Home/Federal/Federal Register/2023-17664

Proposed Rule2023-17664

Fundamental Responsibilities of Recognized Statistical Agencies and Units

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

August 18, 2023

Issuing agencies

Management and Budget Office

Abstract

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.

Full Text

<html>
<head>
<title>Federal Register, Volume 88 Issue 159 (Friday, August 18, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 159 (Friday, August 18, 2023)]
[Proposed Rules]
[Pages 56708-56744]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17664]

[[Page 56707]]

Vol. 88

Friday,

No. 159

August 18, 2023

Part II

Office of Management and Budget

-----------------------------------------------------------------------

5 CFR Part 1321

Fundamental Responsibilities of Recognized Statistical Agencies and
Units; Proposed Rule

Federal Register / Vol. 88, No. 159 / Friday, August 18, 2023 /
Proposed Rules

[[Page 56708]]

-----------------------------------------------------------------------

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: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for sending comments.
* Email: <a href="/cdn-cgi/l/email-protection#085c7a7d7b7c5a6d6f7d64697c6167664867656a266d6778266f677e"><span class="__cf_email__" data-cfemail="c692b4b3b5b294a3a1b3aaa7b2afa9a886a9aba4e8a3a9b6e8a1a9b0">[email&#160;protected]</span></a>. 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
<a href="http://www.regulations.gov">www.regulations.gov</a>. 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,
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Kerrie Leslie, 202-395-5898,
<a href="/cdn-cgi/l/email-protection#603412151314320507150c0114090f0e200f0d024e050f104e070f16"><span class="__cf_email__" data-cfemail="3b6f494e484f695e5c4e575a4f5254557b545659155e544b155c544d">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

A. Executive Summary

The Foundations for Evidence-Based Policymaking Act of 2018
(Evidence Act) became law on January 14, 2019.\1\ The Evidence Act
seeks to ``advance evidence-building functions in the Federal
government by improving access to data and expanding evaluation
capacity.'' \2\ 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 \3\ 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:
---------------------------------------------------------------------------

\1\ Foundations for Evidence-Based Policymaking Act of 2018,
Public Law 115-435, 132 Stat. 5529 (2019), available at <a href="https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf">https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf</a>.
\2\ Foundations for Evidence-Based Policymaking Act of 2017, H.
Rep. No. 115-411 (2017), available at <a href="https://www.congress.gov/congressional-report/115th-congress/house-report/411">https://www.congress.gov/congressional-report/115th-congress/house-report/411</a>.
\3\ E-Government Act of 2002, Public Law 107-347, title V; 116
Stat. 2962 (2002), available at <a href="https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf">https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf</a>.
---------------------------------------------------------------------------

(A) produce and disseminate relevant and timely statistical
information;
(B) conduct credible and accurate statistical activities;
(C) conduct objective statistical activities; and
(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

[[Page 56709]]

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.\4\ 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.
---------------------------------------------------------------------------

\4\ Carroll Wright, Comm'r of Labor, The History and Growth of
the United States Census, S. Doc. No. 194 (1900), available at
<a href="https://www.census.gov/history/pdf/wright-hunt.pdf">https://www.census.gov/history/pdf/wright-hunt.pdf</a>.
---------------------------------------------------------------------------

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 \5\ 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.
---------------------------------------------------------------------------

\5\ 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,\6\ 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.\7\ 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.
---------------------------------------------------------------------------

\6\ 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)'').
\7\ More information on the history of OMB ``recognition'' is
available later.
---------------------------------------------------------------------------

Approximately 100 other statistical programs.\8\ 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.
---------------------------------------------------------------------------

\8\ Office of Mgmt. & Budget, Exec Office of the President,
Statistical Programs of the United States Government: Fiscal Years
2019/2020 (2020), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2020/12/statistical-programs-20192020.pdf">https://www.whitehouse.gov/wp-content/uploads/2020/12/statistical-programs-20192020.pdf</a>.
---------------------------------------------------------------------------

Twenty-Four Statistical Officials. Pursuant to the Evidence Act,
each Chief Financial Officers Act (CFO Act) agency \9\ 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.\10\
---------------------------------------------------------------------------

\9\ 31 U.S.C. 901.
\10\ 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 <a href="https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf">https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf</a>. 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 \11\ 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.\12\ 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

[[Page 56710]]

are members.\13\ 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.
---------------------------------------------------------------------------

\11\ 44 U.S.C. 3504(e).
\12\ Id.
\13\ 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).\14\ 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.\15\ 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.\16\ Since then, two more statistical agencies or
units have been recognized by OMB.\17\ CIPSEA 2018 reauthorized the OMB
authority to make this determination under section 3562.\18\ 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.
---------------------------------------------------------------------------

\14\ Office of Mgmt. & Budget, Exec. Office of the President,
Order Providing for the Confidentiality of Statistical Information,
62 FR 35044 (1997), available at <a href="https://www.govinfo.gov/content/pkg/FR-1997-06-27/pdf/FR-1997-06-27.pdf">https://www.govinfo.gov/content/pkg/FR-1997-06-27/pdf/FR-1997-06-27.pdf</a>.
\15\ 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.
\16\ 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
<a href="https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf">https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf</a>.
\17\ See Statistical Policy Directive No. 1: Fundamental
Responsibilities of Federal Statistical Agencies and Recognized
Statistical Units, 79 FR 71610 (Dec. 2, 2014), available at <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
\18\ 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
------------------------------------------------------------------------
Principal
Recognized statistical agency Highest level statistical
or unit organization agency
------------------------------------------------------------------------
Bureau of Economic Analysis.... Department of Commerce. X
Bureau of Justice Statistics... Department of Justice.. X
Bureau of Labor Statistics..... Department of Labor.... X
Bureau of the Census........... Department of Commerce. X
Bureau of Transportation Department of X
Statistics. Transportation.
Center for Behavioral Health Department of Health
Statistics and Quality. and Human Services.
Economic Research Service...... Department of X
Agriculture.
Energy Information Department of Energy... X
Administration.
Microeconomic Surveys Unit..... Board of Directors of
the Federal Reserve
System.
National Agricultural Department of X
Statistics Service. Agriculture.
National Animal Health Department of
Monitoring System. Agriculture.
National Center for Education Department of Education X
Statistics.
National Center for Health Department of Health X
Statistics. and Human Services.
National Center for Science and National Science X
Engineering Statistics. Foundation.
Office of Research, Evaluation, Social Security X
and Statistics. Administration.
Statistics of Income Division.. Department of the X
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,

[[Page 56711]]

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 \19\ to the recommendations
from the final report of the Commission on Evidence-Based Policymaking
(CEP),\20\ established in 2016 pursuant to the Evidence-Based
Policymaking Commission Act of 2016.\21\ 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.
---------------------------------------------------------------------------

\19\ Foundations for Evidence-Based Policymaking Act of 2018,
Public Law 115-435, 132 Stat. 5529 (2019), available at <a href="https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf">https://www.congress.gov/115/plaws/publ435/PLAW-115publ435.pdf</a>.
\20\ Comm'n Evidence-Based Policymaking, The Promise of
Evidence-Based Policymaking (2017), available at <a href="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">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</a>.
\21\ Evidence-Based Policymaking Commission Act of 2016, Public
Law 114-140, 130 Stat. 317 (2016), available at <a href="https://www.congress.gov/bill/114th-congress/house-bill/1831/text">https://www.congress.gov/bill/114th-congress/house-bill/1831/text</a>.
---------------------------------------------------------------------------

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 \22\ to promote coordination and
collaboration on evidence issues across the entire agency. It also
updated and expanded CIPSEA 2002.\23\ 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.\24\ CIPSEA 2018 also:
---------------------------------------------------------------------------

\22\ 5 U.S.C. 314 (statistical official); 5 U.S.C. 313
(Evaluation Officer); 44 U.S.C. 3520 (Chief Data Officer).
\23\ E-Government Act of 2002, Public Law 107-347, title V; 116
Stat. 2962 (2002), available at <a href="https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf">https://www.congress.gov/107/plaws/publ347/PLAW-107publ347.pdf</a>.
\24\ 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);

[[Page 56712]]

(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.\25\
---------------------------------------------------------------------------

\25\ 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
<a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf</a>.
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.\26\ The purpose of this coordination is to ensure the
integrity, objectivity, impartiality, utility, and confidentiality of
information collected for statistical purposes.
---------------------------------------------------------------------------

\26\ 44 U.S.C. 3504(e)(7).
---------------------------------------------------------------------------

Privacy Act of 1974 (Privacy Act). The Privacy Act \27\ 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.'' \28\ 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.'' \29\
---------------------------------------------------------------------------

\27\ 5 U.S.C. 552a.
\28\ 5 U.S.C. 55a(b)(5), (k)(4).
\29\ 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,\30\
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 \31\ 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 \32\ 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 \33\ 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 <a href="http://www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/">www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/</a>.
---------------------------------------------------------------------------

\30\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
\31\ Office of Mgmt. & Budget, Exec. Office of the President,
Standards and Guidelines for Statistical Surveys, 71 FR 55522 (Sept.
22, 2006), available at <a href="https://www.govinfo.gov/content/pkg/FR-2006-09-22/pdf/06-8044.pdf">https://www.govinfo.gov/content/pkg/FR-2006-09-22/pdf/06-8044.pdf</a>.
\32\ 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 <a href="https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25">https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25</a>.
\33\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf">https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf</a>.
---------------------------------------------------------------------------

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: \34\
---------------------------------------------------------------------------

\34\ Nat'l Acad. Sci., Eng'g, & Med., Principles and Practices
for a Federal Statistical Agency (7th ed. 2021), available at
<a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>.

--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.\35\

[[Page 56713]]

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

\35\ 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 \36\ 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 \37\ 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.
---------------------------------------------------------------------------

\36\ United Nations General Assembly, Fundamental Principles of
Official Statistics (adopted Jan. 29, 2014), available at <a href="https://unstats.un.org/fpos/">https://unstats.un.org/fpos/</a>.
\37\ European Statistical System Committee, European Statistics
Code of Practice for the National Statistical Authorities and
Eurostat (adopted Nov. 16, 2017), available at <a href="https://ec.europa.eu/eurostat/web/products-catalogues/-/KS-02-18-142">https://ec.europa.eu/eurostat/web/products-catalogues/-/KS-02-18-142</a>.
---------------------------------------------------------------------------

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.\38\ 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.
---------------------------------------------------------------------------

\38\ See Foundations for Evidence-Based Policymaking Act of
2017, H. Rep. No. 115-411 (2017), available at <a href="https://www.congress.gov/congressional-report/115th-congress/house-report/411">https://www.congress.gov/congressional-report/115th-congress/house-report/411</a> (quoting Statistical Directive No. 1); see also Nat'l Acad.
Sci., Eng'g, & Med., Principles and Practices for a Federal
Statistical Agency (7th ed. 2021), available at <a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>(articulating the importance of independence for
Recognized Statistical Agencies and Units in meeting their
responsibilities) and Comm'n Evidence-Based Policymaking, The
Promise of Evidence-Based Policymaking (2017), available at <a href="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">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</a> (noting the importance of
independence).
---------------------------------------------------------------------------

In addition, because CIPSEA 2018 contemplates a common framework
for protecting statistical data, acquiring administrative/program data,
and disseminating statistical data securely, it is important to ensure
appropriate interagency engagement and coordination to ensure
implementation is successful across the board. This proposed regulation
seeks to lay the foundation for advancing this common framework, and
the organizational structure of agencies and departments in relation to
the 16 Recognized Statistical Agencies and Units is important for
successful implementation of this proposed regulation. Currently, each
of the 16 Recognized Statistical Agencies and Units is part of a larger
organization, with varying reporting structures. The heads of some of
the Recognized Statistical Agencies and Units are appointed by the
President (either with or without Senate confirmation), while others
are senior career officials. Some heads of Recognized Statistical
Agencies and Units report directly to the Secretary, or equivalent
head, of their highest organizational level, such as the Department,
while others have several intervening layers of reporting within their
organizations. Throughout this regulation, the term ``parent agency''
means every organizational level of an agency, including sub-agencies,
offices, components, or units, as well as any organizational units that
contain a Recognized Statistical Agency or Unit, but the term does not
include the Recognized Statistical Agency or Unit itself.
A different provision of CIPSEA 2018 requires OMB to issue guidance
on the requirements and processes for seeking and obtaining OMB
``recognition'' as a new Recognized Statistical Agency or Unit. That
guidance is forthcoming; however, it should be noted that, at a
minimum, agencies and units seeking this designation, along with their
parent agencies, will be required to demonstrate a commitment to
upholding the requirements in these regulations. This is particularly
relevant to those agencies and units whose activities are predominantly
the design, collection, processing, editing, compiling, storage,
analysis, release, and dissemination of information for statistical
purposes, but which have not been formally ``recognized'' by OMB as
Recognized Statistical Agencies or Units. Those agencies and units
should look to these proposed regulations, along with OMB's Statistical
Policy Directives and the 2021 Principles and Practices,\39\ for
direction and best practices.
---------------------------------------------------------------------------

\39\ Nat'l Acad. Sci., Eng'g, & Med., Principles and Practices
for a Federal Statistical Agency (7th ed. 2021), available at
<a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>.
---------------------------------------------------------------------------

E. Discussion of Key Provisions

This section provides an explanation of the proposed regulations.
As a general matter, OMB has followed the approach of adhering to the
wider principles and practices contained in Directive No. 1, which
contained both the four fundamental principles now codified in the
CIPSEA 2018 and gave Recognized Statistical Agencies and Units more
specific guidance on how to adhere to those principles. Therefore, in
many cases, most of the particular regulatory provisions described in
more detail below are drawn directly or slightly adapted from
provisions in Directive No. 1. Additional context can be found in the
Federal Register Notice announcing OMB's adoption of Directive No.
1.\40\ After nearly a decade of the Federal Government operating under
Directive No. 1, experience has clarified the fundamental
responsibilities and how to ensure Recognized Statistical Agencies and
Units are able to carry out those

[[Page 56714]]

responsibilities. In consideration of those experiences, the draft
regulation seeks to address challenges, issues, or emerging challenges
or issues to create a lasting and effective policy. While there is some
overlap between this regulation and Directive No. 1, the intent of this
regulation is to address additional ways outside of the current
language in Directive No. 1, for example, ensuring Recognized
Statistical Agencies and Units have their own websites and have an
opportunity to present their own budget requests, to ensure that
statistical agencies are able to meet their fundamental
responsibilities.
---------------------------------------------------------------------------

\40\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

OMB invites comments on any and all aspects of our proposed
approach to this rule; in particular, whether it thoroughly and
adequately meets our responsibilities under 44 U.S.C. 3563 to direct
Recognized Statistical Agencies and Units in meeting their fundamental
responsibilities, and agencies in enabling, supporting, and
facilitating the Recognized Statistical Agencies and Units in meeting
their fundamental responsibilities.
Additionally, OMB requests comments on the regulatory options
proposed and described below, as well as these following questions:
(1) How can OMB best articulate the known and expected benefits of
this regulatory action?
(2) Under 44 U.S.C. 3563, all agencies are required to enable,
support, and facilitate Recognized Statistical Agencies and Units.
However, agencies that are in the reporting structure of Recognized
Statistical Agencies and Units will likely provide the majority of the
support. Under the current proposed regulation, all agencies,
components, and units are included under the definition of parent
agency.
If OMB were to create a distinction between agencies, what should
that distinction be? For example, should a distinction be considered
for those in the reporting structure of the Recognized Statistical
Agency or Unit? Should a distinction be considered for agencies which
do not contain a Recognized Statistical Agency or Unit?
a. How should OMB draw this distinction?
b. For what support functions should each distinct group be
responsible?
c. How should each distinct group best enable, support, and
facilitate Recognized Statistical Agencies and Units?
(3) OMB seeks comment on how, as it relates to the implementation
of the term ``parent agency'', agencies' unique legal and regulatory
responsibilities in relation to the Recognized Statistical Agency or
Unit should be considered in this regulation.
(4) Under Proposed Section 1321.9 Compliance Review, OMB proposes
three options for consideration as a means for providing accountability
for both the Recognized Statistical Agencies and Units and the parent
agencies in adhering to the proposed regulation. OMB is interested in
whether those options would be adequate accountability measures for
Recognized Statistical Agencies and Units or if others should be
considered.
a. Does this regulation provide adequate accountability measures
for Recognized Statistical Agencies and Units to ensure they are
meeting their fundamental responsibilities? If additional
accountability measures are needed, what would additional
accountability measures look like?
b. Does this regulation provide adequate accountability measures
for parent agencies to ensure they are enabling, supporting, and
facilitating Recognized Statistical Agencies and Units in meeting their
fundamental responsibilities? If additional accountability measures are
needed, what would additional accountability measures look like?

Proposed Sec. 1321.1--Purpose

Timely, accurate, objective, and relevant statistical data are the
bedrock of evidence-based decision-making. Recognized Statistical
Agencies and Units play a vital role in generating data that citizens,
businesses, and governments need to make informed decisions. The
foundation of these programs is the public's trust; trust in the
accuracy and objectivity of the data and trust that any data provided
to a Recognized Statistical Agency or Unit under an obligation to keep
those data confidential will be kept confidential and will only be used
for statistical purposes. OMB is issuing this proposed regulation to
implement 44 U.S.C. 3563, which is a set of the requirements under
CIPSEA 2018 that will strengthen and support the quality of Federal
statistical information.

Proposed Sec. 1321.2--Definitions

This proposed regulation defines terms used in the regulation.
Definitions were aligned with existing statute and regulation wherever
possible, and information about those terms and their alignment is
discussed here:
The definitions of ``accurate'', ``confidentiality'',
``objective'', and ``relevant'' come from 44 U.S.C. 3563(d).
The definition of ``agency'' includes agencies as defined in 31
U.S.C. 102 and as defined in 44 U.S.C. 3502.
The definition of ``confidential statistical data'' includes all
data acquired for exclusively statistical purposes and under an
obligation of confidentiality. Under 44 U.S.C. 3563(a)(1)(D),
Recognized Statistical Agencies and Units are responsible for
``ensuring the confidentiality and exclusive statistical use'' of the
information they acquire. This proposed definition is consistent with
the statutory definition of confidentiality under 44 U.S.C. 3563(d)(2),
which refers to ``an obligation not to disclose that information to an
unauthorized party'' and the statutory language in 44 U.S.C. 3572(f)
which provides a penalty for the disclosure of information acquired
``for exclusively statistical purposes'' the disclosure of which is
prohibited under Subchapter III of Chapter 35 of Title 44, United
States Code.
The definition of ``dissemination'' is from OMB Circular A-130.
The definition of ``identifiable form'' comes from 44 U.S.C. 3561.
For this proposed regulation, ``individual or entity'' is used in place
of ``respondent'' in an effort to include individuals or entities who
may not directly provide their information to a Recognized Statistical
Agency or Unit, but whose information was provided by another
individual or entity or could be determined based on other information
available.
The definitions of ``nonstatistical purpose'', ``respondent'',
``statistical activities'', and ``statistical purpose'' also come from
44 U.S.C. 3561.
The definition of ``information'' is from the OMB Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal Agencies.\41\
---------------------------------------------------------------------------

\41\ Office of Mgmt. & Budget, Exec. Office of the President,
Guidelines for Ensuring and Maximizing the Quality, Objectivity,
Utility, and Integrity of Information Disseminated by Federal
Agencies; Republication, 67 FR 8452 (Feb. 22, 2002), available at
<a href="https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf">https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf</a>.
---------------------------------------------------------------------------

The definitions of ``information system'' and ``statistical laws''
come from 44 U.S.C. 3502.
The definition of ``parent agency'' includes the full
organizational structure, including every organizational level
(including sub-agencies, offices, components, and units within the
highest organizational level such as the Department), as well as the
highest organizational level such as the Department, including any
agency and aside from the Recognized Statistical Agency or Unit, and
any organizational units that contain the Recognized Statistical Agency
or Unit.

[[Page 56715]]

The definition of ``statistical press release'' comes from OMB
Statistical Policy Directive No. 4.
The definition of ``statistical products'' also comes from OMB
Statistical Policy Directive No. 4,\42\ except there is an additional
clarification that statistical products take many different forms
including both printed and electronic form. It is important from a
confidentiality perspective that statistical products based on
confidential statistical data not identify an individual or entity.
Statistical products may be based on confidential statistical data or
other data obtained by a Recognized Statistical Agency or Unit. In
addition, both printed and electronic forms of statistical products are
included to clarify that statistical products can be issued in
different ways as technology and society advance and change.
---------------------------------------------------------------------------

\42\ Statistical Policy Directive No. 4 defines ``statistical
products'' as such: ``Statistical products are, generally,
information dissemination products that are published or otherwise
made available for public use that describe, estimate, forecast, or
analyze the characteristics of groups, customarily without
identifying the persons, organizations, or individual data
observations that comprise such groups. Statistical products include
general-purpose tabulations, analyses, projections, forecasts, or
other statistical reports.''
---------------------------------------------------------------------------

The definition of ``timeliness'' (or ``timely'') is meant to
capture both the release happening at the expected time, as well as the
release occurring at a reasonable time following the event being
measured.

Proposed Sec. 1321.3--General Provisions

This section describes the scope of the proposed regulations, the
impact on existing OMB guidance and policies, including that these
proposed regulations if finalized would supersede any provisions within
Statistical Policy Directives that conflict, and the parties
responsible for carrying out these proposed regulations.

Proposed Sec. 1321.4--The Four Fundamental Responsibilities

To operate efficiently and effectively, the Nation relies on the
flow of objective, credible statistics to support the decisions of
individuals, households, governments, educational institutions,
businesses, advocacy groups, civic organizations, and other parts and
members of society. Any loss of trust in the accuracy, objectivity, or
integrity of the Federal Statistical System and its products has the
potential to cause uncertainty about the validity of measures the
Nation uses to monitor and assess its performance, progress, and needs,
as well as undermine the public's confidence in the information
released by the Government. Consistent with well-established
principles, such trust can be maintained by ensuring proper authority
and autonomy of Recognized Statistical Agencies and Units and ensuring
that Recognized Statistical Agencies and Units have appropriate and
adequate authority in making, or consulting with appropriate officials
on, decisions that could impact their ability to uphold their
fundamental responsibilities. Maintaining trust in the actions of
Recognized Statistical Agencies and Units is even more critical given
their expanded authorities for accessing data and responsibilities for
facilitating evidence building in the Evidence Act.
The four fundamental responsibilities, taken from Directive No. 1
and codified in 44 U.S.C. 3563(a)(1), protect and enhance public trust
in the Recognized Statistical Agencies and Units, which bolsters public
trust in their statistical products. The four fundamental
responsibilities are:
(1) to produce and disseminate relevant and timely statistical
information;
(2) conduct credible and accurate statistical activities;
(3) conduct objective statistical activities; and
(4) protect the trust of information providers by ensuring the
confidentiality and exclusive statistical use of their responses.
Proposed Sec. 1321.4(a) identifies that Recognized Statistical
Agencies and Units carry the responsibility of fulfilling the
fundamental responsibilities and parent agencies play a key role in
supporting the ability of the Recognized Statistical Agencies and Units
to meet their responsibilities. This is particularly true for the
parent agencies that host a Recognized Statistical Agency or Unit.
Section 3563(b) states that: ``The head of each agency shall enable,
support, and facilitate statistical agencies or units in carrying out
the responsibilities described in subsection (a)(1).''
Parent agencies must exercise their authorities in a way that
allows Recognized Statistical Agencies and Units to meet their
fundamental responsibilities. This recognizes the importance of a broad
commitment across all government agencies to support statistical
agencies and units can be found in a wide array of domestic and
international policies and statements, including seven editions of the
National Academies' Principles and Practices for a Federal Statistical
Agency,\43\ Directive No. 1, the European Statistics Code of
Practice,\44\ and the United Nation's Fundamental Principles for
Official Statistics,\45\ for which the United States is a signatory.
---------------------------------------------------------------------------

\43\ Nat'l Acad. Sci., Eng'g, & Med., Principles and Practices
for a Federal Statistical Agency (7th ed. 2021), available at
<a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>.
\44\ European Statistical System Committee, European Statistics
Code of Practice for the National Statistical Authorities and
Eurostat (adopted November 16, 2017), available at <a href="https://ec.europa.eu/eurostat/web/products-catalogues/-/KS-02-18-142">https://ec.europa.eu/eurostat/web/products-catalogues/-/KS-02-18-142</a>.
\45\ United Nations General Assembly, Fundamental Principles of
Official Statistics (adopted Jan. 29, 2014), available at <a href="https://unstats.un.org/fpos/">https://unstats.un.org/fpos/</a>.
---------------------------------------------------------------------------

These proposed regulations take no specific position with respect
to the placement of a Recognized Statistical Agency or Unit within the
organizational structure of the highest organizational unit within
which they sit. The Evidence Act, however, provides some direction in
this space: (1) by giving an explicitly agency/Department-wide role to
the heads of statistical agencies as Statistical Officials to champion,
advise, and lead on statistical policy and methods, data quality, and
confidentiality; \46\ (2) by requiring delegation to the head of a
Recognized Statistical Agency or Unit of any Chief Data Officer
function needed to ensure compliance with statistical law; \47\ and (3)
by requiring agencies to ensure that their practices, including
organizational placement, ``enable, support, and facilitate'' the
Recognized Statistical Agencies and Units' ability to comply with
fundamental responsibilities.\48\
---------------------------------------------------------------------------

\46\ 5 U.S.C. 314; see also 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 <a href="https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf">https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf</a>.
\47\ 44 U.S.C. 3520(d)(1).
\48\ 44 U.S.C. 3563(a)(2), 44 U.S.C. 3563(b).
---------------------------------------------------------------------------

Proposed Sec. 1321.4(b) requires each Recognized Statistical
Agency or Unit to maintain a distinctive, outward-facing website \49\
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

[[Page 56716]]

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

\49\ Agencies should follow OMB policies, including M-23-10,
when issuing new websites. See <a href="https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-10-DOTGOV-Act-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-10-DOTGOV-Act-Guidance.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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 Sec. 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.'' \50\ 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.
---------------------------------------------------------------------------

\50\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

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,\51\ 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.
---------------------------------------------------------------------------

\51\ 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.\52\ 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.
---------------------------------------------------------------------------

\52\ 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 <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-03.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-03.pdf</a>.
---------------------------------------------------------------------------

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.\53\
---------------------------------------------------------------------------

\53\ Id.
---------------------------------------------------------------------------

Proposed Sec. 1321.4(c)(1) requires each Recognized Statistical
Agency or Unit to produce a budget request \54\ specific to

[[Page 56717]]

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.''
---------------------------------------------------------------------------

\54\ 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 56718]]

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 Sec. 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 Sec. 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.\55\
---------------------------------------------------------------------------

\55\ 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 Sec. 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 Sec. 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

[[Page 56719]]

Foundations for Evidence-Based Policymaking Act of 2018: Learning
Agendas, Personnel, and Planning Guidance \56\ 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.''
---------------------------------------------------------------------------

\56\ 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 <a href="https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf">https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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 Sec. 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 \57\ 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.
---------------------------------------------------------------------------

\57\ See for example Sec. Sec. 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 Sec. 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 Sec. 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

[[Page 56720]]

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 Sec. 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 Sec. 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,'' \58\ including
through the stakeholder engagement process on Learning Agendas, per OMB
policy, for example OMB M-19-23 and OMB M-21-27.\59\ ``In addition,
[Recognized Statistical Agencies and Units] must seek input regularly
from the broadest range of private- and public-sector data users.''
\60\ 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.
---------------------------------------------------------------------------

\58\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
\59\ Such OMB policies include M-19-23, M-21-27, and Circular A-
11 Section 290.
\60\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

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,\61\ (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

[[Page 56721]]

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.''
---------------------------------------------------------------------------

\61\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf">https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf</a>.
---------------------------------------------------------------------------

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.\62\ The Framework affirms that ``[strong scientific
integrity] policies and effective practices protecting scientific
integrity are essential for the development of evidence-based
policies.'' \63\ 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.
---------------------------------------------------------------------------

\62\ A Framework for Federal Scientific Integrity Policy and
Practice (Jan. 2023), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2023/01/01-2023-Framework-for-Federal-Scientific-Integrity-Policy-and-Practice.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/01/01-2023-Framework-for-Federal-Scientific-Integrity-Policy-and-Practice.pdf</a>.
\63\ Press Release, OSTP, OSTP Releases Framework for
Strengthening Federal Scientific Integrity Policies and Practices
(Jan. 12, 2023), available at <a href="https://www.whitehouse.gov/ostp/news-updates/2023/01/12/ostp-releases-framework-for-strengthening-federal-scientific-integrity-policies-and-practices/">https://www.whitehouse.gov/ostp/news-updates/2023/01/12/ostp-releases-framework-for-strengthening-federal-scientific-integrity-policies-and-practices/</a>.
---------------------------------------------------------------------------

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 Sec. 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.'' \64\ 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 \65\ and a
minimal practicable interval for other Federal statistical data
products.\66\ 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.
---------------------------------------------------------------------------

\64\ Office of Mgmt. & Budget, Exec. Office of the President,
Circular A-91, Prompt Compilation and Release of Statistical
Information (Feb. 12, 1969).
\65\ 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 <a href="https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25">https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25</a>.
\66\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf">https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf</a>.
---------------------------------------------------------------------------

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.\67\
---------------------------------------------------------------------------

\67\ 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
<a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-04.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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

[[Page 56722]]

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.\68\
---------------------------------------------------------------------------

\68\ 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 Sec. 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 Sec. 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.'' \69\ 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.
---------------------------------------------------------------------------

\69\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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.'' \70\
---------------------------------------------------------------------------

\70\ 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.\71\
---------------------------------------------------------------------------

\71\ Office of Mgmt. & Budget, Exec Office of the President, M-
19-15, Improving Implementation of the Information Quality Act (Apr.
24, 2019), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf">https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf</a> (``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.\72\
---------------------------------------------------------------------------

\72\ 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 <a href="https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25">https://archives.federalregister.gov/issue_slice/1985/9/25/38908-38934.pdf#page=25</a>; 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 <a href="https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf">https://www.govinfo.gov/content/pkg/FR-2008-03-07/pdf/E8-4570.pdf</a>.

---------------------------------------------------------------------------

[[Page 56723]]

Proposed Sec. 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.'' \73\ 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.
---------------------------------------------------------------------------

\73\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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
\74\ and they should to make these determinations without undue
influence from the parent agency.
---------------------------------------------------------------------------

\74\ 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 <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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.\75\
---------------------------------------------------------------------------

\75\ 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 Sec. 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 Sec. 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 Sec. 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

[[Page 56724]]

Practices \76\ 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.
---------------------------------------------------------------------------

\76\ Nat'l Acad. Sci., Eng'g, & Med., Principles and Practices
for a Federal Statistical Agency (7th ed. 2021), available at
<a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>.
---------------------------------------------------------------------------

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 Sec. 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 Sec.
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 Sec. 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.'' \77\
---------------------------------------------------------------------------

\77\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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.'' \78\
---------------------------------------------------------------------------

\78\ 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 Sec. 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.'' \79\
---------------------------------------------------------------------------

\79\ Id.
---------------------------------------------------------------------------

Proposed Sec. 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.\80\ 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.
---------------------------------------------------------------------------

\80\ Id.
---------------------------------------------------------------------------

This longstanding policy in Directive No. 1, proposed in regulation
in this action, of ``functional separation'' reinforces the requirement
described in Sec. 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

[[Page 56725]]

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 Sec. 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.''
\81\
---------------------------------------------------------------------------

\81\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf">https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf</a>.
---------------------------------------------------------------------------

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,\82\
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.
---------------------------------------------------------------------------

\82\ Principal Statistical Agencies, Statement of Commitment to
Scientific Integrity (2010), available at <a href="https://www.census.gov/content/dam/Census/about/about-the-bureau/policies_and_notices/scientificintegrity/Scientific_Integrity_Statement_of_the_Principal_Statistical_Agencies.pdf">https://www.census.gov/content/dam/Census/about/about-the-bureau/policies_and_notices/scientificintegrity/Scientific_Integrity_Statement_of_the_Principal_Statistical_Agencies.pdf</a>.
---------------------------------------------------------------------------

Proposed Sec. 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 Sec. 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.\83\
---------------------------------------------------------------------------

\83\ See 44 U.S.C. 3520(d)(3); OMB M-19-23, at 24-25 & n.42.
---------------------------------------------------------------------------

Proposed Sec. 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 Sec. 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

[[Page 56726]]

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 Sec. 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.\84\
---------------------------------------------------------------------------

\84\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf">https://www.govinfo.gov/content/pkg/FR-2014-12-02/pdf/2014-28326.pdf</a>.
---------------------------------------------------------------------------

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 Sec. 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 \85\ 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),\86\ as amended and as codified at 44
U.S.C. 3551-3558, and the National Institute of Standards and
Technology (NIST) standards \87\ 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.
---------------------------------------------------------------------------

\85\ 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 <a href="https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf">https://www.govinfo.gov/content/pkg/FR-2007-06-15/pdf/E7-11542.pdf</a>.
\86\ More information is available at <a href="https://www.cisa.gov/federal-information-security-modernization-act">https://www.cisa.gov/federal-information-security-modernization-act</a>.
\87\ E. McCallister et al., Nat'l Inst. of Standards & Tech,
Guide to Protecting the Confidentiality of Personally Identifiable
Information (2010), available at <a href="https://tsapps.nist.gov/publication/get_pdf.cfm?pub_id=904990">https://tsapps.nist.gov/publication/get_pdf.cfm?pub_id=904990</a>.

---------------------------------------------------------------------------

[[Page 56727]]

Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 \88\ 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.
---------------------------------------------------------------------------

\88\ 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 <a href="https://www.federalregister.gov/documents/2018/05/18/2018-10855/enhancing-the-effectiveness-of-agency-chief-information-officers">https://www.federalregister.gov/documents/2018/05/18/2018-10855/enhancing-the-effectiveness-of-agency-chief-information-officers</a>.
---------------------------------------------------------------------------

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 Sec. 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 Sec. 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

[[Page 56728]]

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, Sec. 1321.7(a)(4) provides Recognized Statistical Agencies
and Units with exclusive authority for granting access to confidential
statistical data, Sec. 1321.7(b)(5) ensures Recognized Statistical
Agencies and Units have the appropriate authority regarding access to
confidential statistical data, Sec. 1321.8(a)(1) requires Recognized
Statistical Agencies and Units to restrict access to confidential
statistical data, and Sec. 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 Sec. 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 assess each Recognized Statistical Agency
or Unit and its parent agency for compliance with this regulation.
(B) Council of the Inspectors General on Integrity and Efficiency
(CIGIE) Review: Option B would direct the Council for Inspector General
Integrity and Efficiency to form a statistical audit committee, which
would designate certain Inspectors General as statistical auditors and
provide those statistical auditors with support, education, and
resources. Each Recognized Statistical Agency or Unit and its parent
agency would be audited for compliance with this regulation.
(C) Inspector General Review: Option C would direct each Inspector
General of each parent agency containing a Recognized Statistical
Agency or Unit to conduct audits for compliance with this regulation.
Under any option, each Recognized Statistical Agency or Unit and
parent agencies would be reviewed at least once every three years,
which is consistent with the Paperwork Reduction Act's requirement for
a review of information collections every three years. Each of these
three options includes requirements for transparency of the results of
the audits and tracking progress on addressing any identified
deficiencies. These options also each recognize the role of the Chief
Statistician of the United States in coordinating and overseeing the
Federal Statistical System and ensuring compliance with statistical
laws. None of the three options would authorize access to confidential
statistical data or related information systems unless such access was
in compliance with this regulation and any other applicable statutes.
Option A would direct the Interagency Council on Statistical Policy
to form a Peer Review Committee (hereafter, ``the Committee'') under
the Council's role in advising and assisting the Director of OMB in
carrying out the Director's statistical policy and

[[Page 56729]]

coordination responsibilities, as described in section 3504(e) and
carried out by the Chief Statistician of the United States. The
Committee, in consultation with the Chief Statistician of the United
States, is required to develop and govern procedures to perform peer-
and/or self-assessments of each Recognized Statistical Agency or Unit
and relevant associated parent agencies, at least once every three
years for compliance with the regulations proposed here, and to make
those assessments available to the public on the website of the
Recognized Statistical Agency or Unit in a timely manner. This does not
negate the ability of the Chief Statistician of the United States or
any other oversight body to lead or conduct other additional internal
or external oversight activities, as appropriate.
These proposed procedures are based on domestic and international
best practices and are consistent with requirements and best practices
from the National Academies, at the United Nations, within Eurostat,
and for the United Kingdom, Canada, and Mexico. For example, the
National Academies notes that Recognized Statistical Agencies and Units
``should have processes in place to support regular evaluations of
their major statistical programs and their overall portfolio of
programs. Such evaluations should include internal reviews by staff and
external reviews by independent groups.'' \89\ The United Nations'
Fundamental Principles of Official Statistics implementation guidance
\90\ recommends that systematic quality assessments be performed, such
as self-assessments, peer reviews, or quality audits, or combinations
thereof. The Expert Group on National Quality Assurance Framework,
which was commissioned by the United Nations Statistical Commission
(UNSC), defines quality audits as a ``systematic, independent, and
documented process'' that seeks to obtain evidence about the quality of
statistical processes and to assess it objectively. The quality audits
seek to understand the extent to which ``policies, procedures, and
requirements on quality are fulfilled.'' UNSC defines peer reviews as
external audits aimed to ``assess a statistical process at a higher
level'' but not to check item by item requirement conformity.\91\
---------------------------------------------------------------------------

\89\ Nat'l Acad. Sci., Eng'g, & Med., Principles and Practices
for a Federal Statistical Agency (7th ed. 2021), available at
<a href="https://www.nap.edu/read/25885/">https://www.nap.edu/read/25885/</a>.
\90\ United Nations Statistics Division, Supplementing the
United Nations Fundamental Principles of Official Statistics:
Implementation Guidelines (2019), available at <a href="https://unstats.un.org/unsd/statcom/50th-session/documents/BG-Item3b-FPOS-Implementation-guidelines-E.pdf">https://unstats.un.org/unsd/statcom/50th-session/documents/BG-Item3b-FPOS-Implementation-guidelines-E.pdf</a>.
\91\ United Nations Statistical Commission, Guidelines For The
Template For A Generic National Quality Assurance Framework (2012),
available at <a href="https://unstats.un.org/unsd/dnss/docs-nqaf/GUIDELINES%208%20Feb%202012.pdf">https://unstats.un.org/unsd/dnss/docs-nqaf/GUIDELINES%208%20Feb%202012.pdf</a>.
---------------------------------------------------------------------------

The advantage of peer reviews over self-assessments is the use of
external experts. Compared to formal quality audits, peer reviews may
be less formal and broader while still meeting the goal of examining a
Recognized Statistical Agency's or Unit's practices for compliance with
the Federal Statistical System's standards and practices.
The European Statistical System in particular has a long, well-
documented, and very transparent history of using peer reviews of
national statistics institutes. The objective of their peer reviews is
to ``review the compliance/alignment of the [European Statistical
System] with the Code of Practice and to help the statistical
authorities making up the [European Statistical System] to further
improve and develop the national statistical systems.'' \92\
---------------------------------------------------------------------------

\92\ European Statistics System, Peer Reviews, available at
<a href="https://ec.europa.eu/eurostat/web/quality/peer-reviews">https://ec.europa.eu/eurostat/web/quality/peer-reviews</a>.
---------------------------------------------------------------------------

To provide for transparency around the results of the assessments,
the Committee shall require publication of the results of the review on
the Recognized Statistical Agency's or Unit's public website in a
timely manner. The Committee should consider whether all Recognized
Statistical Agencies and Units should place the results of the reviews
in a standardized location on the public websites and should determine
how many business days after results are available to the Recognized
Statistical Agency or Unit that they are required to be posted on their
public website. Requiring transparency of the results is not unique to
the U.S.; the United Nations' Fundamental Principals of Official
Statistics Implementation Guide states that it is essential to the
trust and credibility of official statistics that ``any evaluation
reports and audits of statistical activities should be made public.''
\93\
---------------------------------------------------------------------------

\93\ Friends of the Chair Group on the Implementation of the
Fundamental Principles of Official Statistics, U.N. Stat. Comm'n,
United Nations Fundamental Principles of Official Statistics:
Implementation Guidelines 66 (2015), available at <a href="https://unstats.un.org/unsd/dnss/gp/Implementation_Guidelines_FINAL_without_edit.pdf">https://unstats.un.org/unsd/dnss/gp/Implementation_Guidelines_FINAL_without_edit.pdf</a>.
---------------------------------------------------------------------------

Options B and C would require each agency that contains a
Recognized Statistical Agency or Unit to undergo an audit of compliance
with these regulations by an Inspector General. Since 1978, Inspectors
General have been conducting audits of agencies to promote efficiency
and effectiveness of Federal programs. They are uniquely situated to
provide an objective and independent review of agency operations.
Given the unique nature of statistical laws and processes, both
options would require Inspectors General to consult with the Chief
Statistician of the United States to ensure consistent interpretation
and application of statistical laws and to promote a better
understanding of statistical processes. Option B would further
consistency and statistical expertise among Inspectors General by
requiring the establishment of a committee that would designate certain
Inspectors General as statistical auditors. This option would benefit
the Federal Statistical System and the Inspectors General community by
reducing the number of Inspectors General that need to develop the
specialized expertise in statistical laws and practices and reducing
the number of additional persons who may need to seek authorization to
access confidential statistical data and related information systems.
Under both options (B) and (C), the head of the Recognized
Statistical Agency or Unit shall be considered a responsible official
for purposes of the statistical audit and shall be given an opportunity
to review and respond to the audit results.

F. Expected Impact of This Regulation

This proposed regulation applies to Federal agencies, and does not
impose requirements on individuals, businesses, associations,
organizations, or other private sector entities. The purpose of this
proposed regulation is largely to conform existing regulations,
policies, and practices to the new statutory requirements in the
Evidence Act, in particular for Recognized Statistical Agencies and
Units to meet fundamental responsibilities and for parent agencies to
enable, support, and facilitate the Recognized Statistical Agencies and
Units in meeting their fundamental responsibilities. These proposed
regulations fill in some policy gaps, but any regulatory decisions will
have a marginal impact on transfers, costs, and benefits, and this
proposed regulation goes no further than is necessary to implement the
statutory requirements of the Evidence Act. Without this proposed
regulation, it will be impossible for OMB to comply with its
obligations under the Evidence Act to promulgate regulations
implementing these new statutory provisions, and agencies will lack
guidance concerning how to effectuate their own obligations under the
Evidence Act.

[[Page 56730]]

Affected Agencies and Current Landscape

This proposed regulation affects the Recognized Statistical
Agencies and Units, as well as parent agencies, as defined in this
proposed regulation.
* Recognized Statistical Agencies and Units: As of this proposed
regulation, there are 16 Recognized Statistical Agencies and Units
which vary in size from around 50 full time employees to around 7,000
full time employees.\94\ Recognized Statistical Agencies and Units also
vary in position within their organizational units and reporting
structure.
---------------------------------------------------------------------------

\94\ Office of Mgmt. & Budget, Exec Office of the President,
Statistical Programs of the United States Government: Fiscal Years
2019/2020 (2020), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2020/12/statistical-programs-20192020.pdf">https://www.whitehouse.gov/wp-content/uploads/2020/12/statistical-programs-20192020.pdf</a>.
---------------------------------------------------------------------------

* Parent agencies: Parent agencies vary widely in size and
organizational structure.\95\ Because there is no authoritative source
on the number of Federal agencies, for the purposes of this proposed
regulation, OMB is counting the number of Federal agencies in the
following way:
---------------------------------------------------------------------------

\95\ For example, the Department of Education has approximately
3,900 full time employees and the Department of Veterans Affairs has
approximately 342,000 full time employees. Also, there are parent
agencies that are smaller than the Department of Education. See
Office of Personnel Mgmt, Sizing Up the Executive Branch Fiscal Year
2017, available at <a href="https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/reports-publications/sizing-up-the-executive-branch-2016.pdf">https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/reports-publications/sizing-up-the-executive-branch-2016.pdf</a>.

--24 CFO Act agencies
--36 other or independent agencies, taking the total number of agencies
in the Unified Agenda (60) \96\ and subtracting out the 24 CFO Act
agencies
---------------------------------------------------------------------------

\96\ Office of Info. & Reg. Affairs, Exec Office of the
President, About the Unified Agenda <a href="https://www.reginfo.gov/public/jsp/eAgenda/UA_About.myjsp">https://www.reginfo.gov/public/jsp/eAgenda/UA_About.myjsp</a> (last visited May 1, 2023).
---------------------------------------------------------------------------

--240 components of CFO Act agencies using an average of 10 components
per CFO Act agency (inclusive of the 16 Recognized Statistical Agencies
and Units)

Thus, for the purposes of this proposed regulation, there are 300
parent agencies. Note that Recognized Statistical Agencies and Units
can be considered parent agencies to other Recognized Statistical
Agencies and Units under this proposed regulation.
OMB expects that Recognized Statistical Agencies and Units are
generally already implementing most requirements of this proposed
regulation. However, OMB expects that the current landscape across
parent agencies varies widely. OMB expects that for some parent
agencies implementation of this proposed regulation will be resource
intensive; however, OMB also expects that some parent agencies already
have regulations, policies, and practices that align with a substantial
number of the requirements for this proposed regulation. Also, for many
parent agencies, implementation of this proposed regulation will not be
resource intensive and will be complete after reviewing this proposed
regulation--as many parent agencies are expected to not have any
regulations, policies, or practices that intersect with this proposed
regulation. Given the current landscape, OMB is uncertain the exact
number of Federal regulations, policies, and practices that will
require revision based on this proposed regulation.

Estimated Cost of Agencies Reviewing This Regulation

This proposed regulation will require Federal agencies to first
review this regulation. This step includes reading of the full
regulation and taking brief notes on possible intersections with parent
agency regulations, policies, and practices. It is likely that this
review will be performed by GS-14 Step 5 or equivalent staff within the
Federal agencies, as this review will require a deep understanding of
the parent agency's regulations, policies, and practices to understand
for which and how the parent agency's regulations, policies, and
practices intersect with this proposed regulation to inform the next
steps of reviewing and making revisions to those regulations, policies,
and practices. It is also likely that the staff will be based in the
Washington, DC, pay region, as many of the staff are likely to work for
the Federal agency headquarters locations. The hourly rate for a GS-14
Step 5 employee in the Washington, DC, region per the Office of
Personnel Management for calendar year 2023 is $71.88. OMB assumes that
the total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in a
value of $143.76 per hour.
OMB expects that for the 24 CFO Act agencies that a central office
would do the first review for all components, except Recognized
Statistical Agencies and Units, to identify which parts of the
regulation would apply to the different components. OMB expects this to
be resource intensive for the central office, but OMB expects review of
the regulation by components will be less intensive because of the work
done by the central office to target the components review. OMB expects
other agencies, independent agencies, and Recognized Statistical
Agencies and Units to do this review for their own agency.
Because of this tiered review process, review of this regulation is
expected to take different lengths of time for the different parent
agencies. In general, OMB expects it will take the central office for
the 24 CFO Act agencies on average 40 hours to do this review and
identify relevant parts of the regulation for its components. This
means it would cost $5,750.40 per agency and $138,009.60 across all 24
CFO Act agencies. For the 224 components except the Recognized
Statistical Agencies and Units, OMB expects this review to take on
average 7 hours. This average for components assumes a longer review
duration for parent agencies in the reporting structure and a much
shorter review duration for parent agencies not in the reporting
structure. This means it would cost $1,006.32 per agency and
$225,415.68 across all 224 components. For the 36 other agencies and
independent agencies, OMB expects this review to take an average of 16
hours. This means it would cost $2,300.16 per agency and $82,805.76
across all 36 other agencies and independent agencies. For the 16
Recognized Statistical Agencies and Units, OMB expects this review to
take on average 16 hours. This means it would cost $2,300.16 per agency
and $36,802.56 across all 16 Recognized Statistical Agencies and Units.
Therefore, across the 300 Federal agencies, the Governmentwide cost
for reviewing this regulation would be $483,033.60.

Cost To Review the Regulation
----------------------------------------------------------------------------------------------------------------
Number of Hours to Cost per
Type agencies review Cost per hour agency Total costs
----------------------------------------------------------------------------------------------------------------
RSAU............................ 16 16 $143.76 $2,300.16 $36,802.56
CFO Act Agencies--Central Office 24 40 143.76 5,750.40 138,009.60

[[Page 56731]]

Components of Departments, 224 7 143.76 1,006.32 225,415.68
except RSAUs...................
Other/Independents.............. 36 16 143.76 2,300.16 82,805.76
-------------------------------------------------------------------------------
Totals...................... 300 .............. .............. .............. 483,033.60
----------------------------------------------------------------------------------------------------------------

Estimated Costs of Agencies Reviewing Their Own Regulations, Policies,
and Practices To Determine Necessary Action

After review of this regulation, parent agencies will then review
their own regulations, policies, and practices to determine necessary
action. This step may also require engagement across components of the
Federal agency, including with staff of any Recognized Statistical
Agencies or Units in the organization.
Review of the regulations, policies, and practices will vary across
Federal agencies, depending on the number of regulations, policies, and
practices issued by the Federal agency. OMB splits Federal agencies
into four categories for this analysis:
(1) 16 Recognized Statistical Agencies and Units,
(2) 32 parent agencies that are in the direct reporting structure
for the Recognized Statistical Agency or Unit,\97\
---------------------------------------------------------------------------

\97\ Reporting structures across the Government vary widely. As
such, some Recognized Statistical Agencies or Units report directly
to their agency's front office, while others report to one or more
interim agencies. Assuming for the 16 Recognized Statistical
Agencies or Units that on average there are two agencies in the
reporting structure, that means 32 parent agencies are included in
the direct reporting structure for this estimate.
---------------------------------------------------------------------------

(3) 63 parent agencies that are not in the direct reporting
structure for the Recognized Statistical Agency or Unit but are likely
to have regulations, policies, or practices that require review,\98\
and
---------------------------------------------------------------------------

\98\ OMB estimates that 25 percent of the remaining parent
agencies will likely have regulations, policies, or practices that
require review.
---------------------------------------------------------------------------

(4) 189 parent agencies that are not in the direct reporting
structure for the Recognized Statistical Agency or Unit but are not
likely to have regulations, policies, or practices that require
review.\99\
---------------------------------------------------------------------------

\99\ OMB estimates that the remaining 75 percent of parent
agencies will likely not have regulations, policies, or practices
that require review.
---------------------------------------------------------------------------

OMB expects these four categories of Federal agencies will have
meaningfully different costs for reviewing their regulations, policies,
and practices. For all four categories, OMB is estimating the review
time

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on August 18, 2023.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.