Is a Response Required to a Federal Form without an OMB Number?

A person cannot be penalized for failing to respond to a federal information collection, such as a form, survey or recordkeeping requirement, that does not display a currently valid OMB control number, or whose instructions do not inform the person that no response is required unless a valid control number is displayed (5 CFR 1320.6(a) and 44 U.S.C. 3512). This public protection is part of the Paperwork Reduction Act.

A complete defense. The protection may be raised in the form of a complete defense, bar or otherwise at any time during an agency administrative process or a judicial action (5 CFR 1320.6(b) and 44 U.S.C. 3512(b)).

Benefits and conditions. When an agency uses a collection to prove or satisfy a condition for receiving a benefit or avoiding a penalty, and the collection lacks a valid control number or the required notice, the agency must not treat a failure to comply, by itself, as grounds for withholding the benefit or imposing the penalty. The agency must instead permit the condition to be proved or satisfied in any other reasonable manner (5 CFR 1320.6(c)).

Where control numbers appear. An agency displays the currently valid control number on the front page of a paper collection, or for an electronic collection, in the instructions, near the title or, for an online application, on the first screen the respondent sees (5 CFR 1320.3(f)). The agency must also tell respondents that no response is required unless a currently valid control number is displayed (5 CFR 1320.5(b)(2)). Examples include the U.S. Access Board's online ABA complaint form (3014-0012, expiration date September 30, 2029) and the Department of Education's Drug-Free Schools and Campuses certification (1880-0522).

Renewals. Before submitting a collection to OMB, an agency must generally publish a 60-day notice in the Federal Register inviting public comment (5 CFR 1320.8(d)(1)). On or before the submission date, it must publish a second notice that OMB approval is being sought, with comments due to OMB within 30 days (5 CFR 1320.10(a)). The news posts on PHMSA's request to renew seven OMB control numbers, the Labor Department's veterans employment claim form and the Access Board's ABA complaint form are examples.

Workplace forms. DOT drug testing forms such as the Federal Drug Testing Custody and Control Form also carry OMB control numbers, described in the FAQ on drug testing chain of custody.