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Principles and Practices for a Federal Statistical Agency: Sixth Edition (2017)

Chapter: Appendix A: Legislation and Regulations That Govern Federal Statistics

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Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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Legislation and Regulations That Govern Federal Statistics

This appendix summarizes the major legislation and agency regulations and guidance that govern the operations of the federal statistical system as a whole, which is under the regulatory authority of the U.S. Office of Management and Budget (OMB). The descriptions are organized into three main categories: (1) the Paperwork Reduction Act and related OMB statistical policy documents and other guidance; (2) confidentiality and privacy protection; and (3) information quality, peer review, performance evaluation, scientific integrity, and transparency. See Appendix B for descriptions of the overall structure of the system and the principal statistical agencies. Note that each agency is governed by additional legislation and guidance particular to its department and itself.

Most of the legislation, regulations, and guidance summarized herein pertains to OMB, which plays a critical role in oversight of the federal government’s widely dispersed statistical operations. The oversight role dates to 1939, when the functions of a Central Statistical Board, created in 1933, were transferred to the then-named Bureau of the Budget (see Anderson, 2015; Duncan and Shelton, 1978; Norwood, 1995). Recent legislation and guidance address such system-wide issues as confidentiality protection and privacy of respondents, data quality (including peer review prior to dissemination), efficiency of operations, and scientific integrity and transparency.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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AUTHORITY OF THE U.S. OFFICE OF MANAGEMENT AND BUDGET (OMB) OVER FEDERAL STATISTICS

The 1980 Paperwork Reduction Act, as Reauthorized and Amended in 1995, and Associated 2006 Implementation Guidance

The Paperwork Reduction Act (PRA) of 1980 (P.L. 96-511 and codified at 44 USC 3501 and following; reauthorized and amended in 1986 by P.L. 99-500 and 1995 by P.L. 104-13) is the legal foundation for the modern statistical coordination and management mission of OMB. It establishes OMB’s review power over federal statistical agencies and myriad other agencies throughout the federal government that collect information from individuals and organizations. This review power covers both burden imposed by information collection and methods and practices for data collection and dissemination.

Background, 1933–1980

The PRA’s origins trace back to Executive Order 6226, signed by Franklin D. Roosevelt in July 1933, which established a Central Statistical Board to “appraise and advise upon all schedules of all Government agencies engaged in the primary collection of statistics required in carrying out the purposes of the National Industrial Recovery Act, to review plans for tabulation and classification of such statistics, and to promote the coordination and improvement of the statistical services involved.” Members of the board were appointed by the relevant cabinet secretaries. The board was established in law for a 5-year period in 1935. Its functions were transferred to the Bureau of the Budget (itself established in 1921) in 1939, when the Budget Bureau was transferred to the Executive Office of the President.

The 1942 Federal Reports Act represented another milestone by codifying the authority for the Budget Bureau to coordinate and oversee the work of federal statistical agencies. Most famously, it provided that no federal agency could collect data from 10 or more respondents without approval of the budget director. (Data collections by contractors on behalf of federal agencies are covered by this provision, although data collections by government grantees are generally not covered.) The 1950 Budget and Accounting Procedures Act (31 USC 1104(d)) further strengthened the statistical coordinating and improvement role of OMB, giving OMB authorization to promulgate regulations and orders governing statistical programs throughout the federal government.

The statistical policy function continued in the budget office in the Executive Office of the President when the Budget Bureau became the Office of Management and Budget in 1970. However, in 1977, the statistical policy staff was split into two groups: one group remained in OMB to handle

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

the paperwork clearance and review function for statistical agencies; the other group was moved to the U.S. Department of Commerce to address statistical policy and standards issues (Executive Order 12013, October 7, 1977).1

Paperwork Reduction, 1980–Present

The overarching goal of the 1980 PRA was to reduce the burden of filling out federal forms by businesses and individuals. It created a new Office of Information and Regulatory Affairs (OIRA) within OMB, which was charged to reduce the combined burden imposed by regulatory agencies and administrative and statistical program agencies. The PRA required OIRA to engage in long-range planning to improve federal statistical programs; review statistical budgets; coordinate government statistical functions; establish standards, classifications, and other guidelines for statistical data collection and dissemination; and evaluate statistical program performance. In furtherance of that work, Executive Order 12318 (August 21, 1981) revoked the 1977 order and moved the statistical policy office from the Department of Commerce and under OIRA; the 1986 reauthorization of the PRA required the appointment of a chief statistician at OMB to carry out the statistical policy functions (100 Stat. 1783-337).2 In the 1995 reauthorization and extensive revision of the PRA, two of the most significant provisions added for statistical policy were: (1) codifying the Interagency Council on Statistical Policy (ICSP), chaired by the chief statistician; and (2) updating the legislation to reflect the chief statistician’s role in coordinating U.S. participation in international statistical activities.

Survey Clearance Process under the PRA

In January 2006 the OMB Statistical and Science Policy Office released Guidance on Agency Survey and Statistical Information Collections—Questions and Answers When Designing Surveys for Information Collections.3 The guidance is a set of 81 questions and answers that attempts to demystify the OMB clearance process (required by the PRA) for surveys and other statistical information collections. Its purpose is to explain OMB’s review process, assist agencies in strengthening their supporting statements

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1 Seven months later, a pair of Federal Register notices (43 Federal Register 19260 and 19308) formally transferred the content of and responsibility for various regulatory circulars on federal statistical activities to the Commerce Department—at which time they were designated “statistical policy directives” for the first time.

2 Consequent to congressional hearings, the Reagan administration first appointed a chief statistician in 1983.

3 Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/pmc_survey_guidance_2006.pdf [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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for information collection requests, and provide advice for improving information collection designs.

The Guidance covers such topics as its purpose; submission of information collection requests (ICRs, often called clearance packages) to OMB; scope of the information collection (e.g., calculation of burden hours on respondents); choice of methods; sampling; modes of data collection; questionnaire design and development; statistical standards; informing respondents about their participation and the confidentiality of their data; response rates and incentives; analysis and reporting; and studies using stated preference methods (which ask respondents about the use or non-use value of a good in order to obtain willingness-to-pay estimates relevant to benefit or cost estimation). The Guidance includes a glossary of terms and ICR supporting statement instructions.

The document outlines the statutory timing and process requirements for all statistical information collection requests in order to obtain OMB approval (which is indicated by an OMB control number on an approved survey questionnaire). After an agency has developed a draft information collection plan and instrument, the agency must publish a 60-day notice for public comment in the Federal Register and have the draft survey instrument available for the public to review. Following the 60 days, the agency may submit its clearance package to OMB. With that submission, the agency must place a second notice in the Federal Register, allowing a 30-day public comment period and notifying the public that OMB approval is being sought and that comments may be submitted to OMB. This notice runs concurrent with the first 30 days of OMB review—half of OMB’s total of 60 days after receipt of the clearance package to make its decision to approve or disapprove or to instruct the agency to make a substantive change to its proposed collection. Generally, agencies need to allow 6 months to complete the entire process, including development of a clearance package, public comment, and agency, departmental, and OMB review.

In recent years, OMB has issued several memoranda to clarify particular interpretations and applications of the PRA to agency activities.4 Topics covered include an overview of PRA requirements, PRA implications of social media and web-based interactive technologies, the use of generic clearances, options for streamlining the PRA process for scientific research, a fast-track process for qualitative customer service delivery feedback, and answers to PRA questions related to challenges and prizes.

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4 All the memoranda can currently be found at https://obamawhitehouse.archives.gov/omb/inforeg_infocoll [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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OMB Statistical Policy Documents

Historically, OMB has issued guidance and standards on a variety of topics via “circulars,” which are expected to have a continuing effect of 2 or more years.5 Early statistical policy guidance was issued in this form. After the statistical policy function was moved to the U.S. Department of Commerce in 1977, numerous circulars were revised and reissued as “statistical policy directives” (43 Federal Register 19260) so as not to cause confusion with other OMB circulars. Since the statistical policy function was moved back to OMB in 1981, terminology has varied, with some policy documents called “directives” and others “standards” or “classification.” The process of issuing or revising a directive or standard involves expert review, agency consultation, and public comment.

For convenience, five statistical policy directives issued by the OMB Statistical and Science Policy Office that are currently in effect are described first—these are directives nos. 1, 2, 3, 4, and 14. Four statistical standards and classifications—for industries, occupations, metropolitan and micropolitan statistical areas, and race and ethnicity—are described next, along with a standard for products that is under construction. The industry and product classifications are developed jointly with Canada and Mexico.

Statistical Policy Directive No. 1—Fundamental Responsibilities of Federal Statistical Agencies and Recognized Statistical Units

OMB issued its latest statistical policy directive on December 2, 2014 (U.S. Office of Management and Budget, 2014b). The directive was labeled no. 1 because of its foundational importance. (The original no. 1 was combined with no. 2 as described below.) The directive cites relevant documents issued by OMB (e.g., other statistical policy directives) and by the Office of Science and Technology Policy, together with Principles and Practices for a Federal Statistical Agency (National Research Council, 2013), the European Statistics Code of Practice (European Statistical System Committee, 2011), and the Fundamental Principles of Official Statistics (United Nations Statistical Commission, 2014), as contributing “to an integrative framework guiding the production of Federal statistics, encompassing design, collection, processing, editing, compilation, storage, analysis, release, and dissemination” (U.S. Office of Management and Budget, 2014b:71611). The directive notes, however (U.S. Office of Management and Budget, 2014b:71612):

Although these principles and policies provide a common foundation for core statistical agency functions, their actual implementation in

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5 See https://www.whitehouse.gov/omb/information-for-agencies/circulars [April 2017]. Guidance that is of a transitory nature or requires a one-time action by federal departments is issued in the form of “bulletins.”

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

the form of standards and practices can involve a wide range of managerial and technical challenges. Therefore, to support agency decision-making in a manner that fosters statistical quality, OMB developed this Statistical Policy Directive. This Directive provides a unified articulation of Federal statistical agency responsibilities.

The directive goes on to articulate four statistical agency responsibilities: (1) produce and disseminate relevant and timely 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. The directive states (U.S. Office of Management and Budget, 2014b:71614):

Federal statistical agencies and recognized statistical units must adhere to these responsibilities and adopt policies, best practices, and appropriate procedures to implement them. Federal departments must enable, support, and facilitate Federal statistical agencies and recognized statistical units as they implement these responsibilities. [emphasis added]

Statistical Policy Directive No. 2—Standards and Guidelines for Statistical Surveys

OMB issued Standards and Guidelines for Statistical Surveys in September 2006 as a combined update and revision of Statistical Policy Directive No. 1, Standards for Statistical Surveys, and Statistical Policy Directive No. 2, Publication of Statistics. The new document (U.S. Office of Management and Budget, 2006), which is now Directive No. 2, includes 20 standards and one or more associated guidelines for every aspect of survey methodology from planning through data release:

  1. survey planning,
  2. survey design,
  3. survey response rates,
  4. pretesting survey systems,
  5. developing sampling frames,
  6. required notification to potential survey respondents,
  7. data collection methodology,
  8. data editing,
  9. nonresponse analysis and response rate calculation,
  10. coding,
  11. data protection,
  12. evaluation,
  13. developing estimates and projections,
  14. analysis and report planning,
  15. inference and comparisons,
Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×
  1. review of information products,
  2. releasing information,
  3. data protection and disclosure avoidance for dissemination,
  4. survey documentation, and
  5. documentation and release of public-use microdata.

On October 12, 2016, OMB issued a notice in the Federal Register of a final decision to add an Addendum: Standards and Guidelines for Cognitive Interviews to Directive No. 2 (U.S. Office of Management and Budget, 2016a). This addendum recognizes the important role that qualitative cognitive interviewing techniques play in the design of effective survey questions (see National Research Council, 1984, 2006:Ch. 8).

Statistical Policy Directive No. 3—Compilation, Release, and Evaluation of Principal Federal Economic Indicators

OMB first issued Directive No. 3 in the 1970s and strengthened it in 1985.6 Its purpose is clearly stated (U.S. Office of Management and Budget, 1985:38932):

[This directive] designates statistical series that provide timely measures of economic activity as Principal Economic Indicators and requires prompt release of these indicators by statistical agencies in a politically-neutral manner. The intent of the directive is to preserve the time value of such information, strike a balance between timeliness and accuracy, prevent early access to information that may affect financial and commodity markets, and preserve the distinction between the policy-neutral release of data by statistical agencies and their interpretation by policy officials.

Each September OMB issues the Schedule of Release Dates for Principal Federal Economic Indicators for the subsequent calendar year.7 At present, the following agencies issue one or more of the 38 principal economic indicators:

  • Bureau of Economic Analysis (5 indicators, including gross domestic product [GDP], personal income and outlays, corporate profits)
  • Bureau of Labor Statistics (7 indicators, including the employment situation, Consumer Price Index [CPI])
  • Census Bureau (13 indicators, including new residential construction, monthly retail trade)
  • Energy Information Administration (natural gas storage)

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6Norwood (2016) recounts the history of threats to the integrity of economic indicators that necessitated the directive’s issuance and updating.

7 Available: https://obamawhitehouse.archives.gov/omb/inforeg_statpolicy [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×
  • Federal Reserve Board (4 indicators, including money stock measures, consumer installment credit)
  • Foreign Agricultural Service (world agricultural production)
  • National Agricultural Statistics Service (6 indicators, including agricultural prices, grain production)
  • World Agricultural Outlook Board (world agricultural supply and demand)
Statistical Policy Directive No. 4—Release and Dissemination of Statistical Products Produced by Federal Statistical Agencies

OMB issued Directive No. 4, which essentially covers all statistical releases other than those specified in Directive No. 3, in 2008 (U.S. Office of Management and Budget, 2008). It includes not only statistical information released in printed reports or on the Internet, but also statistical press releases, which describe or announce a statistical data product. Statistical press releases are the sole responsibility of the relevant statistical agency. Each fall statistical agencies must issue a schedule of when they expect each regular or recurring product to be released and give timely notification of any change to the published schedule.

On October 17, 2016, OMB issued a notice in the Federal Register requesting comments on a proposed addendum to Directive No. 4, which would constitute Section 10: Performance Review (U.S. Office of Management and Budget, 2016b). Comments were due December 1, 2016. As proposed, the addendum, which incorporates language from Directive No. 3, would require each statistical agency and recognized statistical unit to submit an annual performance review of the production and dissemination of its key statistical products to OMB. Key products would be defined by the agency in consultation with OMB. Reviews would address for each product (U.S. Office of Management and Budget, 2016b:71541–71542):

(a) The accuracy and reliability of the series, e.g., the magnitude and direction of all revisions, the performance of the series relative to established benchmarks, and the proportion and effect of nonresponses or responses received after the publication of preliminary estimates; (b) the accuracy, completeness, and accessibility of documentation describing the methods used in compiling and revising the product; (c) the agency’s performance in meeting its established release schedule and the prompt release objective of this Directive; (d) the agency’s ability to avoid disclosure prior to the scheduled release time; (e) any additional issues (such as periodicity, electronic access, etc.) that the Administrator for Information and Regulatory Affairs specifies in writing to the agency at least 6 months in advance of the scheduled submission date.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

OMB would include a summary of the year’s evaluations in its annual report to Congress. If enacted, this addendum would represent the first formal process by OMB for performance review specifically of statistical products, with the exception that Directive No. 3 requires that the key economic indicators (see above) be evaluated every 3 years.8

Statistical Policy Directive No. 14—Definition of Poverty for Statistical Purposes

OMB first issued standards for the definition of poverty in 1969. It adopted the existing poverty thresholds (first specified by Mollie Orshansky of the Social Security Administration in 1963 and used by the Office of Economic Opportunity) for different categories of families defined by size, number of children, gender of the family head, and farm-nonfarm residences. (One change from Orshansky’s specification was that the farm thresholds were raised from 70% to 85% of the nonfarm thresholds.) For most family types, the thresholds represented the costs of a minimally adequate diet multiplied by three to allow for all other expenses.

The 1969 directive specified that the thresholds would be updated each year for the change in the Consumer Price Index (instead of the cost of the Economy Food Plan as in prior years) and compared with families’ total regular money income as measured in the Current Population Survey. The directive was promulgated as Statistical Policy Directive No. 14 in 1978, when the statistical policy function was briefly housed in the Department of Commerce (U.S. Department of Commerce, 1978:19269); minor modifications were made to the thresholds beginning in 1982 (the nonfarm thresholds were used for all families, the thresholds for male- and female-headed families were averaged, and the largest family size category was raised from 7 to 9 people).9 No further changes have been made to the official thresholds or definition of countable resources, although major socioeconomic changes in the United States and in income support policies have made the official poverty concept increasingly unable to inform assessments of policy effectiveness for different population groups (e.g., refunds from the Earned Income Tax Credit are not counted in the resource measure).

With input from the observations of an Interagency Technical Working Group on Developing a Supplemental Poverty Measure (2010), the U.S.

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8 Statistical agencies were subject to earlier performance review programs (see, e.g., National Research Council, 2009:101), but these were not devised specifically for statistical products. Agencies continue to be subject to the legislation and guidance summarized in the section below on “Information Quality, Peer Review, Performance Evaluation, Scientific Integrity, and Transparency,” which apply to the entire executive branch.

9 Available: http://www2.census.gov/prod2/popscan/p60-133.pdf (page 9) [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

Census Bureau released a new supplemental poverty measure (SPM) in fall 2011 (referencing poverty in calendar 2010), using thresholds developed by the U.S. Bureau of Labor Statistics.10 The thresholds and definition of countable resources as money and near-money disposable income for the SPM were derived in large part from the recommendations from the report of a Committee on National Statistics panel, Measuring Poverty: A New Approach (National Research Council, 1995). The SPM, which is designed to be a useful tool for policy evaluation, is issued annually as is the official measure.

North American Industry Classification System (NAICS)

The NAICS was developed by the United States, Canada, and Mexico to provide a common, contemporary classification system for economic production activity following the enactment of the North American Free Trade Agreement (NAFTA). NAICS, which is a substantial revision of its predecessor, the Standard Industrial Classification (SIC), was first issued in 1997. (The SIC was originally issued in various sections in 1938–1940 and revised on an irregular basis between 1940 and its last iteration in 1987.) Interagency and country working groups (under the aegis of OMB in the United States) have the opportunity to update NAICS every 5 years for years ending in 2 and 7 so that it keeps up reasonably well with changes in the structure of industrial activity in the three countries. NAICS was most recently updated for use beginning in 2017.11

North American Product Classification System (NAPCS)

NAPCS is intended to be a comprehensive, market- or demand-based, hierarchical classification system for products or outputs (goods and services) that: (a) is not industry-of-origin based but can be linked to the NAICS industry structure; (b) is consistent across the three North American countries; and (c) promotes improvements in the identification and classification of service products across international classification systems, such as the Central Product Classification System of the United Nations. NAPCS responds to the problem that a business establishment can only have one NAICS code, even though it may produce more than one

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10 The latest supplemental poverty measure statistics for 2015 were published in September 2016. Available: https://www.census.gov/library/publications/2016/demo/p60-258.html [April 2017].

11 See “North American Industry Classification System—Revision for 2017,” 81 Federal Register 52584 (August 8, 2016). Available: https://www.federalregister.gov/d/2016-18774 [April 2017]. See also “North American Industry Classification System (NAICS)—Updates for 2017,” 80 Federal Register 46480 (August 4, 2015). Available: https://www.federalregister.gov/d/2015-19022 [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

product. It is also the case that the same product can be produced by more than one industry.

NAPCS has been under development since 1998, beginning with exploratory efforts to develop classifications for the services sector. At present a NAPCS for 2017 is in beta testing by U.S. statistical agencies; the plan is to update NAPCS every 5 years on the same cycle as NAICS. For more information, see Economic Classification Policy Committee of the United States (2003), in which the three countries agreed that the objectives and principles articulated in sections A through C of that paper define the purposes of NAPCS and the operational guidelines for creating it.

Standard Occupational Classification (SOC)

The SOC is used by federal statistical agencies to classify workers into occupational categories for collecting, tabulating, and disseminating data.12 The first SOC was published in 1977 in an effort to standardize the collection of occupational data by multiple agencies. It was revised in 1980 but not universally adopted until an interagency process under the aegis of OMB further revised it in 1998 for use in the 2000 decennial census and surveys conducted in the following decade. Work to revise the 2000 SOC was completed in time for its use in 2010 for the American Community Survey (ACS), which provides occupational data in place of the decennial census “long form” sample, and other surveys. The next planned revision of the SOC is scheduled for 2018 and every 10 years thereafter.

Metropolitan Statistical Areas (MSAs)

For more than 60 years, the OMB Metropolitan Area Classification Program has provided standards for delineating areas that are “metropolitan” in nature for use throughout the federal government. In general, such an area has a population nucleus plus one or more adjacent communities that have a high degree of interaction with the nucleus. The usefulness of standardizing these classifications became clear in the 1940s, and the Bureau of the Budget (the predecessor to OMB) led an effort to develop what were then called “standard metropolitan areas” for use in 1950 census publications. For censuses from 1960 through 2000, OMB revised as appropriate the definitional criteria for metropolitan areas before each census and, on the basis of those citeria, issued an updated list of recognized areas after each census.13

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12 Available: http://www.bls.gov/soc [April 2017].

13 Issues of rural area classification were discussed at a Committee on National Statistics’ workshop sponsored by the Economic Research Service, U.S. Department of Agriculture, in April 2015 (National Academies of Sciences, Engineering, and Medicine, 2016).

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

The definitional criteria issued before the 2000 census marked a major revision to the coverage of the program. Standards for Defining Metropolitan and Micropolitan Statistical Areas defined not only metropolitan statistical areas, but also, for the first time, micropolitan areas.14 Metropolitan areas are those with a central urbanized core of 50,000 or more people in one or more counties; micropolitan areas are those with a central urbanized core of 10,000 or more people in one or more counties. The list of metropolitan and micropolitan areas using the 2000 criteria was initially issued in 2003 and updated annually through 2008 by OMB on the basis of the Census Bureau’s population estimates.15 Two years later, OMB issued 2010 Standards for Delineating Metropolitan and Micropolitan Statistical Areas, which largely continued the criteria adopted for the 2000 standards.16 Areas based on these standards, using data from the 2010 census and the American Community Survey, were announced in 2013 and updated in 2015.17

Beginning with the 2010 census, the revision and updating process was changed to reflect the availability of needed commuting and employment information from the continuous ACS. Under the changed process, OMB will issue as often as annually a list of newly recognized areas by using Census Bureau population estimates; in addition, on the basis of ACS and census data, OMB may revise the criteria for area delineation every 5 years instead of every 10 years. The first such revision is planned to occur in 2018, using population estimates and ACS data on commuting and employment for 2011–2015. Input to the OMB decisions is provided by an interagency Metropolitan Area Standards Review Committee.

Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity

The first standards on this topic (originally labeled as Statistical Policy Directive No. 15) were issued in 1977. Race and Ethnic Standards for Federal Statistics and Administrative Reporting specified a minimum set of racial and ethnic categories for reporting of race and ethnicity on federal surveys and in administrative records systems. It recommended either two separate questions, one on ethnicity (Hispanic or non-Hispanic) and one on race (white, black, Asian or Pacific Islander, American Indian or Alaska Native),

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14 See 65 Federal Register 82228 (December 27, 2000). Available: https://www.federalregister.gov/d/00-32997 [April 2017].

15 See, for example, Update of Statistical Area Definitions and Guidance on Their Uses. Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/bulletins/fy2009/09-01.pdf [April 2017].

16 See 75 Federal Register 37245. Available: https://www.federalregister.gov/d/2010-15605 [April 2017].

17 See https://obamawhitehouse.archives.gov/sites/default/files/omb/bulletins/2015/15-01.pdf [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

or a combined question that included Hispanic as a category. The U.S. decennial census has historically included additional categories under the two-question format.

Following an intensive research, testing, and consultation process, OMB issued a revised set of standards in 1997.18 The updated standards retain a two-question format, includes separate categories for Asians and for Native Hawaiian and other Pacific Islanders, emphasizes self-identification, and allows respondents to select more than one racial category.

The 2010 census included several experimental panels to test different strategies that incorporated alternative wording and format for the questions on race and ethnicity, including a combined race and ethnicity question. Analysis of the results led to an important finding that the combined question improved reporting.19 Additional research was conducted in subsequent years, including a National Content Test (NCT) in 2015 for 2020 census planning.20

On September 30, 2016, OMB issued a request for comments on a “possible limited revision” of Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.21 Comments were requested within 30 days on the possibility of allowing the use of a combined race and ethnicity question, adding a “Middle Eastern or North African (MENA)” category, and some other changes in terminology. On March 1, 2017, OMB asked for comments within 60 days on the interim proposals of the Federal Interagency Working Group for Research on Race and Ethnicity, which took account of the comments received on the September 30 notice.22

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18 Available: https://obamawhitehouse.archives.gov/omb/fedreg_1997standards/ [April 2017].

19 Available: http://www.census.gov/2010census/pdf/2010_Census_Race_HO_AQE.pdf [April 2017].

20 This site describes the design of the NCT: http://www.census.gov/content/dam/Census/programs-surveys/decennial/2020-census/2015_census_tests/nct/2015-nct-omb-package.pdf [April 2017]; limited results are included in the March 3, 2017, interim report of the Federal Interagency Working Group for Research on Race and Ethnicity: https://www.whitehouse.gov/the-press-office/2017/03/03/federal-register-notice-interim-report-omb-march-03-2017 [March 2017].

21 See 81 Federal Register 67398. Available: https://www.federalregister.gov/d/2016-23672 [April 2017].

22 See 82 Federal Register 12242. Available: https://www.federalregister.gov/d/2017-03973 [March 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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Other OMB Guidance for Federal Statistics

2014 Guidance for Providing and Using Administrative Data for Statistical Purposes (M-14-06)

Recognizing the informational value and potential efficiencies to be achieved by using already collected federal administrative data for federal statistics, the OMB director issued M-14-06 on February 14, 2014 (U.S. Office of Management and Budget, 2014a). The intent of this memorandum is to provide agencies with “guidance for addressing the legal, policy, and operational issues that exist with respect to using administrative data for statistical purposes.” First, it “calls for departmental and agency leadership to: (i) foster greater collaboration between program and statistical offices; (ii) develop strong data stewardship policies and practices around the statistical use of administrative data; (iii) require the documentation of quality control measures and key attributes of important administrative datasets; and (iv) require the designation of responsibilities and practices through the use of agreements amongst these offices.” Second, it “encourages Federal departments and agencies to promote the use of administrative data for statistical purposes . . . [while] continu[ing] to fully protect the privacy and confidentiality afforded to the individuals, businesses, and institutions providing the data.” Third, it “provides some ‘best practice’ tools, including detailed guidance on the interaction of the Privacy Act requirements and the use of administrative data for statistical purposes, as well as a model interagency agreement for . . . sharing data for statistical purposes.” Fourth, it “requires each department/agency to report to OMB, within 120 days . . . on its progress in implementing this Memorandum.”

2015 Improving Statistical Activities through Interagency Collaboration (M-15-15)

Issued by the administrator of the OMB Office of Information and Regulatory Affairs (OIRA) on July 8, 2015 (U.S. Office of Management and Budget, 2015), this memorandum “strongly encourages the Federal statistical agencies and units, and their parent Departments, to build interagency collaboration that will help the Federal statistical community more effectively meet the information needs of the 21st century.” The memorandum cites examples of successful interagency collaboration (including within and across departments). It also describes available tools for collaboration, such as use of the 1933 Economy Act, which authorizes departments and agencies to buy goods and services from each other, and the new Category Management model for federal contracting. This model could, for example, facilitate obtaining a single license for government-wide

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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use of statistical software in accordance with the 2014 Federal Information Technology Acquisition Reform Act (see below).

CONFIDENTIALITY AND PRIVACY PROTECTION

Protecting the confidentiality of individual information collected under a confidentiality pledge—whether from individuals, households, businesses, or other organizations—is a bedrock principle of federal statistics. Federal statistical agencies also strive to respect the privacy of individual respondents through such means as limiting the collection of information to that which is necessary for an agency’s mission (see Principle 3 and Practices 7 and 8). Respect for privacy has a history in federal legislation and regulation that extends back many decades; so, too, does protection of confidentiality, except that not all federal agencies were covered.23 With the passage of CIPSEA in 2002 (see below), a firm legislative foundation was established for confidentiality protection of statistical data government-wide.

1974 Privacy Act

The Privacy Act of 1974 (P.L. 93-579, as amended; codified at 5 USC 552a) is a landmark piece of legislation that grew out of concerns about the implications of computers, credit bureaus, proposals for national databanks, and the like on personal privacy. The act states in part (5 USC 552a(b)):

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record [is subject to one or more of 12 listed conditions.]

The defined conditions for disclosure of personal records without prior consent include use for statistical purposes by the Census Bureau, for statistical research or reporting when the records are to be transferred in a form that is not individually identifiable, for routine uses within a U.S. government agency, for preservation by the National Archives and Records Administration “as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government,” for law enforcement purposes, for congressional investigations, and for other administrative purposes.

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23 For example, Title 13 of the U.S. Code, providing for confidentiality protection for economic and population data collected by the U.S. Census Bureau, dates back to 1929; in contrast, the Bureau of Labor Statistics had no legal authority for its policies and practices of confidentiality protection until the passage of CIPSEA in 2002 (see National Research Council, 2003:119–121).

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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The Privacy Act mandates that every federal agency have in place an administrative and physical security system to prevent the unauthorized release of personal records; it also mandates that every agency publish in the Federal Register one or more system of records notices (SORNs) for newly created and revised systems of records that contain personally identifiable information as directed by OMB.24 SORNs are to describe not only the records and their uses by the agency, but also procedures for storing, retrieving, accessing, retaining, and disposing of records in the system.25

1991 Federal Policy for the Protection of Human Subjects, 45 Code of Federal Regulations (CFR) 46, Subpart A (“Common Rule”), as Revised in 2017

The 1991 Common Rule regulations, promulgated by the U.S. Department of Health and Human Services (DHHS)26 and signed onto by nine other cabinet departments and seven independent agencies (in their own regulations), represent the culmination of a series of DHHS regulations dating back to the 1960s (see Practice 7 and National Research Council, 2003:Ch. 3). The regulations are designed to protect individuals whom researchers wish to recruit for research studies funded by the federal government, which include surveys and other kinds of statistical data collection.27 The regulations require that researchers obtain informed consent from prospective participants, minimize risks to participants, balance risks and benefits appropriately, select participants equitably, monitor data collection to ensure participant safety (where appropriate), and protect participant privacy and maintain data confidentiality (where appropriate). Institutional review boards (IRBs) at universities and other organizations and agencies, registered with DHHS, review research protocols to determine whether they qualify for exemption from or are subject to IRB review and, if the latter, whether the protocol satisfactorily adheres to the regulations. Some federal statistical agencies are required to submit data collection protocols to an IRB for approval; other agencies

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24 See OMB Circular A-130, Management of Government Information Resources, Appendix I, revised 1996. Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf [April 2017].

25 For an example of SORNs for a statistical agency, see https://www.census.gov/about/policies/privacy/sorn.html [April 2017].

26 See: https://www.hhs.gov/ohrp/regulations-and-policy/regulations/common-rule/ [April 2017]. In addition to Subpart A of 45 CFR 46, DHHS and some other departments and agencies have signed onto Subparts B, C, and D, which pertain to pregnant women, human fetuses, and neonates; prisoners; and children, respectively.

27 Of those departments with statistical units, all signed onto the Common Rule with the exception of the Departments of Labor and the Treasury.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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maintain exemption from IRB review but follow the principles and spirit of the regulations.

An Advance Notice of Proposed Rulemaking, issued in 2011, proposed changes to the Common Rule, including revisions to the provisions for confidentiality protection.28 A Notice of Proposed Rulemaking, which indicated responses to the extensive comments on the ANPRM, was issued in 2015; it, too, included a comment period.29 A final rule was published January 19, 2017,30 which is to take effect January 19, 2018 (for cooperative research involving more than one institution, the effective date is January 20, 2020). Some of the changes from the 1991 version of the Common Rule are:

  • The U.S. Department of Labor became a signatory to the Common Rule; consequently, only one department that houses a federal statistical agency (U.S. Department of the Treasury) is not a signatory.
  • Provisions to exempt research with human participants from IRB review were modified and enlarged, and, where appropriate, IRB review is to be focused on the adequacy of confidentiality protection.
  • To assist IRBs in determining the adequacy of confidentiality protection, the Secretary of DHHS, after consultation with OMB and other federal signatories, is to issue guidance on which procedures qualify. Moreover, the federal signatories, consulting with appropriate experts, are to reexamine within 1 year and every 4 years thereafter the meaning of “identifiable private information” and identify analytic techniques that can produce same.
  • Provisions are added for “broad” consent for storage, maintenance, and secondary research use of identifiable private information or biospecimens.

1997 Order Providing for the Confidentiality of Statistical Information

This order, issued in 1997, was designed to bolster the confidentiality protections afforded by statistical agencies or units (as listed in the order), some of which lacked legal authority to back up their confidentiality protection.31 CIPSEA (see next section) placed confidentiality protection

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28 See 76 Federal Register 44512 (July 26, 2011). Available: https://www.federalregister.gov/d/2011-18792 [April 2017]. See also National Research Council (2014).

29 See 80 Federal Register 53933 (September 8, 2015). Available: https://www.federalregister.gov/d/2015-21756 [April 2017].

30 See 82 Federal Register 7149 (January 19, 2017). Available: https://www.federalregister.gov/d/2017-01058 [April 2017].

31 See 62 Federal Register 35044 (June 27, 1997). Available: https://www.federalregister.gov/d/97-16934 [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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for statistical information on a strong legal footing across the entire federal government.

Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) and Associated 2007 Implementation Guidance

The Confidential Information Protection and Statistical Efficiency Act (CIPSEA) (Title V of the E-Government Act of 2002, P.L. 107-347) is landmark legislation to strengthen the statistical system with regard to confidentiality protection and data sharing. Enactment of CIPSEA was the culmination of more than 30 years of efforts to standardize and bolster legal protections for data collected solely for statistical purposes by federal agencies while permitting limited sharing of individually identifiable business information among three statistical agencies for efficiency and quality improvement. CIPSEA has two subtitles, covering confidentiality and sharing data, respectively.

Subtitle A of CIPSEA, Confidential Information Protection

Subtitle A strengthens and extends statutory confidentiality protection for all statistical data collections of the U.S. government. Prior to CIPSEA, such protection was governed by a patchwork of laws applicable to specific agencies, judicial opinions, and agencies’ practices. For all data furnished by individuals or organizations to an agency under a pledge of confidentiality for exclusively statistical purposes, Subtitle A provides that the data will be used only for statistical purposes and will not be disclosed in identifiable form to anyone not authorized by the title. It makes knowing and willful disclosure of confidential statistical data a class E felony with fines up to $250,000 and imprisonment for up to 5 years.

Subtitle A pertains not only to surveys, but also to collections by a federal agency for statistical purposes from nonpublic administrative records (e.g., confidential state government agency records). Data covered under Subtitle A are not subject to release under a Freedom of Information Act request.

Subtitle B of CIPSEA, Statistical Efficiency

Subtitle B permits the Bureau of Economic Analysis (BEA), the Bureau of Labor Statistics (BLS), and the Census Bureau to share individually identifiable business data for statistical purposes. The subtitle has three main purposes: (1) to reduce respondent burden on businesses; (2) to improve the comparability and accuracy of federal economic statistics by permitting these three agencies to reconcile differences among sampling frames, business classifications, and business reporting; and (3) to increase understanding of the U.S. economy and improve the accuracy of key national

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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indicators, such as the National Income and Product Accounts. Several data-sharing projects have been initiated under Subtitle B.

The subtitle does not permit sharing among BEA, BLS, and the Census Bureau of any individually identifiable tax return data that originate from the Internal Revenue Service (IRS). This limitation currently blocks some kinds of business data sharing, such as those for sole proprietorships, which are important for improving the efficiency and quality of business data collection by statistical agencies. For tax return information, data sharing is limited to a small number of items for specified uses by a small number of specific agencies (under Title 26, Section 6103 of the U.S. Code, and associated Treasury Department regulations, as modified in the 1976 Tax Reform Act). The law provides access to specific tax return items by the Census Bureau for use in its population estimates program and economic census and survey programs, by the National Agricultural Statistics Service for conducting the Census of Agriculture, by the Congressional Budget Office for long-term models of the Social Security and Medicare programs, and by BEA for producing the National Income and Product Accounts. (Prior to the 1976 act, the President could issue an executive order authorizing access to tax records.) The governing statute would have to be modified to extend sharing of tax return items to agencies not specified in the 1976 legislation.

A proposal for legislation to expand access to IRS information for limited statistical purposes has been developed through interagency discussions: it would authorize the Bureau of Labor Statistics to receive limited business data from the Census Bureau (comingled with business tax information) for the purpose of synchronizing the two agencies’ business lists. It would also authorize BEA to receive business tax information for partnerships and sole proprietors with receipts exceeding a yet-to-be-determined threshold. Such access would allow BEA to improve the measurement of income and international transactions in the national accounts. This proposal has yet to be introduced as a bill in Congress.

Associated 2007 CIPSEA Implementation Guidance

OMB is charged to oversee and coordinate the implementation of CIPSEA; after a thorough interagency development and coordination process, OMB released final guidance for CIPSEA in 2007 (U.S. Office of Management and Budget, 2007). The guidance, which pertains to both Subtitles A and B, covers such topics as the steps that agencies must take to protect confidential information; wording of confidentiality pledges in materials that are provided to respondents; steps that agencies must take to distinguish any data or information they collect for nonstatistical purposes and to provide proper notice to the public of such data; and

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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ways in which agents (e.g., contractors, researchers) may be designated to use individually identifiable information for analysis and other statistical purposes and be held legally responsible for protecting the confidentiality of that information.

A key provision of the CIPSEA guidance defines statistical agencies and units, which are the only federal agencies that may assign agent status for confidentiality protection purposes to contractors, researchers, or others. The guidance defines a statistical agency or unit as “an agency or organizational unit of the executive branch whose activities are predominantly the collection, compilation, processing, or analysis of information for statistical purposes.” A total of 16 agencies are currently so recognized (see Appendix B):

  • Of the 16 agencies, 12 were enumerated in OMB’s 1997 confidentiality order and carried over into the CIPSEA implementation guidance: they are all principal statistical agencies and thereby members of the Interagency Council on Statistical Policy (see Appendix B). The Office of Research, Evaluation, and Statistics in the U.S. Social Security Administration is also a principal statistical agency and an ICSP member but was not named in the order or the guidance; it later applied for recognition as a statistical unit (see below).
  • In 2007, OMB recognized two more units that applied for designation under the procedures outlined in the guidance: the Center for Behavioral Health Statistics and Quality in the Office of Applied Studies in the Substance Abuse and Mental Health Services Administration, U.S. Department of Health and Human Services, and the Microeconomic Surveys Section of the Board of Governors of the Federal Reserve.
  • Since 2007, OMB has recognized two additional units: the Office of Research, Evaluation, and Statistics and the National Animal Health Monitoring System Program Unit in the Animal and Plant Health Inspection Service, U.S. Department of Agriculture.

E-Government Act of 2002, Section 208, and Associated 2003 Implementation Guidance

Section 208 of the E-Government Act of 2002 (P.L. 107-347) requires federal agencies to conduct a privacy impact assessment (PIA) whenever an agency develops or obtains information technology that handles individually identifiable information or whenever the agency initiates a new collection of individually identifiable information.32 The assessment

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32 Section 208 also mandates that OMB lead interagency efforts to improve federal information technology and use of the Internet for government services.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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is to be made publicly available and cover topics such as what information is being collected and why, with whom the information will be shared, what provisions will be made for informed consent regarding data sharing, and how the information will be secured. Typically, PIAs cover not only privacy issues, but also confidentiality, integrity, and availability issues.33 OMB was required to issue guidance for development of the assessments, which was done in a September 26, 2003, memorandum (M-03-22) from the OMB director to the heads of executive agencies and departments.34

Section 208, together with Title III, FISMA (see below), and Title V, CIPSEA (see above), of the 2002 E-Government Act are the latest in a series of laws beginning with the Privacy Act of 1974 (see above) that govern access to individual records maintained by the federal government (see also “Federal Cybersecurity Enhancement Act of 2015,” below).

Federal Information Security Management Act of 2002 (FISMA)

The Federal Information Security Management Act (FISMA) was enacted in 2002 as Title III of the E-Government Act of 2002 (P.L. 107-347). The act was meant to bolster computer and network security in the federal government and affiliated parties (such as government contractors) by mandating yearly audits.

FISMA imposes a mandatory set of processes that must be followed for all information systems used or operated by a federal agency or by a contractor or other organization on behalf of a federal agency. These processes must follow a combination of Federal Information Processing Standards documents, the special publications issued by the National Institute of Standards and Technology (SP-800 series), and other legislation pertinent to federal information systems, such as the Privacy Act of 1974 and the Health Insurance Portability and Accountability Act of 1996.

The first step is to determine what constitutes the “information system” in question. There is no direct mapping of computers to an information system; rather, an information system can be a collection of individual computers put to a common purpose and managed by the same system owner. The next step is to determine the types of information in the system and categorize each according to the magnitude of harm that would result if the system suffered a compromise of confidentiality, integrity, or availability. Succeeding steps are to develop complete system documentation, conduct

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33 See, e.g., the available privacy impact assessments prepared by the Census Bureau at https://www.census.gov/about/policies/privacy/pia/list_of_available_pias.html [April 2017].

34 Available: https://obamawhitehouse.archives.gov/omb/memoranda_m03-22/ [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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a risk assessment, put appropriate controls in place to minimize risk, and arrange for an assessment and certification of the adequacy of the controls.

FISMA affects federal statistical agencies directly in that each agency must follow the FISMA procedures for its own information systems. In addition, some departments are taking the position that all information systems in a department constitute a single information system for purposes of FISMA: those departments are taking steps to require that statistical agencies’ information systems and personnel be incorporated into a centralized department-wide system.

2014 Federal Information Technology Acquisition Reform Act (FITARA) and Associated 2015 and 2016 Implementation Guidance

The Federal Information Technology Acquisition Reform Act (FITARA) was enacted on December 19, 2014, to respond to such federal information technology (IT) challenges as duplicate IT spending among and within agencies; difficulty in understanding the cost and performance of IT investments; and inability to benchmark IT spending between federal and private-sector counterparts. FITARA has four major objectives: (1) strengthening the authority over and accountability for IT costs, performance, and security of agency chief information officers (CIOs); (2) aligning IT resources with agency missions and requirements; (3) enabling more effective planning for and execution of IT resources; and (4) providing transparency about IT resources across agencies and programs. It requires agencies (defined as cabinet departments and independent agencies) to pursue a strategy of consolidation of agency data centers, charges agency CIOs with the responsibility for implementing FITARA, and charges the U.S. Government Accountability Office with producing quarterly scorecards to assess how well agencies are meeting the FITARA objectives.

The director of OMB issued implementation guidance for FITARA, M-15-14, Management and Oversight of Federal Information Technology, on June 20, 2015.35 This memorandum explicitly stated that agencies must implement the FITARA guidance to ensure that information acquired under a pledge of confidentiality solely for statistical purposes is used exclusively for those purposes. It also provided a “Common Baseline for IT Management,” which lays out FITARA responsibilities of CIOs and other agency officials, such as the chief financial officer and program officials. On May 4, 2016, the federal CIO and the administrator of OIRA, both in OMB, jointly issued Supplemental Guidance on the Implementation of M-15-14 “Management and Oversight of Federal Information Technology”—Applying FITARA Common

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35 Available: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2015/m-15-14.pdf [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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Baseline to Statistical Agencies and Units (U.S. Office of Management and Budget, 2016c). This supplemental guidance posed questions for CIOs and other officials, including statistical agency heads, to address when implementing FITARA for statistical agency programs. The questions refer to the fundamental responsibilities of federal statistical agencies outlined in Statistical Policy Directive No. 1 (see above), which include confidentiality protection and meeting deadlines for key statistics.

Federal Cybersecurity Enhancement Act of 2015

The Federal Cybersecurity Enhancement Act of 2015 is Title II, Subpart B, of the Cybersecurity Act of 2015, which was attached as a rider to the Consolidated Appropriations Act of 2016, and so became law when the appropriations bill was signed on December 18, 2015, and became P.L. 114-113. The impetus for Title II, Subpart B, is the efforts of the U.S. Department of Homeland Security (DHS), dating back to 2003, to deploy systems for detection and prevention of intrusions (“hacking”) into federal government information networks (see Latham & Watkins, 2016:3). As of the end of 2015, this technology, known as EINSTEIN, covered only 45 percent of federal network access points. The act requires DHS to “make [EINSTEIN] available” to all federal agencies within 1 year, and thereafter requires all agencies to “apply and continue to utilize the capabilities” across their networks.

The technology, currently in version E3A, has been welcomed by federal statistical agencies, but agencies initially were concerned about a DHS interpretation of the act that would allow DHS staff to monitor traffic on agency networks and follow up on actual or likely intrusions. Such surveillance by DHS staff could lead to violations of agencies’ pledges to protect the confidentiality of information provided by individual respondents for statistical purposes, which state that only statistical agency employees or sworn agents can see such information. Ultimately, DHS retained its surveillance authority, and statistical agencies modified their confidentiality pledges. As described in a Federal Register notice from the U.S. Census Bureau (other statistical agencies have issued similar notices):36

DHS and Federal statistical agencies, in cooperation with their parent departments, have developed a Memorandum of Agreement for the installation of Einstein 3A cybersecurity protection technology to monitor their Internet traffic and have incorporated an associated Addendum on Highly Sensitive Agency Information that provides additional protection and enhanced security handling of confidential

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36 “Agency Information Collection Activities; Request for Comments; Revision of the Confidentiality Pledge Under Title 13 United States Code, Section 9,” 81 Federal Register 94321 (December 23, 2016). Available: https://www.federalregister.gov/d/2016-30959 [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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statistical data. However, many current Title 13, U.S.C. and similar statistical confidentiality pledges promise that respondents’ data will be seen only by statistical agency personnel or their sworn agents. Since it is possible that DHS personnel could see some portion of those confidential data in the course of examining the suspicious Internet packets identified by Einstein 3A sensors, statistical agencies need to revise their confidentiality pledges to reflect this process change.

The Bureau of Labor Statistics led an interagency research program to test revised wording with samples of respondents, and agencies revised their pledges accordingly. As an example, the Census Bureau’s revised pledge, for example, provided in 81 Federal Register 94321 (December 23, 2016), states:

The U.S. Census Bureau is required by law to protect your information. The Census Bureau is not permitted to publicly release your responses in a way that could identify you. Per the Federal Cybersecurity Enhancement Act of 2015, your data are protected from cybersecurity risks through screening of the systems that transmit your data.

INFORMATION QUALITY, PEER REVIEW, PERFORMANCE EVALUATION, SCIENTIFIC INTEGRITY, AND TRANSPARENCY

Since 2000, there has been heightened interest in the Congress and the executive branch regarding the quality of scientific evidence, including federal statistics. Legislation and guidance from OMB and the Office of Science and Technology Policy (OSTP) have addressed concerns of information quality, performance evaluation, scientific integrity, and transparency.

The Information Quality Act of 2000 and Associated 2002 Implementation Guidance

The Information Quality Act of 2000 (P.L. 106-554) directed OMB to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.” It also required federal agencies to develop their own implementing procedures, including “administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency.” After a public comment period, OMB issued government-wide guidelines on February 22, 2002.37

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37 See 67 Federal Register 8452 (February 22, 2002). Available: https://www.federalregister.gov/d/R2-59 [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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2002 Federal Statistical Agency Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Disseminated Information

A few months after OMB issued implementation guidance in February 2002 for the 2000 Information Quality Act (see above), 13 principal statistical agencies issued a notice outlining a common approach to the development and provision of guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of disseminated information.38 The notice directed people to the websites of each agency for more information and to learn how to comment on draft guidelines. Each agency then finalized its own guidelines.39 The information quality framework developed by the agencies was followed in the 2006 revision of OMB’s standards and guidelines for statistical surveys (see Statistical Policy Directive No. 2 above).

2004 OMB Final Information Quality Bulletin for Peer Review

Consistent with the 2000 Information Quality Act (see above), OMB developed guidance for federal agencies with regard to seeking peer review of the policy-relevant scientific information an agency disseminates. After two rounds of public comment, OMB issued the Final Information Quality Bulletin for Peer Review on December 16, 2004 (hereafter referred to as the Bulletin): it requires federal agencies to conduct a peer review of “influential scientific information” before the information is released to the public.40 “Influential scientific information” is defined as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions” (U.S. Office of Management and Budget, 2005:2667). The Bulletin allows agencies discretion to select the type of peer review process most appropriate for a given scientific information product. Research reports and nonroutine collections by statistical agencies that can be considered “influential scientific information” are covered under the guidelines, but “routine statistical information released by federal statistical agencies (e.g., periodic demographic and economic statistics) and the analysis of these data to compute standard indicators and trends (e.g., unemployment and poverty rates)” are excluded (U.S. Office of Management and Budget, 2005:2674).

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38 See 67 Federal Register 38467 (June 4, 2002). Available: https://www.federalregister.gov/d/02-13892 [April 2017].

39 See, e.g., https://www.census.gov/about/policies/quality/guidelines.html [April 2017].

40 Available: https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03/ [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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2010 Government Performance and Results Modernization Act

The Government Performance and Results Modernization Act of 2010, which supersedes the Performance Assessment Rating Tool and the Government Performance and Results Act of 1993, was signed into law on January 4, 2011.41 It requires performance assessment of government programs for purposes of evaluating agency performance and improvement. In carrying out the provisions of the act, the director of OMB coordinates with agencies to develop the federal government performance plan. The act requires all federal agencies, with few exceptions, to establish performance indicators to be used in measuring or assessing progress toward their identified performance goals and an objective, quantifiable, and measurable means by which to compare actual program results with these established performance goals. Additionally, each agency must describe how it will ensure the accuracy and reliability of the data used, including validation of measures, data sources, required level of accuracy, data limitations, and management of those limitations.

The broad scope of agencies affected by this act, and the use of the act in making budgetary decisions based on measured achievement toward program goals, has fostered added focus among many agencies on how to collect high quality data and produce sound government statistics with which to conduct rigorous program evaluation. The proposed addendum, issued in 2016, to Statistical Policy Directive No. 4 (see above), prescribes a program of annual performance reviews for federal statistical products.

2010 Office of Science and Technology Policy (OSTP) Memorandum on Scientific Integrity

In a memorandum on scientific integrity issued March 9, 2009, President Obama stated:42

The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. The selection of scientists and technology professionals for positions in the executive branch should be based on

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41 Available: http://www.gpo.gov/fdsys/pkg/PLAW-111publ352/pdf/PLAW-111publ352.pdf [April 2017].

42 Available: http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-3-9-09 [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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their scientific and technological knowledge, credentials, experience, and integrity.

The President directed OSTP to develop a strategy to ensure scientific integrity in government decision making. In response, the OSTP director issued a memorandum on December 17, 2010, 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.”43 The memorandum included guidance on the selection of candidates for scientific positions, independent peer review, whistleblower protections, promoting access to scientific and technological information in online open formats, and agency communications. It also provided guidance on public communications, use of federal advisory committees, professional development of government scientists and engineers, and implementation.

Each statistical agency is covered by its department’s scientific integrity policies. In addition, the principal statistical agencies developed a Statement of Commitment to Scientific Integrity that documents in a single place their response to the OSTP memorandum. The statement articulates how the Principles and Practices for a Federal Statistical Agency, Fourth Edition (National Research Council, 2009), various OMB statistical policy directives and standards, and each agency’s information quality guidelines together form “the foundation for achieving and maintaining scientific integrity within and among the principal statistical agencies.”44

2013 OSTP Memorandum on Increasing Access to the Results of Scientific Research

On February 23, 2013, the OSTP director issued a memorandum for heads of executive departments and agencies on “Increasing Access to the Results of Scientific Research.”45 Citing the importance of scientific research for driving improvements in “areas such as health, energy, the environment, agriculture, and national security,” the memorandum outlined the administration’s commitment to:

__________________

43 Available: https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf [April 2017].

44 See http://www.census.gov/content/dam/Census/about/about-the-bureau/policies_and_notices/scientificintegrity/Scientific_Integrity_Statement_of_the_Principal_Statistical_Agencies.pdf [April 2017].

45 Available: https://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf [April 2017].

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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ensuring that, to the greatest extent and with the fewest constraints possible and consistent with law and the objectives set out [in the memorandum], the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community. Such results include peer-reviewed publications and digital data.

The memorandum directed federal agencies with over $100 million in annual research and development expenditures to develop a plan “to support increased public access to the results of research funded by the Federal Government. This includes any results published in peer-reviewed scholarly publications that are based on research that directly arises from Federal funds . . . .” The memorandum further directed agencies to develop plans for ensuring archiving of and access to data underlying federally funded research and the associated documentation or metadata. The memorandum listed various topics to be covered in each agency’s plan, including that the plan be posted on the agency’s website and provide for protection of the confidentiality of individual respondents’ information.

REFERENCES FOR APPENDIX A

All URL addresses valid as of April 2017. Please note that, as of February 2017, U.S. Office of Management and Budget documents previously on the main whitehouse.gov site were relocated to an archived site. Wherever possible, a citation is provided to a stable site such as federalregister.gov.

Anderson, M. J. (2015). The American Census: A Social History (3rd ed.). New Haven, CT: Yale University Press.

Duncan, J. W. and W. C. Shelton (1978). Revolution in United States Statistics, 1926–1976. Office of Federal Statistical Policy and Standards, U.S. Department of Commerce. Washington, DC: U.S. Government Printing Office. Available: https://catalog.hathitrust.org/Record/007886111/Home.

Economic Classification Policy Committee of the United States (2003). Overview of NAPCS objectives, guidance, and implementation strategy and goals: A United States perspective. NAPCS discussion paper prepared for the Trilateral Steering Group Meeting, Washington, DC, May 5–9, 2003. Available: http://www.census.gov/eos/www/napcs/papers/overviewobj.pdf.

European Statistical System Committee (2011). European Statistics Code of Practice for the National and Community Statistical Authorities. Luxembourg: Eurostat. Available: http://ec.europa.eu/eurostat/web/products-manuals-and-guidelines/-/KS-32-11-955.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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Interagency Technical Working Group on Developing a Supplemental Poverty Measure (2010). Observations from the Interagency Technical Working Group on Developing a Supplemental Poverty Measure. Available: https://www.census.gov/hhes/povmeas/methodology/supplemental/research/SPM_TWGObservations.pdf.

Latham & Watkins (2016). What you need to know about the Cybersecurity Act of 2015. Client Alert Commentary No. 1927 (February 18). Available: https://www.lw.com/thoughtLeadership/lw-Cybersecurity-Act-of-2015.

National Academies of Sciences, Engineering, and Medicine (2016). Rationalizing Rural Area Classifications for the Economic Research Service: Workshop Summary. G.S. Wunderlich, rapporteur. Committee on National Statistics. Washington, DC: The National Academies Press. Available: https://www.nap.edu/catalog/21843/rationalizing-rural-area-classifications-for-the-economic-research-service-a. doi: 10.17226/21843.

National Research Council (1984). Cognitive Aspects of Survey Methodology: Building a Bridge Between Disciplines. Report of the Advanced Research Seminar on Cognitive Aspects of Survey Methodology, T.B. Jabine, M.L. Straf, J.M. Tanur, and R. Tourangeau, eds. Committee on National Statistics. Washington, DC: National Academy Press. Available: https://doi.org/10.17226/930.

National Research Council (1995). Measuring Poverty—A New Approach. Panel on Poverty and Family Assistance, C.F. Citro and R.T. Michael, eds. Committee on National Statistics. Washington, DC: National Academy Press. Available: https://doi.org/10.17226/4759.

National Research Council (2003). Protecting Participants and Facilitating Social and Behavioral Sciences Research. Panel on Institutional Review Boards, Surveys, and Social Science Research, C.F. Citro, D.R. Ilgen, and C.B. Marrett, eds. Committee on National Statistics and Board on Behavioral, Cognitive, and Sensory Sciences. Washington, DC: The National Academies Press. Available: https://doi.org/10.17226/10638.

National Research Council (2006). Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census. Panel on Residence Rules in the Decennial Census, D.L. Cork and P.R. Voss, eds. Committee on National Statistics. Washington, DC: The National Academies Press. Available: https://doi.org/10.17226/11727.

National Research Council (2009). Principles and Practices for a Federal Statistical Agency, Fourth Edition. Committee on National Statistics, C.F. Citro, M.E. Martin, and M.L. Straf, eds. Washington, DC: The National Academies Press. Available: https://doi.org/10.17226/12564.

National Research Council (2013). Principles and Practices for a Federal Statistical Agency, Fifth Edition. Committee on National Statistics, C.F. Citro and M.L. Straf, eds.. Washington, DC: The National Academies Press. Available: https://doi.org/10.17226/18318.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
×

National Research Council (2014). Proposed Revisions to the Common Rule for the Protection of Human Subjects in the Behavioral and Social Sciences. Committee on Revisions to the Common Rule for the Protection of Human Subjects in Research in the Behavioral and Social Sciences, Board on Behavioral, Cognitive, and Sensory Sciences, Committee on National Statistics, and Committee on Population. Washington, DC: The National Academies Press. Available: https://doi.org/10.17226/18614.

Norwood, J. L. (1995). Organizing to Count: Change in the Federal Statistical System. Washington, DC: The Urban Institute Press.

Norwood, J. L. (2016). Politics and federal statistics. Statistics and Public Policy 3(1), 1–8. American Statistical Association Distinguished Statistician Lecture, 2000. Available: http://dx.doi.org/10.1080/2330443X.2016.1241061.

United Nations Statistical Commission (2014, March 3). Fundamental Principles of Official Statistics. New York: United Nations. Endorsed by the General Assembly as Resolution A/RES/68/261. Available: http://unstats.un.org/unsd/dnss/gp/FP-New-E.pdf.

U.S. Department of Commerce (1978). Transfer of responsibility for certain statistical standards from OMB to Commerce. 43 Federal Register 19260 (May 4, 1978).

U.S. Office of Management and Budget (1985). Statistical Policy Directive No. 3: Compilation, release, and evaluation of principal federal economic indicators. 50 Federal Register 38932 (September 25, 1985). Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/statpolicy/dir_3_fr_09251985.pdf.

U.S. Office of Management and Budget (2005). Final information quality bulletin for peer review. 70 Federal Register 2664 (January 14, 2005). Available: https://www.federalregister.gov/d/05-769.

U.S. Office of Management and Budget (2006). Statistical Policy Directive No. 2: Standards and guidelines for statistical surveys. 71 Federal Register 55522 (September 22, 2006). Available: https://www.federalregister.gov/d/06-8044.

U.S. Office of Management and Budget (2007). Implementation guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA). 72 Federal Register 33362 (June 15, 2007). Available: https://www.federalregister.gov/d/E7-11542.

U.S. Office of Management and Budget (2008). Statistical Policy Directive No. 4: Release and dissemination of statistical products produced by federal statistical agencies. 73 Federal Register 12625 (March 7, 2008). Available: https://www.federalregister.gov/d/E8-4570.

U.S. Office of Management and Budget (2014a). Guidance for providing and using administrative data for statistical purposes. OMB Memorandum M-14-06. Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2014/m-14-06.pdf.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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U.S. Office of Management and Budget (2014b). Statistical Policy Directive No. 1: Fundamental responsibilities of federal statistical agencies and recognized statistical units. 79 Federal Register 71609 (December 2, 2014). Available: https://www.federalregister.gov/d/2014-28326.

U.S. Office of Management and Budget (2015). Improving statistical activities through interagency collaboration. OMB Memorandum M-15-15. Available: https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2015/m-15-15.pdf.

U.S. Office of Management and Budget (2016a). Statistical Policy Directive No. 2: Standards and guidelines for statistical surveys; Addendum: Standards and guidelines for cognitive interviews. 81 Federal Register 70586 (October 12, 2006). Available: https://www.federalregister.gov/d/2016-24607.

U.S. Office of Management and Budget (2016b). Statistical Policy Directive No. 4 Addendum: Release and dissemination of statistical products produced by federal statistical agencies and recognized statistical units [adding section 10, performance review]. 81 Federal Register 71538 (October 17, 2016). Available: https://www.federalregister.gov/d/2016-25049.

U.S. Office of Management and Budget (2016c, May 4). Supplemental guidance on the implementation of M-15-14 “Management and oversight of federal information technology”—Applying FITARA common baseline to statistical agencies and units. Memorandum from Tony Scott, Federal Chief Information Officer, and Howard Shelanski, Administrator, Office of Regulatory Affairs. Available: https://management.cio.gov/assets/docs/FITARA_Guidance_Statistical_Agencies_and_Units_OMB.pdf.

Suggested Citation:"Appendix A: Legislation and Regulations That Govern Federal Statistics." National Academies of Sciences, Engineering, and Medicine. 2017. Principles and Practices for a Federal Statistical Agency: Sixth Edition. Washington, DC: The National Academies Press. doi: 10.17226/24810.
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Publicly available statistics from government agencies that are credible, relevant, accurate, and timely are essential for policy makers, individuals, households, businesses, academic institutions, and other organizations to make informed decisions. Even more, the effective operation of a democratic system of government depends on the unhindered flow of statistical information to its citizens.

In the United States, federal statistical agencies in cabinet departments and independent agencies are the governmental units whose principal function is to compile, analyze, and disseminate information for such statistical purposes as describing population characteristics and trends, planning and monitoring programs, and conducting research and evaluation. The work of these agencies is coordinated by the U.S. Office of Management and Budget. Statistical agencies may acquire information not only from surveys or censuses of people and organizations, but also from such sources as government administrative records, private-sector datasets, and Internet sources that are judged of suitable quality and relevance for statistical use. They may conduct analyses, but they do not advocate policies or take partisan positions. Statistical purposes for which they provide information relate to descriptions of groups and exclude any interest in or identification of an individual person, institution, or economic unit.

Four principles are fundamental for a federal statistical agency: relevance to policy issues, credibility among data users, trust among data providers, and independence from political and other undue external influence.Β Principles and Practices for a Federal Statistical Agency: Sixth Edition presents and comments on these principles as they’ve been impacted by changes in laws, regulations, and other aspects of the environment of federal statistical agencies over the past 4 years.

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