5 CFR 1320.5 - General Requirements

Office of Management and Budget

§ 1320.5

(4) Report to third parties, the Federal government, or the public regarding such records.

or an industry, do not fall within this
exception.

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§ 1320.5
§ 1320.4 Coverage.
(a) The requirements of this part
apply to all agencies as defined in
§ 1320.3(a) and to all collections of information conducted or sponsored by
those agencies, as defined in § 1320.3 (c)
and (d), wherever conducted or sponsored, but, except as provided in paragraph (b) of this section, shall not
apply to collections of information:
(1) During the conduct of a Federal
criminal investigation or prosecution,
or during the disposition of a particular criminal matter;
(2) During the conduct of a civil action to which the United States or any
official or agency thereof is a party, or
during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities;
(3) By compulsory process pursuant
to the Antitrust Civil Process Act and
section 13 of the Federal Trade Commission Improvements Act of 1980; or
(4) During the conduct of intelligence
activities as defined in section 3.4(e) of
Executive Order No. 12333, issued December 4, 1981, or successor orders, or
during the conduct of cryptologic activities that are communications security activities.
(b) The requirements of this Part
apply to the collection of information
during the conduct of general investigations or audits (other than information collected in an antitrust investigation to the extent provided in paragraph (a)(3) of this section) undertaken
with reference to a category of individuals or entities such as a class of licensees or an entire industry.
(c) The exception in paragraph (a)(2)
of this section applies during the entire
course of the investigation, audit, or
action, whether before or after formal
charges or complaints are filed or formal administrative action is initiated,
but only after a case file or equivalent
is opened with respect to a particular
party. In accordance with paragraph
(b) of this section, collections of information prepared or undertaken with
reference to a category of individuals
or entities, such as a class of licensees

General requirements.

(a) An agency shall not conduct or
sponsor a collection of information unless, in advance of the adoption or revision of the collection of information—
(1) The agency has—
(i) Conducted the review required in
§ 1320.8;
(ii) Evaluated the public comments
received under § 1320.8(d) and § 1320.11;
(iii) Submitted to the Director, in accordance with such procedures and in
such form as OMB may specify,
(A) The certification required under
§ 1320.9,
(B) The proposed collection of information in accordance with § 1320.10,
§ 1320.11, or § 1320.12, as appropriate,
(C) An explanation for the decision
that it would not be appropriate, under
§ 1320.8(b)(1), for a proposed collection
of information to display an expiration
date;
(D) An explanation for a decision to
provide for any payment or gift to respondents, other than remuneration of
contractors or grantees;
(E) A statement indicating whether
(and if so, to what extent) the proposed
collection of information involves the
use of automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting electronic submission of responses, and an
explanation for the decision;
(F) A summary of the public comments received under § 1320.8(d), including actions taken by the agency in response to the comments, and the date
and page of the publication in the FEDERAL REGISTER of the notice therefor;
and
(G) Copies of pertinent statutory authority, regulations, and such related
supporting materials as OMB may request; and
(iv) Published, except as provided in
§ 1320.13(d), a notice in the FEDERAL
REGISTER—
(A) Stating that the agency has made
such submission; and
(B) Setting forth—
(1) A title for the collection of information;

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(2) A summary of the collection of information;
(3) A brief description of the need for
the information and proposed use of
the information;
(4) A description of the likely respondents, including the estimated
number of likely respondents, and proposed frequency of response to the collection of information;
(5) An estimate of the total annual
reporting and recordkeeping burden
that will result from the collection of
information;
(6) Notice that comments may be
submitted to OMB; and
(7) The time period within which the
agency is requesting OMB to approve
or disapprove the collection of information if, at the time of submittal of a
collection of information for OMB review under § 1320.10, § 1320.11 or § 1320.12,
the agency plans to request or has requested OMB to conduct its review on
an emergency basis under § 1320.13; and
(2) OMB has approved the proposed
collection of information, OMB’s approval
has
been
inferred
under
§ 1320.10(c), § 1320.11(i), or § 1320.12(e), or
OMB’s disapproval has been voided by
an independent regulatory agency
under § 1320.15; and
(3) The agency has obtained from the
Director a control number to be displayed upon the collection of information.
(b) In addition to the requirements in
paragraph (a) of this section, an agency
shall not conduct or sponsor a collection of information unless:
(1) The collection of information displays a currently valid OMB control
number; and
(2)(i) The agency informs the potential persons who are to respond to the
collection of information that such
persons are not required to respond to
the collection of information unless it
displays a currently valid OMB control
number.
(ii) An agency shall provide the information described in paragraph (b)(2)(i)
of this section in a manner that is reasonably calculated to inform the public.
(A) In the case of forms, questionnaires, instructions, and other written
collections of information sent or made
available to potential respondents

(other than in an electronic format),
the information described in paragraph
(b)(2)(i) of this section is provided ‘‘in a
manner that is reasonably calculated
to inform the public’’ if the agency includes it either on the form, questionnaire or other collection of information, or in the instructions for such
collection.
(B) In the case of forms, questionnaires, instructions, and other written
collections of information sent or made
available to potential respondents in
an electronic format, the information
described in paragraph (b)(2)(i) of this
section is provided ‘‘in a manner that
is reasonably calculated to inform the
public’’ if the agency places the currently valid OMB control number in
the instructions, near the title of the
electronic collection instrument, or,
for on-line applications, on the first
screen viewed by the respondent.
(C) In the case of collections of information published in regulations, guidelines, and other issuances in the FEDERAL REGISTER, the information described in paragraph (b)(2)(i) of this
section is provided ‘‘in a manner that
is reasonably calculated to inform the
public’’ if the agency publishes such information in the FEDERAL REGISTER
(for example, in the case of a collection
of information in a regulation, by publishing such information in the preamble or the regulatory text, or in a
technical amendment to the regulation, or in a separate notice announcing OMB approval of the collection of
information). In the case of a collection of information published in an
issuance that is also included in the
Code of Federal Regulations, publication of such information in the Code of
Federal Regulations constitutes an alternative means of providing it ‘‘in a
manner that is reasonably calculated
to inform the public.’’ In the case of a
collection of information published in
an issuance that is also included in the
Code of Federal Regulations, OMB recommends for ease of future reference
that, even where an agency has already
provided such information ‘‘in a manner that is reasonably calculated to inform the public’’ by publishing it in the
FEDERAL REGISTER as a separate notice
or in the preamble for the final rule
(rather than in the regulatory text for

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Office of Management and Budget

§ 1320.5

the final rule or in a technical amendment to the final rule), the agency also
publish such information along with a
table or codified section of OMB control numbers to be included in the Code
of
Federal
Regulations
(see
§ 1320.3(f)(3)).
(D) In other cases, and where OMB
determines in advance in writing that
special circumstances exist, to use
other means that are reasonably calculated to inform the public of the information described in paragraph
(b)(2)(i) of this section.
(c)(1) Agencies shall submit all collections of information, other than
those contained in proposed rules published for public comment in the FEDERAL REGISTER or in current regulations that were published as final rules
in the FEDERAL REGISTER, in accordance with the requirements in § 1320.10.
Agencies shall submit collections of information contained in interim final
rules or direct final rules in accordance
with the requirements of § 1320.10.
(2) Agencies shall submit collections
of information contained in proposed
rules published for public comment in
the FEDERAL REGISTER in accordance
with the requirements in § 1320.11.
(3) Agencies shall submit collections
of information contained in current
regulations that were published as
final rules in the FEDERAL REGISTER in
accordance with the requirements in
§ 1320.12.
(4) Special rules for emergency processing of collections of information are
set forth in § 1320.13.
(5) For purposes of time limits for
OMB review of collections of information, any submission properly submitted and received by OMB after 12:00
noon will be deemed to have been received on the following business day.
(d)(1) To obtain OMB approval of a
collection of information, an agency
shall demonstrate that it has taken
every reasonable step to ensure that
the proposed collection of information:
(i) Is the least burdensome necessary
for the proper performance of the agency’s functions to comply with legal requirements and achieve program objectives;
(ii) Is not duplicative of information
otherwise accessible to the agency; and

(iii) Has practical utility. The agency
shall also seek to minimize the cost to
itself of collecting, processing, and
using the information, but shall not do
so by means of shifting disproportionate costs or burdens onto the public.
(2) Unless the agency is able to demonstrate, in its submission for OMB
clearance, that such characteristic of
the collection of information is necessary to satisfy statutory requirements or other substantial need, OMB
will not approve a collection of information—
(i) Requiring respondents to report
information to the agency more often
than quarterly;
(ii) Requiring respondents to prepare
a written response to a collection of information in fewer than 30 days after
receipt of it;
(iii) Requiring respondents to submit
more than an original and two copies
of any document;
(iv) Requiring respondents to retain
records, other than health, medical,
government contract, grant-in-aid, or
tax records, for more than three years;
(v) In connection with a statistical
survey, that is not designed to produce
valid and reliable results that can be
generalized to the universe of study;
(vi) Requiring the use of a statistical
data classification that has not been
reviewed and approved by OMB;
(vii) That includes a pledge of confidentiality that is not supported by
authority established in statute or regulation, that is not supported by disclosure and data security policies that
are consistent with the pledge, or
which unnecessarily impedes sharing of
data with other agencies for compatible confidential use; or
(viii) Requiring respondents to submit proprietary, trade secret, or other
confidential information unless the
agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.
(e) OMB shall determine whether the
collection of information, as submitted
by the agency, is necessary for the
proper performance of the agency’s
functions. In making this determination, OMB will take into account the
criteria set forth in paragraph (d) of

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this section, and will consider whether
the burden of the collection of information is justified by its practical utility.
In addition:
(1) OMB will consider necessary any
collection of information specifically
mandated by statute or court order,
but will independently assess any collection of information to the extent
that the agency exercises discretion in
its implementation; and
(2) OMB will consider necessary any
collection of information specifically
required by an agency rule approved or
not acted upon by OMB under § 1320.11
or § 1320.12, but will independently assess any such collection of information
to the extent that it deviates from the
specifications of the rule.
(f) Except as provided in § 1320.15, to
the extent that OMB determines that
all or any portion of a collection of information is unnecessary, for any reason, the agency shall not engage in
such collection or portion thereof.
OMB will reconsider its disapproval of
a collection of information upon the
request of the agency head or Senior
Official only if the sponsoring agency
is able to provide significant new or additional information relevant to the
original decision.
(g) An agency may not make a substantive or material modification to a
collection of information after such
collection of information has been approved by OMB, unless the modification has been submitted to OMB for review and approval under this Part.
(h) An agency should consult with
OMB before using currently approved
forms or other collections of information after the expiration date printed
thereon (in those cases where the actual form being used contains an expiration date that would expire before
the end of the use of the form).
§ 1320.6 Public protection.
(a) Notwithstanding any other provision of law, no person shall be subject
to any penalty for failing to comply
with a collection of information that is
subject to the requirements of this part
if:
(1) The collection of information does
not display, in accordance with
§ 1320.3(f) and § 1320.5(b)(1), a currently
valid OMB control number assigned by

the Director in accordance with the
Act; or
(2) The agency fails to inform the potential person who is to respond to the
collection of information, in accordance with § 1320.5(b)(2), that such person is not required to respond to the
collection of information unless it displays a currently valid OMB control
number.
(b) The protection provided by paragraph (a) of this section may be raised
in the form of a complete defense, bar,
or otherwise to the imposition of such
penalty at any time during the agency
administrative process in which such
penalty may be imposed or in any judicial action applicable thereto.
(c) Whenever an agency has imposed
a collection of information as a means
for proving or satisfying a condition
for the receipt of a benefit or the avoidance of a penalty, and the collection of
information does not display a currently valid OMB control number or inform the potential persons who are to
respond to the collection of information, as prescribed in § 1320.5(b), the
agency shall not treat a person’s failure to comply, in and of itself, as
grounds for withholding the benefit or
imposing the penalty. The agency shall
instead permit respondents to prove or
satisfy the legal conditions in any
other reasonable manner.
(1) If OMB disapproves the whole of
such a collection of information (and
the disapproval is not overridden under
§ 1320.15), the agency shall grant the
benefit to (or not impose the penalty
on) otherwise qualified persons without
requesting further proof concerning the
condition.
(2) If OMB instructs an agency to
make a substantive or material change
to such a collection of information
(and the instruction is not overridden
under § 1320.15), the agency shall permit
respondents to prove or satisfy the condition by complying with the collection of information as so changed.
(d) Whenever a member of the public
is protected from imposition of a penalty under this section for failure to
comply with a collection of information, such penalty may not be imposed
by an agency directly, by an agency
through judicial process, or by any

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