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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly
[Federal Register: November 21, 2000 (Volume 65, Number 225)]
[Rules and Regulations]
[Page 70133-70212]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no00-17]
[[Page 70133]]
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Part III
Department of Agriculture
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Food and Nutrition Service
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7 CFR Part 272 et al.
Food Stamp Program: Noncitizen Eligibility, and Certification
Provisions of Pub. L. 104-193, as Amended by Public Laws 104-208, 105-
33 and 105-185; Final Rule
[[Page 70134]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 272, 273, 274, and 277
[Amendment No. 388]
RIN 0584-AC40
Food Stamp Program: Noncitizen Eligibility, and Certification
Provisions of Pub. L. 104-193, as Amended by Public Laws 104-208, 105-
33 and 105-185
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule finalizes a proposed rule published February 29,
2000, amending Food Stamp Program (Program) regulations to implement
several provisions of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), and subsequent amendments to these
provisions made by the Omnibus Consolidated Appropriations Act of 1996
(OCAA), the Balanced Budget Act of 1997 (BBA), and the Agricultural
Research, Extension, and Education Reform Act of 1998 (AREERA). This
action finalizes options related to matching activities, fair hearings
and recipient services. This action finalizes provisions which would
increase State agency flexibility in processing applications for the
Program and allow greater use of standard amounts for determining
deductions and self-employment expenses. This action also finalizes
revisions to the requirements for determining alien eligibility and the
eligibility and benefits of sponsored aliens, and requires certain
transitional housing payments and most State and local energy
assistance to be counted as income, excludes the earnings of students
under age 18 from income, and requires proration of benefits following
any break in certification.
Other provisions of this final action establish ground rules for
implementing the Simplified Food Stamp Program, allow State agencies
options to issue partial allotments for households in treatment
centers, count all, part, or, in some cases, none of the income of an
ineligible alien in determining the benefits of the rest of the
household, issue combined allotments to certain expedited service
households, and certify elderly or disabled households up to 24 months
and other households up to 12 months. The action also finalizes several
changes to existing regulations in response to the President's reform
initiative to remove overly prescriptive, outdated, and unnecessary
regulatory provisions.
The rule also makes final the proposals to add vehicles to the
assets which may be covered under the inaccessible resources provisions
of the Food Stamp Act of 1977, clarifies the procedures for shortening
or lengthening a certification period, and makes a change to exclude
from income on-the-job training payments received under the Summer
Youth Employment and Training Program as required by Section 702 of the
Workforce Investment Act (Pub. L. 102-367, originally known as the Job
Training Reform Amendments of 1992).
DATES: Effective Date: This final rule is effective January 20, 2001,
except for the amendment to Sec. 273.2(b)(4)(iv) which is effective
August 1, 2001, and the amendments specified in items 2 and 3 below
which are not effective until Office of Management and Budget (OMB)
approval of an associated information collection burden. The Food and
Nutrition Service will publish a document in the Federal Register
announcing the effective date of these amendments after approval of the
information collection requirements by OMB.
Implementation Dates:
1. State agencies may implement the following amendments at their
discretion at any time on or after the effective date: Sec. 272.8;
Sec. 272.11(a); Sec. 273.2(f)(9)(i); Sec. 273.2(f)(10);
Sec. 273.2(j)(2)(ii); Sec. 273.9(d)(6)(i); Sec. 273.9(d)(6)(iii)(E);
Sec. 273.11(a)(3)(v); Sec. 273.12(a)(1)(vii); Sec. 273.25; and
Sec. 277.4(b).
2. State agencies may implement the following amendment at their
discretion at any time on or after the effective date established by
OMB approval of the associated information collection burden:
Sec. 273.12(f)(4).
3. State agencies must implement the following amendments no later
than 180 days after the effective date established by OMB approval of
the associated information collection burden for all households newly
applying for Program benefits. State agencies must convert current
caseloads no later than the next recertification following the
implementation date: Sec. 273.2(c)(2)(i), Sec. 273.2(e)(1),
Sec. 273.2(e)(2)(i), Sec. 273.2(e)(2)(ii), Sec. 273.2(e)(3),
Sec. 273.4(c)(3)(iv); and Sec. 273.12(c)(3).
4. State agencies must implement the amendment to
Sec. 273.2(b)(4)(iv) no later than August 1, 2001, for all households
newly applying for Program benefits.
5. State agencies must implement all other amendments no later than
June 1, 2001, for all households newly applying for Program benefits.
State agencies must convert current caseloads no later than the next
recertification following the implementation date.
FOR FURTHER INFORMATION CONTACT: Patrick Waldron, Program Analyst,
Certification Policy Branch, Program Development Division, Food and
Nutrition Service, USDA, 3101 Park Center Drive, Room 800, Alexandria,
Virginia, 22302, (703) 305-2805 or e-mail at
Patrick.Waldron@fns.usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be economically significant
and was reviewed by the Office of Management and Budget in conformance
with Executive Order 12866.
Executive Order 13132
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments. FNS
has considered the impact on State agencies. For the most part, this
rule deals with changes required by law, and implemented by law in
1996. However, the Department has made discretionary changes to
preserve client protections that existed in the regulations prior to
the effective date of this rule and to facilitate the participation of
eligible low-income households, particularly households with wage
earners. These changes primarily affect food stamp recipients. The
effects on State agencies are moderate. In some instances, the changes
relieve State agencies of administrative burdens. In other instances,
the changes result in modest increases in administrative burdens.
However, we balanced these increases in State agency burden against the
need to preserve and enhance Program access to eligible low-income
families and individuals. This rule is intended to have preemptive
effect on any State law that conflicts with its provisions or that
would otherwise impede its full implementation. Generally, PRWORA and
other federal statutes required many of the changes made in this rule,
and made most of them effective on enactment and all of them effective
prior to the publication of this rule. FNS is not aware of any case
where the discretionary provisions of the rule would preempt State law.
Prior Consultation With State Officials
Before drafting this rule, we received input from State agencies at
various times. Because the Program is a State-administered, federally
funded program,
[[Page 70135]]
our regional offices have formal and informal discussions with State
and local officials on an ongoing basis. These discussions involve
implementation and policy issues. This arrangement allows State
agencies to provide feedback that forms the basis for many
discretionary decisions in this and other Program rules. In addition,
FNS officials attend regional, national, and professional conferences
to discuss issues and receive feedback from State officials at all
levels. Lastly, the comments on the proposed rule from State officials
were carefully considered in drafting this final rule.
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). Shirley R.
Watkins, Under Secretary for Food, Nutrition and Consumer Services, has
certified that this rule will not have a significant economic impact on
a substantial number of small entities. State and local welfare
agencies will be the most affected to the extent that they administer
the Program.
Paperwork Reduction Act
The information collection requirements affected by the issuance of
this final rule are or will be contained within the following OMB
numbers, 0584-0064, 0584-0083, and 0584-0496. Some requirements are
already approved. There are others about which we are seeking comment.
Those will not become effective until approved by OMB.
Current Information Burden (ICB) Approval
The information collection requirements governing State agency
administration and management described in the final rule at Part 272
have been eliminated, made optional or significantly modified as a
result of implementation of certain provisions of the PRWORA amending
the Program. Therefore, current reporting and record keeping burden
associated with Part 272, previously approved by OMB and assigned
control numbers 0584-0064 and 0584-0083, either remains the same or
there is no longer an information collection burden associated with the
provisions discussed in the preamble to this rule. OMB 0584-0064 also
includes information collection burden associated with Part 273.
The information collection requirements described in Sec. 273.2,
Sec. 273.12, Sec. 273.14(b), and Sec. 273.21 of this final rule
governing the application, certification, and ongoing eligibility of
food stamp households have been approved under OMB No. 0584-0064. The
information collection requirements described in Sec. 273.9(d) and
Sec. 273.11(b) of this final rule governing administration of the
homeless shelter deduction, establishing and reviewing standard utility
allowances, and establishing methodologies for offsetting the cost of
producing self-employment income have been approved under OMB No. 0584-
0496.
Results From 60 Day Comment Period
FNS has submitted the above-noted ICB packages to OMB for renewal
and they will remain in effect until further notice. We received no
comments on the ICB mentioned in the proposed rule. As discussed below,
the final rule contains additional reporting burden which must receive
OMB approval before the regulatory amendments become effective. The
associated amendments are Sec. 273.2(c)(2)(i), Sec. 273.2(e)(1),
Sec. 273.2(e)(2)(i), Sec. 273.2(e)(2)(ii), Sec. 273.2(e)(3),
Sec. 273.4(c)(3)(iv); Sec. 273.12(c)(3), and Sec. 273.12(f)(4).
Additional Burden
As a result of the numerous public comments on the proposed rule,
proposals to Part 273 in the rule were either modified or withdrawn.
These changes affect the ICB approved under OMB No. 0584-0064 and add
new collection burdens not previously published. The additional ICB
identified as a result of this final rule includes: (1) Notice of
Missed Interview; (2) the determination of indigence for eligible
sponsored aliens subject to deeming of sponsor income; (3) the
notification of households about face-to-face interview waivers; (4)
notifications to households that apply to both food stamps and TANF
that (A) time limits of other programs do not apply to the Food Stamp
Program; and (B) households are encouraged to continue the food stamp
application process even if the application for TANF benefits is
withdrawn; (5) the State agency's responsibility to forward misfiled
applications; (6) the Transition Notice for use in States electing to
provide the Transitional Benefits Alternative; and (7) the Request for
Contact. The number of initial food stamp applications and
recertifications received in 1999 according to the FNS National
Databank (8,139,774 and 9,992,025 respectively) will be used for these
estimates. The combined total of the received applications is therefore
18,131,799 for 1999.
In accordance with the Paperwork Reduction Act of 1995, FNS is
submitting for public comment the change in the ICB that results from
the adoption of the rule associated with the application,
certification, and ongoing eligibility of food stamp households. FNS is
incorporating the additional data collection activities governing the
application, certification, and ongoing eligibility of food stamp
households in OMB No. 0584-0064.
We invite comments on: (a) Whether the collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (b) the
accuracy of the agency's estimate of the burden of the collection of
information including the validity of the methodology and the
information to be collected; and (c) ways to minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology.
Send one copy of comments and/or request for copies of this
information collection to: Patrick Waldron, Program Analyst,
Certification Policy Branch, Program Development Division, Food and
Nutrition Service, 3101 Park Center Drive, Alexandria, VA 22302-1594,
703.305-2805. Comments may also be faxed to Mr. Waldron at
703.305.2486. FNS prefers to receive comments in the electronic medium.
Our Internet address is FSPHQ-WEB@fns.usda.gov. In the subject box,
please indicate ``NCEP ICB comments''. Only comments received prior to
5:00 p.m. EST on January 19, 2001, will be given consideration.
Title: Notice of Missed Interview.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: New data collection.
Abstract: Current rules require State agencies to reschedule missed
interviews. We are removing the requirement that the State agency
reschedule a missed interview. However, we are adding a requirement to
Sec. 273.2(e)(3) that the State agency must send a notice to a
household that misses its interview appointment indicating that it
missed the scheduled interview and informing the household that it is
responsible for rescheduling the interview.
Number of Additional Respondents: We are asking that States provide
reasonable estimates regarding the number of missed interviews in any
given time frame. Our initial inclination was to suggest that 25
percent of all initial applications and recertifications miss an
interview. Comments and/or
[[Page 70136]]
data regarding this estimated percentage are encouraged.
Estimated Number of Responses per Respondent: We are asking that
States provide reasonable estimates regarding this burden estimate. We
also assume that the same 25 percent receive one response per
respondent per year.
Estimate of Burden: Household burden--It is difficult to estimate
the burden to the household, since the manner in which the household
responds to the notice will vary considerably. The household may call
the local food stamp office to reschedule, arrive in person at the
office to reschedule, write a reply or send an e-mail. The amount of
burden time on the household depends on the manner in which the
household responds and the manner in which the State will accept
responses to the Notice of Missed Interview (NOMI). Therefore, we
estimated the household burden at approximately 10 minutes per notice.
In addition, some households will not respond to the notice of a missed
interview. We estimate that 25 percent will not respond to the notice.
We request that States provide information regarding the approximate
number of missed interviews per month or per year. State burden--due to
the automation of most State agencies, we assume the estimated burden
to issue a NOMI will be 15 seconds per notice plus a one-time
adjustment of forms, which is estimated at 20 hours per form.
Estimated Total Annual Burden on Respondents: Household burden--We
estimate that the total annual burden will be 75,575 hours (1,813,799
total applications x 0.25 x 10 min/60 min = 75,575 hours). State
burden--Since we do not know the estimated number of missed interviews
per State, we are requesting comments from the State agencies to
provide a better picture of the burden such a notice will cause. To
issue a notice, we are calculating the 10 seconds to equal 0.00277
hours. (10 seconds = 10 sec/60 sec per min = 0.16667 min/60 min per
hour = 0.00277 hours). The estimated total annual burden on the States
would be 1,256 hours (1,813,799 total applications x 0.25 x 0.00277
hours = 1,256 hours).
In addition, we anticipate a one-time adjustment of forms for the
State agencies. Due to computerized systems, we anticipate each State
agency will require an additional 20 work hours to revise the forms.
The total burden would then be 1060 hours (20 hours x 53 State
agencies = 1,060 hours).
The anticipated total burden on the State agencies would then be
2,316 hours (1,256 + 1,060 = 2,316).
Title: Determination of Indigence.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: New data collection.
Abstract: Under the final rule, Sec. 273.4(c)(3)(iv) exempts
certain eligible sponsored aliens from the provisions requiring deeming
of sponsor income and resources if the sponsored alien is indigent.
Under the final rule, an eligible sponsored alien is indigent if the
sum of all the sponsored alien's household's income and any assistance
the sponsor or others provide (cash or in-kind) is less than or equal
to 130 percent of the poverty income guideline. To comply with the
statute, and unlike a normal determination of income for food stamp
eligibility purposes, the indigence determination includes an
estimation of the value of in-kind assistance the sponsor and others
provide. The State agency would determine the amount of income and
other in-kind assistance provided in the month of application. Each
indigence determination is good for 12 months and is renewable for
additional 12-month periods. If the sponsored alien is indigent, then
the normal food stamp budgeting process would begin. The State agency
counts in the food stamp budget whatever actual cash contributions the
sponsor and others provide.
Number of Additional Respondents: We are asking that States provide
reasonable estimates regarding the number of indigent sponsored aliens
in any given time frame. The Department believes this is a small group
and data have not been collected to determine the exact number of
individuals involved. We believe that only eligible lawful permanent
residents who are Hmong or Highland Laotians or individuals who have a
U.S. military connection are potentially subject to the sponsor deeming
provisions of the Program. In as much as the provision applies only to
sponsored aliens who are sponsored by an individual, and not an
organization, and for whom an affidavit of support was executed on or
after December 19, 1997, we believe there may be less than 500
individuals who are subject to this provision and who are food stamp
eligible.
Estimated Number of Responses per Respondent: We anticipate only
one response per respondent per year.
Estimate of Burden: Household burden--We believe that the burden on
the household will not change. State burden--We estimate the burden on
the State to be approximately 10 minutes for collecting additional
information to determine the value of in-kind assistance provided by
the sponsor and/or others and to determine the indigence of the
applicant household.
Estimated Total Annual Burden on Respondents: Household burden--We
believe no additional burden is added to the household. State burden--
We estimate the total burden to be (10 min/60 min x 500 x 1/year)
83 additional burden hours per year. Comments and/or data regarding
this estimated percentage are encouraged.
Title: The Notification of Households About Face-to-Face Interview
Waivers.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: One time requirement to modify forms.
Abstract: Under the final rule the eligibility worker must advise
each applicant of the possibility waiving a face-to-face interview for
a telephone interview. Under the previous rule, applicant households
had to request information on the possibility of waiving the face-to-
face interview.
Number of Additional Respondents: We are asking that States provide
reasonable estimates regarding this burden. Comments and/or data
regarding this estimated percentage are encouraged. We are initially
estimating that each household that applies for food stamps or applies
for recertification will be affected. In 1999, there were 8,139,774
initial applications and 9,992,025 recertification applications.
Combined, the total number of applications in 1999 was 18,131,799.
Therefore, our initial estimate in the number of respondents affected
is 18,131,799.
Estimated Number of Responses per Respondent: We estimate one
response per application, for a total estimate of 18,131,799 per year.
Estimate of Burden: Household burden--We believe this does not
affect the burden on the household. State burden: We estimate 10
seconds to notify each applicant household.
Estimated Total Annual Burden on Respondents: Household burden:--We
believe this will not affect the burden on the applying households.
State burden--This totals to 50,366 hours per year for the States [(10
seconds/60)/60 x 18,131,799].
Title: Notification of Households That Apply for Both Food Stamp
Benefits and TANF That: Time Limits of Other Programs do not Apply to
the Food Stamp Program; and the Encouragement of Households To Continue
the Food Stamp Application Process Despite Requirements for Other
Programs and/or Actions of Other Programs.
OMB Number: 0584-0064.
[[Page 70137]]
Expiration Date: Three (3) years from approval date.
Type of request: New data collection.
Abstract: Time limits--The final rule requires the State agency to
inform households that receiving food stamps will have no bearing on
any other program's time limits. The interviewer must advise households
that are also applying for or receiving PA benefits that time limits
and other requirements that apply to the receipt of PA benefits do not
apply to the receipt of food stamp benefits; and that households which
cease receiving PA benefits because they have reached a time limit,
have begun working, or for other reasons, may still qualify for food
stamp benefits. Encouragement--The final rule provides that if the
State agency attempts to discourage households from applying for cash
assistance, it shall make clear that the disadvantages and requirements
of applying for cash assistance do not apply to food stamps. In
addition, it shall encourage applicants to continue with their
application for food stamps. The State agency shall in no way try to
discourage households from applying for food stamps. The State agency
shall inform households that receiving food stamps will have no bearing
on any other program's time limits that may apply to the household.
Number of Additional Respondents: This provision applies only to
applicants who apply for both TANF and food stamps.
Estimated Number of Responses per Respondent: We estimate one
response per household that applies for both Food Stamp benefits and
TANF.
Estimate of Burden: Household burden--We believe there is no burden
to the household for this provision. State burden--We estimate 10
seconds to notify of the two issues to each applicant household that
has applied to both TANF and food stamps.
Estimated Total Annual Burden on Respondents: Household burden--We
believe there is no burden to the household in this provision. State
burden--We are requesting comments from the State agencies on the
burden this provision imposes on the State agencies. The National
Databank indicated 2.8 million households were receiving food stamp
benefits and PA benefits in January 1999. Therefore, we estimate that
the total annual burden is 7,917 hours (2,800,000 x .00277 hours +
7,917) [10/60 = .16667 min. = .16667/60 = .00277 hours].
Title: The State Agency Responsibilities for Misfiled Food Stamp
Applications.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: New responsibility.
Abstract: This provision of the final rule would: (1) Continue to
allow the State agency to require households to file an application at
a specific certification office or allow them to file an application at
any certification office within the State or project are; (2) require
that if an application is received at an incorrect office, the State
agency advise the household of the address and telephone number of the
correct office (3) require the State agency to forward an application
received at an incorrect office to the correct office not later than
the next business day; and (4) remove the requirement currently located
in the third sentence of Sec. 273.2(c)(2)(ii) that the State agency
inform the household that its application will not be considered filed
and the processing standards must not begin until the application is
received by the appropriate office.
Number of Additional Respondents: We are asking that States provide
reasonable estimates regarding this burden. Comments and/or data
regarding this estimated percentage are encouraged. Since most project
areas have only one office, we believe the new rule will affect only
large project areas with multiple offices. Further, within that group
of project areas, only those which limit applications taken to a
specific geographic area or a specific caseload characteristic will
come under the rule. Therefore, we are estimating approximately 30
misfiled applications per month in each of the 100 counties. This
totals approximately 36,000 misfiled applications per year.
Estimated Number of Responses per Respondent: We believe this
occurs once per year per misfiled application.
Estimate of Burden: Household burden--We do not believe this incurs
additional burden on the household. State burden--This burden time is
dependent on the method in which the misfiled application is forwarded.
We believe this burden would take the State approximately 10 minutes
per misfiled application if the State agency faxed the application one
page at a time.
Estimated Total Annual Burden on Respondents: Household burden--We
believe there is no burden to the household for this provision. State
burden--This would take an additional 6,000 burden hours per year (10
min/60 min x 36,000 = 6000 hours).
Title: The Transition Notice.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: New data collection.
Abstract: The final rule provides an optional procedure for
providing TANF leavers with ``transitional food stamp benefits,'' much
in the same way families receive transitional Medicaid after leaving
TANF rolls. Under the new policy the State agency would freeze food
stamp benefits of households leaving TANF rolls for up to 3 months,
depending on the period of time since the household's last
certification. Near the close of the transition period, the State
agency would act on information collected from the household, either
adjusting the benefit level, or closing the household's food stamp case
because it is no longer eligible or it has failed to provide sufficient
information to continue its eligibility for the Program. In some cases,
the State agency would have to conduct a full recertification of
eligibility, if it was not possible to extend the household's
certification period beyond the statutory maximum for its
circumstances. This provision in the final rule will require State
agencies to develop a new form; however, State agencies may modify
existing forms to comply with the requirement.
Number of Respondents: This provision in the final rule only affect
families leaving TANF. Those affected households would receive a
``Transition Notice'' (TN) advising the household that due to the
closure of cash assistance, the food stamp allotment is frozen at the
pre-TANF closure amount. In addition, the TN must advise the household
that to continue participating in the Program, they must report changes
to the State agency within a specified time frame, or report to a
recertification interview, as directed in the TN.
Estimated Number of Responses per Respondent: Household burden--We
believe there is no additional burden to the household for this
provision. State burden--We do not anticipate additional burden on the
State agencies in issuing this Transitional Notice since this burden
replaces that of the Notice of Expiration (NOE) in such cases.
We estimate that about 15 State agencies will implement TBA in the
next 3 years. The total annual burden on the State for developing the
form is estimated to be a one-time adjustment of 20 hours to develop
the form and process. This totals 300 hours (20 x 15 State agencies =
300.
Title: The Request for Contact.
OMB Number: 0584-0064.
Expiration Date: Three (3) years from date of approval.
Type of request: New data collection.
Abstract: Another new provision in the final rule requires the
State agency
[[Page 70138]]
to obtain information or clarify information from the household during
the certification period. The new form, request for contact (RFC), is
necessary in situations where the household has reported a change, but
the information is so unclear that the State agency cannot readily
determine its effect on the household's benefit amount. The final rule
places the burden of clarifying an issue on the household. The RFC
informs the household of the information needed to continue its current
certification. Since the State agency cannot readily determine a
household's benefit amount without the clarification or missing
information, then the information is considered necessary. The State
agency must issue a written RFC that clearly advises the household of
the verification it must provide or the actions it must take to clarify
its circumstances. The RFC affords the household at least 10 days to
respond, either by telephone or by correspondence, as the State agency
directs. The RFC also indicates the consequences if the household fails
to respond to the RFC. Depending on the household's response to the
RFC, the State agency must take appropriate action, if necessary, to
close the household's case or adjust the household's benefit amount.
This is a new form and will be added to the burden package calculation.
Number of Additional Respondents: We estimate that 25 percent of
the change reports (12,375,185 x 0.25 = 343,796) will result in a
request for contact.
Estimated Number of Responses per Respondent: We also estimate that
on average, one request for contact will be issued in a 12-motnth
period.
Estimate of Burden: Household burden--It is difficult to estimate
the burden to the household, since the manner in which the household
responds to the RFC varies. The household may call the local food stamp
office to report information, arrive in person at the office to report,
write a reply or send an email. The amount of burden time on the
household depends on the manner in which the household responds and the
manner in which the State will accept. Therefore, we estimated the
household burden at approximately 10 minutes per notice. In addition,
some households will not respond to the RFC. We estimate 25 percent
will not respond to the notice. State burden--Due to the automation
capabilities of most State agencies, we estimate the burden on the
State to issue the RFC approximately 2 minutes per request. We do not
anticipate additional burden on the State agencies in issuing this RFC
since this burden is already calculated as part of the NOAA process.
The total annual burden on the State for developing the form is
estimated at a one-time adjustment of 20 hours to develop the form and
process.
Estimated Total Annual Burden on Respondents: Household burden--We
estimate that 25 percent of the change reports (1,375,185 x 0.25 =
343,796) will result in a request for contact. Since we believe 25
percent will not respond to the RFC, the remaining households who do
respond are anticipated to be approximately 75 percent of the RFCs
issued. We calculate the estimated total annual burden to the
households will be 42,975 hours (343,796 RFC/year x 0.75 x 10 min/
60 min per hour = 42,975 hours). State burden--We estimate the annual
burden would be 11,460 hours (343,796 x 1 x 2/60) to issue the RFC,
assuming that it will take on average 2 minutes or 0.0333 hours to
issue the RFC.
Added to the annual burden are the 20 hours per form for each State
agency to create the forms. This totals 1,060 hours (20 x 53 = 1,060
hours). Therefore, the combined total of the annual burden on the State
totals 12,520 hours (1,060 + 11,460 = 12,520 hours).
Executive Order 12988
We have reviewed this rule under Executive Order 12988, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
implementation. We do not intend this rule to have retroactive effect
unless so specified in the ``Dates'' paragraph of this preamble.
Challengers must exhaust all applicable administrative procedures,
prior to any judicial challenge to the provisions of this rule or the
application of its provisions.
Unfunded Mandate Analysis
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, 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 to State, local, or tribal
governments, or to the private sector in the aggregate 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 least costly, more 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) which impose costs on State, local,
or tribal governments or to the private sector of $100 million or more
in any one year. Thus, this rule is not subject to the requirements of
sections 202 and 205 of the URMA.
Civil Rights Impact Analysis
FNS has reviewed this final 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. After a careful
review of the rule's intent and provisions, and the characteristics of
food stamp households and individuals participants, FNS has determined
that there is no way to soften their effect on any of the protected
classes. FNS has no discretion in implementing many of these changes.
The changes required to be implemented by law, have been implemented.
All data available to FNS indicate that protected individuals have
the same opportunity to participate in the Food Stamp Program as non-
protected individuals. FNS specifically prohibits the State and local
government agencies that administer the program from engaging in
actions that discriminate based on race, color, national origin,
gender, age, disability, marital or family status. Regulations at 7 CFR
272.6 specifically state that ``State agencies shall not discriminate
against any applicant or participant in any aspect of program
administration, including, but not limited to, the certification of
households, the issuance of coupons, the conduct of fair hearings, or
the conduct of any other program service for reasons of age, race,
color, sex, handicap, religious creed, national origin, or political
beliefs.'' Discrimination in any aspect of program administration is
prohibited by these regulations, the Food Stamp Act of 1977 (Food Stamp
Act or the Act), the Age Discrimination Act of 1975 (Pub. L. 94-135),
the Rehabilitation Act of 1973 (Pub. L. 93-112, section 504), and title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). Enforcement
action may be brought under any applicable Federal law. Title VI
complaints must be processed in accordance with 7 CFR part 15. Where
State agencies have
[[Page 70139]]
options, and they choose to implement a certain provision, they must
implement it in such a way that it complies with the regulations at 7
CFR 272.6.
Regulatory Impact Analysis
Need for Action
We need to take this action with respect to the Program to
implement provisions of Pub. L. 104-193 (PRWORA) and subsequent
amendments, which would: (1) Remove specific requirements for State
agency processing of food stamp applications; (2) revise requirements
for determining the eligibility of aliens; (3) count as income certain
State and local energy assistance; (4) allow State agencies to count
all or part, or none of an alien's income in determining the benefits
of the rest of the household; (5) allow State agencies to certify
households consisting entirely of elderly or disabled members up to 24
months; (6) exclude the earnings of students under age 18; (7) make use
of a homeless shelter deduction optional; (8) allow State agencies to
mandate use of a standard utility allowance if they have at least one
standard that includes heating and cooling costs and one that does not;
(9) eliminate the exclusion for vendored transitional housing payments
for homeless households; (10) allow use of standard amounts in
determining self-employment expenses; (11) make optional the issuance
of combined allotments to expedited service households that apply after
the 15th of the month; (12) allow State agencies to issue partial
allotments to households in treatment centers; (13) require proration
of benefits following any break in certification; (14) allow State
agencies to accept an oral withdrawal from the household for a fair
hearing; (15) revise requirements for producing or displaying
nutritional education materials; (16) eliminate mandated training
standards; (17) eliminate the requirement for reviewing and reporting
on office hours; (18) revise mail issuance requirements in rural areas;
(19) prohibit Federal reimbursement for recruitment activities from
being approved as part of a State agency's optional Outreach plan; (20)
make optional rather than mandatory the use of the Income Eligibility
and Verification System and the Systematic Alien Verification for
Entitlements match programs; and (21) establish ground rules for
implementing the Simplified Food Stamp Program (SFSP). In addition, we
need to take this action to implement Departmental initiatives to
revise the policy for counting the resource value of licensed vehicles,
to provide an optional transitional benefit for TANF leavers, to
provide an optional alternative reporting system of semi-annual
reporting for households with earnings, and to make a change to exclude
from income on-the-job training payments received under the Summer
Youth Employment and Training Program as required by Section 702 of the
Workforce Investment Act.
Legislative Provisions
Budget Impact
This rule implements provisions from two laws, PRWORA and AREERA.
Using assumptions from the 2001 Budget Agency Mid-session estimate, we
estimate the total Food Stamp Program budget impact of this rule in
Fiscal Year (FY) 2000 to be -$617 million. We estimate the 5 year
budget impact for FY 2000 through FY 2004 to be -$1.932 billion.
The legislative provisions have a budget impact in FY 2000 of -$622
million and a 5 year budget impact for FY 2000 through FY 2004 of
-$3.002 billion.
The legislative savings primarily stem from the provisions of
PRWORA that make many aliens ineligible to participate (section 402)
and the provision that requires counting as income for food stamp
purposes most State and local energy assistance (section 808). The
Program realizes smaller savings from the following provisions of
PRWORA: section 807, earnings of children; section 809, standard
utility allowances; section 811, transitional housing payments; and
section 827, proration of benefits at recertification. The SFSP
authorized under section 854 may result in savings or increased Program
costs with respect to individual households; however, the net impact of
SFSP implementation must be cost neutral.
Provisions in the rule that have negligible budget impact are not
discussed in this analysis.
Section 402--Alien Eligibility
Section 402 of the PRWORA significantly reduces the number of legal
aliens who are eligible for food stamps. Effective August 22, 1996, for
applicants and August 22, 1997, for current recipients, many aliens
legally admitted for permanent residence who were previously eligible
became ineligible. The exceptions are those admitted as refugees,
asylees, Cubans, Haitians, Amerasians, and those who have had removal
withheld who retain eligibility for the first 5 years (later changed to
7 years by AREERA) after admission; lawful permanent residents who have
earned or been credited with at least 40 quarters of coverage as
defined by the Social Security Administration; and those who are
serving or have served in the U.S. armed forces and their spouses and
children. Effective November 1, 1998, AREERA made certain Hmong,
Highland Laotians, and American Indians born outside of the U.S.
eligible for food stamps. It also made aliens who were lawfully living
in the U.S. on August 22, 1996, eligible for food stamps if they are
under 18, or are disabled, or were age 65 or older on August 22, 1996.
Those aliens who lost eligibility will contribute to smaller State
agency caseloads. However, determining the eligibility of individuals
will be more complicated. For certain categories of aliens, State
agencies will have to determine when the individuals were admitted. For
other categories, State agencies will have to obtain information
regarding the applicant's work history. Thus, there may be no
significant savings in caseworker time.
In FY 2000, without taking into account the cost of restoring
benefits to selected aliens through AREERA, we estimate that the budget
impact would have been -$440 million. The budget impact for the 5-year
period FY 2000-FY 2004 is -$2.275 billion. We estimate that in 1998,
approximately 838,000 participants lost eligibility with an average
benefit loss of $23 a month and another 950,000 people remained
eligible but lost an average of $31 a month. About 80,000 people living
in households with ineligible aliens received a slightly larger per
person benefit for those still eligible and participating in the
Program, on average $12 per month. This is because of economies of
scale in the allotment tables which are by household size, i.e., a two-
person household based on no income would receive a larger per person
allotment than a three-person household based on no income. It is
important to realize that all of these ``gainers'' lived in households
where the total food stamp benefit available to the household declined.
Based on information from a simulation model using 1996 Food Stamp
Quality Control data, together with information from the Immigration
and Naturalization Service (INS) on immigration and naturalization
patterns and the Survey of Income and Program Participation (SIPP) on
the work histories of aliens, we estimate that 20 percent of permanent
residents meet the 40-quarters work exemption. Using information from
the Current Population Survey on the veteran status
[[Page 70140]]
of aliens, we estimate that less than 1 percent meet the veteran's
exemption. Moreover, because applications for naturalization have
increased dramatically over the last 2 years, we anticipate that
naturalizations will increase through FY 2001, reducing somewhat the
number of persons losing eligibility and benefits through that time
period compared to FY 1998.
The enactment of AREERA on November 1, 1998 restored benefits to an
estimated 175,000 legal immigrants when fully implemented in FY 2002,
with a budget impact of $85 million in 2000 and $665 million for the
five-year period 2000-2004. At the time of AREERA's passage, the
estimate of immigrants that would receive restored benefits was higher
(225,000), but changes in the economy have caused us to revise those
estimates downward.
PRWORA does not address how or whether to count the income or
resources of the aliens made ineligible by PRWORA for purposes of
determining eligibility or allotment amounts for the rest of the
household. Alternatives were considered including counting ineligible
aliens' resources and all income; counting resources and a pro-rated
share of income; not counting the ineligible aliens' income, but
capping the resulting allotment for the eligible members at the
allotment a similarly situated all citizen household would receive; or
counting neither income nor resources. The alternative chosen under the
proposed rule would be to allow the State agency to pick one State-wide
option for determining the eligibility and benefit level of households
with members who are aliens made ineligible under PRWORA. State
agencies may either: (1) Count the resources and a pro-rated share of
the ineligible aliens' income; or (2) count the resources, not count
the ineligible aliens' income, but cap the resulting allotment for the
eligible members at the allotment amount the household would receive
were it not for the PRWORA eligibility restrictions.
Using a simulation based on the 2000 baseline version of the 1996
QC Minimodel, we estimate that the option of excluding the income of
PRWORA-ineligible aliens increases costs by an estimated $2 million for
FY 2001 and $23 million for FY 2000 through FY 2004. (This cost is
included in the total for Departmental initiatives.) These estimates
take into account current State practices and an expected shift of some
States from the first option.
Section 807--Earnings of Children
This provision revises the current exclusion from income of the
earnings of elementary or secondary school students under age 22 to
exclude the earnings of these students only if they are under 18. Based
on the 1996 Quality Control data, it is estimated that the benefits of
approximately 2,700 students will be reduced an average of $62 per
month. FY 2000 budget impact is estimated at -$2 million and a 5-year
budget impact of -$12 million.
Section 808--Energy Assistance
This provision eliminates the exclusion from income of most State
and local energy assistance payments. Federal, State, or local one-time
payments for weatherization and replacement or repair of heating or
cooling devices are excluded. All federal energy assistance payments
are excluded, except those provided under Title IV-A of the Social
Security Act. State agencies are required to count as income the
portion of the public assistance grant previously excluded as energy
assistance. Using 1996 food stamp QC data on the number of AFDC/FSP
households in each State and 1996 Green Book data on the average AFDC
disregard for state-provided energy assistance, we estimated that
benefits for approximately 3.959 million participants will be reduced,
with each person losing an average of $4.42 a month. This results in a
budget impact of -$210 million for FY 2000 and a 5-year budget impact
of -$1.05 billion.
Section 811--Transitional Housing Payments
This provision removes the statutory exclusion from consideration
as household income any State PA or GA payments made to a third party
on behalf of a household residing in transitional housing for the
homeless. State agencies may continue to exclude PA housing payments
from income if they are emergency or special payments over and above
the regular grant or are provided for migrant or seasonal farmworker
households while they are in the job stream. GA housing payments may be
excluded if they are provided by a State or local housing authority,
are emergency or special payments, or the assistance is provided under
a program in a State in which no GA payments may be made directly to
the household in the form of cash. State agencies will have to notify
affected households that their benefits will be reduced.
Several States had been renting hotels to house PA households and
the additional value of this ``welfare hotel'' benefit was being
excluded from income in determining food stamp benefits. Based on
estimates derived from data on AFDC and shelter payments made to the
number of food stamp households estimated to be living in welfare
hotels, approximately 76,000 recipients will lose benefits, for a
budget impact of -$10 million in FY 2000 and a 5-year budget impact of
-$50 million. The average benefit loss per person is about $11 a month.
Section 809--Standard Utility Allowances
This provision allows State agencies to mandate use of a standard
utility allowance that includes heating or cooling costs, provided the
State agency has another standard allowance that does not include
heating or cooling costs and the mandatory standards will not increase
Program costs. The PRWORA also provides that in a State that does not
choose to make standards mandatory, households are allowed to switch
between actual expenses and a standard only at recertification.
The rule provides requirements for a nonheating/cooling standard
and would require State agencies to provide FNS with sufficient data to
determine whether or not the State agency's proposed standards are
cost-neutral. The rule also provides that elderly or disabled
households certified for 24 months may switch at the 12-month point
when the State agency is required to contact the household. The State
agency would be required to allow households a choice between using
actual expenses or a standard when they move and incur shelter
expenses. The rule also would allow households in private rental
housing to use a standard allowance that includes heating or cooling
costs if they incur an expense for heating or cooling separately from
their rent. Many of these households are currently entitled to the
standard because they receive Low-Income Home Energy Assistance
(LIHEAP) payments. Households in public rental housing that incur only
the cost of excess usage are prohibited by the Food Stamp Act from
receiving a heating or cooling standard.
The provision of the PRWORA allowing mandatory utility standards
would increase State agency flexibility and reduce the time needed to
calculate the shelter expenses of households which previously claimed
actual costs. Savings result from two factors: (1) If a State mandates
a standard, households with shelter costs higher than the SUA would no
longer be allowed to claim actual costs; and (2) households will no
longer be allowed to switch between the SUA and actual costs one
additional time during each 12-month period.
Using a simulation model based on 1994 data from the Survey of
Income
[[Page 70141]]
and Program Participation (SIPP), and adjusting for the fact that only
five States (Delaware, Louisiana, Michigan, North Dakota, and Wyoming)
with only seven percent of the caseload initially implemented this
option, we estimate that the benefits of approximately 141,000 people
were reduced in 1998 for an average loss of a little more than $5 a
month, and 833 people lost eligibility for an average monthly loss of a
little more than $11. We estimated the total budget impact for these
States to be -$10 million.
We assume that more States will implement this provision, once they
turn their attention from implementing TANF. We estimate that in 5
years, States that account for 28 percent of total benefit issuance
will have opted for required use of the SUA. Under these assumptions,
the total budget impact is -$20 million in FY 2000 and -$155 million
over 5 years. By FY 2004, slightly over 3,000 people may lose
eligibility.
Section 818--Treatment of the Income of Ineligible Aliens
This rule would implement the provision which allows State agencies
to elect to count either all or part of an ineligible alien's income if
the alien is in a category that was ineligible prior to PRWORA when
calculating the eligibility and benefits of the other individuals in
the household. These aliens are primarily aliens admitted under color
of law, those without documentation to establish eligible status, and
those temporarily residing in the country legally, such as diplomats
and students. (Treatment of the income and resources of the classes of
aliens made ineligible by PRWORA is different, and it is discussed
above.)
In order not to give preferential treatment to households with
ineligible aliens in classes that were ineligible prior to PRWORA over
citizen households, the rule allows State agencies a further option to
count all of the income for purposes of applying the gross income test,
but use a prorated share to determine eligibility and level of
benefits. For example, a household consisting of an undocumented alien
and a citizen may have an income which would place the household over
the maximum income limit if all of it is counted. However, if the
undocumented alien is excluded from the household and only a prorated
share of his or her income is counted, the remaining citizen member
could be eligible. This option would allow the State agency to count
all of the undocumented alien's income for purposes of determining if
the household's gross income is below the gross income limit but only
counting a prorated share for determining the household's allotment
level. The State agency will need to consider if the number of cases
affected will warrant two different income computations. Whatever
option the States selects will have to be applied to all ineligible
aliens in the same class.
Prior to the enactment of PRWORA, States were required to prorate
only a share of the ineligible alien's income to the household. For
example if a household consisted of one ineligible alien and two
eligible participants, under prorating, two-thirds of the income of the
ineligible alien would be counted as income available to the food stamp
household. Under the 100 percent option, all of that ineligible alien's
income would be counted.
Of the two States electing to count 100 percent of the income of
ineligible aliens, only one State has continued this policy. The budget
assumes only that one State will continue to opt for the 100 percent
option. Deeming 100 percent of the income of an ineligible household
member increases the countable income of food stamp households. Some
households lose eligibility if deeming 100 percent of the ineligible
aliens' income causes their countable income to exceed the thresholds.
Other households remain eligible, but with a higher net income, qualify
for smaller benefits.
Using a simulation based on 1996 Food Stamp Quality Control data
adjusted to reflect rules in place in FY 1999, we estimate that under
the provision allowing States to count 100 percent of the income of
aliens ineligible prior to enactment of PRWORA, approximately 1,000
people remained eligible but lost an average of $95 a month in benefits
and 1,000 recipients became ineligible losing $190 a month in benefits.
We estimate the budget impact at -$5 million for FY 2000 and -$25
million for FY 2000 through FY 2004.
Section 827--Proration of Benefits at Recertification
This provision requires that provisions for prorating benefits at
recertification revert to those in place before enactment of the Mickey
Leland Childhood Hunger Relief Act of 1993. Except for migrant and
seasonal farmworker households, State agencies must prorate benefits if
there is any break in certification. The law affects State agencies to
the extent that they have to reprogram computers and revise guidance to
staff. Based on a 1989 GAO study on recertification, entitled
Participants Temporarily Terminated for Procedural Noncompliance, we
estimate that the benefits of approximately 1.23 million people will be
reduced, for a budget impact of -$20 million in FY 2000 and -$100
million over 5 years. Those losing benefits lose an estimated average
of less than $1.50 a month.
Departmental Initiatives
Budget Impact
The Departmental initiatives to revise the policy for counting the
resource value of licensed vehicles, revise somewhat the treatment of
some income, to provide an optional transitional benefit for TANF
leavers, and to provide an optional alternative reporting system of
semi-annual reporting for households with earnings produce a cost which
slightly lowers the total savings from this rule. The cost of the
Departmental initiatives is $5 million in FY 2000 and sums to $1.070
billion for the 5-year period FY 2000-FY2004.
Inaccessible Resources and Vehicles
The final rule allows some households with licensed vehicles of
moderate value to participate in the program, if they are otherwise
eligible and have little equity in the vehicle. The amendment to 7 CFR
273.8(e)(18) expands the list of inaccessible resources to include
vehicles which if sold, would realize the seller a net proceed of no
more than $1,500. Moreover, we are greatly simplifying the vehicle
resource determination for households by eliminating the equity test
for most vehicles. We will completely exclude vehicles used to produce
income, used as a home, used to transport a disabled household member,
used to carry fuel or water, or unlikely to produce a return exceeding
$1,500. For each adult household member, we will exempt from the equity
test one licensed vehicle not totally excluded and count that vehicle
to the extent that the fair market value exceeds $4,650. For each
household member under 18 years of age, we will exempt from the equity
test one licensed vehicle not totally excluded which the minor drives
to work, school or training, or to look for work. Any vehicles not
exempted from the equity test are subject to resource evaluation at the
higher of the excess fair market value or the equity value.
The proposed rule set the limit on inaccessible resources for most
households at $1,000. With publication of the proposed rule, FNS
granted waivers to States to implement that policy. As a result, the FY
2000 cost for
[[Page 70142]]
inaccessible resources, which reflects a $1,000 limit and the number of
States which requested and received waiver authority, rounds to less
than $5 million. Comments received on this provision urged FNS to
increase the limit to $1,500, which FNS has accepted. This new policy
will take effect in FY 2001 and, therefore, the FY 2001 through FY 2004
costs reflect a $1,500 limit.
State agencies are affected by this provision because it greatly
simplifies the treatment of vehicles. It is expected to reduce payment
errors based on incorrect application of the resource tests.
Expanding the definition of inaccessible resources costs $5 million
in fiscal year 2000, $85 million in fiscal year 2001, $170 million in
fiscal year 2002, $165 million in fiscal year 2003, $145 million in
fiscal year 2004, with a five year total of $570 million. In fiscal
year 2001, when the $1,500 limit goes into effect, 80,000 people gain,
with an average monthly benefit of $88.78.
Also, eliminating the equity test for most, but not all, vehicles
costs $0 million in fiscal year 2000, $30 million in fiscal year 2001,
$55 million in fiscal year 2002, $40 million in fiscal year 2003, and
$25 million in fiscal year 2004, with a five year total of $150
million. In fiscal year 2001, 27,000 people gain, with an average
benefit of $92.65.
On October 28, 2000, the President signed the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies
Appropriation Act of 2001 (Public Law 106-387). This law includes a
provision to allow States to substitute their TANF vehicle rules for
the food stamp vehicle rules, where doing so would result in a lower
attribution of resources. The cost of the vehicle changes in this
regulation, described above, capture the additional budgetary impact
that these regulatory changes have in broadening food stamp eligibility
after allowing for the expected impact of the new law.
Optional Transitional Benefits for TANF Leavers
Several advocacy groups put forth a suggestion for providing TANF
leavers ``transitional food stamp benefits,'' much in the same way
families receive transitional Medicaid after leaving TANF rolls. The
new policy allows State agencies to freeze food stamp benefits of
households leaving TANF rolls for up to 3 months, depending on the
period of time since the household's last certification. Near the close
of the transition period, the State agency would act on information
collected from the household, either adjusting the benefit level, or
closing the household's food stamp case because it is no longer
eligible or it has failed to provide sufficient information to continue
its eligibility for the Program. In some cases, the State agency would
have to conduct a full recertification of eligibility if it is not
possible to extend the household's certification period due to the
statutory limitation on the length of certification periods. As the
household would have no reporting requirement during the transitional
period, the State agency would incur no QC liability for unreported
changes in household circumstances during the period of time benefits
are frozen.
While the Department encourages State agencies to offer the
Transitional Benefits Alternative (TBA) to households leaving the TANF
rolls, in order to ease the transition from PA, serve as an important
transitional work support, and reinforce the fact that food stamps are
not dependent upon eligibility for TANF, we did not offer this
procedure in the NPRM. State agencies had no opportunity to comment,
either to raise objections or to provide suggestions. For this reason,
the final rule establishes TBA as a State agency option, not a
mandatory provision of the regulations.
Families generally leave TANF when they go to work, exceed the
income or asset limit (due to employment or other factors), fail to
comply with the behavioral or procedural requirements of TANF, reach
the Federally or State-defined time limit, lose technical eligibility,
or leave voluntarily to ``bank'' their TANF months. For State agencies
electing the TBA, the Department has structured the final rule to allow
maximum flexibility in deciding which families leaving TANF would be
eligible for TBA. The final rule requires such State agencies, at a
minimum, to provide TBA to all families with earnings who leave TANF.
If the household is losing income as a result of leaving TANF, the
State agency must adjust the food stamp benefit amount before freezing
the benefit amount. For example, such treatment might be appropriate
when a TANF family leaves cash assistance because it has reached the
time limit for such assistance and has gained no source of income which
would replace the lost cash assistance. On the other hand, under the
final rule State agencies may not provide TBA to households which are
leaving TANF because: a household member has violated a TANF provision
and the State is imposing a concomitant food stamp sanction in
accordance with sections 819, 829, or 911 of PWRORA; a household member
has violated a food stamp work requirement; a household member has
committed an intentional Program violation; or the TANF case is closing
because the State agency is taking action in response to information
indicating the household failed to comply with Food Stamp reporting
requirements, e.g., the State agency discovered unreported income or
assets through computer matching indicating noncompliance with Food
Stamp reporting requirements.
Using data on TANF caseloads from the Department of Health and
Human Services and data from TANF research by many sources, we derived
estimates of the number of cases expected to leave TANF.
Using 1998 QC data, an average FSP benefit for TANF households was
inflated to 2001 and beyond. In general, the transitional benefit
policy provides two additional months of benefits to each case that
leaves (the current system provides one month due to the processing
requirements and the requirement to issue a notice of adverse action).
We then multiply the monthly number of eligible leavers by the average
benefit by 2 months of additional benefits by 12 monthly sets of
leavers in a year to get the cost.
Further reductions to this cost were made to account for: (1) The
likelihood that some of these cases would return to the TANF program
within the transition period, thereby reducing the cost of transitional
benefits because they no longer are eligible for them, (2) the fact
that many households with TANF have 12 month certification periods, and
(3) the fact that some households are not eligible for transitional
food stamps, including households sanctioned off of TANF that receive a
comparable Food Stamp sanction in accordance with sections 812, 829 and
911 of PRWORA. Current FSP law states that households may not receive
benefits beyond 12 months without recertification, so those households
in the 10th, 11th, or 12th month of their certification periods do not
receive benefits for the entire transition period.
Finally, we apply a phase-in to account for State take-up rates. We
begin with the cost if all States were to adopt the option, and then
estimate that States will take up this option such that 5 percent of
the cost is incurred in fiscal year 2001, 10 percent in fiscal year
2002, 15 percent in fiscal year 2003, and 25 percent in fiscal year
2004. Ultimately we expect that up to 60 percent of the benefits that
could be issued via TBA will be issued by fiscal year 2007, based on
assumptions regarding how many States will
[[Page 70143]]
implement this policy. We adopt these phase-in assumptions based on
what has been learned thus far from the State response to the quarterly
reporting option, and the fact that States will need to implement
computer systems changes, which take time. As a result, we expect in
fiscal year 2001 about 3,000 cases each month to leave TANF and receive
two additional months of transitional food stamp benefits of about $226
per month (this is the weighted average for all types of cases) for a
total cost of $15 million. By fiscal year 2004 the cost will rise to
$73 million, affecting 14,000 cases per month, with a total cost for
fiscal years 2001 to 2004 of $162 million.
Optional Semi-annual Reporting for Households with Earnings
Because the Department is aware that State agencies are reluctant
to assign working households long certification periods because of
potential vulnerability for quality control errors resulting from
unreported changes, the Department is adopting in this final rule an
optional reporting system for these households. Under this option,
households with earned income assigned a six-month certification period
may be required to report changes in income that result in their gross
monthly income exceeding 130 percent of the poverty level a month, in
lieu of the requirement to report changes in the amount of gross
monthly income that exceed $25. These households would not be subject
to the remaining reporting requirements in 7 CFR 273.12(a)(1). The
State agency shall act on changes reported by the household that
increase benefits in accordance with 7 CFR 273.12(c) and on changes in
public assistance and general assistance grants and other sources that
are considered verified upon receipt by the State agency. In order to
adopt this option, State agencies must assign these households
certification periods of 6 months or longer. State agencies may opt to
waive every face-to-face interview in accordance with 7 CFR 273.2(e).
Using SIPP data covering one year, a simulation was run which
counted all income changes (minus TANF changes, since it is assumed the
State would know and act upon all of these changes) and how many times
a household changed composition during the first six months of the year
and all of the changes during the last six months of the year. All of
the income increases were summed together and all of the income
decreases were summed together and a net figure was calculated. This
income figure was changed to a benefit figure by applying the average
benefit reduction rate and by adjusting for the impact of household
composition changes on benefit levels. Using the total benefits from QC
data, the percent of monthly benefits not captured during the 6 month
certification period was calculated.
To get the cost of this policy, this percentage was multiplied by
the FY 2001 Mid-Session baseline benefits. Several adjustments were
made to incorporate assumptions on reporting behavior and the policy
requirements for when States must act on reported changes.
Finally, a State phase-in rate is applied. This rate is based on
expectations of what States will select given all reporting options. We
believe that the phase-in will be low in the first year (4 percent, for
a FY 2001 cost of $3 million) as States decide which option to
implement, but that it will increase rapidly and reach the maximum of
70 percent by 2005.
The cost in FY 2001 is $3 million and rises to $51 million in FY
2004, with a total cost from FY 2000 to FY 2004 of $105 million. When
fully implemented it will affect nearly 1.5 million households per
month.
Allow the Self-Employed to Deduct the Principal on Capital Expenditures
Current policy precludes allowing the cost of capital assets in
determining self-employment income. We are revising this policy to
allow capital costs in determining self-employment income. We believe
that this change recognizes that capital costs are a legitimate expense
in producing self-employment income and that the change will support
the self-employed working poor.
We turned to Internal Revenue Service statistics to determine the
potential size of the new deduction. We obtained information on the
size of the depreciation deduction taken by all non-farm industries and
the size of net income after all deductions for these industries. The
depreciation deduction is 16 percent net income. Using this as a proxy
for the size of the new food stamp deduction, we multiplied it times
the average monthly self-employed income in the 1998 Characteristics of
Food Stamp Households ($336). Next we adjusted it for the earned income
deduction and the 30 percent benefit reduction. On average, food stamp
benefits will increase by $13 per month. Multiplying by the expected
number of households with self-employment income (about 100,000)
produces an estimate of $15 million as the cost in each year. The sum
from FY 2001 to FY 2004 is $60 million.
Plain Language
We have written this rule under the plain language guidelines to
make it clearer and easier to read. We have edited wording that we
preserved from the proposed rule to comply with those guidelines, using
simpler words and phrases where appropriate, and changing sentences
from passive to active voice. We did not change the meaning of any of
the language brought from the proposed rule.
Part 272--Requirements for Participating State Agencies
Bilingual Requirements--Access to Households With Language Barriers--7
CFR 272.4 and 7 CFR 272.6
Legal aid organizations, advocacy groups, and State agencies
commented on the current bilingual standards at 7 CFR 272.4(b). As
prescribed by Section 11(e)(1)(B) of the Food Stamp Act (7. U.S.C.
2020(e)(1)(B)), the current rules require State agencies to use
appropriate bilingual personnel and printed materials in areas in the
State in which a substantial number of members of low-income households
speak a language other than English. To determine if a substantial
number of non-English speaking household resides in an area, the
current rules specify the methodology for estimating the size of non-
English speaking households and thresholds that trigger mandatory
bilingual services. Bilingual services also must be provided during
periods of seasonal influx, such as the influx of migrant or seasonal
workers into project areas for a short period of time.
While most comments indicate general support for the current
standards at 7 CFR 272.4(b), many commenters recommended additional
regulatory controls to ensure State agencies are in compliance with
Title VI of the Civil Rights Act of 1964, Section 11(c) of the Food
Stamp Act (7 U.S.C. 2020 11(c)) and corresponding Food Stamp Program
regulations at 7 CFR 272.6. Specifically, these commenters recommended
that the regulations be amended to ensure non-English speaking
households have access to the FSP by requiring State agencies to
provide bilingual services to all non-English speaking households
seeking food stamp assistance, regardless of the size of the low-income
non-English speaking population in the service area or of how obscure
the language may be.
Conversely, a State agency commenting on current bilingual
standards asserts that PRWORA amendments under Section 835 provide
State agencies with flexibility in establishing appropriate bilingual
[[Page 70144]]
standards and that the Department was remiss in not proposing
amendments that would either remove or substantially reduce
requirements at 7 CFR 272.4(b). The State agency further stated that
revision of the current regulatory bilingual standards is required by
the President's reform initiative to remove overly prescriptive,
outdated and unnecessary regulations.
Even though Section 835 of PRWORA amends Section 11(e)(2) of the
Food Stamp Act to provide State agencies with flexibility to determine
certain processes that best serve eligible households within the State,
it does not extend this flexibility to services required by law, such
as bilingual services.
The Department appreciates the comments received on both sides of
this issue. However, because of the strongly divergent views offered by
commenters, the Department has decided to make no changes at this time
to the current regulations. Although no regulatory changes will be made
at this time, we would like to advise the public through this preamble
of the August 11, 2000 Executive Order 13166 entitled, Improving Access
to Services For Person With Limited English Proficiency.
Executive Order 13166 directs Federal agencies to ensure that
recipients of Federal financial assistance, such as the State agencies
administering the Food Stamp Program, are providing persons with
limited English proficiency (LEP) a meaningful opportunity to
participate in Federal programs and activities. Providing a meaningful
opportunity to LEP persons to participate in the Food Stamp Program
ensures that State agencies are in compliance with Title VI of the
Civil Rights Acts of 1964. State agencies failing to provide meaningful
access would be in violation of Title VI of the Civil Rights Act, which
prohibits discrimination on the basis of national origin.
The Department of Justice (DOJ) has issued guidance setting forth
the standards that Federal agencies and the recipients of Federal funds
must follow to ensure that LEP persons have meaningful access. Each
Federal Agency, in consultation with the DOJ, must develop and
implement guidance. USDA is working to develop guidelines in accordance
with E.O. 13166 and the Department of Justice Guidance.
State Employee Training--7 CFR 272.4(d)
Section 836 of PRWORA deleted all Federal requirements for State
employee training. To reflect this change in the law, the Department
proposed to delete all the mandatory training requirements at 7 CFR
272.4(d). State agencies commenting on this section support the change.
Some advocate and legal organizations requested that the Department
withdraw the proposal and retain current standards to ensure that State
agencies properly train employees, especially those making eligibility
determinations, or rendering fair hearing decisions.
The final rule adopts the proposed rule at 7 CFR 272.4(d) as
written. By eliminating training requirements, we are signaling our
greater concern with the outcome of training, that is, high quality
administration. However, we strongly encourage states to continue to
provide quality training to their employees. Quality training
strengthens Program administration and communicates a strong message to
employees about the importance of a well run Food Stamp Program. Where
program reviews indicate program problems caused by deficiencies in
staff skills, we would expect State agencies to upgrade training
efforts.
Hours of Operation--7 CFR 272.4(g)
Section 848 of PRWORA deleted previously designated Section 16(b)
of the Food Stamp Act. That section required the Secretary of
Agriculture to establish standards for the periodic review of food
stamp office hours to ensure that employed individuals were adequately
served by the FSP. It also required State agencies to submit regular
reports specifying the administrative actions that the State planned to
take to meet the standards prescribed in that section.
To implement Section 848 of PRWORA, the proposed rule specified
that State agencies would be responsible for setting the hours of
operation for their food stamp offices. However, in deciding the office
hours to be offered, State agencies would be required to consider
section 11(e)(2) of the Food Stamp Act, as amended by section 835 of
PRWORA. The amendments made by section 835 of PRWORA require States to
accommodate households with special needs, such as the elderly, working
poor or households residing on Indian reservations. Finally, the
proposed provision no longer required State agencies to assess or
report on office hours.
In the preamble to the proposed rule, we requested suggestions for
best serving or providing program access to eligible or potentially
eligible working individuals. Commenters most often recommended
expanded office hours. One State agency, the Ohio Department of Human
Services, noted that State law requires each county department of human
services to have hours of operation outside the county department's
normal hours of operation. During these hours, the County department
will accept applications from employed individuals for the programs
administered by the County department and assist employed program
applicants and participants with matters related to the programs.
Another State agency stated that it improved its service accessibility
by using the option of a quarterly reporting waiver for households with
earnings. As of July 1999, FNS extended to all State agencies the
option of requiring households with earnings to submit quarterly
reports. Quarterly reporting is viewed as a method for simplifying
reporting requirements and reducing contacts by working households to
their local certification office.
We strongly support policies establishing office hours or other
accommodations designed to facilitate working families and to ensure
that working families have access to the FSP. Extended office hours are
very successful in improving Program access and enhancing a household's
ability to succeed in work because it allows working households to
schedule appointments and complete the application process without
missing work. Also, State agencies that establish alternate or extended
hours may benefit by receiving bonus awards from the Department of
Health and Humans Services (HHS). Under HHS final rules (65 FR 52814,
August 30, 2000) entitled, Bonus to Reward States for High Performance
Under the TANF Program, a portion of the TANF bonus funding to States
will be based on their performances in providing food stamps to low-
income working families.
Accordingly, the Department is adopting in this final rule the
proposal at Sec. 272.4(f) that requires State agencies to consider the
special accommodation needs of populations they serve, including
households containing a working person. Our regulatory focus is on the
desired outcome rather than the means of achieving it. Recent data
indicate the FSP is vital in helping families move to self-sufficiency
and that participation in the FSP is crucial in ensuring that people
working for low wages have the help they need.
Nutrition Education Materials--7 CFR 272.5(b)
Section 835 of PRWORA deleted section 11(e)(14) of the Food Stamp
Act (7 U.S.C. 2020(e)(14)). This section of the Act, and corresponding
regulations at 7 CFR 272.5(b), required FNS to supply State agencies
with posters and
[[Page 70145]]
pamphlets containing information about nutrition and the relationship
between diet and health. State agencies were required to display these
posters and to make these pamphlets available at all food stamp and
public assistance offices.
FNS proposed to implement the PRWORA amendment by removing the
requirement that State agencies display USDA materials. As noted in the
preamble to the proposed rule, the deletion of this language does not
lessen FNS' commitment to nutrition education. The new paragraph shows
FNS' commitment by encouraging State agencies to develop optional State
Food Stamp Nutrition Education Plans as permitted under 7 CFR
272.2(d)(2) to educate households about the importance of a nutritious
diet and the relationship between diet and health. As of FY 2000, 48
State agencies have approved nutrition education plans which call for
the expenditure of about $200 million for nutrition education in the
FSP, of which 50 percent is financed by Federal funds. Thus, the vast
majority of State agencies actively support, promote and provide
nutrition education to FSP clients.
Comments received from State agencies and organizations
representing States were supportive of the nutrition education
proposals at Sec. 272.5. However, one commenter requested that FNS
withdraw the proposal and another objected to FNS encouraging States to
implement nutrition education plans. Another commenter noted that State
agencies have committed millions of dollars in non-federal funds to
food stamp program nutrition education.
The final rule adopts the proposed rule at 7 CFR 272.5(b), as
written. It is a State option to implement and operate a nutrition
education plan. FNS provides State agencies with comprehensive guidance
and with broad flexibility in determining how it will provide nutrition
education to food stamp recipients. This guidance is updated annually
and reinforces FNS' commitment to nutrition education by stressing the
relationship of Program regulations and Federal reimbursement of costs
for State nutrition education activities that are necessary and
reasonable to benefit Program applicants and participants. Finally, the
FSP reimburses State agencies with approved Nutrition Education plans
for 50 percent of their total allowable costs.
Optional Use of the Income and Eligibility Verification System (IEVS)
and the Systematic Alien Verification for Entitlements (SAVE) Program--
7 CFR 272.8, 272.11 and 273.2
Section 840 of PRWORA amended Section 11(e)(18) of the Food Stamp
Act (7 U.S.C. 2020(e)) to make IEVS and SAVE State options. Thus, the
proposed rule removed the requirement that State agencies operate
either an IEVS or a SAVE system. For State agencies electing to use
IEVS and SAVE, the proposed rule only required that the State agencies
observe the requirements of the data exchange agreements with agencies
from which data will be obtained or exchanged. The preamble in the
proposed rule noted that quality control (QC) reviews would continue to
use data obtained from IEVS and SAVE as a case analysis tool.
Numerous State agencies commented on this proposal and are
supportive of the option use IEVS and SAVE requirements and of the
proposed elimination of IEVS and SAVE requirements. State agencies
which use IEVS and SAVE will continue to conduct data exchange
agreements with Federal sources. The data exchange agreements, however,
will no longer be required as part of the State's Plan of Operation. A
number of State agencies objected to the continued use of IEVS and SAVE
as part of QC reviews. Two State agencies commented that by using IEVS
and SAVE as part of QC, State agencies in effect were not being given
the option to use IEVS and SAVE and would need to continue with the
matches.
Current rules at 7 CFR 275.12 identify the procedures State
agencies and FNS must follow when reviewing active cases included in
the QC active sample. Under 7 CFR 273.12(c), a State agency must
conduct a full field review for all selected active cases and this
investigation must include a review of any information pertinent to a
particular case which is available through IEVS. This requirement is
consistent with QC review procedures that mandate the verification of
all elements affecting the households eligibility and benefit level in
the sample month under review.
The Department decided to retain the current rules at 7 CFR 275.12
without change because available data indicate that IEVS data are
generally useful means of improving payment accuracy. Their use by QC
only reinforces long-standing policy that State adopt methods of
administration that secure payment accuracy.
Under Section 840 of PRWORA, State agencies may, but are not
required to, use IEVS and/or SAVE as part of their responsibility in
determining eligibility and benefit levels for participating
households. Those State agencies electing to use either IEVS and/or
SAVE are provided flexibility in determining how best the IEVS and/or
SAVE data should be used. The use of IEVS as an analysis tool does not
diminish a State agency's option to use IEVS or SAVE outside of the QC
process.
Accordingly, the Department is adopting the proposed amendments at
7 CFR 272.8, 7 CFR 272.11 and 7 CFR 273.2 in the final rule without
change.
Part 273--Certification of Eligible Households
Application Processing--7 CFR 273.2
As explained in the Notice of Proposed Rulemaking (NPRM), section
835 of PRWORA amended sections 11(e)(2) and (e)(3) of the Act, 7 U.S.C.
2020(e)(2) and (e)(3) which govern the food stamp application and
certification process. Section 11(e) now provides more flexibility for
State agencies to tailor day-to-day operations of the Program to the
needs of individual States while ensuring that households continue to
receive timely, accurate and fair service. More specifically, section
835 removed the requirement that the Secretary design a uniform
national food stamp application form and eliminated dictates concerning
what information had to be included on the application form and in what
particular location on the form. Section 11(e) of the Act now provides
that State agencies must develop their own food stamp application form
and establish their own operating procedures for local food stamp
offices. States may now use electronic storage of applications and
other information, including the use of electronic signatures. States
must provide a method of certifying and issuing benefits to eligible
homeless individuals.
While the language of amended Section 11(e) encourages personal
responsibility and provides more State agency flexibility, it retains
key specific provisions to protect a client's right to timely,
accurate, and fair service. The Act continues to: (1) Require that
applications be processed within 30 days; (2) permit households to
apply for participation on the same day they first contact the food
stamp office during office hours; (3) consider an application as
``filed'' on the date the applicant submits the application with the
applicant's name, address, and signature (benefits are calculated based
on the filing date of an application); (4) require that an adult
representative certify the
[[Page 70146]]
truth of the information on the application, including citizenship or
alien status of each member, and that such signature is sufficient to
comply with any provision of Federal law requiring applicant
signatures; and (5) require that the State agency provide each
household, at the time of application, a clear written statement
explaining what acts the household must perform to cooperate in
obtaining verification and otherwise complete the application process.
In the NPRM, we proposed to amend 7 CFR 273.2, ``Application
processing,'' to incorporate the new requirements of Section 11(e) of
the Act, as amended by various sections of PRWORA. In addition, we
proposed a major streamlining of the current regulations as part of a
larger effort to reduce the volume of Federal regulation.
In the NPRM, we sought to achieve a new balance in the regulations
between maintaining customer protections in the application process and
providing States greater flexibility in administering the program. We
received a large volume of comments on our proposed changes. Commenters
representing State agencies generally supported the changes, but often
requested additional streamlining which would provide even greater
flexibility to States in operating the program. Commenters representing
the advocacy community, however, strongly objected to many of the
proposed changes on the grounds that we were removing important
safeguards for applicants. These commenters requested that existing
rules be restored and also sought the adoption of new provisions that
would strengthen customer rights.
The significant disagreement among commenters over the
discretionary provisions of the NPRM have caused us to reconsider the
merit of many of the proposed changes. While existing regulations are
highly detailed, they do provide a national standard of customer
service that promotes the basic statutory purpose of providing timely,
accurate and fair service to applicants for, and participants in, the
Food Stamp Program. In addition, given the sharp decline in program
participation among eligibles since the passage of PRWORA and
acknowledged problems with program access in several areas, we must
question the desirability at this time of removing many of the
protections provided applicants and participants under current
regulations. Given these considerations, we have decided not to
finalize the discretionary provisions proposed in the NPRM. At this
time, we are finalizing only those changes to current regulations
necessitated by PRWORA. For the other sections of 7 CFR 273.2, we will
be retaining current rules.
Title of Part 273.2
In the NPRM, we proposed to change the title of 7 CFR 273.2 from
``Application processing'' to ``Office operations and application
processing.'' We received no comments on the proposal and are adopting
it as final.
General Purpose--7 CFR 273.2(a)
In the NPRM, we proposed to replace current paragraph (a), entitled
``General purpose,'' with a new paragraph (a), ``Office operations.''
The new paragraph would incorporate into the regulations the new
standards for operating food stamp offices contained in Section
11(e)(2)(a) of the Act, as amended by Section 835 of PRWORA.
Specifically, new paragraph (a) would require the following: (1) That
State agencies establish their own procedures governing office
operations that the State agency determines best serve households in
the State, including households with special needs; (2) that State
agencies provide timely, accurate, and fair service as required by
Section 835 of PRWORA; (3) that State agencies not impose a processing
requirement for another assistance program as a condition of food stamp
eligibility; and (4) that State agencies have a procedure in place for
informing persons who wish to apply for food stamps about the
application process and their rights and responsibilities.
The comments received on this proposal were all supportive of the
proposed amendment. One commenter did fear that the prohibition on
imposing processing requirements for other assistance programs as a
condition of food stamp eligibility might prohibit States from
utilizing household information obtained under the requirements of
another program which may affect the household's food stamp
eligibility. This is not correct. The State may consider household
information obtained when a household applies for another public
assistance program when determining a household's eligibility for food
stamps. The State, however, may not require a household that is
applying only for food stamps to answer questions on a joint
application or submit any information that is not needed to complete a
food stamp eligibility determination.
The change to 7 CFR 273.2(a) is necessary to reflect the new
standards for operating food stamp offices contained in section 835 of
PRWORA, so we are adopting the change as final. However, in the NPRM we
had proposed to move many of the sentences in current paragraph (a) to
other sections under 7 CFR 273.2. Since we are not finalizing many of
the changes to the other parts of 7 CFR 273.2 proposed in the NPRM, we
are restoring current paragraph (a) in the regulations. That paragraph
will be renumbered (a)(2), and entitled ``Application processing.''
Food Stamp Application--7 CFR 273.2(b)
Current paragraph (b) lists the requirements for the food stamp
application form, including the mandatory content for each form and the
requirement that deviations from the national application form be
approved by FNS. In the NPRM, we proposed to amend paragraph (b) to
reflect new requirements related to the food stamp application form in
Sections 11(e) of the Act, as revised by section 835 of PRWORA. Section
835 amended section 11(e) of the Act to remove the list of mandatory
application content requirements. It also amended Section 11(e)(2) to
require that State agencies design their own application forms, and to
provide that the application form may include the electronic storage of
information and the use of electronic signatures.
Specifically, we proposed to amend 7 CFR 273.2(b) to require that
State agencies design their own application forms, provide that the
application form may include the electronic storage of information and
the use of electronic signatures, and remove the requirement in current
paragraph (b)(3) regarding the need for prior FNS approval of State-
designed applications which deviate from the Federally designed
application. We also proposed to add a new paragraph 7 CFR 273.2(b)(2)
entitled ``Application contents,'' which would, among other things,
replace the list of mandatory application content requirements with a
general requirement that the application must contain all necessary
information to comply with the Act and regulations. Finally, we
proposed to add a new paragraph 7 CFR 273.2(b)(3) entitled ``Jointly
processed cases,'' which would set forth requirements for the
processing of joint applications used by States to determine an
applicant's eligibility for other assistance programs in addition to
the Food Stamp Program.
A number of commenters objected to the proposed changes to 7 CFR
273.2(b). Specifically, many opposed our decision to remove the
existing mandatory application contents requirements relating to the
right of a household to file an incomplete
[[Page 70147]]
application for food stamps. Under current regulations at 7 CFR
273.2(b)(1)(iv) through (vii), each application form must contain: (1)
A place on the front page of the form where the applicant can write
his/her name, address, and signature; (2) notification on or near the
front page of the application of the household's right to immediately
file the application as long as it contains his or her name, address
and signature; (3) a description on or near the front page of expedited
service requirements; and (4) notification on or near the front page of
the application that benefits are provided from the date of
application. Commenters felt that without these notifications,
households may be unaware of their right under Section 11(e)(2)(B)(iv)
of the Act to file an incomplete application, and would likely postpone
applying for food stamps until they have time to complete the entire
application form.
We agree with the commenters that much of the information currently
required in 7 CFR 273.2(b) should be retained in the regulations. This
information, though no longer specified in the Act, is necessary to
meet the standard set by PRWORA for providing timely, accurate, and
fair service to applicants for, and participants in, the Food Stamp
Program. Therefore, we are withdrawing most of our proposals to amend 7
CFR 273.2(b) and will retain current regulations. However, we are
making some changes to the existing rules at 7 CFR 273.2(b)(1). In
response to comments, we are adding language to 7 CFR 273.2(b)(1)(iii)
to make it clear that the applicant is certifying to the citizenship or
eligible alien status of only those household members applying for
benefits. We are adding a sentence to 273.2(b)(v) that regardless of
the type of system a State agency uses (paper or electronic) it must
provide a means for the applicant to immediately begin the application
process with name, address and signature.
We are adding a new paragraph 273.2(b)(1)(viii) to incorporate the
latest nondiscrimination statement appropriate for the Program. USDA
Departmental Regulation (DR) 4300-3, Public Notification Policy, dated
November 16, 1999, establishes the policy for ensuring positive and
continued notification of the USDA equal opportunity policy to the
public. DR 4300-3 provides for three nondiscrimination statements.
These statements govern: (1) Federally-conducted programs; (2) Food
Stamp Program recipient agencies; and (3) Special Nutrition Programs
and other recipient agencies. Interested readers may visit the FNS web
site (www.fns.usda.gov) and click on ``Civil Rights'' to learn more
about FNS' nondiscrimination policy.
Finally, in new paragraph 273.2(b)(1)(ix), we are incorporating
language from paragraph 273.2(b)(3) which requires that multi-program
application forms clearly afford applicants the option of answering
only those questions relevant to the program or programs for which they
are applying. We are revising current paragraph (b)(3) in its entirety
to incorporate changes necessitated by PRWORA. That paragraph, which
requires States to seek prior FNS approval for State-designed
applications which deviate from the Federally designed application, is
no longer necessary because Section 835 of PRWORA eliminated the
requirement that State agencies use a Federally-designed application.
However, we are incorporating the language that was proposed at (b)(3)
to address comments regarding improving access to the Program.
Several commenters expressed concern that the current practice of
asking all household members for information regarding their
citizenship, immigration status, and possession of social security
numbers was a significant barrier to participation for certain eligible
low-income individuals. U.S. citizen and eligible alien members of
households containing undocumented aliens or legal aliens whose
immigration status does not permit them to work may feel apprehensive
about providing the State agency with sensitive information about the
lack of documentation or social security numbers of certain household
members. On September 21, 2000, this Department and the DHHS issued a
letter to all State health and welfare officials, subject: ``Policy
Guidance Regarding Inquiries into Citizenship, Immigration Status and
Social Security Numbers in State Applications for Medicaid, State
Children's Health Insurance Program (SCHIP), Temporary Assistance for
Needy Families (TANF), and Food Stamp Benefits'' (the ``Tri-Agency
Letter''). Readers may visit the FNS web site (www.fns.usda.gov) and
click on ``Food and Nutrition Service'', then ``Food Stamps,'' and then
``Joint Guidance on Citizenship, Immigration & SSNs.'' The Tri-Agency
Letter addressed the concerns of the immigrant community by providing
an option to State agencies to structure application forms so that
households are allowed to declare certain household members to be
``non-applicants,'' if they did not wish to answer questions about
citizenship, immigration status, or the possession of a social security
number. Any household member so designated would be determined to be an
ineligible household member under Sec. 273.11(c) and would not receive
Program benefits. Further, such ineligible household members must
otherwise cooperate fully by disclosing their income, resources, and
any other information the State agency needs to determine the
eligibility and benefit amount of the other household members.
If a state decides not to permit individual family or household
members to decline to provide citizenship, immigration status or SSN
information early in the application process, the state must still
ensure that their applications forms promote enrollment of eligible
families and eliminate the potential for discriminatory impact on
eligible applicants based on national origin. Furthermore, even in
those states that elect not to offer applicants early opportunity to
decline to reveal citizenship, immigration status, or SSN information,
long-standing policy directs that when a household member does not
disclose his or her citizenship, provide or apply for an SSN, or
establish satisfactory immigration status, the State agency must
determine that household member ineligible for benefits, but cannot
deny benefits to eligible citizen or immigrant household members simply
because other household members fail to disclose such information.
Some commenters suggested that the final rule should require State
agencies to make early declaration of ``non-applicant'' status
available for individuals who know they do not have documents to prove
their immigration status, or cannot possess social security numbers. In
this regard, the Department is still very concerned that current State
agency application forms and processes inadvertently may have the
effect of deterring eligible applicants and recipients who live in
immigrant households from enjoying equal participation and access to
Program benefits based on their national origin, in violation of
section 11(c) of the Food Stamp Act and Title VI of the Civil Rights
Act of 1964. However, as the NPRM did not address this issue at all, we
will not proceed further without consultation with all partners and
stakeholders through a future rulemaking. In the meantime, the
Department encourages State agencies to adopt the option allowing them
to adjust their application forms and processes to accommodate
households containing some members who know
[[Page 70148]]
they do not have documents to prove their immigration status or who
might have difficulty in applying for a social security number.
7 CFR 273.2(c)--Filing an Application
In the NPRM, we proposed to amend paragraph 7 CFR 273.2(c),
``Filing an application.'' We proposed to add a new paragraph 7 CFR
273.2(c)(1) entitled ``Filing process.'' The new paragraph would: (1)
Retain the requirement appearing in the first sentence of current
paragraph (c)(1) regarding the manner in which applications can be
submitted; (2) include new language that clarifies that the application
may be submitted by facsimile transmission as well as in person,
through an authorized representative, or by mail; (3) include new
language that recognizes that some State agencies are using on-line or
other types of automated applications that may require the applicant to
come into the local office to complete the application; (4) include the
requirement appearing in the fifth sentence of current paragraph (c)(1)
that allows an applicant to file an incomplete application provided it
contains at the least the applicant's name, address, and signature; (5)
remove the language appearing in the sixth sentence of current
paragraph (c)(1) which requires State agencies to document the date the
application was filed by recording on the application the date it was
received by the food stamp office; and (6) provide that applications
signed through the use of electronic signature techniques and
applications containing handwritten signatures which are then
transmitted to the appropriate office via fax or other electronic
transmission technique are acceptable.
We proposed to add a new paragraph 7 CFR 273.2(c)(2) entitled
``Households right to file.'' The new paragraph would require the State
agency to: (1) Make food stamp applications readily accessible to all
potentially eligible households or to anyone who requests one; (2)
provide an application in person or by mail to anyone who requests one;
(3) mail an application by the next business day to anyone who requests
an application by mail; (4) allow a household to file an application on
the same day it contacts the food stamp office during office hours; (5)
post signs or make available other advisory materials explaining a
person's right to file an application on the day of their first contact
with the food stamp office and the application processing procedures;
(6) notify all persons who contact a food stamp office and either
request food assistance or express financial and other circumstances
which indicate a probable need for food assistance, of their right to
file an application and encourage them to do so.
New paragraph (c)(2) would also address the handling of
applications filed at the wrong certification office. The new paragraph
would: (1) Continue to allow the State agency to require households to
file an application at a specific certification office or allow them to
file an application at any certification office within the State or
project area; (2) require that if an application is received at an
incorrect office, the State agency advise the household of the address
and telephone number of the correct office; (3) require the State
agency to forward an application received at an incorrect office to the
correct office not later than the next business day; and (4) remove the
requirement currently located in the third sentence of 7 CFR
273.2(c)(2)(ii) that the State agency inform the household that its
application will not be considered filed and the processing standards
must not begin until the application is received by the appropriate
office.
We proposed to add a new paragraph 7 CFR 273.2(c)(4) entitled
``Notice of required verification.'' The new paragraph would require
that State agencies: (1) Provide households, at the time of application
for certification and recertification, with a clear written statement
of what acts the household must perform in cooperating with the
application process, and identify potential sources of required
verification; and (2) inform special needs households of the State
agency's responsibility to assist them in obtaining required
verification, providing the household is cooperating with the State
agency. Special needs households were defined as including, but not
limited to, households with elderly or disabled members, households in
rural areas with low-income members, homeless individuals, households
residing on reservations, and households in areas in which a
substantial number of members of low-income households speak a language
other than English.
Finally, we proposed to remove current paragraph (c)(5), and to
redesignate current paragraph 273.2(c)(6) ``Withdrawing an
application,'' as new paragraph (c)(3).
Numerous commenters objected to some of the proposed changes to 7
CFR 273.2(c) on the grounds that we were removing important safeguards
for applicants. For example, one commenter opposed the revision to 7
CFR 273.2(c)(1) which deleted the requirement that States encourage a
household to f |
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