[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Rules and Regulations]
[Pages 59713-59716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25501]


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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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