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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
provide this new form of good cause.
State agencies should be continuously monitoring the capacity of their E&T
providers, properly screening individuals to determine if it is appropriate to refer them to E&T
program, and only referring individuals to providers that have appropriate and available openings. If a State agency is unable to provide an appropriate slot for an individual required to participate in E&T, the State agency should use its flexibility to exempt them from participationotherwise, the State agency must provide good cause until a slot is available.
The Department also believes it would be unnecessarily restrictive to limit this new form of good cause to circumstances where a participant attempts to access a slot and is denied entry for lack of an opening. For instance, with the introduction of the requirement that all E&T participants receive case management, the Department would expect case managers to play a role in sharing information with the appropriate staff in the State agency about client participation. If a case manager is made aware that there is not an appropriate and available opening for a particular E&T participant, the case manager, as proposed in 7 CFR 273.7e1, must share this information with the appropriate State agency staff, so that the State agency can determine if it is appropriate to provide good cause. The Department believes it would be unreasonable to require a participant to attempt to access a program, when the participant, through the case manager, already knows an opening does not exist.
The Department also appreciates the comment from the same not-for-profit agency that a mandatory E&T
participant who is found to have good cause for non-compliance with E&T, because of a lack of an appropriate or available opening should be expected to find other work or volunteer experience.
The Department agrees that E&T is not the only avenue available to SNAP
participants to advance their skills and training, and would encourage State agencies to assist SNAP participants with referrals to other agencies or organizations. However, State agencies cannot require SNAP participants to engage in other work or training opportunities in place of E&T. In accordance with section 6d4E of the FNA, State agencies can only require work registrants to participate in a SNAP E&T program as defined in section 6d4Bi of the FNA. The Department does note; however, that the Act requires State agencies to advise all
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work registrants living in households without earned income and without an elderly or disabled member about employment and training opportunities in the community, and the Department has added this requirement at 7 CFR
273.14b5. Moreover, the Department encourages State agencies, as a best practice, to provide this information to additional households, including mandatory E&T participants for whom the State does not have an appropriate or available opening in E&T, to guide these participants toward other opportunities. Lastly, as already noted, ABAWDs who receive good cause for failure to participate in E&T because of a lack of an appropriate or available opening are still subject to the ABAWD
work requirement, and must work or participate in a work program or workfare program to receive benefits beyond the three-month time limit. The Department encourages the State agency, as a best practice, to share the employment and training information discussed above with these ABAWDs or any SNAP participant that is likely to benefit from this information.
Four commenters expressed their concern regarding the Departments proposal that good cause for lack of appropriate or available opening in mandatory E&T would not apply to the ABAWD work requirement. A State agency stated that the Departments justification that there are many ways to fulfill the ABAWD work requirement, other than through SNAP E&T, is not consistent with the recent Families First Coronavirus Response Act FFCRA
Pub. L. 116127, which temporarily suspended the time limit for those ABAWDs not offered a slot in a work program or workfare program. Given this precedent, the State agency felt USDA should stipulate at 7 CFR
273.7i4 that good cause should be granted for failure to fulfill the ABAWD
work requirement during periods when the Secretary determines, or Congress appoints by law, that the options available to meet the work requirement are limited. An act of Congress to suspend the ABAWD time limit, such as with FFCRA, does not need to be incorporated into the regulation because such act specifically suspended the ABAWD time limit statute and regulations. In addition, section 6o4
of the FNA and 7 CFR 273.24f already allow the Secretary to waive the ABAWD time limit upon request from a State agency, if certain conditions are met, therefore such provision does not need to be adopted by this final rule.
More broadly, the Department does not believe it is good policy, or consistent
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with FFCRA, to provide good cause for the ABAWD work requirement when an appropriate E&T slot is unavailable. As noted by the commenting State agency, Congress only temporarily suspended the ABAWD time limit for those not offered slots in work program beyond SNAP E&T. As stated in the proposed rule, there are many ways to fulfill the ABAWD work requirement other than through SNAP E&T. The lack of appropriate or available opening in a SNAP E&T program would not prevent an ABAWD from fulfilling the ABAWD
work requirement in another way.
Another State agency commented that this new form of good cause for a lack of appropriate or available opening, does not have any applicability in a voluntary E&T State and, in a voluntary State, ABAWDs who were unable to find an appropriate and available E&T
opening would still lose eligibility if they exceeded their three-month time limit. The Department agrees that, in voluntary States, ABAWDs who exceed their three countable months because they are unable to find an opening in an E&T program, another work program or workfare, or work enough hours to meet the work requirement would lose eligibility regardless of the good cause provision. This same State agency misinterpreted the Departments explanation in the proposed rule preamble suggesting that State agencies should, as appropriate, exempt individuals from mandatory E&T if there is not an appropriate and available opening. The State agency thought the Department was saying State agencies should use ABAWD discretionary exemptions under section 6o6 of the FNA and 7 CFR 273.24g to exempt individuals from E&T. The Department is clarifying that the reference in the proposed rule preamble to exempting individuals from mandatory E&T
referred to exemptions under 7 CFR
273.7c2.
An anonymous commenter explained that, if an ABAWD received good cause for non-compliance with E&T because there was not an appropriate or available opening, the Department should not assume that the ABAWD
will be able to find other opportunities to meet the ABAWD work requirement.
This commenter noted that ABAWDs face many barriers to employment and E&T services may be necessary to prepare the ABAWD for work. However, as the Department has previously noted, there are many ways to fulfill the ABAWD work requirement, including other work programs that can prepare ABAWDs for work. The lack of an appropriate or available opening in a SNAP E&T program would not prevent
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