Rule2023-27351
Supplemental Nutrition Assistance Program: Revision of Civil Rights Data Collection Methods
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 14, 2023
Effective
February 12, 2024
Issuing agencies
Agriculture DepartmentFood and Nutrition Service
Abstract
This rule finalizes provisions of a proposed rule published on June 27, 2022. With this final rule, the Food and Nutrition Service (FNS) is revising Supplemental Nutrition Assistance Program (SNAP) regulations that cover collecting and reporting race and ethnicity data by State agencies on persons receiving benefits from SNAP. This rule removes 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. In addition, based on feedback from the commenters, this rule prohibits using visual observation as a data collection method for race and ethnicity. 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 building equitable and inclusive systems for nutrition access.
Full Text
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<title>Federal Register, Volume 88 Issue 239 (Thursday, December 14, 2023)</title>
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[Federal Register Volume 88, Number 239 (Thursday, December 14, 2023)]
[Rules and Regulations]
[Pages 86563-86566]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27351]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 272
[FNS-2022-0005]
RIN 0584-AE86
Supplemental Nutrition Assistance Program: Revision of Civil
Rights Data Collection Methods
AGENCY: Food and Nutrition Service (FNS), Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: This rule finalizes provisions of a proposed rule published on
June 27, 2022. With this final rule, the Food and Nutrition Service
(FNS) is revising Supplemental Nutrition Assistance Program (SNAP)
regulations that cover collecting and reporting race and ethnicity data
by State agencies on persons receiving benefits from SNAP. This rule
removes 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. In
addition, based on feedback from the commenters, this rule prohibits
using visual observation as a data collection method for race and
ethnicity. 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 building equitable and inclusive systems for
nutrition access.
DATES: This rule is effective February 12, 2024.
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#92c1dfbcd4dcbcc1dcd3c2c1d3d0d2e7e1f6f3bcf5fde4"><span class="__cf_email__" data-cfemail="91c2dcbfd7dfbfc2dfd0c1c2d0d3d1e4e2f5f0bff6fee7">[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 at title 28 of the Code of Federal Regulations (CFR), Sec.
42.406(a),\1\ require all Federal agencies to provide guidelines for
the collection of race and ethnicity data 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 locations for compliance reviews, and
complete reports, as required. 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
[[Page 86564]]
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.
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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 race and ethnicity data on households,
such as by observation during the interview, when the information is
not provided voluntarily by the household on the application form.
Proposed Action
In the proposed rule, Supplemental Nutrition Assistance Program:
Revision of Civil Rights Data (87 FR 38010), FNS proposed to update
SNAP regulations at 7 CFR 272.6(g) to remove the example of visual
observation during the interview as an alternative means of collecting
race and ethnicity data when not voluntarily provided by a household on
the application form. FNS had several reasons for making this change.
FNS cited the need to comply with OMB Directive 15, Standards for the
Classification of Federal Data on Race and Ethnicity; \2\ which
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. In addition,
there was a desire to be in line with updated FNS Civil Rights Division
and Child Nutrition Programs guidance,\3\ which was supported by a
recent Centers for Medicare and Medicaid Services (CMS) study that
assessed the quality of race and ethnicity information in observational
health databases.\4\ These documents indicate 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 race or ethnicity
identity.
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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>).
\3\ <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\ Polubriaginof FCG, Ryan P, Salmasian H, et al. Challenges
with quality of race and ethnicity data in observational databases.
J Am Med Informatics Assoc. 2019. doi:10.1093/jamia/ocz113.
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II. General Summary of Comments and Explanation of Revision
During the 60-day public comment period on the proposed rule, which
ended on August 26, 2022, FNS received 14 comments. Five commenters
were members of the public, one was a State agency that administers
SNAP, six were research and advocacy organizations, and two were
associations representing health and human service agency leaders and
nutrition education administrators. All the commenters supported the
proposal to remove visual observation as an alternative data collection
method for race and ethnicity, and one commenter recommended that FNS
explicitly prohibit using visual observation as a data collection
method in the final rule. Several commenters questioned why other
alternative data collection methods remain in the rule after visual
observation is being removed. Two commenters recommended that FNS
remove the ability for States to use alternative data collection
methods noting that if an individual chooses not to provide the
information, States should not try to collect it. One commenter
encouraged FNS to gather best practices for alternative data collection
methods, and one commenter expressed concerns about using aggregate
data as an alternative data collection method.
FNS agrees that it is important to clearly state that the final
rule removes the option to use visual observation and amends the
regulatory language at 7 CFR 272.6(g) to expressly prohibit using that
option. FNS has updated language in the final rule but will continue to
allow other alternative methods of data collection. FNS cannot
eliminate the option to use alternative data collection methods in this
final rule. The use of alternate data collection methods is required by
OMB Directive 15. To ensure compliance with title VI of the Civil
Rights Act of 1964 and associated regulations, FNS will retain
requirements at regulation 7 CFR 272.6(g) for State agencies to develop
alternative means of collecting race and ethnicity data when
participants do not self-identify. However, FNS recognizes that there
are challenges associated with the use of alternative methods of data
collection for race and ethnicity, such as choosing and obtaining
appropriate data sources, and keeping up with emerging technology and
tools. Therefore, FNS will gather and disseminate to State agencies
information on best practices for developing alternative means of
collecting race and ethnicity data when participants do not self-
identify, including considerations when using aggregate data.
One commenter suggested that FNS should ensure that when State
agencies use other data sources to collect race and ethnicity data, the
State should clearly identify the data sources and verify that visual
observation was not utilized. FNS recognizes the need to support
compliance with requirements at 7 CFR 272.6(g) and agrees with the
commentor. FNS will incorporate review of State alternative methods for
collection of race and ethnicity data into its ongoing oversight and
management evaluation processes (e.g., Civil Rights and/or Program
Access reviews) and will require corrective actions, as needed.
One commenter suggested increasing the number of race and ethnicity
options available for SNAP applicants to self-identify. SNAP
regulations at 7 CFR 272.6(g) and (h) do not specify the race and
ethnicity options that State agencies must provide to SNAP applicants
for self-identification. However, FNS requires State agencies to
annually submit the ``Participation in Food Programs--By Race'' (FNS-
101) form, which includes selected race and ethnicity options. OMB
currently has an ongoing effort to gather public comments to improve
the quality and usefulness of Federal race and ethnicity data,
including through improved race and ethnicity options. FNS will
consider information obtained through OMB's effort when considering
future changes to the FNS-101 race and ethnicity options. Additionally,
FNS 113-1 Civil Rights Compliance and Enforcement Instruction states
that ``A State agency may have categories for race in addition to the
ones required by FNS; however, the additional categories must be mapped
and extracted to the FNS-required categories.''
Procedural Matters
Executive Order 12866, 13563 and 14094
Executive Orders 12866, 13563, and 14094 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, reducing costs, harmonizing rules, and
[[Page 86565]]
promoting flexibility. The Office of Management and Budget has
determined this rule to be not significant under 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 rule will 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 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 final 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 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 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. 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 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,
individuals with disabilities and individuals with limited English
proficiency (LEP). The changes to SNAP regulations in this rule are to
remove the option for visual observation for race and ethnicity data
collection from SNAP regulations. After careful review of the rule's
intent and provisions and available data sets, FNS anticipates 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 race and ethnicity 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. FNS determined that this rule
does not require Tribal consultation. 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--by Race''. The requirements
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.
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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, amend paragraph (g) by revising the third sentence
and adding a fourth sentence 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. These alternative means of data collection shall not
include observation (also known as visual observation).
* * * * *
Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023-27351 Filed 12-13-23; 8:45 am]
BILLING CODE 3410-30-P
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