SNAP: Civil Rights Update to the Federal-State Agreement

This final rule updates the SNAP civil rights assurance template language for the Federal-State Agreement. These updates do not contain any new requirements and would codify protections already required by federal law and existing policy.

Background

This final rule updates the SNAP Federal-State Agreement (FSA) civil rights assurance language to reflect protections already required by federal law. The FSA is the legal agreement between the Department of Agriculture (the Department) and the state agency by which the state elects to operate SNAP, doing so in accordance with the Food and Nutrition Act of 2008 (the Act), SNAP regulations, the State Plan of Operation (state plan), civil rights laws, and civil rights regulations. The Act requires that each state operating SNAP have a state plan specifying details as to how the state conducts the program. The state plan contains forms, plans, agreements, policy descriptions, and policy options required by federal regulation and is cleared under OMB No. 0584-0083, Expiration date 08/31/2023. Program requirements at 7 CFR 272.2(a)(2) include the FSA as one such required component of the state plan.

Although the state agency may propose alternative language that both the Department and the state agency may mutually agree to modify or supplement, requirements 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. Codifying civil rights protections is vital to the success of SNAP because it supports the Department in providing equitable and superior customer service to all SNAP applicants and recipients. The protections included in this rule will prevent discrimination and systemic racism in the SNAP program that could negatively impact program access and outcomes. Integrating additional civil rights language into the FSA ensures a consistent application of these practices across the program. On Nov. 17, 2016, at (81 FR 81015) the Department proposed a revision to the standard FSA language at 7 CFR 272.2(b)(1) in order to update this critical language to codify protections already required by federal law and existing policy. The Department received five comments on the proposed rule. Two comments were outside the scope of this rulemaking and the remaining three were strongly supportive of the proposed changes. The supportive comments agreed with FNS' actions to strengthen civil rights protections in SNAP.

Since standard FSA language was first established in SNAP regulations, Congress has passed additional civil rights legislation 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 similar language in agreements in the Department's Child Nutrition Program and Women, Infants and Children (WIC) program, and Food Distribution programs. The Department also notes, 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 final rule incorporates 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 USC 1681 et seq.), the Age Discrimination Act of 1975 (42 USC 6101 et seq.), Title II and Title III of the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008 (42 USC 12131-12189), and Executive Order 13166, “Improving Access to Persons with Limited English Proficiency.” This final rule will incorporate those provisions into the regulations at 7 CFR 272.2(b)(1). The Department received no adverse comments on these revisions and is finalizing as proposed.

The Department also proposed to include language that would require states to comply with Department instructions, policy guidance, and other written directions. Departmental instructions, policy guidance, and written directions derive from statutory and regulatory authority and clarify existing legal requirements. Referencing those materials in the regulation is unnecessary, therefore the Department is removing such language. Therefore, the Department is not including reference to Department instructions, policy guidance, and other written directions in 7 CFR 272.2(b)(1).

In addition to updating the template language with references to additional civil rights legislation, the proposed rule identified additional language for inclusion based upon DOJ's recommendations. This includes denoting the Department's ability to track, analyze, and enforce the civil rights protections denoted in the FSA. Within these changes, the Department proposed to add that the state agency agreeing to follow civil rights requirements in the FSA is made in consideration of and for the purposes of obtaining federal financial assistance. Next, the rule proposed to incorporate the state agency's existing 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. Finally, the rule proposed to 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, adding 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. The Department received no adverse comments on these revisions and is finalizing as proposed.

FSAs, once signed by the chief executive officer of a state or authorized designee, are valid under 7 CFR 272.2(e)(1) until they are terminated. The Department will now refer to the “chief executive officer of a state” as the FSA signatory in 7 CFR 272.2(b)(1), in lieu of the term “Governor.” While not originally included in the proposed rule, the Department is making this technical change to SNAP regulations in this final rule to account for the District of Columbia's governance structure. 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. Given the publication date of this final rule, all state agencies will update this language in the FSA at the time of their next state plan submission and provide a copy of the same to the Department within 120 days of the effective date. Although state agencies are already required to abide by the new 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.