Date of Download: Sep 9, 2001

USCA (United States Code Annotated)

44 USCA S 3512

Copr. © West 2001 No Claim to Orig. U.S. Govt. Works

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44 U.S.C.A. § 3512 UNITED STATES CODE ANNOTATED

TITLE 44. PUBLIC PRINTING AND DOCUMENTS

CHAPTER 35--COORDINATION OF FEDERAL INFORMATION POLICY

SUBCHAPTER I--FEDERAL INFORMATION POLICY

Copr. © West Group 2001. No claim to Orig. U.S. Govt. Works.

Current through P.L. 107-11, approved 5-28-01

§ 3512. Public protection

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if--

(1) the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

CREDIT(S)

2001 Electronic Update

(Added Pub.L. 104-13, § 2, May 22, 1995, 109 Stat. 181, and amended Pub.L. 106- 398, § 1 [Div. A, Title X, § 1064(b)], Oct. 30, 2000, 114 Stat. 1654, 1654-___.)

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1995 Acts. House Report No. 104-37 and House Conference Report No. 104-99, see 1995 U.S. Code Cong. and Adm. News, p. 164.

2000 Acts. House Conference Report No. 106-945 and Statement by President, see 2000 U.S. Code Cong. and Adm. News, p. 1516.

Amendments

2000 Amendments. Pub.L. 106-398 [Div. A, Title I, § 1064(b)], struck out "chapter" and inserted "subchapter" wherever appearing.

Effective and Applicability Provisions

2000 Acts. Pub.L. 106-398, § 1 [Div. A, Title X, § 1065], Oct. 30, 2000, 114 Stat. 1654, 1654-___, provided that the amendment to this section by Pub.L. 106-398, § 1, [Div. A, Title X, Subtitle G [§§ 1061 to 1065]], Oct. 30, 2000, 114 Stat. 1654, 1654-___, shall take effect 30 days after Oct. 30, 2000. See note set out under section 3531 of this title.

1995 Acts. Section effective Oct. 1, 1995, except as otherwise provided, see section 4 of Pub.L. 104-13, set out as a note under section 3501 of this title.

Prior Provisions

A prior section 3512, added Pub.L. 96-511, § 2(a), Dec. 11, 1980, 94 Stat. 2822, relating to public protection, was omitted in the general revision of this chapter by Pub.L. 104-13.

Another prior section 3512, added Pub.L. 93-153, Title IV, § 409(b), Nov. 16, 1973, 87 Stat. 593, which related to information for independent regulatory agencies, was omitted in the general revision of this chapter by section 2(a) of Pub.L. 96-511.

Delayed Application of 1995 Revision

Pursuant to section 4(c) of Pub.L. 104-13, set out as a note under section 3501 of this title, prior section 3512, as in effect on September 30, 1995, shall continue to apply to the collection of information for which there is in effect on September 30, 1995, a control number issued by the Office of Management and Budget under this chapter, and shall continue so to apply until the earlier of (1) the first renewal or modification of that collection of information after September 30, 1995, or (2) the expiration of its control number after September 30, 1995.

Prior section 3512, as in effect on September 30, 1995, reads as follows:

"Notwithstanding any other provision of law, 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 this chapter."

CROSS REFERENCES

Administrative remedies for false claims and statements, provisions of this section not superceded, see 31 USCA § 3811.

Disclosure to Federal agency of disaggregated information obtained in accordance with this section, see 15 USCA § 57b-2.

LIBRARY REFERENCES

American Digest System

Records k13.

Key Number System Topic No. 326.

United States k41, 57.

Key Number System Topic No. 393.

Encyclopedias

Records, see C.J.S. § 32.

United States, see C.J.S. §§ 41, 74.

NOTES OF DECISIONS

Collection of information 12

Control numbers 9

Defenses

Defenses - Generally 5

Defenses - Time to assert 6

Expiration date of forms 8

False information 4

Information collection requests within section 1

Information for investigative purposes 2

Internal Revenue Service forms 3

Penalties 11

Private right of action 13

Remedies 7

Retroactive effect 1/2

Standing 10

Time to assert, defenses 6

1/2. Retroactive effect

Paperwork Reduction Act (PRA) amendment that requires agencies and courts to entertain PRA arguments that would otherwise have been barred either by statute of limitations or by proponent's failure to have made argument at earlier stage was not applied in impermissibly retroactive manner when Federal Communications Commission (FCC) permitted cellular telephone license applicant to raise PRA issue that FCC had previously dismissed as time-barred without ruling on merits; amendment governed only conduct of litigation after its effective date and did nothing to reopen matters litigated before that date. Saco River Cellular, Inc. v. F.C.C., C.A.D.C.1998, 133 F.3d 25, 328 U.S.App.D.C. 162, rehearing denied, certiorari denied 119 S.Ct. 47, 525 U.S. 813, 142 L.Ed.2d 37.

1. Information collection requests within section

Federal Communications Commission (FCC) regulation which required that applicant for cellular telephone license demonstrate firm financial commitment was "collection of information" within meaning of Paperwork Reduction Act (PRA) section which required Office of Management and Budget (OMB) approval for collection of information, even though FCC regulation required tentative selectee not merely to provide information about but actually to obtain firm financial commitment. Saco River Cellular, Inc. v. F.C.C., C.A.D.C.1998, 133 F.3d 25, 328 U.S.App.D.C. 162, rehearing denied, certiorari denied 119 S.Ct. 47, 525 U.S. 813, 142 L.Ed.2d 37.

Plan of operations required to be filed in connection with obtaining permit for mining activities was an "information collection request" within meaning of Paperwork Reduction Act and since plan of operations filing requirement lacked current control number as required by Act, holders of unpatented mining claims could not be convicted for failing to file plan of operations with the Forest Service. U.S. v. Smith, C.A.9 (Alaska) 1989, 866 F.2d 1092.

Instruction booklets are not "information collection requests" under Paperwork Reduction Act provision forbidding agency from collecting information or subjecting any person to penalty for failing to provide information without first obtaining control number from Office of Management and Budget (OMB); control numbers do not have to be on booklets since booklets are merely publications designed to assist taxpayers to complete tax forms and tax forms themselves display control numbers, and therefore, fact that booklets did not have numbers did not prevent IRS from subjecting taxpayers to penalty for tax evasion and failure to file tax return. U.S. v. Stiner, D.Kan.1991, 765 F.Supp. 663, affirmed 952 F.2d 1401.

2. Information for investigative purposes

Prosecution for evading federal income taxes was not barred by provision of Paperwork Reduction Act stating that no person shall be subject to any penalty for failing to maintain or provide information to any agency if information collection request involved does not display current control number assigned by Director of Office of Management and Budget (OMB), even though Treasury Regulation stating where income tax returns must be filed does not have OMB control number. U.S. v. Neff, C.A.11 (Fla.) 1992, 954 F.2d 698.

Tax forms, particularly Form 1040, are information collection requests subject to prescriptions of Paperwork Reduction Act. U.S. v. Schweitzer, D.Mont.1991, 775 F.Supp. 1355.

Provision of Paperwork Reduction Act, which prohibits penalty for failing to maintain or provide information to an agency if information collection request was made after December 31, 1981, and does not display current control number, applied only to administrative penalties for failure to comply with information request not conforming to Act's requirements and did not apply to prosecution for tax evasion. U.S. v. Karlin, D.Kan.1991, 762 F.Supp. 911.

Summonses of Internal Revenue Service on form 2039 which were served upon corporations pursuant to investigation of corporate president's tax liability were issued pursuant to investigation of "specific individual" and, therefore, were exempt from requirements of Paperwork Reduction Act that control number be stamped by Office of Management and Budget, or that request contain statement that no control number is needed. U.S. v. Particle Data, Inc., N.D.Ill.1986, 634 F.Supp. 272.

That Internal Revenue Service forms did not contain an Office of Management and Budget number on them did not violate this section requiring the affixation of an Office of Management and Budget number to any "information collection request," as this chapter does not apply to collection of information during conduct of an administrative action or investigation involving an agency against specific individuals or entities. Cameron v. I.R.S., N.D.Ind.1984, 593 F.Supp. 1540, affirmed 773 F.2d 126.

3. Internal Revenue Service forms

Paperwork Reduction Act (PRA) is not applicable to Internal Revenue Service (IRS) instruction booklets, which assist taxpayers in filling out 1040 tax form, and thus PRA did not preclude district court from penalizing taxpayer who failed to file federal tax returns for five years; pursuant to PRA, government information request forms must display current Office of Management and Budget control number, and instruction booklet assists taxpayer in filling out return form, but does not independently request information from taxpayer. U.S. v. Ryan, C.A.7 (Ill.) 1992, 969 F.2d 238.

Paperwork Reduction Act did not apply to statutory requirement of filing tax returns, but only to forms themselves, which, in prosecution for willful failure to file tax returns, contained appropriate numbers; thus, defendant's counsel's failure to raise implications of Act did not constitute ineffective assistance of counsel. U.S. v. Wunder, C.A.6 (Ohio) 1990, 919 F.2d 34.

Fact that Internal Revenue Service (IRS) summons were issued on IRS Form 2039 without Office of Management and Budget (OMB) control number, as allegedly required by Paperwork Reduction Act, was not valid basis for quashing summons. Faber v. U.S., W.D.Mich.1999, 69 F.Supp.2d 965.

4. False information

Statute providing that no person shall be subjected to any penalty for failing to maintain information if the collection request does not contain a Paperwork Reduction Act control number does not protect an individual against prosecution for making false statements on government forms. U.S. v. Sasser, C.A.10 (Okla.) 1992, 974 F.2d 1544, certiorari denied 113 S.Ct. 1063, 506 U.S. 1085, 122 L.Ed.2d 368.

Paperwork Reduction Act section providing that no person shall be subject to penalty for failing to maintain or provide information to agency if information collection request does not display current control number did not protect from prosecution a defendant for knowingly making false writing containing materially false statement and using visa knowing same to have been procured by means of false statement arising out of his failure to indicate on his visa application form that he had two convictions for assault in Japan. U.S. v. Matsumoto, D.Hawai'i 1991, 756 F.Supp. 1361.

5. Defenses--Generally

A miner could not be subject to a penalty for constructing a road on National Forest Service land without authorization or an approved operations plan where the Forest Service failed to comply with the Paperwork Reduction Act when it required the miner to file an operations plan. U.S. v. Hatch, C.A.9 (Nev.) 1990, 919 F.2d 1394.

6. ---- Time to assert

A defendant charged with unlawfully and knowingly constructing a road on National Forest Service land without authorization or an approved operations plan could raise the information's failure to charge an offense at any time during the pendency of the proceedings; the defendant could not be subject to a penalty because the Forest Service failed to comply with the Paperwork Reduction Act. U.S. v. Hatch, C.A.9 (Nev.) 1990, 919 F.2d 1394.

7. Remedies

Paperwork Reduction Act section providing that no person shall be subject to penalty for failing to maintain or provide information to agency if information collection request does not display current control number does not render "bootleg" forms of no legal force or effect and does not afford a remedy for government misconduct akin to remedy afforded by exclusionary rule. U.S. v. Matsumoto, D.Hawai'i 1991, 756 F.Supp. 1361.

8. Expiration date of forms

Even if Paperwork Reduction Act requires an expiration date, designation of year "1981" on income tax form 1040 was sufficient to satisfy the Act's requirement. Salberg v. U.S., C.A.7 (Ill.) 1992, 969 F.2d 379.

Although public protection provision of Paperwork Reduction Act (PRA) requires control numbers on information collection requests to be current, there is no explicit requirement in PRA that forms must display expiration date. U.S. v. Burdett, E.D.N.Y.1991, 768 F.Supp. 409.

9. Control numbers

A defendant's tax evasion conviction would not be overturned on basis that relevant Internal Revenue Service (IRS) regulations and instruction books did not display Office of Management and Budget (OMB) control numbers as allegedly required by the Paperwork Reduction Act; defendant was convicted of violating a statute, rather than any requirement in a regulation or instruction book. Salberg v. U.S., C.A.7 (Ill.) 1992, 969 F.2d 379.

Government's failure to include "OMB" number on Internal Revenue Service (IRS) summons as required under Paperwork Reduction Act of 1908 was not serious violation of Act, caused no harm to tax protestor who received summons, and did not allow tax protestor to ignore summons. U.S. v. Stoecklin, M.D.Fla.1994, 848 F.Supp. 1521.

Section of the Paperwork Reduction Act stating that "no person shall be subject to any penalty" for failure to satisfy an agency's information request that "does not display a current control number assigned" by the Office of Management and Budget (OMB) does not waive the government's sovereign immunity to allow suits for money damages by private citizens who feel unduly burdened or penalized by the government's failure to comply with the Act. Pacific Nat. Cellular v. U.S., Fed.Cl.1998, 41 Fed.Cl. 20.

10. Standing

Importer of aircraft parts lacked standing to claim that government violated Paperwork Reduction Act by sending questionnaire to importer's customers without first obtaining approval from Office of Management and Budget; information request had not been directed to importer. Wag-Aero, Inc. v. U.S., E.D.Wis.1993, 837 F.Supp. 1479, affirmed 35 F.3d 569, rehearing denied.

11. Penalties

Paperwork Reduction Act (PRA) does not operate to preclude penalties when a reporting obligation is required by statute rather than by regulation. Gossner Foods, Inc. v. Environmental Protection Agency, D.Utah 1996, 918 F.Supp. 359.

12. Collection of information

Failure of cover letter from regional office for veterans benefits, which accompanied returned application form for disability benefits that was not complete, to display valid control number did not violate Paperwork Reduction Act; letter was not "collection of information" within meaning of Act because it did not contain questions posed to applicant, and application enclosed with letter, which posed questions, displayed valid control number. Fleshman v. West, C.A.Fed.1998, 138 F.3d 1429, certiorari denied 119 S.Ct. 371, 525 U.S. 947, 42 L.Ed.2d 307.

13. Private right of action

Prospective employee could not maintain claim under Paperwork Reduction Act against hospital based on hospital's failure to hire employee after he refused to provide his social security number, since the Act did not authorize private right of action, but instead authorized its protections to be used as a defense. Sutton v. Providence St. Joseph Medical Center, C.A.9 (Cal.) 1999, 192 F.3d 826.

44 U.S.C.A. § 3512

44 USCA § 3512

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