argument is advanced in the context of statutes which specify the information to be submitted or which specifically authorize an agency to determine the information to be submitted and the form or manner of its submission.

A related argument is that, when a statute requires submission of information to be maintained by an agency solely for public disclosure, the agency is not engaged in "collection of information" within the meaning of 44 U.S.C. 3512 since it is not gathering information for its own use. We believe that these arguments arise from misconceptions concerning the basic scope and purposes of GAO clearance reviews. The responsibilities of GAO and the agencies for purposes of 44 U.S.C. 3512 are stated in subsection (d) of that section as follows:

While the Comptroller General shall determine the availability from other Federal sources of the information sought and the appropriateness of the forms for the collection of such information, the independent regulatory agency shall make the final determination as to the necessity of the information in carrying out its statutory responsibilities and whether to collect such information. ***

This language makes clear that the basic subject of GAO reviews is not what information an agency needs or should collect, but rather whether particular plans or report forms are appropriate for collecting such information. The appropriateness of plans and forms, in turn, relates to the statutory objectives of avoiding duplication, maximizing the usefulness of information, and minimizing compliance burdens. Obviously statutes which specifically mandate the collection of certain information, including the manner and form of collection, are binding upon GAO.

Even when specific statutory mandates are not involved, GAO is clearly not authorized to substitute its judgment for substantive agency determinations to seek certain information. GAO is required to determine whether the manner of collection meets the essentially procedural objectives indicated above within the framework of an agency's substantive need and to the extent that an agency has discretion in implementing statutory mandates. Therefore we believe that including information collection pursuant to specific statutes is fully consistent with the purposes of GAO reviews under 44 U.S.C. 3502.

Also neither the language nor the legislative history of the Federal Reports Act in its original form or as amended by Pub. L. 93-153 provides any basis for the exemptions suggested. On the contrary, the legislative history of the origiinal Federal Reports Act of 1942 specifically supports the inclusion of information required by law. This legislation, as passed by the House, exempted from its application "any information now required by law to be given ***." However, this provision was deleted in conference and was omitted from the version enacted in 1942.

We understand that, consistent with this legislative history, the Office of Management and Budget (and the predecessor Bureau of the Budget) has always considered such information collection to be covered by the act. Also the exemptions suggested would severely limit the coverage of information collection by regulatory agencies. Since enactment of section 409 of Pub. L. 93-153 reaffirms the applicability of the Federal Reports Act to the regulatory agencies, it seems reasonable to conclude that, if such significant exemptions had been intended, they would have been specified.

Finally, we perceive no basis for exemption of information required solely for public disclosure. Such agency requirements do, in fact, constitute information collection. Moreover, many objectives of clearance reviews do apply to such requirements (although we recognize that considerations of duplication may have little or no relevance).

Particular exemptions from coverage (§ 10.6(e) ).-This portion of the proposed rules, particularly the former reference to "demands for information through the exercise of an agency's subpena or similar authority," caused considerable confusion, and significant revisions have been made. Paragraph (4) of the final version states separately an exemption for collecting evidence and other information in conducting litigation.

Paragraph (5) states an exemption for collecting evidence and other information in agency adjudications or investigations concerning particular parties. The purpose of this paragraph is to separate from the clearance requirement specific law-enforcement proceedings or inquiries involving particular parties. This exemption would apply to all collections of evidence and other information in such proceedings or investigations whether addressed to parties under investigation or other sources of relevant information. Presumably evidentiary

needs and uses are quite specific in this context, the potential respondents are limited, and the basic objectives and procedures for clearance reviews have little or no application.

To be distinguished from the foregoing, activities, however, are more general proceedings and inquiries which relate to broader subjects, such as conditions or practices within an entire industry or profession, or segments thereof. The nature of such proceedings, of course, varies greatly. They might be quasi-legislative, such as a proceeding to determine the need for establishing or modifying regulatory requirements. Or they might be characterized as law enforcement oriented, when the purpose is to ascertain whether there is general compliance with a statute or regulatory requirement or to conduct random or routine compliance checks. Since we believe that clearance reviews are both appropriate and desirable when information is collected for the latter purposes, such activities are expressly excluded from the exemption and therefore remain subject to clearance.

Paragraph (5) seeks to distinguish agency activities on the basis of their functional nature and purposes rather than the particular device or power which is used as a vehicle for information gathering. Therefore the final rules omit the former reference to subpena power or similar authority which, as many comments noted, was both artificial and ambiguous.

In response to several comments, a new paragraph (6) has been added to establish an exemption for soliciting voluntary comments and opinions. Since response is not required, such solicitations do not impose compliance burdens as such. Moreover, soliciting comments and opinions does not really involve considerations of duplication.

Availability of information ($10.8). In response to numerous comments, this new section has been added to provide maximum availability to the public of information relating to GAO clearance reviews. First, GAO will publish in the FEDERAL REGISTER notice of all submissions for clearance as they are received (a companion change in §10.9 (b) requires that agency submissions briefly state the information necessary for preparing such notices). Second, all materials comprising clearance submissions will be available for public inspection and copying. Third, GAO's Regulatory Reports Review Staff will be available to respond to inquiries from any source, including agency officials, concerning the status of clearance submissions or whether particular agency plans or forms have been submitted to, and cleared by, GAO.

Other changes have been made in the rules to further enhance disclosure concerning the clearance status of plans and forms. All report forms and other requirements cleared by GAO must show the expiration date for such clearance ($10.12(a)). Also GAO will publish in the FEDERAL REGISTER notice of determinations to withhold clearance with respect to particular plans, forms, and requirements ($10.12(b)).

Requirements that plans and report forms be in final form and approved by agency head (§ 10.10(b)).-This subsection provides that a proposal not be submitted for GAO clearance unless it constitutes a final product approved by the agency head. An exception is provided when authority to promulgate plans and forms has been delegated within the agency. Several comments suggested that agency head approval be required in all cases. However, the purpose of receiving only final products is accomplished by merely requiring approval by the agency official who has authority to promulgate the proposal.

A number of agency comments recommended that, when plans or forms are developed through proposed rulemaking procedures, GAO clearance reviews should commence when the proposed rulemaking is published. There is considerable merit to this recommendation, and we appreciate the concern on the part of the agencies that such information-gathering proposals be reviewed as expeditiously as possible.

However, for the present it is perferable to limit clearance reviews to final agency products supported by a complete record, particularly a full record of public comments and agency responses. At the same time, we will continue to consider concurrent review alternatives. In any event, our Regulatory Reports Review Staff stands ready to informally consult with agencies concerning preliminary problems and potential clearance issues.

Effect of GAO's withholding of clearance. The rules (§ 1012. (b)) provide that GAO withhold clearance if it determines and advises an agency that a proposal fails to satisfy the requirements and policies of 44 U.S.C. 3512. Considerable controversy exists concerning the legal effect of such negative advice. Several

37-733 74 pt. 3 48

agencies feel that no GAO advice is binding upon them and that they may proceed to implement information-gathering proposals notwithstanding negative GAO advice. This position is based upon the statement in subsection (d) of 44 U.S.C. 3512 that

*** the independent regulatory agency shall make the final determination as to the necessity of the information in carrying out its statutory responsi bilities and whether to collect such information.

On the other hand, subsection (c) of this section provides that an agency "shall not" collect information "unless" plans or report forms to be used in the collection have been submitted to GAO and GAO has determined that (1) the information sought is not otherwise available and (2) the plans for forms are consistent with 44 U.S.C. 3512. Moreover, subsection (d) again states that GAO shall determine the availability of information elsewhere and the appropriateness of plans and forms.

These rules cannot, of course, resolve this issue and do not purport to do so. Nevertheless, it is important to indicate our position. As pointed out above, GAO clearance reviews are addressed not to an agency's need for information but to the manner of its collection. In our view, both the language of 44 U.S.C. 3512 as a whole and its legislative history indicate that agencies may not collect information in a manner which GAO has advised is duplicative or inappropriate. We believe that the language in subsection (d) referring to final agency determinations of need and whether to collect information is intended only to insure that GAO's ultimate advice is properly limited to the criteria specified in section 3512.

At the same time, we recognize that the statute is somewhat ambiguous and it may be difficult in some cases to separate procedural matters from substantive agency determinations of need. Hopefully, both GAO and the agencies will approach clearance reviews in a reasonable and cooperative manner and thereby minimize instances in which this issue will arise.

Other minor changes have been made in the rules as proposed. We have evaluated the comments and other relevant matter. The proposed rules, with changes, as set forth in full below, are hereby adopted effective on July 2, 1974.

10.10 New plans or report forms.

10.11 Renewals or revisions of existing plans and report forms.

10.12 Notification of General Accounting Office action.

AUTHORITY.-44 U.S.C. 3512(f), added by sec. 409 (b) of Pub. L. 93-153, 87 Stat. 593, Interpret or apply 44 U.S.C. 4512(a), (c), (d).

SUBPART A-GENERAL PROVISIONS

§ 10.1 Scope and purpose of part.

(a) This part establishes policies, requirements, and procedures governing submission to, and review and disposition by, the General Accounting Office (GAO), pursuant to 44 U.S.C. 3512 (c) and (d), of plans or forms proposed by independent Federal regulatory agencies for use in conducting or sponsoring the collection of information upon an identical item from 10 or more persons.

(b) At present, the following agencies are "independent Federal regulatory agencies" for purposes of this part: Atomic Energy Commission (insofar as its regulatory and adjudicative functions are concerned), Civil Aeronautics Board,

Consumer Product Safety Commission, Equal Employment Opportunity Commission, Federal Communications Commission, Federal Energy Administration, Federal Maritime Commission, Federal Power Commission, Federal Trade Commission, Interstate Commerce Commission, National Labor Relations Board, and Securities and Exchange Commission.

(c) This part supersedes all GAO guidelines and procedures to implement 44 U.S.C. 3512 previously communicated to independent Federal regulatory agencies.

§ 10.2 Definitions.

As used in this part, unless the context requires otherwise—

'Agency" means an independent Federal regulatory agency specified in § 10.1 (b) of this part.

"Collection of information" means the soliciting or obtaining of facts on an identical item from 10 or more persons by use of report forms, application forms, schedules, questionnaries, letters, plans, or similar methods or the imposition of recordkeeping or record maintenance requirements concerning an identical item and affecting 10 or more persons.

"Person" means an individual, partnership, association, corporation, business trust, legal representative, an organized group of persons, a State or territorial government or branch, or a political subdivision of a State or territory or a branch of a political subdivision; but does not include agencies, instrumentalities, or employees of the United States.

"Plan or report form" includes any plan, guide, form, schedule, questionnaire, letter, instruction, contract, agreement, order, regulation, or other method or device used or available for use to solicit or obtain facts or to impose recordkeeping or similar requirements.

"Proposal," "proposal for the collection of information," or "proposed plans or report forms" refer to a proposal submitted to GAO for clearance pursuant to this part.

An agency is considered to "sponsor" the collection of information when it requires a person or organization, including its contractor or grantee, to collect specific information to be made available to the agency and when it promulgates plans or forms as mandatory standards for State or local government agencies to use in collecting information.

In determining whether information is collected from "ten or more persons,' when the primary or principal respondent must obtain from others the same information requested of them (e.g., contractors obtaining information from subtractors), the secondary respondents must be counted.

§ 10.3 General policies and responsibilities.

(a) The purpose of 44 U.S.C. 3512 is to assure that information required by agencies is obtained with a minimum burden upon business enterprises, especially small business enterprises, and other persons required to furnish information. To this end, unnecessary duplication of efforts in obtaining information already filed with other Federal agencies through the use of reports, questionnaires, and other methods shall be eliminated as rapidly as practicable; and information collected and tabulated by agencies shall, as far as is expedient, be tabulated in a manner designed to maximize its usefulness to other Federal agencies and to the public.

(b) (1) Each agency shall submit to GAO all proposals for the collection of information requiring clearance under subpart B of this part. Any questions concerning whether a particular plan or report form is subject to clearance shall be presented for determination by GAO. Submission shall comply with the require ments prescribed in subpart C of this part.

(2) Each agency is directly responsible for planning and conducting its information collection activities, including establishing procedures for managing such activities, in a manner consistent with the policies of 44 U.S.C. 3512, as stated in paragraph (a) of this section. Accordingly, prior to submitting proposals for clearance by GAO, each agency shall take all necessary and appropriate measures to insure to the best of its capabilities that proposed plans and report forms comply with the requirements and policies of 44 U.S.C. 3512, including all reasonable efforts to avoid seeking unneeded or marginally useful information; to ascertain whether information sought is already available from another source and, if so, to arrange for use of such information; to minimize both substantive and procedural burdens imposed upon respondents; and to solicit and consider the views of persons who would be affected by the proposed plan or report form,

including respondents, business and trade associations, and other concerned organizations. To insure that information is collected and tabulated to maximize its usefulness, agencies should consult with governmental and nongovernmental organizations and entities, including Federal agencies other than independent Federal regulatory agencies, which are likely to be significant users of the information to be collected. For example, agencies planning to conduct or sponsor the collection of statistical information involving financial statements and operating data should consult with the Bureau of Economic Analysis of the Social and Economic Statistics Administration, Department of Commerce.

(3) Each agency is encouraged to use surveys, pretests, or pilot tests in developing major information collection proposals and before full-scale agency adoption of such major proposals. Surveys, pretests or pilot tests undertaken for this purpose will not be subject to GAO clearance.

(4) Each agency shall provide GAO such information concerning the status and use of its plans and report forms as may be requested.

(c) GAO is responsible for determining whether information to be collected is already available from another Federal source and whether proposed plans or forms for the collection of information are consistent with the requirements and policies of 44 U.S.C. 3512. Such responsibilities will be approached initially by reviewing those steps which an agency has taken to effect compliance. However, GAO will take such additional steps as it deems necessary and appropriate to insure compliance with the statutory requirements and policies.

$10.4 Confidentiality of information.

Section 3508 (a) of title 44, United States Code, dealing with unlawful disclosure of information, applies to the use of information by agencies subject to this part. Each report form and reporting or recordkeeping requirement shall specify any restrictions upon agency use of the information concerned or other protections in terms of the confidentiality of such information under relevant statutes or agency regulations, procedures, or practices.

SUBPART B-CLEARANCE PROCEDURES

§ 10.5 Requirement for clearance.

(a) Except as provided in § 10.6 of this part and paragraph (b) of this section, an agency shall not conduct or sponsor the collection of information upon an identical item from 10 or more persons unless in advance of adoption or revision of any plans or forms to be used in the collection

(1) The agency has submitted to GAO proposed plans or forms for collecting such information, together with copies of pertinent regulations and of such other related materials as are specified in and required pursuant to subpart C of this part; and

(2) GAO has advised that the information proposed to be collected is not presently available to the agency from another source within the Federal Government and has determined that the proposed plans or forms are consistent with the provisions of 44 U.S.C. 3512.

(b) If GAO does not provide advice within 45 days following the date on which it received a complete submission for clearance of a proposal to collect information and review of such proposal has not been suspended or discontinued pursuant to § 10.9 of this part, the agency may immediately proceed to collect such information under the proposal as submitted to GAO. Collection of information by operation of this subsection may not continue for more than 1 year from the date on which it commenced.

(c) Renewals of plans or report forms upon expiration of an existing clearance must be submitted for a new clearance whether or not any revision in such plans or report forms is proposed.

(d) Revision in plans or report forms prior to expiration of an existing clearance are subject to a new clearance if such revisions are material. A material revision in a plan or report form or the use thereof, includes, but is not necessarily limited to, significant modification in the kind or amount of information sought; significant change in the number or type of respondents or the survey coverage; significant change in the timing or frequency of reporting or the duration of records maintenance requirements; or a change in the purpose for which information is required. Nonmaterial changes need not be submitted for clearance by GAO. However, agencies shall advise GAO of such changes and the reasons therefor and furnish GAO a copy of the revised plan or report form.