2876 Federal Register / Vol. 61, No. 20 / Monday, January 29, 1996 / 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: Notice of proposed order.

SUMMARY: The proposed order is

intended 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 would 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

proposed 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.

DATES: Comments must be received on

or before March 29, 1996.

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 WallmanlK@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

CoffeylJ@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

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)).

The decentralized 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. Proposed Section 1

This section provides definitions for

purposes of this order. Most of these

definitions are self-explanatory.

One of the central definitions is

‘‘statistical agency or unit,’’ which refers

to the class of organizations that are

principally subject to the order. As

noted above, the statistical policy

authority in 31 U.S.C. 1104(d) is defined

in terms of an enumerated set of

statistical activities performed by any

executive agency for any purpose. The

definition of ‘‘statistical agency or unit’’

narrows the coverage of this order,

except where otherwise specified, to

agencies where statistical activities are

predominant. For clarity, OMB has

listed in Appendix A specific statistical

agencies or units that have been initially

determined to be subject to this order.

OMB may revise this list from time to

time.

Another central definition in Section

1 is ‘‘statistical purpose’’, which

definition also includes examples of

other (non-statistical) purposes. These

terms are used in Sections 2 and 3 of the

order. Many governmental and private

sector activities use statistical

information in summary, aggregate, or

other anonymous forms. Most of them,

however, also use information in

identifiable form for making decisions

about entities that are the subjects of

that information. The definition of

‘‘statistical purpose’’ distinguishes

Federal activities that produce statistical
Federal Register / Vol. 61, No. 20 / Monday, January 29, 1996 / Notices 2877

information in anonymous form from all

other Federal activities.

The definition of ‘‘identifiable form’’

is based on the standard in 26 U.S.C.

6103(b)(2) (defining tax return

information as not including ‘‘data in a

form which cannot be associated with,

or otherwise identify, directly or

indirectly, a particular taxpayer’’) and

26 U.S.C. 6103(j)(4) (regarding

‘‘statistical use’’ of ‘‘anonymous’’ return

information), as well as on privacy

principles applied by courts in cases

under the Freedom of Information Act,

see, e.g., Carter v. Commerce, 830 F.2d

388, 390–92 (D.C. Cir. 1987); Marzen v.

HHS, 825 F.2d 1148, 1152 (7th Cir.

1987); Alirez v. NLRB, 676 F.2d 423,

427–28 (10th Cir. 1982). Statistical

projects have as their objective the

publication of estimates (with

measurable error) of summary

information or aggregate characteristics

of some target population (which may

be people or things). Such objectives do

not require the disclosure of information

that can be associated directly or

indirectly with the identity of

individuals, or their specific

organizations or activities, that are the

subject of the information. When the

underlying information is collected

under a pledge of confidentiality,

statistical agencies and units apply a

variety of techniques to assure that the

published information cannot be

‘‘mined’’ for the component details

about individual participants.

C. Proposed Section 2

This section states a general

prohibition against the disclosure, or

use, in identifiable form of information

collected for exclusively statistical

purposes, and the policy applies only to

such information. It is intended to

implement, in its simplest form, the

organizational concept of functional

separation—where an agency has a clear

mandate to collect information for

exclusively statistical purposes—and to

establish the specific obligation that is

communicated by a confidentiality

pledge. The policy is stated in terms of

‘‘disclosure’’—it is not intended to

prevent access to information by the

respondents who provided the

information or their agents (including

heirs or successors) explicitly defined

by law, nor is it intended to cast a veil

of secrecy over information that is

already in the public domain. The

requirement to provide notice to

respondents is consistent with the

general requirement of the Paperwork

Reduction Act of 1995 (44 U.S.C.

3506(e)(2)) and must also be consistent

with the guidelines in Appendix B.

D. Proposed Section 3

This exception language applies only

to agencies that are subject to the

general policy in section 2 and only in

the case where they also have

‘‘authority’’ to collect data to be used in

identifiable form for nonstatistical

purposes. The notice requirements are

referenced to the paperwork review

process.

The procedure called for by this

section provides an additional means to

implement functional separation and a

means for the public and OMB to review

data collections conducted by a

statistical agency that are to be used for

nonstatistical purposes. Its purpose is to

identify all nonstatistical data

collections carried out by statistical

agencies (including collections carried

out for other agencies) and to assure that

proper notice to respondents is

provided.

E. Proposed Section 4

This section states that the provisions

of the order are to be applied to the

maximum extent legally permissible.

Thus section 4 requires that statutes

(including, but not limited to, statutes

regarding the collection, use, disclosure,

and confidentiality of information) be

construed to give the maximum force to

confidentiality pledges that is legally

permissible. For example, this

requirement affects the interpretation of

the Trade Secrets Act, where it

strengthens the prohibition of

disclosures of ‘‘confidential statistical

data’’.

F. Proposed Section 5

Section 5 establishes a procedure for

identifying and resolving any potential

conflicts with this order. The procedure

requires an agency review of all

pertinent issues, a report and

subsequent review by OMB, and, if

necessary, appropriate review by the

Department of Justice.

G. Proposed Section 6

Section 6 requires covered agencies to

take all steps necessary to comply with

this order. In most cases, such steps will

include revision of formal and informal

agency policies that can be made

consistent with this order without

statutory amendment. OMB and affected

agencies will also consider seeking

changes in statutes if necessary.

H. Proposed Section 7

Section 7 states that the act of

providing data to a statistical agency or

unit does not alter obligations under any

other statute, including the Privacy Act

and the Freedom of Information Act, for

the same or similar information that is

retained.

I. Proposed Section 8

Section 8 emphasizes that this order

is intended to supplement, and not to

restrict or diminish, any confidentiality

protections that otherwise apply to

statistical information. Examples of

such protections include data

encryption and other security measures

as well as disclosure avoidance

procedures used in statistical

publications.

J. Proposed Section 9

Section 9 commits the Office of

Information and Regulatory Affairs to

provide guidance for implementing this

order. OIRA will take steps to assure

consistent policies in the rules adopted

by affected agencies, and otherwise

consult with agencies to assure the full

and prompt implementation of this

order. Any agency may also request

OIRA to interpret any aspect of this

order or to provide advice on any action

proposed to give full effect to the

policies of this order. OMB will also

review the accuracy and adequacy of

confidentiality pledges as required by

the Paperwork Reduction Act of 1995

(44 U.S.C. 3504(e)(5), 3506(e)(2)–(4),

3506(g)(1) and 5 C.F.R.

1320.5(d)(2)(vii)–(viii)).

K. Proposed Section 10

This section establishes the effective

date of the order.

L. Proposed Appendix A

Appendix A contains the list of

‘‘statistical agencies and units’’

determined by OMB to be principally

subject to this order. Comment is

particularly solicited on the list of

agencies proposed for inclusion or on

other agencies or units that should be

considered for inclusion.

M. Proposed Appendix B

Appendix B provides guidelines for

including comparable language in

confidentiality pledges that cover data

collected for exclusively statistical

purposes. This is intended to provide

the public with a clear notice when the

uniform policies of this order are in

effect. It is also anticipated that OMB

clearance review will be used to

eliminate similar and potentially

confusing pledge language in cases

where the standards of this order are not
2878 Federal Register / Vol. 61, No. 20 / Monday, January 29, 1996 / Notices

met. See 5 C.F.R. 1320.5(d)(vii)–(viii)

(60 FR 44988; August 29, 1995).

Sally Katzen,

Administrator, Office of Information and

Regulatory Affairs.

Order Providing for the Confidentiality

of Statistical Information

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 to release

information to anyone 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 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’’

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 use by a

statistical agency or unit, by officers or

employees of that agency or unit, or by

other agents (including contractors)

acting as employees under the

supervision and control of that agency

or unit.

Section 2. Prohibitions regarding the

disclosure and use of information

collected for exclusively statistical

purposes.

(a) 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

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 the

form as set forth in Appendix B.

Section 3. Prohibition on collecting

information to be disclosed, or used, in

identifiable form for non-statistical

purposes.

(a) Unless a statistical agency or unit

is specifically 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 (nonstatistical) purposes.

(b) If a statistical agency or unit is

specifically authorized by statute to

acquire information to be disclosed, or

used, in identifiable form for nonstatistical purposes, and is collecting

information for such non-statistical

purposes, such agency or unit shall

clearly identify such non-statistical

purposes in both the Federal Register

notices and submissions to Office of

Management and Budget required by the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.). In such cases when

information is collected to be disclosed,

or used, in identifiable form for

purposes other than statistical purposes,

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).

Information collected to be disclosed, or

used, in identifiable form for nonstatistical purposes may be disclosed, or

used, only for those non-statistical

purposes approved under the

Paperwork Reduction Act.

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).
Federal Register / Vol. 61, No. 20 / Monday, January 29, 1996 / Notices 2879

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.

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 OMB 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 prohibitions in 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 this order that apply to information

collected for exclusively statistical

purposes (e.g., when the purposes of the

collection are not exclusively

statistical), such pledge may not include

any language that might reasonably be

confused with the language specified

above.

[FR Doc. 96–1525 Filed 1–26–96; 8:45 am]

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