Appendix F-COMMISSION AND GAO REGULATIONS AND PROPOSALS REGARDING INFORMATION COLLECTION

[From the Federal Register, Vol. 39, No. 128-July 2, 1974]

RULES AND REGULATIONS

Title 4-Accounts

CHAPTER 1-GENERAL ACCOUNTING Office

PART 10-CLEARANCE

Subchapter A-General Procedures

OF PROPOSALS BY INDEPENDENT FEDERAL REGULATORY AGENCIES TO CONDUCT OR SPONSOR THE COLLECTION OF INFORMATION

Policies, Requirements and Procedures

On February 11, 1974, a notice of proposed rulemaking was published in the FEDERAL REGISTER (39 FR 5201) proposing to add a new Part 10 to Title 4, Code of Federal Regulations, to establish policies, requirements, and procedures, governing submission to, and review and disposition by, the General Accounting Office (GAO) of plans and forms proposed by independent Federal regulatory agencies for use in conducting or sponsoring information collection.

Section 409 of Pub. L. 93-153, 87 Stat. 593, added a section 3512 to chapter 35 of title 44, United States Code (the Federal Reports Act of 1942, as amended), which assigned to GAO two major functions on information collection by independent Federal regulatory agencies.

First, subsection 3512(b) requires GAO to conduct general reviews of all information-gathering practices of independent Federal regulatory agencies with a view toward avoiding duplication of effort in, and minimizing the compliance burden imposed by, such practices. Secondly, subsections 3512(c) and (d) require GAO to conduct advance clearance reviews of new or revised proposals by independent Federal regulatory agencies to conduct or sponsor the collection of information from 10 or more persons. These rules are designed to implement GAO's advance review and clearance functions under 44 U.S.C. 3512 (c) and (d).

Interested parties were given until March 15, 1974, to submit comments regarding these proposed regulations. Written comments were submitted by the independent Federal regulatory agencies subject to these rules and from many private organizations. A number of changes have been made in the proposed rules on the basis of comments received. The major changes, as well as the GAO response to several comments which did not result in changes, are discussed below. Agencies covered (§ 10.1(b)). The format for this portion of the rules was changed. In addition, the Federal Energy Administration was added as an agency covered in accordance with section 7(j) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, 88 Stat. 103. Coverage will commence when the act creating the Administration becomes effective.

Definition of "collection of information" (§ 10.2).-Guides for personal visit or telephone or telegraph surveys are excluded from the definition, and therefore from clearance requirements, on the basis that such activities do not bear a meaningful relationship to the statutory purposes of GAO review and clearance. Recordkeeping and record maintenance requirements are retained under the definition.

Several agencies implied that recordkeeping requirements do not constitute "collection of information" unless coupled with a specific reporting requirement. However, we fail to perceive a significant distinction in terms of the purposes of 44 U.S.C. 3512 between recordkeeping requirements and reporting requirements. Both require that information be compiled, and presumably in both cases the information will be used. Also, as illustrated in several comments, recordkeeping requirements generally impose compliance burdens similar in nature

and degree to reporting requirements. Several other issues relating to the scope of clearance requirements are discussed under subsequent headings of this preamble.

Agency responsibilities (§ 10.3).—Several agencies took exception to the general statement of agency responsibilities in subsection (b)(2), particularly the requirements that agencies undertake necessary and appropriate efforts to avoid duplication and to solicit and consider the views of affected parties before submitting information collection proposals for GAO clearance.

We recognize that GAO is ultimately responsible for determining whether information sought is presently available and whether information collection proposals are consistent with 44 U.S.C. 3512. At the same time, we firmly believe that each agency is initially and directly responsible for planning and conducting its information collection activities in a manner consistent with these statutory policies both by operation of the statute itself and as a basic element in prudent administration. Therefore, we believe that the clearance procedures should ideally serve in essence as a review designed to ascertain whether agencies have taken all reasonable efforts to comply with the statutory policies. The final version of subsection (b) further elaborates upon such reasonable agency efforts in new paragraphs (3) (utilization of information), and (4) (surveys, pretests, and pilot tests).

Confidentiality of information (§ 10.4).—The final version of this section adds a provision that report forms and recordkeeping requirements state any applicable restrictions in terms of confidentiality of information. Also, in response to many business comments, a requirement has been added (§ 10.10(c) (8)) that submissions for clearance recite and explain relevant confidentiality of information protections.

45-day limit upon GAO review (§ 10.5(b)).—44 U.S.C. 3512(d) provides that an agency may immediately obtain information if no advice is received from GAO within 45 days. Both the proposed and final versions of section 10.5(b) limit authority to obtain information under this statutory provision to 1 year. Several agencies questioned GAO's authority to impose this limit. Though the law is silent on this point, we believe that such a limit is consistent with, and in furtherance of, the general statutory design. The purpose of the 45-day provision is to insure that the operations of independent regulatory agencies will not be impeded by nonaction on their clearance proposals. This provision necessarily assumes that GAO should be able to, and will, complete clearance reviews within the stated period, and we intend to do so.

However, the 1-year limit is included because some proposals involving unusually complex issues may not be amenable to complete and adequate evaluation within 45 days. To allow a permanent exception from the normal requirements of complete clearance evaluation in such circumstances would, in our view, go beyond the intent of the 45-day provision and would unduly subordinate the general purposes of 44 U.S.C. 3512. Under the 1-year limit, an agency remains free to immediately implement a proposed collection after 45 days. At the same time, the limitation affords a means by which review of the proposal may continue to completion and appropriate advice may be given in the following year. In response to many comments, a related requirement has been added (§ 10.12(c)) that report forms and other requirements used under a proposal on which GAO has not advised within 45 days state that information collection is authorized for 1 year by operation of 44 U.S.C. 3512(d). The purpose of this requirement is to specify the clearance status of such forms and requirements. Other provisions (§§ 10.5(b), 10.9(a), and 10.12(b)) have been revised to make clear that the 1-year authority to collect information without GAO advice within 45 days does not apply when failure of the agency to comply with the regulations precludes full and effective review by GAO within 45 days.

This would be the case either when an agency's clearance submission is incomplete (§ 10.9(c)) or when an agency fails to provide additional information, assistance, or other cooperation requested by GAO during a clearance review (§ 10.9(a)). In either case GAO will contact the agency and will suspend or discontinue review pending resolution of the problem. GAO must advise the agency of incompleteness in an initial submission within 5 days of receipt thereof. Material revisions in plans or report forms (§ 10.5(d)).—În response to comments by several agencies, the concept of a material change in existing plans or forms requiring separate clearance has been narrowed.

Information required by law (§ 10.6 (b) (1) & (3)).-Several agencies maintained that the clearance provisions of 44 U.S.C. 3512 do not apply when information is submitted to an agency pursuant to specific statutory requirements. This