Fundamental Responsibilities of Recognized Statistical Agencies and Units

Federal RegisterAug 18, 2023

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OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1321

[Docket No. OMB-2023-0015]

RIN 0348-AB81

Fundamental Responsibilities of Recognized Statistical Agencies and Units

AGENCY:

Office of Management and Budget (OMB), Executive Office of the President.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

Public trust in Federal statistics is essential to their value and use in informing decisions across public and private sectors. To promote public trust in the statistical agencies and units that produce Federal statistics, the Office of Management and Budget proposes to issue regulations pursuant to Title III of the Foundations for Evidence-Based Policymaking Act of 2018 (Evidence Act) that provide direction to statistical agencies and units. These proposed regulations also would provide direction to other Federal agencies to enable, support, and facilitate statistical agencies and units in carrying out four fundamental responsibilities: produce and disseminate relevant and timely statistical information, conduct credible and accurate statistical activities, conduct objective statistical activities, and ensure the confidentiality and exclusive statistical use of data collected for statistical purposes.

DATES:

Send comments on or before October 2, 2023.

ADDRESSES:

You may send comments, identified by Docket No. OMB-2023-0015 and/or RIN number 0348-AB81, by any of the following methods:

Federal eRulemaking Portal: www.regulations.gov.

Follow the instructions for sending comments.

Email: TrustRegulation@omb.eop.gov.

Include Docket No. OMB-2023-0015 and/or RIN number 0348-AB81 in the subject line of the message.

Instructions:

All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to

www.regulations.gov.

In addition, comments submitted in response to this notice may be subject to disclosure under the Freedom of Information Act. For these reasons, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket; however,

www.regulations.gov

does include the option of commenting anonymously. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.

Docket:

For access to the docket to read background documents or comments received, go to

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Kerrie Leslie, 202-395-5898,

TrustRegulation@omb.eop.gov.

SUPPLEMENTARY INFORMATION:

A. Executive Summary

The Foundations for Evidence-Based Policymaking Act of 2018 (Evidence Act) became law on January 14, 2019.

The Evidence Act seeks to “advance evidence-building functions in the Federal government by improving access to data and expanding evaluation capacity.”

Part of advancing evidence-building functions is enhancing the foundation for generating high quality evidence, including improving the ability of Recognized Statistical Agencies and Units to produce relevant, credible, and objective statistical information. As such, Title III of the Evidence Act (also known as the Confidential Information Protection and Statistical Efficiency Act of 2018, CIPSEA 2018) updated and enhanced CIPSEA 2002

by, among other things, codifying the four fundamental responsibilities of Recognized Statistical Agencies and Units and requiring other Federal agencies to enable, support, and facilitate the Recognized Statistical Agencies and Units in upholding these responsibilities. These proposed regulations seek to provide direction to agencies in carrying out these responsibilities. The four fundamental responsibilities are:

Foundations for Evidence-Based Policymaking Act of 2018, Public Law 115-435, 132 Stat. 5529 (2019), available at

https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf.

Foundations for Evidence-Based Policymaking Act of 2017, H. Rep. No. 115-411 (2017), available at

https://www.congress.gov/congressional-report/115th-congress/house-report/411.

E-Government Act of 2002, Public Law 107-347, title V; 116 Stat. 2962 (2002),

available at https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf.

(A) produce and disseminate relevant and timely statistical information;

(B) conduct credible and accurate statistical activities;

(D) protect the trust of information providers by ensuring the confidentiality and exclusive statistical use of their responses.

In codifying these responsibilities, the Congress recognized the value of maintaining and improving the relevance, accuracy, and objectivity of Federal statistical data as well as securing the protection of confidential information used in evidence-building. In codifying the fourth fundamental responsibility, the Evidence Act also reaffirmed the central tenet of CIPSEA 2002—that Recognized Statistical Agencies and Units must have the authority and capability to protect confidential statistical data and to assure information providers that any information provided to the Recognized Statistical Agency or Unit for statistical purposes under an obligation to maintain confidentiality will be kept strictly confidential and used exclusively for statistical purposes.

While the principles addressed in this proposed regulation are not new, and in fact have long been a consistent subject of OMB, Federal Government, and international policy for almost as long as governments have been charged with collecting and disseminating information about their societies, their actual implementation in the form of standards and practices can involve a wide range of managerial and technical challenges, especially as the Federal Statistical System evolves in the face of the unique modern data environment. These proposed regulations seek to provide some clarity in upholding these requirements on Recognized Statistical Agencies and Units and other Federal agencies. While these proposed regulations seek to learn from the long history of policies developed to support Federal statistics, they also seek to promote moving Federal statistics forward. It is important that Recognized Statistical Agencies and Units continue to move their methods, engagements, and collaborations forward productively, recognizing lessons learned across their vast history while embracing new ways of working.

B. Statutory Authority

As required by 44 U.S.C. 3563(c) and the general authority in 44 U.S.C. 3562(a) to promulgate rules to ensure consistent interpretation by agencies of the requirements of CIPSEA 2018, OMB is proposing these regulations to provide direction to agencies in carrying out the responsibilities described in

section 3563. Section 3563 describes the fundamental responsibilities that Recognized Statistical Agencies and Units must adhere to, and charges all Federal agencies with enabling, supporting, and facilitating Recognized Statistical Agencies and Units in meeting these responsibilities.

C. Brief History of the U.S. Federal Statistical System and Related Authorities

Federal statistics have informed decision-making in the United States since its founding. The first constitutionally mandated census of population and housing was in 1790.

This 1790 Census planted the seeds for what is referred to today as the Federal Statistical System. Over the 19th century, the system continued to blossom into a specialized, decentralized, interconnected network to address emerging information demands, including tax, agriculture, education, and labor, for the growing Nation. The 20th century presented new and evolving policy needs leading to further expansion of the Federal Statistical System to include commerce, public health, energy, justice, transportation, and more. More than two decades into the 21st century, the Federal Statistical System continues to provide the gold-standard for impartial, trusted Federal statistics foundational to informing decisions across the public and private sectors.

Carroll Wright, Comm'r of Labor,

The History and Growth of the United States Census,

S. Doc. No. 194 (1900),

available at https://www.census.gov/history/pdf/wright-hunt.pdf.

The Federal Statistical System.

The Federal Statistical System collects and transforms data into useful, objective information and makes it readily and equitably available to stakeholders while protecting the responses of individual data providers. Federal, State, local, territorial, and Tribal governments; businesses; and the public all rely on this information to be credible and reliable and, so they can use it to make informed decisions. The decentralized, interconnected network includes:

Office of the Chief Statistician of the United States.

Led by the Chief Statistician of the United States, the Office of the Chief Statistician of the United States at OMB has the statutory responsibility

of coordinating the Federal Statistical System to ensure its efficiency and effectiveness, as well as the integrity, objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes. This office accomplishes this by promulgating regulations, developing and maintaining statistical policies and standards, identifying priorities for improving programs, assessing statistical agency budgets, reviewing and approving collections of information from Recognized Statistical Agencies and Units, and coordinating U.S. participation in international statistical activities, among other functions.

44 U.S.C. 3504(e).

Sixteen Recognized Statistical Agencies and Units.

Thirteen of the sixteen are considered to be principal statistical agencies and units (see Table 1), which are agencies or organizational units of the Executive Branch whose missions are predominantly the collection, compilation, processing, or analysis of information for statistical purposes,

covering such topics as the economy, workforce, energy, agriculture, foreign trade, education, housing, crime, transportation, and health. In addition to those thirteen, three additional statistical units across the Federal Government are “recognized” by OMB under CIPSEA 2018.

These three Recognized Statistical Agencies and Units are: the Microeconomic Surveys Unit at the Board of Directors of the Federal Reserve System; the Center for Behavioral Health Statistics and Quality within the Substance Abuse and Mental Health Services Administration at the Department of Health and Human Services; and the National Animal Health Monitoring System within the Animal and Plant Health Inspection Service at the Department of Agriculture.

44 U.S.C. 3561(12) (“The term `Statistical purpose' (A) means the description, estimation, or analysis of the characteristics of groups, without identifying the individuals or organizations that comprise such groups; and (B) includes the development, implementation, or maintenance of methods, technical or administrative procedures, or information resources that support the purposes described in subparagraph (A)”).

More information on the history of OMB “recognition” is available later.

Approximately 100 other statistical programs.

These statistical programs produce and disseminate statistics in support of other mission areas and conduct a variety of evidence-building functions, including program evaluation, scientific research, data collection, policy and program analysis, and the provision of funding and other support for external research.

Office of Mgmt. & Budget, Exec Office of the President, Statistical Programs of the United States Government: Fiscal Years 2019/2020 (2020),

available at https://www.whitehouse.gov/wp-content/uploads/2020/12/statistical-programs-20192020.pdf.

Twenty-Four Statistical Officials.

Pursuant to the Evidence Act, each Chief Financial Officers Act (CFO Act) agency

has designated a senior staff person in the agency to be the Statistical Official with the authority and responsibility to advise across the agency on statistical policy, techniques, and procedures, and to champion statistical data quality and confidentiality. At the 11 CFO Act agencies that contain a principal statistical agency or unit, the head of that principal statistical agency or unit has been designated the Statistical Official, as required by OMB M-19-23.

31 U.S.C. 901.

Office of Mgmt. & Budget, Exec Office of the President, M-19-23, Phase 1 Implementing of the Foundations for Evidence-Based Policymaking Act of 2018: Learning Agendas, Personnel, and Planning Guidance (July 10, 2019),

available at https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf.

In the case of the Departments of Agriculture and Commerce, which each host two principal statistical agencies or units, the Statistical Official role is rotated among the two principal statistical agencies or units.

Interagency Council on Statistical Policy (ICSP).

Chaired by the Chief Statistician of the United States, the ICSP

was established to advise and assist OMB, through the Chief Statistician of the United States, in carrying out its statutory responsibility to coordinate the Federal Statistical System to ensure its efficiency and effectiveness, as well as the objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes; to implement statistical policies, principles, standards, and guidelines; and assess statistical program performance.

The ICSP supports implementation of the statistical system's vision to operate as a seamless system, working together to provide strategic vision and robust implementation in support of the U.S. Federal Statistical System's critical longstanding—and expanding—role for supporting evidence-based decision-making. For example, the ICSP sets strategic goals on issues such as modernizing the statistical system, ensuring data quality and confidentiality, and providing safe and appropriate data access, playing an effective role in agency-wide data governance, as well as enhancing coordination and collaboration across the system. ICSP currently includes 26 members in addition to the Chair. Pursuant to the Paperwork Reduction Act of 1995 (PRA), all 13 heads of the principal statistical agencies and units

are members.

Pursuant to the Evidence Act, all 24 Statistical Officials are also members; however, 11 of the Statistical Officials are also heads of principal statistical agencies or units. The ICSP is a forum for collaboration, coordination, and information-sharing among the principal statistical agencies and units and additional statistical programs across its member agencies, including on issues such as ensuring data quality and confidentiality, attaining and providing data access, and playing an effective role in agency-wide data governance.

44 U.S.C. 3504(e).

Id.

The ICSP was recently expanded to include the three Recognized Statistical Units, which will bring the ICSP membership up to 29 by fiscal year 2024.

Brief History of Recognized Statistical Agencies and Units.

OMB first

recognized

statistical agencies and units in a June 1997 OMB Order, “Order Providing for the Confidentiality of Statistical Information,” (1997 Order).

The 1997 Order sought to clarify, and make consistent, government policy protecting the privacy and confidentiality interests of individuals or organizations who furnish data for Federal statistical programs, and in it, OMB

recognized

12 statistical agencies and units subject to the order.

About five years later, the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA 2002) was enacted and gave OMB the authority to determine whether an agency or unit could be considered a statistical agency or unit for purposes of CIPSEA 2002, including for using the strong confidentiality protections it afforded. Those considered by OMB to be a statistical agency or unit for purposes of CIPSEA 2002 were known as

recognized

statistical agencies and units. CIPSEA 2002 implementation guidance

recognized

the 12 statistical agencies and units from the 1997 Order plus two additional statistical agencies or units.

Since then, two more statistical agencies or units have been

recognized

by OMB.

CIPSEA 2018 reauthorized the OMB authority to make this determination under section 3562.

At current, there are 16 Recognized Statistical Agencies and Units. Table 1 provides a list of the current 16 Recognized Statistical Agencies and Units and their highest-level organization, as well as an identifier if the Recognized Statistical Agency or Unit is also a principal statistical agency or unit.

Office of Mgmt. & Budget, Exec. Office of the President, Order Providing for the Confidentiality of Statistical Information, 62 FR 35044 (1997),

available at https://www.govinfo.gov/content/pkg/FR-1997-06-27/pdf/FR-1997-06-27.pdf.

Id.

The term “designated” was used in the 1997 Order. For the purposes of this proposed regulation, OMB uses the term

recognized

in this discussion of the history of OMB's role in identifying these entities to provide consistency across the discussion with the current implementation.

Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) 72 FR 33362 (June 15, 2007),

available at https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf.

See

Statistical Policy Directive No. 1: Fundamental Responsibilities of Federal Statistical Agencies and Recognized Statistical Units, 79 FR 71610 (Dec. 2, 2014),

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

CIPSEA 2018 uses the term “designate” to identify those statistical agencies or units that OMB identifies under section 3562 and therefore are subject to the responsibilities in section 3563. CIPSEA 2018 also uses the term “designate” to identify the three statistical agencies and units given the authority to share business data with each other in section 3576. To avoid confusion in this proposed regulation, the term “recognized” is used, consistent with past practice, to refer to those statistical agencies and units identified under section 3562 and subject to the responsibilities in section 3563.

Table 1—Current Recognized Statistical Agencies and Units

Recognized statistical agency or unit

Highest level organization

Principal

statistical

agency

Bureau of Economic Analysis

Department of Commerce

Bureau of Justice Statistics

Department of Justice

Bureau of Labor Statistics

Department of Labor

Bureau of the Census

Department of Commerce

Bureau of Transportation Statistics

Department of Transportation

Center for Behavioral Health Statistics and Quality

Department of Health and Human Services

Economic Research Service

Department of Agriculture

Energy Information Administration

Department of Energy

Microeconomic Surveys Unit

Board of Directors of the Federal Reserve System

National Agricultural Statistics Service

Department of Agriculture

National Animal Health Monitoring System

Department of Agriculture

National Center for Education Statistics

Department of Education

National Center for Health Statistics

Department of Health and Human Services

National Center for Science and Engineering Statistics

National Science Foundation

Office of Research, Evaluation, and Statistics

Social Security Administration

Statistics of Income Division

Department of the Treasury

Related authorities.

Critical to a healthy, relevant Federal Statistical System has been the development and implementation of statutes, regulations, policies, and principles (hereafter collectively referred to as “authorities”) to support its growth. Over the years, recognizing challenges faced by the Federal Statistical System as it grew, Congress, the Executive Branch, and outside experts—both nationally and internationally—have built a framework of authorities to address such challenges. For example, as inquiries into business operations, personal lives, and more began to expand and capture more detailed, sometimes sensitive, information, authorities evolved to provide for the necessary protection of such information (

i.e.,

confidentiality) and for such information to only be used for exclusively statistical purposes (

i.e.,

not for enforcement, administrative, or other non-statistical purposes). In addition, maintaining the public's trust in the statistical information produced by the Federal Statistical System is critical to the usefulness of the statistical information, and authorities have been issued and revised over time to promote the Federal Statistical System's ability to provide relevant, credible, and objective statistical information. Importantly, many authorities, such as individual entity authorizing statutes and cross-system statutes, co-exist and are complementary to promote a strong,

vibrant, interconnected Federal Statistical System.

What follows are brief descriptions of the most relevant authorities, in order of relevance, to these proposed regulations for the fundamental responsibilities of Recognized Statistical Agencies and Units. These authorities generally support the ability of the Federal Statistical System to create relevant, credible, accurate, and objective statistics in a way that promotes the trust of data providers.

Evidence Act, CIPSEA 2002, and CIPSEA 2018.

The Evidence Act was enacted on January 14, 2019, and emphasizes collaboration and coordination to advance data and evidence-building functions in the Federal Government by statutorily mandating Federal evidence-building activities, open government data, and confidential information protection and statistical efficiency. It consists of four titles:

Title I: Federal Evidence-Building Activities

* Requires agency Evidence-Building Plans, Evaluation Plans, and Capacity Assessments.

* Requires that agencies designate an Evaluation Officer and Statistical Official for the coordination of evaluation and statistical activities, policies, and techniques, respectively.

* Requires that OMB establish an Advisory Committee on Data for Evidence Building.

* Requires that OMB issue program evaluation standard and best practices.

* Requires that OPM establish a program evaluation job series and career path.

Title II: OPEN Government Data Act

* Requires agency Open Data Plans to make government data assets open to the public.

* Requires agency comprehensive data inventories of all agency data assets.

* Requires that agencies designate a Chief Data Officer for the coordination of Title II activities and policies.

* Requires that OMB establish a Chief Data Officer Council.

Title III: Confidential Information Protection and Statistical Efficiency Act of 2018 (CIPSEA 2018)

* Requires that OMB establish a process to recognize new statistical agencies or units.

* Codifies Statistical Policy Directive No. 1, the “Trust Directive” for the fundamental responsibilities of statistical agencies or units.

* Presumes accessibility for statistical agencies and units to obtain data from Federal agencies upon request for evidence-building.

* Expands secure access to CIPSEA data assets.

* Establishes a standard data application process for researchers.

* Requires that OMB coordinate and oversee confidentiality and disclosure policies for executive or organizational units identified or designated by the Director of OMB, as statistical agencies or units.

Title IV: General Provisions

* Outlines restrictions on disclosure of data.

* Requires agencies, to the extent practicable, use existing procedures and resources to carry out agency requirements.

The Evidence Act was a partial response

to the recommendations from the final report of the Commission on Evidence-Based Policymaking (CEP),

established in 2016 pursuant to the Evidence-Based Policymaking Commission Act of 2016.

The CEP was charged with “[conducting] a comprehensive study of the data inventory, data infrastructure, database security, and statistical protocols related to Federal policymaking and the agencies responsible for maintaining that data” and to make recommendations to Congress related to the access, integration, use, and control of data to facilitate research and evidence-based evaluation of government programs. As part of its conclusions, the CEP emphasized that making data available for statistical purposes to advance evidence-building could place that data at increased risk of being used for nonstatistical purposes in ways that undermine the public's willingness to provide data to the Federal Statistical System, and thus recognized the need for “strict structural and institutional separation between statistical and nonstatistical uses of data,” noting throughout its final report that a strong legal framework is needed to strengthen privacy and confidentiality protections for the data. The Evidence Act makes strides toward creating this strong legal framework. It mandates a systematic rethinking of government data management to better facilitate access for evidence-building activities and public consumption. The Evidence Act builds upon longstanding principles underlying Federal policies and data infrastructure investments that support information quality, access, protection, and evidence-building. It builds on these principles and provides an improved legal framework for enhancing and safeguarding data access.

Foundations for Evidence-Based Policymaking Act of 2018, Public Law 115-435, 132 Stat. 5529 (2019),

available at https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf.

Comm'n Evidence-Based Policymaking,

The Promise of Evidence-Based Policymaking

(2017),

available at https://bipartisanpolicy.org/wp-content/uploads/2019/03/Full-Report-The-Promise-of-Evidence-Based-Policymaking-Report-of-the-Comission-on-Evidence-based-Policymaking.pdf.

Evidence-Based Policymaking Commission Act of 2016, Public Law 114-140, 130 Stat. 317 (2016),

available at https://www.congress.gov/bill/114th-congress/house-bill/1831/text.

The Evidence Act defines evidence as “information produced as a result of statistical activities conducted for a statistical purpose,” and OMB operationalized the definition in OMB M-19-23 as four interdependent components: foundational fact finding, policy analysis, program evaluation, and performance measurement.

In particular and relevant to these proposed regulations, the Evidence Act creates the roles of Statistical Officials, Evaluation Officers, and Chief Data Officers

to promote coordination and collaboration on evidence issues across the entire agency. It also updated and expanded CIPSEA 2002.

CIPSEA 2002 established exclusively statistical uses of information collected under a pledge of confidentiality, provided for permitting controlled access to limited-use data through Designated Agent Agreements, and established strong penalties for willful violation of the confidentiality provisions, among other provisions. With enactment of the Evidence Act, CIPSEA 2018 codifies the uniform data protection requirements for Federal statistical collections, sets minimum standards for safeguarding confidential statistical data, and ensures the confidentiality of information collected exclusively for statistical purposes, in addition to numerous other provisions promoting safe and secure expanded access to restricted data.

CIPSEA 2018 also:

5 U.S.C. 314 (statistical official); 5 U.S.C. 313 (Evaluation Officer); 44 U.S.C. 3520 (Chief Data Officer).

E-Government Act of 2002, Public Law 107-347, title V; 116 Stat. 2962 (2002),

available at https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf.

Notably, nothing in CIPSEA 2018 “restrict[s] or diminish[es] any confidentiality protections or penalties for unauthorized disclosure that otherwise apply to data or information collected for statistical purposes or nonstatistical purposes.” 44 U.S.C. 3564(h).

(1) codified the four fundamental responsibilities of statistical agencies and units and the role of other Federal agencies in supporting the statistical agencies and units to meet their responsibilities (the subject of this proposed regulation);

(2) required OMB to develop a process for recognizing additional statistical agencies and units;

(3) provided a presumption of accessibility to other Federal agencies' data for Recognized Statistical Agencies and Units; and

(4) required a standard framework to allow expanding access to restricted data and establishment of a Standard Application Process.

Office of Mgmt. & Budget, Exec Office of the President, M-23-04, Establishment of Standard Application Process Requirements on Recognized Statistical Agencies and Units Department Support for Implementation of Statistical Policy (Dec. 08, 2023),

available at https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf.

The Standard Application Process, established in OMB M-23-04, outlines how each Recognized Statistical Agency or Unit shall meet its obligations under CIPSEA 2018 to establish an identical application process for access to confidential statistical data assets. This includes not just the application form, but also the criteria for determining whether to grant an applicant access to the confidential statistical data asset, timeframes for prompt determinations, an appeals process for adverse determinations, and reporting requirements for full transparency of the process.

Paperwork Reduction Act of 1995 (PRA).

The PRA makes OMB responsible, among other requirements, for coordination of the Federal Statistical System through an appointed Chief Statistician of the United States who is a trained and experienced professional statistician.

The purpose of this coordination is to ensure the integrity, objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes.

44 U.S.C. 3504(e)(7).

Privacy Act of 1974 (Privacy Act).

The Privacy Act

establishes a code of fair information practices that governs handling of information about individuals that is maintained in systems of records by Federal agencies. Among its many requirements are provisions that limit information about individuals maintained by Federal agencies to that which is legally authorized and is relevant and necessary to accomplish an agency purpose and provisions that govern, and in some instances limit, the use and disclosure of information. The Act addresses disclosures for statistical purposes and allows for exemption from certain requirements for records “required by statute to be maintained and used solely as statistical records.”

The Privacy Act defines a “statistical record” for its purposes, as a record that is “maintained for statistical research or reporting purposes only and not used in whole or in part in making a determination about an identifiable individual.”

5 U.S.C. 552a.

5 U.S.C. 55a(b)(5), (k)(4).

5 U.S.C. 552a(a)(6).

OMB Statistical Policy Directives.

These provide guidance to Recognized Statistical Agencies and Units, and in some cases other Federal agencies, to promote accuracy, objectivity, reliability, timeliness, and accessibility of Federal statistics. Especially relevant to this proposed regulation is OMB's Directive No. 1,

which articulates the four fundamental responsibilities of Recognized Statistical Agencies and Units and defines the requirements governing the design, collection, processing, editing, compilation, storage, analysis, release, and dissemination of statistical information by Recognized Statistical Agencies and Units. The Evidence Act codified, and this proposed regulation is based on, OMB's Directive No. 1. OMB's Statistical Policy Directive No. 2: Standards and Guidelines for Statistical Surveys

describes specific practices that support the quality of design, collection, processing, production, analysis, review, and dissemination of information from statistical surveys. OMB's Statistical Policy Directive No. 3: Compilation, Release, and Evaluation of Principal Federal Economic Indicators

establishes requirements for Federal agencies regarding the compilation, release, and evaluation of statistical series designated by OMB as Principal Federal Economic Indicators, which are influential and heavily relied upon economic activity measures, including Gross Domestic Product, Consumer Price Index, and the Employment Situation. OMB's Statistical Policy Directive No. 4: Release and Dissemination of Statistical Products Produced by Federal Statistical Agencies

establishes requirements for Recognized Statistical Agencies and Units on the release and dissemination of all statistical products, beyond just the Principal Federal Economic Indicators. Recognized Statistical Agencies and Units are required to follow these Directives to ensure that their release of information is equitable across all users, policy-neutral, transparent and understandable to the public, and timely to the needs of data users. These and other statistical policies and standards issued by OMB are available at

www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/.

Office of Mgmt. & Budget, Exec. Office of the President, Statistical Policy Directive No. 1: Fundamental Responsibilities of Federal Statistical Agencies and Recognized Statistical Units, 79 FR 71610 (Dec. 2, 2014),

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

Office of Mgmt. & Budget, Exec. Office of the President, Standards and Guidelines for Statistical Surveys, 71 FR 55522 (Sept. 22, 2006),

available at https://www.govinfo.gov/content/pkg/FR-2006-09-22/pdf/06-8044.pdf.

Office of Mgmt. & Budget, Exec. Office of the President, Statistical Policy Directive on Compilation, Release, and Evaluation of Principal Federal Economic Indicators, 50 FR 38932 (Sept. 25, 1985),

available at https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25.

Office of Mgmt. & Budget, Exec. Office of the President, Statistical Policy Directive No. 4: Release and Dissemination of Statistical Products Produced by Federal Statistical Agencies 73 FR 12622 (Mar. 7, 2008),

available at https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf.

In addition to the related authorities for the work of Recognized Statistical Agencies and Units, other external entities—both domestic and international—have published their perspectives on how Recognized Statistical Agencies and Units should meet their missions to produce reliable, relevant, credible, and objective Federal statistics. Below is a brief summary of relevant publications, which offer support for many aspects of the proposed regulations.

* The National Academy of Sciences, Engineering, and Medicine's

Principles and Practices for a Federal Statistical Agency

(referred to as Principles and Practices). Principles and Practices has guided managerial and technical decisions made by national and international statistical agencies for decades. In the most recent 2021 edition, five principles are identified, which broadly align with the four fundamental responsibilities outlined in the Evidence Act:

Nat'l Acad. Sci., Eng'g, & Med.,

Principles and Practices for a Federal Statistical Agency

(7th ed. 2021),

available at https://www.nap.edu/read/25885/.

—

Relevance to Policy Issues and Society.

Federal statistical agencies must provide objective, accurate, and timely information that is relevant to important public policy issues.

—

Credibility Among Data Users and Stakeholders.

Federal statistical agencies must have credibility with those who use their data and information.

—

Trust Among the Public and Data Providers.

Federal statistical agencies must have the trust of those whose information they obtain.

—

Independence from Political and Other Undue External Influence.

Federal statistical agencies must be independent from political and other undue external influence in developing, producing, and disseminating statistics.

As defined in the 2021 Principles and Practices, “Undue external influences” are those from outside the [Recognized Statistical Agency or Unit] that seek to undermine its impartiality, nonpartisanship, or professional judgment. However, it remains important for Recognized Statistical Agencies and Units to remain relevant

and solicit input from relevant stakeholders, including policy officials, about what information is needed to answer important questions and make informed decisions.

—

Continual Improvement and Innovation.

Federal statistical agencies must continually seek to improve and innovate their processes, methods, and statistical products to better measure an ever-changing world.

International Principles and Practices.

The United States is not alone in identifying statistical principles and practices, which seek to achieve similar goals as the four fundamental responsibilities in the Evidence Act. The United Nations'

Fundamental Principles of Official Statistics

affirm ten fundamental principles that promote and build the “essential trust of the public in the integrity of official statistical systems and confidence in statistics.” These principles ensure that national statistical systems in United Nations member states produce high quality and reliable data by adhering to certain professional and scientific standards. In addition, the

European Statistics Code of Practice

guides European statistical systems by affirming the European Union member nations' commitment to ensuring high quality in the statistical production process, protecting the confidentiality of the information they collect, and disseminating statistics in an objective, professional, and transparent manner.

United Nations General Assembly,

Fundamental Principles of Official Statistics

(adopted Jan. 29, 2014),

available at https://unstats.un.org/fpos/.

European Statistical System Committee,

European Statistics Code of Practice for the National Statistical Authorities and Eurostat

(adopted Nov. 16, 2017),

available at https://ec.europa.eu/eurostat/web/products-catalogues/-/KS-02-18-142.

Over many years and based on lessons learned, responsibilities, standards, and certain protections have been developed and implemented to strengthen the Federal Statistical System's ability to meet its mission reliably and objectively, which requires an appropriate level of autonomy and authority for Recognized Statistical Agencies and Units.

The concept of autonomy and authority as proposed to be implemented in this regulation is an important aspect of the ability of Recognized Statistical Agencies and Units to meet their fundamental responsibilities outlined in 44 U.S.C. 3563. Where autonomy or authority are important in some manner for the Recognized Statistical Agency or Unit in meeting their fundamental responsibilities, the discussion of key provisions of these proposed regulations provides more information and detail. This autonomy and authority to meet specific responsibilities must be balanced with other responsibilities and needs of the Recognized Statistical Agency or Unit, as well as other Federal agencies. These proposed regulations aim to explicate where autonomous decision-making authority is important and why.

See

Foundations for Evidence-Based Policymaking Act of 2017, H. Rep. No. 115-411 (2017),

available at https://www.congress.gov/congressional-report/115th-congress/house-report/411

(quoting Statistical Directive No. 1);

see also

available at https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf.

44 U.S.C. 3520(d)(1).

44 U.S.C. 3563(a)(2), 44 U.S.C. 3563(b).

Proposed § 1321.4(b)

requires each Recognized Statistical Agency or Unit to maintain a distinctive, outward-facing website

with its own domain name and with adequate control over the website content and management to uphold the fundamental responsibilities. Data users and providers (

i.e.,

respondents to statistical collections, including individuals, households, businesses, and organizations) must be able to clearly and easily discern when they are receiving information from or providing information to a Recognized Statistical

Agency or Unit. These websites must be clearly branded as belonging to the Recognized Statistical Agency or Unit.

Agencies should follow OMB policies, including M-23-10, when issuing new websites. See

https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-10-DOTGOV-Act-Guidance.pdf.

Proposed § 1321.4(b)(1)

acknowledges the parent agency's role in enabling, supporting, and facilitating the Recognized Statistical Agency or Unit's responsibility to maintain a branded website. This responsibility includes ensuring the Recognized Statistical Agency and Unit has the necessary resources to meet their requirements under this regulation. The parent agency should also support the Recognized Statistical Agency and Unit in having the autonomy to maintain the website in a way that ensures that the branding meaningfully reflects the identity of the Recognized Statistical Agency and Unit. They must have the capacity to update the content in a timely manner.

Proposed § 1321.4(b)(2)

acknowledges the importance of using the website to share key information with the public. The website will communicate to the public a “core mission of [Recognized Statistical Agencies and Units] is to produce relevant and timely statistical information to inform decision-makers in governments, businesses, institutions, and households.”

Recognized Statistical Agencies and Units must have in place a strong mission statement that clearly communicates the Recognized Statistical Agency's or Unit's objectives and that is further refined through strategic planning. A Recognized Statistical Agency's or Unit's mission statement should provide a clear understanding of the scope of its responsibilities and goals, so its stakeholders and users can properly assess whether it is meeting its responsibilities.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

The commitment to the mission should then be reflected in the Recognized Statistical Agency's or Unit's publicly available strategic plan. This proposed regulation would require each Recognized Statistical Agency and Unit to produce a strategic plan that further describes the Recognized Statistical Agency's or Unit's goals and provides specific, measurable objectives and performance metrics. OMB is proposing that these plans should be generally consistent with the statutory requirements for strategic planning,

which would require the Recognized Statistical Agency or Unit to reassess its goals, objectives, and performance metrics no less than every four years alongside and in alignment with the parent agency's strategic plan. This is an opportunity to reassess the priorities among different statistical programs and the infrastructure needed to support those programs, in light of advances in technologies, use cases, and goals of the Recognized Statistical Agencies and Units, among other purposes, such as reassessing the relevance of different statistical programs. This review should also afford Recognized Statistical Agencies and Units and the parent agency, in a collaborative way, the opportunity to assess the efficiency and effectiveness of the allocation of staff time and resources among programs and initiatives, along with appropriateness of existing financial controls, enterprise risk strategies, and the credibility and defensibility of other business processes of the Recognized Statistical Agencies and Units and parent agency.

5 U.S.C. 306.

Consistent with the spirit of the requirement for the strategic plan, OMB also proposes that any publicly available findings, determinations, or recommendations relevant to the Recognized Statistical Agency or Unit yielded by external evaluations, audits, or other objective reviews conducted by Federal Government entities be made publicly available on the Recognized Statistical Agency or Unit website, as allowable by law, and recommend the Recognized Statistical Agency or Unit also make publicly available on its website concrete, measurable steps that the Recognized Statistical Agency or Unit is taking to remediate such issues in a timely and credible manner.

This section would also require each Recognized Statistical Agency or Unit to identify and gather in a single location on its publicly available website the various pieces of legislation, regulations, and policies, including its own and those of parent agencies, that govern the four fundamental responsibilities of each individual Recognized Statistical Agency or Unit. By the nature of their designation as a Recognized Statistical Agency or Unit under CIPSEA 2018, each Recognized Statistical Agency or Unit will list the Evidence Act, including CIPSEA 2018 (Title III), the OPEN Government Data Act (Title II), and certain requirements under Title I, as well as any authorizing statute. However, the list should extend much further than relevant statistical laws. For example, they should include any parent agency policies governing the appearance or functionality of websites; governing communication with the press, Congress, or other parties; or governing the quality of information, such as scientific integrity policies. This requirement is based on the demonstrated value of a similar reporting requirement in OMB M-15-03:

Department Support for Implementation of Statistical Policy Directive No. 1: Fundamental Responsibilities of Federal Statistical Agencies and Recognized Statistical Units.

If disagreements arise between the Recognized Statistical Agency or Unit and the parent agency, the head of the Recognized Statistical Agency or Unit and the relevant officials at the parent agency may reach out to OMB through the Administrator of the Office of Information and Regulatory Affairs (OIRA) to discuss and resolve.

Office of Mgmt. & Budget, Exec Office of the President, M-15-03, Department Support for Implementation of Statistical Policy Directive No. 1: Fundamental Responsibilities of Federal Statistical Agencies and Recognized Statistical Units (Nov. 26, 2014),

available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-03.pdf.

The Evidence Act and OMB Statistical Policy Directive No. 1 recognize the essential role of Federal Departments in supporting Recognized Statistical Agencies and Units as they implement these responsibilities. Sharing of Department practices, such as incorporating recognition, support, and clear authority for these responsibilities in Departmental written policies, facilitates interagency identification of strengths and opportunities for improvement. Over time, this engagement, dialogue, and implementation will provide a roadmap for continued nurturing and maintenance toward continued achievement of these responsibilities across the Federal Statistical System.

Accordingly, OMB M-15-03 required each Department and Agency hosting a Recognized Statistical Agency or Unit to report to the OIRA Administrator, within 120 days of the date of publication of the Memorandum, actions it took, were in the process of taking, or were considering to support achievement of the responsibilities identified in OMB Statistical Policy Directive No. 1, and to indicate if the basis for such actions was found in statute, Departmental policy, or established Departmental practice.

Id.

Proposed § 1321.4(c)(1)

requires each Recognized Statistical Agency or Unit to produce a budget request

specific to

their agency, to be clearly presented as the request for the Recognized Statistical Agency or Unit with figures and justification specific to the Recognized Statistical Agency or Unit as part of the highest organizational unit's annual budget submission and process, and to participate directly, accompanied by the highest organizational unit as appropriate, in presenting their agency specific request to OMB. If a Recognized Statistical Agency or Unit does not have sufficient staffing resources or expertise to produce a budget, the parent agency should assign a budget employee to report, in whole or in part, to the head of the Recognized Statistical Agency or Unit. This provision does not circumvent OMB's authorities and responsibilities in reviewing and coordinating the budgets of the Executive Branch more broadly or the parent agencies' authorities and responsibilities in reviewing and coordinating Departmental budgets. This provision is intended to provide transparency for both the Recognized Statistical Agency or Unit to the OMB budget process and for OMB and the highest organizational unit in understanding the resource needs and priorities for the Recognized Statistical Agency or Unit to uphold the four fundamental responsibilities. This requirement will allow OMB to better fulfill its responsibilities under 44 U.S.C. 3504(e)(2) to: “ensure that budget proposals of agencies are consistent with system-wide priorities for maintaining and improving the quality of Federal statistics.”

In this provision, “budget request” means the request put forward to OMB from the highest organizational unit as part of the fiscal year process for the President's Budget. It encompasses the budget figures, budget justification, supplementary submissions), and other requests from OMB issued to Executive Branch agencies as part of the President's Budget process. Typically, requests in addition to the budget figures and justifications are

outlined in “Spring Guidance” issued by OMB each year.

Proposed § 1321.4(c)(2)

requires parent agencies to provide necessary resources or communicate to OMB through the Office of the Chief Statistician of the United States about the lack of available resources for Recognized Statistical Agencies or Units to carry out their fundamental responsibilities. The ability of a Recognized Statistical Agency or Unit to meet its fundamental responsibilities relies on access to sufficient resources. Parent agencies must take these needs into consideration when developing its annual budget request to OMB and allocating existing resources, offer appropriate transparency about funding decisions particularly to Recognized Statistical Agencies and Units and to OMB. Parent agencies must also allow sufficient autonomy and authority to the Recognized Statistical Agency or Unit in regards to how their positions are allocated among job series, how their staff are selected and trained, and how their budgets are deployed to ensure their ability to meet their four fundamental responsibilities. Additionally, if the head of a Recognized Statistical Agency or Unit identifies a lack of sufficient resources to meet the fundamental responsibilities (

e.g.,

through the agency Capacity Assessment required by Title I of the Evidence Act or other means), the highest organizational unit within which they sit should make efforts to the extent possible to supply the necessary resources. If the highest organizational unit is not able to make the required resources available, it must notify OMB through the annual budget request process and in accordance with 44 U.S.C. 3504(e)(2), which requires the Director of OMB to “ensure that budget proposals of agencies are consistent with system-wide priorities for maintaining and improving the quality of Federal statistics.”

Proposed § 1321.4(c)(3)

seeks to promote greater communication, collaboration, and understanding between the Recognized Statistical Agency or Unit and its parent agency by ensuring that they both have staff that are capable of communicating effectively with each other when the Recognized Statistical Agency or Unit must rely on the parent agency's support functions. As codified in the Evidence Act, Recognized Statistical Agencies and Units have unique responsibilities, which may require unique provision of support services, including information technology (IT), legal services, procurement, budget, human resources, or other core functions of an agency. This section requires that Recognized Statistical Agencies and Units have the necessary staffing resources to have sufficient expertise to communicate the needs of the Recognized Statistical Agency or Unit to its parent agency. Similarly, this section requires that the parent agency has someone that is responsible for understanding the needs of the Recognized Statistical Agency or Unit in each support function that the Recognized Statistical Agency or Unit must rely upon.

Proposed § 1321.4(c)(4)

seeks to promote the ability of Recognized Statistical Agencies and Units to collaborate with their parent agencies to establish joint requirements for services to be shared across the Recognized Statistical Agency or Unit and other agencies (whether within the same organization or across organizations), hereafter “shared services.” OMB recognizes the value of shared services and the efficiencies and cost savings they can generate. In general, OMB encourages Recognized Statistical Agencies and Units and the parent agencies to collaborate to find shared services solutions that meet the requirements of the Recognized Statistical Agencies and Units as well as achieve the goals of efficiency and cost saving behind many of the shared services priorities. This regulation requests comments on two methods of achieving this collaboration.

Proposed § 1321.4(c)(4) Option A

These provisions will minimize the risk that lack of independently controlled shared services poses to the ability of a Recognized Statistical Agency or Unit to meet its fundamental responsibilities. Clear requirements for services are important to successful mission implementation. For example, a Recognized Statistical Agency or Unit must be able to ensure that IT staff who have physical or logical access to stored confidential statistical data adhere to the requirements and be subject to the criminal penalties of CIPSEA 2018 and any other relevant policies and procedures of CIPSEA 2018. Both the Recognized Statistical Agency or Unit and the parent agency shall make good faith efforts to achieve such agreement. If disagreements about shared services arise between the Recognized Statistical Agency or Unit and the parent agency, the head of the Recognized Statistical Agency or Unit and the relevant officials at the parent agency may reach out to OMB through the Administrator of OIRA to discuss and resolve. To reduce the potential for disagreement, the ICSP and the Chief Information Officers (CIO) Council should work together to share best practices and successful arrangements with parent agencies and Recognized Statistical Agencies and Units.

To ensure that shared and consolidated services do not impede a Recognized Statistical Agency or Unit's ability to meet their fundamental responsibilities, the specific requirements for shared services must be clearly developed and communicated with the parent agency in writing, and the parent agency must ensure that the services meet these requirements. If the parent agency is unable to meet these requirements, they must enable the Recognized Statistical Agency or Unit to obtain those services elsewhere.

Recognized Statistical Agencies and Units must be able to enter agreements for service with parent agencies without endangering their ability to uphold their fundamental responsibilities. This provision seeks to minimize the risk that lack of independent control over services used by the Recognized Statistical Agency and Unit poses to the

ability of a Recognized Statistical Agency or Unit to meet its fundamental responsibilities. When services are intended to be used by the Recognized Statistical Agency or Unit and parent agencies (

i.e.,

not solely servicing the Recognized Statistical Agency or Unit), the requirements for those services, such as IT, printing, and contracting, must be established and adhered to jointly by the Recognized Statistical Agencies and Units and parent agencies. For example, a Recognized Statistical Agency or Unit must have the ability to hold an open competition to acquire services that support the mission if the current options do not meet the requirements necessary for the Recognized Statistical Agency or Unit to uphold their fundamental responsibilities.

OMB considered an alternative to this proposed provision that would require the Recognized Statistical Agencies and Units to carry out all functions autonomously. However, this would be inefficient and infeasible for most agencies.

Proposed § 1321.4(c)(4) Option B

provides a flexible process for Recognized Statistical Agencies and Units and their parent agencies, which provides space for those agencies that are working well together to keep their current processes, while also providing an opportunity for agencies to engage in a more structured process. Recognized Statistical Agencies and Units have unique needs that may require specifically defined services or software. This section requires parent agencies to consult with Recognized Statistical Agencies or Units prior to making a binding decision regarding services or software that will directly affect the Recognized Statistical Agency or Unit's ability to meet their fundamental responsibilities. Depending on the Recognized Statistical Agency or Unit, the services may include cloud computing, email servicing, janitorial staffing, or any other type of staffing. For some agencies, a simple conversation between parent agency and Recognized Statistical Agency or Unit will suffice. For others, the parent agency may ask for a written list explicitly defining the requirements needed for the particular service. When necessary or valuable, the Recognized Statistical Agency or Unit can ask that any agreement they reach is reduced to writing, which will provide clarity about the expectations for the provision of the service. In some cases, a parent agency will not be able to meet the needs of the Recognized Statistical Agency or Unit in a manner that ensures the fundamental responsibilities are met. In those cases, the Recognized Statistical Agency or Unit may obtain the service elsewhere and the parent agency will need to either ensure the resources are available for the Recognized Statistical Agency or Unit to meet their needs through other means, or the parent agency will need to notify OMB that the Recognized Statistical Agency or Unit lacks the resources necessary to carry out their fundamental responsibilities.

Proposed § 1321.4(d)

requires that Recognized Statistical Agencies and Units have the appropriate decision-making authority within their agencies for the specified provisions. (Appropriate is described further in the relevant key provisions above for the Recognized Statistical Agency or Unit.) The Evidence Act recognizes assigning authority appropriately when it created the new statutory role of the Chief Data Officer (CDO) in 44 U.S.C. 3520. Section 3520 requires CDOs to delegate their authorities in that section to the heads of Recognized Statistical Agencies and Units when necessary to comply with statistical laws.

44 U.S.C. 3502(23).

These sections of the regulation follow this delegation model in section 3520 to ensure that other agency officials in addition to CDOs are not bearing responsibilities that are given to the heads of Recognized Statistical Agencies and Units in section 3520 and other statistical laws. The intent is to place responsibility and authority with the appropriate agency officials with regard to statistical data and statistical products.

Proposed § 1321.4(e)(1)

directs parent agencies to review their regulations, policies, and practices, and revise any that impede a Recognized Statistical Agency's or Unit's ability to meet its statutory responsibilities because agency regulations, policies, and practices are so central to accomplishing the purpose of section 3563(b). The existing regulations, policies, and practices of parent agencies can affect a Recognized Statistical Agency's or Unit's ability to meet its fundamental responsibilities in several ways. Regulations, policies, and practices that require review and approval from officials external to the Recognized Statistical Agency or Unit for their statistical products, statistical press releases, website appearance and content, and other communications to external stakeholders such as the press and the Congress specifically addressing statistical products or statistical press releases can create perceived and actual risk of interference with the Recognized Statistical Agency or Unit. Actual or perceived undue influence harms the Recognized Statistical Agency or Unit, undermining trust and support for both. Parent agencies must assess their regulations, policies, and practices and revise any that do not enable, support, and facilitate the ability of their Recognized Statistical Agency or Unit to meet their fundamental responsibilities. If disagreements arise between the Recognized Statistical Agency or Unit and the parent agency as to the revision of any parent agency regulation, policy, or practice, the head of the Recognized Statistical Agency or Unit and the relevant officials at the parent agency may reach to OMB through the Administrator of OIRA to discuss and resolve.

One of the most challenging institutional factors affecting the fundamental responsibilities are overlapping or unclear lines of authority between the heads of Recognized Statistical Agencies and Units and other parent agency officials with authorities that directly affect the fundamental responsibilities, such as CDOs, Evaluation Officers, Chief Information Officers (CIOs), Senior Agency Officials for Privacy (SAOPs), and others. Similarly, statistical activities can at times directly affect the responsibilities of these other senior officials. Often these overlapping authorities originate in statute and adjudicating them can be challenging. These regulations identify the decisions and authorities that are key to the ability of the Recognized Statistical Agencies and Units to uphold their fundamental responsibilities, and requires either delegation to or consultation with the head Recognized Statistical Agency or Unit the Recognized Statistical Agency or Unit.

Proposed § 1321.4(e)(2)

requires consideration of the fundamental responsibilities of Recognized Statistical Agencies and Units when parent agencies develop new regulations, policies, and practices that may affect the four fundamental responsibilities. If disagreements arise between the Recognized Statistical Agency or Unit and the parent agency as to any new parent agency regulation, policy, or practice, the head of the Recognized Statistical Agency or Unit and the relevant officials at the parent agency may reach to OMB through the Administrator of OIRA discuss and resolve.

The proliferation of new data sources, uses, and authorities within Federal agencies requires a coordinated and inclusive approach. The agency Data Governance Body required in OMB's M-19-23

Phase 1 Implementation of the

Foundations for Evidence-Based Policymaking Act of 2018: Learning Agendas, Personnel, and Planning Guidance

should be the primary mechanism for coordinating the authorities within an agency for developing data governance policies in a manner that accounts for the four fundamental responsibilities of Recognized Statistical Agencies and Units. OMB M-19-23 implementation guidance articulates the expectation that data governance “responsibility is shared among multiple parties” and that data governance bodies should set agency data policy that “complements, but does not supplant the authority of established positions.”

available at https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf.

Proposed § 1321.4(e)(3)

specifies that timely updates and corrections to statistical products are an important factor in maintaining the trust of the public in the statistics produced and disseminated by Recognized Statistical Agencies and Units. If necessary, parent agencies must support the publication of updates and corrections as quickly as is feasible once they are ready for public release. For example, in cases where the parent agency controls the IT resources required to publish corrections, the parent agency must support the Recognized Statistical Agency or Unit in publishing on its website as quickly as is feasible after the correction is ready for public release.

This also requires each parent agency to develop policies articulating how the parent agency will facilitate the Recognized Statistical Agency's or Unit's ability to meet its responsibility for producing relevant and timely statistical products and make those policies available to the public. These policies should be developed in collaboration with the Recognized Statistical Agency and Unit. This requirement creates additional transparency and accountability to further mitigate the risks posed by reliance on parent agency resources and services.

Proposed § 1321.4(f)

requires OMB to conduct its coordination of Federal information policy in a manner consistent with the Evidence Act and these regulations. The Evidence Act's requirement under 44 U.S.C. 3563(a)(2) for the head of each Federal agency to enable, support, and facilitate Recognized Statistical Agencies and Units in carrying out their fundamental responsibilities extends beyond the Federal agencies that contain a Recognized Statistical Agency or Unit. Notably, OMB has a variety of authorities that directly affect the ability of Recognized Statistical Agencies and Units to meet their responsibilities. This section requires OMB to exercise those authorities in a manner consistent with the Evidence Act requirements and the provisions of this regulation.

This provision identifies specific statutory authorities of OMB found in Chapter 35 of Title 44 of the U.S. Code. These authorities are so central to the objectivity and accuracy of statistical products generated by Recognized Statistical Agencies and Units that the provision requires that they be delegated to the Chief Statistician of the United States, a position in OMB created by section 3504(e)(7) specifically to coordinate and oversee the Federal Statistical System and its efficiency and effectiveness. Section 3504(e)(7) also specifies that the Chief Statistician of the United States must be “a trained and experienced professional statistician.”

This provision does not diminish OMB's coordination and oversight authorities, rather it ensures that the specified authorities are exercised without regard to any particular political or program impacts, as the Chief Statistician of the United States is statutorily required to ensure objectivity and impartiality of information collected for statistical purposes. OMB's role is also important to promote comparability of statistics across the Federal Government, as well as to promote high quality statistics in support of informed decision-making by both public and private statistical data users. The specific authorities delegated to the Chief Statistician of the United States in this provision are:

(1) The review and approval of proposed information collections submitted by Recognized Statistical Agencies and Units under the PRA. OMB review and approval ensures that surveys and other information collections maximize utility while minimizing burden to businesses and the public. Delegating the authority for this function at OMB to the Chief Statistician of the United States is consistent with other provisions in this regulation

whose intent is to provide Recognized Statistical Agencies and Units with the maximum feasible control over the content of their statistical products, while preserving data quality and comparability government-wide. This delegation is also in alignment with the functions in the PRA for the Chief Statistician of the United States to ensure the integrity, objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes, as well as to oversee the implementation of Federal Government-wide statistical standards and guidelines.

See for example §§ 1321.5 and 1321.7.

(2) The statistical policy and coordination functions described in section 3504(e), including the development and implementation of governmentwide policies, principles, standards, and guidelines concerning statistical collection procedures and methods, statistical data classification, statistical information presentation and dissemination, timely release of statistical data, and such statistical data sources as may be required for the administration of Federal programs. Similar to the requirement in proposed § 1321.7(b)(1) which directs agencies to allow Recognized Statistical Agencies and Units to publish statistical products without requiring clearance of the content from offices or officials outside of the Recognized Statistical Agency or Unit, this provision ensures that the Chief Statistician of the United States has the necessary authority within OMB to carry out their functions in an objective, impartial, and timely manner that only takes into account statistical considerations, and without interference.

(3) The coordination and oversight of confidentiality and disclosure policies established in 44 U.S.C. 3562, which requires OMB to develop a process to designate agencies or organizational units as Recognized Statistical Agencies and Units, along with implementation guidance for this process. Because the Chief Statistician of the United States has the responsibility to oversee and coordinate the Recognized Statistical Agencies and Units, the Chief Statistician of the United States must also have an appropriate level of control over the designation process and associated guidance.

(4) The functions assigned to OMB through regulation or policy promulgated under CIPSEA 2018. This would include responsibilities under this regulation, administration of the Standard Application Process, and several other forthcoming regulations.

Proposed § 1321.5—Relevance and Timeliness

The first fundamental responsibility of Recognized Statistical Agencies and Units is to produce and disseminate relevant and timely statistical information. At the core of this responsibility is recognizing the high

value of some statistical products. The Evidence Act entrusts Recognized Statistical Agencies and Units with the responsibility of making judgments about balancing the value of their statistical products against their costs, burden, and risk; it maintains high expectations about Recognized Statistical Agencies' and Units' expertise in and commitment to producing the most relevant statistics. Section 1321.5 articulates these high expectations by requiring Recognized Statistical Agencies and Units to take several actions.

Proposed § 1321.5(a)

requires Recognized Statistical Agencies and Units to produce and disseminate relevant and timely statistical information and for the parent agencies to enable, support, and facilitate the activities necessary to carry out that responsibility. To carry out this responsibility, Recognized Statistical Agencies and Units must be able to determine what statistical products to disseminate and the timing of dissemination. Recognized Statistical Agencies and Units should engage with parent agencies about what statistical products would be most valuable from the perspective of the parent agency and prioritize consideration of how to address those needs.

Proposed § 1321.5(b)

adopts the provision in Directive No. 1 for Recognized Statistical Agencies and Units to “be knowledgeable about the issues and requirements of programs and policies relating to their subject domains. This requires communication and coordination among agencies and within and across Departments when planning information collection and dissemination activities,”

including through the stakeholder engagement process on Learning Agendas, per OMB policy, for example OMB M-19-23 and OMB M-21-27.

“In addition, [Recognized Statistical Agencies and Units] must seek input regularly from the broadest range of private- and public-sector data users.”

It is the core mission of Recognized Statistical Agencies and Units to produce relevant and timely statistical information to inform decision-makers in governments, businesses, institutions, and households.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

Such OMB policies include M-19-23, M-21-27, and Circular A-11 Section 290.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

This regular and continued input from a broad range of users, including from officials in the parent agency, is essential for determining data needs, and Recognized Statistical Agencies and Units must regularly and continually collaborate with other Federal agencies in order to promote a strong Federal Statistical System. Recognized Statistical Agencies and Units must keep abreast of the interests and analytic goals of current and potential new users of statistical products including data assets for research in order to ensure the continued relevance of their statistical products. Moreover, the information sought may often span the mission areas of more than one Recognized Statistical Agency or Unit, necessitating joint engagement of users both within and possibly outside of government. Effective Recognized Statistical Agencies and Units seek opportunities to enhance the value of their statistical products. These collaborations may extend beyond other Recognized Statistical Agencies and Units and may take many forms, including bilateral and multilateral agreements between agencies. Examples of collaborative efforts include two Recognized Statistical Agencies or Units using one collection to satisfy the needs of both, or a system-wide initiative to fund methodological research.

Recognized Statistical Agencies and Units must pay continual attention to changes in policy and the social and economic conditions affecting their programs and subject domains, including through regularly engaging with officials at parent agencies to understand changing and emerging needs across the parent agencies relevant to the statistical products of the Recognized Statistical Agencies and Units. In instances where feedback necessitates planning a new information collection or revising an existing information collection, Recognized Statistical Agencies and Units may need to consult with OMB, as the agency responsible for coordinating statistical activities in the Federal Government. There are numerous ways for Recognized Statistical Agencies and Units to further the collaboration with OMB and other Federal entities, such as participating in the Interagency Council on Statistical Policy (ICSP), participating in multi-agency advisory groups, convening or participating in working groups or workshops with other offices within their respective Federal Agencies or Departments that have similar responsibilities or are stakeholders in their data, or participating in working groups or workshops and engaging with other Recognized Statistical Agencies and Units across the Federal Government that have similar responsibilities or are stakeholders in their data.

Recognized Statistical Agencies and Units must also use formal methods available to them for obtaining input from users on issues relating to their programs, products, and underlying data. This should include a mix of techniques including, but not limited to, convening an advisory or user group, as allowed under relevant law; conducting a user survey; holding user workshops; conducting user focus groups; analyzing internet activity; analyzing data requests including those through the Standard Application Process required under 44 U.S.C. 3583; and providing notification and seeking general input through

Federal Register

notices. Importantly, these activities should be done in compliance with, and leveraging, other relevant authorities.

Parent agencies should support the responsibility to be relevant by facilitating activities that promote ways for the Recognized Statistical Agency or Unit to learn about data user needs. This section also specifies that advisory groups and other means of systematic engagement with interested parties and communities should be part of the process of developing timely and relevant statistical products. As part of that process, the Recognized Statistical Agency or Unit must be allowed to establish and manage these engagements without undue influence from parent agencies on the composition of groups or the content of their agendas or products. However, this does not prevent the Recognized Statistical Agency or Unit from considering input from parent agencies. This requirement reflects practices promoted by the National Academies and the policies in the recent

Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking,

(PM 2021) which reaffirms and builds on the Presidential Memorandum of March 9, 2009 (PM 2009), and the Director of the Office of Science and Technology Policy's Memorandum of December 17, 2010 (OSTP 2010). The PM identifies that scientific information, including statistics, are central to sound policy

development and improvement and equitable delivery of services across government. Because of this, it notes that “[s]cientific findings should never be distorted by political considerations.” Further, it identifies that improper political interference in science “undermines the welfare of the Nation, contributes to systemic inequities and injustices, and violates the trust that the public places in government to best serve its collective interests.”

Office of Mgmt. & Budget, Exec. Office of the President, Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 86 FR 8845 (Feb. 10, 2021),

available at https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf.

As part of the work required by PM 2021, OSTP issued the Framework for Federal Scientific Integrity Policy and Practice (SI Framework) in January 2023.

The Framework affirms that “[strong scientific integrity] policies and effective practices protecting scientific integrity are essential for the development of evidence-based policies.”

The SI Framework makes a distinction between “interference” and “political interference.” Interference is defined as “inappropriate, scientifically unjustified intervention in the conduct, management, communication, or use of science. It includes censorship, suppression, or distortion of scientific or technological findings, data, information, or conclusions; inhibiting scientific independence during clearance and review; scientifically unjustified intervention in research and data collection; and inappropriate engagement or participation in peer review processes or on Federal advisory committees.” Whereas “political interference” is limited to interference “conducted by political officials and/or motivated by political considerations.” Consistent with the SI Framework, this regulation is intended to guard against inappropriate, statistically unjustified interventions by ensuring statistical activities are conducted by statistical agencies without undue influence.

A Framework for Federal Scientific Integrity Policy and Practice (Jan. 2023),

available at https://www.whitehouse.gov/wp-content/uploads/2023/01/01-2023-Framework-for-Federal-Scientific-Integrity-Policy-and-Practice.pdf.

Press Release, OSTP, OSTP Releases Framework for Strengthening Federal Scientific Integrity Policies and Practices (Jan. 12, 2023),

available at https://www.whitehouse.gov/ostp/news-updates/2023/01/12/ostp-releases-framework-for-strengthening-federal-scientific-integrity-policies-and-practices/.

OMB intends this regulation to be complementary to the SI Framework and related principles. This is consistent with the intent of the SI Framework, which provides that “Agencies should consult OMB's implementing guidance, (including OMB M-19-23, OMB M-20-12, and OMB M-21-27, and Statistical Policy Directive 1) to ensure that scientific integrity policies and procedures complement and reinforce related requirements of the Evidence Act.” The SI Framework also acknowledges that in some cases, subordinate agencies may need to “enact stronger policies than their parent [agencies]” and that the parent agencies should not inappropriately influence agency Scientific Integrity matters.

Proposed § 1321.5(c)

requires Recognized Statistical Agencies and Units to minimize the time required between collection of data and release of the statistical products, subject to costs and effects on other dimensions of data quality. The interval between the time to which the data or estimates refer and the date when the data or estimates are released should be as short as practicable to promote the usefulness and value of the data and to remove the appearance of any intervention. Timely release of statistical products promotes the usefulness and value of the data in both government and private decision-making, in measuring economic activity, and for other uses of the data.

OMB policies have long recognized that “prompt release . . . is of vital importance to the proper management of both private and public affairs.”

For example, timeliness is critically important for statistical series used by the government and private sector as indicators of the current condition and direction of the economy, such as the Employment Situation and Gross Domestic Product. Timeliness allows policymakers and the private sector to react promptly to any changes and more quickly implement targeted policies. In support of a prompt release, OMB policies provide direction on how many working days to afford between the collection of data and release of data for principal statistical series, with a current standard of no more than 22 working days for Principal Federal Economic Indicators

and a minimal practicable interval for other Federal statistical data products.

In addition to promoting the usefulness and value of statistical data products, prompt release reduces the likelihood of any unauthorized disclosure or premature release of the data or estimates.

Office of Mgmt. & Budget, Exec. Office of the President, Circular A-91,

Prompt Compilation and Release of Statistical Information

(Feb. 12, 1969).

Office of Mgmt. & Budget, Exec. Office of the President, Statistical Policy Directive on Compilation, Release, and Evaluation of Principal Federal Economic Indicators, 50 FR 38932 (Sept. 25, 1985),

available at https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25.

available at https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf.

In addition, Recognized Statistical Agencies and Units shall follow OMB guidance implementing section 3583, which will include criteria for prompt determinations about granting access to data for evidence building by Recognized Statistical Agencies and Units.

available at https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf.

Proposed § 1321.5(d)

requires each Recognized Statistical Agency or Unit to publish a release calendar on its website noting the date of each regular or recurring statistical product for the upcoming calendar year by no later than the end of the previous calendar year. This timing aligns with the current policy outlined in OMB's Statistical Policy Directive No. 4. For example, a Recognized Statistical Agency or Unit should publish the calendar year 2024's release calendar for all regular or recurring statistical products no later than December 31, 2023. In addition, each Recognized Statistical Agency or Unit shall continue to meet any earlier timelines for publishing the release schedule, as required by other policies such as OMB's Statistical Policy Directive No. 3 for Principal Federal Economic Indicators. For non-regular or non-recurring statistical products, each Recognized Statistical Agency or Unit should publicly announce the date or date range for release as soon as the date or date range is established.

In support of transparency and serving the needs of data users, each Recognized Statistical Agency or Unit shall also designate an office responsible for providing the release schedule and make the contact information for that office readily available to the public through their website, and through other means, as appropriate. Finally, this section requires that each Recognized Statistical Agency or Unit only make changes to the release schedule after it has been announced for special, unforeseen circumstances and requires that those changes be announced publicly as soon as possible and explained fully. As required by other policies, notification to other entities may also be required, including for example notifying OMB of changes to release dates for Principal Federal Economic Indicators per Directive No. 3. For example, in the past, changes to the release dates of some Principal Federal Economic

Indicators have occurred because of Federal Government shutdowns. This requirement to provide a public explanation of such unforeseen circumstances—like a government shutdown—helps prevent the appearance of any partisan intervention.

Publication of release schedules provides data users with a clear expectation of when data are to be released, helping them plan how to use the data. In combination with the timeliness provisions, publication of release dates promotes trust and confidence in the quality and integrity of the data. Publication of release schedules have been required for statistical products in policies as far back as 1969.

Office of Mgmt. & Budget, Exec. Office of the President, Circular A-91,

Prompt Compilation and Release of Statistical Information

(Feb. 12, 1969).

To the extent that parent agencies are involved in dissemination activities, they are responsible for adhering to the schedule as well. This may mean that the Recognized Statistical Agency or Unit engages with the parent agency during the development of the schedule so that both parties are aware of factors that may affect the schedule. This should be done as soon as possible. For parent agencies providing IT services or other support functions that may impact dissemination, they must be cognizant of the schedule to avoid creating barriers for the Recognized Statistical Agency or Unit to keeping their promise to the public to meet their publication deadlines.

Proposed § 1321.6—Credibility and Accuracy

The second fundamental responsibility of Recognized Statistical Agencies and Units is to conduct credible and accurate statistical activities. Establishing credibility about the accuracy of the products produced and the scientifically rigorous processes employed to create them is fundamental to the role of a trusted provider of evidence. The more accurate evidence is, the greater value it has to the decision-maker who uses it.

Any statistical product may contain some level of inaccuracy, and statistics always measure underlying concepts or conditions with varying levels of uncertainty. To confidently act on the evidence, data users need to trust that the accuracy of the statistical products is communicated in a forthright, explicit, and transparent manner. In addition, providing public documentation about the methodologies and processes used by the Recognized Statistical Agency or Unit in developing the statistical product promotes credibility in its methods and processes. Section 1321.6 describes several actions that Recognized Statistical Agencies and Units must take to build and protect their credibility so that they can fill this role effectively.

Proposed § 1321.6(a)(1)

builds on the requirement in

Directive No. 1

for Recognized Statistical Agencies and Units to “apply sound statistical methods to ensure statistical products are accurate” by requiring Recognized Statistical Agencies and Units to develop policies on the quality of their information and their statistical products. The standards must ensure that the data and statistical products are accurate and credible. Recognized Statistical Agencies and Units shall also make those standards available publicly to allow the public to evaluate the quality of the information produced and disseminated.

Directive No. 1 requires Recognized Statistical Agencies “be vigilant in seeking new methods and adopting new technologies to ensure the quality and efficiency of the information they collect and produce.”

Recognized Statistical Agencies and Units shall seek new methods, technologies, techniques, procedures, and data sources to improve the data and information products they publish. This responsibility is especially important in the modern data era. For example, vigilance in seeking new methods and adopting new technologies allowed for the Bureau of the Census Small Area Income and Poverty Estimates Program to release annual estimates of income and poverty for every U.S. county, providing for more granular data by more efficiently using the data collected. In addition, through increased use of satellite data, a newer technology and data source for this purpose, at the National Agricultural Statistics Service, more accurate estimates of crop acreage and production have been produced.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

Proposed § 1321.6(a)(2)

adopts the requirements in

Directive No. 1

that “information about how the data were collected and any known or potential data limitations or sources of error (such as population or market coverage, or sampling, measurement, processing, or modeling errors) should be described to data users so they can evaluate the suitability of the data for a particular purpose” and “(e)rrata identified after data release should be described to data users on an ongoing basis as verified.”

Id.

Recognized Statistical Agencies and Units must produce data that are accurate and credible and that allow data users to make sound decisions based on these Federal data and information products. In order to achieve this, Recognized Statistical Agencies and Units shall use rigorous statistical methodologies as well as regularly assess, and update as appropriate, the data and information products they publicly release against OMB and agency information quality guidelines.

Recognized Statistical Agencies and Units must make information about the quality of their statistical products publicly available to allow users to evaluate fitness for use.

Office of Mgmt. & Budget, Exec Office of the President, M-19-15, Improving Implementation of the Information Quality Act (Apr. 24, 2019),

available at https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf

(“Agencies should provide the public with sufficient documentation about each dataset released to allow data users to determine the fitness of the data for the purpose for which third parties may consider using it.”).

In order for data users to assess the suitability of data products for their purposes, each Recognized Statistical Agency or Unit shall publicly provide descriptions of methods and procedures used to develop statistical products, subject to confidentiality and other statutory requirements, and must use plain language as much as possible. In addition, they shall describe how data were collected and compiled, as well as other aspects of the process to create the statistical product and any known data limitations or sources of error such as, population or market coverage, and/or sampling, measurement, processing, or modeling errors. As such, any data used in generating the statistical product, including third party or administrative records, should be included in the description of methods and procedures for applicable part(s) of the process to create the statistical product. Furthermore, to promote transparency and the ability of data users to assess impacts of changes to the data, any errors in the data identified after release (

i.e.,

errata) must be described to data users on an ongoing basis. Similar requirements have been in place for decades under Directive Nos. 3 and 4 covering any unforeseen revisions to the released data.

Office of Mgmt. & Budget, Exec. Office of the President, Statistical Policy Directive on Compilation, Release, and Evaluation of Principal Federal Economic Indicators, 50 FR 38932 (Sept. 25, 1985),

available at https://archives.federalregister.gov/issue_slice/1985/9/25/38908-

38934.pdf#page=25;

available at https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf.

Proposed § 1321.6(a)(3)

adopts the requirements in

Directive No. 1

for Recognized Statistical Agencies and Units to “achieve [accuracy in their statistical products] by regularly evaluating the data and information products they publicly release against the OMB Government-wide Information Quality Guidelines as well as their individual [Recognized Statistical Agency or Unit's] information quality guidelines” and to “periodically review the techniques and procedures used to implement their information quality guidelines to keep pace with changes in best practices and technology.”

This section further expands on this practice by requiring Recognized Statistical Agencies or Units to comply with all OMB standards and guidance for lifecycle data management practices.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

Proposed § 1321.6(a)(4)

requires that Recognized Statistical Agencies and Units are responsible for ensuring that, when their staff participates in authoring journal articles, authoring professional conference papers and participates in sessions, and peer review activities those activities adhere to current OMB peer review policies

and they should to make these determinations without undue influence from the parent agency.

See, e.g.,

Office of Mgmt. & Budget, Exec Office of the President, M-05-03, Final Information Quality Bulletin for Peer Review (Dec 16, 2004),

available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf.

Proposed § 1321.6(b)(1)

acknowledges that the ability of a Recognized Statistical Agency or Unit to establish, maintain, and communicate the quality of the data they release is key to their ability to conduct credible and accurate statistical activities, free from even the appearance of manipulation. When any parent agency official external to the Recognized Statistical Agency or Unit plays any formal role in reviewing or approving the statistical product or the quality of the statistical product issued by the Recognized Statistical Agency or Unit, it can create an appearance that the Recognized Statistical Agency or Unit does not have sufficient authority and autonomy. Review or approval of the statistical product in any form creates a real risk that a parent agency could attempt to alter or suppress a statistical product by claiming that it fails to meet the quality standards of the parent agency. Accordingly, parent agency regulations, policies, and practices must clearly demonstrate that Recognized Statistical Agencies and Units have sole authority for oversight of the quality of their statistical products.

In some cases, parent agency officials external to a Recognized Statistical Agency or Unit are authorized by statute to oversee the quality or objectivity of statistical products released by the agency.

When another statute overlaps with the statutory provisions of the Evidence Act regarding quality of statistical products by authorizing another agency to make determinations that directly affect a Recognized Statistical Agency's or Unit's ability to carry out its fundamental responsibilities, OMB proposes that the authorized agency official delegate those determinations to the Recognized Statistical Agency or Unit. This proposed approach is similar to the Evidence Act provisions recognizing that the responsibilities of the newly created Chief Data Officers overlap with the responsibilities of the Recognized Statistical Agencies and Units.

44 U.S.C. 3520(d)(1) (“To the extent necessary to comply with statistical laws, the Chief Data Officer of an agency shall delegate any responsibility under subsection (c) to the head of a statistical agency or unit (as defined in section 3561) within the agency.”).

OMB considered an alternative regulatory approach to establish that statistical products disseminated by Recognized Statistical Agencies and Units are not subject to any quality standards of their parent agencies. However, while this approach would accomplish the objective of ensuring that Recognized Statistical Agencies and Units are solely responsible for ensuring the quality of their products, it could suggest that Recognized Statistical Agencies and Units could set less stringent quality standards than their parent agencies, which would not be appropriate. Under this proposed approach, the parent agency's quality standards remain in place, but the Recognized Statistical Agency or Unit is solely responsible for evaluating compliance with those standards.

Proposed § 1321.6(b)(3)

specifies that employees, contractors, and agents of the parent agency or Recognized Statistical Agency or Unit, other than those designated by the releasing Recognized Statistical Agency or Unit head, shall be prohibited from publicly commenting on the content of any data released by the Recognized Statistical Agency or Unit until after the official release of the data. More specifically, for some statistical products such as those covered by Directive No. 3 there are additional requirements, including that no public commentary may be made by employees of the Executive Branch, except for members of the staff of the agency issuing the Principal Federal Economic Indicator who have been designated by the agency head to provide technical explanations of the data, until at least one hour after the official release time. For other statistical products, this provision aligns with the existing Directive No. 4 that contains policies about the independence of policy statements and from the technical data release, as well as provisions for not breaking the data embargo. A prohibition on public comment prior to the official release of the data supports a distinction between the statistical data released and interpretations of the data, including policy interpretations. This distinction is important for the credibility of the Recognized Statistical Agencies and Units and the trust in the accuracy of the data released.

Proposed § 1321.6(b)(4)

requires that parent agencies provide Recognized Statistical Agencies and Units with the necessary authority to determine how statistical products are released. Some Recognized Statistical Agencies and Units rely on components of their parent agencies to maintain websites or other dissemination platforms. In these cases, the parent agency must not alter the content or appearance of a statistical product unless authorized by the head of the Recognized Statistical Agency or Unit. Policy officials at parent agencies may work with the Recognized Statistical Agency or Unit head to ensure that policy pronouncements are not included.

Proposed § 1321.6(b)(5)

requires parent agencies to ensure that Recognized Statistical Agencies and Units are permitted to determine the appropriateness of and how their staff engage in peer review and career development activities such as publication in refereed journals, participation in statistical and other scientific associations, and presentation at professional conferences without review or approval from the parent agency, subject to applicable statutes. However, review of publication or participation may be appropriate where the venue also includes matters of policy, budget, or management. The National Academies' Principles and

Practices

notes that “The long-term credibility of a statistical agency depends on the agency's staff and the culture they build and maintain for quality and professionalism. An agency's subject-matter analysts should be encouraged and have ample opportunity to build networks with analysts in other agencies, academia, the private sector, other countries, and relevant international organizations and to present their work at relevant conferences and in working papers and refereed journal articles.” This provision seeks to ensure the ability of professional staff at the Recognized Statistical Agencies and Units to engage in professional development activities to build their network and skill sets, learn new methodologies to apply to statistical products, and share out the research and development efforts that support the improvements to the Recognized Statistical Agency's or Units' statistical products. The National Academies' Principles and Practices articulates this as important to ensuring the qualifications of technical staff doing the work at Recognized Statistical Agencies and Units.

Nat'l Acad. Sci., Eng'g, & Med.,

Principles and Practices for a Federal Statistical Agency

(7th ed. 2021),

available at https://www.nap.edu/read/25885/.

In doing so, the Recognized Statistical Agencies and Units must ensure that they abide by regulatory, policy, and budgetary requirements that govern these types of activity. Recognized Statistical Agencies and Units that have internal resources to evaluate adherence to applicable laws and policies should use their own resources. However, some Recognized Statistical Agencies and Units are reliant on support functions of the parent agency. In those cases, the parent agency should consider assigning support function staff to report to the head of the Recognized Statistical Agency or Unit for these purposes. Parent agency support functions supporting the Recognized Statistical Agency or Unit would not have approval authority unless the head of the Recognized Statistical Agency or Unit delegates such authority to the support function. Without such delegated authority, the support function should provide to the head of the Recognized Statistical Agency or Unit sufficient information and analysis for the head of the agency to make an informed decision.

Proposed § 1321.7—Objectivity

The third fundamental responsibility of Recognized Statistical Agencies and Units is to conduct objective and impartial statistical activities. Impartial statistics are core to the concept of evidence-based policymaking, which is based on the fundamental practice of using facts to guide policies. To support rigorous decision-making actions, data users need to be able trust that statistical outputs are completely transparent and policy-neutral; they therefore need to rely upon a Recognized Statistical Agency's or Unit's reputation as an impartial source of information. The requirements described in § 1321.7 to implement this responsibility can be divided into two related categories: transparent application of rigorous and best scientific methods to acquire, process, and disseminate data; and protection of the Recognized Statistical Agency's or Unit's ability to control these data processes free from undue influence from outside of the Recognized Statistical Agency or Unit. This section largely adopts several provisions that Recognized Statistical Agencies and Units and parent agencies are already following through their adherence to Directive No. 1.

Proposed § 1321.7(a)(1)

adopts the requirement in Directive No. 1 for Recognized Statistical Agencies and Units to “produce data that are impartial, clear, and complete and are readily perceived as such by the public.”

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

Proposed § 1321.7(a)(2)

adopts the provision in Directive No. 1 that the “objectivity of the information released to the public is maximized by making information available on an equitable, policy-neutral, transparent, timely, and punctual basis.”

Id.

It is essential that all data users (

e.g.,

the general public, researchers, media, and private and non-profit entities) are provided equitable access to data released by Recognized Statistical Agencies and Units. To achieve this, Recognized Statistical Agencies and Units shall provide documentation on dissemination policies with respect to scheduling of statistical product releases, requests for special tabulations, and information on data collection periods. Equitable access should cover a variety of platforms keeping in mind ease of use and that all data users should have access to the data at the same time, with limited exceptions for targeted, specified purposes such as the policies set forth in OMB's Statistical Policy Directive No. 3. Equitable access is meant to provide for delivery in a manner that does not privilege any one person or group over another.

Proposed § 1321.7(a)(3)

adopts the requirement in

Directive No. 1

for Recognized Statistical Agencies and Units to “avoid even the appearance that agency design, collection, processing, editing, compilation, storage, analysis, release, and dissemination processes may be manipulated. The actual and perceived credibility of Federal statistics requires assurance that the selection of candidates for statistical positions is based primarily on their scientific and technical knowledge, credentials, experience, and integrity. Moreover, Recognized Statistical Agencies and Units must maintain and develop in-house staff who are trained in statistical methodology to properly plan, design, and implement core data collection operations and to accurately analyze their data.”

Id.

Proposed § 1321.7(a)(4)

adopts the requirement in

Directive No. 1

for Recognized Statistical Agencies and Units to “function in an environment that is clearly separate and autonomous from the other administrative, regulatory, law enforcement, or policymaking activities within their respective Departments.” In particular, Recognized Statistical Agencies and Units must be able independently determine how to engage in statistical activities, including what information to collect and process, how to secure and protect confidential statistical data, which estimation methods to use, how to disseminate statistical products, and who to hire.

This provision is not meant as a prohibition on parent agencies articulating data needs to Recognized Statistical Agencies and Units; instead, it is meant to clarify that Recognized Statistical Agencies and Units must be allowed to act autonomously in their determinations of how to deliver on those articulated data needs.

Id.

This longstanding policy in Directive No. 1, proposed in regulation in this action, of “functional separation” reinforces the requirement described in § 1321.6(a)(3) to promote the objectivity of data through ensuring integrity of the process for generating data. In addition, functional separation between the Recognized Statistical Agency or Unit and parent agencies is vital to assure the public that collection and handling of all confidential statistical data acquired by a Recognized Statistical Agency or

Unit is consistent with CIPSEA 2018 and other applicable confidentiality statutes. Under CIPSEA 2018, Recognized Statistical Agencies and Units cannot provide access to and must avoid the appearance that individually identifiable data acquired by the Recognized Statistical Agency or Unit for exclusively statistical purposes might be accessed for administrative, regulatory, or law enforcement uses. Access to and use of confidential statistical data managed by a Recognized Statistical Agency or Unit must be limited to authorized employees and agents of the Recognized Statistical Agency or Unit who are legally prohibited from using the confidential statistical data for any nonstatistical purpose. Functional separation bolsters a culture and practice of respect for privacy and protection of confidentiality.

Functional separation is also important for other aspects of the data lifecycle, including determining the type of data to collect, dedication of resources, and dissemination of statistical products. Providing this functional separation to the Recognized Statistical Agencies and Units across the data lifecycle promotes trust in the resulting statistical data. The clear distinctions between the Recognized Statistical Agency or Unit and the parent agencies in this work facilitates public perception and also the reality of those decisions being made by the entity responsible for impartial, objective statistical data, and not by entities with other missions and responsibilities. However, functional separation is not meant as a prohibition on parent agencies articulating data needs to Recognized Statistical Agencies and Units; instead, it is meant to clarify that Recognized Statistical Agencies and Units must be allowed to act autonomously in their determinations of how to deliver on those articulated data needs.

Of course, statistical products issued by the Recognized Statistical Agency or Unit, which do not disclose confidential statistical data, can be used to inform aggregate administrative, regulatory, or law enforcement activity, which aligns with the Recognized Statistical Agency's or Unit's responsibility to produce and disseminate relevant and timely statistical information.

Proposed § 1321.7(b)(1)

prohibits parent agencies, including any other sub-agency, office, or unit outside the Recognized Statistical Agency or Unit, from requiring prior clearance of statistical products, and allows Recognized Statistical Agencies and Units to respond to questions from external stakeholders (

e.g.,

data users, the media, the Congress) about statistical products in a manner that ensures appropriate consultation with the parent agency if responses to questions from external stakeholders relate to policy, budget, or management issues, in addition to matters affecting current or future litigation. On December 17, 2010, the Director of the Office of Science and Technology Policy issued a memorandum that called for Executive departments and agencies to develop policies to “ensure a culture of scientific integrity,” “strengthen the actual and perceived credibility of Government research,” “facilitate the free flow of scientific and technological information, consistent with privacy and classification standards,” and “establish principles for conveying scientific and technological information to the public.”

Office of Mgmt. & Budget, Exec. Office of the President, Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 86 FR 8845 (Feb. 10, 2021),

available at https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf.

At the time, the Recognized Statistical Agencies and Units developed a Statement of Commitment to Scientific Integrity that documents in a single place their response to the OSTP memorandum,

which includes the following statement: “Independence must include the statistical agency having authority for professional decisions over the scope, content, and frequency of data collected; analysis, or publishing of the information; authority to release statistical information without prior clearance; and adherence to predetermined schedules for public release of statistical information.” Because of the fundamental responsibilities which Recognized Statistical Agencies and Units must uphold and their missions, it is critical that there be no perceived or real interference with the dissemination of statistical products or technical responses to questions from external stakeholders.

Principal Statistical Agencies, Statement of Commitment to Scientific Integrity (2010),

available at https://www.census.gov/content/dam/Census/about/about-the-bureau/policies_and_notices/scientificintegrity/Scientific_Integrity_Statement_of_the_Principal_Statistical_Agencies.pdf.

Proposed § 1321.7(b)(2)

requires parent agencies to ensure that Recognized Statistical Agencies and Units are permitted to determine and carry out methods for conducting statistical activities for statistical purposes. Recognized Statistical Agencies and Units must function in an environment that is clearly separate and autonomous from nonstatistical (administrative, regulatory, law enforcement, or policymaking) activities within their respective Federal Agency/Department and must be able to conduct statistical activities autonomously. Perceived or real influence on statistical activities by a non-statistical agency interferes with the objectivity and impartiality responsibilities of the Recognized Statistical Agencies and Units and could diminish trust in the resulting statistical data. Note that this provision is not meant as a prohibition on parent agencies articulating data needs to Recognized Statistical Agencies and Units; instead, it is meant to clarify that Recognized Statistical Agencies and Units must be allowed to act autonomously in their determinations of how to deliver on those articulated data needs.

Proposed § 1321.7(b)(3)

implements the Evidence Act's recognition that the responsibilities and authorities granted to the newly created Chief Data Officers (CDOs) overlap with the authorities and responsibilities essential to a Recognized Statistical Agency's or Unit's ability to meet its fundamental responsibilities. Therefore section 3520(d) requires that, to the extent necessary to comply with statistical laws, the responsibilities granted to CDOs for data governance and lifecycle data management must be delegated in writing to the heads of Recognized Statistical Agencies and Units in order for them to meet their fundamental responsibilities. The Chief Data Officer of the agency shall defer to head of the Recognized Statistical Agency or Unit regarding the necessary delegation of duties with respect to any data acquired, maintained, or disseminated by the agency under applicable statistical law including the authority to certify information collection requests for the Recognized Statistical Agency or Unit under the Paperwork Reduction Act.

See

44 U.S.C. 3520(d)(3); OMB M-19-23, at 24-25 & n.42.

Proposed § 1321.7(b)(4) and (5)

require parent agencies to allow Recognized Statistical Agencies and Units to manage resources, including confidential statistical data, in accordance with their responsibility to conduct objective statistical activities. As outlined above for proposed § 1321.7 (a)(4), the functional separation between Recognized Statistical Agencies and Units and parent agencies for this work fosters public trust in the work of the Recognized Statistical Agencies and Units. In particular, data providers must be able to clearly determine if they are providing data to the Recognized Statistical Agency or Unit or a parent

agency. There must be functional separation between the administrative, regulatory, or law enforcement parent agency staff within the parent agency and the work accomplished by the Recognized Statistical Agency's or Unit's staff creating and supporting statistical products. For example, IT specialists are critical partners in the production of statistical products. Recognized Statistical Agencies' and Units' IT systems are tasked with conducting and analyzing complex calculations, interactions, and interdependencies that must be executed with precision by IT specialists. It is helpful if IT specialists are familiar with the statistical programs they support.

In consideration of the responsibility of objectivity as it relates to the use of shared services (IT, printing, contracting, etc.), there are different acceptable methods available to parent agencies and the Recognized Statistical Agency or Unit. However, methods must adhere to the provisions in this regulation.

As one example, assigning personnel directly to the Recognized Statistical Agency or Unit affords the agency or unit a straight-forward defense against claims that parent agency personnel have unauthorized access to Principal Federal Economic Indicators or other statistical products. When the numbers produced by a Recognized Statistical Agency or Unit are handled from start to finish by the employees/contractors of the Recognized Statistical Agencies or Unit (and not those of the parent agency), the Recognized Statistical Agency or Unit along with their parent agency are able to easily disprove claims of falsified statistical products or inappropriate access to the statistical products. If agency personnel from outside the Recognized Statistical Agency or Unit are allowed access to systems responsible for the production and dissemination of statistical products, they must be subject to the same requirements and standards as employees/contractors of Recognized Statistical Agencies or Units to ensure protection against claims from the public of external manipulation and inappropriate influence.

Another approach is for Recognized Statistical Agencies and Units to enter into written agreements for shared services with parent agencies that include requirements and controls that uphold the fundamental responsibilities. These requirements and controls would include that all personnel providing the shared service are subject to the same requirements and standards as employees and contractors of Recognized Statistical Agencies or Units (

e.g.,

the personnel are designated as “agents” of the Recognized Statistical Agency or Unit). The parent agency adhering to the requirements and controls in the agreement would provide the needed protections to prevent unauthorized access and to ensure the statistical products are protected from external manipulation and inappropriate influence.

Proposed § 1321.8—Confidentiality

The fourth fundamental responsibility of Recognized Statistical Agencies and Units is to protect the trust of information providers by ensuring the confidentiality and exclusive statistical use of their data. Data providers rely upon Recognized Statistical Agencies and Units to honor their commitments and statutory requirements to protect the confidentiality of data providers' information and to ensure that the confidential statistical data are used exclusively for statistical purposes.

The Federal Statistical System is largely dependent on the willingness of individuals; businesses; and Federal, State, local, territorial, and Tribal governments to provide and allow their data to be used for statistical purposes. For example, even the perception that agencies responsible for regulating industries have unauthorized access to data provided to Recognized Statistical Agencies and Units may have a significant impact on survey response rates or on the willingness of a private sector entity to enter into a contract with Recognized Statistical Agency or Unit, and possibly thereby degrade data quality for those Recognized Statistical Agencies and Units and trust from the public.

Directive No. 1

highlights the importance of protecting the confidentiality of responses because it “reduces public confusion, uncertainty, and concern about the treatment and use of reported information” and articulates the importance of the “organizational climate” by which Recognized Statistical Agencies and Units do their work which builds and sustains the trust of the data providers.

available at https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf.

In addition to giving data providers confidence that their confidential statistical data will be protected, these protections also give the general public confidence that the Recognized Statistical Agencies and Units will be responsible stewards of the large amounts of sensitive information with which they are entrusted. The Recognized Statistical Agencies and Units must have the authority to determine the tools, practices, and procedures employed to ensure the effective security, including physical and logical security, of protect the confidentiality of, and provide appropriate access to the confidential statistical data. Such determination includes whether personnel such as economists, statisticians, data scientists, IT specialists, and subject matter experts who access confidential statistical data are to be directly assigned to the Recognized Statistical Agencies and Units.

Proposed § 1321.8(a)(1)

requires Recognized Statistical Agencies and Units to appropriately secure all confidential statistical data, by ensuring that any information systems containing confidential statistical data employ effective barriers to appropriately restrict access. Current OMB guidance

requires Recognized Statistical Agencies and Units to exercise supervision and control over agents authorized to access confidential statistical data. They must rely upon OMB and Department of Homeland Security-issued guidance on implementing the requirements of the Federal Information Security Management Modernization Act of 2014 (FISMA),

as amended and as codified at 44 U.S.C. 3551-3558, and the National Institute of Standards and Technology (NIST) standards

used to identify the level of impact and controls for maintaining the confidentiality, integrity, and availability of all information systems and all information collected or maintained on behalf of a Federal agency or department. If a breach of confidentiality does occur, Recognized Statistical Agencies and Units must follow requirements in law and policy, and establish effective breach reporting procedures in consultation with appropriate agency personnel.

Office of Mgmt. & Budget, Exec. Office of the President, Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA), 72 FR 33362 (June 15, 2007),

available at https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf.

More information is available at

https://www.cisa.gov/federal-information-security-modernization-act.

E. McCallister et al., Nat'l Inst. of Standards & Tech, Guide to Protecting the Confidentiality of Personally Identifiable Information (2010),

available at https://tsapps.nist.gov/publication/get_pdf.cfm?pub_id=904990.

Proposed § 1321.8(a)(2)

requires Recognized Statistical Agencies and Units to ensure that confidential statistical data are not used for any nonstatistical purposes. Efforts to protect against disclosure of confidential statistical data should include instituting a statistical confidentiality disclosure review board, as part of a broader confidentiality program that incorporates training and knowledge sharing, that provides guidance, oversight, and approval for disclosure limitation methods used for publication of data products in a manner that maintains respondent confidentiality.

Ensuring that confidential statistical data is not used for any nonstatistical purpose requires the Recognized Statistical Agency or Unit to have control over who gets access. This requires coordination with the Chief Freedom of Information Act (FOIA) Officer, maintaining supervision over individuals authorized to have access, and employing best practices to minimize the risk of disclosure.

Proposed § 1321.8(a)(3) and (4)

require Recognized Statistical Agencies and Units to communicate policies and procedures for ensuring confidentiality with data providers through a variety of mechanisms in order to maintain public trust.

Proposed § 1321.8(a)(5)

specifies requirements for Recognized Statistical Agencies and Units to maintain and develop access to professional staff that are trained in statistical disclosure limitation and restricted access mechanisms to maximize the protection of the confidential statistical data for the entirety of the data lifecycle. Access to well-trained professional staff are a critical component of Recognized Statistical Agencies' and Units' ability to meet their obligations to maintain confidentiality for respondents and other data providers and participants, and crucial for making sure data are used for exclusively statistical purposes.

Proposed § 1321.8(a)(6)

requires Recognized Statistical Agencies and Units inform employees, contractors, and other approved agents of the Recognized Statistical Agencies and Units of the legal requirements to protect confidential statistical data and the associated penalties of willfully disclosing confidential statistical data in an identifiable manner. This reinforces the commitment to confidentiality by the Recognized Statistical Agencies and Units. Under CIPSEA 2018, all Recognized Statistical Agencies and Units are subject to the criminal penalty in 44 U.S.C. 3572(f), which provides that any officer, employee, or approved agents of the Recognized Statistical Agency or Unit who willfully discloses confidential statistical data in an identifiable form is subject to fines and penalties, which include being guilty of a class E felony and imprisoned for not more than 5 years, or fined not more than $250,000, or both. Other statistical laws also include similar criminal provisions for willful disclosure.

Proposed § 1321.8(b)(1)

requires parent agencies to ensure that the Recognized Statistical Agencies and Units have the sole authority to determine appropriate access to confidential statistical data. Recognized Statistical Agencies and Units often ask individuals and businesses to provide or grant access to information that is private, sensitive, or proprietary. The requirements in this section are designed to protect the trust necessary to facilitate the sharing of sensitive information by ensuring the Recognized Statistical Agencies and Units have the proper authority to protect confidential statistical data.

Proposed § 1321.8(b)(2)

requires parent agencies to implement Federal Information Technology Acquisition Reform Act (FITARA) authorities in a manner consistent with both FITARA and section 3563 and to exercise their authorities in a manner that enables, supports, and facilitates the ability of Recognized Statistical Agencies and Units to meet their fundamental responsibilities. The goal of FITARA is to eliminate duplication and waste in IT acquisition for the Federal Government.

Executive Order 13833: Enhancing the Effectiveness of Agency Chief Information Officers

and the associated implementing regulations from the Office of Personnel Management, seek to enhance the effectiveness of agency CIOs to modernize IT systems, execute IT programs more efficiently, reduce cybersecurity risks, and serve the American people well.

Office of Mgmt. & Budget, Exec. Office of the President, Enhancing the Effectiveness of Agency Chief Information Officers, 83 FR 23345 (May 18, 2018),

available at https://www.federalregister.gov/documents/2018/05/18/2018-10855/enhancing-the-effectiveness-of-agency-chief-information-officers.

These goals are critical to ensuring effective and efficient IT systems across government. Furthermore, these goals, and the authorities granted to agency CIOs under FITARA and associated policies, do not conflict with the goals of the Evidence Act or with the goals of this proposed regulation. Agency CIOs must ensure, however, that the manner in which FITARA authorities are implemented and exercised within agencies is consistent with both FITARA and section 3563 and that they exercise their authorities in a manner that enables, supports, and facilitates the ability of Recognized Statistical Agencies and Units to meet their fundamental responsibilities.

Proposed § 1321.8(b)(3)

seeks to ensure that parent agencies enable, support, and facilitate the ability of the Recognized Statistical Agency or Unit to meet its obligations with respect to protecting the privacy of information provided by respondents within the larger privacy oversight role performed by the parent agency.

Proposed § 1321.8(c)

could serve as a substitute for other sections of this regulation pertaining to the authority to protect confidential statistical data. OMB requests comments both on whether this process would meet the requirements under 44 U.S.C. 3563 as well as which sections of this regulation this process might replace.

Protection of confidential statistical data from unauthorized access and use is an essential authority that Recognized Statistical Agencies and Units must have in order to carry out their fundamental responsibilities. CIPSEA 2018 obligates every Recognized Statistical Agency or Unit to carry out the responsibility to “protect the trust of information providers by ensuring the confidentiality and exclusive statistical use” of confidential statistical data. CIPSEA 2018 also applies penalties for willful unauthorized disclosure of any confidential statistical data in 44 U.S.C. 3572. It is inherent in the responsibility to ensure confidentiality that the Recognized Statistical Agency or Unit use the Congressionally established fines and penalties to protect confidential statistical data and it is inherent in the requirement for parent agencies to enable, support, and facilitate Recognized Statistical Agencies and Units that parent agencies support and enable the use of these fines and penalties.

Authority to determine which individuals are permitted to access confidential statistical data must rest with the head of the Recognized Statistical Agency or Unit so that statutory penalties apply to unauthorized disclosure of identifiable information. To exercise such authority outside of the Recognized Statistical Agency or Unit creates an unintended and harmful loophole to the penalty established in 44 U.S.C. 3572. This regulation would require that the entire agency recognize and uphold the Recognized Statistical Agency or Unit's exclusive authority to determine who has access to confidential statistical data. Importantly, Recognized Statistical

Agencies and Units may have agency-specific statistical laws that provide penalties and those agencies should ensure that all appropriate legal penalties apply to unauthorized disclosure of confidential statistical data.

Additionally, exclusive authority sitting with the Recognized Statistical Agency or Unit to determine access underlies the commitment made to confidential statistical data providers that the data be used for exclusively statistical purposes. Recognized Statistical Agencies and Units have the necessary expertise to determine what constitutes statistical purposes and Recognized Statistical Agencies and Units are statutorily obligated to keep the commitment. To exercise such authority outside of the Recognized Statistical Agency or Unit could undermine data providers' confidence in the Recognized Statistical Agency or Unit's capacity to keep their commitments.

Several sections of this regulation would protect confidential statistical data from unauthorized access by ensuring Recognized Statistical Agencies and Units have the sole authority to make determinations about access to confidential statistical data. For example, § 1321.7(a)(4) provides Recognized Statistical Agencies and Units with exclusive authority for granting access to confidential statistical data, § 1321.7(b)(5) ensures Recognized Statistical Agencies and Units have the appropriate authority regarding access to confidential statistical data, § 1321.8(a)(1) requires Recognized Statistical Agencies and Units to restrict access to confidential statistical data, and § 1321.8(b)(1) requires parent agencies to ensure Recognized Statistical Agencies and Units have sole authority to provide access to confidential statistical data by delegating any other authority to the Recognized Statistical Agency or Unit.

Paragraph (c) provides a more detailed process to achieve the same goal. Some Recognized Statistical Agencies or Units have sufficient resources to maintain their own IT staff, equipment, and software. In those cases, it is likely unnecessary for parent agency officials to access confidential statistical data and a parent agency would not need to do anything other than to ensure that those resources are maintained and ensure that parent agency employees who are not designated as agents understand they are not permitted to access confidential statistical data. However, some Recognized Statistical Agencies and Units have a greater reliance on their parent agencies' IT infrastructure. In those cases where Recognized Statistical Agencies and Units meet their obligations through reliance on parent agency officials managing one or more aspects of IT security and such officials need to access confidential statistical data for the limited purposes of protecting that data from unauthorized access or otherwise providing support services for statistical activities, this proposed section lays out a process wherein the Recognized Statistical Agency or Unit maintains authority to determine the standards for accessing the data and authority to designate for who can access the data. The process also provides transparency regarding the standards for access and requires a coordinated effort between the Recognized Statistical Agency or Unit and the parent agency to ensure that the parent agency has the access it needs to meet its responsibilities.

Paragraph (c) makes it clear the responsibility to ensure that the data is protected from unauthorized access stretches across the entire agency—including the responsibility to protect the data from unauthorized access within the agency itself. The regulation would not alter any other requirements for any agency officials to ensure that data is protected from unauthorized access. Instead, it would simply clarify that, given the sensitive nature of confidential statistical data and the obligation to protect against disclosure and nonstatistical use, the data receives an extra layer of security by requiring any person outside of the Recognized Statistical Agency or Unit to be designated by the Recognized Statistical Agency or Unit as an agent of the Recognized Statistical Agency or Unit should they require access to confidential statistical data. This designation of agents and limitation on access to anyone who is not an employee or agent of the Recognized Statistical Agency or Unit is necessary so that everyone accessing the confidential statistical data is subject to the same penalty for unauthorized disclosure, which is another layer of security against misuse of the data. A requirement to be authorized to access confidential data is not unique to confidential statistical data. However, this process also ensures that if there are disagreements or challenges the head of the agency and the Chief Statistician of the United States are available and involved in resolving the conflict.

Proposed § 1321.9—Compliance Review

This regulation seeks to ensure the efficiency and effectiveness of Recognized Statistical Agencies and Units, as well as the integrity, objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes. History has shown that the ability of Federal agencies to meet the requirements and responsibilities described in the previous sections will depend on the creation of institutional processes that result in meaningful incentives for compliance.

This proposal offers three options to address the need for a compliance review:

(A)

ICSP Review:

Option A would direct the ICSP to form a Peer Review Committee, which will ass

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