Pursuant to the Occupational Safety and Health Act of 1970,
petitioner Department of Labor (DOL) promulgated a Hazard
Communications Standard, which imposed disclosure requirements on
manufacturers aimed at ensuring that their employees were informed
of the potential hazards posed by chemicals in the workplace. Among
other things, the Standard required the manufacturers to label
hazardous chemical containers, conduct training on the chemicals'
dangers, and make available to employees safety data sheets on the
chemicals. Respondents and others challenged the Standard in the
Court of Appeals. The court held that the Occupational Safety and
Health Administration (OSHA) had not adequately explained why the
Standard was limited to the manufacturing sector, and twice
directed OSHA either to apply it to workplaces in other sectors of
the economy or to state why such application would be infeasible.
Ultimately, DOL issued a revised Standard that applied to worksites
in all sectors, and submitted it to the Office of Management and
Budget (OMB) for review under the Paperwork Reduction Act of 1980
(Act). That Act sets forth a comprehensive scheme to reduce the
federal paperwork burden on the public by requiring,
inter
alia, an agency to submit any instrument for the "collection
of information" -- termed an "information collection request" -- to
the OMB for approval before it may collect the information. OMB
disapproved three of the Standard's provisions on the ground that
their requirements were not necessary to protect employees, and DOL
published notice withdrawing the provisions. Respondents sought
further relief from the Court of Appeals, which ordered DOL to
reinstate the disapproved provisions. The court reasoned that the
provisions represented good faith compliance by DOL with the
court's prior orders, that OMB lacked the authority under the Act
to disapprove the provisions, and that, therefore, DOL had no
legitimate basis for withdrawing them.
Held: The Act does not authorize OMB to review and
countermand agency regulations mandating disclosure by regulated
entities directly to third parties. Pp.
494 U. S.
32-43.
(a) The Act's language indicates that the terms "information
collection request" and "collection of information" -- which is
defined as "the obtaining
Page 494 U. S. 27
or soliciting of facts by an agency through . . . reporting or
recordkeeping requirements" -- refer solely to the collection of
information by, or for the use of, a federal agency, rather than to
disclosure rules, which do not result in information being made
available for agency use. Petitioners' interpretation of the above
definition -- that an agency is "soliciting facts" when it requires
someone to communicate specified data to a third party and that
rules requiring labeling, employee training, and the keeping of
accessible data sheets are "reporting and recordkeeping
requirements" -- is precluded by the language, purpose, and
structure of the Act as a whole. Pp.
494 U. S.
34-35.
(b) Under the traditional canon of construction requiring that
words grouped in a list be given a related meaning, the phrase
"reporting and recordkeeping requirements" would comprise only
rules requiring information to be sent or made available to a
federal agency, not disclosure rules, since the other examples
listed are forms for communicating information to a party
requesting that information. P.
494 U. S.
36.
(c) Moreover, disclosure rules present none of the problems
Congress sought to solve, and none of the enumerated purposes would
be served by subjecting such rules to the Act's provisions. Pp.
494 U. S.
36-38.
(d) That Congress did not intend the Act to encompass disclosure
rules is further revealed by the language and import of other
provisions. The internal preliminary steps that an agency must take
before adopting an information collection request affect agencies
only when they gather information for their own use, and do not
relate to disclosure rules. Likewise, the provisions governing
OMB's review of proposed agency information collection requests
focus on an agency's ability to use the information, particularly
its ability to process it. The Act does not authorize OMB to
determine the usefulness of agency-adopted warning requirements to
those being warned. Furthermore, the Act's enforcement mechanism,
by its terms, does not apply to disclosure rules, and its clear
legislative history shows that Congress intended the provision to
apply to all collections of information subject to the Act. Pp.
494 U. S.
38-40.
(e) The Act's legislative history does not support petitioners'
contention that Congress intended "collection of information" to
include disclosure rules. This Court need not defer to OMB's
contrary interpretation where Congress' intent is clear. Pp.
494 U. S.
40-41.
855 F.2d 108 (CA 3 1988), affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST,
C.J., joined,
post, p.
494 U.S. 43.
Page 494 U. S. 28
Justice BRENNAN delivered the opinion of the Court.
Among the regulatory tools available to government agencies
charged with protecting public health and safety are rules which
require regulated entities to disclose information directly to
employees, consumers, or others. Disclosure rules protect by
providing access to information about what dangers exist and how
these dangers can be avoided. Today we decide whether the Office of
Management and Budget (OMB) has the authority under the Paperwork
Reduction Act of 1980 (Act), 44 U.S.C. § 3501
et seq.
(1982 ed. and Supp. V), to review such regulations.
I
In 1983, pursuant to the Occupational Safety and Health Act of
1970 (OSH Act), 84 Stat. 1590, 29 U.S.C. § 651
et seq.
(1982 ed.), which authorizes the Department of Labor (DOL) to set
health and safety standards for workplaces, DOL
Page 494 U. S. 29
promulgated a Hazard Communications Standard. 29 CFR § 1910.1200
(1984). The Standard imposed various requirements on manufacturers
aimed at ensuring that their employees were informed of the
potential hazards posed by chemicals found at their workplace.
Specifically, the Standard required chemical manufacturers to label
containers of hazardous chemicals with appropriate warnings.
"Downstream" manufacturers -- commercial purchasers who used the
chemicals in their manufacturing plants -- were obliged to keep the
original labels intact or else transfer the information onto any
substitute containers. The Standard also required chemical
manufacturers to provide "material safety data sheets" to
downstream manufacturers. The data sheets were to list the physical
characteristics and hazards of each chemical, the symptoms caused
by overexposure, and any preexisting medical conditions aggravated
by exposure. In addition, the data sheets were to recommend safety
precautions and first aid and emergency procedures in case of
overexposure, and provide a source for additional information. Both
chemical manufacturers and downstream manufacturers were required
to make the data sheets available to their employees and to provide
training on the dangers of the particular hazardous chemicals found
at each workplace.
Respondent United Steelworkers of America, among others,
challenged the Standard in the Court of Appeals for the Third
Circuit. That court held that the Occupational Safety and Health
Administration (OSHA) had not adequately explained why the
regulation was limited to the manufacturing sector, in view of the
OSH Act's clear directive that, to the extent feasible, OSHA is to
ensure that no employee suffers material impairment of health from
toxic or other harmful agents. The court directed OSHA either to
apply the hazard standard rules to workplaces in other sectors or
to state reasons why such application would not be feasible.
United
Page 494 U. S. 30
Steelworkers of America v. Auchter, 763 F.2d 728, 739
(CA3 1985).
When DOL responded by initiating an entirely new rulemaking
proceeding, the union and its copetitioners sought enforcement of
the earlier order. The Third Circuit Court of Appeals directed DOL,
under threat of contempt, to publish in the Federal Register within
60 days either a hazard communication standard applicable to all
workers covered by the OSH Act or a statement of reasons why such a
standard was not feasible on the basis of the existing record, as
to each category of excluded workers.
United Steelworkers of
America v. Pendergrass, 819 F.2d 1263, 1270 (CA3 1987).
DOL complied by issuing a revised Hazard Communications Standard
that applied to worksites in all sectors of the economy.
See 52 Fed.Reg. 31852 (1987). At the same time, DOL
submitted the Standard to OMB for review of any paperwork
requirements. After holding a public hearing, OMB approved all but
three of its provisions. OMB rejected a requirement that employees
who work at multi-employer sites (such as construction sites) be
provided with data sheets describing the hazardous substances to
which they were likely to be exposed, through the activities of any
of the companies working at the same site. The provision permitted
employers either to exchange data sheets and make them available at
their home offices or to maintain all relevant data sheets at a
central location on the worksite. 29 CFR § 1910.1200(e)(2) (1988).
OMB also disapproved a provision exempting consumer products used
in the workplace in the same manner, and resulting in the same
frequency and duration of exposure, as in normal consumer use. 29
CFR § 1910.1200(b)(6)(vii) (1988). Finally, OMB vetoed an exemption
for drugs sold in solid, final form for direct administration to
patients. 29 CFR § 1910.1200(b)(6)(viii) (1988).
See 52
Fed.Reg. 46076 (1987).
OMB disapproved these provisions based on its determination that
the requirements were not necessary to protect employees. [
Footnote 1]
Page 494 U. S. 31
OMB's objection to the exemptions was that they were too narrow,
and that the Standard, therefore, applied to situations in which
disclosure did not benefit employees. [
Footnote 2]
Id. at 46077-46078. DOL disagreed
with OMB's assessment, but it published notice that the three
provisions were withdrawn. DOL added its reasons for believing that
the provisions were necessary, proposed that they be retained, and
invited public comment. 53 Fed.Reg. 29822 (1988).
The union and its copetitioners responded by filing a motion for
further relief with the Third Circuit. That court ordered DOL to
reinstate the OMB-disapproved provisions. The court reasoned that
the provisions represented good faith compliance by DOL with the
court's prior orders, that
Page 494 U. S. 32
OMB lacked authority under the Paperwork Reduction Act to
disapprove the provisions and that, therefore, DOL had no
legitimate basis for withdrawing them.
United Steelworkers of
America v. Pendergrass, 855 F.2d 108 (CA3 1988).
The United States sought review in this Court. We granted
certiorari to answer the important question whether the Paperwork
Reduction Act authorizes OMB to review and countermand agency
regulations mandating disclosure by regulated entities directly to
third parties. 490 U.S. 1064 (1989). We hold that the Paperwork
Reduction Act does not give OMB that authority, and therefore
affirm.
II
The Paperwork Reduction Act was enacted in response to one of
the less auspicious aspects of the enormous growth of our federal
bureaucracy: its seemingly insatiable appetite for data. Outcries
from small businesses, individuals, and state and local governments
that they were being buried under demands for paperwork led
Congress to institute controls. [
Footnote 3] Congress designated OMB the overseer of other
agencies with respect to paperwork, and set forth a comprehensive
scheme designed to reduce the paperwork burden. The Act charges OMB
with developing uniform policies for efficient information
processing, storage and transmittal systems, both within and among
agencies. OMB is directed to reduce federal collection of all
information by set percentages, establish a Federal Information
Locator System, and develop and implement procedures for guarding
the privacy of those providing confidential information.
See 44 U.S.C. §§ 3504, 3505, 3511 (1982 ed. and Supp.
V).
The Act prohibits any federal agency from adopting regulations
which impose paperwork requirements on the public unless the
information is not available to the agency from another source
within the Federal Government, and the agency
Page 494 U. S. 33
must formulate a plan for tabulating the information in a useful
manner. Agencies are also required to minimize the burden on the
public to the extent practicable.
See 44 U.S.C. §
3507(a)(1) (1982 ed. and Supp. V). In addition, the Act institutes
a second layer of review by OMB for new paperwork requirements.
After an agency has satisfied itself that an instrument for
collecting information -- termed an "information collection
request" -- is needed, the agency must submit the request to OMB
for approval.
See 44 U.S.C. § 3507(a)(2) (1982 ed., Supp.
V.). If OMB disapproves the request, the agency may not collect the
information.
See 44 U.S.C. § 3507(a)(3) (1982 ed.).
Typical information collection requests include tax forms,
medicare forms, financial loan applications, job applications,
questionnaires, compliance reports and tax or business records.
See S.Rep. at 3-4. These information requests share at
least one characteristic: The information requested is provided to
a federal agency, either directly or indirectly. [
Footnote 4] Agencies impose the requirements
on private parties in order to generate information to be used by
the agency in pursuing some other purpose. For instance, agencies
use these information requests in gathering background on a
particular subject to develop the expertise with which to devise or
fine-tune appropriate regulations, amassing diffuse data for
processing into useful statistical form, and monitoring business
records and compliance reports for signs or proof of nonfeasance to
determine when to initiate enforcement measures.
By contrast, disclosure rules do not result in information being
made available for agency personnel to use. The promulgation of a
disclosure rule is a final agency action that represents a
substantive regulatory choice. An agency charged with protecting
employees from hazardous chemicals has a
Page 494 U. S. 34
variety of regulatory weapons from which to choose: it can ban
the chemical altogether; it can mandate specified safety measures,
such as gloves or goggles; or it can require labels or other
warnings alerting users to dangers and recommended precautions. An
agency chooses to impose a warning requirement because it believes
that such a requirement is the least intrusive measure that will
sufficiently protect the public, not because the measure is a means
of acquiring information useful in performing some other agency
function.
No provision of the Act expressly declares whether Congress
intended the Paperwork Reduction Act to apply to disclosure rules
as well as information-gathering rules. The Act applies to
"information collection requests" by a federal agency which are
defined as
"a written report form, application form, schedule,
questionnaire, reporting or recordkeeping
Page 494 U. S. 35
requirement, collection of information requirement, or other
similar method calling for the collection of information."
44 U.S.C. § 3502(11) (1982 ed., Supp. V). "Collection of
information," in turn, is defined as
"the obtaining or soliciting of facts or opinions by an agency
through the use of written report forms, application forms,
schedules, questionnaires, reporting or recordkeeping requirements,
or other similar methods calling for either -- "
"(A) answers to identical questions posed to, or identical
reporting or recordkeeping requirements imposed on, ten or more
persons, other than agencies, instrumentalities, or employees of
the United States; or"
"(B) answers to questions posed to agencies, instrumentalities,
or employees of the United States which are to be used for general
statistical purposes."
44 U.S.C. § 3502(4).
Petitioner urges us to read the words "obtaining or soliciting
of facts by an agency through . . . reporting or recordkeeping
requirements" as encompassing disclosure rules. It contends that an
agency is "soliciting facts" when it requires someone to
communicate specified data to a third party and that the Hazard
Communications Standard's rules are "reporting and recordkeeping
requirements" within the meaning of the Act because the employer is
required to report hazard information to employees. Petitioner
submits that the provisions requiring labeling and employee
training are "reporting requirements" and that the provision
requiring accessible data sheets containing health and safety
information is a "recordkeeping requirement." We believe, however,
that the language, structure, and purpose of the Paperwork
Reduction Act reveal that petitioner's position is untenable
because Congress did not intend the Act to encompass these or any
other third-party disclosure rules.
"On a pure question of statutory construction, our first job is
to try to determine congressional intent, using traditional tools
of statutory construction."
NLRB v. Food & Commercial Workers, 484 U.
S. 112,
484 U. S. 123
(1987). Our "starting point is the language of the statute,"
Schreiber v. Burlington Northern, Inc., 472 U. S.
1,
472 U. S. 5
(1985), but
"'in expounding a statute, we are not guided by a single
sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy.'"
Massachusetts v. Morash, 490 U.
S. 107,
490 U. S. 115
(1989), quoting
Pilot Life Ins. Co. v. Dedeaux,
481 U. S. 41,
481 U. S. 51
(1987).
See also K Mart Corp. v. Cartier, Inc.,
486 U. S. 281,
486 U. S. 291
(1988) (same).
Petitioner's interpretation of "obtaining or soliciting facts by
an agency through . . . reporting or recordkeeping requirements" is
not the most natural reading of this language. The common-sense
view of "obtaining or soliciting facts
by an agency" is
that the phrase refers to an agency's efforts to gather facts for
its own use, and that Congress used the word "solicit" in addition
to the word "obtain" in order to cover information requests that
rely on the voluntary cooperation of information suppliers as well
as rules which make compliance
Page 494 U. S. 36
mandatory. Similarly, data sheets consisting of advisory
material on health and safety do not fall within the normal meaning
of "records," and a government-imposed reporting requirement
customarily requires reports to be made to the government, not
training and labels to be given to someone else altogether.
That a more limited reading of the phrase "reporting and
recordkeeping requirement" was intended derives some further
support from the words surrounding it. The traditional canon of
construction,
noscitur a sociis, dictates that "
words
grouped in a list should be given related meaning.'"
Massachusetts v. Morash, supra, 490 U.S. at 490 U. S.
114-115, quoting Schreiber, supra, 472 U.S. at
472 U. S. 8. The
other examples listed in the definitions of "information collection
request" and "collection of information" are forms for
communicating information to the party requesting that information.
If "reporting and recordkeeping requirement" is understood to be
analogous to the examples surrounding it, the phrase would comprise
only rules requiring information to be sent or made available to a
federal agency, not disclosure rules.
The same conclusion is produced by a consideration of the object
and structure of the Act as a whole.
See Offshore Logistics,
Inc. v. Tallentire, 477 U. S. 207,
477 U. S.
220-221 (1986) (concluding that the meaning of a phrase
was clarified by the language and purpose of the act as a whole).
Particularly useful is the provision detailing Congress' purposes
in enacting the statute. The Act declares that its purposes
are:
"(1) to minimize the Federal paperwork burden for individuals,
small businesses, State and local governments, and other
persons;"
"(2) to minimize the cost
to the Federal Government of
collecting, maintaining, using, and disseminating information;"
"(3) to maximize the usefulness of information collected,
maintained, and disseminated
by the Federal Government;
"
Page 494 U. S. 37
"(4) to coordinate, integrate and, to the extent practicable and
appropriate, make uniform Federal information policies and
practices;"
"(5) to ensure that automatic data processing,
telecommunications, and other information technologies are acquired
and used by the Federal Government in a manner which improves
service delivery and program management, increases productivity,
improves the quality of decisionmaking, reduces waste and fraud,
and wherever practicable and appropriate, reduces the information
processing burden for the Federal Government and
for persons
who provide information to and for the Federal Government;
and"
"(6) to ensure that the collection, maintenance, use and
dissemination of information
by the Federal Government is
consistent with applicable laws relating to confidentiality,
including . . . the Privacy Act."
44 U.S.C. § 3501 (1982 ed, and Supp. V) (emphasis added).
Disclosure rules present none of the problems Congress sought to
solve through the Paperwork Reduction Act, and none of Congress'
enumerated purposes would be served by subjecting disclosure rules
to the provisions of the Act. The statute makes clear that the
first purpose -- avoiding a burden on private parties and state and
local governments -- refers to avoiding "the time, effort, or
financial resources expended by persons to provide information
to a Federal agency." 44 U.S.C. § 3502(3) (1982 ed.)
(defining "burden") (emphasis added). Because Congress expressed
concern only for the burden imposed by requirements to provide
information to a federal agency, and not for any burden imposed by
requirements to provide information to a third party, OMB review of
disclosure rules would not further this congressional aim.
Congress' second purpose -- minimizing the Federal Government's
cost of handling information -- also would not be advanced by
review of disclosure rules, because such rules do not impose any
information processing costs on the Federal
Page 494 U. S. 38
Government. Because the Federal Government is not the consumer
of information "requested" by a disclosure rule nor an intermediary
in its dissemination, OMB review of disclosure rules would not
serve Congress' third, fourth, fifth, or sixth purposes. Thus,
nothing in Congress' itemized and exhaustive textual description of
its reasons for enacting this particular Act indicates any
legislative purpose to have OMB screen proposed disclosure rules.
We find this to be strong evidence that Congress did not intend the
Act to authorize OMB review of such regulations.
This conclusion is buttressed by the language and import of
other provisions of the Act. For instance, every federal agency is
required to take three internal preliminary steps before adopting
an information collection request. The agency must take action
to
"(A) eliminate, through the use of the Federal Information
Locator System and other means, information collections which seek
to obtain information available from another source within the
Federal Government;"
"(B) reduce to the extent practicable and appropriate the burden
on persons who will provide information
to the agency;
and"
"(C) formulate plans for tabulating the information in a manner
which will enhance its usefulness to other agencies and to the
public."
44 U.S.C. § 3507(a)(1) (1982 ed.) (emphasis added).
These requirements affect agencies only when they gather
information for their own use. The first directs an agency not to
ask for information that it can acquire from another agency.
[
Footnote 5] The second
requires an agency to consider the burden it places on the public,
but only as to information provided
to the agency. The
third encourages an agency to
Page 494 U. S. 39
make the information it has obtained useful to others as well.
Significantly, no provision relates to disclosure rules. For
example, no provision requires agencies to ensure that a paperwork
requirement is effective or that its burden on one party is not
disproportionate to the benefit afforded a third party.
Also instructive are the provisions governing OMB's review of
proposed agency information collection requests that cast that
review in terms applicable to information-gathering regulations but
not to disclosure rules. OMB's examination is limited to
"determining whether the collection of information
by an
agency is necessary for the proper performance of the
functions of the agency, including whether the information will
have practical utility
for the agency."
44 U.S.C. § 3504(c)(2) (1982 ed.) (emphasis added). "Practical
utility" is defined in the statute as
"the ability
of an agency to use information it
collects, particularly the capability to process such information
in a timely and useful fashion."
44 U.S.C. § 3502(16) (1982 ed., Supp. V) (emphasis added).
However, in reviewing the disclosure rules at issue in this
case, OMB was unable to consider what OSHA planned to do with
information regarding hazardous chemicals at the various worksites,
because OSHA was not to be the recipient of this information.
Nothing was to be given to OSHA to process -- in a timely fashion
or otherwise. OMB instead disapproved the three OSHA rules on the
ground that the mandated disclosures would be of little benefit
to the employees OSHA sought to protect. But there is no
indication in the Paperwork Reduction Act that OMB is authorized to
determine the usefulness of agency-adopted warning requirements to
those being warned. To the contrary, Congress focused exclusively
on the utility of the information
to the agency. And the
only criteria specified are whether the agency can process the
information quickly and use it in pursuit of its substantive
mandate.
Page 494 U. S. 40
Yet a third provision reinforcing our conclusion that disclosure
rules are not subject to the Paperwork Reduction Act is the
statute's mechanism for assuring agency compliance with its terms.
When OMB approves an information collection request, it issues a
control number which is placed on all forms. If a request does not
receive OMB approval, it is not issued a control number, and the
agency is prohibited from collecting the information.
See
44 U.S.C. §§ 3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if the
agency nevertheless promulgates the paperwork requirement, members
of the public may ignore it without risk of penalty.
See
44 U.S.C. § 3512. (1982 ed.). [
Footnote 6] However, this protection of the public is
applicable only to information-gathering rules. Section 3512
provides that
"no person shall be subject to any penalty for failing to
maintain or provide information
to any agency if the
information collection request involved . . . does not display a
current control number assigned by the [OMB]. . . ."
Ibid. (emphasis added).
While the grammar of this text can be faulted, its meaning is
clear: the public is protected under the Paperwork Reduction Act
from paperwork regulations not issued in compliance with the Act,
only when those regulations dictate that a person maintain
information
for an agency or provide information
to an
agency. By its very terms, the statute's enforcement mechanism
does not apply to rules which require disclosure to a third party
rather than to a federal agency. Thus either Congress intended the
Paperwork Reduction Act to cover information-gathering rules only,
or Congress intended the Act to cover disclosure rules, but
intended to exempt them from this agency compliance mechanism.
Because the latter is counterintuitive and contrary to clear
legislative history, [
Footnote
7] § 3512 is further evidence that Congress did not intend the
Act to cover disclosure rules.
Page 494 U. S. 41
III
For the foregoing reasons, we find that the terms "collection of
information" and "information collection request," when considered
in light of the language and structure of the Act as a whole, refer
solely to the collection of information by, or for the use of, a
federal agency; they cannot reasonably be interpreted to cover
rules mandating disclosure of information to a third party. In
addition, we find unpersuasive petitioners' claims that there is a
"clearly expressed legislative intention [to the] contrary,"
see INS v. Cardoza-Fonseca, 480 U.
S. 421,
480 U. S. 432,
n. 12 (1987).
Petitioner relies on statements from various stages of the Act's
legislative history as evidence that Congress intended "collection
of information" to include disclosure rules. [
Footnote 8] However, the statements show merely
that the Act was intended
Page 494 U. S. 42
to reach not only statistical compilations but also information
collected for law enforcement purposes and information filed with
an agency for possible dissemination to the public (
i.e.,
when the agency is an intermediary in the process of data
dissemination). This sheds no light on the issue before this Court:
Whether the Act reaches rules mandating disclosure by one party
directly to a third party. Moreover, other statements in the
committee reports reinforce respondents' position. [
Footnote 9]
Because we find that the statute, as a whole, clearly expresses
Congress' intention, we decline to defer to OMB's interpretation.
[
Footnote 10]
See Board of Governors of the
Federal Reserve
Page 494 U. S. 43
System v. Dimension Financial Corp., 474 U.
S. 361,
474 U. S. 368
(1986) ("The traditional deference courts pay to agency
interpretation is not to be applied to alter the clearly expressed
intent of Congress");
Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
467 U. S.
842-843 (1984) ("If the intent of Congress is clear,
that is the end of the matter"). We affirm the judgment of the
Third Circuit insofar as it held that the Paperwork Reduction Act
does not give OMB the authority to review agency rules mandating
disclosure by regulated entities to third parties. [
Footnote 11]
It is so ordered.
[
Footnote 1]
OMB concluded that workers on multi-employer sites would be
adequately protected if each employer kept chemical manufacturers'
labels intact, supplied data sheets to other employers on the site
on request, and taught its own employees about the chemicals with
which they worked directly and explained how to recognize hazards
likely to be introduced by other employers. 52 Fed.Reg. 46077
(1987).
[
Footnote 2]
The standard promulgated by OSHA had exempted, from any
otherwise applicable labeling requirements, all food and drugs
subject to the labeling requirements of the Federal Food Drug, and
Cosmetic Act, 52 Stat. 1040, as amended, 21 U.S.C. § 301
et
seq. (1982 ed.), and all consumer products or hazardous
substances subject to a consumer product safety standard or
labeling requirements of the Consumer Product Safety Act, 86 Stat.
1207, as amended, 15 U.S.C. § 2051
et seq. (1988), or the
Federal Hazardous Substances Act, 74 Stat. 372, as amended, 15
U.S.C. § 1261
et seq. (1988), or regulations issued under
those Acts by the Consumer Product Safety Commission. 29 CFR §§
1910.1200(b)(5)(ii), 1910.1200(b)(5)(iv) (1988).
OMB wanted OSHA to exempt, in addition, all products packaged in
the same form and concentration as a consumer product, whether or
not used for the same purpose or with the same exposure, as well as
all FDA-regulated drugs handled in the nonmanufacturing sector. 52
Fed.Reg. 46078 (1987). OMB drew its recommended exemption for
consumer products from § 311(e)(3) of the Superfund Amendments and
Reauthorization Act of 1986, 100 Stat. 1615, 42 U.S.C. § 9601
et seq. (1982 ed., Supp. V), a provision aimed at
informing the general public about chemicals that could cause
hazardous conditions during an emergency situation.
[
Footnote 3]
See S.Rep. No. 96-930, pp. 3-4, 8 (1980) (S.Rep.);
H.R.Rep. No. 96-835, pp. 3, 17 (1980) (H.R.Rep.), U.S.Code Cong.
& Admin.News 1980, p. 6241.
[
Footnote 4]
Tax and business records are examples of information provided
only indirectly to an agency. In these cases, the governing
regulations do not require records to be sent to the agency; they
require only that records be kept on hand for possible examination
as part of a compliance review.
[
Footnote 5]
See H.R.Rep., at 28 (the agency "is to eliminate any
information collections which seek to obtain information available
from other sources within the Federal Government").
[
Footnote 6]
See id. at 20 (The Act "allow[s] the public, by
refusing to answer these [information collection requests], to help
control
outlaw forms'").
[
Footnote 7]
See S.Rep., at 52-53, U.S.Code Cong. & Admin. News
1980, p. 6292 ("The only collections of information by a Federal
agency which are exempted, and for which a person or persons could
not claim protection under section 3512 are those collections of
information which this chapter does not apply to and are exempted
by section 3518 [certain law enforcement and natural security
exceptions]").
See also H.R.Rep. at 30.
[
Footnote 8]
See Report of Comm'n on Federal Paperwork, The Reports
Clearance Process 1, 43 (Sept. 9, 1977) (explaining that the
Federal Trade Commission did not interpret the Federal Reports Act,
predecessor to the Paperwork Reduction Act, to apply to information
it collected for law enforcement purposes, nor did the Securities
and Exchange Commission interpret that Act to apply to information
the SEC collected for possible disclosure by the agency to the
public); Paperwork and Redtape Reduction Act of 1979: Hearing on S.
1411 before the Subcommittee on Federal Spending Practices and Open
Government of the Senate Committee on Governmental Affairs, 96th
Cong., 1st Sess., 87 (1979) (testimony of SEC Commissioner Evans
that the definition of collection of information in the Federal
Reports Act was limited to collection for statistical purposes;
testimony of Sen. Chiles that Congress was not trying to cripple
the mission of the agencies, but was "trying to put some governor
on this thirst for information"); S.Rep. at 39-40, U.S.Code Cong.
& Admin.News 1980, p. 6279 (explaining that the Senate had
rejected SEC's attempt to limit "collection of information" to
collection for statistical purposes, that the definition extended
to documents filed with the SEC for possible disclosure to the
public by the SEC, and that OMB's review of these filing
requirements should consider whether the SEC could use the data
either to carry out its regulatory functions or to make it
available to the public).
[
Footnote 9]
See, e.g., H.R.Rep. at 3 (the Act resulted from "a
growing concern that the way
the Government collects, uses, and
disseminates information must be improved") (emphasis added);
id. at 22 (explaining the "practical utility" review as a
response to the tendency of agencies to "collect reams of data on
the basis of need only to store the data unused" thereby imposing
"an unnecessary reporting burden on those individuals or
organizations being asked to provide it"); S.Rep. at 11, U.S.Code
Cong. & Admin. News 1980, p. 6251 ("the essential purpose of
the legislation [is] to reduce the burden on the public in
providing information
to the Federal Government")
(emphasis added);
id. at 46, U.S. Code Cong. &
Admin.News 1980, p. 6286 ("A Federal agency is considered to
sponsor' the collection of information if the agency itself
collects information or if it uses a procurement contract and the
contractor collects information for the agency"); Senate Hearings,
supra, n. 8, at 40-41 (testimony of Wayne G. Granquist,
Assoc. Dir., OMB) ("No one questions the basic need of the
government for information to plan, make policy decisions, operate
and evaluate pro grams, and perform necessary research. The
question is rather how much information is essential").
[
Footnote 10]
OMB's assumption of the authority to review the three provisions
of the Hazard Communications Standard at issue was consistent with
its own regulations.
See 5 CFR § 1320.7(c)(2) (1988)
("Requirements by an agency for a person to obtain or compile
information for the purpose of disclosure to members of the public
or to the public at large, through posting, notification, labeling,
or similar disclosure requirements, constitute the
collection
of information' whenever the same requirement to obtain or compile
information would be a `collection of information' if the
information were directly provided to the agency"); § 1320.7(q)
(defining "reporting requirement" as "a requirement imposed by an
agency on persons to provide information to another person or to
the agency"). Petitioners' argument that we should defer to OMB's
interpretation, as expressed in these regulations, is foreclosed by
our finding of clear congressional intent.
[
Footnote 11]
We do not reach the question whether other provisions of the
Hazard Communications Standard might legitimately be subject to OMB
review under the Paperwork Reduction Act.
See 29 C.F.R. §
1910.1200(e) (1988) (requiring employers to develop written
programs describing their compliance and make them available to the
agency on request); § 1910.1200(g)(11) (requiring employers to make
their material safety data sheets available to the agency on
request). Only the three provisions OMB disapproved are before us
today.
Justice WHITE, with whom THE CHIEF JUSTICE joins,
dissenting.
The Court's opinion today requires more than ten pages,
including a review of numerous statutory provisions and legislative
history, to conclude that the Paperwork Reduction Act of 1980 (PRA
or Act) is clear and unambiguous on the question of whether it
applies to agency directives to private parties to collect
specified information and disseminate or make it available to third
parties. On the basis of that questionable conclusion, the Court
refuses to give
any deference to the Office of Management
and Budget's (OMB's) longstanding and consistently applied
interpretation that such requirements fall within the Act's scope.
Because in my view the Act is not clear in that regard and
deference is due OMB under
Page 494 U. S. 44
Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837
(1984), I respectfully dissent.
In
Chevron, supra, we set forth the general principles
to be applied in cases such as this one:
"When a court reviews an agency's construction of the statute
which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.
If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not simply
impose its own construction on the statute, as would be necessary
in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer is based
on a permissible construction of the statute."
Id. at
467 U. S.
842-843 (footnotes omitted).
As the Court acknowledges, there is no question in this case
that OMB is the agency charged with administering the PRA. Unless
Congress has directly spoken to the issue of whether an agency
request that private parties disclose to or maintain for third
parties information such as material safety data sheets (MSDS's) is
an "information collection request" or a "recordkeeping
requirement" within the Act's scope, OMB's interpretation of the
Act is entitled to deference, provided of course that it is based
on a permissible construction of the statute.
The Court concedes that the Act does not expressly address
"whether Congress intended the Paperwork Reduction Act to apply to
disclosure rules as well as information-gathering rules."
Ante at
494 U. S. 34.
Curiously, the Court then almost immediately asserts that
interpreting the Act to provide coverage for disclosure requests is
untenable.
Ante at
Page 494 U. S. 45
494 U. S. 35.
The plain language of the Act, however, suggests the contrary.
Indeed, the Court appears to acknowledge that Petitioners'
interpretation of the Act, although not the one the Court prefers,
is nonetheless reasonable: "Petitioner's interpretation . . . is
not the
most natural reading of this language."
Ibid. (emphasis added). The Court goes on to arrive at
what it believes is the most reasonable of plausible
interpretations; it cannot rationally conclude that its
interpretation is the
only one that Congress could
possibly have intended. The Court neglects to even mention that the
only other Court of Appeals besides the Third Circuit in this case
to address a similar question rejected the interpretation that the
Court now adopts. [
Footnote 2/1] In
addition, there is evidence that
Page 494 U. S. 46
for years OMB has been reviewing proposals similar to the
standard at issue in this case routinely and without objection from
other agencies. [
Footnote 2/2] As I
see it, by independently construing the statute rather than asking
if the agency's interpretation is a permissible one and deferring
to it if that is the case, the Court's approach is clearly contrary
to
Chevron.
The hazard communication standards propounded by OSHA require
chemical manufacturers to develop hazard information about their
products, to adequately label such products, and to prepare for
their products MSDS's to be sent to downstream employers who
utilize those products.
See 29 CFR §§ 1910.1200(d), (f)
and (g) (1988). Those employers are directed to prepare written
hazard communication programs that include a list of hazardous
chemicals known to be present at the work site, § 1910.1200(e); to
ensure that containers are properly labeled, § 1910.1200(f); and to
collect, maintain, and make available to their employees copies of
MSDS's with respect to hazardous chemicals that they use in their
business. § 1910.1200(g).
OMB, as I see it, reasonably concluded that these requirements
were subject to its approval under the PRA, which
Page 494 U. S. 47
makes OMB responsible for implementing the statutory purpose of
minimizing the burden and maximizing the usefulness of the
Government's information collection requirements. OMB is instructed
to do this through a process of reviewing agency "information
collection requests" in order to determine whether
"the collection of information by an agency is necessary for the
proper performance of the functions of the agency, including
whether the information will have practical utility for the
agency."
44 U.S.C. § 3504(c)(2) (1982 ed.).
An "information collection request" is defined as
"a written report form, application form, schedule,
questionnaire, reporting or recordkeeping requirement, collection
of information requirement, or similar method calling for the
collection of information."
44 U.S.C. § 3502(11) (1982 ed., Supp. V). A "recordkeeping
requirement" is defined as "a requirement imposed by an agency on
persons to maintain specified records." § 3502(17). "Collection of
information" is defined as
"the obtaining or soliciting of facts or opinions by an agency
through the use of written report forms, application forms,
schedules, questionnaires, reporting or recordkeeping requirements,
or other similar methods calling for either -- "
"(A) answers to identical questions posed to, or identical
reporting or recordkeeping requirements imposed on, ten or more
persons, other than agencies, instrumentalities, or employees of
the United States; or"
"(B) answers to questions posed to agencies, instrumentalities,
or employees of the United States which are to be used for general
statistical purposes."
44 U.S.C. § 3502(4) (1982 ed.).
"Reporting requirement" is not specifically defined by the
statute.
As it is directed to do by the PRA,
see § 3516, OMB has
issued regulations and rules for exercising its authority under the
statute. Although the statute itself does not in so many
Page 494 U. S. 48
words reach agency directives to collect, disseminate, or make
available to third parties specified information that is not
delivered to the agency itself, OMB regulations so interpret the
Act. The regulations also plainly reach the hazard communications
standards that OSHA has presented for OMB's approval in this case.
[
Footnote 2/3]
Page 494 U. S. 49
I cannot say that these regulations, so far as they are involved
here, are inconsistent with the Act. It is not unreasonable to
characterize as a "reporting requirement" an employer's obligation
to disclose hazard information, by labeling or making MSDS's
available, especially in light of the absence of a definition in
the statute. Nor is it unreasonable to characterize the obligation
to compile copies of MSDS's as a "recordkeeping requirement," or
the directive to prepare a hazard communication program with its
list of dangerous chemicals as an "information collection
request" within the meaning of 44 U.S.C. § 3502 (1982 ed., Supp.
V). Since that definitional section, after including reporting and
recordkeeping requirements, concludes with the words "or other
similar method calling for the collection of information," it is
tenable to conclude that reporting and recordkeeping are among the
information collection requests requiring OMB approval.
Section 3502(4) likewise defines "collection of information" as
including reporting and recordkeeping requirements, but that
definition begins with the words "the obtaining or soliciting of
facts or opinions by an agency" through written report forms, etc.
The Court's argument is that this definition limits the PRA to
facts or opinions obtained by an agency for its own use, and hence
excludes recordkeeping, reporting requirements, and information
collection designed to inform or benefit third parties such as
employees, customers or the public. This argument, however, pays
too little attention to the precise language of the provision.
First, an agency does not "obtain" information when it imposes a
recordkeeping requirement. Second, section 3502(4) not only speaks
of "obtaining" facts and opinions by an agency but of the
"soliciting" of facts and opinions by an agency. The word
"soliciting" would appear to mean something beside "obtaining," and
is commonly understood as including a request for another person to
perform
Page 494 U. S. 50
some act. It is not unreasonable therefore to construe this
language as extending OMB's authority to requests for
recordkeeping, reporting, and information collection that is
intended to benefit third parties, but is not delivered to the
agency itself.
Furthermore, the Court does not explain why, if "information
collection requests" and the "collection of information" are
limited to agency directives that information be provided
to the agency, the statutory definitions of those terms
explicitly include "recordkeeping requirement[s]."
See 44
U.S.C. §§ 3502(4) and (11) (1982 ed. and Supp. V). One response
might be that Congress intended to limit the term "recordkeeping
requirement" to records prepared for the agency and which must be
provided to the agency upon request. But Congress specifically
defined the term "recordkeeping requirement" without including such
a limitation, and it is unlikely Congress intended to imply such a
limitation. An agency can certainly "use" information without
collecting and analyzing it or periodically auditing it for
compliance or enforcement purposes. It can hardly be said that
requiring recordkeeping and reporting for the benefit of employees
is not useful to the agency or an appropriate means for the agency
to carry out its obligation to provide a safe workplace.
It is common ground in this case that, if the information
required to be reported or made available to employees were first
sent to the agency and then distributed to employees, there would
be no question about OMB's authority. Likewise, as I understand it,
the mere fact that the records ordered to be kept are not
physically delivered to the agency does not bar OMB jurisdiction,
so long as the records are kept for examination and use by the
agency. The Court concedes as much, noting that requests for
information provided indirectly to an agency, such as requirements
that tax and business records be kept on hand, fall within the
PRA's scope because those documents are subject to "possible
examination as part of a compliance review."
Ante at
494 U. S. 33,
and n. 4.
Page 494 U. S. 51
In support of its argument that the Act applies only when
information is actually transmitted to an agency, the Court points
to language in the Act's general statement of purpose indicating
that Congress was concerned with minimizing "
the cost to the
Federal Government,'" maximizing "`the usefulness of information
collected, maintained, and disseminated by the Federal
Government,'" and reducing the paperwork burdens "`for persons who
provide information to and for the Federal Government.'"
Ante at 494 U. S. 36-37
(emphasis deleted), quoting 44 U.S.C. § 3501. The Court ignores,
however, the very first statement of purpose in the Act, which
declares that Congress intends that the Act "minimize the Federal
paperwork burden for individuals, small businesses, State and local
governments, and other persons." 44 U.S.C. § 3501(1) (1982 ed.).
Reading the Court's discussion of the Act, one might think that
Congress was only concerned with minimizing the Government's costs
and reducing the paperwork burdens on federal agency employees who
are forced to process massive amounts of information. Common sense
and § 3501(1) clearly belie that conclusion. [Footnote 2/4] Complaints from the private sector about
bureaucratic red tape far predate the enactment of the
PRA.
Also curious is the Court's reliance on the statement that one
purpose of the Act was to reduce the paperwork burden "for persons
who provide information to and for the Federal Government."
See 44 U.S.C. § 3501(5) (1982 ed., Supp. V). Aside from
reiterating the point just made regarding the Act's focus on
reducing the paperwork
Page 494 U. S. 52
burdens on the private sector, the natural reading of the
statement is that Congress recognized that agencies may sometimes
request that private parties provide information to others as part
of an agency's administration of its duties. It is surely
reasonable to conclude that the word "for" means something
different than the word "to," and that it includes not only
situations in which private parties must keep records available for
use and review by an agency, but also requirements that private
parties collect and provide information to third parties.
Contrary to the Court's assertions, disclosure requests do
present some of the problems Congress sought to solve through the
PRA. The Court concedes that Congress intended the Act to apply
when information is
"filed with an agency for possible dissemination to the public
(
i.e., when the agency is an intermediary in the process
of data dissemination)."
Ante at
494 U. S. 42.
But if that is true, how can it be so clear that Congress intended
to permit agencies to bypass the Act by simply requesting private
parties to submit information directly to third parties? From a
policy perspective, and certainly from the private sector's
perspective, it makes little difference whether an agency collects
information and then disseminates it or requires those in
possession of the information to submit it directly to the relevant
third parties. In fact, the latter option generally will impose
greater paperwork burdens on private parties, although
either choice results in a federal agency's imposing major
paperwork burdens on the private sector. The Court's response is
that one approach imposes costs on the Federal Government and the
other does not. But that distinction is flawed, because it promotes
a secondary objective of the PRA and ignores what I consider to
have been Congress's primary objective in enacting the statute.
In addition, the legislative history on which the Court relies
is unconvincing. Like the statute itself, the legislative history
never expressly addresses the question of disclosure
Page 494 U. S. 53
requirements. Of course, the Court can find and cite to
legislative history that is allegedly relevant to and supports its
interpretation of the statute, but one can just as easily point to
legislative history of similar quality supporting an alternative
construction of the Act.
See ante at
494 U. S. 36-37,
and nn. 8, 9. [
Footnote 2/5]
Since the statute itself is not clear and unambiguous, the
legislative history is muddy at best, and OMB has given the statute
what I believe is a permissible construction, I cannot agree with
the outcome the Court reaches. If
Chevron is to have
meaning, it must apply when a statute is as ambiguous on the issue
at hand as the PRA is on the subject of disclosure requirements.
Contrary to the Court of Appeals and to the majority, I would defer
to OMB's position that the obligation to compile copies of MSDS's
and the labeling requirements are information collection requests
subject to its approval. It follows that OMB was not acting
contrary to the statute in disapproving the three provisions
specifically involved in this case.
But even accepting for the moment the Court's construction of
the statute, it is notable that the Court fails to consider whether
the requirement that employers at multi-employer worksites file all
of the relevant MSDS's in a central location or exchange them and
make them available at their home offices,
see 29 CFR §
1910.1200(e)(2) (1988), might be considered a "recordkeeping
requirement." Granted, one purpose of the multi-employer standard
is to provide workers with an opportunity to learn the dangers
associated with the handling of particular materials used on the
worksite; nonetheless, the proposed standard does not require
employers to actually disseminate the MSDS's to their workers.
Rather it requires them to physically compile and maintain massive
quantities of paperwork at multi-employer job sites, such as
construction sites, or their home offices. This requirement
Page 494 U. S. 54
certainly looks like a "recordkeeping requirement" in the
plainest sense of the term. In addition, the Department of Labor
may periodically check these records for compliance with
substantive requirements,
see §§ 1910.1200(e)(4) and
(g)(11), a factor the Court emphasizes in describing which
recordkeeping requests are subject to the Act. As I see it, even
under the Court's interpretation of the Act, this portion of the
standard should be subject to OMB review.
Finally, an argument that the Court does not make, but which the
United Steelworkers do, is that
Chevron should not apply
in this case because OMB's regulations actually determine the scope
of its jurisdiction under the Act. This Court has never accepted
that argument, and in fact, as Justice SCALIA pointed out in his
lucid concurrence in
Mississippi Power & Light Co. v.
Mississippi ex rel. Moore, 487 U. S. 354,
487 U. S. 377
(1988), there are good reasons not to accept it, reasons which
Justice SCALIA has adequately set forth and which I will not repeat
here. I note, however, that
Chevron itself and several of
our cases decided since
Chevron have deferred to agencies'
determinations of matters that affect their own statutory
jurisdiction. [
Footnote 2/6]
See, e.g., Massachusetts v. Morash, 490 U.
S. 107,
490 U. S.
116-118 (1989);
K Mart Corp. v. Cartier, Inc.,
486 U. S. 281,
486 U. S.
292-293 (1988);
EEOC v. Commercial Office Products
Co., 486 U. S. 107,
486 U. S.
114-116 (1988);
NLRB v. Food & Commercial
Workers, 484 U. S. 112,
Page 494 U. S. 55
484 U. S.
123-128 (1987);
Japan Whaling Assn. v. American
Cetacean Soc., 478 U. S. 221,
478 U. S. 233
(1986);
Commodity Futures Trading Comm'n v. Schor,
478 U. S. 833,
478 U. S. 845
(1986);
Chemical Manufacturers Assn. v. Natural Resources
Defense Council, Inc., 470 U. S. 116,
470 U. S.
125-126 (1985). The application of
Chevron
principles cannot be avoided on this basis.
For the foregoing reasons, I respectfully dissent.
[
Footnote 2/1]
In
Action Alliance of Senior Citizens of Philadelphia v.
Bowen, 269 U.S.App.D.C. 463, 846 F.2d 1449 (1988), the court
rejected an argument that the Federal Reports Act of 1942, 44
U.S.C. § 3501
et seq. (1976 ed.), the PRA's predecessor,
did not cover an agency request that private parties conduct
self-evaluations which should then be made available to the public
and the agency upon request. The court stated:
"The claim is pure pettifoggery. Appellants cannot seriously
believe that, in enacting the Reports Act, Congress was concerned
solely or primarily with private parties' costs of
mailing
data to Washington; it is the recordkeeping and data-gathering that
constitute the burden. Moreover, OMB and its predecessor, the
Bureau of the Budget, have interpreted the statutory term
'collection of information' for nearly half a century to
encompass"
"[a]ny general or specific requirement for the
establishment
or maintenance of records . . . which are to be used
or be
available for use in the collection of information."
"Regulation A, Federal Reporting Services, Clearance of Plans
and Reports Forms, Title I(1)(e) (February 13, 1943). . . . Even
under the deference we owe the agency,
Chevron U.S.A., Inc. v.
Natural Resources Defense Council\[, Inc.,
467 U. S.
837,
467 U. S. 842-845 (1984)],
we doubt we could uphold a view of the Reports Act that made
physical delivery to an agency essential to the notion of
'collection of information.' Happily, we confront no such
oddity."
269 U.S.App.D.C., at 467-468, 846 F.2d at 1453-1454 (emphasis in
original). Notably, by enacting the PRA, Congress intended to
expand the scope of authority OMB and its predecessor had
been given under the Reports Act.
See Paperwork and
Redtape Reduction Act of 1979: Hearing on S. 1411 before the
Subcommittee on Federal Spending Practices and Open Government of
the Senate Committee on Governmental Affairs, 96th Cong., 1st Sess.
24-60, 119-125 (1979) (hereinafter S. 1411 Hearings) (comments of
OMB and the Comptroller General noting that the proposed
legislation would cure deficiencies in the coverage of the Federal
Reports Act); S.Rep. No. 96-930, p. 13 (1980).
[
Footnote 2/2]
For example, OMB has reviewed Environmental Protection Agency
community right-to-know disclosure requests, 52 Fed.Reg. 38344,
38364 (1987), Federal Trade Commission textile fiber products
identification disclosure and fair packaging and fair labeling
disclosure requests, 53 Fed.Reg. 5986, 5987 (1988), and Food and
Drug Administration nutrition labels. 52 Fed.Reg. 28607 (1987). In
this case, the Secretary of Labor and OMB have consistently agreed
that the hazard communication standard is subject to review under
the Act.
See 47 Fed.Reg. 12092, 12111 (1982); 48 Fed.Reg.
53280 (1983); 52 Fed.Reg. 31852, 31870 ( 1987); 53 Fed.Reg. 29822,
29826, 29849-29850 (1988). Courts should be particularly reluctant
to intervene in the regulatory process when the executive agencies
have been able to cooperate effectively.
[
Footnote 2/3]
Relevant to this case are the following definitions promulgated
by OMB as 5 CFR § 1320.7 (1989):
"(c) 'Collection of information' means the obtaining or
soliciting of information by an agency from ten or more persons by
means of identical questions, or identical reporting or
recordkeeping requirements, whether such collection of information
is mandatory, voluntary, or required to obtain a benefit. For
purposes of this definition, the 'obtaining or soliciting of
information' includes any requirement or request for persons to
obtain, maintain, retain, report,
or publicly disclose
information. In the Act, a 'collection of information
requirement' is a type of 'information collection request.' As used
in this part, a 'collection of information' refers to the act of
collecting information, to the information to be collected, to a
plan and/or an instrument calling for the collection of
information, or any of these, as appropriate."
"(1) A 'collection of information' includes the use of written
report forms, application forms, schedules, questionnaires,
reporting or recordkeeping requirements, or other similar
methods. Similar methods may include . . .
disclosure
requirements [and]
labeling requirements. . . ."
"(2) Requirements by an agency for a person to obtain or compile
information
for the purpose of disclosure to members of the
public or to the public at large, through posting, notification,
labeling, or similar disclosure requirements, constitute the
'collection of information' whenever the same requirement to obtain
or compile information would be a 'collection of information' if
the information were directly provided to the agency. The public
disclosure of information originally supplied by the Federal
government to the recipient for the purpose of disclosure to the
public is not included within this definition."
"
* * * *"
"(p) 'Recordkeeping requirement' means a requirement imposed by
an agency on persons to maintain specified records and
includes
requirements that information be maintained or retained by persons
but not necessarily provided to an agency."
"(q) 'Reporting requirement' means a requirement imposed by an
agency on persons to provide information
to another person
or to the agency. Reporting requirements may implicitly or
explicitly include related recordkeeping requirements."
(Emphasis added.)
[
Footnote 2/4]
In this same vein, § 3504, in setting forth OMB's authority and
functions in administering the Act, directs that the information
collection request clearance and other paperwork control functions
of the Office shall include "setting goals for reduction of the
burdens of Federal information collection requests." 44 U.S.C. §
3504(c)(5) (1982 ed.).
See also § 3505(1), which directs
OMB to set goals to reduce the paperwork burdens by specified
percentages, as well as § 3507(a)(1)'s requirement that agencies
take action to reduce the paperwork burden of a proposal before
submitting such proposals to OMB.
[
Footnote 2/5]
In particular,
see S. 1411 Hearings, at 61-87; H.R.Rep.
No. 96-835, pp. 18-23 (1980); S.Rep. No. 96-930, pp. 13, 39-40
(1980).
[
Footnote 2/6]
In any event, the PRA itself provides a check on OMB's ability
to expand its jurisdiction, at least with respect to independent
regulatory agencies. Section 3507(c) provides as follows:
"Any disapproval by the Director, in whole or in part, of a
proposed information collection request of an independent
regulatory agency . . . may be voided, if the agency by a majority
vote of its members overrides the Director's disapproval or
exercise of authority. The agency shall certify each override to
the Director, [and] shall explain the reasons for exercising the
override authority. Where the override concerns an information
collection request, the Director shall without further delay assign
a control number to such request, and such override shall be valid
for a period of three years."