B-289852 April 4, 2002 The Honourable Bob Barr Vice Chairman of the Committee on Government Reform Of the House of Representatives Subject: Legal Authority for the U.S. Community Survey Dear Mr. Vice President: This responds to your letter regarding the legal authority of the United States Census Bureau (Bureau) to conduct the American Community Survey (ACS), a monthly survey of a sample of households, from 2003, the long-form decennial census will be replaced in 2010. You have asked us for (1) the legal authority under which the Office directs the ACS, including the legislative background regarding the development and implementation of the ACS, (2) the Office`s legal authority to require recipients to respond to the ACS, and (3) information on any other federal government questionnaire or survey that requires similar specific requirements, to be provided. Detailed personal data will be provided to the government. To answer your questions, we reviewed various legislative documents such as public legislation, committee reports and hearings, as well as congressional minutes for references to the TISA, solicited and received comments from the Department of Commerce, and met informally with trade and office officials to discuss these issues. We also searched an Office of Management and Budget (OMB) database for investigations that required certain detailed personal information. As explained in detail below, we note that the Bureau has the authority, under 13 U.S.C. 141 and 193, to conduct the ACS. While there is little legislation that continues this Initiative by the Bureau, the Bureau has clear authority to require public responses to this survey. See 13 U.S.C.
221 The office has not yet obtained ACS approval through the Paperwork Reduction Act process. Finally, we found no other government survey that requires respondents to answer this question in order to obtain specific and detailed personal information similar to that of the ACS. BACKGROUND According to the Ministry of Commerce, the AEC, which aims to replace the long part for future decennial censuses, follows the questions asked in the long-form questionnaire of the 2000 census. The long-form questionnaire asked a sample of individuals and households for information on population issues such as ancestry, veteran status, disability, employment status and income, as well as housing issues such as the value of the house or rent paid, the size and age of the structure, plumbing and kitchen facilities, and expenses for utilities, mortgages and taxes. The office began conducting additional surveys in select counties under its supervision in 13 U.S.C. 182 in 1996 using the ACS methodology to test the practical feasibility of collecting long data in a methodology other than the decennial census. Starting in 2003, the Office plans to expand the ACS nationally into an annual sample of three million households (250,000 per month) as part of its biennial census to move from one activity every ten years to the ongoing collection and dissemination of data. From 2003, data will be available from 2004 for areas and population groups of 65,000 or more and from 2008 for small areas and population groups of less than 20,000 people.  According to Office officials, this will provide information more quickly than is currently available. For example, the most recent detailed information provided by the Bureau is from the 1990 Census, as data from the 2000 Census will not be available until this summer. According to Commerce, the TISA information will provide more up-to-date data to a number of federal agencies, including the Department of Health and Social Services, the Department of Education, and the Food and Nutrition Service of the Department of Agriculture. ARTICLE I of the U.S.
Constitution requires a population count every ten years «in a manner that [Congress] orders by law.» Const. of the United States Art. I, 2, cl. 3. To implement this constitutional requirement, Congress has signed into law 13 U.S.C. 141, which «requires a census of population held every ten years beginning on the first of April of that year. in such form and content as he [the Minister of Commerce] may determine. In the context of such a census, the Secretary has the power to obtain additional information on the census if necessary. Section 141 also authorizes the census, which takes place every ten years, to include the use of sampling methods and special surveys.  The use of census data has grown considerably beyond the distribution of representatives by Congress in many other areas, such as the administration of federal agencies, the allocation of federal aid and assistance, support to local governments, and support to businesses.
 In general, the courts have largely considered the power of commerce and the office to collect census information.  In a recent court decision, Morales v. Evans, the Court ruled that the questions and the long form of the 2000 census were constitutional. In morales, the court first considered the short and long questions from the 2000 census and traced the origin of each question from previous censuses. The court emphasized the Bureau`s power to collect more than just information about the number of employees, and then specifically considered whether such collection violated plaintiffs` rights under the Fifth Amendment (due process), the First Amendment (protection from forced speech), and the Fourth Amendment (inappropriate and illegal search). In any event, the court concluded that the collection of information related to state purposes was not justified in declaring such collection unconstitutional. While Census is clearly authorized to conduct the ACS, we have not found any public legislation, committee reports, or other congressional action in which Congress has asked the office to develop and implement the ACS. Two acS oversight hearings were held in 2000 and 2001, and Congress has funded this program in recent years under the title «continuous measurement.»  Commerce states that the ACS trial has been part of the President`s budget since 1996 and that a pilot program has since been funded. Commerce also notes that it has kept Congress regularly informed of the planned development and implementation of the ACS in the justification of the annual budget that accompanies the President`s budget. It is clear that in developing the AEC, Census did not respond to Congressional instructions, but acted on its own initiative to cover the costs associated with data collection in the biennial census and the timeliness of that data. Based on the above legal authority and the discretion recognized by the courts, we conclude that Commerce and the Bureau have the legal authority to conduct the ACS under 13 U.S.C.
141 and 193. This finding does not address whether the data should be collected, but only whether there is sufficient legal authority to carry out this annual survey.  With respect to the question of whether the Bureau may require recipients to respond to the ACS, Bureau officials stated that the ACS is conducted pursuant to Sections 141 and 193 above and that responses to Census Bureau censuses and surveys are mandatory under Section 13 U.S.C. 221. Section 221 imposes fines on the beneficiaries of an investigation if they fail to answer questions relating to an investigation conducted by the Bureau of certain agencies referred to in Chapter 5 of Title 13 of the United States Code. These authorities include censuses of manufacturers and other enterprises under section 131, the decennial census of population under section 141, and current preliminary data for the collection of demographic data between censuses in accordance with section 181. § 225 allows the application of penal provisions in certain cases. For example, the detention provision does not apply to current preliminary data collections under section 181, although it does apply to the census conducted every ten years.