Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 271 and 273

[FNS 2023-0058]

RIN 0584-AF01

Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023

AGENCY:

Food and Nutrition Service (FNS), USDA.

ACTION:

Final rule.

SUMMARY:

This final rule implements three provisions of the Fiscal Responsibility Act (FRA) of 2023, affecting the program purpose and individuals subject to the able-bodied adults without dependents (ABAWD) time limit for the Supplemental Nutrition Assistance Program (SNAP). These changes do the following: add language about assisting low-income adults in obtaining employment and increasing their earnings to the program purpose; update and define exceptions from the ABAWD time limit; and adjust the number of discretionary exemptions available to State agencies each year. This rule also clarifies procedures for when State agencies must screen for exceptions to the time limit and verification requirements for exceptions.

DATES:

This final rule is effective January 16, 2025.

ADDRESSES:

SNAP Program Development Division, Food and Nutrition Service, USDA, 1320 Braddock Place, Alexandria, Virginia 22314.

FOR FURTHER INFORMATION CONTACT:

Catrina Kamau, Certification Policy Branch, Program Development Division, Food and Nutrition Service, 1320 Braddock Place, Alexandria, Virginia 22314. Email:

SNAPCPBRules@usda.gov.

Phone: (703) 305-2022.

SUPPLEMENTARY INFORMATION:

Acronyms or Abbreviations

Able-bodied adults without dependents, ABAWDs or time-limited participants

Code of Federal Regulations, CFR

Fiscal Responsibility Act of 2023, FRA

Fiscal Year, FY

Food and Nutrition Act of 2008, the Act

Food and Nutrition Service, FNS

State SNAP Agencies, State agencies or States

Supplemental Nutrition Assistance Program, SNAP

U.S. Code, U.S.C.

U.S. Department of Agriculture, the Department or USDA

I. Background

The Food and Nutrition Act of 2008 (the Act), establishes national eligibility standards for the Supplemental Nutrition Assistance Program (SNAP), including work requirements for certain individuals. The first of these work requirements, referred to as the general work requirements, requires certain individuals to register for work; accept an offer of suitable employment; not voluntarily quit or reduce hours of employment below 30 hours per week, without good cause; and participate in workfare or the SNAP Employment and Training (SNAP E&T) program if required by the State agency. Most SNAP participants are exempt from the general work requirements because they are older adults, have disabilities, are children, or meet another exemption from the general work requirements listed in the Act.

Individuals who are not exempt from the general work requirements may also be subject to an additional time-limit work requirement. The Act limits these individuals, referred to as able-bodied adults without dependents (ABAWDs) or time-limited participants, to receiving SNAP benefits for three months in a 36-month period unless they are meeting this additional time-limit work requirement, live in an area where the time limit is waived due to a lack of sufficient jobs or a high rate of unemployment, or are otherwise exempt. This is sometimes referred to as the ABAWD time limit. Individuals can continue receiving SNAP beyond the three-month time limit by working, participating in a qualifying work program (including SNAP E&T), or any combination of the two, for at least 20 hours a week (averaged monthly to 80 hours a month). Individuals can also meet the time limit by participating in and complying with workfare for the number of hours assigned (equal to the result obtained by dividing a household's SNAP allotment by the higher of the applicable Federal or State minimum wage). For the purposes of the time limit, working includes unpaid or volunteer work that is verified by the State agency. These requirements are sometimes referred to as the ABAWD work requirement. For the purposes of the final rule, the Department will use the term “time limit” to refer to both the ABAWD work requirement and time limit, as this phrasing more accurately describes the requirements applied to time-limited participants.

The Act provides exceptions from the time limit based on certain individual circumstances, such as age, pregnancy, or meeting an exemption from the general work requirements. Individuals who meet an exception are not subject to the time limit. The Act also allows for waivers of the time limit in areas with an unemployment rate over 10 percent or an insufficient number of jobs to provide employment for individuals. Individuals residing in waived areas are not required to meet the time limit. Lastly, the Act also establishes an annual allotment of discretionary exemptions that State agencies may use to extend eligibility for a time-limited participant who is not meeting the requirement. Each discretionary exemption can extend eligibility for one participant for one month, and there is no limit on the number of discretionary exemptions a single participant can receive.

Sections 311 through 313 of the Fiscal Responsibility Act (FRA) of 2023 (Pub. L. 118-5) amended the Act, revising exceptions from the time limit and the allotment of discretionary exemptions, as well as the program purpose. Based on these changes, the Department first issued guidance in June 2023

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to assist State agencies in implementing the FRA changes and then issued subsequent question-and-answer guidance in July and August 2023.

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In April 2024, the Department proposed to amend SNAP rules to reflect the requirements of the FRA and included discretionary provisions to ensure consistent application of these changes. These changes were proposed in the notice of proposed rulemaking, titled

Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023

(84 FR 34340), published April 30, 2024.

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1

U.S. Department of Agriculture. Food and Nutrition Service.

Implementing SNAP Provisions in the Fiscal Responsibility Act of 2023.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/implementing-fra-provisions-2023.

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U.S. Department of Agriculture. Food and Nutrition Service.

Supplemental Nutrition Assistance Program (SNAP)—SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions and Answers #1.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/provisions-fiscal-responsibility-act-2023-questions-and-answers-1.

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U.S. Department of Agriculture. Food and Nutrition Service.

Supplemental Nutrition Assistance Program (SNAP)—SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions and Answers #1.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/provisions-fiscal-responsibility-act-2023-questions-and-answers-2.

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The notice of proposed rulemaking may be found at

https://www.regulations.gov/document/FNS-2023-0058-0001.

II. Summary of Comments and Discussion of Rule Provisions

The Department received 41 public comment submissions on the proposed rule.

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Most comments were supportive of the Department's proposed implementation of the FRA requirements, such as the flexibility for State agencies and alignment across public assistance programs. In particular, commenters welcomed the new exceptions for and definitions of individuals experiencing homelessness, veterans, and individuals aging out of foster care, because they help ensure some of the most vulnerable populations can access SNAP benefits. Commenters also commended the Department's efforts to ensure that individuals are appropriately screened for work requirements in a thorough and timely manner. In addition to their support, commenters also provided suggestions to further clarify the definitions for the new exceptions and strengthen screening requirements.

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Posted public comments may also be found at regulations.gov (

https://www.regulations.gov/document/FNS-2023-0058-0001/comment

and

https://www.regulations.gov/document/FNS-2023-0058-0003/comment

).

Twelve respondents wrote to oppose the FRA itself and work requirements for SNAP in general. These commenters believe the changes required by the FRA restrict access to SNAP for certain vulnerable individuals and increase hardship without improving employment outcomes. Despite this opposition to some of the underlying statutory requirements, these commenters generally supported the Department's proposed implementation of the FRA changes.

Three commenters expressed overall opposition to the rule, believing the changes conflict with enforcement of the time limit and the definitions for the new exceptions do not align with Congressional intent. These respondents contended that the new definitions are overly expansive and disagreed with current policy allowing self-attestation to verify household information, claiming it leads to fraud and waste.

The Department reviewed and considered all comments received. A discussion of each rule provision and the relevant comments is detailed below.

7 CFR 271.1: Program Purpose

Section 313 of the FRA amends SNAP's purpose statement in Section 2 of the Act to include assisting low-income adults in obtaining employment and increasing their earnings. The Department proposed to amend 7 CFR 271.1(a) to reflect the language added by the FRA to the SNAP purpose statement.

Twelve commenters, including 10 advocacy organizations and two members of the public, opposed changing the SNAP purpose statement due to their general opposition to work requirements for SNAP participants. Commenters noted that time limits are harmful to vulnerable individuals as they put access to food at risk during a time when they are needed. These commenters requested the Department make clear that raising the levels of nutrition among low-income households takes precedence over supporting employment. The Department recognizes the concerns raised by commenters, however, the change to the purpose statement was effective with the enactment of the FRA. The new language encouraging employment and earnings is in addition to the existing language around supporting food security and nutrition and the Department remains committed to supporting food security and nutrition for low-income households. As commenters did not provide comments regarding the way the Department proposed to amend the regulatory text to reflect this non-discretionary change, the Department is finalizing 7 CFR 271.1(a) to include the new statutory language. Due to Office of the Federal Register guidelines, the Department is also amending 7 CFR 271.1(a) to summarize rather than directly quote the statutory language in Section 2 of the Act.

7 CFR 273.24(c): Exceptions From the Time Limit

Age-Based Exception

Sec 311 of the FRA gradually increased the upper age limit of the age-based exception as follows: by September 1, 2023, increased from 50 to 51 years of age or older; starting October 1, 2023, increased from 51 to 53 years of age or older; and starting October 1, 2024, increases from 53 to 55 years of age or older. The FRA also prescribed that these changes to the age-based exception sunset on October 1, 2030. The Department proposed amending 7 CFR 273.24(c) to increase the upper age limit of the age-based exception from 50 years of age or older to 55 years of age or older. The Department also proposed to capture the sunset at 7 CFR 273.24(c)(10), which reflects that the upper age limit will return to 50 years of age or older on October 1, 2030, unless otherwise changed by law.

Fourteen commenters, representing ten advocacy organizations, three public citizens, and one State agency, opposed the increase of the upper age limit, citing that time limits undermine the effectiveness of SNAP and are not a viable solution to mitigate food security or bolster employment and earnings, especially for olde nr adults now subject to the time limit. Commenters noted that older individuals may have more difficulty obtaining employment and therefore, more difficulty in meeting the time limit. Commenters requested the Department assist State agencies in mitigating the potential for disproportionate impact upon older adults, including providing guidance around screening for exceptions from the time limit that may be less common in younger individuals. The Department understands and appreciates the concerns from commenters about maintaining program access for a vulnerable population. The final increase in the age-based exception is a non-discretionary change that was effective on October 1, 2024, and will remain in effect until October 1, 2030. As commenters did not provide comments regarding the way the Department amended regulatory text to reflect these changes, the updates at 7 CFR 273.24(c)(1) are finalized as proposed.

New Exceptions

Sec. 311 of the FRA adds three new exceptions from the time limit for individuals experiencing homelessness, veterans, and individuals aging out of foster care which will sunset on October 1, 2030. The Department proposed to add the three new exceptions to the list of exceptions from the time limit provided at 7 CFR 273.24(c)(7), (8), and (9), and capture the sunset at 7 CFR 273.24(c)(10).

Commenters were generally supportive of the addition of the three new exceptions. One advocacy organization urged the Department to extend the three new exceptions beyond October 1, 2030. The FRA stipulates that these three new exceptions and the increase in the age-based exception are to sunset on October 1, 2030. Therefore, only a statutory change can extend these exceptions beyond October 1, 2030. The Department is finalizing the sunset provision at 7 CFR 273.24(c)(10) as proposed. A discussion of comments received regarding each of the new exceptions is detailed below.

Individuals Experiencing Homelessness

The first of the three new exceptions provided in the FRA is for individuals experiencing homelessness. Sec. 3(l) of the Act and 7 CFR 271.2 provide an existing definition of “homeless

individual” for SNAP purposes. Under this definition, individuals are considered homeless if they lack a fixed and regular nighttime residence or if their primary nighttime residence falls into one of four categories. These categories include a primary nighttime residence that is a publicly or privately operated supervised shelter designed to provide temporary living accommodations, an institution that provides a temporary residence for individuals intended to be institutionalized, a temporary accommodation for not more than 90 days in the residence of another individual, or a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. The Department proposed to use the existing definition for “homeless individual” provided in 7 CFR 271.2 for the purposes of this exception and add a reference to this definition at 7 CFR 273.24(c)(7).

To help streamline application of this new exception, the Department also proposed a change at 7 CFR 271.2. This change clarified that an individual who will imminently lose their nighttime residence is considered homeless because they lack a fixed and regular nighttime residence. This reflects the Department's consideration that those who will imminently lose their primary nighttime residence are included in the Act's definition of a homeless individual, as a nighttime residence that will be imminently lost cannot reasonably be described as “fixed and regular.” Further, the language also helps ensure State agencies recognize how definitions employed by other public assistance programs may align with SNAP and identify individuals for the purposes of this exception more easily.

The Department received 17 comments on the definition of “homeless individual.” Commenters included 10 advocacy organizations, three policy organizations, two public citizens, one professional association, and one State agency. Though commenters were generally supportive of the inclusion of “imminently homeless” in the definition, they requested the Department provide additional details in the regulatory text.

Commenters asked the Department to provide a timeframe for what is considered “imminently homeless” under 7 CFR 271.2. They also requested additional circumstances be included in the regulatory text beyond the proposed inclusion of imminently homeless. This request was to ensure any definition is inclusive of vulnerable populations, such as individuals fleeing or attempting to flee domestic violence, individuals who were recently incarcerated, and individuals facing discrimination for being lesbian, gay, bisexual, transgender, queer, or intersex.

In the proposed rule, the Department included “imminently homeless” to better explain how State agencies can interpret a “lack of a fixed and regular primary nighttime residence” and clarify how the existing definition may align with definitions of other programs. Through implementing the FRA, the Department received questions from State agencies on how to help identify individuals now meeting this exception. One method to help identify these individuals was through other public assistance programs for individuals experiencing homelessness that the State agency also operates. These programs often use a definition for homeless individuals that explicitly includes individuals who are imminently homeless. Including this language at 7 CFR 271.2 helps State agencies identify opportunities to streamline with other programs by clarifying who is considered to “lack a fixed and regular nighttime residence” under the existing statutory definition. This change does not expand the regulatory definition beyond the statutory definition in the Act.

The Department understands that commenters are concerned with consistency across State agencies in applying this exception and the “imminently homeless” standard. The Department believes it is most appropriate to provide further technical assistance through guidance to State agencies and not specify additional detail in regulatory text. This preserves flexibility for State agencies to review how other assistance programs define homeless individuals and better coordinate across programs to identify SNAP participants who meet this exception and reduce administrative burden in verifying the exception, when appropriate. For example, the Department of Housing and Urban Development (HUD) considers individuals to be imminently homeless if they will lose their housing within 14 days, have no subsequent housing secured, and lack resources or support to secure subsequent housing. The Department agrees this definition would constitute an individual as experiencing homelessness for SNAP purposes. Further, the Department recommends State agencies consider aligning with HUD's current definition to streamline operations between programs and reduce administrative burden on households and State agencies. However, providing a specific timeframe or examples in regulatory text could unnecessarily restrict flexibility and make it more difficult for State agencies to align with other programs.

In using this flexibility, State agencies must incorporate safeguards into their processes for identifying individuals experiencing homelessness to ensure it does not include individuals who are simply facing a change in housing within a certain timeframe. If an individual is leaving their current residence for another fixed and regular nighttime residence, they would not be considered imminently homeless and would not qualify for the homeless exception. As discussed above, an individual who is imminently losing their housing is considered homeless if they lack a fixed and regular nighttime residence and therefore, would qualify for the homeless exception.

Section 3(l) of the Act also considers individuals who are in certain temporary living situations to be experiencing homelessness, including, but not limited to, those who are in the residence of another individual for no more than 90 days or a supervised shelter. These individuals would qualify for the homeless exception as well. For example, individuals fleeing or attempting to flee domestic violence, dating violence, sexual assault, or stalking who have no residence other than one shared with or known to the abuser or inadequate resources to secure housing would be considered homeless because they lack a fixed and regular nighttime residence. Similarly, an individual fleeing or attempting to flee domestic violence, dating violence, sexual assault, or stalking would be considered homeless if they secured a primary nighttime residence that is a temporary shelter or temporary accommodation of another individual.

Commenters also requested the Department to adopt HUD's definition of homeless individual and include a cross-reference to 42 U.S.C. 11302 at 7 CFR 271.2. The Department understands commenters desire for SNAP's definition of “homeless individual” to align more directly with that of HUD. While the Department supports State agencies applying the SNAP definition of “homeless individual” in a manner that aligns with the HUD definition, for reasons stated above, the Department is not codifying the HUD definition in regulatory language.

While the final rule does not explicitly incorporate the definition as requested by the commenters, the Department is committed to facilitating coordination across all Federal programs that interact with individuals experiencing homelessness, including

those administered by HUD. The Department encourages State agencies to review how various programs define homeless individual in their State and how they may leverage those definitions to identify, and if necessary, verify, individuals who are experiencing homelessness.

Two policy organizations and one public citizen opposed the changes to the definition of “homeless individual.” These commenters recommended the Department remove the inclusion of “imminently homeless” and finalize the rule with no changes to the definition of “homeless individual.” Two of these commenters asserted the definition in the proposed rule violates Congressional intent by stretching beyond the statutory definition in Sec. 3(l) of the Act. The Department disagrees that the inclusion of “imminently homeless” is an expansion of the definition of “homeless individual.” The existing definition defines individuals as homeless if they “lack a fixed and regular nighttime residence,” which encompasses the diverse set of circumstances that can constitute homelessness. The provision on “imminently homeless” is clarifying the types of individuals that may already be considered homeless under the existing definition because they lack a fixed and regular primary nighttime residence. The Department's clarification reflects the understanding of subject matter experts that work on homelessness issues and assists State agencies identifying individuals experiencing homelessness.

These same three commenters argued the inclusion of “imminently homeless” expands the definition of “homeless individual” to include those who “might” lose their housing. One commenter further stated that the proposed rule would undermine the time limit by exempting individuals who have no fixed or regular nighttime residence because they travel permanently and stay in vans, hotels, or short-term rentals, or are individuals whose income fluctuates and have rent due imminently. The Department also disagrees with these comments. The proposed rule specifies that individuals are considered homeless if they will imminently lose their nighttime residence. Individuals who might lose their housing are not considered “imminently homeless.” State agencies should review the individual's circumstances and determine if the individual's living arrangements constitute a lack of a fixed and regular nighttime residence.

Therefore, because the Department interprets a “homeless individual” to include those facing imminent homelessness and the need to preserve flexibility for State agencies, the Department is finalizing the changes to the definition at 7 CFR 271.2 “Homeless individual” as proposed. The Department will issue guidance on how State agencies can identify individuals experiencing homelessness and verify individuals' housing status.

In addition to the comments regarding the imminently homeless clarification, the Department also received four comments asking the Department to add a definition of “shelter for homeless persons” at 7 CFR 271.2 in the final rule. “Shelter for homeless persons” is referenced at 7 CFR 273.1(b)(7)(vi)(E), which exempts individuals living in a shelter for homeless persons from eligibility rules for individuals living in institutions. Commenters, including three advocacy organizations and one State agency, requested the Department specifically define “shelter for homeless persons” in relation to rules for individuals living in institutions. These commenters recommended the definition of “shelter for homeless persons” include any facility described in paragraph (2)(i) or (ii) of the proposed definition of “homeless individual,” including halfway houses for recently incarcerated individuals. While the Department understands commenters' concerns, creating a definition for “shelter for homeless persons” is not necessary to implement the FRA but the Department will take it under consideration for future rulemaking.

Veterans

The second new exception provided in the FRA is for veterans. The Department proposed a definition of veteran at 7 CFR 273.24(c)(8) to ensure individuals are identified consistently for this exception, as the FRA did not reference a definition of veteran and the Act and SNAP regulations do not include an existing definition. The Department proposed to define veteran at 7 CFR 273.34(c)(8) as an individual who, regardless of the conditions of their discharge or release from, served in the United States Armed Forces (such as the Army, Marine Corps, Navy, Air Force, Space Force, Coast Guard, and National Guard), including an individual who served in a reserve component of the Armed Forces, or served as a commissioned officer of the Public Health Service, Environmental Scientific Services Administration, or the National Oceanic and Atmospheric Administration.

The Department received 20 comments on the definition of veteran, with 18 of those comments supportive of the definition. Commenters included 12 advocacy organizations, two policy organizations, two professional associations, two State agencies, and two public citizens. Commenters appreciated the Department's alignment with other Federal programs by including commissioned officers of the Public Health Service, Environmental Scientific Services Administration, and the National Oceanic and Atmospheric Administration. Commenters also commended the Department's recognition of all individuals who served in the Armed Forces, regardless of the circumstances of their departure from the military.

However, one policy organization and one public citizen opposed the definition of veteran in the proposed rule because it differs from the definition used by the Department of Veterans Affairs (VA) for veterans' benefits eligibility. These commenters asserted the Department violates Congressional intent by not using this definition, and believe it is inappropriate to except individuals with other than honorable discharges. Additionally, one of these commenters took issue with the Department's use of a definition from Sec. 5126(f)(13)(F) of the James M. Inhofe National Defense Authorization Act (NDAA) for Fiscal Year 2023 (Pub. L. 117-263). The commenter asserted the Department should not interpret this definition, which is for a program that provides food assistance to veterans and their families without restriction based on discharge status, to mean Congress does not consider discharge status to be relevant for veteran status.

The Department disagrees that the proposed rule's definition is inconsistent with Congressional intent. The FRA did not provide a specific definition of veteran, which led to confusion and questions from State agencies around how to identify individuals who meet this exception. The Department consulted with the VA to define veteran and provide clarity for State agencies. Based on the input of subject matter experts, the Department has determined that the definition from the FY 2023 NDAA is the most appropriate definition because it represents the most recent definition used to address food insecurity among veterans, which is the same goal for SNAP.

Further, the definition of veteran provided at 38 CFR 3.1(d) restricts veterans' benefits to individuals “who served in the active military, naval, air, or space service and who was discharged or released under conditions other than dishonorable.” Since the

FRA did not direct the Department to only apply the exception to a subset of veterans, such as those with honorable discharges, using the above definition would be more restrictive. In comparison, the definition used in the proposed rule does not restrict the exception based on discharge status.

The same two commenters disagreed with the Department's explanation that individuals with former military service who do not consider themselves to be veterans would still be considered veterans under this definition. Some individuals may not consider themselves a veteran, and therefore, may not seek out access to services for veterans, such as veterans' benefits, despite serving in the military. The FRA did not specify that the exception only applies to individuals who are receiving veterans' benefits or who personally identify as a veteran. Therefore, using the proposed definition of veteran appropriately aligns with the FRA and clearly communicates that all individuals who served in the military are eligible for the exception, regardless of their discharge status or self-identification as a veteran.

These commenters also claimed that using the definition at 38 U.S.C. 101(2) for veterans' benefits would allow State agencies to administer the exception more efficiently and effectively because it is more readily verifiable. The Department disagrees that the proposed definition would make program operations less efficient or effective. First, State agencies are not required to verify exception status, unless the information is questionable. Second, if verification is needed, State agencies can still easily verify veterans' status for individuals with an other than honorable discharge by a variety of means. State agencies must follow verification requirements provided at 7 CFR 273.2(f), which allow State agencies and individuals to use various types of verification, such as documentary evidence, data matches, or collateral contacts.

For the reasons described above, the Department is finalizing the definition of veterans at 7 CFR 273.24(c)(8) as proposed.

Individuals Who Were in Foster Care

The last new exception in the FRA is for individuals aging out of foster care. This exception applies to an individual who is 24 years of age or younger and was in foster care under the responsibility of a State on their 18th birthday or such higher age as the State has elected under Sec. 475(8)(B)(iii) of the Social Security Act. The Department proposed to adopt this definition at 7 CFR 273.24(c)(9) and included clarification that “foster care under the responsibility of a State” includes foster care programs run by Districts, Territories, or Indian Tribal Organizations, or the Unaccompanied Refugee Minors Program, and that the exception applies to individuals who turned 18 while in a foster care program even if they leave extended foster care before the maximum age.

The Department received 20 comments on the definition of individuals aging out of foster care, with 18 commenters supportive of the definition. Commenters included 12 advocacy organizations, two policy organizations, two professional associations, two State agencies, and two public citizens. Commenters were supportive of the clarified definition because it helps ensure vulnerable young adults facing unique barriers to food security and employment are not subject to the time limit. Commenters also expressed appreciation for the Department's inclusion of individuals who were in the care of Territories, Tribal Nations, and the Unaccompanied Refugee Minors Program within the definition.

Three commenters, including two advocacy organizations and one State agency, asked for additional clarification on certain groups' eligibility for this exception. These commenters requested the Department to allow State agencies to exempt youth that were incarcerated on their 18th birthday but were in foster care immediately prior. The two advocacy organizations also urged the Department to allow State agencies to exempt individuals who were in foster care but who ran away from foster care before turning 18. Individuals can be eligible for this exception if the child welfare or foster care agency considered them to be in foster care under the responsibility of the State when they turned 18, even if they were incarcerated or had run away prior to turning 18. In these more complicated situations, State agencies should review the individual's history with foster care and relevant state policies, to determine if they meet the criteria for the exception.

One public citizen opposed the definition. The commenter asserted that the Department's proposed definition was too broad and inconsistent with the FRA to allow the exception to cover individuals who leave extended foster care before the maximum age. The FRA defined an individual aging out of foster care as an individual who is 24 years of age or younger and who was in foster care under the responsibility of a State on the date of attaining 18 years of age or such higher age as the State has elected under section 475(8)(B)(iii) of the Social Security Act. The commenter interprets the “or” in “date of attaining 18 years of age or such higher age as the State has elected” to mean the Department must use the date on which the individual attains the maximum age of foster care in their State, either 18 years of age or higher if the State has elected. The Department disagrees with this commenter's interpretation of “or.” The use of “or” permits State agencies to exempt individuals who were in foster care when they were 18, either in an extended or “regular” foster care program, or when they reach the maximum age the State has elected. This allows an individual who left extended foster care early but who was in foster care at age 18 to still be eligible for this exception because they were in foster care when they turned 18. This is consistent with the Department of Health and Human Services' interpretation of the same language used in the Affordable Care Act to establish a mandatory Medicaid eligibility group serving youth formerly in foster care.

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U.S. Department of Health and Human Services. Centers for Medicare & Medicaid Services.

Coverage of Youth Formerly in Foster Care in Medicaid (Section 1002(a) of the SUPPORT Act).

Washington, DC, 2022. Accessed August 2, 2024.

https://www.medicaid.gov/federal-policy-guidance/downloads/sho22003.pdf.

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U.S. Department of Health and Human Services. “Medicaid, Children's Health Insurance Programs, and Exchanges: Essential Health Benefits in Alternative Benefit Plans, Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Exchange Eligibility Appeals and Other Provisions Related to Eligibility and Enrollment for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing.” 78 FR 4594 at 4604 (January 22, 2013).

https://www.govinfo.gov/content/pkg/FR-2013-01-22/pdf/2013-00659.pdf.

Therefore, the Department is finalizing the definition of individuals aging out of foster care at 7 CFR 273.24(c)(9) as proposed.

7 CFR 273.24(l): Verification of Exception Status

For many exceptions, individuals may have already demonstrated their status as homeless, an individual with disabilities, pregnant, etc., through participation in another program. Through shared operations, eligibility systems and data sharing agreements, State agencies may already have information available that would verify an individual's exception status. To ensure State agencies are using this information and deter imposing a redundant burden on these individuals, the Department proposed a requirement for State agencies to assist individuals when verification of exception status is needed by first exhausting all

information available to the State agency. The Department proposed this requirement at 7 CFR 273.24(l) to clarify this requirement is specific to verification of exception status when questionable and is not intended to replace existing processes State agencies use to assist households in obtaining verification for other household circumstances. The Department expects State agencies to use existing information available in their eligibility system or through data sharing agreements. State agencies are not required to establish new data sharing agreements. However, the Department highly encourages State agencies to determine ways to collaborate with other State agencies, improving the coordination and information sharing across programs.

The Department received 11 comments on the proposed verification requirements for State agencies, with all but one supporting the provision. Commenters included eight advocacy organizations, one policy organization, one State agency, and one public citizen. Commenters were supportive of the requirement for State agencies to employ all available information prior to asking individuals to provide sources for verification because it reduces the administrative burden on vulnerable populations, especially for those that may have difficulty providing documentary evidence of their exception status, such as individuals experiencing homelessness or individuals aging out of foster care. Commenters expressed appreciation for the Department's efforts to foster better collaboration across programs that improves coordination and data sharing.

Two advocacy organizations recommended the Department specify the sequence of steps State agencies should take when verifying exceptions from the time limit. Commenters believe this would help increase standardization across State agencies and lead to equitable treatment of time-limited participants. State agencies must accept self-attestation of exception status, and only need to take additional steps if information is considered questionable. If questionable, then the State agency would first review all available information, such as information already in the eligibility system or through data sharing with other programs, to determine if it can verify exception status. If the State agency is still unable to verify, then it would request the individual provide verification, such as documentary evidence or a collateral contact, to the State agency.

One policy organization asked the Department to clarify that State agencies must comply with existing standards for timely verification to ensure State agencies do not delay the review of already available information and provide individuals sufficient time to respond to additional requests for verification. The Department agrees that State agencies must comply with existing standards for timely verification provided at 7 CFR 273.2(f). This requirement includes requests for verification of questionable information. The State agency must provide itself sufficient time in reviewing available information at initial application and recertification so that, if needed, a household has at least 10 days to return additional verification, and the State agency can maintain timely application processing standards. The Department will work with State agencies in implementing this provision and monitor to ensure it does not adversely affect application and recertification processing timeliness.

One State agency commented that they appreciated the streamlining goal but were concerned it would increase burden for State agencies. This commenter requested the Department finalize the rule without the provision at 7 CFR 273.24(l) and instead maintain standards at 7 CFR 273.2(f)(5)(i) for verifying exception status. Program rules at 7 CFR 273.2(f)(5)(i) already require State agencies to assist cooperating households in obtaining verification. Such assistance includes, but is not limited to, utilization of data sharing agreements with other State agencies and information received from other public assistance programs operated by the State agency. The proposed rule included the new verification requirement to minimize unnecessary burden on individuals and improve efficiency in verifying exception status, especially during the certification period. Generally, State agencies are not required to verify exception status and should consider if self-attestation is sufficient. State agencies would only need to perform this review of existing information when exception status is questionable as deemed by a State agency per 7 CFR 273.2(f)(2). Further, the Department expects this verification provision to reduce burden on both clients and State agencies by lowering the number of actions needed to verify information and decreasing the wait time for the individual to provide sources of verification and for eligibility workers to verify the information.

The Department received an additional 23 comments asking for further direction on how State agencies verify exception status. Commenters included 13 advocacy organizations, four public citizens, two policy organizations, two State agencies, and two professional associations. Fifteen commenters urged the Department to require State agencies to accept self-attestation of exception status or to prohibit State agencies from always considering self-attestation of exception status as questionable. Commenters expressed concerns over State agency policies for self-attestation and questionable information impact on how State agencies act on changes in exception status during the certification period. Since these comments intersect with requirements to screen for exceptions from the time limit, these comments are discussed further in the screening section.

Three commenters, including one professional association, one policy organization, and one advocacy organization, requested the Department issue guidance for how to identify and verify if individuals meet an exception, especially for the three new exceptions. The Department has previously issued guidance to assist State agencies in identifying and verifying exception status. This includes “SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions & Answers #1” and “SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions & Answers #2,” which answered questions from State agencies and advocates on how to implement the FRA provisions.

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In this guidance, the Department provided examples of ways State agencies can verify the new exceptions, including but not limited to, official documentation from the military such as the DD Form 214 (Certificate of Release or Discharge from Active Duty) or military ID to verify veteran status or information from independent living coordinators who administer programs for supporting youth in and transitioning out of foster care to verify individuals aging out of foster care. The Department also clarified that State agencies may use information from

other programs it operates to verify exception criteria and highly encouraged State agencies to do so when that information is available.

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The Department appreciates the difficulty in verifying some of these exceptions for both State agencies and individuals and that these are household circumstances previously not considered for SNAP. The Department is committed to providing technical assistance for these new exceptions and will continue to work with State agencies to streamline the verification process for exception status.

8

U.S. Department of Agriculture. Food and Nutrition Service.

Supplemental Nutrition Assistance Program (SNAP)—SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions and Answers #1.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/provisions-fiscal-responsibility-act-2023-questions-and-answers-1.

9

U.S. Department of Agriculture. Food and Nutrition Service.

Supplemental Nutrition Assistance Program (SNAP)—SNAP Provisions of the Fiscal Responsibility Act of 2023—Questions and Answers #2.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/provisions-fiscal-responsibility-act-2023-questions-answers-2.

10

U.S. Department of Agriculture. Food and Nutrition Service.

SNAP Use of Information Received from Other Public Assistance Programs.

Washington, DC, 2023. Accessed August 2, 2024.

https://fns-prod.azureedge.us/sites/default/files/resource-files/snap-use-info-other-pap.pdf.

One advocacy organization and one State agency requested the Department amend 7 CFR 273.2(f)(2) and allow State agencies to use another State agency's attestation that the individual meets an exception, similar to what is done for verifying countable months received in another State. However, it is unnecessary to amend 7 CFR 273.2(f)(2). Nothing in program rules at 7 CFR 273.2(f) prohibits State agencies from using another State agency's attestation to verify an individual meets an exception. As such, State agencies are permitted to use another State agency's attestation to verify exception status.

The same two commenters asked the Department to allow individuals to meet the veteran's exception temporarily for 90 days while they await verification of their veteran status from the National Archives, U.S. Department of Defense, and the U.S. Department of Veterans Affairs. While individuals may experience delays in receiving documentation of veteran status, this type of documentary evidence is not the only way an individual can qualify and verify for the exception for veterans. State agencies must accept an individual's self-attestation that they meet the exception, unless it meets the State agency's guidelines for questionable information. If more verification is necessary, program rules at 7 CFR 273.2(f)(4) provide the various sources of acceptable verification, which includes documentary evidence and collateral contacts.

Therefore, for the reasons cited above, the Department is finalizing 7 CFR 273.24(l) as proposed.

7 CFR 271.2, 273.7(b)(3), and 273.24(k): Screening and Assigning Countable Months

To properly apply SNAP work requirements, State agencies must first evaluate individuals potentially subject to the time limit to determine if they are indeed subject to the time limit, or if they qualify for an exception. The Department refers to this process as “screening.” State agencies must perform a thorough screening to correctly apply the time limit or an exception and to ensure only the appropriate individuals accrue countable months.

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The proposed rule added requirements for when this screening must occur and what steps State agencies must take prior to assigning countable months.

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A countable month is a month in which a person is receiving a full SNAP benefit allotment, is not meeting the time limit, and is not otherwise exempt (

i.e.,

the person is not meeting an exception from the time limit, is not living in an area covered by a waiver, is not receiving a discretionary exemption, does not have good cause for not meeting the work requirement, or is not in the month of notification from the State agency of a “provider determination” (from a SNAP E&T provider)).

Commenters were generally supportive of or silent on the screening provisions overall. Nine commenters expressed support for the screening requirement while also noting that these provisions cannot guarantee individuals are not wrongly subjected to the work requirements, citing the complexity of the work requirement rules and concerns with State agency capacity to properly screen, especially for non-English speakers. The Department recognizes the commenter concerns and is committed to providing technical assistance for State agencies to ensure proper implementation of these screening provisions and compliance with language-access requirements. Three additional commenters appreciated that the screening provisions would ensure individuals have a right to a thorough screening before being subject to the time limit and would help State agencies identify which individuals are subject to the time limit in a timely manner. In addition to these general comments, the Department received more specific comments in support and in opposition of the various screening provisions, which are detailed in the following sections.

Definition of Screening

The Department proposed to amend the definition of “screening” at 7 CFR 271.2 to include determining if an individual meets an exemption from the general work requirements listed in Sec. 6(d)(2) of the Act or an exception from the time limit listed in Sec. 6(o)(3) of the Act.

Six commenters, representing three advocacy organizations, one policy organization, one professional association, and one State agency, expressed support for the amended definition of screening, stating that better consistency in screening will enhance program integrity and prevent against the improper application of the time limit. Two advocacy organizations requested the Department also require State agencies to conduct screenings orally. Commenters explained that State agencies cannot conduct a thorough and appropriate screening in writing, especially for more complex exceptions. Proper screening is one of the most important aspects of implementing the SNAP work requirements. The Department agrees that State agencies must have a plan on how to screen for exemptions from the general work requirement and exceptions from the time limit. However, requiring State agencies to perform screening orally in all cases can limit flexibility to respond to changing needs of SNAP participants and State agencies.

Screening requires State agencies to develop a clear process that includes training and guidance materials for eligibility workers. The Department recommends that State agencies conduct screenings orally as a best practice, as it allows eligibility workers to have a conversation with the applicant and ask follow-up questions where needed. However, State agencies should also consider what information it obtains via the application process, including the interview, that can assist eligibility workers in identifying and verifying an individual's exception status. This includes information obtained on the application, during the interview, in the eligibility system, or through data sharing with other assistance programs. State agencies should not rely solely on written materials to inform individuals of the exemptions from the general work requirements and exceptions from the time limit.

These commenters also noted that screening should predate the issuance of the written consolidated work notice and the oral explanation of the work requirements. Program rules at 7 CFR 273.7(c)(1)(ii) require State agencies to provide the consolidated work notice and oral explanation to individuals who are subject to the work requirements to explain all applicable work requirements and how to fulfill those requirements. Since State agencies cannot reasonably know what work requirements apply and what information to provide if it has not screened and determined what work requirements these individuals are required to meet, screening would likely occur before notification of the work

requirements. The Department will continue to provide technical assistance and ongoing support to ensure State agencies are following the correct procedures for screening and applying the work requirements.

Therefore, the Department is not amending the definition at 7 CFR 271.2 “Screening” in response to these comments. However, the Department made one small technical clarification in the definition, adjusting “an approvable E&T component” to “a part of the E&T program,” as screening for referral to an E&T program occurs before participation in an E&T program as defined at 7 CFR 271.2.

The Department also received comments requesting additional guidance, checklists, and best practices for screening for exceptions. One State agency specifically asked the Department to issue guidance and best practices that ensures State agencies adequately screen for all exceptions, especially for the individuals newly subject to the time limit due to the increase in the age limit. The Department agrees that additional guidance will help State agencies screen consistently and will issue subsequent guidance that provides more best practices and guidelines. Additionally, the Department reminds State agencies of two existing guidance and technical assistance tools already available: the SNAP Work Rules Screening Checklists and Flow Chart and the SNAP Able-Bodied Adults Without Dependents Policy Guide.

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12

U.S. Department of Agriculture. Food and Nutrition Service.

SNAP Work Rules Screening Checklists and Flow Chart.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/work-rules-screening.

13

U.S. Department of Agriculture. Food and Nutrition Service.

SNAP Able-Bodied Adults Without Dependents (ABAWD) Policy Guide.

Washington, DC, 2023. Accessed August 2, 2024.

https://www.fns.usda.gov/snap/guide-serving-abawds-time-limit-participation.

Screening at Initial and Recertification Application

Prior to the FRA, State agencies needed to screen individuals at initial and recertification application to determine if household members are subject to the general work requirements and time limit. In implementing the FRA, the Department found sound screening practices to be key in proper administration of the new exceptions, as screening is the State agency's opportunity to identify exceptions and comply with the Act, which provides that individuals must not be subject to the time limit if they meet one of the exceptions listed in Sec. 6(o)(3).

The Department proposed adding 7 CFR 273.24(k) to require State agencies to screen households for all exceptions from the time limit at certification and recertification to ensure this important step happens consistently across State agencies. The Department also proposed to amend SNAP regulations at 7 CFR 273.7(b)(3) to require screening for all exemptions from the general work requirements at certification and recertification, as exemptions from the general work requirements confer an exception from the time limit as well. These provisions codify existing practices and clarify screening requirements to ensure compliance with the FRA and the Act. Additionally, the Department seeks to improve consistency in program operations and provide quality customer service in line with the December 13, 2021, Executive Order on

Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government.

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14

“Executive Order 14058 of December 16, 2021, Transforming Federal Customer Experience and Service Delivery To Rebuild Trust in Government,”

Federal Register

, volume 86, no. 239 (2021): 71357-71366,

https://www.federalregister.gov/d/2021-27380.

The Department received 15 comments on the requirement to screen for exceptions from the time limit at initial application and five comments on the requirement to screen for exemptions from the general work requirements at initial and recertification application. Commenters included 12 advocacy organizations, three public citizens, one policy organization, one professional association, and one State agency. Commenters were generally supportive of the requirement, noting that these changes are key to bolstering screening practices and implementing the new exceptions to the time limit. Though commenters were supportive of the provisions, they requested the Department provide additional details in the regulatory text for both provisions.

Two commenters requested the Department use screening as a noun instead of as a verb, replacing references of “screening” with “conduct a screening.” These commenters stated that using screening as a verb is inconsistent with the definition in 7 CFR 271.2. The Department disagrees that this change is necessary. The use of “screening” as a verb in the proposed rule is consistent with other requirements to screen already included in 7 CFR 273.7(c)(2). Therefore, the Department is not changing any references to screening in 7 CFR 273.24(k).

Six commenters, including four advocacy organizations, one policy organization, and one professional association, urged the Department to require State agencies to assign the exception that will be in effect the longest when individuals qualify for more than one exception from the time limit. The same policy organization also requested the Department add the same requirement for exemptions from the general work requirements. In the proposed rule, the Department encouraged State agencies to assign the longest exception as a best practice when screening but did not require it. The Department agrees with commenters that assigning the longest exception helps maintain program access for individuals and lessen the workload for State agencies, resulting in reduced administrative burden and cost for both clients and State agencies. As such, the Department is adding a requirement for State agencies to apply the exception from the time limit that will last the longest at 7 CFR 273.24(k) and the exemption from the general work requirements that will last the longest at 7 CFR 273.7(b)(3).

One policy organization and one advocacy organization noted that the proposed rule would require State agencies to screen and determine if an individual meets “an” exemption from the general work requirements and recommended the Department change “an” to “any.” The Department agrees with these commenters that using “an” creates the possibility that a State agency could screen for just one exemption and fail to screen for others. The Department intended for State agencies to screen for all exemptions and to continue screening even once an individual meets one exemption. This is consistent with the requirement to apply the exception that is in effect the longest when an individual meets more than one exception. Therefore, the Department is amending 7 CFR 273.7(b)(3), as well as the definition of screening at 7 CFR 271.2, to clarify that State agencies must screen for all exemptions and exceptions.

Screening and Applying Exceptions During the Certification Period

When the FRA was implemented, the Department received questions from State agencies about how to identify, apply, and verify exceptions during an individual's certification period. Individuals can experience changes in circumstances during their certification period that may lead to them no longer qualify for an exception, such as turning

18. Similarly, an individual may experience a change that results in them now meeting an exception, such as becoming homeless. To address these situations, the Department proposed 7 CFR 273.24(k)(1)(i) and (ii), which specified State agency responsibilities when an individual experiences a change in circumstances that results in them losing an exception or newly meeting an exception.

The Department received 15 comments in support of these screening requirements. Nine of those comments were particular to actions when an individual loses an exception, and six comments were specific to requirements when an individual is newly meeting an exception. Commenters included multiple policy organizations, advocacy organizations, and professional associations and two State agencies. Commenters appreciated the Department's efforts to improve screening practices by requiring State agencies to screen individuals before applying the time limit, helping ensure individuals have access to a thorough and timely screening. Commenters also applauded the Department's clarifications on when State agencies should assign countable months. However, some commenters also requested the Department further outline State agency responsibilities to meet these requirements during the certification period, which are discussed in detail in the sections below.

Two policy organizations opposed the provisions because they did not agree that the provisions are necessary to implement the FRA and questioned if they align with statutory obligations to enforce the time limit. One commenter further disagreed with prohibiting State agencies from assigning countable months unless it determines that the individual does not meet any exceptions. The commenter claimed this process would provide benefits to individuals who are not verified as eligible.

While the FRA requires State agencies to apply the new exceptions at initial application and recertification, State agencies were confused on how to act on information about the exceptions discovered during the certification period. Some of the questions raised included how State agencies account for individuals who appear to be newly subject to the time limit due to the changes in age-based exceptions, but the State agency has not screened to determine if they meet any exception. Since these individuals were not subject to the time limit at the time of their last certification, the State agency would likely not have any information on whether the individual meets another exception. Similarly, an individual subject to the time limit before the FRA could now be excepted as a veteran, however, the State agency may not know the individual is a veteran because the information is not collected during the application process. In both scenarios for ongoing households, the State agency could not properly determine if the individual should be subject to the time limit.

These questions are emblematic of questions about screening and assigning countable months during the certification period more broadly, and not just specific to operationalizing the new exceptions. In order to enforce the time limit, State agencies must first know who is subject to the time limit before they can determine if that individual is meeting the associated work requirements. Both pieces of information are needed before a countable month can be assigned correctly. If not, State agencies are liable to incur payment errors for either incorrectly penalizing a household, or inappropriately applying benefits. A State agency cannot reasonably know if the individual is subject to the time limit if it has not screened an individual for exceptions from the time limit. It is inconsistent with Sec. 6(o)(3) of the Act for a State agency to apply the time limit and assign countable months when it has not screened and determined an individual does not meet any exceptions from the time limit. As such, the Department found it necessary to provide additional clarification at 7 CFR 273.24(k) in order to address this confusion and ensure consistency amongst State agencies on how to accurately administer SNAP work requirements and maintain program integrity.

Assigning Countable Months

Three advocacy organizations and one State agency asked the Department to clarify additional circumstances not addressed in the proposed rule where State agencies must screen individuals before assigning countable months. These circumstances include when an individual loses the exemption from the general work requirements for working 30 hours per week, when an area loses a geographic waiver, or when a time-limited participant's work hours drop below 20 hours per week.

Individuals are not subject to the time limit if they meet an exception, which includes meeting an exemption from the general work requirements. Individuals who are working 30 or more hours a week or are earning weekly wages equal to at least the Federal minimum wages multiplied by 30 hours are exempt from the general work requirements, and therefore, are not subject to the time limit. If an individual has a change in circumstances during the certification that results in them not meeting this exemption, such as involuntarily quitting or reducing work hours, then the State agency must screen the individual and determine if they meet any other exceptions from the time limit, including any other exemption from the general work requirements, before assigning countable months. If the State agency is unable to reach the individual to screen during the certification period, the State agency must not begin assigning countable months as attempts to screen do not constitute screening for the exceptions.

Individuals who live in an area covered by a waiver of the time limit will not receive any countable months while covered by the waiver. State agencies must continue to screen individuals even when a waiver is in place to determine which individuals are subject to the time limit. If a State agency stops screening under a waiver, it is not able to accurately administer the time limit when the waiver ends. When the waiver does end, State agencies must ensure individuals who are subject to the time limit have been notified of the applicable work requirements and begin applying the time limit.

Individuals can fulfill the time limit by working, or by participating in a work program, for 20 hours per week, averaged monthly. Individuals who are meeting this 20 hour per week requirement are complying with the time limit but are still considered subject to the time limit. Therefore, when an individual reports their work hours drop below 20 hours per week without good cause, the State agency would assign a countable month. The State agency would have already determined if the individual is subject to the time limit and does not need to screen the individual again since they must screen at certification and recertification. If the individual has had a change in circumstances that results in them newly meeting an exception, the individual can report that information to the State agency at any time.

The same four commenters suggested the Department clarify that State agencies must issue expedited benefits to households and refrain from subjecting individuals to the time limit while the State agency completes screening. The same State agency further requested the Department amend expedited service rules at 7 CFR

273.2(i)(4) accordingly. The Act and program rules require State agencies to process applications that meet the expedited service criteria within seven days and postpone verification (if necessary) to meet this timeframe, as long as the State agency has verified identity. Program rules at 7 CFR 273.2(i)(4)(B) emphasize that State agencies must make all reasonable efforts to verify other information required by 7 CFR 273.2(f) through collateral contacts or readily available documentary evidence within the seven-day time frame.

State agencies should also make all reasonable efforts to screen individuals at certification and recertification within that seven-day time frame, especially when interviewing the individual. If the State agency screens the individual and determines they do not meet any exceptions from the time limit, the State agency would consider them subject to the time limit and begin assigning countable months in the first full month of benefits. If the State agency screens and determines the individual meets an exception from the time limit, the State agency would consider them not subject to the time limit and no verification is needed. This is because State agencies are not required to verify exception status unless it is questionable. If the information about exception status is questionable, the State agency must verify the information. The State agency would first follow the new process outlined at 7 CFR 273.24(l), which requires State agencies to use all available information to verify an individual's exception status before reaching out to the household. If the State agency is able to verify exception status via these means within seven days, it would apply the exception and the individual is not subject to the time limit. If the State agency is still unable to verify exception status within the seven days, the State agency would postpone verification of exception status in accordance with 7 CFR 273.2(i)(4). Because of this postponed verification, the State agency would not assign countable months until exception status is verified.

However, if an individual who has already received three countable months reapplies and the State agency has no information from the household or another source indicating that the individual has regained eligibility or is now meeting an exception, the State agency would determine that the individual remains ineligible for SNAP and is not eligible for expedited service. The State agency would then process the case according to normal application processing standards. If the State does have information from the household or another source indicating that they have regained eligibility or are now meeting an exception, the State agency must attempt to obtain as much verification as possible within the expedited service time frame. As noted above, State agencies do not need to verify exception status unless it is questionable, so the State agency may not need to postpone verification of exception status and can apply the exception at that time. If the verification cannot be obtained in the seven-day time frame, the State agency would postpone the verification in order to issue benefits. The State agency is responsible for making a determination of whether or not to postpone verification within these parameters.

In addition to commenter requests for clarification on the specific scenarios discussed above, six commenters, including two advocacy organizations, two policy organizations, and two State agencies, asked the Department to clarify if State agencies need to retrospectively assign countable months when an individual has a change in exception status during the certification period. Three commenters urged the Department to prohibit State agencies from retrospectively assigning countable months back to the date an individual lost their exception status. Three commenters also requested the Department to require State agencies to only assign countable months prospectively after screening. Commenters requested these clarifications because existing guidance requires State agencies to retrospectively assign countable months if the State agency determines at recertification that an individual lost their exception and should have been subject to the time limit, and also called for the Department to rescind this guidance.

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15

U.S. Department of Agriculture. Food and Nutrition Service. Able-Bodied Adults without Dependents (ABAWD) Questions and Answer. Washington, DC, 2015. Accessed September 9, 2024.

https://www.fns.usda.gov/sites/default/files/resource-files/ABAWD-Questions-and-Answers-June%202015.pdf.

The Department understands these comments reflect concerns that individuals can accrue countable months and lose access to SNAP as a result, even when they were not required to report a change. The new screening provisions will mitigate these issues by limiting the assignment of countable months until after State agencies evaluate an individual and determine if they meet any other exception. Since State agencies must screen before assigning countable months, if it did not conduct a screening when the loss of the exception occurred, it cannot go back in time and retrospectively screen the individual. This means that in these situations State agencies should not retrospectively adjust countable months at recertification while complying with this screening requirement. If the State agency is unable to screen during the certification period, the State agency should wait until the next recertification to screen the individual, and then at that time, either apply another exception or begin applying the time limit. Further, the Department maintains it is important for program access and integrity to preserve State agencies' ability to retrospectively adjust countable months as a result of State agency or client error. As a result, it is not necessary to add language prohibiting retrospective adjustment of countable months to address the situations discussed by commenters.

One advocacy organization and one State agency requested the Department allow State agencies to retrospectively remove countable months back to the date an individual started meeting a new exception. The advocacy organization also asked the Department to permit State agencies to retrospectively apply exceptions back to the date it is reported instead of the date it is verified. As discussed above, the new screening provisions are intended to minimize the need for State agencies to retrospectively adjust countable months. The new provision at 7 CFR 273.24(k)(1)(ii) is clear on when State agencies should stop assigning countable months when an individual is newly meeting an exception: either after the State agency receives the information or after the State agency verifies the information if it was questionable. Further, screening is a forward-looking process and State agencies should not be going back to the previous certification period when screening an individual. As a result, State agencies should not need to retrospectively adjust countable months in most circumstances.

One policy organization opposed these provisions and requested the Department require State agencies to apply countable months immediately when an individual is found not to qualify for an exception or comply with a work requirement. This includes retrospectively applying countable months when the State agency receives this information at a later date. The Department agrees that State agencies must enforce the time limit and apply countable months for individuals who are subject to the time limit but are not

meeting the requirement. Individuals subject to the time limit are required to report when their work hours fall below 20 hours per week, averaged monthly. If an individual fails to report this information and the State agency later determines it, the State agency must retrospectively adjust countable months.

Individuals are not subject to the time limit if they meet an exception from the time limit. During the certification period, individuals may experience changes that result in them losing an exception. Without additional screening, the State agency would only know about the change in circumstances for that one exception, but not if the individual meets another. As a result, loss of an exception alone does not provide the State agency with sufficient information to determine if the individual should now be subject to the time limit. This is especially true given the fluid nature of some of the exceptions, such as homelessness or pregnancy, which individuals may meet only temporarily. Therefore, the State agency must screen to determine if the individual meets another exception to know if the individual should be subject to the time limit and comply with Sec. 6(o)(3) of the Act, which requires State agencies to only subject individuals who do not meet an exception to the time limit.

For these reasons, the Department is not making any changes to 7 CFR 273.24(k)(1)(i) and (ii) and finalizing as proposed.

Acting on Changes During the Certification Period

Four commenters, including two advocacy organizations, one policy organization, and one State agency, requested clarification for how the screening provisions interact with rules for acting on changes during the certification period. These commenters urged the Department to include a cross-reference to unclear information rules at 7 CFR 273.12(c)(3) in both 7 CFR 273.24(k)(1)(i) and (ii). Unclear information is information that is not verified or is verified but the State agency needs more information to act on it. Program rules at 7 CFR 273.12(c)(3) outline the specific procedures State agencies must follow when acting on unclear information. Program rules for acting on unclear information apply to all changes occurring during the certification period, regardless of whether the paragraph includes a direct cross-reference to 7 CFR 273.12(c)(3). Further, a change in circumstances during the certification period will not always result in unclear information.

For individuals who are newly meeting an exception, State agencies may not always need additional information to act on a report of a new exception. This is because exception status does not require verification unless the State agencies deem it questionable. If verification is needed, the State agency must follow the new verification provision at 7 CFR 273.24(l) and first attempt to verify using all available information before reaching out to the household. This means that the State agency could potentially verify the information and apply the exception without ever needing to contact the household. If the State agency still cannot verify the new exception without contacting the household, then it would defer to unclear information rules at 7 CFR 273.12(c)(3) for contacting the household. The State agency would hold the information until the next certification action, unless the unclear information meets the criteria for sending a request for contact (RFC) at 7 CFR 273.12(c)(3). In most circumstances, a change in exception status is unlikely to meet the criteria for an RFC because it is not a required report under any reporting system. If the information does not meet the criteria for an RFC, State agencies may send a voluntary notice to individuals asking them to provide verification for a new exception but must not penalize individuals if they do not respond.

As a result of this new verification provision, one commenter also asked the Department to include a cross-reference to 7 CFR 273.24(l) in 7 CFR 273.24(k)(1)(ii). The Department agrees that State agencies must verify information on exception status in accordance with 7 CFR 273.24(l), even during the certification period. Therefore, the Department is adding a cross-reference to 7 CFR 273.24(l) to ensure State agencies follow the appropriate verification procedures during the certification period.

For individuals who lose their exception during the certification period, new language at 7 CFR 273.24(k)(1)(i) requires State agencies to screen individuals after they lose their exception before applying countable months. As the Department explained in the proposed rule preamble, State agencies can choose to hold this information until next recertification or attempt to screen the individual during the certification period. If a State agency attempts to screen but is unable to, the State agency must not penalize the individual for not responding. This aligns with unclear information rules, as discussed above. The Department also notes that State agencies cannot require the household to come into or contact the office per program rules at 7 CFR 273.2(e)(1) or send an RFC unless it meets the criteria outlined at 7 CFR 273.12(c)(3).

One policy organization opposed the Department's explanation of unclear information in the proposed rule and argued the application of unclear information procedures would create challenges for State agencies to enforce the time limit by not allowing State agencies to penalize individuals for failing to respond to voluntary notices. The commenter expressed concern that State agencies may hold information for up to two years under this process. The Department believes this commenter may misunderstand these requirements. First, the longest certification period individuals subject to the time limit may be eligible for is 12 months, and these individuals would not go more than six months without a review of their household circumstances. State agencies are permitted to set shorter certification periods for individuals subject to the time limit and many do so due to the nature of these households' circumstances and compliance with the time limit. Second, the proposed rule did not amend the rules for unclear information at 7 CFR 273.12(c)(3), which require State agencies to hold unclear information until the next certification action and prohibit them from penalizing individuals for not responding to a voluntary notice. These requirements already exist, and the proposed rule only clarified how State agencies must adhere to unclear information rules when screening for exceptions and enforcing the time limit.

Therefore, the Department is not making any additional changes to 7 CFR 273.24(k)(1)(i) and (ii).

Self-Attestation and Questionable Information

Commenters also asked the Department to clarify the process for applying and verifying a new exception during the certification period. Two advocacy organizations requested the Department provide a timeframe for “prompt action” to protect against interruption or termination of benefits. Prompt action is already used at 7 CFR 273.12(c) in relation to acting on changes during the certification period. Introducing a separate time frame here would cause confusion. State agencies should instead ensure their processes for requesting verification of an exception during the certification period align with prompt action for acting on changes.

Two advocacy organizations and one policy organization urged the Department to remove the reference to “questionable information” and replace it with different language, such as contradictory information or inconsistent information. Commenters were concerned that using “questionable information” in this provision would invite State agencies to always consider self-attestation as questionable and require verification of exception status, increasing the burden on individuals to claim an exception. Similarly, 15 commenters, including 11 advocacy organizations, two private citizens, one professional association and one State agency, requested the Department prohibit State agencies from universally considering self-attestation of exception status to be questionable and instead require State agencies to accept self-attestation of exception status, unless the information is contradictory or inconsistent. Commenters expressed concerns that State agencies would set a policy that self-attestation of exception status is always questionable, when in most cases, self-attestation is sufficient to confirm an individual meets an exception and providing verification would create substantial burden, especially for vulnerable populations, such as individuals experiencing homelessness, who may not have access to documents and records for verification.

Program rules at 7 CFR 273.2(f) require State agencies to verify certain factors, including, but not limited to, income, identity, and residency. These rules also require State agencies to verify any information the State agencies consider to be “questionable” (7 CFR 273.2(f)(2)) and permit State agencies to require verification of additional factors at their discretion (7 CFR 273.2(f)(3)). State agencies must treat verification of questionable exception status consistent with verifications of other types of questionable information.

While State agencies have discretion to set guidelines for the additional verifications and for questionable information, State agencies cannot prescribe verification based on race, religion, ethnic background or national origin and cannot set guidelines that target specific groups, such as migrant farmworkers, for more intensive verification. In other words, State agencies may not set verification standards that target certain participants as a group in a discriminatory manner for more intensive verification by always requiring verification of exception status for time-limited participants. This includes setting standards that categorically consider self-attestation of exception status to be questionable.

Per SNAP verification rules, State agencies should determine on a case-by-case basis if the information provided by an individual meets the State agency's criteria for questionable information, regardless of whether it is provided via self-attestation. The Department reminds State agencies that placing additional and unnecessary burden on the applicants to provide verification may put these vulnerable individuals at risk, and State agencies must accept self-attestation of exception status unless it meets the State agency's guidelines for questionable information.

One policy organization requested the Department require verification of exception status in all circumstances because self-attestation results in fraud and waste. Similarly, another commenter asserted this will exacerbate the problems of improper payments. However, the commenters did not provide evidence to show that self-attestation leads to fraud and waste in SNAP. The Act and program rules at 7 CFR 273.2(f)(1) do not require State agencies to verify exception status, unless the information is considered questionable. As the Department discusses above, State agencies have discretion for determining what information is considered questionable and what other information it decides to verify, as long as the policy does not discriminate against or target any group for more intensive verification.

As a result, the Department is not making any changes to 7 CFR 273.24(k)(1)(ii) in response to commenter concerns on questionable information.

7 CFR 273.24(g) and (h): Discretionary Exemptions

Annual Allotment of Exemptions

Sec. 312 of the FRA decreases State agencies' annual allotment of discretionary exemptions from 12 percent to 8 percent of the caseload subject to the ABAWD time limit. The Department proposed to amend 7 CFR 273.24(g)(3) to reflect this reduction in the allotment of discretionary exemptions from 12 percent to 8 percent of covered individuals in the State.

Fourteen commenters, including 10 advocacy organizations, two private citizens, one professional association, and one State agency, opposed the decrease in the allotment of discretionary exemptions because it would reduce the State agencies' effectiveness to respond to the needs of households. Commenters cited the importance of discretionary exemptions in providing benefits to individuals who are in transition and in helping State agencies respond to local crises that temporarily impact employment opportunities in the State, such as a large employer closing or a natural disaster interrupting labor markets. The change in the annual allotment of discretionary exemptions is statutory requirement and was effective with FY 2024 allotment of exemptions.

Three commenters, including one advocacy organization, one professional association, and one State agency, also urged the Department to revise the methodology for calculating the proportion of time limited participants covered by ABAWD waivers used to calculate the allotment of discretionary exemptions, referred to as the “waiver factor.” Sec. 6(o)(6)(F) of the Act and SNAP regulations at 7 CFR 273.24(g)(3) require the Department to calculate State agencies' annual allotment of discretionary exemptions each fiscal year, based on the size of the ABAWD caseload, adjusted for changes in the growth of the SNAP caseload and the waiver factor. The professional association asked the Department to reconsider the reference date used to estimate State agencies' waiver status for the fiscal year. The other two commenters requested the Department consider allowing State agencies to request its waiver factor be recalculated when the State agency's implements a new ABAWD waiver during the fiscal year. However, changes to the methodology for calculating discretionary exemptions are outside the scope of this rulemaking. Further, the current reference date of July 1 aligns with data periods used to estimate the size and growth of the ABAWD caseload and allows the Department to make the best estimate of a State agency's overall SNAP and ABAWD caseload.

The Department also received one comment from an advocacy organization urging the Department to require State agencies to justify any non-use of discretionary exemptions and demonstrate that the non-use did not contribute to food insecurity. The Act provides State agencies with discretion on if and how they want to use discretionary exemptions. In some instances, State agencies are unable to use discretionary exemptions because the State is covered by a waiver of the time limit or because of restrictions implemented by their State legislature. As the Act does not require State agencies to use these exemptions, it is inconsistent to impose additional

requirements and administrative burden by mandating State agencies use discretionary exemptions or explain why they have not used them. The Department appreciates this commenter's concerns and remains committed to engaging with State agencies and providing technical assistance to ensure proper implementation of the SNAP work requirements.

As commenters did not provide comments within the scope about the way the Department amended regulatory text to reflect these changes and for the reasons stated above, the rule finalizes the updates at 7 CFR 273.24(g)(3) as proposed.

Carryover of Unused Exemptions

Sec. 312 of the FRA also limits State agencies' ability to only carryover unused discretionary exemptions earned in the previous fiscal year. The Department also proposed to amend 7 CFR 273.24(h)(2)(i) to limit carryover of unused discretionary exemptions to only those earned for the provision fiscal year starting in FY 2026.

Two advocacy organizations and one State agency requested the Department codify, that for the purposes of carryover, discretionary exemptions are used in order of accrual. This means discretionary exemptions are used in a “first-in, first-out” basis, such that State agencies would first use any unused exemptions carried over from the previous fiscal year since those were earned first. Once the State agency exhausts those exemptions, it would start using exemptions from the balance of newly earned exemptions for the current fiscal year. Any leftover exemptions from the current fiscal year would be carried over into the next fiscal year. Prior to the FRA, the Department had no need to specify the order of use because all unused exemptions from prior fiscal years were carried over. With the introduction of carryover limited to only the previous year, the Department agrees that the order of use must now be specified in regulation, ensuring State agencies' are able to carryover unused exemptions as allowed by the Act. Therefore, in the final rule, the Department is revising the regulatory language at 7 CFR 273.24(h)(2)(i) to clarify that for the purposes of determining carryover, discretionary exemptions are used in order of accrual (first-in, first-out).

One public citizen asserted the Department must further amend regulations to comply with the carryover limitations in the FRA. First, the commenter took issue with the Department's explanation that State agencies would carryover their historical balance of discretionary exemptions into the subsequent fiscal year for FY2024 and FY2025. In particular, the commenter does not agree with the Department's concept of a historical balance of discretionary exemptions.

There are two parts to a State agency's available allotment of discretionary exemptions: (1) the fiscal year allotment and (2) any carryover exemptions. Prior to the FRA, the Act did not require the Department to distinguish between the two parts because State agencies could carryover all unused exemptions from prior years. As a result, State agencies would receive a new allotment of discretionary exemptions each fiscal year that was added to their available balance of unused exemptions, hence the concept of a “historical balance” of exemptions. Each time the State agency had unused discretionary exemptions, they became part of the total number of exemptions available to the State agency during the next fiscal year.

The FRA introduced the prohibition on accumulating unused exemptions beyond the subsequent fiscal year during FY 2024 and beyond. This means that State agencies' available discretionary exemptions, including both the newly earned in fiscal year and any carryover, will have a two-year shelf-life because State agencies cannot accumulate unused exemptions beyond the subsequent fiscal year. As the restrictions on carryover begin during FY 2024, State agencies could use newly earned exemptions and their already accumulated historical balance in FY 2024. Then, in FY 2025, State agencies could carryover any unused exemptions from FY 2024, which includes the newly earned exemptions and the historical balance. Finally, in FY 2026, the historical balance provided in FY 2024 would expire because of the subsequent fiscal year restriction and only unused exemptions earned in FY 2025 could carryover.

Second, the commenter contended that the Department must repeal existing language at 7 CFR 273.24(h)(2)(i) to sufficiently limit carryover as prescribed by the FRA. Program rules at 7 CFR 273.24(2)(i) specify that the Department will increase the estimated number of exemptions allocated to a State agency when the State agency does not use all of its exemptions by the end of the fiscal year. The proposed rule did not repeal or modify the existing language at 7 CFR 273.24(h)(2)(i) but rather added language that limits carryover to only unused exemptions earned in the previous fiscal year in accordance with the FRA. The commenter contended that failing to remove this language would allow the Department to continue unlimited carryover of discretionary exemptions.

The Department disagrees that the rule must repeal the existing language at 7 CFR 273.24(2)(i) to sufficiently modify this provision to reflect the FRA. The proposed rule clarifies that starting in FY 2026, carryover will now be limited to only unused exemptions earned in the previous fiscal year. The existing language does not state that carryover is unlimited, but rather that the Department will adjust the allocation of discretionary exemptions based on the number of unused discretionary exemptions from the previous fiscal year. The Department proposed to amend 7 CFR 273.24(h)(2)(i) to clarify the change in State agencies' ability to accumulate and carryover unused exemptions in accordance with the FRA.

Since there is no contradiction that would allow for unlimited carryover, the Department is finalizing 7 CFR 273.24(h)(2)(i) with only one change to account for first-in, first-out use of carryovers.

Procedural Matters

Executive Orders 12866, 13563, and 14094

Executive Orders 12866, 13563, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rulemaking has been determined to be significant under Executive Order 12866, as amended by Executive Order 14094, and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866.

Regulatory Impact Analysis Summary

A Regulatory Impact Analysis (RIA) that includes both with-statute and without-statute comparisons was developed for this final rule. It follows this rule as an Appendix. The following summarizes the conclusions of the regulatory impact analysis:

When compared to a without-statute baseline, the Department estimates the total increase in federal transfers (SNAP

benefit spending) associated with the provisions of this final rule to be approximately $3.5 billion over the nine years Fiscal Year (FY) 2023-FY 2031, averaging $393.1 million per year. This is the net result of a reduction in transfers of $5.1 billion by terminating benefits to about 1.8 million individuals, a reduction to the benefits of 123,000 individuals of $149.1 million, and an increase in transfers of $8.7 billion due to about 2.6 million individuals meeting exceptions from the time limit. Over the nine-year period FY 2023-FY 2031,

16

federal administrative costs (not including transfers) are estimated to total approximately $283.9 million, or an annual average of $31.5 million. Total State agency administrative expenses are also estimated to be approximately $283.9 million over the nine-year period, or an annual average of $31.5 million. Costs associated with administrative burden to individual SNAP participants are estimated to be approximately $358.3 million over the nine-year period, or an annual average of $39.8 million.

16

A nine-year analysis period is used to align with the implementation and sunset periods established by the FRA. See discussion of baseline and time horizon of analysis in the Regulatory Impact Analysis for more detail.

This final rule will primarily affect SNAP participants who are subject to the ABAWD time limit, which the Department estimates to be, upon full implementation of the FRA's provisions in FY 2026, approximately 9.2 percent of SNAP participants. However, far fewer will lose eligibility for SNAP. Hence, most SNAP participants will not be affected by this final rule. The estimated net impact of the final rule's change in the age-based exceptions and three new exceptions is a net increase in SNAP participation of about 89,000-95,000 individuals per year when fully implemented. In FY 2026, this includes 301,000 participants losing eligibility, 367,000 participants retaining eligibility through one of the new exceptions, and about 29,000 new participants.

When compared to a with-statute baseline, the Department estimates the net total cost of the final rule to be $58.1 million over the nine-year period FY 2023-FY 2031, averaging $6.5 million per year. The total cost includes approximately $29 million in State agency administrative expenses and approximately $29.1 million in total federal administrative costs. There are no estimated impacts to benefit transfers or to participant burden when using a with-statute baseline.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Section 605(b) of the Regulatory Flexibility Act stipulates that the requirements to prepare and publish an initial and final regulatory flexibility analysis “shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The Department has certified that this rule would not have a significant impact on a substantial number of small entities because the changes required by the regulations are directed toward State agencies operating SNAP programs.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801

et seq.

), the Office of Information and Regulatory Affairs has determined that this rule does not meet the criteria set forth by 5 U.S.C. 804(2).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year, updated annual for inflation. In 2024, that threshold is approximately $183 million. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $183 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 12372

This Supplemental Nutrition Assistance Program is listed in the Catalog of Federal Domestic Assistance under Number 10.551 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.) Since SNAP is State-administered, FNS has formal and informal discussions with State and local officials on an ongoing basis regarding program requirements and operations. This provides USDA with the opportunity to receive regular input from program administrators and contributes to the development of feasible program requirements. For example, SNAP participated in three webinars covering FRA implementation and responded to State agency questions and concerns over implementation. SNAP also is providing ongoing technical assistance with State agencies covering implementation of the FRA and work requirements more generally.

Federalism Summary Impact Statement

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.

In the proposed rule, the Department determined this rule did not have federalism implications and no federalism summary was required. One commenter expressed opposition to the Department's determination that the proposed rule would have no federalism implications under the requirements of Executive Order 13132. The commenter asserted that the compliance costs and the increased administrative costs that the proposed rule would impose could have substantial direct effects on the States and on the relationship between the national government and the States. Therefore, the commenter concluded that a federalism summary is required before the proposed rule can be finalized.

The Department disagrees with this commenter. Section 6(b) of Executive Order 13132 states “To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless . . . .” Further, Section 6(b)(1) of Executive Order 13132 provides an exception from 6(b) if the “funds necessary to pay the direct costs incurred by the State and local governments in complying with the

regulation are provided by the Federal Government.” This rule reflects changes already in effect and required by statute (the FRA), and therefore, are not subject to Section 6(b)(2)(B) of Executive Order 13132. The direct compliance costs to State agencies for the discretionary provisions are not substantial, as these reflect processes already in practice and administrative costs are split equally between the federal and State governments. Further, the revised verification procedures may also help to streamline State agency processes and reduce burden on State agencies and households. Therefore, the Department maintains that this rule has no federalism implications, and no federalism summary is needed.

Executive Order 12988, Civil Justice Reform

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

Civil Rights Impact Analysis

FNS has reviewed the final rule, in accordance with Departmental Regulation 4300-004, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the final rule might have on program participants on the basis of race, color, national origin, sex (including gender identity and sexual orientation), religious creed, disability, age, political beliefs.

The Department believes that the provisions of the FRA and the requirements for verification and screening will have a potential impact on certain protected groups as it relates to SNAP work requirements. The Department also believes that the addition of the new exceptions will provide greater and continuous access to SNAP benefits for SNAP applicants and participants. The Department finds that the implementation of mitigation strategies and monitoring will lessen these impacts. The Department has collaborated with the Equal Employment Opportunity Commission to develop mitigation strategies to support protected classes that may be adversely impacted. The Department will continue to provide guidance and technical assistance to State agencies and Regional Offices on the FRA and will provide additional assistance after the publication of the rule explaining the provisions on the final rule. The Department will also monitor State agencies compliance with the provisions in the final rule and collaborate with Regional Offices to ensure State agencies are applying the provisions of the rule fairly, equitably, and consistently throughout the State.

Executive Order 13175

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

FNS provided an opportunity for consultation on March 15, 2024. The Tribes had minimal comments, but one Tribe raised two concerns. First, the Tribe described the challenges and burden that former foster care youth face in obtaining formal documentation needed to verify that they were in foster care, especially in rural areas. FNS appreciates these concerns and the proposed requirements in this rule are intended to reduce this burden on individuals by requiring the State agency to use information already available to verify exception status. Second, the Tribe raised concerns over the decrease in the allotment of discretionary exemptions from 12 to 8 percent of the ABAWD caseload. FNS recognizes this concern, however, the decrease in discretionary exemptions is a statutory provision of the FRA and therefore, cannot be changed by this rulemaking.

If a Tribe requests further consultation in the future, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. The Department is requesting a revision for OMB Control Number 0584-0479 for these new, existing, and changing provisions in this rule. These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. Additionally, when the information collection requirements have been approved, FNS will publish a separate action in the

Federal Register

announcing OMB's approval.

Title:

Supplemental Nutrition Assistance Program: Work Requirements and Screening.

OMB Number:

0584-0479.

Expiration Date:

2/28/2026.

Type of Request:

Revision to an existing collection.

Abstract:

This final rule would amend SNAP regulations to implement changes made by the Fiscal Responsibility Act (FRA) of 2023. Some of the changes would modify current regulations resulting in an increase in the reporting burden for State agencies, while others will result in no change.

The FRA amended the exceptions from the time limit, increasing the upper limit of the age-based exception from 50 to 55 over two years and adding three new exceptions for homeless individuals, veterans, and individuals aging out of foster care. The changes to the age-based exception will result in an increase in the number of individuals subject to the time limit, while the new exceptions will result in a decrease. The Department estimates a net increase in the number of individuals subject to the time limit. As a result, the Department estimates an increase in burden for State agencies and individuals. The Department anticipates additional burden related to verification of work hours and countable months, issuance and review of the Consolidated Work Notice, and the review of the oral explanation of the work requirements for individuals newly subject to the time limit. The Department also anticipates additional burden related to the issuance and review of the Notice of Adverse Action for individuals newly subject to the time limit who reach three countable months and become ineligible. The Department is accounting for this net increase in individuals subject to the time limit and the resulting additional burden in this information collection.

The FRA amended the SNAP program purpose to include assisting low-income individuals in obtaining employment and earnings. The Department does not anticipate any burden related to this change. The FRA also reduced the annual allotment of discretionary exemptions and reduced carryover of

unused exemptions. The Department does not estimate any change in burden related to reporting of discretionary exemptions, which is covered under OMB Control Number 0584-0594 (Food Programs Reporting System (FPRS); expiration date: 09/30/2026).

In addition to implementing the provisions of the FRA, this final rule establishes regulations that require State agencies to screen individuals for exemptions from the general work requirements and exceptions from the time limit. Currently, State agencies are required to screen individuals for exemptions from the general work requirements and exceptions from the time limit at initial and recertification application. However, this requirement is not captured in regulations and the related burden not captured in any existing information collection. The Department is including new burden related to screening in this information collection, which is required to ensure State agencies apply time limit policy correctly. One professional association expressed concern that the Department did not account for an increased burden stemming from the reduction in the annual allotment of discretionary exemptions and the limitations on carryover. However, prior to the FRA, State agencies used discretionary exemptions to extend benefits for specific populations that are now exempt from the time limit, such as individuals that are experiencing homelessness. As a result, this will reduce the need for State agencies to use discretionary exemptions cover individuals after they lose an exception during the certification period and reduce the number of actions State agencies must take on a case.

This final rule also requires State agencies to use all available information to verify exception status, when questionable, before requiring individuals to provide verification. The Department does not anticipate a change in the burden related to the verification of questionable information, which is covered under OMB Control Number 0584-0064 (SNAP Forms: Applications, Periodic Reporting, Notices; expiration date: 06/30/2027). The Department received two comments on the estimated burden related to verification of exception status. One State agency and one professional association expressed concern that the rule would increase burden of verifying information for State agencies. Because State agencies are not required to verify exception status unless it is questionable and they cannot discriminate or target one group when setting guidelines for what information is questionable, the Department does anticipate that increase in the number of time-limited participants would necessarily mean a substantial increase in burden and cost related to verification of questionable information. Further, the rule included the new verification requirement to minimize unnecessary burden on individuals and improve efficiency in verifying exception status, especially during the certification period. As a result, the Department anticipates a slight increase in burden related to verification of questionable exception status, which will be offset by a decrease in burden related to the verification provision of this final rule and the Department is making any changes to the burden estimates for verification of questionable information in OMB Control Number 0584-0064.

The Department also anticipates start-up burden related to the statutory and regulatory changes. State agencies will need to update their eligibility systems and notices to include the new exceptions and changes to the age-based exception. State agencies will also need to update their policy manuals and documents with the changes to ABAWD eligibility and the screening requirements. Lastly, State agencies will need to develop and provide training on the new requirements to State agency staff.

These new requirements necessitate a revision to OMB Control Number 0584-0479 (Expiration Date: 02/28/2026). The Department is seeking a three-year renewal of OMB Control Number 0584-0479 with the Final Rule. OMB Control Number 0584-0479 currently covers burden related to preparation and submission of time limit waivers. Time limit waivers are submitted via the Waiver Information Management System (WIMS), and the burden for this submission is covered which is covered under OMB Control Number 0584-0083 (Operating Guidelines, Forms, Waivers, Program and Budget Summary Statement; expiration date: 9/30/2026). The final rule does not make changes to burden covered under OMB Control Number 0584-0083. Due to the addition of new burden items, the Department is changing the title of 0584-0479 to “Supplemental Nutrition Assistance Program: Work Requirements and Screening.”

The Department has updated the burden and cost estimates based on more recent data on SNAP participation and labor rates. The Department did not need to make any adjustments to the burden and costs estimates as a result of comments on the proposed rule or changes in the final rule.

Start-Up Burden

Respondents:

State Agencies.

Estimated Number of Respondents:

53 State Agencies and 105,030 eligibility workers.

Estimated Number of Respondents per Respondent:

One (1) response.

Estimated Total Annual Burden on Respondents:

469,177 hours, an increase of 469,177 hours from current inventory of 0 hours in 0584-0479.

Ongoing Burden

Respondents:

State Agencies and Individuals.

Estimated Number of Respondents:

53 State Agencies and 29,778,855.42 Individuals.

Estimated Number of Respondents per Respondent:

609,811.75 responses per State Agency and one (1) per Individual.

Estimated Total Annual Burden on Respondents:

4,032,013.61 hours (2,016,588.31 hours for State Agencies and 2,015,425.31 hours for Individuals), an increase of 4,030,850.61 hours from current inventory of 1,163 hours in 0584-0479.

The total burden for this rulemaking is 4,501,190.61 burden hours and 59,662,934.85 total annual responses. This represents an increase to the burden hours for OMB Control Number 0584-0479, resulting in a total inventory of 4,091,394.24 burden hours (4,504,707.61 new burden hours + 1,163 existing burden hours) and 59,662,934.85 responses (59,662,899.85 new responses + 35 existing responses).

BILLING CODE 3410-30-P

ER17DE24.000

ER17DE24.001

ER17DE24.002

ER17DE24.003

BILLING CODE 3410-30-C

E-Government Act Compliance

The Department is committed to complying with the E-Government Act of 2002, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

List of Subjects

7 CFR Part 271

Administrative practice and procedures, Employment, Supplemental Nutrition Assistance Program.

7 CFR Part 273

Administrative practice and procedure, Able-bodied adults without dependents, Employment, Time limit, Work requirements.

Accordingly, the Food and Nutrition Service amends 7 CFR part 271 and 273 as follows:

1. The authority citation for parts 271 and 273 continues to read as follows:

Authority:

7 U.S.C. 2011-2036.

PART 271—GENERAL INFORMATION AND DEFINITIONS

2. In § 271.1, revise paragraph (a) to read as follows:

§ 271.1

General purpose and scope.

(a)

Purpose of SNAP.

SNAP is designed to promote the general welfare and to safeguard the health and well-being of the Nation's population by raising the levels of nutrition among low-income households. In keeping with section 2 of the Food and Nutrition Act of 2008, the USDA established SNAP under the Act as the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households. The increased utilization of food in establishing and maintaining adequate national levels of nutrition also promotes the distribution in a beneficial manner of the Nation's agricultural abundance and strengthens the Nation's agricultural economy, as well as result in more orderly marketing and distribution of foods. To alleviate hunger and malnutrition, SNAP permits low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation. SNAP includes as a purpose to assist low-income adults in obtaining employment and increasing their earnings. Such employment and earnings, along with program benefits, permits low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation.

3. In § 271.2, revise the definitions of “Homeless individual” and “Screening” to read as follows:

§ 271.2

Definitions

Homeless individual

means

(1) An individual who lacks a fixed and regular nighttime residence, including, but not limited to, an individual who will imminently lose their nighttime residence; or

(2) An individual whose primary nighttime residence is:

(i) A supervised shelter designed to provide temporary accommodations (such as a welfare hotel or congregate shelter);

(ii) A halfway house or similar institution that provides temporary residence for individuals intended to be institutionalized;

(iii) A temporary accommodation for not more than 90 days in the residence of another individual; or

(iv) A public or private place not designed for, or ordinarily used, as a regular sleeping accommodation for human beings (a hallway, a bus station, a lobby, or similar places).

Screening

means an evaluation by an eligibility worker of an individual for all exemptions from the general work requirements, all exceptions from the able-bodied adults without dependents time limit, and whether the individual should be referred for participation in an employment and training program. Screening for participation in employment and training programs is not considered a part of the E&T program.

PART 273—CERTIFICATION OF ELIGIBLE HOUSEHOLDS

4. In § 273.7, add paragraph (b)(3) to read as follows:

§ 273.7

Work provisions.

(b) * * *

(3) State agencies must screen individuals for all exemptions listed in paragraph (b)(1) of this section at certification and recertification. The State agency must apply the exemption that will be in effect the longest when an individual qualifies for more than one exemption.

5. In § 273.24:

a. Amend paragraph (c)(1) by removing the number “50” and adding in its place “55”;

b. Amend paragraph (c)(5) by removing “or” at the end of the paragraph;

c. Amend paragraph (c)(6) by removing the period and adding a semicolon in its place;

d. Add paragraphs (c)(7) through (10);

e. Amend paragraph (g)(3) by removing the number “12” and adding in its place “8”;

f. Amend paragraph (h)(2)(i) by adding a sentence at the end; and

g. Add paragraphs (k) and (l).

The additions read as follows:

§ 273.24

Time Limit for able-bodied adults.

(c) * * *

(7) Homeless, as defined in § 271.2 of this chapter;

(8) A veteran, defined as an individual who, regardless of the conditions of their discharge or release from, served in the United States Armed Forces (such as Army, Marine Corps, Navy, Air Force, Space Force, Coast Guard, and National Guard), including an individual who served in a reserve component of the Armed Forces, or served as a commissioned officer of the Public Health Service, Environmental Scientific Services Administration, or the National Oceanic and Atmospheric Administration; or

(9) An individual who is 24 years of age or younger and who was in foster care under the responsibility of any State, District, U.S. Territories, Indian Tribal Organization, or Unaccompanied Refugee Minors Program on the date of attaining 18 years of age, including those who remain in extended foster care in States that have elected to extend foster care in accordance with section 475(8)(B)(iii) of the Social Security Act (42 U.S.C. 675(8)(B)(iii)) or those who leave extended foster care before the maximum age.

(10) Unless otherwise changed by law, the exceptions provided at paragraphs (c)(7) through (9) of this section cease to have effect on October 1, 2030, and the age limit provided in paragraph (c)(1) of this section reverts from “55 years of age or older” to “50 years of age or older” on October 1, 2030.

(h) * * *

(2) * * *

(i) * * * Starting in FY 2026, FNS will increase the estimated number of exemptions allocated to the State agency for the subsequent fiscal year by the remaining balance of unused exemptions earned for the previous

fiscal year. FNS will consider the State agency to use exemptions in order of accrual (first-in, first-out) for the purposes of calculating carryover of unused exemptions.

(k)

Screening.

The State agency must screen individuals for all exceptions from the time limit listed under paragraph (c) of this section at certification and recertification. The State agency must not assign countable months unless it has screened the individual and determined that no exception applies. When an individual qualifies for more than one exception, the State agency must apply the exception that will be in effect the longest.

(1) Changes in exception status during the certification period.

(i)

Loss of an exception.

If during the certification period an individual has a change in circumstances that results in the loss of an exception from the time limit, the State agency cannot begin assigning countable months until it screens the individual to determine whether any other exception applies.

(ii)

Newly meeting an exception.

If during the certification period an individual subject to the time limit has a change in circumstance that results in the individual now meeting an exception, the State agency must act promptly to apply the exception and cannot assign a countable month once the State receives information that is not questionable. If the State agency determines the information is questionable, the State agency must act promptly to verify the information in accordance with paragraph (l) of this section. Once verified, the State agency must apply the exception and cannot assign countable months.

(l)

Verification of exceptions.

If the State agency determines an individual's exception status under paragraph (c) of this section is questionable, the State agency must first attempt to verify exception status using information available to the State agency, such as information from other public assistance programs through data sharing, before requiring individuals provide documentary evidence or other sources of verification.

Tameka Owens,

Acting Administrator and Assistant Administrator, Food and Nutrition Service.

Note:

This appendix will not appear in the Code of Federal Regulations.

Appendix A—Regulatory Impact Analysis

I. Statement of Need

This rulemaking is necessary to amend Supplemental Nutrition Assistance Program (SNAP) regulations to reflect mandates within the Fiscal Responsibility Act (FRA) of 2023 (Public Law 118-5) establishing changes to SNAP's work requirements and time limit for several groupings of adults. The FRA also directs the U.S. Department of Agriculture (the Department) to add to the program purpose language in the Food and Nutrition Act of 2008 (the Act), as amended. The final rule amends SNAP regulations to incorporate several provisions of the FRA: adjust SNAP's able-bodied adults without dependents (ABAWDs) work requirement and time limit

17

on a phased-in approach to newly included individuals who are aged 50-54; establish new exceptions for individuals who are veterans, homeless, and youth aged 24 or younger who have aged out of a foster care program from the time limit; decrease State agencies' annual allotment of discretionary exemptions for individuals subject to the time limit from 12 percent to 8 percent; and limit State agencies' ability to carryover unused discretionary exemptions beyond one year. The provisions outlined above will be phased in between the enactment of the legislation in June 2023, through October 2025, with several provisions sunsetting October 1, 2030. The final rule also codifies regulations requiring State agencies to screen individuals for exceptions to the time limit, as well as exemptions from the general work requirement, as State agencies must screen for both to adequately determine if an individual should be subject to the time limit. The Department is amending the regulations to clarify screening requirements to improve consistency in program operations across States and provide quality customer service, as well as to require State agencies to apply the longest-lasting exception to a client's case. The provisions of the final rule are compared to a “without-statute baseline,” as well as a “with-statute baseline,” in this regulatory impact analysis (RIA) to fully assess impacts of the rule. Unless otherwise noted, estimates in this RIA use a without-statute baseline for comparison, meaning they reflect the full costs and savings of the provisions required by the FRA and non-statutory amendment clarifying screening for the longest exception.

17

For the purposes of the final rule, the Department will use the term “time limit” to refer to both the ABAWD work requirement and time limit, as this phrasing more accurately describes the requirements applied to time-limited participants.

II. Summary of Impacts

When compared to a without-statute baseline, the Department estimates the net total increase in federal transfers (SNAP benefit spending) associated with the provisions of this final rule to be approximately $3.5 billion over the nine years Fiscal Year (FY) 2023-FY 2031, averaging $393.1 million per year. Over the nine-year period FY 2023-FY 2031,

18

this is the net result of a reduction in transfers of $5.1 billion by terminating benefits to about 1.8 million individuals, a reduction to the benefits of 123,000 individuals of $149.1 million, and an increase in transfers of $8.7 billion due to about 2.6 million individuals meeting exceptions from the time limit. Over the nine-year period, federal administrative costs (not including transfers) are estimated to total $283.9 million, or an annual average of $31.5 million. Total State agency administrative expenses are also estimated to be approximately $283.9 million over the nine-year period, or an annual average of $31.5 million. Costs associated with administrative burden to individual SNAP participants are estimated to be approximately $358.3 million over the nine-year period, or an annual average of $39.8 million.

18

A nine-year analysis period is used to align with the implementation and sunset periods established by the FRA. See discussion of baseline and time horizon of analysis for more detail.

When compared to a with-statute baseline,

19

the Department estimates the net total cost of the final rule to be $58.1 million over the nine-year period FY 2023-FY 2031, averaging $6.5 million per year. The total cost includes approximately $29 million in State agency administrative expenses and approximately $29.1 million in total federal administrative costs. There are no estimated impacts to benefit transfers or to participant burden when using a with-statute baseline.

19

Comparison to a with-statute baseline permits the Department to isolate the cost and savings from the discretionary amendment to SNAP regulations in the final rule, by assuming the effects of the FRA's statutory requirements are fully incorporated into the baseline. The Office of Management and Budget's (OMB) Circular No. A-4 specifies that analysis using multiple baselines may be appropriate to enhance transparency. This RIA uses with-statute and without-statute baselines. Circular No. A-4 can be viewed here:

https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf

The final rule will primarily affect SNAP participants who are subject to the ABAWD time limit, which the Department estimates to be approximately 9.2 percent of SNAP participants upon full implementation of the FRA's provisions in FY 2026. However, many of these participants will meet the time limit or receive an exception, so far fewer will lose eligibility for SNAP.

The estimated net impact of the final rule's change in the age-based exceptions and three new exceptions is a net increase in SNAP participation of about 89,000 to 95,000 individuals per year when fully implemented. In FY 2026, this includes 301,000 participants losing eligibility, 367,000 participants retaining eligibility through one of the new exceptions, and about 29,000 new participants. See Table 8 for year-by-year details on additional participation and transfer impacts. Beyond the direct, quantifiable impacts to individuals that are estimated in this RIA, these provisions are also expected to cause secondary impacts to individuals and society around them; these effects are discussed in more detail in Section VI, Qualitative Assessment.

The final rule is estimated to increase administrative burden for most State SNAP

agencies at initial implementation, throughout the period the provisions are in effect, and at the sunset of the provisions that expire on October 1, 2030. Against a without-statute baseline, the rule is estimated to result in a one-time administrative burden of 469,177 total hours (about $10.3 million during FYs 2023 and 2024 after 50 percent federal cost reimbursement)

20

in start-up costs for State agencies. Ongoing State agency administrative burden is expected to increase by about 1.6 million hours annually, nationwide (a cost to State agencies of about $28.8 million annually after 50 percent federal cost reimbursement). The one-time total State agency administrative burden of sunsetting the applicable provisions within this final rule is estimated to be 575,583 total hours (about $14.3 million in FYs 2030 and 2031 after 50 percent federal cost reimbursement). The final rule imposes additional administrative burden on participants who are subject to the time limit, estimated to be an ongoing average annual burden of 1.6 million hours for all individuals impacted at a cost of $39.5 million annually. Additionally, the final rule imposes a one-time burden of 106,406 hours on affected SNAP participants during the sunsetting of applicable provisions in FY 2031 at a cost of $2.8 million. In addition to the federal share of State agencies' administrative expenses, the rule is estimated to result in a one-time administrative burden of 90 hours at implementation (or $6,902 in FY 2024) and a one-time administrative burden of 63 hours at sunset (or $5,949 in FY 2030) to the Federal Government.

20

Fifty percent of State agencies' allowable SNAP administrative costs are reimbursed by the Federal Government, as defined at 7 CFR 277.4(b).

Compared to a with-statute baseline, there are no estimated implementation or sunsetting costs for State agencies. The ongoing administrative burden to State agencies is approximately 177,142 hours annually on average (about $3.2 million annually after 50 percent federal cost reimbursement). In addition to the federal share of State agencies' administrative expenses, the rule is estimated to result in a one-time administrative burden of 1.25 hours at implementation (or $97 in FY 2024) and a one-time administrative burden of 2.25 hours at sunset (or $187 in FY 2030) to the Federal Government. There is no estimated impact to participant burden when using a with-statute baseline.

See Tables 1a and 1b for a year-by-year presentation of changes to transfers, federal administrative costs, State agency administrative costs, and burden costs to individual participants. Table 1a uses a without-statute baseline for comparison, while Table 1b uses a with-statute baseline.

BILLING CODE 3410-30-P

ER17DE24.004

ER17DE24.005

As required by OMB's Circular A-4, in Table 2 below, the Department has prepared an accounting statement showing the annualized estimates of benefits, costs, and transfers associated with the provisions of this rule. Due to the primary focus on transfer effects in this near-term analysis, the Department has used a discount rate of 2 percent. Increases in SNAP benefit payments are categorized as transfers; increases in administrative burden for State agencies, households, and the Federal Government are categorized as costs.

ER17DE24.006

BILLING CODE 3410-30-C

In the discussion that follows, there is a section-by-section description of the effects of the final rule on SNAP participants, the

Federal Government, and State agencies administering SNAP.

III. Proposed Rule and Comments Received

The proposed version of this final rule, Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023, was published in the

Federal Register

(2024-08338) on April 29, 2024, with an initial comment period of 30 days through May 30, 2024. The comment period was subsequently extended by 15 days and closed on June 14, 2024. There were 41 comments received.

21

21

Posted public comments may be found at regulations.gov (

https://www.regulations.gov/document/FNS-2023-0058-0001/comment

and

https://www.regulations.gov/document/FNS-2023-0058-0003/comment

).

Of the public comments submitted that related to the RIA, three themes in the feedback were identified. Details, as well as USDA's response, are as follows:

A. Baseline Used for Aanalysis

The proposed rule used the Mid-Session Review (MSR) of the FY 2024 President's Budget baseline estimates for SNAP benefits and participation to produce estimates of changes in participation and benefit spending (in nominal dollars) against a without-statute baseline; this was the most recent baseline available at the time the RIA was prepared. The use of the MSR FY 2024 President's Budget baseline was critiqued by a policy organization as being outdated.

As noted, the Department used the most recent SNAP benefits and participation estimates available at the time the proposed rule's RIA was prepared. The RIA for the final rule has been updated to use SNAP benefits and participation estimates for the MSR of the FY 2025 President's Budget baseline, which was the most recent baseline available when the final rule's RIA was prepared.

The commenter also noted that the MSR FY 2024 President's Budget SNAP baseline differs from the Congressional Budget Office's (CBO) baseline used in CBO analyses of the FRA and requested this final rule RIA be performed with a multi-baseline analysis. We acknowledge that CBO's baseline differs from the President's Budget and MSR baselines, which reflect the level of SNAP participation and benefits spending anticipated under current law, using the Budget's economic and technical assumptions. FNS uses historical program data as well as the Administration's economic assumptions for economic indicators, such as unemployment rates, to produce projections of SNAP participation and benefits over a 10-year budget window. FNS is unable to reproduce CBO's independent, economic and technical baseline assumptions. Because the MSR of the FY2025 President's Budget represents USDA's most recent projections for SNAP participation and benefits, and it is adaptable to a with-statue and without-statute comparison,

22

it was selected as the most appropriate participation and benefits baseline for this final rule RIA.

22

Adaptation of the MSR of the FY 2025 President's Budget for without-statute analysis is discussed further in Section IV. F. Methodology.

As noted previously, the Department has also added a secondary comparison to a with-statute baseline to this RIA. Distinctions between the two analyses will be noted when appropriate.

B. Considering Secondary Impacts

A policy organization and a member of the public commented that they believed the proposed rule's RIA did not adequately consider the secondary impacts of the provisions of the rule, such as what the policy organization noted to be the “significant benefits of work and the negative effects of dependency and reduced incentives for employment associated with weakening work requirements,” and what the public commenter called the secondary impacts of losing SNAP eligibility, including “effects of the policy on food security, poverty, and health care costs.”

In regard to the policy organization's comment citing the “significant benefits of work,” USDA does not dispute the general benefits of employment noted by the commenter, including potential benefits for a person's economic, physical, and mental well-being;

23

however, as noted by a 2021 USDA study cited by the commenter, a reduction in SNAP participation cannot be equated to a meaningful increase in employment or earnings among individuals subject to the ABAWD time limit.

24

This study additionally finds that the time limit has a small, statistically significant negative impact on employment outcomes.

23

Gordon Wadell and A. Kim Burton, “Is work good for your health and well-being? An independent review,” U.K. Department for Work and Pensions, January 1, 2006,

https://www.gov.uk/government/publications/is-work-good-for-your-health-and-well-being

.

24

Wheaton, Laura et al. (2021)

The Impact of SNAP Able-Bodied Adults Without Dependents (ABAWD) Time Limit Reinstatement in Nine States.

Prepared by the Urban Institute for the USDA Food and Nutrition Service, 2021. Available at:

https://www.fns.usda.gov/snap/impact-snap-able-bodied-adults-without-dependents-abawd-time-limit-reinstatement-nine

.

An additional source cited by this commenter similarly noted that individuals lose SNAP eligibility due to the time limit without necessarily experiencing improved employment outcomes, finding that “work requirements increase [SNAP] program exits by 23 percentage points (64 percent) among incumbent participants after 18 months,” though the study finds no effects on employment.

25

In other words, while the authors found clear evidence that the time limit leads participants to leave the program, they did not find significant evidence that those participants experience improved employment and earnings outcomes, nor the benefits that employment and earnings could confer. A third study cited by the policy organization finds there to be a “marginal” increase to employment as a result of work requirements, but a “significant” decrease to SNAP participation.

26

Research indicates that the SNAP time limit does result in participants leaving the program but does not indicate meaningful increases in employment among those who lose eligibility due to the time limit. Therefore, we do not expect the final rule's provision subjecting additional participants to the time limit to result in benefits associated with increased employment.

25

Colin Gray, Adam Leive, Elena Prager, Kelsey B. Pukelis & Mary Zaki, “Employed in a SNAP? The Impact of Work Requirements on Program Participation and Labor Supply,” National Bureau of Economic Research, Working Paper 28877, June 2021,

https://www.nber.org/papers/w28877.

26

Timothy F. Harris, “Do SNAP Work Requirements Work?,” W.E. Upjohn Institute for Employment Research, December 13, 2018,

https://research.upjohn.org/up_workingpapers/297/.

The member of the public noted that research indicates SNAP participation impacts food security, poverty, and health care costs. Although the Department is unable to use this research to produce specific cost or saving estimates associated with the final rule, we agree that secondary effects related to food security, poverty, and health care costs are likely to occur among the SNAP participants affected by the final rule. In response to this comment, USDA has expanded on the qualitative analysis of the rule in a new section discussing the research on secondary impacts of SNAP participation, Section VI. Qualitative Assessment.

C. Estimates Relating to Definition of “Homeless Individual”

Two commenters expressed concerns regarding the proposed rule's definition of “homeless individual” and the data used to estimate the number of homeless individuals impacted by the proposed rule in the RIA.

An individual commenter cited concern that the use of “imminently homeless” within the definition of “homeless individual” is too broad to enable an accurate estimate of the number of individuals who will be impacted. They also noted a discrepancy between the definition of “homeless individual” between the RIA and the proposed rule. USDA has confirmed consistency of the definition throughout the final rule and RIA and maintains that the methodology used in the proposed rule RIA is appropriate.

Because State SNAP agencies already screen SNAP participants for homelessness, we believe SNAP Quality Control (QC) data

27

are the most accurate source of information about the scale of homelessness among SNAP participants who are subject to the time limit. Our estimates in the proposed rule RIA were directly based on the share of SNAP participants experiencing homelessness and did not incorporate any expansions in the relative size of this group. The existing definition of “homeless individual” for SNAP purposes defines individuals as homeless if they “lack a fixed and regular nighttime residence,” which encompasses a diverse set of circumstances that can constitute homelessness. The proposed and final rule clarify that individuals who will be “imminently homeless” may already be considered homeless under SNAP's existing definition because they lack a fixed and regular nighttime residence. This clarification is not

expected to substantively change the way State SNAP agencies define a “homeless individual,” and therefore the current share of SNAP participants experiencing homelessness is an appropriate indication of who may benefit from the proposed and final rule's exception for individuals experiencing homelessness. We also provide additional clarification in the methodology section.

27

SNAP QC data are further discussed in Section IV. F. Methodology.

A policy organization noted a concern that USDA's use of SNAP QC data in the proposed rule's RIA to estimate the number of individuals participating in SNAP who are experiencing homelessness is an incorrectly high estimate, citing a lower estimate of individuals in the United States experiencing homelessness as measured by the United States Department of Housing and Urban Development's (HUD) Point-in-Time Count, which estimates that 653,104 individuals were experiencing homelessness in the United States at a specific time in January 2023.

28

HUD's Point-in-Time Count methodology provides processes for counting individuals experiencing homelessness, both in sheltered (an emergency shelter, Safe Haven, or transitional housing project) and unsheltered (defined as “. . . a primary nighttime residence that is a public or private place not designed for or ordinarily used as a sleeping accommodation for human beings, including a car, park, abandoned building, bus or train station, airport, or camping ground”) situations.

29

The volunteers completing the assessment aim to capture this count on one night during the last ten days in January, with each collecting entity (known as a “Continuum of Care,” or CoC) having the discretion to complete the assessment on the night-of, within the 7 days following the night, or a combination thereof. Each CoC also has the discretion to determine whether the count will be completed using a census method or a sampling method and whether to complete a `complete coverage count' or a count within `known locations' where people who are unsheltered could be located at night.

28

The United States Department of Housing and Urban Development, “Fact Sheet: 2023 Annual Homelessness Assessment Report Key Findings from the Point-in-Time Counts”,

https://www.hud.gov/sites/dfiles/PA/documents/HUD_No_23_278_4.pdf

.

29

United Stated Department of Housing and Urban Development, “Point-in-Time Count Methodology Guide,” March 2015,

https://files.hudexchange.info/resources/documents/PIT-Count-Methodology-Guide.pdf

.

There are several reasons the HUD Point-in-Time count underestimates the true count of individuals experiencing homelessness over the course of a year.

30

For example, individuals experiencing homelessness would be uncounted through this method if they stay temporarily in a motel or with friends or relatives on the night the count is conducted in their area. Additionally, they may not be identified as a homeless individual while sleeping in a car, may not be identified as a homeless individual while at a campground, could be uncounted if they move locations throughout the duration of the Point-in-Time count, could be in a location that is under-sampled or thought to be a location where no homeless individuals reside, could be incarcerated at the time of the Point-in-Time count, or could strategically choose to sleep in more hidden locations for safety or to avoid law enforcement. The design of the Point-in-Time count does not account for fluctuations in the number of individuals experiencing homelessness throughout the year, nor the fact that individuals move in and out of homelessness throughout a year. Potential inconsistencies in variables like volunteer number and training, weather during the count, and the parameters chosen for the count by each CoC could also introduce inaccuracies in the Point-in-Time count.

30

National Law Center on Homelessness, “Don't Count On It: How the HUD Point-in-Time Count Underestimates the Homelessness Crisis in America,”

https://homelesslaw.org/wp-content/uploads/2018/10/HUD-PIT-report2017.pdf

.

Other government entities use different methods to count individuals experiencing homelessness. For example, the United States Department of Education regularly produces an estimate of students experiencing homelessness that is also considerably higher than HUD's Point-in-Time Count. The Department of Education estimates 1,205,529 children or youth experiencing homelessness enrolled in public school during the 2021-2022 school year,

31

which is more than double HUD's estimate of 582,462 people of all ages experiencing homelessness during the January 2022 Point-in-Time estimate

32

from the same time period as the 2021-2022 school year. The number of enrolled students experiencing homelessness is reported directly by schools to the Department of Education.

31

U.S. Department of Education, ED Data Express file specification 118, SEA Level (2021-2022);

https://eddataexpress.ed.gov/download/data-library?field_year_target_id=2919&field_population_value=Homeless+Students&field_data_topic_target_id=All&field_reporting_level_target_id=26&field_program_target_id=All&field_file_spec_target_id=1005&field_data_group_id_target_id=All&combine=.

32

The United States Department of Housing and Urban Development,

https://www.hud.gov/sites/dfiles/PA/documents/HUD_No_23_278_4.pdf

.

Given the limitations to this specific HUD data set, the Department believes SNAP QC data provide the best-available estimate of how many SNAP participants experience homelessness, since State SNAP agencies are required to screen for homelessness at SNAP application and recertification. Therefore, we maintain that SNAP QC data provide a more accurate estimate of homelessness among SNAP participants than any other agency's data on homelessness.

IV. Background

A. Work Requirements in SNAP

The Food and Nutrition Act of 2008 (the Act), as amended, establishes national eligibility standards for SNAP, including work requirements for certain individuals. The first of these requirements, referred to as the general work requirement, requires certain individuals between the ages of 16-59 who are able to work to register for work; accept an offer of suitable employment; not voluntarily quit or reduce hours of employment below 30-hours per week, without good cause; and participate in workfare or SNAP Employment and Training (E&T)

33

if required by the State agency. Most SNAP participants are exempt from the general work requirement because they are older adults, children, have a disability, or meet another exemption from the general work requirement listed in the Act.

33

The SNAP Employment and Training (E&T) program helps SNAP participants gain skills and find work that moves them forward to self-sufficiency. Depending on whether a State agency operates a mandatory E&T program, individuals in some States may be required to participate in the State's E&T program as a condition of meeting work requirements. Federal funding for SNAP E&T was $599 million in FY 2024.

A subset of individuals who are subject to the general work requirement are also subject to an additional requirement, referred to as the ABAWD work requirement or the time limit. Prior to the FRA, individuals subject to the time limit were individuals ages 18 to 49 who do not have a child (under age 18) in their SNAP household and are not considered disabled by SNAP rules.

34

The Act limits individuals who are subject to the time limit, also referred to as time-limited participants, to receiving SNAP benefits for 3 months in a 36-month period (the time limit) unless they are meeting the additional work requirement, live in an area where the time limit is waived due to a lack of sufficient jobs or a high unemployment rate, or are otherwise exempt. If an individual subject to the time limit receives SNAP benefits in a month when they did not meet the work requirement or otherwise were waived or excepted from the time limit as noted above, that month is considered a “countable” month and counts as 1 of the 3 months within the 36-month period where the individual may still retain SNAP eligibility. The Act provides exceptions from the time limit based on certain individual circumstances, such as physical or mental limitations that limit ability to work, a certain student status, need to care for a dependent household member, pregnancy, or meeting an exemption from the general work requirement. Individuals can continue receiving SNAP beyond the three-month time limit by working, participating in a qualifying work program (including SNAP E&T), or any combination of the two, for at least 20 hours per week (averaged monthly to 80 hours per month). Individuals can also meet the time limit by participating in and complying with workfare for the number of hours assigned (equal to the result obtained by dividing a household's SNAP allotment by the higher of the applicable Federal or State minimum wage). For the purposes of the time

limit, working includes unpaid or volunteer work that is verified by the State agency.

34

In SNAP, an individual is considered disabled if they receive federal disability or blindness payments under the Social Security Act, including Supplemental Security Income (SSI), receive state disability or blindness payments based on SSI rules, receive disability retirement benefits from a governmental agency because of a permanent disability, receive an annuity under the Railroad Retirement Act and are eligible for Medicare or are considered disabled under SSI; are a veteran who is totally disabled, permanently homebound, or in need of regular aid and attendance; or are the surviving spouse or child of a veteran who is receiving VA benefits and is considered permanently disabled.

B. Characteristics of Individuals Subject to the ABAWD Time Limit

The Department estimates that in FY 2024, approximately 9.1 percent of SNAP participants are ages 18 to 49 and subject to the time limit, and 78 percent of them are in one-person SNAP households.

35

These time-limited participants have very low household gross income, averaging only 41 percent of the federal poverty level (FPL). For comparison, the average SNAP household has a gross income of about 69 percent of the FPL. About 18 percent of time-limited participants are experiencing homelessness at the time of SNAP certification or recertification.

36

Research indicates that time-limited participants who are not meeting the time limit can face significant barriers to finding or increasing their employment and earnings. A 2021 USDA study in 9 States found that 5 to 12 percent of SNAP participants subject to the time limit were meeting the time limit when those States reinstated the time limit after the Great Recession.

37

Participants who were homeless were much less likely to meet the time limit. The study also found the reinstatement of the time limit substantially reduced SNAP participation among individuals subject to the time limit, with no evidence of increased employment or earnings.

35

Note:

The Department estimates that individuals subject to the ABAWD time limit in FY 2024 are a comparable share of the caseload to the most recent SNAP QC data available (from FY 2022), which were gathered during an extended suspension of the ABAWD time limit during the COVID-19 Public Health Emergency by the Families First Coronavirus Response Act (FFCRA). Because States were still unwinding the COVID-19 waivers at the start of FY 2024, the Department estimates these individuals would make up a similar share of the caseload at both points in time.

36

Based on tabulation of FY 2022 SNAP QC data.

37

Wheaton, Laura et al. (2021)

The Impact of SNAP Able-Bodied Adults Without Dependents (ABAWD) Time Limit Reinstatement in Nine States.

Prepared by the Urban Institute for the USDA Food and Nutrition Service, 2021. Available at:

https://www.fns.usda.gov/snap/impact-snap-able-bodied-adults-without-dependents-abawd-time-limit-reinstatement-nine

C. Factors That Permit Time-Limited Individuals To Continue Participating in SNAP Beyond Three Months

As previously discussed, some individuals who are subject to the time limit may meet an exception from the time limit. The Act also allows for waivers of the time limit in geographic areas with an unemployment rate over 10 percent or an insufficient number of jobs to provide employment for individuals, as defined at 7 CFR 273.24(f). Individuals residing in areas with a waiver of the time limit may continue receiving benefits even if they are not meeting the additional time-limit work requirement for more than 3 months in a 36-month period. Lastly, the Act establishes an annual allotment of discretionary exemptions that State agencies may use to extend eligibility for a time-limited participant who is not meeting the time limit. Each discretionary exemption can extend eligibility for one participant for one month and a single participant can receive multiple one-month discretionary exemptions. As defined by law, each State agency's allotment of discretionary exemptions is calculated annually by the Department, based on the total number of time-limited participants in the State who have exceeded three countable months due to the time limit in the preceding fiscal year, known as “covered” individuals. Prior to the FRA, State agencies' annual allotments of discretionary exemptions were based on 12 percent of the total number of covered individuals in the State. If a State agency did not use the exemptions, they could be carried over indefinitely.

D. FRA Legislative Updates

The FRA

38

amended the Act, revising the definition of who is subject to the time limit, exceptions from the time limit, procedures for the calculation and carryover of discretionary exemptions, as well as the program purpose. Based on these changes, the Department is amending the regulations to reflect the requirements of the FRA.

38

Full text of the law can be found at:

https://www.congress.gov/bill/118th-congress/house-bill/3746/text.

The FRA also required the Department to publicize all available State requests for waivers authorized by Sec. 6(o)(4)(A), including supporting data

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