Friday


June 27, 1997


federal register
 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 

35043 
35044 Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 

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. 

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 

Coffey�J@a1.eop.gov 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 
Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 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 
35046 Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 

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 ‘‘nonstatistical 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 
Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 35047 

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’’ 
35048 Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 

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. 
Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 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 

OFFICE OF MANAGEMENT AND 

BUDGET 

Extending the Coverage of Energy 

Statistical Programs under the Federal 

Statistical Confidentiality Order 

AGENCY: Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, Executive 

Office of the President. 

ACTION: Notice of proposed amendment 

to appendix A of the Federal Statistical 

Confidentiality Order. 

SUMMARY: The final Federal Statistical 

Confidentiality Order announced in this 

issue of the Federal Register lists the 

Energy End Use and Integrated Statistics 

Division of the Energy Information 

Administration (EIA) as a unit 

determined by the Office of 

Management and Budget to be subject to 

the coverage of the order. While 

retaining that Division in Appendix A 

(as proposed) in the final order, we are 

today 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 that order). 

DATES: Comments must be received on 

or before August 26, 1997. 

ADDRESSES: Please address all written 

comments to Katherine K. Wallman, 

Office of Information and Regulatory 

Affairs, OMB, Washington, D.C. 20503. 

Comments may be submitted via 

facsimile to 202/395–7245. Electronic 

mail comments may be submitted via 

SMTP to Wallman�K@a1.eop.gov or 

via X.400 to G=Katherine, S=Wallman, 

PRMD=gov+eop, ADMD+telemail, C=us. 

Comments submitted via electronic mail 

should include the commenter’s name, 

affiliation, postal address, and email 

address in the text of the message. 

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 

Coffey�J@a1.eop.gov 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 email address in the text of 

the message. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Federal Statistical Confidentiality 

Order issued by the Office of 

Management and Budget (OMB) 

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 

nonstatistical functions within a single 

agency or unit. 

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 ambiguous decision 

processes that have created 

uncertainties under FOIA. 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. Proposed Amendment to Appendix A 

Appendix A of the Federal Statistical 

Confidentiality Order contains a list of 

‘‘statistical agencies and units’’ 

determined by OMB to be principally 

subject to that order and includes a unit 

of EIA whose functions are widely 

considered to be predominantly 

statistical, specifically, the Energy End 

Use and Integrated Statistics (EEUIS) 

Division. During review of comments on 

the proposed order, consideration was 

given to other agencies or units that 

should be included. In the case of EIA, 

other units within the agency collect 

statistics on petroleum supply and 

marketing, natural gas, reserves, coal, 

electric and renewable energy, and 

general information about energy 

markets. It is not clear that the EEUIS 

Division is the only unit in EIA that 

might operate some exclusively 

statistical programs. 
35050 Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Notices 

Many data collection programs within 

EIA were originally authorized to 

support energy regulation as well as 

EIA’s statistical mission. However as 

regulatory programs were terminated, 

these data collections were restructured 

to support statistical priorities alone. 

While many of the original statutes were 

crafted to authorize regulatory data 

collections, Congress has repeatedly 

reauthorized and funded the 

restructured (statistical) programs that 

describe segments of the energy 

economy that are no longer regulated. 

Amending Appendix A of the Federal 

Statistical Confidentiality Order to 

include all of EIA will set in motion the 

analyses required by the order to 

determine which multiple uses of such 

programs still remain and conversely 

which programs are now justified by 

statistical priorities only. 

These analyses under Sections 6 and 

7 of the order may also identify 

statutory provisions that are no longer 

needed or appropriate, and clarify the 

standards of review (e.g., the 

administrative or statistical test of 

practical utility) that should be applied 

to these programs under the Paperwork 

Reduction Act (see, for example, 5 

C.F.R. 1320.3(l)). 

Accordingly, OMB proposes to amend 

Appendix A of the Federal Statistical 

Confidentiality Order by inserting 

‘‘Energy Information Administration’’ in 

lieu of ‘‘Energy End Use and Integrated 

Statistics Division of the Energy 

Information Administration’’ under the 

heading ‘‘Department of Energy’’. 

Sally Katzen, 

Administrator, Office of Information and

Regulatory Affairs.

[FR Doc. 97–16933 Filed 6–26–97; 8:45 am] 

BILLING CODE 3110–01–P