Proposed Rule2022-13058
Supplemental Nutrition Assistance Program: Revision of Civil Right Data Collection Methods
Primary source
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Published
June 27, 2022
Issuing agencies
Agriculture DepartmentFood and Nutrition Service
Abstract
The Food and Nutrition Service (FNS) proposes to revise Supplemental Nutrition Assistance Program (SNAP) regulations that cover the collection and reporting of race and ethnicity data by State agencies on persons receiving benefits from SNAP. This rule would remove regulatory language that provides an example that State agencies might collect race and ethnicity data by observation (also referred to as "visual observation") when participants do not voluntarily provide the information on the application form. Through this rulemaking, FNS intends to improve the quality of data collected for purposes of Federal civil rights law and policy (including Title VI of the Civil Rights Act of 1964). USDA's Food and Nutrition Service is committed to promoting equity and inclusion through its Federal nutrition assistance programs. This regulatory change is consistent with this Administration's priorities and furthers FNS' commitment to build equitable and inclusive systems for nutrition access.
Full Text
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<title>Federal Register, Volume 87 Issue 122 (Monday, June 27, 2022)</title>
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[Federal Register Volume 87, Number 122 (Monday, June 27, 2022)]
[Proposed Rules]
[Pages 38010-38012]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13058]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 122 / Monday, June 27, 2022 /
Proposed Rules
[[Page 38010]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 272
[FNS-2022-0005]
RIN 0584-AE86
Supplemental Nutrition Assistance Program: Revision of Civil
Right Data Collection Methods
AGENCY: Food and Nutrition Service (FNS), Agriculture (USDA).
ACTION: Proposed rule.
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SUMMARY: The Food and Nutrition Service (FNS) proposes to revise
Supplemental Nutrition Assistance Program (SNAP) regulations that cover
the collection and reporting of race and ethnicity data by State
agencies on persons receiving benefits from SNAP. This rule would
remove regulatory language that provides an example that State agencies
might collect race and ethnicity data by observation (also referred to
as ``visual observation'') when participants do not voluntarily provide
the information on the application form. Through this rulemaking, FNS
intends to improve the quality of data collected for purposes of
Federal civil rights law and policy (including Title VI of the Civil
Rights Act of 1964). USDA's Food and Nutrition Service is committed to
promoting equity and inclusion through its Federal nutrition assistance
programs. This regulatory change is consistent with this
Administration's priorities and furthers FNS' commitment to build
equitable and inclusive systems for nutrition access.
DATES: Written comments must be received on or before August 26, 2022
to be assured of consideration.
ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on this proposed rule. Comments may
be submitted in writing by one of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments.
<bullet> Mail: Send written comments to State Administration
Branch, Program Accountability and Administration Division,
Supplemental Nutrition Assistance Program, Food and Nutrition Service,
USDA, 1320 Braddock Place, 5th floor, Alexandria, VA, 22314.
<bullet> All written comments submitted in response to this
proposed rule will be included in the record and will be made available
to the public. Please be advised that the substance of the comments and
the identity of the individuals or entities submitting the comments
will be subject to public disclosure. FNS will make the written
comments publicly available via <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Maribelle Balbes, Chief, State
Administration Branch, Program Accountability and Administration
Division, Supplemental Nutrition Assistance Program, Food and Nutrition
Service, USDA, 1320 Braddock Place, 5th floor, Alexandria, VA 22314, by
phone at (703) 605-4272 or via email at: <a href="/cdn-cgi/l/email-protection#c59688eb838beb968b849596848785b0b6a1a4eba2aab3"><span class="__cf_email__" data-cfemail="d3809efd959dfd809d928380929193a6a0b7b2fdb4bca5">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Current Policy
Title VI of the Civil Rights Act of 1964 prohibits discrimination
on the basis of race, color, or national origin in programs receiving
Federal financial assistance. Additionally, Department of Justice (DOJ)
regulations \1\ at title 28 of the Code of Federal Regulations (CFR),
Sec. 42.406(a) require all Federal agencies to provide for the
collection of racial and ethnic information from applicants and
beneficiaries of Federal assistance programs sufficient to permit
effective enforcement of Title VI. Accordingly, SNAP regulations at 7
CFR 272.6(g) and (h) require State agencies to collect race and
ethnicity data on participating households and report the data to FNS
to help ensure program benefits are distributed without regard to race,
color, or national origin. FNS uses this data to determine how
effectively FNS programs are reaching potential eligible persons and
beneficiaries, identify areas where additional outreach is needed,
assist in the selection of location for compliance reviews, and
complete reports as required.
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\1\ <a href="https://www.ecfr.gov/current/title-28/chapter-I/part-42/subpart-F/section-42.406">https://www.ecfr.gov/current/title-28/chapter-I/part-42/subpart-F/section-42.406</a>.
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Per 7 CFR 272.6(g), State agencies that administer SNAP are
required to collect data on participants' race and ethnicity in the
manner specified by FNS. The regulations provide that the application
form must clearly indicate that the information is voluntary and that
it will not affect the eligibility or the level of benefits. SNAP
regulations at 7 CFR 272.6(g) also require State agencies to develop
alternative means of collecting racial and ethnic data on households,
such as by observation during the interview, when the information is
not provided voluntarily by the household on the application form.
State agencies report aggregate race and ethnicity data to FNS
annually via the form FNS-101, ``Participation in Food Programs by
Race'' (Office of Management and Budget (OMB) Control Number 0584-0594,
expiration 7/31/2023). FNS uses this aggregate data to conduct
compliance reviews and investigations, identify trends or disparities
that affect participation goals and opportunities to address them, and
identify any potential adverse or disproportionate impacts when
developing program policy.
Review of Visual Observation Policy and Proposed Regulatory Change
OMB Directive 15, Standards for the Classification of Federal Data
on Race and Ethnicity,\2\ provides that self-identification is the
preferred means for gaining information about an individual's race and
ethnicity, when practicable, and notes that when these data points are
collected through observation, they are likely to be very different
than from the information obtained when respondents report about
themselves, especially in populations with multiple racial heritages.
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\2\ 62 FR 58782 (October 30, 1997) (<a href="https://www.govinfo.gov/content/pkg/FR-1997-10-30/pdf/97-28653.pdf">https://www.govinfo.gov/content/pkg/FR-1997-10-30/pdf/97-28653.pdf</a>).
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In a recent review of existing policy by the FNS Civil Rights
Division and Child Nutrition Programs,\3\ FNS updated its policy to
eliminate visual
[[Page 38011]]
observation as data collection method for other FNS programs where
``visual observation'' was permitted per the regulatory language or
policy guidance. The review referenced reports stating that program
participants do not want to have their race or ethnicity determined for
them. Moreover, FNS concluded in this policy update that a third
party's observation of an individual's appearance is not a reliable
means to capture how a participant self-identifies their own racial or
ethnic identity. This conclusion is supported by a recent Center for
Medicaid Studies (CMS) study that assessed the quality of race and
ethnicity information in observational health databases. The study
suggested that patient self-reporting may provide better quality data
than visual observation.\4\
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\3\ CACFP 11-2021, SFSP 07-2021- ``Collection of Race and
Ethnicity Data by Visual Observation and Identification in the Child
and Adult Care Food Program and Summer Food Service Program--Policy
Rescission'' (<a href="https://www.fns.usda.gov/cn/Race-and-Ethnicity-Data-Policy-Rescission">https://www.fns.usda.gov/cn/Race-and-Ethnicity-Data-Policy-Rescission</a>).
\4\ <a href="https://www.cms.gov/about-cms/agency-information/omh/downloads/data-collection-resources.pdf">https://www.cms.gov/about-cms/agency-information/omh/downloads/data-collection-resources.pdf</a>.
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A review of SNAP policy led to the conclusion that the use of
visual observation for racial and ethnicity identification is
unreliable data as it requires that State eligibility workers assume or
guess the race or ethnicity of households. Therefore, FNS has
determined that SNAP State agencies are no longer permitted to collect
racial and ethnic data on households through visual observation. State
agencies must continue to use alternative means to collect this
information when not provided voluntarily on the SNAP application.
Accordingly, through this rule FNS proposes revising paragraph (g)
at 7 CFR 272.6 to remove the phrase, ``such as by observation during
the interview,'' as a way for SNAP State agencies to collect racial and
ethnic data from households that do not voluntarily provide it in their
application. FNS believes this change will better align SNAP
regulations with current Federal policy (including Title VI of the
Civil Rights Act of 1964) by improving the quality of collected data.
This proposed rule will increase the accuracy of data collected on the
race and ethnicity of SNAP households by reducing errors in data
collection caused by inaccurate visual observation. Eliminating the use
of visual observation would still provide FNS the information needed to
meet the Federal requirement to collect this data. This underreporting
may be mitigated through the use of other data sources or statistical
tools to account for the times when participants choose not to self-
identify.
FNS acknowledges the potential challenges this regulatory change
may place on States' administrative processes for collecting
demographic data. States should continue to explain the importance of
this data to participants as they encourage them to self-identify and
self-report.
States must still develop an alternative means of collecting the
data, besides visual observation, when participants do not voluntarily
provide the information. In developing these alternative collection
methods, FNS encourages States to consider obtaining the data from
other reliable sources where the respondent has self-identified race or
ethnicity, such as applications for other assistance programs operated
by the State agency (e.g., employment, health, or social services).
During the public comment period on this rule, FNS encourages States to
submit comments on best practices for developing alternative methods
for collecting race and ethnicity data when the information is not
voluntarily provided on the application form. FNS plans to provide
guidance to States on this issue.
Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This proposed rule has been determined to be not significant after
it was reviewed by OMB in conformance with Executive Order 12866.
Regulatory Impact Analysis
This rule has been designated as not significant by the Office of
Management and Budget. Therefore, no Regulatory Impact Analysis is
required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, the
Secretary certifies that this rule would not have a significant impact
on a substantial number of small entities. This proposed rule would not
have an impact on small entities because the changes required by the
regulations are directed toward State agencies operating SNAP.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and Tribal
governments and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local or Tribal
governments, in the aggregate, or the private sector, of $100 million
or more in any one year. When such a statement is needed for a rule,
Section 205 of the UMRA generally requires the Department to identify
and consider a reasonable number of regulatory alternatives and adopt
the most cost effective or least burdensome alternative that achieves
the objectives of the rule.
This proposed rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
Tribal governments or the private sector of $100 million or more in any
one year. Thus, the rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Executive Order 12372
SNAP is listed in the Catalog of Federal Domestic Assistance under
No. 10.551. For the reasons set forth in the Federal Register notice,
published June 24, 1983 (48 FR 29115), this Program is excluded from
the scope of Executive Order 12372, which requires intergovernmental
consultation with State and local officials.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section (6)(b)(2)(B) of Executive Order 13132.
The Department has determined that this rule does not have
federalism implications. This rule does not impose substantial or
direct compliance costs
[[Page 38012]]
on State and local governments. Therefore, under Section 6(b) of the
Executive order, a federalism summary impact statement is not required.
Executive Order 12988, Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
and timely implementation. This rule is not intended to have
retroactive effect unless so specified in the Effective Dates section
of the final rule. Prior to any judicial challenge to the provisions of
the final rule, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed the proposed rule, in accordance with Department
Regulation 4300-004, Civil Rights Impact Analysis, to identify and
address any major civil rights impacts the rule might have on
minorities, women, and persons with disabilities. The changes to SNAP
regulations in this proposed rule are to remove third party visual
observation for race and ethnicity data collection from SNAP
regulations. After careful review of the rule's intent and provisions,
FNS believes that the promulgation of this rule will increase the
accuracy of data collected on the race and ethnicity of SNAP households
by reducing errors in data collection caused by inaccurate visual
observation. While this rule does provide for the collection of racial
and ethnic data of SNAP households, as required by Federal law, it does
not change any eligibility criteria.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. We are unaware of any current
Tribal laws that could be in conflict with this rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part
1320) requires OMB approve all collections of information by a Federal
agency before they can be implemented. Respondents are not required to
respond to any collection of information unless it displays a current
valid OMB control number under the Paperwork Reduction Act of 1995.
Information collection activities associated with this rule are
approved under existing OMB Control Numbers. OMB Control Number 0584-
0064 (expiration 02/29/2024) includes burden estimates associated with
the collection of race and ethnicity data on SNAP applications. OMB
Control Number 0584-0594 (expiration 07/31/2023) includes burden
estimates associated with race and ethnicity data reporting on the form
FNS-101, ``Participation in Food Programs--byRace''. The proposed
changes in this rule do not introduce any new or changed information
collection requirements subject to approval by the Office of Management
and Budget under the Paperwork Reduction Act of 1995.
E-Government Act Compliance
The Department is committed to complying with the E-Government Act
of 2002, to promote the use of the internet and other information
technologies to provide increased opportunities for citizen access to
Government information and services, and for other purposes.
List of Subjects in 7 CFR Part 272
Civil rights, Claims, Grant programs--social programs, Reporting
and recordkeeping requirements, Unemployment compensation, Wages.
Accordingly, 7 CFR part 272 is amended as follows:
PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES
0
1. The authority citation for part 272 continues to read as follows.
Authority: 7 U.S.C. 2011-2036.
0
2. In Sec. 272.6, revise the third sentence in paragraph (g) to read
as follows:
Sec. 272.6 Nondiscrimination compliance.
* * * * *
(g) * * * The State agency must develop alternative means of
collecting the ethnic and racial data on households when the
information is not provided voluntarily by the household on the
application form.
* * * * *
Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2022-13058 Filed 6-24-22; 8:45 am]
BILLING CODE 3410-30-P
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