1099          US. v. SMITH

Cite as 866 F.2d 1092 (9th Cir. 1989)


and that call for the disclosure or reporting of information through answers to standardized (identical) questions. The relevant Forest Service Regulations meet this description and are therefore information collection requests within the meaning of the PRA.

The Plan of Operations filing requirement is an information collection request that lacks a current control number.  Consequently, PRA section 3512 by its terms prohibits the imposition of “any penalty” against the appellants, including criminal convictions, for their failure to comply with the Plan of Operations filing requirement.6 The statute explicitly and unambiguously provides that all information collection requests must display a current control number. or penalties for noncompliance may not be imposed.7 44 U.S.C.  § 3512.

PRA section 3512 applies to the Plan of Operations filing requirement. Neither the Alaska Placer Mining Application nor the regulations contained 36 C.F.R. part 228 display a current control number. Consequently, the PRA prohibits the imposition of “any penalty” on the appellants for failing to file a Plan of Operations. including the appellants' convictions for failing to file under part 228. The information also charged appellants with failing to file a Plan of Operations "as required by . . . 36 C.P.R § 261,10(b), (c).”   These charges also allege a failure to file a Plan of Operations  pursuant to regulations  that do not bear a current control number and are also prohibited by the PRA. 8




Because our decision relies solely on the PRA ground, we need not reach any of the appellants’ other arguments.



6. PRA section 3512 provides in full:

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.

44 U.S.C. § 3512.


7. OMB has promulgated regulations relating to the PRA. See generally 5 C.F.R. part 1320. These regulations may to some extent be inconsistent with 44 U.S.C. § 3512. See 5 C.F.R. § 1320.5. No party has referred to the OMB regulations at any point in the proceedings. Accordingly,

we find that the parties have waived any and all arguments based on the regulations for purposes of these prosecutions.


8. Such cases as United States v. Particle Data, Inc., 634F.Supp. 272 (N.D.Ill. 1986). Snyder v. IRS 596 F. Supp. 240 (N.D. Ind. 1984), and Cameron v. IRS, 593 F.Supp. 1540 (N.D. Ind.1984), aff'd 773 F.2d 126 (7th Cir.1985) (resting on the district court opinion), are inapposite. They rejected PRA defenses based on the lack of a current control number on certain IRS forms. The decisions in these cases were based on conclusory reasoning or provisions of the PRA not raised here. Whatever the merits of those cases, they are not relevant to our examination of the Forest Service regulations at issue here.