Another relevant provision is section 3507(e) which authorizes the OMB Director, following notice and comment, to delegate his approval authority to the agency's senior official designated to carry out paperwork functions.220 Delegations are only to be made if the senior offical "is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively.... Of course, the agency's senior official must comply with OMB's regulations in reviewing agency information collection requests. „221 222 Finally, OMB's general clearance procedure is subject to the Act's provision that independent regulatory agencies may, by majority vote of their members, override an OMB decision disapproving an information collection request or a collection of information requirement.223 In 1973, the Federal Reports Act was am ended to replace OMB review of independent agencies' information requests with review by the General Accounting Office. In re-establishing OMB as the central coordinator of information policy, Congress adopted the compromise of giving 224 independent agencies override authority. d. Substantive standard of review. The substantive standard governing OMB review of agency information collection requests and collection of information requirements is "whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency." 1225 Also pertinent to OMB's authority is 220/ 44 US.C. § 3507(e). 221/ Id. As of October 31, 1982, no delegations of clearance authority had been made. See General Accounting Office, Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain, supra note 187, at 49 (Appendix I). 222/ Id. 223/ 44 U.S.C. S 3507(c). 224/ See Senate Report, supra note 191, at 47-48. 225/ 44 US.C. SS 3504(cX2); 3508. The legislative history does not greatly amplify upon the standard. The Senate committee (Continued) section 3518(e), which states: Nothing in this chapter [the Act] shall be interpreted as This provision was added to make clear that-though intending paperwork reduction review to complement substantive review pursuant to the existing executive order-Congress did not want the Paperwork Reduction Act to be used for general substantive regulatory reform. This was partly out of concern that paperwork and information policy concerns would be 228 subordinated to substantive review. 227 Through its final regulations, OMB has attempted to give content to the broad statutory standard for review of agency paperwork burdens. Any collection of information specifically mandated by statute or court order will be considered "necessary" by OMB, as will any information collection request required by an agency rule.229 Additionally, OMB has established general report states that the "necessity" test includes "whether the collection of information: (1) has practical utility for the agency, (2) is not more than the minimum needed to meet the agency's objective, or (3) is not duplicative of similar information otherwise accessible." Senate Report, supra note 191, at 49. 226/ 44 US.C. S 3518(e). 227/ See Senate Report, supra note 191, at 8-9. 228/ Id. at 9. See also General Accounting Office, Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain, supra note 187, at iii ("GAO believes the most crucial decision contributing to the shortfalls in completing many of the Paperwork Reduction Act's tasks was assigning OIRA primary responsibility for the Administration's regulatory regulatory reform program.") 229/ OMB Paperwork Regulations, S 1320.4(c), supra note 190, at 48 Fed. Reg. 13,690. However, OMB will independently assess the requests or requirements to the extent that they are exercises of agency discretion beyond the specific requirements of the statute, (Continued) guidelines that will be applied unless the agency can demonstrate the need for exception to them.230 Among other things, OMB 232 234 233 generally will not approve a collection of information that requires 231 reporting more often than quarterly;" that requires a response in less than 30 days; that requires respondents to submit more than an original and two copies of a document;" that requires persons to retain records (other than health, medical, or tax records) for more than three years; that is connected with a statistical survey that is not designed to produce results that can be generalized to the universe of study;" that does not attempt to ease the burden for small entities; that requires respondents to submit confidential information, unless the agency has instituted permissible procedures to protect the information; or that requires persons to maintain or provide information in a format other than that in which it is customarily maintained. 235 236 237 238 5. "Hybrid" Rulemaking Statutes. As discussed in Chapter 239 One, 'the unifying effect of the APA has been undermined in the rulemaking area by the now almost routine addition of procedural requirements in new legislation delegating rulemaking power. "Hybrid rulemaking," as used here, means rulemaking requiring use of more procedures than mandated by section 553 of the APA for informal rulemaking, but fewer or less stringent procedures than required by sections 556 and 557 of the APA for formal rulemaking. Thus defined, hybrid rulemaking statutes can range from those requiring compliance with section 553, plus one other procedure (e.g., consultation with an advisory committee), to those requiring compliance with numerous additional procedures, including cross-examination or regulatory analysis. The list of order, or rule. Id. 230/ Id., S 1320.6 at 48 Fed. Reg. 13,690-91. 231/ Id., § 1320.6(a). 232/ Id., S 1320.6(b). 233/ Id., 1320.6(c). 234/ Id., S 1320.6(f). 235/ Id., S 1320.6(g). 236/ Id., S 1320.6(h). 237/ Id., S 1320.6(i). 238/ Id., S 1320.6(j). 239/ See Chapter One at pp. 6-7. hybrid rulemaking statutes that follows includes all of the major hybrid rulemaking schemes, but it undoubtedly omits some statutes that would qualify as hybrid rulemaking statutes under the general definition given above. 1969 Federal Coal Mine Health and Safety Act, [Mandatory health and safety standards] -30-day minimum comment period; - public hearing if requested; agency decision within 60 days after hearing; -standard to be effective upon publication in Federal Register. 1977 Mine Safety and Health Standards Amendments, -Secretary required to consult with advisory committee; - notice to include text of proposed rule; - if public hearing requested, must be held within 60 - agency decision within 90 days after certification -emergency temporary standards authorized, but following normal procedure, must be initiated. 1970 Occupational Safety and Health Act, Pub. L. No. 91-596, 84 Stat. 1590, 1593 (codified at 29 U.S.C. S 655 (1976)). [Occupational safety & health standards] - consultation with advisory committee; - 30-day comment period; - oral hearing if requested; deadlines for final action and effective date; emergency temporary standards authorized upon finding of "grave danger" to employees, but must be accompanied by proceeding to develop permanent standard following normal procedure. substantial evidence review. of standards. 1981 Consumer Product Safety Amendments, Pub. L. No. 97-35, title XII, 95 Stat. 703 amended 15 US. C. S 2056 to delete offeror proce text of proposed standard must be published, toget with preliminary regulatory analysis; notice of proposed rulemaking must be sent to Co final regulatory analysis to accompany final rule. 1974 Safe Drinking Water Act (amending the Public Service Act), Pub. L. No. 93-523, S 2(a), 88 Stat. 1660, 1662-64 (codified at (42 U.S.C. S 300g-1(dX1976)). 1975 Magnuson-Moss Warranty-Federal Trade Commiss Improvement Act, title II, Pub. L. No. 93-637, 88 Stat. 21 83, 2193 (codified at 15 US.C. S 57a (1976). [Rules defining unfair or deceptive acts or practices] - comply with 5 U.S.C. $ 553 requirements, notice of proposed rulemaking that includes stateme of reasons; - oral hearing required; 67 |