Center for Federal Accountability

Census Bureau proposes counting only citizens and permanent residents for apportionment, and dropping race questions from the 2030 form

A proposed Commerce Department rule would leave foreign nationals who are not lawful permanent residents out of apportionment counts, determine legal status largely from administrative and commercial records, and bar race, ethnicity and sexual-orientation questions from the census form. Comments close October 13, 2026.

2026-10-01 · Census Bureau, Commerce Department · Information

On September 10, 2026, the Commerce Department published a proposed rule that would add two new parts to the Census Bureau's regulations ahead of the 2030 census (91 FR 57524). Part 60 would set out who is counted for apportionment and where. Part 70 would limit which demographic questions the census form may ask. Commerce Secretary Howard Lutnick signed the proposal on September 8. Comments close on October 13, 2026, on docket USBC-2026-0628 (RIN 0607-AA75). By late September more than 20,000 comments had been posted.

## Who would be counted, and where

The proposal defines a person's "usual residence" as the place where they "lawfully spent the greatest number of days" between January 3 and April 1 of the census year. That residence "should be consistent with, and evidenced by, their tax records," such as tax returns and W-2 forms. A day counts if the person was "physically and lawfully present" for at least an hour (proposed § 60.2, 91 FR 57529).

Foreign citizens who are also U.S. citizens or lawful permanent residents would be counted at their usual residence. "All other citizens of foreign countries" would be "Not counted for apportionment" (proposed § 60.4). In 2020 the rule was different: foreign citizens living in the United States were counted where they lived and slept most of the time, whatever their immigration status (83 FR 5525). The Bureau says it would keep publishing population statistics separate from the apportionment count, and asks whether other legal statuses are similar enough to permanent residence to be counted.

Other criteria would count people in prisons and detention centers at the facility, count federal employees deployed abroad at their U.S. residence using tax and agency records, and count those stationed abroad as part of the federally affiliated overseas population using Department of War data (proposed §§ 60.5 and 60.9).

The Bureau rests the change on its reading of the Constitution's apportionment clause, which it says refers to "inhabitants" with a lasting tie to the country, and on the discretion the Supreme Court recognized in Franklin v. Massachusetts (1992). It cites lawsuits brought by Missouri and Louisiana and a rulemaking petition Florida filed on April 15, 2026, adopting their arguments "for consideration, without necessarily endorsing" them (91 FR 57525).

## How legal status would be decided

The proposal says the Bureau is considering using administrative records to decide each person's legal status. It lists records from the Treasury, Health and Human Services, Homeland Security, State and War departments, the Postal Service, state, local and tribal governments, and "third-party commercial data." It describes its holdings as "nearly exhaustive of the civilian Federal government's holdings" and says data-sharing agreements signed with Homeland Security and State in 2019 have given it much more information on foreign citizens than it had before 2020; the Homeland Security agreement "has been substantially expanded since then" (91 FR 57526, note 6).

The Bureau also invites comment on adding a legal-status question to the census form. The limits on demographic questions in Part 70 would not block one: proposed § 70.2(d) says questions related to the residence criteria are not demographic questions. Tax information would still be used only as the tax code allows (26 U.S.C. 6103(j)(1)), the proposal says (note 17).

## Limits on demographic questions

Proposed § 70.2 would bar any question on race, ethnicity or sexual orientation from the census form. Questions on biological sex, date of birth and household relationships would still be allowed, to help verify the count. No one would be required to answer any other demographic question. The limits apply only to the census form: the American Community Survey and demographic data the Bureau receives from other agencies are unaffected (91 FR 57527–28).

The Bureau gives several reasons. More questions mean lower response rates. Each question raises the chance that someone's answers can be picked out of published data. Answering census questions is legally required under 13 U.S.C. 221, which the Bureau says makes sensitive questions a particular burden. It also cites the Privacy Act's rule that agencies keep only information that is "relevant and necessary" (5 U.S.C. 552a(e)(1)).

## Privacy and published data

Title 13 bars the Bureau from publishing anything that identifies a person (13 U.S.C. 9). For 2020 the Bureau met that duty partly by adding deliberate randomness to counts below the state level. Proposed § 70.3(b) would bar publishing individual demographic data if doing so "necessitates introducing uncertainty into the population count data, at either the national or the state level." A footnote cites a Commerce order, Department Administrative Order 216-26, that prohibits "noise infusion" (note 13).

CFA observes that the proposal describes much wider linking of federal, state and commercial records to individual census responses, but does not name the Privacy Act system of records notice that would cover that use or describe safeguards beyond the existing tax-law limits. It also does not say how the Bureau would settle conflicts between records, or what happens to a person whose status the records cannot establish.

## Review and next steps

The proposal is a "significant regulatory action" under Executive Order 12866, though not economically significant, and the Office of Management and Budget reviewed it. A preliminary regulatory impact analysis is on the docket. The Bureau says the rule has no Paperwork Reduction Act requirements but asks for comment on its estimate of reduced respondent burden. It plans tribal consultation. The Commerce Department is not yet among the agencies CFA grades.

## What to watch

Which records would decide legal status, how conflicts and gaps would be handled, and whether the Bureau publishes a privacy notice or privacy impact assessment for that use before 2030.

Whether the final rule adds a legal-status question, and how the final impact analysis estimates the effect on each state's count.

How § 70.3(b) and the ban on noise infusion would change the detail of published census data, and how the pending lawsuits proceed.

Comments can be filed on regulations.gov under docket USBC-2026-0628, or mailed to the address in the notice. The Bureau accepts anonymous comments and says comments received after October 13 may not be considered.

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