Certification Policy Branch
Program Development Division
Food and Nutrition Service (FNS)
U.S. Department of Agriculture
3101 Park Center Drive
Alexandria, VA 22302

RE: Docket No: FNS-2018-0004
Docket RIN: 0584-AE57
Docket Name: Supplemental Nutrition Assistance Program: Requirements and Services of Able-Bodied Adults without Dependents

We recommend you view the comments here.

Dear Certification Policy Branch:

I write on behalf of Empire Justice Center, a statewide, multi-issue, multi-strategy public interest law firm focused on changing the systems in which poor and low income New Yorkers live.

We appreciate the opportunity to comment in response to the proposed regulatory changes impacting Supplemental Nutrition Assistance Program (SNAP) Requirements and Services of Able-Bodied Adults without Dependents, published in the Federal Register on February 1, 2019.

Because SNAP is often the first line of defense against hunger in New York, Empire Justice Center strongly opposes any regulatory changes that will reduce or deny benefits to qualifying adults or limit available food benefits to those who need this critical assistance. Consistent with the stated statutory intention in the creation and operation of SNAP, Empire Justice Center supports food policy that provides meaningful access to low-income individuals and families needing assistance to avert food insecurity and promote well-being.

Existing federal law limits SNAP eligibility among able-bodied adults without dependents (ABAWDs) between the ages of 18 and 49 to three months in a thirty-six month period unless certain specific work requirements are met. Federal law articulates specific exceptions to this work requirement for qualified ABAWDs. Moreover, under current law, states have the flexibility to offer broader exceptions to the 3-month time limit by express waiver from the Food and Nutrition Service (FNS) for individuals living in areas within the state that have experienced elevated unemployment.

The Proposed Changes Regarding ABAWD Waivers are Unnecessary and Ill-Conceived.

The currently proposed regulatory changes would severely limit the availability of waivers to state administrators of the SNAP program. Empire Justice Center strongly opposes any regulatory change that would result in restricting or impeding state access to ABAWD time limit waivers, or compelling states to implement ABAWD time limit provisions more broadly than is consistent with the current metrics. Broader implementation of the ABAWD time limit will further jeopardize the food stability of more than 750,000 low-income households nationally, as described in the Regulatory Impact Analysis accompanying this proposed rulemaking. FNS does not anticipate any actual improvements in health or employment among the SNAP recipients impacted by this proposed policy change, contrary to the express purpose of SNAP referenced above. This is not a program improvement or a change to advance the SNAP program; this is malicious.

Restricting ABAWD waivers and expanding the impact of this onerous and administratively burdensome proposal will only serve to further disenfranchise childless individuals in financial distress. ABAWDs subject to the time limit face significant barriers to employment. These individuals struggle with the need for reliable transportation, stable housing, reengagement after past criminal behavior, unstable employment histories, poor education and literacy, as well as undiagnosed disability. Threats to remove food assistance will in no way reduce or mitigate myriad barriers to employment. ABAWDs do not need to be further disadvantaged by regulatory changes contrary to statutory intent that fail to provide identifiable improvement to employment or nutrition status.

The proposed regulatory changes would make it harder for states to obtain and implement area waivers in a number of ways. First, the restriction would prevent statewide waivers except when a state is able to authorize extended benefits under Unemployment Insurance. This change would unduly limit the economic factors considered in assessing an area’s eligibility for a waiver. Factors, such as: lack of jobs; historical seasonal unemployment rates over 10 percent; disallowing the use of employment to population ratios that demonstrate economic weakness or academic research describing conditions in specific locations, would no longer be permissible to qualify specific areas for waivers. The proposed regulatory changes would also undermine efficient state implementation of area waivers by limiting the duration to 12 months and delaying start dates until after FNS processes the request, creating instability and uncertainty as states await responses from understaffed regulatory agencies. In considering waivers, the proposed regulatory change would force states to rely only on data from the Department of Labor or the Bureau of Labor Standards in demonstrating unemployment rates and labor surplus.

Additionally, the proposed rule would remove states’ ability to use exemptions accumulated prior to the rule’s implementation as well limit the time states’ have to use exemptions they receive in the future. Proposed alteration in the terms of 7 C.F.R. § 273.24(h) would impact how the states have been using the 15% exemptions for decades. The rules governing areas’ eligibility for waivers and individual exemptions have been in place for nearly 20 years. In that time, the waiver rules have proven to be reasonable and manageable for states to operationalize. There is no good or stated reason to make the proposed changes now.

Civil Rights Impact Analysis

While the proposed rule is accompanied by a regulatory impact analysis, the Civil Rights Impact Analysis, required by United States Department of Agriculture Regulation 4300-4, is not present in the published documentation. While FNS concedes that the proposed rule changes “have the potential for disparately impacting certain protected groups due to factors affecting rates of employment of these groups, [it] find[s] that implementation of mitigation strategies and monitoring by the Civil Rights Division of FNS will lessen these impacts.” Without any actual analysis or explanation of the mitigation strategies and monitoring, there is no opportunity to comment on whether the acknowledged disparate impact will, in fact, be mitigated or if such measures are sufficient.

In light of the absent civil rights impact analysis to accompany the proposed rule-making, identifying how these proposed regulatory changes impact members of protected groups is critical to ensuring the completeness of this public record. Disparate or adverse impact, a legal concept evolving first in the realm of employment discrimination case law, describes a situation where “a facially neutral employment practice…has an unjustified adverse impact on members of a protected class.”

The proposed limitations on issuance of ABAWD waivers among the states will disproportionately impact people of color. In a limited review of data from 22 states and the District of Columbia, African American unemployment rates exceed white unemployment rates by a ratio of 2:1 or higher. In the same review of data, Hispanic unemployment exceeded white unemployment in every state considered; the ratio was 2:1or higher in 5 of the 23 locations. Furthermore, the unemployment rates observed among blacks during 2018 and in early 2019 averaged about 75 percent higher than the combined national unemployment rate. To look at this metric differently, when the unemployment rate of whites increases by 1 percentage point, the unemployment rates of African Americans and Hispanics will rise by well more than 1 percentage point, on average. Further, United States Department of Agriculture data reflect that more than 60% of migrant and farm laborers in 2016 were Hispanic (including Mexican). In general, the labor market outcomes of blacks, Hispanics, and those with less education are more cyclically sensitive than the outcomes of whites and those with more education.

The current regulatory proposal to limit methodologies for seeking ABAWD time limit waivers and useable data will disproportionately impact persons of color because aggregate data fails to identify with specificity the harsh realities of unemployment in non-majority populations. Excluding multiple sources of more specific and tailored data will intentionally erase the needs of smaller populations. By its very nature, using aggregate data, which pools both advantaged and disadvantaged populations together, fails to tell the nuanced stories of some of the most vulnerable sub-groups that the SNAP program serves. The proposed regulatory changes will adversely impact communities of color because of disproportionate unemployment and underemployment in these communities. The proposed regulatory changes should not be implemented as drafted. If implementation is unavoidable, it should not be undertaken without serious and meaningful consideration of whether the changes comport with the goals of SNAP, and how to mitigate potential damage.

Thank you again for the opportunity to provide input and comments regarding proposed changes to the authorization of waivers by FNS pertaining to ABAWD time limits. Empire Justice Center vehemently opposes these proposed rule changes that emphasize rigidity to the detriment of vulnerable ABAWDs, particularly persons of color, and will remove the ability of the states to work against hunger in a manner thoughtful and responsive to local conditions and the variations that inevitably occur.

Sincerely,

Saima Akhtar
Senior Staff Attorney
Empire Justice Center
119 Washington Avenue
Albany, NY 12210
(518) 462-6831 x 2851
sakhtar@empirejustice.org
www.empirejustice.org