regulations. However, the\nmany passages indicating Congress\xe2\x80\x99 special concern with forms does establish\nthat Congress did not always consider forms and regulations together and\ninseparably. Thus, it is not surprising that the Act sets forth two different\nprocedural mechanisms for the review of forms and regulations, respectively.\nWe conclude that the Act\xe2\x80\x99s general scheme, as reflected in its legislative\nhistory as well as language, is consistent with the view that \xc2\xa7 3504(h) provides\nthe only procedures for OMB review of regulations.\n88 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcommittee on Federal Spending\nPractices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 31-32\n(1979) (testimony of Wayne Granquist, Associate Director, OMB)\n89 Id. at 25\n90 See Paperwork Reduction Act c f 1980, Hearings before a Subcommittee c f the House Committee on Govern\xc2\xad\nment Operations, 96th C ong., 2d Sess 2 (1980) (\xe2\x80\x9cWhile the Government needs a great deal of information from its\ncitizens, a lot can be done to cut down on the number and length o f questionnaires, form s and reports, and lo\neliminate duplication and inefficiencies\xe2\x80\x9d ) (emphasis added) (statement of Chairman Brooks), id at 89 (\xe2\x80\x9cCurrently\nalmost 81 percent of the Federal paperwork burden is exempt from OM B review Without the authority lo review the\nreports and form s required by the independent regulatory commissions and associated with tax, education and\nhealth manpower programs, there is little we can do to reduce the public burden imposed by these requirements\xe2\x80\x9d)\n(emphasis added) (statement of Wayne Granquist, Associate Director, OMB). See also Paperwork and Redtape\nReduction Act o f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f\nthe Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 11 (1979) (\xe2\x80\x9c Past attempts to arrest the\nproliferation of paperwork have included requirements for Office of Management and Budget and GAO approval of\nreporting form s. Obviously, this has not been effective in holding down reporting requirements Each and every\nFederal agency seems lo continue to be able lo argue that they have unique needs which can only be met by creating\ntheir own new forms\xe2\x80\x9d) (emphasis added) (statement of Senator Bellmon), Privacy and Confidentiality Report and\nFinal Recommendations c f the Commission on Federal Paperwork, Hearings before Subcommittee o f the House\nCommittee on Government Operations, 95th Cong., 1st Sess. 7 (1977) (\xe2\x80\x9cWe recommended the elimination of all\nagency exemptions from the requirement for a central review of all planned reports the government uses to collect\ninformation from the public. Currently, the IRS with its multitude o f tax form s, as well as the bank regulatory\nagencies and others are not subject to review by a central management agency such as OMB .\nto reduce\nduplication or unnecessary data collections\xe2\x80\x9d) (emphasis added) (statement of Chairman Horton)\n\n419\n\n\x0cIV. Response to Arguments in the OMB Memorandum of April 23, 1982\nIn this section, we address certain particular aspects of the memorandum of\nApril 23, 1982, setting forth O M B \xe2\x80\x99s position. That memorandum clarified some\nof the issues about which OMB and Treasury are in disagreement and forcefully\nstated the arguments in favor of O M B \xe2\x80\x99s view. Some of the arguments contained in\nthat memorandum already have been addressed in this opinion. This section will\nbriefly respond to the remaining issues and seek to dispel any confusion about\nsome of the more important details presented by this dispute.\nA . The Q uestion to Be Resolved\n\nAt the outset, it is important to recognize that, in our view, the central question\nwe must address is not the coverage of regulations by the Act as such. We stress\nthis because the April 23, 1982, memorandum suggests that that is the basic\nquestion. For example, on pages 1 and 2, in discussing the Senate amendment to\n\xc2\xa7 3504(h), the memorandum states that \xe2\x80\x9c[t]he [Kennedy] Amendment neither\nbrought new \xe2\x80\x98information collection requirements\xe2\x80\x99 within the Director\xe2\x80\x99s approval\nresponsibilities nor exempted \xe2\x80\x98information collection requests\xe2\x80\x99 already covered\nby the Act. This is the is s u e . . . \xe2\x80\x9d (emphasis added). In fact, there is no doubt that\nregulations are \xe2\x80\x9ccovered\xe2\x80\x9d by the Act. They would have been \xe2\x80\x9ccovered\xe2\x80\x9d without\nthe Kennedy amendment and they are covered by the version of the Act actually\npassed. The question is to what extent and in what manner regulations are\ncovered by the Act.\nB . The P rocedu res Governing O M B R eview o f Regulations\n\nIt should be recalled, as discussed above, that the Act gives OMB broad\npowers to review and initiate proposals for changes in regulations wholly apart\nfrom the collection of information clearance procedures which are the central\nfocus of the dispute between Treasury and OMB. OMB has the authority\nconferred on it by \xc2\xa7 3504(b), including \xe2\x80\x9cinitiating and reviewing proposals for\nchanges in . . . regulations\xe2\x80\x9d (\xc2\xa7 3504(b)(2)), and \xe2\x80\x9ccoordinating, through the\nreview of budget proposals . . . agency information practices\xe2\x80\x9d (\xc2\xa7 3504(b)(3)).\nWe discuss here only the specific interrelationship between the explicit and\ndistinct procedures established by \xc2\xa7 3504(h) on the one hand, and \xc2\xa7\xc2\xa7 3504(c)\nand 3507 on the other hand.\nBefore considering in detail the April 23, 1982, memorandum\xe2\x80\x99s discussion of\nthe procedures governing OMB\xe2\x80\x99s review of regulations, we will set forth in a\nsomewhat schematic manner the four major possibilities in this regard. First, it\ncould be argued that only the procedures set forth in \xc2\xa7\xc2\xa7 3504(c) and 3507 could\napply to regulations. Second, it might be asserted that only the procedures set\nforth in \xc2\xa7 3504(h) could apply to regulations. Third, it is possible that both sets of\nprocedures\xe2\x80\x94 those in \xc2\xa7 3504(h) a n d those in \xc2\xa7\xc2\xa7 3504(c) and 3507\xe2\x80\x94 could apply\nin any particular case to regulations. Fourth, it is possible that each set of\n420\n\n\x0cprocedures could apply to regulations, but only in mutually exclusive sets of\ncircumstances.\nThe first alternative has no support and contradicts the explicit terms of\n\xc2\xa7 3504(h). The April 23, 1982, memorandum squarely rejects the second pos\xc2\xad\nsibility, which is the one embraced by the Treasury Department and is most\nreasonable in our view. Thus, the OMB memorandum could have adopted the\nthird or the fourth alternative. In fact, it would appear that the memorandum, at\ndifferent points, embraces both possibilities.\nFor instance, at pages 16 and 17, the memorandum asserts that an agency has a\n\xe2\x80\x9cdegree of latitude\xe2\x80\x9d in deciding whether to have a regulation that imposes a\npaperwork burden reviewed by OMB under \xc2\xa7 3504(h), or under \xc2\xa7\xc2\xa7 3504(c) and\n3507:\n[A ]s a p ra c tic a l matter, the Kennedy am endm ent [\xc2\xa7 3504(h)]\na cco rd s each agen cy a degree c f latitude with regard to the\nprocedu res by which the D irector [ c f OM B] w ill review informa\xc2\xad\ntion collection requests in regulations which are the subject of\n\nnotice and comment procedures. If the agency wants OMB to\nproceed under 3504(h), it submits the NPRM [notice of proposed\nrulemaking] and related material in accordance with the pro\xc2\xad\ncedures of section 3504(h). OMB will then process the request\naccording to 3504(h). I f the agen cy wants OM B to p ro cess the\nrequest pu rsuan t to the procedu res cf3 5 0 4 (c ) an d 3 5 0 7 , nothing\nin the law w ould prevent it from com pleting its rulem aking and\nthen subm itting the rule containing the request to OM B fo r\nreview. (Emphasis added.)\n\nHowever, the OMB memorandum states that this latter process \xe2\x80\x9cwould run the\nvery risk that the Kennedy amendment was designed to minimize, and should be\navoided.\xe2\x80\x9d Thus, the OMB memorandum acknowledges that its interpretation of\nthe statute allows for the very problem which \xc2\xa7 3504(h) was enacted to prevent.\nMoreover, OMB practice may have initially insisted upon it, as the memorandum\nindicates at page 17:\nThe Memorandum submitted by Eric Fygi [Deputy General\nCounsel, Department of Energy] contends that OMB operates as\nthough it has the power to decide which procedures apply. OMB\ndoes not have that authority, although it may well be that during\nthe early months of implementation, it has at times operated as\nthough it did. OMB has taken steps to ensure that the agencies and\nnot OMB make the \xe2\x80\x9c choice\xe2\x80\x9d and our new procedures . . . will\nunambiguously so provide.\nThis passage evidently assumes that it is now up to an agency to decide in any\nparticular case whether to have a regulation reviewed by OMB under \xc2\xa7 3504(h)\nor under \xc2\xa7\xc2\xa7 3504(c) and 3507.\n421\n\n\x0cOn the other hand, at pages 11 and 12, the April 23, 1982, memorandum\nexplains the Senate\xe2\x80\x99s amendment to \xc2\xa7 3504(h) as an attempt to \xe2\x80\x9charmonize\xe2\x80\x9d the\nA ct\xe2\x80\x99s procedures with the Administrative Procedure Act (APA) in order to\n\xe2\x80\x9caccommodate . . . two potentially conflicting responsibilities.\xe2\x80\x9d To accommo\xc2\xad\ndate this potential conflict, the memorandum suggests, \xc2\xa7 3504(h) applies to\nregulations during the period in which they are subject to notice-and-comment\nprocedures under the APA, whereas \xc2\xa7\xc2\xa7 3504(c) and 3507 apply to regulations\nimposing information requirements in other circumstances. This is also the\nposition taken in the memorandum to us dated January 15, 1982, discussed\nabove.91 Under this view, \xe2\x80\x9c[i]f 3504(h) does not apply, then the procedures of\n3504(c) and 3507 do . . .\xe2\x80\x9d (page 12). A key premise of this interpretation\nevidently is that both sets of procedures do not apply to any given regulation at the\nsame time. The provisions, in short, are mutually exclusive on this view.\nAccordingly, the April 23, 1982, memorandum appears to embrace two\ndifferent and evidently inconsistent positions: first, that in a particular case, both\n\xc2\xa7 3504(h) a n d \xc2\xa7\xc2\xa7 3504(c) and 3507 may apply to a regulation (the third pos\xc2\xad\nsibility above) and the choice is up to the agency; and second, that in any\nparticular case, either \xc2\xa7 3504(h) or \xc2\xa7\xc2\xa7 3504(c) and 3507 (but not both) may\napply to a given regulation (the fourth possibility above). We responded to the\nthird possibility in section III, where we noted that under such an interpretation,\n\xc2\xa7 3504(h) would be rendered relatively redundant. This is so, in sum, because\nthe purpose of \xc2\xa7 3504(h) was to establish a procedural system under which OMB\nwould review regulations under the Act. If it were possible for OMB to review\nregulations under other provisions\xe2\x80\x94 including \xc2\xa7\xc2\xa7 3504(c) and 3507\xe2\x80\x94 which\nlack the procedural formalities of \xc2\xa7 3504(h), there would be no definite function\nleft for \xc2\xa7 3504(h) to fulfill.92 We also note that the optional character of this\ninterpretation flies in the face of the mandatory language of \xc2\xa7 3504(h) (\xe2\x80\x9ceach\nagency shall forward\xe2\x80\x9d).\nThe fourth possibility also is subject to the response that it ignores the\nexclusive role assigned to \xc2\xa7 3504(h) under the statute. The fourth possibility\nadds the significantly anomalous result that \xe2\x80\x9c new regulations proposed after the\nA ct\xe2\x80\x99s effective date are subject to \xc2\xa7 3504(h), with the procedural checks it was\nintended to provide, whereas \xe2\x80\x9c old\xe2\x80\x9d or \xe2\x80\x9c existing\xe2\x80\x9d regulations promulgated\nbefore the A ct\xe2\x80\x99s effective date are subject to \xc2\xa7\xc2\xa7 3504(c) and 3507 and could be\noverturned without any of the procedural safeguards of \xc2\xa7 3504(h). Our concern\nwith this interpretation is heightened by the fact that it does not give any weight to\nthe longstanding canon of interpretation that statutory provisions should nor\xc2\xad\nmally be read as applying prospectively to events and conditions occurring after\nthe law\xe2\x80\x99s effective date: \xe2\x80\x9c [t]he rule is that statutes are prospective, and will not be\nconstrued to have retroactive operation unless the language employed in the\nenactment is so clear it will admit of no other construction.\xe2\x80\x9d 93 The language of\n91 See note 41 supra and accompanying text.\n92 Elaborations on this argument appear supra.\n93 This canon is stated in Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N E. 238, 241 (1898); see also 1 Kent,\nCommentaries 454 (3d ed. 1836); Smead, Rule Against Retroactive Legislation, 20 Minn. L. Rev. 775 (1936);\nBrewster v. Gage, 280 U .S. 327 (1930), 2A, C . Sands, Sutherland Statutory Construction \xc2\xa7 41.04 (4th ed. 1973).\n\n422\n\n\x0c\xc2\xa7\xc2\xa7 3504(c) and 3507 does not clearly express the intention that it should be\napplied to regulations already promulgated at the time the Act became effective.\nC . A dditional Points\n\nSeveral additional comments may be made regarding the April 23, 1982,\nmemorandum.\n(1) Page 2 of the memorandum relies on a passage in the Senate Committee\nreport stating that the \xe2\x80\x9c imposition of a federal paperwork burden does not depend\non how the questions are asked of the respondent, but rather on the fact the\nFederal government has asked or sponsored the asking of questions.\xe2\x80\x9d This is said\nto support the proposition that such requests could be made by regulations as\neasily as by forms, questionnaires, or similar items.\nWe discern little guidance in this passage. It does not discuss regulations at all,\nbut rather is directed at explaining that the phrase, \xe2\x80\x9c or other similar methods,\xe2\x80\x9d in\nthe definition of a \xe2\x80\x9c collection of information\xe2\x80\x9d covers oral as well as written\nrequests. The passage\xe2\x80\x99s meaning may be best understood by considering it as a\nwhole:\n[T]he Director of OMB has historically included oral techniques\nas instruments for collecting information. Federal agencies have\nincreasingly been collecting information from the public through\nthe use of telephone surveys and personal interviews. These\ntechniques are used either independently or in conjunction with\nother information collection techniques such as mail question\xc2\xad\nnaires. The imposition of a federal paperwork burden does not\ndepend on how the questions are asked of the respondent, but\nrather on the fact the Federal government has asked or sponsored\nthe asking of questions. In concept, oral data collections are the\nsame as those conducted through written requests for written\nresponses. They should be reviewed under the same standards as\nwritten requests.94\nIt appears to be an unduly strained reading of the foregoing passage to view it as\nsupporting more than the proposition it advances, namely, that oral as well as\nwritten requests are covered by the A ct\xe2\x80\x99s definition of the \xe2\x80\x9c collection of\ninformation.\xe2\x80\x9d\n(2) At page 2, the memorandum argues that the Kennedy amendment was\n\xe2\x80\x9c clearly premised on the understanding that all reporting and recordkeeping\nrequirements contained in regulations were required to be routinely approved by\nthe Director\xe2\x80\x9d of OMB. In support of this argument, comments by Senators\nKennedy and Danforth during Senate debate on the bill are quoted at page 3 of the\nmemorandum.\n" S . Rep. No 930. 96th Cong . 2d Sess 39 (1980)\n\n423\n\n\x0cIn our view, the quoted comments do not support the proposition advanced.\nThe Senators\xe2\x80\x99 comments deal with the procedural requirements under \xc2\xa7 3504(h)\ngoverning OMB review of regulations during the process of the developm ent c f\nregulations. This is not the same as the review of existing regulations. Further\xc2\xad\nmore, the Senators do not refer generally to OMB power to approve regulations,\nas OMB suggests. Rather, Senator K ennedy\xe2\x80\x99s com m ents, in discussing\n\xc2\xa7 3504(h) as reported to the Senate floor and before amendment, concern the\npower of OMB to \xe2\x80\x9c overturn\xe2\x80\x9d a rule. Similarly, Senator Danforth, in discussing\nthe Kennedy amendment to \xc2\xa7 3504(h), speaks of OMB\xe2\x80\x99s power of \xe2\x80\x9c undoing a\ncollection of information requirement\xe2\x80\x9d in a rule. To overturn or undo an informa\xc2\xad\ntional requirement is not the sam e as routinely to approve such a requirement.\nThese points may be confirmed by viewing in context the Senators\xe2\x80\x99 remarks. As\nSenator Kennedy is quoted at page 3:\nThis legislation [as then drafted] would permit the Director of\nOMB to overturn a rule which was adopted by an agency without\nproviding any procedural rights for the people affected by the rule\nor for the agency that promulgated the rule. Thus, even if an\nagency has complied with all the appropriate procedural require\xc2\xad\nments for public notice and comment, and has spent years compil\xc2\xad\ning an adequate agency record, this legislation would permit\nOMB to overturn that agency decision without even requiring\nOMB to justify its decision publicly. I have sponsored an amend\xc2\xad\nment which lim its the au th ority o f OM B to overturn reporting,\nrecordkeeping, and other information collection requirements\nadopted by a Federal agency in a rulemaking proceeding. (Em\xc2\xad\nphasis added.)95\nAs Senator Danforth is quoted:\nI am willing to accept the Kennedy amendment, which is intended\nto clarify the authority of the Director of the OMB to review\nFederal rules and regulations to determine their impact on Federal\npaperwork. Essentially, as I understand it, the p u rpose c f the\nK enn edy am endm ent is to preven t O M B fro m undoing a collection\nc f inform ation requirem ent specifically contained in an agency\nrule after th at requirem ent has gon e through the adm inistrative\nrulem aking p ro cess if the OMB Director ignored the rulemaking\n\nprocess. This seems fair enough.\nI note, however, that this limitation on OMB\xe2\x80\x99s authority is con\xc2\xad\nfined to requirements specifically contained in agency rules.\n(Emphasis added.)96\n95 126 Cong. Rec. 30178-79 (1980)\n\n424\n\n\x0cIn context, both of these statements about OMB\xe2\x80\x99s ability to \xe2\x80\x9c overturn\xe2\x80\x9d an agency\ndecision, or to \xe2\x80\x9c undo\xe2\x80\x9d a collection of information requirement, relate only to the\nprovisions of \xc2\xa7 3504(h) that give the Director a voice in the process of \xe2\x80\x9c develop\xc2\xad\ning rules and regulations.\xe2\x80\x9d They do not suggest that the legislation, either before\nor after the amendment to \xc2\xa7 3504(h), provided a procedure for the review of\nexisting regulations.\n(3) At page 4 of the April 23, 1982, memorandum, reliance is placed on a\npassage in the House Committee report explaining that the Paperwork Reduction\nAct covers \xe2\x80\x9c recordkeeping\xe2\x80\x9d requirements, which had not been clearly covered\nunder the Federal Reports Act.97 Although this statement does appear in the\nHouse report, it does not answer the question whether pre-existing regulations\nwere to be covered or whether regulations were to be reviewed by OMB under\n\xc2\xa7 3504(h) alone.\n(4) At page 5, the memorandum states that the Senate amendment to \xc2\xa7 3504(h)\n\xe2\x80\x9c did not create an exemption for [information] requests in existing regulations.\xe2\x80\x9d\nWe agree. However, this is beside the point, for before it was amended, \xc2\xa7 3504(h)\napplied only to the process of developing regulations.98 In fact, the Senate\nCommittee report noted that new regulations caused the greatest paperwork\nburden, thus explaining the provision\xe2\x80\x99s emphasis on such regulations.99 Accord\xc2\xad\ningly, \xc2\xa7 3504(h), before it was amended in the Senate, applied only to regulations\nunder developm ent, not to \xe2\x80\x9c o ld \xe2\x80\x9d or \xe2\x80\x9c existing\xe2\x80\x9d regulations. After it was\namended, \xc2\xa7 3504(h) retained this focus.\n(5) At page 6, the memorandum contends that the Treasury Department\xe2\x80\x99s\ninterpretation in effect would continue the exemption for the IRS that had been\neliminated by the 1980 statute. We do not agree. The legislative history appears\nto make clear that Congress\xe2\x80\x99 attention was focused on the exemption of IRS forms\nfrom the Federal Reports A ct.100 That exemption was eliminated. The Act was\nintended to and does cover the IRS in the same manner as other agencies covered\nby the Act.\n(6) At page 10, the memorandum argues that the Treasury Department\xe2\x80\x99s\ninterpretation would \xe2\x80\x9c exempt\xe2\x80\x9d from coverage by the Act reporting and rec\xc2\xad\nordkeeping requirements \xe2\x80\x9c in bulletins, instructions, manuals, or guidelines, oral\nquestionnaires, and in any other instrument other than a written form or like\ndocument.\xe2\x80\x9d We do not agree. Treasury is arguing that only \xc2\xa7 3504(h) governs\nOMB review of regulations under the Act. This argument does not deal with the\nadditional questions of which kinds of documents or whether oral requests would\nbe covered by \xc2\xa7\xc2\xa7 3504(c) and 3507. We do not interpret Treasury\xe2\x80\x99s argument as\nattempting to establish that bulletins, instructions, manuals or guidelines, or oral\nrequests, could not be covered by the Act.\n(7) At page 13, the memorandum concedes that \xe2\x80\x9c [s]ection 3504(h) admittedly\ndoes not provide by its terms for the assignment [by OMB] of a control number\xe2\x80\x9d\n97 See H.R. Rep No. 835, 96th Cong , 2d Sess 19 (1980).\n98 See pages 400 lo 403 supra\n99 See pages 401 to 402 supra\n100 See pages 418 to 419 supra.\n\n425\n\n\x0cto a regulation containing a collection of information requirement. However, the\nmemorandum argues that this fact does not weaken the OMB position because the\nrequirement of a control number for regulations is made implicit by the Act\xe2\x80\x99s\nother provisions.\nThis argument, however, begs the main question, namely, whether a collection\nof information requirement in a regulation is synonymous with an information\ncollection request for purposes of OMB review. We believe that the absence of\nany statement in \xc2\xa7 3504(h) that control numbers should be assigned to regula\xc2\xad\ntions is simply one additional indication that Congress did not intend to treat\nregulations in the same manner as information collection requests subject to\n\xc2\xa7 3507. Congress apparently envisioned that a form, questionnaire, or other\ninstrument by which a citizen provides information to the government should\nhave an OMB control number on it. The number\xe2\x80\x99s absence would alert a citizen to\nthe fact that the required process had not been followed, thus allowing the citizen\nto assist, in a sense, in enforcing the Act\xe2\x80\x99s provisions. There is no specific\nindication that Congress contemplated the assignment of control numbers to\nregulations.101\nV. Conclusioira\nAfter a thorough analysis of the arguments by all parties to this dispute in light\nof the language and history of \xc2\xa7 3504(h), the language and history of the Act\xe2\x80\x99s\nother provisions, and the statute\xe2\x80\x99s general scheme, we conclude that \xc2\xa7 3504(h)\nestablishes a procedure which is mandatory for new regulations but which does\nnot include a process for routine review of, and a disapproval mechanism for,\nexisting regulations. We also conclude that the information collection request\nprocedure set out in \xc2\xa7 3507 does not apply to existing regulations.\nA contrary conclusion, in our view, cannot be reconciled with the Act\xe2\x80\x99s\nlanguage, the statute\xe2\x80\x99s overall scheme, or its legislative history. Of particular\n101 We recently have received from OMB copies of two letters from Congress dealing with the general question of\nthe coverage o f the IRS by the Paperwork Reduction Act. One is a letter to the President signed by the members of\nthe Senate Committee on Government Affairs, dated May 14,1982, expressing opposition to S 2198, the Taxpayer\nC ompliance Improvement Act of 1982. on the ground that it contains a provision (\xc2\xa7 202) that would exempt the IRS\nfrom the Paperwork Reduction Act. We express no view about the bill, but would observe that the points made in the\nmembers\xe2\x80\x99 letter do not deal directly with the issue before us.\nThe second letter, dated May 20, 1982, is to the Secretary of the Treasury from Senator Lawton Chiles, a member\nof the Senate Governmental Affairs Committee and a sponsor of the Act before its passage in 1980. Senator Chiles\ntakes the position that the Act was intended to empower OMB to review collection of information requirements in\nexisting regulations under \xc2\xa7 3507 We have tw o responses to this letter First, Senator Chiles acknowledges that\n\xc2\xa7 3504(h) has a narrower scope than \xc2\xa7 3507. H is letter attempts to explain \xc2\xa7 3504(h)\'s operation by arguing that its\nintent is \xe2\x80\x9c to proceduralize the requirements o f the faperwork Acl, in particular those of Section 3507, with those of\nthe Administrative Procedure Act. . . \xe2\x80\x9d The letter does not deal in specific terms with the basic issue of how the\nprocedures o f \xc2\xa7 3504(h) relate to the procedures of \xc2\xa7 3507, which is the questton with which we must deal\nSecond, in any event, in interpreting the provisions of the Acl, we must focus on the written legislative history\nexpressed in Committee reports and floor debate prior to the A ct\xe2\x80\x99s passage. It is a firmly established principle that\nsubsequent views of individual Congressmen are to be approached with great caution, for they are not the primary\nexpressions o f legislative intent existing at the time a statute was actually passed See generally NLRB v. Bell\nAerospace C o.. 416 U .S. 2 6 7 ,2 7 4 -7 5 (1974); see also United States v Rutherford, 442 U S. 544, 553-54 (1979);\nB oard c f Governors v First Lincolnwood C orp., 439 U S. 234, 248 ( 1978). In our view, the effects of the Senate\namendm ent to \xc2\xa7 3504(h) were much more significant than apparently Senator Chiles would agree, for the reasons\nstated in this opinion. We would observe, however, that if our interpretation of the Act as passed is inconsistent with\nthe present intent of Congress, it is, of course, free to enact corrective legislation.\n\n426\n\n\x0cimportance is the clearly expressed intent in both the Senate and the House\nregarding the amendment and subsequent enactment of \xc2\xa7 3504(h). Careful\nanalysis of the Act\xe2\x80\x99s other major provisions and of its legislative history further\nsupports our conclusion that \xc2\xa7 3504(h) provides the exclusive mechanism for\nOMB review of regulations.\nNonetheless, OMB is given substantial authority over existing regulations by\nother provisions of the Act, including \xc2\xa7 3504(b). We see no insuperable barrier\nthat would prevent OMB from initiating proposals for changes in existing\nregulations that it deems appropriate under the powers given to it by the Act,\nwhich include authority over the IRS and virtually all other agencies of the\nfederal government.\nT h eo d o r e B . O lson\n\nA ssistan t A ttorney G en eral\nOffice c f L egal Counsel\n\n427\n\n\x0c'