[Federal Register Volume 59, Number 166 (Monday, August 29, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-21245] [[Page Unknown]] [Federal Register: August 29, 1994] VOL. 59, NO. 166 Monday, August 29, 1994 DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 273 [Amdt. No. 357] RIN 0584-AB77 Food Stamp Program: Disqualification Penalties for Intentional Program Violations AGENCY: Food and Nutrition Service (FNS), USDA. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: FNS is proposing to amend Food Stamp Program regulations by increasing the disqualification penalties for individuals who are found guilty in a Federal, State or local court of trading or receiving food stamp coupons (coupons) for firearms, ammunition, explosives or controlled substances. This proposal is aimed at deterring recipient abuse in the Food Stamp Program. This rule also proposes changes to the procedures for establishing intentional Program violations. These changes are based on recommendations from State agencies and the Department's Office of the General Counsel (OGC). DATES: Comments on this proposed rulemaking must be received by October 28, 1994 to be assured of consideration. Only written comments will be accepted. ADDRESSES: Comments should be submitted to James I. Porter, Supervisor, Issuance and Accountability Section, State Administration Branch, Program Accountability Division, Food Stamp Program, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302. All written comments will be open for public inspection during regular business hours (8:30 am to 5:00 pm, Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia, Room 905. FOR FURTHER INFORMATION CONTACT: Questions regarding this proposed rulemaking should be directed to Mr. Porter at the above address or by telephone at (703)305-2385. SUPPLEMENTARY INFORMATION: Executive Order 12866 This proposed rule has been determined to be not significant for purposes of Executive Order 12866, and therefore has not been reviewed by the Office of Management and Budget. Executive Order 12372 The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule at 7 CFR 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials. Executive Order 12778 This proposed rule has been reviewed under Executive Order 12778, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the ``Implementation'' section of this preamble. Prior to any judicial challenge to the provisions of this proposed rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program the administrative procedures are as follows: (1) For program benefit recipients--State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(10) and 7 CFR 273.15; (2) for State agencies--administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-QC liabilities) or 7 CFR 275.23 (for rules related to QC liabilities); (3) for program retailers and wholesalers-- administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8. Regulatory Flexibility Act This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 94 Stat. 1164, September 19, 1980). William E. Ludwig, Administrator of the Food and Nutrition Service, has certified that this rule does not have a significant economic impact on a substantial number of small entities. The requirements will affect State and local agencies that administer the Food Stamp Program by simplifying the requirements for giving advance notice of hearing to food stamp recipients. It will also modify the penalties applicable to individuals who engage in Program misconduct. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3507), the reporting and recordkeeping burden associated with this proposed rule has been approved by the Office of Management and Budget (OMB) under OMB number 0584-0064. The provisions of this rule do not contain any additional reporting and/or recordkeeping requirements subject to OMB approval. Background The Mickey Leland Childhood Hunger Relief Act (Pub. L. 103-66) (Leland Act) amended the Food Stamp Act of 1977 (7 U.S.C. 2011-2021) (the Act) in a number of ways. This rule proposes to implement the nondiscretionary provisions of the Leland Act relating to disqualification penalties for intentional Program violations. Other provisions of the Leland Act are being addressed in separate rules. This rule proposes to implement the disqualification penalties for individuals who are found guilty in a Federal, State or local court of trading or receiving coupons for firearms, ammunition, explosives or controlled substances. This rule also proposes regulatory changes with regard to the delivery of administrative disqualification hearing notices and the initiation of disqualification periods for intentional Program violations. In addition, this rule proposes to eliminate two model forms referred to under 7 CFR 273.16 of the current regulations. I. Disqualification Penalties for Intentional Program Violations An intentional Program violation is defined in 7 CFR 273.16(c) as, ``having intentionally (1) Made a false or misleading statement or misrepresented, concealed or withheld facts or, (2) committed any act that constitutes a violation of the Food Stamp Act, the Food Stamp Program Regulations, or any State statute relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp coupons or ATP's [Authorization to Participate cards].'' As reflected by current regulations at 7 CFR 273.16(b), Section 6(b)(1) of the Act (7 U.S.C. Sec. 2015 (b)(1)) establishes a graduated system of intentional Program violation disqualification penalties. Under this system, individuals receive a mandatory disqualification of 6 months for the first offense or 12 months for the second offense, and a permanent disqualification for the third offense. Under the current regulations, there is no distinction in penalties for different types of conduct which result in an intentional Program violation finding. The Leland Act changes this. It amends Section 6(b)(1) of the Act to increase the penalties for intentional Program violations which involve certain egregious conduct. Specifically, the Leland Act requires that an individual be disqualified for 12 months for a first finding by a court, and permanently for a second finding by a court that the person has either traded or received controlled substances using coupons. The Leland Act also requires that an individual be permanently disqualified for the first finding by a court that the individual has either traded or received firearms, ammunition, or explosives using coupons. Accordingly, the Department proposes to amend 7 CFR 273.16 by revising paragraph (b) to include the new penalties. The Department is also proposing to make conforming amendments to 7 CFR 273.16(e)(3)(i)(F) and 7 CFR 273.16(h)(1)(ii)(c). The applicability of the new penalties to the Disqualified Recipient Subsystem under 7 CFR 273.16(i) will be addressed in a different rulemaking. The language being proposed in Sec. 273.16(b) states that the new penalties will apply to applicable violations involving the use of ``coupons.'' In addition to violations involving traditional paper coupons, the Department believes that the increased penalties also apply to violations involving trafficking in alternative benefit issuance systems such as electronic benefit transfer (EBT). Current regulations at 7 CFR 271.2 define a ``coupon'' as ``any coupon, stamp, access device or type of certification provided * * * for the purchase of eligible food.'' Since alternative forms of benefit issuance systems, such as EBT, are included in this definition, providing additional language in Sec. 273.16(b) of the proposed rule regarding this issue and the extent of applicability is unnecessary. Current regulations at 7 CFR 273.2(b)(ii) and 7 CFR 273.16(d) require that the disqualification penalties be included on the Food Stamp Program application form. In order to satisfy this requirement, the Department issued an implementation memorandum on March 16, 1994, requiring that State agencies are to modify the application to reflect the new penalties by the September 1, 1994 implementation date. In preparing this proposed rule, the Department considered whether the increased penalties apply to violations settled by deferred adjudications. A deferred adjudication, as specified in 7 CFR 273.16(h) of the current regulations, is when a determination of guilt by a court is deferred subject to the accused individual meeting the terms of an agreement with a prosecutor or of a court order. The statutory language provides for the increased penalties to take effect where there is an actual court finding that the intentional Program violation involved trading firearms, ammunition, explosives or controlled substances for coupons. Accordingly, the increased penalties will be applied under this rule in cases of deferred adjudication where the court makes such a finding. We note that the statute does not speak of a ``conviction'' but rather of a ``finding by a Federal, State or local court.'' Since court rules generally require a finding of culpability in jurisdictions where deferred adjudication procedures are used, the Department believes the increased penalties would apply if such a finding has been made, even though the final adjudication is deferred. If, for any reason, final adjudication is deferred and no finding of culpability is made by the court, the increased administrative penalties would not apply until such a finding is made or final adjudication is reached. It is the Department's intent in this proposed rule to allow the inclusion of the increased penalties in signed deferred adjudication agreements in exactly the same manner that the existing penalties are currently included in such agreements. Accordingly, the Department proposes to amend 7 CFR 273.16 by revising paragraph (b) to specify that the increased penalties shall also apply to signed deferred adjudication agreements. We encourage comments on this proposed amendment. The Department is also proposing to make a conforming amendment to 7 CFR 273.16(h)(1)(ii)(C). As opposed to deferred adjudication, since there is no formal involvement or inclusion of a Federal, state or local court process in the administrative disqualification hearing system, the Department is proposing that the increased penalties not apply to intentional Program violations determined as a result of an administrative disqualification hearing or a signed waiver of the right to an administrative disqualification hearing. The second sentence in paragraph (b) of 7 CFR 273.16 in the current regulations concerns the treatment of disqualifications which occurred prior to the implementation of the current disqualification penalties. The Department is proposing to amend paragraph (b) by breaking this sentence out into its own paragraph, paragraph (6) in Sec. 273.16(b) of the proposed rule, and specifying which penalties apply to this policy. The Department is also proposing to make a conforming amendment to 7 CFR 273.16(i)(5). There is no intent on the part of the Department to change the effect of this provision as it applies to the existing penalties. This specific revision is being proposed solely to provide clarification. Regarding the application of the new penalties for trading or receiving coupons for firearms, ammunition, explosives or controlled substances, the increased penalties apply to court findings which occur subsequent to the effective date of Section 13942 of the Leland Act-- September 1, 1994--as reflected in a new paragraph Sec. 273.16(b)(7) in the proposed rule. The third sentence in 7 CFR 273.16(b) in the current regulations discusses the disqualification procedure if a disqualification period is not imposed by the court. The current procedure requires the State agency to impose the appropriate penalty unless it is contrary to the court order. The Department is proposing to retain this policy and to apply it to the proposed increased penalties. Accordingly, the Department is proposing to amend the existing provision to include the increased penalties. In keeping with the proposed reorganization of 7 CFR 273.16(b), the provision is also being separated into its own paragraph, Sec. 273.16(b)(5). In addition, the Department is proposing to retain its current policy in 7 CFR 273.16(b) regarding the disqualification of the individual as opposed to the entire household. The Department is also proposing to retain its current policy in 7 CFR 273.16(b) that the household, and not just the individual, is responsible for repayment of the debt. However, the Department is proposing to break these policies out into their own respective paragraphs, Sec. 273.16(b)(8) and (9) of the proposed rule. The current regulations at 7 CFR 273.16(b) include some of the claim establishment and collection procedures for intentional Program violations. As this subject is covered in greater detail in 7 CFR 273.18 of the current regulations, the Department is proposing to eliminate repetition by amending 7 CFR 273.16(b) to remove the specific procedures and replace it with Sec. 273.16(b)(9) which states that all claims should be established and collected in accordance with the procedures set forth in 7 CFR 273.18 in the current regulations. The procedures for establishing and collecting intentional Program violations found in 7 CFR 273.18 of the current regulations are not affected by this proposed rule. II. Advance Notice of Administrative Disqualification Hearings Under the current regulations at 7 CFR 273.16(e)(3), ``proof of receipt'' of a written advance notice must be obtained prior to conducting a scheduled administrative disqualification hearing. State agencies have found this requirement to be burdensome, costly and inconsistent with other Federal programs they administer. Regular mail service is an inexpensive and efficient mechanism to provide notice that an individual's rights are being affected. In addition, the Texas Department of Human Services is currently operating under a Departmental waiver which allows the State agency to conduct disqualification hearings without obtaining proof of receipt of the advance notice. Data collected from the State agency revealed that only four recipients, out of a total of 3,931 administrative disqualification hearing notices mailed from November 1992 to September 1993, subsequently claimed that their respective notices were never received. Therefore, in an effort to increase Program efficiency while lowering administrative costs, the Department is proposing to amend 7 CFR 273.16(e)(3) to allow State agencies the option of delivering these advance notices via first class mail. In addition, the Department is proposing to eliminate the proof of receipt requirement where the State agency elects an alternative method of delivery. In order to safeguard the rights of recipients who may be affected by this proposed rule, the Department is proposing to make a claim of non-receipt of an advance notice, unless proof of receipt was obtained by the State agency, a good cause criterion under 7 CFR 273.16(e)(4). If the household member shows non-receipt of the notice in a timely fashion, any previous decision determined in absentia would no longer remain valid and the State agency would conduct a new hearing. We are especially interested in receiving comments on this proposal. III. Imposition of Disqualification Penalties Section 6(b)(1) of the Act (7 U.S.C. 2015(b)(1)) states that an individual who has been found to have committed an intentional Program violation shall ``immediately'' become ineligible for further participation in the Food Stamp Program for the length of the disqualification period. However, the language currently used in paragraphs (a), (e), (f), (g) and (h) of 7 CFR 273.16 specifies that, if the individual is not participating in the Program at the time the disqualification is to begin, the disqualification period is to be ``postponed'' until the individual applies for and is determined eligible to receive Program benefits. The Department found that the use of the word ``postponed'' in the current regulations, when compared to ``immediately'' in the Act, may be the cause of confusion which has recently led to some court suits. There is concern because an exacting interpretation of ``immediately'' would result in the disqualification period beginning at once for the specified length of time regardless of whether the individual is eligible to participate in the Program. Under this interpretation, the worst offenders, those who concealed steady employment and large amounts of income in order to obtain food stamps, are unlikely to be penalized at all since their level of income and/or resources, once discovered, would prevent them from participating in the Program during the period of time covered by the disqualification penalty. Since the legislative intent (Senate Report No. 128, 97th Congress, 1st Session, pages 54 and 55) is to strengthen the laws applying to Program violators, the Department strongly believes that allowing individuals to escape without penalty is contrary to this intent. In addition, the Department feels that the concept expressed in the Act of becoming ineligible for further participation, to which an immediate disqualification period applies, implies that an individual is either participating or has been determined eligible to participate. It simply defies common sense to have periods of disqualification run concurrently with periods of ineligibility. Therefore, the Department is proposing to clarify existing regulations at 7 CFR 273.16(a), (e), (f), (g) and (h) by stating that an individual disqualified while not currently participating in the Program would have his/her disqualification period begin immediately after applying for and becoming eligible to receive benefits. The Department is also proposing to make an additional revision to paragraphs (a), (e), (f), (g) and (h) in 7 CFR 273.16 by replacing ``participating'' with ``certified to participate'' where reference is made to the imposition of the disqualification period. This is being proposed to clarify the Department's position regarding the timing of the imposition of disqualification penalties in instances such as when an individual is found eligible for the Program but technically does not ``participate'' by failing to redeem an intermediary document such as an authorization to participate card (ATP). The proposed rule makes clear the Department's position that the State agency should begin the disqualification period against an individual provided that individual's household is certified to participate in the Program regardless of whether an ATP or similar document has been redeemed. IV. Model Forms The current regulations at 7 CFR 273.16(e) make two references to FNS providing model forms for adaptation by State agencies. The first model form, referred to in 7 CFR 273.16(e)(3)(iii), is for providing advance notice of an administrative disqualification hearing. The second form, referred to in 7 CFR 273.16(e)(9)(iii), provides a model for notifying individuals of administrative action taken in their administrative disqualification hearing. The primary purpose for furnishing these forms was to assist State agencies with the initial implementation of the current regulations when they were originally published in 1983. Since that time, most State agencies have designed their own State-specific forms based on regulatory requirements, thus reducing the effectiveness of and need for these models. As part of an ongoing effort to do away with unnecessary Federal forms while affording State agencies maximum flexibility, the Department is proposing to eliminate these model forms by deleting the sentences in 7 CFR 273.16(e)(3)(iii) and 7 CFR 273.16(e)(9)(iii) which make reference to the forms. However, FNS will continue to provide State agencies with guidance and assistance for form development or changes to forms necessitated by revisions to the regulations. Implementation Section 13971 of the Leland Act sets effective dates for the various provisions of the law. Section 13971(6)(4) provides that the provision in Section 13942, which amends Section 6(b) of the Act (7 U.S.C. 2015(b)(1)) to enhance certain intentional Program violation disqualification penalties, is effective and shall be implemented on September 1, 1994. Current regulations at 7 CFR 273.2(b)(ii) and 7 CFR 273.16(d) require that the notice of disqualification penalties be included on the Food Stamp application form. Therefore, the Department, on March 16, 1994, issued an implementation memorandum stating that notice of the enhanced intentional Program violation disqualification penalties is to be included on the Food Stamp application form by September 1, 1994. List of Subjects in 7 CFR Part 273 Administrative practice and procedure, Aliens, Claims, Food Stamps, Fraud, Grant programs--social programs, Penalties, Reporting and recordkeeping requirements, Social security, Students. For the reasons set out in the preamble, 7 CFR Part 273 is proposed to be amended as follows: 1. The authority citation for Part 273 continues to read as follows: Authority: 7 U.S.C. 2011-2032. PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS 2. In Sec. 273.16: a. The last sentence of paragraph (a)(1) is revised; b. Paragraph (b) is revised; c. The second sentence of the introductory text of paragraph (e)(3)(i) is removed, and four new sentences are added in its place; d. Paragraph (e)(3)(i)(F) is revised; e. The last sentence of paragraph (e)(3)(iii) is removed; f. Paragraph (e)(8)(iii) is revised; g. The last sentence of paragraph (e)(9)(iii) is removed; h. Paragraph (f)(2)(iii) is revised; i. Paragraph (g)(2)(ii) is revised; j. Paragraph (h)(1)(ii)(C) is revised; k. Paragraph (h)(2)(ii) is revised; and l. The second sentence of paragraph (i)(5) is revised. The revisions and additions read as follows: Sec. 273.16 Disqualification for intentional Program violation. (a) Administrative responsibility. (1) * * * The disqualification period for nonparticipants at the time of the administrative disqualification or court decision shall take effect immediately after the individual applies for and is determined eligible for Program benefits. * * * * * (b) Disqualification penalties. (1) Individuals found to have committed an intentional Program violation either through an administrative disqualification hearing or by a Federal, State or local court, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement in cases referred for prosecution, shall be ineligible to participate in the Program: (i) For a period of six months for the first intentional Program violation, except as provided under paragraphs (b)(2) and (b)(3) of this section; (ii) For a period of twelve months upon the second occasion of any intentional Program violation, except as provided in paragraphs (b)(2) and (b)(3) of this section; and (iii) Permanently for the third occasion of any intentional Program violation. (2) Individuals found by a Federal, State or local court to have used or received coupons in a transaction involving the sale of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) shall be ineligible to participate in the Program: (i) For a period of twelve months upon the first occasion of such violation; and (ii) Permanently upon the second occasion of such violation. (3) Individuals found by a Federal, State or local court to have used or received coupons in a transaction involving the sale of firearms, ammunition or explosives shall be permanently ineligible to participate in the Program upon the first occasion of such violation. (4) The penalties in paragraphs (b)(2) and (b)(3) of this section shall also apply in cases of deferred adjudication as described in paragraph (h) of this section where the court makes a finding that the individual engaged in the conduct described in paragraph (b)(2) or (b)(3) of this section. (5) If a court fails to impose a disqualification period for any intentional Program violation, the State agency shall impose the appropriate disqualification penalty specified in paragraph (b)(1), (b)(2) or (b)(3) of this section unless it is contrary to the court order. (6) One or more intentional Program violations which occurred prior to the State agency's implementation of the disqualification periods specified in paragraphs (b)(1)(i), (b)(1)(ii) or (b)(1)(iii) of this section shall be considered as only one previous disqualification when determining the appropriate penalty to impose in a case under consideration. (7) Regardless of when an action taken by an individual which caused an intentional Program violation occurred, the disqualification periods specified in paragraphs (b)(2) and (b)(3) of this section shall apply to any case in which the court makes the requisite finding on or after September 1, 1994. (8) State agencies shall disqualify only the individual found to have committed the intentional Program violation, or who signed the waiver of the right to an administrative disqualification hearing or disqualification consent agreement in cases referred for prosecution, and not the entire household. (9) Even though only the individual is disqualified, the household, as defined in Sec. 273.1, is responsible for making restitution for the amount of any overpayment. All intentional Program violation claims shall be established and collected in accordance with the procedures set forth in Sec. 273.18. * * * * * (e) Disqualification hearings. * * * (3) Advance notice of hearing. (i) * * * If mailed, the notice shall be sent either first class mail or certified mail- return receipt requested. The notice may also be provided by any other reliable method. If no proof of receipt is obtained, a showing of non-receipt by the household member shall be considered good cause for not appearing at the hearing. The notice shall contain at a minimum: * * * * * (F) A warning that a determination of intentional Program violation will result in disqualification periods as determined by paragraph (b) of this section, and a statement of which penalty the State agency believes is applicable to the case scheduled for a hearing; * * * * * (8) Imposition of disqualification penalties. * * * (iii) If the individual is not certified to participate in the Program at the time the disqualification period is to begin, the period shall take effect immediately after the individual applies for and is determined eligible for benefits. * * * * * (f) Waived hearings. * * * (2) Imposition of disqualification penalties. * * * (iii) If the individual is not certified to participate in the Program at the time the disqualification period is to begin, the period shall take effect immediately after the individual applies for and is determined eligible for benefits. * * * * * (g) Court Referrals. * * * (2) Imposition of disqualification penalties. * * * (ii) If the individual is not certified to participate in the Program at the time the disqualification period is to begin, the period shall take effect immediately after the individual applies for and is determined eligible for benefits. * * * * * (h) Deferred adjudication. * * * (1) Advance notification. * * * (ii) * * * (C) A warning that the disqualification periods for intentional Program violations under the Food Stamp Program are as specified in paragraph (b) of this section, and a statement of which penalty will be imposed as a result of the accused individual having consented to disqualification. * * * * * (2) Imposition of disqualification penalties. * * * (ii) If the individual is not certified to participate in the Program at the time the disqualification period is to begin, the period shall take effect immediately after the individual applies for and is determined eligible for benefits. * * * * * (i) Reporting requirements. * * * (5) * * * However, one or more intentional Program violations which occurred prior to the State agency's implementation of the disqualification periods specified in paragraph (b)(1) of this section shall be considered as only one previous disqualification when determining the appropriate penalty to impose in a case under consideration, regardless of where the disqualification(s) took place. * * * * * * * * Dated: August 24, 1994. William E. Ludwig, Administrator, Food and Nutrition Service. [FR Doc. 94-21245 Filed 8-26-94; 8:45 am] BILLING CODE 3410-30-U