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Appendix 2.f.

(Revised May 11, 1998)


1. What you need to do before collecting information from the public

Background and Objectives

A government office cannot ask or require the public to provide it with information just because that office has decided that it needs or wants the information. For years members of the public have been complaining about the expense of answering information requests, especially ones that seem unnecessary. In response to this, there are clearance procedures for any planned information collections. This issuance explains (1) what types of collections require clearance, (2) what the clearance process involves, and (3) what you must do to obtain clearance if you do plan to make an information collection.

Types of Information Collections Affected

Your collection needs clearance from the Office of
Management and Budget (OMB), Executive Office of the President, if it uses identical questions to obtain or solicit facts or opinions from 10 or more persons. If the information is not obtained by the Federal Government, but is distributed to the general public or to third parties, the Paperwork Reduction Act (PRA) may not apply; however, contact F/SF5 for specific guidance. The term "persons" includes corporations, universities, state and local agencies, associations, etc., as well as individuals. You do not need to obtain a clearance for a collection aimed at Federal agencies unless the information will be used for general statistical purposes.

Although the law requires the clearance of only those
collections affecting 10 or more persons, OMB has interpreted this section of the law broadly in its regulations (5 CFR part 1320). Two presumptions are included in OMB's definition of "ten or more persons." Any recordkeeping or reporting requirement contained in a rule of general applicability is deemed to involve ten or more persons. Any information collection request addressed to all or a substantial majority of an industry is presumed to involve 10 or more persons, although this assumption is rebuttable.

You are regarded as the "sponsor" of a collection if the information being gathered is for your use; so you are responsible for obtaining clearance even if the information is actually being gathered by a contractor, a state government, or another agency, as long as you are the one "causing" the collection. Specific tests are applied in determining whether data collected by a state under a cooperative agreement with NMFS are considered "information collections" for purposes of the PRA. Generally, it must be shown that the state has the authority, and would have used that authority, to impose the same recordkeeping or reporting requirement in the absence of a cooperative agreement. All such interpretations should be cleared through F/SF5 to avoid inconsistencies.

You still may have an information collection to which the PRA applies, even if there is no form involved. If you use telephone or personal interviews, for instance, to ask standard questions of 10 or more persons, your collection requires clearance. There are very few exceptions to the clearance requirements. Some people have believed that they do not need clearance for technical or voluntary collections, but this is not the case. If you are planning any collection, contact F/SF5 for advice as to the requirements for your specific situation.

Types of Clearances Required

Information collections need two types of clearances, and the relationship between them causes some confusion. One clearance process requires submission of a standard form OMB 83-I to request OMB approval for a specific collection. The other procedure is the Information Collection Budget process. We will examine each procedure separately, and then see how they interrelate.

a. The Information Collection Budget (ICB): The first clearance necessary for a new information requirement involves the ICB, which is an attempt by OMB to maintain control over the burden the agency will be placing on the public. The agency submits to OMB (through DOC) a listing of all new information collections planned for the upcoming fiscal year and reports on the new collections which actually took place in the current year. Minimal information is required. In the ICB process, clearance is assumed unless specific disapproval of a collection takes place. The ICB no longer includes existing collections and no burden hour ceiling is established by the process.

b. OMB 83-I Clearance: A sponsor of an information collection needing clearance must submit an OMB 83-I and a Supporting Statement for OMB approval, as well as copies of any forms, questionnaires, laws, or regulations involved in the collection. The directions for preparing clearance requests are contained in guidance issued by the NOAA Clearance Officer, OA1x1.

The information required by OMB is quite specific, enabling a detailed review of the collection to determine whether the information requested is important enough to justify the burden on the public. Generally, OMB can approve or disapprove a collection as submitted, or it can make its approval contingent upon changes in the collection's scope or format. Collections imposed by rulemaking must be approved before they can become effective in a final or interim rule.

If OMB approves the collection, it issues a control number and an expiration date, both of which must appear on any forms used in the collection. The forms must also inform the potential respondent of the obligation to respond to the information request (is it mandatory, voluntary, or required to obtain or retain a benefit) and the amount of time an average response is estimated to take. There is a format for the latter statement that can be obtained from F/SF5.

OMB approval is only valid for the collection as it was described in the OMB 83-I request. If you make any substantial changes in the collection you must submit a revised OMB 83-I package. For example, the OMB 83-I requires an estimate of the annual reporting and recordkeeping burden in hours the collection will impose upon the public. "Burden hours" is a key term meaning the amount of time required by the public to read or listen to the request, gather any data needed, fill out any forms involved, etc. You may not increase the number of burden hours involved in a collection by adding questions or the number of people involved without revising and resubmitting the clearance package and waiting for OMB approval. You also may not substantially revise a collection's questions without approval, even if you anticipate that the total burden will not change or might even be reduced.

OMB approval of an OMB 83-I request for clearance of information collections is limited by law to a maximum of 3 years. Requests for extension of approval must be
submitted well before the expiration date (e.g., 90 days before the expiration date). F/MS periodically issues a status report that outlines when clearances will expire and when renewal requests are due.

Procedures for Clearance of New Collections

An ICB call is usually issued each May or June. NOAA's Information Resources Management Staff, OA1x1, assembles and coordinates the submissions. At this time, you will need to identify any possible new collections for the next fiscal year. To make a submission, you just need to know the general objective of the collection and approximately how many hours it will take the public to respond to it. If your collection has missed the ICB formulation process, you must provide an explanation with the OMB 83-I submission below explaining why the collection was not foreseen. Procedures for clearance of collection-of-information requests are subject to change and the information required by OMB will be made on an annual basis.

Upon submission of an ICB entry, you can proceed at any time with more detailed planning for the collection unless you hear otherwise. You need to have completed this planning before starting the OMB 83-I clearance procedures. You need to know what the objectives of the collection are, what the specific questions will be, what any questionnaire will look like, how the information is going to be used, who is being required/requested to supply information, approximately how long it will take to respond to the questions, what the effects will be on a person who fails to respond, etc. OMB has issued some general guidelines for collections; your clearance request will have to justify any variations from these guidelines.

If your proposed collection is going to be included in a rulemaking, special procedures must be followed. See the paragraph below on "Rulemaking Submission Procedures" and
5 CFR 1320.13.

An OMB 83-I package should be submitted to OA1x1 through F/SF5. The package usually needs to reach OA1x1 through these channels at least 75 days before the planned collection is to take place, since OMB is permitted a 60-90 day review period. There are provisions for "emergency" collections when approval can be given quickly, but these only apply to situations that were unforeseeable. If you think you do have an emergency action, contact F/SF5 for advice.

Clearance for In-place Collections

All collections now being conducted should have OMB approval. F/SF5 will advise you when the OMB approval is approaching expiration, and this will allow you time to submit a new OMB 83-I package if you intend to renew the collection. If you change the collection at any time prior to the expiration date it is your responsibility to contact F/SF5 to find out whether a revised request for collection of information needs to be submitted. Sponsors of approved collections do not need to make an ICB submission unless otherwise instructed.

Rulemaking Submission Procedures

If you are going to issue a rule that includes an information collection, a recordkeeping requirement, or a public disclosure requirement, there is a separate set of procedures that must be followed; F/SF5 can provide additional information. It is essential that the clearance process is started well before the proposed rule stage. Failure to do so can lead to OMB disapproval, and seriously impair the effectiveness of your rule. The clearance request must have reached OMB on or before the date of the publication of the proposed rule in the Federal Register. Information collections in interim or final rules cannot be made effective until OMB approval has been received.

Collections Affecting Educational Institutions

There is an additional clearance process required for
collections whose primary respondents are educational institutions. Clearance for such collections must be obtained (through OA1x1) from the Federal Education Data Acquisition Council, which is part of the Department of Education. F/FS5 needs to be informed of such new collections by February 1 if they are to take place in the next fiscal year. Planning this far in advance can be difficult, but it has to be done to obtain OMB approval.

2. State-collected data

Reliance on state data collection has been an acceptable means to fulfill data needs of an FMP. Such an approach has minimized the public and private costs of data collection by avoiding Federal duplication of existing state activities. In such a case the existing state regulation is referenced in the proposed or final rule as the source of data for FMP decision-making. This does not trigger OMB approval under the PRA.

The use of state-collected data and OMB approval is slightly clouded when it is provided to NMFS under terms of a cooperative statistics agreement. OMB believes the Federal Government imposes a burden (i.e., triggers PRA) when it causes another entity to impose or request a collection of information to meet a Federal request or requirement. Specific tests are used by NMFS and OMB to determine whether data collections by a state under a cooperative agreement with NMFS are subject to burden hour approval. A cooperative agreement does not trigger the PRA if: (1) The state already gathers the information in question for its own use, and NMFS is just gaining access to it by making Federal data available to the state; (2) the state is instituting a new collection as a result of an agreement with NMFS to avoid the duplication of data-gathering efforts, but the state acts under its own authority and will use the information obtained for its own purposes, not just provide it to NMFS; or (3) any Federal money given to the state is for processing fishery data, or continuing its current collection efforts, and does not constitute payment for conducting specified information collections. A cooperative agreement triggers the PRA if: (1) NMFS specifically requests the state to institute a data collection for Federal use; or (2) NMFS gives money to a state for the express purpose of collecting specific types of fishery data, or retains approval authority for any collection conducted.

Determination of need for OMB approval of state-collected data should be made early in the FMP process. If requested, F/SF5 will help the sponsoring office to determine, during the draft FMP or amendment phase, if OMB approval is needed. Joint consultation with the Region/Center, Council, state, and Regional Attorney is important.

3. Voluntary v. mandatory

Changes from voluntary to mandatory collection methods would require OMB approval of the revision (see 5 CFR 1320.11 (h)). No substantive or material modification may be made by an agency in an information collection request or requirement after it has been assigned an OMB control number unless the modification has been submitted to OMB for review and approved pursuant to the procedures outlined in this part.

In the preamble of its regulations when published in the Federal Register, OMB cited section 3504(h)(5)(d) of the PRA as granting OMB the authority to disapprove a collection of information if an agency materially modified a collection of information without adequately notifying OMB. Conversion from voluntary to mandatory information collection would be considered a substantive modification of the existing requirement, even though the number of responses and burden hours may not change.


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