[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Notices]
[Pages 2876-2879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1525]




[[Page 2875]]

_______________________________________________________________________

Part III





Office of Management and Budget





_______________________________________________________________________



Order Providing for the Confidentiality of Statistical Information; 
Notice

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

[[Page 2876]]


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.

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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 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="5d0a3c3131303c330202161d3c6c7338322d733a322b">[email protected]</a> 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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="7635191010130f29293c3617475813190658111900">[email protected]</a> 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 

[[Page 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 

[[Page 2878]]
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 (non-
statistical) 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 non-statistical 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 non-statistical 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). 

[[Page 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]
BILLING CODE 3110-01-P

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