[House Report 107-778]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-778
======================================================================
CONFIDENTIAL INFORMATION PROTECTION AND STATISTICAL EFFICIENCY ACT OF
2002
_______
November 13, 2002.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Burton of Indiana, from the Committee on Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 5215]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform, to whom was referred
the bill (H.R. 5215) to protect the confidentiality of
information acquired from the public for statistical purposes,
and to permit the exchange of business data among designated
statistical agencies for statistical purposes only, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Confidential Information Protection
and Statistical Efficiency Act of 2002''.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) The term ``agency'' means any entity that falls within
the definition of the term ``executive agency'' as defined in
section 102 of title 31, United States Code, or ``agency'', as
defined in section 3502 of title 44, United States Code.
(2) The term ``agent'' means an individual--
(A)(i) who is an employee of a private organization
or a researcher affiliated with an institution of
higher learning (including a person granted special
sworn status by the Bureau of the Census under section
23(c) of title 13, United States Code), and with whom a
contract or other agreement is executed, on a temporary
basis, by an executive agency to perform exclusively
statistical activities under the control and
supervision of an officer or employee of that agency;
(ii) who is working under the authority of a
government entity with which a contract or other
agreement is executed by an executive agency to perform
exclusively statistical activities under the control of
an officer or employee of that agency;
(iii) who is a self-employed researcher, a
consultant, a contractor, or an employee of a
contractor, and with whom a contract or other agreement
is executed by an executive agency to perform a
statistical activity under the control of an officer or
employee of that agency; or
(iv) who is a contractor or an employee of a
contractor, and who is engaged by the agency to design
or maintain the systems for handling or storage of data
received under this Act; and
(B) who agrees in writing to comply with all
provisions of law that affect information acquired by
that agency.
(3) The term ``business data'' means operating and financial
data and information about businesses, tax-exempt
organizations, and government entities.
(4) The term ``identifiable form'' means any representation
of information that permits the identity of the respondent to
whom the information applies to be reasonably inferred by
either direct or indirect means.
(5) The term ``nonstatistical purpose''--
(A) means the use of data in identifiable form for
any purpose that is not a statistical purpose,
including any administrative, regulatory, law
enforcement, adjudicatory, or other purpose that
affects the rights, privileges, or benefits of a
particular identifiable respondent; and
(B) includes the disclosure under section 552 of
title 5, United States Code (popularly known as the
Freedom of Information Act) of data that are acquired
for exclusively statistical purposes under a pledge of
confidentiality.
(6) The term ``respondent'' means a person who, or
organization that, is requested or required to supply
information to an agency, is the subject of information
requested or required to be supplied to an agency, or provides
that information to an agency.
(7) The term ``statistical activities''--
(A) means the collection, compilation, processing, or
analysis of data for the purpose of describing or
making estimates concerning the whole, or relevant
groups or components within, the economy, society, or
the natural environment; and
(B) includes the development of methods or resources
that support those activities, such as measurement
methods, models, statistical classifications, or
sampling frames.
(8) The term ``statistical agency or unit'' means an agency
or organizational unit of the executive branch whose activities
are predominantly the collection, compilation, processing, or
analysis of information for statistical purposes.
(9) The term ``statistical purpose''--
(A) means the description, estimation, or analysis of
the characteristics of groups, without identifying the
individuals or organizations that comprise such groups;
and
(B) includes the development, implementation, or
maintenance of methods, technical or administrative
procedures, or information resources that support the
purposes described in subparagraph (A).
SEC. 3. COORDINATION AND OVERSIGHT OF POLICIES.
(a) In General.--The Director of the Office of Management and Budget
shall coordinate and oversee the confidentiality and disclosure
policies established by this Act. The Director may promulgate rules or
provide other guidance to ensure consistent interpretation of this Act
by the affected agencies.
(b) Agency Rules.--Subject to subsection (c), agencies may promulgate
rules to implement this Act. Rules governing disclosures of information
that are authorized by this Act shall be promulgated by the agency that
originally collected the information.
(c) Review and Approval of Rules.--The Director shall review any
rules proposed by an agency pursuant to this Act for consistency with
the provisions of this Act and chapter 35 of title 44, United States
Code, and such rules shall be subject to the approval of the Director.
(d) Reports.--
(1) The head of each agency shall provide to the Director of
the Office of Management and Budget such reports and other
information as the Director requests.
(2) Each Designated Statistical Agency referred to in section
202 shall report annually to the Director of the Office of
Management and Budget, the Committee on Government Reform of
the House of Representatives, and the Committee on Governmental
Affairs of the Senate on the actions it has taken to implement
sections 203 and 204. The report shall include copies of each
written agreement entered into pursuant to section 204(a) for
the applicable year.
(3) The Director of the Office of Management and Budget shall
include a summary of reports submitted to the Director under
paragraph (2) and actions taken by the Director to advance the
purposes of this Act in the annual report to the Congress on
statistical programs prepared under section 3504(e)(2) of title
44, United States Code.
SEC. 4. EFFECT ON OTHER LAWS.
(a) Title 44, United States Code.--This Act, including amendments
made by this Act, does not diminish the authority under section 3510 of
title 44, United States Code, of the Director of the Office of
Management and Budget to direct, and of an agency to make, disclosures
that are not inconsistent with any applicable law.
(b) Title 13 and Title 44, United States Code.--This Act, including
amendments made by this Act, does not diminish the authority of the
Bureau of the Census to provide information in accordance with sections
8, 16, 301, and 401 of title 13, United States Code, and section 2108
of title 44, United States Code.
(c) Title 13, United States Code.--This Act, including amendments
made by this Act, shall not be construed as authorizing the disclosure
for nonstatistical purposes of demographic data or information
collected by the Census Bureau pursuant to section 9 of title 13,
United States Code.
(d) Various Energy Statutes.--Data or information acquired by the
Energy Information Administration under a pledge of confidentiality and
designated by the Energy Information Administration to be used for
exclusively statistical purposes shall not be disclosed in identifiable
form for nonstatistical purposes under--
(1) section 12, 20, or 59 of the Federal Energy
Administration Act of 1974 (15 U.S.C. 771, 779, 790h);
(2) section 11 of the Energy Supply and Environmental
Coordination Act of 1974 (15 U.S.C. 796); or
(3) section 205 or 407 of the Department of the Energy
Organization Act of 1977 (42 U.S.C. 7135, 7177).
(e) Preemption of State Law.--Nothing in this Act shall preempt
applicable State law regarding the confidentiality of data collected by
the States.
(f) Statutes Regarding False Statements.--Notwithstanding section
102, information collected by an agency for exclusively statistical
purposes under a pledge of confidentiality may be provided by the
collecting agency to a law enforcement agency for the prosecution of
submissions to the collecting agency of false statistical information
under statutes that authorize criminal penalties (such as section 221
of title 13, United States Code) or civil penalties for the provision
of false statistical information, unless such disclosure or use would
otherwise be prohibited under Federal law.
(g) Construction.--Nothing in this Act shall be construed as
restricting or diminishing any confidentiality protections or penalties
for unauthorized disclosure that otherwise apply to data or information
collected for statistical purposes or nonstatistical purposes,
including, but not limited to, section 6103 of the Internal Revenue
Code of 1986 (26 U.S.C. 6103).
(h) Authority of Congress.--Nothing in this Act shall be construed to
affect the authority of the Congress, including its committees,
members, or agents, to obtain data or information for a statistical
purpose, including for oversight of an agency's statistical activities.
TITLE I--CONFIDENTIAL INFORMATION PROTECTION
SEC. 101. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds the following:
(1) Individuals, businesses, and other organizations have
varying degrees of legal protection when providing information
to the agencies for strictly statistical purposes.
(2) Pledges of confidentiality by agencies provide assurances
to the public that information about individuals or
organizations or provided by individuals or organizations for
exclusively statistical purposes will be held in confidence and
will not be used against such individuals or organizations in
any agency action.
(3) Protecting the confidentiality interests of individuals
or organizations who provide information under a pledge of
confidentiality for Federal statistical programs serves both
the interests of the public and the needs of society.
(4) Declining trust of the public in the protection of
information provided under a pledge of confidentiality to the
agencies adversely affects both the accuracy and completeness
of statistical analyses.
(5) Ensuring that information provided under a pledge of
confidentiality for statistical purposes receives protection is
essential in continuing public cooperation in statistical
programs.
(b) Purposes.--The purposes of this title are the following:
(1) To ensure that information supplied by individuals or
organizations to an agency for statistical purposes under a
pledge of confidentiality is used exclusively for statistical
purposes.
(2) To ensure that individuals or organizations who supply
information under a pledge of confidentiality to agencies for
statistical purposes will neither have that information
disclosed in identifiable form to anyone not authorized by this
Act nor have that information used for any purpose other than a
statistical purpose.
(3) To safeguard the confidentiality of individually
identifiable information acquired under a pledge of
confidentiality for statistical purposes by controlling access
to, and uses made of, such information.
SEC. 102. LIMITATIONS ON USE AND DISCLOSURE OF DATA AND INFORMATION.
(a) Use of Statistical Data or Information.--Data or information
acquired by an agency under a pledge of confidentiality and for
exclusively statistical purposes shall be used by officers, employees,
or agents of the agency exclusively for statistical purposes.
(b) Disclosure of Statistical Data or Information.--
(1) Data or information acquired by an agency under a pledge
of confidentiality for exclusively statistical purposes shall
not be disclosed by an agency in identifiable form, for any use
other than an exclusively statistical purpose, except with the
informed consent of the respondent.
(2) A disclosure pursuant to paragraph (1) is authorized only
when the head of the agency approves such disclosure and the
disclosure is not prohibited by any other law.
(3) This section does not restrict or diminish any
confidentiality protections in law that otherwise apply to data
or information acquired by an agency under a pledge of
confidentiality for exclusively statistical purposes.
(c) Rule for Use of Data or Information for Nonstatistical
Purposes.--A statistical agency or unit shall clearly distinguish any
data or information it collects for nonstatistical purposes (as
authorized by law) and provide notice to the public, before the data or
information is collected, that the data or information could be used
for nonstatistical purposes.
(d) Designation of Agents.--A statistical agency or unit may
designate agents, by contract or by entering into a special agreement
containing the provisions required under section 2(2) for treatment as
an agent under that section, who may perform exclusively statistical
activities, subject to the limitations and penalties described in this
Act.
SEC. 103. FINES AND PENALTIES.
Whoever, being an officer, employee, or agent of an agency acquiring
information for exclusively statistical purposes, having taken and
subscribed the oath of office, or having sworn to observe the
limitations imposed by section 102, comes into possession of such
information by reason of his or her being an officer, employee, or
agent and, knowing that the disclosure of the specific information is
prohibited under the provisions of this Act, willfully discloses the
information in any manner to a person or agency not entitled to receive
it, shall be guilty of a class E felony and imprisoned for not more
than 5 years, or fined not more than $250,000, or both.
TITLE II--STATISTICAL EFFICIENCY
SEC. 201. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds the following:
(1) Federal statistics are an important source of information
for public and private decision-makers such as policymakers,
consumers, businesses, investors, and workers.
(2) Federal statistical agencies should continuously seek to
improve their efficiency. Statutory constraints limit the
ability of these agencies to share data and thus to achieve
higher efficiency for Federal statistical programs.
(3) The quality of Federal statistics depends on the
willingness of businesses to respond to statistical surveys.
Reducing reporting burdens will increase response rates, and
therefore lead to more accurate characterizations of the
economy.
(4) Enhanced sharing of business data among the Bureau of the
Census, the Bureau of Economic Analysis, and the Bureau of
Labor Statistics for exclusively statistical purposes will
improve their ability to track more accurately the large and
rapidly changing nature of United States business. In
particular, the statistical agencies will be able to better
ensure that businesses are consistently classified in
appropriate industries, resolve data anomalies, produce
statistical samples that are consistently adjusted for the
entry and exit of new businesses in a timely manner, and
correct faulty reporting errors quickly and efficiently.
(5) The Congress enacted the International Investment and
Trade in Services Act of 1990 that allowed the Bureau of the
Census, the Bureau of Economic Analysis, and the Bureau of
Labor Statistics to share data on foreign-owned companies. The
Act not only expanded detailed industry coverage from 135
industries to over 800 industries with no increase in the data
collected from respondents but also demonstrated how data
sharing can result in the creation of valuable data products.
(6) With title I of this Act, the sharing of business data
among the Bureau of the Census, the Bureau of Economic
Analysis, and the Bureau of Labor Statistics continues to
ensure the highest level of confidentiality for respondents to
statistical surveys.
(b) Purposes.--The purposes of this title are the following:
(1) To authorize the sharing of business data among the
Bureau of the Census, the Bureau of Economic Analysis, and the
Bureau of Labor Statistics for exclusively statistical
purposes.
(2) To reduce the paperwork burdens imposed on businesses
that provide requested information to the Federal Government.
(3) To improve the comparability and accuracy of Federal
economic statistics by allowing the Bureau of the Census, the
Bureau of Economic Analysis, and the Bureau of Labor Statistics
to update sample frames, develop consistent classifications of
establishments and companies into industries, improve coverage,
and reconcile significant differences in data produced by the
three agencies.
(4) To increase understanding of the United States economy,
especially for key industry and regional statistics, to develop
more accurate measures of the impact of technology on
productivity growth, and to enhance the reliability of the
Nation's most important economic indicators, such as the
National Income and Product Accounts.
SEC. 202. DESIGNATION OF STATISTICAL AGENCIES.
For purposes of this title, the term ``Designated Statistical
Agency'' means each of the following:
(1) The Bureau of the Census of the Department of Commerce.
(2) The Bureau of Economic Analysis of the Department of
Commerce.
(3) The Bureau of Labor Statistics of the Department of
Labor.
SEC. 203. RESPONSIBILITIES OF DESIGNATED STATISTICAL AGENCIES.
The head of each of the Designated Statistical Agencies shall--
(1) identify opportunities to eliminate duplication and
otherwise reduce reporting burden and cost imposed on the
public in providing information for statistical purposes;
(2) enter into joint statistical projects to improve the
quality and reduce the cost of statistical programs; and
(3) protect the confidentiality of individually identifiable
information acquired for statistical purposes by adhering to
safeguard principles, including--
(A) emphasizing to their officers, employees, and
agents the importance of protecting the confidentiality
of information in cases where the identity of
individual respondents can reasonably be inferred by
either direct or indirect means;
(B) training their officers, employees, and agents in
their legal obligations to protect the confidentiality
of individually identifiable information and in the
procedures that must be followed to provide access to
such information;
(C) implementing appropriate measures to assure the
physical and electronic security of confidential data;
(D) establishing a system of records that identifies
individuals accessing confidential data and the project
for which the data were required; and
(E) being prepared to document their compliance with
safeguard principles to other agencies authorized by
law to monitor such compliance.
SEC. 204. SHARING OF BUSINESS DATA AMONG DESIGNATED STATISTICAL
AGENCIES.
(a) In General.--A Designated Statistical Agency may provide business
data in an identifiable form to another Designated Statistical Agency
under the terms of a written agreement among the agencies sharing the
business data that specifies--
(1) the business data to be shared;
(2) the statistical purposes for which the business data are
to be used;
(3) the officers, employees, and agents authorized to examine
the business data to be shared; and
(4) appropriate security procedures to safeguard the
confidentiality of the business data.
(b) Responsibilities of Agencies Under Other Laws.--The provision of
business data by an agency to a Designated Statistical Agency under
this title shall in no way alter the responsibility of the agency
providing the data under other statutes (including section 552 of title
5, United States Code (popularly known as the Freedom of Information
Act), and section 552b of title 5, United States Code (popularly known
as the Privacy Act of 1974)) with respect to the provision or
withholding of such information by the agency providing the data.
(c) Responsibilities of Officers, Employees, and Agents.--Examination
of business data in identifiable form shall be limited to the officers,
employees, and agents authorized to examine the individual reports in
accordance with written agreements pursuant to this section. Officers,
employees, and agents of a Designated Statistical Agency who receive
data pursuant to this title shall be subject to all provisions of law,
including penalties, that relate--
(1) to the unlawful provision of the business data that would
apply to the officers, employees, and agents of the agency that
originally obtained the information; and
(2) to the unlawful disclosure of the business data that
would apply to officers, employees, and agents of the agency
that originally obtained the information.
(d) Notice.--Whenever a written agreement concerns data that
respondents were required by law to report and the respondents were not
informed that the data could be shared among the Designated Statistical
Agencies, for exclusively statistical purposes, the terms of such
agreement shall be described in a public notice issued by the agency
that intends to provide the data. Such notice shall allow a minimum of
60 days for public comment.
SEC. 205. LIMITATIONS ON USE OF BUSINESS DATA PROVIDED BY DESIGNATED
STATISTICAL AGENCIES.
(a) Use, Generally.--Business data provided by a Designated
Statistical Agency pursuant to this title shall be used exclusively for
statistical purposes.
(b) Publication.--Publication of business data acquired by a
Designated Statistical Agency shall occur in a manner whereby the data
furnished by any particular respondent are not in identifiable form.
SEC. 206. CONFORMING AMENDMENTS.
(a) Department of Commerce.--Section 1 of the Act of January 27, 1938
(15 U.S.C. 176a) is amended by striking ``The'' and inserting ``Except
as provided in the Confidential Information Protection and Statistical
Efficiency Act of 2002, the''.
(b) Title 13.--Chapter 10 of title 13, United States Code, is
amended--
(1) by adding after section 401 the following:
``Sec. 402. Providing business data to Designated Statistical Agencies
``The Bureau of the Census may provide business data to the Bureau of
Economic Analysis and the Bureau of Labor Statistics (`Designated
Statistical Agencies') if such information is required for an
authorized statistical purpose and the provision is the subject of a
written agreement with that Designated Statistical Agency, or their
successors, as defined in the Confidential Information Protection and
Statistical Efficiency Act of 2002.''; and
(2) in the table of sections for the chapter by adding after
the item relating to section 401 the following:
``402. Providing business data to Designated Statistical Agencies.''.
CONTENTS
Page
I. Purpose..........................................................7
II. Background and Need for the Legislation..........................7
III. Committee Actions................................................9
IV. Committee Hearings and Testimony.................................9
V. Section-by-Section Analysis of the Bill.........................10
VI. Committee Oversight Findings....................................14
VII. Budget Analysis and Projections.................................14
VIII.Cost Estimate of the Congressional Budget Office................14
IX. Performance Goals and Objectives................................15
X. Statement of Constitutional Authority...........................15
XI. Committee Recommendation........................................15
XII. Congressional Accountability Act................................16
XIII.Unfunded Mandates Reform Act....................................16
XIV. Federal Advisory Committee Act..................................16
XV. Changes in Existing Law.........................................16
I. Purpose
H.R. 5215, the ``Confidential Information Protection and
Statistical Efficiency Act of 2002,'' introduced by
Representative Stephen Horn (R-CA), would remove statutory
barriers that now prevent the Census Bureau, the Bureau of
Labor Statistics and the Bureau of Economic Analysis from
sharing and comparing business-related statistical data.
Allowing these agencies to share this business-related
information would substantially enhance the accuracy of
economic statistics. H.R. 5215 would also ensure that the
confidential data that individuals and businesses provide to
Federal agencies for statistical purposes are subject to
uniform and rigorous protections against unauthorized use.
II. Background and Need for Legislation
Accurate statistical data are essential to making informed
public and private decisions in a host of important areas,
including the Nation's economy and its many facets. The
Nation's core economic indicators--the Gross Domestic Product
and other key statistical aggregates--form the cornerstone of
Federal budgetary and monetary policy. Yet increasing data
anomalies and inconsistencies raise questions about the
accuracy of the Nation's economic statistics. For example, the
Department of Commerce recently had to make a historically
large $200 billion revision to its calculation of the Nation's
Gross Domestic Product because the Department lacked access to
the data it needed to produce timely and accurate estimates.
Such serious data inconsistencies call into question the
accuracy with which Federal agencies track industry output,
employment and productivity trends. During the last economic
census in 1997, the Bureau of Labor Statistics reported payroll
data in the information technology sector that was 13 percent
higher than the data reported by the Census Bureau. In
addition, there was a 14 percent disparity in the payroll data
reported by the two agencies for the motor freight,
transportation and warehousing industries.
The Census Bureau, the Bureau of Labor Statistics and the
Bureau of Economic Analysis each have a critical need for the
same statistical information, but they are prohibited by law
from sharing it. This Act would remove the statutory barriers
that now prevent these three agencies from sharing and
comparing statistical data. This increased data sharing would
largely eliminate the anomalies that now exist in Federal
statistics data and thereby greatly enhance their quality. The
Act would also eliminate much of the duplicative data
collection that now occurs, which will ease the reporting
burdens on businesses.
Some key features of the bill's data-sharing provisions are
the following:
The provisions apply only to the three agencies
previously mentioned--the Census Bureau, the Bureau of
Labor Statistics and the Bureau of Economic Analysis.
The provisions apply only to the sharing of business
data. They do not extend to household, demographic or
other data provided by individuals to the Federal
Government.
The enhanced data sharing can be used only for
statistical purposes.
The data sharing will be closely controlled under
written agreements that specify which data are to be
shared, the statistical purposes for which the data can
be used, and the individuals who are authorized to
receive the data. The agreements must include
appropriate security safeguards.
In addition, H.R. 5215 would enhance the protection of data
that both businesses and individuals provide to the Federal
Government on a confidential basis. In contrast to the Act's
limited data-sharing authorities, its confidentiality
protections are very broad. They apply to all Federal agencies
that collect data for statistical purposes from businesses or
individuals under a pledge of confidentiality.
The bill provides one uniform set of confidentiality
protections to supplant the ad hoc statutory protections that
now exist. The bill also establishes statutory protections in
some areas where no such protections currently exist. The
bill's enhanced confidentiality protections would improve the
quality of Federal statistics by encouraging greater
cooperation on the part of respondents. Even more important,
these protections ensure that the Federal Government does not
abuse the trust of those who provide data under a pledge of
confidentiality.
The key features of the confidentiality provisions in H.R.
5215 are the following:
The bill provides a clear and consistent standard for
the use of confidential statistical information.
The bill specifically prohibits the Federal
Government from using such information for any non-
statistical purpose. The bill defines a prohibited non-
statistical purpose as the use of data in an
identifiable form for any administrative, regulatory,
law enforcement, adjudicative or other purpose that
affects the rights, privileges or benefits of the
person or organization supplying the information.
The bill prohibits data that are acquired for
exclusively statistical purposes under a pledge of
confidentiality from being disclosed under the Freedom
of Information Act.
The bill imposes criminal penalties on Federal
employees or agents who willfully disclose information
in violation of the bill's requirements.
The Administration strongly supports H.R. 5215. This bill
is similar to another bill that Representative Horn introduced
during the 106th Congress, H.R. 2885, the ``Statistical
Efficiency Act of 1999.'' That bill received strong bipartisan
support and passed the House under suspension of the rules.
H.R. 5215 differs from its predecessor by narrowing the data-
sharing provisions and broadening the confidentiality
protections.
III. Committee Actions
Representative Horn introduced H.R. 5215 on July 25, 2002,
for himself and Representatives Tom Sawyer (D-OH) and Carolyn
Maloney (D-NY). The bill was referred to the Committee on
Government Reform and then was subsequently referred to the
Subcommittee on Government Efficiency, Financial Management and
Intergovernmental Relations.
On September 17, 2002, the Subcommittee on Government
Efficiency, Financial Management and Intergovernmental
Relations met in open session. The subcommittee reported the
bill as amended by voice vote to the Committee on Government
Reform. The full committee met on October 9, 2002, and
favorably reported the bill, as amended, by voice vote to the
House of Representatives.
At subcommittee, an amendment was adopted to clarify that
the bill would not prevent certain non-government researchers
from continuing to access statistical data they now receive on
a limited basis in a form that does not identify individual
respondents. Specifically, this amendment revised the
definition of ``identifiable form'' in section 2(4) of the bill
to mean ``any representation of information that permits the
identity of the respondent to whom the information applies to
be reasonably inferred by either direct of indirect means.'' As
well, the subcommittee amendment, adopted in the nature of a
substitute, added provisions to section 3 of the bill that
strengthened Office of Management and Budget and congressional
oversight of implementation of the bill.
At the full committee, Committee Ranking Minority Member
Henry Waxman (D-CA) offered two amendments, which were adopted.
The first amendment provided that nothing in the bill prohibits
Congress from obtaining data or information for a statistical
purpose, including for oversight of an agency's statistical
activities. The second amendment clarified the provisions of
the bill dealing with notice to the public when information is
being collected for a non-statistical purpose.
IV. Committee Hearings and Testimony
The Subcommittee on Government Efficiency, Financial
Management, and Intergovernmental Relations chaired by
Representative Horn, held a hearing on H.R. 5215 on September
17, 2002. At that hearing, the subcommittee explored how the
data-sharing provisions of the bill would improve the accuracy
and consistency of Federal statistics, and how the
confidentially provisions of the bill would enhance
confidentiality protections for individuals and businesses who
provide data to Federal agencies on a confidential basis.
The subcommittee heard testimony from the following
witnesses: Representative Thomas C. Sawyer (D-OH ); the
Honorable Randall S. Kroszner, Member, Council of Economic
Advisers; the Honorable Kathleen B. Cooper, Under Secretary for
Economic Affairs, Department of Commerce; the Honorable
Kathleen P. Utgoff, Commissioner, Bureau of Labor Statistics,
Department of Labor; Dr. Maurine Haver, Chair, Statistics
Committee of National Association for Business Economics; Dr.
William D. Nordhaus, Sterling Professor of Economics, Yale
University; and Dr. Ralph Rector, Research Fellow and Project
Manager, The Heritage Foundation. All of the witnesses strongly
supported the bill.
V. Section-by-Section Analysis of the Bill
Section 1--Short title
This section provides that the Act may be cited as the
``Confidential Information Protection and Statistical
Efficiency Act of 2002.''
Section 2--Definitions
Paragraph (1) of section 2 defines ``agency'' to mean
executive agencies as defined in section 102 of title 31,
United States Code or in section 3502 of title 44, United
States Code.
Paragraph (2) defines ``agent'' to mean any private
researcher, individual, consultant or contractor who is
operating under a contract with an executive agency to perform
exclusively statistical activities under the control of an
officer or employee of that agency. This definition also
includes persons who contract with an agency to design or
maintain the systems for handling or storing confidential data.
Agents must agree in writing to comply with all provisions of
law that affect information acquired by the agency with which
they have a contract.
Paragraph (3) defines ``business data'' as operating and
financial data and information about businesses, tax-exempt
organizations and government entities.
Paragraph (4) defines ``identifiable form'' as any
representation of information that permits the identity of the
respondent to whom the information applies to be reasonably
inferred by either direct or indirect means.
Paragraph (5) defines ``nonstatistical purpose'' as the use
of data in any form that is not a statistical purpose including
any administrative, regulatory, law enforcement, adjudicatory
or other purpose that affects the rights, privileges or
benefits of a particular identifiable respondent. This term
also includes disclosures under the Freedom of Information Act
(5 U.S.C. 552) of data that are acquired for exclusively
statistical purposes under a pledge of confidentiality.
Paragraph (6) defines ``respondent'' as a person or
organization that is requested or required to supply
information to an agency, is the subject of information
requested or required to be supplied to an agency, or provides
that information to an agency.
Paragraph (7) defines ``statistical activities'' as the
collection, compilation, processing or analysis of data for the
purpose of describing or making estimates concerning the
economy, society or the natural environment. The definition
includes the development of methods or resources that support
those activities.
Paragraph (8) defines ``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.
Paragraph (9) defines ``statistical purpose'' as the
description, estimation or analysis of the characteristics of
groups without identifying the individuals or organizations
that comprise such groups. The definition includes the
development, implementation or maintenance of methods,
technical or administrative procedures, or information
resources that support such purposes.
Section 3--Coordination and oversight of policies
Subsection (a) requires the Director of the Office of
Management and Budget (OMB) to coordinate and oversee the
disclosure and confidentiality policies under the Act. The
Director is authorized to issue rules or other guidance to
ensure consistent interpretation of the Act.
Subsection (b) authorizes agencies to promulgate rules to
implement the Act. The agency that originally collected the
information would promulgate rules governing authorized
disclosures of that information.
Subsection (c) requires the Director of OMB to review and
approve any agency rules under the Act for consistency with the
Act and the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Subsection (d) requires the designated statistical agencies
(the Census Bureau, the Bureau of Economic Analysis and the
Bureau of Labor Statistics) to report annually to the Director
of the Office of Management and Budget (OMB), the House
Committee on Government Reform and the Senate Committee on
Governmental Affairs on their actions to implement the business
data-sharing provisions of the Act. The reports shall include
copies of written agreements to share business data for the
applicable year. The OMB shall include a summary of the agency
reports and any actions taken by the OMB to advance the
purposes of this title, in its annual report to Congress on
statistical programs under 44 U.S.C. 3504(e)(2).
Section 4--Effect on other laws
Subsection (a) provides that the Act does not diminish the
authority of the OMB or agencies under 44 U.S.C. 3510 to share
information if the disclosure is consistent with any applicable
law.
Subsection (b) provides that the Act does not diminish the
authority of the Bureau of the Census to provide information in
accordance with sections 8, 16, 301, and 401 of title 13 and
section 2108 of title 44, of the United States Code.
Subsection (c) provides that the Act shall not be construed
as authorizing the disclosure of demographic data or
information collected by the Census Bureau pursuant to 13
U.S.C. 9 for non-statistical purposes.
Subsection (d) provides that the data or information
acquired by the Energy Information Administration under a
pledge of confidentiality and designated by the Energy
Information Administration to be used for exclusively
statistical purposes shall not be disclosed in identifiable
form for non-statistical purposes under various provisions of
law.
Subsection (e) provides that the Act does not preempt
applicable State law regarding the confidentiality of data
collected by the States.
Subsection (f) allows an agency to provide information,
which the agency collected under a pledge of confidentiality
for exclusively statistical purposes, to a law enforcement
agency for the prosecution under applicable statutes of anyone
who provides false statistical information. The subsection
further provides that such disclosures are permissible unless
Federal law would otherwise prohibit the disclosure.
Subsection (g) provides that nothing in the Act shall be
construed to restrict or diminish any confidentiality
protections or penalties for unauthorized disclosure that
otherwise apply to data or information collected for
statistical purposes or non-statistical purposes, including
section 6103 of the Internal Revenue Code.
Subsection (h) provides that nothing in the Act shall be
construed to affect the authority of Congress, including its
committees, members or agents, to obtain data or information
for a statistical purpose, including oversight of an agency's
statistical activities.
Title I--Confidential Information Protection
Section 101--Findings and purposes
This section contains congressional findings and purposes
with respect to the provisions of title I.
Section 102--Limitations on use and disclosure of data and information
Subsection (a) provides that data or information acquired
by an agency under a pledge of confidentiality and for
exclusively statistical purposes shall be used by officers,
employees or agents of the agency exclusively for statistical
purposes.
Subsection (b) provides that data or information acquired
by an agency under a pledge of confidentiality for exclusively
statistical purposes shall not be disclosed by an agency in
identifiable form, other than for an exclusively statistical
purpose, except with the informed consent of the respondent.
The subsection further provides that such a disclosure is
authorized only when the head of the agency approves the
disclosure and no other law prohibits the disclosure. Finally,
the subsection provides that section 102 does not restrict or
diminish any confidentiality protections in law that otherwise
apply to data or information acquired by an agency under a
pledge of confidentiality for exclusively statistical purposes.
Subsection (c) provides that a statistical agency or unit
shall clearly distinguish any data or information it collects
for non-statistical purposes (as authorized by law) and provide
notice to the public, before the data or information is
collected, that the data or information could be used for non-
statistical purposes.
Subsection (d) provides that a statistical agency or unit
may designate agents to perform exclusively statistical
activities, subject to the limitations and penalties described
in the Act. Such designations must be made by contracts or
agreements that contain the provisions required by section 2(2)
of the Act.
Section 103--Fines and penalties
This section provides fines and penalties for any officer,
employee or agent of an agency who acquires information for
exclusively statistical purposes and willfully discloses the
information to a person or agency not entitled to receive it.
Title II--Statistical Efficiency
Section 201--Findings and purposes
Section 201 contains congressional findings and purposes
with respect to the provisions of title II.
Section 202--Designation of Statistical Agencies
This section provides that, for purposes of title II, the
term ``Designated Statistical Agency'' means the Bureau of the
Census, the Bureau of Economic Analysis and the Bureau of Labor
Statistics.
Section 203--Responsibilities of Designated Statistical Agencies
This section imposes responsibilities on the heads of the
three Designated Statistical Agencies. The agency heads shall
identify opportunities to eliminate duplication and otherwise
reduce reporting burdens and costs imposed on the public in
providing information for statistical purposes. They shall
enter into joint statistical projects to improve the quality
and reduce the cost of statistical programs. Finally, they
shall protect the confidentiality of individually identifiable
information acquired for statistical purposes by adhering to
safeguard principles, including those principles specified in
section 203.
Section 204--Sharing of business data among Designated Statistical
Agencies
Subsection (a) authorizes a Designated Statistical Agency
to provide business data in an identifiable form to another
Designated Statistical Agency under the terms of a written
agreement among the agencies that are sharing the business
data. The agreement must specify: the business data to be
shared; the statistical purposes for which the business data
are to be used; the officers, employees and agents authorized
to examine the business data to be shared; and appropriate
security procedures to safeguard the confidentiality of the
business data.
Subsection (b) states that the provision of business data
by an agency to a Designated Statistical Agency under this
title shall not alter the status of the data or the
responsibilities of that agency under other statutes, including
the Freedom of Information Act (5 U.S.C. 552) and the Privacy
Act of 1974 (5 U.S.C. 552b).
Subsection (c) provides that examination of business data
in identifiable form shall be limited to the officers,
employees and agents authorized to examine the individual
reports in accordance with written agreements pursuant to the
Act. This subsection further provides that officers, employees,
and agents of a Designated Statistical Agency who receive data
pursuant to this title shall be subject to the same laws and
penalties relating to the unlawful provision or disclosure of
the business data that apply to the officers, employees, and
agents of the agency that originally obtained the data.
Subsection (d) provides that when a written agreement
concerns data that respondents were required by law to report
and the respondents were not informed that the data could be
shared among the Designated Statistical Agencies for
exclusively statistical purposes, the terms of the agreement
shall be described in a public notice issued by the agency that
intends to provide the data. The notice shall allow a minimum
of 60 days for public comment.
Section 205--Limitations on use of business data provided by Designated
Statistical Agencies
Subsection (a) states that business data provided by a
Designated Statistical Agency pursuant to title II shall be
used exclusively for statistical purposes.
Subsection (b) provides that business data acquired by a
Designated Statistical Agency shall not be published in a
manner that would allow the identification of a particular
respondent.
Section 206--Conforming amendments
Subsection (a) pertains to the Department of Commerce. It
amends a provision prohibiting disclosure of confidential
information by the Bureau of Foreign and Domestic Commerce to
permit disclosure pursuant to the Act.
Subsection (b) adds a new provision to title 13 of the
United States Code to permit the Bureau of the Census to
provide business data to the Bureau of Economic Analysis and
the Bureau of Labor Statistics pursuant to agreements entered
into under the provisions of the Act.
VI. Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
VII. Budget Analysis and Projections
Clause 3(c)(2) of rule XIII, of the Rules of the House of
Representatives, is inapplicable because the bill does not
provide new budget authority, new spending authority, new
credit authority, or an increase or decrease in revenues or tax
expenditures.
VIII. Cost Estimate of the Congressional Budget Office
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 8, 2002.
Hon. Dan Burton,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5215, the
Confidential Information Protection and Statistical Efficiency
Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Ken
Johnson, and Christina Hawley Sadoti.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 5215--Confidential Information Protection and Statistical
Efficiency Act of 2002
H.R. 5215 would allow the Census Bureau, the Bureau of
Economic Analysis (BEA), and the Bureau of Labor Statistics
(BLS) to undertake joint statistical projects and share
business data, subject to certain confidentiality restrictions.
The bill also would create new criminal fines for any employee
from those agencies that purposefully discloses data in
violation of the bill's confidentiality provisions.
Enacting H.R. 5215 could result in the collection of
additional criminal fines. Such fines are deposited in the
Crime Victims Fund and spent in subsequent years. However, CBO
estimates that any increase in revenues and direct spending
would be negligible.
CBO also expects that allowing the Census Bureau and BLS to
share business data could generate cost savings for the two
agencies. Under current law, statistical agencies cannot
exchange such data, and therefore sometimes collect duplicative
information. For example, the Census Bureau and BLS together
typically spend about $150 million a year to collect and
process data for their own independent lists of business
establishments. Under H.R. 5215, these agencies could create
one master list and potentially reduce total data collection
and maintenance costs. Based on information from the two
agencies, the Office of Management and Budget, and the General
Accounting Office, CBO estimates that, after an implementation
period of two or three years, the Census Bureau and BLS could
achieve savings of up to $10 million annually, assuming that
appropriations for the two agencies are reduced accordingly.
H.R. 5215 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contacts for this estimate are Ken Johnson,
and Christina Hawley Sadoti. The estimate was approved by Peter
H. Fontaine, Deputy Assistant Direct for Budget Analysis.
IX. Performance Goals and Objectives
H.R. 5215 does not authorize funding. Therefore, clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable.
X. Statement of Constitutional Authority
Pursuant to rule XIII, clause 3(d)(1), the Committee finds
that clauses 1 and 18 of Article I, Section 8 of the U.S.
Constitution grant Congress the power to enact this law.
XI. Committee Recommendation
On October 9, 2002, a quorum being present, the Committee
on Government Reform ordered the bill, as amended, favorably
reported by voice vote to the House of Representatives for
consideration.
XII. Congressional Accountability Act
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(B)(3) of the Congressional Accountability Act (Public Law
104-1).
XIII. Unfunded Mandates Reform Act
The Committee finds that the legislation does not impose
any Federal mandates within the meaning of section 423 of the
Unfunded Mandates Reform Act (Public Law 104-4).
XIV. Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize establishment of an advisory committee within the
definition of 5 U.S.C. App., section 5(b).
XV. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ACT OF JANUARY 27, 1938
AN ACT To make confidential certain information furnished to the Bureau
of Foreign and Domestic Commerce, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That any
statistical information furnished in confidence to the Bureau
of Foreign and Domestic Commerce by individuals, corporations,
and firms shall be held to be confidential, and shall be used
only for the statistical purposes for which it is supplied.
[The] Except as provided in the Confidential Information
Protection and Statistical Efficiency Act of 2002, the Director
of the Bureau of Foreign and Domestic Commerce shall not permit
anyone other than the sworn employees of the Bureau to examine
such individual reports, nor shall he permit any statistics of
domestic commerce to be published in such manner as to reveal
the identity of the individual, corporation, or firm furnishing
such data.
* * * * * * *
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TITLE 13, UNITED STATES CODE
* * * * * * *
CHAPTER 10--EXCHANGE OF CENSUS INFORMATION
Sec.
401. Exchange of census information with Bureau of Economic
Analysis.
402. Providing business data to Designated Statistical Agencies.
* * * * * * *
Sec. 402. Providing business data to Designated Statistical Agencies
The Bureau of the Census may provide business data to the
Bureau of Economic Analysis and the Bureau of Labor Statistics
(``Designated Statistical Agencies'') if such information is
required for an authorized statistical purpose and the
provision is the subject of a written agreement with that
Designated Statistical Agency, or their successors, as defined
in the Confidential Information Protection and Statistical
Efficiency Act of 2002.
* * * * * * *