ELIZABETH DOLE, SECRETARY OF LABOR, ET AL., PETITIONERS V. UNITED STEELWORKERS OF AMERICA, ET AL. No. 88-1434 In The Supreme Court Of The United States October Term, 1988 The Acting Solicitor General, on behalf of Elizabeth Dole, Secretary of Labor, et al., petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit PARTIES TO THE PROCEEDING The petitioners are the Secretary of Labor and the Assistant Secretary for Occupational Safety and Health. The following parties participated in the proceeding that is the subject of this petition: the United Steelworkers of America; Public Citizen, Inc.; Building and Construction Trades Department, AFL-CIO; Associated Builders and Contractors, Inc.; Associated General Contractors of America; Construction Industry Trade Associations; and United Technologies Corporation. TABLE OF CONTENTS Question Presented Parties to the Proceeding Opinion below Jurisdiction Statutory and regulatory provisions involved Statement: A. The Paperwork Reduction Act B. The OMB regulations C. The present dispute Reasons for granting the petition Conclusion OPINION BELOW The opinion of the court of appeals (App., infra, 1a-13a) is reported at 855 F.2d 108. JURISDICTION The judgment of the court of appeals (App., infra, 14a-17a) was entered on August 19, 1988. Petitions for rehearing were denied on November 28, 1988 (App., infra, 18a-21a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Section 3504(c) of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., provides in pertinent part: The information collection request clearance and other paperwork control functions of the Director shall include: (1) reviewing and approving information collection requests proposed by agencies; (2) determining whether the collection of informtion by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency; * * * * * 44 U.S.C. 3504(c). Section 3502(11) defines the term "information collection request" as: a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information. 44 U.S.C. 3502(11) (Supp. IV 1986). Section 3502(4) defines the term "collection of information" as: the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either -- (A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employes of the United States; or (B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes. 44 U.S.C. 3502(4). 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 whether the information will have practical utility. Before making a determination the Director may give the agency and 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. 44 U.S.C. 3508. Section 3518 provides in pertinent part: (a) Except 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 chapter. * * * * * (e) Nothing 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, including the substantive authority of any Federal agency to enforce the civil rights laws. 44 U.S.C. 3518. The Office of Management and Budget's regulations implementing the Paperwork Reduction Act, which were recently revised (53 Fed. Reg. 16,618 (1988)), provide in pertinent part: Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or to the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the "collection of information" whenever the same requirement to obtain or compile information would be a "collection of information" if the information were directly provided to the agency. The public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure is not included within this definition. 5 C.F.R. 1320.7(c)(2). QUESTION PRESENTED The Paperwork Reduction Act of 1980 requires, among other matters, that the Office of Management and Budget (OMB) review federal agency information collection activities to determine whether the collection of information is necessary for the proper performance of the functions of the agency. In this case, OMB reviewed and disapproved three provisions of the Secretary of Labor's hazard communication standard, which requires employers to communicate chemical hazard information to their employees. The question presented, which arises in a contempt action against the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health, is whether the Paperwork Reduction Act's review process applies to agency regulations, developed as part of the agency's statutory mission, that require regulated entities to collect information for disclosure to third parties. STATEMENT A. The Paperwork Reduction Act The Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. 3501 et seq., is intended to minimize the burden and maximize the usefulness of the federal government's collection and dissemination of information. See 44 U.S.C. 3501. The PRA assigns principal responsibility for this task to the Director of OMB, who is accountable, among other matters, for developing federal information policies and overseeing their implementation. See 44 U.S.C. 3504(a), (b). The PRA specifically provides: The information collection request clearance and other paperwork control functions of the Director shall include: (1) reviewing and approving information collection requests proposed by agencies; (2) determining whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency; * * * * * 44 U.S.C. 3504(c). The PRA defines the term "agency" to include virtually all executive departments, government corporations, and independent regulatory agencies. See 44 U.S.C. 3502(1), (10). It defines the term "information collection request" as "a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information" (44 U.S.C. 3502(11) (Supp. IV 1986)). The PRA defines the term "collection of information" as: the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either -- (A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or (B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes. 44 U.S.C. 3502(4). The PRA defines the term "recordkeeping requirement" as a "requirement imposed by an agency on persons to maintain specified records" (44 U.S.C. 3502(17) (Supp. IV 1986)), and it defines the term "practical utility" as "the ability of an agency to use information it collects, particularly the capability to process such information in a timely and useful fashion" (44 U.S.C. 3502(16) (Supp. IV 1986)). The PRA provides that each federal agency "shall be responsible for carrying out its information management activities in an efficient, effective, and economical manner and for complying with the information policies, principles, standards, and guidelines prescribed by the Director." 44 U.S.C. 3506(a). Furthermore, a federal agency "shall not conduct or sponsor the collection of information" unless (1) the agency has taken action to reduce the paperwork burden; (2) the agency has submitted the proposed information request to the Director of OMB; and (3) "the Director has approved the proposed information collection request, or the period for (the Director's) review of information collection requests * * * has elapsed." 44 U.S.C. 3507(a) (1982 and Supp. IV 1986). /1/ "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 function of the agency, including whether the information will have practical utility. Before making a determination the Director may give the agency and 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." 44 U.S.C. 3508. /2/ The PRA instructs the Director of OMB to "promulgate rules, regulations, or procedures necessary to exercise the authority provided by this chapter." 44 U.S.C. 3516. The PRA also specifies the effect of the Act on existing law. It states: Except 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 chapter. 44 U.S.C. 3518(a). The PRA further provides: Nothing 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, including the substantive authority of any Federal agency to enforce the civil rights laws. 44 U.S.C. 3518(e). B. The OMB Regulations The Director of OMB has promulgated regulations, pursuant to 44 U.S.C. 3516, implementing the PRA. See 5 C.F.R. 1320 et seq. The regulations, which were first issued in 1983 (48 Fed. Reg. 13,689) and were revised in 1988 (53 Fed. Reg. 16,618), supplement the statute's requirements with additional practical guidance on the meaning of statutory terms and the manner in which OMB shall conduct its paperwork review. For example, the OMB regulations provide extensive guidance on the practical application of the statutory term "collection of information." See 5 C.F.R. 1320.7(c). As explained above, the PRA defines the term as "the obtaining or soliciting of facts or opinions by the agency" (44 U.S.C. 3502(4)). The OMB regulations interpret that phrase as including "any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information" (5 C.F.R. 1320.7(c)). The PRA also specifies that a "collection of information" may be conducted through various means including "reporting or recordkeeping requirements, or other similar methods" (44 U.S.C. 3502(4)). The OMB regulations explain that a "'(r)ecordkeeping requirement' * * * includes requirements that information be maintained or retained by persons but not necessarily provided to an agency" (5 C.F.R. 1320.7(r)) and that a "'(r)eporting requirement' means a requirement imposed by an agency on persons to provide information to another person or to the agency" (5 C.F.R. 1320.7(s)). /3/ More generally, the OMB regulations state: Requirements by an agency or a person to obtain or compile information for the purpose of disclosure to members of the public or to the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the "collection of information" whenever the same requirement to obtain or compile information would be a "collection of information" if the information were directly provided to the agency. * * * 5 C.F.R. 1320.7(c)(2). The OMB regulations set forth the general requirements that an agency must meet to obtain the Director's approval, pursuant to 44 U.S.C. 3507 and 3508, of an information collection request. See 5 C.F.R. 1320.4. First, an agency must demonstrate, in accordance with the statutory criteria, that "it has taken every reasonable step to ensure that: (1) The collection of information is the least burdensome necessary for the proper performance of the agency's functions to comply with legal requirements and achieve program objectives; (2) The collection of information is not duplicative of information otherwise accessible to the agency; and (3) The collection of information has practical utility. * * *." 5 C.F.R. 1320.4(b). Next, OMB determines, in accordance with 44 U.S.C. 3508, "whether the collection of information, as submitted by the agency, is necessary for the proper performance of the agency's functions." 5 C.F.R. 1320.4(c). "In making this determination, OMB will take into account the criteria listed in Section 1320.4(b), and will consider whether the burden of the collection of information is justified by its practical utility." 5 C.F.R. 1320.4(c). /4/ In addition, "OMB will consider necessary any collection of information specifically mandated by statute or court order, but will independently assess any collection of information to the extent that the agency exercises discretion in its implementation." 5 C.F.R. 1320.4(c)(1). C. The Present Dispute The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., is intended "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (29 U.S.C. 651(b)). To accomplish this goal, the OSH Act authorizes the Secretary of Labor "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce" (29 U.S.C. 651(b)(3)). These standards "require() conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment" (29 U.S.C. 652(b)(8)). See 29 U.S.C. 655. The Secretary has promulgated numerous standards regulating occupational exposure to various chemical hazards. See 29 C.F.R. 1900.1000-1900.1101. /5/ This suit arises out of the Secretary of Labor's efforts to promulgate a comprehensive hazard communication standard, pursuant to the OSH Act, for the purpose of "ensur(ing) that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees" (29 C.F.R. 1900.1200(a)(1)). The question is whether the Secretary's hazard communication standard is subject to OMB review in accordance with the PRA. The Secretary first published a hazard communication standard in 1983. That standard, whichh was limited to the manufacturing sector of the economy, required covered employers to inform their employees of all hazardous substances to which they are exposed in the workplace through the use of container labels, material safety data sheets (MSDSs), and employee training programs. See 29 C.F.R. 1910.1200(a)(2) (1984); 48 Fed. Reg. 53,280 (1983). OMB reviewed and approved the standard's collection of information requirements (ibid.). A number of states and employee interest groups objected to the standard on various other grounds and sought judicial review. /6/ The court of appeals rejected most of the challenges to the Secretary's hazard communication standard. See United Steelworkers of America v. Auchter (USWA I), 763 F.2d 728 (3d Cir. 1985). The court disagreed, however, with the Secretary's decision to limit the standard's coverage to the manufacturing sector. The Secretary had explained that he was limiting the standard's coverage based on his determination "to first regulate those industries with the greatest demonstrated need" (48 Fed. Reg. at 53,286). The court concluded, however, that there was record evidence justifying extension of the standard to the non-manufacturing sectors. It therefore directed the Secretary: to reconsider the application of the standard to employees in other sectors and to order its application to other sectors unless he can state reasons why such application would not be feasible. USWA I, 763 F.2d at 736-738, 739. In response to the court's order, the Secretary reopened the record to gather additional evidence about the economic and technological feasibility of applying the hazard communication standard to non-manufacturing industries. See 50 Fed. Reg. 48,794 (1985). Based on this newly acquired evidence and on the previous rulemaking record, the Secretary commenced drafting a prroposed rule that he expected to publish for notice and comment followed by promulgation of a final rule in early 1988. See 52 Fed. Reg. 31,852, 31,854 (1987). Certain parties to the USWA I litigation objected to the new rulemaking and moved the court of appeals to hold the Assistant Secretary in contempt for failing to revise the hazard communication standard based on the existing administrative record. The court of appeals agreed that the regulatory revision should be based on the existing record and directed, under threat of contempt sanctions, that the Secretary: within sixty days of the date of our order, publish in the Federal Register a hazard communication standard applicable to all workers covered by the OSH Act, including those which have not been covered in the hazard communication standard as presently written, or a statement of reasons why, on the basis of the present administrative record, a hazard communication standard is not feasible. United Steelworkers of America v. Pendergrass (USWA II), 819 F.2d 1263, 1270 (3d Cir. 1987) (footnote omitted). Although the federal government disagreed with that ruling, the Solicitor General, after rehearing was denied, determined not to file a petition for a writ of certiorari. On August 24, 1987, the Secretary complied with the court's order and issued a final revised hazard communication standard covering both the manufacturing and the non-manufacturing sectors of the economy (29 C.F.R. 1910.1200). See 52 Fed. Reg. 31,852 (1987). In addition to the extended coverage, the revised standard included several modifications to the original standard designed to make the standard more suitable to the non-manufacturing sectors. Id. at 31,860. /7/ Shortly thereafter, OMB held a public hearing, pursuant to the PRA, to solicit comments on the recordkeeping, notification, and other paperwork requirements of the revised standard. See 52 Fed. Reg. 36,652 (1987). On October 23, OMB notified the Department of Labor that it disapproved three particular provisions that the Secretary had added to the standard. App., infra, 22a-44a. It specifically disapproved: (1) "the requirement that (MSDSs) be provided on multi-employer worksites" either through the exchange of MSDSs among employers or their maintenance at a central location at the worksite; (2) "coverage of any consumer product excluded from the definition of 'hazardous chemical' under Section 311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986" (i.e., "any substance packaged in the same form and concentration as a consumer product whether or not it is used for the same purpose as the consumer product" (App., infra, 36a)); and (3) "coverage of any drugs regulated by (the Food and Drug Administration) in the non-manufacturing sector" including those not sold in solid, final form. App., infra, 25a, 43a. See 52 Fed. Reg. 46,076 (1987); 29 C.F.R. 1910.1200(b)(6)(vii), (b)(6)(viii), and (e)(2)(i) (1987). OMB's disapproval of the first requirement was based on its determination that the options provided for either mandatory exchange of potentially huge numbers of MSDSs at the worksite or depositing this information at a central location on the worksite (as opposed to a requirement that they be made available upon request) would impose substantial paperwork requirements but would have little, if any, practical utility. See App., infra, 30a-33a. As for the other disapprovals, OMB concluded, among other matters, that the disclosures mandated by those provisions would be inconsistent with related EPA requirements (for consumer products) and would substantially duplicate disclosures already required by the FDA (for drugs). See id. at 33a-38a. OMB instructed the Secretary "to revise these requirements * * * or collect new information that would warrant a reconsideration of our decision" (id. at 26a). /8/ The organizations representing employee interests in USWA I and USWA II returned once again to the court of appeals and requested that court to hold the Secretary and the Director of OMB (who was not a party to the previous litigation) in contempt. They argued that the Secretary violated the earlier orders when she acceded to OMB's review and disapproval of portions of the standard and, more fundamentally, that OMB lacked authority under the PRA to disapprove the pertinent provisions of the hazard communication standard. The court of appeals, while declining to hold the Secretary or the Director in contempt, agreed with the attack on OMB's authority and invalidated the disapproval, in effect restoring the standard to the form promulgated by the Secretary. United Steelworkers of America v. Pendergrass (USWA III), App., infra, 1a-13a. The court recognized that the PRA authorizes OMB to determine "whether the collection of information by an agency is necessary for the proper performance of the functions of the agency" (44 U.S.C. 3504(c)(2)). See App., infra, 7a. It held, however, that the pertinent provisions of the hazard communication standard "are insulated from OMB authority" (id. at 8a) because they do not "require the 'collection of information'" (ibid.) and they "embod(y) substantive policy decision making entrusted to (the Secretary of Labor)" (ibid.). The court of appeals first reasoned that the two provisions dealing with consumer products and drugs are "exemptions from the labeling requirements of the hazard communication standard" (App., infra, 9a (emphasis in original)) and that "(w)hatever else the terms 'collection of information' or 'information collection requests' may refer to, they cannot possibly refer to these exemptions from labeling requirements" (ibid.). The court then concluded that the disapproved provision dealing with information exchange at multi-employer worksites does not involve a "collection of information" because it "requires employers, not to compile, but simply to transmit information to covered employees" (ibid.). The court stated that "(t)he exchange requirement no more constitutes the collection of information within the meaning of the (PRA) than do the requirements for preparation of MSDSs by chemical manufacturers or the requirement of preservation of MSDSs by single employers" (id. at 11a). The court added that its conclusion was "reinforced" by other language in the PRA that "disaffirms the intention to grant substantive lawmaking authority to OMB" (ibid.). Having addressed the merits, the court of appeals then turned to the question whether the employee groups were entitled to challenge OMB's disapproval through a contempt motion directed at the Secretary of Labor, rather than bringing an action for review of OMB's action pursuant to the Administrative Procedure Act. The court reasoned that the Secretary's withdrawal of the disapproved provisions was inconsistent with the court's prior orders and that relief by motion was therefore appropriate. App., infra, 12a-13a. REASONS FOR GRANTING THE PETITION The Secretary of Labor proceeded in strict conformity with the PRA, OMB's regulations, and established government practices by submitting the hazard communication standard for OMB paperwork review and by notifying the regulated parties that the three disapproved provisions would not go into effect. The court of appeals nevertheless held that the Secretary's action was improper. The court's decision, which failed even to acknowledge OMB's controlling regulations, is extraordinary. Applied only to the specific agency action at issue here, it would have substantial consequences: it would eliminate OMB paperwork review of one of the most significant paperwork requirements in regulatory history. But still more troubling, the court's decision, if left standing, would effectively invalidate OMB's authority to review a wide range of other essentially indistiguishable agency information collection and dissemination activities. The court of appeals' decision is erroneous and is at odds with the reasoning of another court of appeals' decision addressing OMB's responsibilities under the PRA's predecessor statute -- the Federal Reports Act of 1942, 44 U.S.C. 3501 et seq. (1976). Review by this Court is accordingly warranted. 1. OMB estimates that Americans spent nearly 2 billion hours in 1988 to meet federal information collection requirements. About one-eighth of that time, or 250 million hours, involved the collection and communication of information from one private party to another through federally mandated reporting or recordkeeping requirements. /9/ OMB has consistently conducted a PRA review of such disclosure requirements to ensure that they are "necessary for the proper performance of the functions of the agency" (44 U.S.C. 3508). As we have explained, OMB conducted a PRA review of the Secretary of Labor's original hazard communication standard (48 Fed. Reg. 53,280 (1983)), which imposed about 652,000 hours of paperwork. The Secretary of Labor estimates that the revised hazard communication standard, applicable to both the manufacturing and non-manufacturing sectors, would require about 54 million hours of paperwork in the first year alone. OMB has also reviewed, or is in the process of reviewing, numerous other substantially identical disclosure requirements. The more prominent examples include: (a) Environmental Protection Agency (EPA) community right-to-know disclosures, which require compilation of information on chemical plant inventories and layout and transmittal of chemical information from plants to state and local governments. See 52 Fed. Reg. 38,344 (1987) (38.5 million hours); (b) Federal Trade Commission (FTC) textile fiber products identification disclosures and fair packaging and labeling disclosures, which require labeling of basic information concerning the composition and contents of various merchandise. See 53 Fed. Reg. 5986 (1988); 53 Fed. Reg. 13,159 (1988) (29 million hours); (c) Food and Drug Administration (FDA) nutrition labels, which require food manufacturers to label their products with ingredient information. See 52 Fed. Reg. 28,607 (1987) (4.8 million hours). OMB has also reviewed, or is in the process of reviewing, federally mandated disclosures that require compilation and communication of of information on pension benefits, subsidized housing inspections, hearing aids, lead-based paint, medical exams, medicated animal feeds, blasting at mines, airline on-time records, used car odometer totals, and funeral services, to mention a few. The court of appeals' decision in this case expressly prohibits OMB from evaluating the operative provisions of the Secretary of Labor's hazard communication standard. That result, by itself, would substantially undermine Congress's goal of "minimizing the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons" (44 U.S.C. 3501(1)). But the court of appeals' decision would likely have the even more drastic result of preventing OMB review of other substantially identical disclosure requirements such as those listed above. The court of appeals held that the hazard communication standard was not subject to OMB review because federally mandated disclosure through on-site recordkeeping or labeling did not involve the collection of information. See App., infra, 8a-11a. That reasoning would also apply to each of those other disclosure provisions. Each requires, in whole or in part, that private parties disclose information to other private parties through reporting, recordkeeping, or labeling. The threat to the efficacy of the PRA is both real and pressing because those disclosure requirements are generally imposed through the promulgation of regulations that have nationwide effect and because OMB reevaluates the paperwork burdens of those requirements, which typically affect significant portions of the American population, not less than every three years. See 5 C.F.R. 1320.13(i). The court's decision, if left uncorrected, would seriously disrupt OMB's established practice of conducting a PRA review of these types of disclosures in numerous regulatory spheres. 2. The court of appeals' decision not only would have far-reaching consequences, it is also incorrect. The Secretary of Labor and OMB agree that the hazard communication standard is subject to PRA review. OMB, the expert agency charged with administering the PRA, has reasonably interpreted the statute as requiring review of these types of agency disclosure requirements. That review provides a centralized and objective assessment within the Executive Branch to assure that one agency's requirements do not duplicate the requirements of another and that the disclosure itself is necessary and will have practical utility. The court of appeals clearly erred in prohibiting PRA review. We observe at the outset that the sole basis for the court of appeals' exercise of jurisdiction in this case was to determine whether the Secretary of Labor had complied with the court's previous order requiring the Secretary to extend a hazard communication standard to the non-manufacturing sector. The specific issue before the court was whether the Secretary had disobeyed the court's prior order by submitting the revised hazard communication standard to OMB for PRA review and then withdrawing the disapproved provisions. See App., infra, 12a-13a. We submit that nothing in the court of appeals' prior order foreclosed PRA revision of the expanded hazard communication standard, and accordingly there was no basis for respondents' contempt action. /10/ The court rejected that reasoning and concluded that the Secretary acted inconsistently with the court's order because the PRA does not permit OMB to review the hazard communication standard. However, both the court's method of analysis and its ultimate conclusion on this point are fundamentally flawed. This Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), indicates that the question whether OMB has properly interpreted the PRA requires two subsidiary inquiries: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 467 U.S. at 842-843 (footnotes omitted). The court of appeals here did not inquire "whether Congress has directly spoken to the precise question at issue" or "whether the agency's answer is based on a permissible construction of the statute"; it "simply impose(d) its own construction on the statute" based on an exceedingly narrow view of the purpose of the PRA. See App., infra, 7a, 10a. If the court had conducted the Chevron inquiry, it would have reached a different result. The "precise question at issue" here is whether an agency requirement that employers communicate safety information to employees through the compilation and use of standard information forms (MSDSs), labeling, and written compliance plans, is an "information collection request" within the meaning of the PRA. The PRA statutory provisions that speak most directly to this question -- the definitional provisions -- indicate that it is. The PRA defines the term "information collection request" as a "written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement or other similar method calling for the collection of information" (44 U.S.C. 3502(11) (Supp. IV 1986) (emphasis added). The PRA further defines the "collection of information" to include "the obtaining or soliciting of facts or opinions by an agency through the use of * * * reporting or recordkeeping requirements or other similar methods" (44 U.S.C. 3502(4) (emphasis added)). As OMB's regulations explain, the "soliciting of facts or opinions" can include an agency demand that persons "obtain, maintain, retain, report, or publicly disclose information" (5 C.F.R. 1320.7(c)). A reporting requirement can include an agency requirement that a person "provide information to another person" (5 C.F.R. 1320.7(s)), and a recordkeeping requirement can include a requirement "that information be maintained or retained by persons but not necessarily provided to the agency" (5 C.F.R. 1320.7(r)). Thus, an agency requirement that an employer communicate hazard information through compilation and maintenance of MSDSs, labeling, and written training programs can reasonably be viewed as the "soliciting of facts or opinions" through "reporting or recordkeeping requirements or other similar methods." /11/ The PRA's definition of the terms "information collection request" and "collection of information" may not, by itself, compel OMB's conclusion that the hazard communication standard is subject to PRA review, but it strongly supports and certainly allows that conclusion. Where, as here, "the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute." K mart Corp. v. Cartier, Inc., No. 86-495 (May 31, 1988) slip op. 8. OMB's regulatory interpretation is also manifestly consistent with the PRA's objectives. The PRA's stated purpose is to minimize the public's paperwork burdens while maximizing the usefulness of information collected, maintained, or disseminated pursuant to federal requirements. 44 U.S.C. 3501. /12/ These objectives are equally relevant and important whether a federal agency requires persons to collect information and transmit it to the agency for subsequent dissemination, or whether the agency requires those persons to collect information and disseminate it to third persons. Cf. Action Alliance of Senior Citizens v. Bowen, 846 F.2d 1449, 1453 (D.C. Cir. 1988), petition for cert. pending, No. 88-849. OMB's regulations recognize this fact. /13/ The court of appeals' conclusion that the PRA does not give OMB "authority to second guess other federal agencies with respect to the kinds of disclosure needed to accomplish substantive policies entrusted to such agencies" (App., infra, 10a) apparently resulted from the court's exclusive focus on Sections 3504(a) and 3518(e). /14/ These provisions, however, must be read in harmony with Sections 3508 and 3518(a). Section 3508 specifically states that "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" for the agency. 44 U.S.C. 3508. See also 44 U.S.C. 3504(c). In addition, Section 3518 states that "(e)xcept 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 chapter." 44 U.S.C. 3518 (emphasis added). Thus, the PRA is quite explicit in allowing OMB to review the kinds of disclosure an agency needs to accomplish its substantive policies. /15/ The legislative history also supports OMB's exercise of its PRA review authority. The House Committee Report indicates that the PRA was intended to cover the types of disclosures involved here and that OMB is entitled to review an agency's method of accomplishing its substantive policies: (The Securities and Exchange Commission (SEC)) (s)trongly recommended that (the House bill) be amended to narrow the definition of "collection of information" to exclude reporting required in connection with statutorily-authorized regulatory, enforcement, or oversight efforts. SEC believes that the current Federal Reports Act definition is limited to collection for statistical purposes and does not authorize review of disclosure- or enforcement-related information gathering. The Committee agrees with * * * SEC as to the close relationship between policy making and information management. However, regulatory agencies in the executive branch, such as EPA, have been able to justify to OMB their need for information used to establish policy or for other purposes. The independent regulatory agencies should also be capable of doing so. * * *. The Committee's intent in making the changes in the definition was to clarify the existing definition to force SEC and any others who might apply a restrictive interpretation to comply with statutory information collection clearance requirements. H.R. Rep. No. 835, 96th Cong., 2d Sess. 23 (1980). The subsequent Senate Report made the same point: Information is also collected to form the basis for disclosure to the public. For example, documents filed with the Securities and Exchange Commission by issuers of securities and by other persons subject to the Federal securities laws are designed for use by persons making investment and other financial decisions. In this connection, Federally-mandated disclosures to the public by issuers and certain owners of securities are central to carrying out the purposes of the Federal securities laws. Therefore in considering whether information will have practical utility, the Director should consider, among other things, whether the agency can use the information either to carry out its regulatory or other functions or to make it available to the public for the use of persons who have an interest in entities or transactions over which the agency has jurisdiction. S. Rep. No. 930, 96th Cong., 2d Sess. 39-40 (1980). /16/ In sum, OMB's conclusion that the disclosure involved here is subject to PRA review, if not clearly required by the PRA, is at the very least "based on a permissible construction of the statute." Chevron U.S.A. Inc., 467 U.S. at 843. The court of appeals clearly erred in substituting its own construction of the statute. 3. The court of appeals' decision in this case rests on a view of the PRA that is at odds with Action Alliance of Senior Citizens v. Bowen, supra. In that case, the District of Columbia Circuit held that the PRA's statutory predecessor, the Federal Reports Act, authorized OMB to review an agency regulation requiring federal funds recipients to conduct a "self-evaluation" to determine whether they were in compliance with the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. The court characterized as "pure pettifoggery" (846 F.2d at 1453) the claim that the Federal Reports Act applies only when the agency requires that information must be submitted to the government. It added (id. at 1453-1454): OMB and its predecessor, the Bureau of the Budget, have interpreted the statutory term "collection of information" for nearly half a century to encompass "(a)ny general or specific requirement for the establishment or maintenance of records . . . which are to be used or be available for use in the collection of information." Regulation A, Federal Reporting Services, Clearance of Plans and Reports Forms, Title I(1)(e) (February 13, 1943) * * *. Even under the defernec we owe the agency (citing Chevron), we doubt that we could uphold a view of the Reports Act that made physical delivery to an agency essential to the notion of "collection of information." Happily we confront no such oddity. The court also rejected the argument that OMB's review encroached on the "'substantive policies and programs'" of other agencies (846 F.2d at 1454, quoting 44 U.S.C. 3518(e)). The Third Circuit attempted to distinguish Action Alliance on the ground that it involved "compilation but not transmission of information" (App., infra, 9a). In the court's view, the "multi-employer MSDS exchange provision requires employers, not to compile, but simply to transmit information to covered employees" (ibid.). But as we have explained (note 11, supra), the MSDS exchange provision plainly requires the employer to "compile" information at a particular location. Thus, the Third Circuit and the D.C. Circuit, faced with similar facts, applied divergent reasoning and reached inconsistent results. Since the court of appeals' decsision in the present case interpreted the PRA, while the D.C. Circuit's decision in Action Alliance interpreted the Federal Reports Act, the two decisions are not in square conflict. But even that distinction is largely technical since the PRA was intended to clarify the broad coverage of the Federal Reports Act. See pages 25-26, supra. In any event, the fact that parties may generally challenge OMB review of any nationwide rule in the federal circuit of their choice -- and may therefore direct future cases to the Third Circuit -- counsels against this Court's awaiting further developments in the courts of appeals before addressing the important question presented in this case. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. LAWRENCE G. WALLACE Acting Solicitor General JOHN R. BOLTON Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General LEONARD SCHAITMAN MARLEIGH D. DOVER Attorneys JERRY G. THORN Acting Solicitor Department of Labor ALAN CHARLES RAUL General Counsel Office of Management and Budget FEBRUARY 1989 /1/ An agency is required to submit a copy of a proposed rule containing collection of information requirements to the Director no later than the date of the publication of the notice of proposed rulemaking. 44 U.S.C. 3504(h)(1). The Director then has 60 days in which to file public comments on the rule's collection of information requirements. 44 U.S.C. 3504(h)(2). In publishing its final rule, the agency must "explain how any collection of information requirement contained in the final rule responds to the comments * * * or explain why it rejected those comments." 44 U.S.C. 3504(h)(3). The Director may, within 60 days of publication of the final rule, disapprove any collection of information requirement contained in the final rule if he determines that the agency's response is unreasonable or if the agency, without notice, substantially modifies the collection of information requirement contained in the proposed rule. 44 U.S.C. 3504(h)(5)(C), (D). /2/ The PRA provides that, in the case of independent regulatory agencies, the Director's disapproval "may be voided, if the agency, by a majority vote of its members overrides the Director's disapproval" (44 U.S.C. 3507(c)). /3/ The OMB regulations further explain that "(s)imilar methods may include contracts, agreements, policy statements, plans, rules or regulations, planning requirements, circulars, directives, instructions, bulletins, requests for proposal or other procurement requirements, interview guides, disclosure requirements, labeling requirements, telegraphic or telephonic requests, and standard questionnaires used to monitor compliance with agency requirements." 5 C.F.R. 1320.7(c)(1). /4/ "In determining whether the information has 'practical utility,' OMB will take into account whether the agency demonstrates actual timely use for the information either to carry out its functions or to make it available to the public, either directly or by means of a public disclosure or labeling requirement, for the use of persons who have an interest in entities or transactions over which the agency has jurisdiction." 5 C.F.R. 1320.7(q). /5/ The OSH Act prescribes a special requirement for such standards, stating (29 U.S.C. 655(b)(5)): The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. /6/ The OSH Act specially provides for judicial review of occupational safety and health standards in the court of appeals, and it further provides that "(t)he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." 29 U.S.C. 655(f). /7/ Broadly speaking, the standard requires chemical manufacturers an importers to develop hazard information, label their chemical containers, and send material safety data sheets (MSDSs) to downstream manufacturing and non-manufacturing customers (29 C.F.R. 1900.1200(d), (f), (g)). Furthermore, the standard requires manufacturing and non-manufacturing employers: (1) to prepare a written hazard communication program that describes the employer's general compliance plan and contains a list of the hazardous chemicals used in the workplace; (2) to ensure that labels remain affixed on the containers and that when hazardous chemicals are transferred to new containers, those containers are also labelled properly; and (3) to maintain the MSDSs and make them readily accessible to employees in their work areas (29 C.F.R. 1910.1200((e), (f), (g)). In addition, employers must provide information and training to their employees with respect to the requirements of the standard and the chemical hazards present in the workplace (29 C.F.R. 1910.1200(h)). /8/ On January 14, 1988, the Department of Labor notified OMB that it would initiate a new rulemaking, but further explained that it would not be possible to complete the rulemaking by March 1, 1988, the date specified by OMB. App., infra, 45a-48a. In early March, the Department of Labor requested that OMB renew its 1983 approval of the hazard communication standard's paperwork requirements. On April 13, 1988, OMB approved all of the hazard communication standard's paperwork requirements except the three previously disapproved provisions. Id. at 49a-58a. The Department of Labor subsequently solicited public comment and has held hearings on what modifications (if any) should be made in light of OMB's disapproval. See 53 Fed. Reg. 29,822 (1988). /9/ OMB regulations require an agency to include a determination of the number of hours of paperwork required by an information collection request when the agency proposal is submitted for OMB review. See 5 C.F.R. 1320.11(a). See also Request for OMB Review, Standard Form 83, Box 17. The 2 billion hour estimate is from the Information Collection Budget, which compiles figures for each proposal. The 250 million hour estimate is based on OMB's review of requests that involve disclosure requirements. The number of hours of paperwork cited below for specific regulatory initiatives are agency estimates submitted with the agencies' various proposals. /10/ Notably, the court's prior order did not expressly prohibit the Secretary from resubmitting the hazard communication standard for PRA review. See USWA II, 819 F.2d at 1270. The court's order, set forth at page 12, supra, makes no mention of the matter. Furthermore, the court presumably recognized that the previous hazard communication standard, applicable to the manufacturing sector, had received PRA review. See page 11, supra. It therefore should have come as no surprise to that court or any of the parties that the revised standard would receive PRA review as well. Thus, the court's order cannot reasonably be construed as prohibiting the Secretary's action, and a challenge to the Secretary's action through a contempt proceeding is inappropriate. /11/ The hazard communication standard requires chemical manufacturers to develop MSDSs and to transmit them to downstream employers. The provision requiring that employers exchange or centrally maintain MSDSs at multi-employer worksites obviously is, in its own right, a recordkeeping requirement since it requires employers to gather and keep records at a specific site. The court's conclusion (App., infra, 9a) that this provision "requires employers, not to compile, but simply to transmit information" is facially incorrect. The court's conclusion (ibid.) that the PRA does not apply to the other two disapproved provisions because they are "exemptions from labeling requirements" is trebly mistaken. First, OMB did not simply disapprove the Secretary's exemptions; it determined that the scope of the hazard communication standard's coverage, even with those exemptions, was too broad. In any event, OMB is entitled to determine whether exemptions from paperwork burdens are sufficiently broad to ensure that the information that is collected is "necessary for the proper performance of the functions of the agency" (44 U.S.C. 3508). Second, the provisions here do not involve simply "labeling" requirements; they specify whether certain consumer products and drugs are subject to the hazard communication standard's other information collection requirements as well. And third, labeling requirements in any case generally are reporting requirements subject to OMB review. See 5 C.F.R. 1320.7(c). /12/ The court of appeals erred in stating that the PRA is simply "aimed at reducing the burden of paperwork required by the federal government for its own regulatory or statistical purposes" (App., infra, 10a). /13/ See, e.g., 5 C.F.R. 1320.7(c)(2) ("Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the 'collection of information' whenever the same requirement to obtain or compile information wouldd be a 'collection of information' if the information were directly provided to the agency."). /14/ These provisions of the PRA state that the Director shall exercise his authority "consistent with applicable law" (44 U.S.C. 3504(a)) and that the statute shall not be interpreted "as increasing or decreasing the authority of the President, (OMB), or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies and offices" (44 U.S.C. 3518(e)). See App., infra, 11a. These provisions simply recognize that an agency retains authority to determine its regulatory objectives, while OMB has a responsibility to review whether the agency has chosen effective information collection methods to achieve those objectives. /15/ This case illustrates how the PRA was meant to work. The Secretary of Labor determined that the Department's regulations should assure that employees at multi-employer work-sites have access to hazard information concerning all of the hazards at the site. OMB's review was directed to whether the Secretary's method of providing that information -- on-site exchange or centralized retention of MSDSs -- would have practical utility. OMB disapproved the Secretary's method, but it suggested an alternative method to achieve the regulatory goal and it permitted the Secretary the opportunity for additional rulemaking to provide further information on why her method was necessary. Thus, OMB did not usurp the Secretary's substantive policymaking function. /16/ Congress has amended and reenacted the PRA since OMB's 1983 promulgation of the regulations involved here. See Paperwork Reduction Reauthorization Act of 1986, Pub. L. No. 99-591, 100 Stat. 3341 (1986). Congress gave no indication that it disagreed with OMB's interpretation. Congress's failure to criticize or overrule the agency's regulations provides an additional basis for inferring that OMB has correctly gauged Congress's intent. See e.g., United States v. Rutherford, 442 U.S. 544, 554 (1979). APPENDIX