[Federal Register Volume 76, Number 94 (Monday, May 16, 2011)]
[Rules and Regulations]
[Pages 28165-28167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11924]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 94 / Monday, May 16, 2011 / Rules and 
Regulations  

[[Page 28165]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 272

[FNS-2009-0024]
RIN 0584-AD91


Supplemental Nutrition Assistance Program: Privacy Protections of 
Information From Applicant Households

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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

SUMMARY: The Food and Nutrition Service (FNS) is revising Supplemental 
Nutrition Assistance Program regulations that cover the privacy 
protections for Supplemental Nutrition Assistance Program (SNAP) 
households and applicants. The change is to comply with a new provision 
of the Food and Nutrition Act of 2008.

DATES: Effective Date: This rule will become effective May 16, 2011.
    Comment Date: To be considered, comments on this interim rule must 
be postmarked on or before July 15, 2011 to be assured of 
consideration.

ADDRESSES: The Food and Nutrition Service invites interested persons to 
submit comments on this interim rule. Comments may be submitted by any 
of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send comments to 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.
     E-Mail: Send comments to [email protected]. Include 
Docket Number [insert number], Supplemental Nutrition Assistance 
Program: Privacy Protections of Information from Applicant Households 
in the subject line of the message.
    All comments submitted in response to this interim 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 comments publicly available on the 
Internet via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jane Duffield, 703-605-4385, at the 
above address.

SUPPLEMENTARY INFORMATION:

Background

    FNS is revising Supplemental Nutrition Assistance Program (SNAP) 
regulations to clarify the legal basis and requirements for privacy 
protection provisions of section 4120 of the Food, Conservation, and 
Energy Act of 2008 (the 2008 Farm Bill), Public Law 110-246. This 
interim rule implements the requirement that SNAP State agencies 
provide sufficient information to local educational agencies (LEAs) in 
order for LEAs to directly certify children receiving SNAP benefits as 
eligible for free school lunches under the Richard B. Russell National 
School Lunch Act and for free school breakfasts under the Child 
Nutrition Act of 1966 without further application.
    Currently, 7 CFR 272.1(c) clarifies privacy protections afforded to 
Supplemental Nutrition Assistance Program (SNAP) applicants. The Food 
and Nutrition Act of 2008 (the Act) continues to permit the disclosure 
of information from applicants or recipients to persons directly 
connected with the administration or enforcement of the SNAP, other 
Federal assistance programs, or Federally-assisted State programs. 
However, as a result of the 2008 Farm Bill, the Act now directs that 
the persons to whom State agencies release the information must assure 
that the information is used only for administration or enforcement of 
those programs. Accordingly, FNS is adding a clarifying provision to 
existing regulations at 7 CFR part 272.1(c)(1).
    FNS has never interpreted the use and disclosure provision in the 
Act or the regulations to permit disclosure of information from 
applicant households to Program personnel for use outside the 
administration and enforcement of the program. Section 272.1(c) 
currently provides that recipients of information on SNAP applicant or 
recipient households must protect the information against unauthorized 
disclosure to persons or for purposes not specified in the regulations. 
Historically, our reviews and discussions with State agencies over 
information safeguards have found that State agencies have long 
understood that they must not allow the information to be used outside 
of the SNAP for purposes not permitted by the regulations, and State 
agencies have strived to protect the data from unauthorized disclosure 
or use. Based on that history, we do not anticipate that this 
rulemaking will require any change on the part of State agencies in how 
they protect information provided by SNAP applicants. Confidential 
information will continue to be unavailable to the general public and 
others not having a legitimate reason relating to program 
administration and enforcement.
    The Act also provides that the safeguards on disclosure shall not 
prevent the sharing of information to ensure that any child receiving 
SNAP benefits be certified as eligible for free lunches under the 
provisions of the Richard B. Russell National School Lunch Act and free 
breakfasts under the Child Nutrition Act of 1966, at schools without 
further application. The purpose of this provision is to make clear 
that applicants' information may be used to comply with requirements 
for certifying schoolchildren as eligible for free school meals based 
on their eligibility for SNAP benefits, and to ensure that existing 
requirements for safeguarding the released information and using it 
only for the purpose of certifying children for free school breakfast 
and lunches are observed. State agencies in the largest school 
districts have been operating under these rules since at least July 1, 
2005, and in all school districts since July 2008. Therefore we are 
adding a clarifying provision to the regulations and do not anticipate 
that any new State action will be required.

[[Page 28166]]

Procedural Matters

Issuance of an Interim Rule and Date of Effectiveness

    USDA, under the provisions of the Administrative Procedure Act at 5 
U.S.C. 553(b)(B), finds for good cause that use of prior notice and 
comment procedures for issuing this interim rule is unnecessary. This 
interim rule implements section 4120 of the Food, Conservation, and 
Energy Act of 2008, Public Law 110-246 by codifying at 7 CFR Part 
272.1(c)(1) the requirement that SNAP State agencies must assure that 
the disclosure and subsequent use of information of applicants and 
recipients of benefits be only for program administration and 
enforcement. USDA concludes that as implementation of section 4120 is 
nondiscretionary and specific, and as this rulemaking will not require 
any changes on the part of State agencies in how they protect 
information provided by SNAP applicants, it is unnecessary to issue 
this rule as a proposed rule. For the same reason, the interim rule is 
effective upon publication.
    Although we do not anticipate this rule will be controversial, 
privacy issues are sensitive ones for some members of the public, and 
the opportunity to comment will be of value to a significant number of 
people, therefore, USDA invites public comment on this interim rule for 
a 60-day period. The agency will address comments, and affirm or amend 
the interim rule in a final rule.

Executive Order 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 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 rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.

Regulatory Impact Analysis

    As required for all rules that have been designated as significant 
by the OMB, a Regulatory Impact Analysis (RIA) was developed for this 
interim rule. It follows this rule as an Appendix. The following 
summarizes the conclusions of the regulatory impact analysis:
    Need for Action: Implement Section 4120 of the Food, Conservation, 
and Energy Act of 2008 (Pub. L. 110-246).
    Benefits: Codifies the release of information necessary to directly 
certify Supplemental Nutrition Assistance Program household members for 
free school breakfasts and lunches without further application.
    Costs: Costs to SNAP State agencies for negotiating agreements and 
operating annual direct certification systems with State education 
agencies has been captured in the regulatory impact analysis for the 
Child Nutrition Division's rule titled, ``Direct Certification and 
Certification of Homeless, Migrant and Runaway Children for Free School 
Meals.'' Based on these cost estimates, the cost to SNAP State agencies 
for implementing these requirements is $0.20 million between fiscal 
years 2004 and 2011.

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. State and 
local welfare agencies will be the most affected to the extent that 
they administer the Program.

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 interim 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

    The Supplemental Nutrition Assistance Program is listed in the 
Catalog of Federal Domestic Assistance under No. 10.551. For the 
reasons set forth in the final rule in 7 CFR part 3015, subpart V and 
related Notice (48 FR 29115, June 24, 1983), 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. FNS has 
considered this rule's impact on State and local agencies and has 
determined that it does not have federalism implications under 
Executive Order 13132. 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.

Civil Rights Impact Analysis

    FNS has reviewed this interim rule in accordance with the 
Department Regulation 4300-4, ``Civil Rights Impact Analysis,'' to 
identify and address any major civil rights impact 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 
this rule has no impact on any of the protected classes. These changes 
affect the privacy of information collected from Supplemental Nutrition 
Assistance Program applicants and households and not an individual 
applicant's or recipient's eligibility or participation in the 
Supplemental Nutrition Assistance Program. FNS has no discretion in 
implementing these changes. The changes are required to be implemented 
by law. All data available to FNS indicate that protected individuals 
have the same opportunity to participate in the Supplemental Nutrition 
Assistance Program as non-protected individuals.
    FNS specifically prohibits the State and local government agencies 
that administer the Program from engaging

[[Page 28167]]

in actions that discriminate against any applicant or participant in 
any aspect of program administration, including, but not limited to, 
the certification of households, the issuance of benefits, the conduct 
of fair hearings, or the conduct of any other program service for 
reasons of age, race, color, sex, handicap, religious creed, national 
origin, or political beliefs. SNAP nondiscrimination policy can be 
found at 7 CFR 272.6. Discrimination in any aspect of program 
administration is prohibited by these regulations, the Food and 
Nutrition Act of 2008, the Age Discrimination Act of 1975 (Pub. L. 93-
112, section 504), and Title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d). Enforcement action may be brought under any applicable 
Federal law. Title VI complaints shall be processed in accordance with 
7 CFR part 15.

Executive Order 12988

    This interim 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 that conflict with its provisions or that would otherwise 
impede its full implementation. This rule is not intended to have 
retroactive effect unless so specified in the Dates paragraph of the 
rule. Prior to any judicial challenge to the provisions of this interim 
rule or the application of its provisions, all applicable 
administrative procedures must be exhausted.

Executive Order 13175

    USDA will undertake, within 6 months after this rule becomes 
effective, a series of Tribal consultation sessions to gain input by 
elected Tribal officials or their designees concerning the impact of 
this rule on Tribal governments, communities, and individuals. These 
sessions will establish a baseline of consultation for future actions, 
should any be necessary, regarding this rule. Reports from these 
sessions for consultation 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 leaders and their 
representatives concerning ways to improve this rule in Indian country.
    The policies contained in this rule would not have Tribal 
implications that preempt Tribal law.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; see 5 
CFR part 1320) requires OMB to 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, 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.

Privacy Protections

    Section 4120 of Public Law 110-246, of the Food, Conservation, and 
Energy Act (FCEA) of 2008 amends Section 11(e)(8) of the Food and 
Nutrition Act of 2008 (the Act), 7 U.S.C. 2020(e)(8), to codify 
existing regulatory provisions. Currently, 7 CFR 272.1(c) clarifies 
privacy protections afforded to Supplemental Nutrition Assistance 
Program (SNAP) applicants. The Act continues to permit the disclosure 
of information from applicants or recipients to persons directly 
connected with the administration or enforcement of the SNAP, other 
Federal assistance programs, or Federally-assisted State programs. 
However, the Act, as amended, now directs that the persons to whom 
State agencies release the information must assure that the information 
is used only for administration or enforcement of those programs.

List of Subjects in 7 CFR Part 272

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

    For the reasons set forth in the preamble, 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. Section 272.1 is amended by adding a new paragraph (c)(1)(viii) to 
read as follows:


Sec.  272.1  General terms and conditions.

* * * * *
    (c) * * *
    (1) * * *
    (viii) Local educational agencies administering the National School 
Lunch Program established under the Richard B. Russell National School 
Lunch Act or the School Breakfast Program established under the Child 
Nutrition Act of 1966, for the purpose of directly certifying the 
eligibility of school-aged children for receipt of free meals under the 
School Lunch and School Breakfast programs based on their receipt of 
Supplemental Nutrition Assistance Program benefits.
* * * * *

    Dated: May 4, 2011.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.

Appendix

    Note: This appendix will not be published in the Code of Federal 
Regulations.

Regulatory Impact Analysis Summary

7 CFR Part 272: Supplemental Nutrition Assistance Program 
Provisions of Title IV of Public Law 110-246

Interim Rule

    Need for Action: This action is needed to implement Section 4120 
of the Food, Conservation, and Energy Act of 2008 (the 2008 Farm 
Bill), Public Law 110-246, which amended Section 11 of the Food and 
Nutrition Act 2008 (7 U.S.C. 2020).
    Discussion: FNS is revising Supplemental Nutrition Assistance 
Program (SNAP) regulations to clarify the legal basis and 
requirements for privacy protection provisions of the 2008 Farm 
Bill. This interim rule would implement the requirement that SNAP 
State agencies provide sufficient information to local educational 
agencies (LEA) in order for LEAs to directly certify children 
receiving SNAP benefits as eligible for free school lunches under 
the Richard B. Russell National School Lunch Act and for free school 
breakfasts under the Child Nutrition Act of 1966 without further 
application. This interim rule will not have an implementation 
impact on SNAP State agencies as they have been providing this 
information to LEAs for very large school districts since 2006 and 
for all school districts since 2008.
    Effect on Low-Income Families: This interim rule will not have 
any impact on low-income families.
    Cost Impact: Since the interim rule is codifying processes 
already in place, there is no cost to the Government in FY 2011 or 
over the 5 years FY 2011 through FY 2015.
    Participation Impacts: This interim rule will not have any 
impact on SNAP participation.
    Uncertainty: There is no uncertainty associated with this cost 
estimate.

[FR Doc. 2011-11924 Filed 5-13-11; 8:45 am]
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