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. 

Counter Clerks -- DOT 249.366-010

Over the weekend, We discussed furniture rental consultants for the proposition that 34% require standing about half the time; that the SVP range is below; that the occupation is one of 24 in the O*NET classification of counter and rental clerks; and that the occupational group consists of 442,100 jobs in the national economy as of 2014. 

I know the next question.  What about counter clerk, photofinishing?  This occupation belongs to the same SOC group and the same comments, but a different industry. The DOT describes the occupation as occurring in the photofinishing industry.  That one is not listed in the excel spreadsheet that forms the Employment Projections from the Occupational Outlook Handbook, for  SOC group 41-2021.   So we have to use a different tool, the NAICS search.

NAICS stands for North American Industry Classification System.  We search by using the NAICS search.  Using photofinishing as the search term we get:


NAICS Title

	NAICS Code	Common Keywords
Photographic Equipment and Supplies Merchant Wholesalers	423410	Photofinishing equipment merchant wholesalers
Photofinishing Laboratories (except One-Hour)	812921	Film developing and printing (except motion picture, one-hour)
One-Hour Photofinishing	812922	One-hour photofinishing services

Counter clerks would not work in merchant wholesale so commonsense eliminates NAICS code 423410, Photographic Equipment and Supplies Merchant Wholesalers.  That leaves the two photofinishing six-digit codes.  County Business Patterns provides industry employment data: 

	81292	Photofinishing	7,658	142,926	483,525	724
	812921	Photofinishing Laboratories (except One-Hour)	6,884	138,479	463,615	536
	812922	One-Hour Photofinishing	774	4,447	19,910	188

The five-digit code is the parent, the two six-digit codes are the children.  Photofinishing Laboratories (except One-Hour) plus One-Hour Photofinishing(6,884 + 774) comprise photofinishing (7,758).

Wait, wait, now just wait one darn minute.  County Business Patterns says that total industry employment -- not just counter clerks -- amounts to 7,658 jobs?  We don't get to make up the numbers but we do get to read.  Let's check the employment projections but we will have to go up in specificity of the NAICS code because these two are too small. 

812900

Other personal services

0.7

0.2

Counter clerks cannot make up more than 700 jobs on the employment projections in the four-digit code for NAICS code 812900 Other Personal Services.  They represent 0.2% of industry employment.  In the photofinishing industry, counter clerks make up 15 jobs (0.002 * 7,658 = 15.3). 

How many counter clerk jobs exist in the national economy?  Taking administrative notice of the OOH along with the employment projections and the CBP using the NAICS search tool results in a total of 15 jobs in the nation.  The occupation does not exist in significant numbers.