06-4662. Food Stamp Program: Civil Rights Data Collection

AGENCY:

Food and Nutrition Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule finalizes the proposed rule of the same name which was published November 27, 2002. It implements the revised collection and reporting of racial/ethnic data by State agencies on persons receiving benefits from the Food Stamp Program (FSP). The changes comply with new racial/ethnic data collection standards issued by the Office of Management and Budget (OMB) while also providing regulatory flexibility and reform for this area of the program regulations.

DATES:

Effective date: This rule is effective June 19, 2006. Implementation date: State agencies may implement the provisions in this final rule anytime after June 19, 2006 but no later than April 1, 2007.

FOR FURTHER INFORMATION CONTACT:

Barbara Hallman, Chief, State Administration Branch, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, [phone]. Her Internet address is: [e-mail].

Executive Order 12866

This final rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget.

Executive Order 12372

The FSP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule at 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), the FSP is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

Regulatory Flexibility Act

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Roberto Salazar, Administrator for the Food and Nutrition Service, has certified that this rule will not have a significant impact on a substantial number of small entities. This rule may have minimal effect on some small entities.

Executive Order 12988

This final 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 implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

Public Law 104-4

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, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to 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 FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This proposed rule contains no 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. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA.

Executive Order 13132, Federalism

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. FNS has considered the impact on State agencies. The effect on State agencies is moderate although it will mean a one-time change to collect and compile the new data in State agencies' automated systems. However, because these changes have been or are also being made in other Federal programs, the impact is not all that great for the Food Stamp Program. FNS is not aware of any case where the discretionary provisions of the rule would preempt State law.

(1) Prior Consultation With State Officials

Prior to drafting this rule, we consulted with State and local agencies at various times. Because the FSP is a State-administered, Federally funded program, our regional offices have formal and informal discussions with State and local officials on an ongoing basis regarding program implementation and policy issues. This arrangement allows State and local agencies to provide comments that form the basis for many discretionary decisions in this and other Food Stamp rules. Further, we first requested comments on the proposed data collection for the revised standards in our November 30, 1999 Federal Register notice. State agency comments have helped us make the rule responsive to concerns presented by State agencies.

(2) Nature of Concerns and the Need To Issue This Rule

State agencies generally were concerned that the classification by eligibility workers of an applicant's multiple race heritage via visual observation of people who chose not to self-identify may not always be accurate. They were also concerned about the cost involved and time that will be allowed for State agencies to make system changes to collect and compile the data, to train workers, and to convert the current caseload. The standardization of the data collection addresses another major State concern i.e. the need to have the data collected in the same way across other means-tested Federal programs. Specific comments and policy questions submitted by State agencies helped us identify issues that needed to be clarified in the final rule.

(3) Extent to Which We Meet Those Concerns

FNS has considered the impact of the rule on State and local agencies. This rule makes changes that conform to the revised OMB standards for the collection and reporting of racial ethnic data. Although the rule implementing the revised data collection standards will require eligibility workers to collect both race and ethnicity on participating households, the information will standardize racial ethnic data collection by States for the Federal Government and will permit more accurate data collection on individuals who classify themselves as being of more than one race. FNS intends to allow State agencies to record one race per person when visual observation is used because the applicant chooses not to self-identify. While State agencies will have to change their application form and possibly their information system to collect, compile, and report data, and train workers, this is a one-time change. For existing cases, we are allowing State agencies to collect the data at the time of recertification through the normal re-application process. The approximately 50 percent Federal reimbursement by FNS helps defray approximately half the State agencies' costs to make the change for the FSP. The rule provides State agencies ample time to implement the revised data collection standards and convert the existing caseload to the revised data requirements. In the rule, we have addressed every concern submitted by State agencies regarding this provision. FNS is not aware of any case where the provisions of the rule would preempt State law.

Government Paperwork Elimination Act

The Government Paperwork Elimination Act (GPEA) requires Federal Government agencies to provide electronic submission for information collection as an alternative to paper submission. FNS is committed to compliance with GPEA. The racial/ethnic information is collected by State and local agencies. In April 2004, FNS implemented electronic reporting for the FNS-101 for the FSP. The data may be submitted to FNS via data entered in the Food Programs Reporting System.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35; see 5 CFR 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB number. This final rule contains information collection that have been approved by OMB under OMB #0584-0025.

The rule addresses implementation of the revised OMB standards for the FSP only. Historically, the FSP, the Commodity Supplemental Food Program (CSFP), and the Food Distribution Program on Indian Reservations (FDPIR) have been approved under the same OMB approval package. FNS is publishing the revised regulation for the FSP only because the regulations governing the FSP contain provisions that must be amended to implement the revised standards, since they specifically identify the old racial/ethnic classifications. The CSFP and FDPIR do not require similar regulatory changes.

Under the proposed rule, we estimated that 53 State FSP agencies would submit a Form FNS-101 once a year at a burden of 2 hours per respondent for a total of 106 hours for the FSP. The final rule requires States to report the Form FNS-101 by project area, as they do now. We estimate that 2,616 project areas will report the FNS-101 for the FSP. Accordingly, we estimate a total burden for the FSP under 0584-0025 will decline to 5,232 hours, a decrease of 654 hours. The decline is due to a re-estimate of the time it takes to complete the revised FNS-101.

Burden Estimate

Respondents: Local agencies that administer the CSFP, FDPIR, and FSP.

Number of Respondents: 2,873 (147 for CSFP, 110 for FSDPIR, and 2,616 for FSP).

Estimated Number of Responses per Respondent:

Form FNS-191: 147 local CSFP agencies once a year.

Form FNS-101: 110 local FDPIR agencies and 2,616 FSP local agencies once a year.

Estimate of Burden:

Form FNS-191: The local CSFP agencies submit Form FNS-191 at an estimate of 1.92 hours per respondent, or 282.24 hours. There is an additional recordkeeping burden of .08 hours per respondent, or 11.76 hours. Total burden is 294 hours.

Form FNS-101: The 2,726 local FDPIR and FSP agencies submit Form FNS-101 at an estimate of 1.92 hours per respondent, or 5,233.92 hours. There is an additional burden of .08 hours per respondent for recordkeeping, or 218.08 hours. Total burden is 5,452 hours.

Estimated Total Annual Burden on Respondents: The revised annual reporting and recordkeeping burden for OMB No. 0584-0025 is estimated to be 5,746 hours, a reduction of 675.5 hours. The burden reduction is due to a re-estimate of the time it takes to complete the new FNS-101 form.

Civil Rights Impact Analysis

FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, and the characteristics of food stamp households and individual participants, FNS has determined that there is no adverse impact on any group. While this rule does provide for the collection of racial ethnic data on FSP applicants and recipients, it does not change any eligibility criteria.

FNS specifically prohibits the State and local government agencies that administer the Program from engaging in actions that discriminate based on race, color, national origin, gender, age, religious creed, disability, or political beliefs (FSP nondiscrimination policy can be found at 7 CFR 272.6(a)). Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with the regulations at 7 CFR 272.6.

Background

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs receiving federal financial assistance. The Department of Justice (DOJ) regulations, at 28 CFR 42.406(a), require all Federal agencies to provide for the collection of racial and ethnic information from applicants for and beneficiaries of Federal assistance sufficient to permit effective enforcement of Title VI. On October 30, 1997, OMB issued revised standards for the classification of Federal data on race and ethnicity in a notice in the Federal Register (62 FR 58782). All Federal agencies are required to comply with the revised OMB standards. The OMB standards revise the racial and ethnic categories and require that respondents be offered the option of selecting one or more racial designations.

On November 27, 2002, we published a rule proposing to codify a general requirement for the new racial ethnic data collection and reporting procedures in the FSP regulations to comply with OMB policy while dropping the technical details such as the racial/ethnic classifications from the regulations in order to maintain flexibility for any future changes in the data collection and reporting procedures. On the same day we published a Notice on the proposed information collection requirements for public comment. The detailed procedures, which were proposed in the preambles of these documents, would be provided to State agencies in an implementing memorandum. The period for comment ended on January 27, 2003. We received comments from 7 State agencies, 1 State agency organization, 15 advocate groups, and 1 legal aid office. For a full understanding of the background of the provisions in this rule, see the proposed rulemaking and Notice, which were published in the Federal Register at 67 FR 70861 and 70916, respectively.

7 CFR 272.6(g)—Data Collection by State Agencies

Under the revised standards, there are five categories for race and two categories for ethnicity. The new racial categories are American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White. The revised standards allow individuals to choose more than one race to describe themselves. The revised categories on ethnicity are “Hispanic or Latino”, and “Not Hispanic or Latino.” The State agency must include these racial and ethnic categories on the State agency's application or data input screen.

Several State agencies were concerned that the collection of multiple race data would lengthen the application process for participants and caseworkers, making it more burdensome and complex. They felt more time would be spent explaining the data collection to participants. We believe State agencies will be able to efficiently collect the data for the new categories without serious difficulty. The OMB standards came out in 1997. We note that the Census Bureau collected the data for Census 2000 and other Federal programs like the Temporary Assistance for Needy Families (TANF) have been collecting the data under the new categories, so most applicants by now should be familiar with the new categories and format used in Federal programs.

We proposed that to ensure data quality, the State agency's application or data input screen must use separate questions for collecting ethnicity and race, with ethnicity requested first. One State agency felt that the sequence of the two questions was irrelevant since the data is voluntary for the participant and since the data have to be collected by the State agency for both questions. The proposed sequence is in compliance with the OMB standards which specify that ethnicity be collected first. The sequence allows individuals of Hispanic origin to identify their ethnicity, as they have done in the past, and then in the next question to identify their race, which they may now do. This sequence agrees with TANF Program data collection requirements and other Federal programs, making the data collection format standard across Federal programs. Therefore, we have retained the requirement that the application collect ethnicity first, then the race.

One State agency asked whether two separate fields are required for “Hispanic or Latino” and “Not Hispanic or Latino” on their application and information system or whether a yes or no response to the Hispanic or Latino field is sufficient. We note that the TANF program uses a yes or no field for “Hispanic or Latino.” The intent of the two ethnic categories is to allow separate counts of Hispanic and non-Hispanic data. Since yes and no responses to the Hispanic or Latino question would allow a State the basis to compile separate data on Hispanic individuals and non-Hispanic individuals, a yes/no field for Hispanic or Latino would be sufficient.

One State agency recommended that a sixth category for multiple races be added to the other five racial categories on the application, designating that the individual says multiple racial categories apply. This is not permitted under the OMB standards. The comment is not adopted.

We proposed to continue current policy that the State agency must 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. Several State agencies felt that the collection of racial data by the caseworker via observation of an applicant's race when the applicant declines to self-identify results in the collection of unreliable data. One State agency commented that caseworkers have varying capabilities and comfort levels in eliciting racial and ethnic information from participants who decline to answer or in assessing the racial and ethnic category via visual observation in a manner that is culturally sensitive and acceptable to applicants. Another State agency suggested the application have a “declined” category for those who decline to report their race. Another suggested that in place of observation we expand the alternatives to observation and allow State agencies to extrapolate the data from those who voluntarily report and adjust the State totals accordingly.

It is current Federal policy that observation be used to collect the data when the applicant chooses not to self-identify so workers already do this. However, we do understand the States' concerns. We believe it is better to collect the data, to the best of the caseworker's ability, through observation than to not attempt to collect the data at all simply because the applicant declines to voluntarily provide it. The notice proposed that when visual observation is used, the caseworker need collect only one race for any applicant along with the ethnicity. This is similar to what caseworkers currently do under the old policy which directed caseworkers to assign any household to only one racial category. Caseworkers should use their best judgment via observation in determining which category best applies for people who appear to be multi-racial. By not allowing States to extrapolate the data in place of observation, FNS, by comparing household participation data to racial counts, can determine the number and percentage of individuals who are of an unknown race because the applicant did not report and the caseworker was unable to observe. While we are keeping the policy as proposed, we will consider other alternatives to observation that a State agency may suggest in detail on a case-by-case basis.

One State agency asked how to categorize applicants if the face-to-face interview is replaced with a telephone interview and the applicant chooses not to report his or her race. If the State agency is unable to observe the applicant's race and ethnicity and the applicant does not provide the information, the caseworker should leave the race and ethnic field blank. The unknowns need not be compiled in the State's system and will not be reported anywhere on the Form FNS-101. However, FNS reserves the right to calculate the number of household contacts that are of “Unknown Race” based on a comparison of household participation and participation by race counts.

State agencies currently collect the data by “household” with each household unit being counted under only one race. In actuality, most State agencies collect racial/ethnic data for one person in the household, normally the person who completes the application or is interviewed. This is done because the reporting of racial information by an applicant is voluntary and not all household members are required to be present for the eligibility interview. State agencies may continue to collect the data for one person per household (called the household contact) but must use the revised racial and ethnic categories and provide for multiple race reporting.

7 CFR 272.6(h)—Compiling and Reporting the Data

The proposed rule noted that while there will be 5 single races and the ethnicity question on the application form, the choosing of a single race or a combination of races along with ethnicity response can produce a total of 62 possible racial and ethnic categories for compilation purposes. Allowing for all the “detailed” race distributions, there could be 5 single race groups, 10 two-race combinations, 10 three-race combinations, 5 four-race combinations, and 1 five-race combination for a total of 31 categories. The Hispanic count by race would then produce a second set of 31 categories by race. The proposed rule and notice proposed that State agencies compile the data for all 62 possible racial categories including the combinations, maintain it by county, and report statewide for 26 categories. Several State agencies were concerned that the programming for all the categories for compiling and maintaining the data would be costly at a time of record breaking State budget deficits. It would divert limited financial resources to data-gathering functions when more significant priorities exist. One State agency felt that maintaining data for 62 categories would be burdensome since a number of categories will have little or no data. One State agency recommended that States only report the five single races and a catchall multiple race category. The State agency organization suggested that FNS collect the data through the Quality Control sample rather than have States compile the data in their information systems and report compiled data to FNS.

After careful consideration, FNS has decided it will collect from State agencies data on 20 racial and ethnic categories, plus total counts. This will consist of the number of people who selected only one racial category, separately for each of the five racial categories, and a count for the following combinations:

(1) American Indian or Alaska Native and White.

(2) Asian and White.

(3) Black or African American and White.

(4) American Indian or Alaska Native and Black or African American.

(5) The balance of respondents reporting more than one race.

In addition, we will collect data from State agencies on the number of persons in each racial category (above) who are Hispanic or Latino. In total, this is slightly less than the 26 categories originally proposed in the notice and proposed rule. The combination categories for reporting purposes are the four most common combinations according to Census data and are in accordance with the 1997 OMB guidelines for all Federal agencies.

Currently, FNS collects data on 6 racial ethnic categories (including the total count) from 2,616 project areas (typically counties) for the FSP. However, with the increase in data elements, we proposed that State agencies just report State level data to FNS but maintain project area data for FNS reviewers. Fifteen advocate groups and a legal aid office asked FNS to reconsider this proposed decision and suggested FNS should require States to continue to report project area data to FNS. They contended that the lack of project area data would make it harder for advocacy groups and legal aid offices to monitor a State agency's practices to see if they have the effect of discriminating against racial minorities. They would face undue burdens of time and expense in requesting and obtaining project area data from all States rather than getting it from FNS and may not get the data from some States. They feel FNS is too thinly-staffed to do a comprehensive review of this data in State agency offices. Finally, they argue that reporting project area data would not unduly burden States because States would still have to collect the project area data, and program their computers to provide this information to FNS for on-site visits. They note that once collected by project area at the State, having States report project area totals directly to FNS would not be that much more of a burden than maintaining it on-site.

After careful consideration of all the comments, we have decided to continue the current policy to collect project area data from State agencies. Project area data will allow us to continue to monitor local office activity and to ensure compliance with civil rights enforcement. Collecting the data through the Quality Control system as one commenter proposed is not adequate for project level data. While the quality control sample would provide a reliable estimate for the State, it would not provide a reliable estimate for a project area due to the small sample size in a project area. State agencies will need to compile and maintain the data for all categories by project area for FNS review. The data must be kept in an easily retrievable form and be made available to FNS upon request. While we recognize that there is a burden on State agencies to program their systems to compile the new data, once the data is compiled, the actual reporting to FNS thereafter will be a minimal burden for State agencies.

State agencies must collect racial and ethnic data on the household contact on the application. The State agency will have to modify their information system to store and compile data on all categories under this requirement and report to FNS by project area on the 20 racial and ethnic categories mentioned above on the Form FNS-101.

The State agency must maintain all applications received by the project area office for onsite review by FNS staff during civil rights reviews.

In February 2004, FNS modified its information system to allow States and project areas to report the current FNS-101 electronically by project area to FNS' information system. FNS' system will be further modified to accept the new FNS-101 electronically in the upcoming months.

Implementation

This will apply to all new applications received on or after the implementation date of April 1, 2007 as explained below. Several State agencies had indicated that it will take at least 12 months after the effective date to get a new application on all existing cases. One commenter asked about waivers if State agencies need more time. We understand State agencies' concerns about converting the existing caseload. By applying the new requirements solely to new applications and recertifications, we are not requiring caseload conversion outside the normal application process. The maximum certification period is 12 months for most households, but the certification period may be lengthened to 24 months for households in which all adult members are elderly or disabled. Under the normal application process, we expect most cases to be under the new data collection requirement in 12 months. However, we understand that a small percentage of cases, the households with extended certification periods, may take up to 2 years to fall under the new data collection.

This rule is effective June 19, 2006. State agencies may implement the provisions of this rule anytime after June 19, 2006 but must implement the data collection no later than April 1, 2007 for all new applications. This will allow reporting of the new data for the report month of July 2007 for part of the caseload. The Form FNS-101 currently in use would remain in effect for the fiscal year 2006 reporting period for all State agencies.

List of Subjects in 7 CFR Part 272

• Alaska
• Civil rights
• Food stamps
• Grant programs-social programs
• Reporting and recordkeeping requirements

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, paragraphs (g) and (h) are revised to read as follows:

§ 272.6

Nondiscrimination compliance.

* * * * *

(g) Data collection. The State agency must obtain racial and ethnic data on participating households in the manner specified by FNS. The application form must clearly indicate that the information is voluntary, that it will not affect the eligibility or the level of benefits, and that the reason for the information is to assure that program benefits are distributed without regard to race, color, or national origin. The State agency must develop alternative means of collecting the ethnic and racial data on households, such as by observation during the interview, when the information is not provided voluntarily by the household on the application form.

(h) Reports. As required by FNS, the State agency must report the racial and ethnic data on participating household contacts on forms or formats provided by FNS.

Dated: May 10, 2006.

Roberto Salazar,

Administrator.