[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Rules and Regulations]
[Pages 27603-27606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11419]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 92 / Thursday, May 12, 2011 / Rules 
and Regulations  

[[Page 27603]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271 and 272

RIN 0584-AD89


Supplemental Nutrition Assistance Program: Civil Rights 
Protections for SNAP Households

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Food and Nutrition Service (FNS) is amending Supplemental 
Nutrition Assistance Program (SNAP) regulations that secure civil 
rights protections for SNAP households and applicants. The 
nondiscretionary change complies with an amendment made to the Food, 
Conservation, and Energy Act of 2008 which specifically enumerates four 
statutory protections that must be complied with by State agencies in 
administering SNAP. This nondiscretionary change to the regulations is 
not expected to have an implementation impact on SNAP State agencies, 
as they have been subject to such statutes for several years.

DATES: Effective Date: This is effective June 13, 2011.
    Implementation Date: State agencies must implement the provisions 
of this rule no later than June 13, 2011.

FOR FURTHER INFORMATION CONTACT: Jane Duffield, Chief, State 
Administration Branch, Supplemental Nutrition Assistance Program, Food 
and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center 
Drive, Room 818, Alexandria, VA 22302, 703-605-4385, and 
[email protected].

SUPPLEMENTARY INFORMATION:

Procedural Matters

Executive Order 12866 and Executive Order 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 final rule has been designated non-significant under section 
3(f) of Executive Order 12866.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601-612). Pursuant 
to that review, it has been certified that this rule would not have a 
significant impact on a substantial number of small entities.
    This final rule does not impose any additional or unnecessary and 
disproportionately burdensome demands upon small governmental 
jurisdictions with limited resources.

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 final 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. Thus, the rule is not subject to the requirements of sections 202 
and 205 of the UMRA.

Executive Order 12372

    The Supplemental Nutrition Assistance Program (SNAP) is listed in 
the Catalog of Federal Domestic Assistance under 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), SNAP 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 13121.
    This rulemaking is not expected to have an impact on State 
agencies. State agencies have had to comply with the Americans with 
Disabilities Act (ADA) (42 U.S.C. 12101) provisions ever since 
enactment in 1990, over 20 years ago. Current provisions in 7 CFR 272.6 
prohibiting discrimination on the basis of handicap has been in effect 
for over 10 years. Further, State agencies have long had to comply with 
SNAP regulations that prohibit discrimination on the basis of 
disability. Accordingly, we anticipate that this rulemaking will not 
require new State agency implementation action. Therefore, there are no 
additional requirements on State and local agencies requiring prior 
consultation with State officials. State agencies will need to continue 
to consider any accessibility issues that may arise regarding disabled 
participants or applicants before making changes to SNAP administration 
or launching any new initiative. State agencies should continue to 
self-evaluate their administration of SNAP to ensure service to all 
eligible people with disabilities.

[[Page 27604]]

Executive Order 12988

    This final 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

    This rule will not in any way limit or reduce the ability of 
protected classes of individuals. Executive Order 12250 delegates the 
approval of rules based on the Civil Rights Act to the Attorney 
General. This rule has been reviewed by the Department of Justice 
(DOJ). There is no pertinent information as to the result of the DOJ 
review.
    Section 4117 of the Food, Conservation, and Energy Act of 2008 
(FCEA) amended Section 11(c) of the Food and Nutrition Act of 2008, 7 
U.S.C. 202(c), to provide that the administration of SNAP by a State 
agency shall be consistent with the rights of households under the Age 
Discrimination Act of 1975, 42 U.S.C. 6101, et seq., Section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. 794, the Americans with 
Disabilities Act of 1990, 42 U.S.C. 12101 et seq., and title VI of the 
Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. As amended, Section 
11(c) of the Food and Nutrition Act provides statutory clarification 
that civil rights protections provided in the specified statutes apply 
to persons with disabilities who seek to participate in SNAP.
    The SNAP administration by State agencies is already subject to all 
four of these civil rights laws. SNAP regulations at 7 CFR 272.6(a) 
specify three of the four civil rights laws. However, 7 CFR 272.6(a) 
does not currently include the Americans with Disabilities Act of 1990. 
Current rules at 7 CFR 272.6(a) do prohibit discrimination in the 
certification of households, the issuance of benefits, the conduct of 
fair hearings, or the conduct of any program service for reasons of 
age, race, color, sex, handicap, religious creed, national origin, or 
political beliefs. USDA has also promulgated general, department-wide 
civil rights regulations at 7 CFR 15b, which also protect the civil 
rights of persons with disabilities.
    The Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101) 
was signed into law on July 26, 1990. Title II of the ADA prohibits 
discrimination on the basis of disability in all services, programs, 
and activities provided to the public by public entities including 
State and local governments. It applies to all State and local 
governments, their departments and agencies, and any other 
instrumentalities or special purpose districts of State and local 
governments.
    The ADA requires a public entity to make reasonable accommodations 
to allow participants with disabilities to participate in the program. 
If the public entity can demonstrate that a particular modification 
would fundamentally alter the nature of its service, program, or 
activity, it is not required to make that modification. Public entities 
do not necessarily have to make each of their existing facilities 
accessible. They may provide program accessibility by a number of 
methods including alteration of existing facilities, acquisition or 
construction of additional facilities, relocation of a service or 
program to an accessible facility, or provision of services at 
alternate accessible sites. An example of reasonable accommodations may 
include access ramps for people who use wheelchairs to access 
buildings.
    Since the inception of the program, SNAP State agencies have always 
served the disabled. In FY 2007, SNAP served a monthly average of 2.8 
million households containing disabled nonelderly people. Households 
with disabled nonelderly people represented 24 percent of all SNAP 
households and received an average monthly SNAP benefit of $148. About 
57 percent of SNAP households with disabled nonelderly people were 
single-person households.
    Households may file SNAP applications by submitting the form to the 
SNAP office in person, through an authorized representative, by fax or 
other electronic transmission, by mail, or by completing an on-line 
electronic application in States where available. As of September 2010, 
a total of 26 States allow applicants to apply online and additional 
States are working on systems that will allow applicants to apply by 
computer.
    Communication between the caseworker and the applicant is an 
important part of the SNAP application process. The State agency shall 
provide each household at the time of application for certification and 
recertification with a notice that informs the household of the 
verification requirements the household must meet as part of the 
application process. The notice shall also inform the household of the 
State agency's responsibility to assist the household in obtaining 
required verification provided that the household is cooperating with 
the State agency. As part of the application process, the household 
completes and signs the application form, the household or its 
authorized representative is interviewed by the State agency, and 
certain information on the application must be verified to determine 
eligibility.
    Examples of reasonable accommodation in the application process may 
include qualified sign language interpreters and written materials for 
individuals with hearing impairments. Other examples may include 
qualified readers and Brailed or large print materials for individuals 
with vision impairments.
    SNAP requires an interview for every initial certification and for 
recertification, at least once every 12 months. The interview would be 
face-to-face unless FNS waives the requirement to document the hardship 
to the household, or the State agency determines individually that the 
face-to-face aspect would be a hardship under 7 CFR 273.2(e)(2). FNS 
has not established strict guidelines about what this hardship would 
be, preferring to allow State agencies a degree of flexibility in 
determining household hardship situations. As provided in the 
regulations, these situations include, but are not limited to, illness, 
transportation difficulties, care of a household member, hardships due 
to residency in a rural area, prolonged severe weather, or work or 
training hours which prevent the household from participating in the 
in-office interview. The State agency must document the case file to 
show when a waiver was granted because of hardship. The State agency 
may opt to waive the face-to-face interview in favor of a telephone 
interview to all households which have no earned income and all members 
of the household are elderly or disabled. Regardless of any approved 
waivers, the State agency must grant a face-to-face interview to any 
household that requests one. The State agency has the option of 
conducting a telephone interview or a home visit that is scheduled in 
advance with the household if the office interview is waived.
    SNAP benefits are issued in the form of electronic benefit transfer 
(EBT), which is essentially a system that uses a SNAP debit card for 
use in authorized

[[Page 27605]]

retail food stores to purchase eligible food for the household's 
consumption. Written materials and/or other information, including the 
specific rights to benefits in an EBT system, must be provided for 
households with disabilities. State agencies are required to provide 
training for all EBT users and especially for persons with 
disabilities. In addition, in accordance with SNAP regulations at 7 CFR 
274.8(b)(vi)(4)(G), EBT systems used by State agencies are required to 
provide reasonable accommodation for the needs of households with 
disabilities in keeping with the ADA. With the household's permission, 
an authorized household representative may use the household's EBT card 
to purchase eligible food for the household.
    As the first step, FNS encourages clients with disabilities to 
share any accessibility concerns on applying for and receiving SNAP 
benefits they may have with the State agencies. The State agency is in 
the best position to consider the client's concern and make timely and 
reasonable accommodations to serve the household. For example while the 
face-to-face interview may be conducted at the local SNAP office, it 
may also be conducted at another mutually acceptable location, 
including a household's residence. If the household's accessibility 
concerns are not promptly addressed, individuals may file a written 
complaint with the Secretary or the Administrator, FNS, Washington, DC 
20250. FNS is committed to ensuring that all eligible persons can 
participate in SNAP.
    FNS wishes to note that there are differences in the definitions 
for disability and disabled between the ADA and SNAP regulations and 
that they are used for different purposes. Under the ADA, a disability 
is defined as a physical or mental impairment that substantially limits 
one or more of an individual's major life activities, having a record 
of such impairment, or being regarded as having such an impairment. The 
ADA disability definition is used to identify qualified individuals 
with disabilities which would then be followed by any necessary and 
reasonable modification of physical barriers or processes that may have 
the unintended impact of inadvertently screening out people with 
disabilities.
    However, under SNAP regulations, disabled is defined as a household 
member who receives disability benefits under the Social Security Act 
or receives certain other disability payments specified in 7 CFR 271.2. 
The SNAP disabled definition is used in making the SNAP eligibility 
determination and benefit calculation. Specifically, the elderly and 
disabled are potentially eligible for higher benefits in SNAP that are 
not available to the nonelderly and the non-disabled with the same 
income and excess medical expenses. SNAP regulations at 7 CFR 
273.9(d)(3) provide for the deduction from income of the excess medical 
deduction which would be that portion of medical expenses exceeding $35 
per month. This deduction is made for the calculation of the 
household's income on which the SNAP benefit will be based. This 
deduction provides additional assistance to the elderly or disabled who 
have higher medical bills and thus would have less household funds 
available to purchase food and pay for other necessities. The lower 
income calculation based on the higher deduction for higher medical 
costs produces higher SNAP benefits for the elderly or disabled.
    The eligibility and benefit rules for SNAP also contain other 
provisions that benefit the disabled but do not apply to other 
households. These include but are not limited to allowing disabled 
recipients who receive SSI to be categorically eligible for SNAP, 
imposing no cap on the shelter deduction for the disabled, and imposing 
no gross income limit for the disabled. The disabled who cannot prepare 
their own meals can, under certain circumstances, be a separate 
household, along with a spouse.
    For purposes of making reasonable accommodations to allow 
participants with disabilities to apply for the program and receive 
program services, State agencies are to use the ADA disability 
definition. However, the SNAP disabled definition in 7 CFR 271.2 will 
continue to apply to the eligibility and benefit determination for SNAP 
applicants.
    FNS wishes to point out that in directing State agencies to use the 
ADA disability definition for purposes of making reasonable 
accommodation, it is not our intent to diminish other State agency 
procedures and initiatives to serve applicants, including the disabled. 
For example, the State agency is not limited to the ADA disability 
definition when considering hardship for waiving the face-to-face 
interview. A State agency may continue to waive the face-to-face 
interview for a reason that is not included in the ADA disability 
definition. Thus, the use of the ADA definition of disability for 
purposes of making a decision on reasonable accommodation is not 
intended to reduce in any way the services to disabled or other 
households that the State agencies now routinely provide under current 
FNS regulations, including services in hardship situations determined 
under 7 CFR 273.2(e)(2).

Outreach and Communication to Minorities, Women, and Persons With 
Disabilities

    State agencies receiving financial assistance under the SNAP 
program must provide to FNS a written assurance that SNAP will be 
operated in compliance with USDA and FNS nondiscrimination laws, 
regulations, instructions, policies, and guidelines. The FNS Regional 
Offices (RO) obtain written assurance of nondiscrimination compliance 
from each State agency and ensure that State agencies are obtaining 
assurance from local agencies or other sub-recipients that receive 
Federal financial assistance for compliance. Civil rights assurance is 
governed by SNAP regulations at 7 CFR 272.6(a).
    Under FNS Instruction 113-1, Part XI, civil rights training is 
required so that all involved in all levels of administration of 
programs that received Federal financial assistance understand civil 
rights related laws, regulations, procedures and directives. This 
training is part of the technical assistance to the State agencies, and 
the FNS ROs are responsible for providing such training. Specific 
training includes: Collection and use of data; effective public 
notification systems; complaint procedures; compliance review 
techniques; resolution of noncompliance; requirements for reasonable 
accommodation of persons with disabilities; requirements for language 
assistance; conflict resolution; and customer service.
    FNS also requires each RO Office of Civil Rights to conduct on-
going civil rights compliance reviews in its respective States. Under 7 
CFR part 275, the State agencies are also required to conduct a civil 
rights review annually for large project areas, every 2 years for 
medium project areas, and 3 years for small project areas. There are no 
additional outreach efforts regarding this final rule. Removing the 
word ``handicap'' and adding in its place the word ``disability'' will 
not have a disadvantageous effect on the protected groups.

Summary and Conclusion

    FNS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. After a careful 
review of the rule's intent and provisions, FNS has determined that 
there is no way to

[[Page 27606]]

soften the effect on any of the protected classes regarding those 
provisions of the rule. Removing the word ``handicap'' and adding in 
its place the word ``disability'' will not affect the protected groups, 
but is technical in nature. The term ``disability'' is consistent with 
the statutory mandate of the ADA.

Executive Order 13175

    E.O. 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. In late 2010 and early 2011, USDA engaged 
in a series of consultative sessions to obtain input by Tribal 
officials or their designees concerning the impact of this rule on the 
tribe or Indian Tribal governments, or whether this rule may preempt 
Tribal law. Reports from these consultations will be made part of the 
USDA annual reporting on Tribal Consultation and Collaboration. USDA 
will respond in a timely and meaningful manner to all Tribal government 
requests for consultation concerning this rule and will provide 
additional venues, such as webinars and teleconferences, to 
periodically host collaborative conversations with Tribal officials or 
their designees concerning ways to improve this rule in Indian country.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires the Office of Management and Budget (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. 
This rule does not contain information collection requirements subject 
to approval by OMB under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    The Food and Nutrition Service 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.

Implementation

    In accordance with Section 11(c) of the Food and Nutrition Act of 
2008, as amended by Section 4117 of the FCEA, the Department is 
amending 7 CFR 272.6(a) specifically to provide that State agency 
administration of the program must be consistent with the Americans 
with Disabilities Act (42 U.S.C. 12101). The Department is also making 
a change in terminology to update a section of SNAP regulations. The 
current provision in 7 CFR 272.6 prohibits discrimination on the basis 
of ``handicap.'' The prohibition of discrimination on the basis of 
handicap originated in the Rehabilitation Act of 1973, which preceded 
enactment of the ADA. However, the ADA uses the term ``disability'' and 
most SNAP regulations use the term ``disabled.'' Accordingly, FNS is 
amending 7 CFR 272.6 to replace the term ``handicap'' as a prohibited 
basis for discrimination with the term ``disability'' to conform to the 
terminology in the ADA. We are making a similar change in terminology 
in 7 CFR 271.6(a), which provides that civil rights complaints under 
all the listed bases are to be handled in accordance with 7 CFR 272.6.
    Finally, the Department is making one additional change in 
terminology in this section of the regulations. The current 7 CFR 272.6 
refers to the issuance of ``coupons'' as one program activity. Section 
825 of the Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996 amended Section 7(i) of what is now the Food and Nutrition 
Act of 2008, 7 U.S.C. 2016(i), to mandate that all States must convert 
from paper coupon systems to an EBT system. By fiscal year 2004, all 
State agencies had converted to EBT. Accordingly, the Department is 
using this opportunity to amend 7 CFR 272.6(a) where it refers to the 
issuance of coupons to replace the term ``coupons'' with the term 
``benefits.''
    This rule is effective June 13, 2011. The ADA requirements were 
effective by law on January 26, 1992. The current provision in 7 CFR 
272.6 prohibiting discrimination on the basis of handicap has been in 
effect for over 10 years. Accordingly, this rule reflects the statutory 
provision and the terminology change consistent with the ADA.

List of Subjects

7 CFR Part 271

    Grant programs--social programs, Reporting and recordkeeping 
requirements.

7 CFR Part 272

    Alaska, Civil rights, Claims, Grant programs--social programs, 
Reporting and recordkeeping requirements, Unemployment compensation, 
Wages.

    For the reasons set forth in the preamble, 7 CFR parts 271 and 272 
are amended as follows:

PART 271--GENERAL INFORMATION AND DEFINITIONS

0
1. The authority citation for part 271 continues to read as follows:

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


Sec.  271.6  [Amended]

0
2. In Sec.  271.6, in paragraph (a)(1), the second sentence is amended 
by removing the word ``handicap'' and adding in its place the word 
``disability''.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

0
3. The authority citation for part 272.1 continues to read as follows:

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


Sec.  272.6  [Amended]

0
4. In Sec.  272.6, paragraph (a) is amended by removing the word 
``handicap'' in the first sentence and adding in its place the word 
``disability'' and in the second sentence by adding the words 
``Americans with Disabilities Act of 1990 (42 U.S.C. 12101)'' 
immediately following the words ``the Rehabilitation Act of 1973 (Pub. 
L. 93-112, section 504)''.

    Dated: May 3, 2011.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2011-11419 Filed 5-11-11; 8:45 am]
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