[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 92550-92556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30621]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 251, 271, 272 and 277

[FNS-2016-0028]
RIN: 0584-AE44


Supplemental Nutrition Assistance Program Promotion

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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

SUMMARY: This final rule implements Section 4018 of the Agricultural 
Act of 2014. Section 4018 created new limitations on the use of Federal 
funds authorized in the Food and Nutrition Act of 2008, as amended 
(FNA), for the Supplemental Nutrition Assistance Program (SNAP) 
promotion and outreach activities. Specifically, Section 4018 of the 
2014 Farm Bill prohibits the use of Federal funds appropriated in the 
FNA from being used for: recruitment activities designed to persuade an 
individual to apply for SNAP benefits; television, radio, or billboard 
advertisements that are designed to promote SNAP benefits and 
enrollment; or agreements with foreign governments designed to promote 
SNAP benefits and enrollment. The prohibition on using funds 
appropriated under the FNA for television, radio, or billboard 
advertisements does not apply to Disaster SNAP.
    Section 4018 also prohibits any entity that receives funds under 
the FNA from compensating any person engaged in outreach or recruitment 
activities based on the number of individuals who apply to receive SNAP 
benefits. Lastly, Section 4018 modifies Section 16(a)(4) of the FNA to 
prohibit the Federal government from paying administrative costs 
associated with recruitment activities designed to persuade an 
individual to apply for program benefits or that promote the program 
through television, radio, or billboard advertisements.
    This final rule also impacts the Food Distribution Program on 
Indian Reservations (FDPIR) and The Emergency Food Assistance Program 
(TEFAP), both of which receive funding and/or foods authorized under 
the FNA.

DATES: This final rule is effective January 19, 2017.

FOR FURTHER INFORMATION CONTACT: Mary Rose Conroy, Chief, Program 
Development Division, Program Design Branch, Food and Nutrition 
Services, U.S. Department of Agriculture, 3101 Park Center Drive, Room 
810, Alexandria, VA 22302, or by phone at (703) 305-2803, or by email 
at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Comments and the Final Rule
III. Procedural Matters

I. Background

    This rule implements Section 4018 of the Agricultural Act of 2014 
(Pub L. 113-79, 2014 Farm Bill). Section 4018 of the 2014 Farm Bill 
creates new limitations on the use of Federal funds authorized in the 
Food and Nutrition Act of 2008 (FNA) for Supplemental Nutrition 
Assistance Program (SNAP) promotion and recruitment activities. 
Specifically, Section 4018:
     Amends Section 16(a)(4) of the FNA to prohibit Federal 
reimbursement for activities that are designed to persuade an 
individual to apply for program benefits or that promote the program 
through television, radio, or billboard advertisements.
     Amends the end of Section 18 of the FNA to prohibit the 
use of Federal funds authorized to be appropriated under the FNA from 
being used for:
    (1) Recruitment activities designed to persuade an individual to 
apply for SNAP benefits;
    (2) Television, radio, or billboard advertisements that are 
designed to promote SNAP benefits and enrollment. This provision does 
not apply to Disaster SNAP; or
    (3) Any agreements with foreign governments designed to promote 
SNAP benefits and enrollment.
     Amends the end of Section 18 of the FNA to require the 
Secretary of Agriculture to issue regulations that prohibit entities 
that receive funds under the FNA from compensating any person engaged 
in outreach or recruitment activities based on the number of 
individuals who apply to receive SNAP benefits.

II. Discussion of Comments and the Final Rule

General Comments

    On March 14, 2016, the Department published a proposed rule to 
implement the changes made by Section 4018. See Supplemental Nutrition 
Assistance Program Promotion, 81 FR 13290 (Mar.

[[Page 92551]]

14, 2016). The Department received 94 comments on the proposed rule 
published on March 14, 2016 and open for public comments for 60 days. 
Commenters included 17 private individuals, one anonymous commenter, 23 
food banks or food bank coalitions, two county governments, one 
university association, one member of a university, and 49 other not-
for-profit organizations. Sixty-six of the comments received were 
variations of two form letters, and 28 comments were unique comments.
    Overall, comments were very supportive of the proposed rule. 
Commenters, however, did point to specific areas in need of 
clarification. The Department has reviewed these comments and in many 
cases has made the suggested recommendations, as discussed below. The 
Department appreciates the efforts of community partners and concerned 
members of the public to offer insightful comments that have enhanced 
the final regulations.

Definition of Recruitment Activities Designed To Persuade

    The Agricultural Act of 2014 prohibits the use of funds 
appropriated under the FNA from being used for recruitment activities 
that are designed to persuade an individual to apply for SNAP benefits.
    In the proposed rule, prohibited recruitment activities were 
defined as those designed to persuade an individual to apply for SNAP 
benefits through the use of persuasive practices. Persuasive practices 
constitute coercing or pressuring an individual to apply, or providing 
incentives to fill out an application. Communicating factual 
information pertaining to SNAP is not a recruitment activity designed 
to persuade an individual to apply for SNAP benefits.
    Overall, the definition of recruitment activities that would be 
prohibited in the proposed rule were supported by commenters, with the 
specific exceptions discussed below. Commenter support focused on the 
importance of providing factual information through SNAP outreach (n = 
78), and the importance of outreach to clear up myths or misconceptions 
about SNAP (n = 71). Commenters appreciated that the definition in the 
proposed rule supported these important outreach activities.
    However, commenters felt two components of the definition of 
recruitment activities designed to persuade were in need of 
clarification. First, a large number of commenters (n = 73) felt the 
rule should state that individuals are allowed to make an ``informed 
choice'' about whether or not to apply for SNAP benefits and that this 
phrase should be added to the regulatory definition of recruitment 
activities designed to persuade. These commenters explained that long-
standing FNS regulations clearly state that prohibited recruitment 
activities are those that persuade an individual who has made an 
informed choice not to apply for SNAP to change his or her mind and 
apply for benefits. Some commenters also pointed to floor statements 
made by Members of Congress during consideration of the conference 
report on the 2014 Farm Bill. In these floor statements, Members 
explained that the statute made no change with respect to the role of 
the applicant to make an ``informed choice'' on whether or not to apply 
for benefits. These commenters recommended that the Department's final 
rule explicitly incorporate the long-standing ``informed choice'' 
standard in the regulatory definition of activities designed to 
persuade.
    Second, a majority of commenters (n = 68) felt that the rule needed 
to be clarified to explain that outreach workers should be allowed to 
ask follow-up questions to potential SNAP applicants to clear-up 
misinformation. Some commenters pointed to a specific example in the 
preamble of the proposed rule in which a food pantry visitor comes by a 
SNAP informational table and expresses disinterest in learning more 
about SNAP. In this example, the Department explained continuing to 
discuss SNAP with the visitor would constitute a persuasive practice 
because the visitor had clearly expressed a lack of interest and should 
not be pressured to apply. These commenters felt that frequently a 
follow-up question about why an individual is not interested is 
necessary in order to determine whether or not he or she has accurate 
information about the program, and should not be considered a 
persuasive practice. If the individual responds to the follow-up 
question in such a way as to show he or she is misinformed about SNAP, 
the outreach worker then has an opportunity to clarify his or her 
misunderstanding, so that he or she can then make a well-informed 
choice about applying.
    The Department agrees with the commenters that it is important that 
potential SNAP applicants have the necessary information to make an 
informed choice about whether or not to apply for benefits, and that 
outreach is an important tool to ensure that SNAP applicants can make 
this informed choice. The Department also understands that it was not 
the intent of Congress to prohibit informational activities that 
provide basic program information to potentially eligible individuals, 
as specifically authorized in Section 11(e)(1) of the FNA. Basic 
program information allows individuals to make a well-informed decision 
about whether or not to apply based on accurate information, rather 
than myths or other types of misinformation.
    Pursuant to these comments the Department has clarified the 
regulations at a new 7 CFR 277.4(b)(5). As in the proposed rule, the 
Federal reimbursement rate shall not include recruitment activities 
designed to persuade an individual to apply for SNAP benefits through 
the use of persuasive practices. Persuasive practices constitute 
coercing or pressuring an individual to apply, or providing incentives 
to fill out an application for SNAP benefits. However, in the final 
rule the Department has added the ``informed choice'' standard to the 
third sentence: communicating factual information so that an individual 
can make an informed choice pertaining to SNAP is not a recruitment 
activity designed to persuade an individual to apply for SNAP benefits. 
As a result, prohibited recruitment activities would not include 
providing accurate program information to dispel misinformation, 
answering questions about SNAP, providing assistance in filling out 
forms or obtaining verification documents, or providing basic 
information about SNAP availability, application procedures, 
eligibility requirements, and the benefits of the program, as 
specifically permitted by Section 11(e)(1) of the FNA.
    To conform to this change from the proposed rule, the Department is 
clarifying one of the examples from the preamble of the proposed rule 
to make a distinction between persuasive practices and asking 
appropriate follow-up questions to ensure an individual has made an 
informed choice. The revised example is as follows:

    A worker funded by SNAP funds is staffing a SNAP informational 
table at a food pantry. A food pantry visitor comes to the table, 
but soon replies that he is not interested in learning more. The 
worker may ask a follow-up question about why the visitor is not 
interested in learning more. If the visitor's answer demonstrates a 
lack of accurate information about SNAP, the worker may correct the 
misunderstanding, thus helping the visitor make an informed choice 
about applying. However, if the visitor responds to the follow-up 
questions with a further expression of disinterest, continuing to 
question the visitor would be pressuring the individual to apply and 
therefore constitutes a persuasive practice.


[[Page 92552]]


    Similarly, the Department is hereby clarifying one of the examples 
from the preamble of the proposed rule about allowable informational 
activities:

    An outreach worker is talking to a senior citizen who explains 
that he does not think he is eligible because he owns his own home. 
The worker would be allowed to correct this misconception, including 
asking any necessary follow-up questions to ensure the senior 
citizen makes an informed choice about whether or not to apply.

Application of Recruitment Activities Designed To Persuade to Written 
Materials

    The preamble to the proposed rule explained that written materials 
would also be expected to comply with the designation of allowable and 
unallowable activities that are described in the above definition of 
recruitment activities designed to persuade an individual to apply for 
SNAP benefits through coercion, pressure, or incentives. One commenter 
sought clarification on what information may be included in written 
outreach materials. This commenter suggested that FNS expand the list 
of permissible written outreach materials to include additional 
examples in the preamble.
    The Department has reviewed the commenter's request and feels that 
the original language in the preamble was sufficiently clear that it 
was not intended to be an exhaustive list, and that written outreach 
materials are permissible, so long as they are not recruitment 
activities designed to persuade, as defined in 277.4(b)(5)(i).

Specialized Services

    The Manager's Statement to the Conference Report, H.R. Rep. 113-333 
stated that the changes in Section 4018 of the Agricultural Act of 2014 
do not preclude specialized services for eligible SNAP applicants, 
including application assistance for vulnerable populations. The 
Manager's Statement explained that specialized services are 
particularly important for vulnerable populations, including the 
elderly, homeless, and individuals with disabilities, to ensure they 
receive the food assistance they need. Consequently, the proposed rule 
would not have prohibited specialized services that provide vulnerable 
populations (including the elderly, homeless, and individuals with 
disabilities) with application assistance or basic program information, 
including information about rights, program rules, client 
responsibilities, and benefits.
    A majority of commenters (n = 63) supported the language in the 
proposed rule, agreeing that Congressional intent was never to prohibit 
specialized or targeted services to vulnerable populations. However, 
commenters (n = 65) also argued that neither the Act nor the Manager's 
Statement in the Conference Report, H.R. Rep. 113-333, limit 
application assistance and specialized services to these vulnerable 
populations only. These commenters felt that the Department should 
clarify that application assistance and specialized services can be 
provided to all individuals, not just so-called vulnerable populations 
cited in the preamble. For example, these commenters explained, 
targeted SNAP outreach can be important for limited English proficient 
populations, pregnant women receiving WIC only benefits, recently 
unemployed families in a factory town that has lost its primary 
business, or a community that has suffered severe weather and power 
outages that do not rise to the level of a Presidentially declared 
disaster.
    The Department considers specialized services to be a subset of all 
activities provided under informational activities, as defined in 7 CFR 
272.5(c). Specialized services are informational activities targeted to 
specific populations based on their specific needs. For example, a 
community outreach partner may develop a SNAP Web site targeted to 
households who have become recently unemployed, informing those 
households of available SNAP Employment and Training activities. The 
Web site is a specialized service provided to a targeted group to 
provide information about SNAP based on their needs and available local 
resources. Therefore, the Department agrees with the commenters and 
concludes that specialized services, as a subset of allowable 
informational activities in 7 CFR 272.5(c), can be targeted to any 
particular group to meet the specific needs of that population. 
However, the Department does not believe any changes are needed to the 
regulatory text to address that clarification.

Incentives

    As discussed above, the proposed rule prohibited recruitment 
activities that are designed to persuade an individual to apply for 
SNAP benefits through the use of persuasive practices. Providing an 
incentive to fill out an application was defined as one type of 
persuasive practice. The preamble to the proposed rule also included an 
example where a worker funded by SNAP funds at a community-based 
organization explained to a group of likely eligible SNAP applicants, 
that every person who applied that day for SNAP would be allowed to 
stay for a free parenting class. The preamble to the proposed rule 
explained that this practice would be prohibited if only those who 
filled out the SNAP application were allowed to attend the parenting 
class. However, if everyone was allowed to participate in the parenting 
class, regardless of whether or not they completed an application, the 
practice would be allowable.
    While no comments were received that directly supported the 
incentive language in the proposed rule, some commenters (n = 19) felt 
the incentive language in the definition of recruitment activities 
designed to persuade needed to be clarified. For example, some of the 
commenters explained that providing information about the ancillary 
benefits of participating in SNAP and offering outreach reinforcement 
items that are not dependent on the recipient submitting a SNAP 
application should be clarified as permissible reimbursable outreach 
activities. Commenters explained that the Department's longstanding 
State Outreach Plan Guidance allows for reimbursement of appropriate 
outreach reinforcement items, but not those ``intended as rewards for 
pre-screening or completing an application.''
    To address these comments, the Department is hereby clarifying that 
providing individuals with information about the ancillary benefits of 
applying for SNAP is not an incentive or a recruitment activity 
designed to persuade. Providing factual information to an individual 
about the benefits of SNAP, such as that SNAP participation may make a 
household's children eligible for the National School Lunch Program, is 
a permissible sharing of factual information, per the regulations on 
allowable informational activities in 7 CFR 272.5(c). The Department is 
also hereby clarifying that offering outreach reinforcement items at 
any point in the process of sharing information about SNAP with an 
interested individual(s) is permissible and not a recruitment activity 
designed to persuade, so long as the receipt of such reinforcements is 
not contingent on applying for SNAP. The Department does not think any 
changes are needed to the regulatory text to address these 
clarifications.

Radio, Television and Billboard Advertisements

    Section 4018 of the Agricultural Act of 2014 prohibits the use of 
funds authorized to be appropriated under the FNA for television, 
radio, or billboard advertisements that are designed to promote SNAP 
benefits and enrollment. The proposed rule would have prohibited States 
or other entities from

[[Page 92553]]

using these Federal funds for television, radio, or billboard 
advertisements designed to promote program benefits and enrollment.
    Several commenters (n = 14) supported language in the preamble that 
stated only funds authorized by the FNA would be prohibited from 
purchasing television, radio and billboard advertisements that promote 
SNAP benefits and enrollment, but that funding from other sources could 
be spent on these advertisements. In addition, some commenters had 
concerns about individual elements of the restriction on radio, 
television, and billboard advertisements, which are discussed more 
below.

Billboards and Retailer Informational Activities

    The proposed rule defined billboards as large format advertising 
displays intended for viewing from extended distances of more than 50 
feet. There were no comments that directly supported the billboard 
definition in the proposed rule. Several commenters (n = 18) stated 
that the billboard definition needed to be changed or clarified to 
consider the context in which a billboard is used so as to allow for 
large signs at health fairs, farmers markets, or other similar venues 
where individuals may be seeking information about SNAP or SNAP 
services. In addition, one commenter explained that not allowing 
retailers to advertise would prevent these businesses from educating 
the community about SNAP benefits and remove opportunities to advertise 
that they support SNAP beneficiaries.
    The Department agrees that the restriction on Federal funding for 
billboard advertisements is not intended to prohibit Federal funding 
for large signs used for informational purposes at health fairs, 
farmers markets, and other venues where most attendees are on foot. 
Consequently, for the purposes of the final rule, a billboard is now 
defined as an outdoor, large format advertising display, either 
permanent or portable, which is used to advertise or inform alongside a 
roadway. This definition does not include large signs and banners 
intended for viewing predominantly by individuals not travelling along 
a roadway.
    In addition, the Department believes that retailers advertising 
where SNAP benefits are accepted does not constitute promoting SNAP 
benefits and enrollment. FNS has long allowed retailers to advertise 
that SNAP benefits can be used at their establishment. This practice is 
essential to help both SNAP beneficiaries identify locations to use 
their benefits, and retailers to connect with potential customers. As a 
result, the final regulatory text at 7 CFR 277.4(b)(5)(ii) is amended 
to state that the restriction on the use of Federal funds for radio, 
television, and billboard advertising does not restrict retailers, such 
as farmers markets, from using these methods to provide information 
about where SNAP benefits are accepted. Similarly, the Department also 
believes that the restriction on the use of Federal funds for radio, 
television, and billboard advertising does not restrict retailers from 
using these methods to provide factual information about their FNS-
approved programs for currently enrolled SNAP households, such as 
fruits and vegetables incentive programs.

Exception for Remote Areas and Native American Tribes, and Other 
Vulnerable Communities

    Six commenters felt that radio, television, and billboard 
advertisements are helpful ways to communicate information about SNAP 
and suggested these advertising methods should continue to be allowable 
activities. Two of these commentators noted that the prohibition on 
radio, television, and billboard advertising would have a negative 
impact on Native American communities, especially tribes living in 
remote areas. In addition, a commenter in Alaska noted that radio 
advertisements are an effective method to communicate within their 
state, which has many remote areas. One commenter explained that radio, 
television, and billboard advertisements are important ways to 
communicate about SNAP in elderly or highly impoverished communities.
    The Department understands that the prohibition on using Federal 
funds for radio, television, and billboard advertisements may 
negatively impact information sharing in Alaskan, Native American, and 
other vulnerable communities, as well as other rural areas where radio, 
television, and billboard advertisements are effective methods of 
communication. The Department will continue to conduct allowable 
outreach and communication activities appropriate to various types of 
vulnerable communities served by SNAP, including technical assistance 
and regular Tribal consultation. However, the Department has no 
discretion to allow appropriations authorized under the FNA to fund 
television, radio, and billboard advertisements to promote program 
benefits and enrollment in these targeted communities. Consequently, as 
proposed, the regulation at new 7 CFR 277.4(b)(5)(ii), continues to 
prohibit States or other entities from using Federal funds for 
television, radio, or billboard advertisements that promote program 
benefits and enrollment, with the exception that Federal funds may be 
used to provide factual information identifying retailers that accept 
SNAP benefits.

Disaster SNAP

    Pursuant to the Agricultural Act of 2014, the prohibition on the 
use of funding authorized to be appropriated under the FNA for 
television, radio, or billboard advertisements does not apply to 
Disaster SNAP. Accordingly, the proposed rule stated that the 
advertising restriction would not apply to Disaster SNAP. Eleven 
commenters supported the proposed rule language exempting Disaster SNAP 
from the ban on Federal funding for radio, television, and billboard 
advertisements. There were no comments opposing the exemption for 
Disaster SNAP. Therefore, in the final rule the Department maintains 
that the prohibition on the use of Federal funding authorized to be 
appropriated in the FNA for television, radio, and billboard 
advertisements that promote SNAP benefits and enrollment does not apply 
to Disaster SNAP.

Social Media

    Section 4018 of the Agricultural Act of 2014 does not address the 
use of social media in promotion activities. As a result, in the 
proposed rule, the use of social media like Twitter, Facebook, YouTube, 
or other internet sites was not prohibited, so long as the content was 
not recruitment activity designed to persuade an individual to apply 
for SNAP benefits through coercion, pressure, or incentives. The 
majority of commenters (n = 71) supported the language in the proposed 
rule exempting social media from the ban on Federal funding for radio, 
television, and billboard advertisements that promote SNAP benefits and 
enrollment. No comments were received seeking a change or clarification 
in the proposed rule language. Therefore, the use of social media, such 
as Twitter, Facebook and YouTube is not prohibited in the final rule, 
so long as the content is not designed to persuade an individual to 
apply for SNAP benefits through persuasive practices.

Ban on Outreach With Foreign Governments

    Section 4018 of the Agricultural Act of 2014 prohibits the use of 
funds appropriated under the FNA from being used for any agreements 
with foreign governments designed to promote SNAP benefits and 
enrollment. Accordingly,

[[Page 92554]]

under the proposed rule, agreements with foreign governments that are 
designed to promote SNAP benefits and enrollment were proposed to be 
prohibited. The ban on outreach with foreign governments contained in 
the proposed rule was only addressed by two commenters. They both 
supported the ban on the use of Federal funding for SNAP outreach with 
foreign countries. No commenters requested a change or clarification to 
this provision. As a result, the Department maintains the language from 
the proposed rule, to state that the Federal funds authorized to be 
appropriated under the Act shall not be used to support agreements with 
foreign governments that are designed to promote SNAP benefits and 
enrollment.

Worker Compensation

    Section 4018 of the Agricultural Act of 2014 also states that any 
entity that receives funds under the FNA is banned from compensating 
any person for conducting outreach activities relating to participation 
in, or for recruiting individuals to apply to receive benefits under 
SNAP, if the amount of the compensation would be based on the number of 
individuals who apply to receive benefits. Pursuant to this provision, 
the proposed rule banned tying outreach worker compensation to the 
number of individuals who apply for SNAP as a result of that worker's 
efforts in any organization that receives funding under the FNA. In 
other words, the proposed rule would have prohibited organizations who 
receive any funding from the FNA from requiring a worker to meet a 
quota of SNAP applicants in order to receive their full compensation or 
performance bonus; however, the preamble to the proposed rule stated 
that organizations would be allowed to compensate outreach workers 
based on the number of hours an outreach worker dedicates to assisting 
individuals applying for SNAP benefits. For example, an outreach worker 
may be compensated at an hourly rate of ``X'' dollars for each hour the 
worker spends providing SNAP application assistance. Lastly, the 
preamble in the proposed rule also stated this prohibition would apply 
even if the organization used funds from a source other than those 
authorized to be appropriated in the FNA to pay outreach workers on a 
per application basis, so long as that organization received any funds 
under the FNA.
    Several commenters (n = 16) supported the language in the proposed 
rule prohibiting compensation of workers based on the number of 
individuals who apply for benefits by entities that receive funds under 
the FNA. However, these same commenters recommended clarifying that 
State agencies and their partners are allowed to set outreach and 
application goals as part of their State outreach plan contracts. These 
commenters explained that State agencies should be able to hold 
outreach partners accountable for effective use of State and Federal 
resources, and be able to track submitted applications that result from 
educational or informational activities. Another commenter expressed a 
similar sentiment in explaining that the final rule should confirm that 
the prohibition on tying outreach worker compensation to the number of 
SNAP applications completed by a worker applies only to the 
compensation of individuals and not to the compensation of 
organizations.
    In addition, an advocacy organization stated that the worker 
compensation regulation raised serious concerns about unwarranted 
control of independent organizations by the government, including 
possible constitutional violations by the government. At the very 
least, this commenter felt that the policy was overbroad and unfairly 
intruded into the lawful activity of important organizations over which 
the government cannot, and should not, exert such control.
    The Department understands the importance of setting outreach goals 
for organizations involved in allowable SNAP outreach activities to 
ensure accountability for taxpayer dollars. The Department encourages 
States to establish performance metrics in their agreements with 
community partners as part of their State outreach plans to ensure 
State and Federal resources are used efficiently and effectively. 
Accordingly, the Department does not intend to ban the setting of 
outreach goals, but seeks to prevent the tying of compensation of 
individual workers, by any organization that receives funding under the 
FNA, to the number of individuals who apply for SNAP as a result of 
that particular worker's efforts as required by the Agricultural Act of 
2014. The Department is hereby clarifying that the ban does not apply 
to the setting of outreach goals at the level of the individual or the 
organization, so long as those goals are not tied to individual worker 
compensation. The Department believes the regulatory text is 
sufficiently clear in this regard and maintains the language from the 
proposed rule.
    Regarding the comment on potential government overreach, the 
Department has little discretion in how this provision of the 
Agricultural Act of 2014 is implemented. If an organization does not 
receive funding under the FNA, then this regulation would not apply to 
them. However, for organizations that do receive funding under the FNA, 
the final rule maintains the restriction on the spending of funds 
received from any source.

Other Impacted FNS Programs

    The FNA provides authorization of funds for SNAP, and also for food 
purchases and administrative costs for the Food Distribution Program on 
Indian Reservations (FDPIR) (7 U.S.C. 2013b) and for food purchases for 
The Emergency Food Assistance Program (TEFAP) (7 U.S.C. 2036). Under 
the proposed rule, FDPIR and TEFAP funds, as authorized under the FNA, 
would not be permitted for use in banned recruitment activities as 
described above.
    No comments were received regarding the impact of the proposed rule 
on programs other than SNAP. As a result, the Department will proceed, 
as discussed in the proposed rule, to amend current 7 CFR 251.10(i), to 
prohibit entities funded by TEFAP from compensating staff engaged in 
SNAP outreach activities based on the number who apply to receive SNAP 
benefits. FDPIR regulations, at Section 253.11 of Title 7, currently 
require that funds must be expended and accounted for in accordance 
with the SNAP regulations at Part 277. Because the SNAP regulations at 
Part 277 have been amended to account for the changes mandated by the 
Agricultural Act of 2014, FDPIR funds, as authorized under FNA, would 
not be permitted for use in SNAP recruitment and promotion activities.

III. Procedural Matters

Executive Order 12866 and 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 determined to be not significant 
and was not reviewed by the Office of Management and Budget (OMB) in 
conformance with Executive Order 12866.

[[Page 92555]]

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, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities.
    This final rule would not have an impact on small entities because, 
while the rule would restrict the types of recruitment and promotion 
activities eligible for Federal reimbursement and the types of 
activities for which funds authorized to be appropriated under the FNA 
may be spent, it does not change the type of entities that may receive 
administrative reimbursement or the rate at which they may be 
reimbursed for allowable activities. In addition, the rule would 
prohibit entities that receive funds under the FNA from compensating 
any person engaged in outreach or recruitment activities based on the 
number of individuals who apply to receive SNAP benefits; however, this 
is not expected to limit the ability of small entities, or any entity, 
from using other methods of compensating persons engaged in outreach or 
recruitment activities.

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 $146 million 
or more (when adjusted for 2016 inflation; GDP deflator source: Table 
1.1.9 at http://www.bea.gov/iTable) 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 $146 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 State Administrative Matching Grants for the Supplemental 
Nutrition Assistance Program is listed in the Catalog of Federal 
Domestic Assistance Programs under 10.561. For the reasons set forth in 
the final rule in 2 CFR chapter IV, and related Notice (48 FR 29114, 
June 24, 1983), this program is included in the scope of Executive 
Order 12372, which requires intergovernmental consultation with State 
and local officials. FNS has consulted with State and local officials 
regarding the changes set forth in this rule by issuing to SNAP State 
agencies on March 21, 2014, an Implementation Memorandum for the 2014 
Farm Bill which included guidance on implementing the changes in 
Section 4018 and on May 5, 2014, issuing a Question and Answer 
Memorandum responding to implementation questions from the State SNAP 
agencies and their partners. In addition, FNS hosted a stakeholder 
meeting on September 4, 2014, to consult with State and local 
representatives on the provisions of Section 4018.

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. The 
Department has determined that this final 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 final 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

    FNS has reviewed this final rule in accordance with USDA Regulation 
4300-4, ``Civil Rights Impact Analysis,'' to identify any major civil 
rights impacts the rule might have on program participants on the basis 
of age, race, color, national origin, sex, or disability. After a 
careful review of the rule's intent and provisions, FNS has determined 
that this rule is not expected to affect the participation of protected 
individuals in the Supplemental Nutrition Assistance Program.

Executive Order 13175

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' 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 has assessed the impact of this rule on Indian tribes and 
determined that while this rule may have tribal implications as 
discussed in the summary of comments in the preamble, FNS has no 
discretion to change the implementation of the final rule, and for that 
reason no tribal consultation under Executive Order 13175 is required. 
If a Tribe requests consultation, FNS will work with the USDA Office of 
Tribal Relations to ensure meaningful consultation is provided where 
changes, additions, and modifications identified herein are not 
expressly mandated by Congress.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 
1320) requires Office of Management and Budget (OMB) approval of all 
covered collections of information by a Federal agency before such 
collections can be implemented. Respondents are not required to respond 
to any such collection of information unless it

[[Page 92556]]

displays a current valid OMB control number. This rule does not contain 
information collection requirements subject to approval by the Office 
of Management and Budget under the Paperwork Reduction Act of 1994.

E-Government Act Compliance

    The Department 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.

List of Subjects

7 CFR Part 251

    The Emergency Food Assistance Program, Miscellaneous provisions.

7 CFR Part 271

    Supplemental Nutrition Assistance Program, Promotional activities.

7 CFR Part 272

    Supplemental Nutrition Assistance Program, Program informational 
activities.

7 CFR Part 277

    Supplemental Nutrition Assistance Program, Funding.

    Accordingly, 7 CFR parts 251, 271, 272 and 277 are amended as 
follows:

PART 251--THE EMERGENCY FOOD ASSISTANCE PROGRAM

0
1. The authority citation for 7 CFR part 251 is revised to read as 
follows:

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


0
2. Revise Sec.  251.10 (i) to read as follows:


Sec.  251.10  Miscellaneous provisions.

* * * * *
    (i) Recruitment activities related to the Supplemental Nutrition 
Assistance Program (SNAP). Any entity that receives donated foods 
identified in this section must adhere to regulations set forth under 
Sec.  277.4(b)(6) of this chapter.
* * * * *

PART 271--GENERAL INFORMATION AND DEFINITIONS

0
3. The authority citation for 7 CFR part 271 continues to read as 
follows:

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


0
4. Add Sec.  271.9 to read as follows:


Sec.  271.9  Promotional activities.

    No funds authorized to be appropriated under the Food and Nutrition 
Act of 2008, as amended, shall be used for recruitment or promotion 
activities as described in Sec.  277.4(b)(5). No entity receiving funds 
under the Food and Nutrition Act of 2008, as amended, shall be 
permitted to perform activities described in Sec.  277.4(b)(6) of this 
chapter.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

0
5. The authority citation for 7 CFR part 272 continues to read as 
follows:

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


0
6. Revise Sec.  272.5(c) to read as follows:


Sec.  272.5  Program informational activities.

* * * * *
    (c) Program informational activities for low-income households. At 
their option, State agencies may carry out and claim associated costs 
for Program informational activities designed to inform low-income 
households about the availability, eligibility requirements, 
application procedures, and benefits of SNAP. Allowable informational 
activities shall not include recruitment activities as described in 
Sec.  277.4(b)(5) of this chapter. Program informational materials used 
in such activities shall be subject to Sec.  272.4(b), which pertains 
to bilingual requirements. Before FNS considers costs for allowable 
informational activities eligible for reimbursement at the fifty 
percent rate under part 277 of this chapter, State agencies shall 
obtain FNS approval for the attachment to their Plans of Operation as 
specified in Sec.  272.2(d)(1)(ix). In such attachments, State agencies 
shall describe the subject activities with respect to the socio-
economic and demographic characteristics of the target population, 
types of media used, geographic areas warranting attention, and outside 
organizations which would be involved. State agencies shall update this 
attachment to their Plans of Operation when significant changes occur 
and shall report projected costs for this Program activity in 
accordance with Sec.  272.2(c), (e), and (f).

PART 277--PAYMENTS OF CERTAIN ADMINISTRATIVE COSTS OF STATE 
AGENCIES

0
7. The authority citation for 7 CFR part 277 continues to read as 
follows:

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


0
8. In Sec.  277.4:
0
a. Remove the phrase ``Food Stamp Program'' wherever it appears and add 
in its place ``SNAP''.
0
b. Amend paragraph (b) introductory text by removing the last two 
sentences; and
0
c. Add paragraphs (b)(5) and (b)(6).
    The additions read as follows:


Sec.  277.4  Funding.

* * * * *
    (b) * * *
    (5) The Federal reimbursement rate shall include reimbursement for 
SNAP informational activities, but shall not include the following:
    (i) Recruitment activities designed to persuade an individual to 
apply for SNAP benefits through the use of persuasive practices. 
Persuasive practices constitute coercing or pressuring an individual to 
apply, or providing incentives to fill out an application for SNAP 
benefits. Communicating factual information pertaining to SNAP so that 
an individual can make an informed choice is not a recruitment activity 
designed to persuade an individual to apply for SNAP benefits.
    (ii) Television, radio or billboard advertisements that are 
designed to promote SNAP benefits and enrollment, excepting the use of 
such advertisements for programmatic activities undertaken with respect 
to benefits provided under Sec.  280.1 of this chapter. This 
restriction does not apply to radio, television, or billboard 
advertisements that are not designed to promote SNAP benefits and 
enrollment and that provide factual information identifying retail food 
stores where SNAP benefits are accepted.
    (iii) Agreements with foreign governments that are designed to 
promote SNAP benefits and enrollment.
    (6) Any entity that receives funding from the programs identified 
by this section and Sec.  251.4 of this chapter is prohibited from 
compensating any person for conducting outreach activities relating to 
participation in, or for recruiting individuals to apply to receive 
benefits under, the Supplemental Nutrition Assistance Program, if the 
amount of the compensation would be based on the number of individuals 
who apply to receive the benefits.

    Dated: December 13, 2016.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2016-30621 Filed 12-19-16; 8:45 am]
 BILLING CODE 3410-30-P