[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Proposed Rules]
[Pages 24985-24995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12038]


 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 63, No. 87 / Wednesday, May 6, 1998 / 
Proposed Rules  

[[Page 24985]]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271, 278 and 279

RIN 0584-AC46


Food Stamp Program: Retailer Integrity, Fraud Reduction and 
Penalties

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed Rule

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SUMMARY: The purpose of this proposed rule is to implement the Food 
Stamp Program retailer provisions included in the Personal 
Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 
1996, as well as the retailer provision included in the Federal 
Agriculture Improvement and Reform Act. While a number of amendments to 
the current regulations are proposed in order to meet the objectives of 
streamlining the regulations in response to the Departmental review of 
the regulations, the majority of the proposed changes included in this 
proposal are derived from the retailer provisions of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996. Most of 
the provisions in this proposed rule are nondiscretionary and required 
by law. The intent of this rule is to strengthen integrity and 
eliminate fraud in the Food Stamp Program by ensuring that only 
legitimate stores participate in the program, by improving the 
Department's ability to monitor authorized firms, and by strengthening 
penalties against firms that violate program rules.

DATES: Comments must be received by July 6, 1998 to be assured of 
consideration. Comments on the discretionary provisions identified in 
this rule are encouraged. Comments will not affect implementation of 
those provisions identified as nondiscretionary that are mandated by 
law and over which the Secretary has no discretion.

ADDRESSES: Comments should be addressed to Suzanne Fecteau, Chief, 
Redemption Management Branch, Food and Nutrition Service, 3101 Park 
Center Drive, Alexandria, Virginia 22302-1594. All written comments 
will be open for public inspection at the office of the Food and 
Consumer Service during regular business hours (8:30 a.m. to 5 p.m., 
Monday through Friday) in Room 706, 3101 Park Center Drive, Alexandria, 
Virginia.

FOR FURTHER INFORMATION CONTACT: Questions regarding this rulemaking 
should be addressed to Suzanne Fecteau, Chief, Redemption Management 
Branch, Benefit Redemption Division, Food Stamp Program, 3101 Park 
Center Drive, Alexandria, Virginia 22302, or by telephone at (703) 305-
2418.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule has been determined to be not significant under 
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 and related notice(s) to 7 CFR Part 3015, Subpart V (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.

Regulatory Flexibility Act

    This proposed rule has been reviewed with regard to the 
requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 
Sec. 601-612). Yvette S. Jackson, the 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. 
This rule may have an effect on a limited number of retail food stores 
and other entities that are shown to be negligent in effectuating the 
purposes of the FSP by committing violations or fraud in the program. 
However, we do not believe this will have a significant effect on most 
small businesses.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, this notice 
announces our intent to submit revised application procedures and 
associated burden estimates to OMB for approval relative to the 
application(s) completed by retail food stores and meal service 
providers to request authorization and/or continued authorization to 
participate in the Food Stamp Program (FSP). We also intend to request 
OMB approval of the revised estimates for 3 years.
    Comments on this notice must be submitted by July 6, 1998.
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the performance of the functions of the 
agency, including whether the information will 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 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology.
    Comments may be sent to Laura Oliven, Desk Officer, Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20502 ( a copy may also be sent to Suzanne M. 
Fecteau, Chief, Redemption Management Branch, Benefit Redemption 
Division, Food and Nutrition Service, U.S. Department of Agriculture, 
3101 Park Center Drive, Alexandria, Va. 22302. For further information, 
or for copies of the information collection, please contact Ms. Fecteau 
at the above address.)
    All responses to this notice will be summarized and included in the 
request for OMB approval, and will become a matter of public record.
    For Further Information Contact: Suzanne M. Fecteau, (703) 305-
2418.
    Title: Food Stamp Program Store Applications.
    OMB Number: 0584-0008.
    Type of Request: Revision of a currently approved collection.
    Abstract: The Food and Nutrition Service (FNS) of the U.S. 
Department of Agriculture is the Federal agency responsible for the 
FSP. The Food

[[Page 24986]]

Stamp Act of 1977, as amended (the Act) (7 U.S.C. 2011-2036), requires 
that the Agency determine the eligibility of firms and certain food 
service organizations to accept and redeem food stamp benefits and to 
monitor them for compliance and continued eligibility.
    Part of FNS' responsibility is to accept applications from retail 
food establishments and meal service programs that wish to participate 
in the FSP, review the applications in order to determine whether or 
not applicants meet eligibility requirements, and make determinations 
whether to grant or deny authorization to accept and redeem food stamp 
benefits. FNS is also responsible for requiring updates to application 
information and reviewing that information to determine whether or not 
the firms or services continue to meet eligibility requirements.
    There are currently 3 application forms approved under OMB No. 
0584-0008. Together these forms are used by retailers, wholesalers, 
meal service providers, certain types of group homes, shelters, and 
state-contracted restaurants, to apply to FNS for authorization to 
participate in the FSP. Form FNS-252, Food Stamp Application For 
Stores, is generally used by stores, excluding facilities which provide 
meal services such as communal dining, shelters, restaurant and other 
meal service programs, which are newly applying for authorization; Form 
FNS-252R, Food Stamp Program Application For Stores-Reauthorization, is 
used by the majority of currently authorized stores to apply for 
reauthorization, excluding facilities which provide meal services such 
as communal dining, shelters, restaurants and other meal service 
programs; and Form FNS-252-2, Application to Participate in the Food 
Stamp Program for Communal Dining Facility/Others, generally used by 
communal dining and restaurant facilities and other food service 
programs which are newly applying or applying for reauthorization. In a 
few cases, at the discretion of the FNS field offices, some stores 
would be required to complete Form FNS-252 to apply for 
reauthorization. Section 9(c) of the Act provides the necessary 
authorization(s) to collect the information contained in these forms.
    The proposed revisions to the authorization process contained in 
Sec. 278.1(a) of this proposed rule do not impose new information 
collection, reporting or recordkeeping requirements. There are 3 
application forms used by firm's who wish to participate in the 
program. These forms and associated burden hours have been approved by 
OMB under OMB No. 0584-0008 through October 31, 1999. We are proposing 
to adjust the current burden estimates based on more recent data and a 
technical correction to capture a change in application requirements 
for private restaurants that was inadvertently omitted from the hourly 
burden estimates when last submitted to OMB and an error in estimating 
the average hourly burden time for Form FNS-252-2. Comments are 
solicited on the adjusted burden estimates as discussed in the 
following paragraphs and reflected in the summary chart at the end of 
this section of the preamble.
    We do not collect information on the number of FSP applications 
received annually. Current burden estimates associated with these 3 
application forms are determined from information maintained in STARS 
(Store Tracking and Redemption System) based on the total number of 
currently authorized stores or the number of newly authorized stores. 
The number of expected applications is divided between initial 
applications from new applicants and applications for reauthorization 
from currently authorized stores.

Adjustments--Re-estimates Based on More Recent Data and Corrections

    For burden estimates associated with new applicants (initial 
authorizations), we used the number of stores (all types) newly 
authorized/approved currently estimated at 20,696; (rounded to 20,700) 
based on FY 1997 year-end data from STARS and inflated this number by 
10% (2,070) to capture a total of 22,770 applications expected to be 
received and processed from stores annually. It is estimated that 98% 
(22,315) of the 22,770 applications expected to be received would be on 
Form FNS-252 and 2% (455) would be on Form FNS-252-2. Due to a 
technical correction discussed later in this section of the preamble, 
the number of expected applications would be further changed to reflect 
an expected total of 22,347 applications using Form FNS-252 and 423 
applications using Form FNS-252-2.
    For burden estimates associated with applications for 
reauthorization, we used the total number of stores (all types) 
authorized (184,300) as of December 1997. Generally, authorized stores 
are subject to reauthorization at least once every 4 years. Thus, it is 
estimated that 25% (46,000) of all authorized stores would be subject 
to reauthorization in any given year. Using, the number of authorized 
stores as of December 1997, it is estimated that 46,000 reauthorization 
applications would be expected to be received annually. Of the 46,000 
reauthorization applications expected, it is estimated that 96% 
(44,160) will be on Form FNS-252R, 3% (1,380) will be on Form FNS-252-
2, and 1% (460) will be on Form FNS-252.
    Hourly burden time per response varies by type of application and 
includes the time to review instructions, search existing data 
resources, gather and copy the data needed, complete and review the 
application, and submit the form and documentation to FNS. It should be 
noted that the number of applicant and authorized stores has been 
declining over the past few years due to several program changes, such 
as changes in eligibility requirements, stronger sanctions against 
violators, and implementation of Electronic Benefit Transfer systems. 
These declines have resulted in a reduction in the overall number of 
respondents and ultimately a reduction in the overall proposed burden 
hours reflected in the following summary chart.
    Currently, private restaurants applying for FSP participation in 
the State-administered special restaurant program use Form FNS-252-2 to 
apply for participation. This category of applicant represents about 7% 
of the number of current applicants using Form FNS-252-2. Over time, it 
has been determined that we need additional information from such 
private restaurants to ensure that they meet necessary requirements of 
operation to carry out the intent of the FSP. The additional 
information needed would be captured by having these respondents, 
estimated at about 32, complete Form FNS-252 rather than Form FNS-252-
2. We estimate that these restaurants will spend an estimated 10 
minutes of additional burden time using the longer Form FNS-252, 
however, this contributes to a negligible amount to the increase in the 
average hourly burden rate reflected in the summary chart because the 
number of respondents is so small. This change is a technical 
correction rather than a re-estimate based on more recent data, and is 
reflected in the number of initial applications expected to be received 
as shown in the summary chart.
    As currently approved by OMB, the hourly burden rate per response 
for Form FNS-252 is 20 to 68 minutes, with the average being 27 minutes 
and 10 to 20 minutes for Form FNS 252-2, with the average being 10 
minutes. These hourly burden rates are not affected by the re-estimated 
number of applications expected to be received or the technical 
correction. However, previous estimates

[[Page 24987]]

to OMB erroneously reflected the average burden time for Form FNS-252-2 
as 10 minutes. The average time is 12 minutes and this correction 
appears in the proposed estimates in the summary chart.
    Total number of respondents completing at least one of the 3 
applications in question, taking into consideration the adjustments 
discussed above, would be as follows:

FNS-252:                                                                                                        
    New authorizations..................    22,347  (22,770  x  .98 + 32)                                       
    Reauthorizations....................       460  (184,000  x  .25  x  .01)                                   
                                         ----------                                                             
                                            22,807                                                              
FNS-252-2:                                                                                                      
    New authorizations..................       434  (22,770  x  .02 - 32)                                       
    Reauthorizations....................     1,380  (184,000  x  .25  x  .03)                                   
                                         ----------                                                             
                                             1,803                                                              
FNS-252R:                                                                                                       
    Reauthorizations....................    44,160  (184,000  x  .25  x  .01 - 1,380 - 460)                     
                                         ----------                                                             
      Total Responses...................    68,770                                                              
                                                                                                                

    The existing estimates, as approved by OMB through May 1999 and 
shown on the following chart, reflect the total annual number of 
responses as 80,613 and the annual burden hours as 18,396. The proposed 
number of responses would be 68,700 with total burden hours of 15,777 
hours. The net effect of the proposed burden estimates is an overall 
decrease in burden hours of 2,619 hours annually.
    Affected Public: Food Retail and Wholesale Firms, Meal Service 
Programs, certain types of Group Homes, Shelters, and State-contracted 
Restaurants.
    Estimated Number of Respondents: 68,770.
    Estimated Number of Responses per respondent: 1.
    Estimated Time per Response: 0.229416.
    Estimated Total Annual Burden: 15,777.

                     Summary of Proposed Burden Estimates for Forms FNS-252, 252-2 and 252R                     
----------------------------------------------------------------------------------------------------------------
                                     Number of     Responses per   Total annual    Burden hours    Total annual 
              Title                 respondents     respondent       responses     per response    burden hours 
----------------------------------------------------------------------------------------------------------------
Form FNS-252:                                                                                                   
    Existing....................          26,431               1          26,431           .4500          11,894
    Proposed....................          22,807               1          22,807           .4500          10,263
                                 -------------------------------------------------------------------------------
      Difference................          -3,624               1          -3,624  ..............          -1,631
Form FNS-252-2:                                                                                                 
    Existing....................           2,592               1           2,592           .1855             481
    Proposed....................           1,803               1           1,803           .2000             361
                                 -------------------------------------------------------------------------------
      Difference................            -789  ..............            -789          +.0145            -120
Form FNS-252R:                                                                                                  
    Existing....................          51,590               1          51,590           .1167           6,021
    Proposed....................          44,160               1          44,160           .1167           5,153
                                 -------------------------------------------------------------------------------
      Difference................          -7,430  ..............          -7,430  ..............            -868
                                 ===============================================================================
Totals:                                                                                                         
    Existing....................          80,613  ..............          80,613  ..............          18,396
    Proposed....................          68,770  ..............          68,770  ..............          15,777
                                 -------------------------------------------------------------------------------
      Difference................         -11,843  ..............         -11,843  ..............          -2,619
----------------------------------------------------------------------------------------------------------------

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
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 
except as specified in the ``Effective Date'' paragraph of this 
preamble. Prior to any judicial challenge to the provisions of this 
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. Sec. 2023 set out at 7 CFR 276.7 
( for rules related to non-quality control (QC) liabilities) or 7 CFR 
283 (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.

Unfunded Mandate Reform Act of 1995

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments, and the private sector. Under section 202 of the UMRA, FNS 
generally must prepare a written statement, including a cost-benefit

[[Page 24988]]

analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local or tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When such a statement is needed for a rule, section 205 of 
the UMRA generally requires FNS to identify and consider a reasonable 
number of regulatory alternatives and adopt the least costly, more 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule. This proposed rule contains no Federal mandates 
under the regulatory provision 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, this rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.

Background

    Pub. L. 104-193, the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (PRWORA) was enacted on August 22,1996, and 
contains a number of provisions directly affecting the participation of 
retailers, wholesalers and other entities eligible to be authorized to 
participate in the Food Stamp Program (FSP). All of the provisions of 
the law addressed in this rulemaking were effective on the date of 
enactment. Five of the provisions are nondiscretionary and were 
immediately implemented in the program through an implementing 
memorandum issued on September 16, 1996. While these five provisions 
are incorporated into this proposed rule, they are identified as 
nondiscretionary in this preamble. Such nondiscretionary provisions are 
statutory requirements that the Secretary has no authority to change; 
therefore, such provisions or their implementation cannot be modified 
by public comment. The PRWORA provides discretion in the implementation 
of the remaining provisions of the law, and these provisions are being 
proposed for public comment in this proposed rulemaking. The Department 
encourages all interested parties to comment on the discretionary 
provisions as set forth in this proposed rule.
    The PRWORA and this proposed rulemaking include the following 
discretionary and nondiscretionary provisions:
     Revision in the definition of ``coupon'' 
(nondiscretionary);
     Establishment of a minimum six month waiting period before 
stores that initially fail to meet authorization criteria can reapply 
to participate in the program (nondiscretionary), and the establishment 
of longer periods of time, including permanent prohibition from 
participation, which reflects the severity of the basis for the denial 
of the firm's application or a firm's reauthorization in the program 
(discretionary);
     Requirement that USDA, or its designees, conduct 
preauthorization visits to applicant firms as specified by the 
Secretary (discretionary);
     Authority for USDA to disqualify firms based on 
inconsistent redemption data and suspicious account activity as 
documented through EBT system data (nondiscretionary);
     Authority to suspend the program participation of 
violating firms subject to a permanent disqualification pending the 
outcome of administrative or judicial review (nondiscretionary);
     Authority for USDA to establish authorization periods for 
the participation of retailers in the program (discretionary);
     Authority to disqualify retailers who intentionally submit 
falsified applications, including permanent disqualification of such 
retailers (discretionary); and
     Authority to disqualify retailers that have been 
disqualified by State agencies responsible for the administration of 
USDA's Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC) (discretionary), extension of the periods for 
disqualification of such FSP retailers and elimination of the FSP 
administrative and judicial review rights of such retailers 
(nondiscretionary).
    This proposed rulemaking also includes a provision of the Federal 
Agriculture Improvement and Reform Act (FAIR), Pub.L. 104-127, which 
provides a limitation on the mandatory permanent disqualification 
actions that may be taken by USDA for retailers found to be 
trafficking. Conforming and minor editorial revisions in response to 
the National Performance Review Regulatory Planning and Reform 
Initiative are also included in this rule.

FAIR Provision--Eligibility for Trafficking Civil Money Penalties

    Section 401 of the FAIR limits mandatory permanent 
disqualifications for food coupon trafficking (with no possibility of 
avoiding disqualification by paying a trafficking civil money penalty) 
to instances in which (1) owners are aware of violations or participate 
in the conduct of such food coupon trafficking violations or (2) it is 
the second investigation in which a trafficking violation was committed 
by firm management.
    This provision amends the current automatic ineligibility of a firm 
for a civil money penalty (CMP) in lieu of permanent disqualification 
if the ownership or management of the firm was aware of, approved, 
benefited from or was involved in the conduct of the food coupon 
trafficking violations (Sec. 278.6(i)). The FAIR amendment expands the 
number of firms that may be eligible for such a CMP in lieu of 
permanent disqualification. The law provides that if such a violation 
represents first-time management food coupon trafficking, the firm may 
be considered eligible for the imposition of a CMP, if the firm 
documents that it meets all of the eligibility requirements for the CMP 
as specified in Sec. 278.6 (i).
    This rulemaking proposes that the provision be applicable to firm 
management in general, regardless of whether or not the same individual 
manager committed trafficking violations previously. For example, if an 
individual manager previously was dismissed from the position for 
committing trafficking violations, but a different manager of the same 
firm subsequently commits food coupon trafficking violations, the firm 
would not be eligible for a second CMP in lieu of permanent 
disqualification. However, the expansion of eligibility for a CMP in 
lieu of permanent disqualification as stipulated in the FAIR does not 
apply to firms where it is shown that ownership or management was 
involved in trafficking in ammunition, firearms, explosives or 
controlled substances.
    This provision was effective on April 4,1996, the date of enactment 
of the statute. It was implemented upon the date on which Food and 
Nutrition Service (FNS) offices received the implementing memorandum, 
and is applicable to all firms issued a final determination letter 
subsequent to receipt of the implementing memorandum by FNS offices. 
The implementing memorandum was issued on September 16, 1996. The 
amendment to Sec. 278.6(i) of this proposed regulation reflects this 
change. Comments are invited, however, on the proposed restriction 
which prohibits a CMP in lieu of permanent disqualification the second 
time management personnel of a firm commit trafficking violations, 
regardless of whether it was the same person in the management position 
that committed the previous violation(s).

Provisions of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (PRWORA)

    The provisions of the PRWORA related to retailer participation in 
the FSP represent a three-tiered approach to

[[Page 24989]]

enhancing retailer compliance and integrity in order to further the 
purposes of the FSP and to reduce fraud in this critically important 
domestic food program. The provisions greatly reinforce USDA's efforts 
to effectively administer the FSP by improving the ability of the 
Department to screen applicant retailers prior to authorization, to 
control retailer performance subsequent to FSP authorization and to 
impose stiffer penalties against those firms found to be violating the 
public trust by committing FSP violations and defrauding the program.

Pre-Authorization Screening

    The participation of retailers in the FSP is a privilege, not a 
right. The PRWORA and the provisions of this proposed rulemaking will 
serve to increase the Department's ability to cut off fraud and abuse 
at the source by allowing more in-depth pre-authorization screening of 
applicant firms and verification of the qualifications and continued 
eligibility of currently authorized firms to participate in the FSP.

Condition Precedent for Approval of Retail Food Stores and Wholesale 
Food Concerns

    Section 831 of the PRWORA provides authority for USDA, its designee 
or State or local government officials designated by the Department, to 
conduct preauthorization visits to selected firms, and provides 
discretion to the Secretary to designate such firms on the basis of 
size, location and types of items sold. Amendments to Sec. 278.1(a) of 
the regulation reflect the Secretary's authority to conduct such 
preauthorization visits as contained in the statute. It is anticipated 
that firm types subject to preauthorization visits will be determined 
by the FNS on an annual basis, as priorities and resources permit.

Waiting Period for Firms That Fail To Meet Authorization Criteria

    Section 834 of the PRWORA amends section 9(d) of the Food Stamp Act 
to require that a firm that does not qualify for authorization because 
the firm fails to meet the eligibility criteria for approval be 
prohibited from submitting a new application to participate in the FSP 
for a minimum period of 6 months. The statute also allows the Secretary 
to establish longer time periods, including a permanent prohibition 
from participation, that is reflective of the severity of the basis for 
the denial of the application.
    Section 278.1(k) of the regulation is proposed to be revised to 
include the minimum 6-month prohibition from reapplication, which 
applies to those firms that are shown to not meet Criterion A or 
Criterion B of the eligibility requirements of the Food Stamp Act, (7 
U.S.C. 2012(k)) and, for co-located wholesale/retail firms, the 
requirements of Sec. 278.1(b)(1)(iv). Criteria A and B were 
incorporated into the definition of ``retail food store'' in the Food 
Stamp Act, as amended by the Pub. L. 103-225, the Food Stamp Program 
Improvements Act of 1994. While this change in the definition was 
effective immediately upon enactment of the law and has been 
implemented, a proposed rule incorporating this statutory change 
specifically in the regulations is currently in Departmental clearance.
    Currently, there is no waiting period for stores that wish to 
reapply to participate in the FSP after their application is denied 
because the stores fail to meet basic eligibility criteria for 
authorization. Such stores can adjust the types of staple food items 
that they offer for sale in order to meet minimal standards and reapply 
immediately, and then decrease their inventory after obtaining 
authorization. Such firms tend to be stores that do not effectuate the 
purpose of the FSP. The implementation of the 6-month waiting period 
will reduce the number of firms that temporarily stock minimum 
requirements of food items solely for the purpose of becoming 
authorized in the program and then engage in food stamp trafficking as 
their primary business. This provision applies to initial applicants as 
well as to those firms being reviewed for the purpose of 
reauthorization, or any other purpose, that are found not to meet 
program eligibility requirements. At the time of initial application 
and reauthorization, firms will be provided notice of this provision. 
This 6-month prohibition is nondiscretionary.
    This rulemaking also proposes to implement the Secretary's 
authority to establish longer periods of time during which a firm would 
be restricted from reapplying for program authorization. Section 834 of 
the PRWORA provides that the Secretary may establish such time 
restrictions, up to a permanent denial, of a firm's ability to reapply 
for program authorization depending upon the severity of the reason for 
the denial of such a firm's initial application or subsequent 
application for authorization or reauthorization. Section 278.1(b)(3) 
sets out the criteria discussed below that are proposed to be used by 
FNS to make determinations regarding reapplication restrictions against 
firms that are denied authorization or reauthorization, or are 
otherwise withdrawn from the program. Section 278.1(k) details the 
proposed periods of time for which a firm will be denied authorization 
in the program in response to the criteria set out in Sec. 278.1(b)(3). 
It is proposed that these provisions be applicable to denials of 
initial authorization and reauthorization in the FSP, as well as to the 
continued authorization of a firm for participation in the program.
    Section 9 of the Food Stamp Act, as amended, provides the Secretary 
with the authority to consider the business integrity and reputation of 
program applicants when determining the qualifications of such 
applicants for participation in the program. The business integrity of 
a firm is critically important to the effective operation of the FSP. 
Therefore, the criteria in this proposed rulemaking focus on the 
business integrity and reputation of the ownership, management and 
other personnel of those firms seeking authorization or reauthorization 
in the program. Fraudulent activity in the FSP or other government 
programs, or in business-related activities in general, reflects on the 
ability of a firm to effectuate the purposes of the FSP and abide by 
the rules governing the program. Therefore, this rulemaking proposes 
that a firm be permanently denied the opportunity for reapplication if 
a firm is denied authorization or reauthorization in the program on the 
basis of criminal convictions or a finding of civil liability of the 
ownership or management of an applicant firm for reasons that affect 
the business integrity of such firms. If personnel of the firm have 
been criminally convicted or found civilly liable for reasons related 
to business integrity, the firm will be denied the opportunity for 
reapplication to the program for as long as that person is employed by 
the firm. Examples of such business integrity matters include 
conviction or civil liability for offenses such as insurance fraud, tax 
fraud, and embezzlement.
    In addition, this proposal stipulates that firms that have been 
removed from other federal, State or local government programs shall be 
prohibited from applying for the FSP during the period of removal from 
such programs. Such action in the FSP would be taken, for example, if a 
firm is removed from the WIC Program, or had their State or local 
liquor or lottery license suspended.
    It is also proposed that firms for which it is found that an 
attempt has been made to circumvent a period of disqualification, a 
civil money penalty

[[Page 24990]]

or a fine imposed for FSP violations, or firms for which evidence 
exists of prior violative behavior which is not related to the FSP, 
shall be denied the opportunity to apply for the program for a period 
of 3 years. For example, a firm fined for lottery or liquor license 
infractions, but not removed from the State or local program through 
suspension, would be restricted from participation in the FSP for 3 
years, commencing from the effective date of the FSP denial.
    Further, this rulemaking proposes that firms in which violations of 
the program have been committed but a sanction has not been served, 
shall be denied the opportunity to apply for the program for a period 
of time equivalent to the appropriate sanction period that should have 
been served. This provision would apply, for example, when a firm goes 
out of business prior to FNS' sanctioning the firm for FSP violations 
that were uncovered prior to its going out of business. If the same 
owner seeks authorization for a different store, such a store would not 
be immediately authorized in the FSP and would be subject to a waiting 
period equivalent to the period of time that the previously 
investigated firm under that ownership would have been disqualified. 
This waiting period would be applicable whether or not the previously 
investigated firm was authorized in the FSP or was an unauthorized firm 
found to be violating the FSP.
    This provision also applies to persons who are owners or officers 
of multi-unit firms, as well as management and personnel who are 
employed by the owner of a multi-unit firm. If an owner or officer of a 
multi-unit firm personally committed FSP violations at one unit of a 
multi-unit firm, and a sanction was not served, it is proposed that an 
applicant firm under that same ownership would be denied authorization 
for a period of time that should have been served for the previously 
committed violations. Moreover, as currently provided in the FSP 
regulations, the authorization of other units of such multi-unit firms 
may be withdrawn in response to violations of the FSP by ownership.
    If management or personnel of such multi-unit firms commit 
sanctionable violations at more than one location, this would indicate 
that such actions are reflective of the overall operating practice of 
the firm, thus indicating a lack of business integrity on the part of 
ownership. If such violations occur and an appropriate penalty was not 
served, the applicant firm will be denied or restricted from applying 
for authorization in the FSP for the period of time that should have 
been served by the firm for violations committed at these other 
locations under the same ownership. The period would be equivalent to 
the longest sanction period that would have been served for the most 
serious of violations committed by any one of the associated firms.
    Finally, it is proposed that firms for which any other evidence 
exists that negatively impacts on the business integrity or reputation 
of the firm shall be denied the opportunity to apply for authorization 
in the FSP for one year from the effective date of the denial. Firms 
adversely affected by any such actions would be entitled to appeal 
rights provided by section 14 of the Food Stamp Act.
    This proposal also makes an editorial change unrelated to the 
PRWORA provisions to conform the language of Sec. 278.1(k), Denying 
authorization. and Sec. 278.1(l), Withdrawing authorization. An 
additional editorial change is also being made to Sec. 278.1(m) so as 
to conform this section with Sec. 278.1(k) and Sec. 278.1(l). These 
revisions do not result in any substantive change in the program, but 
simply clarify the intent that the provisions are applicable to both 
denials and withdrawals in the program. In addition, language is 
proposed to be added in Sec. 278.1(k) and Sec. 278.1(l) that reflects 
the current prohibition against participation in the program as 
specified in the current rule at Sec. 278.6(f)(4), which prohibits 
authorization for participation of firms that have outstanding transfer 
of ownership civil money penalties owed to FNS.

Authority To Establish Authorization Periods

    Section 832 of the PRWORA provides authority for the Secretary to 
establish specific periods of time during which a firm may be 
authorized to accept food stamps. The intent of this provision is to 
eliminate the current open-ended authorization of firms in the program. 
Further, it is intended to protect the integrity of the FSP by 
requiring a firm to re-apply periodically for continued participation 
and thereby ensuring that only legitimate and eligible firms are 
authorized to accept FSP benefits.
    It is proposed that no firm be assigned an authorization period for 
participation in the FSP for longer than 5 years. Moreover, the FNS 
Officer in Charge may assign a lesser period of authorization, 
depending on the circumstances. Such circumstances may include the fact 
that a store is a new firm with unknown sales history, an additional 
outlet of a chain grocery store with an inconsistent FSP compliance 
record or a firm that only minimally meets the eligibility criteria for 
participation in the FSP.
    The Department believes that the five year maximum authorization 
period, after which a firm is required to apply to be reauthorized in 
the program, is reasonable and necessary for the effective 
administration of the program, and will ensure that the eligibility of 
all firms are routinely and periodically reviewed.
    The specification of an authorization period in no way precludes 
FNS from periodically requesting information from a firm or concern for 
purposes of reauthorization in the program or from withdrawing or 
terminating the authorization of a firm in accordance with program 
regulations. The Department will develop administrative procedures to 
ensure that, prior to the time of expiration of a firm's authorization 
period, the firm will be provided with reauthorization materials and be 
given the opportunity to submit such materials and information to 
enable FNS to evaluate the firm's qualifications for continued 
participation in the FSP. This proposal is included in Sec. 278.1(j) of 
the regulation.

Post-Authorization Controls and Stiffer Penalties in the Program

    Retailers that abuse the privilege of authorization in the FSP will 
have that privilege revoked. The PRWORA includes a number of 
significant tools that will enhance the Department's ability to enforce 
the effectiveness of the FSP and the monitoring of retailers.

Authority to Suspend Stores Violating Program Requirements Pending 
Administrative and Judicial Review

    Section 845 of the PRWORA amends section 14 of the Food Stamp Act 
to require that a permanent disqualification of a firm from the FSP be 
effective from the date of the firm's receipt of the notice of 
disqualification. The PRWORA also provides that if such an 
administrative action by FNS is reversed through administrative or 
judicial review, the Secretary is not liable for the value of any 
revenues lost by the firm during such a disqualification period. This 
provision is nondiscretionary and was effective upon the date of 
enactment of the law. This provision pertains to firms that are subject 
to permanent disqualification for trafficking in the program, as well 
as to those firms subject to permanent disqualification for having been 
sanctioned twice before for violations of the program. Changes 
reflecting this

[[Page 24991]]

provision of the law have been made at Sec. 278.6(b). Editorial 
revisions have also been made to Sec. 278.8(a), Sec. 279.7(a) and 
Sec. 279.10(d). Since this provision is nondiscretionary, its 
implementation cannot be affected by public comment. It is important to 
note that the statute specifically refers only to permanent 
disqualification actions. Therefore, firms that request and are found 
to be eligible for a civil money penalty in lieu of permanent 
disqualification for trafficking are not affected by the immediate 
suspension requirement of the statute nor would such firms be expected 
to pay the civil money penalty pending appeal and may continue to 
participate in the program pending appeal.

Investigations

    Section 278.6(a) of the regulation is proposed to be amended in 
accordance with section 841 of the PRWORA to make an editorial change 
that stipulates that findings of program violations and the subsequent 
suspension or disqualification of a firm may be made based on evidence 
established through on-site investigations, inconsistent redemption 
data, or evidence obtained through a transaction report under an 
electronic benefit transfer system. This supports current practice in 
the program and the current authority provided to the Secretary to 
enforce program compliance. The provision is nondiscretionary.

Disqualification of Retailers Disqualified From the WIC Program

    Section 843 of the PRWORA amends section 12 of the Food Stamp Act 
to require the Secretary to develop standards by which firms 
disqualified from the Special Supplemental Nutrition Program for Women, 
Infants and Children (WIC) are to be reciprocally disqualified from 
participation in the FSP. Currently, FSP regulations provide for the 
withdrawal of such firms from the FSP in response to WIC 
disqualification action. Such withdrawals must run for a concurrent 
period of time. This has proven to be problematic in that it is 
sometimes difficult for the Food Stamp withdrawal action to catch up to 
the WIC disqualification, particularly if the WIC disqualification is 
for a 6 month period or less. Under the current regulations, a firm has 
the right to appeal the Food Stamp action, and often, by the time the 
firm has appealed the FSP withdrawal, the WIC disqualification period 
is ending. Thus, the impact of reciprocal withdrawal is not 
significant. The change in the law provides that the FSP 
disqualification period (1) shall be for the same period of time as the 
WIC disqualification period; (2) may run consecutive to the WIC 
disqualification; and (3) shall not be subject to FSP administrative or 
judicial review. These provisions of the statute are nondiscretionary.
    In addition, the law stipulates that the Secretary establish 
criteria for such reciprocal disqualification actions. Current 
regulations set forth the types of WIC violations that will result in 
withdrawal of a firm from participation in the FSP.
    The Department proposes to retain these same criteria, with some 
editorial changes to ensure that trafficking violations are fully 
covered in the listed violations. The WIC violations included here, 
therefore, represent very serious violations of the WIC Program that 
are comparable to serious violations of the FSP. These violations best 
represent the potential risk of violations of a similar nature being 
committed by unscrupulous firms in the FSP, thus necessitating 
reciprocal FSP action to protect the integrity of the FSP. The 
Department solicits comments on the reciprocal disqualification 
standards set out in Sec. 278.6(e)(8).
    Conforming changes to restrict those firms subject to reciprocal 
disqualification from eligibility for FSP administrative and judicial 
review are made to Sec. 278.6(n), Sec. 278.8(a), Sec. 279.3(a)(2) and 
Sec. 279.10(a) of this regulation. The changes made to these sections 
are nondiscretionary and will not be affected by public comment.

Disqualification of Retailers Who Intentionally Submit Falsified 
Applications

    Section 842 of the PRWORA amends section 12(b) of the Food Stamp 
Act to authorize the Secretary to disqualify, including permanently 
disqualify, participating retailers who knowingly submit applications 
that contain false information about substantive issues. This proposed 
rule proposes to subject a firm to permanent disqualification if it is 
found that false information directly related to the eligibility of the 
firm for authorization is knowingly submitted on the application. In 
addition, this rule proposes that in cases in which any false 
information is knowingly submitted that would impact on the ability of 
FNS to monitor and identify potentially violative firms, the firm shall 
be disqualified for three years.
    This proposed rule outlines examples of the type of information 
that would be considered ``substantive'' for the purpose of determining 
eligibility, as well as the type of information that is considered to 
be substantive from a monitoring standpoint. These examples, however, 
are not inclusive of all of the information that, if fraudulently 
submitted, may result in disqualification of a firm.
    This rule also proposes to deny authorization of any such firm 
which is found to have knowingly submitted such false information on 
the application at the time of initial application processing. It is 
proposed that such firms be denied for the same period of time for 
which they would be disqualified under Sec. 278.6(e). The Department 
encourages comments on this discretionary provision.

List of Subjects

7 CFR Part 271

    Administrative practice and procedure, Food stamps, Grant 
programs--social programs.

7 CFR Part 278

    Administrative practice and procedure, Banks, banking, Claims, Food 
stamps, Groceries--retail, Groceries, General line--wholesaler, 
Penalties.

7 CFR Part 279

    Administrative practice and procedure, Food stamps, Groceries--
retail, Groceries, General line--wholesaler.

    Accordingly, 7 CFR parts 271, 278 and 279 are proposed to be 
amended as follows:
    1. The authority citation for parts 271, 278 and 279 continues to 
read as follows:

    Authority:
    7 U.S.C. 2011-2032.

PART 271--GENERAL INFORMATION AND DEFINITIONS

    2. In Sec. 271.2, the definition of ``coupon'' is revised to read 
as follows:


Sec. 271.2  Definitions.

* * * * *
    Coupon means any coupon, stamp, type of certificate, authorization 
card, cash or check issued in lieu of a coupon, or access device, 
including an electronic benefit transfer card or personal 
identification number issued pursuant to the provisions of the Food 
Stamp Act of 1977, as amended, for the purchase of eligible food.
* * * * *

PART 278--PARTICIPATION OF RETAIL FOOD STORES, WHOLESALE FOOD 
CONCERNS AND INSURED FINANCIAL INSTITUTIONS

    3. In Sec. 278.1:

[[Page 24992]]

    a. Paragraph (a) is revised;
    b. Paragraph (b)(3) is revised;
    c. Paragraph (j) is revised;
    d. Paragraph (k) is amended by revising the first sentence of 
paragraph (k)(2) and redesignating the paragraph (k)(2) as paragraph 
(k)(7), and adding new paragraphs (k)(2), (k)(3), (k)(4), (k)(5) and 
(k)(6);
    e. Paragraph (l) is amended by redesignating paragraphs (l)(1)(iii) 
through (l)(1)(v) as (l)(1)(v) through (l)(1)(vii), respectively, 
revising newly redesignated paragraph (l)(1)(vi), and adding new 
paragraphs (l)(1)(iii) and (l)(1)(iv);
    f. The introductory text of paragraph (m) is revised;
    g. Paragraph (o) is removed, and paragraphs (p) through (u) are 
redesignated as paragraphs (o) through (t), respectively; and
    h. Newly redesignated paragraph (o) is revised and newly 
redesignated paragraph (q) is amended by removing references to (r)(2), 
(r)(3), (r)(1)(ii), (r)(1)(i), (r)(2)(ii), (r)(2)(iv), (r)(3)(iv) and 
(r), wherever they appear, and adding in their place references to 
(q)(2), (q)(3), (q)(1)(ii), (q)(1)(i), (q)(2)(ii), (q)(2)(iv), 
(q)(3)(iv) and (q), respectively.
    The revisions and additions read as follows:


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

    (a) Application. Any firm desiring to participate or continue to be 
authorized in the program shall file an application as prescribed by 
FNS. Such an application shall contain information which will permit a 
determination to be made as to whether such an applicant qualifies, or 
continues to qualify, for authorization under the provisions of the 
program. FNS may require that a retail food store or wholesale food 
concern be visited to confirm eligibility for program participation 
prior to such store or concern being authorized or reauthorized in the 
program. FNS shall determine, based on factors that include size, 
location, and types of items sold, which stores or concerns shall be 
visited. Required visits shall be conducted by an authorized employee 
of the Department, a designee of the Secretary, or an official of the 
State or local government designated by the Secretary. FNS shall deny 
or approve the application, or request additional information from the 
applicant firm, within 30 days of receipt of the initial application.
    (b) Determination of authorization. * * *
    (3) The business integrity and reputation of the applicant. FNS 
shall deny the authorization of any firm from participation in the 
program for a period of time as specified in paragraph (k) of this 
section based on consideration of information regarding the business 
integrity and reputation of the firm as follows:
    (i) Criminal conviction records reflecting on the business 
integrity of owners, officers, managers, or other personnel of the 
applicant firm;
    (ii) Judicial determinations in civil litigation adversely 
reflecting on the business integrity of owners, officers, managers or 
other personnel of the applicant firm;
    (iii) Official records of removal of the applicant firm from other 
Federal, State or local government programs;
    (iv) Evidence of an attempt by the applicant firm to circumvent a 
period of disqualification, a civil money penalty or fine imposed for 
violations of the Food Stamp Act and program regulations;
    (v) Evidence (other than a record of a civil or criminal 
conviction) of prior fraudulent behavior of owners, officers, managers, 
or other personnel of the applicant firm that is not Food Stamp Program 
related for which a Food Stamp Program sanction had not been previously 
imposed and satisfied;
    (vi) Previous Food Stamp Program violations by owners, officers, 
managers, or other personnel of the applicant firm for which a sanction 
had not been previously imposed and satisfied;
    (vii) Evidence of prior Food Stamp Program violations personally 
committed by the owner(s) or the officer(s) of the firm at one or more 
units of a multi-unit firm, or evidence of prior Food Stamp Program 
violations committed by management or other personnel at other units of 
multi-unit firms which would indicate a lack of business integrity on 
the part of ownership and for which sanctions had not been previously 
imposed and satisfied; or
    (viii) Any other evidence adversely reflecting on the business 
integrity or reputation of the applicant firm.
* * * * *
    (j) Authorization. Upon approval, FNS shall issue a nontransferable 
authorization card to the firm. The authorization card shall be valid 
only for the time period for which the firm is authorized to accept and 
redeem coupons under the program. The authorization card shall be 
retained by the firm until such time as the authorization period has 
ended, authorization in the program is superseded, or the card is 
surrendered or revoked as provided in this part. No firm may be 
assigned an authorization period in the program of longer than 5 years; 
however, the FNS Officer in Charge may assign a lesser period for 
authorization of a firm, depending on the circumstances of such firm. 
The specification of an authorization period in no way precludes FNS 
from periodically requesting information from a firm or concern for 
purposes of reauthorization in the program or from withdrawing or 
terminating the authorization of a firm in accordance with this part.
    (k) Denying authorization. * * *
    (2) The firm has failed to meet the eligibility requirements for 
authorization under Criterion A or Criterion B, as specified in the 
Food Stamp Act of 1977, as amended; or, for co-located wholesale/retail 
firms, the firm fails to meet the requirements of paragraph (b)(1)(iv) 
of this section. Any firm that has been denied authorization on these 
bases shall not be eligible to submit a new application for 
authorization in the program for a minimum period of six months from 
the effective date of the denial;
    (3) The firm has been found to lack the necessary business 
integrity and reputation to further the purposes of the program. Such 
firms shall be denied authorization in the program for the following 
period of time:
    (i) Firms for which criminal conviction records reflecting on the 
business integrity of owners, officers, or managers exist shall be 
denied authorization permanently; firms for which such records exist 
with regard to other personnel employed by the firm shall be denied for 
as long as such person continues to be employed by the firm;
    (ii) Firms for which judicial determinations in civil litigation 
adversely reflecting on the business integrity of owners, officers or 
managers of the firm have been made shall be denied authorization 
permanently; firms for which such determinations have been made with 
regard to other personnel employed by the firm shall be denied 
authorization for as long as such person continues to be employed by 
the firm;
    (iii) Firms which have been officially removed from other Federal, 
State or local government programs shall be denied for a period 
equivalent to the period of removal from any such programs;
    (iv) Firms for which evidence exists of an attempt to circumvent a 
period of disqualification, a civil money penalty or fine imposed for 
violations of the Food Stamp Act and program regulations shall be 
denied for a period

[[Page 24993]]

of three years from the effective date of denial;
    (v) Firms for which evidence exists of prior fraudulent behavior of 
owners, officers, or managers of the firm which is not Food Stamp 
Program related and for which a Food Stamp Program sanction had not 
been previously imposed and satisfied shall be denied for a period of 
three years from the effective date of denial; firms for which such 
fraudulent behavior was committed by personnel employed by the firm 
shall be denied authorization for as long as such person continues to 
be employed by the firm;
    (vi) Firms for which evidence exists of prior Food Stamp Program 
violations by owners, officers, managers, or other personnel of the 
firm for which a sanction had not been previously imposed and satisfied 
shall be denied for a period of time equivalent to the appropriate 
disqualification period for such previous violations, effective from 
the date of denial;
    (vii) Firms for which evidence exists of prior Food Stamp Program 
violations at other units of multi-unit firms for which a sanction had 
not been previously imposed and satisfied shall be denied for a period 
of time equivalent to the appropriate disqualification period for such 
previous violations, effective from the date of denial;
    (viii) Firms for which any other evidence exists which reflects 
negatively on the business integrity or reputation of the applicant 
firm shall be denied for a period of one year from the effective date 
of denial;
    (4) The firm has filed an application that contains false or 
misleading information about a substantive matter, as specified in 
Sec. 278.6(e). Such firms shall be denied authorization for the periods 
specified in Sec. 278.6(e)(1) or Sec. 278.6(e)(3);
    (5) The firm's participation in the program will not further the 
purposes of the program;
    (6) The firm has been found to be circumventing a period of 
disqualification or a civil money penalty through a purported transfer 
of ownership;
    (7) The firm has failed to pay in full any fiscal claim assessed 
against the firm under Sec. 278.7, any fines assessed under 
Sec. 278.6(l) or Sec. 278.6(m), or a transfer of ownership civil money 
penalty assessed under Sec. 278.6(f). * * *
    (l) Withdrawing authorization. (1) * * *
    (iii) The firm fails to meet the requirements for eligibility under 
Criterion A or Criterion B, as specified in the Food Stamp Act of 1977, 
as amended, or, for co-located wholesale/retail firms, the firm fails 
to meet the requirements of paragraph (b)(1)(iv) of this section, for 
the time period specified in paragraph (k)(2) of this section;
    (iv) The firm fails to maintain the necessary business integrity to 
further the purposes of the program, as specified in paragraph (b)(3) 
of this section. Such firms shall be withdrawn for lack of business 
integrity for periods of time in accordance with those stipulated in 
paragraph (k)(3) of this section for specific business integrity 
findings;
* * * * *
    (vi) The firm has failed to pay in full any fiscal claim assessed 
against the firm under Sec. 278.7 or any fines assessed under 
Sec. 278.6(l) or Sec. 278.6(m) or a transfer of ownership civil money 
penalty assessed under Sec. 278.6(f) or
* * * * *
    (m) Refusal to accept correspondence or to respond to inquiries. 
FNS may withdraw or deny the authorization of any firm which:
* * * * *
    (o) Applications containing false information. The filing of any 
application containing false or misleading information may result in 
the denial of approval for participation in the program, as specified 
in paragraph (k) of this section, or disqualification of a firm from 
participation in the program, as specified in Sec. 278.6, and may 
subject the firm and persons responsible to civil or criminal action.
* * * * *
    4. In Section 278.6:
    a. Paragraph (a) is revised;
    b. Paragraph (b)(1) is amended by adding one new sentence to the 
end of the paragraph;
    c. Paragraph (b)(2)(i) is amended by adding two new sentences to 
the end of the paragraph;
    d. Paragraph (c) is amended by adding three new sentences to the 
end of the paragraph;
    e. Paragraph (e) is amended by adding new paragraphs (e)(1)(iii), 
(e)(3)(vi) and (e)(8);
    f. Paragraph (i) is amended by removing the first sentence of 
Criterion 4 and adding three new sentences in its place, and by 
removing the words ``or management'' in paragraph (i)(1)(v); and
    g. Paragraph (n) is revised.
    The revisions and additions read as follows:


Sec. 278.6  Disqualification of retail food stores and wholesale food 
concerns, and imposition of civil money penalties in lieu of 
disqualifications.

    (a) Authority to disqualify or subject to a civil money penalty. 
FNS may disqualify any authorized retail food store or authorized 
wholesale food concern from further participation in the program if the 
firm fails to comply with the Food Stamp Act or this part. Such 
disqualification shall result from a finding of a violation on the 
basis of evidence that may include facts established through on-site 
investigations, inconsistent redemption data, evidence obtained through 
a transaction report under an electronic benefit transfer system, or 
the disqualification of a firm from the Special Supplemental Nutrition 
Program for Women, Infants and Children (WIC), as specified in 
paragraph (e)(8) of this section. Disqualification shall be for a 
period of 6 months to 5 years for the firm's first sanction; for period 
of 12 months to 10 years for a firm's second sanction; and 
disqualification shall be permanent for a disqualification based on 
paragraph (e)(1) of this section. Any firm which has been disqualified 
and which wishes to be reinstated at the end of the period of 
disqualification or at any later time shall file a new application 
under Sec. 278.1 so that FNS may determine whether reauthorization is 
appropriate. The application may be filed no earlier than 10 days 
before the end of the period of disqualification. FNS may, in lieu of a 
disqualification, subject a firm to a civil money penalty of up to 
$10,000 for each violation if FNS determines that a disqualification 
would cause hardship to participating households. FNS may impose a 
civil money penalty of up to $20,000 for each violation in lieu of a 
permanent disqualification for trafficking, as defined in Sec. 271.2 of 
this chapter, in accordance with the provisions of paragraphs (i) and 
(j) of this section.
    (b) Charge letter. (1) * * * In the case of a firm for which action 
is taken in accordance with paragraph (e)(8) of this section, the 
charge letter shall inform such firm that the disqualification action 
is not subject to administrative or judicial review, as specified in 
paragraph (e)(8) of this section.
    (2) Charge letter for trafficking. (i) * * * The charge letter 
shall also advise the firm that the permanent disqualification shall be 
effective immediately upon the date of receipt of the notice of 
determination, regardless of whether a request for review is filed in 
accordance with Sec. 279.5 of this chapter. If the disqualification is

[[Page 24994]]

reversed through administrative or judicial review, the Secretary shall 
not be liable for the value of any sales lost during the 
disqualification period.
* * * * *
    (c) * * * In the case of a firm subject to permanent 
disqualification under paragraph (e)(1) of this section, the 
determination shall inform such a firm that action to permanently 
disqualify the firm shall be effective immediately upon the date of 
receipt of the notice of determination from FNS, regardless of whether 
a request for review is filed in accordance with Sec. 279.5 of this 
chapter. If the disqualification is reversed through administrative or 
judicial review, the Secretary shall not be liable for the value of any 
sales lost during the disqualification period. In the case of a firm 
for which action is taken in accordance with paragraph (e)(8) of this 
section, the determination notice shall inform such firm that the 
disqualification action is not subject to administrative or judicial 
review, as specified in paragraph (e)(8) of this section.
* * * * *
    (e) Penalties. * * *
    (1) * * *
    (iii) It is determined that personnel of the firm knowingly 
submitted information on the application that contains false 
information of a substantive nature that could affect the eligibility 
of the firm for authorization in the program, such as, but not limited 
to, information related to:
    (A) Eligibility requirements under 
Sec. 278.1(b),(c),(d),(e),(f),(g) and (h);
    (B) Staple food stock;
    (C) Annual gross sales for firms seeking to qualify for 
authorization under Criterion B as specified in the Food Stamp Act, as 
amended;
    (D) Annual staple food sales;
    (E) Total annual gross retail food sales for firms seeking 
authorization as co-located wholesale/retail firms;
    (F) Ownership of the firm;
    (G) Employer Identification Numbers and Social Security Numbers;
    (H) Food Stamp Program history, business practices, business 
ethics, WIC disqualification or authorization status, when the store 
did (or will) open for business under the current ownership, business, 
health or other licenses, and whether or not the firm is a retail and 
wholesale firm operating at the same location; or
    (I) Any other information of a substantive nature that could affect 
the eligibility of a firm.
* * * * *
    (3) * * *
    (vi) Personnel of the firm knowingly submitted information on the 
application that contained false information of a substantive nature 
related to the ability of FNS to monitor compliance of the firm with 
FSP requirements, such as, but not limited to, information related to:
    (A) Annual eligible retail food sales;
    (B) Store location and store address and mailing address;
    (C) Financial institution information; or
    (D) Store name, type of ownership, number of cash registers, and 
non-food inventory and services.
* * * * *
    (8) FNS shall disqualify from the Food Stamp Program any firm which 
is disqualified from the WIC Program:
    (i) Based in whole or in part on any act which constitutes a 
violation of that program's regulation and which is shown to constitute 
a misdemeanor or felony violation of law, or for any of the following 
specific program violations:
    (A) Claiming reimbursement for the sale of an amount of a specific 
food item which exceeds the store's documented inventory of that food 
item for a specified period of time;
    (B) Exchanging WIC food instruments for cash, credit or 
consideration other than eligible food; or the exchange of firearms, 
ammunition, explosives or controlled substances, as defined in section 
802 of title 21 of the United States Code, for food instruments;
    (C) Receiving, transacting and/or redeeming WIC food instruments 
outside of authorized channels;
    (D) Accepting WIC food instruments from unauthorized persons;
    (E) Exchanging non-food items for a WIC food instrument;
    (F) Charging WIC customers more for food than non-WIC customers or 
charging WIC customers more than the current shelf price; or
    (G) Charging for food items not received by the WIC customer or for 
foods provided in excess of those listed on the food instrument.
    (ii) FNS shall not disqualify a firm from the Food Stamp Program on 
the basis of a WIC disqualification unless:
    (A) Prior to the time prescribed for securing administrative review 
of the WIC disqualification action, the firm was provided individual 
and specific notice that it could be disqualified from the Food Stamp 
Program based on the WIC violations committed by the firm;
    (B) A signed and dated copy of such notice is provided to FNS by 
the WIC administering agency; and
    (C) A determination is made in accordance with Sec. 278.6(a) that 
such action will not cause a hardship for participating Food Stamp 
households.
    (iii) Such a Food Stamp disqualification:
    (A) Shall be for the same length of time as the WIC 
disqualification;
    (B) May begin at a later date than the WIC disqualification; and
    (C) Shall not be subject to administrative or judicial review under 
the Food Stamp Program.
* * * * *
    (i) Criteria for eligibility for a civil money penalty in lieu of 
permanent disqualification for trafficking. * * *

    Criterion 4. Firm ownership was not aware of, did not approve, 
did not benefit from, or was not in any way involved in the conduct 
or approval of trafficking violations; or it is only the first 
occasion in which a member of firm management was aware of, 
approved, benefited from, or was involved in the conduct of any 
trafficking violations by the firm. Upon the second occasion of 
trafficking involvement by any member of firm management uncovered 
during a subsequent investigation, a firm shall not be eligible for 
a civil money penalty in lieu of permanent disqualification. 
Notwithstanding the above provision, if trafficking violations 
consisted of the sale of firearms, ammunition, explosives or 
controlled substances, as defined in 21 U.S.C. 802, and such 
trafficking was conducted by the ownership or management of the 
firm, the firm shall not be eligible for a civil money penalty in 
lieu of permanent disqualification.
* * * * *
    (n) Review of determination. The determination of FNS shall be 
final and not subject to further administrative or judicial review 
unless a written request for review is filed within the period stated 
in Sec. 279.5. Notwithstanding the aforementioned, any FNS 
determination made on the basis of paragraph (e)(8) of this section 
shall not be subject to further administrative or judicial review.
* * * * *
    5. In Sec. 278.8, paragraph (a) is revised to read as follows:


Sec. 278.8  Administrative review--retail food stores and wholesale 
food concerns.

    (a) Requesting review. A food retailer or wholesale food concern 
aggrieved by administrative action under Sec. 278.1, Sec. 278.6 or 
Sec. 278.7 may, within the period stated in Sec. 279.5 of this chapter, 
file a written request for review of the administrative action with the 
review officer, except that disqualification actions taken against 
firms in accordance with Sec. 278.6(e)(8) shall not be subject to 
administrative or judicial review. On receipt of the request for 
review, the questioned administrative action shall be stayed pending 
disposition of the request for review by the review officer, except in 
the case of a permanent disqualification as

[[Page 24995]]

specified in Sec. 278.6(e)(1). A disqualification for failure to pay a 
civil money penalty shall not be subject to administrative review.
* * * * *

PART 279--ADMINISTRATIVE AND JUDICIAL REVIEW--FOOD RETAILERS AND 
FOOD WHOLESALERS

    6. In Sec. 279.3, paragraph (a)(2) is revised to read as follows:


Sec. 279.3  Authority and jurisdiction.

    (a) Jurisdiction. * * *
    (2) Imposition of a fine under Sec. 278.6(l) of this chapter or 
Sec. 278.6 (m) of this chapter or disqualification from participation 
in the program or imposition of a civil money penalty under Sec. 278.6 
of this chapter, except for disqualification actions imposed under 
Sec. 278.6(e)(8) of this chapter;
* * * * *
    7. In Sec. 279.7, paragraph (a) is amended to add two new sentences 
after the first sentence to read as follows:


Sec. 279.7  Action upon receipt of a request for review.

    (a) Holding action. * * * However, in cases of permanent 
disqualification under Sec. 278.6(e)(1) of this chapter, such 
administrative action shall not be held in abeyance pending such a 
review determination. If the disqualification is reversed through 
administrative or judicial review, the Secretary shall not be held 
liable for the value of any sales lost during the disqualification 
period. * * *
* * * * *
    8. In Sec. 279.10, the first sentence of paragraph (a) and 
paragraph (d) are revised to read as follows:


Sec. 279.10  Judicial review.

    (a) Filing for judicial review. Except for firms disqualified from 
the program in accordance with Sec. 278.6(e)(8) of this chapter, a firm 
aggrieved by the determination of the food stamp review officer may 
obtain judicial review of the determination by filing a complaint 
against the United States in the U.S. district court for the district 
in which the owner resides or is engaged in business, or in any court 
of record of the State having competent jurisdiction. * * *
* * * * *
    (d) Stay of action. During the pendency of any judicial review, or 
any appeal therefrom, the administrative action under review shall 
remain in force unless the firm makes a timely application to the court 
and after hearing thereon, the court stays the administrative action 
after a showing that irreparable injury will occur absent a stay and 
that the firm is likely to prevail on the merits of the case. However, 
permanent disqualification actions taken in accordance with 
Sec. 278.6(e)(1) of this chapter shall not be subject to such a stay of 
administrative action. If the disqualification action is reversed 
through administrative or judicial review, the Secretary shall not be 
liable for the value of any sales lost during the disqualification 
period.

    Dated: April 24, 1990.
Yvette S. Jackson,
Administrator, Food and Nutrition Service.
[FR Doc. 98-12038 Filed 5-5-98; 8:45 am]
BILLING CODE 3410-30-U