81_FR_2736 81 FR 2725 - Supplemental Nutrition Assistance Program: Review of Major Changes in Program Design and Management Evaluation Systems

81 FR 2725 - Supplemental Nutrition Assistance Program: Review of Major Changes in Program Design and Management Evaluation Systems

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service

Federal Register Volume 81, Issue 11 (January 19, 2016)

Page Range2725-2741
FR Document2016-00674

This rule finalizes provisions of the proposed rule entitled Review of Major Changes in Program Design and Management Evaluation Systems, which was published May 3, 2011. This final rule amends the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program) regulations to implement section 4116 of the Food, Conservation and Energy Act of 2008 (FCEA). Section 4116 of the FCEA, Review of Major Changes in Program Design, requires the United States Department of Agriculture (the Department) to identify standards for major changes in operations of State agencies' administration of SNAP. The provision also requires State agencies to notify the Department if they implement a major change in operations and to collect and report data that can be used to identify and correct problems relating to integrity and access, particularly for certain vulnerable households. This final rule establishes criteria for changes that would be considered ``major changes'' in program operations and identifies the data State agencies must report in order to identify problems relating to integrity and access. It also sets forth when and how State agencies must report on the implementation of a major change. This rule also amends Management Evaluation (ME) Review regulations by modifying the requirements for State reviews. The rule revises the definitions of large, medium and small project areas. Finally, it removes sections of the regulations pertaining to coupons and coupon storage since they are obsolete.

Federal Register, Volume 81 Issue 11 (Tuesday, January 19, 2016)
[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)]
[Rules and Regulations]
[Pages 2725-2741]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-00674]



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Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / 
Rules and Regulations

[[Page 2725]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271, 272 and 275

[FNS-2011-0035]
RIN 0584-AD86


Supplemental Nutrition Assistance Program: Review of Major 
Changes in Program Design and Management Evaluation Systems

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule finalizes provisions of the proposed rule entitled 
Review of Major Changes in Program Design and Management Evaluation 
Systems, which was published May 3, 2011. This final rule amends the 
Supplemental Nutrition Assistance Program (SNAP) (formerly the Food 
Stamp Program) regulations to implement section 4116 of the Food, 
Conservation and Energy Act of 2008 (FCEA). Section 4116 of the FCEA, 
Review of Major Changes in Program Design, requires the United States 
Department of Agriculture (the Department) to identify standards for 
major changes in operations of State agencies' administration of SNAP. 
The provision also requires State agencies to notify the Department if 
they implement a major change in operations and to collect and report 
data that can be used to identify and correct problems relating to 
integrity and access, particularly for certain vulnerable households.
    This final rule establishes criteria for changes that would be 
considered ``major changes'' in program operations and identifies the 
data State agencies must report in order to identify problems relating 
to integrity and access. It also sets forth when and how State agencies 
must report on the implementation of a major change. This rule also 
amends Management Evaluation (ME) Review regulations by modifying the 
requirements for State reviews. The rule revises the definitions of 
large, medium and small project areas. Finally, it removes sections of 
the regulations pertaining to coupons and coupon storage since they are 
obsolete.

DATES: Effective Date: January 19, 2016.
    Implementation date: This rule shall be implemented as follows: 
Sec.  272.15 shall be implemented on March 21, 2016. Implementation of 
any major change that begins after that day must be reported to FNS. 
The changes in definitions in Part 271 that impact the requirements for 
State ME reviews in Part 275, shall be implemented October 1, 2016.

FOR FURTHER INFORMATION CONTACT: Mary Rose Conroy, Chief, Program 
Design Branch, Program Development Division, Food and Nutrition 
Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, 
(703) 305-2515; [email protected]. Questions regarding this 
rulemaking should be sent in writing to 3101 Park Center Drive, 
Alexandria, Virginia 22302, or by telephone at (703) 305-2803, or via 
email to [email protected].

SUPPLEMENTARY INFORMATION: This action is needed to implement section 
4116 of the FCEA. Section 4116, Review of Major Changes in Program 
Design, amends section 11 of the Food and Nutrition Act of 2008 (the 
Act) (7 U.S.C. 2020). Section 4116 requires the Department to develop 
standards for identifying major changes in the operations of State 
agencies that administer SNAP; State agencies to notify the Department 
upon implementing a major change in operations; and State agencies to 
collect any information required by the Department to identify and 
correct any adverse effects on program integrity or access, 
particularly access by vulnerable households. The provision identifies 
four major changes in operations for which standards for identifying 
changes must be developed: (1) Large or substantially-increased numbers 
of low-income households that do not live in reasonable proximity to a 
SNAP office; (2) substantial increases in reliance on automated systems 
for the performance of responsibilities previously performed by merit 
system personnel; (3) changes that potentially increase the households' 
difficulty in reporting information to the State; and (4) changes that 
may disproportionately increase the burdens on specific vulnerable 
households. In addition, the provision gives the Department the 
discretion to identify other major changes that a State agency would be 
required to report, as well as to identify the types of data the State 
agencies would have to collect to identify and correct adverse effects 
on integrity and access. Finally, the Department is modifying 
requirements for State reviews to allow more efficient use of staff and 
resources.

I. Additional Information on Electronic Access

Electronic Access

    You may view and download an electronic version of this final rule 
at http://www.fns.usda.gov/snap/.

II. 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). This 
final rule has been determined to be not significant under Executive 
Order 12866 and was not reviewed by the Office of Management and 
Budget.
Costs
    The rule will have a minimal cost in fiscal year (FY) 2016 and over 
the 5 years FY 2016 through FY 2020. To estimate the cost impact, we 
multiplied the estimated total burden hours, as outlined in the 
Paperwork Reduction Act section of the preamble, by the hourly mean 
wage for functions performed by State agency and local education agency 
staff. The hourly mean wage is based upon the U.S. Department of Labor, 
Bureau of Labor Statistics, May 2014 National Occupational and Wage 
Statistics, Occupational Group (for education-related occupations), 
which is $25.10. FNS estimates a total of 8,460 burden hours to fulfill 
the reporting requirements. The annual cost is estimated at $212,364 or 
approximately $1,061,730 over the 5 years FY 2016 through FY 2020.

[[Page 2726]]

Benefits
    This rule requires State agencies to report on the impacts of 
implementing major changes in State agency operations, and to identify 
and correct problems caused by implementing these changes. This rule 
will benefit State agencies by requiring them to fully evaluate changes 
and thereby reduce the potential for these changes to cause hardships 
for applicants, recipients or compromise the integrity of the program. 
This rule will benefit applicants, recipients or individuals otherwise 
eligible for SNAP by requiring State agencies to identify and correct 
adverse impacts. This rule modifies the requirements for State ME 
reviews of local office operations. It will benefit State agencies by 
allowing them more time to conduct higher quality reviews.

Executive Order 12372

    SNAP is listed in the Catalog of Federal Domestic Assistance under 
No. 10.551. For the reasons set forth in the final rule in 7 CFR part 
3015, subpart V and related Notice (48 FR 29115, June 24, 1983), this 
program 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 (5 U.S.C. 601-612). It has been certified 
that this rule will not have a significant economic impact on a 
substantial number of small entities. State welfare agencies will be 
the most affected to the extent that they administer the SNAP.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
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 Food and Nutrition 
Service (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 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. This rule is, therefore, not subject 
to the requirements of sections 202 and 205 of the UMRA.

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 E.O. 13132. FNS has considered 
this rule's impact on State and local agencies and has determined that 
it does not have federalism implications under E.O. 13132.

Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts that the rule might have on 
minorities, women and persons with disabilities. After a careful review 
of the rule's intent and provisions, FNS has determined that this rule 
has no intended impact on any of the protected classes. FNS 
specifically prohibits State and local government agencies that 
administer SNAP from engaging in actions that discriminate against any 
applicant or participant in any aspect of program administration, 
including, but not limited to, the certification of households, the 
issuance of benefits, the conduct of fair hearings, or the conduct of 
any other program service for reasons of age, race, color, sex, 
handicap, religious creed, national origin or political beliefs (SNAP 
nondiscrimination policy can be found at 7 CFR 272.6). Discrimination 
in any aspect of program administration is prohibited by these 
regulations, the Food and Nutrition Act of 2008, the Age Discrimination 
Act of 1975 (Pub. L. 94-135), the Rehabilitation Act of 1973 (Pub. L. 
93-112, section 504) and Title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d). Enforcement action may be brought under any applicable 
Federal law. Title VI complaints shall be processed in accordance with 
7 CFR part 15.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' 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 has assessed the impact of this rule on Indian tribes and 
determined that this rule does not, to our knowledge, have tribal 
implications that require tribal consultation under EO 13175. On 
February 18, 2015 the agency held a webinar for tribal participation 
and comments. During the comment period, FNS did not receive any 
comments on the proposed rule. If a Tribe requests consultation, FNS 
will work with the Office of Tribal Relations to ensure meaningful 
consultation is provided where changes, additions and modifications 
identified herein are not expressly mandated by Congress.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320), requires that 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 control number. The 
Notice of Proposed Rulemaking (NPRM) contained new requirements that 
are subject to review and approval by OMB. FNS sought public comments 
on the changes in the information collection burden that would result 
from adoption of the NPRM provisions.
    Comments were invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility and clarity of the information to be collected; and (d) ways to 
minimize the burden of the collection of information on those who are 
to respond, including

[[Page 2727]]

use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.
    Comments on the information collection pursuant to the proposed 
rule were minimal, but changes to provisions of the final rule have 
affected the reporting burden estimated from the NPRM.
    Title: Review of Major Changes in Program Design.
    OMB Number: [0584-NEW].
    Expiration Date: Not Yet Determined.
    Type of Request: New Collection.
    Abstract: As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), FNS is submitting a copy of this section to OMB for 
its review. Section 4116, Review of Major Changes in Program Design, 
amends section 11 of the Act (7 U.S.C. 2020). It requires the 
Department to develop standards for identifying major changes in the 
operations of State agencies that administer SNAP. Section 272.15, of 
this final rule requires State agencies to notify the Department when 
planning to implement a major change in operations and State agencies 
to collect any information required by the Department to identify and 
correct any adverse effects on program integrity or access, including 
access by vulnerable households. Since decisions to make major changes 
to program operations rest with each individual State agency, the 
frequency and timing of the changes can only be estimated. The final 
rule requires State agencies to provide descriptive information 
regarding the major change together with an analysis of its projected 
impacts on program operations. The final rule also includes 
``automatic'' reporting requirements for any State reporting a major 
change and sets out requirements for the State to collect and report 
additional information. The reports will consist of monthly 
information, to be provided on a quarterly basis. Reporting would 
continue for at least a year after the change is completely 
implemented. It is not uncommon for a State to pilot a change prior to 
statewide implementation. FNS could require information from the pilot 
and information regarding the statewide impacts of the change after 
full implementation.
    Respondents: The 53 State agencies that administer SNAP.
    Estimated Number of Responses per Respondent: The rule identifies 
six categories of major changes; changes to the States automated 
system, changing the responsibilities of merit system personnel, office 
closings, reductions in State SNAP merit system personnel, changes that 
may make it more difficult for households to report and an undefined 
``other'' category. Such changes in operations are made by States based 
upon a variety of interrelated factors. There is no evidence that the 
State's size (population) or regional location predict when or what 
type of changes States will make.
    In examining the first of the above criterion in isolation, it 
would be reasonable to expect one or two States per year to replace 
automated systems and another four States to make modifications to 
their systems that would require a major change report. However, with 
so many States running older systems and the delays caused by budget 
difficulties, it is likely this will increase to three per year 
beginning in FY 2017, as States' budgets improve. It is also likely 
that we will see more States look into implementing call centers and 
developing online applications that will be used by a large proportion 
of SNAP applicants and participants. Since it appears that 45 States 
will have online applications in place and over 30 States will be using 
call centers in FY 2016, the number of additional States that might 
implement these systems in a year is most likely no more than four per 
year. Therefore we estimate a total of ten States per year would report 
major changes under this criterion.
    With regard to the second criterion, one State exploring such a 
change every two years would be a reasonable estimate.
    The third criterion, office closings, may become more common with 
the expanded use of call centers and online applications. We estimate 
three States per year would report major changes under this criterion.
    The fourth criterion, staff reductions, tends to fluctuate with 
States' budgetary situations, caseloads and other changes States make 
to their program design. We estimate there would be three significant 
staff reductions per year.
    The fifth criterion, changes that may make it more difficult for 
households to report, would occur in conjunction with or as a result of 
changes in the States administration of SNAP. This is the most 
difficult to predict, but as States continue to take advantage of new 
technology and streamlined processes, changes of this type may become 
more common. An estimate of five such changes per year would appear to 
be reasonable.
    Since, by definition, the ``other'' category cannot be estimated, 
one such major change per year is estimated as a place holder.

------------------------------------------------------------------------
                                                              Responses
                         Criterion                            per year
------------------------------------------------------------------------
Replacement of automated system...........................          10
Changing the responsibilities of merit system personnel...            .5
Office closings...........................................           3
Significant reductions in SNAP staff......................           3
Changes that may make it more difficult for households to            5
 report...................................................
Other.....................................................           1
                                                           -------------
  Total...................................................          22.5
------------------------------------------------------------------------

    Once a State has triggered one of the six criteria, the State will 
be required to report the ``automatic'' information as required in 
Sec.  272.15(b)(2)-(4) and FNS must determine what, if any, additional 
data the State will be required to collect and report as provided for 
in Sec.  272.15(b)(5). FNS believes that most often, the automatic 
reporting requirements and its ongoing data collection tools it employs 
will be sufficient to provide the needed information on a major change. 
Additional data will occasionally need to be generated from States' 
automated eligibility systems or gathered by conducting additional case 
review surveys.
    Estimated Total Annual Burden on Respondents:
    Section 272.15(a)(3), requires States provide both descriptive and 
analytic information regarding the major change. FNS believes States 
will have completed the majority of the analysis in the normal course 
of their own planning and decision making. The descriptive information 
should also be readily available and require minimal data gathering 
since it is the State's decision to make the major change. We estimate 
it will take 8 hours to describe the change and 32 hours to repackage 
and complete the required analysis for a total of 40 hours per 
response. Thus, with 22.5 States reporting one major change per year, 
the initial reporting and analysis aspect of the rulemaking would be 
22.5 annual responses x 40 hours per State = an estimated 900 burden 
hours per year (22.5 States x 1 response per respondent = 22.5 annual 
responses x 40 hours per respondent to respond = 900 annual burden 
hours).
    FNS believes that for about seventy percent of the major changes 
States report, no additional reporting will be necessary beyond the 
automatic reporting requirements. Additional data collection will only 
be required for the remaining 30 percent of the reported major changes. 
Therefore, for about 15.75 of the major changes expected

[[Page 2728]]

each year there would be no additional reporting burden.
    All 22.5 of the major changes expected each year will require some 
automated system reprogramming to generate the required automatic data 
reporting. At 48 hours per reprogramming effort, this would be 1080 
hours per year (22.5 x 48). The reports themselves would be estimated 
to require 12 hours each.

----------------------------------------------------------------------------------------------------------------
                                                 Estimated
                 Respondents                       annual       Responses per      Hours per     Total hours per
                                                 responses           year           response           year
----------------------------------------------------------------------------------------------------------------
22.5 States quarterly.......................               4               90               12             1080
----------------------------------------------------------------------------------------------------------------

    The total for the 22.5 States would be 900 + 1,080 hours = 1,980 
total hours for reporting (divided by the 22.5 states = 88 hours per 
State per year).
    For the 6.75 States expected to require additional data collection, 
this requirement would be in addition to the 1,980 hours from above. 
Such data will generally be collected through a sample of case reviews. 
While the required sample sizes may vary based on the type of major 
change and the proportion of the State's SNAP caseload it may affect, 
200 cases per quarter would likely be an upper limit on what FNS could 
ask of a State. At an estimated one hour to review and report on a 
case, this would require 800 hours per year per State. The 6.75 States 
times 800 hours yields 5,400 hours (6.75 State respondents x 1 response 
per respondent = 6.75 annual responses x 800 hours per respondent to 
respond = 5,400 annual burden hours). When the 1,980 hours are added 
for the automatic information, the total for these 6.75 States is 7,380 
hours (1,093 hours per State per year).
    With all 22.5 States reporting quarterly, there would be 90 
responses annually. Twenty-seven of the 90 reports would contain 
additional information from sample data.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           States
             Section                  Requirement      responding per  Responses per respondent     Number of      Hours per  response     Total burden
                                                            year                                    responses                                  hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
272.15(a)(3)....................  Initial analysis of           22.5   1.......................            22.5  40.....................             900
                                   Major Change.
272.15(b)(2)-(4)................  Reports required              15.75  4.......................              63  22.....................           1,386
                                   without additional
                                   data collection.
272.15(b)(5)....................  Reports required               6.75  4.......................              27  273.25.................        7,377.75
                                   with additional
                                   data collection.
                                                      --------------------------------------------------------------------------------------------------
    Totals......................  ...................           22.5   5 (average).............           112.5  85.9 (average).........        9,663.75
--------------------------------------------------------------------------------------------------------------------------------------------------------

E-Government Act Compliance

    FNS 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.

Executive Order 12988

    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 that 
conflict with its provisions or that would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect 
unless so specified in the ``Effective Date'' paragraph of the final 
rule. Prior to any judicial challenge to the provisions of this rule or 
to the application of its provisions, all applicable administrative 
procedures must be exhausted. In SNAP the administrative procedures are 
as follows: (1) For Program benefit recipients--State administrative 
procedures issued pursuant to 7 U.S.C. 2020(e)(10) and Sec.  273.15; 
(2) for State agencies--administrative procedures issued pursuant to 7 
U.S.C. 2023 set out at Sec.  276.7 or Part 283; (3) for retailers and 
wholesalers--administrative procedures issued pursuant to 7 U.S.C. 2023 
set out at 7 CFR part 279.
    What acronyms or abbreviations are used in this supplementary 
discussion of the proposed provisions? In the discussion of the 
provisions in this rule, the following acronyms or other abbreviations 
are used to stand in for certain words or phrases:

------------------------------------------------------------------------
                                             Acronym,  Abbreviation, or
                  Phrase                               Symbol
------------------------------------------------------------------------
Code of Federal Regulations...............   CFR
Federal Register..........................  FR
Federal Fiscal Year.......................   FY
Food and Nutrition Act of 2008............  the Act
Food and Nutrition Service................  FNS
Food, Conservation, and Energy Act of 2008   FCEA
Management Evaluation.....................  ME
Notice of Proposed Rulemaking.............  NPRM
Supplemental Nutrition Assistance Program.  SNAP
U.S. Department of Agriculture............  the Department
------------------------------------------------------------------------

III. Background

    Section 4116 of the FCEA amended section 11 of the Act to require 
the Department to define ``major changes'' in SNAP operations, State 
agencies to notify the Department when they implement a major change in 
SNAP operations, and to collect data for use in identifying and 
correcting problems with SNAP integrity and access, particularly among 
vulnerable populations. Many State agencies have changed or are in the 
process of changing the way they operate SNAP. Some of these changes 
have been small and have predominately impacted internal State agency 
operations. However, some of the changes have also included major 
overhauls of State agency operations that affect how the State 
interacts with applicants and participants. While the goal of such 
changes is to improve the efficiency and the effectiveness of the 
States' operations, some of these changes have

[[Page 2729]]

adversely impacted the States' payment accuracy rates, and, critically, 
have impeded access to SNAP benefits. In recent years, States have 
faced rising caseloads and cut backs which in part have led many States 
to make use of new technologies that could help streamline their SNAP 
operations. Section 4116 of the FCEA anticipates this and provides the 
Department the authority to better provide States with technical 
assistance and to monitor implementation of major changes in their 
operation of SNAP. The proposed rule published May 3, 2011, at 76 FR 
24820, provided a 60-day comment period. This final rule defines what 
changes to States' operations will be considered ``major,'' establishes 
the requirements for States to notify FNS of such changes and 
establishes reporting requirements for major changes. States' ME 
requirements have also been updated to allow States time to conduct 
more effective reviews. The changes will allow States to streamline 
operations while maintaining the integrity of SNAP.

Public Comments

    The Department received 120 comments on the NPRM from various 
entities including: 95 individuals (many of whom are union members); 4 
unions; 10 advocate organizations; 10 States; and an organization 
representing States. Following are the issues raised by commenters, 
paraphrased excerpts from the most illustrative comments, and 
recommendations they made for changes to this final rule. (Note: The 
May 3, 2011 NPRM proposed to add the Major Change provisions to a new 
Sec.  272.12. However, this section now deals with Computer Matching 
Requirements. The provisions of this final rule are added in a new 
Sec.  272.15. References in this preamble to provisions of the proposed 
rule have been converted from Sec.  272.12 to Sec.  272.15 to reduce 
confusion between the proposed and final rules.) General comments on 
the NPRM include:

General Comments

     We commend FNS for including application processing 
timelines at recertification (proposed Sec.  272.15(b)(1)(iii)) as one 
of the measures it will examine in the event of a major change.
     SNAP is an entitlement program. Therefore, the processes 
related to SNAP eligibility determinations are inherently governmental 
functions and must be performed by public employees. The proposed rule 
also includes changes to the performance reporting system, including 
elimination of the Federal biennial review of the State ME system. The 
proposed changes weaken Federal oversight of SNAP, and we recommend 
that the current requirements be maintained.
     The proposed language creates the impression that States 
may be able to secure waivers or approval for the use of non-merit 
system personnel. We urge FNS to re-affirm its conclusions that it 
strongly disfavors the use of non-merit system personnel and not to 
change its position. The experience of our office and many other 
advocates is that all too often non-merit system personnel lack the 
training, supervision, experience and exposure to agency culture 
necessary to ensure maximum program access.
     The Preamble states that ``FNS has determined that the use 
of non-merit system personnel in these functions can have a detrimental 
impact on the efficient and effective operation of the program,'' but 
then proceeds to explain that FNS must approve the use of non-merit 
system personnel. It is contrary to good sense and effective public 
policy for the Department to authorize this model when the Department 
itself acknowledges that all available evidence to date documents 
costly failures.
     Section 4116 of the FCEA gives FNS the authority to 
identify ``major changes'' and to collect information on those changes, 
but it does not allow FNS to prevent or impair States' ability to 
implement administrative changes that otherwise meet legal and 
regulatory requirements. With this proposed regulation, FNS appears to 
go beyond its mandate under the law. FNS should take a proactive 
approach to assist States to quickly implement successful reengineering 
changes and to use existing SNAP performance data to measure outcomes 
rather than impose additional burdensome reporting requirements.
     If implemented as written, we believe this regulation 
could prevent, weaken or at the very least delay many administrative 
improvements that would otherwise quickly bring a new level of 
efficiency, integrity and customer service to SNAP.
     By not imposing any on-going data collection obligations 
under this provision, the proposed rule denies the Department a 
baseline. If data collection begins only after a problem has arisen, 
the Department will be ill-equipped to assess the severity of the 
problem and may be misled into believing that the problem has abated 
when measures of State performance rise even as the State's performance 
remains far below what it had been. At the same time, the proposed 
rule's failure to require all States to gather and submit basic data on 
application processing, case closures, and the like--and its failure to 
establish common definitions and formats for the collection and 
submission of that data to facilitate inter-state comparison--prevents 
meaningful cross-sectional comparison.
     We request that the Department reconsider the scope of the 
proposed regulation to more closely mirror the Federal law, and to 
minimize duplicative and unnecessary reporting requirements when 
existing performance measures can be used.
     While many of the regulatory changes were proposed to 
address legitimate issues, we are concerned that some of the proposed 
changes would negatively impact the ability for States to administer 
SNAP and the recipients that they serve. Many of the regulatory changes 
also appear to exceed the language and intent of the FCEA, and appear 
to run counter to recent Federal efforts to reduce, simplify and 
streamline regulations.
     The final regulation must be changed to ensure that 
nationally consistent and straightforward data collection from any 
state that makes a major change in their service delivery model is 
publically available.
    As these general concerns indicate, commenters were divided with 
several believing that the proposed rule went too far, even beyond the 
FCEA provisions, in terms of its requirements and others suggesting 
that the final rule should impose additional requirements on States. 
The Department understands and appreciates these differing viewpoints, 
and seeks to provide proper balance in this final rule by allowing for 
effective oversight of SNAP operations while recognizing States' 
resource constraints.
    States are charged with the administration of SNAP and have broad 
discretion in deciding how they operate the program. This rule does not 
restrict States' discretion at all; it simply requires States to inform 
FNS of significant changes and provide information on their impact. In 
FY 2014, SNAP issued over $69 billion in benefits to a monthly average 
of 46.5 million individuals in need. The Federal share of 
administrative costs for States to operate SNAP totaled another $4.13 
billion in FY 2014. Given the importance of SNAP in helping struggling 
families and the level of Federal funding, the Department believes this 
provision of the Act is critical to FNS' meeting its oversight 
responsibilities.

[[Page 2730]]

    There have been several situations in recent years where States 
made major changes to staffing, automated systems or business processes 
that had unintentional, adverse impacts on the accessibility and 
integrity of the program. FNS worked with these States to correct the 
problems, but these efforts were costly to the States in terms of time, 
additional administrative costs, business process modifications, and, 
in some cases, payments to the Department for benefits issued in error. 
If FNS had been aware of these changes earlier and had more detailed 
data, it is likely that some of the difficulties could have been 
minimized or even avoided. Implementation of this final rule is 
intended to provide FNS with the information it needs to fulfill its 
responsibilities to act as a steward of taxpayer funds, protect access 
to SNAP benefits for eligible individuals, and to provide States with 
technical assistance as necessary.
    Many of the comments received from individuals, unions and advocacy 
organizations focused on what appears to be a misunderstanding of the 
intent of the provision of the proposed rule dealing with use of non-
merit system personnel in the administration of SNAP. While this 
provision is discussed in more detail later in this preamble, it is 
important to note that the proposed rule included the use of non-merit 
system personnel as a major change to ensure that the Department is 
aware of States' plans in this area prior to implementation. There was 
no intent to identify the use of non-merit system personnel in the 
administration of SNAP as a State option that the Department would 
support. On the contrary, the Department opposes and has actively 
sought to limit use of such staff in the administration of SNAP due to 
the negative impacts this has had on SNAP households and State 
agencies. The Department also agrees with the comment that States' 
reports on the implementation of major changes should be made available 
to the public.

Discussion of Comments Grouped by Provision and Issue

    Provision/Issues--Sec.  272.15(a)(1): State agencies shall notify 
FNS when they make major changes in their operation of SNAP. State 
agencies shall notify FNS when the plans for the change are approved by 
State leadership, but no less than 120 days prior to beginning 
implementation of the change.
    Public Comments and Recommendations--Ten commenters addressed this 
provision of the proposed rule and their comments included the 
following:
     The lengthy timeframes by which FNS intends to manage 
change is unreasonable. A 120-day advance alert of a change and a 90-
day response time for FNS chokes the State's ability to respond quickly 
and effectively to its customer's needs and changes in the political, 
financial and technological environments.
     The regulation allows FNS 90 days to respond to reports of 
major changes. Added to 120 days, this is over 7 months before a State 
could implement a change. This is unrealistic; FNS response time should 
be no more than 30 days from the date the report was submitted. The 
regulation also doesn't state what should happen if the FNS response is 
not received within 90 days. The regulation should state that 
implementation could proceed if that occurs.
     Because of the potential for additional significant 
reporting requirements (which State systems may not have been 
programmed to provide), and the apparent potential to disapprove of a 
``major change'' or require a change in one or more aspects of 
implementation, States must have sufficient time to include such 
requirements in their implementation and be aware of FNS objections 
well before implementation. Otherwise, the proposed process can 
significantly delay or derail implementation.
     Under standard accounting and budget practices, this 120-
day requirement would effectively reduce the State and counties' 
ability to implement major changes in the second half of the State's 
fiscal year, and would cause delays beyond the initial 120 days. For 
example, an online application may support new applications initially, 
and then later add additional client reporting functions, which are 
modified due to lessons learned.
     It appears that these proposed regulations greatly exceed 
what was originally specified in the bill. The regulations speak of 
notifying FNS 120 days before a major change, while the FCEA merely 
states that if a State implements a major change they must notify FNS 
and provide information as required. Having to submit information prior 
to implementation as opposed to at the point of implementation would be 
a major workload and barrier. There is a big distinction between 
notification and approval, and these regulations tread dangerously into 
having the Federal government require States to seek approval prior to 
making major changes.
     The level of detail that must be included in the initial 
report will potentially add 120 days of lead time to initiatives. 
Although States do conduct much of the analysis in the normal course of 
any policy change, the specific nature and the depth of the analysis 
requirements of the proposed regulations is overly burdensome. We 
recommend that FNS re-evaluate the proposed 120-day timeframe and 
create an evaluation system that is more flexible.
     The 120-day minimum notice requirement is a timeframe that 
the majority of States would be unable to meet. Twenty-six States enact 
new State legislation within 90 days of passage unless otherwise 
declared in the specific legislation. The proposed rule's assumption 
that, ``any properly planned major change would be approved by State 
leadership well in advance of implementation'' is inconsistent with the 
fast-paced, budget-driven environment that exists in today's economy. 
The advance notice requirement also presumes that FNS has authority to 
approve or deny a specific plan of operation beyond the limits of the 
act. The provision requires that States mitigate adverse impacts, but 
does not give FNS approval authority over State agency operations.
     The notification requirement is not sufficient. The final 
regulations should require not only that States notify FNS 120 days 
prior to implementation but also at least 120 days prior to entering 
into legal obligations to implement any proposed major changes.
     Both the requirement that States submit an initial report 
and the 120-day timeframe should be maintained in the final rule.
     Allow States to submit an annual report on major changes 
that were not previously identified thru an Advance Planning Document 
(APD) (e.g., reductions in staffing levels or office closures). FNS 
will still be able to negotiate with States on the additional reporting 
requirements after they have received the annual report.
     FNS response time should be no more than 30 days from the 
date the report was submitted. The longer the time to implement, the 
less chance the change will be implemented.
    Final Rule--To clarify, the provisions of this rule do not give FNS 
authority to approve or deny a reported major change. However, it is 
important to note that existing provisions of the SNAP regulations 
require FNS approval or waivers for a variety of operational and policy 
changes that may constitute or be related to a major change.
    Significant changes to States' automated systems require submission 
of an APD for development and

[[Page 2731]]

procurement. For any major change that does not require waiver 
authority or approval outside of this rule, States need not wait for 
FNS approval of their major change notification or a response to their 
major change notification.
    In response to comments that States sometimes are not aware of a 
major change 120 days in advance of implementation, the Department has 
modified the language in the final rule to account for these 
situations. However, by definition, major changes are significant and 
the Department generally believes that to be well planned and thought 
through, such changes require at least 120 days lead time. Therefore, 
the final rule maintains the 120-day reporting timeframe, but allows 
for rare instances when States cannot report with this amount of lead 
time. In such instances, States will be required to explain the lack of 
lead time.
    Provision/Issues--Sec.  272.15(a)(2): Major changes shall include 
the following criteria (comments on individual criteria discussed 
below):
    Public Comments and Recommendations--While almost all commenters 
offered their thoughts and recommendations on some aspect of the major 
change criteria in this section (as discussed below), a few comments 
were more general. General comments on this section include the 
following:
     The final rules should include a residual category for any 
other major changes in State administration that the Department or a 
State agency identifies as having the potential to adversely affect 
program integrity or access. Even the best program administrators would 
not likely have anticipated all of the challenges the program faces 
today had they attempted to compile a list like this one a decade or 
two ago.
     FNS should categorize major changes as being significant, 
medium or small, and require different reporting based on the scope of 
the change that the State is planning to make. FNS would retain 
discretion to require more reports in unusual circumstances, but this 
change would make the reporting requirements more predictable for 
States and for FNS. For significant changes, we recommend that FNS 
require States to report statewide information that will allow FNS and 
the State to assess whether the State's process is adequately providing 
access to eligible households, with enough detail on sub-state areas 
and sub-populations within the State that problems can be identified 
and corrected.
     FNS should offer States the option to report certain new 
measures on an ongoing, statewide basis as an alternative to reporting 
each separate major change with an initial report and the subsequent 
negotiated data reports. FNS should retain discretion to require 
additional reports if the need arises.
    Final rule--The Department has included in the final rule the 
ability for the Department to define additional criterion under which 
States must report major changes at Sec.  272.15(a)(2)(vi), to cover as 
yet unknown developments in State SNAP operations. The addition of this 
``other'' criteria is based upon advocates' concerns that as time 
passes States could make innovative changes that are not enumerated in 
the regulations, and thus would not be required to be reported. The 
Department has not adopted the suggestion that major changes be 
categorized by ``size.'' After careful consideration, the Department 
believes that this approach would unnecessarily complicate the final 
rule by requiring the development of additional definitions and 
explanation with minor impacts on its implementation.
    The Department has not adopted the recommendation that an option be 
provided that would allow States to begin reporting certain new 
measures on an ongoing, statewide basis as an alternative to reporting 
on each separate major change. Such an option would seem to offer 
States little incentive since they would incur the additional cost of 
ongoing data reporting that may not be needed. In addition, if a few 
States were to adopt this option, it is not clear what FNS would do on 
an ongoing basis with data reported by a limited number of States. On 
the other hand, States can always submit additional information to FNS 
even without a formal option to do so. Additional information might 
also be required, depending on the nature of the major change.
    Provision/Issues--Sec.  272.15(a)(2)(i): Closure of one or more 
local offices that perform major functions for 500 or more SNAP 
households, and there is not another office available to serve the 
affected households within 25 miles or that can be reached via public 
transportation.
    Public Comments and Recommendations--Twelve commenters addressed 
this provision of the proposed rule and their comments included the 
following:
     We agree that office closings are major changes. However, 
even if there is another office within 25 miles or that can be reached 
by public transportation, the change is unquestionably major if the 
nearest office takes more than an hour to get to or costs more than $10 
round trip to reach by public transportation. The final regulation 
should provide a limit on the travel time by public transportation of 
one-hour one-way.
     The final rule should make clear that households are at 
risk of hardship if the nearest office is either at least twenty-five 
miles away or not accessible via public transit. Of course, offices in 
some rural areas inevitably will not be on public transit lines because 
none exist. This rule does not prohibit such situations; it merely 
calls for monitoring of their impacts. The final rule should make clear 
that the closure of any office that takes applications requires 
scrutiny; of course, if another nearby office remains available nearby, 
the closure would not be a major systems change.
     The proposed triggers are unrealistic in many States, 
including a closure that would require clients to travel more than 25 
miles; there are many areas where households already do not live within 
25 miles of a local office.
     We recommend that this section be rewritten to require 
States to report when an office is closed that serves five percent of 
their caseload.
     The opportunity for face-to-face contact for all clients 
in a conveniently located physical setting might be desirable, but it 
is not realistic in today's highly constrained fiscal environment. 
Services for clients will not necessarily suffer if staff is reduced or 
offices are closed. Interactions through electronic and automated means 
allow clients to choose a contact time that is best for them and allows 
them to do so from their home or other location with computer access 
(as is the case with numerous community organizations). Accompanied by 
the appropriate alternative methods and technology, not only can office 
closures be done without negative effects, but they can be done while 
improving program access and integrity. The proposed standards of 25 
miles and 500 households are ridiculously low, and do not even remotely 
reflect the realities of the way business currently is being done by 
the States.
     This definition may inadvertently include certain part-
time or temporary eligibility worker locations, such as mobile vans or 
out-stationed workers and a change in schedule or termination of these 
placements should not be included as a major change. These types of 
temporary office locations are developed as a result of caseload or 
administrative funding decisions that may vary from year to year, and 
should not be considered a major change.
     The harsh financial realities that States are facing may 
leave no choice other than to consolidate their offices.

[[Page 2732]]

However, given the opportunities that clients will have for telephonic 
contact with State agencies, we do not believe that such consolidations 
will result in negative effects, but will likely improve access and 
integrity. In our opinion, office consolidation should not be 
considered a major change.
     Rural States have many areas with more than 25 miles 
between towns. The miles should be increased to 100 or more. Also the 
number of households served should be increased from 500 to 1000.
     In general, the office closure standard should be retained 
in the final rule. The regulation's standard of office closures that 
affect 500 households or more is reasonable and allows States to 
consolidate very small offices where they can achieve administrative 
efficiencies, while still protecting households' ability to appear in 
person to apply and get assistance. The final regulation should be 
revised to clarify that an office closure would count toward the State 
meeting the criterion only if there is another office within 25 miles 
or that can be reached easily via public transportation.
     The final regulation should provide that, to qualify as an 
office that ``performs major functions'', the office must be a place 
where households can file an application and receive assistance in 
filling out the application from a State employee.
    Final Rule--It is important to clarify that the Department does not 
assume that local office closures are always negative, but they do 
reduce program access for some households. As some commenters point 
out, the actions States take to offset such closure may benefit many 
other households. While keeping office closures as a major change 
criterion is necessary to provide FNS with information regarding the 
impact of the closures and what a State is doing to offset the impact 
of the closure, the Department modified this criterion in the final 
rule in response to commenter's concerns. The Department has increased 
the number of SNAP households affected by a local office closure from 
500 to 750 households and changed the distance to another office 
available to serve the affected households from 25 to 35 miles. To 
balance these changes, the Department has also modified the final rule 
by setting the threshold that an office closing that represent the 
lower of 750 households or at least 5 percent of a State's caseload 
will be considered a major change. Thus, for example, if a State had a 
caseload of 14,000 and an office with 701 households is being closed, 
this would require a report because it would be more than 5 percent of 
the State's caseload.
    The reference to public transportation has been eliminated to 
simplify the criteria and because the cost of public transportation 
beyond 35 miles is generally prohibitive for SNAP households. The 
Department has also specified that an ``office performing major 
function'' is an office where households can file an application for 
SNAP in person and receive assistance from merit system personnel. 
Closing a ``temporary'' office or changing the location of a mobile 
unit would not be considered a major change.
    Provision/Issues--Sec.  272.15(a)(2)(ii): Substantial increased 
reliance on automated systems for the performance of responsibilities 
previously performed by State merit personnel (as described in section 
11(e)(6)(B) of the Act) or changes in the way that applicants and 
participants interact with the State's SNAP agency. Establishment of an 
online application process through the Internet or the use of call 
centers to accept applications would not be a major change unless one 
of these methods is expected to account for five percent or more of the 
State's SNAP application. Reporting a major change as required in this 
section does not relieve States of meeting the requirements for new 
system approvals in Sec.  277.18.
    Public Comments and Recommendations--Twelve commenters addressed 
this provision of the proposed rule and their comments included the 
following:
     State systems are regulated under Sec.  277.18. This 
section requires States to obtain prior approval from FNS for automated 
data processing equipment used in the administration of SNAP. Requiring 
States to complete another detailed document to notify FNS of change is 
duplicative, inefficient and unnecessary. The information in the APD 
could be expanded to include the analysis that would have been required 
with the 120-day advance notice.
     Business rules of eligibility determination and benefit 
calculation are already built into the systems that workers use. The 
business rules, design and function of these systems are tested and 
approved by merit system employees.
     Discussion under this criterion again reveals an 
assumption that changes such as call centers will almost by definition 
jeopardize customer service and access. This contradicts the experience 
of many State systems that have dramatically improved client service 
and access by the use of call centers.
     The final rule should make all new or expanded online 
application systems and call center arrangements subject to review as 
major systems changes.
     Document imaging systems should be included as a major 
change. In our experience, the introduction of a document imaging 
system is in fact a major change in office operations which has the 
potential to greatly enhance or undermine program administration and 
client access to benefits.
     The proposed rule identifies the ``replacement'' of the 
State's certification system as an example of a systems change. 
Recommend that the final rule be changed to include significant changes 
to automated systems that fall short of ``replacement,'' such as adding 
major new functions or a web-based tool that feeds into an older 
system.
     The proposed regulation makes clear that the reporting 
requirements for major changes under the proposed rule do not remove 
the separate APD approval requirements under Sec.  277.18. This is an 
important clarification and should be retained in the final rule.
     Recommend the final regulation provide that online and 
telephone applications will be considered a major change unless a State 
can demonstrate to FNS' satisfaction that such applications will not 
account for more than five percent of applications once the new 
application is fully implemented.
    Final Rule--The Department has made several changes to clarify this 
provision based upon the above comments and recommendations. The 
Department has clarified that a State must report the replacement of an 
automated system, adding functionality to an existing automated system 
and changes that impact the way applicants and participants interact 
with SNAP unless the State documents that less than five percent of the 
caseload will be affected by the change. Examples of changes that 
increased reliance on automation that would likely affect five percent 
or more of a State's caseload include, linking a portal (a computer Web 
site that allows greater access and functionality) to the State's SNAP 
eligibility system, introducing online applications, call centers, and 
finger imaging. The Department recognizes that technologies are 
evolving and the major changes that will be reported under this 
criterion may evolve as States find new practices that will improve 
efficiency and customer service.
    Provision/Issues--Sec.  272.15(a)(2)(iii): Changes in operations 
that potentially increase the difficulty of households reporting 
required information. This

[[Page 2733]]

includes implementation of a call center for change reporting, a major 
modification to any forms that households use to report changes, or the 
discontinuation of an existing avenue for reporting changes, (e.g., 
households can no longer call the local office to report a change). 
Modifying selected change reporting policy options or the 
implementation of policy waivers would not be major changes.
    Public Comments and Recommendations--Nine commenters addressed this 
provision of the proposed rule and their comments included the 
following:
     To ensure that changes in reporting practices and 
technologies do not harm households, it is important that this 
criterion be retained in the final regulation. There are two places 
where the proposed regulation needs to be changed in light of the other 
proposed rule that was published in the Federal Register on the same 
day regarding change reporting rules. First, this proposed regulation 
at Sec.  272.15(a)(2)(iii) uses the example that States might 
``[discontinue] an existing avenue for reporting changes, e.g., 
households [could] no longer call the local office to report a 
change.'' This example should be removed or refined. In addition, FNS 
should remove the clause that suggests that policy waivers could be 
needed to implement a change reporting policy option.
     The final rule should treat as a major systems change any 
change in the systems that households must use for reporting changes 
except a simple switch between the reporting options allowed under 
section 6(c) of the Act.
     Discussion under this criterion appears to assume that 
changes such as call centers will almost by definition jeopardize 
customer service and access. This contradicts the experience of many 
State systems that have dramatically improved client service and access 
by the use of call centers.
     This section should be rewritten so that States are 
required to report only when reducing reporting options or requiring 
one specific process. Likewise, changing a form does not rise to the 
level of change intended by the Act.
     Considering a modification to, or even a complete redesign 
of, a form for reporting to be a ``major'' change represents an 
unwarranted and unnecessary level of intrusion into the States' 
administration of the program.
     This seems to presuppose that portals built by States for 
change reporting will automatically derive a negative impact. Today, 
customers can contact the agency in a wide variety of ways, e.g., via 
the telephone at multiple locations, through Web sites and in person at 
community partners and service locations.
    Final Rule--Based upon comments, the Department has revised the 
final rule to: (1) Add as a major change the adoption of internet 
portals to report changes in household circumstances; (2) clarify the 
example from the proposed rule to focus attention on a change that 
would limit participants' reporting avenues; and (3) clarify that 
States selecting reporting options allowed under the rules or obtaining 
a waiver from FNS are separate actions, but that neither would be 
considered a major change.
    Provision/Issues--Sec.  272.15(a)(2)(iv): Use of non-merit pay 
staff to perform functions previously performed by merit personnel. 
While the interview and the eligibility decision functions must be 
performed by merit personnel (unless FNS approves a waiver request 
under Section 17 of the Act), other functions including obtaining 
verification of household circumstances, accepting reports of changes 
in household circumstances, accepting applications and screening 
households for expedited service may be performed by non-merit 
personnel (although FNS must approve a State's use of non-merit pay 
staff before matching funds will be provided for the performance of 
these functions). Functions such as data entry and document imaging do 
not involve interaction with households, and consequently, the use of 
non-merit pay staff in activities of this type would not constitute a 
major change.
    Public Comments and Recommendations--This proposed provision 
received attention from 105 commenters (10 advocacy/legal aid groups, 
the American Public Human Services Association (APHSA), 5 States, 4 
unions, and 85 individuals, many, who appeared to be case workers/union 
members that submitted form letters). Except for APHSA and the States, 
the commenters overwhelmingly opposed inclusion of this criterion as a 
major change. The reason most often cited is that including use of non-
merit system personnel in the definition of a major change gave the 
appearance that the Department accepted such a change as an allowable 
State choice. Many commenters acknowledged that the preamble to the 
proposed rule expressed the Department's opposition to using non-merit 
system personnel, outlined the limitations in the Act on the functions 
such staff may perform, and explained that, without approval, FNS may 
not match funding for non-merit system personnel working in SNAP 
operations. However, several commenters felt that any use of non-merit 
system personnel should be prohibited in the rule. There was also a 
recommendation that any significant increase in reliance on other 
agencies, including ``community partners'' and other non-profit or 
local government entities, should be considered a major systems change. 
The primary recommendation from commenters is to remove this criterion 
from the definition of a major change. Some commenters suggested that 
information on use of non-merit system personnel could be obtained by 
amending Sec.  272.15(a)(2)(v) on decreases in staffing levels to 
accomplish the same goal. If that criterion were amended to say that 
cuts in merit systems staff triggered the report, then any State that 
tried to replace merit systems personnel with private employees would 
meet the trigger criterion. APHSA and the States that commented on this 
provision generally objected to the Department's position that use of 
non-merit system personnel will result in poor program administration. 
They felt that the Department's position reduces States' ability to be 
innovative in improving program operations and respond to reduced 
budgets and increased caseloads. They felt it is inappropriate to 
prejudge based upon the experience in a couple of States. Specific 
comments included the following:
     The final rule should explicitly identify all functions 
that may require discretion or professional judgment as ``eligibility 
decision functions'' that may not be privatized.
     Further clarification is requested on the issue of the 
specific functions that non-merit system personnel may perform. Any 
significant increase in reliance on other agencies, including 
``community partners'' and other non-profit or local government 
entities, should be considered a major systems change.
     While the statute names this criterion as one that FNS can 
examine, it does not allow the agency to prejudge the impact of using 
non-merit system personnel.
     The final regulation must be changed to ensure 
privatization is not codified and legitimized in Federal regulations as 
an allowable option.
     The preamble to the proposed rule acknowledges that 
privatization of work currently performed by public employees 
constitutes a major change and that States would be required to report 
this change to FNS. The Department acknowledges that non-merit system 
personnel interacting directly with households has the potential of 
increasing the burden on

[[Page 2734]]

households applying for and participating in SNAP. It is contrary to 
good sense and effective public policy for the Department to authorize 
this model when the Department itself acknowledges that all available 
evidence to date documents costly failures.
     We are very much opposed to the apparent legitimization of 
the use of non-merit system personnel to perform critical SNAP 
functions. In our experience, private entities do a poor job of 
executing traditional State functions. Even well-meaning nonprofit 
organizations are unable to maintain timeliness, statewide uniformity 
and accuracy when they take over activities that have traditionally 
been done by merit system personnel. For-profit entities have even 
greater incentive to cut corners, regardless of the consequences for 
households. We urge FNS to strike proposed Sec.  272.15(a)(2)(iv).
     Many States have instituted fundamental delivery system 
changes hastily, such as closing offices and opening call centers. 
Privatized call center operations in two States proved to be disastrous 
for SNAP beneficiaries and applicants.
     There is no reason to codify a practice that the 
Administration opposes and would not allow in the future.
     The proposed language creates the impression that States 
may be able to secure waivers or approval for the use of non-merit 
system personnel. If FNS's position remains that it is not likely to 
grant a waiver to use non-merit system personnel for interviews and 
certification, and that it has determined that Federal financial 
participation (FFP) is not appropriate for use of non-merit system 
personnel in other client contacts, we recommend that the final 
regulation specify this policy so as not to encourage States to go down 
this path.
     We strongly oppose the provisions in the proposed 
regulation that would allow the privatization of the SNAP certification 
process and the waiver of the merit system requirements. The Department 
previously advised States that it did not support privatization of 
portions of the SNAP certification process. The preamble to the 
proposed regulation notes these same concerns.
    Final Rule--Many comments on this provision of the proposed rule 
reflected a lack of clarity regarding the Department's intent. It is 
important to clarify that it was never the Department's intent to 
condone the use of non-merit system personnel in SNAP. On the contrary, 
the intent was to require States to report to FNS if they planned to 
begin using such staff in the administration of the program. The 
preamble to the proposed rule stated that, ``In addition, FNS has 
determined that use of non-merit system personnel in these functions 
can have a detrimental impact on the efficient and effective operation 
of the program and, as a consequence, must approve States' use of such 
staff before sharing in the costs of non-merit staff in the performance 
of the above functions.'' The Department continues to believe that the 
use of non-merit system personnel can be detrimental to program 
performance and service to participants and in April 2013, reiterated 
its concerns and policy regarding outsourcing in a letter to all 
States' Governors. In response to the significant number of comments, 
the Department has modified this provision in the final rule. The final 
rule requires States to report on any reduction or change of the 
functions or responsibilities currently assigned to SNAP merit system 
personnel staff. This will include, but not be limited to, relieving or 
supplementing merit system personnel's duties performed in the SNAP 
certification process, handling reported changes, responding to 
inquiries, handling complaints, collecting claims, investigating 
program violations or conducting SNAP related reviews. With this change 
in the final rule, a State will be required to notify FNS if it intends 
to change the role of its merit system personnel in any way that could 
impact SNAP operations, including the increased reliance on automated 
systems.
    Provision/Issues--Sec.  272.15(a)(2)(v): Any decrease in staffing 
levels from one year to the next of more than five percent in the 
number of State or local staff involved in the certification of SNAP 
households. This would include decreases resulting from State budget 
cuts or hiring freezes, but not include loss of staff through 
resignation, retirement or release when the State is seeking to replace 
the staff.
    Public Comments and Recommendations--Fourteen commenters addressed 
this provision of the proposed rule and their comments included the 
following:
     Delete the language requiring States to notify FNS of 
office closures or reductions in staffing levels as it goes beyond the 
authority of the statute.
     We strongly support including large decreases in staffing 
levels as one of the types of State changes that would trigger a State 
to report to FNS. This criterion should be retained in the final 
regulation. Also recommend that FNS: Add a staff cut of more than ten 
percent over three years as another measure of a decrease in staffing 
levels that would need to be reported; clarify that a decrease in merit 
system personnel would need to be reported; provide that cuts in State 
staff would not count ``losses of staff that occur through resignation, 
retirement or release when the State is seeking to replace the staff''; 
and strengthen the final rule to clarify that the State must be seeking 
to replace the staff within the year to not warrant a report.
     We suggest that FNS identify an additional baseline for 
staffing that would also trigger the application of this regulation. 
For example, a measure of cases per certification worker might be 
appropriate, so that States that have relatively few workers for the 
size of their caseload would be subject to this regulation in the event 
of staffing reductions, even if the five percent threshold were not 
met.
     Support the recognition that adequate staffing is critical 
if States are to provide adequate service. However, the proposed 
regulations should be modified to recognize that ``staffing levels'' 
are not a measure of the absolute number of full-time equivalents, but 
rather a measure of the ratio of staff to the number of cases. If the 
ratio of staff to SNAP cases decreases either because of staff 
reductions or because of an increase in the caseload, the staffing 
level has declined even if the number of staff is constant.
     The final rule should make clear that it refers to full-
time equivalent (FTE) staff working on SNAP. The final rule should 
require States to report, on a county or regional basis, the FTE staff 
administering the program each month.
     This proposal ignores scenarios in which staff reductions 
could be accompanied by well-known efficiency measures such as adoption 
of broader categorical eligibility rules, the six-month reporting 
option, or the implementation of an efficient new method of using 
electronic tools for verification of income. The proposed rule could 
also have an unusually severe impact on locally administered offices; 
if the five percent trigger is applied to them as well, some are so 
small that they might have to report the elimination of a single 
employee or even reductions in one employee's hours.
     A prescribed reduction reporting threshold of five percent 
would be difficult for States to track. This is true especially if 
States must include loss of staff to budget cuts and temporary hiring 
freezes. This requirement should be removed from the proposed rule.

[[Page 2735]]

     As written, it is unclear how the proposed rule would be 
applied to those States that are State-supervised but locally-
administered. We urge FNS to consider only requiring the States to 
report aggregate, statewide reductions in State and local staffing, not 
reductions at each local office.
     Reductions in staffing levels or the imposition of hiring 
freezes are budget actions that may not be known to or determined by 
the State or local agencies until after a budget action has occurred, 
and it may be impossible to notify FNS 120 days in advance. This 
definition of a five percent decrease in staff is not explicitly 
identified in the FCEA, and imposition of this requirement goes beyond 
the intent of the legislation.
     This will be difficult to administer. Staff reductions are 
controlled by the Governor and the Legislature, not State agencies. 
Also, five percent is unreasonable. The five percent should be 
increased to at least ten percent at a minimum. This rule should be 
changed to state that if staff reductions of greater than ten percent 
are mandated, FNS should be notified of the change and how the State is 
handling the change.
     The final rule should require States to report, on a 
county/regional basis, the FTE staff administering the program by 
month.

Final Rule

    The final rule retains the basic requirement that a decrease of 
more than five percent in the number of State or local merit system 
personnel involved in the certification process of SNAP households from 
one year to the next will be considered a major change. In addition, 
the Department agreed with commenters that cumulative decreases beyond 
a single year can have a significant impact. Consequently, the final 
provision has been modified to also make a decrease of more than eight 
percent in the number of State or local merit system personnel involved 
in the certification process of SNAP households over a two year period 
a major change.
    Also in response to commenters' suggestions, the language of this 
provision has been clarified and strengthened. A reference to decreases 
across the State was added since this criterion is intended to apply to 
the total number of merit personnel in States rather than in each 
individual local office or county within a State. Major changes include 
decreases resulting from State budget cuts or hiring freezes, but do 
not include loss of staff through resignation, retirement or release 
when the State is seeking to replace the staff within a 6-month 
timeframe. Evidence of the intent to replace staff includes advertising 
to fill positions and having sufficient funding in the personnel budget 
for the new hires.
    It is important to note that this criterion defines when States are 
to report to FNS. The notification and accompanying analysis will allow 
FNS to determine whether there is a need for additional information.
    Provision/Issues--Sec.  272.15(a)(3): When a State initially 
reports a major change to FNS, as required in Sec.  272.15(a)(1), an 
analysis of the expected impact of the major change shall accompany the 
report. The initial report to FNS that the State is making one of the 
major changes identified in Sec.  272.15(a)(2) shall include a 
description of the change and an analysis of its anticipated impacts on 
program performance.
    Public Comments and Recommendations--Seven commenters addressed 
this provision of the proposed rule and their comments included the 
following:
     FNS is correct to require States in the initial report to 
describe the features and timing of the planned major change, what it 
is intended to accomplish, how it will be tested, piloted, and 
monitored and the expected effects on eligibility workers and 
recipients. All of these elements should be maintained in the final 
rule.
     The word disproportionately should be deleted from 
proposed Sec.  272.15(a)(3)(ii)(E). Also, the two ``ands'' in the 
paragraph should be changed to ``ors''. Not all of these types of 
households need to be affected or features of the certification process 
need to be more difficult. If one is true, then the clause should 
apply.
     FNS should add one additional item to the list of items in 
the initial report: A discussion of the budgetary effects of the 
change. This item should include the estimated cost of any systems 
change, as well as the expected overall budgetary impact of the change 
for State and Federal SNAP costs, including benefit costs and 
administrative costs.
     The five general analysis requirements are well-rounded, 
pulled from existing data, and should be sufficient to meet the 
intentions of the Act.
     The final rule should require States to explain any stages 
in implementation, either as the change is fully implemented in one 
area or as it rolls out across multiple areas (whether or not it 
eventually becomes statewide).
     The final rule should require the State to disclose what 
testing it has undertaken prior to implementing the change.
     Several of the factors listed in proposed Sec.  
272.15(a)(3)(ii) are not so much measures as they are aspects of 
program performance. It should also include: The State's participation 
rate; share of households leaving the program at the conclusion of 
their certification periods; and the percentage of applications 
(divided by expedited initial applications, non-expedited initial 
applications, and applications for recertification) that are approved, 
are denied for substantive ineligibility (or eligibility for zero 
benefits), and are denied for procedural reasons.
     We support proposed Sec.  272.15(a)(3), which details the 
type of information that States must provide to FNS in connection with 
a planned major change. However, we suggest the regulation require 
States to analyze the impact of the change on timely processing of 
recertifications. The final rule should also require States to have a 
meaningful process for consulting with stakeholders (including program 
beneficiaries, advocates, community organizations and anti-hunger 
groups).
     The regulations should require States intending to 
implement major changes to submit to FNS copies of procedures and other 
documents demonstrating that the State has taken steps to minimize the 
potential negative impact of the proposed change on individuals with 
disabilities.
     FNS has quite sensibly acknowledged that the data 
collection requirements mandated by section 4116 of FCEA, as far as 
possible, should use data and reports already provided or available to 
meet these requirements.
     Much of the data in question will be a normal part of any 
APD request in any event. The potential requirement for county-level 
impact data will be particularly difficult to implement, and that 
caseload sizes in many counties are low enough that the validity of 
data will be highly questionable.
     The data collection mandates in this regulation would 
largely duplicate existing information that FNS has, and create 
increasingly burdensome data collection and report preparation.
     FNS does an excellent job summing up what the Act requires 
in the opening paragraph. The remaining information is overly detailed, 
rigid and so burdensome to States that it will stall innovations, and 
prevent access and program integrity improvements in the SNAP program.
     States do not have the time or resources to address every 
issue required to be reported.

[[Page 2736]]

Final Rule

    The final rule retains the basic requirement that States' reports 
of major changes include a description of the change to be implemented 
and an analysis of its expected impacts on SNAP. In addition, the 
Department agreed with commenters that additional data items are 
necessary. Consequently, the final provision has been modified to add 
the following:
     The projected administrative cost of the major change in 
the year it is implemented and the subsequent year;
     A description of any consultation with stakeholders/
advocacy groups or public comment obtained regarding the planned 
changes; and
     Procedures the State will put in place to minimize the 
burdens on people with disabilities and other populations relative to 
the change.
    Also, in response to commenters' suggestions, the language of Sec.  
272.15(a)(3)(ii)(E) as amended by the final rule has been clarified to 
replace the use of the word ``and'' in two places with the word ``or''. 
While seemingly minor, this change is important in examining the 
potential effect of major changes in SNAP on vulnerable populations.
    Some suggestions made for additional data to be reported were not 
adopted because the Department could not determine how the data would 
be used in making its determination or what, if any, data would be 
needed from the State beyond the automatic reporting requirements 
discussed below.
    Provision/Issues--Sec.  272.15(b)(1)-(5): Sec.  272.15(b)(1) FNS 
will evaluate the initial report provided by a State to determine if it 
agrees that the change is, in fact, major and, if so, will propose what 
information it will require from the State. While FNS reserves the 
right to require the information it needs to determine the impact of a 
major change on integrity and access in SNAP, FNS will work with States 
to determine what information is practicable, and require only the data 
that is necessary and not otherwise available from ongoing reporting 
mechanisms. Depending upon the nature of the major change, FNS will 
require more specific or timely information concerning the impact of 
the major change (Please see the NPRM for full text of the proposed 
provision).
    Sec.  272.15(b)(2): Additional data that States could be required 
to provide, depending upon the type of major change being implemented. 
(The rule goes on to give specific examples of the types of data that 
may be required relative to different types of major changes. Please 
see the NPRM for full text of the proposed provision).
    Sec.  272.15(b)(3): Depending on the type of major change, its 
implementation schedule and negotiations with FNS, States shall submit 
reports on their major changes either monthly or quarterly.
    Sec.  272.15(b)(4): States shall submit reports for one year after 
the major change is fully in place. FNS may extend this timeframe as it 
deems necessary.
    Sec.  272.15(b)(5): If FNS becomes aware that a State appeared to 
be implementing a major change that had not been formally reported, FNS 
would work with the State to determine if it is a major change, and if 
so proceed as required by this section.
    These provisions are closely related and commenters' thoughts and 
recommendations are best examined together.
    Public Comments and Recommendations--Fifteen commenters addressed 
these provisions of the proposed rule and their comments included the 
following:
     Collecting detailed data with case reviews is particularly 
burdensome for State and local staff during transition periods, and 
could negatively impact customer service.
     Support the proposed regulation's detailed discussion of 
the types of information that FNS will require from the State as to the 
impact of the change. We commend FNS for its careful identification of 
the types of information needed to assess the effects of major changes, 
especially as they pertain to the effects on beneficiaries.
     The proposed regulation at Sec.  272.15(b)(2)(iii)(B) 
through (b)(2)(iii)(D) on call centers requires information on ``hold 
time,'' ``wait time'' and ``abandoned calls''. The final rule should be 
amended to also include instances when a caller cannot get through 
(e.g., busy signals or dropped calls).
     Particularly troubling is the emphasis of the proposed 
rules on potentially requiring county level impact data for changes 
deemed to be ``major''. Again, such a requirement does not reflect the 
reality of the way many States operate. Even in those States that have 
county project areas, caseload size and case activity volumes in a 
given county often can make the gathering of the representative samples 
necessary to evaluate the effect of a change on that county difficult, 
and the confidence level of short term evaluations questionable.
     FNS should categorize major changes as being small, medium 
or significant and require different reporting based on the scope of 
the change that the State is planning to make. FNS would retain 
discretion to require more reports in unusual circumstances, but this 
change would make the reporting requirements more predictable for 
States and for FNS.
     FNS should offer States the option to report certain new 
measures on an ongoing, statewide basis as an alternative to reporting 
each separate major change with an initial report and the subsequent 
negotiated data reports.
     The final rule should sort major systems changes into 
categories based on their likely risk. More data should be required for 
riskier changes.
     We recommend that the exact measures be made more explicit 
in the final regulation and that FNS' discretion to introduce new 
measures and enter into negotiations with States be narrowed. These 
measures include sub-state information or case reviews to gather more 
detailed information on measures FNS already has at the State level, 
such as payment accuracy, negative error rates and timeliness.
     States should have an ongoing data collection system for 
monitoring their monthly performance in processing of applications and 
recertifications. FNS should require all States to have such a data 
collection system, regardless of whether the State is embarking on a 
major system change.
     To the extent that the final rule continues to rely upon 
case-by-case negotiated data requests rather than a stronger baseline 
of data provided on an on-going basis by all States, it also should 
specify in greater detail the data that the Department is likely to 
desire and indicate that the Department will attempt to avoid seeking 
more data than those elements except for the riskier categories of 
changes.
     FNS should use the extensive data already collected in 
SNAP except in the most unusual situations.
     The level of detailed data reporting that is being 
proposed may not be appropriate for all major changes, unless the scope 
of major changes is significantly narrowed. While the proposed Federal 
regulations specify that FNS will negotiate with the States on the 
reporting requirements and that FNS will utilize available data (e.g., 
quality control data), the amount of information that is required would 
be administratively onerous and costly given the potentially high 
degree of frequency that such changes could occur, conflicts with the 
Paperwork Reduction Act, and neither the counties nor the States have 
the additional staff resources.
     A State implementing a major change should submit data 
regarding

[[Page 2737]]

individuals with disabilities including the numbers of individuals who 
requested and received accommodations in the application, interview, or 
recertification process for disabilities, and the types of 
accommodations requested and provided (some State benefit agencies 
already have policies requiring the agency to track this information).
     The final rule should provide for careful evaluation of 
the sufficiency of the State agency's fallback plan, including the 
availability of the resources necessary to carry it out. The final rule 
should provide that returning to the prior method of administration 
should presumptively be one of the elements of the State agency's 
fallback plan unless the State agency presents compelling reasons why 
it should not be.
     The break-out of negative errors is important, but needs 
to be augmented. It also should include break-outs of denials between 
substantive and procedural. Moreover, it should be broken-out to 
identify problems affecting specific types of households, such as 
elderly persons who may have less comfort with technology or limited 
English proficient households who may have difficulties with online 
systems not in their language.
     The proposed regulations reflect a common sense approach 
to analyzing the effects of a major change. States with effective 
administration should already be collecting and analyzing the types of 
data specified in Sec.  272.15(b)(3) regardless of Federal regulations.
     Nowhere in the Act is FNS given the authority to approve 
or deny a change a State intends to make, and yet throughout the 
proposed rule this authority is not only implied, but is assumed.
     One commenter recommended that States be required to 
submit the data for each month on a quarterly basis for two years after 
the change is implemented (unless States have adopted the recommended 
ongoing reporting option).

Final Rule

    The final rule retains the requirement that States will be required 
to report on the impact of major changes. However, the most significant 
modification to this final rule is the adoption of the suggestion from 
commenters that key ``automatic'' reporting requirements be established 
for all major changes. This is in response to commenters' suggestions 
that the regulations prescribe basic data that FNS will require for all 
major changes, as certain data elements would be useful in examining 
the impact of any major change in a State's operation. While the final 
rule retains FNS' ability to require additional information on a case-
by-case basis (Sec.  272.15(b)(5)), the final rule establishes minimum 
data reporting requirements for all major changes, which will also 
enable States to build these requirements into their plans and systems 
when making major changes.
    This change has required some reorganization of the provisions as 
they appeared in the proposed rule. Sec.  272.15(b)(1), (2) and (3) 
identify the data elements that shall be reported for all major 
changes, as well as those that must be broken out specifically for 
households with elderly and disabled members and those that are to be 
reported at the sub-State level (e.g., counties or local offices). 
Reporting this information for the most vulnerable SNAP households is 
consistent with the Act and the need to identify and address adverse 
impacts on program access for households that may struggle with change 
more than others. The Department agrees with the comments regarding 
local level reporting that sub-state information is generally necessary 
for States and FNS to understand, monitor, and address adverse impacts 
of a major change. The impacts can be uneven across urban and rural 
areas, for example, and can vary based upon the how and when a major 
change is rolled out in different jurisdictions. This is particularly 
true in county administered/state supervised situations. Since States 
generally collect sub-state information for their own management 
purposes, the Department expects the required inclusion of this 
information in reports to FNS should require minimal additional effort 
for most States. Therefore, Sec.  272.15(b)(3) as amended by this final 
rule requires the majority of the key ``automatic'' reporting 
requirements be disaggregated to provide sub-state information. Because 
States utilize different units of analysis for management and other 
purposes, the regulation allows sub-state data to be provided by 
individual districts, counties, project areas, or local offices, 
subject to consultation with and approval by FNS. Section 272.15(b)(4) 
as amended by this final rule retains the provisions from the proposed 
rule that FNS will evaluate the major change to determine what 
reporting requirements will be necessary. In light of the ``automatic'' 
requirements for all major changes discussed above, this determination 
will focus on what, if any, additional reporting requirements will be 
necessary.
    The recommendation that reporting requirements be applied to all 
certification activities that are carried out using other telephonic 
methods has not been adopted since States have been using telephones in 
their operation of SNAP for decades. However, using telephonic 
technology to accept applications or relying upon an interactive voice 
response system to provide case status information to participants 
would be a major change under Sec.  275.15(a)(2)(ii) as amended by this 
final rule.
    Some comments reflected misunderstandings of the proposed rule. As 
noted earlier, this final rule does not provide FNS with approval 
authority over States' plans to make a major change. Nor does the Act 
give the Department the authority to require additional ongoing 
reporting on State performance and operations beyond the context of 
major changes.
    Some comments suggested that requiring additional reporting 
indicates an assumption that major changes are detrimental to SNAP 
participants. On the contrary, FNS has long supported States' efforts 
to modernize and agrees that many State innovations have improved 
operations. Nevertheless, there have been times when well-intentioned 
changes have had adverse impacts on program access or integrity and 
FNS, not fully informed of States' plans, was unable to work with the 
State and help mitigate these impacts. Furthermore, certain changes 
have a greater inherent potential to adversely affect SNAP operations 
if they are not compensated for appropriately, e.g., office closings or 
staff reductions.
    With regard to the suggestion that the final rule categorize major 
changes as being small, medium or significant, and require different 
reporting based on the scope, the Department has not adopted this 
suggestion because it would complicate the rule and limit FNS' 
discretion without significantly streamlining the process for States or 
FNS. This rule is intended to provide FNS with the ability to examine 
major changes individually and require additional information beyond 
the automatic reporting requirements. For all major changes, FNS will 
also look to the data it already collects on an ongoing basis, i.e., 
quality control data. While FNS is interested in knowing what 
contingency plans a State may have, the suggestion that FNS should 
require States to have specific fall back plans is beyond the scope of 
the Act.
    The recommendation that the provisions of the final rule be applied 
to major changes made prior to its effective date has not been adopted 
for several reasons. First, States would have to obtain historical data 
on the impact of

[[Page 2738]]

the change and such data is typically more difficult to obtain. 
Secondly, States' reports received on the impact of these older changes 
would be out of date and therefore less useful to FNS in monitoring 
their impact. Finally, the Department only requires retroactive 
implementation of final rules when it is both practical and there is a 
compelling need; neither of which apply to this rule. The 
recommendation for two years of monthly reports would exceed the 
Departments needs and place an unnecessary burden upon States. The 
suggestion that States be required to submit the monthly data on a 
quarterly basis has been adopted in the restructured final rule in 
Sec.  272.15(b)(5). While the one year requirement is retained from the 
NPRM in this final rule at Sec.  272.15(b)(6), FNS may extend this 
timeframe if necessary. The provision from Sec.  272.15(b)(5) in the 
NPRM is retained in this final rule at Sec.  272.15(b)(7).
    Provision/Issues--Sec.  272.15(b)(6): If the data a State submits 
regarding its major change or other information FNS obtains indicates 
an adverse impact on SNAP access or integrity, FNS would work with the 
State to correct the cause of the problem and provide whatever 
technical assistance it can. Depending upon the severity of the 
problem, FNS may require a formal corrective action plan as identified 
in Sec.  275.16 and Sec.  275.17.
    Public Comments and Recommendations--Three commenters addressed 
these provisions of the proposed rule and their comments included the 
following:
     Strongly recommend that the final regulation be 
strengthened to identify the full range of action that FNS is 
authorized to initiate in response to information from the State about 
planned major systems changes.
     Although requiring correction of problems that have arisen 
is sensible and appropriate, it puts the Department and the State 
agency in the all-too-familiar position of playing catch-up after a 
problem has occurred. The final rule should restructure this paragraph 
to focus on the implementation of the State agency's fallback plan or 
plans.
     ``Adverse impact'' is not defined, which could lead to 
subjective and inconsistent results among regions regarding when a 
corrective action plan is imposed. Existing performance measures 
already have standards that States must meet, and corrective action 
plans can be required for failure to meet those standards. At best, the 
new process is duplicative; at worst, it opens up an avenue for 
corrective action plans for anything that FNS may decide has an 
``adverse impact.''

Final Rule

    As explained earlier, the Department has neither the authority to 
approve or deny (unless a State's plans violate a provision of the Act 
or SNAP regulations) a State's plans, nor can it require that States 
develop fallback plans. With regard to when a State would be required 
to submit a corrective action plan due to an adverse impact, the 
Department agrees that the provisions of this rule could open another 
avenue for identification and correction of deficiencies in a State's 
operation; this is the intent of the Act. Therefore, the provision (now 
at Sec.  272.15(b)(8)) as amended by this final rule remains unchanged 
from the NPRM.
    Provision/Issues--Sec.  275.3(a): FNS shall conduct management 
evaluation reviews of certain functions performed at the State agency 
level in the administration/operation of the program. FNS will 
designate specific areas required to be reviewed each fiscal year.
    Public Comments and Recommendations--Thirteen commenters addressed 
these provisions of the proposed rule and their comments included the 
following:
     FNS and States should be engaging in additional monitoring 
activities of local service delivery, not fewer. The changes FNS 
proposes to ME reviews have no basis in statute -the 2008 FCEA made no 
changes to reduce FNS's oversight role. ME reviews are also the primary 
way that FNS monitors civil rights compliance. The final rule must not 
back away from FNS's commitment in these areas.
     Caseloads have increased dramatically in recent years 
while, at the same time, the number of staff to process cases has not 
kept pace. This development points to the need for more, not less 
frequent, reviews because of the risk of access barriers. We recommend 
that the final rule reject these changes to the ME regulations and keep 
the current requirements.
     The proposed regulation will weaken the longstanding 
requirement for ME reviews of State certification operations, and fails 
to require straightforward, publically available and nationally 
consistent data collection from States making major changes in their 
service delivery model. The proposal eviscerates a decades-old 
requirement that States and FNS conduct ME reviews of State 
certification operations. Such ME reviews are the cornerstone of FNS 
oversight of client access and program integrity.
     The solution to staffing shortages is to prioritize. 
Reducing oversight of the largest program in the Department is not a 
sensible means of prioritizing. If the problem is an insufficient 
Federal Program Administration appropriation, the Department should 
realign staffing of the various food assistance programs to be more 
proportional to the taxpayers' dollars at stake in each.
     Oppose the proposed changes that eliminate the requirement 
for an annual review of certain functions performed at the State agency 
level and the elimination of the requirement for a biennial review of 
the State's ME system. The proposed regulation, which lacks any 
specified frequency for reviews, could lead to FNS's abdication of 
these reviews for all practical purposes, now or in the future. The 
requirement that FNS designate specific areas for review each year does 
not necessarily mean that FNS must in fact conduct such reviews.
     FNS should define what qualifies as ``at-risk'' to provide 
for consistency in the different regions. Providing the data for these 
``off-site'' activities is more time-consuming for the States unless 
Federal reviewers are given total access to State systems.
     We agree with the increased flexibility given to FNS in 
the conduct of MEs under the proposed rule and encourage that similar 
flexibility and ability to target reviews be given to the States in the 
conduct of their annual MEs.
     We appreciate FNS' targeted approach and suggest that the 
reviews be less targeted by frequency and size, but more by performance 
and need.
     We disagree with FNS removing its own burdens in the ME 
process while keeping the States' current requirements basically 
unchanged.
     The term ``at-risk'' is vague. Recommend keeping the 
current requirement of a biennial review of the State's ME system. 
Having scheduled Federal reviews on a biennial basis would allow States 
to plan accordingly.
     State and Federal ME requirements should not be changed. 
Proposals to weaken them should not be included in the final rule.

Final Rule

    Based upon comments received, the Department is withdrawing the 
changes to this provision from the final rule. The Department agrees 
that monitoring SNAP is a high priority responsibility for FNS and 
supports the goal of maintaining sufficient resources to

[[Page 2739]]

enable proper oversight of SNAP operations.
    Provision/Issues--Sec.  271.2: Amend the definitions of Large, 
Medium, and Small project areas for ME review purposes.
    Public Comments and Recommendations--Five commenters addressed 
these provisions of the proposed rule and their comments included the 
following:
     These changes in the definitions of project areas are 
likely to have significant negative impacts on civil rights compliance 
within SNAP. Reducing the frequency or intensity of ME reviews will 
have the effect of reducing efforts to identify and correct civil 
rights violations.
     We recommend that the final rule reject these changes to 
the ME regulations and keep the current requirements.
     We agree with the need for a modification to the 
definitions of large and medium project areas but contend that the 
revised definitions do not reflect the reality of the larger States. We 
recommend further review of these proposed standards and even higher 
caseload thresholds in order to reflect the project areas of the large 
States.
     These were the definitions that were in effect for 
California until FY 2011. Given the limitation of staff and resources, 
this new definition would create a workload issue in California. We 
recommend redefine project areas as follows:
    [cir] Large--those with an average monthly caseload of more than 
50,000 cases.
    [cir] Medium--those with an average monthly caseload of between 
25,000 and 50,000 cases.
    [cir] Small--those with an average monthly caseload up to 24,999 
cases.

Final Rule

    Comments on this provision of the rule were mixed with some 
commenters believing that the provision of the proposed rule did not go 
far enough in reducing the frequency with which States are required to 
review their project areas. The Department acknowledges that while more 
monitoring of SNAP is generally more desirable than less monitoring, 
the quality of the monitoring must also be a factor. Reductions in 
States' budgets have put pressure on staffing for SNAP and this 
provision allows States to do a better job in the ME reviews that are 
conducted. Furthermore, the project area sizes in the current rules 
were set when the program was less than half its current size in terms 
of participation. Therefore, this provision of the final rule remains 
unchanged from the proposed rule.

List of Subjects

7 CFR Part 271

    Food stamps, Grant programs-social program, Reporting and 
recordkeeping.

7 CFR Part 272

    Alaska, Civil rights, SNAP, Grant programs-social programs, 
Penalties, Reporting and recordkeeping requirements, Unemployment 
compensation, Wages.

7 CFR Part 275

    Administrative practice and procedure, SNAP, Reporting, and 
recordkeeping requirements.

    Accordingly, 7 CFR parts 271, 272 and 275 are amended as follows:

PART 271--GENERAL INFORMATION AND DEFINITIONS

0
1. The authority citation for Part 271 continues to read as follows:

    Authority:  7 U.S.C. 2011-2036.


Sec.  271.2  [Amended]

0
2. In Sec.  271.2:
0
a. Amend the definition of Large project area by removing the number 
``15,000'' and adding in its place the number ``25,000''.
0
b. Amend the definition of Medium project area by removing the numbers 
``2,001 to 15,000'' and adding in their place the numbers ``5,000 to 
25,000''.
0
c. Amend the definition of Small project area by removing the number 
``2,000'' and adding in its place the number ``4,999''.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

0
3. The authority citation for Part 272 continues to read as follows:

    Authority: 7 U.S.C. 2011-2036.


0
4. Add Sec.  272.15 to read as follows:


Sec.  272.15  Major changes in program design.

    (a) States' reporting of major changes. (1) State agencies shall 
notify FNS when they make major changes in their operation of SNAP. 
State agencies shall notify FNS when the plans for the change are 
approved by State leadership, but no less than 120 days prior to 
beginning implementation of the change or entering into contractual 
obligations to implement any proposed major changes. If it is not 
possible for a State to provide notification 120 days in advance, the 
State shall provide notification as soon as it is aware of the major 
change and explain why it could not meet the 120-day requirement. No 
approval from FNS is necessary for a State to proceed with 
implementation of the major change.
    (2) Major changes shall include the following:
    (i) Closure of any local office that performs major functions for 
750 or more SNAP households or 5 percent of the State's total SNAP 
monthly caseload, whichever is less, and there is not another office 
available to serve the affected households within 35 miles. An office 
performing major functions is an office where households can file an 
application for SNAP in person and receive assistance from merit system 
personnel staff.
    (ii) Substantial increased reliance on automated systems for the 
performance of responsibilities previously performed by State merit 
system personnel (as described in section 11(e)(6)(B) of the Act) or 
changes in the way that applicants and participants interact with the 
State's SNAP agency. This includes the replacement of the State's 
automated systems used in the certification process, adding 
functionality to the existing automated systems used in the 
certification process, or changes in the way applicants and 
participants interact with SNAP. For example, adding an overlay on an 
existing legacy automated system used by eligibility workers, adding 
online portals to an existing automated system for use by SNAP 
applicants, participants or community partners, establishment of an 
online application, use of telephonic technology to accept 
applications, relying upon an interactive voice response system to 
provide case status information to participants or implementation of 
finger imaging shall be considered major changes. Under this criterion, 
if the State documents that the change is expected to impact less than 
five percent of the State's SNAP applicants or participants, it will 
not be considered a major change. Reporting a major change as required 
in this section does not relieve States of meeting the requirements for 
new system approvals in Sec.  277.18 of this chapter.
    (iii) Changes in operations that potentially increase the 
difficulty of households reporting required information. This could 
include implementation of a call center or internet web portal for 
change reporting, a major modification to forms that households use to 
report changes or the discontinuation of an existing avenue for 
reporting changes (e.g., households can no longer contact the local 
office because all changes must be reported to

[[Page 2740]]

a unit that handles change reports). Selecting a different change 
reporting policy option as allowed in Sec.  273.12 of this chapter, or 
the implementation of a policy waiver related to change reporting would 
not be a major change.
    (iv) Any reduction or change of the functions or responsibilities 
currently assigned to SNAP merit system personnel.
    (v) A decrease of more than 5 percent in the total number of merit 
system personnel involved in the SNAP certification process in the 
State from one year to the next. In addition, a decrease of more than 
eight percent in the total number of merit system personnel involved in 
the SNAP certification process in the State over a two year period 
would be a major change. These decreases would include those resulting 
from State budget cuts or hiring freezes, but not include loss of 
personnel through resignation, retirement or release when the State is 
seeking to replace the personnel within 6 months. Evidence of the 
intent to replace personnel shall include advertising to fill positions 
and having sufficient funding in the personnel budget for the new 
hires.
    (vi) Other major changes identified by FNS.
    (3) When a State initially reports a major change to FNS as 
required in paragraph (a)(1) of this section, an analysis of the 
expected impact of the major change shall accompany the report. The 
initial report to FNS that the State is making one of the major changes 
identified in paragraph (a)(2) of this section, shall include a 
description of the change and an analysis of its anticipated impacts on 
program performance.
    (i) The description of the change shall include the following:
    (A) Identification of the major change the State is implementing;
    (B) An explanation of what the change is intended to accomplish;
    (C) The schedule for implementation;
    (D) How the change will be tested and whether it will be piloted;
    (E) Whether the change is statewide or identification of the 
jurisdictions it will encompass;
    (F) How the major change is expected to affect applicants and/or 
participants and how they will be informed;
    (G) How the change will affect caseworkers and, as applicable, how 
they will be trained;
    (H) The projected administrative cost of the major change in the 
year it is implemented and the subsequent year;
    (I) How the impact of the major change will be monitored;
    (J) How the major change will affect operation of the State 
automated system;
    (K) The State's backup plans if the major change creates 
significant problems in one or more of the program measures in 
paragraph (a)(3)(ii) of this section;
    (L) A description of any consultation with stakeholders/advocacy 
groups or public comment obtained regarding the planned changes; and
    (M) Procedures the State will put in place to minimize the burdens 
on people with disabilities and other populations (as identified in 
paragraph (a)(3)(ii)(E) of this section) relative to the change.
    (ii) The analysis portion of the State's initial report shall 
include the projected impact of the major change on:
    (A) The State's payment error rate;
    (B) Program access, including the impact on applicants filing 
initial applications and recertification applications;
    (C) The State's negative error rate;
    (D) Application processing timeliness including both the households 
entitled to 7-day expedited service and those subject to the 30-day 
processing standards;
    (E) Whether the major change will increase the difficulty elderly 
households, households living in rural areas, households containing a 
disabled member, homeless households, non-English speaking households, 
or households living on a reservation will have obtaining SNAP 
information, filing an initial application, providing verification, 
being interviewed, reporting changes or reapplying for benefits;
    (F) Customer service including the time it takes for a household to 
contact the State, be interviewed, report changes and any other 
parameter defined by the State agency; and
    (G) Timeliness of recertification actions.
    (b) FNS and State action on reports. (1) FNS will evaluate the 
initial report provided by a State to determine if the change is, in 
fact, a major change as described in paragraph (a)(2) of this section 
and notify the State of its determination. States implementing a major 
change shall report the following monthly State-level information to 
FNS on a quarterly basis beginning with the quarter prior to 
implementation of the major change:
    (i) The number of initial applications received;
    (ii) Of the number of initial applications received in paragraph 
(b)(1)(i) of this section, the number subject to expedited service;
    (iii) Of the number of initial applications received in paragraph 
(b)(1)(i) of this section, the number broken out by method of 
application (i.e., in-person, online, telephone, mail, fax);
    (iv) The number of initial applications that are approved timely;
    (v) Of the number of initial applications approved timely in 
paragraph (b)(1)(iv) of this section, the number subject to expedited 
service processed within the 7-day processing requirement;
    (vi) The number of initial applications that are approved untimely;
    (vii) Of the number of initial applications approved untimely in 
paragraph (b)(1)(vi) of this section, the number subject to expedited 
service processed outside the 7-day processing requirement;
    (viii) The number of initial applications that are denied;
    (ix) Of the number of initial applications that were denied in 
paragraph (b)(1)(viii) of this section, the number broken out by those 
denied due to ineligibility and those denied because the State agency 
was unable to determine eligibility;
    (x) The total number of households due for recertification;
    (xi) The number of recertification applications received;
    (xii) Of the number of recertification applications received in 
paragraph (b)(1)(xi) of this section, the number broken out by method 
of application (i.e., in-person, online, telephone, mail, fax);
    (xiii) The number of households that were recertified without a 
delay or break in benefits;
    (xiv) The number of households that the State recertifies with a 
delay or break in benefits of less than one month;
    (xv) Of the total number of households due for recertification in 
paragraph (b)(1)(x) of this section, the number of households that fail 
to reapply for recertification by the required deadline;
    (xvi) The number of recertification applications that are denied; 
and
    (xvii) Of the number of recertification applications that were 
denied in paragraph (b)(1)(xvi) of this section, the number broken out 
by those denied due to ineligibility and those denied because the State 
agency was unable to determine eligibility.
    (2) The information required by paragraph (b)(1)(1) of this section 
shall be reported separately for households with elderly members and 
households with members that have a disability.
    (3) At a minimum, the information required by paragraphs (b)(1)(i), 
(iv),

[[Page 2741]]

(vi), (viii), (x), (xi), (xiii), (xiv), (xv), and (xvi) of this section 
shall be disaggregated to provide sub-state information. FNS will 
require the State to disaggregate all the information in paragraph 
(b)(2) if FNS determines that such data are necessary to evaluate the 
impact of the change. FNS will consult with States on a case-by-case 
basis to determine if this information shall be reported by: Local 
offices, call centers, county, project areas, or by other 
administrative structures within the State. FNS' determination will be 
based upon the type of major change and the State's SNAP organization.
    (4) In addition the information required in paragraphs (b)(1), (2) 
and (3) of this section, FNS may require additional information to be 
included in a State's quarterly report. FNS reserves the right to 
require the information it needs to determine the impact of a major 
change on integrity and access in SNAP. FNS will work with States to 
determine what additional information is practicable and require only 
the data that is necessary and not otherwise available from ongoing 
reporting mechanisms. While the data elements outlined in paragraph 
(b)(2) of this section will generally be required to be reported on a 
statewide basis and at a sub-state level, major changes that are 
limited to localized areas, such as a county or project area, may only 
require localized reporting. Depending upon the nature of the major 
change, States will be required to report more specific or timely 
information concerning the impact of the major change within the 
following areas:
    (i) Payment accuracy. FNS will use Quality Control (QC) data when 
possible, but may require data from case reviews focused on households 
with specific characteristics, to obtain greater local reliability, or 
to provide more timely data.
    (ii) Negative error rates. FNS will use QC data when possible, but 
may require data from case reviews focused on households with specific 
characteristics, to obtain greater local reliability or to provide more 
timely data on the causes of incorrect denials.
    (iii) Impact on households with specific characteristics. In 
addition to the information required by paragraph (b)(2) of this 
section, a major change that could disproportionately impact the 
households identified at paragraph (a)(3)(ii)(E) of this section may 
require additional information on the impact of the change on the 
participation of these households. The nature of the change and its 
potential impact would dictate how this information would need to be 
reported.
    (iv) Impact of certain major changes on customer service. Some 
major changes may require specific information that is not typically 
available from a States automated SNAP system. For example, if a State 
implements a major change that allowed (or required) households to 
report changes in their individual circumstances through a change 
center or allows applicants to apply or reapply for SNAP through the 
use of call center, the following data may be required:
    (A) The total number of calls made to the center;
    (B) The average time a caller has to wait to talk to a SNAP worker 
(includes hold time for transfers);
    (C) Based upon the call centers standards and negotiation with FNS, 
the percentage of calls with excessive wait times;
    (D) The percentage of calls abandoned by callers prior to and after 
being answered by the call center;
    (E) The total number of calls dropped by the call center system and 
the number of callers that received a busy signal; and
    (F) Customer satisfaction (based upon survey results).
    (5) States shall submit reports containing monthly data on a 
quarterly basis. As practicable, and based upon consultation with the 
State, FNS may require any additional information under paragraph 
(b)(4) of this section regarding the State's operation to be reported 
for the quarter just prior to implementation of the major change.
    (6) States shall submit reports for one year after the major change 
is fully in place. FNS may extend this timeframe as it deems necessary.
    (7) If FNS becomes aware that a State appeared to be implementing a 
major change that had not been formally reported, FNS would work with 
the State to determine if it is a major change, and if so proceed as 
required by this section.
    (8) If the data a State submits regarding its major change or other 
information FNS obtains indicates an adverse impact on SNAP access or 
integrity, FNS would work with the State to correct the cause of the 
problem and provide relevant technical assistance, and will require the 
State to provide additional information as it deems appropriate. 
Depending upon the severity of the problem, FNS may also require a 
formal corrective action plan as identified in Sec.  275.16 and Sec.  
275.17 of this chapter. States agencies that fail to comply with 
reporting requirements may be subject to the suspension or disallowance 
of Federal Financial Participation administrative funds per Sec.  276.4 
of this chapter.

PART 275--PERFORMANCE REPORTING SYSTEM

0
5. The authority citation for Part 275 continues to read as follows:

    Authority: 7 U.S.C. 2011-2036.


0
6. In Sec.  275.7:
0
a. Revise paragraph (a) to read as set forth below.
0
c. Remove paragraphs (b), (c) and (d).
0
d. Redesignate paragraph (e) as paragraph (b).
0
e. Amend newly redesignated paragraph (b) by removing the word ``on-
site''.


Sec.  275.7  Selection of sub-units for review.

    (a) Definition of sub-units. Sub-units are the physical locations 
of organizational entities within project areas responsible for 
operating various aspects of SNAP and include but are not limited to 
certification offices, call centers, and employment and training 
offices.
* * * * *

0
7. In Sec.  275.9:
0
a. Revise paragraph (b)(1)(iii) to read as set forth below.
0
b. Amend paragraph (b)(1)(iv) by removing the first sentence.


Sec.  275.9  Review process.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Identification of the sub-units selected for review and the 
techniques used to select them;
* * * * *

0
8. In Sec.  275.16 revise paragraph (b)(3) to read as follows:


Sec.  275.16  Corrective action planning.

* * * * *
    (b) * * *
    (3) Are identified by FNS reviews, GAO audits, contract audits, 
reports to FNS regarding the implementation of major changes (as 
discussed in Sec.  272.15) or USDA audits or investigations at the 
State agency or project area level (except deficiencies in isolated 
cases as indicated by FNS); and,
* * * * *

    Dated: December 10, 2015.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2016-00674 Filed 1-15-16; 8:45 am]
BILLING CODE 3410-30-P



                                                                                                                                                                                                      2725

                                                  Rules and Regulations                                                                                          Federal Register
                                                                                                                                                                 Vol. 81, No. 11

                                                                                                                                                                 Tuesday, January 19, 2016



                                                  This section of the FEDERAL REGISTER                    rule also amends Management                            difficulty in reporting information to the
                                                  contains regulatory documents having general            Evaluation (ME) Review regulations by                  State; and (4) changes that may
                                                  applicability and legal effect, most of which           modifying the requirements for State                   disproportionately increase the burdens
                                                  are keyed to and codified in the Code of                reviews. The rule revises the definitions              on specific vulnerable households. In
                                                  Federal Regulations, which is published under           of large, medium and small project                     addition, the provision gives the
                                                  50 titles pursuant to 44 U.S.C. 1510.
                                                                                                          areas. Finally, it removes sections of the             Department the discretion to identify
                                                  The Code of Federal Regulations is sold by              regulations pertaining to coupons and                  other major changes that a State agency
                                                  the Superintendent of Documents. Prices of              coupon storage since they are obsolete.                would be required to report, as well as
                                                  new books are listed in the first FEDERAL               DATES: Effective Date: January 19, 2016.               to identify the types of data the State
                                                  REGISTER issue of each week.                               Implementation date: This rule shall                agencies would have to collect to
                                                                                                          be implemented as follows: § 272.15                    identify and correct adverse effects on
                                                                                                          shall be implemented on March 21,                      integrity and access. Finally, the
                                                  DEPARTMENT OF AGRICULTURE                               2016. Implementation of any major                      Department is modifying requirements
                                                                                                          change that begins after that day must                 for State reviews to allow more efficient
                                                  Food and Nutrition Service                              be reported to FNS. The changes in                     use of staff and resources.
                                                                                                          definitions in Part 271 that impact the                I. Additional Information on Electronic
                                                  7 CFR Parts 271, 272 and 275                            requirements for State ME reviews in                   Access
                                                  [FNS–2011–0035]                                         Part 275, shall be implemented October
                                                                                                          1, 2016.                                               Electronic Access
                                                  RIN 0584–AD86                                           FOR FURTHER INFORMATION CONTACT:                         You may view and download an
                                                                                                          Mary Rose Conroy, Chief, Program                       electronic version of this final rule at
                                                  Supplemental Nutrition Assistance
                                                                                                          Design Branch, Program Development                     http://www.fns.usda.gov/snap/.
                                                  Program: Review of Major Changes in
                                                                                                          Division, Food and Nutrition Service,
                                                  Program Design and Management                                                                                  II. Procedural Matters
                                                                                                          USDA, 3101 Park Center Drive,
                                                  Evaluation Systems
                                                                                                          Alexandria, Virginia 22302, (703) 305–                 Executive Order 12866 and 13563
                                                  AGENCY:  Food and Nutrition Service                     2515; Maryrose.Conroy@fns.usda.gov.                       Executive Orders 12866 and 13563
                                                  (FNS), USDA.                                            Questions regarding this rulemaking                    direct agencies to assess all costs and
                                                  ACTION: Final rule.                                     should be sent in writing to 3101 Park                 benefits of available regulatory
                                                                                                          Center Drive, Alexandria, Virginia                     alternatives and, if regulation is
                                                  SUMMARY:    This rule finalizes provisions              22302, or by telephone at (703) 305–                   necessary, to select regulatory
                                                  of the proposed rule entitled Review of                 2803, or via email to Maryrose.Conroy@                 approaches that maximize net benefits
                                                  Major Changes in Program Design and                     fns.usda.gov.                                          (including potential economic,
                                                  Management Evaluation Systems, which                    SUPPLEMENTARY INFORMATION: This                        environmental, public health and safety
                                                  was published May 3, 2011. This final                   action is needed to implement section                  effects, distributive impacts, and
                                                  rule amends the Supplemental Nutrition                  4116 of the FCEA. Section 4116, Review                 equity). This final rule has been
                                                  Assistance Program (SNAP) (formerly                     of Major Changes in Program Design,                    determined to be not significant under
                                                  the Food Stamp Program) regulations to                  amends section 11 of the Food and                      Executive Order 12866 and was not
                                                  implement section 4116 of the Food,                     Nutrition Act of 2008 (the Act) (7 U.S.C.              reviewed by the Office of Management
                                                  Conservation and Energy Act of 2008                     2020). Section 4116 requires the                       and Budget.
                                                  (FCEA). Section 4116 of the FCEA,                       Department to develop standards for
                                                  Review of Major Changes in Program                      identifying major changes in the                       Costs
                                                  Design, requires the United States                      operations of State agencies that                         The rule will have a minimal cost in
                                                  Department of Agriculture (the                          administer SNAP; State agencies to                     fiscal year (FY) 2016 and over the 5
                                                  Department) to identify standards for                   notify the Department upon                             years FY 2016 through FY 2020. To
                                                  major changes in operations of State                    implementing a major change in                         estimate the cost impact, we multiplied
                                                  agencies’ administration of SNAP. The                   operations; and State agencies to collect              the estimated total burden hours, as
                                                  provision also requires State agencies to               any information required by the                        outlined in the Paperwork Reduction
                                                  notify the Department if they implement                 Department to identify and correct any                 Act section of the preamble, by the
                                                  a major change in operations and to                     adverse effects on program integrity or                hourly mean wage for functions
                                                  collect and report data that can be used                access, particularly access by vulnerable              performed by State agency and local
                                                  to identify and correct problems relating               households. The provision identifies                   education agency staff. The hourly mean
                                                  to integrity and access, particularly for               four major changes in operations for                   wage is based upon the U.S. Department
                                                  certain vulnerable households.                          which standards for identifying changes                of Labor, Bureau of Labor Statistics, May
                                                    This final rule establishes criteria for              must be developed: (1) Large or                        2014 National Occupational and Wage
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  changes that would be considered                        substantially-increased numbers of low-                Statistics, Occupational Group (for
                                                  ‘‘major changes’’ in program operations                 income households that do not live in                  education-related occupations), which
                                                  and identifies the data State agencies                  reasonable proximity to a SNAP office;                 is $25.10. FNS estimates a total of 8,460
                                                  must report in order to identify                        (2) substantial increases in reliance on               burden hours to fulfill the reporting
                                                  problems relating to integrity and                      automated systems for the performance                  requirements. The annual cost is
                                                  access. It also sets forth when and how                 of responsibilities previously performed               estimated at $212,364 or approximately
                                                  State agencies must report on the                       by merit system personnel; (3) changes                 $1,061,730 over the 5 years FY 2016
                                                  implementation of a major change. This                  that potentially increase the households’              through FY 2020.


                                             VerDate Sep<11>2014   15:52 Jan 15, 2016   Jkt 238001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\19JAR1.SGM   19JAR1


                                                  2726              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  Benefits                                                of the rule. This rule contains no                     Executive Order 13175
                                                    This rule requires State agencies to                  Federal mandates (under the regulatory                   This rule has been reviewed in
                                                  report on the impacts of implementing                   provisions of Title II of the UMRA) for                accordance with the requirements of
                                                  major changes in State agency                           State, local and Tribal governments or                 Executive Order 13175, ‘‘Consultation
                                                  operations, and to identify and correct                 the private sector of $100 million or                  and Coordination with Indian Tribal
                                                  problems caused by implementing these                   more in any one year. This rule is,                    Governments.’’ Executive Order 13175
                                                  changes. This rule will benefit State                   therefore, not subject to the                          requires Federal agencies to consult and
                                                  agencies by requiring them to fully                     requirements of sections 202 and 205 of                coordinate with tribes on a government-
                                                  evaluate changes and thereby reduce the                 the UMRA.                                              to-government basis on policies that
                                                  potential for these changes to cause                                                                           have tribal implications, including
                                                  hardships for applicants, recipients or                 Federalism Summary Impact Statement
                                                                                                                                                                 regulations, legislative comments or
                                                  compromise the integrity of the                           Executive Order 13132 requires                       proposed legislation, and other policy
                                                  program. This rule will benefit                         Federal agencies to consider the impact                statements or actions that have
                                                  applicants, recipients or individuals                   of their regulatory actions on State and               substantial direct effects on one or more
                                                  otherwise eligible for SNAP by requiring                local governments. Where such actions                  Indian tribes, on the relationship
                                                  State agencies to identify and correct                                                                         between the Federal Government and
                                                                                                          have federalism implications, agencies
                                                  adverse impacts. This rule modifies the                                                                        Indian tribes or on the distribution of
                                                                                                          are directed to provide a statement for
                                                  requirements for State ME reviews of                                                                           power and responsibilities between the
                                                  local office operations. It will benefit                inclusion in the preamble to the
                                                                                                          regulations describing the agency’s                    Federal Government and Indian tribes.
                                                  State agencies by allowing them more                                                                             FNS has assessed the impact of this
                                                  time to conduct higher quality reviews.                 considerations in terms of the three
                                                                                                                                                                 rule on Indian tribes and determined
                                                                                                          categories called for under section
                                                  Executive Order 12372                                                                                          that this rule does not, to our
                                                                                                          (6)(b)(2)(B) of E.O. 13132. FNS has
                                                                                                                                                                 knowledge, have tribal implications that
                                                     SNAP is listed in the Catalog of                     considered this rule’s impact on State
                                                                                                                                                                 require tribal consultation under EO
                                                  Federal Domestic Assistance under No.                   and local agencies and has determined                  13175. On February 18, 2015 the agency
                                                  10.551. For the reasons set forth in the                that it does not have federalism                       held a webinar for tribal participation
                                                  final rule in 7 CFR part 3015, subpart V                implications under E.O. 13132.                         and comments. During the comment
                                                  and related Notice (48 FR 29115, June                                                                          period, FNS did not receive any
                                                  24, 1983), this program is excluded from                Civil Rights Impact Analysis
                                                                                                                                                                 comments on the proposed rule. If a
                                                  the scope of Executive Order 12372,                        FNS has reviewed this rule in                       Tribe requests consultation, FNS will
                                                  which requires intergovernmental                        accordance with the Department                         work with the Office of Tribal Relations
                                                  consultation with State and local
                                                                                                          Regulation 4300–4, ‘‘Civil Rights Impact               to ensure meaningful consultation is
                                                  officials.
                                                                                                          Analysis,’’ to identify and address any                provided where changes, additions and
                                                  Regulatory Flexibility Act                              major civil rights impacts that the rule               modifications identified herein are not
                                                    This rule has been reviewed with                      might have on minorities, women and                    expressly mandated by Congress.
                                                  regard to the requirements of the                       persons with disabilities. After a careful             Paperwork Reduction Act
                                                  Regulatory Flexibility Act (5 U.S.C.                    review of the rule’s intent and
                                                  601–612). It has been certified that this               provisions, FNS has determined that                       The Paperwork Reduction Act of 1995
                                                  rule will not have a significant                        this rule has no intended impact on any                (44 U.S.C. Chap. 35; see 5 CFR part
                                                  economic impact on a substantial                        of the protected classes. FNS                          1320), requires that OMB approve all
                                                  number of small entities. State welfare                 specifically prohibits State and local                 collections of information by a Federal
                                                  agencies will be the most affected to the               government agencies that administer                    agency from the public before they can
                                                  extent that they administer the SNAP.                   SNAP from engaging in actions that                     be implemented. Respondents are not
                                                                                                                                                                 required to respond to any collection of
                                                  Unfunded Mandates Reform Act                            discriminate against any applicant or
                                                                                                                                                                 information unless it displays a current
                                                                                                          participant in any aspect of program
                                                     Title II of the Unfunded Mandates                                                                           valid OMB control number. The Notice
                                                                                                          administration, including, but not
                                                  Reform Act of 1995 (UMRA), establishes                                                                         of Proposed Rulemaking (NPRM)
                                                                                                          limited to, the certification of                       contained new requirements that are
                                                  requirements for Federal agencies to                    households, the issuance of benefits, the
                                                  assess the effects of their regulatory                                                                         subject to review and approval by OMB.
                                                                                                          conduct of fair hearings, or the conduct               FNS sought public comments on the
                                                  actions on State, local and Tribal
                                                                                                          of any other program service for reasons               changes in the information collection
                                                  governments and the private sector.
                                                  Under section 202 of the UMRA, the                      of age, race, color, sex, handicap,                    burden that would result from adoption
                                                  Food and Nutrition Service (FNS)                        religious creed, national origin or                    of the NPRM provisions.
                                                  generally must prepare a written                        political beliefs (SNAP                                   Comments were invited on: (a)
                                                  statement, including a cost-benefit                     nondiscrimination policy can be found                  Whether the proposed collection of
                                                  analysis for proposed and final rules                   at 7 CFR 272.6). Discrimination in any                 information is necessary for the proper
                                                  with ‘‘Federal mandates’’ that may                      aspect of program administration is                    performance of the functions of the
                                                  result in expenditures to State, local or               prohibited by these regulations, the                   agency, including whether the
                                                  Tribal governments in the aggregate, or                 Food and Nutrition Act of 2008, the Age                information shall have practical utility;
                                                  to the private sector, of $100 million or               Discrimination Act of 1975 (Pub. L. 94–                (b) the accuracy of the agency’s estimate
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  more in any one year. When such a                       135), the Rehabilitation Act of 1973                   of the burden of the proposed collection
                                                  statement is needed for a rule, section                 (Pub. L. 93–112, section 504) and Title                of information, including the validity of
                                                  205 of the UMRA generally requires                      VI of the Civil Rights Act of 1964 (42                 the methodology and assumptions used;
                                                  FNS to identify and consider a                          U.S.C. 2000d). Enforcement action may                  (c) ways to enhance the quality, utility
                                                  reasonable number of regulatory                         be brought under any applicable Federal                and clarity of the information to be
                                                  alternatives and adopt the least costly,                law. Title VI complaints shall be                      collected; and (d) ways to minimize the
                                                  more cost effective or least burdensome                 processed in accordance with 7 CFR                     burden of the collection of information
                                                  alternative that achieves the objectives                part 15.                                               on those who are to respond, including


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                                           2727

                                                  use of appropriate automated,                           changes that may make it more difficult                                                                Responses
                                                                                                                                                                                 Criterion
                                                  electronic, mechanical, or other                        for households to report and an                                                                         per year
                                                  technological collection techniques or                  undefined ‘‘other’’ category. Such
                                                  other forms of information technology.                  changes in operations are made by                      Replacement of automated
                                                     Comments on the information                          States based upon a variety of                           system .................................            10
                                                  collection pursuant to the proposed rule                                                                       Changing the responsibilities
                                                                                                          interrelated factors. There is no
                                                                                                                                                                   of merit system personnel ..                             .5
                                                  were minimal, but changes to provisions                 evidence that the State’s size                         Office closings ........................               3
                                                  of the final rule have affected the                     (population) or regional location predict              Significant reductions in SNAP
                                                  reporting burden estimated from the                     when or what type of changes States                      staff .....................................          3
                                                  NPRM.                                                   will make.                                             Changes that may make it
                                                     Title: Review of Major Changes in                       In examining the first of the above                   more difficult for households
                                                  Program Design.                                         criterion in isolation, it would be                      to report ...............................            5
                                                     OMB Number: [0584–NEW].                              reasonable to expect one or two States                 Other .......................................          1
                                                     Expiration Date: Not Yet Determined.                 per year to replace automated systems
                                                     Type of Request: New Collection.                     and another four States to make                           Total ....................................         22.5
                                                     Abstract: As required by the                         modifications to their systems that
                                                  Paperwork Reduction Act of 1995 (44                     would require a major change report.                      Once a State has triggered one of the
                                                  U.S.C. 3507(d)), FNS is submitting a                    However, with so many States running                   six criteria, the State will be required to
                                                  copy of this section to OMB for its                     older systems and the delays caused by                 report the ‘‘automatic’’ information as
                                                  review. Section 4116, Review of Major                   budget difficulties, it is likely this will            required in § 272.15(b)(2)–(4) and FNS
                                                  Changes in Program Design, amends                       increase to three per year beginning in                must determine what, if any, additional
                                                  section 11 of the Act (7 U.S.C. 2020). It               FY 2017, as States’ budgets improve. It                data the State will be required to collect
                                                  requires the Department to develop                      is also likely that we will see more                   and report as provided for in
                                                  standards for identifying major changes                 States look into implementing call                     § 272.15(b)(5). FNS believes that most
                                                  in the operations of State agencies that                centers and developing online                          often, the automatic reporting
                                                  administer SNAP. Section 272.15, of                     applications that will be used by a large              requirements and its ongoing data
                                                  this final rule requires State agencies to              proportion of SNAP applicants and                      collection tools it employs will be
                                                  notify the Department when planning to                  participants. Since it appears that 45                 sufficient to provide the needed
                                                  implement a major change in operations                  States will have online applications in                information on a major change.
                                                  and State agencies to collect any                       place and over 30 States will be using                 Additional data will occasionally need
                                                  information required by the Department                  call centers in FY 2016, the number of                 to be generated from States’ automated
                                                  to identify and correct any adverse                     additional States that might implement                 eligibility systems or gathered by
                                                  effects on program integrity or access,                 these systems in a year is most likely no              conducting additional case review
                                                  including access by vulnerable                          more than four per year. Therefore we                  surveys.
                                                  households. Since decisions to make                     estimate a total of ten States per year                   Estimated Total Annual Burden on
                                                  major changes to program operations                     would report major changes under this                  Respondents:
                                                  rest with each individual State agency,                 criterion.                                                Section 272.15(a)(3), requires States
                                                  the frequency and timing of the changes                    With regard to the second criterion,                provide both descriptive and analytic
                                                  can only be estimated. The final rule                   one State exploring such a change every                information regarding the major change.
                                                  requires State agencies to provide                      two years would be a reasonable                        FNS believes States will have completed
                                                  descriptive information regarding the                   estimate.                                              the majority of the analysis in the
                                                  major change together with an analysis                     The third criterion, office closings,               normal course of their own planning
                                                  of its projected impacts on program                     may become more common with the                        and decision making. The descriptive
                                                  operations. The final rule also includes                expanded use of call centers and online                information should also be readily
                                                  ‘‘automatic’’ reporting requirements for                applications. We estimate three States                 available and require minimal data
                                                  any State reporting a major change and                  per year would report major changes                    gathering since it is the State’s decision
                                                  sets out requirements for the State to                  under this criterion.                                  to make the major change. We estimate
                                                  collect and report additional                              The fourth criterion, staff reductions,             it will take 8 hours to describe the
                                                  information. The reports will consist of                tends to fluctuate with States’ budgetary              change and 32 hours to repackage and
                                                  monthly information, to be provided on                  situations, caseloads and other changes                complete the required analysis for a
                                                  a quarterly basis. Reporting would                      States make to their program design. We                total of 40 hours per response. Thus,
                                                  continue for at least a year after the                  estimate there would be three                          with 22.5 States reporting one major
                                                  change is completely implemented. It is                 significant staff reductions per year.                 change per year, the initial reporting
                                                  not uncommon for a State to pilot a                        The fifth criterion, changes that may               and analysis aspect of the rulemaking
                                                  change prior to statewide                               make it more difficult for households to               would be 22.5 annual responses × 40
                                                  implementation. FNS could require                       report, would occur in conjunction with                hours per State = an estimated 900
                                                  information from the pilot and                          or as a result of changes in the States                burden hours per year (22.5 States × 1
                                                  information regarding the statewide                     administration of SNAP. This is the                    response per respondent = 22.5 annual
                                                  impacts of the change after full                        most difficult to predict, but as States               responses × 40 hours per respondent to
                                                  implementation.                                         continue to take advantage of new                      respond = 900 annual burden hours).
                                                     Respondents: The 53 State agencies                   technology and streamlined processes,                     FNS believes that for about seventy
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                                                  that administer SNAP.                                   changes of this type may become more                   percent of the major changes States
                                                     Estimated Number of Responses per                    common. An estimate of five such                       report, no additional reporting will be
                                                  Respondent: The rule identifies six                     changes per year would appear to be                    necessary beyond the automatic
                                                  categories of major changes; changes to                 reasonable.                                            reporting requirements. Additional data
                                                  the States automated system, changing                      Since, by definition, the ‘‘other’’                 collection will only be required for the
                                                  the responsibilities of merit system                    category cannot be estimated, one such                 remaining 30 percent of the reported
                                                  personnel, office closings, reductions in               major change per year is estimated as a                major changes. Therefore, for about
                                                  State SNAP merit system personnel,                      place holder.                                          15.75 of the major changes expected


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                                                  2728                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  each year there would be no additional                                   automated system reprogramming to                               1080 hours per year (22.5 × 48). The
                                                  reporting burden.                                                        generate the required automatic data                            reports themselves would be estimated
                                                    All 22.5 of the major changes                                          reporting. At 48 hours per                                      to require 12 hours each.
                                                  expected each year will require some                                     reprogramming effort, this would be

                                                                                                                                                                     Estimated            Responses             Hours per               Total hours
                                                                                               Respondents                                                             annual              per year             response                 per year
                                                                                                                                                                     responses

                                                  22.5 States quarterly .......................................................................................             4                 90                     12                    1080



                                                    The total for the 22.5 States would be                                 of major change and the proportion of                           respond = 5,400 annual burden hours).
                                                  900 + 1,080 hours = 1,980 total hours for                                the State’s SNAP caseload it may affect,                        When the 1,980 hours are added for the
                                                  reporting (divided by the 22.5 states =                                  200 cases per quarter would likely be an                        automatic information, the total for
                                                  88 hours per State per year).                                            upper limit on what FNS could ask of                            these 6.75 States is 7,380 hours (1,093
                                                    For the 6.75 States expected to require                                a State. At an estimated one hour to                            hours per State per year).
                                                  additional data collection, this                                         review and report on a case, this would                           With all 22.5 States reporting
                                                  requirement would be in addition to the                                  require 800 hours per year per State.
                                                                                                                                                                                           quarterly, there would be 90 responses
                                                  1,980 hours from above. Such data will                                   The 6.75 States times 800 hours yields
                                                                                                                                                                                           annually. Twenty-seven of the 90
                                                  generally be collected through a sample                                  5,400 hours (6.75 State respondents × 1
                                                  of case reviews. While the required                                      response per respondent = 6.75 annual                           reports would contain additional
                                                  sample sizes may vary based on the type                                  responses × 800 hours per respondent to                         information from sample data.

                                                                                                                                         States               Responses per              Number of            Hours per                 Total burden
                                                               Section                              Requirement                        responding              respondent                responses            response                     hours
                                                                                                                                        per year

                                                  272.15(a)(3) ....................       Initial analysis of Major                              22.5        1 .......................             22.5   40 .....................                900
                                                                                             Change.
                                                  272.15(b)(2)–(4) ..............         Reports required without                               15.75       4 .......................              63    22 .....................             1,386
                                                                                             additional data collec-
                                                                                             tion.
                                                  272.15(b)(5) ....................       Reports required with ad-                                6.75      4 .......................              27    273.25 ..............             7,377.75
                                                                                             ditional data collection.

                                                        Totals .......................    .........................................              22.5        5 (average) .......               112.5      85.9 (average) ..                 9,663.75



                                                  E-Government Act Compliance                                              2020(e)(10) and § 273.15; (2) for State                                                                     Acronym,
                                                                                                                           agencies—administrative procedures                                         Phrase                          Abbreviation,
                                                     FNS is committed to complying with                                                                                                                                                or Symbol
                                                                                                                           issued pursuant to 7 U.S.C. 2023 set out
                                                  the E-Government Act of 2002, to
                                                                                                                           at § 276.7 or Part 283; (3) for retailers
                                                  promote the use of the Internet and                                                                                                      U.S. Department of Agri-                  the Department
                                                                                                                           and wholesalers—administrative
                                                  other information technologies to                                                                                                          culture.
                                                                                                                           procedures issued pursuant to 7 U.S.C.
                                                  provide increased opportunities for
                                                                                                                           2023 set out at 7 CFR part 279.
                                                  citizen access to Government                                                                                                             III. Background
                                                  information and services, and for other                                     What acronyms or abbreviations are
                                                                                                                                                                                              Section 4116 of the FCEA amended
                                                  purposes.                                                                used in this supplementary discussion
                                                                                                                                                                                           section 11 of the Act to require the
                                                                                                                           of the proposed provisions? In the
                                                  Executive Order 12988                                                                                                                    Department to define ‘‘major changes’’
                                                                                                                           discussion of the provisions in this rule,
                                                                                                                                                                                           in SNAP operations, State agencies to
                                                    This rule has been reviewed under                                      the following acronyms or other
                                                                                                                                                                                           notify the Department when they
                                                  Executive Order 12988, Civil Justice                                     abbreviations are used to stand in for
                                                                                                                                                                                           implement a major change in SNAP
                                                  Reform. This rule is intended to have                                    certain words or phrases:                                       operations, and to collect data for use in
                                                  preemptive effect with respect to any                                                                                                    identifying and correcting problems
                                                  State or local laws, regulations or                                                                                  Acronym,
                                                                                                                                       Phrase                         Abbreviation,        with SNAP integrity and access,
                                                  policies that conflict with its provisions                                                                           or Symbol           particularly among vulnerable
                                                  or that would otherwise impede its full                                                                                                  populations. Many State agencies have
                                                  implementation. This rule is not                                         Code of Federal Regula-                 CFR                     changed or are in the process of
                                                  intended to have retroactive effect                                        tions.                                                        changing the way they operate SNAP.
                                                  unless so specified in the ‘‘Effective                                   Federal Register ...............        FR                      Some of these changes have been small
                                                  Date’’ paragraph of the final rule. Prior                                Federal Fiscal Year ..........          FY                      and have predominately impacted
                                                  to any judicial challenge to the                                         Food and Nutrition Act of               the Act                 internal State agency operations.
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                                                  provisions of this rule or to the                                          2008.
                                                                                                                                                                                           However, some of the changes have also
                                                                                                                           Food and Nutrition Service              FNS
                                                  application of its provisions, all                                                                                                       included major overhauls of State
                                                                                                                           Food, Conservation, and                 FCEA
                                                  applicable administrative procedures                                       Energy Act of 2008.                                           agency operations that affect how the
                                                  must be exhausted. In SNAP the                                           Management Evaluation ...               ME                      State interacts with applicants and
                                                  administrative procedures are as                                         Notice of Proposed Rule-                NPRM                    participants. While the goal of such
                                                  follows: (1) For Program benefit                                           making.                                                       changes is to improve the efficiency and
                                                  recipients—State administrative                                          Supplemental Nutrition As-              SNAP                    the effectiveness of the States’
                                                  procedures issued pursuant to 7 U.S.C.                                     sistance Program.                                             operations, some of these changes have


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                          2729

                                                  adversely impacted the States’ payment                  of the Federal biennial review of the                  proposed rule’s failure to require all
                                                  accuracy rates, and, critically, have                   State ME system. The proposed changes                  States to gather and submit basic data
                                                  impeded access to SNAP benefits. In                     weaken Federal oversight of SNAP, and                  on application processing, case closures,
                                                  recent years, States have faced rising                  we recommend that the current                          and the like—and its failure to establish
                                                  caseloads and cut backs which in part                   requirements be maintained.                            common definitions and formats for the
                                                  have led many States to make use of                        • The proposed language creates the                 collection and submission of that data to
                                                  new technologies that could help                        impression that States may be able to                  facilitate inter-state comparison—
                                                  streamline their SNAP operations.                       secure waivers or approval for the use                 prevents meaningful cross-sectional
                                                  Section 4116 of the FCEA anticipates                    of non-merit system personnel. We urge                 comparison.
                                                  this and provides the Department the                    FNS to re-affirm its conclusions that it                  • We request that the Department
                                                  authority to better provide States with                 strongly disfavors the use of non-merit                reconsider the scope of the proposed
                                                  technical assistance and to monitor                     system personnel and not to change its                 regulation to more closely mirror the
                                                  implementation of major changes in                      position. The experience of our office                 Federal law, and to minimize
                                                  their operation of SNAP. The proposed                   and many other advocates is that all too               duplicative and unnecessary reporting
                                                  rule published May 3, 2011, at 76 FR                    often non-merit system personnel lack                  requirements when existing
                                                  24820, provided a 60-day comment                        the training, supervision, experience                  performance measures can be used.
                                                  period. This final rule defines what                    and exposure to agency culture                            • While many of the regulatory
                                                  changes to States’ operations will be                   necessary to ensure maximum program                    changes were proposed to address
                                                  considered ‘‘major,’’ establishes the                   access.                                                legitimate issues, we are concerned that
                                                  requirements for States to notify FNS of                   • The Preamble states that ‘‘FNS has                some of the proposed changes would
                                                  such changes and establishes reporting                  determined that the use of non-merit                   negatively impact the ability for States
                                                  requirements for major changes. States’                 system personnel in these functions can                to administer SNAP and the recipients
                                                  ME requirements have also been                          have a detrimental impact on the                       that they serve. Many of the regulatory
                                                  updated to allow States time to conduct                 efficient and effective operation of the               changes also appear to exceed the
                                                  more effective reviews. The changes                     program,’’ but then proceeds to explain
                                                                                                                                                                 language and intent of the FCEA, and
                                                  will allow States to streamline                         that FNS must approve the use of non-
                                                                                                                                                                 appear to run counter to recent Federal
                                                  operations while maintaining the                        merit system personnel. It is contrary to
                                                                                                                                                                 efforts to reduce, simplify and
                                                  integrity of SNAP.                                      good sense and effective public policy
                                                                                                                                                                 streamline regulations.
                                                                                                          for the Department to authorize this
                                                  Public Comments                                                                                                   • The final regulation must be
                                                                                                          model when the Department itself
                                                     The Department received 120                          acknowledges that all available                        changed to ensure that nationally
                                                  comments on the NPRM from various                       evidence to date documents costly                      consistent and straightforward data
                                                  entities including: 95 individuals (many                failures.                                              collection from any state that makes a
                                                  of whom are union members); 4 unions;                      • Section 4116 of the FCEA gives FNS                major change in their service delivery
                                                  10 advocate organizations; 10 States;                   the authority to identify ‘‘major                      model is publically available.
                                                  and an organization representing States.                changes’’ and to collect information on                   As these general concerns indicate,
                                                  Following are the issues raised by                      those changes, but it does not allow FNS               commenters were divided with several
                                                  commenters, paraphrased excerpts from                   to prevent or impair States’ ability to                believing that the proposed rule went
                                                  the most illustrative comments, and                     implement administrative changes that                  too far, even beyond the FCEA
                                                  recommendations they made for                           otherwise meet legal and regulatory                    provisions, in terms of its requirements
                                                  changes to this final rule. (Note: The                  requirements. With this proposed                       and others suggesting that the final rule
                                                  May 3, 2011 NPRM proposed to add the                    regulation, FNS appears to go beyond its               should impose additional requirements
                                                  Major Change provisions to a new                        mandate under the law. FNS should                      on States. The Department understands
                                                  § 272.12. However, this section now                     take a proactive approach to assist                    and appreciates these differing
                                                  deals with Computer Matching                            States to quickly implement successful                 viewpoints, and seeks to provide proper
                                                  Requirements. The provisions of this                    reengineering changes and to use                       balance in this final rule by allowing for
                                                  final rule are added in a new § 272.15.                 existing SNAP performance data to                      effective oversight of SNAP operations
                                                  References in this preamble to                          measure outcomes rather than impose                    while recognizing States’ resource
                                                  provisions of the proposed rule have                    additional burdensome reporting                        constraints.
                                                  been converted from § 272.12 to                         requirements.                                             States are charged with the
                                                  § 272.15 to reduce confusion between                       • If implemented as written, we                     administration of SNAP and have broad
                                                  the proposed and final rules.) General                  believe this regulation could prevent,                 discretion in deciding how they operate
                                                  comments on the NPRM include:                           weaken or at the very least delay many                 the program. This rule does not restrict
                                                                                                          administrative improvements that                       States’ discretion at all; it simply
                                                  General Comments                                        would otherwise quickly bring a new                    requires States to inform FNS of
                                                    • We commend FNS for including                        level of efficiency, integrity and                     significant changes and provide
                                                  application processing timelines at                     customer service to SNAP.                              information on their impact. In FY 2014,
                                                  recertification (proposed                                  • By not imposing any on-going data                 SNAP issued over $69 billion in benefits
                                                  § 272.15(b)(1)(iii)) as one of the                      collection obligations under this                      to a monthly average of 46.5 million
                                                  measures it will examine in the event of                provision, the proposed rule denies the                individuals in need. The Federal share
                                                  a major change.                                         Department a baseline. If data collection              of administrative costs for States to
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                                                    • SNAP is an entitlement program.                     begins only after a problem has arisen,                operate SNAP totaled another $4.13
                                                  Therefore, the processes related to                     the Department will be ill-equipped to                 billion in FY 2014. Given the
                                                  SNAP eligibility determinations are                     assess the severity of the problem and                 importance of SNAP in helping
                                                  inherently governmental functions and                   may be misled into believing that the                  struggling families and the level of
                                                  must be performed by public                             problem has abated when measures of                    Federal funding, the Department
                                                  employees. The proposed rule also                       State performance rise even as the                     believes this provision of the Act is
                                                  includes changes to the performance                     State’s performance remains far below                  critical to FNS’ meeting its oversight
                                                  reporting system, including elimination                 what it had been. At the same time, the                responsibilities.


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                                                  2730              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                     There have been several situations in                   • The lengthy timeframes by which                   potentially add 120 days of lead time to
                                                  recent years where States made major                    FNS intends to manage change is                        initiatives. Although States do conduct
                                                  changes to staffing, automated systems                  unreasonable. A 120-day advance alert                  much of the analysis in the normal
                                                  or business processes that had                          of a change and a 90-day response time                 course of any policy change, the specific
                                                  unintentional, adverse impacts on the                   for FNS chokes the State’s ability to                  nature and the depth of the analysis
                                                  accessibility and integrity of the                      respond quickly and effectively to its                 requirements of the proposed
                                                  program. FNS worked with these States                   customer’s needs and changes in the                    regulations is overly burdensome. We
                                                  to correct the problems, but these efforts              political, financial and technological                 recommend that FNS re-evaluate the
                                                  were costly to the States in terms of                   environments.                                          proposed 120-day timeframe and create
                                                  time, additional administrative costs,                     • The regulation allows FNS 90 days                 an evaluation system that is more
                                                  business process modifications, and, in                 to respond to reports of major changes.                flexible.
                                                  some cases, payments to the Department                  Added to 120 days, this is over 7                         • The 120-day minimum notice
                                                  for benefits issued in error. If FNS had                months before a State could implement                  requirement is a timeframe that the
                                                  been aware of these changes earlier and                 a change. This is unrealistic; FNS                     majority of States would be unable to
                                                  had more detailed data, it is likely that               response time should be no more than                   meet. Twenty-six States enact new State
                                                  some of the difficulties could have been                30 days from the date the report was                   legislation within 90 days of passage
                                                  minimized or even avoided.                              submitted. The regulation also doesn’t                 unless otherwise declared in the
                                                  Implementation of this final rule is                    state what should happen if the FNS                    specific legislation. The proposed rule’s
                                                  intended to provide FNS with the                        response is not received within 90 days.               assumption that, ‘‘any properly planned
                                                  information it needs to fulfill its                     The regulation should state that                       major change would be approved by
                                                  responsibilities to act as a steward of                 implementation could proceed if that                   State leadership well in advance of
                                                  taxpayer funds, protect access to SNAP                  occurs.                                                implementation’’ is inconsistent with
                                                  benefits for eligible individuals, and to                  • Because of the potential for                      the fast-paced, budget-driven
                                                  provide States with technical assistance                additional significant reporting                       environment that exists in today’s
                                                  as necessary.                                           requirements (which State systems may                  economy. The advance notice
                                                     Many of the comments received from                   not have been programmed to provide),                  requirement also presumes that FNS has
                                                  individuals, unions and advocacy                        and the apparent potential to                          authority to approve or deny a specific
                                                  organizations focused on what appears                   disapprove of a ‘‘major change’’ or                    plan of operation beyond the limits of
                                                  to be a misunderstanding of the intent                  require a change in one or more aspects                the act. The provision requires that
                                                  of the provision of the proposed rule                   of implementation, States must have                    States mitigate adverse impacts, but
                                                  dealing with use of non-merit system                    sufficient time to include such                        does not give FNS approval authority
                                                  personnel in the administration of                      requirements in their implementation                   over State agency operations.
                                                  SNAP. While this provision is discussed                 and be aware of FNS objections well                       • The notification requirement is not
                                                  in more detail later in this preamble, it               before implementation. Otherwise, the                  sufficient. The final regulations should
                                                  is important to note that the proposed                  proposed process can significantly delay               require not only that States notify FNS
                                                  rule included the use of non-merit                      or derail implementation.                              120 days prior to implementation but
                                                  system personnel as a major change to                      • Under standard accounting and                     also at least 120 days prior to entering
                                                  ensure that the Department is aware of                  budget practices, this 120-day                         into legal obligations to implement any
                                                  States’ plans in this area prior to                     requirement would effectively reduce                   proposed major changes.
                                                  implementation. There was no intent to                  the State and counties’ ability to                        • Both the requirement that States
                                                  identify the use of non-merit system                    implement major changes in the second                  submit an initial report and the 120-day
                                                  personnel in the administration of                      half of the State’s fiscal year, and would             timeframe should be maintained in the
                                                  SNAP as a State option that the                         cause delays beyond the initial 120                    final rule.
                                                  Department would support. On the                        days. For example, an online                              • Allow States to submit an annual
                                                  contrary, the Department opposes and                    application may support new                            report on major changes that were not
                                                  has actively sought to limit use of such                applications initially, and then later add             previously identified thru an Advance
                                                  staff in the administration of SNAP due                 additional client reporting functions,                 Planning Document (APD) (e.g.,
                                                  to the negative impacts this has had on                 which are modified due to lessons                      reductions in staffing levels or office
                                                  SNAP households and State agencies.                     learned.                                               closures). FNS will still be able to
                                                  The Department also agrees with the                        • It appears that these proposed                    negotiate with States on the additional
                                                  comment that States’ reports on the                     regulations greatly exceed what was                    reporting requirements after they have
                                                  implementation of major changes                         originally specified in the bill. The                  received the annual report.
                                                  should be made available to the public.                 regulations speak of notifying FNS 120                    • FNS response time should be no
                                                                                                          days before a major change, while the                  more than 30 days from the date the
                                                  Discussion of Comments Grouped by                       FCEA merely states that if a State                     report was submitted. The longer the
                                                  Provision and Issue                                     implements a major change they must                    time to implement, the less chance the
                                                    Provision/Issues—§ 272.15(a)(1): State                notify FNS and provide information as                  change will be implemented.
                                                  agencies shall notify FNS when they                     required. Having to submit information                    Final Rule—To clarify, the provisions
                                                  make major changes in their operation                   prior to implementation as opposed to                  of this rule do not give FNS authority
                                                  of SNAP. State agencies shall notify                    at the point of implementation would be                to approve or deny a reported major
                                                  FNS when the plans for the change are                   a major workload and barrier. There is                 change. However, it is important to note
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                                                  approved by State leadership, but no                    a big distinction between notification                 that existing provisions of the SNAP
                                                  less than 120 days prior to beginning                   and approval, and these regulations                    regulations require FNS approval or
                                                  implementation of the change.                           tread dangerously into having the                      waivers for a variety of operational and
                                                    Public Comments and                                   Federal government require States to                   policy changes that may constitute or be
                                                  Recommendations—Ten commenters                          seek approval prior to making major                    related to a major change.
                                                  addressed this provision of the                         changes.                                                  Significant changes to States’
                                                  proposed rule and their comments                           • The level of detail that must be                  automated systems require submission
                                                  included the following:                                 included in the initial report will                    of an APD for development and


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                          2731

                                                  procurement. For any major change that                  major change with an initial report and                should provide a limit on the travel time
                                                  does not require waiver authority or                    the subsequent negotiated data reports.                by public transportation of one-hour
                                                  approval outside of this rule, States                   FNS should retain discretion to require                one-way.
                                                  need not wait for FNS approval of their                 additional reports if the need arises.                    • The final rule should make clear
                                                  major change notification or a response                    Final rule—The Department has                       that households are at risk of hardship
                                                  to their major change notification.                     included in the final rule the ability for             if the nearest office is either at least
                                                     In response to comments that States                  the Department to define additional                    twenty-five miles away or not accessible
                                                  sometimes are not aware of a major                      criterion under which States must                      via public transit. Of course, offices in
                                                  change 120 days in advance of                           report major changes at                                some rural areas inevitably will not be
                                                  implementation, the Department has                      § 272.15(a)(2)(vi), to cover as yet                    on public transit lines because none
                                                  modified the language in the final rule                 unknown developments in State SNAP                     exist. This rule does not prohibit such
                                                  to account for these situations.                        operations. The addition of this ‘‘other’’             situations; it merely calls for monitoring
                                                  However, by definition, major changes                   criteria is based upon advocates’                      of their impacts. The final rule should
                                                  are significant and the Department                      concerns that as time passes States                    make clear that the closure of any office
                                                  generally believes that to be well                      could make innovative changes that are                 that takes applications requires scrutiny;
                                                  planned and thought through, such                       not enumerated in the regulations, and                 of course, if another nearby office
                                                  changes require at least 120 days lead                  thus would not be required to be                       remains available nearby, the closure
                                                  time. Therefore, the final rule maintains               reported. The Department has not                       would not be a major systems change.
                                                  the 120-day reporting timeframe, but                    adopted the suggestion that major                         • The proposed triggers are
                                                  allows for rare instances when States                   changes be categorized by ‘‘size.’’ After              unrealistic in many States, including a
                                                  cannot report with this amount of lead                  careful consideration, the Department                  closure that would require clients to
                                                  time. In such instances, States will be                 believes that this approach would                      travel more than 25 miles; there are
                                                  required to explain the lack of lead time.              unnecessarily complicate the final rule                many areas where households already
                                                     Provision/Issues—§ 272.15(a)(2):                     by requiring the development of                        do not live within 25 miles of a local
                                                  Major changes shall include the                         additional definitions and explanation                 office.
                                                  following criteria (comments on                         with minor impacts on its                                 • We recommend that this section be
                                                  individual criteria discussed below):                   implementation.                                        rewritten to require States to report
                                                     Public Comments and                                     The Department has not adopted the                  when an office is closed that serves five
                                                  Recommendations—While almost all                        recommendation that an option be                       percent of their caseload.
                                                  commenters offered their thoughts and                   provided that would allow States to                       • The opportunity for face-to-face
                                                  recommendations on some aspect of the                   begin reporting certain new measures on                contact for all clients in a conveniently
                                                  major change criteria in this section (as               an ongoing, statewide basis as an                      located physical setting might be
                                                  discussed below), a few comments were                   alternative to reporting on each separate              desirable, but it is not realistic in
                                                  more general. General comments on this                  major change. Such an option would                     today’s highly constrained fiscal
                                                  section include the following:                          seem to offer States little incentive since            environment. Services for clients will
                                                     • The final rules should include a                   they would incur the additional cost of                not necessarily suffer if staff is reduced
                                                  residual category for any other major                   ongoing data reporting that may not be                 or offices are closed. Interactions
                                                  changes in State administration that the                needed. In addition, if a few States were              through electronic and automated
                                                  Department or a State agency identifies                 to adopt this option, it is not clear what             means allow clients to choose a contact
                                                  as having the potential to adversely                    FNS would do on an ongoing basis with                  time that is best for them and allows
                                                  affect program integrity or access. Even                data reported by a limited number of                   them to do so from their home or other
                                                  the best program administrators would                   States. On the other hand, States can                  location with computer access (as is the
                                                  not likely have anticipated all of the                  always submit additional information to                case with numerous community
                                                  challenges the program faces today had                  FNS even without a formal option to do                 organizations). Accompanied by the
                                                  they attempted to compile a list like this              so. Additional information might also be               appropriate alternative methods and
                                                  one a decade or two ago.                                required, depending on the nature of the               technology, not only can office closures
                                                     • FNS should categorize major                        major change.                                          be done without negative effects, but
                                                  changes as being significant, medium or                    Provision/Issues—§ 272.15(a)(2)(i):                 they can be done while improving
                                                  small, and require different reporting                  Closure of one or more local offices that              program access and integrity. The
                                                  based on the scope of the change that                   perform major functions for 500 or more                proposed standards of 25 miles and 500
                                                  the State is planning to make. FNS                      SNAP households, and there is not                      households are ridiculously low, and do
                                                  would retain discretion to require more                 another office available to serve the                  not even remotely reflect the realities of
                                                  reports in unusual circumstances, but                   affected households within 25 miles or                 the way business currently is being
                                                  this change would make the reporting                    that can be reached via public                         done by the States.
                                                  requirements more predictable for States                transportation.                                           • This definition may inadvertently
                                                  and for FNS. For significant changes, we                   Public Comments and                                 include certain part-time or temporary
                                                  recommend that FNS require States to                    Recommendations—Twelve                                 eligibility worker locations, such as
                                                  report statewide information that will                  commenters addressed this provision of                 mobile vans or out-stationed workers
                                                  allow FNS and the State to assess                       the proposed rule and their comments                   and a change in schedule or termination
                                                  whether the State’s process is                          included the following:                                of these placements should not be
                                                  adequately providing access to eligible                    • We agree that office closings are                 included as a major change. These types
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                                                  households, with enough detail on sub-                  major changes. However, even if there is               of temporary office locations are
                                                  state areas and sub-populations within                  another office within 25 miles or that                 developed as a result of caseload or
                                                  the State that problems can be identified               can be reached by public transportation,               administrative funding decisions that
                                                  and corrected.                                          the change is unquestionably major if                  may vary from year to year, and should
                                                     • FNS should offer States the option                 the nearest office takes more than an                  not be considered a major change.
                                                  to report certain new measures on an                    hour to get to or costs more than $10                     • The harsh financial realities that
                                                  ongoing, statewide basis as an                          round trip to reach by public                          States are facing may leave no choice
                                                  alternative to reporting each separate                  transportation. The final regulation                   other than to consolidate their offices.


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                                                  2732              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  However, given the opportunities that                   because it would be more than 5 percent                   • The final rule should make all new
                                                  clients will have for telephonic contact                of the State’s caseload.                               or expanded online application systems
                                                  with State agencies, we do not believe                     The reference to public transportation              and call center arrangements subject to
                                                  that such consolidations will result in                 has been eliminated to simplify the                    review as major systems changes.
                                                  negative effects, but will likely improve               criteria and because the cost of public                   • Document imaging systems should
                                                  access and integrity. In our opinion,                   transportation beyond 35 miles is                      be included as a major change. In our
                                                  office consolidation should not be                      generally prohibitive for SNAP                         experience, the introduction of a
                                                  considered a major change.                              households. The Department has also                    document imaging system is in fact a
                                                     • Rural States have many areas with                  specified that an ‘‘office performing                  major change in office operations which
                                                  more than 25 miles between towns. The                   major function’’ is an office where                    has the potential to greatly enhance or
                                                  miles should be increased to 100 or                     households can file an application for                 undermine program administration and
                                                  more. Also the number of households                     SNAP in person and receive assistance                  client access to benefits.
                                                  served should be increased from 500 to                  from merit system personnel. Closing a                    • The proposed rule identifies the
                                                  1000.                                                   ‘‘temporary’’ office or changing the                   ‘‘replacement’’ of the State’s
                                                     • In general, the office closure                     location of a mobile unit would not be                 certification system as an example of a
                                                  standard should be retained in the final                considered a major change.                             systems change. Recommend that the
                                                  rule. The regulation’s standard of office                  Provision/Issues—§ 272.15(a)(2)(ii):                final rule be changed to include
                                                  closures that affect 500 households or                  Substantial increased reliance on                      significant changes to automated
                                                  more is reasonable and allows States to                 automated systems for the performance                  systems that fall short of ‘‘replacement,’’
                                                  consolidate very small offices where                    of responsibilities previously performed               such as adding major new functions or
                                                  they can achieve administrative                         by State merit personnel (as described                 a web-based tool that feeds into an older
                                                  efficiencies, while still protecting                    in section 11(e)(6)(B) of the Act) or                  system.
                                                  households’ ability to appear in person                                                                           • The proposed regulation makes
                                                                                                          changes in the way that applicants and
                                                  to apply and get assistance. The final                                                                         clear that the reporting requirements for
                                                                                                          participants interact with the State’s
                                                  regulation should be revised to clarify                                                                        major changes under the proposed rule
                                                                                                          SNAP agency. Establishment of an
                                                  that an office closure would count                                                                             do not remove the separate APD
                                                                                                          online application process through the                 approval requirements under § 277.18.
                                                  toward the State meeting the criterion
                                                                                                          Internet or the use of call centers to                 This is an important clarification and
                                                  only if there is another office within 25
                                                                                                          accept applications would not be a                     should be retained in the final rule.
                                                  miles or that can be reached easily via
                                                                                                          major change unless one of these                          • Recommend the final regulation
                                                  public transportation.
                                                     • The final regulation should provide                methods is expected to account for five                provide that online and telephone
                                                  that, to qualify as an office that                      percent or more of the State’s SNAP                    applications will be considered a major
                                                  ‘‘performs major functions’’, the office                application. Reporting a major change as               change unless a State can demonstrate
                                                  must be a place where households can                    required in this section does not relieve              to FNS’ satisfaction that such
                                                  file an application and receive                         States of meeting the requirements for                 applications will not account for more
                                                  assistance in filling out the application               new system approvals in § 277.18.                      than five percent of applications once
                                                  from a State employee.                                     Public Comments and                                 the new application is fully
                                                     Final Rule—It is important to clarify                Recommendations—Twelve                                 implemented.
                                                  that the Department does not assume                     commenters addressed this provision of                    Final Rule—The Department has
                                                  that local office closures are always                   the proposed rule and their comments                   made several changes to clarify this
                                                  negative, but they do reduce program                    included the following:                                provision based upon the above
                                                  access for some households. As some                        • State systems are regulated under                 comments and recommendations. The
                                                  commenters point out, the actions States                § 277.18. This section requires States to              Department has clarified that a State
                                                  take to offset such closure may benefit                 obtain prior approval from FNS for                     must report the replacement of an
                                                  many other households. While keeping                    automated data processing equipment                    automated system, adding functionality
                                                  office closures as a major change                       used in the administration of SNAP.                    to an existing automated system and
                                                  criterion is necessary to provide FNS                   Requiring States to complete another                   changes that impact the way applicants
                                                  with information regarding the impact                   detailed document to notify FNS of                     and participants interact with SNAP
                                                  of the closures and what a State is doing               change is duplicative, inefficient and                 unless the State documents that less
                                                  to offset the impact of the closure, the                unnecessary. The information in the                    than five percent of the caseload will be
                                                  Department modified this criterion in                   APD could be expanded to include the                   affected by the change. Examples of
                                                  the final rule in response to                           analysis that would have been required                 changes that increased reliance on
                                                  commenter’s concerns. The Department                    with the 120-day advance notice.                       automation that would likely affect five
                                                  has increased the number of SNAP                           • Business rules of eligibility                     percent or more of a State’s caseload
                                                  households affected by a local office                   determination and benefit calculation                  include, linking a portal (a computer
                                                  closure from 500 to 750 households and                  are already built into the systems that                Web site that allows greater access and
                                                  changed the distance to another office                  workers use. The business rules, design                functionality) to the State’s SNAP
                                                  available to serve the affected                         and function of these systems are tested               eligibility system, introducing online
                                                  households from 25 to 35 miles. To                      and approved by merit system                           applications, call centers, and finger
                                                  balance these changes, the Department                   employees.                                             imaging. The Department recognizes
                                                  has also modified the final rule by                        • Discussion under this criterion                   that technologies are evolving and the
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                                                  setting the threshold that an office                    again reveals an assumption that                       major changes that will be reported
                                                  closing that represent the lower of 750                 changes such as call centers will almost               under this criterion may evolve as States
                                                  households or at least 5 percent of a                   by definition jeopardize customer                      find new practices that will improve
                                                  State’s caseload will be considered a                   service and access. This contradicts the               efficiency and customer service.
                                                  major change. Thus, for example, if a                   experience of many State systems that                     Provision/Issues—§ 272.15(a)(2)(iii):
                                                  State had a caseload of 14,000 and an                   have dramatically improved client                      Changes in operations that potentially
                                                  office with 701 households is being                     service and access by the use of call                  increase the difficulty of households
                                                  closed, this would require a report                     centers.                                               reporting required information. This


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                           2733

                                                  includes implementation of a call center                locations, through Web sites and in                    commenters felt that any use of non-
                                                  for change reporting, a major                           person at community partners and                       merit system personnel should be
                                                  modification to any forms that                          service locations.                                     prohibited in the rule. There was also a
                                                  households use to report changes, or the                   Final Rule—Based upon comments,                     recommendation that any significant
                                                  discontinuation of an existing avenue                   the Department has revised the final                   increase in reliance on other agencies,
                                                  for reporting changes, (e.g., households                rule to: (1) Add as a major change the                 including ‘‘community partners’’ and
                                                  can no longer call the local office to                  adoption of internet portals to report                 other non-profit or local government
                                                  report a change). Modifying selected                    changes in household circumstances; (2)                entities, should be considered a major
                                                  change reporting policy options or the                  clarify the example from the proposed                  systems change. The primary
                                                  implementation of policy waivers                        rule to focus attention on a change that               recommendation from commenters is to
                                                  would not be major changes.                             would limit participants’ reporting                    remove this criterion from the definition
                                                     Public Comments and                                  avenues; and (3) clarify that States                   of a major change. Some commenters
                                                  Recommendations—Nine commenters                         selecting reporting options allowed                    suggested that information on use of
                                                  addressed this provision of the                         under the rules or obtaining a waiver                  non-merit system personnel could be
                                                  proposed rule and their comments                        from FNS are separate actions, but that                obtained by amending § 272.15(a)(2)(v)
                                                  included the following:                                 neither would be considered a major                    on decreases in staffing levels to
                                                     • To ensure that changes in reporting                change.                                                accomplish the same goal. If that
                                                  practices and technologies do not harm                     Provision/Issues—§ 272.15(a)(2)(iv):                criterion were amended to say that cuts
                                                  households, it is important that this                   Use of non-merit pay staff to perform                  in merit systems staff triggered the
                                                  criterion be retained in the final                      functions previously performed by merit                report, then any State that tried to
                                                  regulation. There are two places where                  personnel. While the interview and the                 replace merit systems personnel with
                                                  the proposed regulation needs to be                     eligibility decision functions must be                 private employees would meet the
                                                  changed in light of the other proposed                  performed by merit personnel (unless                   trigger criterion. APHSA and the States
                                                  rule that was published in the Federal                  FNS approves a waiver request under                    that commented on this provision
                                                  Register on the same day regarding                      Section 17 of the Act), other functions                generally objected to the Department’s
                                                  change reporting rules. First, this                     including obtaining verification of                    position that use of non-merit system
                                                  proposed regulation at § 272.15(a)(2)(iii)              household circumstances, accepting                     personnel will result in poor program
                                                  uses the example that States might                      reports of changes in household                        administration. They felt that the
                                                  ‘‘[discontinue] an existing avenue for                  circumstances, accepting applications                  Department’s position reduces States’
                                                  reporting changes, e.g., households                     and screening households for expedited                 ability to be innovative in improving
                                                  [could] no longer call the local office to              service may be performed by non-merit                  program operations and respond to
                                                  report a change.’’ This example should                  personnel (although FNS must approve                   reduced budgets and increased
                                                  be removed or refined. In addition, FNS                 a State’s use of non-merit pay staff                   caseloads. They felt it is inappropriate
                                                  should remove the clause that suggests                  before matching funds will be provided                 to prejudge based upon the experience
                                                  that policy waivers could be needed to                  for the performance of these functions).               in a couple of States. Specific comments
                                                  implement a change reporting policy                     Functions such as data entry and                       included the following:
                                                  option.                                                 document imaging do not involve                           • The final rule should explicitly
                                                     • The final rule should treat as a                   interaction with households, and                       identify all functions that may require
                                                  major systems change any change in the                  consequently, the use of non-merit pay                 discretion or professional judgment as
                                                  systems that households must use for                    staff in activities of this type would not             ‘‘eligibility decision functions’’ that may
                                                  reporting changes except a simple                       constitute a major change.                             not be privatized.
                                                  switch between the reporting options                       Public Comments and                                    • Further clarification is requested on
                                                  allowed under section 6(c) of the Act.                  Recommendations—This proposed                          the issue of the specific functions that
                                                     • Discussion under this criterion                    provision received attention from 105                  non-merit system personnel may
                                                  appears to assume that changes such as                  commenters (10 advocacy/legal aid                      perform. Any significant increase in
                                                  call centers will almost by definition                  groups, the American Public Human                      reliance on other agencies, including
                                                  jeopardize customer service and access.                 Services Association (APHSA), 5 States,                ‘‘community partners’’ and other non-
                                                  This contradicts the experience of many                 4 unions, and 85 individuals, many,                    profit or local government entities,
                                                  State systems that have dramatically                    who appeared to be case workers/union                  should be considered a major systems
                                                  improved client service and access by                   members that submitted form letters).                  change.
                                                  the use of call centers.                                Except for APHSA and the States, the                      • While the statute names this
                                                     • This section should be rewritten so                commenters overwhelmingly opposed                      criterion as one that FNS can examine,
                                                  that States are required to report only                 inclusion of this criterion as a major                 it does not allow the agency to prejudge
                                                  when reducing reporting options or                      change. The reason most often cited is                 the impact of using non-merit system
                                                  requiring one specific process. Likewise,               that including use of non-merit system                 personnel.
                                                  changing a form does not rise to the                    personnel in the definition of a major                    • The final regulation must be
                                                  level of change intended by the Act.                    change gave the appearance that the                    changed to ensure privatization is not
                                                     • Considering a modification to, or                  Department accepted such a change as                   codified and legitimized in Federal
                                                  even a complete redesign of, a form for                 an allowable State choice. Many                        regulations as an allowable option.
                                                  reporting to be a ‘‘major’’ change                      commenters acknowledged that the                          • The preamble to the proposed rule
                                                  represents an unwarranted and                           preamble to the proposed rule expressed                acknowledges that privatization of work
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                                                  unnecessary level of intrusion into the                 the Department’s opposition to using                   currently performed by public
                                                  States’ administration of the program.                  non-merit system personnel, outlined                   employees constitutes a major change
                                                     • This seems to presuppose that                      the limitations in the Act on the                      and that States would be required to
                                                  portals built by States for change                      functions such staff may perform, and                  report this change to FNS. The
                                                  reporting will automatically derive a                   explained that, without approval, FNS                  Department acknowledges that non-
                                                  negative impact. Today, customers can                   may not match funding for non-merit                    merit system personnel interacting
                                                  contact the agency in a wide variety of                 system personnel working in SNAP                       directly with households has the
                                                  ways, e.g., via the telephone at multiple               operations. However, several                           potential of increasing the burden on


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                                                  2734              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  households applying for and                             require States to report to FNS if they                Add a staff cut of more than ten percent
                                                  participating in SNAP. It is contrary to                planned to begin using such staff in the               over three years as another measure of
                                                  good sense and effective public policy                  administration of the program. The                     a decrease in staffing levels that would
                                                  for the Department to authorize this                    preamble to the proposed rule stated                   need to be reported; clarify that a
                                                  model when the Department itself                        that, ‘‘In addition, FNS has determined                decrease in merit system personnel
                                                  acknowledges that all available                         that use of non-merit system personnel                 would need to be reported; provide that
                                                  evidence to date documents costly                       in these functions can have a                          cuts in State staff would not count
                                                  failures.                                               detrimental impact on the efficient and                ‘‘losses of staff that occur through
                                                     • We are very much opposed to the                    effective operation of the program and,                resignation, retirement or release when
                                                  apparent legitimization of the use of                   as a consequence, must approve States’                 the State is seeking to replace the staff’’;
                                                  non-merit system personnel to perform                   use of such staff before sharing in the                and strengthen the final rule to clarify
                                                  critical SNAP functions. In our                         costs of non-merit staff in the                        that the State must be seeking to replace
                                                  experience, private entities do a poor                  performance of the above functions.’’                  the staff within the year to not warrant
                                                  job of executing traditional State                      The Department continues to believe                    a report.
                                                  functions. Even well-meaning nonprofit                  that the use of non-merit system                          • We suggest that FNS identify an
                                                  organizations are unable to maintain                    personnel can be detrimental to program                additional baseline for staffing that
                                                  timeliness, statewide uniformity and                    performance and service to participants                would also trigger the application of this
                                                  accuracy when they take over activities                 and in April 2013, reiterated its                      regulation. For example, a measure of
                                                  that have traditionally been done by                    concerns and policy regarding                          cases per certification worker might be
                                                  merit system personnel. For-profit                      outsourcing in a letter to all States’                 appropriate, so that States that have
                                                  entities have even greater incentive to                 Governors. In response to the significant              relatively few workers for the size of
                                                  cut corners, regardless of the                          number of comments, the Department                     their caseload would be subject to this
                                                  consequences for households. We urge                    has modified this provision in the final               regulation in the event of staffing
                                                  FNS to strike proposed                                  rule. The final rule requires States to                reductions, even if the five percent
                                                  § 272.15(a)(2)(iv).                                     report on any reduction or change of the               threshold were not met.
                                                     • Many States have instituted                        functions or responsibilities currently                   • Support the recognition that
                                                  fundamental delivery system changes                     assigned to SNAP merit system                          adequate staffing is critical if States are
                                                  hastily, such as closing offices and                    personnel staff. This will include, but                to provide adequate service. However,
                                                  opening call centers. Privatized call                   not be limited to, relieving or                        the proposed regulations should be
                                                  center operations in two States proved                  supplementing merit system personnel’s                 modified to recognize that ‘‘staffing
                                                  to be disastrous for SNAP beneficiaries                 duties performed in the SNAP                           levels’’ are not a measure of the absolute
                                                  and applicants.                                         certification process, handling reported
                                                     • There is no reason to codify a                                                                            number of full-time equivalents, but
                                                                                                          changes, responding to inquiries,                      rather a measure of the ratio of staff to
                                                  practice that the Administration                        handling complaints, collecting claims,
                                                  opposes and would not allow in the                                                                             the number of cases. If the ratio of staff
                                                                                                          investigating program violations or                    to SNAP cases decreases either because
                                                  future.                                                 conducting SNAP related reviews. With
                                                     • The proposed language creates the                                                                         of staff reductions or because of an
                                                                                                          this change in the final rule, a State will            increase in the caseload, the staffing
                                                  impression that States may be able to                   be required to notify FNS if it intends
                                                  secure waivers or approval for the use                                                                         level has declined even if the number of
                                                                                                          to change the role of its merit system
                                                  of non-merit system personnel. If FNS’s                                                                        staff is constant.
                                                                                                          personnel in any way that could impact
                                                  position remains that it is not likely to                                                                         • The final rule should make clear
                                                                                                          SNAP operations, including the
                                                  grant a waiver to use non-merit system                                                                         that it refers to full-time equivalent
                                                                                                          increased reliance on automated
                                                  personnel for interviews and                                                                                   (FTE) staff working on SNAP. The final
                                                                                                          systems.
                                                  certification, and that it has determined                  Provision/Issues—§ 272.15(a)(2)(v):                 rule should require States to report, on
                                                  that Federal financial participation                    Any decrease in staffing levels from one               a county or regional basis, the FTE staff
                                                  (FFP) is not appropriate for use of non-                year to the next of more than five                     administering the program each month.
                                                  merit system personnel in other client                  percent in the number of State or local                   • This proposal ignores scenarios in
                                                  contacts, we recommend that the final                   staff involved in the certification of                 which staff reductions could be
                                                  regulation specify this policy so as not                SNAP households. This would include                    accompanied by well-known efficiency
                                                  to encourage States to go down this                     decreases resulting from State budget                  measures such as adoption of broader
                                                  path.                                                   cuts or hiring freezes, but not include                categorical eligibility rules, the six-
                                                     • We strongly oppose the provisions                  loss of staff through resignation,                     month reporting option, or the
                                                  in the proposed regulation that would                   retirement or release when the State is                implementation of an efficient new
                                                  allow the privatization of the SNAP                     seeking to replace the staff.                          method of using electronic tools for
                                                  certification process and the waiver of                    Public Comments and                                 verification of income. The proposed
                                                  the merit system requirements. The                      Recommendations—Fourteen                               rule could also have an unusually
                                                  Department previously advised States                    commenters addressed this provision of                 severe impact on locally administered
                                                  that it did not support privatization of                the proposed rule and their comments                   offices; if the five percent trigger is
                                                  portions of the SNAP certification                      included the following:                                applied to them as well, some are so
                                                  process. The preamble to the proposed                      • Delete the language requiring States              small that they might have to report the
                                                  regulation notes these same concerns.                   to notify FNS of office closures or                    elimination of a single employee or even
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                                                     Final Rule—Many comments on this                     reductions in staffing levels as it goes               reductions in one employee’s hours.
                                                  provision of the proposed rule reflected                beyond the authority of the statute.                      • A prescribed reduction reporting
                                                  a lack of clarity regarding the                            • We strongly support including large               threshold of five percent would be
                                                  Department’s intent. It is important to                 decreases in staffing levels as one of the             difficult for States to track. This is true
                                                  clarify that it was never the                           types of State changes that would trigger              especially if States must include loss of
                                                  Department’s intent to condone the use                  a State to report to FNS. This criterion               staff to budget cuts and temporary
                                                  of non-merit system personnel in SNAP.                  should be retained in the final                        hiring freezes. This requirement should
                                                  On the contrary, the intent was to                      regulation. Also recommend that FNS:                   be removed from the proposed rule.


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                          2735

                                                     • As written, it is unclear how the                  within a 6-month timeframe. Evidence                   undertaken prior to implementing the
                                                  proposed rule would be applied to those                 of the intent to replace staff includes                change.
                                                  States that are State-supervised but                    advertising to fill positions and having                  • Several of the factors listed in
                                                  locally-administered. We urge FNS to                    sufficient funding in the personnel                    proposed § 272.15(a)(3)(ii) are not so
                                                  consider only requiring the States to                   budget for the new hires.                              much measures as they are aspects of
                                                  report aggregate, statewide reductions in                  It is important to note that this                   program performance. It should also
                                                  State and local staffing, not reductions                criterion defines when States are to                   include: The State’s participation rate;
                                                  at each local office.                                   report to FNS. The notification and                    share of households leaving the program
                                                     • Reductions in staffing levels or the               accompanying analysis will allow FNS                   at the conclusion of their certification
                                                  imposition of hiring freezes are budget                 to determine whether there is a need for               periods; and the percentage of
                                                  actions that may not be known to or                     additional information.                                applications (divided by expedited
                                                  determined by the State or local                           Provision/Issues—§ 272.15(a)(3):                    initial applications, non-expedited
                                                  agencies until after a budget action has                When a State initially reports a major                 initial applications, and applications for
                                                  occurred, and it may be impossible to                   change to FNS, as required in                          recertification) that are approved, are
                                                  notify FNS 120 days in advance. This                    § 272.15(a)(1), an analysis of the                     denied for substantive ineligibility (or
                                                  definition of a five percent decrease in                expected impact of the major change                    eligibility for zero benefits), and are
                                                  staff is not explicitly identified in the               shall accompany the report. The initial                denied for procedural reasons.
                                                  FCEA, and imposition of this                            report to FNS that the State is making                    • We support proposed § 272.15(a)(3),
                                                  requirement goes beyond the intent of                   one of the major changes identified in                 which details the type of information
                                                  the legislation.                                        § 272.15(a)(2) shall include a                         that States must provide to FNS in
                                                     • This will be difficult to administer.              description of the change and an                       connection with a planned major
                                                  Staff reductions are controlled by the                  analysis of its anticipated impacts on                 change. However, we suggest the
                                                  Governor and the Legislature, not State                 program performance.                                   regulation require States to analyze the
                                                  agencies. Also, five percent is                            Public Comments and                                 impact of the change on timely
                                                  unreasonable. The five percent should                   Recommendations—Seven commenters                       processing of recertifications. The final
                                                  be increased to at least ten percent at a               addressed this provision of the                        rule should also require States to have
                                                  minimum. This rule should be changed                    proposed rule and their comments                       a meaningful process for consulting
                                                  to state that if staff reductions of greater            included the following:                                with stakeholders (including program
                                                  than ten percent are mandated, FNS                         • FNS is correct to require States in
                                                                                                                                                                 beneficiaries, advocates, community
                                                  should be notified of the change and                    the initial report to describe the features
                                                                                                                                                                 organizations and anti-hunger groups).
                                                  how the State is handling the change.                   and timing of the planned major change,
                                                     • The final rule should require States                                                                         • The regulations should require
                                                                                                          what it is intended to accomplish, how
                                                  to report, on a county/regional basis, the                                                                     States intending to implement major
                                                                                                          it will be tested, piloted, and monitored
                                                  FTE staff administering the program by                                                                         changes to submit to FNS copies of
                                                                                                          and the expected effects on eligibility
                                                  month.                                                                                                         procedures and other documents
                                                                                                          workers and recipients. All of these
                                                                                                                                                                 demonstrating that the State has taken
                                                  Final Rule                                              elements should be maintained in the
                                                                                                                                                                 steps to minimize the potential negative
                                                                                                          final rule.
                                                     The final rule retains the basic                        • The word disproportionately                       impact of the proposed change on
                                                  requirement that a decrease of more                     should be deleted from proposed                        individuals with disabilities.
                                                  than five percent in the number of State                § 272.15(a)(3)(ii)(E). Also, the two                      • FNS has quite sensibly
                                                  or local merit system personnel                         ‘‘ands’’ in the paragraph should be                    acknowledged that the data collection
                                                  involved in the certification process of                changed to ‘‘ors’’. Not all of these types             requirements mandated by section 4116
                                                  SNAP households from one year to the                    of households need to be affected or                   of FCEA, as far as possible, should use
                                                  next will be considered a major change.                 features of the certification process need             data and reports already provided or
                                                  In addition, the Department agreed with                 to be more difficult. If one is true, then             available to meet these requirements.
                                                  commenters that cumulative decreases                    the clause should apply.                                  • Much of the data in question will be
                                                  beyond a single year can have a                            • FNS should add one additional                     a normal part of any APD request in any
                                                  significant impact. Consequently, the                   item to the list of items in the initial               event. The potential requirement for
                                                  final provision has been modified to                    report: A discussion of the budgetary                  county-level impact data will be
                                                  also make a decrease of more than eight                 effects of the change. This item should                particularly difficult to implement, and
                                                  percent in the number of State or local                 include the estimated cost of any                      that caseload sizes in many counties are
                                                  merit system personnel involved in the                  systems change, as well as the expected                low enough that the validity of data will
                                                  certification process of SNAP                           overall budgetary impact of the change                 be highly questionable.
                                                  households over a two year period a                     for State and Federal SNAP costs,                         • The data collection mandates in
                                                  major change.                                           including benefit costs and                            this regulation would largely duplicate
                                                     Also in response to commenters’                      administrative costs.                                  existing information that FNS has, and
                                                  suggestions, the language of this                          • The five general analysis                         create increasingly burdensome data
                                                  provision has been clarified and                        requirements are well-rounded, pulled                  collection and report preparation.
                                                  strengthened. A reference to decreases                  from existing data, and should be                         • FNS does an excellent job summing
                                                  across the State was added since this                   sufficient to meet the intentions of the               up what the Act requires in the opening
                                                  criterion is intended to apply to the total             Act.                                                   paragraph. The remaining information is
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                                                  number of merit personnel in States                        • The final rule should require States              overly detailed, rigid and so
                                                  rather than in each individual local                    to explain any stages in implementation,               burdensome to States that it will stall
                                                  office or county within a State. Major                  either as the change is fully                          innovations, and prevent access and
                                                  changes include decreases resulting                     implemented in one area or as it rolls                 program integrity improvements in the
                                                  from State budget cuts or hiring freezes,               out across multiple areas (whether or                  SNAP program.
                                                  but do not include loss of staff through                not it eventually becomes statewide).                     • States do not have the time or
                                                  resignation, retirement or release when                    • The final rule should require the                 resources to address every issue
                                                  the State is seeking to replace the staff               State to disclose what testing it has                  required to be reported.


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                                                  2736              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  Final Rule                                                § 272.15(b)(3): Depending on the type                change that the State is planning to
                                                     The final rule retains the basic                     of major change, its implementation                    make. FNS would retain discretion to
                                                  requirement that States’ reports of major               schedule and negotiations with FNS,                    require more reports in unusual
                                                  changes include a description of the                    States shall submit reports on their                   circumstances, but this change would
                                                  change to be implemented and an                         major changes either monthly or                        make the reporting requirements more
                                                  analysis of its expected impacts on                     quarterly.                                             predictable for States and for FNS.
                                                  SNAP. In addition, the Department                         § 272.15(b)(4): States shall submit                     • FNS should offer States the option
                                                  agreed with commenters that additional                  reports for one year after the major                   to report certain new measures on an
                                                  data items are necessary. Consequently,                 change is fully in place. FNS may                      ongoing, statewide basis as an
                                                  the final provision has been modified to                extend this timeframe as it deems                      alternative to reporting each separate
                                                  add the following:                                      necessary.                                             major change with an initial report and
                                                     • The projected administrative cost of                 § 272.15(b)(5): If FNS becomes aware                 the subsequent negotiated data reports.
                                                  the major change in the year it is                      that a State appeared to be                               • The final rule should sort major
                                                  implemented and the subsequent year;                    implementing a major change that had                   systems changes into categories based
                                                     • A description of any consultation                  not been formally reported, FNS would                  on their likely risk. More data should be
                                                  with stakeholders/advocacy groups or                    work with the State to determine if it is              required for riskier changes.
                                                  public comment obtained regarding the                   a major change, and if so proceed as                      • We recommend that the exact
                                                  planned changes; and                                    required by this section.                              measures be made more explicit in the
                                                     • Procedures the State will put in                     These provisions are closely related                 final regulation and that FNS’ discretion
                                                  place to minimize the burdens on                        and commenters’ thoughts and                           to introduce new measures and enter
                                                  people with disabilities and other                      recommendations are best examined                      into negotiations with States be
                                                  populations relative to the change.                     together.                                              narrowed. These measures include sub-
                                                     Also, in response to commenters’                       Public Comments and                                  state information or case reviews to
                                                  suggestions, the language of                            Recommendations—Fifteen commenters                     gather more detailed information on
                                                  § 272.15(a)(3)(ii)(E) as amended by the                 addressed these provisions of the                      measures FNS already has at the State
                                                  final rule has been clarified to replace                proposed rule and their comments                       level, such as payment accuracy,
                                                  the use of the word ‘‘and’’ in two places               included the following:                                negative error rates and timeliness.
                                                  with the word ‘‘or’’. While seemingly                     • Collecting detailed data with case                    • States should have an ongoing data
                                                  minor, this change is important in                      reviews is particularly burdensome for                 collection system for monitoring their
                                                  examining the potential effect of major                 State and local staff during transition                monthly performance in processing of
                                                  changes in SNAP on vulnerable                           periods, and could negatively impact                   applications and recertifications. FNS
                                                  populations.                                            customer service.                                      should require all States to have such a
                                                     Some suggestions made for additional                   • Support the proposed regulation’s                  data collection system, regardless of
                                                  data to be reported were not adopted                    detailed discussion of the types of                    whether the State is embarking on a
                                                  because the Department could not                        information that FNS will require from                 major system change.
                                                  determine how the data would be used                    the State as to the impact of the change.                 • To the extent that the final rule
                                                  in making its determination or what, if                 We commend FNS for its careful                         continues to rely upon case-by-case
                                                  any, data would be needed from the                      identification of the types of                         negotiated data requests rather than a
                                                  State beyond the automatic reporting                    information needed to assess the effects               stronger baseline of data provided on an
                                                  requirements discussed below.                           of major changes, especially as they                   on-going basis by all States, it also
                                                     Provision/Issues—§ 272.15(b)(1)–(5):                 pertain to the effects on beneficiaries.               should specify in greater detail the data
                                                  § 272.15(b)(1) FNS will evaluate the                      • The proposed regulation at                         that the Department is likely to desire
                                                  initial report provided by a State to                   § 272.15(b)(2)(iii)(B) through                         and indicate that the Department will
                                                  determine if it agrees that the change is,              (b)(2)(iii)(D) on call centers requires                attempt to avoid seeking more data than
                                                  in fact, major and, if so, will propose                 information on ‘‘hold time,’’ ‘‘wait                   those elements except for the riskier
                                                  what information it will require from                   time’’ and ‘‘abandoned calls’’. The final              categories of changes.
                                                  the State. While FNS reserves the right                 rule should be amended to also include                    • FNS should use the extensive data
                                                  to require the information it needs to                  instances when a caller cannot get                     already collected in SNAP except in the
                                                  determine the impact of a major change                  through (e.g., busy signals or dropped                 most unusual situations.
                                                  on integrity and access in SNAP, FNS                    calls).                                                   • The level of detailed data reporting
                                                  will work with States to determine what                   • Particularly troubling is the                      that is being proposed may not be
                                                  information is practicable, and require                 emphasis of the proposed rules on                      appropriate for all major changes, unless
                                                  only the data that is necessary and not                 potentially requiring county level                     the scope of major changes is
                                                  otherwise available from ongoing                        impact data for changes deemed to be                   significantly narrowed. While the
                                                  reporting mechanisms. Depending upon                    ‘‘major’’. Again, such a requirement                   proposed Federal regulations specify
                                                  the nature of the major change, FNS will                does not reflect the reality of the way                that FNS will negotiate with the States
                                                  require more specific or timely                         many States operate. Even in those                     on the reporting requirements and that
                                                  information concerning the impact of                    States that have county project areas,                 FNS will utilize available data (e.g.,
                                                  the major change (Please see the NPRM                   caseload size and case activity volumes                quality control data), the amount of
                                                  for full text of the proposed provision).               in a given county often can make the                   information that is required would be
                                                     § 272.15(b)(2): Additional data that                 gathering of the representative samples                administratively onerous and costly
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                                                  States could be required to provide,                    necessary to evaluate the effect of a                  given the potentially high degree of
                                                  depending upon the type of major                        change on that county difficult, and the               frequency that such changes could
                                                  change being implemented. (The rule                     confidence level of short term                         occur, conflicts with the Paperwork
                                                  goes on to give specific examples of the                evaluations questionable.                              Reduction Act, and neither the counties
                                                  types of data that may be required                        • FNS should categorize major                        nor the States have the additional staff
                                                  relative to different types of major                    changes as being small, medium or                      resources.
                                                  changes. Please see the NPRM for full                   significant and require different                         • A State implementing a major
                                                  text of the proposed provision).                        reporting based on the scope of the                    change should submit data regarding


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                          2737

                                                  individuals with disabilities including                 examining the impact of any major                      certification activities that are carried
                                                  the numbers of individuals who                          change in a State’s operation. While the               out using other telephonic methods has
                                                  requested and received accommodations                   final rule retains FNS’ ability to require             not been adopted since States have been
                                                  in the application, interview, or                       additional information on a case-by-case               using telephones in their operation of
                                                  recertification process for disabilities,               basis (§ 272.15(b)(5)), the final rule                 SNAP for decades. However, using
                                                  and the types of accommodations                         establishes minimum data reporting                     telephonic technology to accept
                                                  requested and provided (some State                      requirements for all major changes,                    applications or relying upon an
                                                  benefit agencies already have policies                  which will also enable States to build                 interactive voice response system to
                                                  requiring the agency to track this                      these requirements into their plans and                provide case status information to
                                                  information).                                           systems when making major changes.                     participants would be a major change
                                                     • The final rule should provide for                     This change has required some                       under § 275.15(a)(2)(ii) as amended by
                                                  careful evaluation of the sufficiency of                reorganization of the provisions as they               this final rule.
                                                  the State agency’s fallback plan,                       appeared in the proposed rule.                            Some comments reflected
                                                  including the availability of the                       § 272.15(b)(1), (2) and (3) identify the               misunderstandings of the proposed rule.
                                                  resources necessary to carry it out. The                data elements that shall be reported for               As noted earlier, this final rule does not
                                                  final rule should provide that returning                all major changes, as well as those that               provide FNS with approval authority
                                                  to the prior method of administration                   must be broken out specifically for                    over States’ plans to make a major
                                                  should presumptively be one of the                      households with elderly and disabled                   change. Nor does the Act give the
                                                  elements of the State agency’s fallback                 members and those that are to be                       Department the authority to require
                                                  plan unless the State agency presents                   reported at the sub-State level (e.g.,                 additional ongoing reporting on State
                                                  compelling reasons why it should not                    counties or local offices). Reporting this             performance and operations beyond the
                                                  be.                                                     information for the most vulnerable                    context of major changes.
                                                     • The break-out of negative errors is                SNAP households is consistent with the                    Some comments suggested that
                                                  important, but needs to be augmented.                   Act and the need to identify and address               requiring additional reporting indicates
                                                  It also should include break-outs of                    adverse impacts on program access for                  an assumption that major changes are
                                                  denials between substantive and                         households that may struggle with                      detrimental to SNAP participants. On
                                                  procedural. Moreover, it should be                      change more than others. The                           the contrary, FNS has long supported
                                                  broken-out to identify problems                         Department agrees with the comments                    States’ efforts to modernize and agrees
                                                  affecting specific types of households,                 regarding local level reporting that sub-              that many State innovations have
                                                  such as elderly persons who may have                    state information is generally necessary               improved operations. Nevertheless,
                                                  less comfort with technology or limited                 for States and FNS to understand,                      there have been times when well-
                                                  English proficient households who may                   monitor, and address adverse impacts of                intentioned changes have had adverse
                                                  have difficulties with online systems                   a major change. The impacts can be                     impacts on program access or integrity
                                                  not in their language.                                  uneven across urban and rural areas, for               and FNS, not fully informed of States’
                                                     • The proposed regulations reflect a                 example, and can vary based upon the                   plans, was unable to work with the State
                                                  common sense approach to analyzing                      how and when a major change is rolled                  and help mitigate these impacts.
                                                  the effects of a major change. States with              out in different jurisdictions. This is                Furthermore, certain changes have a
                                                  effective administration should already                 particularly true in county                            greater inherent potential to adversely
                                                  be collecting and analyzing the types of                administered/state supervised                          affect SNAP operations if they are not
                                                  data specified in § 272.15(b)(3)                        situations. Since States generally collect             compensated for appropriately, e.g.,
                                                  regardless of Federal regulations.                      sub-state information for their own                    office closings or staff reductions.
                                                     • Nowhere in the Act is FNS given                    management purposes, the Department                       With regard to the suggestion that the
                                                  the authority to approve or deny a                      expects the required inclusion of this                 final rule categorize major changes as
                                                  change a State intends to make, and yet                 information in reports to FNS should                   being small, medium or significant, and
                                                  throughout the proposed rule this                       require minimal additional effort for                  require different reporting based on the
                                                  authority is not only implied, but is                   most States. Therefore, § 272.15(b)(3) as              scope, the Department has not adopted
                                                  assumed.                                                amended by this final rule requires the                this suggestion because it would
                                                     • One commenter recommended that                     majority of the key ‘‘automatic’’                      complicate the rule and limit FNS’
                                                  States be required to submit the data for               reporting requirements be disaggregated                discretion without significantly
                                                  each month on a quarterly basis for two                 to provide sub-state information.                      streamlining the process for States or
                                                  years after the change is implemented                   Because States utilize different units of              FNS. This rule is intended to provide
                                                  (unless States have adopted the                         analysis for management and other                      FNS with the ability to examine major
                                                  recommended ongoing reporting                           purposes, the regulation allows sub-                   changes individually and require
                                                  option).                                                state data to be provided by individual                additional information beyond the
                                                                                                          districts, counties, project areas, or local           automatic reporting requirements. For
                                                  Final Rule                                                                                                     all major changes, FNS will also look to
                                                                                                          offices, subject to consultation with and
                                                     The final rule retains the requirement               approval by FNS. Section 272.15(b)(4)                  the data it already collects on an
                                                  that States will be required to report on               as amended by this final rule retains the              ongoing basis, i.e., quality control data.
                                                  the impact of major changes. However,                   provisions from the proposed rule that                 While FNS is interested in knowing
                                                  the most significant modification to this               FNS will evaluate the major change to                  what contingency plans a State may
                                                  final rule is the adoption of the                       determine what reporting requirements                  have, the suggestion that FNS should
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                                                  suggestion from commenters that key                     will be necessary. In light of the                     require States to have specific fall back
                                                  ‘‘automatic’’ reporting requirements be                 ‘‘automatic’’ requirements for all major               plans is beyond the scope of the Act.
                                                  established for all major changes. This                 changes discussed above, this                             The recommendation that the
                                                  is in response to commenters’                           determination will focus on what, if                   provisions of the final rule be applied to
                                                  suggestions that the regulations                        any, additional reporting requirements                 major changes made prior to its effective
                                                  prescribe basic data that FNS will                      will be necessary.                                     date has not been adopted for several
                                                  require for all major changes, as certain                  The recommendation that reporting                   reasons. First, States would have to
                                                  data elements would be useful in                        requirements be applied to all                         obtain historical data on the impact of


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                                                  2738              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  the change and such data is typically                   for anything that FNS may decide has                   oversight of client access and program
                                                  more difficult to obtain. Secondly,                     an ‘‘adverse impact.’’                                 integrity.
                                                  States’ reports received on the impact of
                                                                                                          Final Rule                                                • The solution to staffing shortages is
                                                  these older changes would be out of                                                                            to prioritize. Reducing oversight of the
                                                  date and therefore less useful to FNS in                   As explained earlier, the Department                largest program in the Department is not
                                                  monitoring their impact. Finally, the                   has neither the authority to approve or                a sensible means of prioritizing. If the
                                                  Department only requires retroactive                    deny (unless a State’s plans violate a                 problem is an insufficient Federal
                                                  implementation of final rules when it is                provision of the Act or SNAP                           Program Administration appropriation,
                                                  both practical and there is a compelling                regulations) a State’s plans, nor can it               the Department should realign staffing
                                                  need; neither of which apply to this                    require that States develop fallback                   of the various food assistance programs
                                                  rule. The recommendation for two years                  plans. With regard to when a State                     to be more proportional to the
                                                  of monthly reports would exceed the                     would be required to submit a corrective               taxpayers’ dollars at stake in each.
                                                  Departments needs and place an                          action plan due to an adverse impact,                     • Oppose the proposed changes that
                                                  unnecessary burden upon States. The                     the Department agrees that the                         eliminate the requirement for an annual
                                                  suggestion that States be required to                   provisions of this rule could open                     review of certain functions performed at
                                                  submit the monthly data on a quarterly                  another avenue for identification and                  the State agency level and the
                                                  basis has been adopted in the                           correction of deficiencies in a State’s                elimination of the requirement for a
                                                  restructured final rule in § 272.15(b)(5).              operation; this is the intent of the Act.              biennial review of the State’s ME
                                                  While the one year requirement is                       Therefore, the provision (now at                       system. The proposed regulation, which
                                                  retained from the NPRM in this final                    § 272.15(b)(8)) as amended by this final               lacks any specified frequency for
                                                  rule at § 272.15(b)(6), FNS may extend                  rule remains unchanged from the                        reviews, could lead to FNS’s abdication
                                                  this timeframe if necessary. The                        NPRM.
                                                                                                                                                                 of these reviews for all practical
                                                                                                             Provision/Issues—§ 275.3(a): FNS
                                                  provision from § 272.15(b)(5) in the                                                                           purposes, now or in the future. The
                                                                                                          shall conduct management evaluation
                                                  NPRM is retained in this final rule at                                                                         requirement that FNS designate specific
                                                                                                          reviews of certain functions performed
                                                  § 272.15(b)(7).                                                                                                areas for review each year does not
                                                                                                          at the State agency level in the
                                                     Provision/Issues—§ 272.15(b)(6): If                                                                         necessarily mean that FNS must in fact
                                                                                                          administration/operation of the
                                                  the data a State submits regarding its                                                                         conduct such reviews.
                                                                                                          program. FNS will designate specific
                                                  major change or other information FNS
                                                                                                          areas required to be reviewed each fiscal                 • FNS should define what qualifies as
                                                  obtains indicates an adverse impact on                                                                         ‘‘at-risk’’ to provide for consistency in
                                                                                                          year.
                                                  SNAP access or integrity, FNS would                        Public Comments and                                 the different regions. Providing the data
                                                  work with the State to correct the cause                Recommendations—Thirteen                               for these ‘‘off-site’’ activities is more
                                                  of the problem and provide whatever                     commenters addressed these provisions                  time-consuming for the States unless
                                                  technical assistance it can. Depending                  of the proposed rule and their                         Federal reviewers are given total access
                                                  upon the severity of the problem, FNS                   comments included the following:                       to State systems.
                                                  may require a formal corrective action                     • FNS and States should be engaging                    • We agree with the increased
                                                  plan as identified in § 275.16 and                      in additional monitoring activities of                 flexibility given to FNS in the conduct
                                                  § 275.17.                                               local service delivery, not fewer. The                 of MEs under the proposed rule and
                                                     Public Comments and                                  changes FNS proposes to ME reviews                     encourage that similar flexibility and
                                                  Recommendations—Three commenters                        have no basis in statute -the 2008 FCEA                ability to target reviews be given to the
                                                  addressed these provisions of the                       made no changes to reduce FNS’s                        States in the conduct of their annual
                                                  proposed rule and their comments                        oversight role. ME reviews are also the                MEs.
                                                  included the following:                                 primary way that FNS monitors civil                       • We appreciate FNS’ targeted
                                                     • Strongly recommend that the final                  rights compliance. The final rule must                 approach and suggest that the reviews
                                                  regulation be strengthened to identify                  not back away from FNS’s commitment                    be less targeted by frequency and size,
                                                  the full range of action that FNS is                    in these areas.                                        but more by performance and need.
                                                  authorized to initiate in response to                      • Caseloads have increased                             • We disagree with FNS removing its
                                                  information from the State about                        dramatically in recent years while, at                 own burdens in the ME process while
                                                  planned major systems changes.                          the same time, the number of staff to                  keeping the States’ current requirements
                                                     • Although requiring correction of                   process cases has not kept pace. This                  basically unchanged.
                                                  problems that have arisen is sensible                   development points to the need for                        • The term ‘‘at-risk’’ is vague.
                                                  and appropriate, it puts the Department                 more, not less frequent, reviews because               Recommend keeping the current
                                                  and the State agency in the all-too-                    of the risk of access barriers. We                     requirement of a biennial review of the
                                                  familiar position of playing catch-up                   recommend that the final rule reject                   State’s ME system. Having scheduled
                                                  after a problem has occurred. The final                 these changes to the ME regulations and                Federal reviews on a biennial basis
                                                  rule should restructure this paragraph to               keep the current requirements.                         would allow States to plan accordingly.
                                                  focus on the implementation of the State                   • The proposed regulation will                         • State and Federal ME requirements
                                                  agency’s fallback plan or plans.                        weaken the longstanding requirement                    should not be changed. Proposals to
                                                     • ‘‘Adverse impact’’ is not defined,                 for ME reviews of State certification                  weaken them should not be included in
                                                  which could lead to subjective and                      operations, and fails to require                       the final rule.
                                                  inconsistent results among regions                      straightforward, publically available and
                                                                                                                                                                 Final Rule
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                                                  regarding when a corrective action plan                 nationally consistent data collection
                                                  is imposed. Existing performance                        from States making major changes in                      Based upon comments received, the
                                                  measures already have standards that                    their service delivery model. The                      Department is withdrawing the changes
                                                  States must meet, and corrective action                 proposal eviscerates a decades-old                     to this provision from the final rule. The
                                                  plans can be required for failure to meet               requirement that States and FNS                        Department agrees that monitoring
                                                  those standards. At best, the new                       conduct ME reviews of State                            SNAP is a high priority responsibility
                                                  process is duplicative; at worst, it opens              certification operations. Such ME                      for FNS and supports the goal of
                                                  up an avenue for corrective action plans                reviews are the cornerstone of FNS                     maintaining sufficient resources to


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                          2739

                                                  enable proper oversight of SNAP                         rule remains unchanged from the                        major change and explain why it could
                                                  operations.                                             proposed rule.                                         not meet the 120-day requirement. No
                                                     Provision/Issues—§ 271.2: Amend the                                                                         approval from FNS is necessary for a
                                                                                                          List of Subjects
                                                  definitions of Large, Medium, and Small                                                                        State to proceed with implementation of
                                                  project areas for ME review purposes.                   7 CFR Part 271                                         the major change.
                                                     Public Comments and                                                                                            (2) Major changes shall include the
                                                                                                            Food stamps, Grant programs-social
                                                  Recommendations—Five commenters                                                                                following:
                                                                                                          program, Reporting and recordkeeping.                     (i) Closure of any local office that
                                                  addressed these provisions of the
                                                  proposed rule and their comments                        7 CFR Part 272                                         performs major functions for 750 or
                                                  included the following:                                                                                        more SNAP households or 5 percent of
                                                                                                            Alaska, Civil rights, SNAP, Grant
                                                     • These changes in the definitions of                                                                       the State’s total SNAP monthly
                                                                                                          programs-social programs, Penalties,
                                                  project areas are likely to have                                                                               caseload, whichever is less, and there is
                                                                                                          Reporting and recordkeeping
                                                  significant negative impacts on civil                                                                          not another office available to serve the
                                                                                                          requirements, Unemployment
                                                  rights compliance within SNAP.                                                                                 affected households within 35 miles. An
                                                                                                          compensation, Wages.                                   office performing major functions is an
                                                  Reducing the frequency or intensity of
                                                  ME reviews will have the effect of                      7 CFR Part 275                                         office where households can file an
                                                  reducing efforts to identify and correct                                                                       application for SNAP in person and
                                                                                                            Administrative practice and
                                                  civil rights violations.                                                                                       receive assistance from merit system
                                                                                                          procedure, SNAP, Reporting, and
                                                     • We recommend that the final rule                                                                          personnel staff.
                                                                                                          recordkeeping requirements.                               (ii) Substantial increased reliance on
                                                  reject these changes to the ME                            Accordingly, 7 CFR parts 271, 272                    automated systems for the performance
                                                  regulations and keep the current                        and 275 are amended as follows:                        of responsibilities previously performed
                                                  requirements.
                                                                                                                                                                 by State merit system personnel (as
                                                     • We agree with the need for a                       PART 271—GENERAL INFORMATION                           described in section 11(e)(6)(B) of the
                                                  modification to the definitions of large                AND DEFINITIONS                                        Act) or changes in the way that
                                                  and medium project areas but contend                                                                           applicants and participants interact
                                                  that the revised definitions do not                     ■ 1. The authority citation for Part 271
                                                                                                          continues to read as follows:                          with the State’s SNAP agency. This
                                                  reflect the reality of the larger States. We                                                                   includes the replacement of the State’s
                                                  recommend further review of these                           Authority: 7 U.S.C. 2011–2036.                     automated systems used in the
                                                  proposed standards and even higher                                                                             certification process, adding
                                                  caseload thresholds in order to reflect                 § 271.2    [Amended]
                                                                                                                                                                 functionality to the existing automated
                                                  the project areas of the large States.                  ■  2. In § 271.2:                                      systems used in the certification
                                                     • These were the definitions that                    ■  a. Amend the definition of Large                    process, or changes in the way
                                                  were in effect for California until FY                  project area by removing the number                    applicants and participants interact
                                                  2011. Given the limitation of staff and                 ‘‘15,000’’ and adding in its place the                 with SNAP. For example, adding an
                                                  resources, this new definition would                    number ‘‘25,000’’.                                     overlay on an existing legacy automated
                                                  create a workload issue in California.                  ■ b. Amend the definition of Medium                    system used by eligibility workers,
                                                  We recommend redefine project areas as                  project area by removing the numbers                   adding online portals to an existing
                                                  follows:                                                ‘‘2,001 to 15,000’’ and adding in their                automated system for use by SNAP
                                                     Æ Large—those with an average                        place the numbers ‘‘5,000 to 25,000’’.                 applicants, participants or community
                                                  monthly caseload of more than 50,000                    ■ c. Amend the definition of Small                     partners, establishment of an online
                                                  cases.                                                  project area by removing the number                    application, use of telephonic
                                                     Æ Medium—those with an average                       ‘‘2,000’’ and adding in its place the                  technology to accept applications,
                                                  monthly caseload of between 25,000                      number ‘‘4,999’’.                                      relying upon an interactive voice
                                                  and 50,000 cases.                                                                                              response system to provide case status
                                                     Æ Small—those with an average                        PART 272—REQUIREMENTS FOR                              information to participants or
                                                  monthly caseload up to 24,999 cases.                    PARTICIPATING STATE AGENCIES                           implementation of finger imaging shall
                                                  Final Rule                                                                                                     be considered major changes. Under this
                                                                                                          ■ 3. The authority citation for Part 272
                                                                                                                                                                 criterion, if the State documents that the
                                                     Comments on this provision of the                    continues to read as follows:
                                                                                                                                                                 change is expected to impact less than
                                                  rule were mixed with some commenters                        Authority: 7 U.S.C. 2011–2036.                     five percent of the State’s SNAP
                                                  believing that the provision of the                     ■   4. Add § 272.15 to read as follows:                applicants or participants, it will not be
                                                  proposed rule did not go far enough in                                                                         considered a major change. Reporting a
                                                  reducing the frequency with which                       § 272.15    Major changes in program                   major change as required in this section
                                                  States are required to review their                     design.                                                does not relieve States of meeting the
                                                  project areas. The Department                             (a) States’ reporting of major changes.              requirements for new system approvals
                                                  acknowledges that while more                            (1) State agencies shall notify FNS when               in § 277.18 of this chapter.
                                                  monitoring of SNAP is generally more                    they make major changes in their                          (iii) Changes in operations that
                                                  desirable than less monitoring, the                     operation of SNAP. State agencies shall                potentially increase the difficulty of
                                                  quality of the monitoring must also be                  notify FNS when the plans for the                      households reporting required
                                                  a factor. Reductions in States’ budgets                 change are approved by State                           information. This could include
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                                                  have put pressure on staffing for SNAP                  leadership, but no less than 120 days                  implementation of a call center or
                                                  and this provision allows States to do a                prior to beginning implementation of                   internet web portal for change reporting,
                                                  better job in the ME reviews that are                   the change or entering into contractual                a major modification to forms that
                                                  conducted. Furthermore, the project                     obligations to implement any proposed                  households use to report changes or the
                                                  area sizes in the current rules were set                major changes. If it is not possible for a             discontinuation of an existing avenue
                                                  when the program was less than half its                 State to provide notification 120 days in              for reporting changes (e.g., households
                                                  current size in terms of participation.                 advance, the State shall provide                       can no longer contact the local office
                                                  Therefore, this provision of the final                  notification as soon as it is aware of the             because all changes must be reported to


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                                                  2740              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations

                                                  a unit that handles change reports).                       (J) How the major change will affect                   (iii) Of the number of initial
                                                  Selecting a different change reporting                  operation of the State automated system;               applications received in paragraph
                                                  policy option as allowed in § 273.12 of                    (K) The State’s backup plans if the                 (b)(1)(i) of this section, the number
                                                  this chapter, or the implementation of a                major change creates significant                       broken out by method of application
                                                  policy waiver related to change                         problems in one or more of the program                 (i.e., in-person, online, telephone, mail,
                                                  reporting would not be a major change.                  measures in paragraph (a)(3)(ii) of this               fax);
                                                     (iv) Any reduction or change of the                  section;                                                  (iv) The number of initial applications
                                                  functions or responsibilities currently                    (L) A description of any consultation               that are approved timely;
                                                  assigned to SNAP merit system                           with stakeholders/advocacy groups or                      (v) Of the number of initial
                                                  personnel.                                              public comment obtained regarding the                  applications approved timely in
                                                     (v) A decrease of more than 5 percent                planned changes; and                                   paragraph (b)(1)(iv) of this section, the
                                                  in the total number of merit system                        (M) Procedures the State will put in                number subject to expedited service
                                                  personnel involved in the SNAP                          place to minimize the burdens on                       processed within the 7-day processing
                                                  certification process in the State from                 people with disabilities and other                     requirement;
                                                  one year to the next. In addition, a                    populations (as identified in paragraph                   (vi) The number of initial applications
                                                  decrease of more than eight percent in                  (a)(3)(ii)(E) of this section) relative to the         that are approved untimely;
                                                  the total number of merit system                        change.                                                   (vii) Of the number of initial
                                                  personnel involved in the SNAP                             (ii) The analysis portion of the State’s            applications approved untimely in
                                                  certification process in the State over a               initial report shall include the projected             paragraph (b)(1)(vi) of this section, the
                                                  two year period would be a major                        impact of the major change on:                         number subject to expedited service
                                                  change. These decreases would include                      (A) The State’s payment error rate;                 processed outside the 7-day processing
                                                  those resulting from State budget cuts or                  (B) Program access, including the                   requirement;
                                                  hiring freezes, but not include loss of                 impact on applicants filing initial                       (viii) The number of initial
                                                  personnel through resignation,                          applications and recertification                       applications that are denied;
                                                  retirement or release when the State is                 applications;                                             (ix) Of the number of initial
                                                  seeking to replace the personnel within                    (C) The State’s negative error rate;                applications that were denied in
                                                  6 months. Evidence of the intent to                        (D) Application processing timeliness               paragraph (b)(1)(viii) of this section, the
                                                  replace personnel shall include                         including both the households entitled                 number broken out by those denied due
                                                  advertising to fill positions and having                to 7-day expedited service and those                   to ineligibility and those denied because
                                                  sufficient funding in the personnel                     subject to the 30-day processing                       the State agency was unable to
                                                  budget for the new hires.                               standards;                                             determine eligibility;
                                                     (vi) Other major changes identified by                                                                         (x) The total number of households
                                                                                                             (E) Whether the major change will
                                                  FNS.                                                                                                           due for recertification;
                                                                                                          increase the difficulty elderly                           (xi) The number of recertification
                                                     (3) When a State initially reports a                 households, households living in rural                 applications received;
                                                  major change to FNS as required in                      areas, households containing a disabled                   (xii) Of the number of recertification
                                                  paragraph (a)(1) of this section, an                    member, homeless households, non-                      applications received in paragraph
                                                  analysis of the expected impact of the                  English speaking households, or                        (b)(1)(xi) of this section, the number
                                                  major change shall accompany the                        households living on a reservation will                broken out by method of application
                                                  report. The initial report to FNS that the              have obtaining SNAP information, filing                (i.e., in-person, online, telephone, mail,
                                                  State is making one of the major changes                an initial application, providing                      fax);
                                                  identified in paragraph (a)(2) of this                  verification, being interviewed,                          (xiii) The number of households that
                                                  section, shall include a description of                 reporting changes or reapplying for                    were recertified without a delay or break
                                                  the change and an analysis of its                       benefits;                                              in benefits;
                                                  anticipated impacts on program                             (F) Customer service including the                     (xiv) The number of households that
                                                  performance.                                            time it takes for a household to contact               the State recertifies with a delay or
                                                     (i) The description of the change shall              the State, be interviewed, report changes              break in benefits of less than one month;
                                                  include the following:                                  and any other parameter defined by the                    (xv) Of the total number of
                                                     (A) Identification of the major change               State agency; and                                      households due for recertification in
                                                  the State is implementing;                                 (G) Timeliness of recertification                   paragraph (b)(1)(x) of this section, the
                                                     (B) An explanation of what the change                actions.                                               number of households that fail to
                                                  is intended to accomplish;                                 (b) FNS and State action on reports.                reapply for recertification by the
                                                     (C) The schedule for implementation;                 (1) FNS will evaluate the initial report               required deadline;
                                                     (D) How the change will be tested and                provided by a State to determine if the                   (xvi) The number of recertification
                                                  whether it will be piloted;                             change is, in fact, a major change as                  applications that are denied; and
                                                     (E) Whether the change is statewide or               described in paragraph (a)(2) of this                     (xvii) Of the number of recertification
                                                  identification of the jurisdictions it will             section and notify the State of its                    applications that were denied in
                                                  encompass;                                              determination. States implementing a                   paragraph (b)(1)(xvi) of this section, the
                                                     (F) How the major change is expected                 major change shall report the following                number broken out by those denied due
                                                  to affect applicants and/or participants                monthly State-level information to FNS                 to ineligibility and those denied because
                                                  and how they will be informed;                          on a quarterly basis beginning with the                the State agency was unable to
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                                                     (G) How the change will affect                       quarter prior to implementation of the                 determine eligibility.
                                                  caseworkers and, as applicable, how                     major change:                                             (2) The information required by
                                                  they will be trained;                                      (i) The number of initial applications              paragraph (b)(1)(1) of this section shall
                                                     (H) The projected administrative cost                received;                                              be reported separately for households
                                                  of the major change in the year it is                      (ii) Of the number of initial                       with elderly members and households
                                                  implemented and the subsequent year;                    applications received in paragraph                     with members that have a disability.
                                                     (I) How the impact of the major                      (b)(1)(i) of this section, the number                     (3) At a minimum, the information
                                                  change will be monitored;                               subject to expedited service;                          required by paragraphs (b)(1)(i), (iv),


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                                                                    Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations                                                 2741

                                                  (vi), (viii), (x), (xi), (xiii), (xiv), (xv), and         (iv) Impact of certain major changes                 Participation administrative funds per
                                                  (xvi) of this section shall be                          on customer service. Some major                        § 276.4 of this chapter.
                                                  disaggregated to provide sub-state                      changes may require specific
                                                  information. FNS will require the State                 information that is not typically                      PART 275—PERFORMANCE
                                                  to disaggregate all the information in                  available from a States automated SNAP                 REPORTING SYSTEM
                                                  paragraph (b)(2) if FNS determines that                 system. For example, if a State
                                                  such data are necessary to evaluate the                 implements a major change that allowed                 ■ 5. The authority citation for Part 275
                                                  impact of the change. FNS will consult                  (or required) households to report                     continues to read as follows:
                                                  with States on a case-by-case basis to                  changes in their individual                                Authority: 7 U.S.C. 2011–2036.
                                                  determine if this information shall be                  circumstances through a change center
                                                  reported by: Local offices, call centers,               or allows applicants to apply or reapply               ■  6. In § 275.7:
                                                  county, project areas, or by other                      for SNAP through the use of call center,               ■  a. Revise paragraph (a) to read as set
                                                  administrative structures within the                    the following data may be required:                    forth below.
                                                  State. FNS’ determination will be based                   (A) The total number of calls made to                ■ c. Remove paragraphs (b), (c) and (d).
                                                  upon the type of major change and the                   the center;
                                                                                                                                                                 ■ d. Redesignate paragraph (e) as
                                                  State’s SNAP organization.                                (B) The average time a caller has to
                                                     (4) In addition the information                                                                             paragraph (b).
                                                                                                          wait to talk to a SNAP worker (includes
                                                  required in paragraphs (b)(1), (2) and (3)              hold time for transfers);                              ■ e. Amend newly redesignated
                                                  of this section, FNS may require                          (C) Based upon the call centers                      paragraph (b) by removing the word
                                                  additional information to be included in                standards and negotiation with FNS, the                ‘‘on-site’’.
                                                  a State’s quarterly report. FNS reserves                percentage of calls with excessive wait
                                                  the right to require the information it                                                                        § 275.7    Selection of sub-units for review.
                                                                                                          times;
                                                  needs to determine the impact of a                        (D) The percentage of calls abandoned                  (a) Definition of sub-units. Sub-units
                                                  major change on integrity and access in                 by callers prior to and after being                    are the physical locations of
                                                  SNAP. FNS will work with States to                      answered by the call center;                           organizational entities within project
                                                  determine what additional information                     (E) The total number of calls dropped                areas responsible for operating various
                                                  is practicable and require only the data                by the call center system and the                      aspects of SNAP and include but are not
                                                  that is necessary and not otherwise                     number of callers that received a busy                 limited to certification offices, call
                                                  available from ongoing reporting                        signal; and                                            centers, and employment and training
                                                  mechanisms. While the data elements                                                                            offices.
                                                                                                            (F) Customer satisfaction (based upon
                                                  outlined in paragraph (b)(2) of this                                                                           *     *     *     *     *
                                                                                                          survey results).
                                                  section will generally be required to be
                                                                                                            (5) States shall submit reports                      ■ 7. In § 275.9:
                                                  reported on a statewide basis and at a
                                                                                                          containing monthly data on a quarterly
                                                  sub-state level, major changes that are                                                                        ■ a. Revise paragraph (b)(1)(iii) to read
                                                                                                          basis. As practicable, and based upon
                                                  limited to localized areas, such as a                                                                          as set forth below.
                                                  county or project area, may only require                consultation with the State, FNS may
                                                                                                          require any additional information                     ■ b. Amend paragraph (b)(1)(iv) by
                                                  localized reporting. Depending upon the                                                                        removing the first sentence.
                                                  nature of the major change, States will                 under paragraph (b)(4) of this section
                                                  be required to report more specific or                  regarding the State’s operation to be                  § 275.9    Review process.
                                                  timely information concerning the                       reported for the quarter just prior to
                                                                                                          implementation of the major change.                    *      *    *      *    *
                                                  impact of the major change within the                                                                            (b) * * *
                                                  following areas:                                          (6) States shall submit reports for one
                                                     (i) Payment accuracy. FNS will use                   year after the major change is fully in                  (1) * * *
                                                  Quality Control (QC) data when                          place. FNS may extend this timeframe                     (iii) Identification of the sub-units
                                                  possible, but may require data from case                as it deems necessary.                                 selected for review and the techniques
                                                  reviews focused on households with                        (7) If FNS becomes aware that a State                used to select them;
                                                  specific characteristics, to obtain greater             appeared to be implementing a major                    *      *    *      *    *
                                                  local reliability, or to provide more                   change that had not been formally
                                                  timely data.                                            reported, FNS would work with the                      ■ 8. In § 275.16 revise paragraph (b)(3)
                                                     (ii) Negative error rates. FNS will use              State to determine if it is a major                    to read as follows:
                                                  QC data when possible, but may require                  change, and if so proceed as required by
                                                                                                                                                                 § 275.16    Corrective action planning.
                                                  data from case reviews focused on                       this section.
                                                  households with specific characteristics,                 (8) If the data a State submits                      *     *    *      *    *
                                                  to obtain greater local reliability or to               regarding its major change or other                      (b) * * *
                                                  provide more timely data on the causes                  information FNS obtains indicates an                     (3) Are identified by FNS reviews,
                                                  of incorrect denials.                                   adverse impact on SNAP access or                       GAO audits, contract audits, reports to
                                                     (iii) Impact on households with                      integrity, FNS would work with the                     FNS regarding the implementation of
                                                  specific characteristics. In addition to                State to correct the cause of the problem              major changes (as discussed in § 272.15)
                                                  the information required by paragraph                   and provide relevant technical                         or USDA audits or investigations at the
                                                  (b)(2) of this section, a major change that             assistance, and will require the State to              State agency or project area level (except
                                                  could disproportionately impact the                     provide additional information as it                   deficiencies in isolated cases as
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                                                  households identified at paragraph                      deems appropriate. Depending upon the                  indicated by FNS); and,
                                                  (a)(3)(ii)(E) of this section may require               severity of the problem, FNS may also                  *     *    *      *    *
                                                  additional information on the impact of                 require a formal corrective action plan
                                                  the change on the participation of these                as identified in § 275.16 and § 275.17 of               Dated: December 10, 2015.
                                                  households. The nature of the change                    this chapter. States agencies that fail to             Audrey Rowe,
                                                  and its potential impact would dictate                  comply with reporting requirements                     Administrator, Food and Nutrition Service.
                                                  how this information would need to be                   may be subject to the suspension or                    [FR Doc. 2016–00674 Filed 1–15–16; 8:45 am]
                                                  reported.                                               disallowance of Federal Financial                      BILLING CODE 3410–30–P




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Document Created: 2016-01-16 01:12:05
Document Modified: 2016-01-16 01:12:05
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
ContactMary Rose Conroy, Chief, Program Design Branch, Program Development Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2515; [email protected] Questions regarding this rulemaking should be sent in writing to 3101 Park Center Drive, Alexandria, Virginia 22302, or by telephone at (703) 305-2803, or via email to [email protected]
FR Citation81 FR 2725 
RIN Number0584-AD86
CFR Citation7 CFR 271
7 CFR 272
7 CFR 275
CFR AssociatedFood Stamps; Grant Programs-Social Program; Reporting and Recordkeeping; Alaska; Civil Rights; Snap; Grant Programs-Social Programs; Penalties; Reporting and Recordkeeping Requirements; Unemployment Compensation; Wages; Administrative Practice and Procedure; Reporting and Recordkeeping Requirements

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