[Federal Register: October 6, 2000 (Volume 65, Number 195)]
[Rules and Regulations]
[Page 59713-59716]
[DOCID:fr06oc00-10]

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DEPARTMENT OF COMMERCE

Bureau of the Census

15 CFR Part 101

[Docket No.: 000609172-0268-02]
RIN: 0607-AA33

Report of Tabulations of Population to States and Localities
Pursuant to 13 U.S.C. 141(c) and Availability of Other Population
Information

AGENCY: Department of Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce is issuing a final rule setting
forth how the Bureau of the Census will carry out its responsibilities
to report tabulations of population to States and localities pursuant
to 13 U.S.C. 141(c) and in making available certain other population
information.

[[Page 59714]]

DATES: This rule is effective November 6, 2000.

FOR FURTHER INFORMATION CONTACT: John H. Thompson, (301) 457-3946.

SUPPLEMENTARY INFORMATION: Through the Census Act, which is codified in
title 13 of the United States Code, Congress has delegated to the
Secretary of Commerce its broad constitutional authority over the
decennial census (see U.S. Constitution Art. I, Sec. 2, Cl.3). On June
13, the Commerce Department issued a proposed rule that would set forth
how the Bureau of the Census will carry out its responsibilities to
report tabulations of population to States and localities pursuant to
the Census Act. See 65 FR 38370 (June 20, 2000). The proposed rule
would establish a process for the release of data to the States and
codify the process by which a committee of senior career officials of
the Census Bureau would advise the Director of the Census. In addition,
the proposed rule contained a delegation of authority from the
Secretary to the Director of the Census to make a determination
regarding the methodology to be used in calculating the tabulations of
population to be reported to States and localities pursuant to 13
U.S.C. 141(c). While the background and basis for the entire proposal
were included in the June 20 publication and are not repeated here,
this delegation of authority to the Director, in particular, was
included in the proposed rule because the decision turns entirely on
operational and methodological implementation within the scientific
expertise of the Bureau of the Census, and it is important to avoid
even the appearance that considerations other than those relating to
statistical science are being taken into account.

Comments and Responses

Comments in Support of the Proposed Rule

The Department received 17 letters in support of the proposed rule.
There were a total of 243 signatories to these letters. Comments
included one letter signed by four former Directors of the Census
Bureau; five letters with six signatories from statistical, social
science, and survey research organizations; three letters with six
signatories from universities or university-based research
institutions; two letters signed by 69 Members of Congress; three
letters with 15 signatories from national associations and
organizations; two letters with two signatories from state or local
government officials; and one letter with 141 signatories from a public
interest organization.
Comment
Common to the letters in support of the proposed rule were the
following two comments: (1) The decision on the use of statistically
corrected redistricting and other non-apportionment data from Census
2000 is a technical/scientific decision that should be made by the
Director of the Census upon the recommendation of his or her
professional staff, and (2) the rule ensures that other, irrelevant
considerations, especially those that are political in nature, do not
affect the decision-making process. A number of comments stated
agreement with the intent to ensure that politics do not dictate what
should be a scientific decision. Others said the proposed rule sets
forth a fair and unbiased procedure for making a vital decision on the
release of statistically corrected redistricting and other non-
apportionment data. Others viewed the release of the recommendation of
the Executive Steering Committee for Accuracy and Coverage Evaluation
(A.C.E.) Policy (ESCAP) to the public at the same time that it is
delivered to the Director as helpful in ensuring that the proposed
decision-making process is an open and transparent one.
Response
The Department notes the support for the proposal stated in these
comments.

Comments in Opposition to the Proposed Rule

The Department received seven letters in opposition to the proposed
rule. There were a total of 12 signatories to these letters. Two of
these letters were signed by university officials; one letter was
signed by six Members of Congress; two letters with two signatories
from state government officials; one letter with one signatory from a
non-profit legal organization; and one letter from a private
individual.
Comment
Several of those commenting viewed the contents of the ``Accuracy
and Coverage Evaluation--Statement on the Feasibility of Using
Statistical Methods to Improve the Accuracy of Census 2000,'' 65 FR
38373-38398 (hereinafter, the Feasibility Statement), as evidence that
the Census Bureau pre-judged the superior accuracy of the sampling-
based counts.
Response
We regret this concern. To date, no decision has been reached. The
Census Bureau has stated that it expects the statistically corrected
data to be more accurate for non-apportionment uses of the data,
including redistricting and for this reason it is implementing the
Accuracy and Coverage Evaluation (A.C.E.) (see the Feasibility
Statement). However, the Census Bureau will not determine whether it is
appropriate to release statistically corrected redistricting data until
it has brought its technical judgment to bear in assessing the
available data to verify that its expectations have been met. The
Census Bureau will consider operational data to validate the successful
conduct of the A.C.E., assess whether the A.C.E. measurements of
undercount are consistent with historical patterns of undercount and
independent Demographic Analysis benchmarks, and review measures of
quality. If the Census Bureau determines that incorporating the results
of the survey would not improve the accuracy of the initial census
counts, then the data without statistical correction would be released
to meet the requirements of Pub.L. 94-171.
Comment
Several letters raised technical concerns regarding the use of
statistical methods to correct the census and challenged the arguments
set forth in the Feasibility Statement.
Response
These concerns or issues are beyond the scope of the rulemaking and
will not be addressed specifically. However, as part of the evaluation
process described in the proposed rule, these and other technical
issues will be considered. Also, this fall, at a public meeting with
outside statistical experts and other interested parties, the Census
Bureau will provide additional information regarding the detailed
analyses it plans to conduct as part of its decision-making process.
Comment
Two letters questioned the expertise of the National Academy of
Sciences (NAS) panels that have been convened over this decade to
review the planning and conduct of Census 2000. One questioned the
expertise of the Secretary of Commerce's and the Census Bureau's
advisory committees in their work relating to Census 2000.
Response
The NAS panels and the various advisory committees are composed of
professionals with excellent credentials to review and provide advice
on the planning and conduct of the decennial census. In particular, the
NAS panel members are carefully selected from among the country's
leading experts in

[[Page 59715]]

a wide variety of research fields, including statistical and survey
methodology. The NAS has a long and distinguished history of advising
the federal government on scientific and technical matters. With regard
to the selection of advisory committee members, both the Secretary of
Commerce and the Census Bureau went to great lengths to ensure that the
committees possess well-documented expertise in a wide range of areas
relating to the conduct of the decennial census, including, but not
limited to, statistical and survey methodology.
Comment
Several letters indicated that the Census Bureau professional staff
have a vested interest in the acceptance and use of the statistically
derived counts. One stated that past Census Bureau judgments on
adjustment issues lead one to question the agency's ability to reach
the correct decision. In addition, one letter stated that the lack of
review or input from independent scientific experts biases the decision
making process.
Response
The senior professional officials who serve on the Executive
Steering Committee for A.C.E. Policy (ESCAP) are distinguished,
objective, career civil servants whose only interest is in producing
the most reliable and accurate census data possible. Many of these
individuals have been recognized by leading statistical organizations
for their significant contributions in the areas of survey methodology
and statistics in general. Based on their years of experience and
expertise, these officials are best suited to bring their professional
judgment and integrity to bear in reviewing all the available data and
directing a comprehensive, scientifically-defensible analysis in making
a recommendation on their findings to the Director regarding the use of
the statistically corrected census data. The ESCAP's recommendation
will be released publicly, at the same time that it is delivered to the
Director, to demonstrate the thoroughness and integrity of the process
for all interested parties.
Comment
One comment acknowledged that the Census Bureau committed itself to
achieving an open and transparent planning and decision process,
however, the writer considered Census Bureau reports and documentation,
including the A.C.E. documentation, on statistical adjustment to be
difficult to access because they were not catalogued to facilitate
external access.
Response
The Census 2000 A.C.E. methodology has been pre-specified and
documentation regarding the methodology has been disseminated through a
variety of forums including the Census Bureau's website, public
meetings, two public workshops sponsored by the National Academy of
Sciences (October 6, 1999, and February 2-3, 2000), and at a May 19,
2000, hearing before the House Subcommittee on the Census. The Census
Bureau will continue to make documentation relating to Census 2000
publicly available and available upon request.
Comment
One comment questioned whether the Secretary's proposed delegation
of authority to the Director of the Census for making certain
determinations concerning the census amounted to a divestiture of
obligations vested in the Secretary by the Congress. The comment
expressed three key concerns: (1) That the delegation of authority is,
in fact, a ``divestiture'' of authority because the Secretary is
seeking to escape responsibility for the decision of the Census
Director by stating that the Secretary will not review or reverse that
decision, (2) that by issuing a regulation that allegedly divests the
Secretary of his statutory responsibility, the Secretary is attempting
to supersede the statutory scheme passed by the Congress, and (3) that
if ``the Commerce Secretary believes he cannot, or should not, be
responsible for the final release of adjusted numbers, then he should
ask that Congress remove the Census Bureau entirely from the Commerce
Department and make it a separate agency.''
Response
The Department of Commerce considers Section 4 of Title 13, United
States Code to clearly provide the Secretary authority to issue the
proposed rule and to include in that proposal the delegation of
authority at issue. That section provides that:

The Secretary shall perform the functions and duties imposed
upon him by this title, may issue such rules and regulations as he
deems necessary to carry out such functions and duties, and may
delegate the performance of such functions and duties and the
authority to issue such rules and regulations to such officers and
employees of the Department of Commerce as he may designate.
(Emphasis added.)

This statutory language provides the Secretary with broad authority
to take the steps he deems appropriate to carry out his
responsibilities under the law, and that language does not establish
limitations on the Secretary's ability to delegate the performance of
his functions and duties under the Census Act. As such, the Secretary
may delegate the authority to determine the methodology to be used in
calculating the tabulations of population reported to States and
localities pursuant to 13 U.S.C. 141(c).
The delegation of authority contained in the Department's proposed
rule is not an unlawful divestiture of the Secretary's statutory
responsibility or authority because the delegation, if adopted in a
final rule, would not be irrevocable. Thus, the current or any future
Secretary of Commerce could revoke that delegation by issuing another
final rule doing so. It is unassailable that a rule revoking the
delegation would be effective, if it satisfied the requirements of the
Administrative Procedure Act and other applicable legal standards.
Further, the fact that the rule seeks to authorize the Director of the
Census to make a determination under the Census Act, and states that
the Director's decision would not be subject to review or
reconsideration by the Secretary, does not mean the Secretary would
escape responsibility for that determination. By establishing this
delegation of authority by regulation, the Secretary is merely creating
a transparent process for allowing a scientific determination to be
made by scientists. However, the decision is being made on behalf of
the Secretary. Inherent in the delegation of authority is the notion
that the Secretary is responsible for the determination made by the
head of the scientific bureau in which the particular knowledge and
experience for making that determination lies. Nevertheless, in order
to erase any doubt that the delegation of authority is not a
divestiture of obligations or responsibility by the Secretary, text has
been added to 15 CFR 101.1(a) that explicitly states that nothing in
the rule diminishes the authority of the Secretary of Commerce to
revoke this delegation of authority or relieves the Secretary of
Commerce of responsibility for any decision made by the Director of the
Census pursuant to this delegation, and that this rule shall remain in
effect unless or until amended or revoked by the Secretary of Commerce.
Comment
One letter provided the Memorandum of Law in a case currently
proceeding in the U.S. District Court for the District of Columbia
(Commonwealth of Virginia v. United States of America, Case No.

[[Page 59716]]

1:00CV00751) stating that the memorandum demonstrates the rulemaking
provides no real opportunity to provide meaningful comments.
Response
The Department considers the notice and comment associated with
this rulemaking to be an appropriate venue for meaningful comment. With
respect to the Memorandum of Law, the Department is not party to the
case and, therefore, does not believe it appropriate to make any
statement on the arguments presented.

Administrative Law Requirements

Executive Order 12866

This final rule has been determined to be not significant under
section 3(f) of Executive Order 12866.

Paperwork Reduction Act

This final rule contains no new information collection requests
subject to the Paperwork Reduction Act.

Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that the proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
No comments were received regarding this certification. Thus, the
factual basis for the certification has not changed. As such, a final
regulatory flexibility analysis is not required, and none has been
prepared.

Unfunded Mandate Reform Act of 1995

This rule contains no Federal mandates, as that term is defined in
the Unfunded Mandates Reform Act, on State, local and tribal
governments or the private sector.

Executive Order 12630

This rule does not contain policies that have takings implications.

List of Subjects in 15 CFR Part 101

Administrative practice and procedure, Census data.

Dated: September 28, 2000.
Norman Y. Mineta,
Secretary of Commerce.
For the reasons set out in the preamble, 15 CFR Part 101 is added
to read as follows:

PART 101--RELEASE OF DECENNIAL CENSUS POPULATION INFORMATION

101.1 Report of tabulations of population to states and localities
pursuant to 13 U.S.C. 141(c).
101.2 Availability of other population information.

Authority: 5 U.S.C. 301; 13 U.S.C. 4, 141, 195; 15 U.S.C. 1512.

PART 101--RELEASE OF DECENNIAL CENSUS POPULATION INFORMATION


Sec. 101.1 Report of tabulations of population to states and
localities pursuant to 13 U.S.C. 141(c).

(a)(1) The Director of the Census shall make the final
determination regarding the methodology to be used in calculating the
tabulations of population reported to States and localities pursuant to
13 U.S.C. 141(c). The determination of the Director will be published
in the Federal Register.
(2) All relevant authority of the Secretary of Commerce under 13
U.S.C. 141(c) and other applicable provisions of title 13 of the U.S.
Code with respect to the decision to be made pursuant to paragraph
(a)(1) of this section is hereby conferred upon the Director of the
Census.
(3) The Director of the Census shall not make the determination
specified in paragraph (a)(1) of this section until after he or she
receives the recommendation of the Executive Steering Committee for
A.C.E. Policy (ESCAP) in accordance with paragraph (b)(1) of this
section.
(4) The determination of the Director of the Census shall not be
subject to review, reconsideration, or reversal by the Secretary of
Commerce.
(5) Nothing in this section diminishes the authority of the
Secretary of Commerce to revoke or amend this delegation of authority
or relieves the Secretary of Commerce of responsibility for any
decision made by the Director of the Census pursuant to this
delegation. This section shall remain in effect unless or until amended
or revoked by the Secretary of Commerce.
(b)(1) The Executive Steering Committee for A.C.E. Policy shall
prepare a written report to the Director of the Census recommending the
methodology to be used in making the tabulations of population reported
to States and localities pursuant to 13 U.S.C. 141(c).
(2) The report of the Executive Steering Committee for A.C.E.
Policy described in paragraph (b)(1) of this section shall be released
to the public at the same time it is delivered to the Director of the
Census. This release to the public shall include, but is not limited
to, posting of the report on the Bureau of the Census website and
publication of the report in the Federal Register.
(3) The ``Executive Steering Committee for A.C.E. Policy'' (ESCAP)
is composed of the following employees of the Bureau of the Census:
(i) Deputy Director and Chief Operating Officer;
(ii) Principal Associate Director and Chief Financial Officer;
(iii) Principal Associate Director for Programs;
(iv) Associate Director for Decennial Census (Chair);
(v) Assistant Director for Decennial Census;
(vi) Associate Director for Demographic Programs;
(vii) Associate Director for Methodology and Standards;
(viii) Chief; Planning, Research, and Evaluation Division;
(ix) Chief; Decennial Management Division;
(x) Chief; Decennial Statistical Studies Division;
(xi) Chief; Population Division; and (xii) Senior Mathematical
Statistician.


Sec. 101.2 Availability of Other Population Information.

(a) When the Director of the Census determines pursuant to
Sec. 101.1(a)(1) of this part to use methodologies including the
statistical method known as ``sampling'' to produce the tabulations of
population to report to States and localities pursuant to 13 U.S.C.
141(c), data prepared without the use of such statistical method shall
be made available to the public in accordance with the standards set
forth in section 209(j) of Public Law 105-119, 111 Stat. 2440,
simultaneously with the issuance of the report to States.
(b) When the Director of the Census determines pursuant to
Sec. 101.1(a)(1) of this part to produce tabulations of population
without the use of methodologies including the statistical method known
as sampling, for reporting to States and localities pursuant to 13
U.S.C. 141(c) notwithstanding a recommendation by the Executive
Steering Committee for A.C.E. Policy to use sampling, data prepared
with the use of such statistical method shall be made available to the
public in accordance with the standards set forth in section 209(j) of
Public Law 105-119, 111 Stat. 2440, for the release of data prepared
without the use of such statistical method, simultaneously with the
issuance of the report to States.

[FR Doc. 00-25501 Filed 10-5-00; 8:45 am]
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