[Federal Register Volume 88, Number 239 (Thursday, December 14, 2023)]
[Rules and Regulations]
[Pages 86563-86566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27351]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 272

[FNS-2022-0005]
RIN 0584-AE86


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

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

ACTION: Final rule.

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SUMMARY: This rule finalizes provisions of a proposed rule published on 
June 27, 2022. With this final rule, the Food and Nutrition Service 
(FNS) is revising Supplemental Nutrition Assistance Program (SNAP) 
regulations that cover collecting and reporting race and ethnicity data 
by State agencies on persons receiving benefits from SNAP. This rule 
removes 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. In 
addition, based on feedback from the commenters, this rule prohibits 
using visual observation as a data collection method for race and 
ethnicity. 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 building equitable and inclusive systems for 
nutrition access.

DATES: This rule is effective February 12, 2024.

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: <a href="/cdn-cgi/l/email-protection#92c1dfbcd4dcbcc1dcd3c2c1d3d0d2e7e1f6f3bcf5fde4"><span class="__cf_email__" data-cfemail="91c2dcbfd7dfbfc2dfd0c1c2d0d3d1e4e2f5f0bff6fee7">[email protected]</span></a>.

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 at title 28 of the Code of Federal Regulations (CFR), Sec.  
42.406(a),\1\ require all Federal agencies to provide guidelines for 
the collection of race and ethnicity data 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 locations for compliance reviews, and 
complete reports, as required. 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

[[Page 86564]]

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.
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    \1\ https://www.ecfr.gov/current/title-28/chapter-I/part-42/subpart-F/section-42.406.
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    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 race and ethnicity data on households, 
such as by observation during the interview, when the information is 
not provided voluntarily by the household on the application form.
Proposed Action
    In the proposed rule, Supplemental Nutrition Assistance Program: 
Revision of Civil Rights Data (87 FR 38010), FNS proposed to update 
SNAP regulations at 7 CFR 272.6(g) to remove the example of visual 
observation during the interview as an alternative means of collecting 
race and ethnicity data when not voluntarily provided by a household on 
the application form. FNS had several reasons for making this change. 
FNS cited the need to comply with OMB Directive 15, Standards for the 
Classification of Federal Data on Race and Ethnicity; \2\ which 
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. In addition, 
there was a desire to be in line with updated FNS Civil Rights Division 
and Child Nutrition Programs guidance,\3\ which was supported by a 
recent Centers for Medicare and Medicaid Services (CMS) study that 
assessed the quality of race and ethnicity information in observational 
health databases.\4\ These documents indicate 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 race or ethnicity 
identity.
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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).
    \3\ https://www.fns.usda.gov/cn/Race-and-Ethnicity-Data-Policy-Rescission.
    \4\ Polubriaginof FCG, Ryan P, Salmasian H, et al. Challenges 
with quality of race and ethnicity data in observational databases. 
J Am Med Informatics Assoc. 2019. doi:10.1093/jamia/ocz113.
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II. General Summary of Comments and Explanation of Revision

    During the 60-day public comment period on the proposed rule, which 
ended on August 26, 2022, FNS received 14 comments. Five commenters 
were members of the public, one was a State agency that administers 
SNAP, six were research and advocacy organizations, and two were 
associations representing health and human service agency leaders and 
nutrition education administrators. All the commenters supported the 
proposal to remove visual observation as an alternative data collection 
method for race and ethnicity, and one commenter recommended that FNS 
explicitly prohibit using visual observation as a data collection 
method in the final rule. Several commenters questioned why other 
alternative data collection methods remain in the rule after visual 
observation is being removed. Two commenters recommended that FNS 
remove the ability for States to use alternative data collection 
methods noting that if an individual chooses not to provide the 
information, States should not try to collect it. One commenter 
encouraged FNS to gather best practices for alternative data collection 
methods, and one commenter expressed concerns about using aggregate 
data as an alternative data collection method.
    FNS agrees that it is important to clearly state that the final 
rule removes the option to use visual observation and amends the 
regulatory language at 7 CFR 272.6(g) to expressly prohibit using that 
option. FNS has updated language in the final rule but will continue to 
allow other alternative methods of data collection. FNS cannot 
eliminate the option to use alternative data collection methods in this 
final rule. The use of alternate data collection methods is required by 
OMB Directive 15. To ensure compliance with title VI of the Civil 
Rights Act of 1964 and associated regulations, FNS will retain 
requirements at regulation 7 CFR 272.6(g) for State agencies to develop 
alternative means of collecting race and ethnicity data when 
participants do not self-identify. However, FNS recognizes that there 
are challenges associated with the use of alternative methods of data 
collection for race and ethnicity, such as choosing and obtaining 
appropriate data sources, and keeping up with emerging technology and 
tools. Therefore, FNS will gather and disseminate to State agencies 
information on best practices for developing alternative means of 
collecting race and ethnicity data when participants do not self-
identify, including considerations when using aggregate data.
    One commenter suggested that FNS should ensure that when State 
agencies use other data sources to collect race and ethnicity data, the 
State should clearly identify the data sources and verify that visual 
observation was not utilized. FNS recognizes the need to support 
compliance with requirements at 7 CFR 272.6(g) and agrees with the 
commentor. FNS will incorporate review of State alternative methods for 
collection of race and ethnicity data into its ongoing oversight and 
management evaluation processes (e.g., Civil Rights and/or Program 
Access reviews) and will require corrective actions, as needed.
    One commenter suggested increasing the number of race and ethnicity 
options available for SNAP applicants to self-identify. SNAP 
regulations at 7 CFR 272.6(g) and (h) do not specify the race and 
ethnicity options that State agencies must provide to SNAP applicants 
for self-identification. However, FNS requires State agencies to 
annually submit the ``Participation in Food Programs--By Race'' (FNS-
101) form, which includes selected race and ethnicity options. OMB 
currently has an ongoing effort to gather public comments to improve 
the quality and usefulness of Federal race and ethnicity data, 
including through improved race and ethnicity options. FNS will 
consider information obtained through OMB's effort when considering 
future changes to the FNS-101 race and ethnicity options. Additionally, 
FNS 113-1 Civil Rights Compliance and Enforcement Instruction states 
that ``A State agency may have categories for race in addition to the 
ones required by FNS; however, the additional categories must be mapped 
and extracted to the FNS-required categories.''

Procedural Matters

Executive Order 12866, 13563 and 14094

    Executive Orders 12866, 13563, and 14094 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, reducing costs, harmonizing rules, and

[[Page 86565]]

promoting flexibility. The Office of Management and Budget has 
determined this rule to be not significant under 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 rule will 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 rules with ``Federal mandates'' that may result 
in expenditures by State, local, or Tribal governments, in the 
aggregate, or the private sector, of $100 million or more in any one 
year. When such a statement is needed for a rule, section 205 of the 
UMRA generally requires the Department to identify and consider a 
reasonable number of regulatory alternatives and adopt the most cost 
effective or least burdensome alternative that achieves the objectives 
of the rule.
    This final rule 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 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 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. 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 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, 
individuals with disabilities and individuals with limited English 
proficiency (LEP). The changes to SNAP regulations in this rule are to 
remove the option for visual observation for race and ethnicity data 
collection from SNAP regulations. After careful review of the rule's 
intent and provisions and available data sets, FNS anticipates 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 race and ethnicity 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. FNS determined that this rule 
does not require Tribal consultation. 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--by Race''. The requirements 
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.

[[Page 86566]]

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, amend paragraph (g) by revising the third sentence 
and adding a fourth sentence 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. These alternative means of data collection shall not 
include observation (also known as visual observation).
* * * * *

Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023-27351 Filed 12-13-23; 8:45 am]
BILLING CODE 3410-30-P


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