                           Paperwork Reduction Act of 1980
The provisions of the Paperwork Reduction Act of 1980 giving the Office of Management and Budget
  authority to review and approve agency “information collection requests” do not apply to reporting
  and recordkeeping requirements contained in agency regulations which came into existence prior
  to the effective date of the 1980 Act. However, new regulations containing reporting or rec­
  ordkeeping requirem ents must be developed in accordance with the procedures set forth in 44
   U S.C . § 3504(h).
Section 3504(h) provides the exclusive procedure for OM B review and possible disapproval of
   information collection requirements contained in or specifically required by agency regulations;
   the more stringent procedures for OMB review set forth in 44 U.S C. §§ 3504(c) and 3507 apply
   only to agency information collection requests issued pursuant to or deriving from regulations.
The language and history of other provisions of the Paperwork Reduction Act, as well as its general
   schem e, support the conclusion that OM B has no authority under either § 3504(h) or § 3507 to
   review and disapprove existing agency regulations. Nonetheless, OMB is given substantial
   authority over existing regulations by other provisions of the Act, including § 3504(b).
                                                                                              June 22, 1982
       MEMORANDUM OPINION FOR THE COUNSEL TO THE
   VICE PRESIDENT AND FOR THE COUNSEL TO THE DIRECTOR,
            OFFICE OF MANAGEMENT AND BUDGET
   This responds to your request for our opinion concerning the application of the
Paperwork Reduction Act (the Act) to regulations that impose paperwork bur­
dens.1This question has arisen, you have explained, because the Department of
the Treasury has taken the position that Internal Revenue Service (IRS) regula­
tions which impose paperwork burdens are not subject to those provisions of the
Act directing the Office of Management and Budget (OMB) to review and
approve an “information collection request.” That term is defined by the Act as
covering “a written report form, application form, schedule, questionnaire,
reporting or recordkeeping requirement, or other similar method calling for the
collection of information.”2 Under the Act, OMB is directed to review and

   1The foperwork Reduction Act, Pub. L N o. 511, 96th Cong., 2d Sess (1980), 94 Stat. 2812, 44 U.S C
§§ 3501-3520, took effect on April 1, 1981 In this opinion, the words “regulation” and “rule" will be used
interchangeably. See 5 U.S C § 551(4).
   2 Section 3502(11) of the Act, 44 U S C. § 3502(11) (Supp. V 1981). Rirther citations to the Act will exclude the
additional reference to Title 44 of the 1981 Supplement to United States Code Annotated, which includes the same
section numbers as the Act itself.

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approve each “information collection request,” and to assign to each a control
number that signifies OMB approval.3 The Act provides that no person shall be
subject to any penalty for failing to maintain or to provide information pursuant
to an information collection request that has not itself been assigned the neces­
sary control number.4 In the present case, the Treasury Department argues that
the portion of any regulation which imposes a paperwork burden is not an
“information collection request” for purposes of the Act. In response, you have
argued that the portion of a regulation imposing a paperwork burden is an
“information collection request,” and therefore is subject to OMB review and
approval, and the assignment of a control number under the Act.
   In addressing this issue, our analysis will proceed in four sections. First, we
will summarize the Act’s provisions that are relevant to this dispute. Second, we
will set forth the central arguments of the Department of the Treasury, on the one
hand, and OMB, on the other hand, as advanced in several memoranda addressed
to this office.5 Third, we will set forth our own analysis of the statute and its
legislative history. Fourth, we will discuss in particular the additional arguments
advanced on behalf of OMB’s position in your memorandum of April 23, 1982.
   As we will explain in considerably more detail in the balance of this memoran­
dum, we have concluded that requirements for the maintenance and provision of
information contained in regulations that came into existence prior to the effec­
tive date of the Act are not subject to the information collection request approval
procedures contained in §§ 3504(c) and 3507 of the Act, but that new regulations
must be developed in accordance with the OMB coordination process created by
§ 3504(h). OMB is, however, given broad powers by the Act to initiate and
review proposals for changes in existing regulations and to coordinate and
improve agency information practices whether contained in regulations or
elsewhere. The IRS is subject to OMB’s authority in this regard to the same extent
as other Executive Branch agencies. The Paperwork Reduction Act is a broad
charter for OMB to manage, coordinate and improve federal information prac­
tices limited, of course, by existing agency authority over the substantive content
of policies and programs.
                                      I. Summary of the Act
  The Paperwork Reduction Act of 1980 supplanted the Federal Reports Act of
1942.6The purpose of the 1942 statute was to minimize the burdens of furnishing
“information” that were placed by the federal government on business enterprises
and others.7 “Information” was defined in the 1942 statute as “facts obtained or
solicited by the use of written report forms, application forms, schedules,
   3 See §§ 3504(c)(3)(A) (the OMB Director’s information collection request clearance functions "shall include
  . . ensuring that all information collection requests . display a control number”) & 3507(f)
   4 See § 3512
   5 For the sake of convenience, we will refer to the position expressed in your memoranda as “OMB's position,"
for those memoranda are concerned pnmarily with the powers that may be exercised by OMB under the Act
   6 The latter statute was 56 Stat 1078, 44 U S C §§ 3501-3511 (1976)
   1 See 44 U.S C § 3501 (1976).

                                                     389
questionnaires, or other similar methods calling either for answers to identical
questions from ten or more persons other than agencies . . . of the United States
or for answers to questions from agencies . . . of the United States which are to
be used for statistical compilations of general public interest.” (Emphasis
added.)8
   The Paperwork Reduction Act is described in the report of the Senate Commit­
tee on Governmental Affairs as a “rewrite” of the 1942 statute in response to
renewed concerns in the late 1970s about the burdens imposed on the private
sector by the government in its collection of information.9 One of the specific
changes made by the 1980 Act is its elimination of an exemption for the IRS—
and certain other agencies—that had existed under the Federal Reports Act.10
This is one of the chief reasons why the issue before us has arisen at this time. The
1980 Act’s general purposes are to minimize “the Federal paperwork burden for
individuals, small businesses, State and local governments, and other persons,”
minimize the cost to the federal government of collecting, maintaining, using and
disseminating information and “make uniform Federal information policies and
practices.” § 3501. The term “burden” is defined as “the time, effort, or financial
resources expended by persons to provide information to a Federal agency.”11
   Many of the 1980 Act’s key provisions apply to an “information collection
request.” The definition of an “information collection request” covers not only
the items covered by the 1942 statute, such as a written report form, application
form, schedule, questionnaire, or other similar method for collecting informa­
tion, but also a “reporting or recordkeeping requirement.” Thus, as noted earlier,
the 1980 statute defines an “information collection request” as “a written report
form, application form, schedule, questionnaire, reporting or recordkeeping
requirement, or other similar method calling for the collection of information.”
(Emphasis added.)12The Act defines the “collection of information” as the use of
any of the foregoing methods to obtain facts or opinions in response to “identical
questions posed to, or identical reporting or recordkeeping requirements im­
posed on, ten or more persons, other than agencies . . . of the United States” or
“answers to questions posed to agencies. . . of the United States which are to be
used for general statistical purposes.” (Emphasis added.)13 A “recordkeeping
requirement” is defined as “a requirement imposed by an agency on persons to
maintain specified records.”14The term “reporting requirement” is not separately
defined.
   In addition to including a “reporting or recordkeeping requirement” in the
definition of an “information collection request,” the Paperwork Reduction Act
   “ 44 U.S C. § 3502 (1976) See H R Rep No 2722, 77th Cong., 2d Sess (1942), S Rep. No 1651, 77th
C o n g .,2d Sess (1942); 88 Cong. Rec 9165(1942). See also Emerson Electric Co v Schlesinger, 609 F2d 898,
905 (8th Cir. 1979) (the “two-fold purpose" of the Federal Reports Act was to “eliminate unnecessary duplication of
effort by federal agencies in collecting information and to reduce the paperwork burden on persons supplying the
information"), Shell Oil Co v Department o f Energy, A ll F Supp. 413, 419-20 (D Del. 1979)
   9 S. Rep No 930, 96th Cong , 2d Sess 13 (1980)
   10 See 44 U.S C § 3507 (1976)
   11 Section 3502(3)
   12 Section 3502(11).
   13 Section 3502(4).
   14 Section 3502(16)

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strengthened considerably the role of OMB in overseeing agencies’ information
collection activities.15 Under § 3504(a), the OMB director “shall develop and
implement Federal information policies, principles, standards, and guidelines
and shall provide direction and oversee the review and approval of information
collection requests” and “the reduction of the paperwork burden.” The general
information policy functions of the Director are set forth in § 3504(b). These
functions include, inter alia, “developing and implementing uniform and con­
sistent information resources management policies and overseeing the develop­
ment of information management principles” (§ 3504(b)(1)), as well as “ initia­
ting and reviewing proposals for changes in legislation, regulations, and agency
procedures to improve information practices . . (§ 3504(b)(2)) (emphasis
added). Also, the Director is charged with “coordinating, through the review of
budget proposals and as otherwise provided in this section [§ 3504], agency
information practices” (§ 3504(b)(3)) and “evaluating agency information man­
agement practices to determine their adequacy and efficiency, and to determine
compliance of such practices with the policies, principles, standards, and
guidelines promulgated by the Director” (§ 3504(b)(5)).
   Under § 3504(d), the Director is assigned certain statistical policy and coordi­
nation functions, including the development of “long range plans for the im­
proved performance of Federal statistical activities and programs,” “developing
and implementing Government-wide policies, principles, standards, and
guidelines concerning statistical collection procedures and methods” and
“evaluating statistical program performance and agency compliance with Gov­
ernment-wide policies, principles, standards, and guidelines.” Section 3504(e)
assigns to the Director broad records management functions, which include
promoting the coordination of records management with the information pol­
icies, principles and guidelines established by OMB under this Act. Section
3504(f) assigns to the Director certain privacy functions, which involve the
development and implementation of policies and guidelines regarding informa­
tion disclosure and confidentiality in compliance with the Privacy Act, 5 U.S.C.
§ 552a. Section 3504(g) assigns to the Director functions involving automatic
data processing and telecommunications, including the development of federal
policies and guidelines to govern the federal activities in these areas. Taken as a
whole, this array of explicit powers granted to OMB under § 3504 is a formidable
expression of Congress’ intent to give OMB the tools necessary to act as the
central authority in the oversight of the federal government’s information man­
agement processes.
   Of particular importance to the issues considered in this opinion are the
authorities granted the OMB Director under §§ 3504(c) and 3507, including,
inter alia, the power to review and approve “information collection requests
proposed by agencies” under § 3504(c)(1), to determine whether the collection
of information is “necessary for the proper performance of the functions of the
agency” under § 3504(c)(2), and to ensure that all information collection
 15 See § 3504

                                       391
requests, among other things, “display a control number” assigned to them by
OMB under §§ 3504(c)(3)(A) and 3507. In addition, the OMB Director was
required, upon enactment of the statute, to “set a goal to reduce the then existing
burden of Federal collections of information by 15 per centum by October 1,
 1982,” and “for the year following, [to] set a goal to reduce the burden which
existed upon enactment by an additional 10 per centum. . . .”16
   The Act’s “control number” requirement in §§ 3504(c)(3)(A) and 3507 as­
sumes special significance in light of two additional provisions. Under § 3507(f),
an agency “shall not engage in a collection of information without obtaining from
the Director a control number to be displayed upon the information collection
request.” Also, under § 3512, “no person shall be subject to any penalty for
failing to maintain or provide information to any agency if the information
collection request involved was made after December 31, 1981, and does not
display a current control number assigned by the Director, or fails to state that
such request is not subject” to the Act.
   The statute specifically directs that “[e]ach agency shall be responsible fo r. . .
complying with the information policies, principles, standards, and guidelines
prescribed by the Director.”17More particularly, the Act requires that an “agency
shall not conduct or sponsor the collection of information unless, in advance of
the adoption or revision of the request for collection of such information,” the
agency has, inter alia, “submitted to the Director [of OMB] the proposed
information collection request [and] copies of pertinent regulations and other
related materials” and the Director “has approved the proposed information
collection request, or the period for review of information collection requests by
the Director provided under subsection (b) [60 days, with a possible additional 30
days] has elapsed.”18
   In addition to these provisions pertaining to an “information collection re­
quest” as defined in the Act, there is a provision, § 3504(h), dealing specifically
with regulations. Since the relationship between § 3504(h) and the procedures
set forth in §§ 3504(c) and 3507 regarding an “information collection request” is
the major issue in the present dispute, we will explain the requirements of
§ 3504(h) in some detail.
   Each agency is directed to forward to the OMB Director a copy of “any
proposed rule which contains a collection cf information requirement” as soon as
practicable, and no later than the publication of a notice of proposed rulemaking
in the Federal Register. (Emphasis added.)19 Within 60 days after the notice of
proposed rulemaking is published in the Federal Register, the OMB Director
“may file public comments pursuant to the standards set forth in section 3508 on
the collection cf information requirement contained in the proposed rule.”
(Emphasis added.)20 When a final rule is published, “the agency shall explain
   16 Section 3505(1)
   17 Section 3506(a).
   18 Sections 3507(a)(2) & (3)
   19 Section 3504(h)( 1)
   20 Section 3504(h)(2). Section 3508 provides that "[bjefore approving a proposed information collection request,
the Director shall determine whether the collection of information by an agency is necessary for the proper
performance of the functions of the agency, including whether the information will have practical utility . . . ”

                                                       392
how any collection cf information requirement” contained therein responds to
any comments made by the Director or the public, or explain why the agency
rejected those comments. (Emphasis added.)21
   The OMB Director is not authorized to disapprove any collection of informa­
tion requirement contained in an agency rule if he received notice of the rule and
if he failed to comment on it within 60 days of publication of the notice of
proposed rulemaking.22 However, “[n]othing in this section” may be read as
barring the Director, in his discretion:
           (A) from disapproving any information collection request
        which was not specifically required by an agency rule;
           (B) from disapproving any collection cf information require­
        ment contained in an agency rule, if the agency failed to comply
        with the requirements of paragraph (1) of this subsection; or
           (C) from disapproving any collection of information require­
        ment contained in a final agency rule, if the Director finds within
        sixty days of the publication of the final rule that the agency’s
        response to his comments filed pursuant to paragraph (2) of this
        subsection was unreasonable; [or]
           (D) from disapproving any collection cf information require­
        ment where the Director determines that the agency has substan­
        tially modified in the final rule the collection of information
        requirement contained in the proposed rule where the agency has
        not given the Director the information required in paragraph (1),
        with respect to the modified collection cf information require­
        ment, at least sixty days before the issuance of the final rule.
        (Emphasis added.)23
   The subsection requires the OMB Director to “make publicly available any
decision to disapprove a collection of information requirement contained in an
agency rule, together with the reasons for such decision.”24 Furthermore,
§ 3504(h)(8) states that the subsection “shall apply only when an agency pub­
lishes a notice of proposed rulemaking and requests public comments.” Al­
though, as noted earlier, the phrase “information collection request” is defined in
§ 3502(11), the recurring phrase in § 3504(h), “collection of information re­
quirement,” is not separately defined in the statute.
      II. Arguments Advanced by the Treasury Department and OMB
  We have received a number of memoranda setting forth both the Treasury
Department’s and OMB’s positions regarding the Paperwork Reduction Act’s

  21 Section 3504(h)(3)
  22 See § 3504(h)(4).
  23 Section 3504(h)(5).
  24 Section 3504(h)(6)

                                       393
application to regulations that impose paperwork burdens.25 In general, the
Treasury Department’s view is that the only provision in the Act setting forth
procedures for OMB review and possible disapproval of informational aspects of
regulations is § 3504(h). In contrast, OMB’s position is that not only § 3504(h),
but also provisions dealing with an “information collection request,” including
§ 3507, set forth procedures for OMB review of regulations that impose paper­
work burdens. We will summarize in turn each of these opposing interpretations.
A . Treasury Department Position
   The Treasury Department argues that the only provision in the Act setting forth
specific procedures for OMB review and possible disapproval of aspects of
regulations imposing paperwork burdens is § 3504(h).26 If Treasury is correct in
this regard, the exclusive, specific procedural mechanism establishing OMB’s
responsibilities for the review of regulations would be that created by § 3504(h),
as opposed to the mechanism for OMB’s review of forms and questionnaires
established by §§ 3507 and 3504(c).27
   The Treasury Department advances three major arguments on behalf of its
interpretation. The first argument rests on the language and purposes of
§ 3504(h) itself. Treasury notes that § 3504(h) establishes a detailed procedural
scheme for OMB review of collection of information requirements in regula­
tions, and that no other provision in the statute deals in such a way with
regulations. Treasury contends that this fact supports the inference that Congress
intended § 3504(h) to provide the exclusive set of specified procedures for OMB
   25 We have received the following memoranda from Treasury: (1) Memorandum from Cora Beebe, Assistant
Secretary, Department of the Treasury, (o Christopher DeMuth, Administrator for Information and Regulatory
Affairs, OM B, dated Dec. 24, 1981, (2) Memorandum from Kenneth Gideon. Chief Counsel, IRS, to Cora Beebe,
dated Dec 23, 1981, (3) Memorandum from Arnold Intrater, Assistant General Counsel, Treasury Department, to
Cora Beebe, dated Dec. 29, 1981, (4) Letter to Assistant Attorney General Theodore B. Olson from Peter Wallison,
General Counsel, Treasury Department, dated Feb 8, 1982; (5) Memorandum to Assistant Attorney General
Theodore B Olson from Peter Wallison, General Counsel, Treasury Department, also dated Feb. 8, 1982, and (6)
undated staff memorandum, received in March 1982, responding to certain questions we asked at a meeting with
Treasury representatives on March 9, 1982.
   We have received the following memoranda setting forth OM B’s position (1) Memorandum from C. Boyden
Gray, Counsel to the Vice President, and M ichael J. Horowitz, Counsel to the Director, Office of Management and
Budget, to Assistant Attorney General Theodore B Olson, dated Jan. 15, 1982, containing your opinion request,
(2) a draft staff memorandum dated March 1, 1982, responding to Treasury’s letter and memorandum of Feb 8,
 1982; and (3) Memorandum from C Boyden Gray, Counsel to the Vice President, and Michael J. Horowitz,
Counsel to the Director, Office of Management and Budget, to Assistant Attorney General Theodore B. Olson,
dated April 23, 1982, responding to a memorandum from Assistant Attorney General Olson to Robert Bedell,
Deputy General Counsel, OM B, dated Apnl 5, 1982, which identified certain issues raised in various submissions
this office had received
   In addition, we have received a memorandum generally supporting the Treasury position from Eric Fygi, Deputy
General Counsel, Department of Energy, dated Mar. 26, 1982.
   26 Section 3504(b)(2) provides that the “general information policy functions” of the OMB Director shall include
“initiating and reviewing proposals for changes in legislation, regulations, and agency procedures to improve
information practices . . . (Emphasis added.) Thus, Treasury could not— and does not— argue that § 3504(h) is
the only provision dealing at all with regulations. Rather, Treasury contends that the only specific procedures
governing OMB review and possible disapproval of informational aspects of regulations under the Act are those set
forth in § 3504(h). As discussed earlier, § 3504(b) gives OMB rather broad review, oversight, and coordination
powers with regard to regulations.
   27 There are a number of differences in the two sets of procedures Section 3504(h), for instance, does not provide
for the assignment of control numbers to regulations Section 3507, along with § 3504(c), does require OMB to
review and approve information collection requests and to ensure that such requests display control numbers.

                                                        394
review and possible disapproval of informational aspects of regulations under the
Act. This inference is also said to be supported by the notion that if § 3504(h)
were not the exclusive set of specified procedures for OMB review of regulations,
but that instead §§ 3504(c) and 3507 also could apply to regulations imposing
paperwork burdens, § 3504(h) would be rendered essentially superfluous.
   In support of this conclusion, Treasury relies in addition on the statement by
Senator Kennedy when he introduced on the Senate floor an amendment to
§ 3504(h) that ultimately was enacted. Under § 3504(h) of the bill as reported out
of the Senate Committee on Governmental Affairs, OMB was directed to ensure
that agencies, in developing rules and regulations, used efficient methods for
collecting information.28 Senator Kennedy expressed concern about § 3504(h) as
reported out of the Committee because it “ would permit the Director of OMB to
overturn a rule which was adopted by an agency without providing any pro­
cedural rights for the people affected by the rule or for the agency that promul­
gated the rule.” 29 Accordingly, Senator Kennedy introduced an amendment to
§ 3504(h) containing the detailed set of procedures that we summarized in the
previous section. In view of this history, the Treasury Department contends that if
a provision of the Act which lacks the procedural formalities set forth in
§ 3504(h)— namely, § 3507—were available for use as the mechanism for OMB
review and potential disapproval of informational aspects of regulations, the
fundamental purpose of the amendment to § 3504(h) would be frustrated.
   Treasury’s second major contention is that the statute’s provisions other than
§ 3504(h) support its reading of § 3504(h). Section 3507(a)(2)(A) provides that
no agency shall conduct or sponsor the collection of information unless “ the
agency . . . has submitted to the Director [of OMB] the proposed information
collection request, copies of pertinent regulations and other related materials as
the Director may specify.” (Emphasis added.) Treasury suggests that this lan­
guage establishes a clear distinction between an “ information collection re­
quest,” on the one hand, and “ related materials” such as “pertinent regula­
tions,” on the other hand. This distinction is said to buttress the idea that
regulations should be treated as entirely separate from an “ information collection
request” subject to review under § 3507.
   Furthermore, Treasury’s argument depends on a comparison of the first and
last sentences of § 3507(c), as follows:
           Any disapproval by the Director, in whole or in part, cf a
        proposed information collection request cf an independent reg­
        ulatory agency, or an exercise of authority under section 3504(h)
        or 3509 concerning such an agency, may be voided, if the agency
        by a majority vote cf its members overrides the Director’s disap­
        proval or exercise of authority. The agency shall certify each
        override to the Director, shall explain the reasons for exercising
   28 See S Rep No 930. 96lh Cong., 2d Sess. 88 (1980).
   29 126Cong.Rec 30178 (1980). The language of § 3504(h) as contained in the predecessor Senate bill is quoted
at pages 18 and 19 infra.

                                                    395
         the override authority. Where the override concerns an informa­
         tion collection request, the Director shall without further delay
         assign a control number to such request, and such override shall
         be valid for a period cf three years. (Emphasis added.)
Section 3507(c) was included in the Act to provide a means by which so-called
independent agencies could preserve a measure of their “ independence” by
overriding OMB disapprovals of their actions under the Act.30 In the first
sentence of § 3507(c), reference is made to a “ disapproval . . . of a proposed
information collection request . . ., or an exercise of authority under section
3504(h) or 3509. . . . ” (Emphasis added.)31 In the last sentence, only a disap­
proval of an information collection request is referred to: "Where the override
concerns an information collection request, the Director shall without further
delay assign a control number to such request. . . .” (Emphasis added.) The
omission in the last sentence of any reference to exercises of authority under
§ 3504(h) or § 3509 is viewed by Treasury as supporting its position that
Congress never intended that control numbers should be assigned to regulations
under § 3504(h), or, indeed, § 3509. Under this interpretation, the last sentence
of § 3507(c) is a purposeful reflection of Congress’ intent to keep entirely
separate the procedures governing regulations set forth in § 3504(h), on the one
hand, and the procedures governing an “ information collection request” set
forth in § 3507 (including the control number requirement), on the other hand.32
   Treasury’s third main argument rests on certain passages in the legislative
history. For instance, Treasury finds support in the explanation of an “ informa­
tion collection request” in the Senate Committee report, which states that the
term “refers to the actual instrument used for a collection of information.”33
Treasury argues that a form or questionnaire issued pursuant to a regulation could
be an “ actual instrument” for the collection of information, but that it is an
unduly strained use of words to say that a portion of a regulation itself could be
such an “ actual instrument.”
   10 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
(1980)
   31 Section 3509 provides that the OMB Director “ may designate a central collection agency to obtain information
for two or more agencies if the Director determines that the needs of such agencies for information will be
adequately served by a single collection agency, and such sharing of data is not inconsistent with any applicable
law”
   32 Treasury also argues that certain language in § 3504(h) supports its position For instance, Treasury notes that
§ 3504(h)(2) slates that within 60 days after publication in the Federal Register of a notice of proposed rulemaking,
the OMB Director “ may file public comments pursuant to the standards set forth in section 3508 on the collection of
information requirement contained in the proposed rule ” The standards set forth in § 3508 apply when the Director
is deciding whether to approve a proposed “ information collection request ” Treasury argues that if a collection of
information requirement for purposes of § 3504(h) were to be treated in the same manner as an information
collection request under § 3507, as OMB suggests, it would have been unnecessary for Congress to cross-reference
§ 3508 in § 3504(h)(2).
   In addition, Treasury notes that § 3504(h)(5)(A) specifically provides that nothing in § 3504(h) prevents the
OMB Director “ from disapproving any information collection request which was not specifically required by an
agency rule       ” Treasury suggests that by including this provision in § 3504(h), Congress reaffirmed that the
disapproval of an “ information collection request” is an entirely separate matter from the review of a “ collection of
information requirement" under § 3504(h)
   33 S Rep No 930, 96th Cong , 2d Sess. 39 (1980)

                                                        396
   In addition, Treasury relies on a statement by Congressman Horton during
debate on the bill shortly before it passed the House of Representatives. Con­
gressman Horton’s comments focused on § 3504(h), as follows:
        OMB's authority to review and comment on portions cf proposed
        regulations which require the collection of information is supple­
        mental to that agency's authority to approve or reject specific
        information collection requests. No matter what its action may
        have been with regard to a proposed regulation, OMB may freely
        approve or reject any specific collection request deriving from
        such a regulation. (Emphasis added.)34
Treasury stresses that Congressman Horton apparently distinguished between
OMB’s authority “ to review and comment on portions of proposed regulations”
under § 3504(h), on the one hand, and OMB’s authority “to approve or reject
specific information collection requests,” on the other hand (emphasis added).
This distinction is said to support Treasury’s basic position that provisions
authorizing OMB to “ approve or reject” an information collection request,
including § 3507, are necessarily separate from and should not be confused with
the procedures forOMB “ review and comment” on regulations under § 3504(h).
B. OMB Position
   The position of the Office of Management and Budget and the Office of the
Vice President, as reflected in your memoranda to us, is that Treasury wrongly
interprets the Act when it concludes that § 3504(h) is the only provision setting
forth specific procedures governing OMB review of regulations imposing paper­
work burdens.
   A central argument supporting OMB’s position is that the statute’s definition of
an “ information collection request” is broad enough to encompass portions of
regulations that impose reporting or recordkeeping requirements. The definition
is as follows:
        . . . a written report form, application form, schedule, question­
        naire, reporting or recordkeeping requirement, or other similar
        method calling for the collection of information. (Emphasis
        added.)35
OMB argues that a regulation which contains a “reporting or recordkeeping
requirement” by definition contains an “ information collection request” subject
to the procedures of § 3507.36
  34 126 Cong Rec 31228 (1980).
  33 Section 3502(11)
  36 Assuming arguendo that a regulation could contain an “ information collection request” as defined in
§ 3502(11) of the Act, a question would arise whether the entire regulation should be deemed such a “ request,” or
whether only some segregable portion of a regulation containing the request, if any, should be so viewed For
purposes of this opinion, we will speak about the possibility of a regulation “containing" an “ information collection
request” (when describing OMB's position) without deciding this additional question, which we need not decide for
purposes of our analysis

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   OMB buttresses its position by referring to a statement in the Senate Commit­
tee report that “ [t]he imposition of a federal paperwork burden does not depend
on how the questions are asked of the respondent, but rather on the fact the
Federal government has asked or sponsored the asking of questions.” 37 This
statement is said to support the view that the “ actual instrument” used for the
collection of information need not be a form, but could be an oral comment, a
regulation, or any other means of communicating the request.
   Furthermore, OMB contends that an interpretation of the Act which does not
treat reporting or recordkeeping requirements in regulations as information
collection requests subject to § 3507 would frustrate the Act’s underlying pur­
pose, namely, the reduction of the paperwork burden imposed by the federal
government. One of the ways the Paperwork Reduction Act sought to achieve this
purpose was to eliminate the exemption that had applied to the IRS and certain
other entities under the Federal Reports Act.38 OMB argues that the elimination
of the IRS exemption is inconsistent with Treasury’s view that IRS regulations
may be reviewed by OMB only under § 3504(h).
   In support of its view that all regulations containing reporting or recordkeeping
requirements must be assigned control numbers under § 3507, OMB refers to
passages in the legislative history stating that each “information collection
request” should be assigned a control number. For example, OMB refers to a
statement in the Senate Committee report that “ no agency shall engage in a
collection of information without obtaining from the Director a control number to
be displayed upon the information collection request.” (Emphasis added.)39
Another passage in the report relied upon by OMB states:
         The Director’s responsibility to ensure all collections of informa­
         tion display a control number corresponds to the requirement of
         section 3507(0 which states an agency shall not engage in a
         collection of information without obtaining a control number
        from the Director. (Emphasis added.)40
   In response to Treasury’s discussion of the Senate’s amendment to § 3504(h),
OMB suggests that the amendment’s purposes can be achieved under its inter­
pretation of the Act. OMB argues that all that § 3504(h) requires is that once new
rulemaking commences, the procedures of § 3504(h) are to be followed. This is
consistent, OMB suggests, with its view that under § 3507 OMB can review and
approve (or not approve) information collection requests contained in regulations
that already were in existence when the Act became effective. If OMB disap­
proves such a request in such a regulation, under OMB’s view the agency has two
choices: it could either revise the information collection request in accordance
   37 S. Rep. No 930, 96th Cong., 2d Sess 39 (1980). As we discuss later in this memorandum, this statement is
taken somewhat out of context by OMB In context, it appears to relate exclusively to the distinction between oral
and written requests for information
   38 See S. Rep. No 930, 96th Cong , 2d Sess. 13 (1980); H R. Rep. No. 835, 96th Cong., 2d Sess. 19 (1980).
   39 S Rep. No 930, 96th Cong , 2d Sess 48 (1980).
  40 Id at 42

                                                      398
with OMB’s concerns, assuming that this could be done without altering the
underlying regulation, or initiate new rulemaking to change the regulation in
order to accommodate OMB’s position.41 Under OMB’s interpretation, only the
latter action would trigger the procedures of § 3504(h).
   In addition, OMB disputes the Treasury Department’s reading of the last
sentence of § 3507(c), which provides that “ [w]here 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.” As noted earlier, the first sentence of the subsection refers to OMB
disapprovals of a proposed information collection request or an exercise of
OMB’s authority under §§ 3504(h) or 3509. OMB argues that the introductory
phrase in the last sentence, “ [w]here the override concerns an information
collection request,” implicitly distinguishes between OMB disapproval of an
information collection request— whether or not subject to §§ 3504(h )—and an
exercise of authority under § 3509, which pertains to the designation of a central
collection agency and thus has no bearing on the clearance of information
requests. In short, OMB’s position is that § 3507(c) lends no support to Trea­
sury’s view that the Act distinguishes between the review of information collec­
tion requests (and the assignment of control numbers thereto), on the one hand,
and exercises of authority under § 3504(h), on the other hand.42
         III. Analysis of the Act’s Language and Legislative History
   Before developing our own analysis of the statute, it appears necessary to
clarify precisely the issue before us. As we understand the fundamental dispute
presented to us for resolution, Treasury and OMB are not in disagreement about
the status of forms, schedules, or questionnaires which are issued pursuant to
statutes or regulations and which impose paperwork burdens. Both appear to be
in agreement—and we concur—that such forms, schedules, or questionnaires in
general are “ information collection requests” under the Act subject, among other
things, to § 3507.43 Furthermore, Treasury does not contend that regulations
imposing paperwork burdens are not subject to any of the Act’s requirements.
Rather, Treasury argues, as stated above, that regulations are subject to the OMB
review-and-possible-disapproval mechanism stated in the Act in § 3504(h), not
to the mechanism set forth in §§ 3504(c) and 3507. That is the specific issue we
must address.
   In analyzing this issue, we will turn first to § 3504(h) and its legislative
history. We then will discuss other provisions of the statute. Finally, we will
examine the Act’s general scheme.
   41 See Memorandum from C Boyden Gray and Michael Horowitz, entitled “ Paperwork Reduction A ct," at page
4 (Jan. 15, 1982) This memorandum also argues that regulations proposed and promulgated after the Act’s effective
date ultimately are to be assigned control numbers under § 3507 after the regulations have been promulgated in a
manner consistent with § 3504(h).
   42 The arguments set forth in the memorandum of C Boyden Gray and Michael Horowitz dated April 23, 1982,
will be discussed in greater detail in section IV below.
   43 The ultimate decision, of course, whether or not a particular form is an “ information collection request” will
turn on the facts of each case as analyzed in light of the Act’s provisions.

                                                       399
A. Section 3504(h)
   (1) The House and Senate bills. A full understanding of § 3504(h) requires
knowledge of the provision’s history. Both of the bills reported out of the
responsible committees of the House of Representatives and the Senate contained
a § 3504(h), which in both cases granted OMB broad powers to review regula­
tions imposing paperwork burdens. Section 3504(h) of the House bill, H.R.
6410, provided:
        (h) Other functions of the Director shall include ensuring that, in
            developing rules and regulations, agencies—
            (1) utilize efficient methods to collect, use, and disseminate
                 necessary information;
            (2) provide an early and substantial opportunity for the pub­
                 lic to comment on proposed means of collecting informa­
                 tion related to such rules and regulations; and
            (3) make assessments of the consequences of alternative
                 methods of implementing the statutory goals of such
                 rules and regulations (including alternative methods of
                 collecting information). (Emphasis added.)44
Section 3504(h) of the Senate bill, S. 1411, provided:
        (h) The Director shall, subject to section 3507(c) of this chap­
            ter,45 ensure that, in developing rules and regulations, agen­
            cies—
            (1) utilize efficient means in the collection, use, and dis­
                 semination of information;
            (2) provide an early and meaningful opportunity for the
                 public to comment on proposed means for collection of
                 information; and
            (3) assess the consequences of alternative means for the
                 collection, use, and dissemination of information. (Em­
                 phasis added.)46
   The meaning of these predecessor provisions may be confirmed by reference to
the relevant committee reports. Both reports explained that § 3504(h) in the
respective bills constituted a general authorization for OMB to assure that
agencies, in developing regulations, minimized the paperwork burden imposed
by the federal government. As the report of the House Committee on Govern­
ment Operations put it:
           Under H.R. 6410, the OMB Director is to ensure that the
        agencies, in developing rules and regulations, use efficient meth-
   44 H R Rep. No. 835. 96th Cong . 2d Sess 44 (1980).
       Section 3507(c). which gives independent regulatory agencies the power to override OMB disapprovals under
the Act. is quoted above
   4,1 S. Rep No. 930. 96th C ong., 2d Sess. 88 (1980).

                                                     400
       ods to collect, use, and disseminate the necessary information.
       The Committee views this function as similar to the present OMB
       function of overseeing agency activities under Executive Order
       12044 [which was the Carter Administration Executive Order
       dealing with regulatory reform].47
          A question was raised during the hearings as to whether the
       bill’s language meant the OMB office was to have a regulatory
       reform function. Regulatory reform is a separate issue from the
      function assigned by H .R. 6410. Under the bill, OMB is assigned
       the responsibility for reviewing, [sic] reporting and recordkeep­
       ing requirements imposed on the public by regulations. Regulato­
       ry reform, on the other hand, deals with major modifications in
       agency responsibilities. The Committee intends that OMB con­
       tinue its effort in overseeing the information aspects of Govern­
       ment regulations. However, the assignment cf regulatory reform
       to the Office of Federal Information Policy would dilute the
       information functions assigned under this bill. (Emphasis
       added.)48
As the report of the Senate Committee on Governmental Affairs explained:
          Section 3504(h) of the bill mandates the Director to ensure that
       in developing rules and regulations agencies take steps to mini­
       mize the information burden of regulations. The Committee
       views this function as similar to the present OMB function to
   47 Executive Order No. 12044, 43 Fed Reg. 12661 (1978), entitled Improving Government Regulations,
contained a number of provisions calling upon agency heads to improve the analysis underlying new regulations,
particularly regulations that met the order’s criteria of “ significant” regulations in economic or other terms (§ 2(e))
For instance, a regulatory analysis was required for significant regulations Such an analysis was to include a careful
examination of possible alternatives to the approach ultimately proposed by the agency and a justification of the
choice that was made (§§ 2 & 3). In addition, the order required agencies periodically lo review their existing
regulations to determine whether they were achieving the order’s goals, which included, among other things,
minimizing compliance costs, paperwork and other burdens on the public (§§ 4 & 1(e)) Section 5 gave general
powers of oversight of the order’s provisions to OMB Sections 5(a) and 5(b) required agencies to prepare reports for
implementing the order and to submit the reports to OMB for review and approval. Section 5(c) provided that OMB
“ shall assure the effective implementation of this Order." Accordingly, Executive Order No 12044 required
agencies to review new and existing regulations in terms of such goals as minimizing paperwork and other burdens
on the public, and it assigned to OMB general authonty to assure the achievement of these goals The Order did not
set forth specific procedures by which OMB was to conduct its oversight activities.
   48 H.R.Rep. No 835,96thCong , 2d Sess. 9 (1980) A later passage in the House Committee report underscored
that the bill was intended to cover regulations imposing paperwork burdens This point was made in the context of a
discussion of the bill’s definition of the “ collection of information," which included a reference to a “ reporting and
recordkeeping requirement.” The report noted that the Securities and Exchange Commission had strongly
recommended that the bill “ be amended to narrow the definition of ‘collection of information’ to exclude reporting
required in connection with statutonly authorized [sic] regulatory, enforcement, or oversight efforts ” The
Committee agreed with the SEC about the close relationship between policymaking and information management
issues, but added that regulatory agencies in the Executive Branch, such as the Environmental Protection Agency,
“ have been able to justify to OMB their need for information used to establish policy or for other purposes.” The
Committee concluded that the independent regulatory agencies “ should also be capable of doing so.” The
Committee confirmed that its broad definition of a “ collection of information” was intended to clarify the term ’s
coverage “to force SEC and any others who might apply a restrictive interpretation to comply with statutory
information collection clearance requirements. The Committee fully expects [the] SEC to comply with the ‘more
extensive’ definition of collection of information as contained in H R 6410 ” Id at 23

                                                         401
         oversee agency activities under Executive Order 12044.49 The
         importance of this linkage between OM B’s existing responsibility
         for overseeing the regulatory process with the closely related
         inform ation management functions assigned by the bill was
         stressed by the Comptroller General in his comments to the
         Committee[:]
            This relationship between the regulatory process and infor­
            mation management is reflected in OM B’s existing Office of
            Regulatory and Information Policy. We believe this com­
            bination of functions has worked well. The p rin cip a l areas o f
            grow th in Federal p a p erw o rk burdens are a sso cia ted with
            new regulations. Therefore, it seems appropriate to retain
            the existing link between the functions for controlling both
            regulatory and paperwork burdens.
         The Committee intends that the Director of OMB continue efforts
         to oversee the information management and burden aspects of
         government regulations. This em phasis has great prom ise fo r
         m inim izing the explosion c f p aperw ork dem ands on the pu blic
         becau se new regulations are causing the greatest growth in infor­
         m ation requirem ents. However, the C om m ittee does not intend
         that ‘regu latory reform’ issues which go beyond the scope c f
         inform ation m anagem ent an d burden b e assign ed to the office by
         the D irector. Recent initiatives such as the trucking and airline
         deregulations are examples of regulatory reform issues whose
         assignment to the Office would dilute the information function
         assigned by this bill. (Emphasis added.)50
Accordingly, both the House and the Senate Committees confirmed that
§ 3504(h) in the House and Senate bills was designed to ensure that agencies, in
developin g regulations, minimized the paperwork burden associated with the
regulations. Although OMB’s function under § 3504(h) was acknowledged to
have some similarities with the oversight role performed during the Carter
Administration under Executive Order No. 12044, it was sharply distinguished
by both Committees from general “ regulatory reform” activities. It is notewor­
thy that the Senate Committee report specifically referred to the burdens imposed
by “ new” regulations as the principal problem to be addressed.
   (2) Debate in the Senate and House: the amendment of § 3504(h). If § 3504(h)
had been enacted as it was reported out of the Senate and House Committees, it
not only would have authorized OMB to review the development of agency rules
in terms of paperwork considerations, but also would have done so without
specifying in any detail the procedural steps to be taken in the course of such
review. However, § 3504(h) was significantly amended on the Senate floor on
November 19, 1980. Senator Kennedy provided the following statement of

 49 For a description of Executive Order N o. 12044, see note 47, supra
 50 S. Rep No 930, 96th C ong., 2d Sess. 8 -9 (1980); see also id. at 15.


                                                  402
reasons for his amendment, which passed the Senate in the form in which he
proposed it and finally was enacted:

         A s reported out c f the Governm ental Affairs C om m ittee, the
       legislation raises som e serious concerns about the role o f the
       Office o f M anagem ent an d B udget (OM B) in overseeing the
       information collection activities c f Federal agencies. While I
       certainly support strong executive management of the Federal
       regulatory system, this management objective should be tem­
       pered by other legitimate public policy concerns. This legislation
      would perm it the D irector o f OMB to overturn a rule which was
      adopted by an agen cy without providing any p rocedu ral rights fo r
      the peo p le affected b y the rule o r f o r the agency that prom u lgated
      the rule. Thus, even if any agency has complied with all the
       appropriate procedural requirements for public notice and com­
       ment, and has spent years compiling an adequate agency record,
       this legislation would permit OMB to overturn that agency deci­
       sion without even requiring OMB to justify its decision publicly.
      This violates basic notions o f fairn ess upon which the Adm in­
      istrative Procedure A ct is based, as w ell a s concepts c f due
      p rocess em bodied in the U .S. Constitution.
         Mr. President, I have proposed several amendments, accepted
       by the Governmental Affairs Committee, which deal with this,
       and other concerns. . . . Most importantly, / have spon sored an
       am endm ent which lim its the authority cfO M B to overturn rep o rt­
       ing, recordkeeping, and other information collection require­
       m ents ad o p ted by a Federal agen cy in a rulem aking proceeding.
       This am endm ent establish es a p rocedu ral scheme which governs
       O M B ’s relationship with the Federal agencies.
          First, an agency is required to notify OMB as soon as possible,
       but no later than the date upon which a notice of proposed
       rulemaking is published in the Federal Register, of a proposed
       information collection requirement.
          Second, the Director of OMB is required to comment on the
       agency’s information collection requirements in the proposed rule
       within 60 days or forfeit its rights to review those requirements at
       a later time. In these comments, the Director of OMB would
       suggest alternative methods of collecting information more
       efficiently.
          Third, when the agency adopts its final rule, it must respond to
       those comments by modifying the information collection require­
       ments or by explaining why it rejected OMB’s suggestions.
          If the agency does not forward a copy of its proposed informa­
       tion collection requirements to OMB, OMB retains its right to
       review that request even though it has not filed comments during

                                        403
        the rulemaking proceedings. Moreover, if an agency intends to
        m odify substantially the information collection requirements
        which were in the proposed rule, this amendment insures that
        OMB has at least 60 days to comment on these modified require­
        ments before the final rule is issued.
            This am endm ent w ou ld provide the final po w er to OM B to
        overturn an agen cy’s recordkeepin g o r reporting requirem ents
        on ly i f it m ade a public fin din g th at the agency's response was
         ‘u n reason able.’ . . .
            This am endm ent would not affect O M B ’s righ t to review form s
        o r o th er information collection requests which were not specifi­
        ca lly requ ired b y an a g en cy rule.
            In essen ce, th is am endm ent is d esig n ed to fo rc e the agen cy and
        O M B to co n sider information collection requirem ents ea rly in the
        p ro c e ss w ith a meaningful opportu n ity f o r p u b lic com m ent on
        O M B ’s altern atives. (Emphasis added.)51

   Several aspects of the foregoing explanation are worthy of note. First, the
amendment to § 3504(h) was specifically designed to establish a set of pro­
cedures by which OMB would review and comment on information collection
requirements in proposed rules. The amendment was offered in response to the
concern that, absent such procedures, OMB could “ overturn a rule which was
adopted by an agency without providing any procedural rights for the people
affected by the rule or for the agency that promulgated the rule.” 52
   A central aspect of the amendment’s procedural scheme was the requirement
that OMB state publicly any decision to overturn an information collection
requirement in a proposed rule in order to be consistent with what Senator
Kennedy described as “ basic notices of fairness upon which the Administrative
Procedure Act is based, as well as concepts of due process embodied in the U.S.
C onstitution.” 126 Cong. Rec. 30178 (1980). Also, under the amended
§ 3504(h), OM B’s power ultimately to overturn an agency’s recordkeeping or
reporting requirement in a proposed rule is limited to certain circumstances, such
as when OMB makes a public finding that the requirement is “ unreasonable.”
   In addition, Senator Kennedy distinguished OMB’s power to review regula­
tions under § 3504(h) from OM B’s power to review “ forms or other information
collectio n requ ests which were not specifically required by an agency ru le!’
(Emphasis added.) This distinction supports the proposition that the review
under § 3504(h) of collection of information requirements required by, or con­
tained in, a rule should not be confused with the review under other provisions of
the statute of an “ information collection request” not specifically required by a
rule. This distinction also is reflected in a statement supporting Senator Ken­
nedy’s amendment made by Senator Danforth, who, after noting that the amend­
ment’s purpose was to “ prevent OMB from undoing a collection of information

 51 126 Cong. Rec 30178 (1980)
 52 Id


                                           404
requirement specifically contained in an agency rule after that requirement has
gone through the administrative rulemaking process if the OMB Director ignores
the rulemaking process,” added:
           / note, however, that this lim itation on OM B's authority is
         confined to requirem ents specifically contained in agency rules. It
         does not disturb O M B ’s authority to block information collection
         requests issued pursuant to rules, neither is it license to agencies
         to avoid OMB review of paperkeeping requirements bootstrapped
         to vague requirements in agency rules. (Emphasis added.)53
As Senator Danforth thus confirmed, § 3504(h) as amended does not disturb
OM B’s power to reject information collection requests issued pursuant to rules,
as distinct from information collection requirements specifically con tain ed in
rules.
   On December 1, 1980, the House of Representatives debated the bill as
amended by the Senate.54 The most extensive explanation offered on the House
floor of the amended § 3504(h) was the following by Congressman Horton:
          The most significant difference between the two measures [the
          Senate and House bills] is the inclusion of a new subsection
          3504(h) in the Senate version. The Senate provision is innovative
          in that it attem pts to link the regulation-w riting p ro cess w ith the
          collection o f information by the F ederal Governm ent. The p ro v i­
          sion d oes this by m andating that OM B review and com m ent on
          each p ro p o sed regulation which contains a requirem ent f o r the
          collection o f inform ation.
             Because subsection 3504(h) which the Senate has added to the
          bill is extremely complex, I think it is essential to clarify three
          points about it:
            First, O M B ’s authority to review an d com m ent on p o rtio n s c f
         p ro p o se d regulations which require the collection o f information
         is supplem ental to that a g en cy’s authority to approve o r reject
         specific information collection requests. N o m a tter w hat its a c ­
         tion m ay have been with regard to a p ro p o se d regulation, OMB
         m ay fre e ly approve o r reject any specific collection request deriv­
         ing fro m such a regulation.
            Second, in reviewing proposed regulations, OMB may disap­
          prove any collection requirement which it finds ‘unreasonable’—
          which is to say, not of sound judgment in the opinion of the OMB
          Director. The purpose of § 3504(h)(5)(C) [the provision em­
          powering OMB to disapprove “ unreasonable” requirements] is

   53 126 Cong. Rec 30179 (1980)
   54 See 126 Cong Rec. 31227 (1980) (remarks of Chairman Brooks) (noting that one of the major respects in
which the Senate bill differed from the House bill was that the former “ insures that OMB's review of agency
information collection requests will be coordinated with agency rulemaking procedures established by the
Administrative Procedure Act or other similar legislation     .” )


                                                   405
        not to restrict unduly the ability of OMB to act, but to insure that
        in acting, OMB [does] have justification for what it does.
           Third, decisions by OMB under this provision are not review-
        able in court. Section 3504(h)(9) states that there shall be no
        judicial review of any OMB decision to approve or not act upon a
        proposed regulation; because the power to approve implies the
        power to disapprove, this paragraph in effect forbids court chal­
        lenge of any decision to pursue any of the options open to OMB—
        approval, disapproval, or inaction. (Emphasis added.)55

O f particular significance in Congressman Horton’s explanation of § 3504(h) is
the distinction between OMB’s authority to “ review and comment” on portions
of regulations specifically requiring the collection of information under
§ 3504(h), on the one hand, and OMB’s authority to “ approve or reject”
information collection requests deriving from regulations, on the other hand. As
Congressman Horton observed: “ No matter what its action may have been in
regard to a proposed regulation, OMB may freely approve or reject any specific
collection request deriving from such a regulation.”
   This legislative history of § 3504(h) as amended strongly suggests that it was
intended as the exclusive mechanism for OMB review of regulations containing
information collection requirements. If this were not so, the provision’s amend­
ment by itself would not have been sufficient to assure that OMB would follow
certain prescribed procedures when reviewing rules under the statute. It seems
clear from the legislative record that the amendment’s sponsor, Senator Kennedy,
considered that the amendment of § 3504(h) would be sufficient to achieve this
purpose.
   Furthermore, the remarks of Senator Kennedy, Senator Danforth, and Con­
gressman Horton— who provided the most extensive comments on the amended
§ 3504(h) in the legislative history— all draw a distinction between OMB review
under § 3504(h) of information collection requirements contained in or specifi­
cally requ ired b y regulations, on the one hand, and OM B’s approval or disap­
proval of information collection requests issued pursuant to or deriving from
regulations, on the other hand. This distinction supports the notion that
§ 3504(h) was intended as the exclusive mechanism for OMB review and
possible disapproval of aspects of regulations specifically imposing information
burdens, as distinguished from OMB review of information collection requests
issued under, pursuant to, or entirely apart from regulation.
   Finally, this history strongly suggests that § 3504(h) and only § 3504(h )— not
§ 3507— sets forth the procedures governing regulations for purposes of this Act.
It would be entirely inexplicable for Congress on the one hand to establish a
detailed and specific process for OMB participation in developing new regula­
tions based on a manifest concern with fairness, due process, and APA pro­
cedures, while on the other hand allowing existing and longstanding regulations

 55 126 Cong. Rec. 31228 (1980)


                                        406
to be swept aside or partially overturned without any of the same procedural
safeguards. The amendment to § 3504(h) does not make sense if § 3507 could be
used with respect to either “ new” or “ old” regulations.
   (3) The language of § 3504(h) as enacted. Even though nothing in § 3504(h)
specifically states that it provides the exclusive procedure for OMB review of
collection of information requirements in rules, the provision’s language, in our
view, confirms that view. First, although the Act gives OMB broad powers of a
general nature over federal information practices, § 3504(h) is the only provision
in the statute explicitly establishing a process for OMB review and possible
disapproval of collection of information requirements in rules. It would be
anomalous for Congress to set forth such a detailed procedure and, at the same
time, to permit OMB to follow an entirely different procedure under another
provision, such as § 3507, without cross-referencing this possibility in
§ 3504(h). Although not dispositive, the principle of statutory construction,
“ expressio unius est exclusioalterius,” has some application here. This principle
may be translated as “ the expression of one thing is the exclusion of another.”
Black’s Law Dictionary 521 (5th ed. 1979). Under this maxim, when a statute or
other legal instrument expressly includes certain things in one provision— such
as the procedure in § 3504(h)— the drafters usually may be understood to have
intended to exclude other things not expressly addressed— such as a parallel but
markedly different procedure for OMB review of regulations under § 3507—
from the coverage of that provision. Id. Although the maxim is by no means
conclusive, such a result is normally presumed, absent affirmative contrary
indication in a statute’s language or legislative history.56 The application of the
maxim is more persuasive when the language of the statute, its legislative history,
and other factors point to the same result.
   Furthermore, § 3504(h) establishes a relatively detailed set of procedures for
OMB review of portions of regulations containing collection of information
requirements. These procedures would be rendered essentially superfluous if
OMB could, at its option, review any given regulation under § 3507, which lacks
the procedural requirements of § 3504(h). If this were possible, it is difficult to
understand why Congress would have included § 3504(h) in the statute.
   In addition, certain details of the language of § 3504(h) buttress the conclusion
that it provides the exclusive procedural mechanism for OMB review of regula­
tions expressly stated in the Act. Section 3504(h)(2) provides that within 60 days
after a notice of proposed rulemaking is published in the Federal Register, the
OMB Director “ may file public comments pursuant to the stan dards se t fo rth in
section 3 5 0 8 on the collection of information requirement contained in the
proposed rule” (emphasis added). The standards set forth in § 3508 are the ones
applied by OMB before approving a proposed “ information collection request,”

  56 See, e.g ., Morris v. Gressette, 432 U.S. 491, 506 n 22 (1977); Wachovia Bank & Trust Co. v. National Student
Marketing Corp., 650 F 2d 342, 354—55 (D C Cir. 1980), cert, denied. 452 U.S. 954 (1981), 2A, C Sands,
Sutherland Statutory Construction § 47.25 (4th ed. 1973)


                                                    407
such as under § 3507.57 If the drafters of § 3504(h) had intended that OMB could
review regulations under § 3507, it would have been unnecessary for them to
include in § 3504(h)(2) a specific reference to the standards contained in § 3508,
for in that case, the standards set forth in § 3508 would have applied
automatically.
    It also is noteworthy that under § 3508, the OMB Director “ may give the
agency and other interested persons an opportunity to be heard or to submit
statements in writing.” Section 3508 also contains no requirement that OMB
provide a public statement of its views. In contrast, § 3504(h)(2) authorizes the
OMB Director only to file public comments about a collection of information
requirement in a proposed rule. This contrast further indicates that the procedures
of § 3504(h) are fundamentally distinguishable from those applying under other
provisions of the Act, including §§ 3507 and 3508.
    Also, § 3504(h)(5)(A) provides that nothing in § 3504(h) prevents the OMB
Director, in his discretion, “ from disapproving any information collection re­
q u est which was not specifically requ ired b y an agen cy ru le" (emphasis added).
This subsection thus distinguishes between a collection of information require­
ment reviewed by OMB under § 3504(h), on the one hand, and OMB approval or
disapproval of an “ information collection request” that is not “ specifically
required” by an agency rule, on the other hand. As noted earlier, such a
distinction supports the conclusion that § 3504(h) applies to collection of infor­
mation requirements required by or contained in regulations, whereas other
provisions of the Act, including § 3507, apply to an “ information collection
request” made pursuant to (or entirely apart from) a regulation.

B . O th er P rovision s c f the Act

   The foregoing interpretation o f § 3504(h), which in our view is most consist­
ent with its language and legislative history, appears consistent with the statute’s
other major provisions, which we will discuss in numerical sequence.
   (1)   Section 3501: “Purpose.” Section 3501 states in general terms the Act’s
basic purpose, which includes minimizing the federal paperwork burden and
coordinating, integrating, and making more uniform federal information policies
and practices. OMB argues that the Act’s purpose would be undercut by an
interpretation of the Act which construed § 3504(h) as the exclusive mechanism
for OMB review o f regulations containing collection of inform ation
requirements.
   We have several difficulties with this argument. First, it is exceedingly
general. Although the statement of the Act’s purpose is quite broad and sweeping

 57 Section 3508 provides
         Before approving a proposed information collection request, the Director shall determine whether
      the collection of information by an agency is necessary for the proper performance of the functions of
      the agency, including w hether the information will have practical utility. Before making a determina­
      tion the D irector may give the agency a n d other interested persons an opportunity to be heard or to
      submit statements in writing. To the extent, if any, that the Director determines that the collection of
      information by an agency is unnecessary, for any reason, the agency may not engage in the collection
      of the information. (Emphasis added.)


                                                       408
                                        O




and would support an expansive role for OMB, the broad purpose cannot serve to
overcome the specific procedures in the Act itself. In fact, the Act has multiple
aims, including that of providing in § 3504(h) for a set of procedures that will
structure OM B’s review of proposed regulations in a manner consistent with the
public procedures governing rulemaking. That particular end must be respected
along with the general purpose of reducing federal paperwork burdens and
coordinating federal information practices.
   Furthermore, it does not appear that an interpretation of § 3504(h) as providing
the exclusive procedures for OMB’s review of regulations would prevent OMB
from effectively discharging its duties of reducing federal paperwork burdens.
First, OMB retains full authority under § 3507 to review all forms, question­
naires, and similar information collection requests issued pursuant to rules
without having to follow the procedures set forth in § 3504(h). Second, under
§ 3504(h) itself, OMB ultimately can disapprove a collection of information
requirement in certain circumstances.58 Third, as noted above, OMB is given
additional, general authorities under other provisions of the Act, including the
other subsections of § 3504, to initiate and review proposals for changes in
regulations and agency procedures in order to improve government information
practices.
   OMB’s primary concern may be that Treasury’s interpretation of § 3504(h) as
the exclusive set of procedures for OMB review of regulations effectively would
mean that OMB cannot review regulations such as those promulgated by the IRS
that were already in existence when the Act became effective. This would be the
case because § 3504(h) rather clearly applies only to rules proposed and promul­
gated after the Act became effective.59 If § 3504(h) is the only provision
specifying procedures for OMB review of regulations, it follows that the Act does
not establish an express procedural mechanism for OMB review and potential
disapproval of regulations already in existence when the Act became effective.
   OMB objects to an interpretation leading to such a “gap” in the Act’s coverage.
However, to the extent that this is a “gap” in coverage, it is not inconsistent with
legislative history. As noted above, the Act’s legislative history supports the
proposition that Congess believed that “new” regulations caused the greatest
paperwork burdens.60 For that reason, it is neither surprising nor anomalous for
Congress to have concentrated on fashioning a specific procedure for OMB
review of regulations proposed and promulgated after the Act’s effective date. If,
on the other hand, Congress has intended to reopen existing regulations— or at

   58 See §§ 3504(h)(5)(B), (C) and (D)
   59 This is so because § 3504(h) only deals with rules once they are “proposed ” “This subsection shall apply only
when an agency publishes a notice of proposed rulemaking and requests public comments ” § 3504(h)(8)
furthermore, there would be no practical way for § 3504(h) to apply retroactively to rules already promulgated in
final form when the Act became effective That would require submitting all existing rules that impose paperwork
requirements to a new notice and comment process. This is simply not contemplated by § 3504(h). Thus, we agree
with OMB that § 3504(h) establishes a set of procedures that applies only to rules proposed and promulgated after
the A ct’s effective date
   60 See S. Rep. No. 9 3 0 ,96th Cong , 2d Sess. 8-9(1980). In the passage from the Senate Committee report quoted
above, it is stated that the bill’s emphasis on OMB oversight of the development of regulations “has great promise for
minimizing the explosion of paperwork demands on the public because new regulations are causing the greatest
growth in information requirements” (emphasis added).


                                                        409
least those that contained some reporting or recordkeeping requirements— with
the attendant uncertainty that that would cause regarding the legal status of those
regulations during the process contemplated by the Act, we would have expected
to find express legislative history on the subject.
   Moreover, OMB does have the authority under § 3504(b)(2) to initiate and
review proposals for changes in regulations and to develop some orderly process
for such an examination. OMB simply may not employ with respect to existing
regulations the procedures, including the disapproval mechanisms, contained in
§ 3504(h) or § 3507.
   Finally, we must bear in mind the late Judge Jerome Frank’s admonition: “The
legislative process is inherently such that, on occasions, the applications of a
statute in practice disclose inconsistencies. While the literal meaning of a statute
must yield to its evident purpose or policy, where a statutory provision accords
with that purpose, the courts should seldom enlarge that provision, in the interest
of symmetry or uniformity, in order to supply an omission.”61 In this case, the
literal terms of § 3504(h)—which apply to regulations proposed and promul­
gated after the Act’s effective date—are in accord with the provision’s stated
purpose of addressing the major increases in the federal paperwork burden
deriving from new regulations. In such a situation, it would be inappropriate to
“supply an omission” in § 3504(h) in “the interest of symmetry or uniformity” by
reading this or another provision as applying to regulations that were already
proposed and promulgated at the time the Act became effective.62 Such a reading
also would conflict with the customary canon of statutory construction that,
unless there is clear indication to the contrary, a statute should be read as applying
prospectively to conditions or events occurring after the statute becomes
effective.63
   Accordingly, it does not appear that the A ct’s general purpose would be
undermined or violated by an interpretation of § 3504(h) as the only provision
setting forth procedures for OMB review of regulations under the Act.
   (2)    Section 3502: “Definitions.” One of the A ct’s critical definitions is that of
an “ information collection request,” which includes, in addition to a “written
report form ,” “application form,” “schedule,” and “questionnaire,” a “reporting
or recordkeeping requirement . . . calling for the collection of information.”64
There can be little doubt that, on its face, this definition could be read to apply to
portions of regulations imposing reporting or recordkeeping requirements. The
question is whether it must or should be read in such a manner.
   Although we acknowledge the breadth of the definition of an “information
collection request,” we do not believe that it must be read to cover portions of

   61 G uiseppi v. Walling, 144 F.2d 608, 614 (2d Cir. 1944). See also Addison v H olly H dl Fruit Products, Inc., 322
U .S. 607, 617 (1944) (“ Legislation introducing a new system is at best empirical, and not infrequently administra­
tion reveals gaps or inadequacies o f one sort or another that may call for amendatory legislation But it is no warrant
for extending a statute that experience may disclose that it should have been made more comprehensive”).
   62 Again, we note that forms issued pursuant to regulations may well be subject to § 3507 Also, if regulations
were to be newly proposed or revised, the rulemaking proceedings would also be subject to § 3504(h)
   63 S ee generally 2A, C. Sands, Sutherland Statutory Construction, ch. 41 (4th ed 1973). See also note 93 infra.
   64 Section 3502(11)

                                                         410
regulations imposing paperwork burdens. This conclusion rests in part on the fact
that the actual method by which information is collected would be embraced by
§ 3507 in a manner which could not conveniently cover existing regulations, and
on the fact that § 3504(h), the Act’s only provision setting forth specific pro­
cedures for OMB review of regulations, speaks not of an “information collection
request” but rather of “collection of information requirements” contained in
regulations. Even though it might be possible to view this difference in termi­
nology as highly technical and merely the result of inadvertence, it is more in
accord with the canon of construction of giving effect to every word, clause, and
sentence in a statute65 to take seriously the difference in terms used by Congress.
   Congress spoke about an “information collection request” as being subject,
inter alia, to § 3507 on the one hand, and about “collection of information
requirements” in regulations as being subject to § 3504(h) on the other hand. If
Congress had sought to make information burdens imposed by regulations
subject to § 3507, it could have so provided in § 3507, either directly or by
means of a cross-reference in that section to the provisions in § 3504(h) govern­
ing review of collection of information requirements in regulations. That Con­
gress not only did not do so but also used a different, albeit quite similar, term in
speaking about regulations strengthens the conclusion that Congress intended
collection of information requirements in regulations to be subject to the pro­
cedures of § 3504(h) alone.
   Furthermore, we do not believe that the Act’s definition of an “information
collection request” should be read as necessarily including “collection of infor­
mation requirements” contained in regulations.66 To do so would, in our view,
undermine the intended function of § 3504(h), which was to provide a specific set
of procedures to structure OMB review and potential disapproval of collection of
information requirements in proposed regulations. If regulations also could be
reviewed under § 3507—a provision that lacks the procedures of § 3504(h)—
there would be no apparent purpose for including § 3504(h) in the statute.
   Moreover, a construction of the term “information collection request” as
applying to the portion of a regulation that imposes a collection of information
requirement would appear inconsistent with the major discussion of the defini­
tion of an information collection request in the Senate Committee report. That
report explains:
              The term ‘information collection request’ refers to the actual
           instrum ent used f o r a collection c f inform ation. It is the informa­

   65 See 2A, C. Sands, Sutherland Statutory Construction § 46 06 (4th ed 1973)
   66 We note that the term “collection of information requirement" is not defined in the Act, although a “collection of
information” is defined in § 3502(4) 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, o r identical reporting or recordkeeping require­
            ments 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 . .


                                                        411
           tion collection request which must be submitted to the Director in
           accordance with the clearance requirements of Section 3507.
           (Emphasis added.)67
The phrase, “actual instrument used for a collection of information,” is not
defined in the statute and thus is to be interpreted in light of its ordinary meaning.
An “instrument” is generally understood as the means by which, the tool or
device by which, something is to be accomplished— that is, in this context, the
form or questionnaire or schedule on which information is supplied or submit­
ted.68 In contrast, a “regulation” is defined as “an authoritative rule or principle,”
or “a rule . . . having the force of law issued by an executive authority of a
government.”69 Accordingly, we believe that the term “actual instrument” refers
to the form or some similar reporting or recordkeeping instrument pursuant to
which information is transmitted by the citizen to the government, and not the
portion of a regulation imposing the information requirement itself. It would
appear to strain common usage to assert that such a portion of a regulation is itself
an “actual instrument” for the collection of information. Such usage is not
strained by speaking of a form issued pursuant to a regulation as an “actual
instrument” for the collection of information.
    Accordingly, we conclude that the term “information collection request” need
not and should not be construed as synonymous with the term “collection of
information requirement” in § 3504(h). In our view, the Act’s requirements
applying to an “information collection request”— including those in § 3507— do
not apply as a definitional matter to a “collection of information requirement” in a
regulation.
    (3)    Section 3507: “Public information collection activities— submission to
Director; approval and delegation.” Section 3507 requires agencies to obtain
OMB approval of a proposed “information collection request” before conducting
or sponsoring the collection of information.70 Having discussed the definition of
an “information collection request,” we must now consider whether the language
of § 3507 is consistent with an interpretation of § 3504(h) as providing the only
express set of procedures for OMB review of rules under the Act. We believe that
it is.
   First, § 3507(a)(2)(A) requires an agency, before making an information
collection request, to submit to OMB “the proposed information collection
requ est, c o p ie s o f pertin en t regulations and other related materials as the Director
may specify . .           (emphasis added). It seems noteworthy that the reference here
to “pertinent regulations” is separated by a comma from the reference to an
“information collection request.” This separation is consistent with the view that

   67 S Rep No 930, 96th C ong., 2d Sess. 39 (1980).
   66 See W ebster’s Third New International Dictionary 1172 (1976).
   69 Id at 1913; see also B lack’s Law Dictionary 1156 (5th ed. 1979) (defining a regulation as “a regulatory
principle” or a “precept” or “rule .     prescribed for management or government”).
   70 See also § 3504(c) (providing that the information collection request clearance and other paperwork control
functions o f the OMB Director “shall include . . reviewing and approving information collection requests
proposed by agencies” and “ensuring that all information collection requests      are inventoried, display a control
num ber and, when appropriate, an expiration date”).


                                                       412
portions of regulations which impose paperwork burdens are not themselves
information collection requests for purposes of § 3507. If a portion of a regula­
tion imposing a paperwork burden were an information collection request, the list
in § 3507(a)(2)(A) of items to be submitted to OMB would appear redundant, for
the same item— that is, part of a regulation imposing a paperwork burden—
would be referenced twice, once as an “information collection request” and once
as a “pertinent regulation.”71 We believe that the reference to “pertinent regula­
tions” means that OMB, in evaluating an information collection request under the
criteria specified in the Act, should be furnished all material, including in
particular regulations in light of which a form itself must be assessed.
   Second, § 3507(b) directs OMB, within 60 days of the receipt of a proposed
information collection request, to notify the agency concerned of its decision “to
approve or disapprove the request.” OMB’s decision is to be made “publicly
available,” but is not required to be published or to be accompanied by a
statement of reasons. Id. This procedure is sharply distinguishable from that
provided for by § 3504(h). Section 3504(h) requires OMB to file public com­
ments on a proposed collection of information requirement in an agency rule
(§ 3504(h)(2)), and to make publicly available its reasons for any disapproval of
such a requirement (§ 3504(h)(6)). In view of these differences and the canon of
construction that statutes should be read to give effect to each provision in them,72
the most natural reading of § 3507(b) is that it must apply in different situations
than does § 3504(h). If this were not the case, then as a practical matter the less
formal procedures of § 3507 could be expected to supplant the more formal
procedures of § 3504(h).
   Third, in our view § 3507(c) does tend to confirm that OMB is not to assign
control numbers to regulations reviewed under § 3504(h). Section 3507(c)
provides in pertinent part:
               Any disapproval by the Director, in whole or in p a rt, c f a
           p ro p o se d information collection request c f an independent reg­
           ulatory agency, or an exercise c f authority under section 3504(h)
           o r 3509 concerning such an agency, m ay be voided, if the agency
           by a majority vote of its members overrides the Director’s disap­
           proval or exercise of authority. . . . Where the override concerns
           an information collection request, the D irecto r shall without
          fu rth er delay assign a control num ber to such a request, and such
           override shall be valid for a period of three years. (Emphasis
           added.)

   71 It could be argued that the reference to “pertinent regulations” should be read as referring to regulations other
than the one containing a particular information collection request This gloss on the statute, however, finds no
specific support in the language of § 3507(a)(2)(A). In any event, if Congress intended that portions of regulations
could themselves be information collection requests, it chose a most indirect and awkward way of phrasing its intent
when it directed an agency to submit to OM B “the proposed information collection request, copies c f pertinent
regulations and other related materials as the Director may specify, . ” (emphasis added)
   72 Statutory construction must start with the language of the statute concerned See. e g , Detroit Trust Co v The
Thomas Barium, 293 U S 21, 38 (1934) (a court is not “at liberty to imply a condition which is opposed to the
explicit terms of the statute. . .T o [so] h o ld . . . is not to construe the Act but to amend it.”), Fedorenko v United
States, 449 U.S. 490, 513 (1981)


                                                         413
The commas after “agency” at two places in the first sentence of § 3507(c)—
which deals with any disapproval “of a proposed information collection request
of an independent regulatory agency, or an exercise of authority under section
3504(h) or 3509 concerning such an agency, may be voided . . — serve to
distinguish between OMB disapprovals of an information collection request, on
the one hand, and actions under §§ 3504(h) and 3509, on the other hand.73 The
last sentence of § 3507(c) provides that where “the override concerns an informa­
tion collection request,” OMB shall without further delay assign a control
number to such a request. The absence in the last sentence of any reference to
§ 3504(h) or § 3509 suggests that OMB is not to assign control numbers under
those provisions. If it were otherwise, one would expect Congress to have
included some reference to § 3504(h) in the last sentence of § 3507(c).
   This analysis of the language of § 3507(c) supports the notion that the Act
should be read as providing for two different sets of procedures for OMB review:
those in §§ 3504(c) and 3507 (including the assignment of control numbers),
which apply to information collection requests (forms, questionnaires and the
like), and those in § 3504(h) (not including the assignment of control numbers),
which apply to collection of information requirements in regulations. That
interpretation of § 3507(c) is sustained by a passage in the Senate Committee
report, which distinguishes between an independent agency’s override of an
OMB disapproval of an “information collection request” and its override of an
exercise of authority under § 3504(h) “concerning rules and regulations”:
           An independent regulatory agency may be [sic] a majority vote of
           its members override a n y disapproval of the Director o f an infor­
           m ation collection request. The override authority also applies to
           an exercise o f the D irector's authority under section 3504(h)
           (con cernin g ru les and regulations) and under section 3509 (des­
           ignation of a central collection agency). (Emphasis added.)74
If the term “information collection request” included an information requirement
in a regulation, there would have been no reason to add to the statement that an
independent agency may override an OMB disapproval of an information collec­
tion request the statement that the override authority “also” applies to OMB
action relative to “rules and regulations” under § 3504(h).
   Fourth, § 3507(d) provides that the OMB Director “may not approve an
information collection request for a period in excess of three years.” If this
provision applied to portions of regulations containing collection of information
requirements, the result would be that at least those portions of regulations
containing collection of information requirements could be effective for no more
than three years without subsequent OMB approval. Such an arrangement would
have major effects on the administrative process that has been in existence at least

   73 Under § 3509, the OM B Director “may designate a central collection agency to obtain information for two or
more agencies if the Director determines that the needs of such agencies for information will be adequately served by
a single collection agency, and such sharing o f data is not inconsistent with any applicable law ”
   74 S Rep. No. 930, 96th C o n g .t 2d Sess 15 (1980).


                                                        414
since the enactment of the Administrative Procedure Act in 1946. In effect, such
an arrangement would involve the operation of a kind of “sunset” provision for
agency regulations, under which regulatory provisions would automatically
lapse after a certain tim e unless affirmative steps were taken to renew a
regulation.
   Without expressing any view regarding the merits of such a provision or its
legality if it were enacted by Congress, we must approach with a sense of caution
an interpretation of the Act that would require such a far-reaching result in the
absence of any clear expression by Congress that this was its intent. We have not
been referred to, nor have we found, any provision or statement indicating
specifically that Congress sought, in passing the Act, to subject agency regula­
tions to such a “sunset”-type provision. This is of special significance because a
wide class of “sunset” provisions, usually involving a lapse of statutory authority
after a certain number of years absent affirmative re-authorization by Congress,
has been the subject of the contemporary debate about “regulatory reform.”75 The
Act’s legislative history specifically and clearly states that Congress did not
intend for the statute to be used as a vehicle for “regulatory reform” in any broad
sense.76These factors, taken together, support the view that § 3507(d) should not
be read as applying to portions of regulations which contain collection of
information requirements.
   In short, we believe that the language of § 3507 is consistent with the
interpretation of § 3504(h) as providing the only set of procedures for OMB
review of regulations under the Act.
   (4) Section 3512: “Public Protection.” Section 3512 provides that “no person
shall be subject to any penalty for failing to maintain or provide information to
any agency” pursuant to an information collection request made after Decem­
ber 31, 1981, if the request does not “display a current control number assigned
by the Director [of OMB], or fails to state that such request is not subject to this
chapter.” The purpose of this provision is to provide an effective incentive for
agencies to comply with the Act’s requirement that a control number be displayed
on each “information collection request.”77 The question here is whether § 3512
was intended to apply in the context of regulations containing collection of
information requirements.
   Although the legislative history is not necessarily conclusive on this point, it
does suggest that § 3512 was intended to apply to forms, questionnaires, or
similar methods of collecting information, not to regulations as such. For
instance, in the report of the House Committee on Government Operations, the
following explanation of § 3512 is provided:

  75 See. e g . Federal Regulation* Roads to Reform, Final Report o f the American Bar Association’s Commission
on Law and the Economy, 105-111 (1979).
  lb See H R Rep. No 835, 96th Cong., 2d Sess. 9 (1980) (“Regulatory reform is a separate issue from the
function assigned by H.R. 6410. . . . [T]he assignment of regulatory reform to the Office of Federal Information
Policy would dilute the information functions assigned under this bill”), S. Rep. No. 9 3 0 ,96th Cong , 2d Sess 8-9
{1980) (“|T]he Committee does not intend that 'regulatory reform’’ issues which go beyond the scope of information
management and burden be assigned to the Office by the Director”)
  77S 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)


                                                     415
            [T]he bill stipulates that no penalty may be imposed on a person
            who fails to respond to an information collection request which
            was not approved in accordance with the law’s provisions. . . .
           H .R . 6 4 1 0 w ou ld allow th e pu blic, b y refusing to answ er these
           q u e stio n n a ire s, to help c o n tro l “o u tla w form s" (emphasis
           added).78
Similarly, Senator Chiles, a sponsor of the Senate bill, stated during hearings
before his subcommittee in 1979 that “[f]orm s without an OMB num ber on them
w ill b e ‘b o o tleg fo rm s’ that the public can ignore.” (Emphasis added.)79 During
the same hearing, Senator Bellmon explained: “Under S. 1411 [a] businessman,
when he g ets a ll th ese fo rm s, unless they have th at OMB stam p in the upper right-
h an d corner, that stamp of approval, he will know that th at is a bootleg fo rm that
he can throw away” (emphasis added).80
   Although other statements in the legislative history refer more generally to
§ 3 5 1 2 ’s coverage of “ information collection requests,”81 the emphasis on
“bootleg forms” in much of the legislative record strongly suggests that Congress
particularly had in mind § 3512’s application to forms and similar methods of
collecting information. Although this fact alone does not necessarily establish
that only forms and similar items— as distinct from regulations— are subject to
the control number requirements of §§ 3507 and 3512, it is entirely consistent
with such an interpretation of the Act.
   (5)      Section 3518: “Effect on existing laws and regulations.” Section 3518(e)
provides that “[njothing in this chapter shall be interpreted as increasing or
decreasing the authority of the President, the Office of Management and Budget
or the Director thereof, under the laws of the United States, with respect to the
substantive policies and programs of departments, agencies and offices . . . .”82
This provision evidently distinguishes between the “substantive policies and
programs of departments, agencies and offices,” which are not to be affected by
the Act, and the procedural requirements governing paperwork imposed by the
Act. We grant that this distinction may be a difficult one to maintain in practice.
Nonetheless, Congress required that it be maintained. This fact casts doubt on an
interpretation of the Act that would effectively shift, without any clearly ex­
pressed intent to do so, a measure o f substantive control over rulemaking from an
agency to OM B.83
   78 H .R . Rep. No 835, 96th C ong., 2d Sess. 20 (1980)
   79 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcomm. on Federal Spending Practices
and Open Government o f the Senate Comm on Governmental Affairs, 96th Cong , I st Sess. 7 ( 1979) (remarks of
Sen. Chiles).
   80 Id. at 12
   81 See, e g , S. Rep No. 930, 96th Cong., 2d Sess 52 (1980). “Information collection requests which do not
display a current control number or, if not, indicate why nol, are to be considered 'bootleg' requests and may be
ignored by the public ” (Emphasis added )
   82 Section 3518(a) states that “ [ejxcept as otherwise provided in this chapter, the authority of an agency under any
other law to prescribe policies, rules, regulations, and procedures for Federal information activities is subject to the
authority conferred on the Director by this c h a p te r” Although this provision confirms that the Act applies to
regulations, it does not provide guidance regarding the question whether § 3504(h) sets forth the only procedures
for OM B review of regulations under the Act.
   83 See 126 Cong. Rec. 30178 (1980) (“Section 3518 specifically states that this bill does not change existing
relations of the President and OMB with respect to the substance of agency programs.”) (Remarks of Sen Chiles.)


                                                         416
   As noted earlier, one of the chief consequences of OMB’s interpretation is that
portions of regulations imposing paperwork burdens would be “approved” by
OMB for no more than three years. After expiration of the approval period, they
would lapse and require new approval to remain effective. This would arguably
give OMB a much greater measure of control over the rulemaking process.
Although by itself this point is not particularly definitive, it certainly is not
inconsistent with the view set forth above that § 3504(h) provides the exclusive
set of procedures for OMB review of regulations under the Act.

C. G en eral Schem e c f the A c t

   We have concluded that an interpretation of § 3504(h) as providing the only
express procedures for OMB review and disapproval of informational portions of
regulations, as stated in A above, appears consistent with each of the Act’s major
provisions in addition to § 3504(h). We believe that such an interpretation also is
consistent with the statute’s general scheme.
   One general argument against such an interpretation that is implicit in OMB’s
position rests on the fact that the foregoing interpretation would divide the world
of paperwork burdens into basically two categories— those imposed by regula­
tions and those imposed by forms or similar documents— and would control each
category with a different set of OMB review procedures. This division, it might
be contended, seems at odds with the Act’s general aim of reducing all federal
paperwork burdens, not just those imposed by forms, questionnaires or similar
methods of information collection.
   A significant weakness of this argument, however, is that it essentially assumes
its own conclusion, namely, that the Act does not distinguish for purposes of
OMB review between paperwork burdens imposed by regulations and such
burdens imposed by forms of questionnaires. That, of course, is the central
question to be resolved here.
   In addition, this argument presumes that the practical effect of an interpreta­
tion of § 3504(h) as providing the only express procedures for OMB review of
regulations would be substantially to undermine OMB’s efforts to reduce the
federal paperwork burden. However, as an empirical matter, it has not been
demonstrated that such an interpretation of § 3504(h) would so constrict OMB’s
effectiveness under the Act. OMB is given broad general powers under
§ 3504(b). Also, § 3504(h) itself authorizes OMB ultimately to disapprove
collection of information requirements contained in proposed regulations en­
acted after the effective date of the Act.84Moreover, there is no dispute that forms
or questionnaires issued pursuant to regulations are subject to OMB review under
§ 3507.
   Furthermore, this argument fails to take account of a number of passages in the
legislative history indicating generally that Congress was especially concerned
with the paperwork burden imposed by agency forms, questionnaires, or similar

 84 See § 3504(h)(5).


                                       417
items. This is not to say that Congress was not also concerned with regulations, as
it clearly was. However, Congress was particularly concerned about forms. This
emphasis is reflected at several points in the legislative history.
    For instance, the House Committee report described the Act as strengthening
the Federal Reports Act of 1942 by requiring OMB “to review and approve most
of th e fo rm s a n d questionnaires used by the Federal agencies to collect informa­
tion from the public.” (Emphasis added.)85 In another passage, the House report
described the basic problem addressed by the Act as follows: “Inefficiencies in
current Federal information practice drastically reduce the effectiveness of the
Government while, at the same time, drowning our citizens in a sea o f fo rm s,
q u estionn aires, a n d reports." (Emphasis added.)86
    In a similar vein, the Senate Committee report stated:
         F ederal p a p e rw o rk requirements, w hether they are tax fo rm s,
         m edicare fo rm s, financial loans, jo b application s, o r com pliance
         reports, are som ething each individual touches, feels, an d works
         on. The cumulative impact is excessive. . . .

         Several small business counselors testified that many clients
         refuse to expand their business because of the added paperwork
         they would face. One cou n selor ta p ed together the fo rm s any
        p o te n tia l sm all business p e r so n m ust know ju s t to think abou t
        gettin g into business. They stretch ed a cro ss an entire room.
         (Emphasis added.)87
Such references to “something each individual touches, feels, and works on” and
taped-together forms stretching across an entire room are vivid reminders that
Congress sought, by passing the Act, particularly to control the paperwork
burden imposed by forms, questionnaires, and similar instruments for informa­
tion collection.
   The emphasis on forms also is reflected in testimony during hearings on the
relevant bills. Of particular interest is the explanation by the former Associate
Director of OMB of the elimination of the exemption for the IRS that had been
contained in the Federal Reports Act:
        The argu m en ts th a t were m ade on b eh a lf c f IRS were basically
        th at new tax fo rm s have to b e prep a red within extrem ely short tim e
        lim its. The delays would be extremely important and costly to
        taxpayers.
        They a lso ra ise d the argum ent that the tax fo rm is extrem ely
        com plex a n d technical an d there w as not very much that you could
        d o to im prove the form s as a resu lt[,] and the third argum ent. . .
        is that the collection of revenue is a unique function and unlike

 85 H .R . Rep No 835, 96th Cong , 2d Sess. 18 (1980).
 84 Id. at 3
 87 S Rep. No. 930, 96th C ong , 2d Sess. 3 (1980).


                                                418
           anything else the Federal Government does and, therefore, no­
           body outside that function should have a role in deciding what
           information goes in it.
          We viewed those arguments as not persuasive. (Emphasis
          added.)88
At another point in this testimony, the OMB representative further highlighted
the underlying importance of the IRS’ forms:
          From the beginning, OMB’s ability to control reporting burdens
          has been limited from exemptions to the Federal Reports Act. A ll
          c f the fo rm s c f the Internal Revenue S ervice and most of the
          reports of the bank regulatory agencies h ave not been review ed by
          any unit ou tside that agency . . . . B ecause c f these provisions,
          alm ost three-quarters c f the p u blic reporting burden is excluded
          fro m O M B review. (Emphasis added.)89
   These and other statements in the legislative history90 confirm that Congress’
attention was drawn particularly to the problem of controlling the paperwork
burden imposed by government forms, questionnaires, and similar items. This
special concern is consistent with our conclusion that Congress set forth a
particularly rigorous mechanism for OMB review of forms under the Act. This
does not deny that Congress also was concerned with regulations. However, the
many passages indicating Congress’ special concern with forms does establish
that Congress did not always consider forms and regulations together and
inseparably. Thus, it is not surprising that the Act sets forth two different
procedural mechanisms for the review of forms and regulations, respectively.
   We conclude that the Act’s general scheme, as reflected in its legislative
history as well as language, is consistent with the view that § 3504(h) provides
the only procedures for OMB review of regulations.
   88 Paperwork and Redtape Reduction Act c f 1979, Hearings before the Subcommittee on Federal Spending
Practices and Open Government c f the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 31-32
(1979) (testimony of Wayne Granquist, Associate Director, OMB)
   89 Id. at 25
   90 See Paperwork Reduction Act c f 1980, Hearings before a Subcommittee c f the House Committee on Govern­
ment Operations, 96th C ong., 2d Sess 2 (1980) (“While the Government needs a great deal of information from its
citizens, a lot can be done to cut down on the number and length o f questionnaires, form s and reports, and lo
eliminate duplication and inefficiencies” ) (emphasis added) (statement of Chairman Brooks), id at 89 (“Currently
almost 81 percent of the Federal paperwork burden is exempt from OM B review Without the authority lo review the
reports and form s required by the independent regulatory commissions and associated with tax, education and
health manpower programs, there is little we can do to reduce the public burden imposed by these requirements”)
(emphasis added) (statement of Wayne Granquist, Associate Director, OMB). See also Paperwork and Redtape
Reduction Act o f 1979, Hearings before the Subcommittee on Federal Spending Practices and Open Government c f
the Senate Committee on Governmental Affairs, 96th Cong , 1st Sess. 11 (1979) (“ Past attempts to arrest the
proliferation of paperwork have included requirements for Office of Management and Budget and GAO approval of
reporting form s. Obviously, this has not been effective in holding down reporting requirements Each and every
Federal agency seems lo continue to be able lo argue that they have unique needs which can only be met by creating
their own new forms”) (emphasis added) (statement of Senator Bellmon), Privacy and Confidentiality Report and
Final Recommendations c f the Commission on Federal Paperwork, Hearings before Subcommittee o f the House
Committee on Government Operations, 95th Cong., 1st Sess. 7 (1977) (“We recommended the elimination of all
agency exemptions from the requirement for a central review of all planned reports the government uses to collect
information from the public. Currently, the IRS with its multitude o f tax form s, as well as the bank regulatory
agencies and others are not subject to review by a central management agency such as OMB .              to reduce
duplication or unnecessary data collections”) (emphasis added) (statement of Chairman Horton)


                                                     419
IV. Response to Arguments in the OMB Memorandum of April 23, 1982

   In this section, we address certain particular aspects of the memorandum of
April 23, 1982, setting forth O M B ’s position. That memorandum clarified some
of the issues about which OMB and Treasury are in disagreement and forcefully
stated the arguments in favor of O M B ’s view. Some of the arguments contained in
that memorandum already have been addressed in this opinion. This section will
briefly respond to the remaining issues and seek to dispel any confusion about
some of the more important details presented by this dispute.

A . The Q uestion to Be Resolved

   At the outset, it is important to recognize that, in our view, the central question
we must address is not the coverage of regulations by the Act as such. We stress
this because the April 23, 1982, memorandum suggests that that is the basic
question. For example, on pages 1 and 2, in discussing the Senate amendment to
§ 3504(h), the memorandum states that “[t]he [Kennedy] Amendment neither
brought new ‘information collection requirements’ within the Director’s approval
responsibilities nor exempted ‘information collection requests’ already covered
by the Act. This is the is s u e . . . ” (emphasis added). In fact, there is no doubt that
regulations are “covered” by the Act. They would have been “covered” without
the Kennedy amendment and they are covered by the version of the Act actually
passed. The question is to what extent and in what manner regulations are
covered by the Act.

B . The P rocedu res Governing O M B R eview o f Regulations

   It should be recalled, as discussed above, that the Act gives OMB broad
powers to review and initiate proposals for changes in regulations wholly apart
from the collection of information clearance procedures which are the central
focus of the dispute between Treasury and OMB. OMB has the authority
conferred on it by § 3504(b), including “initiating and reviewing proposals for
changes in . . . regulations” (§ 3504(b)(2)), and “coordinating, through the
review of budget proposals . . . agency information practices” (§ 3504(b)(3)).
We discuss here only the specific interrelationship between the explicit and
distinct procedures established by § 3504(h) on the one hand, and §§ 3504(c)
and 3507 on the other hand.
   Before considering in detail the April 23, 1982, memorandum’s discussion of
the procedures governing OMB’s review of regulations, we will set forth in a
somewhat schematic manner the four major possibilities in this regard. First, it
could be argued that only the procedures set forth in §§ 3504(c) and 3507 could
apply to regulations. Second, it might be asserted that only the procedures set
forth in § 3504(h) could apply to regulations. Third, it is possible that both sets of
procedures— those in § 3504(h) a n d those in §§ 3504(c) and 3507— could apply
in any particular case to regulations. Fourth, it is possible that each set of

                                           420
procedures could apply to regulations, but only in mutually exclusive sets of
circumstances.
   The first alternative has no support and contradicts the explicit terms of
§ 3504(h). The April 23, 1982, memorandum squarely rejects the second pos­
sibility, which is the one embraced by the Treasury Department and is most
reasonable in our view. Thus, the OMB memorandum could have adopted the
third or the fourth alternative. In fact, it would appear that the memorandum, at
different points, embraces both possibilities.
   For instance, at pages 16 and 17, the memorandum asserts that an agency has a
“degree of latitude” in deciding whether to have a regulation that imposes a
paperwork burden reviewed by OMB under § 3504(h), or under §§ 3504(c) and
3507:

       [A ]s a p ra c tic a l matter, the Kennedy am endm ent [§ 3504(h)]
       a cco rd s each agen cy a degree c f latitude with regard to the
       procedu res by which the D irector [ c f OM B] w ill review informa­
       tion collection requests in regulations which are the subject of
       notice and comment procedures. If the agency wants OMB to
       proceed under 3504(h), it submits the NPRM [notice of proposed
       rulemaking] and related material in accordance with the pro­
       cedures of section 3504(h). OMB will then process the request
       according to 3504(h). I f the agen cy wants OM B to p ro cess the
       request pu rsuan t to the procedu res cf3 5 0 4 (c ) an d 3 5 0 7 , nothing
       in the law w ould prevent it from com pleting its rulem aking and
       then subm itting the rule containing the request to OM B fo r
       review. (Emphasis added.)

However, the OMB memorandum states that this latter process “would run the
very risk that the Kennedy amendment was designed to minimize, and should be
avoided.” Thus, the OMB memorandum acknowledges that its interpretation of
the statute allows for the very problem which § 3504(h) was enacted to prevent.
Moreover, OMB practice may have initially insisted upon it, as the memorandum
indicates at page 17:

       The Memorandum submitted by Eric Fygi [Deputy General
       Counsel, Department of Energy] contends that OMB operates as
       though it has the power to decide which procedures apply. OMB
       does not have that authority, although it may well be that during
       the early months of implementation, it has at times operated as
       though it did. OMB has taken steps to ensure that the agencies and
       not OMB make the “ choice” and our new procedures . . . will
       unambiguously so provide.

This passage evidently assumes that it is now up to an agency to decide in any
particular case whether to have a regulation reviewed by OMB under § 3504(h)
or under §§ 3504(c) and 3507.

                                          421
   On the other hand, at pages 11 and 12, the April 23, 1982, memorandum
explains the Senate’s amendment to § 3504(h) as an attempt to “harmonize” the
A ct’s procedures with the Administrative Procedure Act (APA) in order to
“accommodate . . . two potentially conflicting responsibilities.” To accommo­
date this potential conflict, the memorandum suggests, § 3504(h) applies to
regulations during the period in which they are subject to notice-and-comment
procedures under the APA, whereas §§ 3504(c) and 3507 apply to regulations
imposing information requirements in other circumstances. This is also the
position taken in the memorandum to us dated January 15, 1982, discussed
above.91 Under this view, “[i]f 3504(h) does not apply, then the procedures of
3504(c) and 3507 do . . .” (page 12). A key premise of this interpretation
evidently is that both sets of procedures do not apply to any given regulation at the
same time. The provisions, in short, are mutually exclusive on this view.
   Accordingly, the April 23, 1982, memorandum appears to embrace two
different and evidently inconsistent positions: first, that in a particular case, both
§ 3504(h) a n d §§ 3504(c) and 3507 may apply to a regulation (the third pos­
sibility above) and the choice is up to the agency; and second, that in any
particular case, either § 3504(h) or §§ 3504(c) and 3507 (but not both) may
apply to a given regulation (the fourth possibility above). We responded to the
third possibility in section III, where we noted that under such an interpretation,
§ 3504(h) would be rendered relatively redundant. This is so, in sum, because
the purpose of § 3504(h) was to establish a procedural system under which OMB
would review regulations under the Act. If it were possible for OMB to review
regulations under other provisions— including §§ 3504(c) and 3507— which
lack the procedural formalities of § 3504(h), there would be no definite function
left for § 3504(h) to fulfill.92 We also note that the optional character of this
interpretation flies in the face of the mandatory language of § 3504(h) (“each
agency shall forward”).
   The fourth possibility also is subject to the response that it ignores the
exclusive role assigned to § 3504(h) under the statute. The fourth possibility
adds the significantly anomalous result that “ new regulations proposed after the
A ct’s effective date are subject to § 3504(h), with the procedural checks it was
intended to provide, whereas “ old” or “ existing” regulations promulgated
before the A ct’s effective date are subject to §§ 3504(c) and 3507 and could be
overturned without any of the procedural safeguards of § 3504(h). Our concern
with this interpretation is heightened by the fact that it does not give any weight to
the longstanding canon of interpretation that statutory provisions should nor­
mally be read as applying prospectively to events and conditions occurring after
the law’s effective date: “ [t]he rule is that statutes are prospective, and will not be
construed to have retroactive operation unless the language employed in the
enactment is so clear it will admit of no other construction.” 93 The language of
  91 See note 41 supra and accompanying text.
  92 Elaborations on this argument appear supra.
  93 This canon is stated in Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N E. 238, 241 (1898); see also 1 Kent,
Commentaries 454 (3d ed. 1836); Smead, Rule Against Retroactive Legislation, 20 Minn. L. Rev. 775 (1936);
Brewster v. Gage, 280 U .S. 327 (1930), 2A, C . Sands, Sutherland Statutory Construction § 41.04 (4th ed. 1973).


                                                     422
§§ 3504(c) and 3507 does not clearly express the intention that it should be
applied to regulations already promulgated at the time the Act became effective.

C . A dditional Points


   Several additional comments may be made regarding the April 23, 1982,
memorandum.
   (1) Page 2 of the memorandum relies on a passage in the Senate Committee
report stating that the “ imposition of a federal paperwork burden does not depend
on how the questions are asked of the respondent, but rather on the fact the
Federal government has asked or sponsored the asking of questions.” This is said
to support the proposition that such requests could be made by regulations as
easily as by forms, questionnaires, or similar items.
   We discern little guidance in this passage. It does not discuss regulations at all,
but rather is directed at explaining that the phrase, “ or other similar methods,” in
the definition of a “ collection of information” covers oral as well as written
requests. The passage’s meaning may be best understood by considering it as a
whole:

        [T]he Director of OMB has historically included oral techniques
        as instruments for collecting information. Federal agencies have
        increasingly been collecting information from the public through
        the use of telephone surveys and personal interviews. These
        techniques are used either independently or in conjunction with
        other information collection techniques such as mail question­
        naires. The imposition of a federal paperwork burden does not
        depend on how the questions are asked of the respondent, but
        rather on the fact the Federal government has asked or sponsored
        the asking of questions. In concept, oral data collections are the
        same as those conducted through written requests for written
        responses. They should be reviewed under the same standards as
        written requests.94

It appears to be an unduly strained reading of the foregoing passage to view it as
supporting more than the proposition it advances, namely, that oral as well as
written requests are covered by the A ct’s definition of the “ collection of
information.”
   (2) At page 2, the memorandum argues that the Kennedy amendment was
“ clearly premised on the understanding that all reporting and recordkeeping
requirements contained in regulations were required to be routinely approved by
the Director” of OMB. In support of this argument, comments by Senators
Kennedy and Danforth during Senate debate on the bill are quoted at page 3 of the
memorandum.

 " S . Rep. No 930. 96th Cong . 2d Sess 39 (1980)


                                              423
   In our view, the quoted comments do not support the proposition advanced.
The Senators’ comments deal with the procedural requirements under § 3504(h)
governing OMB review of regulations during the process of the developm ent c f
regulations. This is not the same as the review of existing regulations. Further­
more, the Senators do not refer generally to OMB power to approve regulations,
as OMB suggests. Rather, Senator K ennedy’s com m ents, in discussing
§ 3504(h) as reported to the Senate floor and before amendment, concern the
power of OMB to “ overturn” a rule. Similarly, Senator Danforth, in discussing
the Kennedy amendment to § 3504(h), speaks of OMB’s power of “ undoing a
collection of information requirement” in a rule. To overturn or undo an informa­
tional requirement is not the sam e as routinely to approve such a requirement.
These points may be confirmed by viewing in context the Senators’ remarks. As
Senator Kennedy is quoted at page 3:

        This legislation [as then drafted] would permit the Director of
        OMB to overturn a rule which was adopted by an agency without
        providing any procedural rights for the people affected by the rule
        or for the agency that promulgated the rule. Thus, even if an
        agency has complied with all the appropriate procedural require­
        ments for public notice and comment, and has spent years compil­
        ing an adequate agency record, this legislation would permit
        OMB to overturn that agency decision without even requiring
        OMB to justify its decision publicly. I have sponsored an amend­
        ment which lim its the au th ority o f OM B to overturn reporting,
        recordkeeping, and other information collection requirements
        adopted by a Federal agency in a rulemaking proceeding. (Em­
        phasis added.)95

As Senator Danforth is quoted:

        I am willing to accept the Kennedy amendment, which is intended
        to clarify the authority of the Director of the OMB to review
        Federal rules and regulations to determine their impact on Federal
        paperwork. Essentially, as I understand it, the p u rpose c f the
        K enn edy am endm ent is to preven t O M B fro m undoing a collection
        c f inform ation requirem ent specifically contained in an agency
        rule after th at requirem ent has gon e through the adm inistrative
        rulem aking p ro cess if the OMB Director ignored the rulemaking
        process. This seems fair enough.

        I note, however, that this limitation on OMB’s authority is con­
        fined to requirements specifically contained in agency rules.
        (Emphasis added.)96

 95 126 Cong. Rec. 30178-79 (1980)



                                        424
In context, both of these statements about OMB’s ability to “ overturn” an agency
decision, or to “ undo” a collection of information requirement, relate only to the
provisions of § 3504(h) that give the Director a voice in the process of “ develop­
ing rules and regulations.” They do not suggest that the legislation, either before
or after the amendment to § 3504(h), provided a procedure for the review of
existing regulations.
   (3) At page 4 of the April 23, 1982, memorandum, reliance is placed on a
passage in the House Committee report explaining that the Paperwork Reduction
Act covers “ recordkeeping” requirements, which had not been clearly covered
under the Federal Reports Act.97 Although this statement does appear in the
House report, it does not answer the question whether pre-existing regulations
were to be covered or whether regulations were to be reviewed by OMB under
§ 3504(h) alone.
   (4) At page 5, the memorandum states that the Senate amendment to § 3504(h)
“ did not create an exemption for [information] requests in existing regulations.”
We agree. However, this is beside the point, for before it was amended, § 3504(h)
applied only to the process of developing regulations.98 In fact, the Senate
Committee report noted that new regulations caused the greatest paperwork
burden, thus explaining the provision’s emphasis on such regulations.99 Accord­
ingly, § 3504(h), before it was amended in the Senate, applied only to regulations
under developm ent, not to “ o ld ” or “ existing” regulations. After it was
amended, § 3504(h) retained this focus.
   (5) At page 6, the memorandum contends that the Treasury Department’s
interpretation in effect would continue the exemption for the IRS that had been
eliminated by the 1980 statute. We do not agree. The legislative history appears
to make clear that Congress’ attention was focused on the exemption of IRS forms
from the Federal Reports A ct.100 That exemption was eliminated. The Act was
intended to and does cover the IRS in the same manner as other agencies covered
by the Act.
   (6) At page 10, the memorandum argues that the Treasury Department’s
interpretation would “ exempt” from coverage by the Act reporting and rec­
ordkeeping requirements “ in bulletins, instructions, manuals, or guidelines, oral
questionnaires, and in any other instrument other than a written form or like
document.” We do not agree. Treasury is arguing that only § 3504(h) governs
OMB review of regulations under the Act. This argument does not deal with the
additional questions of which kinds of documents or whether oral requests would
be covered by §§ 3504(c) and 3507. We do not interpret Treasury’s argument as
attempting to establish that bulletins, instructions, manuals or guidelines, or oral
requests, could not be covered by the Act.
   (7) At page 13, the memorandum concedes that “ [s]ection 3504(h) admittedly
does not provide by its terms for the assignment [by OMB] of a control number”

 97 See H.R. Rep No. 835, 96th Cong , 2d Sess 19 (1980).
 98 See pages 400 lo 403 supra
 99 See pages 401 to 402 supra
 100 See pages 418 to 419 supra.


                                               425
to a regulation containing a collection of information requirement. However, the
memorandum argues that this fact does not weaken the OMB position because the
requirement of a control number for regulations is made implicit by the Act’s
other provisions.
   This argument, however, begs the main question, namely, whether a collection
of information requirement in a regulation is synonymous with an information
collection request for purposes of OMB review. We believe that the absence of
any statement in § 3504(h) that control numbers should be assigned to regula­
tions is simply one additional indication that Congress did not intend to treat
regulations in the same manner as information collection requests subject to
§ 3507. Congress apparently envisioned that a form, questionnaire, or other
instrument by which a citizen provides information to the government should
have an OMB control number on it. The number’s absence would alert a citizen to
the fact that the required process had not been followed, thus allowing the citizen
to assist, in a sense, in enforcing the Act’s provisions. There is no specific
indication that Congress contemplated the assignment of control numbers to
regulations.101

                                               V. Conclusioira

   After a thorough analysis of the arguments by all parties to this dispute in light
of the language and history of § 3504(h), the language and history of the Act’s
other provisions, and the statute’s general scheme, we conclude that § 3504(h)
establishes a procedure which is mandatory for new regulations but which does
not include a process for routine review of, and a disapproval mechanism for,
existing regulations. We also conclude that the information collection request
procedure set out in § 3507 does not apply to existing regulations.
   A contrary conclusion, in our view, cannot be reconciled with the Act’s
language, the statute’s overall scheme, or its legislative history. Of particular

   101 We recently have received from OMB copies of two letters from Congress dealing with the general question of
the coverage o f the IRS by the Paperwork Reduction Act. One is a letter to the President signed by the members of
the Senate Committee on Government Affairs, dated May 14,1982, expressing opposition to S 2198, the Taxpayer
C ompliance Improvement Act of 1982. on the ground that it contains a provision (§ 202) that would exempt the IRS
from the Paperwork Reduction Act. We express no view about the bill, but would observe that the points made in the
members’ letter do not deal directly with the issue before us.
   The second letter, dated May 20, 1982, is to the Secretary of the Treasury from Senator Lawton Chiles, a member
of the Senate Governmental Affairs Committee and a sponsor of the Act before its passage in 1980. Senator Chiles
takes the position that the Act was intended to empower OMB to review collection of information requirements in
existing regulations under § 3507 We have tw o responses to this letter First, Senator Chiles acknowledges that
§ 3504(h) has a narrower scope than § 3507. H is letter attempts to explain § 3504(h)'s operation by arguing that its
intent is “ to proceduralize the requirements o f the faperwork Acl, in particular those of Section 3507, with those of
the Administrative Procedure Act. . . ” The letter does not deal in specific terms with the basic issue of how the
procedures o f § 3504(h) relate to the procedures of § 3507, which is the questton with which we must deal
   Second, in any event, in interpreting the provisions of the Acl, we must focus on the written legislative history
expressed in Committee reports and floor debate prior to the A ct’s passage. It is a firmly established principle that
subsequent views of individual Congressmen are to be approached with great caution, for they are not the primary
expressions o f legislative intent existing at the time a statute was actually passed See generally NLRB v. Bell
Aerospace 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);
B oard c f Governors v First Lincolnwood C orp., 439 U S. 234, 248 ( 1978). In our view, the effects of the Senate
amendm ent to § 3504(h) were much more significant than apparently Senator Chiles would agree, for the reasons
stated in this opinion. We would observe, however, that if our interpretation of the Act as passed is inconsistent with
the present intent of Congress, it is, of course, free to enact corrective legislation.


                                                       426
importance is the clearly expressed intent in both the Senate and the House
regarding the amendment and subsequent enactment of § 3504(h). Careful
analysis of the Act’s other major provisions and of its legislative history further
supports our conclusion that § 3504(h) provides the exclusive mechanism for
OMB review of regulations.
   Nonetheless, OMB is given substantial authority over existing regulations by
other provisions of the Act, including § 3504(b). We see no insuperable barrier
that would prevent OMB from initiating proposals for changes in existing
regulations that it deems appropriate under the powers given to it by the Act,
which include authority over the IRS and virtually all other agencies of the
federal government.

                                             T h eo d o r e B . O lson
                                          A ssistan t A ttorney G en eral
                                            Office c f L egal Counsel




                                       427
