[Federal Register Volume 90, Number 184 (Thursday, September 25, 2025)]
[Proposed Rules]
[Pages 46081-46092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-18624]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 90, No. 184 / Thursday, September 25, 2025 /
Proposed Rules
[[Page 46081]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 271 and 278
[Docket No. FNS-2025-0018]
RIN 0584-AF12
Updated Staple Food Stocking Standards for Retailers in the
Supplemental Nutrition Assistance Program
AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: In response to section 765 of the Consolidated Appropriation
Act of 2017 and subsequently enacted appropriations, this rule proposes
to codify a new framework for determining distinct staple food
varieties and accessory foods (such as snacks, desserts, and foods
meant to complement or supplement meals, which do not themselves count
as staple foods) for purposes of meeting the staple food requirements
for retailer participation in the Supplemental Nutrition Assistance
Program (SNAP). The rulemaking is necessary to implement the codified
stocking requirements of the Agricultural Act of 2014, which increased
the minimum number of staple food varieties and perishables SNAP
retailers must carry. A summary of this notice of proposed rulemaking
is posted on regulations.gov at https://www.regulations.gov/docket/FNS-2025-0018.
DATES: Comments must be received by November 24, 2025.
ADDRESSES: The Food and Nutrition Service (FNS), USDA, invites
interested persons to submit comments on this proposed rule. Comments
may be submitted by one of the following methods:
Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Preferred method; follow the online instructions
for submitting comments on docket FNS-2025-0018 or enter ``RIN 0584-
AF12'' and click the ``Search'' button. Follow the instructions at this
website.
Mail: Comments should be addressed to SNAP Retailer Policy
Division, Food and Nutrition Service, USDA, 1320 Braddock Place,
Alexandria, Virginia 22314.
All comments submitted in response to this rulemaking will be
included in the record and will be made available to the public. Please
be advised that the substance of the comments and the identity of the
individuals or entities submitting the comments will be subject to
public disclosure. FNS will make the comments publicly available on the
internet via: http://www.regulations.gov. We encourage commenters to
include supporting facts, research, and evidence in their comments.
When doing so, commenters are encouraged to provide citations to the
published materials referenced, including active hyperlinks. Likewise,
commenters who reference materials which have not been published are
encouraged to upload relevant data collection instruments, data sets,
and detailed findings as a part of their comment. Providing such
citations and documentation will assist us in analyzing the comments.
FOR FURTHER INFORMATION CONTACT: James C. Miller, Administrator, Food
and Nutrition Service, at (703) 305-2060, or [email protected] with
a subject line of ``RIN 0584-AF12''.
SUPPLEMENTARY INFORMATION:
Background
The Agricultural Act of 2014 (2014 Farm Bill) amended the Food and
Nutrition Act of 2008 (herein referred to as ``the Act'') to increase
the number of staple food varieties that certain SNAP authorized retail
food stores must have available on a continuous basis in each of four
staple food categories. The standards were increased from requiring a
minimum of three (3) varieties to seven (7) varieties in each of the
four (4) staple food categories and increased the number of varieties
that must be perishable from one (1) variety in each of two (2)
different staple food categories to one (1) variety in each of three
(3) different staple food categories.
The Department promulgated regulations to implement the increased
breadth of stock requirements in the final rule, ``Enhancing Retailer
Standards in the Supplemental Nutrition Assistance Program (SNAP)'' (81
FR 90675), published on December 15, 2016 (the ``2016 final rule'').
That rule also outlined what constituted a variety in all four staple
food categories. However, after the regulations were finalized, section
765 of the Consolidated Appropriations Act of 2017 and provisions in
subsequent appropriations acts have in effect prohibited the Department
from implementing, administering, or enforcing the retailer ``Breadth
of Stock'' and ``Variety'' provisions of the 2016 final rule until the
Department makes regulatory modifications to the definition of
``variety'' that would increase the number of food items that count as
acceptable staple food varieties for purposes of SNAP retailer
eligibility. To meet this directive, the Department published a
proposed rule, ``Providing Regulatory Flexibility for Retailers in the
Supplemental Nutrition Assistance Program (SNAP)'' (84 FR 13555) on
April 5, 2019. An overwhelming majority of the almost 9,000 comments
received were opposed to the provisions as arbitrary and confusing and
many argued the provisions would impact SNAP households' access to a
variety of healthy food options and make it easier for fraud-prone
retailers that do not primarily sell food to enter the program.
Additionally, the 2019 proposed rule did not incorporate specific
criteria described in the preamble into proposed regulatory text.
Supportive comments, from retail food stores and industry groups,
generally advocated for more flexibility overall. For these reasons,
and because of the length of time that has passed since comments were
received, the Department is issuing this new proposed rule to solicit
fresh comments on a new proposed framework to determine distinct staple
food varieties that would be codified in regulatory text. The
Department also proposes to add and codify food categories that count
as accessory foods, which are generally considered snacks or dessert
foods or are meant to complement or supplement meals. Accessory foods
do not count towards meeting the staple food stocking or sales
requirements for retailer eligibility. While the ``Accessory Food
Items'' provision of the 2016 final rule did go into effect, the
specific criteria that determined what qualifies as an accessory food
were not incorporated
[[Page 46082]]
into regulatory text but were, instead, implemented through agency
guidance Retailer Policy Management Division Policy Memo 2020-05 and
SNAP Accessory Foods List. USDA is now proposing to codify, with
modifications, these two guidance documents. This proposed rule does
not modify any other provisions or components of the 2016 final rule.
Breadth of Stock
In order to be eligible to participate in SNAP, a retail food store
must meet either Criterion A (staple food stock) or Criterion B (staple
food sales) requirements under SNAP regulations at 7 CFR
278.1(b)(1)(ii) and (iii), respectively. Most stores are authorized
under Criterion A, which requires a minimum breadth of staple food
stock in each of the four staple food categories, which are (1) meat,
poultry, or fish; (2) dairy; (3) bread or cereals; and (4) vegetables
or fruits. Specialty food stores, such as butcher shops or fruit and
vegetable stands, are typically authorized under Criterion B, which
requires that at least 50 percent of a store's gross sales be for
staple foods in at least one staple food category. Currently, (pursuant
to the conditions of Section 765 of the 2017 appropriations language
Act and the repeated conditions in subsequent appropriations language)
stores authorized under Criterion A must carry at least three (3)
varieties of staple foods in each of the four (4) staple food
categories where at least one (1) variety in at least two (2) staple
food categories is perishable. For each variety, stores must carry at
least three (3) stocking units. Upon finalization of a new staple food
variety framework through this rulemaking, the SNAP retailer stocking
requirements in Section 3(o) of the Act would also go into effect
because the conditions of the appropriations language will have been
satisfied. Those stocking requirements, which have already been
codified at 7 CFR 278.1(b)(1)(ii) but not enforced, would require SNAP
retailers to stock seven (7) varieties of staple foods in each of the
four (4) staple food categories, of which at least one (1) variety in
each of three (3) different staple food categories is perishable. The
requirement to carry at least three (3) stocking units for each
variety, as currently implemented and codified in regulations, will
remain the same. The increased number of staple food varieties required
under Criterion A is non-discretionary. While this proposed rule would
not make any changes to the minimum breadth of stock stores are
required to carry, this part of the previously codified standards would
be implemented for the first time upon publication of a final rule
under this rulemaking.
Definitions of Accessory Food, Prepared Food, Retail Food Store, and
Staple Food
The Department proposes to remove the discussion of accessory
foods, variety, and main ingredient from the ``Staple Food'' definition
at 7 CFR 271.2 for greater clarity. Instead of addressing all four
terms in one definition, this proposed rule would add a separate
definition for ``Accessory Food.'' The definition of main ingredient
and the expanded frameworks for staple food varieties and accessory
foods would be codified separately at 7 CFR 278.1(b). In line with the
current Dietary Guidelines for Americans (DGA), 2020-2025, the
definition of ``Staple Food'' at 7 CFR 271.2 would indicate that the
meat, poultry, or fish staple food category would be referred to as the
protein category to be inclusive of high protein plant-based food--and
it will be referred to as, simply, the protein category through the
remainder of this proposed rule. Similarly, the bread or cereals
category would be referred to as the grains category to be inclusive of
other grain-based food products--and it will be referred to as, simply,
the grains category through the remainder of this proposed rule. The
current definition of ``Staple Food'' already accounts for plant-based
options for both the protein and the dairy categories. The proposed
changes to streamline the definition of ``Staple Food'' would not
result in any substantive changes to the definition or to existing
staple food categories as currently defined.
To prevent inconsistency, the Department also proposes to remove
the discussion of criteria A and B and prepared food from the
definition of ``Retailer Food Store'' in 7 CFR 271.2, Criterion B is
currently outlined in 7 CFR 278.1(b)(iii). Criterion A would be
outlined in greater detail at 7 CFR 278.1(b)(ii), and a separate
definition for ``Prepared Food'' would be added to 7 CFR 271.2 through
this proposed rulemaking.
Finally, the Department proposes to move out of the ``Retail Food
Store'' definition, the criteria for determining which co-located
businesses are evaluated as a single firm for purposes of determining
retailer eligibility. Instead, the provision would be added as new
subparagraph at 7 CFR 278.1(b)(8). The proposed reorganization of
provisions currently included as part of the ``Retail Food Store''
definition would not result in any substantive regulatory changes.
Application of Criterion A
Reorganization
For purposes of greater clarity and readability, as well as to
incorporate a more detailed framework for determining distinct staple
food varieties when assessing SNAP retailer eligibility, the Department
proposes to reorganize 7 CFR 278.1(b)(1). Specifically, this rule
proposes to remove redundancy in subparagraph (A) of 7 CFR
278.1(b)(1)(i) and break up subparagraph (A) of 7 CFR 278.1(b)(1)(ii)
to address, in separate subparagraphs, the staple food stocking
standards and the requirement to display the required stock for sale on
a continuous basis. This action does not make any substantive changes
to the current regulations. While this proposed reorganization
highlights the statutory increases in the required number of varieties
in each staple food category, those non-discretionary standards were
already codified by the 2016 final rule, though these requirements have
never been enforced due to Section 765 of the 2017 Consolidated
Appropriations Act and the repeated conditions in subsequent
appropriations language. If this rule were to be finalized as proposed,
it is the Department's view that the requirements of this
appropriations language would have been met and thus would negate the
need for continuation of this appropriations language.
Staple Food Varieties
In this rulemaking, the Department is faced with balancing several
competing interests, including ensuring that SNAP retailers carry a
larger variety food options, that retailer food stores can easily
understand the requirements, that the requirements can be
operationalized in an efficient and cost-effective manner, and that the
variety framework does not undercut Congress' intent to make the
stocking standards more rigorous so that unscrupulous retailers are not
able to gain entry into SNAP for the sole purpose of defrauding the
program (H.R. Rep No. 113-333, 2014). In a December 2018 report, SNAP:
Actions Needed to Better Measure and Address Retailer Trafficking, the
General Accountability Office (GAO) reiterated its 2006 finding that
the minimal requirements for the amount of food that retailers must
stock could allow retailers more likely to traffic SNAP benefits (i.e.,
referring to the illegal exchange of SNAP benefits for cash or
consideration other than eligible food) into the program. It is with
all these interests in mind that the Department proposes a modified
[[Page 46083]]
framework for distinguishing food items that would count as distinct
varieties. As a result, the Department believes that the new approach
described below is superior to the 2016 construct precisely because it
more effectively balances all the competing interests.
Specifically, the Department proposes to codify the framework for
determining distinct varieties at 7 CFR 278.1(b)(1)(ii)(C). In general,
this proposed rule would maintain the overall current framework but
proposes two new groups of distinct varieties for operational
simplification and to give more weight to traditional staple food
products. The Department believes that this approach is superior to the
2016 structure because it will provide more options for retailers to
meet the variety requirements under this new staple food framework than
under the 2016 framework.
To date, the criteria for determining which foods count as distinct
staple food varieties (different types of food within a staple food
category) have existed only in agency guidance and have generally been
defined based on the type of food (by each different plant or animal)
or the main ingredient of the food product. For the protein and
vegetables or fruits staple food categories, this generally means that
different types of food--regardless of brand, packaging, flavoring,
style or cut, etc.--count as one distinct variety. For example, all
types of apples fall within one variety separate from all types of
oranges, just as all forms of chicken fall within one variety separate
from all forms of beef. For the dairy and grains categories, this
generally means that different types of products--even those that have
the same main ingredient--are distinct varieties. For example, yogurt
is a distinct variety from cheddar cheese, even if they both have milk
as the main ingredient; and bread is a distinct variety from pasta,
even if they both have wheat as the main ingredient. More recently, FNS
has counted plant-based dairy alternatives as distinct dairy varieties
from the traditional mammal-based varieties for each different type of
plant the product is made from (e.g., almond milk is a separate variety
from soy milk and both are separate varieties from cow's milk) and
counted dairy products from different mammals as distinct traditional
dairy varieties (e.g., cow milk is a separate variety from goat milk).
For multi-ingredient food products, long-standing agency policy has
determined variety and category by the main ingredient, defined as the
first listed ingredient after water, stock, or broth. For example, if a
can of beef stew has beef as its main ingredient, it counts as a beef
variety in the protein category.
With the non-discretionary increase in the number of varieties SNAP
retailers will be required to stock in each staple food category,
retailer stakeholders have expressed concern with being able to meet
the new standards, particularly for the dairy and the protein
categories. An analysis of 121,294 SNAP-authorized small format retail
food stores (which represent 64% of all SNAP-authorized small
retailers, or 45% of all SNAP-authorized retailers) determined that, in
terms of meeting the higher number of staple food varieties required by
the 2014 Farm Bill, 81% of the small stores already stocked enough
grains and 83% already stocked enough fruits and vegetables, while only
63% already stocked enough protein and only 52% already stocked enough
dairy.
Staple Food Subgroups 1 and 2
In general, the more varieties that are subdivided based on main
ingredient or other factors (such as dairy or meat fat content, whole
or refined grains, and cheese firmness), the more difficult the system
becomes to operationalize and the more costly it becomes for FNS to
identify and document the distinct varieties. It can also become more
confusing for retail food stores, making it difficult for them to meet
the stocking standards simply because they do not understand the
requirements. Currently, FNS employs a contractor to take photos of
store aisles to get a sense of the overall store inventory, but not
individual items or their ingredients. When retailers are at the margin
of eligibility, and the availability of certain inventory is not clear
or needed information is not on the front of the packaging, follow-up
store visits or documentation requests are required to determine
whether the store has sufficient stock. Such situations increase the
time it takes for a retailer to become authorized. To make the variety
criteria more straightforward and minimize the need to identify the
main ingredient for basic food products, the Department proposes to
establish two separate subgroups of staple food varieties.
In group 1 under 7 CFR 278.1(b)(1)(ii)(C)(1), the specific types of
raw food identified, without any other ingredients, would count as
separate varieties from multi-ingredient food products with the same
main ingredient. The purpose of this group is to promote the stocking
of basic staple food essentials needed for the home preparation of
meals rather than counting such essentials as the same variety as
multi-ingredient, processed foods with the same main ingredient. The
Department proposes to include the following three types of food in
group 1:
Grain-Based Flour;
Raw Grains; and
Dry Beans, Peas, or Lentils.
For example, as part of group 1, the following foods, which
currently count as just one variety, would be separate varieties under
the proposed framework:
Cornmeal and ears of corn or a product with corn as the main
ingredient;
A bag of uncooked rice and canned soup with rice as the main
ingredient; and
A bag of dry beans and canned cooked beans.
All dry beans, all dry peas, and all dry lentils, regardless of the
kind of bean, pea, or lentil, each would count as one distinct variety,
for a total of 3 possible varieties, separate from any multi-ingredient
product with beans, peas, or lentils as the main ingredient. The same
construct would apply to each kind of grain for grain-based flour and
raw grain. Therefore, instead of a bag of raw rice, rice flour, and a
frozen grain bowl with rice counting as one rice variety as is
currently the case, each of those items would count as its own distinct
variety under the proposed framework. The same would apply for each
different type (e.g., oats, barley, wheat etc.).
In group 2, under 7 CFR 278.1(b)(1)(ii)(C)(2), the specific types
of food identified would count as only one distinct variety, regardless
of different main ingredients or coming from different animals or
plants. The purpose of this group is to make the process of identifying
distinct varieties as simple and intuitive as possible for both FNS and
retailers while still meeting the intent of the program to provide SNAP
households with access to a broad range of staple food varieties to
meet their nutritional needs. This framework is currently being applied
through longstanding practice to specific dairy and grains products as
indicated in agency guidance, SNAP Staple Foods. Through this
rulemaking, the Department proposes to codify the framework and the
specific products for which it applies. This rule also proposes to
count additional dairy subproducts as distinct varieties and count
tofu/tempeh as a distinct variety of protein. At the same time, the
current practice of subdividing bread by various forms (such as bagels,
sliced bread, tortillas, pita, etc.) would be eliminated. The
Department proposes to include the following 17 different types of food
products in group 2:
[[Page 46084]]
Eggs
Bread
Pasta/Noodles
Breakfast Cereals/Foods
Perishable Liquid Milk
Shelf-Stable Liquid Milk
Dried or Powdered Milk
Fermented or Cultured Dairy Beverages
Yogurt (non-liquid)
Butter
Cream (separate from butter)
Cheese
Perishable Meat, Poultry, or Fish (for each different kind of
animal)
Shelf-Stable Meat, Poultry, or Fish (for each different kind
of animal)
Tofu/Tempeh
Infant Formula
Infant Cereal
Unlike the foods in group 1, most of the foods in group 2 are
available in multiple forms, with a wide array of main ingredients. As
a result, the main ingredient of many food products listed in group 2
cannot be easily determined by just looking at the product or even
knowing what kind of product it is. Breakfast cereals, for instance,
may each have a different grain (such as corn, oat, or wheat) as the
main ingredient. Under the proposed framework, all breakfast cereals
would fall within one variety, regardless of the grain from which they
are made. The same construct would apply to all the food products in
group 2, greatly simplifying the process for determining if a retail
food store meets the standards for Criterion A.
The Department is aware that the proposal to no longer subdivide
bread by its form (e.g., rolls, baguette, sliced bread) may be
controversial. However, the Department has concluded that counting each
form of bread as a distinct variety is not practical given the need to
categorize a large number of possibilities. Allowing a retailer to meet
the stocking requirement for the grain category with just bread also
subverts the purpose to require retail food stores authorized under
Criterion A to carry a broader variety of staple foods in each staple
food group. By separating out certain foods as distinct varieties
through the combination of food items identified in both groups 1 and
2, the Department would be replacing those varieties with other, more
basic varieties of grains which are easier to distinguish and are
commonly stocked in retailer food stores of various types and sizes.
For example, under the new proposed framework, rice products could be
counted in as many as three distinct varieties: rice flour, rice grain,
and any other product with rice as the main ingredient. Currently, all
these products count as only one ``rice'' variety. By singling out
these specific food products, the new variety framework would not only
make it easier for FNS to determine retailer eligibility, but it would
also make it easier for retailer food stores to more accurately
determine if they meet the stocking requirements before deciding to
move forward with applying for authorization.
Plant-Based or Grain Alternatives to Dairy Products
Plant-based alternatives are currently recognized as distinct
varieties from the traditional dairy products for which they are a
substitute. Under 7 CFR 278.1(b)(1)(ii)(C)(3)(i), the Department would
maintain this provision but proposes to limit the number of plant-based
alternatives that may count towards the dairy category to three.
Current policy does not limit the number of plant-based dairy
alternatives that a single retail food store may count towards meeting
the staple food stocking requirements in the dairy category. For
example, having sufficient units of almond milk, oat milk, and soy milk
is enough to meet the current dairy stocking requirement. Yet, the DGA
states that, other than fortified soy milk, no other plant-based dairy
alternative contains the nutritional content to meet the dietary
recommendations for dairy. This proposed change would help ensure that
SNAP retailers carry a variety of milk, yogurt, and cheeses rather than
meeting the standard through multiple varieties of plant-based milks.
Under 7 CFR 278.1(b)(1)(ii)(C)(3)(ii), the Department proposes to
move several high protein plant foods from the vegetable or fruit
category, for which almost all retail food stores already carry a
sufficient number of varieties, to the protein category. Under this
proposed rule, the following types of foods would count as protein:
nuts and seeds, beans, peas, and lentils. This proposed change would
not only add more protein varieties, but it would also properly
encourage retail food stores to carry plant-based proteins and help
meet the nutritional needs of SNAP households through high-fiber
protein sources, particularly for individuals with plant-based diets.
The Department does not propose limiting the number of plant-based
varieties that may count in the protein category because the DGA
includes a broad group of foods from both animal and plant sources in
the protein category, which can help individuals meet the protein
dietary recommendations.
Appropriations Directive
In accordance with enacted appropriations directing USDA to
increase the number of items that qualify as acceptable varieties in
each staple food category the proposed variety framework would create
several more varieties in the protein, dairy, and grains categories
than existed in the 2016 final rule. The vegetables or fruits category
already includes numerous possible varieties--significantly more than
any other staple food category. Furthermore, 83 percent of currently
authorized small format stores already stock enough fruits and
vegetables. Any further attempts to subdivide existing vegetable or
fruit varieties would add unwarranted complexity to a category that, up
to this point, has always been the most straightforward. Therefore, the
Department does not propose any changes to the vegetables or fruits
staple food category. However, because there has been some confusion as
to whether pre-cut fruits and vegetables were considered prepared food
for retailer authorization purposes, the Department would like to take
this opportunity to clarify that cold pre-cut fruits and vegetables
intended for home consumption count as a staple food in the vegetable
and fruits category. Therefore, bags of sliced apples or broccoli
florets continue to count as a staple food. In addition, the Department
is proposing to codify, with modification, the definition of ``Prepared
Foods'' in current agency guidance, ``Retailer Eligibility-Prepared
Foods and Heated Foods,'' to allow cold pre-cut food intended for home
consumption, even if cut by the retailer on the premises of the firm,
to count as staple food as long as the retailer has not otherwise
prepared the food for immediate consumption. This means that a bag of
shredded lettuce to prepare a salad at home, regardless of whether the
lettuce was shredded on the premises of the store, counts as a staple
food. Shredded lettuce and other cold cut fruits or vegetables from a
salad bar from which the customer must prepare their own salad by
serving themselves would also count as staple food. However, if the
retailer serves, mixes, and/or otherwise prepares the ingredients of
the salad for the customer, even if cold, then the salad would continue
to be considered prepared food that does not count towards meeting the
SNAP staple food stocking or sales requirements.
As discussed earlier, carrying enough varieties in the protein and
dairy categories has historically presented the biggest challenge for
small format retail
[[Page 46085]]
food stores when it comes to meeting the staple food stocking standards
for SNAP authorization followed by the grains category. Therefore, the
Department would like to specifically address the additional varieties
the new proposed framework would create in each of those three staple
food categories in comparison to the 2016 final rule. We note that the
number of different groupings of varieties indicated does not reflect
the total number of possible distinct varieties under that staple food
category. For example, although the protein category has seven
categories of varieties, there are numerous possible distinct varieties
under the single ``perishable meat, poultry, or fish'' category because
each kind of animal (e.g., cow, pig, lamb, turkey, chicken, trout,
flounder) represents a separate variety, all of which would be
impossible to fully identify or count.
Protein Category
The Department is proposing to subdivide protein into the following
seven groupings of varieties:
Perishable meat, poultry, or fish, including fresh or
frozen versions for each different kind of animal;
Shelf-stable meat, poultry, or fish for each different
kind of animal;
Eggs;
Nuts/seeds;
Raw beans, peas, or lentils, each of which would count as
a distinct protein variety;
Cooked (e.g., canned) beans,
Peas, or lentils and multi-ingredient products with beans,
peas, or lentils as the main ingredient; and
Tofu/tempeh, together, would be a distinct variety from
all other types of proteins and any other pea product as the main
ingredient.
As with the 2016 final rule, this rule would add nuts/seeds as well
as beans, peas, or lentils to the varieties FNS currently counts in the
protein category, adding an additional 4 possible protein varieties--
(1) nuts/seeds; (2) beans; (3) peas; and (4) lentils. In addition, this
rule would add the last four varieties listed above to the varieties
established by the 2016 final rule, allowing for numerous additional
possibilities for each type of shelf-stable meat, poultry or fish, as
well as three additional varieties each for beans, peas, or lentils in
its raw form, and one additional variety for tofu/tempeh, which would
be separate from any other product with soybeans or other peas as the
main ingredient.
Dairy Category
The Department proposes to subdivide dairy into twelve distinct
categories:
Perishable liquid milk (such as whole milk, 2% milk, 1%
milk, skim milk, etc.) for each different type of mammal;
Shelf-stable liquid milk, such as canned evaporated or
condensed milk and boxed milk;
Cheese;
Yogurt (non-liquid);
Butter;
Infant formula;
Cream (other than butter, which would continue to be its
own separate variety), such as heavy cream, sour cream, and half and
half;
Fermented or cultured dairy beverages, such as kefir,
buttermilk, and yogurt-based drinks;
Dried milk, such as milk powder; and
Plant-based alternative (for up to three different dairy
products listed above).
Current agency guidance counts all milk products, other than the
first five products listed above, as one single ``milk'' variety. Under
the 2016 final rule, cheese was further subdivided into soft cheese and
hard/firm cheese, and milk was further subdivided into perishable and
shelf-stable milk, adding two additional dairy varieties.
In agency guidance issued in April 2023, Criterion A--Stocking
Requirements for Retailers: Dairy, FNS made dairy products distinct
varieties for each different type of mammal (e.g., cow milk, sheep
milk, goat milk) to make the distinctions for mammal milk more similar
to that for plant-based dairy alternatives. Prior to this policy change
in 2023, milk was one variety, regardless of the mammal it came from,
while plant-based dairy alternatives were counted as separate varieties
for each different kind of plant it was made from (e.g., soy milk,
coconut milk, rice milk). However, such distinctions for mammal-based
milk have proven to be difficult to operationalize. Feta cheese, for
instance, can be made from various kinds of milk either by itself or in
combination, including goat milk, sheep milk, and cow milk, making it
almost impossible to determine the dairy variety without looking at the
ingredients list. While the proposed framework would eliminate this
recently added distinction for dairy products by mammal for the types
of products listed in group 2, the four additional dairy varieties
under the proposed framework are common types of dairy products that
most retail food stores carry. Not only is it less likely for small
format retail food stores to carry most of these products for any
mammal other than cow, essentially making the distinction by mammal
immaterial, it would streamline the retailer approval process by
eliminating the need to identify which type of mammal milk is the main
ingredient of each of those products. Under the proposed framework
liquid perishable milk would continue to count as distinct varieties
for each type of mammal.
In this rule, the Department proposes to carry over the 2016
provision of making shelf-stable dairy a distinct variety from
perishable dairy. However, for the reasons stated above, the Department
has reconsidered counting soft cheese and hard/firm cheese as two
separate varieties and distinguishing dairy products, other than liquid
milk, by mammal or, in the case of plant-based alternatives, by main
ingredient as the 2016 final rule had. Instead, this proposed rule
would add three different distinct dairy varieties in the form of
cream, fermented or cultured dairy beverages, and dried milk.
Therefore, cream and fermented beverages would count as a distinct
variety from milk or yogurt, and dried milk would count as a distinct
variety from liquid shelf-stable milk. The operational difficulties of
determining which animal a product is made from or the main ingredient
of a plant-based alternative, which include numerous possibilities,
would impose an undue burden on the agency as discussed earlier. The
Department is also proposing these changes based on retailer industry
feedback indicating that counting plant-based dairy alternatives and
dairy made from mammals other than cows as distinct varieties would not
significantly assist small-format stores in meeting the increased SNAP
stocking requirements in the dairy category since such products are
note widely in demand by customers of small-format stores.
Grains Category
The Department proposes to subdivide grains into six distinct
categories:
Raw Grains for each different type of grain;
Flour (grain-based) for each different type of grain;
Bread;
Pasta/Noodles;
Breakfast Cereals/Foods (such as a box of corn flakes,
frozen waffles, or pancake mix); and
Infant Cereal.
For the grains category, the 2016 final rule subdivided bread into
five varieties based on the bread form. The five
[[Page 46086]]
varieties included bread, bagels, buns/rolls, English muffins, and
pitas for each type of grain. The Department believes that such
categorization introduces too much confusion as to which category a
particular bread form falls under. For example, it is unclear how
tortillas or croissants would be categorized. Likewise, it is unclear
how cornbread or matzo bread would be categorized. Also, determining
the grain each bread is made of would present significant operational
challenges for a construct that is counter to the Congressional intent
to require a greater range of different types of food in each staple
food category.
Under this rule, the Department now proposes to count all bread as
one variety, regardless of form or the grain from which it is made.
However, for each type of grain, the Department proposes to count raw
grain as a separate variety from any other product with that grain as
the main ingredient and to count flour as a separate variety from the
raw grain or any other product made with the same gain. Raw grains and
flour, which are not only generally more easily identifiable on account
of having the grain clearly indicated on the front of the package, are
also important components for the preparation of numerous foods.
Finally, the Department proposes to combine both the cold and
``hot'' cereal varieties with the baking mix variety included in the
2016 final rule. However, the category would be expanded to include
other breakfast foods, such pre-made frozen/cold waffles, pancakes,
etc. With the introduction of raw grains and flour as distinct
varieties for each type of grain, the Department believes that having
three separate varieties for breakfast foods is not only unnecessary
but would add unwarranted complexity by requiring varieties to be based
on whether it is intended to be eaten hot or cold as well as whether it
is ready-to-eat or not. Also, the Department believes that having a
baking mix variety would not, in most cases, add additional
possibilities. Baking mixes for dessert foods (such as cakes, brownies,
cookies, etc.) would be considered accessory foods that do not count
towards the staple food stocking requirements even if the main
ingredient is flour. Also, any baking mix that has an accessory food as
the main ingredients would also be an accessory food. Therefore, having
a separate baking mix variety would give the false impression that any
baking mix counts as a separate variety in the grains category, leading
to both retailer confusion and operational ambiguity.
In the end, the Department has determined that the addition of raw
grains and flour for each type of grain more than makes up for the
removal of the of other distinct grain varieties while staying true
Congressional intent. Under 7 CFR 278.1(b)(1)(ii)(C)(4)-(5), the
Department proposes to codify existing long-standing policy. Current
policy prohibits counting a food product in more than one staple food
category. Current policy also does not count a single type of food that
is packaged differently as distinct varieties. For example, chicken
wings and chicken breasts are both currently counted as one ``chicken''
variety. Similarly, ground beef and chuck roast are both currently
counted as one ``beef'' variety. A single type of food that is prepared
differently is also not currently counted as separate varieties. For
example, whole fresh tomatoes, 100% tomato juice, and tomato sauce all
currently count as one ``tomato'' variety. Similarly, pork loin and
pork hotdogs are both currently counted as one ``pork'' variety.
Different flavorings also do not currently count as distinct varieties.
For example, chocolate milk and plain milk both currently count as one
``milk'' variety. Finally, different kinds of the same type of food
also do not count as distinct varieties. For example, brown rice, wild
rice, and white rice all currently count as one ``rice'' variety.
Similarly, mandarin oranges, tangerines, and navel oranges all count as
one ``orange'' variety. These current policies would remain unchanged
in this proposed rule.
Under 7 CFR 278.1(b)(1)(ii)(C)(6), the Department proposes to also
codify the long-standing definition of ``main ingredient'' currently
used to determine the staple food category and variety of a food
product with multiple ingredients. ``Main ingredient'' is currently
defined as the first listed ingredient unless the first ingredient is
water, stock, or broth. If the first ingredient is water, stock, or
broth, the next ingredient is considered the main ingredient for
determining the variety of staple food or whether it is an accessory
food. This definition is based on the Food and Drug Administration
requirement that ingredients be listed from highest to lowest quantity
by weight in the ingredients list on the product's label (21 CFR
101.4). The definition would remain unchanged in this proposed rule.
Accessory Food
In accordance with section 3(q)(2) of the Act, and as currently
codified at 7 CFR 271.2 (definition of ``Staple Food'') and 7 CFR
278.1(b)(1)(ii)(C), accessory foods do not count towards meeting the
retailer staple food stocking or sales requirements discussed above.
The current definition of ``Staple Food'' at 7 CFR 271.2 also defines
accessory foods as foods that are generally considered snacks or
desserts and/or are meant to complement or supplement meals and
provides several illustrative examples for each of the two groups.
Agency guidance, SNAP Accessory Foods List (March 5, 2018), provides
several more examples and states that any food product that is not
specifically identified as an accessory food in agency guidance shall
be considered a staple food. In an effort to further the purpose of the
program to provide low-income households access to nutritious food
essential to health and well-being, as well as to meet the intent of
Congress to reduce fraud at retail stores by requiring more rigorous
staple food stocking standards, the Department is taking this
opportunity to update the current accessory foods list and to codify it
through this proposed rulemaking.
Under this proposed rule, the Department would separate the current
list of accessory foods by creating a third group; edible items
primarily used as part of the food preparation process. Most of the
foods that would be listed under this group are already included in the
current accessory foods list under one of the other two existing
groups. Additional specific examples would be added for clarity and
consistency, including yeast, starch, broth, stock and gelatin. These
items are subproducts of currently listed items and considered
accessory foods under long-standing agency practice. This clarification
would also be consistent with the definition of ``main ingredient,''
which is the first ingredient listed in the ingredient list of food
product after broth, stock, or water. Water is already explicitly
identified as an accessory food, as is bouillon. These proposed changes
would not have any material impact on current practice.
The Department also proposes adding three new groups of foods to
the accessory food list. The proposed new groups are:
Snack bars, including but not limited to, protein,
granola, and baked bars. Such food products are not generally eaten as
a meal, but as a snack between meals. Furthermore, because multi-
ingredient food products are categorized by the main ingredient, snack
bars may fall under any one of the four staple food categories. This
makes it difficult to categorize snack bars by looking at the package
itself and leads to counterintuitive classification, such
[[Page 46087]]
as a protein bar that has whey as the main ingredient counting as a
staple food in the dairy category.
Jerky, other than whole-muscle meat jerky, including but
not limited to beef jerky and plant-based jerky. While jerky is rich in
protein, non-whole muscle jerky is also typically eaten as a snack
between meals. Counting jerky as a staple food also allows stores to
meet the protein staple food category by merely stocking jerky sticks
of different animals, such as beef jerky, turkey jerky, and pork jerky,
which are currently counted as three separate protein varieties. This
classification of jerky does not further the purposes of the program or
the intent of Congress for SNAP retailers to be required to carry a
broader variety of foods in each staple food category. Changing jerky
to an accessory food may also compel SNAP retailers to stock
alternative food varieties that would count under the protein staple
food category.
Cheese or fruit dips and spreads, including but not
limited to, cheese sprays, jams, jelly, marmalade, preserves and
compote. Cheese or fruit dips and spreads are meant to complement or
supplement a meal, which the Act explicitly identifies as a category of
accessory foods. In addition, cheese dips and spreads are highly
processed cheeses made with less real cheese and more additives.
Similarly, fruit spreads tend to be high in sugar content, which is not
foundational to a balanced diet.
The Department recognizes that many individuals may occasionally or
frequently eat some of these food products as meal replacements. These
proposed changes, however, would not prevent households from purchasing
these food items with SNAP benefits. All accessory foods, while not
counted as staple foods for retailer eligibility purposes, are
generally eligible for SNAP purchase.\1\
---------------------------------------------------------------------------
\1\ With approval by the Secretary for a demonstration project
waiver, authorized by Section 17 of the Act, States may restrict the
purchase of certain foods with SNAP benefits. For additional
information, see https://www.fns.usda.gov/snap/waivers/foodrestriction.
---------------------------------------------------------------------------
Procedural Matters
Executive Orders 12866 and 13563
Under Executive Order 12866, as amended, agencies must assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, select regulatory approaches that maximize net
benefits. The Office of Management and Budget's (OMB) Office of
Information and Regulatory Affairs (OIRA) determines whether a
regulatory action is significant as defined by Executive Order 12866
and, therefore, subject to OMB review.
This proposed rule has been determined to be significant under
Executive Order 12866 and was reviewed by 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. This proposed rule, if finalized as proposed, is expected to
be an E.O. 14192 regulatory action.
Regulatory Impact Analysis
Need for Action: In response to section 765 of the Consolidated
Appropriation Act of 2017 and corresponding sections in subsequent
enacted appropriations, the United States Department of Agriculture
(the Department) Food and Nutrition Service (FNS) proposes to revise
the Supplemental Nutrition Assistance Program (SNAP) regulations at
sections 271 and 278 to codify a new framework for determining distinct
varieties of staple foods for purposes of assessing retail food store
eligibility to participate in SNAP. The rulemaking is necessary to
implement the enhanced stocking requirements of the Agricultural Act of
2014 (2014 Farm Bill), which increased the minimum number of varieties
SNAP retail food stores must carry in each staple food category from
three (3) to seven (7) as well as the minimum number of varieties that
must be perishable from one variety in each of two (2) different staple
food categories to one variety in each of three (3) different staple
food categories. This rule would also update and codify the existing
criteria for accessory foods (snacks, desserts, and foods meant to
complement or supplement meals), which are not counted as staple foods
for purposes of meeting the staple food stocking or sales requirements
for SNAP retailer eligibility. This proposed rule will primarily affect
small SNAP-authorized retailers (convenience stores, small grocery
stores, and combination stores) who are currently authorized under
Criterion A.
Benefits: The proposed rule will increase the variety of staple
food products offered for sale at SNAP-authorized firms, which will
help to ensure that SNAP households have access to healthier foods on a
continuous basis.
Costs: The Department has estimated the proposed rule's total cost
to the Federal Government as approximately $4 million in fiscal year
(FY) 2027, and to incur no further costs after implementation. The cost
to currently authorized retailers is estimated to be approximately $55
million in the first year and about $2 million per year over the
following four years.
Initial Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) (as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996; 5 U.S.C. 601 et seq.), agencies must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
FNS believes the rule would not present a significant economic impact
to a substantial number of small businesses. Although the number of
stores impacted is large, we estimate that the cost to those small
businesses of the changes in this rule would be nominal, on average
about $262 in the first year and $374 over five years for those stores
that need additional varieties to comply with this rule. USDA welcomes
comment on any factors that that might be specific to the impacts of
the proposed rule on small businesses, and potential data sources to
quantify such impacts.
Unfunded Mandates Reform Act
This proposed rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
Tribal governments, or the private sector of $100 million or more in
any one year. Thus, the rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
This rule may contain policies that require consultation. USDA will
have a consultation before the issuing of the final rule and at a point
where Tribal feedback can be incorporated into the final rule. FNS will
work with the Office of Tribal Relations to ensure meaningful
consultation is provided.
[[Page 46088]]
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR
1320) requires the Office of Management and Budget (OMB) approve all
collections of information by a Federal agency before they can be
implemented. Respondents are not required to respond to any collection
of information unless it displays a current valid OMB control number.
In accordance with the Paperwork Reduction Act of 1995, this
proposed rule will contain information collections that are subject to
review and approval by the Office of Management and Budget; therefore,
FNS is submitting for public comment the changes in the information
collection burden that would result from adoption of the proposals in
the rule.
Comments on this proposed rule must be received by November 24,
2025. Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on those who
are to respond, including use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Title: SNAP--Store Applications.
OMB Control Number: 0584-0008.
Expiration Date: 4/30/2027.
Type of Request: Revision of a currently approved collection.
Abstract: This rule proposes to revise the SNAP regulations to
codify a new framework for determining distinct varieties of staple
foods for purposes of assessing retail food store eligibility to
participate in SNAP. To assist authorized retailers with the
implementation of this rule, the Department intends to provide written
notice to all authorized retailers outlining the changes to staple food
stocking requirements. Additionally, the Department may consider new
guidance for authorized retailers that further outlines these changes.
Finally, the Department anticipates that currently authorized retailers
may need to order additional stock to come into compliance with the
regulations. These activities are considered one-time burden. There is
no additional ongoing burden associated with this information
collection. The Department intends to revise the currently approved
information collection for SNAP--Store Applications (OMB Control Number
0584-0008, expiration 4/30/2027) to include the burden associated with
these activities while seeking a three-year renewal for the OMB control
number.
One Time Reporting Burden Estimates for Proposed Rule
Respondents: Businesses, For Profit.
Estimated Number of Respondents: 269,217. As of April 30, 2025,
there were 269, 217 SNAP-authorized retailers. Under this proposed
rule, each authorized retailer would review the written notice of
changes to SNAP staple food stocking requirements, review written
guidance aligning with the rule, and make any changes to current stock,
as necessary.
Estimated Number of Responses: 269,217. Each authorized retailer
would be expected to review the written notice and guidance and update
store stock, if necessary, one time.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: The estimated total
one-time burden for authorized retailers reviewing the notice and
guidance and updating stock is 1,126,167.85 hours.
Revised Reporting Burden for 0584-0008, Including Proposed Rule
Estimates
Respondents: Business.
Estimated Number of Respondents: 324,925.
Estimated Number of Responses: 394,102.
Estimated Number of Responses per Respondent: 1.212.
Estimated Total Annual Burden on Respondents: 1,126,167.85.
[[Page 46089]]
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total annualized Previously Differences
Type of respondents Estimated Responses Total annual Estimated Estimated Wage cost of approved Difference due to
Respondent category (affected public) (optional) Burden activity number of per responses hours per total burden Rate respondent burden due to program
respondents respondent response hours burden hours adjustments changes
(Col. H/F) (Col. F x G) (Col. J/H) (Col. H x I) (J * L)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Businesses, For Profit................... SNAP Authorized Retailers... Reviewing notice, reviewing 269,217.00 1.00 269,217.00 4.00 1,076,868.00 $49.89 $53,724,944.52 0 0 1076868.00
guidance, and updating
stock.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Start-up Reporting Burden................................................................. 269,217.00 1.00 269,217.00 4.00 1,076,868.00 49.89 53,724,944.52 0.00 0.00 1076868.00
Currently Approved Reporting Burden in 0584-0008................................................ 55,708.00 2.2 124,885.00 0.395 49,299.85 ....... 2,427,716.84 49,299.90 0.00 0
----------------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Total Reporting Burden in 0584-0008................................................... 324,925.00 1.2129014 394,102.00 2.8575543 1,126,167.85 ....... 56,152,661.36 49299.9 0 985064.00
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Additional information is available in the Supporting Statement and Excel chart.
[[Page 46090]]
E-Government Act Compliance
The Department is committed to complying with the E-Government Act,
2002 to promote the use of the internet and other information
technologies to provide increased opportunities for citizen access to
Government information and services, and for other purposes.
Executive Order 13132; Federalism Summary Impact Statement
The proposed rule does not impact States or local governments, so
FNS anticipates that this rule will not have implications for
federalism. Therefore, under Section 6(b) of the Executive Order, a
federalism summary is not required. States and local governments are
invited to comment if they believe a federalism summary is necessary.
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 this proposed
rule, Department of Agriculture Programs and Activities Excluded from
Executive Order 12372 (48 FR 29115, June 24, 1983), this Program is
excluded from the scope of Executive Order 12372.
Executive Order 12988, Civil Justice Reform
This proposed 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 that
conflict with its provisions or that would otherwise impede its full
implementation. This rule is not intended to have retroactive effects.
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.
Civil Rights Impact Analysis
FNS has reviewed this proposed rule in accordance with Departmental
Regulations 4300-4, ``Civil Rights Impact Analysis'' and 1512-1,
``Regulatory Decision Making Requirements'' to identify and address any
major civil rights impacts the proposed rule might have on minorities,
women, persons with disabilities, or other protected classes. FNS does
not collect data from retail food stores regarding any of the protected
classes under Title VI of the Civil Rights Act of 1964, and FNS
specifically prohibits retailers that participate in SNAP from engaging
in actions that discriminate based on race, color, national origin,
sex, age, disability, religion, or political belief. After careful
review, FNS has determined that the intent of this proposed rule is not
to have an adverse impact on any retail food store owners or SNAP
recipients belonging to protected classes and would not limit equal
access to retailer participation. The rule concerns only those retail
food stores participating in SNAP that would not meet the increased
staple food stocking requirements necessary for SNAP authorization that
were mandated by the 2014 Farm Bill and codified in the 2016 final
rule. The proposed regulatory changes are intended to make the staple
food stocking standards more intuitive so that those retail stores,
which are primarily small format retailers, are better able to
understand and meet the enhanced stocking requirements of the 2016
final rule. For retailers with limited English proficiency, FNS will
ensure that all retailers are made aware of FNS telephonic translation
services offered upon request.
List of Subjects
7 CFR Part 271
Food stamps, Grant programs--Social programs, Reporting and
recordkeeping requirements.
7 CFR Part 278
Banks, banking, Food stamps, Grant programs--social programs,
Penalties, Reporting and recordkeeping requirements, Surety bonds.
Accordingly, 7 CFR parts 271 and 278 are proposed to be amended as
follows:
0
1. The authority citation for parts 271 and 278 continues to read as
follows:
Authority: 7 U.S.C. 2011-2036.
PART 271--GENERAL INFORMATION AND DEFINITIONS
0
2. In Sec. 271.2:
0
a. Add definitions for Accessory food and Prepared food in alphabetical
order;
0
b. Revise subparagraph (1) of the definition of Retail food store; and
0
c. Revise the definition of Staple food.
The additions and revisions read as follows:
Sec. 271.2 Definitions.
* * * * *
Accessory food means food that is generally considered a snack food
or dessert, food that is meant to complement or supplement meals, or
food used primarily in the meal preparation process as listed at Sec.
278.1(b)(7). Accessory foods are not defined by package size and shall
not be considered staple foods for purposes of meeting retail food
store staple food stocking or sales requirements for SNAP
participation.
* * * * *
Prepared Food means hot or cold food or beverages ready for
immediate consumption that are assembled, cooked, mixed, or otherwise
made ready for immediate consumption by the retailer on the premises of
the firm, except for bread that otherwise counts as staple food. This
definition also includes hot or cold food or beverages intended for
onsite consumption regardless of whether it is assembled, cooked,
mixed, or otherwise made by the retailer. Prepared food does not
include food that is only cut or sliced on the premises of the firm,
but which is not otherwise made ready for immediate consumption by the
retailer or intended for onsite consumption. Prepared foods shall not
be considered staple foods for purposes of Sec. 278.1(b).
* * * * *
Retail food store means:
(1) An establishment or house-to-house trade route that sells food
for home preparation and consumption and meets the criteria as set
forth in Sec. 278.1(b).
* * * * *
Staple food means food intended for home preparation and
consumption, excluding accessory foods, in each of the following four
categories: (1) protein, including plant-based sources; (2) grains; (3)
vegetables or fruits; and (4) dairy, including plant-based
alternatives.
* * * * *
PART 278--PARTICIPATION OF RETAIL FOOD STORES, WHOLESALE FOOD
CONCERNS AND INSURED FINANCIAL INSTITUTIONS
0
3. In Sec. 278.1:
0
a. Revise subparagraph (b)(1)(i)(A);
0
b. Revise subparagraph (b)(1)(ii); and
0
c. Redesignate subparagraph (b)(7) as subparagraph (b)(9) and add new
subparagraphs (b)(7) and (b)(8).
The revisions and additions read as follows:
Sec. 278.1 Approval of retail food stores and wholesale food
concerns.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(A) An establishment or house-to-house trade route shall normally
be
[[Page 46091]]
considered to have food business of a nature and extent that will
effectuate the purposes of the program if it sells food for home
preparation and consumption and meets either Criterion A or B of this
paragraph.
* * * * *
(ii) Application of Criterion A.
(A) Stocking Standards. To qualify under Criterion A, retail food
stores shall offer for sale no fewer than:
(1) Seven (7) distinct varieties of staple food items in each of
the four staple food categories, as defined under Sec. 271.2 of this
chapter, for a minimum of 28 distinct staple food varieties;
(2) Three (3) stocking units of each qualifying staple food
variety, for a minimum of 84 stocking units; and
(3) One (1) variety of perishable foods in three different staple
food categories so that a minimum of three (3) of the 28 varieties and
nine (9) of the 84 stocking units are perishable.
(B) Offer on a Continuous Basis. Retail food stores must offer the
qualifying staple food items for sale on a continuous basis, as
evidenced by displaying the items for sale in a public area on any
given day of operation.
(1) If a retail food store does not meet the stocking requirements
at the time of an FNS store visit, the store may provide documentation
that it ordered and/or received the required stock no more than 21
calendar days prior to the date of the store visit. Documentation may
include, but is not limited to, invoices and receipts.
(2) Failure to provide documentation related to stock may result in
denial or withdrawal of authorization. Failure to cooperate with FNS
store visits shall result in the denial or withdrawal of authorization.
(C) Distinct Staple Food Varieties. Foods within the same staple
food category that differ by type (e.g., apple vs. orange), the kind of
animal from which the staple food is derived (e.g., cow vs. chicken),
or by raw or main ingredient are considered distinct staple food
varieties. Multi-ingredient foods are categorized based on the food's
main ingredient. The main ingredient of a multi-ingredient food is the
first ingredient other than water, broth, or stock listed on the
ingredient list.
(1) The following foods are considered distinct staple food
varieties from foods of the same type or kind, and from foods with the
same raw or main ingredient:
(i) Dry Beans, Peas, and Lentils (with no other ingredients and
each counting as only one staple food variety regardless of the number
of dry bean, dry pea, or dry lentil types offered);
(ii) Raw Grains (e.g., rice and barley with no other ingredients);
and
(iii) Flour (made from raw grains with no other ingredients;
(2) The following foods are considered only one distinct staple
food variety regardless of type, kind, or raw or main ingredient (e.g.,
rice noodles are the same variety as wheat noodles):
(i) Eggs;
(ii) Perishable Meat, Poultry, or Fish (for each different kind of
animal)
(iii) Shelf-Stable Meat, Poultry, or Fish (for each different kind
of animal)
(iv) Tofu/Tempeh;
(v) Bread;
(vi) Pasta/Noodles;
(vii) Breakfast Cereals/Foods;
(viii) Perishable Liquid Milk;
(ix) Shelf-stable Liquid Milk;
(x) Cream (other than butter);
(xi) Fermented/Cultured Dairy Beverages;
(xii) Dried/Powdered Milk;
(xiii) Cheese;
(xiv) Yogurt (non-liquid);
(xv) Butter;
(xvi) Infant Formula; and
(xvii) Infant Cereal.
(3) Plant-Based or Grain Alternatives.
(i) Plant-based dairy alternatives shall be considered distinct
dairy staple food varieties from the traditional variety for which they
are a substitute and may count for up to three (3) varieties as long as
the main ingredient is not an accessory food.
(ii) Nuts/seeds, beans, peas, and lentils shall count in the
protein category.
(4) No food product can count as a variety in more than one staple
food category.
(5) Unless specified under subparagraphs (b)(1)(ii)(C)(1) or (2) of
this section, the following are not considered distinct staple food
varieties:
(i) Different brands, flavorings, packaging, or preparation, such
as, but not limited to: different cuts of meat, juiced versus whole
fruits, processed or cooked meat versus raw meat, chocolate versus
plain milk, etc.
(ii) Different kinds of the same type of food, such as, but not
limited to: brown and white rice, pinto and kidney beans, granny smith
and gala apples, whole and skim milk, etc.
* * * * *
(7) Accessory Foods. Accessory foods as defined at Sec. 271.2 of
this chapter do not count as staple foods for purposes of retail food
store eligibility and include:
(i) Snack and Dessert Food Items.
(A) Chips and other finger snacks, including but not limited to,
potato, corn, wheat, tortilla, pita, vegetable, and fruit chips,
crisps, sticks, and straws; onion ring snacks; corn nuts; snack and
trail mixes (other than those containing only nuts); crackers; pork
rinds; pretzels; pre-popped or un-popped popcorn; and cheese puffs or
curls.
(B) Baked, gelatin, and pudding desserts, including but not limited
to, doughnuts, brownies, cupcakes, cookies, snack cakes, muffins,
pastries, sweet rolls, pies, cakes, churros, scones, pudding, and any
packaged mixes intended to create any of the aforementioned products;
(C) Frozen snacks and desserts, including but not limited to, ice
cream, ice milk, frozen yogurt, custard, whipped cream, sherbet,
sorbet, gelato, granita, Italian ices, frozen carbonated beverages,
snow cones, and ice pops;
(D) Candy and chocolate, including but not limited to, mints,
chocolate chips, marshmallow, gum, toffee, brittle, fudge, marzipan,
nougat, and candy bars;
(E) Snack bars, including but not limited to, protein, granola
bars, and baked bars; and
(F) Jerky, other than whole-muscle meat jerky, including but not
limited to beef jerky and plant-based jerky.
(ii) Food Items that Complement or Supplement Meals.
(A) Carbonated and uncarbonated beverages (except milk, plant-based
milk alternatives, and 100% fruit or vegetable juice), including but
not limited to, soda pop, sports or energy drinks, iced tea, tea bags,
fruit punch, mixers for alcoholic beverages, shake powder/mixes, and
water;
(B) Condiments, including but not limited to, ketchup, mayonnaise,
mustard, salad dressing, hot sauce, vinegar, relish, horseradish,
chutney, salsa, and soy sauce;
(C) Cheese or fruit dips and spreads, including but not limited to,
cheese sprays, jams, jelly, marmalade, preserves, and compote;
(D) Sweeteners, including but not limited to, sugar, honey, maple
syrup, aspartame, molasses, high fructose corn syrup, and any other
natural or artificial sweeteners;
(iii) Edible items primarily used as part of the food preparation
process.
(A) Extracts, including vanilla and other flavor extracts;
(B) Powdered, dried, and extracted spices or seasonings;
(C) Baking soda, baking powder, yeast, and starch;
(D) Vegetable oil, olive oil, shortening, lard, safflower oil, and
any other solid or liquid cooking oils or fats (except butter and
butter substitutes);
(E) Broth, stock, gelatin, and bouillon;
(F) Edible but non-caloric and non-digestible food products,
including but
[[Page 46092]]
not limited to, monosodium glutamate, sodium nitrate, olestra, and any
other food additives.
(iv) Any food product with a main ingredient (i.e., the first
ingredient other than water, broth, or stock listed on the ingredient
list) that appears on this list as an accessory food item except infant
formula.
(8) Separate businesses that operate under one roof are considered
a single firm for purposes of determining eligibility to participate as
a SNAP retail food store if both businesses:
(i) Share the same ownership in whole or in part;
(ii) Sell similar foods; and
(iii) Share inventory.
* * * * *
James C. Miller,
Administrator.
[FR Doc. 2025-18624 Filed 9-24-25; 8:45 am]
BILLING CODE P