Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program RIN #0584-AE27

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Rules and Regulations

Federal Register
Vol. 81, No. 241
Thursday, December 15, 2016

This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
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REGISTER issue of each week.

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 271 and 278
[FNS–2016–0018]
RIN 0584–AE27

Enhancing Retailer Standards in the
Supplemental Nutrition Assistance
Program (SNAP)
Food and Nutrition Service
(FNS), U.S. Department of Agriculture
(USDA or the Department).
ACTION: Final rule.
AGENCY:

The Food and Nutrition
Service (FNS or the Agency) is updating
Supplemental Nutrition Assistance
Program (SNAP or the Program)
regulations pertaining to the eligibility
criteria for retail food stores to
participate in the Program by finalizing
a proposed rule that was published on
February 17, 2016. The Agricultural Act
of 2014 (the 2014 Farm Bill) amended
the Food and Nutrition Act of 2008 (the
Act) to increase the requirement that
certain SNAP authorized retail food
stores have available on a continuous
basis at least three varieties of items in
each of four staple food categories, to a
mandatory minimum of seven varieties.
The 2014 Farm Bill also amended the
Act to increase, for certain SNAP
authorized retail food stores, the
minimum number of staple food
categories in which perishable foods are
required from two to three. This final
rule codifies these mandatory
requirements.
In addition, FNS is codifying several
other discretionary changes to the
existing eligibility criteria. The first is to
address depth of stock by establishing a
minimum of three stocking units per
staple food variety. The rule also
amends the definitions of ‘‘staple food,’’
‘‘retail food store,’’ and ‘‘ineligible

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SUMMARY:

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firms’’, and defines the term ‘‘firm’’ as
discussed in the SUPPLEMENTARY
INFORMATION. Finally, this rule allows
FNS to consider the need for food access
when making a SNAP authorization
determination for applicant firms that
fail to meet certain authorization
requirements and reaffirms FNS’s
authority to disclose to the public
certain information about retailers who
have violated SNAP rules.
DATES: Effective date: This rule is
effective on January 17, 2017.
Implementation dates: See the
SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT:
Vicky Robinson, Chief, Retailer
Management and Issuance Branch
(RMIB), Retailer Policy and
Management Division (RPMD), Food
and Nutrition Service (FNS), U.S.
Department of Agriculture (USDA),
3101 Park Center Drive, Alexandria,
Virginia 22302. Ms. Robinson can also
be reached by telephone at (703) 305–
2476 or by email at Vicky.Robinson@
fns.usda.gov during regular business
hours (8:30 a.m. to 5:30 p.m.), Monday
through Friday.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Purpose of the Regulatory Action
In this final rule, FNS is amending
SNAP regulations at 7 CFR parts 271
and 278 to clarify and enhance current
regulations governing the eligibility of
firms to participate in SNAP. This
rulemaking also codifies mandatory
provisions of the 2014 Farm Bill, as well
as other provisions to strengthen current
regulations and conform to statutory
intent. These changes will improve
SNAP households’ access to a variety of
healthy food options and they reflect the
Agency’s ongoing commitments to
provide vital nutrition assistance to the
most vulnerable Americans, protect
taxpayer dollars, and build on
aggressive efforts to ensure Program
integrity. The final rule allows FNS to
ensure that firms authorized to
participate in SNAP as retail food stores
are consistent with and further the
purposes of the Program. This final rule
reinforces the statutory intent of
SNAP—that participants are able to use
their benefits to purchase nutritious
foods intended for home preparation
and consumption. In the interests of
preserving SNAP households’ food

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access, minimizing the burden on
participating retail food stores and
reflective of the many comments
received in response to the proposed
rule, this final rule has been
substantially modified from its
proposed form, including to reduce
burden on retailers participating in the
program and to help retain their
participation in the program.
Summary of the Main Provisions &
Changes From the Proposed Rule
The proposed rule generated a great
deal of interest and concern among a
diverse array of Program stakeholders.
In consideration of these comments FNS
has clarified, modified, or excised
several provisions contained in the
proposed rule. In summary:
• Definition of ‘‘Staple Food’’—
Multiple Ingredient Food Items
The proposed language excluding
multiple ingredient food items from
being counted towards any staple food
category has been removed from the
final rule.
• Definition of ‘‘Staple Food’’—
Accessory Food Items
The proposed language has been
clarified to specify that ‘‘accessory food
items’’ are not defined by consumption
between meals or package size and that
foods with an accessory food main
ingredient (e.g., sugar) are considered
accessory foods. Specific examples have
been added to the amendatory language
at 7 CFR 271.2 and a longer list of
examples is included in the preamble of
the final rule.
• Definition of ‘‘Retail Food Store’’—
85–15% Prepared Foods Threshold
The proposed language defining
‘‘retail food store’’ as a firm with at least
85 percent of its total food sales in items
not cooked or heated on-site before or
after purchase has been removed from
the final rule. However, related to this
proposed provision, language was
added to existing regulations on
‘‘ineligible firms’’ to specify that a firm
is ineligible for SNAP authorization if at
least 50 percent of its total gross sales
come from the sale of hot and/or cold
prepared foods, including foods cooked
or heated on-site, before or after
purchase.

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• Definition of ‘‘Retail Food Store’’—
Co-located Firms
The proposed language regarding colocated businesses was clarified and
narrowed to specify that multiple
businesses that operate under one roof
will only be considered a single firm for
purposes of determining SNAP retailer
eligibility if the businesses have
common ownership, sale of similar
food, and shared inventory.
• Definition of ‘‘Retail Food Store’’—
Depth of Stock
The proposed depth of stock
requirement was halved, from six to
three stocking units per staple food
variety. Additionally, language was
added to specify that a firm may not be
denied or withdrawn based on certain
stocking shortfalls at the time of the
Agency inspection if that firm can
produce documentation proving that, no
more than 21 days prior to the Agency
inspection, the firm had ordered and/or
received the required stock.
• Definition of ‘‘Retail Food Store’’—
Breadth of Stock
Per statute, no changes were made to
this provision, which increased the
number of varieties required per staple
food category from three to seven and
increased the number of staple food
categories required to contain at least
one perishable variety from two to three.
• Definition of ‘‘Firm’’
No changes were made to this
provision which defines the term
‘‘firm’’.

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• Need for Access
Language was added to this provision
to specify that ‘‘need for access’’ factors
would not be limited to those
enumerated in the regulatory language,
that ‘‘need for access’’ would only be
considered for applicant firms that fail
to meet certain authorization
requirements, and that the consideration
of ‘‘need for access’’ would be part of
the existing SNAP authorization process
under 7 CFR 278.1(a).
• Definition of ‘‘Staple Food’’—
Acceptable Varieties in the Four Staple
Food Categories
Language was added to the definition
of ‘‘staple food’’ to include in the meat,
poultry, or fish staple food category
three types of plant-based protein
sources (beans, peas, and nuts/seeds) as
well as plant-based meat analogues (e.g.,
tofu and seitan) and traditional animalbased protein sources (e.g., chicken and
beef). Language was also added to the
definition of ‘‘staple food’’ to include in
the dairy products staple food category

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plant-based dairy alternatives (e.g., rice
milk and soy yogurt). Finally, language
was added to the definition of ‘‘staple
food’’ to specify what constitutes a
variety in all four staple food categories.
These changes are in keeping with
USDA’s MyPlate nutrition guidelines,
allow retailers more flexibility in
stocking sufficient variety in this staple
food category and help to ensure that
SNAP households will have access to an
array of healthy food options that meet
diverse dietary needs and preferences.
• Public Disclosure of Firms Sanctioned
for SNAP Violations
Language was added to this provision
to specify that the public disclosure of
firms subject to term sanctions would
last for the term of the sanction.
Implementation Dates
The following provisions of this final
rule will be implemented on the
effective date of this final rule: The
definition of ‘‘firm’’ provision (i.e.,
define ‘‘firm’’ at 7 CFR 271.2 so as to
clarify that it also includes retailers,
entities, and stores) and the public
disclosure of sanctioned firms provision
(i.e., reaffirm at 7 CFR 278.1(q)(5) the
Agency’s authority and intent to
publicly disclose the store and owner
name for firms sanctioned for SNAP
violations).
The following provisions of this final
rule will be implemented for all retailers
120 days after the effective date of this
final rule: The co-located firms
provision (i.e., establish at 7 CFR 271.2
that establishments that include
separate businesses that operate under
one roof and share the following
commonalities: Ownership, sale of
similar foods, and shared inventory are
considered to be a single firm) and the
prepared foods threshold provision (i.e.,
establish at 7 CFR 271.2 and 7 CFR
278.1(b)(1)(iv) that firms that have more
than 50 percent of their total gross sales
in hot and/or cold prepared foods,
including foods cooked or heated onsite before or after purchase, shall not
qualify).
The stocking provisions of this final
rule will be implemented for all new
applicant firms and all firms eligible for
reinstatement 120 days after the
effective date of this final rule and 365
days after the effective date of this final
rule for all currently authorized firms.
The stocking provisions of this final rule
include: The accessory food items
provision (i.e., amend at 7 CFR 271.2
and 7 CFR 278.1(b)(1)(ii)(C) the
definition of ‘‘staple food’’ so as to
modify the regulatory definition of
‘‘accessory food items’’, to exclude
certain items from being counted in any

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staple food category), the depth of stock
provision (i.e., establish at 7 CFR 271.2
and 7 CFR 278.1(b)(1)(ii)(A) the
requirement that certain firms must
stock at least three stocking units of
each staple food variety), the breadth of
stock provision (i.e., codify at 7 CFR
271.2 and 7 CFR 278.1(b)(1)(ii)(A)
statutory requirements to increase the
number of varieties required of certain
firms in each of the four staple food
category from three to seven and
increase the number of staple food
categories that must contain at least one
perishable staple food variety from two
to three), the acceptable varieties
provision (i.e., clarify and amend at 7
CFR 271.2 and 7 CFR 278.1(b)(1)(ii)(C)
the definition of ‘‘variety’’ as it pertains
to staple food varieties in the four staple
food categories), and the need for access
provision (i.e., allow at 7 CFR
278.1(b)(6) the Agency to consider
‘‘need for access’’ when a retailer does
not meet all of the requirements for
SNAP authorization).
As it is used in this document the
phrase ‘‘existing policy’’ refers to
Agency policy in place as of December
15, 2016. Changes to existing policy
included in the final rule will be
implemented on or after the effective
date of the final rule, January 17, 2017,
as described above in this section.
Retailer Guidance for Implementation of
Final Rule
Many Program stakeholders
specifically requested that FNS provide
retailers with detailed guidance and
training materials on the rule to ensure
that all retailers fully understand all of
the provisions of the final rule. In
addition to the clarifications and lists of
examples provided in the preamble of
the final rule, FNS will answer retailer
inquiries and provide retailers with
additional notice, guidance, and
training materials during the
aforementioned implementation period
per 7 CFR 278.1(t). This will include
extensive outreach to ensure that the
retailer community is provided with
sufficient technical assistance to ensure
that all firms are adequately informed
regarding these changes to SNAP rules.
II. Background
On August 20, 2013, FNS published a
notice entitled, ‘‘Request for
Information: Supplemental Nutrition
Assistance Program (SNAP) Enhancing
Retail Food Store Eligibility’’ in the
Federal Register (78 FR 51136). This
Request for Information (RFI), which
included 14 specific questions, focused
on ways to enhance the definitions of
‘‘retail food store’’ and ‘‘staple foods’’,
and overall eligibility requirements to

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Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations
participate in SNAP, in order to
improve access to healthy foods and
ensure that only firms that effectuate the
purposes of SNAP are authorized to
accept SNAP benefits. FNS received a
total of 211 comments from a diverse
group of commenters, including
retailers, academics, trade associations,
policy advocates, professional
associations, government entities, and
the general public. These RFI comments
were considered in drafting the
proposed rule. A copy of the RFI
comment summary can be viewed at
http://www.fns.usda.gov/snap/rfiretailer-enhancement.
On February 17, 2016, the Agency
published a Notice of Proposed
Rulemaking (NPRM) rule in the Federal
Register (81 FR 8015), in which FNS
proposed to amend SNAP regulations at
7 CFR parts 271 and 278 in order to
strengthen the criteria for the eligibility
of certain SNAP retail food stores
utilizing existing authority in the Act
and to codify statutory provisions in the
2014 Farm Bill. On April 5, 2016, FNS
published a document in the Federal
Register (81 FR 19500) clarifying certain
provisions of the proposed rule and
extending the proposed rule’s comment
period.
The proposed rule included statutory
changes to the breadth of stock (seven
varieties in each of the four staple food
categories and at least one variety of
perishable foods in at least three staple
food categories) required of certain
SNAP retailers which were mandated by
the 2014 Farm Bill. Additionally, the
rule proposed discretionary changes
such as provisions to address depth of
stock, amend the definition of ‘‘staple
food’’, amend the definition of ‘‘retail
food store’’, and reaffirm the Agency’s
authority to disclose to the public
certain information about retailers who
have violated SNAP rules.
The 91-day public comment period
ended on May 18, 2016. FNS received
1,284 public comments, including one
comment not considered as it was
submitted untimely, and reviewed all
1,283 timely public comments when
drafting this final rule. Of these 1,283
comments, 23 were considered
duplicative or non-germane, 738 or
about 58% of all comments were
template or form letters, and 522 or
about 41% of all comments were unique
submissions. Comments were
considered duplicative only if the actual
submission and submitter were
identical to those of a previously
received comment (e.g., a comment that
was both submitted to the Agency
electronically and by mail) and
comments were considered nongermane only if the contents of the

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submission had no relation to the
general subject or specific provisions of
the proposed rule (e.g., comments
referencing other disparate rulemaking
actions).
III. Summary of Comments and
Explanation of Revisions
Summary of Comments
Of the 1,260 germane and nonduplicative comments considered by
FNS, most of the comments received
came from retail food store
representatives, owners, managers, or
employees (901 or about 72% of total
public comments). This total was largely
comprised of retailer template
comments which either repeated
boilerplate language verbatim or with
minor modifications and/or
personalizations. The retailer template
comments (henceforth Template A)
submitted by the employees and owners
of one chain of firms (a national takeand-bake pizzeria chain which claims
over 1,300 locations nationally, about
800 of which are currently authorized to
participate in SNAP) accounted for
more than one quarter of all public
comments received and more than one
third of all retailer comments received
(333 Template A comments, about 26%
of total public comments, or about 37%
of all retailer comments). The retailer
template comments (henceforth
Template B) submitted by the
employees and owners of another chain
of firms (a regional chain of
convenience stores which claims over
600 locations, about 550 of which are
SNAP authorized firms) accounted for
about a seventh of all public comments
received and about a fifth of all retailer
comments received (183 Template B
comments, about 15% of total public
comments, or about 20% of all retailer
comments). The comments submitted by
the owners, operators, or representatives
of convenience stores using the template
(henceforth Template C) provided by an
international convenience store trade
association, which professes to
represent more than 1,500 supplier
company members and 2,100 retailer
company members with over 50,000
convenience store locations nationally,
accounted for about a ninth of all
comments received and about a sixth of
all retailer comments received (143
Template C comments, about 11% of
total public comments, or about 16% of
all retailer comments). Other retailer
comment templates accounted for about
3% of total public comments received
and about 5% of all retailer comments
received (42 other retailer template
comments). In total, retailer template
comments (701 total retailer template

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comments) constitute about 78% of all
retailer comments (901 total retailer
comments) and about 56% of all total
comments (1,260 total germane and
non-duplicative public comments). The
remaining 200 retailer comments were
unique submissions (about 16% of total
public comments, or about 22% of all
retailer comments).
The remaining approximately 28% of
comments received included feedback
from the following entities: 259 private
citizens, 29 industry trade associations,
28 medical practitioners/organizations,
21 advocacy or food access
organizations, and 22 governmental
entities.
Of the 1,260 germane and nonduplicative public comments received,
overall opinions on the rule were
mixed. A majority of public comments
(about 54% of all germane and nonduplicative public comments) neither
wholly opposed, nor wholly supported
the rule as proposed. This number
includes comments that suggested
improvements or modifications to the
proposed provisions. About 40% of
public comments specifically opposed
at least one provision of the proposed
rule while not voicing support for any
specific provision of the proposed rule
or offering any improvements or
modifications to the proposed
provisions. About 5% of public
comments specifically supported at
least one provision of the proposed rule
while not opposing any specific
provision of the proposed rule or
offering any improvements or
modifications to the proposed
provisions. Finally, less than 1% of
public comments were considered out
of scope (e.g., general comments
supporting or opposing the
Supplemental Nutrition Assistance
Program). Comments from medical
practitioners/organizations tended to
generally support the proposed rule,
while comments from private citizens,
advocacy organizations, and
governmental entities were generally
divided between those in favor and
opposed to various provisions of the
proposed rule. Industry trade
associations, largely representing food
retailers, manufacturers, and
distributors, generally opposed some
provisions of the proposed rule.
Analysis of the comments which
addressed each of the ten provisions in
the proposed rule follows.
Definition of ‘‘Staple Food’’—Multiple
Ingredient Food Items
This discretionary provision proposed
to amend language, at 7 CFR 271.2 and
7 CFR 278.1(b), to exclude multiple
ingredient food items from being

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counted towards any staple food
category. This provision was
specifically opposed by more public
comments than any other provision in
the proposed rule. Based on the strength
of the arguments of these comments,
FNS has stricken this provision from the
final rule. Of the total 1,260 germane
and non-duplicative public comments
received, 867 comments addressed this
provision and 685 comments, or about
54% of all public comments,
specifically opposed this provision.
About 69% of total retailer commenters
and a majority of total industry trade
group commenters specifically opposed
this provision. Private citizens, medical
groups, advocacy organizations, and
governmental entities that commented
on this provision were generally divided
and/or expressed mixed opinions.
About one quarter of the total 1,260
germane and non-duplicative public
comments were Template A comments
submitted by the owners and employees
of a take-and-bake pizzeria chain. This
chain relies exclusively on cold pizza, a
multiple ingredient food item, for their
SNAP eligibility under Criterion B (this
criterion requires firms to have 50
percent of total gross retail sales in
staple food sales). Template A
comments expressed opposition to this
provision on the grounds that it would
categorically eliminate them from the
Program and that multiple ingredient
foods such as pizza may be healthy and
affordable options for low income
Americans. Other retailer template
comments, such as Templates B and C
from convenience store owners and
employees, also opposed this provision
on similar grounds.
Many of the retailers opposing the
multiple ingredient food items
provision were from the convenience
store industry. Such commenters
pointed out that the exclusion of these
products from eligibility towards SNAP
Criterion A (under this final rule,
Criterion A would require firms to stock
on a continuous basis seven varieties in
each of the four staple food categories
and at least one variety of perishable
foods in at least three staple food
categories) would substantially increase
the difficulty of retailer compliance
with concurrent proposed
enhancements in the required depth and
breadth of stock, given the limited space
in convenience stores. For example, one
comment, jointly submitted by the
international convenience store trade
association noted above and a
petroleum marketers trade association
which professes to represent about half
of the chain petroleum retailers
nationally, stated that, ‘‘Today, in over
99,000 convenience stores, 75 percent of

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the items in stock are multiple
ingredient items, including mixed fruit
cups, frozen vegetable meat medley
dinners, or canned soups. To comply
with the proposal, these small format
retailers would have to completely
overhaul their food offerings—and
remove items they now sell—to remain
eligible to participate in SNAP. This
will be quite costly and, for many, will
make it too costly to continue
participating in SNAP.’’
Several retailer commenters also
pointed out that, although this change
was intended to clear up confusion, it
would create more confusion among
retailers than under current regulations.
As noted by one commenter, an
international chain of convenience
stores which claims over 50,000
convenience store members in 17
countries including over 7,000 SNAP
authorized firms, ‘‘The ‘main ingredient’
for most items is easily determined from
the principal display panel and/or the
FDA-mandated ingredients list.’’
Currently, per 7 CFR 271.2 and 7 CFR
278.1(b)(ii)(C), multiple ingredient food
items are assigned to the staple food
category of their main ingredient as
determined by FNS. The final rule titled
‘‘Food Stamp Program: Revisions to the
Retail Food Store Definition and
Program Authorization Guidance’’,
published in the Federal Register on
January 12, 2001 (66 FR 2795) was
further clarified by Benefits Redemption
Division Policy Memorandum 01–04,
titled, ‘‘Implementation of Final Retail
Store Eligibility Rule’’ which was issued
on August 14, 2001. In this Agency
policy memorandum it is stated that the
label may be read to determine the main
ingredient in a multiple ingredient food
item. The label referenced herein is the
ingredients list included at the bottom
of the U.S. Department of Health and
Human Services (HHS) Food and Drug
Administration (FDA) mandated
‘‘Nutrition Facts’’ label. On this label,
ingredients are listed in descending
order of weight (i.e., from most to least).
The first listed ingredient, therefore,
makes up the largest share of the
product’s composition.
Long-standing FNS policy, therefore,
holds that a multiple ingredient food
will be assigned to the staple food
category of its first listed ingredient on
this label. Under this existing policy, for
example, a product such as canned
ravioli, with tomato puree as its listed
main ingredient, is considered a variety
(i.e., tomato) in the vegetables or fruits
staple food category. If the main
ingredient of a multiple ingredient food
item is an accessory food item (e.g.,
salt), then that multiple ingredient food
item is considered an accessory food

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item. Per Benefits Redemption Division
Policy Memorandum 01–04, one
exception to this is the accessory food
item water. If the main ingredient of a
multiple ingredient food item is listed
as water, then that item is assigned to
the staple food category of its second
listed ingredient. Under this existing
policy, for example, a product such as
canned tomato soup, with water and
tomato paste as its first and second
listed ingredients respectively, is
considered a variety in the vegetables or
fruits staple food category (i.e., tomato).
If that second ingredient is also an
accessory food item (e.g., sugar) then
that item is considered an accessory
food item.
In general, a majority of industry
groups opposed the proposed multiple
ingredient provision. In addition to the
concerns about higher costs for certain
types of retailers and greater retailer
confusion, industry groups opposed to
this provision were also concerned
about the effect of the provision on
SNAP households, which industry
groups claim rely heavily on multiple
ingredient food items as part of their
nutritional intake. For example, the
international convenience store trade
association and the petroleum
marketers’ trade association jointly
stated that, ‘‘multiple ingredient items
are often the main sources of nutrition
intake for families in the United States’’.
Likewise, other industry groups, such as
those representing the manufacturers
and distributors of canned and frozen
food products, pointed out that multiple
ingredient food items, such as ‘‘frozen
pizza rolls’’ or ‘‘canned soup’’, can be
major sources of important nutritional
intake for SNAP households and all
Americans.
In addition, about two thirds of
advocacy groups opposed this
provision. Opposed advocacy group
commenters were primarily concerned
about the importance of multiple
ingredient food items in lower-income
Americans’ diets, especially for those
unable to prepare meals at home due to
barriers such as time constraints and/or
a lack of adequate kitchen facilities.
Additionally, some advocacy groups
pointed out that some multiple
ingredient food items may have high
nutritional value. One national, antipoverty organization stated that:
USDA has recognized before how essential
convenient, multiple ingredient foods are to
food purchasing and preparation among
SNAP participants. The Thrifty Food Plan is
the government market basket upon which
SNAP benefit amounts are based. In an effort
to be more realistic about the time available
for food preparation in the home, USDA
incorporated more convenience foods in the

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2006 revision of the Thrifty Food Plan . . .
Therefore, it is especially odd that many of
the foods specifically added to Thrifty Food
Plan market baskets in 2006 would be
excluded as staple foods under the proposed
rule. So long as retail food stores are meeting
the increased amounts, variety of staple items
and perishable items called by the statute,
there is no compelling purpose to exclude
multiple ingredient items from counting (as
they do under current regulations) under one
of the SNAP staple food categories.

However, some advocacy groups,
particularly those that are nutritionfocused, supported this provision. A
national non-profit consumer advocacy
group focused on nutrition and food
safety which claims over 750,000
members stated that, ‘‘Disallowing
multiple ingredient products to count as
a staple food (e.g., pizza because the
first ingredient is bread) ensures that the
minimum stocking requirements for
SNAP authorized retailers are for
healthier foods’’.
Governmental entities were divided
on this provision while medical entities
largely supported it. Overall, medical
organizations supported this provision
on the grounds that it would compel
retailers to stock healthier food options
and help steer SNAP households away
from calorie-dense and nutrient-poor
multiple ingredient food items, while
also stressing the need for Agency
clarification and guidance of this
proposed provision prior to
implementation. A representative of one
such organization, a national, nonprofit, medical association which claims
64,000 pediatrician, pediatric medical
subspecialist, and pediatric surgical
specialist members, noted that
‘‘multiple ingredient foods available in
small retail outlets, like pizza and other
mixed dish frozen and boxed entrees
like casseroles and macaroni and
cheese, tend to be higher in sodium,
saturated fats, and sugar’’ and, as a
result, supported this provision adding
that ‘‘nutritional profile should be
considered in determining how to
define a staple food’’ and that ‘‘FNS
[should] provide clear and
comprehensive guidance, at the time the
rule is finalized, that includes a list of
specific foods that would qualify as
staple foods’’.
State and local governmental
commenters were divided on this
provision. One mayor of a city of
600,000 containing over 1,000 SNAP
authorized firms supported the
provision, stating, ‘‘Currently, the staple
food category determination for foods
with multiple ingredients is very
subjective. We support the proposed
changes to the definition of ‘staple food’
in order to bring clarity to a very

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complex regulatory process. This is [a]
strong policy that will increase the
availability of staple foods in all [of the
city’s] neighborhoods’’. Other
governmental commenters such as the
deputy mayor from another city with a
population over 600,000 that contains
nearly 500 SNAP authorized firms
opposed this provision, stating,
‘‘Disqualifying all prepared foods for
SNAP eligibility is risky as these are
shelf-stable staples in small stores and
can serve as primary foodstuffs for
SNAP families.’’
While FNS does agree with the
commenters that argued that this
provision would likely increase healthy
options for SNAP participants, the
Agency believes that other provisions in
this final rule also help increase healthy
options for SNAP participants. The
proposed rule would have increased the
required depth and breadth of staple
food stock while simultaneously
expanding the list of accessory foods
excluded from the definition of ‘‘staple
foods’’ and excluding multiple
ingredient food items from the
definition of ‘‘staple foods’’. According
to some comments received, taken
together, these four provisions would
constitute an unreasonably burdensome
stocking requirement for small format
retailers. The Agency shares these
concerns and, for these reasons, the
proposed multiple ingredient food items
provision has been stricken from this
final rule. Multiple ingredient food
items will, therefore, continue to be
assigned to the staple food category of
their main listed ingredient per current
regulations at 7 CFR 271.2.
Definition of ‘‘Staple Food’’—Accessory
Food Items
This discretionary provision proposed
to amend the definition of ‘‘staple food’’
so as to modify the regulatory definition
of ‘‘accessory food items’’, to exclude
certain items from being counted in any
staple food category, in keeping with
statutory intent. The proposed provision
would have expanded the list of
accessory foods to include: ‘‘Foods that
are generally consumed between meals
and/or are generally considered snacks
or desserts such as, but not limited to,
chips, dips, crackers, cupcakes, cookies,
popcorn, pastries, and candy, or food
items that complement or supplement
meals, such as, but not limited, to
coffee, tea, cocoa, carbonated and
uncarbonated drinks, condiments,
spices, salt and sugar’’.
This proposed provision was
specifically addressed by a low number
of public commenters. Of the total 1,260
germane and non-duplicative public
comments received, 65 comments, or

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approximately 5% of all public
comments, specifically addressed this
provision. Of the 65 comments that
specifically addressed this provision,
about half supported it, about a quarter
opposed it, and about a quarter were
mixed. Less than 1% of total retailer
commenters specifically opposed this
provision. Industry trade groups and
governmental entities that commented
on this provision were generally divided
and/or expressed mixed opinions.
Medical groups, private citizens, and
advocacy organizations that commented
on this provision were generally
supportive. FNS has retained this
provision in the final rule with some
modifications and clarifications.
Trade group comments, such as a
comment jointly submitted by the
international convenience store trade
association and the trade petroleum
marketers’ trade association, contended
that this provision would incur costs
not captured in the Agency’s proposed
Regulatory Impact Analysis (RIA) and
Regulatory Flexibility Analysis (RFA),
as accessory food items with higher
profit margins, such as potato chips,
would need to be replaced with staple
food items with lower profit margins,
such as fruits and vegetables. This
‘‘opportunity cost’’ is a significant
contributing factor toward compliance
cost estimates, such as the estimate
submitted by these trade groups in their
joint comment, which exceed the
Agency’s estimates in the proposed RIA
and RFA. The Agency appreciates these
comments and has incorporated
‘‘opportunity costs’’ into the cost
estimates which appear in the final RIA
and RFA. This subject is examined in
further detail the final rule’s RIA and
RFA.
This provision was largely supported
by advocacy, medical, and local
governmental commenters. One State
university’s nutrition research institute
commented that it ‘‘. . . strongly
supports . . . [the expansion] of the
definition of accessory foods to include
chips, desserts, and other snack foods,
such that these items are not counted as
staple foods.’’ Another international,
nutrition-focused, non-profit
organization professing to represent
over 1,000 nutrition professionals stated
that, ‘‘We support the proposed changes
to the definition of ‘accessory foods’ that
would not qualify as staple foods to
include snack foods and dessert items
such as chips, dips, cookies, cakes and
pastries that are typically consumed
between meals.’’ A city health
department commissioner, representing
a city with a population of about
400,000 containing about 450 SNAP
authorized firms noted that, ‘‘We

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support the proposed changes to the
definition of ‘accessory foods’ that
would not qualify as staple foods to
include snack foods and dessert items
such as chips, dips, cookies, cakes and
pastries that are typically consumed
between meals. Many of these items
have limited nutritional value, and no
longer defining them as staple foods
will support the intent of this rule to
encourage SNAP retailers to stock
healthier items.’’
The large, international chain of
convenience stores stated that it ‘‘. . .
does not object to the exclusion of
accessory food items from the definition
of ‘Staple Food’ ’’ and another national
food retailer trade association which
professes to represent nearly 40,000
retail food stores and 25,000 pharmacies
stated it, ‘‘. . . supports this change
conceptually, but notes that retailers
will need flexibility and considerable
guidance from the agency on the revised
definition’’. Finally, a national trade
association for the travel plaza and truck
stop industry which professes to
represent about 200 corporate members
and over 1,200 locations, acknowledges
the validity of this provision, but like
those that had opposed the provision,
cautioned that this could inadvertently
eliminate stores ‘‘that market healthy
snack food items such as fruit cups,
vegetable-and-dip to go packs, and the
like’’ and argued that this provision
should be ‘‘well tailored [to] prevent
retailers that sell predominantly
accessory foods from qualifying to
redeem SNAP benefits’’.
Some commenters, however, do not
believe that this proposed provision
went far enough in excluding unhealthy
foods from being counted as staple food
items for the purposes of SNAP
authorization. One health commissioner
from a city of over 8.5 million
containing over 10,000 SNAP
authorized firms stated that, ‘‘We
recommend the USDA avoid defining
accessory food items and concentrate
efforts in establishing a comprehensive
list of staple food items that may be
used to determine eligibility to
participate in SNAP.’’
In their opposition to this provision
the comment jointly submitted by the
international convenience store trade
association and the petroleum
marketers’ trade association noted that
‘‘[this] provision will drastically limit
the number of items that can be counted
towards stocking requirements,
effectively knocking out nutrient-dense
products including healthy ‘to go’ packs
such as apple slices and cheese . . .’’.
Other trade group commenters also
pointed out that this provision should
be considered carefully to avoid

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eliminating from consideration healthy
snacks like dried fruit and yogurt cups,
stating that such healthy snack foods are
integral to the diet of the increasing
number of Americans who eat on the go.
As explained in the preamble to the
proposed rule, the statutory language
defining ‘‘accessory food items’’ was
explicitly not intended to limit this
class of food items to the eight items
specifically enumerated in the Section
3(q)(2) of the Act which reads, ‘‘ ‘Staple
foods’ do not include accessory food
items, such as coffee, tea, cocoa,
carbonated and uncarbonated drinks,
candy, condiments, and spices
[emphasis added].’’ This language,
which creates an illustrative and not
exhaustive list, reflects the original
statutory intent in defining ‘‘accessory
food items’’ as demonstrated in the
legislative history of the Food Stamp
Act of 1977. The language in the House
Report to the Food Stamp Act of 1977
indicated that Congress had intended its
list of accessory food items to be an
illustrative, but not exhaustive, list. For
example, the House Report stated that
‘‘donut, bakery, and pastry shops which
specialize in donuts and sweet baked
goods . . . [that] do not do a substantial
business in the sale of staple foods, such
as bread’’ are not authorized to accept
and redeem benefits. This language also
indicates that Congress did not consider
‘‘donuts, pastries, and other sweet baked
goods’’ to be staple food items. See H.
Rep. No. 95–464 at 328 (June 24, 1977).
Similarly, even though snacks and ice
cream were not specifically listed as
accessory food items, the House Report
indicated that Congress did not intend
for snack-type foods and ice cream to be
considered staple foods. See H. Rep. No.
95–464 at 328 (June 24, 1977) (‘‘Stores
whose primary business is the sale of
snack-type foods . . . are not authorized
to accept food coupons because they do
not enable recipients to obtain a lowcost nutritious diet and, therefore, do
not effectuate the purpose of the food
stamp program.’’ and ‘‘Candy stores and
ice cream stores and vendors are not
authorized to redeem food stamp
coupons because they do not provide
recipients with an opportunity to obtain
any basic staples.’’).
In response to commenters who
expressed concern about needing
flexibility and additional guidance on
this provision, FNS has made some
clarification changes to the final rule,
has provided a longer list of examples
below in Section IV, and will issue
additional Agency guidance on this
subject following promulgation of this
final rule including training materials
intended for retail food store owners as
needed per 7 CFR 278.1(t). FNS has

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removed the language ‘‘generally
consumed between meals’’ in order to
address concerns that this language is
vague or overly broad. Likewise, the
listed example of ‘‘dips’’ has been
removed as such terminology could be
construed to include potential staple
foods such as guacamole, hummus, and
salsa as noted earlier by commenters.
Primarily this provision will expand the
definition of ‘‘accessory food items’’ to
include snack and dessert foods, as well
as specified food items that complement
or supplement meals. These foods are
typically deficient in important
nutrients and are high in sodium,
saturated fats, and/or sugar. FNS
believes that this approach to excluding
typically salty and sugary snack and
dessert foods from counting towards
retailer eligibility is a logical extension
of the statute and is consistent with the
USDA 2015–2020 Dietary Guidelines for
Americans, which recommend limiting
calories from added sugars and
saturated fats and to reduce sodium. For
administrative purposes FNS cannot
consider the nutritional contents of
individual products, such as different
brands of potato chips, on a case by case
basis. FNS, therefore, must generalize to
a certain extent. As a result FNS has
identified a list of accessory foods that
generally meet the criteria above. It will
help to ensure that SNAP clients will
have access to a range of healthy food
products intended for home preparation
and consumption when they shop with
their benefits. This final rule, however,
will not change which products are
eligible for purchase with SNAP
benefits.
The list of accessory foods in the final
rule now reads: ‘‘Accessory food items
include foods that are generally
considered snacks or desserts such as,
but not limited to, chips, ice cream,
crackers, cupcakes, cookies, popcorn,
pastries, and candy, and food items that
complement or supplement meals such
as, but not limited to, coffee, tea, cocoa,
carbonated and uncarbonated drinks,
condiments, spices, salt, and sugar.’’
In response to commenters’ concerns
regarding the effect of this proposed
provision on small portion size
products, FNS notes that existing
regulations at 7 CFR 278.1(b)(1)(ii)(C)
specifically state that the ‘‘package size’’
of a product shall not be a determinant
of variety. Both an apple and a singleserving package of apple slices would
count as the same variety of a staple
food item (i.e., apple) in the vegetables
or fruits staple food category. Similarly,
under existing regulations, both a tub of
yogurt and a single-serving yogurt cup
are counted as the same variety of staple
food item (i.e., yogurt) in the dairy

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products staple food category.
Therefore, under existing regulations,
neither a single-serving package of apple
slices nor a single-serving cup of cow
milk-based yogurt would be categorized
as an accessory food due to its package
size. This sentence in 7 CFR
278.1(b)(1)(ii)(C) remained substantively
the same in the proposed rule, and
nothing in the proposed rule would
have classified staple food items sold in
‘‘single-serving’’, ‘‘snack-sized’’ or ‘‘togo’’ packs as accessory food items
simply on the basis of their packaging
size.
However, in response to the confusion
expressed by many commenters
regarding packaging size, clarifying
language explicitly stating that items
shall not be classified as accessory food
items exclusively based on packaging
size has been added in 7 CFR 271.2:
‘‘Items shall not be classified as
accessory food exclusively based on
packaging size . . .’’ Small-portion
packages of staple food items such as
apple slices, grapefruit cups, carrot
sticks, cheese slices, celery sticks,
yogurt cups, bags of nuts, and hummus
will continue to be counted as staple
food items in their respective staple
food categories.
As described above, some
commenters recommended that FNS
avoid defining accessory food items and
establish a comprehensive list of staple
food items and that the Agency further
exclude unhealthy food items from
being classified as staple foods items.
While FNS appreciates the goals of such
suggestions, creating a comprehensive
list of all staple food items is outside of
the intended scope of the Agency’s
rulemaking action. Per research
conducted by the USDA’s Economic
Research Service (ERS), about 20,000
new food products are introduced into
the retail marketplace annually.
Therefore, the Agency does not believe
it is practical to make an exhaustive list
of acceptable staple varieties. However,
to address concerns about excluding
unhealthy foods items from being
classified as staple food items, FNS will
be amending the final rule to change
existing policy, which has limited
‘‘accessory food items’’ to include only
the eight products explicitly
enumerated in regulations at 7 CFR
271.2. Under existing policy a chocolate
hazelnut spread (with the first three
listed ingredients of sugar, oil, and
hazelnuts, in that order) can currently
be considered a staple variety in the
vegetables or fruits staple food category
(i.e., hazelnuts), for example. The
accessory food items provision will
change this policy such that any food
product with an accessory food main

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ingredient (with the previously
mentioned exception of ‘‘water’’) will
also be considered an accessory food
item itself. To revise existing policy, the
final rule provides that, ‘‘A food product
containing an accessory food item as its
main ingredient shall be considered an
accessory food item.’’
Because the existing regulations and
standing policy on accessory foods has
resulted in potato chips being counted
as a variety in the vegetables or fruits
staple food category (i.e., potatoes) and
pork rinds being counted as a variety in
the meat, poultry, or fish staple food
category (i.e., pork), this final rule will
amend the definition of staple food in
7 CFR 271.2 to read as set forth in the
regulatory text of this rule. The final
rule now provides that accessory food
items include foods that are generally
considered snacks or desserts such as,
but not limited to chips, ice cream,
crackers, cupcakes, cookies, popcorn,
pastries, and candy, and other food
items that complement or supplement
meals, such as, but not limited to coffee,
tea, cocoa, carbonated and uncarbonated
drinks, condiments, spices, salt, and
sugar. The final rule further clarifies
that items shall not be classified as
accessory food exclusively based on
packaging size but rather based on the
aforementioned definition and as
determined by FNS, consistent with the
guidance in this preamble and/or with
future guidance. Additionally, the final
rule provides that a food product
containing an accessory food item as its
main ingredient shall be considered an
accessory food item and that accessory
food items shall not be considered
staple foods for purposes of determining
the eligibility of any firm. This
provision will be implemented for all
new applicant firms and all firms
eligible for reinstatement 120 days after
the effective date of this final rule and
365 days after the effective date of this
final rule for all currently authorized
firms.
Definition of ‘‘Retail Food Store’’—85–
15% Prepared Foods Threshold
This discretionary provision proposed
to redefine ‘‘retail food store’’ so as to
consider firms that had more than 15%
of their total food sales coming from the
sale of food items that were cooked or
heated on-site, before or after purchase,
to be restaurants and to exclude such
restaurants from the Program. Existing
regulations at 7 CFR 278.1(b)(1)(iv)
currently consider firms that have more
than 50% of their total gross retail sales
coming from items that are hot and/or
cold prepared foods not intended for
home preparation and consumption to
be restaurants and exclude such

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restaurants from the Program. The
purpose of the proposed provision was
to supplement this existing regulation
and exclude from the Program firms that
have circumvented Congressional intent
and achieved SNAP authorization by
selling food cold and offering to cook or
heat it on the premises after sale. This
proposed provision received a high
number of adverse comments and based
on the strength of the arguments in
these comments, FNS has stricken this
provision as proposed from the final
rule, instead opting to modify existing
regulations at 7 CFR 278.1(b)(1)(iv) to
close this loophole. The final rule now
provides that firms that are considered
to be restaurants, that is, firms that have
more than 50 percent of their total gross
retail sales in (1) foods cooked or heated
on-site by the retailer, before or after
purchase; and (2) hot and/or cold
prepared foods not intended for home
preparation and consumption, including
prepared foods that are consumed on
the premises or sold for carryout, shall
not qualify for participation as retail
food stores under Criterion A or B.
For example, a firm has $100,000 in
total gross retail sales consisting of
$60,000 (60%) in nonfood sales and
$40,000 (40%) in food sales. The
proposed provision would have
considered only the food sales for the
purposes of the threshold. Under the
proposed provision, therefore, this
example firm would be considered a
restaurant if more than $6,000 (15% of
$40,000) of its sales came from the sale
of food items that are were cooked or
heated on-site, before or after purchase.
The final provision, however, considers
total gross retail sales rather than only
total food sales. Under this final
provision, therefore, this example firm
could never be considered a restaurant
because more than 50% of the firm’s
total gross retail sales come from
nonfood sales. Under this final
provision a firm with $100,000 in total
gross retail sales could only be
considered a restaurant and excluded
from the Program if more than $50,000
of its sales came from the sale of foods
cooked or heated on-site, before or after
purchase, and the sale of hot and/or
cold prepared foods not intended for
home preparation and consumption.
It should be noted that existing
policy, the proposed rule, and the final
rule do not impact the restaurants
authorized by SNAP State Agencies to
participate in the Restaurant Meals
Program (RMP). The RMP is a Stateoption program active in only a handful
of States that allows eligible homeless,
disabled, and/or elderly SNAP
recipients to use their SNAP benefits at

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participating restaurants to purchase
prepared meals.
Of the total 1,260 germane and nonduplicative public comments received,
513 comments, or about 41% of all
public comments, specifically addressed
this provision. About 48% of total
retailer commenters specifically
opposed this provision. Medical groups
and governmental entities that
commented on this provision were
generally divided and/or expressed
mixed opinions. Industry trade groups,
advocacy groups, and private citizens
that commented on this provision were
generally opposed.
Commenters identifying as retailers
and trade associations generally pointed
out that a standard convenience store
typically has less than 85% of their total
food sales coming from the sale of food
items that are not cooked or heated onsite before or after purchase. Such
commenters indicated that the average
convenience store’s hot and/or cold
prepared foods sales, including sales of
foods that are cooked or heated on-site
before or after purchase, are closer to
40% of such firms’ total food sales, well
beyond the 15% threshold for such hot
and/or cold prepared foods sales,
including sales of foods that are cooked
or heated on-site before or after
purchase. Commenters opposing this
provision stated that this fact would
cause the entire convenience store
industry to be categorically ineligible for
SNAP authorization.
Many advocacy groups also expressed
opposition to this provision, noting that
this provision could have a deleterious
impact on food access for SNAP
households. One national, anti-hunger
advocacy group noted that, ‘‘We remain
concerned about access for low-income
consumers, particularly in food desert
areas, and for all shoppers with mobility
issues, such as those who are elderly,
have disabilities, and/or lack affordable
transportation. We caution the
Department against setting a threshold
that would cause stores to drop out of
SNAP and lessen food access,
particularly for these particular SNAP
consumers.’’
Some retailers also noted that
determining and documenting what
SNAP household customers did with
cold food after purchase would be
impractical, especially for a firm with
an accessible microwave or other
heating element. As noted in comments
from the international chain of
convenience stores:
. . . the determination of whether an eligible
food product constitutes a food heated onsite, post-purchase is not always easy to
determine. Each . . . store contains a
publicly available microwave available for

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customer use . . . however, does not monitor
its customers’ use of store microwaves and
does not have a practical method of doing so.
Any eligibility requirement which would
impose on . . . stores a need to determine,
with specificity, which items were heated by
customers post-sale would constitute an
unreasonable imposition, would unduly
disrupt its business and would discourage its
customers from using its microwaves. Such
monitoring could also have the unintended
effect of customers deciding to shop
elsewhere. [The company’s] stores, especially
its franchisees, also lack the technological
ability to collect and maintain such data.
Imposition of such a requirement would
require each store to incur substantial
software-related costs and could require the
hiring of additional personnel if monitoring
of customer activity for SNAP-eligibility
purposes is required.

SNAP authorized firms that primarily
sell cold food and then offer to cook that
food on the premises for customers also
specifically opposed this provision. The
owner of a SNAP authorized firm that
sells primarily prepared meat products
commented, ‘‘Unfortunately, I am
concerned that the FNS proposed rule
would jeopardize my future
participation in SNAP. . . Currently,
the business has more than 15% of the
total food sales from items that are
‘cooked or heated on site before or after
purchase.’ ’’ An owner of a SNAP
authorized firm that primarily sells
pizza, stated opposition to this
provision and noted that, ‘‘All of our
customers are required to pay $1 more
than our posted take-n-bake prices on
our menus regardless of method of
payment to bake their take-n-bake pizza
for them. For SNAP cardholders, the
products MUST still be unbaked at the
point we swipe their card. [sic]’’
Supporters of this provision, namely
medical groups and State and local
governmental entities, argue that
removing restaurants from the Program
will benefit SNAP households by
eliminating a cost-ineffective source of
calorie-dense and nutrient-poor food.
One health commission director,
representing a city of 600,000 with
about 200 SNAP authorized firms,
commented, ‘‘We support the effort to
uphold the original intent of SNAP to
purchase food items intended for home
preparation and consumption . . . The
proposed rule adds an additional
requirement that at least 85 percent of
an entity’s total food sales must be for
items that are not cooked or heated
onsite before or after purchase. These
enhancements will help ensure that
SNAP retailers offer and sell a variety of
foods consistent with the language
defining a ‘retail food store’ ’’. This
position was also echoed by two
national advocacy associations, one an

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organization which claims 37 million
members that advocates on behalf of
persons over 50, and one that is a nonprofit, health advocacy organization.
Several industry groups expressed
support for the concept of excluding
restaurants as well, but noted that the
threshold set by the Agency was not set
appropriately in the proposed rule. As
noted by the international convenience
store chain, ‘‘Without question, [our]
stores are not ‘restaurants.’ Our stores
do not have tables or chairs at which
our customers can eat and we do not
employ servers. Our customers
generally leave the store immediately
after completing their purchases. None
of our stores charge the higher sales tax
on restaurant meals found in many
jurisdictions. And heated items do not
constitute more than 50% of the food
items sold in any of our stores.’’ A
national, independent grocery trade
association which claims 1,200
members indicated support for this
provision’s intent while noting that they
‘‘strongly urge the Agency to lower the
proposed threshold.’’ Two State retailer
associations, one which claims to
represent nearly 400 food retailers,
wholesalers, and suppliers and one
which claims to represent over 800
corporate members operating more than
3,200 retail food stores, also shared this
view. Another national trade association
federation of 47 State and regional trade
associations which claims to represent
approximately 8,000 independent
petroleum marketers’ nationwide
quoted the suggestion of one of their
members that the threshold be set at
‘‘25% of sites’ total gross sales instead
of 15% of total food sales.’’
Other commenters noted that existing
regulations at 7 CFR 278.1(b)(1)(iv)
already prohibit the authorization of
restaurants with 50% of their gross sales
in prepared foods intended for home
consumption and saw this proposed
provision as redundant and excessive.
As the international chain of
convenience stores commented, ‘‘FNS’s
current regulation regarding retailer
eligibility provides a clear, common
sense distinction between retail food
stores (which have less than 50% of
total sales in hot or cold prepared,
ready-to-eat foods for immediate
consumption) and restaurants (which
have more than 50% of total sales in hot
or cold prepared, ready-to-eat foods for
immediate consumption).’’
As stated in the proposed rule, the
Agency’s intent in proposing this
provision was to eliminate restaurants
which circumvented Congressional
intent and achieved SNAP authorization
by selling food cold and offering to cook
or heat it on the premises after the sale.

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For example, a firm accepts SNAP
benefits as payment for the purchase of
unpackaged, cold, breaded chicken
strips. After making such a sale, the firm
then offers to fry this chicken for SNAP
customers at the cost of one dollar in
cash. Such a firm is taking advantage of
a loophole in order to sell hot food and
operate as a restaurant within the
Program. The Agency still believes that
firms that primarily sell seafood, pizza,
and other food products cold and then
offer to heat or cook these products on
the premises are operating as
restaurants, not retail food stores. The
intent of this proposed provision was to
correct shortcomings in the existing
regulatory language that have allowed
for the authorization of these types of
‘‘you-buy-we-fry’’-style restaurants and
pizza restaurants.
FNS reviewed and considered
industry data in response to the
concerns from commenters that the 85–
15% threshold would have the
unintended effect of precluding smallformat retail stores with marginal sales
in foods cooked or heated on-site, before
or after purchase. According to the
National Association of Convenience
Stores (NACS) State of the Industry
(SOI) 2015 Annual Report (NACS State
of the Industry Annual Report
Convenience and Fuel Retailing Totals,
Trends and Analysis of 2015 Industry
Data) the average convenience store’s
total gross sales are divided between
68.22% outside (i.e., fuel) sales and
31.78% inside (i.e., foodservice and
merchandise) sales. The inside sales of
the average convenience store include
35.93% cigarette and other tobacco
sales, 7.21% beer sales, 0.87% health
and beauty sales. The remaining 55.99%
of inside sales (or about 17.79% of total
gross sales) are food sales (including
9.22% of inside sales listed under ‘‘All
Other’’). Of these food sales, about
37.33% come from ‘‘Foodservice.’’
‘‘Foodservice,’’ as used in the NACS SOI
2015 Annual Report, includes
‘‘Prepared Food,’’ ‘‘Commissary/
Packaged Sandwiches,’’ ‘‘Hot Dispensed
Beverages,’’ ‘‘Cold Dispensed
Beverages,’’ and ‘‘Frozen Dispensed
Beverages’’ and is defined as follows:
‘‘Foodservice appears in many different
forms in the convenience store channel.
In some cases, it’s a coffee program and
a soda fountain, in some it’s a roller grill
and a condiment bar, and at the other
end of the spectrum it’s a full-blown
made-to-order quick-serve restaurant
(QSR) or a well-known branded
franchise location.’’ Based on this
definition, ‘‘Foodservice’’ sales appear
to include primarily the sale of hot and/
or cold prepared foods, including foods

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cooked or heated on-site before or after
purchase, and/or intended for
immediate consumption (‘‘Foodservice’’
constitutes 20.90% of total inside sales
and about 6.64% of total gross sales).
Based on this data, it appears that
excluding firms with more than 15% of
their food sales in foods cooked or
heated on-site before or after purchase
would render the average convenience
store ineligible to participate in the
Program. Furthermore, given that hot
and/or cold prepared foods, including
foods cooked or heated on-site before or
after purchase, constitutes
approximately 6.63% of total gross
sales, this data indicates that a
convenience store with more than 50%
of its total gross sales issuing from the
sale of hot and/or cold prepared foods
is very far outside of industry norms as
such sales figures would represent a
nearly eightfold greater sales amount in
hot and/or cold prepared foods over the
average convenience store.
In light of the comments and data,
FNS recognizes that this provision, if
implemented as proposed, would likely
have sweeping and unintended
consequences for smaller format firms.
The Agency never intended for this
provision to categorically preclude
convenience stores and other small
retail food stores with marginal sales in
foods cooked or heated on-site, before or
after purchase, from SNAP
participation. The stated purpose of this
provision was to realign SNAP
regulations with statutory intent and
exclude restaurants from SNAP.
Therefore, the Agency is narrowing
the scope of this provision in the final
rule and is instead amending existing
regulations at 7 CFR 278.1(b)(1)(iv) to
specifically exclude from SNAP
participation firms with more than 50
percent of their total gross sales in (1)
foods cooked or heated on-site by the
retailer before or after purchase; and (2)
hot and/or cold prepared foods not
intended for home preparation or
consumption, including prepared foods
that are consumed on the premises or
sold for carryout. Conforming edits were
also made to 7 CFR 271.2 to the
definition of ‘‘retail food store.’’ This
change to existing regulations will close
the existing loophole and align SNAP
regulations with Congressional intent to
exclude hot food and restaurants from
SNAP, while achieving the Agency’s
stated objectives and addressing
concerns that the proposed provision
might adversely affect SNAP-authorized
firms, such as convenience stores, that
do not operate as restaurants.
This provision was never intended to
exclude from the Program firms that
offer both microwaveable products (e.g.,

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frozen burritos and packages of
popcorn) for sale and self-service
microwaves for customer use. FNS
agrees that is it neither feasible, nor
desirable that firms be required to
monitor customers’ usage of self-service
microwaves. Under this final provision
microwaveable food products will not
be considered foods cooked or heated
on-site before or after purchase simply
because they could be heated after
purchase using a self-service microwave
and eaten on-site. The final provision
specifies that this prepared food
threshold will consider those food
products that are cooked or heated ‘‘by
the retailer’’. Such language excludes
self-service microwaves from
consideration under this provision. The
purpose of this provision is to prevent
certain types of take-out restaurants
from continuing to circumvent
Congressional intent to exclude hot food
and restaurants from SNAP. While
many small format retail food stores
may offer some hot and/or cold
prepared foods, including foods that are
cooked or heated on-site by the retailer
before or after purchase, for sale, FNS
does not expect this provision to affect
convenience stores or similar small
format retail food stores as such hot
and/or cold prepared foods typically
constitute less than 7% of total gross
sales for the average convenience store
as indicated by industry data, per the
aforementioned data in the NACS SOI
2015 Annual Report. While this
provision is unlikely to affect the vast
majority of retailers, it closes existing
loopholes that allowed restaurants to
participate in the Program. This
provision will be implemented for all
retailers 120 days after the effective date
of this final rule.
Definition of ‘‘Retail Food Store’’—CoLocated Firms
This discretionary provision proposed
to redefine the term ‘‘retail food store’’
such that multiple co-located businesses
sharing certain commonalities would be
treated as one firm for the purposes of
the Program. As proposed, these
commonalities included the sale of
similar foods, single management
structure, shared space, logistics, bank
accounts, employees, and/or inventory.
In the proposed rule, FNS specifically
sought comments pertaining to any
unintended adverse effects of this
proposed change and based on the
comments that were received this
provision was modified to specify that
co-located businesses will be treated as
one firm by FNS only if they share all
of the three following attributes: (1)
Ownership; (2) sale of similar or same
food products; and (3) shared inventory.

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This proposed provision received a
moderate number of comments. Of the
total 1,260 germane and non-duplicative
public comments received, 228
comments, or approximately 18% of all
public comments, specifically addressed
this provision. About 22% of total
retailer commenters specifically
opposed this provision. Medical groups
that commented on this provision were
generally divided and/or expressed
mixed opinions while private citizens
that commented on this provision were
generally supportive. Industry trade
groups and advocacy groups that
commented on this provision were
generally opposed. Support for or
opposition to this provision was almost
universally concomitant with support
for or opposition to the 85–15%
prepared foods threshold provision.
Commenters opposing this provision
point out that, in conjunction with the
85–15% prepared foods threshold
provision, this provision would
eliminate from the Program any
convenience store co-branded and colocated with a fast food business. The
idea of unifying multiple businesses
operating ‘‘under one roof’’ for purposes
of SNAP authorization was criticized by
trade groups and retailers who stated
that convenience stores and other small
format retail food stores operating in
shopping malls, travel plazas, strip
malls, truck stops, and other shared
structures could face elimination from
the Program due to their proximity to a
totally unaffiliated fast food restaurant.
For example, the national truck stop
retailer trade association commented,
‘‘As a practical matter, this rule would
result in scenarios where [our]
members’ convenience stores would be
ineligible to participate in SNAP simply
because they operate adjacent to a
separate restaurant. This is arbitrary and
contrary to the Program’s objectives.’’
Overall opposed commenters noted that
this provision was overly broad and
could result in the unfair treatment of
numerous discrete businesses.
The Agency proposed this provision
to close a loophole that allows firms to
obtain SNAP authorization in
contravention of clear statutory intent to
exclude restaurants from the Program.
For example, a firm applying for SNAP
authorization purports to operate two
businesses within one building. The
first business sells hot pizza, is
considered a restaurant by FNS, and is,
therefore, ineligible for SNAP
authorization. The second business sells
only cold pizza and is, therefore,
eligible for SNAP authorization under
Criterion B. Both businesses sell the
same product, are managed and owned
by the same individuals, employ the

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same personnel, operate in the same
space, draw from the same inventory,
and handle their finances through the
same accounting mechanisms. The only
difference between the two businesses
in this example is that the former does
not accept SNAP EBT cards as a form
of payment at its designated cash
register, while the latter does. Firms
obtaining SNAP authorization through
such a superficial bifurcation of their
businesses are clearly circumventing
regulatory and statutory intent to
exclude restaurants from the Program in
order to sell their food, in this example,
pizzas. This provision was proposed in
order to close this loophole.
It was never the Agency’s intent to
treat multiple businesses as one firm
because such businesses simply share a
roof and an owner. The Agency’s intent
in the proposed provision was not to
consider multiple businesses operating
within one truck stop or strip mall as a
single firm even if they shared some
commonalities, such as management
and personnel, so long as they were not
also engaged in other common practices
as well, such as selling similar or the
same products drawn from the same
inventory. In the commenter’s example,
therefore, the presence of a fast food
restaurant at a travel plaza would not be
likely to have any bearing on the SNAP
authorization status of a convenience
store located in the same travel plaza.
FNS appreciates the comments from
stakeholders and other members of the
public that highlight the vagueness and
possible unintended effects of the
proposed provision. In response to these
comments, FNS has clarified and
narrowed this provision in the final
rule. As it is written in the final rule at
7 CFR 271.2, co-located businesses will
be treated as one firm by FNS only if
they share all of the three following
attributes: (1) Ownership; (2) sale of
similar or same food products; and (3)
shared inventory. This revision clarifies
the vagueness in the proposed language
and limits the provision’s potential
effects in keeping with its intent. This
provision will be implemented for all
retailers 120 days after the effective date
of this final rule.
Definition of ‘‘Retail Food Store’’—
Depth of Stock
This discretionary provision proposed
to address depth of stock by establishing
a minimum of six stocking units per
staple food variety which certain SNAP
authorized firms must offer for sale and
normally display in a public area on a
continuous basis. This provision
received a high number of adverse
comments as proposed. Based on the
strength of the arguments made in these

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comments, in the final rule this depth
of stock requirement has been halved to
a minimum of three stocking units per
staple food variety. When combined
with the increases in the number of
varieties required per staple food
category per the breadth of stock
provision of the rule, the proposed
depth of stock provision would have
required a minimum stock for certain
SNAP authorized retailers of 168 items,
while under the final rule this depth of
stock provision requires 84 items.
Of the total 1,260 germane and nonduplicative public comments received,
490 comments, or approximately 39% of
all public comments, specifically
addressed this provision. About 91% of
commenters that addressed this
proposed provision opposed it. About
47% of total retailer commenters
specifically opposed this provision.
Medical groups that commented on this
provision were generally supportive
while government entities, private
citizens, and advocacy organizations
that commented on this provision were
generally divided and/or expressed
mixed opinions.
Most retailers and industry groups
opposed this provision on the grounds
that the volume of products required by
the proposed depth and breadth of stock
provisions (i.e., 168 total items) are
untenable, as proposed, for small-scale
firms to store, display, and stock. As a
representative of an American drug
store chain which claims over 8,000
locations, about 7,000 of which are
SNAP authorized firms, notes, ‘‘Since
the 168 items must be continually
stocked, a retailer must, in reality, stock
far more than 168 items to replace any
items that are sold. If a retailer only
stocks the required 168 items, they run
the risk of non-compliance with Depth
of Stock requirements each time an item
is sold. We request FNS further clarify
this concern.’’ Other commenters
echoed this concern, stating that they
feared the loss of SNAP authorization
could occur as the result of selling a
single item immediately prior to an FNS
inspection.
Under existing regulations at 7 CFR
278.1(a), FNS may require an applicant
firm to submit to an inspection, or store
visit, as a part of the SNAP
authorization process. FNS understands
that firms may sell out of certain
products or experience temporary
disruptions to their supply chain and
that such occurrences may result in
stocking shortfalls at the time of an
Agency store visit. If a firm has
insufficient food stocked on hand at the
time of this store visit, this does not
necessarily preclude the firm from
receiving SNAP authorization. Under

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existing regulations at 7 CFR
278.1(b)(1)(ii)(A), if it is not clear that
the firm met the stocking requirements
at the time of a store visit, FNS may
offer applicant firms the opportunity to
demonstrate their compliance with such
requirements through the submission of
supporting documentation, such as
invoices or receipts, indicating that the
firm had recently ordered or received
the required staple foods prior to the
store visit.
In order to address the concerns and
confusion of the commenters, the final
rule retains and clarifies the language at
7 CFR 278.1(b)(1)(ii)(A) that affords
firms the opportunity to submit
supporting documentation in the case of
certain stocking shortfalls at the time of
an Agency store visit. Additionally, the
final rule specifies that such supporting
documentation must be dated within 21
days of the store visit. This timeframe of
21 calendar days, or three weeks,
reflects the need for retailers to stock
perishable staple foods on a continuous
basis. Existing SNAP regulations at 7
CFR 278.1(b)(1)(ii)(B) define ‘‘perishable
foods’’ as items that ‘‘will spoil or suffer
significant deterioration in quality
within 2–3 weeks.’’ This language in 7
CFR 278.1(b)(1)(ii)(A) should not be
construed as allowing retailers to submit
receipts or invoices to FNS instead of
having sufficient stock on hand; the
purpose of this language is to
acknowledge the realities of the retail
marketplace and provide stores that
stock sufficient food on a continuous
basis some degree of flexibility. The
Agency has amended language in this
provision at 7 CFR 278.1(b)(1)(ii)(A) to
provide that, ‘‘Documentation to
determine if a firm stocks a sufficient
amount of required staple foods to offer
them for sale on a continuous basis may
be required in cases where it is not clear
that the requirement has been met. Such
documentation can be achieved through
verifying information, when requested
by FNS, such as invoices and receipts in
order to prove that the firm had
purchased and stocked a sufficient
amount of required staple foods up to 21
calendar days prior to the date of the
store visit.’’
Under this final rule firms that are
SNAP authorized under Criterion A
must offer for sale and display in a
public area (e.g., on store shelves)
qualifying staple food items on a
continuous basis, evidenced by having
no fewer than seven different varieties
of food items in each of the four staple
food categories with a minimum depth
of stock of three stocking units for each
staple variety. This means that, on any
given day of operations, such a firm
should offer a total of 84 units for sale

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(3 stocking units · 7 staple varieties · 4
staple food categories = 84 units).
Generally Agency determinations of
eligibility under Criterion A are guided
by store visit documentation of food
items that are being offered for sale and
displayed in a public area at the time of
store visits. So, for example, if a firm is
subject to a store visit on the 22nd of
January and is found to have only 83 of
the required 84 units on hand, then that
firm may be afforded the opportunity to
provide FNS with supporting
documentation. In this case one
acceptable form of supporting
documentation would be
documentation of order or purchase
(e.g., an invoice) verifying that the firm
placed an order for food stock,
including the missing required unit, that
is dated no earlier than the 1st of
January and no later than the time of the
store visit on the 22nd of January.
Another acceptable form of supporting
documentation would be
documentation of receipt or delivery
(e.g., a receipt) verifying that the firm
received an order of food stock,
including the missing required unit, that
is dated no earlier than the 1st of
January and no later than the time of the
store visit on the 22nd of January. If the
firm in this example was able to provide
an acceptable form of supporting
documentation to verify that the firm
stocks the required staple food items on
a continuous basis (84 items), then the
firm would be authorized to participate
in SNAP. However, if, for example, a
firm had 0 of the required 84 units on
hand at the time of store visit, then that
firm would not be given the opportunity
to submit supporting documentation
and would instead be denied SNAP
authorization. Such a result clearly
demonstrates the firm has not made a
reasonable restocking effort.
Some commenters stated that the
failure to meet the stocking
requirements of this provision at the
time of a store visit would result in
substantial costs to firms due to the
thousands of dollars in fines FNS would
levy against such firms as penalties for
failing to meet stocking requirements.
Under existing regulations, a firm that
fails to meet current stocking
requirements is denied SNAP
authorization or withdrawn from the
Program. Once denied or withdrawn,
such a firm must wait six months to
reapply for SNAP authorization. FNS
does not levy fines against retailers who
are denied or withdrawn from the
Program on the basis of failing to meet
the stocking requirements as no statute
or regulations currently authorizes FNS
to levy fines against retailers for such a

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failure. Neither the proposed rule, nor
the final rule change this fact. This
matter is further examined in the final
rule’s RFA and RIA. A civil penalty (i.e.,
a civil money penalty or civil monetary
penalty) may be applied in lieu of a
period of disqualification when a SNAP
authorized retailer violates SNAP rules
(e.g., sale of cigarettes, tobacco, or
alcohol for SNAP benefits).
Another objection raised to this
provision pertained to food waste. Some
commenters posited that the increase in
the number of staple food categories in
which perishable food items are
required (a statutorily mandated
increase from two to three staple food
categories) coupled with this depth of
stock requirement would result in
spoilage, waste, and exorbitant costs to
retailers. As noted by a representative of
a convenience store distributor
company that professes to service over
1,000 retail food stores in six States,
‘‘For many non-perishable items, if
[convenience stores] do not sell to the
consumer by their expiration date, we
can send those products back to the
manufacturer who will provide certain
types of refunds or will replace product.
This practice only applies to select
nonperishables and DOES NOT [sic]
apply to most products stipulated under
the revised FNS rules for SNAP.
Perishable items are NEVER [sic]
refunded by the manufacturer after the
expiration date, so the cost of spoilage
on those products is borne completely
by the retailer.’’ Under the proposed
rule this depth of stock provision would
require a minimum of 18 perishable
food items, while in the final rule this
depth of stock provision requires a
minimum of nine perishable food items
where ‘‘perishable’’ is defined by
existing regulations at 7 CFR
278.1(b)(1)(ii)(B) to include frozen,
fresh, refrigerated, and unrefrigerated
food products ‘‘that will spoil or suffer
significant deterioration in quality
within 2–3 weeks’’ such as loaves of
bread and potatoes.
Another common objection raised to
this provision pertained to space and
stocking logistics. Some commenters
argued that, in conjunction with the
breadth of stock provision, this depth of
stock provision would require stocking
a quantity of food items that simply
exceed the available shelf space at most
small format retail food stores. Some
commenters also posited that the
quantity of perishable food items
required by this rule would force smallformat firms to purchase additional
refrigerator or freezer units for storage.
The regional chain of convenience
stores which claims over 600 locations,
about 550 of which are SNAP

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authorized firms, also noted that their
‘‘current stocking needs and inventory
management systems [cannot] guarantee
a minimum of six units at all times for
each of the relevant staple foods. At
very least, we would need to revise our
planograms and general merchandising
strategies, and revisit our hardware and
software applications.’’
As discussed in the RIA and RFA,
estimates of the final rule’s impacts on
retailers are based on an analysis of a
nationally representative sample of
1,392 SNAP authorized small-format
firms using data gathered by FNS during
store inspections, or store visits. Based
on this analysis FNS estimates that the
average small-format SNAP authorized
firm already stocks over 70% of the
stock needed to meet the requirements
of this final rule and the average smallformat SNAP authorized firm will only
need to stock an additional 24 items.
Moreover, this analysis indicated that
over 98% of small-format SNAP
authorized firms currently stock at least
nine perishable staple food items and,
therefore, that the overwhelming
majority of small-format SNAP
authorized firms will not need to stock
any additional perishable items to meet
the requirements in this final rule.
Moreover, as discussed in the RFA,
the Agency has analyzed examples of
stocking units of qualifying staple food
varieties to determine the shelf space
that will be occupied by the 84 required
items. The Agency estimates that the 84
items required under the final rule
would occupy approximately 7,500
cubic inches. These 84 items would
occupy about 5.6 square feet of nonrefrigerated shelf space. Assuming
stores choose to display these nonrefrigerated items in a standard manner
(i.e., cans of fruit cocktail are shelved
three items deep on the shelf) the
Agency estimates that these nonrefrigerated items would occupy less
than two full shelves on standard threeshelf wall shelving unit (84″ height x
48″ length x 16″ depth). While FNS
estimates that the refrigerated items
would require about 4.3 linear feet of
refrigerated shelf space (where a
refrigerated shelf has a standard 48″
width), 98 percent of small SNAPauthorized firms already stock sufficient
perishable items to meet the perishables
requirement. Therefore, FNS considers
it unlikely that these stores will need
additional refrigerated space beyond
their current capacity. Furthermore, as
our analysis indicates that most stores
will need to add far fewer than 84 items
to meet the combined stocking
requirements of this rule (24 additional
items for the average store); the

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additional shelf space needed is likely
to be well below these estimates.
Since the average small-format SNAP
authorized firm already stocks most of
the items required under this final rule,
FNS contends that this provision, and
all of the stocking provisions as a whole,
will have a negligible impact on
retailers from a spatial and logistical
perspective. FNS does not anticipate
that requiring firms to utilize a fraction
of a shelf to stock an additional 24 items
will necessitate any major changes to
the planograms or general
merchandising strategies of the average
small-format retailer.
Certain industry groups, such as that
national food retail trade association,
had questions regarding the definition
of ‘‘stocking unit’’ and requested further
clarification. Per commenters’ requests,
a list of examples has been added in
Section IV of this document which
provides a more complete illustrative,
but not exhaustive, examination of what
constitutes a stocking unit, and what
does not constitute a stocking unit for
the purposes of this depth of stock
provision.
State and local government entities as
well as medical and advocacy groups
largely supported this provision,
arguing that it would ensure the
availability of staple food items on the
shelves of SNAP authorized firms. One
State public health official, representing
a State with a population of 38.8 million
that includes over 25,500 SNAP
authorized firms, noted that this
provision would help by ‘‘increasing the
likelihood that these foods will be
available to SNAP participants on an
ongoing basis’’ and a city health
department representing 8.5 million
people and over 10,000 SNAP
authorized firms, noted that, in concert
with other provisions, this provision
would increase ‘‘the overall diversity of
foods stocked on a continuous basis’’.
On the other hand, several retailer
and industry group commenters stated
that the proposed number of required
stocking units was simply too great for
small format retailers and recommended
scaling back the number of stocking
units required. The petroleum
marketers’ trade association federation
recommended that, ‘‘[to] help the small
retailer the depth of stock should be cut
to three items of each of the seven
varieties in each staple group’’. Another
State grocer association, which
professes to represent about 400 retailer
members, recommended that
‘‘[reconsideration] of six different units
of any food item in a store at any given
time should also be made, dropping that
requirement to a lower number.’’

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The proposed rule would have
increased the required depth and
breadth of staple food stock while
simultaneously expanding the list of
accessory foods excluded from the
definition of ‘‘staple foods’’ and
excluding multiple ingredient food
items from the definition of ‘‘staple
foods.’’ According to some comments
received, taken together, these four
provisions would constitute an
unreasonably burdensome stocking
requirement for small format retailers.
The Agency acknowledges commenters’
concerns about the overall impact of the
various provisions in this final rule on
small format retailers. However, the
Agency also agrees with the comments
from some State/local governmental
entities and medical groups that having
a depth of stock requirement would
increase the likelihood of healthy staple
food options being available to SNAP
recipients. Therefore, FNS is addressing
depth of stock by establishing a depth
of stock provision, but amending the
provision at 7 CFR 278.1(b)(1)(ii)(A) by
reducing the required number of
stocking units from the proposed six
units to three units for each staple food
variety in this final rule. Conforming
edits were also made to 7 CFR 271.2 to
the definition of ‘‘retail food store’’. As
a result of this change the costs and
burdens associated with compliance,
perishable spoilage, and shelf space
have all been significantly reduced, as
reflected in the RIA and RFA. This
provision will be implemented for all
new applicant firms and all firms
eligible for reinstatement 120 days after
the effective date of this final rule and
365 days after the effective date of this
final rule for all currently authorized
firms.
Definition of ‘‘Retail Food Store’’—
Breadth of Stock
As explained in the preamble to the
proposed rule, the 2014 Farm Bill
amended the Act to increase the number
of staple food varieties required per
staple food category from three to seven
and to increase the staple food
categories required to contain at least
one perishable variety from two to three.
The proposed rule sought to codify
these mandatory requirements from the
2014 Farm Bill. This proposed breadth
of stock provision received a moderate
number of largely supportive or mixed
comments. Of the total 1,260 germane
and non-duplicative public comments
received, 482 comments, or
approximately 38% of total public
comments, specifically addressed the
increase from three to seven varieties
and 288 comments, or about 23% of
total public comments, specifically

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addressed the increase from two to three
categories containing at least one
perishable variety. About 56% of
comments that specifically addressed
the increase from three to seven
varieties supported this change while
approximately 39% were mixed and
about 5% opposed this change.
Approximately 90% of comments that
specifically addressed the increase from
two to three staple food categories
containing at least one perishable
variety supported this change while
about 8% opposed this change and
approximately 2% were mixed. Overall
less than 1% of total retailer
commenters specifically opposed this
provision. Medical groups, private
citizens, and advocacy groups that
commented on this provision were
generally supportive while government
entities and industry trade groups that
commented on this provision were
generally divided and/or expressed
mixed opinions. This provision was
included in the final rule as proposed.
Some governmental, medical, and
advocate commenters believed that this
provision did not go far enough to
ensure that SNAP authorized firms
stocked sufficient nutritious food
options. Such commenters noted that
the SNAP four staple food categories
have not kept pace with changes to the
USDA’s nutritional recommendations,
now represented by MyPlate. Such
commenters suggested that the
vegetables or fruits staple food category
should be split into two separate staple
food categories—the fruit staple food
category and the vegetable staple food
category. Such commenters went on to
argue that seven varieties should be
required for both of these staple food
categories (for a total requirement of 14
fruit and vegetable staple food varieties).
However, the current four staple food
categories are statutorily-mandated in
Section 3(q)(1) of the Act and the
suggestion of breaking the four staple
food categories into five categories
would exceed the Agency’s statutory
authority.
There were other commenters who
stated that they expected that retailers
would have difficulty reaching seven
different varieties in the meat, poultry,
or fish and the dairy products staple
food categories. As one city mayor,
representing a city of 600,000 residents
containing 1,000 SNAP authorized
firms, pointed out, ‘‘It is difficult to list
off seven common varieties of dairy that
all types of stores will be able to carry.
With the majority of dairy products
being perishable, retailers cited lack of
cooling infrastructure and cold storage,
and difficulty in procuring and selling

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at an affordable cost as barriers to stock
seven varieties of dairy.’’
FNS acknowledges the difficulties in
reaching seven varieties in certain staple
food categories. FNS has amended the
final rule to address this concern, along
with other comments specifically
regarding acceptable varieties in the
four staple food categories, as explained
in the section on ‘‘Definition of ‘Staple
Food’—Acceptable Varieties in the Four
Staple Food Categories.’’ However,
because the Act requires that stores
authorized under Criterion A stock
seven varieties in each of the four staple
food categories and at least one variety
of perishables in three of those staple
food categories; this breadth of stock
requirement remains unchanged in the
final rule. Conforming edits were also
made to 7 CFR 271.2 to the definition
of ‘‘retail food store’’ and 7
CFR 278.1(b)(1)(ii)(A) to reflect the new
breadth of stock requirement. This
provision will be implemented for all
new applicant firms and all firms
eligible for reinstatement 120 days after
the effective date of this final rule and
365 days after the effective date of this
final rule for all currently authorized
firms.
Definition of ‘‘Firm’’
This discretionary provision proposed
to define ‘‘firm’’ so as to clarify that it
also includes retailers, entities, and
stores. Only one comment, a joint
comment submitted by the international
convenience store trade association and
the petroleum marketers’ trade
association, specifically addressed this
provision. No other retailer commenters
specifically opposed this provision.
The one comment that addressed this
provision opposed it, stating that ‘‘[to]
conflate ‘store’ with ‘firm’ may have farreaching ramifications in terms of
licensing, enforcement and other
policies’’ and further added that
‘‘[conflating] all of these terms will only
introduce confusion and lead to
unintended results’’. The purpose of
this provision is to clarify and unify
terms that are currently used
interchangeably throughout current
SNAP regulations. Therefore, the
provision at 7 CFR 271.2 remains
unchanged in the final rule. This
provision will be implemented on the
effective date of this final rule.
Need for Access
In the proposed rule FNS proposed to
amend 7 CFR 278.1(b) to allow the
Agency to consider ‘‘need for access’’
when a retailer does not meet all of the
requirements for SNAP authorization.
FNS does not anticipate that large
grocery stores and supermarkets will

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struggle to meet the stocking
requirements of this final rule and FNS
only expects to consider ‘‘need for
access’’ for small format retailers. The
purpose of this provision, therefore, is
to provide a mechanism to safeguard
food access for SNAP recipients
especially when an isolated or
underserved community relies heavily
on small format retail food stores for its
grocery shopping needs.
FNS understands that small
businesses, such as independent
convenience stores, play a vital role in
the life of all Americans. These small
businesses enrich both urban and rural
communities by providing economic
prosperity, employment opportunities,
and sustainable growth. Very often
small format retail food stores are the
only venue available in isolated or
underserved areas. When drafting this
final rule FNS carefully considered the
comments from the U.S. Small Business
Association Office of Advocacy, as well
as the comments submitted by retailers,
trade associations, and other
commenting entities. Concerns
expressed regarding proposed
provisions were incorporated into this
final rule to minimize potential adverse
impacts on small businesses. In addition
to these changes, this need for access
provision additionally accommodates
small businesses and serves as a hedge
against potential loss of food access.
With respect to this need for access
provision the preamble to the proposed
rule stated that ‘‘FNS will consider
factors such as distance from the nearest
SNAP authorized retailer, transportation
options to other SNAP authorized
retailer locations, the gap between a
store’s stock and SNAP required stock
for authorized eligibility, and whether
the store furthers the purpose of the
Program.’’
In the proposed rule, FNS specifically
requested comments from the public to
help FNS refine the factors used to
determine whether a retailer is located
in an area with significantly limited
access to food. This provision received
few comments. Of the total 1,260
germane and non-duplicative public
comments received, 48 comments, or
about 4% of total public comments,
specifically addressed this provision.
About 71% of comments that
specifically addressed this provision
suggested modifications or alterations to
the proposed factors to be considered
under this provision. This provision has
been retained with modifications based
largely on feedback received in the final
rule. Few retailer commenters
specifically opposed this provision and
all other commenter types were
considered mixed.

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Some retailers opposed this provision
on the grounds that the implementation
of this provision would result in
inequitable treatment of firms. The
regional convenience store chain that
commented noted that, ‘‘FNS should not
be positioning itself to pick winners and
losers in the competitive marketplace.’’
As explained in the proposed rule, the
2014 Farm Bill amended Section 9(a) of
the Act to allow FNS to consider
whether an applicant retailer is located
in an area with significantly limited
access to food when determining the
qualifications of that applicant. The
Manager’s Statement accompanying the
2014 Farm Bill indicated that the intent
of Congress was to encourage the
Secretary ‘‘to give broad consideration
to the impacts of additional
requirements . . . on food access in
food deserts or other areas with limited
food access.’’ H. Conf. Rep. 113–333, at
434 (Jan. 27, 2014). As such, this rule is
simply implementing a statutory
provision that accommodates areas with
significantly limited access to food and
retailers in such areas for whom the new
stocking standards may be a challenge
to meet. FNS specifically requested
feedback from the public regarding the
proposed change during the comment
period. FNS has reviewed all comments
and will be refining the provision in the
final rule as described below. The
Agency also intends to provide Program
stakeholders with additional guidance
on this provision.
Some retailers and industry trade
groups also opposed this provision on
the grounds that the proposed provision
would create additional delays and
administrative burdens for applying
firms. The proposed process would
allow FNS to waive certain retailer
eligibility requirements in instances
where applying firms served
communities with low food access, as
determined by FNS. This provision was
always intended to function internally
to the Agency and in tandem with the
existing SNAP authorization process.
FNS does not expect to need any
additional information from applicant
retailers to assist in the Agency
determination. Instead, FNS will rely on
information that the Agency currently
receives as part of the retailer SNAP
authorization process and publicly
available information about the area in
which the store is located, such as data
in the U.S. Census Bureau’s American
Community Survey (ACS). Therefore,
FNS does not anticipate any additional
burdens, costs, or delays for retailers
that would be created by this provision.
FNS, however, acknowledges the
confusion of commenters regarding how
this provision would work in practice

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and how it would affect the timeline for
applicant firms’ authorization to
participate in the Program. As a result,
the Agency has clarified the language of
this provision in the final rule to specify
in 7 CFR 278.1(b)(6) that, ‘‘Such
considerations will be conducted during
the application process as described in
7 CFR 278.1(a).’’ This means that an
applicant firm will still receive an
authorization determination within 45
days of Agency receipt of a firm’s
completed application for authorization.
During this period need for access will
be considered if applicable.
The international convenience store
trade association also opposed this
provision on grounds of fairness, stating
that ‘‘If, for example, only one store in
a food desert was SNAP authorized,
then it could charge whatever it wanted
to a captive consumer base.’’ Under the
existing SNAP equal treatment
provisions at 7 CFR 278.2(b) and 7 CFR
274.7(f), it is prohibited for firms to treat
SNAP households differently than any
other customers; therefore, retailers are
prohibited from charging SNAP
customers different prices than nonSNAP customers for the same products.
Such predatory retail price gouging
practices targeting SNAP customers
would, therefore, already be prohibited
under existing SNAP regulations.
Some medical and advocacy groups
opposed this provision, or the frequent
application of this provision, on the
grounds that it would allow firms to
avoid compliance and deprive
communities that depend on small food
retail stores as the most convenient and
accessible option for purchasing food of
a sufficient variety of healthy food
options.
However, most retailer, industry,
advocacy, governmental, and medical
entities that referenced this provision
did not support or oppose the provision,
but instead suggested additional factors
for FNS to consider. Factors suggested
for consideration by commenters,
beyond those put forward by the Agency
in the proposed rule, included, but were
not limited to, car ownership rates,
public transportation availability,
density of SNAP households, regional
food availability, regional food prices,
and underserved ethnic communities. In
order to ensure that the Agency is able
to consider some of these suggested
factors, and any other factors needed to
determine food access, the language of
this provision in the final rule at 7 CFR
278.1(b)(6) provides that the factors
listed are not exhaustive.
Additionally, the final rule limits the
applicability of this provision to
applicant firms that fail to meet both
Criterion A (i.e., requiring firms to stock

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qualifying staple food items on a
continuous basis, evidenced by having
no fewer than seven different varieties
of food items in each of the four staple
food categories with a minimum depth
of stock of three stocking units for each
qualifying staple variety) and Criterion
B (i.e., requiring firms to have 50
percent of total gross retail sales in
staple food sales), but meet all other
SNAP authorization requirements. This
change is in keeping with Congressional
intent as expressed in the Manager’s
Statement accompanying the 2014 Farm
Bill which indicated that this need for
access provision is intended to
accommodate retailers in low food
access areas for whom the new stocking
standards may be a challenge to meet.
The need for access provision in the
final rule also clarifies the factors that
will be considered by the Agency will
pertain to either: (1) Area food access;
or (2) firm specific information. Finally,
the proposed rule put forward the
Agency’s intent to implement this need
for access provision 60 days after
publication of this final rule. As stated
earlier, this provision is intended to
accommodate small retailers in low food
access areas for whom the new stocking
standards may be a challenge to meet,
therefore this provision will be
implemented in tandem with the new
stocking standards. This need for access
provision, therefore, will be
implemented for all new applicant firms
and all firms eligible for reinstatement
120 days after the effective date of this
final rule and 365 days after the
effective date of this final rule for all
currently authorized firms.
This language of this provision in the
final rule reads as set forth in
§ 278.1(b)(6) in the regulatory text of
this rule. The final rule provides that
FNS will consider whether the
applicant firm is located in an area with
significantly limited access to food
when the applicant firm fails to meet
Criterion A per 7 CFR 278.1(b)(1)(ii) or
Criterion B per 7 CFR 278.1(b)(1)(iii) so
long as the applicant firm meets all
other SNAP authorization requirements.
The final rule further provides that, in
determining whether an applicant is
located in such an area, FNS will
consider access factors such as, but not
limited to, the distance from the
applicant firm to the nearest currently
SNAP authorized firm and the
availability of transportation in the
vicinity of the applicant firm; and that
in determining whether an applicant
should be authorized in the Program
despite failure to meet Criterion A and
Criterion B, FNS will also consider firm
factors such as, but not limited to, the
extent of the applicant firm’s

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deficiencies in meeting Criterion A and
Criterion B and whether the store
furthers the purposes of the Program.
Furthermore, the final rule provides that
such considerations will be conducted
during the application process as
described in 7 CFR 278.1(a). This
provision will be implemented for all
new applicant firms and all firms
eligible for reinstatement 120 days after
the effective date of this final rule and
365 days after the effective date of this
final rule for all currently authorized
firms.

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Definition of ‘‘Staple Food’’—
Acceptable Varieties in the Four Staple
Food Categories
This discretionary provision proposed
to clarify and amend the definition of
‘‘variety’’ as it pertains to staple food
varieties in the four staple food
categories. This provision received an
overall mixed response. Of the total
1,260 germane and non-duplicative
public comments received, 168
comments, or approximately 13% of all
public comments, specifically addressed
this provision. About 16% of total
retailer commenters specifically
opposed this provision. Industry groups
largely opposed this provision and other
commenter types, such as advocacy,
medical, and governmental entities,
were generally divided and/or
expressed mixed opinions.
Some commenters opposed to this
provision stated that this provision did
not represent a clarification of existing
policy, but rather a radical change in the
definition of ‘‘variety,’’ especially with
respect to the definition of ‘‘variety’’ for
the meat, poultry, or fish staple food
category. A joint comment submitted by
the international convenience store
trade association and the petroleum
marketers’ trade association, for
example, stated that ‘‘FNS has also
proposed to ‘clarify’ the term ‘variety.’
But, the proposed rule advances not a
clarification but a redefinition’’. The
national trade association for the travel
plaza and truck stop industry echoed
this criticism, asserting that FNS policy
currently treats multiple formats of
turkey and pork as discrete varieties and
that the proposed rule would change
this supposed standing definition of
‘‘variety’’:
For example, under the Proposed
regulatory text, ham and salami would both
qualify as one ‘variety’ of item—‘pork’—for
purposes of satisfying the seven-variety
staple food threshold. Similarly, turkey
burgers, sliced turkey, and ground turkey
would all qualify as one variety—‘turkey’
rather than different [sic] three different
‘varieties’ in the meat, poultry, and fish
category. The Proposal’s preamble does not

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attempt to justify this significant shift in
policy beyond saying that it is designed to
‘clear up confusion that may exist in current
regulations.’ [This organization] is not aware
of any such confusion. Indeed, retailer
confusion in this area can be sourced entirely
to the language in the proposed regulatory
text that would treat all food items from the
same food source (e.g., chicken) as a single
‘variety.’ There is little policy justification for
treating all items from the same food source
as a single ‘variety’ of item. [emphasis added]

Additionally, some commenters
criticized the standing definition of
‘‘variety’’ specifically in the context of
the vegetables or fruits staple food
category. As the international
convenience store trade association and
the petroleum marketers’ trade
association stated, ‘‘For the vegetable or
fruit category, there is no reason why
Fuji apples and a jar of applesauce
should not be considered different
varieties; they are different products
from the same food family (apples).’’
Under existing SNAP regulations at 7
CFR 278.1(b)(1)(ii)(C) multiple formats
of the same base product are not
construed as constituting multiple
varieties for the purpose of Criterion A
eligibility. Canned chicken, frozen
chicken, and fresh chicken, for example,
are currently considered one variety
(chicken) under existing SNAP
regulations and policies. That this
provision counts multiple formats of
one variety (e.g., chicken) as a single
variety represents a restatement of
existing Agency regulation and policy.
In fact, the adoption of the suggestions
of the international convenience store
trade association and the petroleum
marketers’ trade association that ‘‘raw
chicken breast, refrigerated grilled
chicken, or frozen chicken and
vegetable stir fry should be considered
different varieties’’ and that the Agency
should ‘‘consider cream cheese and
Laughing Cow creamy Swiss cheese to
be two different [varieties]’’ would
represent a reversal of the existing
definition of ‘‘variety,’’ which in
accordance with existing regulations at
7 CFR 278.1(b)(1)(ii)(C), ‘‘. . . is not to
be interpreted as different brands,
different nutrient values, different
varieties of packaging, or different
package sizes.’’ This existing policy was
further examined in the 2001 Benefits
Redemption Division (BRD) Policy
Memorandum 01–04 which reads, in
part, ‘‘Examples of unacceptable
varieties includes tomato juice, fresh
tomatoes and canned stewed tomatoes
in the vegetables or fruits category.’’ As
is clear from this memorandum, longstanding Agency policy has not
considered multiple formats of a
product (e.g., raw chicken, canned

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chicken, and frozen chicken) to
constitute discrete staple food varieties.
Variety has been traditionally defined
by the Agency based on the essential
composition of the food product (i.e.,
main ingredient), especially in the meat,
poultry, or fish and vegetables or fruits
staple food categories. Products that
share the same primary component (e.g.,
sliced turkey and ground turkey—
turkey) and very similar kinds of
products (e.g., McIntosh apples and
Empire apples—apples; mozzarella
cheese and cheddar cheese—cheeses)
have not generally been considered to
represent discrete varieties in their
respective staple food categories. Main
ingredient and product kind have,
therefore, been recognized in Agency
policy as the primary determinants of
variety. The confusion evidenced by
retailers’ and trade associations’
comments regarding the Agency’s
current definition of ‘‘variety’’ may be a
reflection of the fact that retail food
stores may generally meet the current
Criterion A stocking requirements (i.e.,
three varieties in each of the four staple
food categories) without deliberately
considering the products needed for
compliance. The increase in the number
of required varieties from three to seven,
which was mandated by the 2014 Farm
Bill, has caused retailers to carefully
consider what stock would affect
compliance and may have resulted in
the aforementioned comments and
confusions.
Some advocacy and local or State
government commenters suggested
including plant-based proteins in the
meat, poultry, or fish staple food
category and plant-based dairy
alternatives in the dairy products staple
food category. One county health
department, representing a county with
a population over 750,000 and
containing over 700 SNAP authorized
firms argued that, ‘‘Additional staple
food items that should be considered
include eggs and plant-based protein
sources such as canned or frozen
legumes, unsalted nuts and seeds, and
soy products (i.e., tofu). These products
could be included in the staple foods
category for meat, poultry and fish, reframed as a protein category.’’ As
discussed earlier in the context of the
breadth of stock provision, there were
also commenters who stated that they
expected that retailers would have
difficulty in reaching seven different
varieties in the meat, poultry, or fish
and the dairy staple food categories.
In common language usage a ‘‘dairy
product’’ is understood to mean an
edible food product produced from the
milk of a mammal, most commonly
cow’s milk. Some traditional varieties of

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dairy include milk, butter, yogurt, and
cheese. There are a small number of
unique varieties of commonplace dairy
products, most of which share the same
main ingredient (i.e., milk). Under
existing Agency policy, plant-based
dairy alternatives are also considered
acceptable varieties in the dairy
products staple food category. In fact, as
proposed, the rule had specified that
‘‘plant-based milk’’ was included as a
variety in the dairy products staple food
category, which would provide
additional choices for retailers in
meeting the new breadth of stock
requirements.
FNS acknowledges the difficulty in
reaching seven varieties in this staple
food category. Given this reality, as well
as the needs of lactose-intolerant
consumers, the final rule will consider
plant-based dairy products to be
varieties in the dairy products staple
food category based on their main
ingredient (e.g., cow’s milk, goat’s milk,
almond, and soy) and the traditional
dairy product for which they are a
substitute (i.e., product kind). For
example, almond-based milk, soy-based
milk, almond-based cheese, and soybased cheese will each be considered a
discrete variety in the dairy products
staple food category under the final rule.
Additionally, the final rule modifies
existing Agency policy to subdivide
certain traditional, animal-based dairy
varieties into more than one variety. For
example, under existing Agency policy
cheese is considered one variety while
under the final rule cow’s milk-based
soft cheese and cow’s milk-based firm/
hard cheese each will be considered
discrete varieties.
Additionally, FNS acknowledges the
importance of plant-based sources of
protein and the potential difficulties in
reaching seven varieties in the meat,
poultry, or fish staple food category. The
final rule, therefore, will modify
existing Agency policy to include three
varieties of plant-based protein sources
(i.e., nuts/seeds, beans, and peas) in the
meat, poultry, or fish staple food
category. Under current Agency policy
such products (i.e., nuts/seeds, beans,
and peas) are counted as varieties in the
vegetable or fruits staple food category.
Under this final rule beans and peas
may only be counted once each as a
variety in the meat, poultry, or fish
staple food category or once each as a
variety in the vegetables or fruits staple
food category while nuts/seeds may
only be counted once as a variety in the
meat, poultry, or fish staple food
category. This change is in keeping with
the nutritional guidance of USDA’s
MyPlate, which clarifies that, while
beans and peas belong to both the

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protein foods group and the vegetable
group, nuts/seeds are only considered to
belong to the protein foods group. This
means that if a store stocked one jar of
peanut butter, one bag of almonds, and
one bag of sunflower seeds, this would
be considered three stocking units of
one variety (i.e., nuts/seeds) which
could be counted towards breadth of
stock in the meat, poultry, or fish staple
food category. In this example,
additional units of these or other nut/
seed products (e.g., three bags of
walnuts) would not further be counted
as additional varieties in the meat,
poultry, or fish staple food category.
This also means that if a firm stocked
three bags of dried kidney beans (i.e.,
beans) and three bags of dried black
eyed peas (i.e., peas), then these
products would be counted as two
varieties towards the breadth of stock in
the meat, poultry, or fish staple food
category or in the vegetables or fruits
staple food category. Beans and peas can
each only be counted once as variety in
either the meat, poultry, or fish staple
food category or in the vegetables or
fruits staple food category. This means
that if a firm stocked three bags of dried
kidney beans, three bags of dried black
beans, and three bags of dried pinto
beans, then these products could only
be counted as one variety (i.e., beans) in
either the meat, poultry, or fish staple
food category or in the vegetables or
fruits staple food category. Likewise,
three bags of dried black-eyed peas,
three bags of dried split peas, and three
bags of dried lentils could only be
counted as one variety (i.e., peas) in
either the meat, poultry, or fish staple
food category or in the vegetables or
fruits staple food category. These
varieties may not individually be split
between staple food categories. This is
a departure from the way in which
‘‘variety’’ is traditionally defined (i.e.,
by main ingredient and/or product
kind). The reason for this unique
exception is that these plant-based
proteins are being added to the meat,
poultry, or fish staple food category in
order to supplement, not supplant, the
animal-based proteins for which the
category is named. Under this provision
firms will not be able meet the breadth
of stock requirement for the meat,
poultry, or fish staple food category by
stocking seven kinds of nuts/seeds,
peas, and/or beans, each of these may
only be counted once.
Plant-based meat substitutes or
analogues, marketed as vegetarian or
vegan alternatives to meat, will also be
counted as varieties in the meat,
poultry, or fish staple food. Varieties of
such meat analogues may include, but

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are not limited to, mycoprotein-based
meat analogues, soy-based meat
analogues (e.g., tofu or tempeh) and
gluten-based meat analogues (e.g.,
seitan). For such meat analogues variety
is assigned in the traditional way (i.e.,
by main ingredient and by product
kind). This means that if a firm stocked
three packages of tofu this would be
considered one staple variety counting
toward the breadth of stock in the meal,
poultry, or fish staple food category. In
this example, additional units of this or
other soy-based meat analogues (e.g.,
three bags of textured soy protein or
three boxes of soy-based vegan hot dogs)
would not further be counted as
additional varieties in the meat, poultry,
or fish staple food category. None of
these or any other meat analogues may
be counted as a variety in any other
staple food category.
Even with the addition of these plantbased varieties into the meat, poultry, or
fish staple food category it will be
necessary for most firms to stock
animal-based varieties to meet the
breadth of stock requirement for the
meat, poultry, or fish staple food
category. For example, if a firm stocked
five of the aforementioned plant-based
varieties (e.g., three jars of peanut butter
[nuts/seeds], three bags of dried black
beans [beans], three bags of dried lentils
[peas], three packages of tofu [soy-based
meat analogue], and three packages of
seitan [gluten-based meat analogue]),
that firm would still be required to stock
at least two more varieties in the meat,
poultry, or fish staple food category
(e.g., three dozen eggs, three packages of
frozen chicken cutlets, and three
packages of ham).
These changes better align SNAP
regulations with the nutritional
guidance of USDA’s MyPlate, help to
ease the burden of compliance on retail
food stores, and serve to increase the
availability of healthy food options for
low-income Americans.
Some governmental, medical, and
advocate commenters believed that
additional restrictions should be placed
on these required varieties to ensure
that a certain number of healthy options
were available. For example, two city
health departments, one noted earlier as
representing a city of 8.5 million, and
another representing a city of over 1.5
million containing over 2,300 SNAP
authorized firms, argued that, within
each staple food category, certain kinds
of healthy varieties should be mandated
by FNS. Examples of such healthy
varieties included low-fat dairy, lean
meat, fresh vegetables, and whole grain
breads. While FNS does agree with the
commenters that argued that such
changes would likely increase healthful

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options for SNAP participants, the
Agency believes that incorporating such
additional enhancements to this
provision could be overly burdensome
on retailers.
Other commenters suggested that
variety shortfalls in one or more staple
food categories should be allowed to be
covered with additional varieties of
fruits or vegetables (e.g., a store may
stock only five varieties of dairy but
nine varieties of fruits and vegetables).
While the Agency supports changes that
would encourage firms to stock more
nutritious products, including fresh
fruit and vegetable products, such a
change would run counter to statutory
requirements of the 2014 Farm Bill that
a retailer offer for sale ‘‘a variety of at
least 7 foods in each of the 4 categories
of staple foods’’ and exceeds the
Agency’s statutory authority.
Some commenters who supported the
proposed provision pointed out that a
lax definition of ‘‘variety’’ would allow
stores to skirt variety requirements by
stocking seven different formats of one
or two kinds of products with the same
main ingredient. If a lax definition of
‘‘variety’’ were implemented, for
example, the variety requirement for the
vegetables or fruits staple food category
could be satisfied by frozen French fries,
powdered mashed potatoes, frozen hash
browns, potato chips, canned cream of
potato soup, frozen tater tots, and
potatoes. FNS concurs with these
concerns and will not be altering the
proposed definition of ‘‘variety’’ to
allow for different formats of products
with the same main ingredient to count
as different varieties.
Under both current Agency
regulations and the final rule, ‘‘variety’’
is generally defined by product kind or
main ingredient for the meat, poultry, or
fish and vegetables or fruits staple food
categories. This means that chicken,
pork, and beef each represent discrete
varieties for the former category and that
apple, banana, and lettuce each
represent discrete varieties for the latter
category. Products like Empire apples
and McIntosh apples may have different
names and slightly different
appearances, but they are generally
recognized as the same kind of product.
For this reason both Empire apples and
McIntosh would be not each be
considered a discrete variety, but rather
the discrete variety is the product kind
itself—apples. Likewise although
apples, 100% apple juice, and
applesauce are different products, they
would not each be considered a discrete
variety for the purposes of SNAP
Criterion A because they share the same
main ingredient (i.e., apples). Similarly,
although deli-sliced chicken breast,

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frozen chicken drumsticks, and canned
chicken are different products, they
would not each be considered a discrete
variety for the purposes of SNAP
Criterion A because they share the same
main ingredient (i.e., chicken). For
multiple ingredient food products the
first ingredient determines variety such
that a frozen microwaveable meal with
beef listed as the first ingredient would
constitute a variety in the meat, poultry,
or fish staple food category (i.e., beef)
and a can of ravioli with tomato sauce
listed as the first ingredient would
constitute a variety in the vegetables or
fruits staple food category (i.e., tomato).
Most bread or cereals food items sold
and consumed in America primarily
derive from one or more of the following
four grains: Wheat, corn, rice, and/or
oats. Based on the limited types of
grains and the new breadth of stock
requirements, FNS believes it is
impractical to strictly define ‘‘variety’’
for the purposes of this staple food
category by the aforementioned method
(i.e., product kind and main ingredient),
as is the standard for two of the other
staple food categories. As a result, in the
bread or cereals staple food category
variety is defined by product kind (i.e.,
bread and other baked or finished grainbased products) or main ingredient (e.g.,
wheat and oats) as described in Part IV
List of Examples below.
Numerous commenters requested
additional Agency guidance on what
constituted a variety for each of the four
staple food categories. In response, a list
of examples in Section IV is included in
the preamble of the final rule; this list
provides 20 examples of varieties in
each of the four staple food categories
and is intended to be illustrative, not
exhaustive. Additionally, the examples
listed in the proposed rule have been
amended in the final rule to illustrate
the intended flexibility for retailers. The
changes made to the examples of
varieties in the meat, poultry, or fish
and the dairy products staple food
categories reflect the inclusion of plantbased alternatives. ‘‘Plant-based’’ milk
has been, for example, removed as a
listed example and replaced with
almond milk to reflect the inclusion of
multiple varieties of plant-based milks
(e.g., almond milk, soy milk, and rice
milk) in the dairy products staple food
category. Additionally, the example
‘‘melon’’ was removed and replaced
with grapes as melon is not considered
a product kind under the definition of
‘‘variety’’ but instead includes several
discrete varieties (e.g., honeydew and
cantaloupe). Likewise, ‘‘breakfast
cereal’’ was removed and replaced with
‘‘rice’’ because the former is not a

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product kind but instead includes
several discrete varieties (e.g., rice-based
breakfast cereal and oat-based breakfast
cereal).
After review of all comments on this
provision, this final rule has largely
retained the long-standing Agency
definition of ‘‘variety’’ and, as described
above, modifies the definition of
‘‘variety’’ to allow retailers more
flexibility in meeting the breadth of
stock provision in the dairy, bread and
cereals, and meat, poultry, and fish
staple food categories. This provision
will be implemented for all new
applicant firms and all firms eligible for
reinstatement 120 days after the
effective date of this final rule and 365
days after the effective date of this final
rule for all currently authorized firms.
Public Disclosure of Firms Sanctioned
for SNAP Violations
This discretionary provision proposed
to reaffirm the Agency’s authority and
intent to publicly disclose the store and
owner name for firms sanctioned for
SNAP violations. This provision
received few comments most of which
were supportive. Of the total 1,260
germane and non-duplicative public
comments received, 14 comments, or
about 1% of total public comments,
specifically addressed this provision.
About 71% of comments that
specifically addressed this provision
were supportive while approximately
14% opposed this provision and
approximately 14% were generally
divided and/or expressed mixed
opinions. No retailer commenters
specifically opposed this provision,
industry trade groups that commented
specifically on this provision generally
opposed this provision and all other
commenter types that commented on
this provision were generally
supportive.
Three retailer associations (i.e., the
international convenience store trade
association, the petroleum marketers’
trade association, and the national food
retailer trade association) opposed the
disclosure of this information. One
noted that it, ‘‘. . . does not believe that
the name of a store owner should be
disclosed if the owner name identifies
an individual in the store. [Our]
members believe that the owner name
disclosure is unnecessary and could
lead to mental and emotional harm to
the owner’’ and went on to add, ‘‘FNS
should also consider and take into
consideration the seriousness of the
sanctions imposed and whether there
have been multiple violations.
Publicizing a store owner’s private
information for a first time sanction that
may have resulted from an inadvertent

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violation is unreasonable and clearly
extreme.’’ Another of these three
associations commented, ‘‘There is no
provision of the proposed rule,
however, that would allow for sanction
information to be taken down after the
passage of a certain amount of time or
in the event a store was sold to another
owner or placed under new
management.’’ A fourth retailer
association representing independent
grocers seconded this final point and
stated the group, ‘‘. . . is not opposed
to public disclosure of disqualified
retailers who have engaged in
fraudulent activity after the appeals
process has been exhausted; however
[the organization] encourages the
Agency to remove or amend the public
notice when a store is sold so the new
owners are not harmed by this
disclosure.’’
One State welfare fraud investigator
association commented, ‘‘We believe the
proposed rule changes (increasing the
minimum number of categories in
which perishable goods are required,
amending the depth of stock, redefining
‘Retail Food Store’ to exclude
restaurants, and, particularly, disclosing
information about retailers who have
violated SNAP rules) would serve to
deter fraud.’’ A city health department
representing the large city of 8.5 million
and over 10,000 SNAP authorized firms
also stated that this provision will
‘‘increase integrity efforts against fraud,
waste, and abuse in SNAP’’.
FNS closely monitors retailers to
ensure that they comply with Program
rules and regulations. FNS may warn or
sanction retailers found violating
Program rules. Sanctions can include
time-limited or permanent Program
disqualification as well as civil
penalties. This provision is an essential
tool in Agency efforts to combat and
deter Program fraud and abuse. For
example, the names of retail stores and
owners whom have been charged,
indicted, or convicted for SNAP retailer
fraud by federal, state or local
authorities are already disclosed
publicly through news releases and
other means. This provision reaffirms
FNS’ authority and intent to disclose the
store and owner name for firms
sanctioned for SNAP violations. In
response to the suggestion that
encourages the Agency to remove or
amend the public notice when a store is
sold so the new owners are not harmed
by this disclosure, FNS believes that the
public disclosure of both the retail store
name and the owner who had been
sanctioned would mitigate the potential
harm to a new store owner.
FNS, however, acknowledges the
concerns of these commenters. As a

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result, FNS has clarified and narrowed
this provision in the final rule.
Specifically, the final rule stipulates
that information regarding firms
sanctioned for SNAP violations will be
disclosed by FNS only for the duration
of the sanction. Firms sanctioned for
lesser offenses (e.g., sale of minor
ineligibles) may face term
disqualifications as short as six months.
FNS agrees that making the owner and
store name of such firms indefinitely
available to the public is neither
necessary nor is it judicious. This
provision has been modified such that
FNS may disclose the name and address
of the store, the owner names(s), and
information about the sanction itself for
the duration of the sanction. The
duration of the sanction lasts until the
period of disqualification ends or until
the civil penalty has been paid in full,
whichever is longer. Additionally, this
provision has also been modified such
that in the event that a sanctioned firm
is assigned a civil penalty in lieu of a
period of disqualification, as described
in 7 CFR 278.6(a), FNS may continue to
disclose this information for as long as
the duration of the period of
disqualification or until the civil
penalty has been paid in full, whichever
is longer. The information regarding
firms sanctioned with permanent
disqualification for offenses such as the
trafficking SNAP benefits should and
will be made publicly available for the
duration of the disqualification (i.e.,
indefinitely). Program violations that
result in a permanent disqualification
are serious offenses and the Agency is
dedicated to fighting Program fraud and
abuse in all forms. FNS agrees with the
comments from governmental entities
that the public disclosure of the owner
and store name of firms that violate
Program rules is a powerful deterrent to
retailer SNAP fraud. This provision will
be implemented on the effective date of
this final rule.
IV. List of Examples
Summary of List of Examples
The final rule codifies a statutory
provision to increase the required
number of staple food varieties in each
of the four staple food categories from
three to seven and to increase the
required number of staple food
categories containing at least one
perishable foods variety from two to
three, where ‘‘perishable foods’’ are
defined as items which are either
frozen, fresh, unrefrigerated, or
refrigerated staple food items that will
spoil or suffer significant deterioration
in quality within three weeks. The final
rule also codifies a discretionary

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provision which clarifies and modifies
the definition of acceptable ‘‘variety’’ in
each of the four staple food categories.
Included below are lists of acceptable
varieties in the four staple food
categories. Also included is an
examination of what constitutes a
stocking unit for the purposes of the
depth of stock provision. Finally,
included is a list of food items which
are and are not considered accessory
food items. The lists of examples that
follow are intended to be illustrative
and provide guidance on the final rule.
What follows is not to be construed as
an exhaustive list of staple food
varieties, stocking units, or accessory
food items.
The Meat, Poultry, or Fish Staple Food
Category
In the meat, poultry, or fish staple
food category ‘‘variety’’ is generally
defined by product kind or main
ingredient. This means that chicken,
pork, and beef each represent discrete
varieties. For multiple ingredient food
products the first ingredient determines
variety such that a frozen
microwaveable meal with beef listed as
the first ingredient would constitute a
variety in the meat, poultry, or fish
staple food category (i.e., beef).
This list of examples serves to provide
guidance on acceptable varieties in the
meat, poultry, or fish staple food
category. The meat, poultry, or fish
staple food category now includes
varieties of meat analogues (e.g., soybased meat analogue and gluten-based
meat analogue). The meat, poultry, or
fish staple food category also now
includes three types of plant-based
protein staple foods (i.e., nuts/seeds,
beans, and peas). Each of these three
aforementioned plant-based protein
types may only be counted once each as
a variety in the meat, poultry, or fish
staple food category. Alternatively,
beans and peas may instead be counted
once each as a variety in vegetables or
fruits staple food category. These two
types (i.e., beans and peas) may only be
counted once each regardless of the
staple food category they are counted in.
Nuts/seeds may only be counted once as
a variety in the meat, poultry, or fish
staple food category, but not in the
vegetable or fruits staple food category.
What follows is an illustrative, but not
exhaustive, list of 20 acceptable
varieties in this staple food category.
Included parenthetically with each
variety are two different examples of
food items which would usually fall
within that variety. The examples of
multiple ingredient food items in this
list would be acceptable only if the
listed main ingredient would be

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considered a variety in the meat,
poultry, or fish staple category.
Perishable foods are indicated by the
presence of an asterisk (*).
Plant-based Protein Types:
1. Nuts/Seeds (e.g., sunflower seeds or
peanut butter)
2. Beans (e.g., dried black beans or
dried red kidney beans)
3. Peas (e.g., dried lentils or canned
split pea soup with a first listed
ingredient of split peas)
Meat, Poultry, and Fish:
4. Turkey (e.g., fresh deli sliced
turkey* or fresh ground turkey*)
5. Goat (e.g., fresh goat chops* or
frozen rack of goat ribs*)
6. Salmon (e.g., packaged smoked
salmon or canned salmon)
7. Chicken (e.g., fresh chicken cutlets*
or frozen chicken nuggets*)
8. Beef (e.g., fresh ground beef* or
beef jerky)
9. Tuna (e.g., fresh albacore tuna
steak* or canned albacore tuna fish)
10. Shrimp (e.g., frozen shrimp
scampi meal* or fresh cocktail
shrimp*)
11. Tilapia (e.g., fresh tilapia filet* or
panko breaded frozen tilapia meal*)
12. Crab (e.g., fresh crab cakes* or
canned crab meat)
13. Soy-based meat analogue (e.g.,
tofu* or soy-based vegan chicken
alternative*)
14. Chicken eggs (e.g., fresh eggs* or
liquid egg whites*)
15. Catfish (e.g., frozen catfish filet*
or smoked packaged catfish)
16. Lamb/Mutton (e.g., fresh lamb
chops* or fresh ground lamb*)
17. Cod (e.g., frozen cod* or fresh
cod*)
18. Pork (e.g., pork loin* or fresh
sliced ham*)
19. Duck (e.g., fresh duck* or canned
duck)
20. Clams (e.g., frozen clams* or
canned clam meat)

within that variety. The multiple
ingredient food item examples in this
list would be acceptable only if the
main ingredient is in the vegetables or
fruits staple category. Perishable foods
are indicated by the presence of an
asterisk (*).
1. Potatoes (potatoes* or frozen tater
tots*)
2. Oranges (100% orange juice* or fresh
oranges*)
3. Tomatoes (canned tomato soup or sun
dried tomatoes)
4. Apples (dried apples or pre-cut apple
go-packs*)
5. Pumpkin (canned pumpkin or fresh
whole pumpkin)
6. Bananas (fresh bananas* or frozen
bananas*)
7. Onions (canned onions or fresh
onions*)
8. Grapes (fresh grapes* or 100% grape
juice)
9. Lettuce (fresh head of iceberg lettuce*
or pre-cut and bagged romaine
lettuce*)
10. Pineapples (canned pineapple rings
or fresh whole pineapple*)
11. Cucumbers (fresh cucumbers* or
jarred pickles)
12. Strawberries (fresh strawberries* or
frozen strawberries*)
13. Peaches (canned peaches or fresh
peaches*)
14. Carrots (fresh whole carrots* or precut carrot stick go-packs*)
15. Grapefruit (fresh whole grapefruit*
or grapefruit fruit cup*)
16. Cabbage (e.g., fresh head of cabbage*
or jarred kimchi)
17. Artichoke (e.g., fresh artichoke* or
canned artichoke hearts)
18. Broccoli (e.g., fresh broccoli* or
frozen broccoli florets*)
19. Avocados (e.g., ready-made
guacamole* or fresh avocado*)
20. Celery (e.g., pre-cut celery stick gopacks* or fresh whole celery*)

The Vegetables or Fruits Staple Food
Category

In common language usage a ‘‘dairy
product’’ is understood to mean an
edible food product produced from the
milk of a mammal, most commonly
cow’s milk. Some traditional varieties of
dairy include milk, butter, yogurt, and
cheese. There are a small number of
unique varieties of commonplace dairy
products, most of which share the same
main ingredient (i.e., milk). Based on
the limited types of commonplace dairy
products and the new breadth of stock
requirements, it is impractical to define
‘‘variety’’ for the purposes of this staple
food category based on the main
ingredient and it is useful to include
plant-based alternatives. Plant-based
dairy products will be considered a
variety in the dairy products staple food

In the vegetables or fruits staple food
category ‘‘variety’’ is generally defined
by product kind or main ingredient.
This means that apples, bananas, and
lettuce each represent discrete varieties.
For multiple ingredient food products
the first ingredient determines variety
such that a can of ravioli with tomato
sauce listed as the first ingredient would
constitute a variety in the vegetables or
fruits staple food category (i.e., tomato).
What follows is an illustrative, but not
exhaustive, list of 20 acceptable
varieties in this staple food category.
Included parenthetically with each
variety are two different examples of
food items which would usually fall

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category based on their main ingredient
and the traditional dairy product for
which they are a substitute. So, for
example, almond-based milk, soy-based
milk, almond-based cheese, and soybased cheese will each be considered a
discrete variety in the dairy products
staple food category under the final rule.
Though these items are plant-based,
they are recognized as dairy equivalents
and therefore, do not count as varieties
in the remaining staple food categories.
Additionally, some of the traditional
types of dairy products have been
divided into varieties based on distinct
and generally accepted differences. For
example, the dairy type cheese has been
divided into two discrete varieties:
Cow’s milk-based soft cheese and cow’s
milk-based hard/firm cheese based on
generally accepted industry norms.
What follows is an illustrative, but not
exhaustive, list of 20 acceptable
varieties in this staple food category.
Included parenthetically with each
variety are two different examples of
food items which would usually fall
within that variety. The multiple
ingredient food item examples in this
list would be acceptable only if the
main ingredient is in the dairy products
staple category. Perishable foods are
indicated by the presence of an asterisk
(*).
1. Yogurt (e.g., fresh whole milk French
vanilla yogurt* or fresh nonfat
peach yogurt*)
2. Soy yogurt (e.g., strawberry soy
yogurt* or lite vanilla soy yogurt*)
3. Almond yogurt (e.g., mixed berry
almond yogurt* or low-fat plain
almond yogurt*)
4. Perishable cow milk (e.g., fresh skim
cow milk* or fresh whole cow
milk*)
5. Perishable cow kefir (e.g., nonfat fresh
blueberry kefir* or fresh banana
kefir*)
6. Shelf-stable liquid cow milk (e.g.,
condensed cow milk or evaporated
cow milk)
7. Shelf-stable powdered cow milk (e.g.,
powdered cow milk or casein/whey
powder)
8. Cow milk-based infant formula (e.g.,
organic, milk-based formula or
milk-based, iron-fortified formula)
9. Soy-based infant formula (e.g., ironfortified, soy-based formula or
hypoallergenic, soy-based formula)
10. Butter (e.g., frozen sweet cream
butter* or fresh salted butter*)
11. Butter substitute (e.g., margarine or
non-dairy spread)
12. Sour cream (e.g., fresh, lite sour
cream* or fresh, organic sour
cream*)

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13. Almond-based milk (e.g.,
refrigerated almond milk* or shelfstable almond milk)
14. Soy-based milk (e.g., shelf-stable soy
milk or refrigerated soy milk*)
15. Rice-based milk (e.g., shelf-stable
rice milk or refrigerated rice milk*)
16. Firm/hard cheese (e.g., fresh deli
sliced cheddar cheese* or packaged
grated parmesan cheese)
17. Soft cheese (e.g., fresh curd cheese*
or pre-wrapped American cheese
product slices*)
18. Goat cheese (e.g., fresh honey goat
cheese* or fresh plain goat cheese*)
19. Soy-based cheese alternative (e.g.,
mozzarella-style soy cheese* or
American-style soy cheese slices*)
20. Perishable goat milk (e.g., fresh
whole goat milk* or fresh low-fat
goat milk*)
The Bread or Cereals Staple Food
Category
Most bread or cereals food items sold
and consumed in America primarily
derive from one of the following four
grains: Wheat, corn, rice, and/or oats.
Based on the limited types of common
grains and the new breadth of stock
requirements, therefore, it is impractical
to define ‘‘variety’’ for the purposes of
this staple food category based
exclusively on the product kind or
exclusively on the main ingredient, as is
the standard for two of the other staple
food categories.
What follows is an illustrative, but not
exhaustive, list of 20 acceptable
varieties in this staple food category.
Included parenthetically with each
variety are two different examples of
food items which would usually fall
within that variety. The multiingredient food examples in this list
would be acceptable only if the main
ingredient is in the bread or cereal
staple category. Perishable foods are
indicated by the presence of an asterisk
(*).
1. Wheat (e.g., whole wheat flour or
wheat germ)
2. Corn/maize (e.g., cornmeal or
cornbread)
3. Rice (e.g., brown rice or basmati rice)
4. Oats (e.g., oatmeal or honey oat
bread*)
5. Barley (e.g., pearled barley or barley
meal)
6. Rye (e.g., raw rye or rye bread*)
7. Millet (e.g., millet flour or raw millet)
8. Quinoa (e.g., raw quinoa or quinoa
pasta)
9. Teff (e.g., raw teff or injera*)
10. Bread (e.g., a loaf of rye bread* or
a loaf of multigrain bread*)
11. Pasta (e.g., gluten-free spaghetti or
whole wheat rotini)
12. Baking mixes (e.g., pancake mix or
cornbread mix)

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13. Tortillas (e.g., corn tortillas* or flour
tortillas*)
14. Bagels (e.g., poppy seed bagels* or
plain bagels*)
15. Pitas (e.g., low-carb pita* or whole
wheat pita*)
16. Cold breakfast cereal (e.g., rice-based
cereal or oat-based cereal)
17. English muffins (e.g., whole wheat
English muffins* or honey oat
English muffins*)
18. Hot breakfast cereal (e.g., cream of
wheat or farina)
19. Buns/rolls (e.g., frozen dinner rolls*
or hot dog buns*)
20. Infant cereal (e.g., wheat-based
infant cereal or oat-based infant
cereal)
As an example, a firm could meet the
requirements for the bread or cereals
staple food category by stocking three
loaves of bread, three bags of rice, three
boxes of spaghetti, three bags of pitas,
three bags of tortillas, three bags of flour
and three packages of cornmeal.
Stocking Units
The proposed rule put forward a
discretionary provision requiring six
stocking units per qualifying staple food
variety. The final rule halves that
proposed requirement and codifies a
discretionary provision that requires
three stocking units per qualifying
staple food variety. This list of examples
serves to define ‘‘stocking unit’’ for the
purposes of this provision. If a food item
would not usually be sold individually,
then it does not individually constitute
a stocking unit. Such food items are
usually sold in bunches, boxes, bags, or
packages with a number of other
identical items (e.g., a loaf of bread, a
bunch of grapes, a carton of eggs, a bag
of rice, or a package of sliced turkey).
The individual sale of such food items
would be impractical given their small
individual size. For such products it is
the bunch, box, bag, or package that
represents one stocking unit. What
follows is an illustrative, but not
exhaustive, list of such products and
their standard stocking unit size.
• Small fruit and berries: A package of
blueberries or a package of
strawberries
• Leaf vegetables: A head of lettuce or
a bunch of collard green leaves
• Stalk/root vegetables: A bunch of
carrots or a bunch of celery sticks
• Deli sliced items: A package of turkey
slices or a package of cheddar cheese
slices
• Grains: A bag or sack of rice or a box
of oatmeal
If a food item is usually or often sold
singly, then that single unit may
constitute one stocking unit. What

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follows is an illustrative, but not
exhaustive, list of such products and
their standard stocking unit sizes:
• Hand fruit: A banana or an apple
• Large fruits or vegetables: A
watermelon or a pumpkin
• Small portion or single-serving
packages: A yogurt cup or a fruit cup
If a food item (e.g., grains, dried fruits,
nuts, deli cold cuts, etc.) is stored singly
in a common container or unit, but sold
to customers by weight, then the
standard stocking unit is considered to
be one pound. A bulk container
containing three pounds of dried
cranberries, available to and sold to the
customer by weight, therefore, would
constitute three stocking units of one
variety in the fruit or vegetable staple
food category.
If FNS determines that a bunch, box,
bag, or package usually sold as a unit
has been subdivided into unreasonably
small units in order to meet this depth
of stock provision, FNS will not
consider such food items to constitute a
stocking unit for the purposes of this
depth of stock provision.
V. List of Accessory Food Items and
Examples of Staple Food Items
Accessory Food Items
The final rule codifies a discretionary
provision which clarifies the definition
of ‘‘staple food’’. This provision realigns
the definition of ‘‘accessory food items’’
with statutory intent, defining
‘‘accessory food items’’ to include
snacks, desserts, and foods that
complement or supplement meals.
While any food or food product
intended for home consumption is
generally considered to be eligible for
purchase with SNAP benefits, only
staple food products are counted toward
a retail food store’s eligibility to
participate in SNAP. Staple foods are
generally considered to be basic items of
food that make up a significant portion
of an individual’s diet and are usually
prepared at home and consumed as a
major component of a meal. Some
examples include tomatoes, ground
beef, milk, or rice. Accessory food items,
on the other hand, are generally
considered to be food items consumed
as snacks or desserts as well as food
items that complement or supplement
meals, such as most beverages and
spices.
A product is often considered an
accessory food item if it is usually
consumed on its own, usually as a snack
or dessert, without being cooked or
prepared (e.g., potato chips or an icecream sandwich). Products that are
explicitly identified as staple foods,
such as hand fruit, are not considered

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Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations
accessory foods even if they are
sometimes consumed on their own
without being cooked or prepared. A
product is also often considered an
accessory food item if it is usually used
to flavor other foods (e.g., salt or sugar)
or if it is a beverage (e.g., soda pop or
water). If a product would normally be
considered a staple food, but is sold in
a small package size (e.g., a small bag of
dried apricots or a yogurt cup), that
product is still generally considered a
staple food.
Commercially processed foods and
prepared mixtures with multiple
ingredients are usually assigned to the
staple food category of their main
ingredient on their ‘‘Nutrition Facts’’
label per current regulations and policy.
For example, a frozen pizza with
enriched white wheat flour listed as its
main ingredient would be considered a
staple food variety in the bread or
cereals staple food category. If the main
ingredient of a multiple ingredient food
item is an accessory food item (e.g.,
salt), then that multiple ingredient food
item is considered an accessory food
item. The one exception to this policy
is the accessory food item water. If the
main ingredient of a multiple ingredient
food item is water, then that item is
assigned to the staple food category of
its second listed ingredient. If that
second ingredient is also an accessory
food item (e.g., sugar) then that item is
considered an accessory food item.
All food products identified as
accessory food items in Agency
guidance materials shall not be
considered staple foods for the purposes
of determining the eligibility of any
firm. Any food products with main
ingredients identified as accessory food
items in Agency guidance shall also be
considered accessory food items and
shall not be considered staple foods for
the purposes of determining the
eligibility of any firm. Any other food
product that is not identified as an
accessory food item in Agency guidance
materials shall be considered a staple
food in the category of its main
ingredient. Agency guidance that
explicitly identifies types of accessory
food items will be updated as necessary
per 7 CFR 278.1(t). If a retail food store
owner is unsure as to whether a food
item is or is not an accessory food item,
they may look online for guidance
through the USDA FNS’s Ask the Expert
system at: http://www.fns.usda.gov/askthe-expert (--> ‘‘Nutrition’’ -->
‘‘Supplemental Nutrition Asst Prgm’’).
Additional training for retail food store
owners will be made available to further
clarify this matter as deemed necessary.
What follows is a list of accessory
food items; any product not listed below

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or in future Agency guidance will be
considered a staple food, as explained
above, provided that its main ingredient
is considered a variety in the staple food
category.
Snack and Dessert Food Items:
• Potato, corn, wheat, tortilla, pita,
and vegetable chips, crisps, sticks,
and straws; onion ring snacks; corn
nuts; snack mixes; crackers; pork
rinds; pretzels; pre-popped or unpopped popcorn; and cheese puffs
or curls
• Doughnuts, cupcakes, cookies,
snack cakes, muffins, pastries,
sweet rolls, pies, cakes, pudding,
churros, scones, gelatin desserts,
and any packaged mixes intended
to create any of the aforementioned
products
• Mints, chocolate, marshmallow,
gum, toffee, brittle, fudge,
marzipan, nougat, candy bars, and
candy of all kinds
• Ice cream, ice milk, frozen yogurt,
custard, whipped cream, sherbet,
sorbet, gelato, granita, Italian ices,
frozen carbonated beverages, snow
cones, and ice pops
• Any food product with a main
ingredient that appears on this list
or in Agency guidance as an
accessory food item
Food Items That Complement or
Supplement Meals:
• Powdered, dried, or extracted
spices or seasonings
• Baking soda and baking powder
• Sugar, honey, maple syrup,
aspartame, molasses, high fructose
corn syrup, and any other natural or
artificial sweeteners
• Soda pop, sports or energy drinks,
iced tea, fruit punch, mixers for
alcoholic beverages, water, and all
other carbonated or uncarbonated
beverages (except milk, plant-based
milk alternatives, and 100% fruit or
vegetable juice)
• Monosodium glutamate, sodium
nitrate, olestra, and any other food
additives or any food product that
is edible but non-caloric and nondigestible
• Vegetable oil, olive oil, shortening,
lard, safflower oil, and any other
solid or liquid oils or fats (except
butter)
• Ketchup, mayonnaise, salad
dressing, hot sauce, mustard,
vinegar, relish, horseradish,
chutney, duck sauce, marmite, and
all other condiments
• Vanilla extract or other flavor
extracts and cooking wine
• Gravy and bouillon
• Any food product with a main
ingredient that appears on this list

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or in Agency guidance as an
accessory food item
Some mixed packaged food products
may consist of more than one discrete
element, such as salted crackers and soft
cream cheese packaged together. In this
example, the salted crackers are
considered an accessory food while the
soft cream cheese is considered a staple
food. If the accessory food item is the
main component of the mixed packaged
food product, per the ingredients list on
the Nutrition Facts label, then such a
product is considered an accessory food
item. If the staple food item is the main
component of the mixed packaged food
product, per the ingredients list on the
Nutrition Facts label, then such a
product is considered a staple food
item.
The definition of ‘‘accessory food
items’’, however, is not based on
packaging size or style, nor does it
include food items identified in any of
the four staple food categories. What
follows is an illustrative, but not
exhaustive, list of staple food items
NOT considered accessory food items;
any product not listed below will be
considered a staple food in the staple
food category of its main ingredient as
explained previously.
Examples of Staple Foods:
• Commercially processed foods and
prepared mixtures with multiple
ingredients with a staple food main
ingredient
• Pre-cut, to-go packages or cups of
fresh apple, carrot, grapefruit,
celery, or other fruits or vegetables
• Single-serving yogurt cups
containing or not containing fruit,
with a staple food main ingredient
• Milk, flavored milk (e.g., chocolate
milk), and plant-based milk
alternatives (e.g., soy milk), with a
staple food main ingredient
• Yogurt and flavored yogurt (e.g.,
strawberry yogurt) with a staple
food main ingredient
• Dehydrated, smoked, fermented,
cured, or dried meats such as jerky
or salami with a staple food main
ingredient (e.g., beef or chicken)
• Peanut butter, strawberry jam, and
other plant-based spreads with a
staple food main ingredient
• Fresh vegetables often used as herbs
including, but not limited to, fresh
basil, fresh thyme, and fresh mint
• 100% fruit and/or vegetable juice
• Salsa, hummus, guacamole, and
other plant-based dips with a staple
food main ingredient
• Pickled fruits, vegetables, eggs, or
meats with a staple food main
ingredient
• Single-serving packets of dried fruit

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including, but not limited to,
raisins, prunes, dried apples, and
dried papaya spears, as well as
dried vegetables
• To-go packages of nuts or seeds

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VI. Procedural Matters
Executive Order 12866, Executive Order
13563, and Executive Order 13272
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health, and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both cost and benefits, of
reducing cost, of harmonizing rules, and
of promoting flexibility. Finally,
Executive Order 13272 and the Small
Business Jobs Act of 2010 require
agencies engaged in rulemaking actions
to respond directly to written comments
submitted by the Small Business
Administration (SBA) Office of
Advocacy.
The SBA Office of Advocacy
submitted a comment in response to the
proposed rule. This comment identified
shortcomings in FNS’s Regulatory
Impact Analysis (RIA) and Regulatory
Flexibility Analysis (RFA) and also
conveyed the concerns of small business
stakeholders regarding the RIA, RFA,
and certain provisions of the rule as
proposed. The SBA commented that the
RIA and RFA lacked analytical rigor and
transparency, and further maintained
that the costs, benefits, and other
impacts of the proposed rule were not
sufficiently quantified in the RIA and
RFA. Specifically, the SBA stated that
the Agency’s ‘‘conclusion that the rule’s
impact on small authorized SNAP
retailers will amount to $140 is
underestimated.’’ Furthermore, the SBA
indicated that FNS failed to consider
alternatives adequately when drafting
the proposed rule, especially with
respect to a narrower rulemaking action
that codified only the statutory breadth
of stock provision. In response to these
and other concerns FNS has carefully
reexamined the proposed RIA and RFA.
The final versions of these documents
reflect substantial modifications made
in order to incorporate the feedback of
the SBA as well as industry trade
associations. These changes address
concerns regarding the consideration of
alternatives and the calculation of the
cost impact, among others.
Additionally, in its comment the SBA
suggested that ‘‘FNS should commit to

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publishing small business compliance
guides as this rule becomes finalized as
it will help small businesses adapt to
the new requirements.’’ As stated
previously in this final rule’s section
titled ‘‘Retailer Guidance for
Implementation of Final Rule,’’ many
Program stakeholders specifically
requested that FNS provide retailers
with detailed guidance and training
materials on the rule to ensure that all
retailers fully understand all of the
provisions of the final rule. In addition
to the clarifications and lists of
examples provided in the preamble of
the final rule, FNS will answer retailer
inquiries and provide retailers with
additional notice, guidance, and
training materials during the
aforementioned implementation period
per 7 CFR 278.1(t). This will include
extensive outreach to ensure that the
retailer community is provided with
sufficient technical assistance to ensure
that all firms are adequately informed
regarding these changes to SNAP rules.
The SBA also suggested that FNS
should consider ‘‘granting increased
compliance time for a percentage of
small retailers.’’ As stated previously in
this final rule’s section titled DATES, the
stocking provisions of this final rule
will be implemented 365 days after the
effective date of this final rule for all
currently authorized firms. This phased
implementation will give small format
retailers the time they need to come into
compliance with the provisions of this
final rule.
This final rule has been determined to
be significant and was reviewed by the
Office of Management and Budget
(OMB). The Regulatory Impact Analysis
(RIA) for this rulemaking was published
as part of the docket in Supporting
Documents on www.regulations.gov. A
summary of the RIA follows.
Regulatory Impact Analysis Summary
Need for Action: The final rule is
needed to clarify and enhance current
regulations governing the eligibility of
retail food stores participating in SNAP
and to codify mandatory provisions of
the 2014 Farm Bill.
Benefits: This final rulemaking will
codify mandatory provisions of the 2014
Farm Bill and strengthen provisions in
current regulations to conform to the
intent of statutory requirements. The
final rule will increase the variety of
nutrient-dense staple food products
offered for sale at SNAP-authorized
firms, while also increasing the required
depth of stock. Together, these
provisions will help to ensure that
SNAP households have access to
healthier foods on a continuous basis.
The final rule reflects the Agency’s

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commitment to provide vital nutrition
assistance to our most vulnerable
citizens, protect taxpayer monies, and
safeguard Program integrity. The final
rule allows FNS to ensure that retailers
authorized to participate in SNAP as
retail food stores are consistent with the
purposes of the Program. The final rule
reinforces the intent of SNAP that
participants use their benefits to
purchase more nutritious foods
intended for home preparation and
consumption.
Costs: There will be costs to the
Federal government as a result of the
final rule due to a short-term increase in
store visits to ensure compliance with
the new stocking requirements. The
Agency has estimated the total cost to
the Federal government as
approximately $3.7 million in Fiscal
Year (FY) 2018 and $15 million over
five years. With respect to the cost
impact to retailers, the rule would
mainly impact those firms that are
minimally stocked and those that are
primarily restaurants and, therefore, are
inconsistent with the statutory intent of
the Act to make nutritious foods
available to SNAP participants for home
preparation and consumption. Some
retailers may incur small costs due to
the need to modify their stock.
Estimates of the final rule’s impacts on
retailers are based on an analysis of a
nationally representative sample of
1,392 SNAP authorized small-format
firms using data gathered by FNS during
store inspections, or store visits. Based
on this analysis FNS estimates that the
average small-format SNAP authorized
firm already stocks over 70% of the
stock needed to meet the requirements
of this final rule and the average smallformat SNAP authorized firm will only
need to stock an additional 24 items.
Moreover, this analysis indicated that
over 98% of small-format SNAP
authorized firms currently stock at least
nine perishable staple food items and,
therefore, that the overwhelming
majority of small-format SNAP
authorized firms will not need to stock
any additional perishable items to meet
the requirements in this final rule. The
average cost to a small SNAP authorized
retail food store is estimated at about
$245 in the first year and about $620
over five years.
Firms that do not stock sufficient
staple food items to meet the new
stocking requirements will have the
opportunity to modify their staple food
stock in order to be eligible to continue
participating in SNAP. In the course of
store reviews, FNS has observed that
stores that are determined to not be
eligible typically expand their food
offerings to participate in SNAP.

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It should be noted that most of the
provisions in this final rule have been
modified significantly from their
proposed language. This final rule, for
example, requires less stock than the
proposed rule (i.e., 168 item stock
requirement proposed and 84 item stock
required in the final rule). Nevertheless,
the final average retailer cost estimate
(about $245 in the first year and about
$620 over five years per firm) represents
an increase over the cost estimate
presented in the proposed RIA and RFA
(about $140 in the first year per firm).
Several commenters pointed out types
of costs, including ongoing costs, not
originally accounted for in the Agency’s
cost estimate (e.g., ‘‘opportunity costs’’).
FNS appreciates this public feedback
and has incorporated these types of
costs in its calculations of estimated
cost for the final rule’s RIA and RFA.

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Regulatory Flexibility Act
This final rule has been reviewed
with regard to the requirements of the
Regulatory Flexibility Act of 1980 (5
U.S.C. 601–612). Pursuant to that
review, FNS believes that the
rulemaking does not present a
substantial economic impact to a
considerable number of small
businesses; although the number of
stores impacted is large, we estimate
that the cost to those small businesses
for stocking additional stock would be
nominal, on average about $245 in the
first year and $620 over five years. FNS
has prepared a final Regulatory
Flexibility Analysis (RFA) to respond to
public comments received in reference
to the proposed RFA and to reflect
revisions to the rule. The complete RFA
for this final rule was published as part
of the docket in Supporting Documents
on www.regulations.gov. A summary of
the RFA follows.
Regulatory Flexibility Analysis
Statement
This final rule will impact nearly
200,000 small grocery stores and
convenience stores by requiring that
these stores make changes to their stock
in order to comply with the new
minimum stocking requirement
mandated in this rule. FNS estimates
that for the vast majority of stores the
changes needed will be minimal and
represent a negligible share of a store’s
total gross sales. The average small store
will need to add an estimated 24 items
to their existing stock to meet the new
minimum requirement in this rule.
Costs would be greatest in the first year,
as stores make one-time changes to their
stock. In future years, costs will be
primarily opportunity costs associated
with stocking items with lower profit

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margins and administrative costs
associated with reading guidance to
ensure compliance with the
requirements. The average cost to a
SNAP-authorized retailer is estimated at
about $245 in the first year and $620
over five years.
Public Law 104–4, the Unfunded
Mandate Reform Act
Title II of the Unfunded Mandate
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 Agency generally must prepare a
written statement, including a costbenefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures to State, local, or
Tribal governments in the aggregate, or
to the private sector, of $146 million or
more (when adjusted for 2015 inflation;
GDP deflator source: Table 1.1.9 at
http://www.bea.gov/iTable) in any one
year. When such a statement is needed
for a rule, Section 205 of the UMRA
generally requires the Agency to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, more costeffective, or least burdensome
alternative that achieves the objectives
of the rule. This rule contains no
Federal mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local and Tribal governments or
the private sector of $146 million or
more in any one year. This rulemaking
is, therefore, not subject to the
requirements of Sections 202 and 205 of
the UMRA.
Executive Order 12372
Executive Order 12372 requires
Federal agencies to engage in
intergovernmental consultation with
State and local officials when involved
in Federal financial assistance programs
and direct Federal development. SNAP
is listed in the Catalog of Federal
Domestic Assistance under No. 10.551.
For the reasons set forth in the Final
Rule codified in 7 CFR part 3015,
Subpart V and related Notice (48 FR
29115, June 24, 1983), this Program is
excluded from the scope of Executive
Order 12372.
Executive Order 13132, 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

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inclusion in the preamble to the
regulations describing the agencies’
considerations in terms of the three
categories called for under Section
6(b)(2)(B) of the Executive Order 13132.
FNS has determined that this
rulemaking does not have Federalism
implications. This rule does not impose
substantial or direct compliance costs
on State and local governments.
Therefore, under Section 6(b) of the
Executive Order, a Federalism summary
impact statement is not required.
Executive Order 12988, Civil Justice
Reform
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is intended to have
preemptive effects with respect to any
State or local laws, regulations, or
policies which conflict with its
provisions or which would otherwise
impede its full implementation. This
rule is not intended to have retroactive
effects unless so specified in the Dates
paragraph of the final rule. Prior to any
judicial challenge to the provisions of
the final rule or the application of its
provisions, all applicable administrative
procedures must be exhausted.
Executive Order 13175, Tribal Impact
Statement
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires Federal agencies to consult and
coordinate with tribes on a governmentto-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.
Currently, FNS provides regularly
scheduled quarterly information
sessions as a venue for collaborative
conversations with Tribal officials or
their designees. Reports from these
information sessions are part of the
USDA annual reporting on Tribal
consultation and collaboration.
During the open comment period FNS
received a letter from an Indian Tribal
Organization (ITO). On September 28,
2016, the Food and Nutrition Service
met with the Tribal Organization and 8
Tribes represented by this Organization
to further discuss comments contained
in this letter. FNS identified one (1)
actionable comment, e.g. SNAP

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eligibility should be considered
circumstantially in areas with limited
food access.
The 2014 Farm Bill authorized
additional consideration where an
applicant retailer is located in an area
with significantly limited access to food
when determining the qualifications of
that applicant. This flexibility of the
rule was clarified during the meeting on
September 28, to provide a deeper
understanding of the agency’s
underlying rationale in implementing
this program in this manner.
If a Tribe requests consultation, the
Food and Nutrition Service will work
with the Office of Tribal Relations to
ensure meaningful consultation is
provided where changes, additions, and
modifications identified herein are not
expressly mandated by Congress.
USDA Regulation 4300–4, Civil Rights
Impact Analysis
FNS has reviewed this final rule in
accordance with Departmental
Regulations 4300–4, ‘‘Civil Rights
Impact Analysis’’ (CRIA) and 1512–1,
‘‘Regulatory Decision Making
Requirements’’ to identify and address
any major civil rights impacts the final
rule might have on minorities, women,
and persons with disabilities. This final
rule enhances current regulations and
codifies statutory requirements and,
after a careful review of the final rule’s
intent and provisions, FNS has
determined that this final rule will not
have an adverse impact on any retail
food store owners or SNAP recipients
belonging to protected classes. The
complete CRIA for this final rule was
published as part of the docket in
Supporting Documents on
www.regulations.gov.

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Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. Chap. 35; see 5 CFR part
1320) requires that the Office of
Management and Budget (OMB)
approve all collections of information
by a Federal agency from the public
before they can be implemented.
Respondents are not required to respond
to any collection of information unless
it displays a current valid OMB control
number. There is no new information
collection burden associated with this
final rule.
E-Government Act Compliance
FNS is committed to complying with
the E-Government Act, 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. FNS

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intends to provide Program stakeholders
with guidance and technical assistance
materials related to this final rule
utilizing online media. The Agency also
intends to use online media to publicly
disclose information regarding firms
sanctioned for Program violations.
List of Subjects
7 CFR Part 271
Food stamps, Grant programs—Social
programs, Reporting and recordkeeping
requirements.
7 CFR Part 278
Claims, Disqualification, Financial
institutions, Fines and penalties, Food
stamps, Retail food stores, Wholesale
food concerns.
Accordingly, for reasons set forth in
the preamble, 7 CFR parts 271 and 278
are amended as follows:
■ 1. The authority citation for 7 CFR
parts 271 and 278 continue to read as
follows:
Authority: 7 U.S.C. 2011–2036.

PART 271—GENERAL INFORMATION
AND DEFINITIONS
2. In § 271.2:
a. Add a definition for Firm in
alphabetical order.
■ b. Revise paragraph (1) of the
definition of Retail food store.
■ c. Revise the definition of Staple food.
The addition and revisions read as
follows:
■
■

§ 271.2

Definitions.

*

*
*
*
*
Firm. (1) Firm means:
(i) A retail food store that is
authorized to accept or redeem SNAP
benefits;
(ii) A retail food store that is not
authorized to accept or redeem SNAP
benefits; or
(iii) An entity that does not meet the
definition of a retail food store.
(2) For purposes of the regulations in
this subchapter and SNAP policies, the
terms firm, entity, retailer, and store are
used interchangeably.
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Retail food store means:
(1) An establishment or house-tohouse trade route that sells food for
home preparation and consumption
normally displayed in a public area, and
either offers for sale qualifying staple
food items on a continuous basis,
evidenced by having no fewer than
seven different varieties of food items in
each of the four staple food categories
with a minimum depth of stock of three
stocking units for each qualifying staple
variety, including at least one variety of

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perishable foods in at least three such
categories, (Criterion A) as set forth in
§ 278.1(b)(1) of this chapter, or has more
than 50 percent of its total gross retail
sales in staple foods (Criterion B) as set
forth in § 278.1(b)(1) of this chapter as
determined by visual inspection,
marketing structure, business licenses,
accessibility of food items offered for
sale, purchase and sales records,
counting of stockkeeping units, or other
accounting recordkeeping methods that
are customary or reasonable in the retail
food industry as set forth in § 278.1(b)(1)
of this chapter. Entities that have more
than 50 percent of their total gross retail
sales in: Food cooked or heated on-site
by the retailer before or after purchase;
and hot and/or cold prepared foods not
intended for home preparation and
consumption, including prepared foods
that are consumed on the premises or
sold for carry-out are not eligible for
SNAP participation as retail food stores
under § 278.1(b)(1) of this chapter.
Establishments that include separate
businesses that operate under one roof
and share the following commonalities:
Ownership, sale of similar foods, and
shared inventory, are considered to be a
single firm when determining eligibility
to participate in SNAP as retail food
stores.
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Staple food means those food items
intended for home preparation and
consumption in each of the following
four categories: Meat, poultry, or fish;
bread or cereals; vegetables or fruits;
and dairy products. The meat, poultry,
or fish staple food category also
includes up to three types of plantbased protein sources (i.e., nuts/seeds,
beans, and peas) as well as varieties of
plant-based meat analogues (e.g., tofu).
The dairy products staple food category
also includes varieties of plant-based
dairy alternative staple food items such
as, but not limited to, almond milk and
soy yogurt. Hot foods are not eligible for
purchase with SNAP benefits and,
therefore, do not qualify as staple foods
for the purpose of determining
eligibility under § 278.1(b)(1) of this
chapter. Commercially processed foods
and prepared mixtures with multiple
ingredients that do not represent a
single staple food category shall only be
counted in one staple food category. For
example, foods such as cold pizza,
macaroni and cheese, multi-ingredient
soup, or frozen dinners, shall only be
counted as one staple food item and will
be included in the staple food category
of the main ingredient as determined by
FNS. Accessory food items include
foods that are generally considered
snack foods or desserts such as, but not

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Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations
limited to, chips, ice cream, crackers,
cupcakes, cookies, popcorn, pastries,
and candy, and other food items that
complement or supplement meals, such
as, but not limited to, coffee, tea, cocoa,
carbonated and uncarbonated drinks,
condiments, spices, salt, and sugar.
Items shall not be classified as accessory
food exclusively based on packaging
size but rather based on the
aforementioned definition and as
determined by FNS. A food product
containing an accessory food item as its
main ingredient shall be considered an
accessory food item. Accessory food
items shall not be considered staple
foods for purposes of determining the
eligibility of any firm.
*
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*
PART 278—PARTICIPATION OF
RETAIL FOOD STORES WHOLESALE
FOOD CONCERNS AND INSURED
FINANCIAL INSTITUTIONS
3. In § 278.1:
a. Amend the last sentence in
paragraph (b)(1)(i)(A) by removing the
word ‘‘two’’ and adding in its place the
word ‘‘three’’.
■ b. Revise paragraph (b)(1)(ii)(A);
■ c. Amend the first sentence in
paragraph (b)(1)(ii)(B) by removing the
word ‘‘two’’ and adding in its place the
word ‘‘three’’.
■ d. Revise paragraph (b)(1)(ii)(C);
■ e. Revise the fourth sentence in
paragraph (b)(1)(iv);
■ f. Redesignate paragraph (b)(6) as
paragraph (b)(7);
■ g. Add new paragraph (b)(6).
■ h. Add paragraph (q)(5).
The additions and revisions read as
follows:
■
■

§ 278.1 Approval of retail food stores and
wholesale food concerns.

rmajette on DSK2TPTVN1PROD with RULES

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(b) * * *
(1) * * *
(ii) * * *
(A) Offer for sale and normally
display in a public area, qualifying
staple food items on a continuous basis,
evidenced by having, on any given day
of operation, no fewer than seven
different varieties of food items in each
of the four staple food categories with a
minimum depth of stock of three
stocking units for each qualifying staple
variety and at least one variety of
perishable foods in at least three staple
food categories. Documentation to
determine if a firm stocks a sufficient
amount of required staple foods to offer
them for sale on a continuous basis may
be required in cases where it is not clear
that the firm has made reasonable
stocking efforts to meet the stocking

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requirement. Such documentation can
be achieved through verifying
information, when requested by FNS,
such as invoices and receipts in order to
prove that the firm had ordered and/or
received a sufficient amount of required
staple foods up to 21 calendar days
prior to the date of the store visit.
Failure to provide verifying information
related to stock when requested may
result in denial or withdrawal of
authorization. Failure to cooperate with
store visits shall result in the denial or
withdrawal of authorization.
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*
(C) Offer a variety of staple foods
which means different types of foods
within each staple food category. For
example: Apples, cabbage, tomatoes,
bananas, pumpkins, broccoli, and
grapes in the vegetables or fruits
category; or cow milk, almond milk, soy
yogurt, soft cheese, butter, sour cream,
and cow milk yogurt in the dairy
products category; or rice, bagels, pitas,
bread, pasta, oatmeal, and whole wheat
flour in the bread or cereals category; or
chicken, beans, nuts, beef, pork, eggs,
and tuna in the meat, poultry, or fish
category. Variety of foods is not to be
interpreted as different brands, nutrient
values (e.g., low sodium and lite),
flavorings (e.g., vanilla and chocolate),
packaging types or styles (e.g., canned
and frozen) or package sizes of the same
or similar foods. Similar food items
such as, but not limited to, tomatoes and
tomato juice, different types of rice,
whole milk and skim milk, ground beef
and beefsteak, or different types of
apples (e.g., Empire, Jonagold, and
McIntosh), shall count as depth of stock
but shall not each be counted as more
than one staple food variety for the
purpose of determining the number of
varieties in any staple food category.
Accessory foods shall not be counted as
staple foods for purposes of determining
eligibility to participate in SNAP as a
retail food store.
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*
(iv) * * * In addition, firms that are
considered to be restaurants, that is,
firms that have more than 50 percent of
their total gross sales in foods cooked or
heated on-site by the retailer before or
after purchase; and hot and/or cold
prepared foods not intended for home
preparation or consumption, including
prepared foods that are consumed on
the premises or sold for carryout, shall
not qualify for participation as retail
food stores under Criterion A or
B. * * *
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*
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*
(6) Need for access. FNS will consider
whether the applicant firm is located in
an area with significantly limited access

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90699

to food when the applicant firm fails to
meet Criterion A per paragraph (b)(1)(ii)
or Criterion B per paragraph (b)(1)(iii) of
this section so long as the applicant firm
meets all other SNAP authorization
requirements. In determining whether
an applicant is located in such an area,
FNS may consider access factors such
as, but not limited to, the distance from
the applicant firm to the nearest
currently SNAP authorized firm and
transportation options. In determining
whether to authorize an applicant
despite its failure to meet Criterion A
and Criterion B, FNS will also consider
factors such as, but not limited to, the
extent of the applicant firm’s stocking
deficiencies in meeting Criterion A and
Criterion B and whether the store
furthers the purposes of the Program.
Such considerations will be conducted
during the application process as
described in paragraph (a) of this
section.
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(q) * * *
(5) Public disclosure of firms
sanctioned for SNAP violations. FNS
may disclose information to the public
when a retail food store has been
disqualified or otherwise sanctioned for
violations of the Program after the time
for administrative and judicial appeals
has expired. This information is limited
to the name and address of the store, the
owner(s’) name(s) and information
about the sanction itself. FNS may
continue to disclose this information for
as long as the duration of the sanction.
In the event that a sanctioned firm is
assigned a civil penalty in lieu of a
period of disqualification, as described
in § 278.6(a), FNS may continue to
disclose this information for as long as
the duration of the period of
disqualification or until the civil
penalty has been paid in full, whichever
is longer.
*
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Dated: December 7, 2016.
Audrey Rowe,
Acting Under Secretary, Food, Nutrition and
Consumer Services.
[FR Doc. 2016–29837 Filed 12–14–16; 8:45 am]
BILLING CODE 3410–30–P

DEPARTMENT OF ENERGY
10 CFR Part 609
RIN 1901–AB38

Loan Guarantees for Projects That
Employ Innovative Technologies
Loan Programs Office,
Department of Energy.

AGENCY:

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