Supplemental Nutrition Assistance Program: Civil Rights Update to the Federal-State Agreement, 81015-81018 [2016-27604]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 81, Number 222 (Thursday, November 17, 2016)]
[Proposed Rules]
[Pages 81015-81018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27604]


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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. 81, No. 222 / Thursday, November 17, 2016 / 
Proposed Rules

[[Page 81015]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 272

RIN 0584-AE51


Supplemental Nutrition Assistance Program: Civil Rights Update to 
the Federal-State Agreement

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

ACTION: Proposed rule.

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SUMMARY: The proposed action would update civil rights assurance 
language contained in Supplemental Nutrition Assistance Program (SNAP) 
regulations on the Federal-State Agreement (FSA). The rule does not 
contain any new requirements and would codify protections already 
required by Federal law and existing policy.

DATES: Written comments must be received on or before January 17, 2017 
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:
     Preferred Method: Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send comments to Sasha Gersten-Paal, Branch Chief, 
Certification Policy Branch, Program Development Division, FNS, 3101 
Park Center Drive, Alexandria, Virginia 22302, 703-305-2507.

All written comments submitted in response to this proposed rule will 
be included in the record and made available to the public. Please be 
advised that the substance of comments and the identity of individuals 
or entities submitting the comments will be subject to public 
disclosure. FNS will make written comments publicly available online at 
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Sasha Gersten-Paal, Branch Chief, 
Certification Policy Branch, Program Development Division, Food and 
Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, 
703-305-2507.

SUPPLEMENTARY INFORMATION: The Food and Nutrition Act of 2008, as 
amended (the Act), requires that each State operating SNAP have a State 
Plan of Operation (State Plan) specifying details as to how the State 
conducts the program. The State Plan contains forms, plans, agreements 
and policy descriptions required by Federal regulation and is cleared 
under OMB No. 0584-0083, Expiration date 4/30/2017. Current SNAP 
regulations at 7 CFR 272.2(a)(2) include the FSA as one such required 
component of the State Plan. The FSA is the legal agreement between the 
Department of Agriculture (Department) and the State agency through 
which the State elects to operate SNAP and to administer the program in 
accordance with the Act, SNAP regulations and the State Plan. Although 
both the Department and the State agency may mutually agree to modify 
or supplement the language, the regulations at 7 CFR 272.2(b)(1) 
contain standard FSA language for State agencies operating SNAP.
    As a Federal program, civil rights protections for SNAP applicants 
and recipients are important and essential. The standard FSA language 
contained in the regulations at 7 CFR 272.2(b)(1) already requires 
State agencies administering SNAP to agree to assure compliance with 
civil rights requirements, including Title VI of the Civil Rights Act 
of 1964, section 11(c) of the Food Stamp Act of 1977 (now the Food and 
Nutrition Act of 2008, as amended), and the Department's regulatory 
nondiscrimination requirements.
    Since the publication of the final rule establishing the standard 
FSA language, additional civil rights legislation has been passed and 
more uniform administrative procedures have been established to support 
effective enforcement of the civil rights protections. Further, the 
U.S. Department of Justice (DOJ) recommended the addition of updated 
references in the Department's civil rights-related materials. The 
Department understands that similar language has been incorporated into 
agreements in other Federal agencies, and has incorporated very similar 
language in agreements in the Department's Child Nutrition Program and 
Women, Infants and Children programs. We note, by way of background, 
that the FSA in SNAP is unique within the Department's programs in that 
most other comparable agreements are not contained in the Federal 
regulations but in forms formally approved by the Office of Management 
and Budget (OMB).
    This proposed rule would incorporate references to additional civil 
rights legislation into the standard FSA language at section 272.2. 
Those references include Title IX of the Education Amendments of 1972 
(20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 
6101 et seq.), Title II and Title III of the Americans with 
Disabilities Act (ADA), and Executive Order 13166, ``Improving Access 
to Persons with Limited English Proficiency.'' This proposed rule would 
incorporate those provisions into the regulations at 7 CFR 272.2(b)(1). 
The rule would also require States to comply with Department 
instructions, policy guidance, and other written directions as well as 
current regulatory nondiscrimination regulations located at 7 CFR part 
15 et seq. and 7 CFR 272.6 (Nondiscrimination Compliance for 
participating State agencies). Again, these additions would codify 
protections already required by Federal law, regulations and existing 
policy.
    FSAs, once signed by a State's Governor or authorized designee, are 
valid indefinitely under 7 CFR 272.2(e)(1) until they are terminated. 
Section 272.2(e)(1) also provides that the FSA must be signed and 
submitted to FNS within 120 days after the publication of the 
regulations in final form and shall remain in effect until terminated. 
Although initially included in the regulations with other regulatory 
FSA requirements, the same procedure would apply to this update. That 
is, upon publication of this proposed rule as final, all State agencies 
administering SNAP would be required to sign a new FSA with the updated 
language and provide a copy of the same to the Department within 120 
days after publication of the regulations in final form. Although State 
agencies are already required to abide by the new

[[Page 81016]]

civil rights language as stated above, the Department believes it is 
important to incorporate the updated language at section 272.2(b)(1) in 
the FSA itself.
    The rule also proposes additional items be added to the FSA 
standard language. The other items allow for the Department to track, 
analyze and enforce the civil rights protections in the FSA. First, 
this proposed rule would add that the State agency's agreement to 
follow civil rights requirements in the FSA is made in consideration of 
and for the purposes of obtaining Federal financial assistance. Second, 
the rule would incorporate into the FSA the State agency's obligation 
to compile data, maintain records, and submit records and reports as 
required to allow for effective enforcement of the civil rights 
provisions. This would include an assurance to allow Department 
personnel to review and access records, access facilities and interview 
personnel to ascertain compliance with nondiscrimination laws. The rule 
would also codify procedures to support enforcement of the 
nondiscrimination protections by updating the FSA to include a 
provision that the Department may seek judicial enforcement for 
violations of the FSA, and add assurances that the State agency and its 
successors are bound by the FSA. Again, these provisions would not only 
be responsive to DOJ's suggestions regarding nondiscrimination 
compliance language but also mirror language in other USDA programs.

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 and 
was not reviewed by the 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, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities.

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 inflation; GDP deflator source: Table 1.1.9 
at https://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 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 $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

    State administrative matching grants for SNAP are listed in the 
Catalog of Federal Domestic Assistance Programs under 10.561. For the 
reasons set forth in the final rule in 7 CFR part 3015, subpart V, 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. The Department issued 
guidance in June 2016 to State agencies as part of a larger effort to 
help States ensure their State Plans are complete and up to date, which 
in part included direction to State agencies to incorporate updated 
civil rights provisions as an addendum to existing FSAs. The 
Department's Food and Nutrition Service SNAP Regional Offices 
individually discussed these issues directly with State agencies during 
policy calls and meetings.

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 considered the impact of this rule on State and local 
governments and has determined that this rule does not have significant 
federalism implications. State agencies will be required to update the 
standard language contained in FSAs once. This agreement will then be 
binding until otherwise terminated. Therefore, under section 6(b) of 
the Executive Order, a federalism summary 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 that 
conflict with its provisions or that 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

    The changes to SNAP regulations in this proposed rule are to 
incorporate references to additional civil rights legislation into the 
standard FSA language.
    Impact on State agencies: State agencies would be required to 
submit to the Department an updated FSA within 120 days upon 
publication of this proposed rule as final. The FSA would include the 
updated language, signed by a State's Governor or authorized designee. 
State agencies would also have to agree to certain administrative 
procedures that ensure effective enforcement of the added protections, 
such as maintaining data and complying with Federal reviews.
    Impact on Households: The updated FSA language would emphasize 
existing nondiscrimination protections for SNAP households to the 
effect that no person

[[Page 81017]]

in the United States shall, on the grounds of sex, race, color, age, 
political belief, religious creed, disability, or national origin, be 
excluded from participation in, be denied the benefits of, or be 
otherwise subject of discrimination under SNAP.
    Training and Outreach: The proposed rule highlights protections 
that already exist and are required by Federal law, regulations, and 
existing policy. The Department issued guidance in June 2016 to State 
agencies as part of a larger effort to help States ensure their State 
Plans are complete and up to date. It included direction to State 
agencies to incorporate the updated civil rights provisions as an 
addendum to existing FSAs to guarantee they were highlighted 
immediately.
    FNS also maintains a public Web site that provides basic 
information on each program, including SNAP. Interested persons, 
including potential applicants, applicants, and participants can find 
information about their right to be treated fairly and the protections 
they are guaranteed. The Web site also includes information on how to 
report when an individual feels his or her rights were violated and not 
treated in accordance with this provision.
    Finding and Conclusion: After careful review of the rule's intent 
and provisions, and the characteristics of SNAP households and 
individual participants, the Department has determined that this 
proposed rule will not have a disparate impact on any group or class of 
persons.

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. The Department notes that the 
regulatory changes proposed in this rule impact program applicants and 
participants equally regardless of tribal status or residence. We are 
unaware of any current Tribal laws that could be in conflict with the 
final rule.
    To share information on the proposed rule with Indian Tribes, FNS 
discussed the proposed rule at a tribal consultation meeting on August 
17, 2016.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 
1320) requires OMB to 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.
    The provisions in this proposed rule do not contain new information 
collection requirements subject to approval by OMB under the Paperwork 
Reduction Act of 1994. The Department anticipates that this rule would 
have no to minimal time and cost impacts on the Federal government and 
State agencies. State agencies are already required to follow the 
requirements contained in the added nondiscrimination references. Any 
time and cost burden would be related to administrative obligations to 
sign an updated Federal-State Agreement and ensure appropriate 
recordkeeping to support enforcement of the nondiscrimination 
provisions as cleared under OMB Number 0584-0083. FNS provides 50 
percent of SNAP's administrative cost reimbursement and so a portion of 
any minimal administrative costs would be offset by federal funding.
    Since State agencies are already required to have these agreements, 
the impact of this provision is negligible. Other minimal burdens 
imposed on State agencies by this proposed rule are usual and customary 
within the course of their normal business activities.

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

7 CFR Part 272

    Alaska, Civil rights, Supplemental Nutrition Assistance Program, 
Grant programs--social programs, Penalties, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 272 is 
proposed to be 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. Revise Sec.  272.2(b)(1) to read as follows:


Sec.  272.2  Plan of operation.

* * * * *
    (b) * * *
    (1) The wording of the Federal/State Agreement is as follows:
    The State of __ and the Food and Nutrition Service (FNS), U.S. 
Department of Agriculture (USDA), hereby agree to act in accordance 
with the provisions of the Food and Nutrition Act of 2008, as amended, 
implementing regulations, instructions, policy guidance, and other 
written directions interpreting Federal law and regulations applicable 
to this program, and the FNS-approved State Plan of Operation. The 
State and FNS USDA further agree to fully comply with any changes in 
Federal law and regulations. This agreement may be modified with the 
mutual written consent of both parties.
Provisions
    The State agrees to:
    1. Administer the program in accordance with the provisions 
contained in the Food and Nutrition Act of 2008, as amended, and in the 
manner prescribed by regulations issued pursuant to the Act; and to 
implement the FNS-approved State Plan of Operation.
    2. Assurance of Civil Rights Compliance: Comply with Title VI of 
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), Title IX of the 
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age 
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), section 11(c) of 
the Food and Nutrition Act of 2008, as amended (7 U.S.C. 2020), Section 
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), Title II and 
Title III of the Americans with Disabilities Act (ADA) of 1990 as 
amended by the ADA Amendment Act of 2008 (42 U.S.C. 12131-12189) as 
implemented by Department of Justice regulations at 28 CFR part 35 and 
36, Executive Order 13166, ``Improving Access to Services for Persons 
with Limited English Proficiency'' (August 11, 2000), and all 
requirements imposed by the regulations, instructions, policy guidance, 
and other written directions issued by the Department of Agriculture to 
the effect that, no person in the United States shall, on the grounds 
of sex, race, color, age, political belief, religious creed, 
disability, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subject to discrimination under 
SNAP. This includes program-specific requirements found at 7 CFR part 
15 et seq. and 7 CFR 272.6.

[[Page 81018]]

    This assurance is given in consideration of and for the purpose of 
obtaining any and all Federal assistance extended to the State by USDA 
under the authority of the Food and Nutrition Act of 2008, as amended. 
Federal financial assistance includes grants, and loans of Federal 
funds; reimbursable expenditures, grants, or donations of Federal 
property and interest in property; the detail of Federal personnel; the 
sale, lease of, or permission to use Federal property or interest in 
such property; the furnishing of services without consideration, or at 
a nominal consideration, or at a consideration that is reduced for the 
purpose of assisting the recipient or in recognition of the public 
interest to be served by such sale, lease, or furnishing of services to 
the recipient; or any improvements made with Federal financial 
assistance extended to the State by USDA. This assistance also includes 
any Federal agreement, arrangement, or other contract that has as one 
of its purposes the provision of cash assistance for the purchase of 
food, cash assistance for purchase or rental of food service equipment 
or any other financial assistance extended in reliance on the 
representations and agreements made in this assurance.
    By accepting this assurance, the State agency agrees to compile 
data, maintain records, and submit records and reports as required, to 
permit effective enforcement of nondiscrimination laws and permit 
authorized USDA personnel during hours of program operation to review 
and copy such records, books, and accounts, access such facilities and 
interview such personnel as needed to ascertain compliance with the 
nondiscrimination laws. If there are any violations of this assurance, 
USDA, FNS, shall have the right to seek judicial enforcement of this 
assurance. This assurance is binding on the State agency, its 
successors, transferees and assignees as long as it receives assistance 
or retains possession of any assistance from USDA. The person or 
persons whose signatures appear below are authorized to sign this 
assurance on behalf of the State agency.
    3. (For States with Indian Reservations only). Implement the 
Program in a manner that is responsive to the special needs of American 
Indians on reservations and consult in good faith with tribal 
organizations about that portion of the State's Plan of Operation 
pertaining to the implementation of the Program for members of the 
tribe on reservations.
    4. FNS agrees to: 1. Pay administrative costs in accordance with 
the Food and Nutrition Act of 2008, implementing regulations, and an 
approved Cost Allocation Plan.
    2. Carry out any other responsibilities delegated by the Secretary 
in the Food and Nutrition Act of 2008, as amended.

Date-------------------------------------------------------------------
Signature--------------------------------------------------------------

(Governor or Authorized Designee)
Date-------------------------------------------------------------------
Signature--------------------------------------------------------------

(Regional Administrator, FNS)

    Dated: November 7, 2016.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2016-27604 Filed 11-16-16; 8:45 am]
CODE 3410-30-P