[Federal Register Volume 67, Number 229 (Wednesday, November 27, 2002)]
[Proposed Rules]
[Pages 70861-70864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30112]


 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / 
Proposed Rules  

[[Page 70861]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 272

RIN 0584-AC75


Food Stamp Program: Civil Rights Data Collection

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Food and Nutrition Service (FNS) is proposing to revise 
Food Stamp Program (FSP) regulations that cover the collection and 
reporting of racial/ethnic data by State agencies on persons receiving 
benefits from the FSP. The proposed changes are to comply with new 
racial/ethnic data collection standards issued by the Office of 
Management and Budget (OMB) while also providing regulatory flexibility 
and reform for this area of the program regulations.

DATES: Comments on this proposed rulemaking must be received by January 
27, 2003, to be assured of consideration.

ADDRESSES: Comments should be submitted to Barbara Hallman, Chief, 
State Administration Branch, Food and Nutrition Service, USDA, 3101 
Park Center Drive, Alexandria, Virginia 22302. Only written comments 
will be accepted. All written comments will be open for public 
inspection during regular business hours (8:30 am to 5 pm, Monday 
through Friday) at 3101 Park Center Drive, Alexandria, Virginia, Room 
820.

FOR FURTHER INFORMATION CONTACT: Questions regarding this proposed 
rulemaking should be directed to Ms. Hallman at the above address or by 
telephone at (703) 305-2383.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget.

Executive Order 12372

    The FSP is listed in the Catalog of Federal Domestic Assistance 
under No. 10.551. For the reasons set forth in the final rule at 7 CFR 
part 3015, subpart V and related Notice (48 FR 29115, June 24, 1983), 
the FSP is excluded from the scope of Executive Order 12372 which 
requires intergovernmental consultation with State and local officials.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Eric M. Bost, 
Under Secretary for Food, Nutrition, and Consumer Services, has 
certified that this rule will not have a significant impact on a 
substantial number of small entities. This rule may have minimal impact 
on some small entities.

Executive Order 12988

    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 
implementation. This rule is not intended to have retroactive effect 
unless so specified in the DATES section of the final rule. Prior to 
any judicial challenge to the provisions of this proposed rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.

Public Law 104-4

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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, FNS 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, or tribal governments, in 
the aggregate, or to 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 FNS to identify and consider a reasonable 
number of regulatory alternatives and adopt the least costly, more 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule.
    This proposed rule contains no 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. Therefore, this rule is not subject to the requirements of 
Sections 202 and 205 of the UMRA.

Executive Order 13132, Federalism

    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.

(1) Prior Consultation With State Officials

    Prior to drafting this proposed rule, we consulted with State and 
local agencies at various times. Because the FSP is a State-
administered, Federally funded program, our regional offices have 
formal and informal discussions with State and local officials on an 
ongoing basis regarding program implementation and policy issues. This 
arrangement allows State and local agencies to provide comments that 
form the basis for many discretionary decisions in this and other Food 
Stamp rules. Further, we first requested comments on the proposed data 
collection for the revised standards in our November 30, 1999 Federal 
Register notice. Since then, State agency comments have helped us make 
the rule responsive to concerns presented by State agencies.

(2) Nature of Concerns and the Need To Issue This Rule

    State agencies generally were concerned that the classification by 
caseworkers of an applicant's multiple race heritage via visual 
observation of people who chose not to self-identify may not always be 
accurate. They were also concerned about the cost involved and time 
that will be allowed for States to make system changes to collect and 
compile the data, to train workers, and

[[Page 70862]]

to convert the current caseload. The standardization of the data 
collection addresses another major State concern, the need to have the 
data collected in the same way across other means-tested Federal 
programs. Specific comments and policy questions submitted by State 
agencies helped us identify issues that needed to be clarified in the 
proposed rule. Implementing the revised racial classification standards 
will allow data standardization across the Federal Government.

(3) Extent to Which We Meet Those Concerns

    FNS has considered the impact of the proposed rule on State and 
local agencies. This rule makes changes that conform to the revised OMB 
standards for the collection and reporting of racial ethnic data. 
Although the rule implementing the revised data collection standards 
will require eligibility workers to collect both race and ethnicity on 
participating households, the information will standardize racial 
ethnic data collection by States for the Federal Government and will 
permit more accurate data collection on individuals who classify 
themselves as being of more than one race. It will show the increasing 
diversity of our Nation over time. FNS intends to allow States to 
obtain one race per person when visual observation is used because the 
applicant chooses not to self-identify. While State agencies will have 
to change their application form and information system to collect, 
compile, and report data, train workers, and convert the caseload, this 
is a one-time change. The 50 percent Federal reimbursement by FNS helps 
defray half the State's cost to make the change for the FSP and to 
collect, compile and report the data. The proposed rule provides States 
ample time to implement the revised data collection standards and 
convert the existing caseload to the revised data requirements. In the 
proposed rule, we have addressed every concern submitted by State 
agencies regarding this provision. States will have the opportunity to 
comment on the implementation timeframe in the proposed rule. FNS is 
not aware of any case where the provisions of the rule would preempt 
State law.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the 
proposed information collection requirements contained in this rule are 
being made available for public comment in a Notice published elsewhere 
in this issue of the Federal Register. Readers who would like more 
information on the information collection aspects of the rule, or would 
like to comment on the revised information collection burden, should 
refer to that notice for more information.
    It is important to note that, as discussed in the following 
preamble, OMB has received public comment on the revised data 
collection standards addressed in the Notice published in today's 
Federal Register. Thus, in the Notice, FNS is offering the public to 
comment only on its proposal for implementing the new OMB standards, 
not on the standards themselves. The Notice addresses implementation of 
the revised OMB standards for the FSP, the Commodity Supplemental Food 
Program (CSFP), and the Food Distribution Program on Indian 
Reservations (FDPIR). These three programs have historically been 
approved under the same OMB approval package.
    The revised data collection requirements will be submitted to OMB 
for approval after comments are received during the 60-day comment 
period. Until the OMB approves FNS' revised data collection 
requirements, State agencies would continue to use current forms (FNS 
101 and FNS 191) approved under OMB Approval No. 0584-0025.
    FNS is proposing this regulation separate from the Notice because 
the regulations governing the FSP contain provisions that must be 
amended to implement the revised standards, since they specifically 
identify the old racial/ethnic classifications. The CSFP and FDPIR do 
not require similar regulatory changes.

Background

    Title VI of the Civil Rights Act of 1964 prohibits discrimination 
on the basis of race, color, and national origin in programs receiving 
federal financial assistance. The Department of Justice (DOJ) 
regulations, at Title 28 of the Code of Federal Regulations (CFR), 
Section 42.406(a), require all Federal agencies to provide for the 
collection of racial and ethnic information from applicants for and 
beneficiaries of Federal assistance sufficient to permit effective 
enforcement of Title VI. Section 272.6(g) and (h) of the current 
program rules require States to collect data on households by racial/
ethnic data and to report the summary data to FNS.
    FNS collects this data in order to comply with the statutory 
mandates of the Civil Rights Act of 1964, DOJ regulations, and USDA 
regulations on nondiscrimination. The data are provided to the 
Department's Office of Minority Affairs to satisfy the regulatory 
requirement for annual participation data. The Department includes this 
data in an annual USDA Equal Opportunity Report. FNS compares the data 
to Census data and uses the data to identify any minority participation 
trends or disparities that need follow-up. FNS also reviews the data 
prior to conducting State or local agency compliance reviews as well as 
in selecting areas for review.
    Section 272.6(g) of the FSP rules specifies the racial/ethnic 
categories as American Indian or Alaskan Native, Asian or Pacific 
Islander, black (not of Hispanic origin), Hispanic, and white (not of 
Hispanic origin). These current racial and ethnic categories, which 
have been in place for more than 20 years, conformed to classification 
standards set by OMB in Statistical Policy Directive No. 15, Race and 
Ethnic Standards for Federal Statistics and Administrative Reporting.
    On October 30, 1997, OMB issued revised standards for the 
classification of Federal data on race and ethnicity in a notice in the 
Federal Register (62 FR 58782 et al.). They replace and supersede 
Statistical Policy Directive No. 15. All Federal agencies are required 
to comply with the revised OMB standards. The OMB standards revise the 
racial and ethnic categories and require that respondents be offered 
the option of selecting one or more racial designations. Only the FSP 
regulations specify the old racial ethnic data classifications that are 
being replaced. We are now proposing to amend the FSP regulations to 
comply with OMB policy.

Data Collection by State Agencies

    Under the revised standards, there are new categories for race and 
ethnicity. There are now five categories for race and two categories 
for ethnicity. The new racial categories are: American Indian or Alaska 
Native, Asian, Black or African American, Native Hawaiian or Other 
Pacific Islander, or White. Under the revised standards, the former 
``Asian or Pacific Islander'' category has been separated into two 
categories, ``Asian'' and ``Native Hawaiian or Other Pacific 
Islander.'' The revised standards allow individuals to choose more than 
one race to describe themselves. The revised categories on ethnicity 
are: ``Hispanic or Latino'', and ``Not Hispanic or Latino.'' The State 
agency must include these racial and ethnic categories on the State 
agency's application or data input screen.
    To ensure data quality, the State agency's application or data 
input screen must use separate questions for

[[Page 70863]]

collecting ethnicity and race, with ethnicity requested first. 
Applicants must be allowed to identify themselves as being of more than 
one race by choosing multiple racial categories. Instructions on the 
application should instruct applicants to ``Mark one or more * * *'' or 
``Select one or more * * *.'' The State agency must 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.
    The changes in the standards deal with the way in which State 
agencies collect racial/ethnic data and the racial/ethnic 
classifications. However, we wish to point out that some things have 
not changed. The current policy that the racial categories are not to 
be used for determining the eligibility of population groups for 
participation in the program would continue. The application form would 
continue to indicate that (1) the racial and ethnic information is 
voluntary, (2) that it will not affect eligibility or the level of 
benefits, and (3) that the reason for the information is to assure that 
program benefits are distributed without regard to race, color, or 
national origin.
    Currently, Sec.  272.6(g) lists the old racial/ethnic categories, 
specifies the method of data collection, and specifies related 
requirements for application forms. We do not believe it is appropriate 
to continue to list in the regulations the specific individual racial 
and ethnic categories. Instead the proposed regulations specify that 
State agencies shall collect the data ``as specified by FNS''. Racial 
designations and the manner of racial/ethnic data collection are based 
on Federal policy which is issued by OMB and which all Federal agencies 
must follow. Since the Federal policy was based on public comment, it 
would involve a duplication of effort for Federal agencies, in turn, to 
codify and implement the revised standards by further rulemaking with 
more public comment on the same issue. The intent is to pass along 
revisions to the State agencies on a more timely basis. As part of this 
streamlining, FNS will collect comments in the future through comments 
to proposed notices on the data collection and reporting. FNS guidance 
will be issued to provide clarification as necessary appropriate to the 
program in order to comply with the Federal policy.
    By being less detailed in program regulations, we are streamlining 
the Federal policy process, while maintaining flexibility for any 
future changes in the Federal policy and FNS data collection and 
reporting procedures. Further, since the Paperwork Reduction Act 
requires the publication of a Federal Register notice for comment if a 
Federal reporting form change is proposed, comments on any future 
changes in racial designations for data reporting would be obtained and 
considered in conjunction with any proposed form changes. Accordingly, 
the Department proposes to revise Sec.  272.6(g) to drop the specific 
racial category references and to replace that text with a more general 
requirement in the regulations that will be automatically linked to the 
Federal policy. However, the gist of the policy has been briefly 
explained in this preamble. FNS will issue supplementary guidance in 
the form of an implementing memorandum to State agencies once the final 
rule is published that will conform to the revised standards. To 
capture data under the new standards, State information systems will 
need to be changed.

Reporting to FNS

    The current regulations at Sec.  272.6(h) specify that the State 
agency shall report the racial/ethnic data on participating households 
on forms provided by FNS. The above changes will necessitate a form 
revision. Although the Department is not specifically describing the 
form changes in the regulatory text of Sec.  272.6(h), the revision of 
the FNS reporting form will impact the way State agencies must compile 
data in order to report it to us. FNS has discussed the changes in a 
Federal Register notice dated November 30, 1999, in October 2000 and 
2001 supplementary guidance issued to State agencies, and again in this 
proposed rule.
    To comply with the new standards, State information systems will 
need to be changed. We are proposing to require State agencies to 
report the number of household contacts who selected (or were observed 
to be under) only one racial category, separately for each of the five 
racial categories, and to provide a count of household contacts who 
selected more than one race for various multiple-race categories. The 
State agencies must report the number of household contacts who 
identified themselves as being Hispanic or Latino by racial category. 
Confidential or identifying information, such as names of participants, 
are not being reported to us under this reporting mechanism.
    We would continue to use the summary data to evaluate conformance 
with the Civil Rights Act and to provide the data to other Federal 
agencies upon request for their missions related to the Civil Rights 
Act. The data on the number of household contacts of more than one race 
will help us track changes in our Nation's diversity over time in the 
program. The more detailed data on the Hispanic data by race would 
allow us to monitor changes in racial/ethnic response patterns over 
time. We are very interested in State agency comment on the proposed 
data collection and reporting and on the reporting burden estimate per 
State agency. We are also interested in any cost estimates from State 
agencies for making the change to their information systems to comply 
with the new proposed reporting.
    We are proposing to revise Sec.  272.6(h) to provide that State 
agencies must report the racial/ethnic data on forms or formats 
provided by FNS. This change is intended to speed the movement from 
paper reporting forms to electronic reporting format. It also complies 
with the intent to move to electronic reporting of this information as 
soon as our system modifications will allow.

Implementation

    As explained previously in this preamble, until comment is received 
on these proposed regulations and approval for the revised forms are 
approved by OMB, State agencies would continue with the current data 
collection requirements for the fiscal year 2003 reporting period. FNS 
anticipates the publication of the final rule early in 2003. In the 
interim, FNS would accept comments on this rule and on the new 
reporting requirements through the Notice published elsewhere in this 
issue of the Federal Register. FNS recognizes that State and local 
agencies will need time to modify their application forms, data input 
screens, and information systems in order to begin capturing and 
tabulating data. It is crucial for FNS' information system that all 
State agencies implement the revised reporting format at the same time.
    The Forms FNS 101 and 191 currently in use would remain in effect 
for the fiscal year 2003 reporting period. State agencies would be 
required to implement the revised FNS 191 for the report month of April 
2004. For the FNS 101, State agencies would be required to implement 
for the report month of July 2004.

List of Subjects in 7 CFR Part 272

    Alaska, Civil rights, Food stamps, Grant programs-social programs, 
reporting and recordkeeping requirements.

    Accordingly, 7 CFR part 272 is proposed to be amended as follows:
    1. The authority citation for part 272 continues to read as 
follows:


[[Page 70864]]


    Authority: 7 U.S.C. 2011-2036.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

    2. In Sec.  272.6, paragraphs (g) and (h) are revised to read as 
follows:


Sec.  272.6  Nondiscrimination compliance.

* * * * *
    (g) Data collection. The State agency must obtain racial and ethnic 
data on participating households in the manner specified by FNS. The 
application form must clearly indicate that the information is 
voluntary, that it will not affect the eligibility or the level of 
benefits, and that the reason for the information is to assure that 
program benefits are distributed without regard to race, color, or 
national origin. The State agency must develop alternative means of 
collecting the ethnic and racial data on households, such as by 
observation during the interview, when the information is not provided 
voluntarily by the household on the application form.
    (h) Reports. As required by FNS, the State agency must report the 
racial and ethnic data on participating household contacts on forms or 
formats provided by FNS.

    Dated: November 22, 2002.
Roberto Salazar,
Administrator.
[FR Doc. 02-30112 Filed 11-26-02; 8:45 am]
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