ML20008E763
| ML20008E763 | |
| Person / Time | |
|---|---|
| Issue date: | 02/24/1981 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Jennifer Davis, Harold Denton, Donoghue D, Haller N, Kerr G, Minogue R, James Shea, Rich Smith, Stello V NRC OFFICE OF ADMINISTRATION (ADM), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP), NRC OFFICE OF MANAGEMENT AND PROGRAM ANALYSIS (MPA), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation, NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES), NRC OFFICE OF STANDARDS DEVELOPMENT, NRC OFFICE OF STATE PROGRAMS (OSP) |
| Shared Package | |
| ML20008E764 | List: |
| References | |
| NUDOCS 8103090580 | |
| Download: ML20008E763 (42) | |
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jo, UNITED STATES g
NUCLEAR REGULATORY COMMISSION n
t WASHINGTON. D. C. 20555 fee-..<
- 19 91 MEMORANDUM FOR: John G. Davis, Director Office of Nuclear Material Safety and Safeguards j
Harold R. Denton, Director Office of Nuclear Reactor Regulation Daniel J. Donoghue Office of Administration Norman M. Haller, Director Office of Management and Program Analysis G. Wayne Kerr, Director Office of State Programs Robert B. Minogue, Director Office of Nuclear Regulatory Research James R. Shea, Director Office of International Programs Ray G. Smith, Acting Diredor Office of Standards Development Victor Stello, Jr., Director Office of Inspection and Enforcement FROM:
Howard K. shapar Executive i.egal Director
SUBJECT:
PAPERWORK REOUCTION ACT OF 1980 On April 1,1981, the Paperwork Reduction Act of 1980 (Enclosure 1) will take effect.
It is a comprehensive attempt at revising the Federal Reports Act of 1942, as amended, and controlling Federal raperwork.
It will have a substantial impact on NP.C and, therefore, has to be examined carefully. (A detailed discussion is provided in Enclosure 2.) The Act has three over-riding features.
I will note these first, to provide an overview, then note some key points, and end with highlights of possible concerns.
(Boththe concerns and possible alleviations are discussed more fully in Enclosure 3.)
Contact:
Thomas F. Dorian, OELD 492-8690 1
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Multiple Addres ees First, the Act proposes to consolidate control over the Federal Government's paperwork in one central office located within the Office of Management and Budget. Right now, the Exec stive Branch agencies are accountable to OMB and the independent agencies are accountable to GA0. With limited exceptions necessary to Federal law enforcement efforts and national security, every Federal agency except one will have to submit its significant papenvork requests to OMB for clearance. Of all Federal agencies, only the Federal Election Commission is totally exempt; its paperwork requests are cleared by the Congress itself. Thus, the law applies to NRC and will impact every office, for almost (except as described later) all requests for infomation to licensees and CP holders will have to be cleared by OMB.
Second, the Act subjects each of our significant paperwork requests to a tough, but commonsense, test.
Is it necessary? By this is meant, is the infomation sought truly needed to achieve our objectives? Even if it is--is the infomation available from other sources within the Federal Government? Even if these tests are met, can the infomation be obtained in a less burdensome manner? And even if the information is needed--and other-wise unavailable--and the infomation request is written or structured so as to minimize the burden on the respondent, will the information 'have practical utility for us? Can we Jse it once we get it? All these questions must be asked and answered, first by us and then by Ot18.
If we cannot demonstrate that the infomation we want is really needed, or that the infomation is unavailable from Federal sources, or that we have taken steps to minimize the burden of the infomation collection request, or that we will be able to use the information once we get it, then the information request is not necessary as far as this Act is concerned--and OMB will reject it.
Third, the Act establishes a Federal information locator system--a central clearinghouse of infomation--to enable the left hand to know what the right hand is doing. One important goal of this legislation is to reduce the cost of Federal paperwork that is borne by the Federal Government itself--a cost estimated by the Federal Paperwork Commission at $43 billion. The Federal infomation locator system should enable Federal agencies to detemine if the infomation they want is already available elsewhere in the Federal Government, thereby eliminating duplicative information requests.
The legislation's key points are as follows:
o It mandates a goal of 25 percent reduction of the Federal Government's paperwork burden over 3 years.
o It assures that paper vork and reports required by the Federal Govern-ment are checked to see whether infomation requested is first, needed, second, not duplicative, and, third, collected in an efficient manner.
o It holds the Director of OMB accountable for this checking and for preventing duplicative and unnecessary paperwork burdens.
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E Multiple Addressees o It requires all requests of the public to contain an OMB control number, an expiration date, and a statement on why the infomation is necded, how it will be used, and whether t' is a voluntary or mandatory request.
o It ensures that requests which do not reflect their purpose and a control number will be considered as so-called " bootleg" foms and will not have to be honored by the public.
Its "public protection" section enables every citizen, State and local government, university or college, or small business to participate in minimizing unnecessary paperwork by ignoring " bootleg" foms, o
It puts together the following inforntion policy functions in an Office of Infomation and Regulatory Affairs within OMS: General infomation, paperwork clearance, statistical policy, records manage-ment, privacy, and automatic data processing and telecommunications.
o It requires a senior official within each agency to ensure a greater agency role in managing infomation resources.
o It establishes a Federal information locator system to help agencies and the Director of OMB manage infomation resources and prevent dup-licative reporting burdens on the public.
o It grants indapendent regulatory commissions the authority, by a majority vote, to override any disapproval of an infomation request of the public.
o It requires OMB to expedite the clearance of agency infomation collec-tion requests when specific eraergency conditions exist, o
It ensures that OMB's review of agency infomation collection requests will be coordinated with agency rulemaking proccdures established by the Administrative Procedure Act or other similar legislation.
o It provides ipecific exemptions for certain intelligence, defense, and investigatory activities. Existing statutes covering these activities are not affected by this Act.
The Paperwork Reduction Act raises several difficult problems for the staff with respect to OMB clearance of infomation requests.
Like its predecessor, the Federal Reports Act of 1942, as amended, this legislation requires NRC to r,ubmit for clearance any reporting or recordkeeping requirement affecting 10 or more persons befo-e imposition of the requirement.
It transfers back to 0MS the clearance function now perfomed by GA0 with respect to indepen-dent Federal regulatory agencies such as NRC. However, in doing so, it also (1) pemits OMS to rule on NRC's need for the infomation it requests. (2) allows OM3 to veto a proposed infomation request, and (3) pemits the public to refuse to comply with an NRC request for infomation that has not been
o Multiple Addressees cleared by OMB. These are radical dtartures from the present legislation and require NRC to take a close look t,t the legislation to make sure that it does not conflict with NRC's safety mission, especially where NRC quickly needs infonnation from its licensees about safety problems.
Finally, three other matters should be noted.
First, Enclosure 4 sets out a rule by GA0 establishing the procedure by which it will continue to accept reports from independent regulatory agencies before April 1.1981, the effective date of the Paperwork Reduction Act.
Second, it is unclear, as yet, how OMB will handle reporting or record-keeping requirements approved by GA0 for three years, where the approval continues past the December 31, 1981, cutoff--after that date members of the public do not have to comply unless a request contains an OMB control number or is aimed at nine or fewer persons. My staff's preliminary discussions with OMB and GA0 indicate that OMB will probably automatically assign control numbers to let GA0's approvals expire of their own accord.
Third, it is unclear what OMB will do about GAO's generic clearance of November 21, 1980, to the NRC (Enclosure 5), especially in light of the fact that GA0 is about to report to Congresr and OMB that in its view there have been severcl items of recent NRC noncompliance with the clearance. We will continue to monitor the latter t',o matters.
,/ --
Howard K. Shapar Executive Legal Director
Enclosures:
1.
Paperwork Reduction Act 2.
Discussion of Paperwork Reduction Act 3.
Concerns raised by the Act and some possible alleviations 4
Recent GA0 rule 5.
GA0's generic clearance of 11/21/80 to NRC cc:
W. J. Dircks i
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Paperwork Reduction Act 4
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PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2813 information processm* g burden for the Federal Government and for persons who provide information to the Federal Government; and
"(6) to ensure that the collection, maintenance, use and dis-i semination of information by the Federal Government is consist-ent with applicable laws relating to confidenciality, including section 552a of title 5 United States Code, known as the Privacy Act.
"53502. DeAnitione 44 Usc 3s02.
"As usedin this chaptnt-
"(1) the term 'spncy' means any executive department, mili-tary depAment, Government corporation, Government. con-trolled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatorv agency, but does not include the General Accounting Office. Federal Election Com-mission, the governmenta of the District of Columbia and of the territories and possessions of the United States, and their various subdivisions, or Government-owned contractor 4perated facili-l ties including laboratories engaged in national defense research and production activities;
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"(2) the terms ' automatic data processing,' ' automatic data j
processing equipment,' and ' telecommunications' do not include i
any data processing or telecommunica+. ions system or equip-I ment, the function, operation or use of wuich-
"(A) involves intelligence activities;
"(B) involves cryptologic activities related to national security; i
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"(C) involves the direct command and control of military forces;
"(D) involves equipment which is an integre part of a weapon orweapons system;or
"(E) la critical to the direct ful'111 ment of military or 1.telligence mire.isns, provided that this exclusion shall not include auto' atic data processing or telMommunications equipment used for routine administrative and business apphc:tions such as payroll, finance, logistics, and personnel management;
"(3) the term ' burden' means the time, effort, or f' ancial m
resources expended by persons to provide information to a Federalagency;
"(4) the term ' collection of inforr.ation' means the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, question-naires, reporting or scordkeepmg requirements, or other simi-lar methods calling foreither-
"(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalitia.s, or employees of the United States;or
"(B) answes to queations po.ed to agencies, instrumental-ities, or employees of the United States which are to be used for general statistical purposes;
"(5) the term ' data element
- means a distinct piece ofinforma-I tion such as a name, term, number, abbreviation, or symbol; i
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l PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2315
"(b)There shall be at the head of the Office an Administrator who Administrator, shall be oppointed by, and who shall report directly to, the Director. *PPaatm'at.
. The Dir.ctor shall delegate to the WW-ator the authority to
' administer all functions under this chapter except that any such i
delegation shall not relieve the Director el responsibility for the at mmistration of such functions. The Administrator shalf serve as piacipal adviser to the Director on Federal information policy.
"93504. Authority and fhnetions of Director u tisc m
"(a)TheDirectorshalldevelo policies, principles, =*==A=rds,pandimplementFederalinformation and guidelines and shall provide direction and oversee the review and approval ofinformation collec-tion requests, the reduction of the paperwork burden, Federal statis-tical activities, records management activities, privacy of records, interagency sharing of inforrnatian automaticdataprocessingtelecommun, and acquaaition and use of ications,and other technology for managing information resources. The authorit shall be exercised consistent with applicable law. y under this section
"(b) The include generalinformation pohey functions of tha Director shall i
"(1) developing and implementing uniform and consistent t
I information renot.rces management development ofinformation managepolicies and overseeing the i <
nent principles, standards,
- and guidelines and promoting their use;
"(2) initiating and reviewing pro for changes in legisla-tion, regulations, and agency p ures to improve information i
practices, and informin progress made therein; g the President and the Congress on the i
't3) coordinating, through the review of budget proposals and as otherwise provided in this section, agency information prac-1 tices;
"(4) promoting, through the use of the Federal Information Imater System, the review of budget proposals and other meth-e ods. greater sharing ofinformation by agencies;
"(5) evahtating agency information management practices to determine their adequacy and efficiency, and to determine com-pliance of such practices with the policies, principles, standards, and g)uidelines promulgated by the Dirwtor; and
"(b overseeing planning for, and sonduct of research with respect to. Federal collection, procecair.g storage, transmission, and useofinformation.
"(c) The information collection request clearance and other paper. P.perwork.
work control functions of the Director shall include-l contr
"(1) reviewing and a proposedbyagencies; rr.-s information collection requests
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"(2) determming 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 practicalutility forthe agency;
"(3) ensuring that all information cellection requesta-
"(A) are inventoried, display a control number and. when app'(ropriate,an expiration date; B) indicate the request is in accordance with the clear-i ance requirementa ofsection 3507; and Awt. p. 2819.
"(C) contain a statement to inform the person receivin,g the request why the information is being collected, how it ts l
to be used, and whether responsen to the' request are volun-tary, required to obtain a benefit, or mandatory; I
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s PUBLIC LAW 96-511-DEC.11,1980 94 STAT,2817 1949 and reviewing proposed determinations under section 111(g) 40 Usc 737.WA ofsuch Act;
"(3) provu' hng advice and guidance on the acquisition and use of automatic data processing and telecommunications equ' ment, and coordinatmg, through the review of budget pro and other methods, agency proposals for acquisition and use of such equipment;
"(4) promoting the use of automatic data processmg and telecommunications equipment by the Federal Government to improve the effectiveness of the use and dissemination of data in the operation of Federal programs; and
"(5) initiating and reviewing proposals for changes in legisla-tion, regulations, and agency procedures to improve automatic data processing and telecommunications practices, and inform-ing the President and the Congrees of the progress made therein.
"(h)(1) As soon as practicable, but no later than publication of a notice of proposed rulemaking in the Federal Register, each agency shall forward to the Director a copy of any proposed rule which contains a collection ofinformation requirement and upon request, inforrascica necessary to make the determination required pursuant to this section.
"(2) Within sixty days after the notice of proposed rulemaking is published in the Federal Register, the Dirxtor may file public comments pursuant to the standards set forth in section 3508 on the Post. P. 2821.
collection ofinformation requirement contained in the proposed rule.
"(3) When a final rule is published in the Federal Register, the
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agency shall explain how any collection ofinformation requirement contained in the final rule responds to the comment::, if any, filed by the Director or the public, or explain why it rejected those comments.
"(4)The Director has no authority to disapprove any collection of inforraation requirement s
' cally contained in an agency rule,if he has received notice and ed to comment on the rule within sixty days of the notice o reposed rulemaking.
"(5) Nothing in ~ section pnrvents the Director, in his d2scre-tion-
"(A) from disapproving any information collection request which was not specifically required by an agency rule;
"(B) from disapproving any collection of information require.
ment contained m an agency rule, if the agency failed te comply with the requirements of paragrasa (1) of this subsection; or
"(C) from disapproving any collection of information require-ment contained in a final agency rule, if the Director finds within sixty days of the publication of the final rule that the agency's response to his comments filed pursuant to paragraph (2) of this subsection was unreasonable.
"(D) from disapproving any collection of information require-ment where the Director determines that the agency has sub-stantially modified in the final rule the collection ofinformation requirement contained in the proposed rule where the agency has not given the Director the information required in paragraph (1), with respect to the modified collection ofinformation require-ment, at least sixty days before the issuance of the final rule.
"(6) The Director shall make publicly available any decision to disapprove a c>llection of information requirement contained in an agency rule, together with the reasons for such decision.
"(7)The authority c' :
Director under this subsection is subject to the provisions of 6% tion M)7(c).
Past 2819.
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-m PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2819 including, where necessary, development of legislation to imp (lement such recommendations;* E) develop, in consultation with the Administrator l
General Services, a five-year plan for meeting the automatic data pmmy and telecommunications needs of the Fed-eral Government in accordance with the requirements of section 111 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759) and the purpoaes of this chapter;and
"(F) submit to the President and the Congress legislative proposals to remove inconsistencies in laws and practices mvolving privacy, confidentiality, and disclosure of information.
44 Usc 350s.
"83506. Federal agency responsibilities
"(a) Each agency shall be responsible for carrying out its informa-tion management activities in an efficient, effective, and economical manner, and for complying with the information policies, principles, standards, and guideliues prescribed by the Director.
"(b) The head of each agency shall designate, within three months after the effective date of this Act. a senior official or, in the case of military d3partments, and the Office of the Secretary of Defense, officials who report directly to such agency head to carry out the i
responsibilities of the agency under tius chapter. If more than one official is appointed for the military departments the respective duties of the officials shall be clearly delineated.
"(c) Each agency shall-
"(1) systematically inventory its major Information systems and periodically review its information management activities, including planning, budgeting, organizing. directing, training, promoting, controlling, and other managerial activities involving the collection, use, and dissemination of information;
"(2) ensure its information systems do not overlap each other or duplicate the systems of other agencies;
"(3) develop proceures for assessing the paperwork and rep'orting burden of proposed legislation affecting such agency; (4) assign to the official designated under subsection (b) the responsibility for the conduct of and accountability for any acquisitions made pursuant to a delegation of authority under section 111 of the Federal Property and Administrative Services Act of1949(40 U.S.C.759); and
"(5) ensure that information collection requesta required by law or to obtain a benefit, and submitted to nine or fewer persons. contain a statement to inform the person receiving the request that the request is not subject to the requirements of section 3507 of this chapter.
lahn.
"(d) The head of each agency shall establish such procedures as Proemiures, establishment.
necessary to ensure the compliance of the agency with the require-ments of the Federal Information locator System, including neces-sary screening and compliance activities.
4 "53507. Public information collection activities-submisslan to 44 Usc sso7.
Director; approval and delegation
"(a) An agency shall not conduct or sponsor the 'collution of information unless, in advance of the adoption or revision of the request for collection of such information-
"(1) the agency has taken actions, including consultation with the Director, to-l
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o PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2821 determines that circumstances warrant such a review. The Director shall retain authority to revoke such delegations, both in general and with regard to any specific matter. In acting for the Director, any official to whom approval authority has been delegated under this section shall comply fully with the rulse and regulations promulgated by the Director.
"(O An agency shall not engsgo in a collection of information without obainig from the Director a control number to be displayed upon the information collection request.
"(g) If an agency head determines a collection of information (1) is needed prior to the expiration of the sixty-day period for the review of information collection requests established pursuant to subsectiert (b), (2) is essential to the mission of the agency, and (3) tne agency cannot reasonably comply with the provisions of this chapter within such sixty <iay period because (A) public harm will result if norntal clearance procedures are followed, or (B) an unanticipated event has occurred and the use of normal clearance procedures will prevent or dirrupt the collection ofinformation related to the event or will cause a statutory deadline to be missed, the agency head may request the Director to authorize such collection ofinformation prior to expira-tion of such sixty day period. The Director shall approve or disap-prove any such authorization request within the time requested by the agency head and, if approved, shall assign the information collection request a control number. Any collection of information conducted pursuaat to this subsection may be conducted without compliance with :he provisions of this chapter for a maximum of ninety days after the date on which the Director received the request
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to authorize such collection.
"93508. Determination of necessity for information; hearing 44 Usc 350s.
"Before approving a proposed information collection request, the Director shall determine whether the collection ofInformation 5 2n agency is necessary for the proper performance of the functions..he agency, including whether the information will have oractical uttlity.
Before makmg a determination the Director may giv t o.sency and other interested persons an opportunity to be heac..- to submit statements in writing. 'Io the extent, if any, that ene Director determines that the collection ofinformation by an agency is unnec-essary, for any reason, the agency may not engage in the collection of the information.
i "93509. Designation of central collection agency 44 USC 35o9.
'The Director may designate a central collection agency to obtain info mation for two or more agencies if the Director determines that the tmh of scch agencies for intrmation will be adequately served by a single collection agener wd such sharing of data is not
,3 inconsistent with any epplicabk, !rw. In such cases the Director shall prescribe (with reference to the callection of information) the duties
-. and functions of the collection agency so designated and of the agencies fo-which it is to act as agent (meluding reimbursement for costs). While the designation is in effect, an agency covered by it may not obtain for itself information which it is the duty of the collection agency to obtain. The Director may modify the designation from time to time as circumstances require. The authority herein is subject to the provisions ofsection 3507(c) of this chapter.
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i PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2823 particular attention to whehr the agency has complied with section 3506.
Aa= p. 219.
"(b) The Director shall report the results of the reviews to the Report e appropriate agency head. the House Com:nittee on Government **" @
Operations, the Senate Committee on Governmental Affairs, the House and Senate Committees on Appropriations, and the commit-tees of the Congress having jurisdiction over legislation relating to the operations of the agency involved.
"(c) Each agency wh2ch receives a report pursuant to subsection (b) written shall, within s'
. days after receipt of such report, prepare and ygg, transmit to the r, the House Committee on Government cong Operations, the Senate Committee on Governmental Affairs, the coma,u i
ne House and Senate Committees on Appropriations, and the commit, tees of the Congress having jurisdiction over legislation relating to the operations of the agency, a written statement responding to the Director's report, including a description of any measures taken to alleviate or remove any problems or deficiencies identified in such report.
44 Usc 2514.
"53514. Responsiveness to Congress
"(a) The Director shall keep the Congress and its committees fully Report
- and currently informed of the major activities under this chapter, y*j"f' and shall submit a report thereon to the President of the Senate and speakEt the the Speaker of the House of Representatives annually and at such House.
other times as the Director determines necessary, The Director shall include in any such report-
"(1) proposals for legislative action needed to improve Federal l
information management, including, with respect to information collection, recommendations to reduce the burden on individ.
'I uals, small businesses, State and local governments, and other persons;
"(2) a compilation of legislative impediments to the collection of information which the Director concludes that an sgency needs but does not have authority to collect:
"(3) an ana!ysis by agency, and by categories the Director finds useful and practicable, describing the estimated reporting hours required of persons by information collection requests,includig to the extent practicable the direct budgetary costa of the agencies and identi5 cation of statutes and regulations which imp (ose the greatest number of reporting hours;* 4) a summary of accomplishmen reduce burdens of Federalinformatica collection requests:
"(5) a tabulation of areas of duplication in agency information collection requests identified during the preceding year and efforts made to preclude the collection of duplicate information, including designations of central collection agencies;
"(6) a h'at of each instance in which an agency engaged in the collection ofinformation under the authority of section 3507(g) Aa4 A3 19.
and an identificatian of each agent.y involved;
"(7) a list of all violations of provisions of this chapter and rules, regulations, guidelines, policies, and procedures issued pursuant to this chapter;and
"(8) with respect to recommendations of the Commission on FederalPaperwork-
"(A) a description of the specific actions taken on or planned for each recommendation;
"(B) a target date for implementing each recommendation accepted but notimplemented; and g
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l' PUBLIC LAW 96-511-DEC.11,1980 94 STAT. 2825 of Commerce, or the Director of the Omce of Management and Budget.
"(e) Nothing in this chapter shall be Interpreted as increasing or decreasing the authority of the President, the Omce 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 omcas, including the substantive author-ity of any Federal agency to enforce the civil rights laws.
"I3519. Access to information 44 Uscas19.
"Under the conditions and procedures prescrined in section 313 of the Budget and Accounting Act of1921, as amended.. the Director and da8a n t2.
a personnel in the Omco of Information and Regulatory Affairs shall furnish such information as the Comptroller General may require for the thcharge of his responsibilities. Fse this purpose, the Comptrol-Irr General or representatives thereof shall have access to all books, documents, papers and records of the Omce.
"$3520. Authorization of appropriations 44 U5c2520.
"There are hereby authorized to be appropriated to carr provisions of this chapter, and for no other purpose, sume y out the
"(1) not to exceed $8,000,000 for the fiscal year ending Septem-ber30,1981;
"(2) not to exceed $8,500,000 for the fiscal year ending Septem-ber 30,1982;and
"(3) not to exceed $9,000,000 for the fiscal year ending Septem-ber 30,1983."
(b) The item relating to chapter 35 in the table of chapters for such 8
title is amended to read as follows:
"35. Coord.netfoe of Federal !aformation Policy.".
l (cX1) Section 2904(10) of such title is amended to reed as follows: 44 Uscaso4.
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"(10) report to the appropriate oversi at and a proprir. ions I
committees of the Congress and to the 13irector o[the Of! Ice of Management and Budget annually and at such other times as the Administrator deems desirable (A) on the results of activities conducted pursuant to paragraphs (1) through (W of this section, (B) on evaluations of responses by Federal agencies to any recommendations resulting from inspections or studies con.
ducted under paragraphs (8) and (9) of this section, and (C) to the extent practicable, estimates of costs to the Federal Government ruulting f.ws the failure of agencies to it.iplement such recom-mendation2.
(2) Section 2905 of such title is amended by redesignating thc,: ext 44 Uscasos.
thereof as subsection (a) and by adding at the end of such section the l
following newsubsection:
"(b)The Administrator of General Services shall assist the Admin. Studies.
istrator for the Odice of Information and Regulatory Affairs in conducting studies and developing standards relating to record reten.
tion reqatrements imposed on the public and on State and local governments by Federal agencies.".
Sec. 3. (a) The President and the Director of the Office of Manage. 44 Uscasos ment and Budget shall delegate to the Administrator for the Ofl1ce of "***-
Information and Regulatory Affairs all functions, authority, and i
responsibility under section.0*4 of the Budget and Accounting Procedvres Act of1950(31 U.S.C.18b).
(b) 'r:te Director of the Office of Management and Budget shall delegate to tio Administrator for the OfHee of Information and
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Discussion of Paperwork Reduction Act
KEY PROVISIONS OF THE PAPERWORK REDUCTION ACT OF 1980 ON OMB CLEARANCE OF INFORMATION AND RECORf> KEEPING REQUESTS On April 1, 1981, the Paperwork Reduction Act of 1980,Il will take effect.E The Act specifically includes NRC.-
The following discussion highlights principal provisions of the Act with respect to OMB clearance of NRC's information and recordkeeping requests. Note that, for ease of reference, the provisions are addressed in the order they appear in the legislation, and that some sections are skipped because they are not directly relevant to this analysis.
Section 3502 Anytime we require or request answers to identical questions from, or impose identical reporting or recordkeeping requirements on, ten or more of our licensees we will need OMB clearance.y The tem " collection of infomation" y
Pub. Law 95-511, approved December 11, 1980. This law was first intro-duced as H.R. 6410 in the House on January 3, 1980, 96th Cong., 2d sess., and passed on March 24, 1980. House Rep. No.96-835, by the Committee on Government Operations, accompanied the bill.
S. 1411, a bill substantially similar to H.R. 6410, was introduced in the Senate on June 26, 1980.
It was reported out of the Senate Committee on Governmental Affairs on September 8,1980, accompanied by Senate Rep, i
No.96-930. On November 19, 1980, the Senate passed S. 1411 with several amendments (see Congessional Record at S.14682, Nov.19, 1980). On December 1, 1980, the House accepted the Senate version (see Congressional Record at H.11374, Dec.1,1980).
At this writing, the accompanying report to the Act is unavailable, y
Sec. 5 of Pub. L.95-511.
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9 3502(10).
4f 6 3502(4)(A).
- in Subsection 3502(4) includes oral methods calling for answers.E Moreover, it accepts GAO's consistent and long-held interpretations of the Federal Reports Act of 1942, as amended,E and GA0's own regulations,E and fore-closes an interpretation that it applies only to information collected for statistical compilations of general public interest.E In this regard, Subsection 3502(4)(B) makes clear that NRC needs 0?iB clearance if, for general statistical purposes, it wants infomation from other " agencies, instrumentalities, or employees of the United States."
Additionally, the Act is intended to reach infomation requests put out by the Federal Government which impose no duty on the recipient to respond.
Thus, the Act covers not only information requests imposed on ten or more persons by NRC's rules, orders, and bulletins, but also such requests put out through letters, questionnaires, regulatory guides, technical specifi-cations, and so on.
As Senator Danforth, an architect of the Act, stated:
Although we are chiefly concerned about the burden imposed cn the American people by paperwork they have no choice about answering, we are also concerned about paperwork that can freely wind up in the wastebasket--and of ten does.
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Report No.96-930 on S-1411, Report of the Senate Committee on Govern-ment Affairs, 96th Cong. 2d Sess. (Senate Report), at 39.
y 44 U.S.C. 3501, e_t_ seq. and 3512, e_t, seq.
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In 1973, Congress transferred the clearance power from Of18 to GA0 to prevent the undue impairment of independent regulatory agencies data collection efforts.
See In re FTC Corporate Patterns Litigation, 432 F. Supp. 274, 289 (D.C. 1977).
y Senate Report on S.1411, at 38.
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. - Whether responses to a request for infonnation are voluntary, required to obtain a benefit, or mandatory, no information request should ever go out unless and until there has been a determination that it is necessary.
if it is not necessary it is a waste of the taxpayer's money and, as often as not, an insult to the recipient.
i Let ne make it clear, therefore, that by this legislation we intend that Federal arencies and OMB intensely scrutinize all paperwork requests of the public. The fact that responses to a request for information are voluntary is no excuse for agency heads or 0MB to let down their guard.
Indeed, it is such requests, as often as not, that fuel pubigg suspicion--and rightfully so--
about the waste of tax dollars.
The concept of " agency" in Section 3502 also merits an explanation. As noted by Senator Danforth:
The authority of the Director of OMB to review proposed informa-tion collection requests applies only to collections of informa-tion conducted or sponsored by a Federal agency. Thus, research projects funded by a grant or cooperative agreement are not, under ordinary circumstances, subject to the paperwork controls of this act. As the connittee made clear in its report. the only circum-stances under which collections of information are cons'idered to be conducted or " sponsored" by a Federal agency are where:
First, the agency itself conducts the collection; second, the agency uses a procurement contract to obtain information by way of a contractor; or third, the terms and conditions of a grant or cooperative agreement specifically require that collec-of the act.pation be subject to the clearance requirements tions of in 9/
Cong. Rec., Nov. 19, 1980, at S. 14702.
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Section 3504 Section 3504, a key sectio., describes the authority and functions of the Director of GMB.
Subsection 3504(a) requires the Director of OMB to exercise his authority under Section 3504 " consistent with applicable law." The Senate Report, within the context of describing the Director's policy func-tions and the Act's purpose, describes the meaning of this phrase as follows:
This section [3504] lists and describes the following policy functions for which the Director shall provide overall direction:
general infomation, infomation clearance and paperwork control, stat'stical activities, records management, privacy, and Federal automatic data processing [ADP] and telecommunications.
In addition, the Director is to ensure that rules and regulations are developed by Federal agencies in a manner which will, to the extent practicable and appropriate, minimize information burden. The authority and responsibility contained in these policy functions provide the Director an effective means to integrate and manage the infomation resources of Federal agencies. Effective government-wide integra-tion and management of infomation resources will provide for minimal infomation burden on the public.
This subsection (a) restates in summary form all of the authority of the OMB Director under this Act. ine purposes of this bill is to improve infomation management so as to reduce the burden on the public. With that in mind, this subsection requires that the exercise of that authority must be consistent with applicable law.
Therefore whatever authority herein vested in the Director of OMB must be used in a manner that confoms with existing law.
For example, while section 3504(b)(3) mandates the Director to coordi-nate agency infomation practices "through the review of budget proposals," a statutory ex tion or exception from OMB budget review continues to apply.
Subsections 3504(c) t: d (h) (see Enclosure 1) are the two most relevant to reporting and recordkeeping.
11/ Senate Report on S.1411, at 40-41.
. With respect to Subsection 3504(c), it should be noted carefully that (1) unlike GAO, OMB will determine whether, in order to perfom its responsi-bilities, NRC actually needs and can use the information it requests, (2) OMB will ensure that information requests comply with Section 3507, such as having an appropriate control number, and that (3) OMB will ensure that all of NRC's information requests contain a statement to infom the person receiving the request why the infomation is being collected, how it is to be used, and whether it is voluntary or mandatory. Senator Danforth explained that the provision about the need for a statement as regards both voluntary and mandatory information requests was added by him for the follow-ing reason:
It seems to me that if the Federal Government is going to ask the American people to fill out a lot of forms, it ought to at least have the common decency to tell them why they are doing it. This does stot have to be an exhaustive statement - but it should be of sufficient length to be infomative. And--this should go without saying--it shcald be in plain English.
I expect that the Director of the OMB will be diligent in policing this requirement.
In my opinion, fewer foms will end up in wastebaskets if somebody takes the time to explain to the people getting them why they are needed.
In addition, in the process of figuring out how to explain why a fom should be answered, more than one Federal bureaucrat may discover thgthere really are not very good reasons-and abandon the effort.
In major part, Subsection 3504(h) is concerned with infomation collection through rulemaking. That section would, in essence, force OMB to consider infomation c611ection requirements early in the rulemaking process with a R/ Co'g. Rec., Nov. 19,1980, at S.14702.
. teaningful opportunity for public comment on OMB's comments. Several other matters need highlighting in connection with that section. First, NRC is required to notify OMB as soon as possible, but no later than the date upon which a notice of proposed rulemaking is published in the Federal Register, of a proposed infomation collection requirement.
Second, OMB is required to comment on NRC's infomation collection require-ments in the proposed rule within 60 days or forfeit its rights to review those requirements at a later time.
In these comments, OMB would suggest alternative methods of collecting infomation more efficiently.
Third, when NRC adops its final rule, it must respond to those comments by modifying the infomation collection requirements or by explaining why it rejected OMS's suggestions.
If NRC does not forward a copy of its proposed infomation collection require-ments to 0MB, OMB retains its right to review that request even though it has not filed comments during the rulemaking proceeding. Moreover, if NRC intends to modify substantially the infomation collection requirements which were in the proposed rule, the Act ensures that OMB has at least 60 days to comment on these modified requirements before the final rule is issued.
w Fourth, OtB's authority to review and comment on portions of proposed regu-lations which require the collection of infomation is supplemental to its
. authority to approve or reject specific infomation collection requests. No matter what its actions may have been with regard to a proposed regulation.
OMB may freely approve or reject any specific collection request deriving from such a regulation. Moreover, OMB retains the right to review foms or other infomation collection requests which were not specifically required by an NRC rule. Thus, OMB's authority is not limited to a review of NRC's rules and regulations but includes all requests for infomation.
Fifth, in reviewing proposed regulations, OMB may disapprove any collection requirement which it finds " unreasonable," which is to say, not of sound judginent in OMB's opinion. According to Congressman Horton, a sponsor of the Act, "the purpose of Section 3504(h)(5)(C) is not to restrict unduly the ability of OMB to act, but to insure that in acting, Ot1B have justification for what it does.E Thus, this provision would provide the final power to 0MB to overturn NRC's recordkeeping or reporting requiraments only if ONB made a public finding that NRC's response was " unreasonable." However, as discussed later, NRC as an independent agency would retain the right. to override Of18 under Subsection 3507(c), on a vote of the majority of the Commissioners.
Finally, decisions by OMB under this provision are not reviewable in court.
Subsection 3504(h)(9) states that there shall be no judicial review of any g Cong. Rec., Dec. 1, 1980, at H. 11380.
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'OMB decision to approve or not act upon a proposed regulation; because the power to approve implies the power to disapprove, this paragraph, in effect, forbids court challenge of any decision to pursue any of the options open to Of18--approval, disapproval, or inaction.
Section 3505 Section 3505 requires that NRC, like other agencies, reduce the infonnation burden on its licensees by 15% by October 1,1982, and by an additional 10%
by October 1983.
Section 3506, NRC's responsibilities under Section 3506, " Federal agency respcnsibilities,"
(such as designation of a senior official by July 1,1981, to oversee NRC's responsibiltiies under the Act) are presently being reviewed by sevaral NRC offices, so that an extensive discussion is not needed.
It merits emphasis, though, that Subsection 3506(c)(5) requires that information collection requests required by law or to obtain a benefit (that is, both mandatory and voluntary requests), and submitted to nine or fewer persons (as opposed to ten or more as the term " collection of information" is defined), display a statement to infom the person receiving the request that the request is not subject to 0MB's clearance requirements.
. Section 3507 Section 3507 is another key provision of the Act.
Subsection 3507(a) pro-hibits NRC from collecting information unless, in advance of the adoption or revision of the request for collection of such information, it receives OMB's approval. Subsection 3507(b) provides that OMB's approval or denial should be given within 60 days and that OMB may extend the review period an additional 30 days.
If NRC does not receive OMB's approval or denial within these time periods, approval maybe inferred, a control number will be assigned, and NRC may collect the information for one year.
Subsection 3507(c) allows NRC to override OMB's denial of a proposed informa-tion collection request, or an exercise of authority under Suusections 3504(h)
(previously discussed) or 3509 (involving a central collection agency to obtain information for two or more agencies), if NRC, by a majority vote of its members, overrides OMB's disapproval or exercise of authority. NRC mur c certify each override to the Director of DMB and explain the reasons for exercising the override authority. Where the override concerns an informa-tion collection request, the Director must without further delay assign a control number to the request, and the override will be valid for three years.
It is worthwhile to fully quote the Senate Report to S.1411 on this very important override provision.
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m Section 3507(c) provides that an independent regulatory agency as defined in this Act may override any disapproval, in whole or in The part, of an infomation collection request by the Director.
Committee considers the override an important protection for the The override, in independent status of the regulatory agencies.
effect, provides an opportunity for those agencies to take a second close look at any infomation collection request dis-This provision strikes a necessary and approved by the Director.
appropriate balance between the goals of centralized control of Federal collection of information and the legitimate information needs of the various independent agencies.
The authority contained in Section 3507 may be triggered by an a: tion, including any modification, of an infomation collection
--and to request by the Director. Whenever such disapproval occ-Thus the extent that it occurs--then the override is available.
any such specific action by the Director under sections 3507 or 3508 or any otter relevant provision of this bill would be subject to the overrido. That of course involves the Director's deter-mination on whether the information is necessary, including whether the infomation will have practical utility, and any other permitted To cite two further reason upon which the disapproval is based.
examples, an inferred approval under section 3507(b) may be made express, and a rejection of an emergency request under section 3507(g) may be nullified.
In those cases, the independent agency may detemine to proceed, and once that detemination is made the request shall be valid, at the discretion of the agency, for a period of up to three years.
Once the override occurs, the Director must immediately assign a It is the Committee's intention that the minis-control number.
terial function of assigning a control number shall not in any way result in any further delay.
In addition, any specific exercise of authority by the Director Any under sections 3504(h) or 3509 is also subject to override.
action by the Director under those provisions is subject to this As such, the final decision on whether information subsection.
will be efficiently and offectively collected pursuant to a regu-So ution rests squarely with an, independent regulatory agency.
'vo, the Director's designation of a central collection agency is subject to possible override.
However, the Committee v;as convinced of the importance of estab-lishing certain safeguards for the proper exercise of this authority.
Therefore, an override may occur only if a majority of the members That has of an independent commission decide to take that action.
the effect of having the decision made at the highest levels of
a
- l the agency. The Director must *ue infomed of the decision, and the agency must explain the reasons for exercising the override.
That will assist the public and the Congress in understanding why the override was used.
Finally, once overriden, the infomation collection request is not pemanent.
Instead it is subject to the same time limitations--namely, three years--which apply under section 3507(d) in other circumstances. Of course the agency could decide on an earlier termination date.
If the infomation request is withdrawn, discontinued, or modified, successor infor-mation requests must be submitted for review by the Director in the same manner as any new request.
The effort to reduce the Federal paperwork burden, of necessity, involves certain limitations on the ability of Federal agencies, including those that are independent, to collect information.
Although the Committee believes that the override authority is important to protect the independent status of these regulatory agencies, it expects that all agencies will cooperate to thef fullest extent possible in the effort to reduce paperwork.C (Emphasis added.)
Subsection 3507(e), another important provision from NRC's point of view, provides that Oft 3, by rule in accordance with notice and comment procedures of the Administrative Procedure Act, may delegate to a senior official in an agency sufficiently independent of program responsibility the authority to approve proposed collection of infomation requests in specific program areas, for specific purposes, or for all agency purposes.
In approving requests, the official must comply with OMB's regulations.
The Senate Report describes this provision as follows:
The Director may delegate his infomation collection approval authority to an agency if he detemines that the senior official within that agency desginated pursuant to section 3506(c) is sufficiently independent from any program responsibility and has ly Senate Report on S.1411, at 47-48.
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. sufficient resources to evaluate whether proposed information collection requests should be approved. This delegation is sub-ject to the notice and comment provisions of the Administrative Procedure Act.
The determination of " independence" will have to be made by the Director on a case-by-case basis. However, it should be clear that no person who is responsible for, or otherwise directly involved in, the administration of any program for which infor-raation is sought could possess the requisite independence to evaluate information collection requests of that program.
The scope of delegation is to be determined by the Director.
It could encompass, for example, information requirements which impose a small burden on the public, but not those which demand more than an hour of each respondent's time.
Delegation does not preclude the Director, on his own initiative or on the request of interested persons, from reviewing individual information collection requests if he determines that circumstances warrant such review.
The Director retains the authority to revoke delegation to the agencies both in general and with regard to any specific matter.
He may approve, modify, or disapprove any requests on which a delegee has already ruled. Any official to whom the approval powers have been delegated is to cumply fully with rules, regula-tiors, or procedures established by the Director.15/
Subsection 3507(g), a crucial provision, provides for a " fast track" OMB clearance review, under which, according to the Senate Report on S.1411:
[A]n agency head may seek clearance of an information collection request in one working day (if the agency head determines a col-lection of information is 1) needed prior to the expiration of the sixty-day period authorized for the Director's review of information collection requests, (2) essential to the agency's mission, and (3) that the agency cannot reasonably comply with the provisions of this chapter.
A request to authorize a collection of information under the fast track procedures of section 3507(g) may be made by an agency head at the time a equest for clearance is originally made or at any time prior to a decision by the Director on a request for clearance, 15/ jd,.,at48.
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. and shall be acted on by the Director within one working day of its receipt.
If the Director approves the authorization request, a control number shall be assigned to the information collection request immediately. Any collection of information conducted pursuant to section 3507(g) may be conducted without compliance with the provisions of this chapter for a maximum of 90 days from the time the Director received the request for authorization.
If the Director denies a request for " fast track" clearance, review of the information collection request shall proceed as generally provided in this chapter. Of course, the Director, notwithstanding the refusal to provide " fast track" clearance, may agree to act on the request on an expedited schedule, as appropriate.
It is intended that egency heads employ this discretionary authority only for emergencies, or where an unforseen event or public ham is a consideration. The use of this authority by agencies will be listed and described in t Director's annual report to the Congress required by section 3514.
Section 3508 Section 3508, a radical departure from the 1973 Amendment to the Federal Reports Act, allows OMB to detemine whether or not an agency, including an independent Federal regulctory comission such as NRC, needs the infomation it. requests, with the proviso, as previously discussed, that independent regulatory agencies may override OMB's detemination. The Senate Report explains this provision as follows:
The provisions of this section replace the language of Section 3(d) of the original Federal Reports Act of 1942 (44 U.S.C. 3505).
The Director is required, before approving, modifying, or denying a proposed information collection request, to detemine whether the collection is needed for the perfomance of agency functions.
Necessity is thus the test under this section.
This detemination is to include whether the collection of infomation:
(1) has practical utility for the agency, (2) is not more than the minimum lyf Id., at 48-49.
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needed to meet the agency's objective, or (3) it not duplicative of similar information otherwise accessible.
If the Director determines that a collection is not necessary, he should not approve it. The Director is authorized to give the agency and other interested persons an oppartunity to be heard or to submit statements in writing before making a determination.
Unless the collection of information is specifically required by statutory law the Director's determination is final for agencies which are not independent regulatory agencies. The fact the collection of information is specifically required by statute does not, however, relieve an agency of the obligation to submit the proposed collection for the Director's review.
Independent regula-tory agencies may override a Director's determination pursuant to the provisions of section 3507(c) of this chapter.17/
Section 3512 Section 3512, another radical departure fran the 1973 Amendment to the Federal Report Act, allows the public not to comply with a request for collection of information made a#ter December 31, 1981, if the request does not display a current control number assigned by 0MB or fails to state that it is not subject to OMB approval.
Section 3518 Section 3518 is another key section. Using GA0's regulations in 4 CFR 910.6(c) as a basis for several of its provisions. Section 3518 specifies that the only collections of information by a Federal agency which are exempted, and for which a person may not claim protection under Section 3512, are those under Subsection 3518(c)(1), which apply:
l 17/ Id., at 49.
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- c. (1) during the conduct of a Federal criminal investigation or prosecution, or during the disposition of a particular criminal matter; (2) during the conduct of a civil action to which the United States or any official or agency thereof is a party, or an administrative action or investi-gation involving an agency against specific individuals or entities; [see 4 CFR 9 10.6(c)(5)]
(3) by compulsory process pursuant to the Antitrust Civil Process Act; and (4) during the conduct of intelligence activities as defined by executive o rde r.
However, Subsection 3518(c)(2) specifically provides that there is no exemption for:
the collection of infomation during the conduct of general investi-gations (other than information collected in an antitrust investi-gation to the extent provided...) [in the exemptions previously listed] undertaken with reference to a category of individuals or entities such as a class of licensees or an entire industry.
[See 4 CFR 9 10.6(c)(5).]
The Senate Report describes the provisions in Subsection 3518(c) as follows:
Section 3518(c) makes clear that a collection of infomation during the conduct of general investigations with reference to a category of individuals or entities such as a class of liensees o'r an entire undustry is covered by the requirements of this Act.
Section 3518(c) does, however, exempt specific kinds of collections of information from the provisions of this Act.
Collections of infomation are excluded from the reguirements of this Act:
(1) during the conduct of a Federal criminal investigation or prosecu-tion, or during the disposition of a particular criminal manner; (2) during the conduct of a civil action to which the United States or any official or agency is a party, or an administrative action or investigation involving an agency against specific individuals or entities.
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, Thus section 3518(c)(1) creates certain exemptions for civil and criminal law enforcement that apply to collection of evidence pursuant to investigations, whether before or after initiation of fomal charges. These exemptions are not limited to fomal dis-covery or analagous stages in administrative proceedings and include interrogatories, depositions and subpoenas.
Section3518(c)(1)(B) covers all law enforcement investigations, as distinguished from
" general investigations," provided for in section 3518(c)(2). The language in this subsection regarding "an administrative action or investigation involving an agency against specific individuals or entities" is intended to preserve a well-settled exception for subpoenas and similar forms of compulsory process used for the collection of evidence or other infomation in an adjudication or investigation for law enforcement purposes.
See 4 CFR sec-tion 10.6(c)(5),(c)(8).
Section 3518(c)(1)(B) is not limited to agency proceedings of a prosecutorial r:ature but also include any agency proceeding involving specific adversary parties. Similar to the collection of infomation in litigation, an agency's intended use of investigatory and adjudicative process is sufficiently safeguarded through judicial superintendence to render unnecessa*y the administrative clearance process of this Act.
Collections of information as a result of compulsory process pursuant to the Antitrust Civil Process Act and infomation gather-ing activities for the purposes of foreign and counterintelligence as defined in Executive Order 12036 or successor orders are also exempt.
The collections of infomation covered by the exemption for the conduct of criminal investigation, prosecution or deposition of a carticular matter include direct actions by attorneys, courts, investigators, or probation, pardon authorities to collect infomation.18 parole, or currectional Finally, Subsection 3518(e) is very important with respect to NRC's sub-stantive responsibilities. That subsection provides that nothing in the papemork Reduction Act of 1980 affects in any way an existing authority of the President or OfiB or its Director under U.S. law,, "with respect to substantive policies and programs of departments, agencies and offices."
The Senate Report states that:
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_I_d_., at 55-56.
. This provision results from concern that the authority of this Act might be used to increase the power of OMB over substantive policy.
The Committee notes that there have been problems along that line in the past.
It has been argued that the Federal Reports Act--
which S.1411 amends--was used to interfere with regulatory policy under the guise of clearing information requests. Those arguments prompted Congress to remove the independent agencies from OMB supervision back in 1973--and place those agencies under GA0.
The bill has provisions to guard against that. Section 3518(e) provides that the bill does not affect in any way the powers of the President or 0MB respecting the substance of agency policies.
management and substantive decisions.gion between paperwork Thus S.1411 draws an important disti J9/ Jd., at 56.
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e, Concerns raised by the Act and some possible alleviations o
Paper Work Reduction Act of 1980:
1 Problems and Possible Alleviations The Federal Reports Act of 1942, as amended, has raised difficult problems for tha with respect to the need for NRC to obtain prior clearance from GN of NRC's infomation requests to its licensees. The Papemork Reduction Act of 1980 raises the same problems and several even more for-midable. Neither the 1942 Act nor the new legislation address NRC's fre-quent, urgent, and sometimes immediate need from its licensees of critical infomation about public health or safety-related matters. Rather, both are broadly aimed at the need for clearance of general information collection and recordkeeping requests and at a coordinated Federal review of infomation requests and recordkeeping requirements to cull out unnecessary duplication' of effort and to prevent an undue burden from being imposed on Government, industry, and the public. Congress' transfer in 1973 of the clearance power from OMB to GA0 to prevent the undue impaiment of independent regulatory M did not solve NRC's problems, nor will agencies' data collection efforts the Papemork Reduction Act. Unfortunately, OMB, like GAO, may become inadvertently a device for delaying NRC's information collection efforts.
Since GA0's generic clearance will devolve on OMB, it is worth describing the arguments between GA0 and NRC with respect to that clearance. GA0 saw two distinct types of situations where NRC would need infomation.
y See In re FTC Coroorate Patterns Report Litiaation, 432 F.Supp. 274, 289 (D.C. 0.C. 1977).
. 1 One variety of situations involves generic problems identified by NRC that could pmduce an immediate health or safety problem and, as to which, the Ccymission requires licensees to sub. nit infomation and take steps to assure that the same problems do not exist or will f.>t occur at their facilities.
In extending its generic clearance (Enclosur, 3), GA0 recognized that even its swif test clearatca procedures would have a significant detrimental effect on detecting and risolving such urgent generic problems.
A second group of si5ations involves miner design, structural, or func-tional deficiencies of a generic nature identified by NRC, CP holders, or licensees in operating reactor systems, structures or components which typically pose no immediate health or safety hazard.
These situations can also involve periodic equipment failures, construction probie.ns, and issues discovered or raised by the technical staff during the safety review. They can come to NRC':, attention by licensee reporting procedures, the safety j
review process itself, and by IE inspections. Reports submitted by the licensee and problems discovered by the staff are evaluated, and, if NRC detemines that the reported event or issue may have significant generic implicatior.s, a summary notification and request for information is sent to other licensees and applicants which may be similarly affected. As to these types of situations, GA0 has argued that, since there is no immediate health or safety emergency, there is no justification to circumvent its normal clearance procedures.
. l NRC's counter argument to GA0's position on the second variety of situations has been that, once NRC has determined that infomation is needed to iden-tify, evaluate, or resolve an existing problem or a potential problem of a generic nature affecting the public health and safety, no purely adminis-trative process can be allowed to delay the obtaining of that infomation.
Given that the health or cafety problem is real--and this cannot always be known with certainty at the outset--and that corrective action will ulti-mately be required at operating nuclear power plants or by materials licensees, any delay--even a day--represents an added risk to the public health and safety and cannot be tolerated. A sec.ond argument against GAO's position has been that, in only covering emergencies, that is, situations that could produce an inmediate health or safety problem about which NRC needs informa-tion, GA0's clearance does not cover situations where the need is urgent but not immediate.
For example, a situation can arise where NRC needs health or safety infomation from l'censees as soon as possible and requests them to immediately start collecting the infomation.
In addition, suppose it takes licensees an average of 90 days to collect the infomation from the time NRC requests them te act. Waiting until GA0 first approves the request, evea if its approval wre expedited, say it were given in 10 days as opposed to the nomal 45, would hold up the information, because licensees could wait to see whether or not GA0 would approve the request and only act to collect it after it has done so.
Thus, the so-called " fast track" procedure established for emergencies by the new legislation, like GA0's present procedures (aside from the blanket
. clearance), is not adequate to handle NRC's needs. Under this procedure, NRe, may seek clearance of an infomation collection request in one working day.
The problem with this procedure is that it is not fast enough in some instances and, in any event, shifts the staff's need from focusing on an important event to that of complying with some paperwork requirement--in many instances, the staff cannot refocus its attention from an urgent health or safety problem and the concomitant urgent need for infomation to some administrative procedure with attendant paperwork requirements involved with getting an OMB clearance. As previously stated, once NRC has detemined that infonnation is needed to identify, evaluate or resolve an existing problem affecting the public health and safety, no purelj administrative process can be allowed to delay the obtaining of that information. Given that the staff believes there is a problem requiring infomation and cor-rective action, in many instances even a one-day wait for 0MB clearance represents an added risk to the public health and safety and should not be tolerated.
The exemptions in Subsection 3518(c) of the legislation, like the exemptions in GA0's regulations on which they are based, are not directly useful to NRC when it needs safety or health information from more than ten licensees, because these exemptions are not available for the needed type of " general investigation" and infomation request; rather, except for intelligence information, they are written from the point of view of collection of infor-mation in litigation, including administrative actions and enforcement proceedings involving an agency against specific persons (see Enclosure 2, a t 14-16).
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. Another legal concern is that it is unclear whether or not the type of blanket or generic clearance now granted by GA0 to NRC will be available to NRC from OttB, for the legislation does not address this matter.
Several alleviations, if not solutions, are possible, nonetheless, under the nW legislation and with OMB's help, especially in light of the Senate Report ort S.1411, which emphasizes that OMB must exercise its in.fomation management tijthority consistent with applicable law and so as not to inter-fere with the substantiva regulatory policies and programs of independent Federal regulatory agenc.n. These alleviations should be viewed, however, with the understanding that Congress expects all independent regulatory agencies to " cooperate to the fullest extent possible in the effort to reduce paperwork." One approach is to argue that the Atomic Energy Act requires NRC to act swif tly in the interests of public health and safety when it believes there may be or is a public health or safety problem in connection with its licensees; that, therefore, the Atomic Energy Act should be hamonized with the Paperwork Reduction; and that this hamonization requires NRC and OMB to develop and implement appropriate procedures to avoid delay.
The first approach may be combined with a request to OMB fer a generic clearance, like the one NRC now has from GAO, tailored to meet NRC's speci-fic needs. Though such a clearance is not specifically authorized by the legislation, neither 1.1 it specifically precluded. An infomal check with OMB suggests that it might be willing to provide such a clearance.
, Another approach, that could be used along with the first two, involves OM3's delegation of its infomation collectiori approval to a senior NRC official who is sufficiently independent from any program responsibility and has sufficient resources to evaluate whether proposed infomation collection requests should be approved. This approach is not without its problems, though, for the delegation is subject to (1) the notice and comment provisions of the Administrative Procedure Act, (2) the stated scope of the delegation, (3) OMB's rules, regulations, and procedures, (4) an OMB review and veto of each exercise of authority under the delegation, and (5) an OMB revocation.
Obviously, this last approach is not wholly satisfactory with respect to urgent information requests to NRC licensees for it allows for the possi-bility of OMB intercessinn in each NRC request.
In any event, as with all the alleviations, the Commission might have to provide guidelines about information requests requiring urgent treatment.
Even though OMB review could, in light of tining problems, impose a health or safety risk, after December 31, 1981, almost every NRC information or recordkeeping request (described in Enclosure 2) will have to be submitted to OMB and will have to have an OMB control number or an tppropriate state-ment; without a showing of this number or the statement, a licensee need not respond to NRC.
Clearly, NRC shot.id work with OMB to implement procedures to avoid delay where public health or safety mignt be at risk, including (1) obtaining OMB acceptance and extension of GA0's generic clearance before
. 2 that expires / and (2) obtaining OfiB's delegation of its information collec-tion approval to a senior NRC official who is sufficiently independent from any program responsiollity and has sufficient resources to evaluate and approve proposed information collection requests.
Finally, it should be noted carefully that several informal checks with 0:1B suggest that it might be willing to cooperate with NRC to resolve NRC's problems about the Paperwork Reduction Act of 1980.
2/
Note that the clearance will expire on November 30, 1981, not Novem-ber 30,1983--assuming that OMB accepts it.
L r _
GA0 Interim Rule Pre-effective Date of Paperwork Reduction Act t
T
10451 Rules and Regulatichs r* i==ia-Vol M No. 22 i
lbenday. February 3.1981 0
0 The sectim of tie FEDERAL REGISTEa United States Code (the Federal Reporta result if normal 6 3 vmce procedures conensis reguietary documerne henn9 Act of 1942, as amended). Under are followed, or (2) en unanticipated 9'"*'ai -% and le9al Wsect, most subsecuon 3812(b). GAO was required event has coeurred and the use of of wtuch are keyed to and cocaw h to conduct generai reviews of all normal c!earance procedures will the Code of Federal Regidenone, whch is information-gatharing practices of provent or diarupt the collection of l
U
$1
' bdependest Federal mguletary agacies infomana mlaud to 6e mnt. Any.
The Code of Federal Regannons is said with a view toward avoiding dnpilcation emergency clearance requests for which try the Supenntendant of Documensa, of effort in, and mini =hN he rssiew has not been completed by t
Pnces of new books are Ested n the compliance burden imposed by such March 31.198L will be returned to the first FEDERAL AEGISTER meue of endi practices. GAO was alse required by requesteg agency on that date for mo'*
subsectico 3612 (c) and (d) to conduct resubmission to OMB.
advance dearance reviews of nee or Expiradoo Date revised prope.als by independent GENERAL. ACCOUNTING OFFICE Federal mgulatory agencies to conduct -
h es ameded 44 E 3512 or sponsor the collection ofinfortnation mquires aH information coUecti n 4 CFR Part 20 from to or more persons.
requests to display an OMB control ne Paperwork Reduction Act of1980, number after December 31,1981, all Clearance of Proposals bY Pub. L No.96-51t 94 Stat. 2812 dearances granted by GAO during the independent Federal Regulato87 December 11.1980. transferred GAO's Peiod fantiary thrnugh March 1981 wiu Agencies to Conduct or Sponacf clearance and review responsibuitfes to bear an expiration date no latu than
?
Collection of Information the OMB. In effect terminating the Dembu 3h 1981.
AoENcy: General AccountingOfHee.
ComptmHer GennaFs authority to h utaeu.
Action: Modification ofp ocedures for approve collections by tndependent Comptmiler Generalof the UmtedStates.
handling clearance requests prior to regulatory agencies, effective Apri!!.
gra on. es.aue r w nei. ea effective date of Paperwork Reduction 1981. Since the new Act changes the
- cons w w e ws criteria b which couections are to be evahtateifand ends CAO review Act of1980.
sumuAnT:W Paperwork Reducdos jurisdiction over sud coHections, and DEPARTMENT OF AGRit:UL.TURE Act of1980. Pah. L Ns Shit 94 Stat, amce the carrant law. 44 U.S.C. 3512(d).
3 2812. amende the Federal Reports Act of Permits GAO to take up to 45 days to 1942, to transfer responsibility for advise these agencies as to whether a 7 Cl4 Pwt 29 review of reporting requirements for proposed collection ofinformation independent r gulatory agencies from muts the mquirements of the Federal Tobacco inspection; Amendment to the Gecual Accounting Office (GAO) to Reports Act, a modification of GAO Regulations Relating to Fees and j
the Omce of Information and Regulatory procedures at this time is necessary to Charges for Permissive inspection Affairs in the OfSce af Management and provide for an orderly transition by the Budget, effective Apnl11981. Die ride effective date of the newlaw.
A4ancy:Agricaltural t.farketing Service.
establishes the procedre by which Status of Requests for Clearance GAO wiu continue to accept reporse Re.mived February 13 27,1sai suenaAnT:These regulations modify the Imm independant mgulatory agendes prior to Apnl 1.1981 and coast!tutas a GAO d continue to process existing fees and charges for permissive in of tobaooo pursuant to the modif!caboa of GAO regulatione dearance requests received from au contained in the Tobacco published on July 2.1974 (30 FR 24345) independent regulatory agencies as i
and Angust 20,1975 (40 Flt 38295) and provided by 4 CP1t Part 20 until Inspection As.t (49 Stat. 731: U.S.C. 511 i
codifled as Part 20 to Utle 4. Code of February 13,1981. 45 days before the g87' Federal Regulations. Dese reguladone effective date of the Paperwork EFFICTM dam February 3.1981.
I are to be revoked. effective Apnl1.1987. Reduction Act of1980. Requests POR PunTwsR IMPORMATION *0NTACT:
j
'"#T" * ** I*""*'I 28' *
- received from February 14 thmugh nomas A. VonGarlem. Director.
February 27,1981, will be accepted and Tobacco Division. Agricultural 1
ron sueTHen swromasArios cOwvAcT:
acted on by March 31.1981,if time Merketing Service. U.S. Department of l
Norman F. Heyl. Regulatory Reports permits. Any clearance requests for Agriculture. Washington. D.C. 20250 Review OfBcer. U.S. General i
which review has not been completed (202) 447-2567.
Accounting Office. 441 G Street. N.W.
by March 31,1981, will be returned to SUPPLEMENTARY INFORMATION: Pursuant Wa shington. D.C. 20545. (202) 275-3532-the requesting agency for resubmission to the authority contained in the suretzuswTAnT incomuATioec GAO to OMB.
Tobacco Inspection Act (49 Stat. 731: 7 was assigned certain review and clearance responsibilities for Status of Requests for Claunce U.S.C. 511 er seq.). notice is hereby gisen i d Much 1981 that the Department is amending irJormatioe coDection requirements of Subparts B and F of 7 CFR. Part 29.
independent regulatory agencies by During March 1981. GAO will accept relating to fees and charges for Section 400 of Pub. L No.93-153,87 only emergency requests for clearance permissive inspection of tobacco.
Stat. 573. Nov.18,19 3. which added a review. Such requests must meet the na Department is amending i 29.123 section 3512 to chapter 35 of title 44, following criteria:(1) Public harm wdl of Subpart B-Regulations, relating to I
l
t t
,o l
I I
GA0 Generic Clearance
.