B-237186, Jun 27, 1990

B-237186, Jun 27, 1990

APPROPRIATIONS/FINANCIAL MANAGEMENT - Federal Assistance - Grants - Allocation - Census data DIGEST: 1. Section 183 of title 13 of the United States Code (13 U.S.C. Sec. 183 (1988)), does not require agencies to use the most recent population estimates published by the Bureau of the Census in the allocation of federal grant funds. 2. Grant program authorizing statutes which specify use of "census" data may be properly construed by grant administrators as requiring the use of decennial census data. Subject: Population data to be used in allocating funds under federal grant statues (B-237186: Code 118844)

Evaluator-In-Charge, HRD - Robert F. Derkits:

In the course of your review of federal grant programs that base the distribution of funds on population, you asked whether section 183 of title 13 of the United States Code (13 U.S.C. Sec. 183 (1988)) requires agencies to use the most recent population statistics published by the Bureau of the Census (Bureau) in programs whose authorizing statutes do not require use of other data such as decennial census figures. /1/ You also asked whether grant program authorizing statutes which specify use of "census" data may be properly construed by grant administrators as requiring the use of decennial census data.

We conclude that section 183 does not mandate the use of population statistics most recently published by the Bureau in the allocation of federal grant funds. However, Office of Management and Budget (OMB) Statistical Directive Number 13 generally directs federal grant administrators to use recent Bureau statistics when measuring total population. /2/ We also conclude that reference in certain grant statutes to "census" data reasonably may be interpreted to mean decennial census data.

Section 183 of Title 13 of the United States Code

Section 183 requires the Secretary of Commerce to provide the President with the data most recently published by the Bureau for the purpose of administering grant programs that distribute funds on the basis of population statistics. The section reads as follows:

"(a) Except as provided in subsection (b), for the purpose of administering any law of the United States in which population is used to determine the amount of benefit received by State, county, or local units of general purpose government, the Secretary of Commerce shall transmit to the President for use by the appropriate departments and agencies of the executive branch the data most recently produced and published under this title.

"(b) This section shall not apply with respect to any law of the United States which, for purposes of determining the amount of benefit received by State, county, or local units of general purpose government, provides that only population ... data obtained in the most recent decennial census may be used in such determination."

13 U.S.C. Sec. 183 (1988).

This provision, which was part of a law enacted in 1976 (Pub.L. No. 94-521, 8(a), 90 Stat. 2463) authorizing a mid-decade census and requiring the Bureau to publish annual population statistics, clearly mandates the transmission of these published statistics to the President. It is not clear, however, that agencies are required to use the data. It is possible to read the law as requiring the transmission of the data but leaving to the recipient agencies discretion to use the data or not.

The legislative history of section 183 indicates that Congress was aware of reasons not to require the use of the population estimates. Representative Pat Schroeder, a member of the conference committee on H.R. 11337 (which became Pub.L. No. 94-521 upon enactment), stated, prior to the final vote on the bill in the House of Representatives, in relevant part, as follows:

"... as Federal formula grant programs have increased during the past 15 years, an inequitable situation has developed wherein some allocation formulas are forced to use population statistics which are up to 11 years old. This bill greatly improves this situation. Some in Congress have suggested that this problem would be solved if we simply pass legislation to mandate the use of updated population estimates in allocation formulas. ...

Our conference committee believes that this approach would compound certain inequities in other areas.

"This is because estimates do not update certain 'target population' factors, such as the persons living below certain income levels, the aged, the disadvantaged and the ill-housed. ... A mid-decade census would update these 'target populations' and therefore would maximize equality in distribution of Federal formulas."

120 Cong. Rec. 12208 (1976).

Rep. Schroeder's comments reflect both the rejection of a blanket mandate to use updated population estimates, and a judgement that a mid decade census was the preferable solution to the problem of stale data.

Finally, a reading of the references in section 183 to agency use of recent population data as permissive is supported by a comparison of the section with section 141(e)(1) of the same title, which also was enacted in Public Law 94-521. Section 141(e)(1) states that when grant statutes require the use of population statistics derived from the decennial census, "the most recent data available from either the mid decade or decennial census shall be used." /3/ The clear mandate in section 141(e)(1) that agencies use the mid-decade census data suggests that the absence of clear language in section 183 reflected congressional intent not to require agency use of annual reports issued by the Bureau.

The conclusion that section 183 does not require the use of the most recently published population statistics appears also to have been reached by certain members of Congress who have proposed amendments to section 183. The proposed amendments contain language clearly requiring agency use of the most recent population data. See S. 477, 101st Cong., 1st Sess. (1989); H.R. 1631, 101st Cong., 1st Sess. (1989). Both bills provide that agencies "shall use" in administering grant programs "the data most recently produced and published" by Commerce. /4/

However, OMB has directed executive agencies to use the most current data published by the Bureau when using total population to distribute grant funds unless the program-authorizing statute requires use of data derived from the decennial census. OMB Statistical Directive No. 13 (1978). Therefore, administrators of grant programs with authorizing statutes that do not require use of data derived from the decennial census should use most recent Bureau data when using total population data.

Grant Programs with Authorizing Statutes Referring to Use of Federal Census Data

You pointed out that eleven grant programs administered by the Department of Transportation which relied upon decennial census figures were authorized by statutes that used the term "census," as opposed to "decennial census." See 23 U.S.C. Sec. 104(b)(1),(2),(6) (authorizing Highway Planning and Construction: Rural Secondary; Highway Planning and Construction: Urban System Rail-Highway Crossings; Highway Planning and Construction: Primary System; Highway Planning and Construction: Urban System grant programs), 104(f)(2) (authorizing Highway Planning and Construction: Urban Transportation grant program), 402(c) (data source provision applicable to State and Community Highway Safety program; Highway Planning and Construction: Highway Safety program; Highway Planning and Construction: Hazard Elimination program); 49 U.S.C. App. 1604(a)(2)(A)(i), (ii) (authorizing Urban Mass Transportation Capital and Operating Assistance-- Small Urban grant program; Urban Mass Transportation Capital and Operating Assistance-- Large Urban grant program), 1614 (authorizing Public Transportation for Nonurbanized Areas grant program) (1988). You asked whether these statutes may be properly construed as directing use of data derived from the decennial census, instead of more frequently-produced figures.

In each of the eleven transportation grant programs, the authorizing statute directs the distribution of funds to populations "as shown by the latest available census," or "as shown by the latest available federal census." Department of Transportation implementing regulations for highway grant programs define the latter above-quoted phrase to mean "latest available federal decennial census". 23 C.F.R. Sec. 1.2(b) (1989).

The legislative histories of sections 1604(a)(2)(A)(i) and (ii) of title 49 of the United States Code appendix and sections 104(b)(1) and (2) of title 23 of the United States Code indicate that Congress intended agency use of population statistics derived from the decennial census. In the conference report on the Urban Mass Transportation Assistance Act of 1974, in which the data source reference in sections 1604(a)(2)(A)(i) and (ii) originated, the conference committee offered the following clarification of the language:

"One of the bases of criticism of the original bill was the distribution formula. The use of revenue passenger and vehicle miles as factors in the formula were criticized because they were not reliably ascertainable numbers. ... Therefore, the conference adopted the factors of population and population weighted by density that are based upon the 1970 census figures." S. Rep. No. 1288, 93d Cong., 2d Sess.

The data source language in sections 104(b)(1) and (b)(2) of title 23 of the United States Code was first enacted in the 1921 Federal Highway Aid Act. See 1921, Nov. 9, CH 119, 42 Stat. 212, Pub.L. No. 87, 67th Cong., 1st Sess. Because the Bureau was not authorized to conduct interim population studies at the time the 1921 Act was enacted, Congress presumably intended use of decennial census data when it directed use of "Federal census" statistics.

The legislative histories of sections 104(b)(6), 104(f) and 402 of title 23 of the United States Code and section 1614 of title 49 of the United States Code appendix are silent with regard to use of particular population measures.

The United States Constitution requires an "enumeration" of population to be made every ten years. U.S. Const. art. I, 2, cl.3. The term "census" generally has been defined as an "official counting or enumeration of people of a state, nation, district, or other political subdivision." Black's Law Dictionary 203 (5th Ed. 1979). Judicially it has been defined as "a finding of the population and not an estimate ..." City of Bisbee v. Williams, 317 P. 2d 567, 569 (Ariz. S.Ct. 1957), quoting, State ex rel. Reynolds v. Jost, 175 S.W. 591, 597 (Mo. 1915). Since "census" has been commonly defined as an actual count, not an estimate, it seems reasonable to interpret it to mean "decennial census" (or mid-decade census, if applicable), which is the only actual population count conducted by the Bureau.

In view of the above-described legislative histories and the generally- accepted definition of the term "census," we conclude that reference in the grant authorizing statutes to the term "census" or "federal census" reasonably may be interpreted to mean the decennial census, and not interim population counts. Therefore, we conclude that the Department of Transportation has acted in a reasonable manner.

/1/ Total population refers to the entire population, not broken down by characteristics, within a specific geographic area.

/2/ No mid-decade census has been conducted.

/3/ In comments on an earlier bill that proposed to amend section 183 by deleting subsection (b), the Comptroller General pointed out the ambiguity that resulted from the lack of mandatory wording in subsection (a). (B- 206741, April 20, 1982.)

/4/Heroux seeks to justify not inquiring about the status of its October 27 letter by asserting that it was unfamiliar with the provision in our Regulations for a timely acknowledgement of receipt of a protest, 4 C.F.R. Sec. 21.3 (a), and, therefore, assumed that an agency report would be forthcoming. Since our Regulations were published in the Federal Register and appear in the Code of Federal Regulations, protesters are charged with constructive knowledge of their contents and may not rely on an alleged lack of actual knowledge to avoid filing timely protests. Kaydon Corp.-- Request for Recon., B-237062.2, Nov. 21, 1989, 89-2 CPD Para. 486.