[Federal Register Volume 84, Number 33 (Tuesday, February 19, 2019)]
[Proposed Rules]
[Pages 4739-4741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02577]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 33 / Tuesday, February 19, 2019 /
Proposed Rules
[[Page 4739]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 278 and 279
[FNS-2018-0021]
RIN 0584-AE63
Taking Administrative Actions Pending Freedom of Information Act
(FOIA) Processing
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Proposed rule.
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SUMMARY: The Food and Nutrition Service (FNS) seeks to prevent firms
authorized to participate in the Supplemental Nutrition Assistance
Program (SNAP or the Program) from delaying administrative actions,
such as disqualification or civil money penalties, through submission
of Freedom of Information Act (FOIA) requests or appeals. As such, FNS
is proposing that FOIA requests and FOIA appeals be processed
separately from administrative actions FNS takes against retail food
stores. This proposed rule would ensure that retail food stores can no
longer use the FOIA process to delay FNS' administrative actions to
sanction a retail food store for SNAP violations.
DATES: Written comments must be received on or before April 22, 2019 to
be assured of consideration.
ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on this proposed rule. Comments may
be submitted in writing by one of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Comments should be addressed to Vicky T. Robinson,
Chief, Retailer Management and Issuance Branch, Retailer Policy and
Management Division, Rm. 418, 3101 Park Center Drive, Alexandria,
Virginia 22302.
All written 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 written comments
publicly available on the internet via http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Vicky Robinson, Chief, Retailer
Management and Issuance Branch, Retailer Policy and Management, 4th
Floor, 3101 Park Center Drive, Alexandria, Virginia 22302, by phone at
703-305-2476, or by email at [email protected].
SUPPLEMENTARY INFORMATION:
Background
FNS disqualifies firms that violate Program rules from SNAP
participation by issuing a charge letter, examining the firm's response
to the charges, determining based on the evidence whether the firm
violated Program rules, and, if appropriate, informing the firm of any
sanctions imposed. The regulations at 7 CFR 278.6 require that the
charge letter specify the violations or actions which constitute the
basis for disqualification from SNAP or imposition of a civil money
penalty. The basis of evidence may include facts established through
on-site investigations, inconsistent SNAP redemptions, or transaction
data obtained through the electronic benefit transfer (EBT) system. A
firm charged with SNAP violations has 10 days to respond to the charge
letter. FNS reviews and considers the firm's response to the charge
letter before determining whether the firm violated any provisions of
the Food and Nutrition Act (the Act) or regulations. If FNS determines
that the firm has violated any provision of the Act or regulations, FNS
will issue a notice of determination to the firm. In accordance with
section 14(a)(18) of the Act, for firms that have been disqualified for
trafficking, one of the most serious offenses in the SNAP program, the
disqualification becomes effective immediately upon the date of receipt
of the notice of determination.
Firms charged with SNAP violations receive extensive procedural
protections through administrative and judicial review. Section 14 of
the Act and the regulations at 7 CFR part 279 provide retail food
stores disqualified from the Program an opportunity to file a request
for administrative review within 10 days of the date of delivery of the
notice of determination. The request for administrative review allows a
firm to submit additional information in support of its position to
FNS. If the Agency determination is upheld in administrative review,
the determination is final. Unless the firm had been disqualified for
trafficking, the disqualification takes effect 30 days after the date
of delivery of the final determination.
For retail food stores who feel aggrieved by the final
determination, the Act and regulations allow such retail food stores to
file a complaint against the United States to obtain judicial review of
the final determination within the 30 days of the date of delivery of
the final determination. The firm's suit against in the United States
is trial de novo and the firm may submit new information to the
reviewing court, which determines the validity of the questioned
administrative action.
The opportunity to present information in response to a charge
letter or during the administrative review process is not an
opportunity for discovery; however, the Agency currently holds possible
sanctions until a FOIA request is processed. Under 5 U.S.C. 552, any
person has the right to obtain access to Federal agency records, except
to the extent that such records are protected from release by a FOIA
exemption or exclusion. There are no FOIA-specific regulations for
SNAP-authorized retail food stores. If a firm files a FOIA request or
appeal after the firm is charged with violations, but before FNS issues
a notice of determination, FNS currently holds in abeyance
administrative action against the firm while the FOIA request and
appeal is being processed, allowing the firm to continue redeeming SNAP
benefits. Attorneys for some firms submit extensive and complex FOIA
requests and appeals, and repeatedly ask for information that has been
consistently denied when requested in prior cases, seemingly with the
intention of delaying FNS' final determination to disqualify or impose
a civil money penalty against the firm. Information the firm may seek
though
[[Page 4740]]
FOIA is generally the same information requested through the discovery
process at the judicial review level.
Retail food store case-specific FOIA requests appear to have become
a tool used by retail food stores and their attorneys to delay FNS
action on retail food stores violating Program rules. In Fiscal Year
(FY) 2017, 437 SNAP retail food stores submitted FOIA requests to FNS
after being charged with a SNAP violation. Holding SNAP administrative
actions in abeyance during the processing of a firm's FOIA request or
appeal has had a serious impact on SNAP integrity as violating firms
have continued to participate in SNAP through the FOIA processing
period.
As described earlier, in addition to the ten days from receipt of a
charge letter that a retail food store has to respond, the statute
provides the retail food store another ten days from receipt of a
notice of determination to request administrative review and submit
further information in support of its position before the determination
is made final. However, by statute, permanent disqualification for
trafficking in SNAP benefits goes into effect upon receipt of the FNS
notice of determination, regardless of whether the firm makes a timely
request for administrative review of that determination.
Based on these statutory provisions, it is clear that congressional
intent is to remove violating firms from the program in a timely and
expeditious manner. By ensuring that the FOIA process is separate from
the administrative determination process, this proposed rulemaking
would align FNS procedures with congressional intent.
To ensure that any request for records through FOIA does not delay
the effective date of the administrative determination, FNS proposes to
amend language at 7 CFR 278.6(p), 279.4(c), and 279.6(b) to provide
that any filed or pending FOIA request or appeal will not affect when
the Agency takes administrative action against a firm determined to
have violated SNAP statute or regulations. The proposed rule will have
a prospective effect, meaning the Agency would continue processing
existing FOIA requests or appeals but would not delay SNAP
administrative determinations in any cases.
Regardless of whether the retail food store submits a FOIA request
or appeal during the FNS administrative process, in accordance with
existing statute and regulations, the action to permanently disqualify
a retail food store for trafficking would take effect immediately upon
the date the store receives the notice of determination. Determinations
to temporarily disqualify or impose a civil money penalty in lieu of
disqualification will take effect 10 days after the firm receives the
FNS notice of determination, unless the firm makes a timely request for
administrative review. For cases other than those involving
trafficking, the final agency determination made after the
administrative review has been completed would take effect 30 days
after the date of delivery of the determination to the firm. Except for
firms disqualified from SNAP due to being disqualified from the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC),
firms will retain their right to administrative and judicial review of
the determination made, in accordance with 7 CFR part 279. However,
through this proposed action, any FOIA request or appeal filed or
pending during the administrative or judicial review process would have
no impact on when the agency can take administrative action.
Removing retail food stores from the Program at the point that FNS
has determined, based on the evidence, that a store violated SNAP
rules, will help ensure that the Program is conducted with integrity
and that taxpayer dollars are being used as intended.
Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 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 determined to be not significant and
was not reviewed by the Office of Management and Budget (OMB) in
conformance with Executive Order 12866.
Executive Order 13771
Executive Order 13771 directs agencies to reduce regulation and
control regulatory costs and provides that for every one new regulation
issued, at least two prior regulations be identified for elimination,
and that the cost of planned regulations be prudently managed and
controlled through a budgeting process. This rule is not an Executive
Order 13771 regulatory action because this rule is not significant
under Executive Order 12866.
Regulatory Impact Analysis
This rule has been designated as not significant by the Office of
Management and Budget, therefore, no Regulatory Impact Analysis is
required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule would not have a significant impact on a
substantial number of small entities.
While there may be some impact on small retail food stores, the
impact is not significant. This proposed rule primarily impacts retail
food stores that have been charged with SNAP trafficking and other
violations and FOIA officials at the federal level. The retail food
stores this proposed rule would impact would no longer able to delay an
FNS determination by submitting FOIA requests. The propose rule would
prompt the FNS notice of determination to be issued in a timely manner.
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 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.
[[Page 4741]]
Executive Order 12372
The Supplemental Nutrition Assistance Program is listed in the
Catalog of Federal Domestic Assistance under Number 10.551 and is not
subject to 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 13132.
The Department has considered the impact of this rule on State and
local governments and has determined that this rule does not have
federalism implications. Therefore, under section 6(b) of the Executive
Order, a federalism summary is not required.
Executive Order 12988, Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies which
conflict with its 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 USDA
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any
major civil rights impacts the rule might have on program participants
on the basis of age, race, color, national origin, sex or disability.
After a careful review of the rule's intent and provisions, FNS has
determined that this rule is not expected to affect the participation
of protected individuals in the Supplemental Nutrition Assistance
Program.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. We are unaware of any current
Tribal laws that could be in conflict with this rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. chap. 35; 5 CFR part
1320) requires the Office of Management and Budget (OMB) to 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 the Office of Management and Budget under the
Paperwork Reduction Act of 1994.
E-Government Act Compliance
The Department 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.
List of Subjects
7 CFR Part 278
Banks, banking, Food stamps, Grant programs--social programs,
Penalties, Reporting and recordkeeping requirements, Surety bonds.
7 CFR Part 279
Administrative practice and procedure, Food stamps, Grant programs-
social programs.
Accordingly, 7 CFR parts 278 and 279 are proposed to be amended as
follows:
0
1. The authority citation for 7 CFR parts 278 and 279 continues to read
as follows:
Authority: 7 U.S.C. 2011-2036.
PART 278--PARTICIPATION OF RETAIL FOOD STORES, WHOLESALE FOOD
CONCERNS AND INSURED FINANCIAL INSTITUTIONS
0
2. In Sec. 278.6, add paragraph (p) to read as follows:
Sec. 278.6 Disqualification of retail food stores and wholesale food
concerns, and imposition of civil money penalties in lieu of
disqualifications.
* * * * *
(p) Freedom of Information Act (FOIA) requests. A FOIA request for
records or FOIA appeal shall not delay or prohibit FNS from taking
administrative action against a firm under this part, or delay the
effective date of the FNS administrative action.
PART 279--ADMINISTRATIVE AND JUDICIAL REVIEW--FOOD RETAILERS AND
FOOD WHOLESALERS
0
3. Revise Sec. 279.4 by adding a new sentence before the last sentence
of paragraph (c) to read as follows:
Sec. 279.4 Action upon receipt of a request for review.
* * * * *
(c) * * * FNS may not grant extensions of time or hold the
administrative review process in abeyance solely on the basis of a
pending FOIA request for records or FOIA appeal. * * *
0
4. Revise Sec. 279.6 by adding a new sentence before the last sentence
of paragraph (b) to read as follows:
Sec. 279.6 Legal advice and extensions of time.
* * * * *
(b) * * * The designated reviewer may not grant extensions of time
or hold the administrative review process in abeyance solely on the
basis of a pending FOIA request for records or FOIA appeal. * * *
Dated: February 12, 2019.
Brandon Lipps,
Administrator, Food and Nutrition Service.
[FR Doc. 2019-02577 Filed 2-15-19; 8:45 am]
BILLING CODE 3410-30-P