[Federal Register Volume 87, Number 122 (Monday, June 27, 2022)]
[Proposed Rules]
[Pages 38010-38012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13058]


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

  Federal Register / Vol. 87, No. 122 / Monday, June 27, 2022 / 
Proposed Rules  

[[Page 38010]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 272

[FNS-2022-0005]
RIN 0584-AE86


Supplemental Nutrition Assistance Program: Revision of Civil 
Right Data Collection Methods

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

ACTION: Proposed rule.

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SUMMARY: The Food and Nutrition Service (FNS) proposes to revise 
Supplemental Nutrition Assistance Program (SNAP) regulations that cover 
the collection and reporting of race and ethnicity data by State 
agencies on persons receiving benefits from SNAP. This rule would 
remove regulatory language that provides an example that State agencies 
might collect race and ethnicity data by observation (also referred to 
as ``visual observation'') when participants do not voluntarily provide 
the information on the application form. Through this rulemaking, FNS 
intends to improve the quality of data collected for purposes of 
Federal civil rights law and policy (including Title VI of the Civil 
Rights Act of 1964). USDA's Food and Nutrition Service is committed to 
promoting equity and inclusion through its Federal nutrition assistance 
programs. This regulatory change is consistent with this 
Administration's priorities and furthers FNS' commitment to build 
equitable and inclusive systems for nutrition access.

DATES: Written comments must be received on or before August 26, 2022 
to be assured of consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested 
persons to submit written comments on this proposed rule. Comments may 
be submitted in writing by one of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send written comments to State Administration 
Branch, Program Accountability and Administration Division, 
Supplemental Nutrition Assistance Program, Food and Nutrition Service, 
USDA, 1320 Braddock Place, 5th floor, Alexandria, VA, 22314.
     All written comments submitted in response to this 
proposed 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 written 
comments publicly available via https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maribelle Balbes, Chief, State 
Administration Branch, Program Accountability and Administration 
Division, Supplemental Nutrition Assistance Program, Food and Nutrition 
Service, USDA, 1320 Braddock Place, 5th floor, Alexandria, VA 22314, by 
phone at (703) 605-4272 or via email at: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

Current Policy

    Title VI of the Civil Rights Act of 1964 prohibits discrimination 
on the basis of race, color, or national origin in programs receiving 
Federal financial assistance. Additionally, Department of Justice (DOJ) 
regulations \1\ at title 28 of the Code of Federal Regulations (CFR), 
Sec.  42.406(a) require all Federal agencies to provide for the 
collection of racial and ethnic information from applicants and 
beneficiaries of Federal assistance programs sufficient to permit 
effective enforcement of Title VI. Accordingly, SNAP regulations at 7 
CFR 272.6(g) and (h) require State agencies to collect race and 
ethnicity data on participating households and report the data to FNS 
to help ensure program benefits are distributed without regard to race, 
color, or national origin. FNS uses this data to determine how 
effectively FNS programs are reaching potential eligible persons and 
beneficiaries, identify areas where additional outreach is needed, 
assist in the selection of location for compliance reviews, and 
complete reports as required.
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    \1\ https://www.ecfr.gov/current/title-28/chapter-I/part-42/subpart-F/section-42.406.
---------------------------------------------------------------------------

    Per 7 CFR 272.6(g), State agencies that administer SNAP are 
required to collect data on participants' race and ethnicity in the 
manner specified by FNS. The regulations provide that the application 
form must clearly indicate that the information is voluntary and that 
it will not affect the eligibility or the level of benefits. SNAP 
regulations at 7 CFR 272.6(g) also require State agencies to develop 
alternative means of collecting racial and ethnic data on households, 
such as by observation during the interview, when the information is 
not provided voluntarily by the household on the application form.
    State agencies report aggregate race and ethnicity data to FNS 
annually via the form FNS-101, ``Participation in Food Programs by 
Race'' (Office of Management and Budget (OMB) Control Number 0584-0594, 
expiration 7/31/2023). FNS uses this aggregate data to conduct 
compliance reviews and investigations, identify trends or disparities 
that affect participation goals and opportunities to address them, and 
identify any potential adverse or disproportionate impacts when 
developing program policy.

Review of Visual Observation Policy and Proposed Regulatory Change

    OMB Directive 15, Standards for the Classification of Federal Data 
on Race and Ethnicity,\2\ provides that self-identification is the 
preferred means for gaining information about an individual's race and 
ethnicity, when practicable, and notes that when these data points are 
collected through observation, they are likely to be very different 
than from the information obtained when respondents report about 
themselves, especially in populations with multiple racial heritages.
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    \2\ 62 FR 58782 (October 30, 1997) (https://www.govinfo.gov/content/pkg/FR-1997-10-30/pdf/97-28653.pdf).
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    In a recent review of existing policy by the FNS Civil Rights 
Division and Child Nutrition Programs,\3\ FNS updated its policy to 
eliminate visual

[[Page 38011]]

observation as data collection method for other FNS programs where 
``visual observation'' was permitted per the regulatory language or 
policy guidance. The review referenced reports stating that program 
participants do not want to have their race or ethnicity determined for 
them. Moreover, FNS concluded in this policy update that a third 
party's observation of an individual's appearance is not a reliable 
means to capture how a participant self-identifies their own racial or 
ethnic identity. This conclusion is supported by a recent Center for 
Medicaid Studies (CMS) study that assessed the quality of race and 
ethnicity information in observational health databases. The study 
suggested that patient self-reporting may provide better quality data 
than visual observation.\4\
---------------------------------------------------------------------------

    \3\ CACFP 11-2021, SFSP 07-2021- ``Collection of Race and 
Ethnicity Data by Visual Observation and Identification in the Child 
and Adult Care Food Program and Summer Food Service Program--Policy 
Rescission'' (https://www.fns.usda.gov/cn/Race-and-Ethnicity-Data-Policy-Rescission).
    \4\ https://www.cms.gov/about-cms/agency-information/omh/downloads/data-collection-resources.pdf.
---------------------------------------------------------------------------

    A review of SNAP policy led to the conclusion that the use of 
visual observation for racial and ethnicity identification is 
unreliable data as it requires that State eligibility workers assume or 
guess the race or ethnicity of households. Therefore, FNS has 
determined that SNAP State agencies are no longer permitted to collect 
racial and ethnic data on households through visual observation. State 
agencies must continue to use alternative means to collect this 
information when not provided voluntarily on the SNAP application.
    Accordingly, through this rule FNS proposes revising paragraph (g) 
at 7 CFR 272.6 to remove the phrase, ``such as by observation during 
the interview,'' as a way for SNAP State agencies to collect racial and 
ethnic data from households that do not voluntarily provide it in their 
application. FNS believes this change will better align SNAP 
regulations with current Federal policy (including Title VI of the 
Civil Rights Act of 1964) by improving the quality of collected data. 
This proposed rule will increase the accuracy of data collected on the 
race and ethnicity of SNAP households by reducing errors in data 
collection caused by inaccurate visual observation. Eliminating the use 
of visual observation would still provide FNS the information needed to 
meet the Federal requirement to collect this data. This underreporting 
may be mitigated through the use of other data sources or statistical 
tools to account for the times when participants choose not to self-
identify.
    FNS acknowledges the potential challenges this regulatory change 
may place on States' administrative processes for collecting 
demographic data. States should continue to explain the importance of 
this data to participants as they encourage them to self-identify and 
self-report.
    States must still develop an alternative means of collecting the 
data, besides visual observation, when participants do not voluntarily 
provide the information. In developing these alternative collection 
methods, FNS encourages States to consider obtaining the data from 
other reliable sources where the respondent has self-identified race or 
ethnicity, such as applications for other assistance programs operated 
by the State agency (e.g., employment, health, or social services). 
During the public comment period on this rule, FNS encourages States to 
submit comments on best practices for developing alternative methods 
for collecting race and ethnicity data when the information is not 
voluntarily provided on the application form. FNS plans to provide 
guidance to States on this issue.

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 proposed rule has been determined to be not significant after 
it was reviewed by OMB in conformance with Executive Order 12866.

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, the 
Secretary certifies that this rule would not have a significant impact 
on a substantial number of small entities. This proposed rule would not 
have an impact on small entities because the changes required by the 
regulations are directed toward State agencies operating SNAP.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

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 proposed 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

    SNAP is listed in the Catalog of Federal Domestic Assistance under 
No. 10.551. For the reasons set forth in the Federal Register notice, 
published June 24, 1983 (48 FR 29115), 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.
    The Department has determined that this rule does not have 
federalism implications. This rule does not impose substantial or 
direct compliance costs

[[Page 38012]]

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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is intended to have preemptive effect 
with respect to any State or local laws, regulations or policies which 
conflict with its provisions or which would otherwise impede its full 
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

    FNS has reviewed the proposed rule, in accordance with Department 
Regulation 4300-004, Civil Rights Impact Analysis, to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. The changes to SNAP 
regulations in this proposed rule are to remove third party visual 
observation for race and ethnicity data collection from SNAP 
regulations. After careful review of the rule's intent and provisions, 
FNS believes that the promulgation of this rule will increase the 
accuracy of data collected on the race and ethnicity of SNAP households 
by reducing errors in data collection caused by inaccurate visual 
observation. While this rule does provide for the collection of racial 
and ethnic data of SNAP households, as required by Federal law, it does 
not change any eligibility criteria.

Executive Order 13175

    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. We are unaware of any current 
Tribal laws that could be in conflict with this rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 
1320) requires 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 under the Paperwork Reduction Act of 1995.
    Information collection activities associated with this rule are 
approved under existing OMB Control Numbers. OMB Control Number 0584-
0064 (expiration 02/29/2024) includes burden estimates associated with 
the collection of race and ethnicity data on SNAP applications. OMB 
Control Number 0584-0594 (expiration 07/31/2023) includes burden 
estimates associated with race and ethnicity data reporting on the form 
FNS-101, ``Participation in Food Programs--byRace''. The proposed 
changes in this rule do not introduce any new or changed information 
collection requirements subject to approval by the Office of Management 
and Budget under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    The Department 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.

List of Subjects in 7 CFR Part 272

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

    Accordingly, 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. In Sec.  272.6, revise the third sentence in paragraph (g) to read 
as follows:


Sec.  272.6  Nondiscrimination compliance.

* * * * *
    (g) * * * The State agency must develop alternative means of 
collecting the ethnic and racial data on households when the 
information is not provided voluntarily by the household on the 
application form.
* * * * *

Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2022-13058 Filed 6-24-22; 8:45 am]
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