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.

Proposed Rules Federal Register

38010 

Vol. 87, No. 122 

Monday, June 27, 2022 

1https://www.ecfr.gov/current/title-28/chapter-I/ 

part-42/subpart-F/section-42.406. 

2 62 FR 58782 (October 30, 1997) (https://

www.govinfo.gov/content/pkg/FR-1997-10-30/pdf/ 

97-28653.pdf). 

3CACFP 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). 

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. 

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: 

SM.FN.SNAPSAB@usda.gov. 

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), 

§ 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. 

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 selfidentification 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 a recent review of existing policy 

by the FNS Civil Rights Division and 

Child Nutrition Programs,3 FNS 

updated its policy to eliminate visual 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 122 / Monday, June 27, 2022 / Proposed Rules 38011 

4https://www.cms.gov/about-cms/agencyinformation/omh/downloads/data-collectionresources.pdf. 

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 selfreporting may provide better quality 

data than visual observation.4

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 selfidentify. 

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 


jspears on DSK121TN23PROD with PROPOSALS1
38012 Federal Register / Vol. 87, No. 122 / Monday, June 27, 2022 / Proposed Rules 

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 

■ 1. The authority citation for part 272 

continues to read as follows. 

Authority: 7 U.S.C. 2011–2036. 

■ 2. In § 272.6, revise the third sentence 

in paragraph (g) to read as follows: 

§ 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] 

BILLING CODE 3410–30–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 30 and 32 

[NRC–2015–0017] 

RIN 3150–AJ54 

Items Containing Byproduct Material 

Incidental to Production 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Proposed rule and draft 

guidance; request for comment. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is proposing to 

amend its regulations by adding a new 

class exemption from licensing and 

associated distribution requirements. 

This new class exemption would create 

a path for licensing current and future 

products that contain byproduct 

material incidental to their production. 

This rulemaking would resolve a 

petition for rulemaking submitted by GE 

Osmonics, Inc., that requested changes 

to the regulations to allow distribution 

of polycarbonate track etched 

membranes. The NRC plans to hold a 

public meeting to promote full 

understanding of the proposed rule and 

facilitate public comments. 

DATES: Submit comments by September 

12, 2022. Comments received after this 

date will be considered if it is practical 

to do so, but the NRC is able to ensure 

consideration only for comments 

received before this date. 

ADDRESSES: You may submit comments 

by any of the following methods (unless 

this document describes a different 

method for submitting comments on a 

specific subject); however, the NRC 

encourages electronic comment 

submission through the Federal 

rulemaking website: 

• Federal rulemaking website: Go to 

https://www.regulations.gov and search 

for Docket ID NRC–2015–0017. Address 

questions about NRC dockets to Dawn 

Forder; telephone: 301–415–3407; 

email: Dawn.Forder@nrc.gov. For 

technical questions contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section of this 

document. 


jspears on DSK121TN23PROD with PROPOSALS1