Supplemental Nutrition Assistance Program: Revision of Civil Rights Data Collection Methods, 86563-86566 [2023-27351]
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Federal Register / Vol. 88, No. 239 / Thursday, December 14, 2023 / Rules and Regulations
(ii) Pay rebates on competitive, noncontract brand infant formula that meets
the definition of infant formula at 7 CFR
246.2.
■ 5. Add § 246.29 to read as follows:
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§ 246.29 Waivers of program
requirements.
(a) Required conditions. The Secretary
may waive or modify any qualified
administrative requirement for one or
more State agencies during an
emergency period or supply chain
disruption. Waivers or modifications
may be issued following a State agency
request or at the discretion of the
Secretary. To be considered, a waiver or
modification issued under this Section
must meet the following requirements:
(1) The qualified administrative
requirement cannot be implemented
during any part of the emergency period
or supply chain disruption.
(2) The waiver or modification is
necessary to serve participants and does
not substantially weaken the nutritional
quality of supplemental foods.
(3) The waiver or modification would
not result in material impairment of any
statutory or regulatory rights of
participants or potential participants as
set forth at 7 CFR 246.8 or 7 CFR parts
15, 15a and 15b.
(4) The waiver or modification would
not create a barrier to participation.
(5) The waiver or modification would
not create additional eligibility
requirements for participation.
(6) The waiver or modification would
comply with 7 CFR 246.13(b).
(7) The waiver or modification must
offer substitution options with similar
nutritional quality, that most closely
provide the maximum monthly
allowance of supplemental foods, and
that do not create new supplemental
food categories as set forth in 7 CFR
246.10(e)(12) Table 4.
(8) A State agency that requests a
waiver or modification meets additional
requirements for the request and
approval as determined necessary by
FNS.
(b) Timeframes for waiver request and
use. (1) Waiver starts. A waiver or
modification may be granted any time
during an emergency period or supply
chain disruption.
(2) Waiver duration.
(i) A waiver or modification
established during an emergency period
may be available for the emergency
period and up to 60 days after the end
of the emergency period.
(ii) A waiver or modification
established during a supply chain
disruption may be available for:
(A) a period of up to 45 days from the
date of waiver issuance and renewed
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16:17 Dec 13, 2023
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with at least 15 days’ notice provided by
the Secretary; and
(B) no more than 60 days after the
supply chain disruption declaration
ceases to exist.
(c) State agency waiver requests. State
agencies shall submit requests for a
modification or waiver for USDA
approval. Requests shall include but not
necessarily be limited to:
(1) The qualified administrative
requirement the State agency is
requesting to modify or waive
(including the statutory or regulatory
citation) and an explanation for why it
cannot be met;
(2) Justification for why the waiver is
necessary to continue WIC services;
(3) An explanation that the waiver
meets the conditions set forth in 7 CFR
246.29(a);
(4) The emergency period or supply
chain disruption under which the
request is being made;
(5) The period for which the
flexibility is being requested.
Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023–26641 Filed 12–13–23; 8:45 am]
BILLING CODE 3410–30–P
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
Food and Nutrition Service
(FNS), Agriculture (USDA).
ACTION: Final rule.
AGENCY:
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
SUMMARY:
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86563
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:
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 at title 28 of
the Code of Federal Regulations (CFR),
§ 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
1 https://www.ecfr.gov/current/title-28/chapter-I/
part-42/subpart-F/section-42.406.
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Federal Register / Vol. 88, No. 239 / Thursday, December 14, 2023 / Rules and Regulations
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.
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.
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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
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-andEthnicity-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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reliable means to capture how a
participant self-identifies their own race
or ethnicity identity.
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
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Fmt 4700
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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
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Federal Register / Vol. 88, No. 239 / Thursday, December 14, 2023 / Rules and Regulations
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).
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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.
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16:17 Dec 13, 2023
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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
PO 00000
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Fmt 4700
Sfmt 4700
86565
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.
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Federal Register / Vol. 88, No. 239 / Thursday, December 14, 2023 / Rules and Regulations
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, amend paragraph (g) by
revising the third sentence and adding
a fourth sentence 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. 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
DEPARTMENT OF AGRICULTURE
Rural Business-Cooperative Service
7 CFR Part 4279
[Docket No. RBS–20–BUSINESS–0016]
RIN 0570–AB07
Guaranteed Loanmaking and Servicing
Regulations
Rural Business-Cooperative
Service, USDA.
ACTION: Final rule; correction and stay of
effectiveness.
AGENCY:
The Rural BusinessCooperative Service (RB–CS or Agency),
a Rural Development (RD) agency of the
United States Department of Agriculture
(USDA), is publishing a stay of effective
date for the final rule published in the
Federal Register on November 24, 2023.
The stay of the effective date for 60-days
as provided in this notification will
bring the final rule into compliance
with the Congressional Review Act.
This notification also corrects the
reference to Executive Order 12866,
Regulatory Planning and Review, which
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SUMMARY:
VerDate Sep<11>2014
16:17 Dec 13, 2023
Jkt 262001
the final rule was determined to be
significant.
DATES: The correction is effective
December 14, 2023. Effective December
14, 2023, 7 CFR 4279.190(a), (c)(1)
through (3) and (5), (d)(1) through (3),
(h), (k)(1) through (3), (m) introductory
text, and (m)(4) are stayed until
February 12, 2024.
FOR FURTHER INFORMATION CONTACT:
Mark Brodziski, Deputy Administrator,
Rural Business and Cooperative Service,
Rural Development, U.S. Department of
Agriculture, 1400 Independence Avenue
SW, Stop Washington, DC 20250–3221;
email: mark.brodziski@usda.gov;
telephone (202) 205–0903.
SUPPLEMENTARY INFORMATION: On
November 24, 2023, RBCS issued a final
rule which published in the Federal
Register [88 FR 82225] entitled
‘‘Guaranteed Loanmaking and Servicing
Regulations.’’ This final rule updates the
B&I CARES Act Program Loans, as
implemented in 7 CFR part 4279—
Guaranteed Loan Making and 7 CFR
part 4287—Servicing and as published
in the Federal Register on May 22,
2020, as an interim rule. The final rule
that published on November 24, 2023
incorrectly stated that the effective date
was November 24, 2023. Since this final
rule has been reviewed by the Office of
Management and Budget and it is
determined to be ‘‘Significant’’ under
Section 3(f)(1) of Executive Order
12866, the Congressional Review Act
(CR) requires a 60-day delay from date
of publication in the Federal Register.
This stay of the final rule for 60-days as
provided in this notification will bring
the final rule into compliance with the
CRA.
This rulemaking also corrects the
Executive Order 12866, Regulatory
Planning and Review, which the final
rule was determined to be significant.
Correction
In FR Doc. 2023–25908 (88 FR 82225)
appearing on pages 82225 and 82227 in
the Federal Register of Friday,
November 24, 2023, the following
correction is made:
Executive Order 12866, Regulatory
Planning and Review [Corrected]
1. On page 82227, in the first column,
under Executive Order 12866,
Regulatory Planning and Review, is
corrected to read: This final rule has
been reviewed by the Office of
Management and Budget and is
determined to be ‘‘Significant’’ under
Section 3(f)(1) of Executive Order
12866. A ‘‘significant regulatory action’’
means any regulatory action that is
likely to result in a rule that may: ‘‘have
PO 00000
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Fmt 4700
Sfmt 4700
an annual effect on the economy of $200
million or more (adjusted every 3 years
by the Administrator of OIRA for
changes in gross domestic product); or
will adversely affect in a material way
the economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities.’’
Karama Neal,
Administrator, Rural Business-Cooperative
Service.
[FR Doc. 2023–26751 Filed 12–13–23; 8:45 am]
BILLING CODE 3410–XY–P
DEPARTMENT OF AGRICULTURE
Rural Business-Cooperative Service
Rural Utilities Service
7 CFR Chapter XLII
[Docket: RBS–23–BUSINESS–0006]
RIN 0570–AB10
Rural Business Development Grant
(RBDG) Regulation: Tribes and Tribal
Business References To Provide
Equitable Access
Rural Business-Cooperative
Service and Rural Utilities Service,
USDA.
ACTION: Final rule and response to
comment.
AGENCY:
The Rural Business
Development Grant (RBDG) program is
intended for governmental entities and
non-profits that foster economic
development, job creation and business
creation in rural and Tribal
communities. Eligible applicants for
RBDG assistance include rural towns,
communities, State agencies,
authorities, nonprofit corporations,
institutions of higher education,
Federally recognized Tribes (https://
www.bia.gov/service/tribal-leadersdirectory) and cooperatives (if organized
as a private nonprofit corporation).
United States Department of Agriculture
(USDA) intends to improve Tribal
Government participation in the
program. This final rule seeks to
increase Tribal Government
participation with programmatic
amendments. This final rule responds to
all comments received on the proposed
rule.
DATES: The final rule is effective January
16, 2024.
ADDRESSES: Additional information
about RBDG is available at https://
www.rd.usda.gov/programs-services/
SUMMARY:
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Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: [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 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.
---------------------------------------------------------------------------
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]
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