[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Notices]
[Pages 35044-35049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16934]
[[Page 35043]]
_______________________________________________________________________
Part VIII
Office of Management and Budget
_______________________________________________________________________
Order Providing for the Confidentiality of Statistical Information and
Extending the Coverage of Energy Statistical Programs Under the Federal
Statistical Confidentiality Order; Notice
Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 /
Notices
[[Page 35044]]
OFFICE OF MANAGEMENT AND BUDGET
Order Providing for the Confidentiality of Statistical
Information
AGENCY: Office of Information and Regulatory Affairs, Office of
Management and Budget, Executive Office of the President.
ACTION: Final Order.
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SUMMARY: The Office of Management and Budget is issuing an order to
clarify, and make consistent, government policy protecting the privacy
and confidentiality interests of individuals or organizations who
furnish data for Federal statistical programs. It is intended to assure
respondents who supply statistical information needed to develop or
evaluate Federal policy that their responses will be held in confidence
and will not be used against them in any government action. In effect,
it clarifies and amplifies the privileged status afforded
``confidential statistical data'' about businesses and organizations as
set forth in the Trade Secrets Act, 18 U.S.C. 1905, as well as the
principles of the Privacy Act, 5 U.S.C. 552a, concerning information
about individuals. It establishes policies to assure ``fair information
practices'' (as advocated by the Privacy Protection Study Commission
and the Commission on Federal Paperwork) for respondents and subjects
of statistical inquiries, based on the concept of ``functional
separation'' developed by the Privacy Protection Study Commission. The
order permits functional separation to be achieved by two means--(1)
identifying an agency or unit that is purely statistical, or (2)
distinguishing statistical from non-statistical functions within a
single agency or unit. In a separate notice in this issue of the
Federal Register, we are inviting further public comment on a proposal
to amend Appendix A to extend the coverage of this order to additional
energy statistics programs.
EFFECTIVE DATE: July 28, 1997.
FOR FURTHER INFORMATION CONTACT: Jerry L. Coffey, Office of Information
and Regulatory Affairs, OMB, Washington, D.C. 20503. Inquiries may be
submitted via facsimile to 202/395-7245. Electronic mail inquiries may
be submitted via SMTP to [email protected] or via X.400 to G=Jerry,
S=Coffey, PRMD=gov+eop, ADMD+telemail, C=us. Electronic mail inquiries
should include the commenter's name, affiliation, postal address, and
E-mail address in the text of the message.
SUPPLEMENTARY INFORMATION:
A. Background
Statistical policy authority within the executive branch was
established explicitly in section 103 of the Budget and Accounting
Procedures Act of 1950, which stated, in its original language:
The President, through the Director of the Bureau of the Budget, is
authorized and directed to develop programs and to issue regulations
and orders for the improved gathering, compiling, analyzing,
publishing, and disseminating of statistical information for any
purpose by the various agencies in the executive branch of the
Government. Such regulations and orders shall be adhered to by such
agencies.
64 Stat. 834 (codified at 31 U.S.C. 18b). In 1982, this provision was
recodified, without substantive change, at 31 U.S.C. 1104(d):
The President shall develop programs and prescribe regulations to
improve the compilation, analysis, publication, and dissemination of
statistical information by executive agencies. The President shall
carry out this subsection through the Administrator for the Office
of Information and Regulatory Affairs in the Office of Management
and Budget.
See also Section 3(a) of the Paperwork Reduction Act of 1980 (94
Stat. 2825) and Executive Order No. 10253 (31 U.S.C. 1104 note, and
Codification of Presidential Proclamations and Executive Orders (1945-
89), p. 687). Previous orders issued pursuant to this authority have
been in the form of OMB Circulars, Transmittals and attached Exhibits
(prior to 1977), Statistical Policy Directives (1978-1980), and
Statistical Standards (since 1980).
The Paperwork Reduction Act of 1980 (as amended in 1986 and 1995)
also requires OIRA to develop policies, principles, standards, and
guidelines for privacy and confidentiality generally; the integrity of
confidentiality pledges; and the confidentiality of information
collected for statistical purposes (subsections 3504(e)(1), 3504(e)(5),
and 3504(g)(1) of title 44). In addition the Act tasks OIRA to oversee
agency compliance with related requirements of the Act and with the
policies referenced above (subsections 3506(b)(1)(C), 3506(e) (2)-(4),
and 3506(g)(1)). For example subsection 3506(e)(2) requires agencies to
``inform respondents fully and accurately about the sponsors, purposes,
and uses of statistical surveys and studies''.
The diverse Federal statistical system consists of more than
seventy agencies and units, including a dozen agencies that have
statistical activities as their principal function. While this
decentralized structure provides substantial benefits in making
statistical units responsive to specific program needs, public
confidence in nondisclosure pledges made by statistical agencies or
units is sometimes affected by perceptions of the programs those
statistics support.
By establishing a uniform policy for the principal statistical
agencies, this order will reduce public confusion, uncertainty, and
concern about the treatment of confidential statistical information by
different agencies. By establishing consistent rational principles and
processes to buttress confidentiality pledges, the order will eliminate
unsupportable confidentiality claims and agency decision processes that
have created uncertainties. Such consistent protection of confidential
statistical information will, in turn, reduce the perceived risks of
more efficient working relationships among statistical agencies,
relationships that can reduce both the cost and reporting burden
imposed by statistical programs.
B. Summary of Comments Received on the Proposed Order
On January 29, 1996, OMB issued for public comment a proposed
statistical order regarding the confidentiality of statistical
information (61 FR 2876). In response to the proposed order, OMB
received numerous inquiries and 22 comments. Each comment has been
considered in preparing this final order. In developing this order, OMB
has also relied upon its four decades of experience in administering
the Statistical Policy authority and its 16 years of experience jointly
administering that authority and the Paperwork Reduction Act.
Many inquiries and some comments sought clarification. In
particular, agency commenters requested further elaboration or
explanation of how the processes defined by the order will work
administratively. OMB staff have met with and are continuing to meet
with agency staff in order to answer this type of question. It is OMB's
intention to consult with agencies immediately affected by the order
and to provide appropriate guidance for implementing the order. Issues
pertinent to information security and disclosure avoidance practices
will be considered during these consultations.
Seventeen of the twenty two comments received endorsed the
objectives of the order, including an endorsement by the Board of
Directors of the Council of Survey Research Organizations, whose
members represent the vast majority of survey research activity in the
United States. One of these comments also noted that
[[Page 35045]]
uniform confidentiality standards could potentially reduce reporting
burden by encouraging and facilitating coordination between statistical
agencies. Of the other five comments, two were silent on the general
principles and three questioned the functional separation principle.
There were no objections to seven of the ten definitions in Section
1, though several comments interpreted definitions in terms of
particular programs and practices. With few exceptions, these
interpretations reflected a clear understanding of the definitions. The
exceptions are discussed in part C below. No comment took exception to
any of the procedures or rules of construction with respect to other
laws in proposed Sections 4, 5, and 6, nor to the policies in proposed
Sections 7, 8, 9, and 10. One comment questioned the designations in
Appendix A and several comments discussed inclusion of other agencies.
Several comments raised questions about or suggested changes to
proposed Sections 2 and/or 3 and Appendix B.
Significant comments received in response to the proposed order and
significant changes to the order are discussed below. Among the changes
to the order is the addition of a new subsection (c) at the end of
Section 2.
C. Significant Comments or Changes
1. Proposed Section 1 (``Definitions''). One comment proposed that
the term ``non-statistical'' used in proposed Section 3 of the order be
given an explicit definition. We have instead eliminated that term
since it was contributing to confusion concerning the relationship
between proposed Section 2 and Section 3.
2. Proposed Section 1 (``Definitions'') paragraph (c)
(``identifiable form''). Several comments raised the issue of whether
the release of ``anonymous'' information would ensure confidentiality.
Simple anonymity (nondisclosure of names, addresses, etc.) is necessary
but not sufficient to prevent disclosures in ``identifiable form.''
Release of an extremely detailed set of ``anonymous'' data coupled with
knowledge of the identities of the actual respondents substantially
increases the risk that data can be associated with a small group or
even an individual respondent. This is a particular problem when a
large detailed data base can be matched against a list of respondents.
For this reason, steps to prevent disclosures in identifiable form
almost always include withholding the list of respondents to a
statistical data collection. In order to prevent the disclosure of
information in ``identifiable form,'' an agency must withhold other
particulars that are unusual and any list of the identities of actual
respondents.
3. Proposed Section 1 (``Definitions'') paragraph (d)
(``information''). One comment suggested that this definition include
reference to samples of physical materials. Physical materials are not
themselves ``information'', though information derived from such
materials is already within the scope of the phrase ``information of
any kind'' in the present definition.
4. Proposed Section 1 (``Definitions'') paragraph (f)
(``respondent''). One comment noted that the definition of respondent
might be interpreted to include employees of a Federal agency providing
information within the scope of their employment. We did not intend the
order to cover such routine administrative collections, just as the
Paperwork Reduction Act does not cover them. Compare, for example, 5
C.F.R. 1320.3(c)(4) and 1320.3(c)(3). The definition has been revised
to clarify this point.
5. Proposed Section 1 (``Definitions'') paragraph (i)
(``statistical purpose''). The preamble to the proposed order explained
the definition of ``statistical purpose'' as distinguishing ``Federal
activities that produce statistical information in anonymous form from
all other Federal activities.'' Two commenters noted that statistical
agencies also have a responsibility to preserve and maintain the
integrity of statistical materials. It was not our intent in the
proposal to exclude such maintenance and preservation activities from
the definition of ``statistical purposes,'' which definition
acknowledges the ``maintenance of * * * information resources'' as a
class of activities that serve statistical purposes. In order to
clarify that preservation is a valid statistical purpose, the language
of the definition has been expanded to incorporate an example of
maintenance and preservation of statistical materials as authorized by
statutory records management and archival policies of title 44, U.S.
Code. These policies provide for the confidentiality of retained
records for a minimum of 30 years. One comment suggested including the
term ``research'' in the definition of statistical purpose. We have not
made this change. While many forms of research fall comfortably within
the proposed definition, the term research also includes many
activities (clinical research, research in the physical or mathematical
sciences) that are beyond the scope of this order and is thus
inappropriate in this definition.
6. Proposed Section 1 (``Definitions'') paragraph (j) (``Use'').
The definition of ``use'' was intended to distinguish internal
activities of a statistical agency or unit (that often require access
to individually identifiable information to produce statistical
products) from external ``disclosures'' of information to anyone
outside the statistical agency or unit (in whatever form such
disclosures might be made); ``disclosures'' would include, for example,
releases of information to the public, to State agencies, or to others
in the Federal government. The definition of ``use'' covers officers,
employees, and agents of a statistical agency or unit. Several
commenters noted that the description of ``agents'' differed from
corresponding language in the proposed ``Statistical Confidentiality
Act'' (H.R. 3924, 104th Cong.), and questioned whether the language was
intended to restrict ``use'' to actual employees. As reflected in the
proposed legislation, we are aware that statistical agencies employ
agents who are not employees (e.g., contractors, or experts who are
employees of other agencies) to perform functions that might otherwise
be performed by employees, and that such agents operate under controls
designed to assure information security and proper stewardship of
confidential information. We did not intend in the proposal to suggest
that such uses of confidential information are improper. The language
has been revised to match the terms defined in the proposed Statistical
Confidentiality Act. One other comment requested clarification that
State administrative agencies working with a statistical agency are not
subject to the provisions that apply to that statistical agency. This
is generally true. An exception occurs if the State agency has agreed
that certain State officers or employees will use statistical
information as ``agents'' of a (Federal) statistical agency or unit as
defined in the order--in this case the designated officers or employees
of the State agency would be accountable for the responsibilities
imposed on such agents. The interaction of Federal and State agencies
is also discussed below, with respect to Section 2.
7. Proposed Section 2 (``Prohibitions regarding the disclosure and
use of information collected for exclusively statistical purposes.'')
(a) One Federal and two State agencies objected to the restriction
that (unless otherwise compelled by law) information acquired by a
statistical agency or unit for exclusively statistical purposes may be
used only for statistical purposes, and shall not be disclosed, or
used, in identifiable form
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for any other purpose. This is the common principle of the strong
confidentiality statutes that govern many statistical agencies. The
commenters proposed access to such information for multiple uses under
conditions where functional separation could not be guaranteed. This
situation may arise when State agencies collect information for
administrative purposes and provide that information to a Federal
agency for exclusively statistical purposes. In Federal hands this
information is processed and combined with other (confidential)
information gathered for exclusively statistical purposes. The
commenters argued that this order should permit access to the enhanced
(statistical) data base by the original State administrative agencies.
We have not adopted this suggestion. To understand our reasons for
not doing so, several points need to be kept in mind. First, the
proposed (and final) order does not regulate the collection, and
subsequent direct use, of information by agencies or units which are
not listed in Appendix A, except when that collection is done in
conjunction with a listed ``statistical agency or unit.'' Thus, for
example, this order does not prohibit a non-listed agency or unit from
itself collecting information for administrative purposes, and does not
prohibit that agency or unit from using or disclosing the collected
information for administrative or any other purposes. Second, while the
proposed (and final) order does regulate the collection and use of
information by ``statistical agencies and units,'' the order does not
prohibit ``statistical agencies or units'' from collecting and using
information for administrative purposes. Under the order, ``statistical
agencies and units'' can decide to collect some types of information
for exclusively statistical purposes and, to the extent authorized by
statute, to collect other types of information (perhaps in conjunction
with an administrative agency) for other purposes. However, to protect
the confidentiality of information that is collected for exclusively
statistical purposes and to ensure that confidentiality pledges are
fully honored, the order imposes different sets of requirements,
depending on whether the particular collection is for exclusively
statistical purposes or for other purposes. Thus, for example, when a
``statistical agency or unit'' (perhaps in conjunction with an
administrative agency) collects information that is for an
administrative purpose, the order provides that respondents may not be
given a confidentiality pledge that includes ``any language that might
reasonably be confused with the language'' in the confidentiality
pledge that is set forth in Appendix B (which is to be used with
collections that are for exclusively statistical purposes).
In the situation raised by the commenters, the proposed (and final)
order does not regulate the collection of information by a State agency
for administrative purposes (except insofar as State employees collect
or use information acting as ``agents'' of a ``statistical agency or
unit'' as described in paragraph 6 above). In addition, the order does
not regulate the State agency's direct use of the collected information
for other administrative purposes. However, if the collected
information is subsequently acquired by a ``statistical agency or
unit'' for exclusively statistical purposes, then the order applies to
the information that is in the possession of the ``statistical agency
or unit.'' Once the data have been combined, classified, or otherwise
processed by the ``statistical agency or unit,'' using confidential
data from other sources, then Section 2 of the order would prohibit the
``statistical agency or unit'' from disclosing the enhanced information
to the State agency, because such disclosure would entail an
unacceptable risk of indirect disclosures of confidential information
in identifiable form. This prohibition on the disclosure by the
``statistical agency or unit'' of the information in its enhanced form
does not preclude a State agency from being able to continue to make
administrative use of the original (non-enhanced) information that the
State agency possesses.
(b) Three commenters endorsed the policy of (1) informing affected
respondents of any disclosures in a form or manner that may permit uses
other than statistical uses by other agencies or persons, and (2)
soliciting the respondent's consent to publish or release information
in a form that might entail such risks. This situation may arise, for
example, when publications include tabular breakdowns by both industry
and relatively small geographic areas. When there are few respondents
represented by a particular geographic total, that total might reveal
significant information about a dominant company known to operate in
that area. In this case, disclosure avoidance policies usually require
suppression of such totals to address the risk of indirect disclosures.
The policy advocated by these comments would permit an agency to seek
the consent of the affected respondents to deviate from this
suppression rule. Since policies concerning this matter have varied
from agency to agency, we are persuaded that this issue should be
addressed in this order.
In response to these comments, a new subsection (c) has been added
to Section 2. This new subsection permits agencies, within statutory
constraints, to apply an informed consent policy to the relaxation of
disclosure standards. It requires agencies to fully inform the affected
respondents of the facts regarding such disclosure whenever there is
the possibility that such disclosure may result in a respondent's
information being discerned and used by others in identifiable form for
purposes other than statistical purposes. The new subsection has been
added to Section 2, as proposed by one commenter, since it is intended
to apply only to information that a statistical agency or unit proposes
to disclose as described above but which otherwise satisfies the
conditions of Section 2. OMB will work with statistical agencies to
ensure that such policies minimize the risks to respondents. These
changes have no effect on statistical programs that are governed by a
confidentiality statute that reflects the principle enunciated in
subsection (a); instead, the changes clarify how the order applies to
some statistical collections not covered by subsections (a) and (b).
8. Proposed Section 3 (``Prohibition on collecting information to
be disclosed, or used, in identifiable form for non-statistical
purposes.'')
(a) Three comments questioned whether the phrase ``specifically
authorized by statute'' might be construed to prohibit multiple use
data collections that are not explicitly authorized in statutes. OMB is
aware that some organic statutes for statistical agencies are stated in
broad general terms. Therefore the word ``specifically'' has been
omitted. The prohibition in proposed Section 3 is intended to prevent a
statistical agency or unit from abusing a broad statistical mandate to
conduct non-statistical collections. OMB will review proposed
collections of information under the Paperwork Reduction Act to
identify any such abuses.
(b) Several commenters noted that the emphasis on ``non-
statistical'' purposes in Section 3 did not deal adequately with
information collected for multiple purposes. Two changes have been made
to clarify the full scope of the order. First, the descriptive term
``non-statistical purposes'' has been stricken wherever it appears in
the body of proposed Section 3, and replaced with the phrase ``purposes
other than statistical purposes'' or references to
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such purposes. Second, the titles of Sections 2 and 3 have been revised
to clarify their relationship to each other. Conforming changes have
also been made in Appendix B.
9. Proposed Appendix A (``Designated Statistical Agencies or
Units''). Appendix A of the proposed order contained a list of the
``statistical agencies and units'' that are subject to this order.
Comment was particularly solicited on the list of agencies proposed for
inclusion or on other agencies or units that should be considered for
inclusion.
Several comments mentioned other agencies that might be included in
Appendix A, specifically the Environmental Protection Agency (EPA), the
Social Security Administration (SSA), and the Health Care Financing
Administration (HCFA). One general comment recommended that the order
be extended in the future to as many agencies as possible in order to
provide more protection for the rights and privileges of citizens. In
addition, several informal inquiries and one written comment questioned
whether all of the ``statistical agencies or units'' listed in Appendix
A could meaningfully comply with the terms of the order under current
law.
In the final order, we have not added any agencies or units to the
list. The order permits further designations, and we will review the
situation in other agencies to determine if additional designations are
in the public interest. We originally proposed the Energy End Use and
Integrated Statistics Division of the Energy Information Administration
for inclusion in Appendix A. However, it is not clear that this is the
only unit in EIA that might operate some exclusively statistical
programs. Therefore, while retaining that Division in Appendix A (as
proposed) in this final order, we are inviting further public comment
on a proposal to amend Appendix A to include all of EIA (i.e., to
determine, through the analyses prescribed in the order, which other
EIA programs may conform to the confidentiality standards of this
order). That proposal is in an accompanying notice in today's Federal
Register.
10. Proposed Appendix B (``Confidentiality pledges''). One
commenter inquired how, in the case of an agency not covered by a
strong confidentiality statute, the proposed pledge could assert that
``by law'' certain disclosures may not be made by such agency. The
order derives its binding effect from its structure and the authority
under which it is issued. This order is issued under Section 103 of the
Budget and Accounting Procedures Act of 1950 and the Paperwork
Reduction Act. Section 103 in its original language directed the
President, through his budget office, to ``issue regulations and orders
for the improved gathering, compiling, analyzing, publishing, and
disseminating of statistical information for any purpose by the various
agencies in the executive branch of the Government'' and it further
required that ``such regulations and orders shall be adhered to by such
agencies.'' Subsequent codification of this provision (in current 31
U.S.C. 1104(d)) did not alter the original Congressional intent.
Therefore agencies are required by law to comply with this statistical
order. This order also implements the confidentiality provisions of the
Paperwork Reduction Act. Finally, the order is structured to avoid any
conflict with other law that might preclude its application. Under
Section 5 of the order, statistical agencies and units are to review
applicable statutes to identify any that would preclude full
implementation of the order.
Accordingly, the Office of Management and Budget adopts and issues
the Federal Statistical Confidentiality Order, which is set forth
below.
Sally Katzen,
Administrator, Office of Information and Regulatory Affairs.
Federal Statistical Confidentiality Order
Consistent government policy protecting the privacy and
confidentiality interests of persons who provide information for
Federal statistical programs serves both the interests of the public
and the needs of the government and society. The integrity and
credibility of confidentiality pledges provides assurance to the public
that information about persons or provided by persons for exclusively
statistical purposes will be held in confidence and will not be used
against them in any government action. Public confidence and
willingness to cooperate in statistical programs substantially affects
both the accuracy and completeness of statistical information and the
efficiency of statistical programs. Fair information practices and
functional separation of purely statistical activities from other
government activities are both essential to continued public
cooperation in statistical programs.
Therefore, pursuant to 31 U.S.C. 1104(d), section 3(a) of the
Paperwork Reduction Act of 1980 (94 Stat. 2825), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and Executive Order
10253 (as amended), and in order to improve the compilation, analysis,
publication, dissemination, and confidentiality of statistical
information, it is hereby ordered as follows:
Section 1. Definitions. For the purposes of this order:
(a) ``Disclose'' means, unless otherwise indicated, to release
information to anyone outside of a statistical agency or unit other
than the respondent who provided, or is the subject of, such
information (or the agent of such respondent);
(b) ``Executive agency'' is defined as in 31 U.S.C. 102;
(c) ``Identifiable form'' means any representation of information
that permits information concerning a specific respondent to be
reasonably inferred by either direct or indirect means;
(d) ``Information'' means information of any kind that is not
generally available to the public, and includes data;
(e) ``Person'' means individuals, organized groups of individuals,
societies, associations, firms, partnerships, business trusts, legal
representatives, companies, joint stock companies, and corporations,
and refers to both the singular and the plural;
(f) ``Respondent'' means a person (other than a Federal employee
responding to inquiries within the scope of his employment, see 5 CFR
1320.3(c)(4)) who is requested to provide information, or is the
subject of that information, or who provides that information;
(g) ``Rule'' means the whole or part of a statement by an Executive
agency of general or particular applicability and future effect, and
includes regulations, directives, orders, guidance, and policy
statements;
(h) ``Statistical agency or unit'' means an agency or
organizational unit of the Executive Branch whose activities are
predominantly the collection, compilation, processing, or analysis of
information for statistical purposes (Appendix A contains a list of
``statistical agencies or units'' as defined herein, which have been
determined by the Office of Management and Budget to be subject to this
order);
(i) ``Statistical purpose'' means the description, estimation, or
analysis by the Federal Government of information concerning persons,
the economy, society, or the natural environment (or relevant groups or
components thereof) without regard to the identities of specific
persons, as well as the development, implementation, or maintenance of
methods, procedures, or information resources that support such
purposes; ``statistical purpose''
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specifically includes records management and archival functions
authorized in chapters 21, 29, and 33 of title 44 conducted under
information security and confidentiality restrictions consistent with
sections 2 and 3 of this order; ``statistical purpose'' specifically
excludes many other activities or functions for which information is
used in identifiable form, such as determining whether a person is
eligible for a license, privilege, right, grant, or benefit (including
whether such should be revoked) or whether a person's conduct was or is
in accordance with law (including whether a fine, other punishment,
monetary damages, or equitable relief should be imposed);
(j) ``Use'' of information means, unless otherwise indicated, use
by a statistical agency or unit, by officers or employees of that
agency or unit, or by its agents (``agents'' are persons designated by
a statistical agency or unit to perform, either in the capacity of a
Federal employee or otherwise, exclusively statistical activities
authorized by law under the supervision or control of an officer or
employee of that statistical agency or unit, and who have agreed in
writing to comply with all provisions of law that affect information
acquired by that statistical agency or unit).
Section 2. Standards regarding the disclosure and use of
information acquired for exclusively statistical purposes.
(a) Information that a statistical agency or unit acquires for
exclusively statistical purposes may be used only for statistical
purposes, and shall not be disclosed, or used, in identifiable form for
any other purpose unless otherwise compelled by law.
(b) When a statistical agency or unit is collecting information for
exclusively statistical purposes, it shall, at the time of collection,
inform the respondents from whom the information is collected that such
information may be used only for statistical purposes and may not be
disclosed, or used, in identifiable form for any other purpose, unless
otherwise compelled by law. If the statistical agency or unit has
determined that it is not otherwise compelled by law, the
confidentiality pledge shall be in accordance with Appendix B.
(c) A statistical agency or unit that collects information to be
used exclusively for statistical purposes and proposes to disclose such
information in an aggregate form or another manner that may permit
other agencies or persons to discern and use such information in
identifiable form for purposes other than statistical purposes shall,
prior to such disclosure, fully inform the affected respondents of the
facts regarding such disclosure and the possibility that such
disclosure may result in a respondent's information being discerned by
others in identifiable form, and shall not make such disclosure without
the prior written consent of all of the affected respondents. This
informed consent procedure shall be acknowledged wherever feasible in
any confidentiality pledge offered for information that may be
disclosed under this procedure.
Section 3. Standards regarding information acquired for the purpose
of being disclosed, or used, in identifiable form for purposes other
than statistical purposes.
(a) Unless a statistical agency or unit is authorized by statute to
acquire information to be disclosed, or used, in identifiable form for
purposes other than statistical purposes, such agency or unit shall not
collect information for any such purposes.
(b) If a statistical agency or unit is authorized by statute to
acquire information to be disclosed, or used, in identifiable form for
purposes other than statistical purposes, and is collecting information
for such purposes, such agency or unit shall clearly identify such
purposes in both the Federal Register notices and submissions to the
Office of Management and Budget required by the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.). In such cases, a statistical agency or unit
may not make a confidentiality pledge that includes any language that
might reasonably be confused with the language contained in
confidentiality pledges for information that is collected for
exclusively statistical purposes (see Section 2(b) and Appendix B).
Section 4. The provisions of this order shall be applied to the
maximum extent legally permissible. Accordingly, with respect to
matters involving statistical information and activities of statistical
agencies or units, Executive agencies shall, to the maximum extent
legally permissible, construe and apply pertinent statutes (including,
but not limited to, statutes regarding the collection, use, disclosure,
and confidentiality of information) in a manner that enables full
compliance with this order (or, where a statute precludes full
compliance, in a manner that enables compliance with this order to the
maximum extent not precluded by statute).
Section 5. Each statistical agency or unit subject to this order
shall conduct a review of its activities to ensure that they are in
full compliance with this order (or, if full compliance is precluded by
statute, that they comply to the maximum extent not precluded by
statute). The agency or unit shall complete the review no later than 60
days after this order takes effect for that agency or unit. The review
shall include, among other things:
(a) an identification of any statutes that, the agency or unit
believes, preclude full compliance with this order,
(b) an identification of any rules that, the agency or unit
believes, are inconsistent with any provisions of this order (including
an identification of which such rules are compelled by statute and,
conversely, which ones may be revised without a statutory amendment),
and
(c) the development of a plan for ensuring that the activities of
the agency or unit fully comply with this order (or, if full compliance
is precluded by statute, that such activities comply with this order to
the maximum extent not precluded by statute).
The results of this review shall be submitted in a report to the
Administrator of the Office of Information and Regulatory Affairs no
later than 90 days after this order takes effect for that agency or
unit. The Office of Management and Budget shall review such reports
and, after consultation with the statistical agencies or units in
question, may request that the Department of Justice review and provide
its opinion regarding any statutes identified as precluding full
compliance with this order, or any rules that have been identified as
being inconsistent with any provisions of this order and as being
compelled by statute.
Section 6. Statistical agencies or units shall implement this order
through issuance of appropriate rules, in accordance with applicable
procedures. To the extent that it is determined that there are any
existing rules which are inconsistent with any provisions of this order
and which an Executive agency may revise to be consistent (without
statutory amendment), such Executive agency shall promptly undertake to
revise such rules, in accordance with applicable procedures, so that
they are consistent. OMB and affected statistical agencies or units
shall consider, in accordance with the legislative clearance process
under OMB Circular A-19, the appropriateness of any statutory
amendments that would enable full compliance with this order.
Section 7. The disclosure of information to a statistical agency or
unit shall in no way alter obligations under statutes, including the
Freedom of Information Act and the Privacy Act, for the same or similar
information that was retained.
[[Page 35049]]
Section 8. This order is intended to supplement, and not to
restrict or diminish, any confidentiality protections that otherwise
apply to statistical information.
Section 9. The Office of Information and Regulatory Affairs of the
Office of Management and Budget will provide appropriate guidance
regarding this order.
Section 10. This order is effective 30 days after final publication
in the Federal Register.
Appendix A--Designated Statistical Agencies or Units
The following agencies or units have been determined by the
Office of Management and Budget to be ``statistical agencies or
units'' for purposes of this order (this list may be revised from
time to time):
Department of Agriculture
Economic Research Service
National Agricultural Statistics Service
Department of Commerce
Bureau of the Census
Bureau of Economic Analysis
Department of Education
National Center for Education Statistics
Department of Energy
Energy End Use and Integrated Statistics Division of the Energy
Information Administration
Department of Health and Human Services National Center for Health
Statistics
Department of Justice
Bureau of Justice Statistics
Department of Labor
Bureau of Labor Statistics
Department of Transportation
Bureau of Transportation Statistics
Department of the Treasury
Statistics of Income Division of the Internal Revenue Service
National Science Foundation
Division of Science Resources Studies
Appendix B--Confidentiality Pledges
Statistical agencies or units subject to this order shall,
whenever they collect information for exclusively statistical
purposes and have determined that they may fully comply with the
disclosure and use standards of subsections 2(a) and 2(b) of this
order, incorporate the following or equivalent language into
confidentiality pledges made to respondents:
``This information collection complies with the Federal Statistical
Confidentiality Order. Therefore, by law, your responses may be used
only for statistical purposes and may not be disclosed, or used, in
identifiable form for any other purpose.''
When a confidentiality pledge is made by a statistical agency or
unit for any information collection that does not satisfy the
disclosure and use standards of subsections 2(a) and 2(b) of this
order [e.g., when the purposes of the collection are not exclusively
statistical (see Section 3) or when the data may be disclosed in a
form or manner that may permit use of the data in identifiable form
by other agencies or persons for purposes other than statistical
purposes (see subsection 2(c))], such pledge may not include any
language that might reasonably be confused with the language
specified above.
[FR Doc. 97-16934 Filed 6-26-97; 8:45 am]
BILLING CODE 3110-01-P