B-203533.OM, AUG 24, 1981

B-203533.OM, AUG 24, 1981

SUBJECT: REQUEST FOR OGC OPINION CONCERNING THE PAPERWORK REDUCTION ACT OF 1980 (PUBLIC LAW 96-511) AND ITS PREDECESSOR ACT.

SENIOR ATTORNEY, OGC - JEREMY E. HUTTON:

AS WE RECENTLY DISCUSSED, FPCD IS REVIEWING THE OPERATIONS OF THE MERIT SYSTEMS PROTECTION BOARD, MERIT SYSTEMS REVIEW AND STUDIES GROUP (MSRS). AS PART OF THIS WORK, WE HAVE REVIEWED SEVERAL QUESTIONNAIRES PREPARED BY MSRS AND DISTRIBUTED TO FEDERAL EMPLOYEES. MSRS HAS SENT OUT SIX QUESTIONNAIRES - FIVE BEFORE APRIL 1, 1981, THE EFFECTIVE DATE OF THE PAPERWORK REDUCTION ACT, AND ONE ON APRIL 20, 1981.

THE QUESTIONNAIRES CONTAIN FLAWS THAT PREJUDICE THE SURVEY'S RESULTS AND LIMIT THEIR ULTIMATE USEFULNESS. WE BELIEVE THAT IF THE QUESTIONNAIRES HAD BEEN REVIWED BY SOMEONE FAMILIAR WITH INFORMATION COLLECTION AND RESEARCH METHODOLOGY STANDARDS THAT THE FLAWS COULD HAVE BEEN CORRECTED AND THE QUESTIONNAIRES' VALUE AND USEFULNESS GREATLY ENHANCED. THE OFFICE OF MANAGEMENT AND BUDGET MAY HAVE BEEN DESIGNATED THAT RESPONSIBILITY IN THE PAPERWORK REDUCTION ACT OF 1980 AND THE PREDECESSOR ACT, THE FEDERAL REPORTS ACT OF 1942, AS AMENDED. HOWEVER, THE ACTS AND THE LEGISLATIVE HISTORIES ARE NOT CLEAR.

TO HELP US COMPLETE OUR REVIEW, I AM REQUESTING YOUR ASSISTANCE IN ANSWERING THE FOLLOWING QUESTIONS:

(1) IS THE MERIT SYSTEMS PROTECTION BOARD, MERIT SYSTEMS REVIEW AND STUDIES GROUP, SUBJECT TO THE FEDERAL PAPERWORK REDUCTION ACT OF 1980 AND/OR THE PREDECESSOR ACT?

(2) IF SO, SHOULD ANY OF THE QUESTIONNAIRES PREPARED BY MSRS AND DISTRIBUTED TO FEDERAL EMPLOYEES HAVE BEEN REVIEWED BY THE OFFICE OF MANAGEMENT AND BUDGET?

(3) IF OMB SHOULD HAVE REVIEWED THE QUESTIONNAIRES, (A) DOES THE LAW IMPOSE ANY PENALTY ON AGENCIES THAT FAILED TO COMPLY? AND (B) DOES THE LAW REQUIRE OMB TO REVIEW QUESTIONNAIRES FOR COMPLIANCE WITH ACCEPTED STATISTICAL RESEARCH STANDARDS?

IF YOU NEED ANY FURTHER INFORMATION OR WOULD LIKE TO DISCUSS THESE MATTERS, PLEASE CALL ME ON 275-5490 OR RONALD MACCARONI ON 275-5743.

INDORSEMENT

DIRECTOR, FPCD

RETURNED. WE UNDERSTAND THAT YOUR QUESTIONS CONCERNING THE APPLICABILITY OF THE FEDERAL REPORTS ACT, 44 U.S.C. SECS. 3501-3512 (SUPP. III, 1979), AND ITS SUCCESSOR ACT, THE PAPERWORK REDUCTION ACT OF 1980, PUB. L. NO. 96-511, 94 STAT. 2812, DEC. 11, 1980, TO THE MERIT SYSTEM REVIEW AND STUDY GROUP OF THE MERIT SYSTEM PROTECTION BOARD (MSPB), ARE CONCERNED SOLELY WITH REVIEW OF QUESTIONNAIRES DISTRIBUTED EXCLUSIVELY TO FEDERAL EMPLOYEES AND WHICH ARE TO BE USED FOR STATISTICAL PURPOSES.

THE FEDERAL REPORTS ACT EXEMPTED ALL COLLECTIONS OF INFORMATION FROM FEDERAL EMPLOYEES BY BOTH EXECUTIVE AND INDEPENDENT REGULATORY AGENCIES FROM REQUIREMENTS THAT FORMS OR QUESTIONNAIRES BE SUBMITTED FOR REVIEW BY THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET (OMB) OR THE COMPTROLLER GENERAL, RESPECTIVELY. ALTHOUGH THE DEFINITION OF "INFORMATION" IN 44 U.S.C. SEC. 3502 (1976) INCLUDES "ANSWERS TO QUESTIONS FROM *** EMPLOYEES OF THE UNITED STATES WHICH ARE TO BE USED FOR STATISTICAL COMPILATIONS OF GENERAL PUBLIC INTEREST," BOTH SECTIONS 3509 AND 3512 SPECIFICALLY EXCLUDE PLANS OR FORMS TO BE USED FOR THE COLLECTION OF INFORMATION FROM GOVERNMENT EMPLOYEES FROM REVIEW REQUIREMENTS WITHOUT THE EXCEPTION FOR STATISTICAL SURVEYS. 44 U.S.C. SEC. 3509 (1976) CONTAINS THE FOLLOWING STANDARD FOR DETERMINING WHEN A FEDERAL AGENCY MUST SUBMIT PLANS, FORMS, OR REGULATIONS TO THE DIRECTOR OF OMB IN ADVANCE OF THEIR USE:

"A FEDERAL AGENCY MAY NOT CONDUCT OR SPONSOR THE COLLECTION OF INFORMATION UPON IDENTICAL ITEMS FROM 10 OR MORE PERSONS, OTHER THAN FEDERAL EMPLOYEES ***."

THE IDENTICAL STANDARD WAS APPLIED BY THE FEDERAL REPORTS ACT TO COLLECTIONS BY INDEPENDENT REGULATORY AGENCIES BY 44 U.S.C. 3512(C) (SUPP. III, 1979), WHICH REQUIRES SUBMISSION OF PLANS, FORMS AND PERTINENT REGULATIONS TO THE COMPTROLLER GENERAL WHEN AN INDEPENDENT REGULATORY AGENCY CONDUCTED OR SPONSORED A COLLECTION OF INFORMATION "UPON AN IDENTICAL ITEM FROM 10 OR MORE PERSONS, OTHER THAN FEDERAL EMPLOYEES."

ALTHOUGH THE PAPERWORK REDUCTION ACT CONTINUED TO EXEMPT OBTAINING OF FACTS AND INFORMATION FROM FEDERAL EMPLOYEES FROM REQUIREMENTS OF ADVANCE SUBMISSION AND APPROVAL BY THE DIRECTOR OF OMB, AN EXCEPTION IS MADE FOR COLLECTIONS OF INFORMATION FROM FEDERAL EMPLOYEES TO BE USED FOR STATISTICAL PURPOSES. 44 U.S.C.A. SEC. 3502(4)(B) (1980 LAWS SPEC. PAMPH.) DEFINES "COLLECTION OF INFORMATION" TO INCLUDE:

"ANSWERS TO QUESTIONS POSED TO AGENCIES, INSTRUMENTALITIES, OR EMPLOYEES OF THE UNITED STATES WHICH ARE TO BE USED FOR GENERAL STATISTICAL PURPOSES;"

44 U.S.C.A. SEC. 3507 (1980 LAWS SPEC. PAMPH.) PROHIBITS AN AGENCY FROM CONDUCTING OR SPONSORING A COLLECTION OF INFORMATION UNLESS, IN ADVANCE OF ADOPTING OR REVISING THE COLLECTION, IT HAS "TAKEN ACTIONS, INCLUDING CONSULTATION WITH THE DIRECTOR" TO ELIMINATE COLLECTIONS AVAILABLE FROM OTHER FEDERAL SOURCES, REDUCE THE BURDEN ON PERSONS FROM WHOM THE INFORMATION IS TO BE COLLECTED, AND FORMULATED PLANS TO COMPILE THE INFORMATION IN A MANNER TO ENHANCE ITS VALUE TO OTHER AGENCIES AND THE PUBLIC. THE AGENCY IS REQUIRED TO SUBMIT COPIES OF THE PROPOSED FORM AND PERTINENT REGULATIONS TO THE DIRECTOR OF OMB WHO GENERALLY HAS 60 DAYS TO APPROVE OR DISAPPROVE THE PROPOSED COLLECTION. AN AGENCY IS PROHIBITED FROM COLLECTING INFORMATION WITHOUT SUCH APPROVAL, BUT A PROCEDURE IS PROVIDED FOR OVERRIDING DISAPPROVAL WHEN AN INDEPENDENT REGULATORY AGENCY IS INVOLVED. SINCE THE PAPERWORK REDUCTION ACT ALSO INCLUDED INDEPENDENT REGULATORY AGENCIES IN ITS DEFINITION OF "AGENCY," THE MSPB WOULD BE SUBJECT TO THESE ADVANCE SUBMISSION, REVIEW, AND APPROVAL REQUIREMENTS, REGARDLESS OF WHETHER IT IS OR IS NOT AN INDEPENDENT REGULATORY AGENCY, WHENEVER THE COLLECTION FROM FEDERAL EMPLOYEES WAS TO BE USED FOR "GENERAL STATISTICAL PURPOSES." SEE 44 U.S.C.A. SEC. 3502(1) (1980 LAWS SPEC. PAMPH.).

AS NOTED IN YOUR MEMORANDUM, SECTION 5 OF THE PAPERWORK ACT SET ITS EFFECTIVE DATE AS APRIL 1, 1981. THEREFORE, ONLY THE QUESTIONNAIRE DISTRIBUTED BY MSPB ON APRIL 20, 1981 WOULD BE SUBJECT TO OMB REVIEW, AND EARLIER QUESTIONNAIRES WOULD BE EXEMPT FROM REVIEW BY EITHER OMB OR GAO. ALTHOUGH THIS DATE WAS LESS THAN 60 DAYS FROM THE EFFECTIVE DATE OF THE STATUTE, THE USUAL TIME PERIOD ALLOWED THE DIRECTOR TO EXERCISE HIS REVIEW AND APPROVAL FUNCTIONS, THIS DOES NOT AFFECT THE ACT'S REQUIREMENT THAT NO QUESTIONNAIRE SUBJECT TO HIS JURISDICTION BE INITIALLY DISTRIBUTED AFTER APRIL 1, 1981, WITHOUT PRIOR OMB APPROVAL. IT SHOULD BE NOTED THAT, IF THE MSPB NEEDED TO COLLECT THE INFORMATION PRIOR TO THE USUAL 60 DAY PERIOD, 44 U.S.C.A. SEC. 3507(G) (1980 LAWS SPEC. PAMPH.) PROVIDES A "FAST TRACK" PROCEDURE UNDER WHICH THE INFORMATION COLLECTION COULD HAVE BEGUN ON THE DATE REQUESTED BY THE CHAIRMAN OF THE MSPB AND CONTINUED FOR UP TO 90 DAYS BY WHICH TIME THE REGULAR APPROVAL PROCEDURE WOULD HAVE BEEN COMPLETED. THIS EXPEDITED PROCEDURE CAN BE REQUESTED BY AN AGENCY HEAD AT THE TIME OF HIS INITIAL SUBMISSION, WHEN HE DETERMINES THAT A COLLECTION OF INFORMATION IS NEEDED PRIOR TO THE USUAL 60 DAY CLEARANCE PERIOD, IS ESSENTIAL TO HIS AGENCY'S MISSION, AND THE AGENCY CANNOT COMPLY WITH THE USUAL 60 DAYS WAITING PERIOD BECAUSE:

"(A) PUBLIC HARM WILL RESULT IF NORMAL CLEARANCE PROCEDURES ARE FOLLOWED, OR (B) AN UNANTICIPATED EVENT HAS OCCURRED AND THE USE OF NORMAL CLEARANCE PROCEDURES WILL PREVENT OR DISRUPT THE COLLECTION OF INFORMATION RELATED TO THE EVENT OR WILL CAUSE A STATUTORY DEADLINE TO BE MISSED ***."

THEREFORE, IF THE MSPB COLLECTION MET THE ABOVE CRITERIA, IT COULD HAVE BEGUN ON APRIL 20, EVEN THOUGH ONLY LESS THAN 3 WEEKS AFTER THE EFFECTIVE DATE OF THE PAPERWORK REDUCTION ACT.

WITH REGARD TO YOUR LAST QUESTION, THE PAPERWORK REDUCTION ACT DOES NOT SPECIFICALLY REQUIRE OMB TO REVIEW QUESTIONNAIRES TO DETERMINE IF THEY COMPLY WITH ACCEPTED STATISTICAL RESEARCH STANDARDS. HOWEVER, THE HISTORY OF THE ACT AND THE BROAD STATISTICAL POLICY AND COORDINATION RESPONSIBILITIES ASSIGNED TO THE DIRECTOR BY SECTION 3504(D) DEMONSTRATE THAT CONGRESS EXPECTED REVIEW OF QUESTIONNAIRES BY OMB TO INCLUDE CONSIDERATION OF THIS AREA. THE SENATE REPORT ON THE ACT DESCRIBES THE INCLUSION OF STATISTICAL POLICY FUNCTIONS IN OMB'S AUTHORITY AS INTENDING TO RESTORE RESPONSIBILITIES THAT HAD BEEN TRANSFERRED FROM THE DIRECTOR TO THE DEPARTMENT OF COMMERCE BY PRESIDENT CARTER IN 1977:

"SECTION 3504(D) OF THE BILL PLACES STATISTICAL POLICY AND COORDINATION FUNCTIONS IN THE OMB OFFICE. THIS FUNCTION, WHICH IS DESCRIBED GENERALLY IN SECTION 103 OF THE BUDGET AND ACCOUNTING PROCEDURES ACT OF 1950 (31 U.S.C. 18(B)), IS VESTED IN THE PRESIDENT BUT PRESENTLY ASSIGNED TO THE DEPARTMENT OF COMMERCE BY EXECUTIVE ORDER 12013. PRIOR TO OCTOBER OF 1977, STATISTICAL POLICY WAS DETERMINED WITHIN OMB AT A LEVEL ABOVE THE AGENCIES' STATISTICAL OPERATING ACTIVITIES. S. 1411 TRANSFERS STATISTICAL POLICY AND COORDINATION BACK TO OMB, INTEGRATES IT WITH RELATED INFORMATION FUNCTIONS, AND RESTORES ITS IMPORTANCE." SEN. REPT. NO. 96-930, 96TH CONG., 2D SESS. 10-11 (1980).

THE "INFORMATION FUNCTION," REFERRED TO ABOVE WITH WHICH STATISTICAL POLICY COORDINATION IS TO BE INTEGRATED, CLEARLY INCLUDES REPORTS CLEARANCE. THE SENATE REPORT STATED:

"SECTION 3504 OF THE PAPERWORK REDUCTION ACT ASSIGNS THE FOLLOWING INFORMATION MANAGEMENT FUNCTIONS TO THE DIRECTOR OF OMB AND THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS: GENERAL INFORMATION POLICY, CLEARANCE AND PAPERWORK CONTROL, STATISTICAL ACTIVITIES, RECORDS MANAGEMENT, PRIVACY, AND FEDERAL AUTOMATIC DATA PROCESSING AND THOSE TELECOMMUNICATIONS RELATED TO COLLECTION OF INFORMATION. THE PURPOSE OF AGGREGATING THESE FUNCTIONS WITHIN THE SINGLE OFFICE IS TO ESTABLISH A GOVERNMENT-WIDE POLICY FRAMEWORK FOR 'INFORMATION RESOURCES MANAGEMENT.'

"THE COMMITTEE STRONGLY BELIEVES THE APPLICATION OF THIS POLICY FRAMEWORK FOR INFORMATION RESOURCES MANAGEMENT WILL RESULT IN FINANCIAL SAVINGS TO THE GOVERNMENT FOR INFORMATION TECHNOLOGY AND A SUBSTANTIAL REDUCTION IN PAPERWORK BURDEN ON THE PUBLIC. IMPROVED MANAGEMENT OF INFORMATION RESOURCES IS THE MEANS TO ACHIEVE THE BASIC MISSION OF THE OFFICE; TO REDUCE AND MINIMIZE THE PUBLIC BURDEN INVOLVED IN PROVIDING INFORMATION TO THE FEDERAL GOVERNMENT." ID. AT 7-8.

FORMER COMPTROLLER GENERAL STAATS SAW STATISTICAL POLICY REVIEW AS NECESSARY FOR THE CONTROL OF PAPERWORK WHEN HE TESTIFIED BEFORE A HOUSE GOVERNMENT OPERATIONS COMMITTEE HEARING LAST YEAR IN SUPPORT OF THE PAPERWORK REDUCTION ACT AND THE RETURN OF STATISTICAL POLICY FUNCTIONS TO OMB:

"*** IN 1977, THE PRESIDENT SHIFTED THE RESPONSIBILITY FOR SETTING STATISTICAL POLICIES AND STANDARDS AND COORDINATING FEDERAL STATISTICAL ACTIVITIES FROM OMB TO THE DEPARTMENT OF COMMERCE. THESE RESPONSIBILITIES ARE CLOSELY RELATED TO THE FEDERAL REPORTS ACT OBJECTIVES FOR CONTROLLING PAPERWORK BURDENS.

"FOR EXAMPLE, THE APPLICATION OF STATISTICAL PROCEDURES TO INFORMATION COLLECTION MAY BE HELPFUL IN IMPROVING THE QUALITY OF THE INFORMATION COLLECTED AND IN REDUCING THE REPORTING BURDEN IMPOSED ON THE PUBLIC.

"BECAUSE OF THIS CLOSE RELATIONSHIP, THE NECESSARY COORDINATION BETWEEN THE TWO FUNCTIONS IS ENHANCED IF THE FUNCTIONS RESIDE IN A SINGLE ORGANIZATION.

"THERE IS ALSO A NEED TO BALANCE THE SOMETIMES CONFLICTING INTERESTS FOR PAPERWORK REDUCTION ON ONE HAND, AND THOSE FOR IMPROVED STATISTICS ON THE OTHER, WHICH CAN BEST BE PERFORMED IF BOTH FUNCTIONS ARE IN ONE ORGANIZATION."

H. GOV'T. OPERATIONS SUBCOMM. HEARINGS ON H.R. 6410, "PAPERWORK REDUCTION ACT OF 1980," 96TH CONG., 2D SESS. AT 38-39 (FEBRUARY 7, 1980).

REVIEW OF METHODOLOGY FOR STATISTICAL SURVEYS AND OF POSSIBLE STATISTICAL POLICY ISSUED IN ALL FEDERAL QUESTIONNAIRES HAD BEEN RECOGNIZED AS AN INTEGRAL PART OF REPORTS CLEARANCE EVEN WHEN STATISTICAL POLICY FUNCTIONS WERE SEPARATED FROM OMB. IN A "MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF COMMERCE AND THE OFFICE OF MANAGEMENT AND BUDGET ON FEDERAL STATISTICAL POLICY MATTERS," SIGNED BY THE DIRECTOR OF OMB ON JULY 10, 1978, AND THE SECRETARY OF COMMERCE ON AUGUST 8, 1978, THE OMB CLEARANCE OFFICE AGREED TO FORWARD A COPY OF EVERY INFORMATION CLEARANCE REQUEST TO COMMERCE'S OFFICE OF FEDERAL STATISTICAL POLICY AND STANDARDS FOR SUBSTANTIVE REVIEW OF ALL STATISTICAL SURVEYS AND FOR DETERMINATION OF WHETHER SIGNIFICANT POLICY ISSUES EXISTED ON ALL OTHER REQUESTS. THE SECRETARY OF COMMERCE AGREED TO PROVIDE OMB WITH "TECHNICAL ADVICE ON STATISTICAL AND STATISTICAL METHODOLOGICAL ASPECTS OF REQUESTS FOR CLEARANCES." MEMORANDUM REPRINTED IN DEPT. OF COMMERCE, STATISTICAL REPORTER 391-392 (SEPTEMBER 1978). 44 U.S.C.A. SEC. 3508 (1980 LAWS SPEC. PAMPH.) REQUIRES THE OMB DIRECTOR TO MAKE A DETERMINATION OF WHETHER A PROPOSED INFORMATION COLLECTION "IS NECESSARY FOR THE PROPER PERFORMANCE OF THE FUNCTIONS OF THE AGENCY, INCLUDING WHETHER THE INFORMATION WILL HAVE PRACTICAL UTILITY." SECTION 4507 REQUIRES THAT THE COLLECTING AGENCY ATTEMPT TO REDUCE THE BURDEN ON PERSONS SUPPLYING INFORMATION "TO THE EXTENT PRACTICABLE AND APPROPRIATE" AND TABULATE INFORMATION IN A MANNER ENHANCING ITS USEFULNESS TO THE PUBLIC. IN LIGHT OF THE LEGISLATIVE HISTORY DESCRIBED ABOVE AND THE BROAD STATISTICAL REVIEW AND COORDINATION POWERS GIVEN TO OMB BY SECTION 3504(D) OF THE PAPERWORK REDUCTION ACT, SOME REVIEW OF COMPLIANCE WITH ACCEPTED STATISTICAL RESEARCH STANDARDS WOULD APPEAR NECESSARY.

THE ONLY PENALTY PROVIDED BY THE PAPERWORK REDUCTION ACT FOR NON COMPLIANCE BY THE AGENCIES IS INDIRECT. IF AN AGENCY DOES NOT SATISFY OMB, OMB WILL WITHHOLD A CONTROL NUMBER. WITHOUT A CONTROL NUMBER ON A COLLECTION REQUEST, RESPONDENTS ARE NOT SUBJECT TO SANCTIONS IMPOSED BY THE AGENCY FOR NON-COMPLIANCE AFTER DECEMBER 31, 1981.