[Federal Register Volume 81, Number 65 (Tuesday, April 5, 2016)]
[Proposed Rules]
[Pages 19500-19502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07793]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 81, No. 65 / Tuesday, April 5, 2016 / 
Proposed Rules  

[[Page 19500]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271 and 278

RIN 0584-AE27


Enhancing Retailer Standards in the Supplemental Nutrition 
Assistance Program (SNAP) Clarification of Proposed Rule and Extension 
of Comment Period

AGENCY: Food and Nutrition Service (FNS), U.S. Department of 
Agriculture (USDA).

ACTION: Clarification of proposed rule; extension of comment period.

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SUMMARY: This action extends the comment period and responds to 
questions posed by commenters about certain aspects of a proposed rule 
pertaining to the eligibility of Supplemental Nutrition Assistance 
Program (SNAP) retail food stores that was published in the Federal 
Register on February 17, 2016. The Agricultural Act of 2014 (2014 Farm 
Bill) amended the Food and Nutrition Act of 2008 (the Act) to increase 
the requirement that certain SNAP authorized retail food stores have 
available on a continual basis at least three varieties of items in 
each of four staple food categories, to a mandatory minimum of seven 
varieties. The 2014 Farm Bill also amended the Act to increase, for 
certain SNAP authorized retail food stores, the minimum number of 
categories in which perishable foods are required from two to three. 
The proposed rule would codify these mandatory requirements.

DATES: The comment period for the proposed rule that was published on 
February 17, 2016 (81 FR 8015) has been extended from April 18, 2016 to 
May 18, 2016. To be assured of consideration, comments must be 
postmarked on or before May 18, 2016.

ADDRESSES: 
    The Food and Nutrition Service (FNS), USDA, invites interested 
persons to submit comments. In order to ensure proper receipt, comments 
may only be submitted through one of the following methods:
     Preferred method: Federal e-Rulemaking Portal: Go to 
http://www.regulations.gov and follow the online instructions for 
submitting comments on docket FNS-2016-0018.
     Mail: Written comments should be addressed to Vicky 
Robinson, Chief, Retailer Management and Issuance Branch, Retailer 
Policy and Management Division, Room 418, 3101 Park Center Drive, 
Alexandria, Virginia 22302.
    All comments submitted in response to this notice 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. All submissions will be 
available for public inspection at the address above during regular 
business hours (8:30 a.m. to 5:30 p.m.), Monday through Friday.

FOR FURTHER INFORMATION CONTACT: 
    Address any questions regarding this notice to Vicky Robinson, 
Chief, Retailer Management and Issuance Branch, Retailer Policy and 
Management Division at the Food and Nutrition Service (FNS), USDA, 3101 
Park Center Drive, Alexandria, Virginia 22302. Ms. Robinson can also be 
reached by telephone at (703)-305-2476 or by email at 
[email protected] during regular business hours (8:30 a.m. to 
5:30 p.m.) Monday through Friday.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Agricultural Act of 2014 (2014 Farm Bill) amended the Food and 
Nutrition Act of 2008 (the Act) to increase the requirement that 
certain SNAP authorized retail food stores have available on a 
continual basis at least three varieties of items in each of four 
staple food categories, to a mandatory minimum of seven varieties. The 
2014 Farm Bill also amended the Act to increase, for certain SNAP 
authorized retail food stores, the minimum number of categories in 
which perishable foods are required from two to three. The proposed 
rule would codify these mandatory requirements.
    Further, using existing authority in the Act and feedback from a 
Request for Information that was published in the Federal Register on 
August 20, 2013, and that included five listening sessions in urban and 
rural locations across the nation and generated 233 public comments, 
FNS proposed several additional changes. Among other items, these 
proposed changes would address depth of stock, amend the definition of 
staple foods, and amend the definition of ``retail food store'' to 
clarify when a retailer is a restaurant rather than a retail food 
store.
    Additionally, this action extends the comment period for the 
proposed rule. Since publication of the proposed rule, several entities 
have requested an extension of the comment period in order to allow 
ample time for all stakeholders to comment on the rulemaking process. 
The comment period, therefore, is being extended 30 days in order to 
provide additional time for interested parties to review and comment on 
this proposed rule. To be assured of consideration, comments on this 
proposed rule must be received by FNS on or before May 18, 2016.

II. Clarification and Request For Comment

    Commenters have posed similar questions to FNS concerning 
provisions of the proposed rule, in some instances indicating possible 
misunderstandings of the proposal. FNS appreciates these comments and 
for this reason, as well as to help ensure that comments submitted are 
of most value to the Agency, FNS is providing the following additional 
clarifications and requests for comment regarding certain provisions 
proposed in this rule.
    FNS encourages commenters to review and comment on all of the 
issues raised in the proposed rulemaking, as well as on issues examined 
in the supporting Regulatory Impact Analysis and Interim Regulatory 
Flexibility Analysis prepared for the proposed rule and published as 
part of the docket in Supporting Documents on Regulations.gov.

1. Under the proposed rule, what would be the varieties of items 
retailers would need to stock?

    As required by Section 3(o)(1)(A) of the Food and Nutrition Act of 
2008 (the Act), as amended by the Agricultural Act of 2014 (2014 Farm 
Bill), retailers

[[Page 19501]]

would be required to stock at least 7 varieties in each of the 4 staple 
food categories. Section 3(q) of the Act defines the 4 staple food 
categories as dairy products; breads and cereals; meats, poultry, and 
fish; and fruits and vegetables. FNS does not have discretion to alter 
the statutory 7 variety requirement.
    However, FNS appreciates the questions it has received from 
commenters inquiring about the items that constitute variety under the 
proposed rule in the four staple food categories and encourages 
additional comments from the public on this point. FNS is particularly 
interested in comments from the public as to whether and how variety 
should take into account the differences between products within staple 
food categories (generally and individually), and what factors should 
be considered when making such distinctions.
    For example, for purposes of variety in the meat, poultry, and fish 
category, FNS would appreciate public comments on whether to consider 
food items that come from the same type of animal or species as 
separate varieties in this food category (e.g., raw chicken breast 
versus refrigerated grilled chicken breast; roast beef versus ground 
beef; sliced turkey versus turkey bacon; fresh bluefin tuna steaks 
versus canned albacore tuna). FNS would also appreciate public comments 
regarding the basis by which one could consider food items that come 
from the same type of animal or species as separate varieties, in this 
or other staple food categories. Finally, FNS would like to clarify its 
intent in the proposed rule for the meat, poultry, and fish staple food 
category to include other varieties, such as eggs and meat alternatives 
(e.g., tofu, gluten, or mycoprotein).
    Examples of how a retailer might stock 7 varieties in each of the 4 
staple food categories follow further below.

2. Under the proposed rule, how many perishable items would retailers 
need to stock?

    Section 3(o)(1)(A) of the Act, as amended by the 2014 Farm Bill, 
requires that retailers would be required to stock ``perishable foods 
in at least 3 of the [staple food] categories.'' Therefore, FNS has 
proposed to codify in regulation the statutory requirement that 
retailers stock at least one perishable variety in 3 of the 4 staple 
food categories.
    The proposed rule does not propose to change the meaning of 
``perishable'' in the current regulations. Currently, under 7 CFR 
278.1(b)(1)(ii)(B), perishable foods include items that are either 
frozen or refrigerated staple food items and as well as fresh, 
unrefrigerated staple food items that will spoil or suffer significant 
deterioration in quality within 2 to 3 weeks (e.g., bread).
    An example of how a retailer might meet the perishables requirement 
with one perishable variety in 3 of the 4 staple food categories 
follows further below.

3. Under the proposed rule, what would qualify as multiple ingredient 
foods?

    Currently, 7 CFR 271.2 provides that ``commercially processed foods 
and prepared mixtures with multiple ingredients shall only be counted 
in one staple food category'' for the purposes of determining 
eligibility of any firm.
    Under the proposed rule, commercially processed foods and prepared 
mixtures with multiple ingredients that do not represent a single 
staple food category (e.g., cold pizza, macaroni and cheese, 
sandwiches, TV dinners, mixed soup varieties, and pot pies), would not 
be counted (toward variety, perishables, or depth of stock) as staple 
foods for purposes of determining a firm's eligibility to participate 
in SNAP as a retail food store. Under the proposed rule, multiple 
ingredient foods would not include such items as yogurt, cheeses, and 
cereals, as the primary staple food ingredient is clearly represented 
and easily recognized.
    FNS appreciates the questions it has received from commenters on 
multiple ingredient foods under the proposed rule and encourages 
additional comments from the public on this provision of the proposed 
rule. FNS is particularly interested in comments from the public as to 
whether certain types of foods with multiple ingredients should 
continue to be counted as staple foods, including toward variety, 
perishables, or depth of stock requirements. For example, for the 
purposes of staple food categorization, FNS would appreciate public 
comments on whether and how to categorize certain foods with multiple 
staple food ingredients, such as prepared salads, pizzas, pot pies, 
macaroni and cheese, stuffed pastas, and others, as offered by 
commenters, for purposes of making a retailer eligibility determination 
for SNAP authorization.
    Examples of additional multiple ingredient foods that would and 
would not count as staple foods under the proposed rule follow.
    Multiple ingredient foods are currently eligible for purchase with 
SNAP benefits, and this proposed rule would not change the eligibility 
of these foods for purchase with SNAP benefits in authorized stores.

4. Under the proposed rule, how many total items would retailers be 
required to stock?

    Currently SNAP regulations require that SNAP authorized stores have 
available on a continuous basis at least 3 varieties of items in each 
of the 4 staple food categories with perishable varieties in at least 2 
of the 4 staple food categories. Under current SNAP regulations, 
retailers may be SNAP authorized with a minimum stock of at least 12 
food items, including at least 2 perishable items. As noted in the 
proposed rule, these requirements have been changed by the Food and 
Nutrition Act of 2008 (the Act), as amended by the Agricultural Act of 
2014 (2014 Farm Bill).
    Section 3(o)(1)(A) of the Act now requires that retailers stock at 
least 7 varieties in each of the 4 staple food categories and 
perishable foods in at least 3 of the 4 staple food categories. That 
means that retailers are required to stock 28 items on a continuous 
basis. At least 3 of these items must be perishable.
    Under the proposed rule, which would require a depth of stock 
defined as 6 stocking units, SNAP-authorized retailers would be 
required to stock a new minimum inventory requirement of 168 staple 
food items.
    Based on the statutory requirement that at least 1 perishable 
variety be stocked in 3 of the 4 staple food categories, and with depth 
of stock discretionarily defined as 6 stock keeping units, this 
proposed rule would require that a store stock at least 18 perishable 
staple food items (within the 168 staple food item total).
    According to Department analysis, contained in the Interim 
Regulatory Flexibility Analysis prepared for the proposed rule and 
published as part of the docket in Supporting Documents on 
Regulations.gov, the average small store would need to add an 
additional 54 additional staple food items, at a cost of around $140, 
in order to meet the proposed eligibility criteria. As set forth in the 
Interim Regulatory Flexibility Analysis for the proposed rulemaking, 
FNS estimates that purchasing all 168 staple food items would cost a 
store approximately $400, including a one-time inventory carrying cost 
of 25% to account for storage costs and potential spoilage. FNS 
believes that adding new inventory would be a one-time cost, a cost 
that would be recouped as inventory is sold.
    See the full Regulatory Impact Analysis and Interim Regulatory

[[Page 19502]]

Flexibility Analysis for further details. https://www.regulations.gov/#!documentDetail;D=FNS-2016-0018-0006.
    More generally, FNS appreciates the questions it has received from 
commenters on the number of total food items that retailers would be 
required to stock under the proposed rule and encourages additional 
comments from the public on this provision of the proposed rule, 
including comments on the impacts (such as benefits, costs, or small 
business impacts) associated with proposals that would alter the total 
food items that retailers would be required to stock.
    FNS also appreciates the questions from commenters it has received 
regarding how the proposed requirements would affect different types of 
retail food stores and encourages additional comments from the public 
on potential retail food store impacts.

EXAMPLES of Acceptable Variety, Perishables, and Depth of Stock Under 
the Proposed Rule

    Meat, Poultry, and Fish--the proposed rule would require stocking 
at least 7 varieties in this staple food category; below are ten 
examples of what FNS would consider different varieties. This is an 
illustrative list and not an exhaustive list of items that FNS proposes 
to be acceptable varieties in this staple food category.
    Perishable:

1. Sliced turkey breast--6 packages
2. Shrimp--6 packages
3. Sliced ham--6 packages
4. Fresh or frozen ground beef- 6 packages
5. Fresh or frozen catfish--6 packages
6. Eggs--6 cartons (any size)
7. Frozen lamb chops--6 packages
8. Tofu (meat substitute)--6 packages
    Non-perishable:

9. Canned tuna--6 cans
10. Canned chicken--6 cans
    Fruits, Vegetables--the proposed rule would require stocking at 
least 7 varieties in this category; below are ten examples of what FNS 
would consider different varieties. This is not an exhaustive list of 
acceptable varieties in this staple food category. Under the proposed 
rule, the first 7 varieties listed below would be considered perishable 
varieties in this staple food group, provided that they will spoil or 
suffer significant deterioration in quality within 2 to 3 weeks.
    Perishable:

1. Fresh bananas--6 bananas
2. Fresh oranges--6 oranges
3. Fresh pears--6 pears
4. Frozen raspberries--6 packages
5. Frozen spinach--6 packages
6. Fresh baby carrots--6 packages
7. Fresh celery sticks--6 packages
    Non-Perishable:

8. Apple sauce--6 jars
9. Canned corn--6 cans
10. Canned peas--6 cans
    Dairy--the proposed rule would require stocking at least 7 
varieties in this category; below are ten examples of what FNS would 
consider different varieties This is not an exhaustive list of 
acceptable varieties in this staple food category. Under the proposed 
rule, the first 8 varieties listed below would likely be considered 
perishable varieties in this staple food group, provided that they will 
spoil or suffer significant deterioration in quality within 2 to 3 
weeks.
    Perishable:

1. Fresh cow's milk--6 containers
2. Fresh goat's milk--6 containers
3. Fresh yogurt--6 containers
4. Fresh sour cream--6 packages
5. Fresh cheddar cheese (hard)--6 packages
6. Fresh cream cheese (soft)--6 packages
7. Frozen butter--6 packages
8. Margarine--6 containers
    Non-Perishable:

9. Infant Formula--6 containers
10. Almond Milk--6 containers
    Breads or Cereals--the proposed rule would require stocking at 
least 7 varieties in this category; below are ten examples of what FNS 
would consider different varieties. This is not an exhaustive list of 
acceptable varieties in this staple food category. Under the proposed 
rule, the first 5 varieties listed below would likely be considered 
perishable varieties in this staple food group, provided that they will 
spoil or suffer significant deterioration in quality within 2 to 3 
weeks.
    Perishable:

1. Bread--any combination (wheat, white, rye)--6 packages
2. Tortillas (flour, corn)--6 packages
3. Bagels (white, wheat, other)--6 items
4. Pitas--6 packages
5. Frozen dinner rolls--6 packages
    Non-Perishable:

6. Rice--any combination (long-grain, brown)--6 packages
7. Pasta--any combination (spaghetti, lasagna noodles, rice noodles)--6 
packages
8. Cereal- any combination (wheat, rice, chex, granola, etc)--6 
packages
9. Flour (white, wholegrain, any combination)--6 packages
10. Infant Cereal--6 packages

EXAMPLES of Multiple Ingredient Foods That Would be Excluded for 
Purposes of Retailer Eligibility Decisions Under the Proposed Rule

[cir] Pizzas (contains dough, cheese, and tomato)
[cir] Multiple ingredient soups, e.g. minestrone (contains vegetables 
and pasta)
[cir] Multiple ingredient canned foods, e.g. ravioli (contains 
vegetables, cheese, and pasta)
[cir] Chicken pot pies (contains dough, vegetables, and chicken)
[cir] Frozen TV dinners, e.g. chicken dinner (contains chicken, 
potatoes, and vegetables)
[cir] Sandwiches (contains meat, cheese, bread, and vegetables)
[cir] Lunch-snack trays (contains meat, cheese, and crackers)

EXAMPLES of Multiple Ingredient Foods That Would Continue to Count as 
Staple Foods (i.e., the Primary Staple Food Category Ingredient is 
Clearly Represented and Easily Recognized)

[cir] Mixed vegetables (frozen or canned; contains a variety of 
vegetables)
[cir] Boxed breakfast cereals (intended to served heated or cold; 
contains a variety of grains)

III. Comment Period Extension

    Since publication of the proposed rule, several entities, including 
SNAP retail trade groups, have requested an extension of the comment 
period in order to allow ample time for all stakeholders to comment on 
the rulemaking process. The comment period, therefore, is being 
extended 30 days in order to provide additional time for interested 
parties to review the proposed rule. To be assured of consideration, 
comments on the proposed rule must be received by FNS on or before May 
18, 2016.

    Dated: March 31, 2016.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2016-07793 Filed 4-4-16; 8:45 am]
 BILLING CODE 3410-30-P