[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Proposed Rules]
[Pages 39432-39442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18621]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 253 and 254

RIN 0584-AC65


Food Distribution Program on Indian Reservations: 
Disqualification Penalties for Intentional Program Violations

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Food and Nutrition Service is proposing amendments to the 
Food Distribution Program on Indian Reservations (FDPIR) regulations at 
7 CFR Parts 253 and 254 in response to an audit recommendation by the 
Department of Agriculture's Office of Inspector General (OIG). The 
proposed changes are intended to improve program integrity and promote 
consistency with the Food Stamp Program. The rule would define 
intentional program violations, establish penalties for them, and 
require Indian Tribal Organizations and State agencies that administer 
FDPIR to take appropriate action on suspected cases of intentional 
program violations. It would also address the establishment and 
collection of claims against households for overissuances under FDPIR, 
and make technical changes to Part 253 to correct erroneous regulatory 
references.

DATES: Send your comments to reach us on or before September 20, 1999. 
Comments received after the above date will not be considered in making 
our decision on the proposed rule.

ADDRESSES: You can mail or hand-deliver comments to Lillie F. Ragan,

[[Page 39433]]

Assistant Branch Chief, Household Programs Branch, Food Distribution 
Division, Food and Nutrition Service, U.S. Department of Agriculture, 
Room 510, 3101 Park Center Drive, Alexandria, Virginia 22302-1594.

FOR FURTHER INFORMATION CONTACT: Lillie F. Ragan at the above address 
or telephone (703) 305-2662.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Procedural Matters
III. Background and Discussion of Proposed Rule

I. Public Comment Procedures

    Your written comments on the proposed rule should be specific, 
should be confined to issues pertinent to the proposed rule, and should 
explain the reason for any change you recommend. Where possible, you 
should reference the specific section or paragraph of the proposal you 
are addressing. Comments receive after the close of the comment period 
(see DATES) will not be considered or included in the Administrative 
Record for the final rule.
    Comments, including names, street addressees, and other contact 
information of respondents, will be available for public review at the 
address above during regular business hours (8:30 a.m. to 5 p.m.), 
Mondays through Fridays, except Federal holidays.

II. Procedural Matters

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. President Clinton's 
Presidential memorandum of June 1, 1998, requires us to write new 
regulations in plain language. We invite your comments on how to make 
these proposed regulations easier to understand, including answers to 
questions such as the following:
    (1) Are the requirements in the proposed regulations clearly 
stated?
    (2) Do the proposed regulations contain technical language or 
jargon that interferes with their clarity?
    (3) Does the format of the proposed regulations (grouping and order 
of sections, use of heading, paragraphing, etc.) aid or reduce their 
clarity?
    (4) Would the regulations be easier to understand if they were 
divided into more (but shorter) sections?
    (5) Is the description of the proposed regulation in the preamble 
section entitled ``Background and Discussion of the Proposed Rule'' 
helpful in understanding the proposed regulations? How could this 
description be more helpful in making the proposed regulations easier 
to understand?

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866. Therefore, it has not been reviewed by the 
Office of Management and Budget.

Public Law 104-4

    Title II of the Unfunded Mandates 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, the 
Food and Nutrition Service generally must prepare a written statement, 
including a cost-benefit analysis, for proposed and final rules with 
``Federal mandates'' that may result in expenditures by State, local, 
or tribal governments, in the aggregate, or by 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 the Food and 
Nutrition Service to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, and tribal 
governments or the private sector of $100 million or more in any one 
year. Therefore, this rule is not subject to the requirements of 
Sections 202 and 205 of the UMRA.

Executive Order 12372

    The programs addressed in this action are listed in the Catalog of 
Federal Domestic Assistance under Nos. 10.550 and 10.570, and for the 
reasons set forth in the final rule in 7 CFR 3015, Subpart V, and 
related Notice (48 FR 29115), are included in the scope of Executive 
Order 12372, which requires intergovernmental consultation with State 
and local officials.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). The 
Administrator of the Food and Nutrition Service has certified that this 
action will not have a significant impact on a substantial number of 
small entities. Indian Tribal Organizations and State agencies that 
administer FDPIR, and program participants will be affected by this 
rulemaking, but the economic effect will not be significant.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The 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. 
Prior to any judicial challenge to the provisions of this rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.

Paperwork Reduction Act

    This rule does not contain information collection requirements 
subject to approval by the Office of Management and Budget under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507).

II. Background and Discussion of the Proposed Rule

    The Food and Nutrition Service (FNS) is proposing amendments to the 
regulations for the Food Distribution Program on Indian Reservations 
(FDPIR). These changes would define intentional program violations 
(IPV), establish penalties for them, and require Indian Tribal 
Organizations (ITOs) and State agencies that administer FDPIR to take 
appropriate action on suspected cases of IPV. This proposed rule was 
prompted, in part, by an audit recommendation by the Department of 
Agriculture's Office of Inspector General (OIG). In its audit of FDPIR, 
OIG randomly sampled participating households on 30 reservations and 
found that a number of the sample households had income that exceeded 
the eligibility guidelines. In many cases, the households failed to 
report earned income at certification, or changes in income during the 
certification period. OIG also found that a number of households were 
participating in FDPIR and the Food Stamp Program (FSP) at the same 
time, which is prohibited by FDPIR and FSP regulations. OIG's findings 
and recommendations are found in Audit Report No. 27601-6-KC, which was 
released on June 18, 1997.
    OIG recommended to FNS that it change FDPIR regulations to require 
ITOs and State agencies to take appropriate action on suspected cases 
of IPV. OIG further recommended that FNS pattern this requirement on 
FSP regulations at 7 CFR 273.16.
    FNS agrees with OIG's recommendation. The FDPIR operations

[[Page 39434]]

manual currently used by ITOs and State agencies, FNS Handbook 501, 
requires the disqualification of individuals or households for specific 
violations. Section 5662 of the handbook requires the disqualification 
of households that have willfully misrepresented their circumstances to 
obtain more benefits than they were eligible to receive, while Section 
5663 requires the disqualification of individuals or households that 
have been convicted of fraud by a court. However, these 
disqualification provisions are not found in the FDPIR regulations. 
Therefore, FNS is proposing changes to the FDPIR regulations that would 
incorporate these provisions, with some modification to promote 
conformance with FSP. As proposed, the definition of ``intentional 
program violation'' would incorporate the basic concept of ``willful 
misrepresentation of household circumstances'' contained in Section 
5662. The definition, which is discussed in more detail below, also 
borrows a FSP provision that would include as an IPV any violation of a 
Federal statute or regulation relating to the acquisition or use of 
commodities.
    In regard to Section 5663 of the handbook, the proposed rule 
instructs State agencies to apply the disqualification penalties 
imposed by a court of appropriate jurisdiction instead of the penalties 
specified in the proposed rule. This requirement is discussed below in 
the section of the preamble entitled ``Disqualification Penalties.'' 
Upon finalization of this rulemaking, FNS Handbook 501 will be revised 
to be consistent with regulatory provisions.
    In addition to defining IPV, the proposed rule would require ITOs/
State agencies to take action on suspected cases of IPV, impose 
standardized disqualification penalties, conduct appeal hearings, and 
issue claims against households, as appropriate. The specific 
provisions are discussed in detail below. To make these changes, we are 
proposing the redesignation of 7 CFR 253.8 and 253.9 as Sections 253.10 
and 253.11, respectively, and the addition of two new sections--Section 
253.8, Administrative disqualification procedures for intentional 
program violation, and Section 253.9, Claims against households.
    In response to OIG's recommendation, we developed the provisions of 
this proposed rule to be generally consistent with FSP IPV provisions 
at 7 CFR 273.16. However, FDPIR and FSP differ significantly in regard 
to program size, administrative complexity, and both administrative and 
benefit cost. This rulemaking reflects these differences. The proposed 
amendments would create an administrative disqualification system under 
FDPIR that is less complex and labor-intensive than the system used 
under FSP. For additional information on FSP provisions, please refer 
to the preambles of the following rulemakings: proposed rule of June 
22, 1982 (47 FR 27038), final rule of February 15, 1983 (48 FR 6836), 
proposed rule of August 29, 1994 (59 FR 44343), and final rule of 
August 22, 1995 (60 FR 43513).
    In the discussion and regulatory text below, we have used the term 
``State agency,'' as defined at 7 CFR 253.2, to include ITOs authorized 
to administer FDPIR.

 1. Treatment of Disqualified Household Members

    Current FDPIR regulations at 7 CFR 253.7(e)(3) specify that 
individuals who are disqualified from participation in FSP for fraud 
are ineligible to participate in FDPIR until the period of 
disqualification expires. This section also addresses the treatment of 
their resources and income and how benefits are determined for the 
remaining members of their household. To be consistent with FSP 
regulations, FNS is proposing a revision to Section 253.7(e)(3)(i) to 
change ``fraud'' to ``IPV.''
    FNS is also proposing to redesignate Section 253.7(e)(3) as Section 
253.7(f) and add a provision specifying that individuals who are 
determined by the State agency to have committed an IPV under FDPIR are 
also ineligible to participate in FDPIR until the period of 
disqualification expires. This section will also incorporate a 
provision from FNS Handbook 501 that allows ITOs to disqualify 
households, under certain circumstances, for failure to pay an 
overissuance claim. Section 5660 of the handbook specifies the 
circumstances under which a disqualification may be imposed for this 
reason.
    The proposed rule would also redesignate Section 253.7(e)(3)(ii) as 
Section 253.7(f)(2). This provision, which concerns the treatment of 
income and resources of the disqualified household member, would also 
apply to individuals disqualified for an IPV under FDPIR.

2. Definition of Intentional Program Violation

    FNS is proposing to establish a definition of ``intentional program 
violation'' at newly added Section 253.8(a). This definition is 
consistent with the definition used under FSP. As proposed, an 
intentional program violation occurs whenever an individual 
intentionally makes a false or misleading statement, or misrepresents, 
conceals, or withholds facts in order to obtain commodities under FDPIR 
which the households is not entitled to receive. An intentional program 
violation is also any act that violates any Federal statute or 
regulation relating to the acquisition or use of commodities. A program 
violation is considered ``intentional'' if the individual committed the 
act knowingly, willfully, and with deceitful intent.

3. Initiating Administrative Disqualification Procedures

    We are proposing at newly added Section 253.8(e)(3) that the State 
agency must attempt to substantiate all suspected cases of IPV. An IPV 
is considered to be substantiated when the State agency has clear and 
convincing evidence that demonstrates that an individual has 
intentionally committed one or more acts of IPV, as defined above. The 
State agency would be required to initiate the administrative 
disqualification procedures (i.e., issue a notice of disqualification) 
within 10 days of substantiating that an IPV had occurred, even if the 
individual is not currently participating in, or eligible for, FDPIR 
(newly added Section 253.8(e)(4)). The disqualification must begin with 
the next scheduled distribution of commodities that allows an advance 
notice period of at least 10 days, unless the individual requests a 
fair hearing (newly added Section 253.8(f)(1)).
    The proposed rule, at newly added Section 253.8(e)(6), would also 
require State agencies to refer substantiated cases of IPV to Federal, 
State, or local authorities for prosecution under applicable statutes. 
We recognize that prosecutors may reject certain cases for prosecution, 
e.g., cases in which the dollar value of the overissuance resulting 
from the IPV is below a specific amount. Therefore, we propose to allow 
State agencies to refer only those IPV cases that meet the prosecutors' 
criteria, when the State agencies have conferred with their legal 
counsel and prosecutors and determined the criteria for acceptance for 
possible prosecution.

4. Disqualification Penalties

    FNS is proposing the following disqualification penalties at newly 
added Section 253.8(b):
     12 months for the first violation;
     24 months for the second violation; and
     Permanent disqualification for the third violation.

[[Page 39435]]

    These penalties are consistent with those imposed by Section 6(b) 
of the Food Stamp Act of 1977, 7 U.S.C. 2015(b), as amended by Section 
813 of the Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996 (PRWORA) (Pub. L. 104-193). In addition, we are proposing 
the adoption of FSP policy whereby only the individual found to have 
committed the IPV, and not the entire household, is disqualified (newly 
added Section 253.8(c)).
    In instances where an IPV case is prosecuted and a court of 
appropriate jurisdiction imposes a disqualification period, we are 
proposing that the State agency must apply the court-ordered penalty 
instead of the proposed penalties above (newly added Section 
253.8(h)(5)).

5. Notification Requirements

    The State agency must take several actions simultaneously when it 
discovers that a household willfully misrepresented its circumstances 
or intentionally failed to report a change, as required by 7 CFR 
253.7(c), and, as is often the case, an overissuance occurred. It must 
begin the adverse action process to decrease or terminate benefits so 
that the benefit level accurately reflects the household's current 
circumstances. It must also issue a demand letter for repayment of the 
overissuance. Finally, the State agency must initiate the 
administrative disqualification process. To assist the reader in 
understanding the required time frames for these actions, we have 
included the following chart.

BILLING CODE 3410-30-P

[[Page 39436]]

[GRAPHIC] [TIFF OMITTED] TP22JY99.019



BILLING CODE 3410-30-C

[[Page 39437]]

    Where possible, the State agency may combine the various notices 
addressed above. Theses notices often may be addressed to different 
household members since the notice of disqualification is addressed to 
an individual, while the notice of adverse action and the demand letter 
for repayment of the overissuance is addressed to the household. 
However, in some cases the addressee may be the same. This is the case 
when the individual to be disqualified is the head of household--the 
same addressee for the notice of adverse action and the demand letter 
for the repayment of the overissuance.
    FNS is proposing, at newly added Section 253.8(e)(2), that the 
State agency must inform the household in writing of the 
disqualification penalties for IPV each time it applies for benefits, 
including recertifications.
    Newly added Section 253.8(e)(4) would also require the State agency 
to provide a notice of disqualification to an individual determined to 
have committed an IPV. The State agency must provide this notice within 
10 days of substantiating the IPV, as indicated above in Section 3 of 
this preamble. The requirements for the notice are specified at newly 
added Section 253.8(f). The notification must be mailed, or otherwise 
provided to the individual, so as to allow an advance notice period of 
at least 10 days before the date the disqualification is to take 
effect. The notice must conform to the requirements at Section 
253.7(b)(3)(iii)(C) for notices of adverse action, including a 
statement advising the individual of his right to appeal the 
disqualification through a fair hearing and to continue to receive 
commodities during the appeal process.
    The notice of disqualification only addresses the action to 
disqualify the individual for the substantiated IPV. It is still 
necessary for the State agency to issue a notice of adverse action, in 
accordance with Section 253.7(b)(3)(iii), prior to any action to reduce 
or terminate a household's benefits so that the benefit level 
accurately reflects the household's current circumstances.
    FNS is proposing several changes to the provisions for notices of 
adverse action at Section 253.7(b)(3)(iii). These changes would conform 
the adverse action requirements to those proposed for the notice of 
disqualification. The first change, at Section 253.7(b)(3)(iii)(A), 
would require that the State agency issue a notice of adverse action 
within 10 days of determining that the adverse action is warranted. We 
believe that State agencies should act timely in instances where it is 
determined that a household is ineligible or receiving an incorrect 
level of commodities. The requirement to issue an adverse action notice 
within 10 days will ensure that adverse action determinations are acted 
upon in a timely manner. The proposed rule would also require that the 
adverse action take effect with the next scheduled distribution of 
commodities that follows the expiration of the advance notice period, 
unless the household requests a fair hearing. This provision is 
consistent with the handling of disqualifications and would ensure that 
adverse actions are implemented in a timely manner.
    Section 253.7(b)(3)(iii)(B) addresses the required time frames for 
the advance notice period for the notice of adverse action. It 
specifies the requirements for cases that involve joint applications, 
as well as regular application processing cases. Section 253.7(f) 
discusses the State agency option to jointly process applications for 
FDPIR and public assistance or general assistance. The provisions under 
Section 253.7(b)(3)(iii)(B) for the advance notice period for joint 
application processing cases would not change. However, we are 
proposing a revision to the advance notice period for regular 
application processing cases. Currently, the notice for these cases 
must include an advance notice period that allows at least 10 and no 
more than 20 days to elapse before the adverse action takes effect. The 
proposed rule would require a minimum advance notice period of 10 days, 
but no maximum time frames would be imposed. An advance notice period 
of at least 10 days affords the individual sufficient time to respond 
to the adverse action notice and conforms to the advance notice period 
time frames used under the Food Stamp Program. Upon the expiration of 
the 10-day advance notice period, the adverse action will take effect 
unless an appeal is requested. The proposed rule would also substitute 
the word ``issued'' for the word ``mailed,'' since State agencies are 
not limited to using the mail system for the issuance of notices.
    We are also proposing several changes at Section 
253.7(b)(3)(iii)(C) relating to the requirements of the notice of 
adverse action. First, this rule would require that the notices include 
a statement advising the household that it will be liable for any 
overissuances received while awaiting a fair hearing, if the hearing 
official's decision is adverse to the household. We believe households 
should be aware that, although they have a right to continue to receive 
benefits pending the fair hearing, they will be held responsible for 
repaying those benefits if the fair hearing decision is not in their 
favor. Another requirement is a statement specifying the expiration 
date of the advance notice period. This date must allow at least 10 
days from the issuance date of the notice of adverse action notice to 
the date upon which the action becomes effective. Households need to 
clearly understand the specific date by which they must act in order to 
appeal an adverse action. We have also revised Section 
253.7(b)(3)(iii)(C) to conform to the concepts of plain language by 
creating a codified list of the notice requirements.
    FNS is also proposing that State agencies must provide households 
with a demand letter for repayment of overissuances, including those 
that resulted from an IPV. The demand letter must be issued at the same 
time the notice of adverse action is issued to the household (newly 
added Section 253.7(b)(3)(iii)(E)). It may be combined with the notice 
of adverse action.

6. Appeal of the Disqualification

    The proposed rule would require, at newly added Section 
253.8(g)(1), that an individual subject to a disqualification must be 
given the opportunity to appeal the disqualification through a fair 
hearing. The fair hearing provisions at 7 CFR 253.7(g) (to be 
redesignated as Section 253.7(h)) would be revised to include appeals 
of disqualifications, but the basic provisions of this section would 
not change. FNS believes that these fair hearing provisions provide 
adequate protection to the individual in regard to time frames for 
action by the State agency, the household's request for a delay of the 
hearing, requirements for requesting and denying a hearing, 
requirements for hearing officials, and the household's rights prior to 
and during the hearing.
    To ensure that the individual fully understands the implications of 
the fair hearing, FNS is proposing that specific information be added 
to the notification of time and place of the hearing required under 7 
CFR 253.7(g)(7) (to be redesignated as Section 253.7(h)(7)). The 
additional notice requirements, which can be found at newly added 
Section 253.8(g)(2), are: 1) a warning that if the individual fails to 
appear at the hearing, the hearing decision will be based solely on the 
information provided by the State agency; and 2) a statement that the 
hearing does not prevent the Tribal, State, or Federal Government from 
prosecuting the individual in a civil or criminal court action, or from 
collecting any overissuance(s).

[[Page 39438]]

    FNS is also proposing a change to the provisions at 7 CFR 
253.7(g)(11) (to be redesignated as Section 253.7(h)(11)) to improve 
the notice requirements for fair hearing decisions. First, the rule 
would establish a time frame for issuing the decision notice. State 
agencies would be required to inform the individual in writing of the 
decision within 10 days of the date the fair hearing decision is 
issued. The rule would also specify the requirements for hearing 
decision notices that relate to disqualifications. The notice must 
include the reason for the decision, the date the disqualification will 
take effect, and the length of the disqualification (i.e., 12 months; 
24 months; or permanent). Finally, if the individual is no longer 
participating, the notice must inform the individual that the period of 
disqualification will be delayed until the individual reapplies for and 
is determined eligible for FDPIR benefits.
    The State agency would also be required to notify (in writing) the 
remaining household members if the household was no longer eligible or 
the household's benefits changed as a result of the disqualification. 
Procedures for the treatment of income and resources of the 
disqualified member are discussed at 7 CFR 253.7(e)(3)(ii) (to be 
redesignated as Section 253.7(f)(2)).
    As proposed at newly added Section 253.8(h)(2), the State agency 
would be required to follow the decision of the fair hearing official. 
No additional appeal procedure exists within FDPIR if a 
disqualification is upheld by the fair hearing official. The 
individual, however, has the right to appeal to a court having 
appropriate jurisdiction. The court of appropriate jurisdiction could 
stay the period of disqualification or provide other injunctive remedy.
    As discussed earlier, the household is liable for the value of any 
overissued commodities received while awaiting the outcome of the fair 
hearing. Therefore, following the issuance of the fair hearing 
decision, the State agency must revise the demand letter to include the 
amount of overissued commodities provided to the household during the 
appeal process, unless the fair hearing decision specifically requires 
the cancellation of the claim (new paragraph (11)(iv) at redesignated 
Section 253.7(h)). The State agency must also advise the household that 
collection action on the claim will continue, in accordance with FNS 
Handbook 501, unless suspension is warranted.

7. Applying the Disqualification Penalty

    FNS is proposing at newly added Section 253.8(h)(1) that, if the 
individual does not request a fair hearing, the disqualification period 
must begin with the next scheduled distribution of commodities which 
follows the expiration of the advance notice period of the notice of 
adverse action. If the commodities are normally made available to the 
household within a specific period of time, e.g., from the first day of 
the month through the tenth day of the month, the effective date of the 
disqualification will be the first day of that period. The effective 
date for the disqualification must be specified in the notice of 
disqualification (newly added Section 253.8(f)(2)).
    In instances where the individual requested a fair hearing and the 
hearing official upheld the disqualification, newly added Section 
253.8(h)(2) of the proposed rule would require that the 
disqualification period begin the next scheduled distribution which 
follows the date the hearing decision is issued. If the commodities are 
normally made available to the household within a specific period of 
time, e.g., from the first day of the month through the tenth day of 
the month, the effective date of the disqualification will be the first 
day of that period.
    The individual's current eligibility status for FDPIR is not a 
factor in imposing the disqualification penalty. The State agency must 
proceed with imposition of the disqualification penalty even if the 
individual is not certified to participate in FDPIR at the time the 
disqualification penalty is to begin. Once a disqualification penalty 
has begun, it continues without interruption for the duration of the 
penalty period, i.e., 12 months, 24 months, or permanent (newly added 
Section 253.8(h)(3)). The disqualification period cannot be interrupted 
or shortened by a change in the eligibility of the disqualified 
member's household.
    As proposed at newly added Section 253.8(h)(4), the same act of 
intentional program violation continued over a period of time cannot be 
separated so that more than one penalty can be imposed. For example, a 
household intentionally fails to report that a household member left 
the household, resulting in an overissuance of benefits for 5 months. 
Although the violation occurred over a period of 5 months, only one 
penalty will apply to this single act of intentional program violation.

8. Claims Against Households

    The regulations at Parts 253 and 254 do not address the 
establishment of claims against households for overissuances. However, 
claims procedures are addressed in FNS Handbook 501 in Chapter V, 
Certification Procedures, Section 6, State Agency Claims Procedure 
Against Households. FNS is proposing the addition of new Section 253.9, 
Claims against households, which would require State agencies to 
establish and collect claims against households as specified in FNS 
Handbook 501. FNS Handbook 501 includes the criteria for establishing 
claims, the method for calculating claims, procedures for collecting 
claims, and provisions for the disqualification of households for 
failure to pay a claim.
    Newly added Section 253.9 would also stipulate that all adult 
household members are jointly and separately liable for any 
overissuance of program benefits to the household, even if they are not 
currently eligible for, or participating in, FDPIR. Therefore, in the 
case of an IPV disqualification, the disqualified member's household 
would remain responsible for repayment of the amount of the 
overissuance resulting from the IPV.
    The proposed rulemaking would also add the definition of 
``overissuance'' to Sections 253.2 and 254.2, respectively. 
``Overissuance'' would mean the dollar value of commodities issued to a 
household that exceeds the dollar value it was eligible to receive.

9. Technical Changes

    FNS is also proposing technical changes to Part 253 to correct 
erroneous regulatory references. On April 2, 1982, the Department 
published a final rule (47 FR 14135) that redesignated the contents of 
Part 283, Subchapter C (Food Stamp Program), in its entirety, as 
Subchapter B (Food Distribution Program) and renumbered it as Part 253. 
Some of the regulatory references to Part 283 that were contained in 
the newly designated Part 253 were never changed. This rulemaking would 
amend Part 253 to revise these and other incorrect regulatory 
references wherever they appear.

List of Subjects

7 CFR Part 253

    Administrative practice and procedure, Food assistance programs, 
Grant programs, Social programs, Indians, Reporting and recordkeeping 
requirements, Surplus agricultural commodities.

7 CFR Part 254

    Administrative practice and procedure, Food assistance programs, 
Grant programs, Social programs, Indians, Reporting and recordkeeping

[[Page 39439]]

requirements, Surplus agricultural commodities.

    Accordingly, 7 CFR Parts 253 and 254 are proposed to be amended as 
follows:

PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR 
HOUSEHOLDS ON INDIAN RESERVATIONS

    1. The authority citation for Part 253 is revised to read as 
follows:

    Authority: 91 Stat. 958 (7 U.S.C. 2011-2032).

    2. In Sec. 253.2, redesignate paragraphs (f) through (i) as 
paragraphs (g) through (j), respectively, and add new paragraph (f) as 
follows:


Sec. 253.2  Definitions.

* * * * *
    (f) Overissuance means the dollar value of commodities issued to a 
household that exceeds the dollar value of commodities it was eligible 
to receive.
* * * * *


Sec. 253.5  [Amended]

    3. In Sec. 253.5:
    a. Amend paragraph (a)(1) by removing the reference ``Sec. 253.9'' 
and adding, in its place, the reference ``part 250 of this chapter'';
    b. Amend paragraph (a)(2)(vii) by removing the reference ``part 283 
of this subchapter'' and adding, in its place, the words ``this part'';
    c. Amend paragraph (d)(1) by removing the references 
``Sec. 283.7(a)(2) and (b)(3)'' and adding, in its place, the 
references ``Sec. 253.7(a)(2) and (b)(3)'', and by removing the 
reference ``Sec. 283.7(c)'' and adding, in its place, the reference 
``Sec. 253.7(c)'';
    d. Amend paragraph (k)(1) by removing the reference ``Sec. 283.9(g) 
of this part'' and adding, in its place, the reference 
``Sec. 253.11(g)'';
    e. Amend paragraph (k)(2) by removing the reference ``Sec. 283.4'' 
and adding, in its place, the reference ``Sec. 253.4'';
    f. Amend paragraph (l)(1)(iii) by removing the reference 
``Sec. 283.5(k) or Sec. 283.9(g)'' and adding, in its place, the 
reference ``paragraph (k) of this section or Sec. 253.11(g)''; and
    g. Amend paragraph (l)(3)(i) by removing the reference 
``Sec. 283.4(d)(2)'' and adding, in its place, the reference 
``paragraph (m) of this section'', and removing the reference 
``Sec. 283.5'' and adding, in its place, the reference 
``Sec. 253.4(e)(2)''.


Sec. 253.6  [Amended]

    4. In Sec. 253.6:
    a. Amend paragraph (a)(3) by removing the reference 
``Sec. 283.7(a)(10)(i) and Sec. 283.7(a)(10)(ii)'' and adding, in its 
place, the reference ``Sec. 253.7(a)(10)(i) and 
Sec. 253.7(a)(10)(ii)'';
    b. Amend paragraph (b)(2) by removing the reference 
``Sec. 283.6(a)(3)(iv)'' and adding, in its place, the reference 
``paragraph (a)(2)(iv) of this section'';
    c. Amend paragraph (c)(1) by removing the reference 
``Sec. 283.6(a)(2)(ii)'' and adding, in its place, the reference 
``paragraph (a)(2)(ii) of this section'';
    d. Amend paragraph (d)(2)(iii) by removing the reference 
``Sec. 283.7(b)(1)(iii)'' and adding, in its place, the reference 
``Sec. 253.7(b)(1)(iii)'';
    e. Amend paragraph (e)(1)(i) by removing the reference 
``Sec. 283.6(a)(2)(ii)'' and adding, in its place, the reference 
``paragraph (a)(2)(ii) of this section'', and removing the reference 
``Sec. 283.6(c)'' and adding, in its place, the reference ``paragraph 
(c) of this section'';
    f. Amend paragraph (e)(2)(ii)(F) by removing the reference 
``Sec. 283.7'' and adding, in its place, the reference ``Sec. 253.7''; 
and
    g. Amend paragraph (e)(3)(ix) by removing the reference 
``Sec. 283.7(b)(1)(iii)'' and adding, in its place, the reference 
``Sec. 253.7(b)(1)(iii)''.
    5. In Sec. 253.7:
    a. Amend paragraph (a)(2) by removing the reference 
``Sec. 283.7(f)'' and adding, in its place, the words ``paragraph (g) 
of this section'';
    b. Amend paragraph (a)(5) by removing the reference 
``Sec. 283.7(a)(7) or Sec. 283.7(a)(9)'' and adding, in its place, the 
reference ``paragraphs (a)(7) and (a)(9) of this section'';
    c. Add two new sentences to the end of paragraph (b)(3)(iii)(A);
    d. Amend the second sentence of paragraph (b)(3)(iii)(B) by 
removing the words ``and no more than 20'', and by removing the word 
``mailed'' and adding, in its place, the word ``issued'';
    e. Revise paragraph (b)(3)(iii)(C);
    f. Add new paragraph (b)(3)(iii)(E);
    g. Amend paragraph (c)(1) by removing the reference 
``Sec. 283.6(e)(1)'' and adding, in its place, the reference 
``Sec. 253.6(e)(1)'';
    h. Remove paragraph (e)(3);
    i. Redesignate paragraphs (f) and (g) as paragraphs (g) and (h), 
respectively, and add a new paragraph (f);
    j. Amend newly redesignated paragraph (g)(1) by removing the 
reference ``Sec. 283.6(c)(2)'' and adding, in its place, the reference 
``Sec. 253.6(c)(2)'';
    k. Amend newly redesignated paragraph (g)(2) by removing the 
reference ``Sec. 283.7(a)(7) and Sec. 283.7(a)(9)'' and adding, in its 
place, the reference ``paragraphs (a)(7) and (a)(9) of this section'';
    l. Revise newly redesignated paragraph (h)(2)(i);
    m. Revise newly redesignated paragraph (h)(11)(iii); and
    n. Add new paragraph (h)(11)(iv).
    The revisions and additions read as follows:


Sec. 253.7  Certification of households.

* * * * *
    (b) Eligibility determinations. * * *
    (3) Certification notices. * * *
    (iii) Notice of adverse action.
    (A) * * * The notice must be issued within 10 days of determining 
that an adverse action is warranted. The adverse action must take 
effect with the next scheduled distribution of commodities that follows 
the expiration of the advance notice period, unless the household 
requests a fair hearing.
* * * * *
    (C) The notice of adverse action must include the following in 
easily understandable language:
    (1) The reason for the adverse action;
    (2) The date the adverse action will take effect;
    (3) The household's right to request a fair hearing and continue to 
receive benefits pending the outcome of the fair hearing;
    (4) The date by which the household must request the fair hearing;
    (5) The liability of the household for any overissuances received 
while awaiting the outcome of the fair hearing, if the fair hearing 
official's decision is adverse to the household;
    (6) The telephone number and address of someone to contact for 
additional information; and
    (7) The telephone number and address of an individual or 
organization that provides free legal representation, if available.
* * * * *
    (E) If the State agency determines that a household received more 
USDA commodities than it was entitled to receive, it must establish a 
claim against the household in accordance with Sec. 253.9. The initial 
demand letter for repayment must be provided to the household at the 
same time the notice of adverse action is issued. It may be combined 
with the notice of adverse action.
* * * * *
    (f) Treatment of disqualified household members.
    (1) The following are not eligible to participate in the Food 
Distribution Program:
    (i) Individuals disqualified from the Food Distribution Program for 
an intentional program violation under Sec. 253.8. These individuals 
may

[[Page 39440]]

participate, if otherwise eligible, in the Food Distribution Program 
once the period of disqualification has ended.
    (ii) Individuals disqualified from the Food Stamp Program for an 
intentional program violation under Sec. 273.16 of this chapter. These 
individuals may participate, if otherwise eligible, in the Food 
Distribution Program once the period of disqualification under the Food 
Stamp Program has ended. The State agency must, in cooperation with the 
appropriate food stamp agency, develop a procedure which ensures that 
these individuals are identified.
    (iii) Households disqualified from the Food Distribution Program 
for failure to pay an overissuance claim. The circumstances under which 
a disqualification is allowed for such failure are specified in FNS 
Handbook 501.
    (2) During the time a household member is disqualified, the 
eligibility and food distribution benefits of any remaining household 
members will be determined as follows:
    (i) Resources. The resources of the disqualified member will 
continue to count in their entirety to the remaining household members.
    (ii) Income. A pro rata share of the income of the disqualified 
member will be counted as income to the remaining members. This pro 
rata share is calculated by dividing the disqualified member's earned 
(less the 20 percent earned income deduction) and unearned income 
evenly among all household members, including the disqualified member. 
All but the disqualified member's share is counted as income to the 
remaining household members.
    (iii) Eligibility and benefits. The disqualified member will not be 
included when determining the household's size for purposes of 
assigning food distribution benefits to the household or for purposes 
of comparing the household's net monthly income with the income 
eligibility standards.
* * * * *
    (h) Fair hearing. * * *
    (2) Timely action on hearings.
    (i) Time frames for the State agency. The State agency must conduct 
the hearing, arrive at a decision, and notify the household of the 
decision within 60 days of receipt of a request for a fair hearing. If 
a fair hearing decision changes a household's eligibility or the amount 
of commodities to be provided, as determined by household size, the 
State agency must implement that change so that it is effective for the 
next scheduled distribution of commodities following the date of the 
fair hearing decision. If the commodities are normally made available 
to the household within a specific period of time, e.g., from the first 
day of the month through the tenth day of the month, the effective date 
of the disqualification will be the first day of that period.
* * * * *
    (11) Hearing decisions. * * *
    (iii) Within 10 days of the date the fair hearing decision is 
issued, the State agency must issue a notice to the household advising 
it of the decision.
    (A) If the decision upheld the adverse action by the State agency, 
the notice must advise the household of the right to pursue judicial 
review.
    (B) If the decision upheld a disqualification, the notice must also 
include the reason for the decision, the date the disqualification will 
take effect, and the duration of the disqualification (i.e., 12 months; 
24 months; or permanent). The State agency must also advise any 
remaining household members, if the household's benefits will change or 
if the household is no longer eligible as a result of the 
disqualification.
    (iv) The State agency must revise the demand letter for repayment 
issued previously to the household to include the value of all 
overissued commodities provided to the household during the appeal 
process, unless the fair hearing decision specifically requires the 
cancellation of the claim. The State agency must also advise the 
household that collection action on the claim will continue, in 
accordance with FNS Handbook 501, unless suspension is warranted.
* * * * *


Sec. 253.8  [Redesignated as Sec. 253.10 and Amended]

    6. Sec. 253.8 is redesignated as Sec. 253.10 and amended as 
follows:
    a. Amend paragraph (c)(12) by removing the reference 
``Sec. 283.7(b)(9)'' and adding, in its place, the reference 
``Sec. 253.7(a)(9)'';
    b. Amend paragraph (e) by removing the words ``the State agency's 
agreement with the Department under Sec. 250.6(b) of part 250 of this 
chapter and the requirements of Sec. 250.6(l) of this same chapter'' 
and adding, in its place, the reference ``Sec. 250.13 and Sec. 250.15 
of this chapter''; and
    c. Amend paragraph (f) by removing the reference ``Sec. 250.7 of 
part 250'' and adding, in its place, the reference ``Sec. 250.13(f)''.
    7. Add new Sec. 253.8 to read as follows:


Sec. 253.8  Administrative disqualification procedures for intentional 
program violation.

    (a) What is an intentional program violation? An intentional 
program violation is considered to have occurred when an individual 
knowingly, willingly, and with deceitful intent:
    (1) Makes a false or misleading statement, or misrepresents, 
conceals, or withholds facts in order to obtain Food Distribution 
Program benefits which the household is not entitled to receive; or
    (2) Commits any act that violates a Federal statute or regulation 
relating to the acquisition or use of Food Distribution Program 
commodities.
    (b) What are the disqualification penalties for an intentional 
program violation? Individuals determined by the State agency to have 
committed an intentional program violation will be ineligible to 
participate in the program:
    (1) For a period of 12 months for the first violation;
    (2) For a period of 24 months for the second violation; and
    (3) Permanently for the third violation.
    (c) Who can be disqualified? Only the individual determined to have 
committed the intentional program violation can be disqualified. 
However, the disqualification of a household member may affect the 
eligibility of the household as a whole, as addressed under paragraphs 
(e)(5) and (h) of this section.
    (d) Can the disqualification be appealed? Individuals determined by 
the State agency to have committed an intentional program violation may 
appeal the disqualification, as provided under Sec. 253.7(h)(1).
    (e) What are the State agency's responsibilities?
    (1) Each State agency must implement administrative 
disqualification procedures for intentional program violations that 
conform to this section.
    (2) The State agency must inform households in writing of the 
disqualification penalties for intentional program violation each time 
they apply for benefits, including recertifications.
    (3) The State agency must attempt to substantiate all suspected 
cases of intentional program violation. An intentional program 
violation is considered to be substantiated when the State agency has 
clear and convincing evidence that demonstrates that an individual has 
committed one or more acts of intentional program violation, as defined 
in paragraph (a) of this section.
    (4) Within 10 days of substantiating that an individual has 
committed an intentional program violation, the State agency must 
provide the individual

[[Page 39441]]

with a notice of disqualification, as described in paragraph (f) of 
this section. A notice is required even when the individual is 
currently neither eligible nor participating in the program.
    (5) The State agency must advise any remaining household members if 
the household's benefits will change or if the household will no longer 
be eligible as a result of the disqualification.
    (6) The State agency must provide the individual to be disqualified 
with an opportunity to appeal the disqualification through a fair 
hearing, as required by Sec. 253.7(h).
    (7) The State agency must refer all substantiated cases of 
intentional program violations to Federal, State, or local authorities 
for prosecution under applicable statutes. However, a State agency that 
has conferred with its legal counsel and prosecutors to determine the 
criteria for acceptance for possible prosecution is not required to 
refer cases that do not meet the prosecutors' criteria.
    (8) The State agency must establish claims, and pursue collection 
as appropriate, on all substantiated cases of intentional program 
violation in accordance with Sec. 253.9.
    (f) What are the requirements for the notice of disqualification?
    (1) Within 10 days of substantiating the intentional program 
violation, the State agency must mail, or otherwise provide, to the 
individual a notice of disqualification. The notice must allow an 
advance notice period of at least 10 days. The disqualification must 
begin with the next scheduled distribution of commodities that follows 
the expiration of the advance notice period, unless the individual 
requests a fair hearing. A notice is required even when the individual 
is currently neither eligible nor participating in the program.
    (2) The notice must conform to the requirements of 
Sec. 253.7(b)(3)(iii)(C) for notices of adverse action.
    (g) What are the appeal procedures for administrative 
disqualifications?
    (1) Appeal rights. The individual has the right to request a fair 
hearing to appeal the disqualification in accordance with the 
procedures at Sec. 253.7(h).
    (2) Notification of hearing. The State agency must provide the 
individual with a notification of the time and place of the fair 
hearing as described in Sec. 253.7(h)(7). The notice must also include:
    (i) A warning that if the individual fails to appear at the 
hearing, the hearing decision will be based solely on the information 
provided by the State agency; and
    (ii) A statement that the hearing does not prevent the Tribal, 
State, or Federal Government from prosecuting the individual in a civil 
or criminal court action, or from collecting any overissuance(s).
    (h) What are the procedures for applying disqualification 
penalties?
    (1) If the individual did not request a fair hearing, the 
disqualification must begin with the next scheduled distribution of 
commodities which follows the expiration of the advance notice period 
of the notice of adverse action. If the commodities are normally made 
available to the household within a specific period of time (e.g., from 
the first day of the month through the tenth day of the month), the 
effective date of the disqualification will be the first day of that 
period. The State agency must apply the disqualification period (i.e., 
12 months, 24 months, or permanent) specified in the notice of 
disqualification. The State agency must advise any remaining household 
members if the household's benefits will change or if the household is 
no longer eligible as a result of the disqualification.
    (2) If the individual requested a fair hearing and the 
disqualification was upheld by the fair hearing official, the 
disqualification must begin with the next scheduled distribution of 
commodities which follows the date the hearing decision is issued. If 
the commodities are normally made available to the household within a 
specific period of time (e.g., from the first day of the month through 
the tenth day of the month), the effective date of the disqualification 
will be the first day of that period. The State agency must apply the 
disqualification period (i.e., 12 months, 24 months, or permanent) 
specified in the notice of disqualification. No further administrative 
appeal procedure exists after an adverse fair hearing decision. The 
decision by a fair hearing official is binding on the State agency. The 
household member, however, may seek relief in a court having 
appropriate jurisdiction. As provided under Sec. 253.7(h)(11)(iii)(B), 
the State agency must advise any remaining household members, if the 
household's benefits will change or if the household is no longer 
eligible as a result of the disqualification.
    (3) Once a disqualification has begun, it must continue 
uninterrupted for the duration of the penalty period (i.e., 12 months; 
24 months; or permanent). Changes in the eligibility of the 
disqualified individual's household will not interrupt or shorten the 
disqualification period.
    (4) The same act of intentional program violation continued over a 
period of time will not be separated so that more than one penalty can 
be imposed. For example, a household intentionally fails to report that 
a household member left the household, resulting in an overissuance of 
benefits for 5 months. Although the violation occurred over a period of 
5 months, only one penalty will apply to this single act of intentional 
program violation.
    (5) If the case was referred for Federal, State, or local 
prosecution and the court of appropriate jurisdiction imposed a 
disqualification penalty, the State agency must follow the court order.


Sec. 253.9  [Redesignated as Sec. 253.11]

    8. Redesignate Sec. 253.9 as Sec. 253.11.
    9. Add new Sec. 253.9 to read as follows:


Sec. 253.9  Claims against households.

    (a) What are the procedures for establishing a claim against a 
household for an overissuance?
    (1) The State agency must establish a claim against any household 
that has received more Food Distribution Program commodities than it 
was entitled to receive.
    (2) The procedures for establishing and collecting claims against 
households are specified in FNS Handbook 501, The Food Distribution 
Program on Indian Reservations.
    (b) Who is responsible for repaying a household overissuance claim?
    (1) All adult household members are jointly and separately liable 
for the repayment of the value of any overissuance of Food Distribution 
Program benefits to the household.
    (2) Responsibility for repayment continues even in instances where 
the household becomes ineligible or is not participating in the 
program.

PART 254--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR 
INDIAN HOUSEHOLDS IN OKLAHOMA

    1. The authority citation for Part 254 continues to read as 
follows:

    Authority: Pub. L. 97-98, sec. 1338; Pub. L. 95-113.

    2. In Sec. 254.2, redesignate paragraphs (f) and (g) as paragraphs 
(g) and (h), respectively, and add new paragraph (f) to read as 
follows:


Sec. 254.2  Definitions.

* * * * *
    (f) Overissuance means the dollar value of commodities issued to a 
household that exceeds the dollar value of commodities it was eligible 
to receive.
* * * * *


[[Page 39442]]


    Dated: June 29, 1999.
Samuel Chambers, Jr.,
Administrator, Food and Nutrition Service.
[FR Doc. 99-18621 Filed 7-21-99; 8:45 am]
BILLING CODE 3410-30-P