Proposed Rule2026-18481
Decennial Census of the Population of Americans; Proposed Residence Criteria and Proposed Regulations for Demographic Questions
Primary source
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Published
September 10, 2026
Issuing agencies
Commerce DepartmentCensus Bureau
Abstract
The Census Bureau is proposing to add two new parts to the Code of Federal Regulations governing the decennial census of population and housing. First, the Census Bureau is proposing to add a part outlining the residence criteria used for identifying each person's "usual residence," as needed to determine whether and where to count them in the census of the population throughout the United States. Second, the Census Bureau is proposing to add a part establishing standards and restrictions for the inclusion of certain demographic questions on the decennial census short-form questionnaire and any other questionnaire used for the enumeration of the population. The Census Bureau is considering these two additions to better prioritize and fulfill its Constitutional mandate to count for apportionment the "whole number of persons in each State" based on the concept of "usual residence"--a process that factors in an element of allegiance but otherwise should be colorblind and should not be distorted in any way by questions about immaterial personal characteristics, such as race. Although these two parts are somewhat related and complementary, each is being proposed independently based on its own merits. These proposals are intended to ensure fidelity to the Constitution, improve and protect the core decennial census data, and promote efficiency.
Full Text
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<title>Federal Register, Volume 91 Issue 174 (Thursday, September 10, 2026)</title>
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[Federal Register Volume 91, Number 174 (Thursday, September 10, 2026)]
[Proposed Rules]
[Pages 57524-57531]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18481]
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DEPARTMENT OF COMMERCE
Census Bureau
15 CFR Parts 60 and 70
[Docket No. 260903-0005]
RIN 0607-AA75
Decennial Census of the Population of Americans; Proposed
Residence Criteria and Proposed Regulations for Demographic Questions
AGENCY: Census Bureau, Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Census Bureau is proposing to add two new parts to the
Code of Federal Regulations governing the decennial census of
population and housing. First, the Census Bureau is proposing to add a
part outlining the residence criteria used for identifying each
person's ``usual residence,'' as needed to determine whether and where
to count them in the census of the population throughout the United
States. Second, the Census Bureau is proposing to add a part
establishing standards and restrictions for the inclusion of certain
demographic questions on the decennial census short-form questionnaire
and any other questionnaire used for the enumeration of the population.
The Census Bureau is considering these two additions to better
prioritize and fulfill its Constitutional mandate to count for
apportionment the ``whole number of persons in each State'' based on
the concept of ``usual residence''--a process that factors in an
element of allegiance but otherwise should be colorblind and should not
be distorted in any way by questions about immaterial personal
characteristics, such as race. Although these two parts are somewhat
related and complementary, each is being proposed independently based
on its own merits. These proposals are intended to ensure fidelity to
the Constitution, improve and protect the core decennial census data,
and promote efficiency.
DATES: To ensure consideration during the decision-making process,
comments must be received by October 13, 2026.
ADDRESSES: You may submit comments on this document, identified by FDMS
Docket number USBC-2026-0628, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter USBC-2026-0628 in the Search box. Click
on the ``Comment'' icon, complete the required fields, and enter or
attach your comments.
<bullet> Mail: Submit written comments to 4600 Silver Hill Road,
Designation: ADDEMO/FRN, Washington, DC 20746.
<bullet> Instructions: Comments sent by any other method, to any
other address or individual, or received after the end of the comment
period, may not be considered by Census. All comments received are a
part of the public record and will generally be posted for public
viewing on <a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be posted and publicly accessible. Census will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). However, comments containing offensive or threatening
language will not be posted.
Electronic copies of the Regulatory Impact Analysis prepared for
this action is available from <a href="http://www.regulations.gov">www.regulations.gov</a>. As required by the
Administrative Procedure Act at 5 U.S.C. 553(b)(4), a plain language
summary of the proposed rule is also available from
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Daniel Sweeney, Deputy General Counsel
for Economic, Statistical, and Regulatory Affairs, Office of the
General Counsel, Department of Commerce, at (301) 996-3533.
SUPPLEMENTARY INFORMATION:
I. Proposed Residence Criteria
For the decennial census, the Census Bureau is committed to
counting every person who should be counted once, only once, and in the
right place. The sole Constitutional purpose of the decennial census is
to apportion the seats in the U.S. House of Representatives among the
States based on the number of qualifying persons ``in each State.''
U.S. Const. Art. I Sec. 2.\1\ Under 13 U.S.C. 141, the Census Bureau
is statutorily tasked with tabulating the total population of the
States required for this apportionment. To determine the number of
persons ``in each State,'' the Census Bureau evaluates each person's
``usual residence'' as of April 1st of the decennial census year, which
is the statutorily-designated date of the decennial census.
The concept of ``usual residence'' was established by the First
Congress in the First Census Act on March 1, 1790. Specifically,
section 5 of the First Census Act established that each
[[Page 57525]]
person's residence should be determined based on their ``usual place of
abode'' and/or where they ``usually reside[ ].'' Act of Mar. 1, 1790,
ch. 2, Sec. 5, 1 Stat. 101, 103. The Census Bureau has therefore been
guided by the general principle of ``usual residence'' since 1790. See
Franklin v. Massachusetts, 505 U.S. 788, 804 (1992) (`` `Usual
residence' was the gloss given the constitutional phrase `in each
State' by the first enumeration Act and has been used by the Census
Bureau ever since to allocate persons to their home States.''). In
order to consistently carry out the general principle of ``usual
residence'' for any given decennial census, the Census Bureau has
historically developed and applied more specific residence criteria for
each decennial census--and those criteria have changed over time,
depending on changing circumstances and operational decisions. Those
changes are consistent with the ``virtually unlimited discretion'' the
Constitution affords to Congress over the conduct of the census and
with Congress's delegation of ``its broad authority over the census to
the Secretary.'' Wisconsin v. City of New York, 517 U.S. 1, 19 (1996);
see Franklin, 505 U.S. at 806 (approving of a policy decision that was
``consonant with, though not dictated by, the text and history of the
Constitution'').
For example, prior to 1970, with a one-time exception for the 1900
decennial census, the Census Bureau did not allocate any Federal
personnel who were stationed overseas as of the date of the census to
any particular State for apportionment purposes. See Franklin, 505 U.S.
at 792-93. Put differently, Federal personnel stationed overseas were
historically not considered to be ``usual residents'' of any State or
qualifying persons ``in'' any State. But then in 1970, against the
backdrop of the Vietnam War, the Census Bureau introduced a new
residence criterion that would allocate members of the Armed Forces
stationed overseas to their ``home of record'' (i.e., the State
declared by each person upon entrance into military service). Twenty
years later, the Census Bureau opted to apply the same approach for all
overseas employees of the Department of War (at the time, the
Department of Defense) for the 1990 decennial census. Several states
then challenged the constitutionality of that approach, but the Supreme
Court ultimately confirmed that it was within the agency's discretion
to make such a residency determination. See Franklin, 505 U.S. at 803-
06. In so doing, the Supreme Court explained as follows:
The term [``usual residence''] can mean more than mere physical
presence, and has been used broadly enough to include some element
of allegiance or enduring tie to a place. . . . In this case, the
Secretary of Commerce made a judgment, consonant with, though not
dictated by, the text and history of the Constitution, that many
federal employees temporarily stationed overseas had retained their
ties to the States and could and should be counted toward their
States' representation in Congress . . . .
Id. Accordingly, in every decennial census since 1990, the Census
Bureau has exercised its discretion to count some overseas Federal
personnel as qualifying persons ``in'' their home States for
apportionment purposes.
Consistent with this history, every ten years, the Census Bureau
must settle on and apply a set of residence criteria to determine each
person's ``usual residence.'' In recent history, it is typical for that
set of residence criteria to contain specific rules for, among other
groups, college students,\2\ incarcerated individuals, overseas
military personnel, and foreign citizens present in the United States.
For example, in the lead up to the 2020 decennial census, the
Census Bureau settled on the following residence criterion for foreign
citizens who were present in the United States as of April 1, 2020, and
who were not members of any foreign diplomatic staff:
<bullet> Foreign citizens ``living in'' the United States were to
be counted at the U.S. residence where they live and sleep most of the
time for apportionment purposes; and
<bullet> Foreign citizens ``visiting'' the United States, ``such as
on a vacation or business trip,'' were not to be counted in the census
for apportionment purposes.\3\
Notably, that residence criterion did not call for any difference
in treatment between foreign citizens present in the United States
legally and those present illegally--a category of individuals
sometimes referred to as ``removable aliens.'' See, e.g., 8 U.S.C.
1229a; see also id. 1227 (addressing the subclass of ``deportable
aliens''); id. 1182 (addressing ``inadmissible aliens''). That
criterion has been the subject of multiple legal challenges brought by
States, particularly with respect to its application to illegal
aliens.\4\ (This notice incorporates for consideration, without
necessarily endorsing, the arguments raised in those challenges.) The
counting of illegal aliens for apportionment purposes has also been
heavily criticized within the Federal government itself. See Memorandum
of July 21, 2020, Excluding Illegal Aliens From the Apportionment Base
Following the 2020 Census, 85 FR 44679 (July 23, 2020); see also Equal
Representation Act, H.R. 151, 119th Cong. (2025); COUNT Act, H.R. 5156,
119th Cong. (2025); Correct the Count Act, H.R. 4884, 119th Cong.
(2025) Count Only Citizens Act, H.R. 6942, 118th Cong. (2024); No
Representation Without Legal Immigration Act, H.R. 6520, 118th Cong.
(2023).
One of the primary legal arguments against including illegal aliens
in the apportionment count is rooted in the understanding that the term
``persons,'' as used in the Apportionment Clause of Article I, Section
2, was deliberately chosen instead of ``citizens'' to reflect the
Three-Fifths Compromise but nonetheless was largely informed by (and
synonymous with) the term ``inhabitants,'' which was historically
understood to refer to members of the body politic. See Wesberry v.
Sanders, 376 U.S. 1, 13-14 (1964) (``The debates at the Convention make
at least one fact abundantly clear: that when the delegates agreed that
the House should represent `people' they intended that in allocating
Congressmen the number assigned to each State should be determined
solely by the number of the State's inhabitants. The Constitution
embodied Edmund Randolph's proposal for a periodic census to ensure
`fair representation of the people,' an idea endorsed by Mason as
assuring that `numbers of inhabitants' should always be the measure of
representation in the House of Representatives.'' (footnotes omitted));
see also Timothy Farrar, Manual on the Constitution of the United
States of America 55-56 (1867) (identifying various descriptors in the
Constitution of members of the body politic, including the phrase
``inhabitants of a State''); Potter v. Ross, 23 N.J.L. 517, 520 (Sup.
Ct. 1852) (interpreting the term ``inhabitant,'' as used in a New
Jersey statute and ``in the popular acceptation of the phrase,'' to
mean ``something more than a person having a mere temporary residence''
and to ``import[ ] citizenship and municipal relations''); Letter from
John Adams to the President of Congress (Nov. 3, 1784), in 16 Papers of
John Adams 362 (Gregg L. Lint et al. eds., 2012) (Adams) (Although
``[b]oth Citizens and Inhabitants have a Right to Protection, . . .
every Stranger who has been in the United States, or who may be there
at present, is not an Inhabitant,'' and ``different States have
different Definitions of this Word.''). At a minimum, an alien could
not qualify as an ``inhabitant,'' at the time of the Founding, without
establishing a residence within a jurisdiction and an
[[Page 57526]]
intent to remain there indefinitely. See, e.g., Adams 362 (noting that
``[t]he Domicil and the animus habitandi is necessary in all''
definitions); Bas v. Steele, 2 F. Cas. 988, 993 (C.C.D. Pa. 1818) (No.
1088) (Washington, Circuit Justice) (concluding that a Spanish subject
who had remained in Philadelphia as a merchant for four months ``was
not an inhabitant of this country, as no person is an inhabitant of a
place, but one who acquires a domicil there''); \1\ Emmerich de Vattel,
The Law of Nations Sec. 213, at 92 (1760) (defining ``inhabitants, as
distinguished from citizens,'' as ``strangers, who are permitted to
settle and stay in the country''). And, although the Fourteenth
Amendment subsequently repealed the Three-Fifths Compromise and rightly
rejected the view that individuals of African ancestry are not full and
equal ``persons'' under the Constitution, the Fourteenth Amendment did
not--so the legal argument goes--otherwise change the meaning of the
term ``persons,'' as used in Article I, Section 2, and its associations
with the term ``inhabitants'' and with the concept of the body politic.
Proponents of this legal argument therefore understand the term
``persons,'' as used in Article I, Section 2, and in the Fourteenth
Amendment, to denote who counts for purposes of apportionment (i.e.,
``inhabitants,'' members of the body politic), and understand the
phrase ``in each State,'' as used in the Fourteenth Amendment, to
denote where to count such individuals.
Considering all of the above, the Census Bureau now proposes to
formalize, by regulation, the residence criteria found below for
decennial census enumeration moving forward. This proposed set of
criteria is different from--and excludes certain criteria that were
included in--the set of residence criteria for 2020. These proposed
criteria reflect the Census Bureau's interpretation of the applicable
laws as well as various operational and practical considerations.
In particular, the Census Bureau finds merit in the interpretive
argument outlined above and has preliminarily determined that, under
the best reading of the Constitutional mandate, illegal aliens (among
others) should not be included in the apportionment count, as they are
not true inhabitants, members of the body politic, or persons with a
``usual residence'' in the United States due to their lack of a
sufficient tie and allegiance to the United States. Additionally and/or
in the alternative, the Census Bureau has preliminarily determined,
after revisiting and reviewing the applicable law, that excluding
illegal aliens (among others) from the apportionment count is a lawful
and appropriate exercise of the Census Bureau's discretion under 13
U.S.C. 141, Franklin v. Massachusetts, and all other applicable law.
Given the historical meaning of ``usual residence'' as tied to
allegiance, durable permission from the sovereign to settle within the
United States, and establishment of domicile within the United States,
the Census Bureau proposes to include lawful permanent residents within
the apportionment base, while excluding from the apportionment base
illegal aliens and aliens whose legal status is less durable and
indefinite in length than lawful permanent resident status.\5\ The
Census Bureau invites comments on whether other forms of legal status
are materially similar to lawful permanent resident status.
The Census Bureau is considering how best to distinguish between
foreign citizens in the United States who are counted for apportionment
and those who are not counted for apportionment. In particular, the
Census Bureau is considering utilizing its enormously broad access to
administrative records to determine an individual's legal status. The
Census Bureau has access to a vast and expanding universe of records
and information that includes, but is not limited to, Department of
Treasury records; Department of Health and Human Services records;
Department of Homeland Security records; Department of State records;
Department of War records; U.S. Postal Service records; certain state,
local, and tribal records; and third-party commercial data. The Census
Bureau's administrative record holdings is nearly exhaustive of the
civilian Federal government's holdings, and the Census Bureau is
continually searching for new sources of information and routinely
entering into and/or updating agreements with other Federal agencies,
state and local governments, and other entities to expand its access to
information.\6\ The Census Bureau therefore now has access to
substantially more information than it did when it conducted the 2020
Census, and the Census Bureau expects to continue obtaining additional
information moving forward. The Census Bureau also has a highly-
advanced data linkage infrastructure--one that has only improved in
recent years as the Census Bureau has continued to develop and
integrate new technologies.
The Census Bureau could, in addition, include a question about
legal status on the short-form decennial census questionnaire. The
Enumeration Clause ``permits Congress, and by extension the Secretary,
to inquire about citizenship on the census questionnaire.'' Dep't of
Com. v. New York, 588 U.S. 752, 770 (2019). Including a question about
legal status would accord with substantial past practice. See id. at
760. It would likewise accord with the Census Bureau's reliance on the
census questionnaire to gather other information. The Census Bureau
welcomes comments on the inclusion of a legal-status question on the
short-form decennial census questionnaire.
The Census Bureau is also proposing to define the relevant ``census
enumeration period'' to run from January 3 to April 1 during decennial
census years. January 3 is the start of the congressional term during
odd-numbered years under the Twentieth Amendment and, thus, the half-
way point of the congressional term during even-numbered years. April 1
is the reference date for the decennial census under 13 U.S.C. 141(a).
The Census Bureau has preliminarily determined that considering
information pertaining to this period would be sufficient and
appropriate for purposes of making a holistic determination about a
person's ``usual residence'' as of April 1, and that clearly defining a
relevant period leading up to April 1 is preferable to leaving the
issue open-ended and uncertain. To be clear, however, this definition
of the ``census enumeration period'' would not restrict the Census
Bureau from collecting information after April 1 about the relevant
period. For example, the Census Bureau intends to consider tax records
filed after April 1 insofar as they are probative of persons' ``usual
residence'' from January 3 to April 1.\7\
The Census Bureau is making this overall proposal regarding the
residence criteria independent of the proposal regarding demographic
questions, which is discussed in greater detail below. If any provision
of either proposal is stayed or determined to be invalid or
unenforceable as applied to any person or circumstance in any
jurisdiction, such stay or determination shall not affect the remainder
of that proposal or any provision of the other proposal.
The Census Bureau invites the public to comment on these proposed
residence criteria.
II. Proposed Restrictions on the Inclusion of Certain Demographic
Questions in the Decennial Census Operation
As discussed above, the fundamental purpose of the decennial
census, as
[[Page 57527]]
prescribed by the Constitution, is to conduct a population count for
the apportionment. The Secretary of Commerce is also required, by
statute, to share final census population tabulations with
participating States for purposes of (re)districting. Public Law 94-
171, 89 Stat. 1023 (1975).
Separate from these aforementioned mandates, the decennial census
questionnaires historically have also been used as a vehicle for
collecting demographic information about the population of the United
States. Indeed, ``demographic questions have been asked in every census
since 1790.'' Dep't of Com., 588 U.S. at 769. For instance, past
censuses have included questions asking about race, ethnicity, sex,
age, citizenship, health, education, occupation, housing, military
service, radio ownership, age at first marriage, and native tongue. See
id. at 760. Congress has, at times in the past, required the collection
of certain demographic information through the decennial census, and
Congress has also generally authorized the Secretary of Commerce to
``obtain such other census information as necessary'' in connection
with the decennial census. 13 U.S.C. 141(a). The Supreme Court has held
that this statutory delegation lawfully permits the Census Bureau to at
least inquire about citizenship on the census questionnaire, see Dep't
of Com. v. New York, 588 U.S at 770, but the Supreme Court has not
specifically decided the constitutionality of any other particular
demographic question.
Whether generally authorized or specifically required (as it has
been at times in the past) by Congress, the collection of such data
does not, by itself, advance the fundamental, Constitutional purpose of
the decennial census, which is to conduct an enumeration to ascertain
the population count for apportionment. See Carey v. Klutznick, 653
F.2d 732, 736 (2d Cir. 1981) (``Although the census is the delight of
statisticians and sociologists and serves as a convenient measuring
stick for the dispensing of federal funds, it was not created for these
purposes. Its purpose under the Constitution was to determine the
apportionment of Representatives among the States. . . . [I]t is
important that we keep this basic constitutional purpose in mind.'').
To the contrary, in general, the more questions that are included on
the decennial census questionnaire, the lower the overall response
rate.\8\
Furthermore, each demographic question that is included on the
decennial census increases the likelihood that the data of certain
people who do respond will be identifiable in the resulting published
data, in violation of their privacy and the law.\9\ Under 13 U.S.C.
9(a)(2), the Census Bureau and the Department of Commerce are
statutorily prohibited from ``mak[ing] any publication whereby the data
furnished by any particular establishment or individual under this
title can be identified.'' The Census Bureau implements this
prohibition against disclosure by applying ``disclosure avoidance''
techniques, which effectively introduce uncertainty into the overall
data to reduce the likelihood that the data of any particular
respondent will be identifiable. The more data that the Census Bureau
publishes, the higher the risk that a particular respondent's data can
be identified, and the more uncertainty the Census Bureau must
introduce into the data to reduce risk. The publication of personal
demographic data is no exception. For example, at least in 2020, the
publication of demographic data posed potential disclosure risks that
led the Census Bureau to introduce deliberate randomness and
uncertainty to, among other data, population counts below the state
level, which are meant to be used for (re)districting. In general, the
Census Bureau's disclosure avoidance approach to the 2020 decennial
census has been the subject of numerous lawsuits.\10\
In addition to disclosure risk, the Census Bureau also is
considering the (potentially) sensitive nature of questions about race,
ethnicity, and sexual orientation. Substantial doubts about the
meaning, significance, and impact of attempting to categorize persons
by race and ethnicity,\11\ in particular, have featured prominently in
our national discourse and have been reflected in shifts in the law.
See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of
Harvard Coll., 600 U.S. 181, 276-77 (2023) (Thomas, J., concurring)
(describing race as a ``social construct'' based on ``ephemeral,
socially constructed categories'' that ``are little more than
stereotypes''); Allen v. Milligan, 146 S. Ct. 1377, 1380 (2026) (per
curiam) (describing the Constitution as ``colorblind''); Louisiana v.
Callais, 146 S. Ct. 1131 (2026) (clarifying legal standards under the
Voting Rights Act of 1965); Ending Radical and Wasteful Government DEI
Programs and Preferencing, Exec. Order No. 14151, 90 FR 8339 (Jan. 20,
2025) (ordering the termination of so-called ``diversity, equity,
inclusion, and accessibility'' programs and activities in the Federal
government, and calling for all Americans to be treated with ``equal
dignity and respect'').\12\ These evolving discussions and
understandings of the law have prompted the Census Bureau to revisit
and reconsider the continued need to collect certain demographic data
on the short-form decennial questionnaire. The (potentially) sensitive
nature of questions about race, ethnicity, and sexual orientation, when
considered in light of the reduced need for or usefulness of this
information, may be a particular encumbrance on response given that,
under 13 U.S.C. 221, respondents are legally required ``to answer, to
the best of [their] knowledge, any of the questions . . . submitted to
[them] in connection with any census,'' and the failure to do so
constitutes a federal crime.
For all these reasons, the Census Bureau is re-evaluating the
proper role of these demographic questions and proposes to establish,
by regulation, the standards articulated below, which would prohibit
the inclusion of questions about race and ethnicity or sexual
orientation on the decennial census short-form questionnaire or any
questionnaire used for purposes of the enumeration. Excluding such
questions from the decennial census in this manner would reduce
response burden as well as the risk of disclosure.\13\ Reducing
response burden is expected to increase response rate and thus improve
the Census Bureau's record linkage efforts and also enable the Census
Bureau to obtain a more complete population count directly from
respondents, which helps ensure fairer political representation.
Simplifying the short-form questionnaire in this manner conforms to the
Census Bureau's responsibilities under the Privacy Act,\14\ the
Paperwork Reduction Act,\15\ and The Census Act.\16\
Simplifying the short-form questionnaire in this manner also
reflects the Census Bureau's plans to increase its use of
administrative records for conducting the decennial census. Data from
administrative records can fill information gaps, thereby reducing
response burden and operational costs. Administrative records sourced
from other governmental agencies--including certain tax-return
information--can serve as reliable evidence for certain purposes.\17\
The Census Bureau receives a substantial amount of demographic data
from administrative records of other agencies. The Census Bureau is not
proposing any restrictions on its ability to receive demographic data
from administrative records and other sources. The Census Bureau also
is not proposing any restrictions on its ability to ask demographic
questions on the American Community Survey or other
[[Page 57528]]
surveys that are not used for the enumeration of the population. The
Census Bureau is proposing restrictions only for the short-form
decennial census questionnaire.
The Census Bureau is making this proposal regarding demographic
questions independent of the proposal regarding residence criteria,
which is discussed in greater detail above. If any provision of either
proposal is stayed or determined to be invalid or unenforceable as
applied to any person or circumstance in any jurisdiction, such stay or
determination shall not affect the remainder of that proposal or any
provision of the other proposal.
The Census Bureau invites the public to comment on this proposal
regarding demographic questions.
III. Classification
Executive Orders 12866, 13563, and 14192
Executive Orders (E.O.s) 12866 and 13563 direct federal agencies to
assess all costs and benefits of available regulatory alternatives and,
when regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity). This proposed rule has been determined to be a
``significant regulatory action'' under section 3(f) of E.O. 12866,
although not economically significant under section 3(f)(1).
Accordingly, this rule has been reviewed by the Office of Management
and Budget (OMB). Please see the Preliminary Regulatory Impact
Analysis, posted together with this proposed rule, for additional
information on the potential impacts of this rulemaking.
Executive Order 14192, Unleashing Prosperity Through Deregulation,
requires that for ``each new [E.O. 14192 regulatory action] issued, at
least ten prior regulations be identified for elimination.'' Executive
Office of the President, Executive Order 14192 of January 31, 2025,
Unleashing Prosperity Through Deregulation, 90 FR 9065-9067 (Feb. 6,
2025). Implementation guidance for E.O. 14192 issued by OMB (Memorandum
M-25-20, Mar. 26, 2025) defines two different types of E.O. 14192
actions: an E.O. 14192 deregulatory action, and an E.O. 14192
regulatory action. Executive Office of the President, OMB, Guidance
Implementing Section 3 of Executive Order 14192, Titled ``Unleashing
Prosperity Through Deregulation,'' Memorandum M-25-20 (Mar. 26, 2025).
A preliminary determination of whether a final rule here would be
considered regulatory, deregulatory, or partially or fully exempt from
the requirements of E.O. 14192 will be made when any final rule in this
rulemaking is issued.
Regulatory Flexibility Act (RFA)
The Deputy General Counsel for Economic, Statistical, and
Regulatory Affairs certified to the Chief Counsel for Advocacy of the
Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The factual basis for this certification follows. A
Regulatory Impact Review was prepared to assess costs and benefits of
available regulatory alternatives. A copy of this analysis is available
from <a href="http://regulations.gov">regulations.gov</a> (see ADDRESSES).
This proposed rule, if adopted, would govern the manner in which
the Census Bureau collects data via the decennial census. No other
public or private entity would be directly regulated. Although the
proposed rule could impact the information available to some small
entities, any resulting impacts would be indirect. To the extent that
small governmental entities, as defined by the RFA, may use information
collected by the decennial census to obtain funding, that information
would remain available or could be obtained in other ways and/or the
impact from any lack of information would be indirect.
Unfunded Mandates Reform Act of 1995
This proposal is not subject to the Unfunded Mandates Reform Act
because it does not include a federal mandate that may result in the
expenditure by State, local, and tribal governments, or by the private
sector, of $100 million or more.
Executive Order 13132--Federalism
This proposed rule does not have federalism implications because it
would not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Executive Order 13175--Tribal Consultation
The U.S. Census Bureau plans to formally notify federally
recognized and state recognized tribes and conduct a tribal
consultation regarding the proposed regulations.
Paperwork Reduction Act
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act. This proposed rule would not impose
recordkeeping or reporting requirements on State, local, or Tribal
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The Census Bureau is seeking public comment on
respondent burden reduction estimates resulting from this proposal.
Endnotes
\1\ The Constitution expressly excludes ``Indians not taxed.''
\2\ Up until the 1950 decennial census, ``college students were
enumerated as inhabitants of the states in which their parents
maintained their homes.'' Borough of Bethel Park v. Stans, 449 F.2d
575, 579 (3d Cir. 1971); see also id. (discussing the history of
where college students were counted up until, and including, the
1970 decennial census).
\3\ See Final 2020 Census Residence Criteria and Residence
Situations (83 FR 5525), Criterion 3, <a href="https://www.federalregister.gov/documents/2018/02/08/2018-02370/final-2020-census-residence-criteria-and-residence-situations">https://www.federalregister.gov/documents/2018/02/08/2018-02370/final-2020-census-residence-criteria-and-residence-situations</a>.
\4\ See, e.g., Missouri v. U.S. Dep't of Com., 26-cv-00131, ECF
No. 1 (E.D. Mo. Jan. 30, 2026); Louisiana v. U.S. Dep't of Com., 25-
cv-00076, ECF No. 1 (W.D. La. Jan. 17, 2025); see also the State of
Florida's ``Petition for Rulemaking to the Census Bureau, U.S.
Department of Commerce'' (Apr. 15, 2026), <a href="https://www.myfloridalegal.com/sites/default/files/florida-petition-for-rulemaking-to-census-bureau.pdf">https://www.myfloridalegal.com/sites/default/files/florida-petition-for-rulemaking-to-census-bureau.pdf</a>.
\5\ The Census Bureau maintains and publishes statistics
separate from those for apportionment, and the Census Bureau expects
to continue doing so in the future.
\6\ For example, the Census Bureau signed major agreements with
both the Department of Homeland Security and the State Department in
2019, and the agreement with the former has been substantially
expanded since then. The exchange of information facilitated by
those agreements, among others, has equipped the Census Bureau with
significantly more information pertaining specifically to foreign
citizens present in the United States than was previously available
in the lead up to 2020.
\7\ In general, the Census Bureau's reliance on tax-return
information and other administrative records to determine a person's
usual residence (or some other piece of information) will
necessarily be situation dependent. In assigning evidentiary weight
to tax-return information and other administrative records, the
Census Bureau will consider each particular data element's purpose,
timing, and reliability.
\8\ The Census Bureau observes this general relationship through
its testing and
[[Page 57529]]
operational metrics. See, e.g., Cong. Rsch. Serv., R41532, The
American Community Survey: Development, Implementation, and Issues
for Congress (Dec. 19, 2014), n.11 <a href="https://www.congress.gov/crs_external_products/R/PDF/R41532/R41532.20.pdf">https://www.congress.gov/crs_external_products/R/PDF/R41532/R41532.20.pdf</a>; Dillman, D. et
al., Mail-back Response Rates for Simplified Decennial Census
Questionnaire Designs (1992), <a href="https://www.academia.edu/53698749/Mail_Back_Response_Rates_for_Simplified_Decennial_Census_Questionnaire_Designs">https://www.academia.edu/53698749/Mail_Back_Response_Rates_for_Simplified_Decennial_Census_Questionnaire_Designs</a>.
\9\ See Hawes, M.B. et al., Toward a Principled Framework for
Disclosure Avoidance, Harv. Data Sci. Rev. Sec. 3(Aug. 20, 2025)
<a href="https://hdsr.mitpress.mit.edu/pub/bux70n5u/release/3">https://hdsr.mitpress.mit.edu/pub/bux70n5u/release/3</a> (``Every
statistical product that an agency publishes that is derived from a
confidential data source reveals or leaks confidential information
in the process. Consequently, the more statistics an agency
publishes (the availability, granularity, and relevance of the
statistics), and the greater the accuracy of those statistics (the
precision, validity, and reliability of the statistics, the higher
the risk that they could permit confidentiality-violating
disclosure.'' (citation omitted)); id. Sec. 5.5 (``[E]very
statistic that an agency releases that is derived from a
confidential source carries a nonzero disclosure risk.'').
\10\ See, e.g., University of South Florida College Republicans
v. Lutnick, 25-CV-02486, ECF No. 43 (M.D. Fla. Nov. 12, 2025);
Alabama v. U.S. Dep't of Com., ECF No. 1 (M.D. Ala. Mar. 10, 2021).
\11\ Questions about tribal membership are not necessarily
questions about race and/or ethnicity. See Constitutionality of
Race-Based Department of Education Programs, 49 Op. O.L.C. __(Dec.
2, 2025), available at <a href="https://www.justice.gov/olc/media/1421576/dl">https://www.justice.gov/olc/media/1421576/dl</a>
(``Current equal-protection doctrine recognizes a difference between
preferences based on Indian ethnicity and those based on affiliation
(often membership or citizenship) in a federally recognized
tribe.''); Morton v. Mancari, 417 U.S. 535, 551-55 (1974)
(discussing the ``unique legal status of Indian tribes'' and
explaining how certain preferences for members of Indian tribes are
not the same as preferences for discrete racial groups).
\12\ The Department of Commerce has recognized the ``arbitrary
nature'' of racial and ethnic categories and expressed skepticism
and concern with placing undue weight and attention on said
categories. See Rescinding Portions of Department of Commerce Title
VI Regulations To Conform More Closely With the Statutory Text and
To Implement Executive Order 14281 (91 FR 20326, 20329), <a href="https://www.federalregister.gov/documents/2026/04/16/2026-07477/rescinding-portions-of-department-of-commerce-title-vi-regulations-to-conform-more-closely-with-the">https://www.federalregister.gov/documents/2026/04/16/2026-07477/rescinding-portions-of-department-of-commerce-title-vi-regulations-to-conform-more-closely-with-the</a>.
\13\ See supra note 9; see also Department Administrative Order
216-26, Disclosure Avoidance for Statistical Products <a href="https://www.commerce.gov/opog/disclosure-avoidance-statistical-products">https://www.commerce.gov/opog/disclosure-avoidance-statistical-products</a>
(explaining the categories of disclosure avoidance and prohibiting
the use of noise infusion).
\14\ The Privacy Act requires federal agencies to maintain only
that information about an individual that is ``relevant and
necessary'' for the agency to meet requirements established by
statute or by Executive Order. 5 U.S.C. 552a(e)(1).
\15\ The Paperwork Reduction Act requires federal agencies to
justify the need for each collection of information from the public.
The Paperwork Reduction Act also requires agencies to actively
consider the utility of the information collected and the reduction
of response burden. 44 U.S.C. 3506.
\16\ The Census Act, specifically 13 U.S.C. 9, obligates the
Census Bureau to protect all data its collects from wrongful
disclosure. Reducing the amount of information collected and
published, particularly data on individual characteristics, reduces
the risk of disclosure and the identification of an individual's
data.
\17\ The Census Bureau will continue to obtain and use other
agencies' administrative records consistent with applicable
statutory authorities and the terms of the data sharing
arrangements. For example, returns and return information obtained
from the Internal Revenue Service may be obtained and used only as
authorized under 26 U.S.C. 6103(j)(1) and 6103(p)(4), 26 CFR
301.6103(j)(1)-1, and applicable data-sharing arrangements and
safeguard requirements; nothing in this proposed rule would alter
those limitations. And, as noted above, the Census Bureau's reliance
on administrative records will vary across particular situations and
data elements. See supra note 7.
List of Subjects
15 CFR Part 60
Census, Decennial census, Residence criteria, Residence rules,
Usual residence, Enumeration, Data collection, Administrative practice
and procedure.
15 CFR Part 70
Census, Decennial census, Demographic data, Race and ethnicity,
Data collection, Confidentiality, Privacy, Administrative practice and
procedure.
Dated: September 8, 2026.
Howard Lutnick,
Secretary of Commerce.
For the reasons stated in the preamble, the Census Bureau proposes
to add parts 60 and 70 to Subtitle B, Chapter I of Title 15 of the Code
of Federal Regulations, to read as follows:
PART 60--RESIDENCE CRITERIA FOR THE DECENNIAL CENSUS OF THE
AMERICAN POPULATION
Sec.
60.1 Purpose.
60.2 General definition of ``usual residence'' for conducting the
Decennial Census.
60.3 Dependents.
60.4 Foreign citizens in the United States.
60.5 Persons living outside the United States (including certain
federal personnel).
60.6 U.S. Military personnel inside the United States.
60.7 Merchant Marine personnel on U.S. Flag Maritime/Merchant
Vessels.
60.8 Persons who are born or who die around Census Day.
60.9 Persons confined at correctional or detention facilities.
60.10 Persons in transitory locations.
60.11 Severability.
Authority: 13 U.S.C. 4 and 141.
Sec. 60.1 Purpose.
This part sets forth the criteria used by the Census Bureau to
determine each individual's place of ``usual residence,'' as needed to
determine whether and where to count each individual as part of the
decennial census for purposes of apportionment.
Sec. 60.2 General definition of ``usual residence'' for conducting
the Decennial Census.
(a) A person's ``usual residence'' is the residence at which they
have lawfully spent the greatest number of days during the census
enumeration period. A person's ``usual residence'' should be consistent
with, and evidenced by, their tax records (e.g., tax returns, W-2
forms).
(b) A person is considered to have spent a day at a residence if he
or she spent at least one hour physically and lawfully present there
that day. A person may spend a certain day at more than one residence.
(c) The census enumeration period runs from January 3 to April 1
during decennial census years. April 1 is referred to as ``Census
Day.''
Sec. 60.3 Dependents.
(a) Dependents who have a consistent usual residence separate from
their provider(s) for the census enumeration period. Counted at that
separate usual residence.
(b) All other dependents. Counted at the usual residence of their
provider(s) at which they spend the most amount of days during the
census enumeration period.
Sec. 60.4 Foreign citizens in the United States.
(a) Citizens of foreign countries who are also either citizens or
lawful permanent residents of the United States as of April 1 of a
decennial census year. Counted at their usual residence in accordance
with Sec. 60.2.
(b) All other citizens of foreign countries as of April 1 of a
decennial census year. Not counted for apportionment.
Sec. 60.5 Persons living outside the United States (including certain
federal personnel).
(a) Persons living outside the United States on Census Day who are
not military or civilian employees of the
[[Page 57530]]
U.S. government and are not dependents living with military or civilian
employees of the U.S. government. Not counted in the stateside census.
(b) Persons deployed outside the United States on Census Day (while
stationed or assigned in the United States) who are military or
civilian employees of the U.S. government. Counted at their usual
residence in the United States in accordance with Sec. 60.2, using tax
records and the administrative data provided by federal agencies.
(c) U.S. military personnel assigned to U.S. military vessels with
a U.S. homeport on Census Day. Counted at their onshore usual residence
in the United States in accordance with Sec. 60.2, using tax records
and the administrative data provided by the Department of War and other
federal agencies.
(d) U.S. military personnel assigned to U.S. military vessels with
a homeport outside the United States on Census Day. Counted as part of
the U.S. federally affiliated overseas population, using administrative
data provided by the Department of War.
(e) Persons stationed or assigned outside the United States on
Census Day who are military or civilian employees of the U.S.
government, as well as their dependents living with them outside the
United States. Counted as part of the U.S. federally affiliated
overseas population, using administrative data provided by the
Department of War and other federal agencies.
Sec. 60.6 U.S. Military personnel inside the United States.
(a) U.S. military personnel in the United States and not in
military disciplinary barracks or jails on Census Day. Counted at their
usual residence in accordance with Sec. 60.2, using tax records and
the administrative data provided by the Department of War and other
federal agencies.
(b) U.S. military personnel in military disciplinary barracks and
jails in the United States on Census Day. Counted at the facility.
Sec. 60.7 Merchant Marine Personnel on U.S. Flag Maritime/Merchant
Vessels.
(a) Crews of U.S. flag maritime/merchant vessels docked in a U.S.
port, sailing from one U.S. port to another U.S. port, sailing from a
U.S. port to a foreign port, sailing from a foreign port to a U.S. port
on Census Day, or engaged in U.S. inland waterway transportation on
Census Day. Counted at their onshore usual residence in the United
States in accordance with Sec. 60.2, using tax records and the
administrative data provided by federal agencies.
(b) Crews of U.S. flag maritime/merchant vessels docked in a
foreign port or sailing from one foreign port to another foreign port
on Census Day. Counted at their onshore usual residence in the United
States in accordance with Sec. 60.2, using tax records and the
administrative data provided by federal agencies.
Sec. 60.8 Persons who are born or who die around Census Day.
(a) Babies born on or before Census Day. Counted at their parent(s)
or guardian(s)' usual residence at which they will spend the most
amount of days during the census enumeration period, even if they are
still in a hospital on Census Day.
(b) Babies born after Census Day. Not counted in the census.
(c) Persons who die before Census Day. Not counted in the census.
(d) Persons who die on or after Census Day. Counted at their usual
residence as of Census Day.
Sec. 60.9 Persons confined at correctional or detention facilities.
Persons confined at correctional or detention facilities, including
juvenile facilities. Counted at the facility.
Sec. 60.10 Persons in transitory locations.
Persons at transitory locations, such as recreational vehicle (RV)
parks, campgrounds, marinas, hotels, and motels. Counted at their usual
residence in accordance with Sec. 60.2. If they do not have any usual
residence, they are counted at the transitory location.
Sec. 60.11 Severability.
If any criterion or provision of this part is stayed or determined
to be invalid or unenforceable as applied to any person or circumstance
in any jurisdiction, such stay or determination shall not affect the
remainder of this part or the application of the criterion or provision
at issue to other persons or circumstances and/or in other
jurisdictions. In the event of such a stay or determination, the
remaining criteria and provisions of this part shall continue in effect
to the maximum extent possible.
PART 70--RESTRICTIONS ON THE INCLUSION OF CERTAIN DEMOGRAPHIC
QUESTIONS IN THE DECENNIAL CENSUS OPERATION
Sec.
70.1 Purpose.
70.2 Restrictions on the inclusion of certain demographic questions.
70.3 Demographic data and disclosure avoidance.
70.4 Other sources of demographic data.
70.5 Severability.
Authority: 13 U.S.C. 4, 5, and 141.
Sec. 70.1 Purpose.
This part sets forth restrictions on the inclusion of certain
demographic questions on the decennial census short-form questionnaire
or any questionnaire used for the enumeration of the population. These
restrictions are meant to ensure that certain demographic questions do
not undermine or distort the fundamental, Constitutional purpose of the
decennial census: to conduct a population count for purposes of
congressional apportionment.
Sec. 70.2 Restrictions on the inclusion of certain demographic
questions.
(a) No question about race, ethnicity, or sexual orientation shall
appear on the short form decennial census questionnaire or any
questionnaire used for the enumeration of the population.
(b) Questions about biological sex, date of birth, and household
relationships may be included on the decennial census questionnaire for
the sake of facilitating data verification for the enumeration of the
population.
(c) With the exception of questions about biological sex, date of
birth, and household relationships, no person shall be obligated to
furnish a response to any demographic question as part of the decennial
census.
(d) Questions that seek information related to the application of
the residence criteria are not considered demographic questions subject
to the restrictions of this part.
Sec. 70.3 Demographic data and disclosure avoidance.
(a) In conducting and furnishing the results of the decennial
census, the Census Bureau shall at all times prioritize the accuracy of
the population count for purposes of apportionment and (re)districting,
subject to the confidentiality restrictions of 13 U.S.C. 9.
(b) The Census Bureau shall not disclose or publish any individual
demographic data if such disclosure or publication necessitates
introducing uncertainty into the population count data, at either the
national or the state level.
Sec. 70.4 Other sources of demographic data.
Nothing in this part shall be construed to restrict the Census
Bureau's ability to ask demographic questions on the American Community
Survey or any other surveys that are not used for the enumeration of
the population, or to receive demographic data from other sources.
[[Page 57531]]
Sec. 70.5 Severability.
If any provision of this part is stayed or determined to be invalid
or unenforceable as applied to any person or circumstance in any
jurisdiction, such stay or determination shall not affect the remainder
of this part or the application of the provision at issue to other
persons or circumstances and/or in other jurisdictions. In the event of
such a stay or determination, the remaining provisions of this part
shall continue in effect to the maximum extent possible.
[FR Doc. 2026-18481 Filed 9-9-26; 8:45 am]
BILLING CODE 3510-07-P
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</html>Indexed from Federal Register on September 10, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.