[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Proposed Rules]
[Pages 51907-51914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21194]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / 
Proposed Rules  

[[Page 51907]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 272 and 273

RIN 0584-AE01


Clarification of Eligibility of Fleeing Felons

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Proposed rule.

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SUMMARY: Section 6(k) of the Food and Nutrition Act of 2008 (``the 
Act'') provides that certain individuals are not eligible for 
Supplemental Nutrition Assistance Program (SNAP) benefits. Such 
individuals include an individual fleeing to avoid prosecution, custody 
or confinement after conviction for committing a crime or attempting to 
commit a crime that is a felony under the law of the place from which 
the individual is fleeing (or a high misdemeanor in New Jersey) or is 
violating a condition of probation or parole under Federal or State 
law. Section 4112 of the Food, Conservation, and Energy Act of 2008, 
Public Law 110-246, amended Section 6(k) of the Act to require the 
Secretary of Agriculture to define the terms ``fleeing'' and ``actively 
seeking'' to ensure State agencies use consistent procedures to 
disqualify individuals. This rule proposes to define the terms 
``fleeing'' and ``actively seeking'' and to establish procedures State 
agencies are to use in determining fleeing felon status. This rule also 
proposes criteria to identify a parole violator, verification 
procedures to establish an individual's status, and time frames for 
disqualifying an individual determined to be a fleeing felon or a 
parole violator.

DATES: Comments must be received on or before October 18, 2011 to be 
assured of consideration.

ADDRESSES: FNS invites interested persons to submit comments on this 
proposed rule. Comments may be submitted by one of the following 
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send comments to Angela Kline, FNS, Program 
Development Division, SNAP, FNS, USDA, Room 812, 3101 Park Center 
Drive, Alexandria, Virginia 22302.
     All comments submitted in response to this proposed rule 
will be included in the record and will be made available to the 
public. Please be advised that the substance of the comments and the 
identity of the individuals or entities submitting the comments will be 
subject to public disclosure. FNS will make the comments publicly 
available on the Internet via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Angela Kline, Certification Policy 
Branch, Program Development Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2495.

Background

    The Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Food 
Stamp Act of 1977 (now entitled The Food and Nutrition Act of 2008) 
(the Act) to disqualify fleeing felons from SNAP. To be disqualified 
under the fleeing felon provisions of PRWORA, an individual must be 
either: fleeing to avoid prosecution, custody or confinement after 
conviction for committing a crime or attempting to commit a crime that 
is a felony under the law of the place from which the individual is 
fleeing (or a high misdemeanor in New Jersey); or violating a condition 
of probation or parole imposed under Federal or State law. The intent 
of the law was to prohibit individuals who were intentionally fleeing 
to avoid prosecution or imprisonment from receiving SNAP benefits and 
to aid law enforcement officials actively seeking to apprehend those 
fleeing to avoid prosecution or custody. The disqualification 
provisions were codified in the SNAP regulations on January 17, 2001 at 
66 FR 4438. For simplicity, throughout the balance of this preamble we 
will use the term felony to encompass both felonies and New Jersey's 
high misdemeanors.
    The current regulations do not define ``fleeing felon'' or 
``probation or parole violation'' and do not prescribe specific 
procedures for verifying or the time frames for denying and/or 
terminating individuals identified as either a fleeing felon or a 
parole violator. As a result, State agencies have not uniformly 
administered these provisions. Some State agencies rely solely on 
computer data matches to determine if an individual is fleeing or 
violating a condition of probation or parole. Other State agencies work 
directly with law enforcement officials prior to imposing a fleeing 
felon disqualification. Still others put the burden of proof of fleeing 
felon status on the individual in question, which may create a burden 
to program access for those who have little or no resources to gather 
the information needed, particularly if the felony record is in another 
State.
    In addition, there is no centralized, nationwide law enforcement 
database or data match system that States can access to verify whether 
an individual is a fleeing felon. Although the FBI's National Crime 
Information Center (NCIC) is the only Federal database system that 
compiles Federal, State, and local warrant information, the NCIC may 
contain only a fraction of local and State warrants issued across the 
nation. According to the Government Accountability Office's (GAO) 
September 2002 report on strengthening the implementation of the 
fleeing felon provisions, the NCIC data base contained only 
approximately 30 percent of State and local warrants in August 2000. 
Affected SNAP recipients and program advocates have expressed concerns 
that data match systems are unreliable as the information within the 
systems may not be accurate or current. For example, a data match may 
show there is an outstanding or active warrant, but may not specify 
whether the warrant is for a felony or a misdemeanor. In cases where 
there are similar names, aliases, or stolen identities, the outstanding 
or active warrant may not belong to the SNAP recipient. Because of the 
difficulty in establishing whether an individual is actually a fleeing 
felon, there are anecdotal statements that State agencies have 
erroneously denied or terminated benefits based solely on outdated,

[[Page 51908]]

inaccurate, or incomplete information obtained from a data match 
system.
    Finally, cooperation between State agencies and law enforcement 
agencies vary widely by jurisdiction and organizational structure. Some 
law enforcement agencies may allow a State agency to verify an 
individual's felon status with a simple phone call whereas other law 
enforcement agencies may require a more formal, written request 
detailing the specifics needed to determine eligibility for SNAP. If 
the felony occurred in a State where the recipient no longer resides, 
it may be even more difficult and time-consuming for a State agency to 
obtain information needed from law enforcement to determine if the 
individual is a fleeing felon.
    In an effort to enforce the fleeing felon provisions, a law 
enforcement initiative, Operation Talon, was established by the USDA 
Office of the Inspector General (OIG) with FNS concurrence on December 
18, 1997. Information from law enforcement agencies was matched with 
SNAP (Food Stamp Program at the time of Operation Talon initiation) 
caseload data to detect and apprehend individuals who were fleeing 
felons. FNS issued a memo in April 1998, providing that fleeing felon 
status was typically determined by the existence of an outstanding 
warrant for an individual's arrest and the individual is assumed to be 
fleeing as of the date the warrant is issued. The memo encouraged 
States and local agencies to work with law enforcements agencies to 
ascertain how State law defines fleeing felon and parole/probation 
violators. The memo also clarified that State agencies must resolve 
questionable information pursuant to 7 CFR 273.2 when computer matches 
indicated that an individual might be a fleeing felon or parole/
probation violator. In conjunction with Operation Talon, FNS issued 
policy on November 9, 2001 to address what constitutes ``fleeing'' that 
stated ``Even though a fleeing felon is usually determined by the 
existence of an outstanding warrant for the individual's arrest and the 
individual is assumed to be fleeing as of the date the warrant is 
issued, this may vary from State to State. Therefore, we encourage the 
State and local SNAP office to work with State and local law 
enforcement agencies to ascertain how State law defines fleeing felon 
and parole/probation violators.'' The memorandum also encouraged State 
agencies to give the individual an opportunity to submit documentation 
that the warrant has been Satisfied. Most recently, FNS has notified 
State agencies that this proposed rulemaking will clarify client rights 
and responsibilities and state administrative procedures. In developing 
proposed definitions for ``fleeing'' and ``actively seeking,'' we took 
into consideration the legislative history, from the debate on the 
Conference report for H.R. 2419, which later became the FCEA. As 
recorded on page H3815 of the Congressional Record, on May 14, 2008, 
Representative Baca expressed concern that innocent people have been 
ensnared in the disqualification provision and denied benefits in an 
inappropriate way. According to his statement, the provision has 
disqualified innocent people who had their identities stolen, or who 
have outstanding warrants for minor infractions that are many years old 
and where the police have no interest in apprehending and prosecuting 
the case. According to Senator Harkin's floor statement, 154 
Congressional Record S4752 (May 22, 2008), there is no public purpose 
served by denying food assistance to individuals whose offense were so 
minor or so long ago that law enforcement has no interest in pursuing 
them. He further stated that inadequate guidance to the States has 
resulted in exactly that and that Section 4112 would correct this by 
making the Department clarify the terms used and make sure that States 
are not incorrectly disqualifying needy people not being actively 
pursued by law enforcement authorities.
    Section 202 of PRWORA established similar provisions for 
Supplemental Security Income (SSI). The Social Security Administration 
(SSA) developed more rigorous standards than FNS in implementing the 
legislative provision. SSA's Social Security Program Operations Manual 
(POMS) provided that an individual is ineligible to receive SSI 
benefits beginning any month in which a warrant, court order or 
decision, or an order of decision by an appropriate agency is issued 
which finds that individual is wanted in connection with a crime that 
is a felony. SSA was sued in multiple courts on its policy. On 
September 24, 2009, the United States District Court for the Northern 
District of California approved a settlement agreement in the case of 
Martinez v. Astrue, Civ. No. 08-cv-04735 cw. Under that settlement, SSA 
will suspend or deny benefits to an individual only if a law 
enforcement officer presents an outstanding felony arrest warrant for 
any of three categories of NCIC Uniform Offense Classification Codes: 
Escape (4901), Flight to Avoid (prosecution, confinement, etc.) (4902), 
and Flight-Escape (4999).
    In developing these proposed procedures, FNS considered the 
settlement in the Martinez case and determined not to follow the 
provisions of that settlement in formulating either the definitions or 
the procedures. Although the initial PRWORA provisions are similar, FNS 
implemented the PRWORA provision in a much less rigorous form and now 
has additional legislation guiding the disqualification provisions. The 
FCEA preceded the decision in Martinez reached in August 2009, and 
provided specific direction for the agency to follow to amend its 
existing procedures. FNS maintains that the intent of the FCEA in 
requiring the defining of ``fleeing'' and ``actively seeking'' was for 
the agency to adopt more uniform and clear standards while preserving 
the basic intent of the original legislation--persons who are fleeing 
and are actively sought by law enforcement for felony charges should 
not get program benefits. The legislative direction essentially was to 
provide consistent treatment of fleeing felons, not to limit it to a 
very small class of felons. Accordingly, we believe that the limitation 
imposed by SSA on the types of warrants that are subject to the 
disqualification provisions is not appropriate for SNAP. However, we 
would be interested in hearing from commenters whether they disagree 
with our decision and believe that SNAP should follow the Martinez 
settlement in defining a fleeing felon.
    The regulations governing the fleeing felon and parole and 
probation violators are found at 7 CFR 272.1(c)(1)(vii) Disclosure, 7 
CFR 273.1(b)(7)(ix) Special household requirements, 7 CFR 
273.2(b)(4)(ii) Privacy Act Statement, and 7 CFR 273.11(n) Fleeing 
Felons and probation or parole violators. In this rulemaking, we are 
proposing to revise 273.11(n) in its entirety. A conforming amendment 
is proposed for 272.1(c)(1)(vii) Disclosure. We do not believe the 
remaining sections require revision.

Fleeing Felons

    In 273.11(n), we are proposing that, before a State agency 
determines an individual to be a ``fleeing'' felon, the following four 
criteria must be met: (1) There has to be a felony warrant for an 
individual; (2) the individual has to be aware of, or should reasonably 
have been able to expect that, a warrant has or would have been issued; 
(3) the individual has to have taken some action to avoid being 
arrested or jailed; and (4) a law enforcement agency must be actively 
seeking the individual. The first and fourth criteria are under the 
control of law enforcement and will be

[[Page 51909]]

addressed later in this preamble discussion. The second criterion, 
having knowledge of a warrant or should have reasonably anticipated a 
warrant, is primarily under the control of the individual. The third 
criterion, taking an action to avoid being arrested or jailed, is an 
action taken by the individual. In this rule, we are proposing that all 
four items have to be present and verified to determine that an 
individual is a fleeing felon (i.e., there is an outstanding felony 
warrant, the State agency has documented evidence that the individual 
knew about the warrant or could reasonably have anticipated a warrant 
was going to be issued, the State agency has documentation that the 
individual took an action to avoid arrest or jail for the felony, and a 
law enforcement agency is actively seeking the individual). There is 
only one exception to meeting these four criteria: FNS would consider 
an individual to be a fleeing felon if a law enforcement officer 
presents an outstanding felony arrest warrant for any of three 
categories of NCIC Uniform Offense Classification Codes: Escape (4901), 
Flight to Avoid (prosecution, confinement, etc.) (4902), and Flight-
Escape (4999) to a State agency to obtain information on the location 
of and other information about the individual named in the warrant, in 
accordance with the provisions of Section 11(e)(8)(E) of the Act.
    Surrounding the issues of who is a ``fleeing felon,'' what is 
``actively seeking,'' and who is a parole violator (for purposes of 
this disqualification provision) are questions about how the State 
agency discovers an individual's ``fleeing'' felon or probation or 
parole violation status, how this information is to be verified, and 
the time frames for acting on a denial or termination.
    There are three basic ways a State agency may become aware of a 
household's potential ``fleeing'' felon or probation or parole status:
     Through a statement by the household, such as checking off 
a block on an application or report form that a household member is a 
fleeing felon or violating parole;
     Through a data match with the FBI's data base NCIC or 
another data base of outstanding warrants; or
     Through a law enforcement officer who comes to a State 
agency specifically seeking information on a particular individual for 
whom he or she has a warrant, in accordance with the provisions of 
Section 11(e)(8)(E) of the Act.
    Each of these ways of learning about a potential fleeing felon 
raise issues about what constitutes ``fleeing'' and ``actively 
seeking'' and how they should be verified. We are proposing that 
primary responsibility for verifying fleeing felon status rests with 
the State agency, not the household. Although generally verification is 
the responsibility of the household, there are multiple sensitivities 
surrounding the disqualification of fleeing felons and probation and 
parole violators. This prohibition exists for two distinct goals, one, 
to keep fleeing felons off the program and two, to assist law 
enforcement officials in capturing individuals who are being actively 
sought and are participating or attempting to participate in SNAP. When 
the State agency is approached by a law enforcement agency seeking 
information about a specific individual, it would be counterproductive 
to ask a household to verify information that could result in a 
household member's capture. Further, a State agency may be more likely 
than a household to obtain information from a law enforcement officer 
about the status of an existing warrant. Also, data matches frequently 
reveal warrants that are old and/or from distant jurisdictions. Results 
from data match activities have shown that households often find it 
difficult or impossible to resolve these warrants. Some State agencies 
have denied or terminated individuals in these situations when there is 
no reasonable way for the individual to resolve the warrant and the law 
enforcement agency has not taken any action to execute the warrant.
    If a household reports that a member of the household is a 
``fleeing'' felon or probation or parole violator, FNS does not believe 
the State agency should make a determination that the person is indeed 
a fleeing felon or probation or parole violator and act to deny or 
terminate the individual based solely on the household's statement. 
Individuals may not understand the legal distinctions in this area or 
be certain about whether law enforcement is pursuing an action. Prior 
to determining that an individual is a fleeing felon, the State agency 
needs to obtain as much information as possible from the household 
about the household's knowledge of any outstanding warrant, the 
applicable time frames, the appropriate jurisdiction or law enforcement 
agency responsible for the warrant, the address of the potential 
fleeing felon at the time the warrant was issued, and any other 
information the household can provide about the warrant and the 
individual's actions. The State agency may obtain this information 
during the interview, or if an interview is not conducted, as part of 
its request for verification of other items included in the household's 
application. The State agency needs to verify with the appropriate law 
enforcement agency that there is an outstanding warrant, that the 
warrant is for a felony, and that the law enforcement agency is 
actively seeking the individual. If the household reported that the 
individual has tried to avoid the warrant, such a statement would be 
considered documentation that the individual took an action to avoid 
being arrested or jailed. Such a statement has to be more than a check-
off box on application or report form, however, so that it is clear 
that the recipient understands to what they are attesting. It needs to 
be an affirmative statement by the household that the individual in 
question did indeed attempt to avoid being arrested or jailed and what 
the individual did to attempt to evade arrest or being jailed. Absent 
such a statement, the State agency will need to evaluate the specific 
circumstances of each case to determine if there is documented evidence 
that the individual in question took action to avoid being arrested or 
jailed.
    It is important to note that the section 6(k) of the Act being 
addressed in this rulemaking does not prohibit participants who have 
committed a felony; it addresses individuals who are fleeing related to 
committing or possibly having committed a felony. It is important, 
therefore, that the State agency document one or more actions that 
indicate the individual was aware of the warrant and acted to avoid 
arrest. Knowledge of awareness of an existing warrant could include 
being interviewed by law enforcement officers about the felony in 
question or a statement from another household member, relative, or 
collateral contact, such as a landlord, that the individual was aware 
an officer had attempted to serve a warrant. Actions indicating 
avoidance of arrest could include moving to a new residence after the 
warrant has been issued, particularly a residence for which the 
individual is not the owner or holder of the lease, or using a 
different name, particularly not a normal name change such as a 
marriage or divorce. Such actions are not independent grounds for 
considering an individual as fleeing, however, these actions, when 
considered in conjunction with other factors, may indicate fleeing 
felon status. The household would retain its right to a fair hearing in 
the event the individual is denied or terminated based on a 
determination of fleeing felon status.

[[Page 51910]]

    Section 273.2(f)(5) provides that primary responsibility for 
verification rests with the household. It also provides that the State 
agency must assist the household in obtaining verification provided the 
household is cooperating. Given the difficulty individuals may have 
obtaining the necessary documentation from law enforcement agencies and 
the need to provide law enforcement with time to apply a warrant where 
appropriate, we have determined that the State agency shall bear 
primary responsibility for verifying and documenting fleeing felon 
status. State agencies engaging in data matching with outstanding 
warrant lists are already doing this, without the clear definitions of 
``fleeing'' and ``actively seeking.'' For households that report a 
fleeing felon as a household member on an application, the provisions 
for verification proposed in this rule are consistent with the 
requirement that the State agency verify and document all aspects of a 
household's eligibility and/or benefit level that are questionable.
    We are proposing to define ``actively seeking'' as:
     A law enforcement agency stating that it intends to 
enforce an outstanding warrant within 20 days of submitting a request 
to a State agency for information about a specific individual, in 
accordance with the provisions of Section 11(e)(8)(E) of the Act; or
     A law enforcement agency stating that it intends to 
enforce an outstanding warrant within 30 days of the date of a request 
from a State agency about a specific warrant.
    Absent a statement from the law enforcement agency that it will 
attempt to enforce the warrant within the time frame, we propose that 
the State agency determine that the law enforcement agency is not 
actively seeking the individual if no response from the law enforcement 
agency is received within the 20 day time frame provided in the notice 
from the State agency. A State agency usually has 30 days to act on a 
new application that is not subject to expedited service provisions. 
For new applicants, this should give State agencies sufficient time to 
request, receive a response, and act on the information provided by the 
law enforcement agency. We believe that 20 days is a sufficient amount 
of time for a law enforcement agency to make a determination whether to 
act on the warrant using the information available from the State 
agency and to respond to the State agency's request for information. We 
are interested in hearing from law enforcement agencies about whether 
they believe that this amount of time is sufficient for them to 
evaluate and act on information provided by a State agency.
    Some State agencies have conducted data matches with various law 
enforcement databases to ascertain if an individual participating in 
the program is a potential fleeing felon. As we described earlier in 
this preamble, data matches do not always indicate whether a warrant is 
for a misdemeanor or felony offense, the warrant may be old, and the 
applicable law enforcement agency may not be interested in pursuing the 
warrant, or the warrant may actually misidentify the SNAP recipient as 
the person being sought. Thus, the mere existence of a warrant naming 
an individual who is a SNAP recipient or applicant does not provide 
sufficient information to determine that the individual is actually a 
fleeing felon who is being actively sought by a law enforcement agency. 
Rather, it is a possible source for information about an individual who 
could, through additional verification, be determined to be a fleeing 
felon. In this rule we are proposing that such data matches are not 
considered verification that an individual is a fleeing felon or a 
probation or parole violator. We are proposing that a positive hit in 
such a data match be verified by the State agency in the same way that 
it verifies a household reporting that a member may be a fleeing felon. 
That means that the State agency must verify with the appropriate law 
enforcement agency that the warrant is for a felony and that the law 
enforcement office is actively seeking the individual. This is 
consistent with how other matches are treated in SNAP where the 
information cannot be considered verified upon receipt. The State 
agency must request sufficient information from the law enforcement 
agency to verify that the individual being sought by the warrant is 
actually the individual SNAP participant. Such information may include, 
but is not limited to, social security number, birthday date, race and/
or nationality, and place of birth.
    We propose that the State agency give the law enforcement agency 20 
days to respond to a request for information about the conditions of 
the warrant and whether the law enforcement agency intends to actively 
pursue the individual. If the warrant is not for a felony or if the law 
enforcement agency does not indicate that it intends to enforce the 
warrant within 30 days of the date of the State's request for 
information about the warrant, we are proposing that the State agency 
determine that the individual is not a fleeing felon and document the 
household's case file accordingly. We are proposing that if the law 
enforcement agency indicates that it does intend to enforce the warrant 
within 30 days of the date of the request for information on the 
warrant, the State agency will postpone taking any action on the case 
until the 30-day period has expired. Once the 30-day period has 
expired, we are proposing that the State agency verify with the law 
enforcement agency whether it has attempted to execute the warrant. If 
it has, the State agency would take appropriate action to deny an 
applicant or terminate a participant who has been determined to be a 
fleeing felon (that is, a case in which the law enforcement agency 
attempted to enforce the warrant but was unable to do so and intends to 
pursue enforcement) or who has been apprehended. The individual retains 
the right to request a fair hearing. If the law enforcement agency has 
not taken any action, we are proposing that the State agency not 
consider the individual a potential fleeing felon and take no further 
action in the matter.
    Finally, information about fleeing felon status could come to the 
attention of a State agency if a law enforcement agency comes to the 
State agency seeking information about an applicant for whom it holds 
an outstanding warrant. Section 11(e)(8)(E) of the Act requires that 
the State agency provide the information being requested by the law 
enforcement agency. The State agency may provide the address, social 
security number and photo of the participant or applicant, if it has 
one. In this rule, we are proposing that the State agency must:
     Provide the law enforcement agency with the information it 
requests;
     Request that the law enforcement agency notify the State 
agency if and when it attempts to enforce the warrant; and
     Take no action to contact or disqualify the individual for 
20 days.
    At the end of the 20 days, we are proposing that the State agency 
verify with the law enforcement agency whether it has attempted to 
execute the warrant. If it has, we are proposing that the State agency 
take appropriate action to deny an applicant or terminate a participant 
who has been determined to be a fleeing felon or who has been 
apprehended. If the law enforcement agency has not taken any action, we 
are proposing that the State agency not consider the individual a 
potential fleeing felon and take no further action in the matter.
    We recognize that the time frames for determining fleeing felon 
status may extend beyond the time frames allowed under 7 CFR 273.2(g) 
and 7 CFR

[[Page 51911]]

273.2(i)(3) for State agencies to process applications. Therefore, we 
are proposing in 273.11(n) that if a State agency needs to act on an 
application without determining fleeing felon status in order to comply 
with these time frames, the State agency shall process the application 
without consideration of the individual's fleeing felon status.

Probation and Parole Violators

    Section 6(k) of the Act prohibits any individual from participating 
in SNAP during any period during which the individual is violating a 
condition of probation or parole imposed under a Federal or State law. 
Neither the term ``fleeing'' nor ``felony'' are referenced in the 
prohibition from participating based on probation or parole violation. 
Additionally, the Act and the legislative history of the Act provide no 
guidance about what constitutes a probation or parole violation. The 
Act does not limit such violations to felony charges only. Therefore, 
we are proposing that the disqualification apply to all identified 
probation or parole violations. However, Section 6(k)(2) of the Act 
requires the Department to ensure that ``actively seeking'' is defined 
and that consistent procedures are established that disqualify 
individuals whom law enforcement authorities are actively seeking for 
the purpose of holding criminal proceedings against the individual. We 
are interpreting Section 6(k)(2) to require the application of the term 
``actively seeking'' to probation and parole violators. We are 
proposing in 7 CFR 273.11(n) that State agencies shall follow the same 
procedures for verifying through law enforcement whether an applicant 
or participant is a probation or parole violator as those used to 
determine if an individual is a fleeing felon. This would ensure that 
there are consistent procedures in place for establishing if a law 
enforcement office is actively seeking an individual, whether that 
individual is a fleeing felon or a probation or parole violator. It 
would make following the procedures easier for State agencies as there 
would be only one procedure to follow for each of these types of 
individuals disqualified under section 6(k) of the Act.

Privacy Act, Simplified Reporting, and Transitional Benefits

    It should be noted that the Privacy Act provisions and 
confidentiality provisions found at Section 11(e)(8) of the Act remain 
intact for individuals subject to the fleeing felon and parole or 
probation violator provisions of the Act. Therefore, we want to remind 
the reviewers of this rule that the provisions regarding the process of 
providing information to law enforcement officials only applies to 
legitimate law enforcement officers. Information about potential 
fleeing felons or parole or probation violators must not be released to 
bounty hunters or other individuals reporting possible violations by 
recipients or applicants.
    Under 7 CFR 273.12(a)(5) State agencies are permitted to place 
households under a simplified reporting system. Under such a system, 
the State agency may choose to act on all changes in household 
circumstances (7 CFR 273.12(a)(5)(vi)(A)) or to act on any change if it 
would increase the household's benefits and only act on any change that 
would decrease the household's benefits if the household has 
voluntarily requested that its case be closed, the State agency has 
information about the household's circumstances considered verified 
upon receipt, or there has been a change in the household's public 
assistance grant (7 CFR 273.12(a)(5)(vi)(B)). If an individual has been 
determined to be a fleeing felon or a probation or parole violator in 
accordance with 7 CFR 273.11(n), the Act prohibits this individual from 
participating in SNAP. In order to ensure that the individual is 
removed from the program in accordance with the requirements of the 
Act, we are proposing to add a requirement to 7 CFR 273.12(a)(5)(vi)(B) 
that the State agency act to remove the individual even though it might 
result in a decrease in benefits.
    Subpart H of Part 273, which was promulgated in accordance with 
Section 4115 of the Farm Security and Rural Investment Act of 2002, 
Public Law 107-17, (``FSRIA''), permits households leaving the 
Temporary Assistance for Needy Families (TANF) program to receive 
transitional benefits for households. Section 4115 refers to ineligible 
households rather than ineligible household members. State agencies 
have the option to provide transitional benefits to a household that 
contains members who are not in the TANF unit as well as a household 
that contains ineligible members or members who are under TANF 
sanction. Households in which all members are disqualified for being 
fleeing felons, or probation or parole violators are excluded from 
receiving transitional benefits. Once approved for transitional 
benefits, the benefit amount cannot be changed unless the State agency 
has opted to adjust the benefit in accordance with 7 CFR 273.27. We 
believe that, in order to conform to the intent of section 4115 of the 
Farm Security and Rural Investment Act concerning ineligible households 
rather than ineligible household members, the State agency shall not 
take action to adjust a household's transitional benefit amount because 
an individual in that household has been determined to be a fleeing 
felon or a probation or parole violator unless the provisions of 7 CFR 
273.27 are applicable.
    However, because section 6(k) of the Act prohibits an individual 
who is a fleeing felon or a probation or parole violator from receiving 
SNAP benefits, we are interested in hearing whether commenters believe 
that it is necessary, in order to conform with section 6(k) of the Act, 
that SNAP benefits are not provided to an individual found to be a 
fleeing felon or a probation or parole violator, in accordance with the 
provisions being proposed in this rulemaking, during the transitional 
benefit period.

SUPPLEMENTARY INFORMATION:

Procedural Matters

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``significant 
regulatory action'' although not economically significant, under 
section 3(f) of Executive Order 12866. Accordingly, the rule has been 
reviewed by the Office of Management and Budget.

Regulatory Impact Analysis

Need for Action

    This action is required to implement Section 6(k) of the Food and 
Nutrition Act of 2008. Section 6(k) provides that certain individuals 
are not eligible for Supplemental Nutrition Assistance Program 
benefits. Such individuals include an individual fleeing to avoid 
prosecution, custody or confinement after conviction for committing a 
crime or attempting to commit a crime that is a felony under the law of 
the place from which the individual is fleeing (or a high misdemeanor 
in New Jersey) or is violating a condition of probation or parole under 
Federal or State law. Section 4112 of the FCEA, amended Section 6(k) of 
the Act to require the

[[Page 51912]]

Food and Nutrition Service to define the terms ``fleeing'' and 
``actively seeking'' to ensure State agencies use consistent procedures 
to disqualify individuals. This action is not expected to have an 
effect on Federal Program costs.
    In developing the proposed procedures we considered the concerns 
expressed by representatives of Congress about individuals being 
disqualified based on mistaken identities or for older minor 
infractions that law enforcement no longer has an interest in pursuing. 
Further, based on experience with the implementation of the provision, 
we have determined that the responsibility for verification should rest 
with the State agency, not the recipient. The State agency is more 
likely to obtain cooperation from law enforcement in ascertaining if 
the law enforcement agency intends to enforce a warrant against a 
specific individual. Also, if law enforcement comes to the State 
agency, the State agency may delay taking action to give law 
enforcement time to act. Finally, recipients are frequently unable to 
resolve warrants from jurisdictions outside of the immediate area 
because of lack of funds to travel. State agencies can better ascertain 
if a distant law enforcement agency is interested in pursuing an 
identified individual. State agencies will be affected by this rule 
making to the extent they identify individuals who may be fleeing 
felons or probation or parole violators.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612). Pursuant 
to that review, it has been certified that this rule would not have a 
significant impact on a substantial number of small entities. 
Individuals identified as fleeing felons or parole violators will be 
affected by having their participation in the program terminated. The 
requirement to terminate such individuals' participation already 
exists. This rule only clarifies what participants will be determined 
to be fleeing. It is anticipated that potentially fewer participants 
will be terminated than under the previous requirements. State and 
local welfare agencies will be the most affected to the extent that 
they administer the program.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Department 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 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 Department to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the most cost effective or least burdensome alternative that achieves 
the objectives of the rule.
    This proposed rule does not contain any Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
Tribal governments or the private sector of $100 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

    The Supplemental Nutrition Assistance Program is listed in the 
Catalog of Federal Domestic Assistance Programs under 10.551. For the 
reasons set forth in the final rule in 7 CFR part 3015, subpart V, and 
related Notice (48 FR 29115, June 24, 1983), this program is excluded 
in the scope of Executive Order 12372 which requires intergovernmental 
consultation with State and local officials.

Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have Federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under Section (6)(b)(2)(B) of Executive Order 13122. FNS has 
considered this rule's impact on State and local agencies and has 
determined that it does not have Federalism implications under 
Executive Order 13132.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with this rule's provisions or which would otherwise 
impede its full and timely implementation. This rule is not intended to 
have retroactive effect unless so specified in the Effective Dates 
section of the final rule. Prior to any judicial challenge to the 
provisions of the final rule, all applicable administrative procedures 
must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this proposed rule in accordance with the 
Department Regulation 4300-4, ``Civil Rights Impact Analysis,'' to 
identify and address any major civil rights impacts the rule might have 
on minorities, women, and persons with disabilities.
    Section 821 of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 
6 of the Act to prohibit fleeing felons and parole violators from 
participating in the program. This prohibition was codified in SNAP 
regulations by the final rule ``Food Stamp Program; Personal 
Responsibility Provisions of the Personal Responsibility and Work 
opportunity Reconciliation Act of 1996'' (66 FR 4438). SNAP regulations 
at 7 CFR 273.11(n) addresses the prohibition for participation by an 
individual identified as a fleeing felon or a probation or parole 
violator. The existing regulations do not define ``fleeing'' and do not 
provide procedures for the State agency to use in disqualifying an 
individual identified as a fleeing felon or a probation or parole 
violator. Section 6(k) of the Act requires the Secretary of Agriculture 
to define the terms ``fleeing'' and ``actively seeking'' to ensure SNAP 
State agencies use consistent procedures to disqualify individuals. 
After a careful review of the rule's intent and provisions, FNS has 
determined that there is no way to determine whether the rule would 
have any impact on minorities, women, and person with disabilities. FNS 
does not collect information on persons disqualified under the fleeing 
felon and parole violation provisions. Such a new collection would be 
difficult information to capture and cause an unnecessary burden on 
State agencies. Therefore, we are unable to determine whether a 
disproportionate number of minorities, women, and persons with 
disabilities are disqualified. This rule proposes to provide greater 
direction on what constitutes a fleeing felon or parole violator, what 
constitutes actively seeking, and more uniform procedures among the 
States. The impact of the rule may be to lower the number of 
individuals disqualified, but without information on the number 
currently being disqualified or information on the number of warrants 
that will be applicable under the proposed procedures, there is no way 
to

[[Page 51913]]

determine if there actually will be a reduction. Nor, without such data 
being available is there a way to determine if the new provisions 
affect minorities, women, and persons with disabilities more than the 
general SNAP caseload.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; see 5 
CFR 1320) requires the Office of Management and Budget (OMB) approve 
all collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
This rule does not contain information collection requirements subject 
to approval by OMB under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    The Food and Nutrition Service is committed to complying with the 
E-Government Act, to promote the use of the Internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.

Executive Order 13175

    USDA will undertake, within 6 months after this rule becomes 
effective, a series of Tribal consultation sessions to gain input by 
elected Tribal officials or their designees concerning the impact of 
this rule on Tribal governments, communities and individuals. These 
sessions will establish a baseline of consultation for future actions, 
should any be necessary, regarding this rule. Reports from these 
sessions for consultation will be made part of the USDA annual 
reporting on Tribal Consultation and Collaboration. USDA will respond 
in a timely and meaningful manner to all Tribal government requests for 
consultation concerning this rule and will provide additional venues, 
such as webinars and teleconferences, to periodically host 
collaborative conversations with Tribal leaders and their 
representatives concerning ways to improve this rule in Indian country.
    We are unaware of any current Tribal laws that could be in conflict 
with the proposed rule. We request that commenters address any concerns 
in this regard in their responses.

List of Subjects

7 CFR Part 272

    Alaska, Civil rights, Supplemental Nutrition Assistance Program, 
Grant programs--social programs, Penalties, Reporting and recordkeeping 
requirements.

7 CFR Part 273

    Administrative practice and procedures, Aliens, Claims, 
Supplemental Nutrition Assistance Program, Fraud, Grant programs--
social programs, Penalties, Reporting and recordkeeping requirements, 
Social Security, Students.

    Accordingly, 7 CFR parts 272 and 273 are proposed to be amended as 
follows:
    1. The authority citation for Parts 272 and 273 continues to read 
as follows:

    Authority: 7 U.S.C. 2011-2036.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

    2. Paragraph 272.1(c)(1)(vii) is amended by revising the fourth and 
fifth sentences.
    The revision reads as follows:


Sec.  272.1  General terms and conditions.

* * * * *
    (c) * * *
    (1) * * *
    (vii) * * * If a law enforcement officer provides documentation 
indicating that a household member is fleeing to avoid prosecution or 
custody for a felony, or has violated a condition of probation or 
parole, the State agency shall follow the procedures in Sec.  273.11(n) 
to terminate the member's participation. A request for information that 
does not comply with the requirements in Sec.  273.11(n) would not be 
sufficient to terminate the member's participation. * * *
* * * * *

PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS

    3. Paragraph 273.11(n) is revised to read as follows:


Sec.  273.11  Action on households with special circumstances

* * * * *
    (n) * * *
    (1) Fleeing felon. To designate an individual as a fleeing felon, 
the State agency must verify that an individual is a fleeing felon or a 
law enforcement official must have provided the State agency with an 
appropriate warrant.
    (i) The State agency must verify that:
    (A) There is an outstanding felony warrant (or high misdemeanor 
warrant in New Jersey) for the individual;
    (B) The individual is aware of, or should reasonably have been able 
to expect that, a warrant has or would have been issued;
    (C) The individual has taken some action to avoid being arrested or 
jailed; and
    (D) A law enforcement agency is actively seeking the individual; or
    (ii) A law enforcement officer presents an outstanding felony 
arrest warrant, identified by one of the following National Crime 
Information Center Uniform Offense Classification Codes, to a State 
agency to obtain information on the location of and other information 
about the individual named in the warrant:
    (A) Escape (4901);
    (B) Flight to Avoid (prosecution, confinement, etc.) (4902); or
    (C) Flight-Escape (4999).
    (2) Probation and parole violators. Any individual discovered to be 
a parole or probation violator shall not be considered to be an 
eligible household member. To be considered a probation or parole 
violator, the individual must have violated a condition of his or her 
probation or parole and law enforcement must be actively seeking the 
individual to enforce the conditions of the probation or parole.
    (3) ``Actively seeking'' is defined for paragraphs (n)(1) and 
(n)(2) of this section as:
    (i) A law enforcement agency stating that it intends to enforce an 
outstanding warrant or arrest an individual for a probation or parole 
violation within 20 days of submitting a request to a State agency for 
information about a specific individual;
    (ii) A law enforcement agency presents a felony arrest warrant 
listed in paragraph (n)(1)(ii) of this section; or
    (iii) A law enforcement agency stating that it intends to enforce 
an outstanding warrant or arrest an individual for a probation or 
parole violation within 30 days of the date of a request from a State 
agency about a specific warrant or violation.
    (4) The State agency shall give the law enforcement agency 20 days 
to respond to a request for information about the conditions of the 
warrant or a probation or parole violation and whether the law 
enforcement agency intends to actively pursue the individual. If the 
law enforcement agency does not indicate that it intends to enforce the 
warrant within 30 days of the date of the State's request for 
information about the warrant, the State agency shall determine that 
the individual is not a fleeing felon or a probation or parole violator 
and document the household's case file accordingly. If the law 
enforcement agency indicates that it does intend to enforce the warrant 
within 30 days of the date of the request for information on the 
warrant, the State agency will postpone taking any action on the case 
until the 30-day period has expired. Once the 30-day period has

[[Page 51914]]

expired, the State agency shall verify with the law enforcement agency 
whether it has attempted to execute the warrant. If it has, the State 
agency shall take appropriate action to deny an applicant or terminate 
a participant who has been determined to be a fleeing felon or a 
probation or parole violator or who has been apprehended. If the law 
enforcement agency has not taken any action within 30 days, the State 
agency shall not consider the individual a potential fleeing felon or 
probation or parole violator, shall document the case file accordingly, 
and take no further action.
    (5) Application processing. The State agency shall continue to 
process the application while awaiting verification of fleeing felon or 
probation or parole violator status. If the State agency is required to 
act on the case without being able to determine fleeing felon or 
probation or parole violator status in order to meet the time standards 
in Sec.  273.2(g) or Sec.  273.2(i)(3), the State agency shall process 
the application without consideration of the individual's fleeing felon 
or probation or parole violator status.
* * * * *
    4. Paragraph 273.12(a)(5)(vi)(B) is amended by redesignating 
paragraph (a)(5)(vi)(B)(3) as paragraph (a)(5)(vi)(B)(4) and adding a 
new paragraph (a)(5)(vi)(3) to read as follows:


Sec.  273.12  Reporting requirements.

    (a) * * *
    (5) * * *
    (vi) * * *
    (B) * * *
    (3) A household member has been identified as a fleeing felon or 
probation or parole violator in accord with Sec.  273.11(n);

    Dated: August 11, 2011.
Kevin Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2011-21194 Filed 8-18-11; 8:45 am]
BILLING CODE 3410-30-P