Why the Equal Distribution Method Conflicts with County Business Patterns

We discussed why the equal distribution method of calculating job numbers violated the administrative notice provisions and the requirement to adduce and articulate a persuasive basis for resolving apparent conflict with the DOT.  In a nutshell, the DOT describes occupations as they exist in specific DOT-industry classifications.  The equal distribution method has an apparent conflict with the industry narrative because it assumes that occupations in small industries have the same occurrence in the national economy as occupations in large industries.  Fewer assembler jobs exist in the optical goods industry than in the automobile manufacturing industry.  DICOT, Occupational Titles Arranged by Industry Designation.  

But the Commissioner does not just take notice of the DOT.  The Commissioner takes administrative notice of County Business Patterns (CBP).   20 CFR § 404.1566(d)(2).  The Census Bureau published CBP to provide economic data including the number of establishments; employment as of March 12 of the year; and payroll data for all industries surveyed.  U.S. Census Bureau, County Business Patterns.  CBP tables of data sorted by industry are available on American FactFinder.  U.S. CensusBureau, American FactFinder.  Users can extract job numbers without CBP by industry sector (two-digit NAICS code), industry sub-sector (three-digit code), industry group (four-digit code), industry (five-digit codes), and specific industry (six-digit codes).  Where the five-digit industry designation has no further specificity, the six-digit code ends in “0.”  

The presence of administrative notice establishes the accuracy of facts which the agency takes notice tested through the rulemaking process.  Heckler v. Campbell, 461 U.S. 458, 460 (1983).  To exclude consideration of industry in assessing the number of jobs that exist for a particular occupation ignores the administrative notice of the statement of jobs within the industry of which the Commissioner has taken notice and tested through the notice and comment process of rulemaking. 

Most vocational experts would rather not consider CBP.  In a recent hearing, the VE testified that she did not use CBP because this is not a county-based program, but a national program.  The interesting point response is that counting the jobs in all the counties in a state yields a statewide number of jobs within an industry; counting all the states, the District, and territories yields a national number of jobs.  And we don't use a calculator to get there; CBP provides the data.