[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Notices]
[Pages 35044-35049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16934]



[[Page 35043]]

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Part VIII





Office of Management and Budget





_______________________________________________________________________



Order Providing for the Confidentiality of Statistical Information and 
Extending the Coverage of Energy Statistical Programs Under the Federal 
Statistical Confidentiality Order; Notice

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

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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 [email protected] or via X.400 to G=Jerry, 
S=Coffey, PRMD=gov+eop, ADMD+telemail, C=us. Electronic mail inquiries 
should include the commenter's name, affiliation, postal address, and 
E-mail address in the text of the message.

SUPPLEMENTARY INFORMATION:

A. Background

    Statistical policy authority within the executive branch was 
established explicitly in section 103 of the Budget and Accounting 
Procedures Act of 1950, which stated, in its original language:

The President, through the Director of the Bureau of the Budget, is 
authorized and directed to develop programs and to issue regulations 
and orders for the improved gathering, compiling, analyzing, 
publishing, and disseminating of statistical information for any 
purpose by the various agencies in the executive branch of the 
Government. Such regulations and orders shall be adhered to by such 
agencies.

64 Stat. 834 (codified at 31 U.S.C. 18b). In 1982, this provision was 
recodified, without substantive change, at 31 U.S.C. 1104(d):

The President shall develop programs and prescribe regulations to 
improve the compilation, analysis, publication, and dissemination of 
statistical information by executive agencies. The President shall 
carry out this subsection through the Administrator for the Office 
of Information and Regulatory Affairs in the Office of Management 
and Budget.

    See also Section 3(a) of the Paperwork Reduction Act of 1980 (94 
Stat. 2825) and Executive Order No. 10253 (31 U.S.C. 1104 note, and 
Codification of Presidential Proclamations and Executive Orders (1945-
89), p. 687). Previous orders issued pursuant to this authority have 
been in the form of OMB Circulars, Transmittals and attached Exhibits 
(prior to 1977), Statistical Policy Directives (1978-1980), and 
Statistical Standards (since 1980).
    The Paperwork Reduction Act of 1980 (as amended in 1986 and 1995) 
also requires OIRA to develop policies, principles, standards, and 
guidelines for privacy and confidentiality generally; the integrity of 
confidentiality pledges; and the confidentiality of information 
collected for statistical purposes (subsections 3504(e)(1), 3504(e)(5), 
and 3504(g)(1) of title 44). In addition the Act tasks OIRA to oversee 
agency compliance with related requirements of the Act and with the 
policies referenced above (subsections 3506(b)(1)(C), 3506(e) (2)-(4), 
and 3506(g)(1)). For example subsection 3506(e)(2) requires agencies to 
``inform respondents fully and accurately about the sponsors, purposes, 
and uses of statistical surveys and studies''.
    The diverse Federal statistical system consists of more than 
seventy agencies and units, including a dozen agencies that have 
statistical activities as their principal function. While this 
decentralized structure provides substantial benefits in making 
statistical units responsive to specific program needs, public 
confidence in nondisclosure pledges made by statistical agencies or 
units is sometimes affected by perceptions of the programs those 
statistics support.
    By establishing a uniform policy for the principal statistical 
agencies, this order will reduce public confusion, uncertainty, and 
concern about the treatment of confidential statistical information by 
different agencies. By establishing consistent rational principles and 
processes to buttress confidentiality pledges, the order will eliminate 
unsupportable confidentiality claims and agency decision processes that 
have created uncertainties. Such consistent protection of confidential 
statistical information will, in turn, reduce the perceived risks of 
more efficient working relationships among statistical agencies, 
relationships that can reduce both the cost and reporting burden 
imposed by statistical programs.

B. Summary of Comments Received on the Proposed Order

    On January 29, 1996, OMB issued for public comment a proposed 
statistical order regarding the confidentiality of statistical 
information (61 FR 2876). In response to the proposed order, OMB 
received numerous inquiries and 22 comments. Each comment has been 
considered in preparing this final order. In developing this order, OMB 
has also relied upon its four decades of experience in administering 
the Statistical Policy authority and its 16 years of experience jointly 
administering that authority and the Paperwork Reduction Act.
    Many inquiries and some comments sought clarification. In 
particular, agency commenters requested further elaboration or 
explanation of how the processes defined by the order will work 
administratively. OMB staff have met with and are continuing to meet 
with agency staff in order to answer this type of question. It is OMB's 
intention to consult with agencies immediately affected by the order 
and to provide appropriate guidance for implementing the order. Issues 
pertinent to information security and disclosure avoidance practices 
will be considered during these consultations.
    Seventeen of the twenty two comments received endorsed the 
objectives of the order, including an endorsement by the Board of 
Directors of the Council of Survey Research Organizations, whose 
members represent the vast majority of survey research activity in the 
United States. One of these comments also noted that

[[Page 35045]]

uniform confidentiality standards could potentially reduce reporting 
burden by encouraging and facilitating coordination between statistical 
agencies. Of the other five comments, two were silent on the general 
principles and three questioned the functional separation principle.
    There were no objections to seven of the ten definitions in Section 
1, though several comments interpreted definitions in terms of 
particular programs and practices. With few exceptions, these 
interpretations reflected a clear understanding of the definitions. The 
exceptions are discussed in part C below. No comment took exception to 
any of the procedures or rules of construction with respect to other 
laws in proposed Sections 4, 5, and 6, nor to the policies in proposed 
Sections 7, 8, 9, and 10. One comment questioned the designations in 
Appendix A and several comments discussed inclusion of other agencies. 
Several comments raised questions about or suggested changes to 
proposed Sections 2 and/or 3 and Appendix B.
    Significant comments received in response to the proposed order and 
significant changes to the order are discussed below. Among the changes 
to the order is the addition of a new subsection (c) at the end of 
Section 2.

C. Significant Comments or Changes

    1. Proposed Section 1 (``Definitions''). One comment proposed that 
the term ``non-statistical'' used in proposed Section 3 of the order be 
given an explicit definition. We have instead eliminated that term 
since it was contributing to confusion concerning the relationship 
between proposed Section 2 and Section 3.
    2. Proposed Section 1 (``Definitions'') paragraph (c) 
(``identifiable form''). Several comments raised the issue of whether 
the release of ``anonymous'' information would ensure confidentiality. 
Simple anonymity (nondisclosure of names, addresses, etc.) is necessary 
but not sufficient to prevent disclosures in ``identifiable form.'' 
Release of an extremely detailed set of ``anonymous'' data coupled with 
knowledge of the identities of the actual respondents substantially 
increases the risk that data can be associated with a small group or 
even an individual respondent. This is a particular problem when a 
large detailed data base can be matched against a list of respondents. 
For this reason, steps to prevent disclosures in identifiable form 
almost always include withholding the list of respondents to a 
statistical data collection. In order to prevent the disclosure of 
information in ``identifiable form,'' an agency must withhold other 
particulars that are unusual and any list of the identities of actual 
respondents.
    3. Proposed Section 1 (``Definitions'') paragraph (d) 
(``information''). One comment suggested that this definition include 
reference to samples of physical materials. Physical materials are not 
themselves ``information'', though information derived from such 
materials is already within the scope of the phrase ``information of 
any kind'' in the present definition.
    4. Proposed Section 1 (``Definitions'') paragraph (f) 
(``respondent''). One comment noted that the definition of respondent 
might be interpreted to include employees of a Federal agency providing 
information within the scope of their employment. We did not intend the 
order to cover such routine administrative collections, just as the 
Paperwork Reduction Act does not cover them. Compare, for example, 5 
C.F.R. 1320.3(c)(4) and 1320.3(c)(3). The definition has been revised 
to clarify this point.
    5. Proposed Section 1 (``Definitions'') paragraph (i) 
(``statistical purpose''). The preamble to the proposed order explained 
the definition of ``statistical purpose'' as distinguishing ``Federal 
activities that produce statistical information in anonymous form from 
all other Federal activities.'' Two commenters noted that statistical 
agencies also have a responsibility to preserve and maintain the 
integrity of statistical materials. It was not our intent in the 
proposal to exclude such maintenance and preservation activities from 
the definition of ``statistical purposes,'' which definition 
acknowledges the ``maintenance of * * * information resources'' as a 
class of activities that serve statistical purposes. In order to 
clarify that preservation is a valid statistical purpose, the language 
of the definition has been expanded to incorporate an example of 
maintenance and preservation of statistical materials as authorized by 
statutory records management and archival policies of title 44, U.S. 
Code. These policies provide for the confidentiality of retained 
records for a minimum of 30 years. One comment suggested including the 
term ``research'' in the definition of statistical purpose. We have not 
made this change. While many forms of research fall comfortably within 
the proposed definition, the term research also includes many 
activities (clinical research, research in the physical or mathematical 
sciences) that are beyond the scope of this order and is thus 
inappropriate in this definition.
    6. Proposed Section 1 (``Definitions'') paragraph (j) (``Use''). 
The definition of ``use'' was intended to distinguish internal 
activities of a statistical agency or unit (that often require access 
to individually identifiable information to produce statistical 
products) from external ``disclosures'' of information to anyone 
outside the statistical agency or unit (in whatever form such 
disclosures might be made); ``disclosures'' would include, for example, 
releases of information to the public, to State agencies, or to others 
in the Federal government. The definition of ``use'' covers officers, 
employees, and agents of a statistical agency or unit. Several 
commenters noted that the description of ``agents'' differed from 
corresponding language in the proposed ``Statistical Confidentiality 
Act'' (H.R. 3924, 104th Cong.), and questioned whether the language was 
intended to restrict ``use'' to actual employees. As reflected in the 
proposed legislation, we are aware that statistical agencies employ 
agents who are not employees (e.g., contractors, or experts who are 
employees of other agencies) to perform functions that might otherwise 
be performed by employees, and that such agents operate under controls 
designed to assure information security and proper stewardship of 
confidential information. We did not intend in the proposal to suggest 
that such uses of confidential information are improper. The language 
has been revised to match the terms defined in the proposed Statistical 
Confidentiality Act. One other comment requested clarification that 
State administrative agencies working with a statistical agency are not 
subject to the provisions that apply to that statistical agency. This 
is generally true. An exception occurs if the State agency has agreed 
that certain State officers or employees will use statistical 
information as ``agents'' of a (Federal) statistical agency or unit as 
defined in the order--in this case the designated officers or employees 
of the State agency would be accountable for the responsibilities 
imposed on such agents. The interaction of Federal and State agencies 
is also discussed below, with respect to Section 2.
    7. Proposed Section 2 (``Prohibitions regarding the disclosure and 
use of information collected for exclusively statistical purposes.'')
    (a) One Federal and two State agencies objected to the restriction 
that (unless otherwise compelled by law) information acquired by a 
statistical agency or unit for exclusively statistical purposes may be 
used only for statistical purposes, and shall not be disclosed, or 
used, in identifiable form

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for any other purpose. This is the common principle of the strong 
confidentiality statutes that govern many statistical agencies. The 
commenters proposed access to such information for multiple uses under 
conditions where functional separation could not be guaranteed. This 
situation may arise when State agencies collect information for 
administrative purposes and provide that information to a Federal 
agency for exclusively statistical purposes. In Federal hands this 
information is processed and combined with other (confidential) 
information gathered for exclusively statistical purposes. The 
commenters argued that this order should permit access to the enhanced 
(statistical) data base by the original State administrative agencies.
    We have not adopted this suggestion. To understand our reasons for 
not doing so, several points need to be kept in mind. First, the 
proposed (and final) order does not regulate the collection, and 
subsequent direct use, of information by agencies or units which are 
not listed in Appendix A, except when that collection is done in 
conjunction with a listed ``statistical agency or unit.'' Thus, for 
example, this order does not prohibit a non-listed agency or unit from 
itself collecting information for administrative purposes, and does not 
prohibit that agency or unit from using or disclosing the collected 
information for administrative or any other purposes. Second, while the 
proposed (and final) order does regulate the collection and use of 
information by ``statistical agencies and units,'' the order does not 
prohibit ``statistical agencies or units'' from collecting and using 
information for administrative purposes. Under the order, ``statistical 
agencies and units'' can decide to collect some types of information 
for exclusively statistical purposes and, to the extent authorized by 
statute, to collect other types of information (perhaps in conjunction 
with an administrative agency) for other purposes. However, to protect 
the confidentiality of information that is collected for exclusively 
statistical purposes and to ensure that confidentiality pledges are 
fully honored, the order imposes different sets of requirements, 
depending on whether the particular collection is for exclusively 
statistical purposes or for other purposes. Thus, for example, when a 
``statistical agency or unit'' (perhaps in conjunction with an 
administrative agency) collects information that is for an 
administrative purpose, the order provides that respondents may not be 
given a confidentiality pledge that includes ``any language that might 
reasonably be confused with the language'' in the confidentiality 
pledge that is set forth in Appendix B (which is to be used with 
collections that are for exclusively statistical purposes).
    In the situation raised by the commenters, the proposed (and final) 
order does not regulate the collection of information by a State agency 
for administrative purposes (except insofar as State employees collect 
or use information acting as ``agents'' of a ``statistical agency or 
unit'' as described in paragraph 6 above). In addition, the order does 
not regulate the State agency's direct use of the collected information 
for other administrative purposes. However, if the collected 
information is subsequently acquired by a ``statistical agency or 
unit'' for exclusively statistical purposes, then the order applies to 
the information that is in the possession of the ``statistical agency 
or unit.'' Once the data have been combined, classified, or otherwise 
processed by the ``statistical agency or unit,'' using confidential 
data from other sources, then Section 2 of the order would prohibit the 
``statistical agency or unit'' from disclosing the enhanced information 
to the State agency, because such disclosure would entail an 
unacceptable risk of indirect disclosures of confidential information 
in identifiable form. This prohibition on the disclosure by the 
``statistical agency or unit'' of the information in its enhanced form 
does not preclude a State agency from being able to continue to make 
administrative use of the original (non-enhanced) information that the 
State agency possesses.
    (b) Three commenters endorsed the policy of (1) informing affected 
respondents of any disclosures in a form or manner that may permit uses 
other than statistical uses by other agencies or persons, and (2) 
soliciting the respondent's consent to publish or release information 
in a form that might entail such risks. This situation may arise, for 
example, when publications include tabular breakdowns by both industry 
and relatively small geographic areas. When there are few respondents 
represented by a particular geographic total, that total might reveal 
significant information about a dominant company known to operate in 
that area. In this case, disclosure avoidance policies usually require 
suppression of such totals to address the risk of indirect disclosures. 
The policy advocated by these comments would permit an agency to seek 
the consent of the affected respondents to deviate from this 
suppression rule. Since policies concerning this matter have varied 
from agency to agency, we are persuaded that this issue should be 
addressed in this order.
    In response to these comments, a new subsection (c) has been added 
to Section 2. This new subsection permits agencies, within statutory 
constraints, to apply an informed consent policy to the relaxation of 
disclosure standards. It requires agencies to fully inform the affected 
respondents of the facts regarding such disclosure whenever there is 
the possibility that such disclosure may result in a respondent's 
information being discerned and used by others in identifiable form for 
purposes other than statistical purposes. The new subsection has been 
added to Section 2, as proposed by one commenter, since it is intended 
to apply only to information that a statistical agency or unit proposes 
to disclose as described above but which otherwise satisfies the 
conditions of Section 2. OMB will work with statistical agencies to 
ensure that such policies minimize the risks to respondents. These 
changes have no effect on statistical programs that are governed by a 
confidentiality statute that reflects the principle enunciated in 
subsection (a); instead, the changes clarify how the order applies to 
some statistical collections not covered by subsections (a) and (b).
    8. Proposed Section 3 (``Prohibition on collecting information to 
be disclosed, or used, in identifiable form for non-statistical 
purposes.'')
    (a) Three comments questioned whether the phrase ``specifically 
authorized by statute'' might be construed to prohibit multiple use 
data collections that are not explicitly authorized in statutes. OMB is 
aware that some organic statutes for statistical agencies are stated in 
broad general terms. Therefore the word ``specifically'' has been 
omitted. The prohibition in proposed Section 3 is intended to prevent a 
statistical agency or unit from abusing a broad statistical mandate to 
conduct non-statistical collections. OMB will review proposed 
collections of information under the Paperwork Reduction Act to 
identify any such abuses.
    (b) Several commenters noted that the emphasis on ``non-
statistical'' purposes in Section 3 did not deal adequately with 
information collected for multiple purposes. Two changes have been made 
to clarify the full scope of the order. First, the descriptive term 
``non-statistical purposes'' has been stricken wherever it appears in 
the body of proposed Section 3, and replaced with the phrase ``purposes 
other than statistical purposes'' or references to

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such purposes. Second, the titles of Sections 2 and 3 have been revised 
to clarify their relationship to each other. Conforming changes have 
also been made in Appendix B.
    9. Proposed Appendix A (``Designated Statistical Agencies or 
Units''). Appendix A of the proposed order contained a list of the 
``statistical agencies and units'' that are subject to this order. 
Comment was particularly solicited on the list of agencies proposed for 
inclusion or on other agencies or units that should be considered for 
inclusion.
    Several comments mentioned other agencies that might be included in 
Appendix A, specifically the Environmental Protection Agency (EPA), the 
Social Security Administration (SSA), and the Health Care Financing 
Administration (HCFA). One general comment recommended that the order 
be extended in the future to as many agencies as possible in order to 
provide more protection for the rights and privileges of citizens. In 
addition, several informal inquiries and one written comment questioned 
whether all of the ``statistical agencies or units'' listed in Appendix 
A could meaningfully comply with the terms of the order under current 
law.
    In the final order, we have not added any agencies or units to the 
list. The order permits further designations, and we will review the 
situation in other agencies to determine if additional designations are 
in the public interest. We originally proposed the Energy End Use and 
Integrated Statistics Division of the Energy Information Administration 
for inclusion in Appendix A. However, it is not clear that this is the 
only unit in EIA that might operate some exclusively statistical 
programs. Therefore, while retaining that Division in Appendix A (as 
proposed) in this final order, we are inviting further public comment 
on a proposal to amend Appendix A to include all of EIA (i.e., to 
determine, through the analyses prescribed in the order, which other 
EIA programs may conform to the confidentiality standards of this 
order). That proposal is in an accompanying notice in today's Federal 
Register.
    10. Proposed Appendix B (``Confidentiality pledges''). One 
commenter inquired how, in the case of an agency not covered by a 
strong confidentiality statute, the proposed pledge could assert that 
``by law'' certain disclosures may not be made by such agency. The 
order derives its binding effect from its structure and the authority 
under which it is issued. This order is issued under Section 103 of the 
Budget and Accounting Procedures Act of 1950 and the Paperwork 
Reduction Act. Section 103 in its original language directed the 
President, through his budget office, to ``issue regulations and orders 
for the improved gathering, compiling, analyzing, publishing, and 
disseminating of statistical information for any purpose by the various 
agencies in the executive branch of the Government'' and it further 
required that ``such regulations and orders shall be adhered to by such 
agencies.'' Subsequent codification of this provision (in current 31 
U.S.C. 1104(d)) did not alter the original Congressional intent. 
Therefore agencies are required by law to comply with this statistical 
order. This order also implements the confidentiality provisions of the 
Paperwork Reduction Act. Finally, the order is structured to avoid any 
conflict with other law that might preclude its application. Under 
Section 5 of the order, statistical agencies and units are to review 
applicable statutes to identify any that would preclude full 
implementation of the order.
    Accordingly, the Office of Management and Budget adopts and issues 
the Federal Statistical Confidentiality Order, which is set forth 
below.
Sally Katzen,
Administrator, Office of Information and Regulatory Affairs.

Federal Statistical Confidentiality Order

    Consistent government policy protecting the privacy and 
confidentiality interests of persons who provide information for 
Federal statistical programs serves both the interests of the public 
and the needs of the government and society. The integrity and 
credibility of confidentiality pledges provides assurance to the public 
that information about persons or provided by persons for exclusively 
statistical purposes will be held in confidence and will not be used 
against them in any government action. Public confidence and 
willingness to cooperate in statistical programs substantially affects 
both the accuracy and completeness of statistical information and the 
efficiency of statistical programs. Fair information practices and 
functional separation of purely statistical activities from other 
government activities are both essential to continued public 
cooperation in statistical programs.
    Therefore, pursuant to 31 U.S.C. 1104(d), section 3(a) of the 
Paperwork Reduction Act of 1980 (94 Stat. 2825), the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and Executive Order 
10253 (as amended), and in order to improve the compilation, analysis, 
publication, dissemination, and confidentiality of statistical 
information, it is hereby ordered as follows:
    Section 1. Definitions. For the purposes of this order:
    (a) ``Disclose'' means, unless otherwise indicated, to release 
information to anyone outside of a statistical agency or unit other 
than the respondent who provided, or is the subject of, such 
information (or the agent of such respondent);
    (b) ``Executive agency'' is defined as in 31 U.S.C. 102;
    (c) ``Identifiable form'' means any representation of information 
that permits information concerning a specific respondent to be 
reasonably inferred by either direct or indirect means;
    (d) ``Information'' means information of any kind that is not 
generally available to the public, and includes data;
    (e) ``Person'' means individuals, organized groups of individuals, 
societies, associations, firms, partnerships, business trusts, legal 
representatives, companies, joint stock companies, and corporations, 
and refers to both the singular and the plural;
    (f) ``Respondent'' means a person (other than a Federal employee 
responding to inquiries within the scope of his employment, see 5 CFR 
1320.3(c)(4)) who is requested to provide information, or is the 
subject of that information, or who provides that information;
    (g) ``Rule'' means the whole or part of a statement by an Executive 
agency of general or particular applicability and future effect, and 
includes regulations, directives, orders, guidance, and policy 
statements;
    (h) ``Statistical agency or unit'' means an agency or 
organizational unit of the Executive Branch whose activities are 
predominantly the collection, compilation, processing, or analysis of 
information for statistical purposes (Appendix A contains a list of 
``statistical agencies or units'' as defined herein, which have been 
determined by the Office of Management and Budget to be subject to this 
order);
    (i) ``Statistical purpose'' means the description, estimation, or 
analysis by the Federal Government of information concerning persons, 
the economy, society, or the natural environment (or relevant groups or 
components thereof) without regard to the identities of specific 
persons, as well as the development, implementation, or maintenance of 
methods, procedures, or information resources that support such 
purposes; ``statistical purpose''

[[Page 35048]]

specifically includes records management and archival functions 
authorized in chapters 21, 29, and 33 of title 44 conducted under 
information security and confidentiality restrictions consistent with 
sections 2 and 3 of this order; ``statistical purpose'' specifically 
excludes many other activities or functions for which information is 
used in identifiable form, such as determining whether a person is 
eligible for a license, privilege, right, grant, or benefit (including 
whether such should be revoked) or whether a person's conduct was or is 
in accordance with law (including whether a fine, other punishment, 
monetary damages, or equitable relief should be imposed);
    (j) ``Use'' of information means, unless otherwise indicated, use 
by a statistical agency or unit, by officers or employees of that 
agency or unit, or by its agents (``agents'' are persons designated by 
a statistical agency or unit to perform, either in the capacity of a 
Federal employee or otherwise, exclusively statistical activities 
authorized by law under the supervision or control of an officer or 
employee of that statistical agency or unit, and who have agreed in 
writing to comply with all provisions of law that affect information 
acquired by that statistical agency or unit).
    Section 2. Standards regarding the disclosure and use of 
information acquired for exclusively statistical purposes.
    (a) Information that a statistical agency or unit acquires for 
exclusively statistical purposes may be used only for statistical 
purposes, and shall not be disclosed, or used, in identifiable form for 
any other purpose unless otherwise compelled by law.
    (b) When a statistical agency or unit is collecting information for 
exclusively statistical purposes, it shall, at the time of collection, 
inform the respondents from whom the information is collected that such 
information may be used only for statistical purposes and may not be 
disclosed, or used, in identifiable form for any other purpose, unless 
otherwise compelled by law. If the statistical agency or unit has 
determined that it is not otherwise compelled by law, the 
confidentiality pledge shall be in accordance with Appendix B.
    (c) A statistical agency or unit that collects information to be 
used exclusively for statistical purposes and proposes to disclose such 
information in an aggregate form or another manner that may permit 
other agencies or persons to discern and use such information in 
identifiable form for purposes other than statistical purposes shall, 
prior to such disclosure, fully inform the affected respondents of the 
facts regarding such disclosure and the possibility that such 
disclosure may result in a respondent's information being discerned by 
others in identifiable form, and shall not make such disclosure without 
the prior written consent of all of the affected respondents. This 
informed consent procedure shall be acknowledged wherever feasible in 
any confidentiality pledge offered for information that may be 
disclosed under this procedure.
    Section 3. Standards regarding information acquired for the purpose 
of being disclosed, or used, in identifiable form for purposes other 
than statistical purposes.
    (a) Unless a statistical agency or unit is authorized by statute to 
acquire information to be disclosed, or used, in identifiable form for 
purposes other than statistical purposes, such agency or unit shall not 
collect information for any such purposes.
    (b) If a statistical agency or unit is authorized by statute to 
acquire information to be disclosed, or used, in identifiable form for 
purposes other than statistical purposes, and is collecting information 
for such purposes, such agency or unit shall clearly identify such 
purposes in both the Federal Register notices and submissions to the 
Office of Management and Budget required by the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.). In such cases, a statistical agency or unit 
may not make a confidentiality pledge that includes any language that 
might reasonably be confused with the language contained in 
confidentiality pledges for information that is collected for 
exclusively statistical purposes (see Section 2(b) and Appendix B).
    Section 4. The provisions of this order shall be applied to the 
maximum extent legally permissible. Accordingly, with respect to 
matters involving statistical information and activities of statistical 
agencies or units, Executive agencies shall, to the maximum extent 
legally permissible, construe and apply pertinent statutes (including, 
but not limited to, statutes regarding the collection, use, disclosure, 
and confidentiality of information) in a manner that enables full 
compliance with this order (or, where a statute precludes full 
compliance, in a manner that enables compliance with this order to the 
maximum extent not precluded by statute).
    Section 5. Each statistical agency or unit subject to this order 
shall conduct a review of its activities to ensure that they are in 
full compliance with this order (or, if full compliance is precluded by 
statute, that they comply to the maximum extent not precluded by 
statute). The agency or unit shall complete the review no later than 60 
days after this order takes effect for that agency or unit. The review 
shall include, among other things:
    (a) an identification of any statutes that, the agency or unit 
believes, preclude full compliance with this order,
    (b) an identification of any rules that, the agency or unit 
believes, are inconsistent with any provisions of this order (including 
an identification of which such rules are compelled by statute and, 
conversely, which ones may be revised without a statutory amendment), 
and
    (c) the development of a plan for ensuring that the activities of 
the agency or unit fully comply with this order (or, if full compliance 
is precluded by statute, that such activities comply with this order to 
the maximum extent not precluded by statute).
    The results of this review shall be submitted in a report to the 
Administrator of the Office of Information and Regulatory Affairs no 
later than 90 days after this order takes effect for that agency or 
unit. The Office of Management and Budget shall review such reports 
and, after consultation with the statistical agencies or units in 
question, may request that the Department of Justice review and provide 
its opinion regarding any statutes identified as precluding full 
compliance with this order, or any rules that have been identified as 
being inconsistent with any provisions of this order and as being 
compelled by statute.
    Section 6. Statistical agencies or units shall implement this order 
through issuance of appropriate rules, in accordance with applicable 
procedures. To the extent that it is determined that there are any 
existing rules which are inconsistent with any provisions of this order 
and which an Executive agency may revise to be consistent (without 
statutory amendment), such Executive agency shall promptly undertake to 
revise such rules, in accordance with applicable procedures, so that 
they are consistent. OMB and affected statistical agencies or units 
shall consider, in accordance with the legislative clearance process 
under OMB Circular A-19, the appropriateness of any statutory 
amendments that would enable full compliance with this order.
    Section 7. The disclosure of information to a statistical agency or 
unit shall in no way alter obligations under statutes, including the 
Freedom of Information Act and the Privacy Act, for the same or similar 
information that was retained.

[[Page 35049]]

    Section 8. This order is intended to supplement, and not to 
restrict or diminish, any confidentiality protections that otherwise 
apply to statistical information.
    Section 9. The Office of Information and Regulatory Affairs of the 
Office of Management and Budget will provide appropriate guidance 
regarding this order.
    Section 10. This order is effective 30 days after final publication 
in the Federal Register.

Appendix A--Designated Statistical Agencies or Units

    The following agencies or units have been determined by the 
Office of Management and Budget to be ``statistical agencies or 
units'' for purposes of this order (this list may be revised from 
time to time):

Department of Agriculture
    Economic Research Service
    National Agricultural Statistics Service
Department of Commerce
    Bureau of the Census
    Bureau of Economic Analysis
Department of Education
    National Center for Education Statistics
Department of Energy
    Energy End Use and Integrated Statistics Division of the Energy 
Information Administration
Department of Health and Human Services National Center for Health 
Statistics
Department of Justice
    Bureau of Justice Statistics
Department of Labor
    Bureau of Labor Statistics
Department of Transportation
    Bureau of Transportation Statistics
Department of the Treasury
    Statistics of Income Division of the Internal Revenue Service
National Science Foundation
    Division of Science Resources Studies

Appendix B--Confidentiality Pledges

    Statistical agencies or units subject to this order shall, 
whenever they collect information for exclusively statistical 
purposes and have determined that they may fully comply with the 
disclosure and use standards of subsections 2(a) and 2(b) of this 
order, incorporate the following or equivalent language into 
confidentiality pledges made to respondents:

``This information collection complies with the Federal Statistical 
Confidentiality Order. Therefore, by law, your responses may be used 
only for statistical purposes and may not be disclosed, or used, in 
identifiable form for any other purpose.''

    When a confidentiality pledge is made by a statistical agency or 
unit for any information collection that does not satisfy the 
disclosure and use standards of subsections 2(a) and 2(b) of this 
order [e.g., when the purposes of the collection are not exclusively 
statistical (see Section 3) or when the data may be disclosed in a 
form or manner that may permit use of the data in identifiable form 
by other agencies or persons for purposes other than statistical 
purposes (see subsection 2(c))], such pledge may not include any 
language that might reasonably be confused with the language 
specified above.
[FR Doc. 97-16934 Filed 6-26-97; 8:45 am]
BILLING CODE 3110-01-P