Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
158700908
label
Food Stamps Rule
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
158700908
contentType
document
title
Food Stamps Rule
citationUrl
collections
Records of the Domestic Policy Council (Clinton Administration)
Irene Bueno's Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
158700908
levelOfDescription
fileUnit
otherTitles
42-t-7367472-20171120S-017-008-2019
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
b9353b57afbc1885
ocrText
Domestic Policy Council
Irene Bueno's Files
Box #1
Archived 12/28/2000
1. File: Food Stamps Rule
2. File: ESL/Civics
3. File: Refugee Funding
4. File: Central Valley Task Force
5. File: USDA Discrimination
6. File: Soriano
7. File: Racial Profiling
8. File: H1-B Plus
9. File: FCC
10. File: APA Caucus Meeting
11. File: Reparations
12. File: EO (Minority Businesses)
13. File: LA Human Relations
14. File: H2A Hearing
15. File: Confidentiality
16. File: Hate Crimes
17. File: Global Aides
18. File: Graham Immigration Legislation
19. File: Minority Health
20. File: SBA-8A
21. File: Charitable Choice
22. File: INS Restructuring
23. File: ASOSAL
24. File: Naturalization
25. File: English Language and Civics Initiative
26. File: Citizenship Test
19893
ENCLOSURES FILED OVERSIZE ATTACHMENTS
NARA 17097
5 boxes filed 12/29/2000 VT
10856
Federal Register Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
DEPARTMENT OF AGRICULTURE
We are also taking this opportunity to
this rule will not have a significant
add vehicles to the assets which may be
economic impact on a substantial
Food and Nutrition Service
covered under the inaccessible
number of small entities. State and local
resources provisions of the Food Stamp
welfare agencies will be the most
7 CFR Parts 272, 273, 274, and 277
Act of 1977, to clarify what constitutes
affected to the extent that they
[Amendment Number ]
an adequate notice of adverse action
administer the Program.
period, and to make a change to exclude
Executive Order 12988
RIN 0584-AC40
from income on-the-job training
payments received under the Summer
This rule has been reviewed under
Food Stamp Program: Noncitizen
Youth Employment and Training
Executive Order 12988, Civil Justice
Eligibility, and Certification Provisions
Program as required by Section 702 of
Reform. This rule is intended to have
of Pub. L. 104-193, as Amended by
the Job Training Reform Amendments of
preemptive effect with respect to any
Public Laws 104-208, 105-33 and 105-
1992.
State or local laws, regulations or
185
DATES: Comments must be received on
policies which conflict with its
AGENCY: Food and Nutrition Service,
or before May 1, 2000 to be assured of
provisions or which would otherwise
USDA.
impede its full implementation. This
consideration.
rule is not intended to have retroactive
ACTION: Proposed rule.
ADDRESSES: Comments should be
effect unless so specified in the
SUMMARY: This rule proposes to amend
submitted to Patrick Waldron, Program
"Effective Date" paragraph of this
Food Stamp Program (Program)
Analyst, Certification Policy Branch,
preamble. Prior to any judicial challenge
regulations to implement several
Program Development Division, Food
to the provisions of this rule or the
and Nutrition Service, USDA, 3101 Park
provisions of the Personal
application of its provisions, all
Responsibility and Work Opportunity
Center Drive, Alexandria, Virginia
applicable administrative procedures
Reconciliation Act of 1996, and
22302, (703) 305-2805. Comments may
must be exhausted.
also be faxed to the attention of Mr.
subsequent amendments to these
provisions made by the Omnibus
Waldron at (703) 305-2486. The internet
Unfunded Mandate Analysis
Consolidated Appropriations Act of
address is:
Title II of the Unfunded Mandate
[email protected]. All
1996, the Balanced Budget Act of 1997,
Reform Act of 1995 (UMRA), Pub. L.
and the Agricultural Research Extension
written comments will be open for
104-4, establishes requirements for
and Education Reform Act of 1998. This
public inspection at the office of the
Federal agencies to assess the effects of
action proposes options related to
Food and Nutrition Service during
their regulatory actions on State, local,
matching activities, fair hearing and
regular business hours (8:30 a.m. to 5
and tribal governments and the private
recipient services. This action proposes
p.m., Monday through Friday) at 3101
sector. Under section 202 of the UMRA,
provisions which would increase State
Park Center Drive, Alexandria, Virginia,
the Department generally must prepare
agency flexibility in processing
Room 720.
a written statement, including a cost-
applications for the Program and allow
FOR FURTHER INFORMATION CONTACT:
benefit analysis, for proposed and final
greater use of standard amounts for
Questions regarding the proposed
rules with "Federal mandates" that may
determining deductions and self-
rulemaking should be addressed to Mr.
result in expenditures to State, local, or
employment expenses. This action also
Waldron at the above address or by
tribal governments, in the aggregate, or
proposes revisions to the requirements
telephone at (703) 305-2805.
to the private sector, of $100 million or
for determining alien eligibility and the
SUPPLEMENTARY INFORMATION:
more in any one year. When such a
eligibility and benefits of sponsored
statement is needed for a rule, section
Executive Order 12866
aliens, and to require certain
205 of the UMRA generally requires the
transitional housing payments and most
This proposed rule has been
Department to identify and consider a
State and local energy assistance to be
determined to be economically
reasonable number of regulatory
counted as income, exclude the earnings
significant and was reviewed by the
alternatives and adopt the least costly,
of students under 18 from income, and
Office of Management and Budget in
more cost-effective or least burdensome
require proration of benefits following
conformance with Executive Order
alternative that achieves the objectives
any break in certification.
12866.
of the rule.
Other provisions of this proposed
This rule contains no Federal
Executive Order 12372
action would establish ground rules for
mandates (under the regulatory
implementing the Simplified Food
The Food Stamp Program (Program) is
provisions of Title II of the UMRA)
Stamp Program, allow State agencies
listed in the Catalog of Federal Domestic
which impose costs on State, local, or
options to issue partial allotments for
Assistance under Number 10.551. For
tribal governments or to the private
households in treatment centers, count
the reasons set forth in the final rule in
sector of $100 million or more in any
all, part or, in some cases, none of the
7 CFR 3015, Subpart V and related
one year. Thus, this rule is not subject
income of an ineligible alien in
Notice (48 FR 29115), this Program is
to the requirements of sections 202 and
determining the benefits of the rest of
excluded from the scope of Executive
205 of the UMRA.
the household, issue combined
Order 12372 which requires
allotments to certain expedited service
intergovernmental consultation with
Civil Rights Impact Analysis
households, and certify elderly or
State and local officials.
FNS has reviewed this proposed rule
disabled households up to 24 months
in accordance with the Department
and other households up to 12 months.
Regulatory Flexibility Act
Regulation 4300-4, "Civil Rights Impact
The action also proposes several
This rule has been reviewed with
Analysis" to identify and address any
changes to existing regulations in
regard to the requirements of the
major civil rights impacts the proposed
response to the President's reform
Regulatory Flexibility Act of 1980 (5
rule might have on minorities, women,
initiative to remove overly prescriptive,
U.S.C. 601-612). Shirley R. Watkins,
and persons with disabilities. After a
outdated, and unnecessary regulatory
Under Secretary for Food, Nutrition and
careful review of the rule's intent and
provisions.
Consumer Services, has certified that
provisions, and the characteristics of
Federal Register/V 65, No. Tuesday, February 29, Proposed Rules
10857
food stamp households and individuals
the earnings of students under age 18;
standard utility allowances; section 811,
participants, FNS has determined that
(8) make use of a homeless shelter
transitional housing payments; and
there is no way to soften their effect on
deduction optional; (9) allow State
section 827, proration of benefits at
any of the protected classes. FNS has no
agencies to mandate use of a standard
recertification. The SFSP authorized
discretion in implementing many of
utility allowance if they have at least
under section 854 may result in savings
these changes. The changes required to
one standard that includes heating and
or increased Program costs with respect
be implemented by law, have been
cooling costs and one that does not; (10)
to individual households; however. the
implemented.
eliminate the exclusion for vendored
net impact of SFSP implementation
All data available to FNS indicate that
transitional housing payments for
must be cost neutral. The Departmental
protected individuals have the same
homeless households; (11) allow use of
initiative to revise the treatment of
opportunity to participate in the Food
standard amounts in determining self-
inaccessible resources produces a cost
Stamp Program as non-protected
employment expenses; (12) make
which slightly lowers the total savings
individuals. FNS specifically prohibits
optional the issuance of combined
from this rule. The savings from the
the State and local government agencies
allotments to expedited service
remaining provisions in the rule are
that administer the program from
households that apply after the 15th of
negligible; therefore, we will not discuss
engaging in actions that discriminate
the month; (13) allow State agencies to
them in this analysis.
based on race, color, national origin,
issue partial allotments to households in
Section 402-Alien Eligibility
gender, age, disability, marital or family
treatment centers; (14) require proration
Section 402 of the PRWORA
status. Regulations at 7 CFR 272.6
of benefits following any break in
specifically state that "State agencies
certification; (15) allow State agencies to
significantly reduces the number of
shall not discriminate against any
accept an oral withdrawal from the
legal aliens who are eligible for food
applicant or participant in any aspect of
household for a fair hearing; (16) revise
stamps. Effective August 22, 1996, for
program administration, including, but
requirements for producing or
applicants and August 22, 1997, for
not limited to, the certification of
displaying nutritional education
current recipients, many aliens legally
materials; (17) eliminate mandated
admitted for permanent residence who
households, the issuance of coupons,
training standards; (18) eliminate
were previously eligible became
the conduct of fair hearings, or the
conduct of any other program service for
requirement for reviewing and reporting
ineligible. The exceptions are those
reasons of age, race, color, sex,
on office hours; (19) revise mail
admitted as refugees, asylees, Cubans,
Haitians, Amerasians, and those who
handicap, religious creed, national
issuance requirements in rural areas;
have had removal withheld who retain
origin, or political beliefs."
(20) prohibit Federal reimbursement for
Discrimination in any aspect of program
recruitment activities and recruitment
eligibility for the first 5 years (later
changed to 7 years by the Agricultural
administration is prohibited by these
activities from being approved as part of
Research Extension and Education
regulations, the Food Stamp Act, the
a State agency's optional Outreach plan;
Reform Act of 1998 (AREERA) after
Age Discrimination Act of 1975 (Pub. L.
(21) make optional rather than
admission; lawful permanent residents
94-135), the Rehabilitation Act of 1973
mandatory the use of the Income
who have earned at least 40 quarters of
(Pub. L. 93-112, section 504), and title
Eligibility and Verification System and
coverage as defined by the Social
VI of the Civil Rights Act of 1964 (42
the Systematic Alien Verification for
Security Administration; and those who
U.S.C. 2000d). Enforcement action may
Entitlements match programs; and (22)
are serving or have served in the U.S.
be brought under any applicable Federal
establish ground rules for implementing
armed forces and their spouses and
law. Title VI complaints shall be
the Simplified Food Stamp Program
children. Effective November 1, 1998,
processed in accordance with 7 CFR
(SFSP) In addition, this action is
AREERA made certain Hmong,
part 15. Where State agencies have
needed to implement a Departmental
Highland Laotians, and American
options, and they choose to implement
initiative to revise the current policy on
Indians born in Canada eligible for food
a certain provision, they must
determining the resource value of
stamps. It also made aliens who were
implement it in such a way that it
licensed vehicles.
lawfully living in the U.S. on August 22,
complies with the regulations at 7 CFR
PRWORA Provisions
1996, eligible for food stamps if they are
272.6.
under 18 or are disabled, or were 65 or
Benefits
Regulatory Impact Analysis
older on August 22, 1996.
State agencies will benefit from this
Those aliens who lost eligibility will
Need for Action
rule to the extent that it increases State
contribute to smaller State agency
This action is needed to implement
agency flexibility and simplifies
caseloads. However, determining the
provisions of Pub. L. 104-193
Program requirements.
eligibility of individuals will be more
(PRWORA) which would: (1) Remove
complicated. For certain categories of
specific requirements for State agency
Costs
aliens, State agencies will have to
processing of food stamp applications;
The food stamp changes made in this
determine when the individuals were
(2) revise requirements for determining
rule would reduce Program costs for the
admitted. For other categories, State
the eligibility of aliens; (3) count as
5-year period Fiscal Year (FY) 2000
agencies will have to obtain information
income certain State and local energy
through FY 2004 by approximately
regarding the applicant's work history.
assistance; (4) allow State agencies to
$2.75 billion, primarily as a result of the
Thus, there may be no significant
count all or part of an alien's income in
provisions that make many aliens
savings in caseworker time.
determining the benefits of the rest of
ineligible to participate (section 402)
In FY 2000, without taking into
the household; (5) require that the full
and the provision that requires that
account the cost of restoring benefits to
amount of a sponsor's income and
most State and local energy assistance
selected aliens through AREERA, we
resources be counted in determining the
be counted as income for food stamp
estimate that the savings would have
eligibility of a sponsored alien; (6) allow
purposes (section 808). The Program
been $500 million. We estimate that in
State agencies to certify households
realizes smaller savings from the
1998, approximately 790,000
consisting entirely of elderly or disabled
following provisions: Section 807,
participants lost eligibility with an
members up to 24 months; (7) exclude
earnings of children; section 809,
average benefit loss of $75 a month and
10858
Federal Register / 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
another 285,000 people remained
State agencies may either: (1) Count the
assistance, we estimated that benefits
eligible but lost an average of $15 a
resources and a pro-rated share of the
for approximately 3.959 million
month. About 685,000 people living in
ineligible aliens' income; or (2) count
participants will be reduced, with each
households with ineligible aliens
the resources, not count the ineligible
person losing an average of $4.42 a
received a slightly larger per person
aliens' income, but cap the resulting
month. This results in a savings of $210
benefit for those still eligible and
allotment for the eligible members at the
million for FY 2000 and a 5-year savings
participating in the Program, on average
allotment amount the household would
of $1.05 billion.
$15 per month. This is because of
receive were it not for the PRWORA
economies of scale in the allotment
eligibility restrictions.
Section 811-Transitional Housing
tables which are by household size, e.g.,
Using a simulation based on the 2000
Payments
a two-person household based on no
baseline version of the 1996 QC
This provision removes the statutory
income would receive a larger per
Minimodel, we estimate that the option
exclusion from consideration as
person allotment than a three-person
of excluding the income of PRWORA-
household income any State PA or GA
household based on no income. It is
ineligible aliens increases costs by an
payments made to a third party on
important to realize that all of these
estimated $0 million for FY 2000 and
behalf of a household residing in
"gainers" lived in households where the
$20 million for FY 2000-FY 2004. These
transitional housing for the homeless.
total food stamp benefit available to the
estimates take into account current State
State agencies may continue to exclude
household declined.
practices and an expected shift of some
PA housing payments from income if
Based on information from a
States from the first option.
they are emergency or special payments
simulation model using 1996 Food
As a result, the combined effect of
over and above the regular grant or are
Stamp Quality Control data, together
these changes will cause savings to fall
provided for migrant or seasonal
with information from the Immigration
through FY 2002, and then rise after that
farmworker households while they are
and Naturalization Service on
with the expected increases in the
in the job stream. GA housing payments
immigration and naturalization patterns
average benefit. After accounting for
may be excluded if they are provided by
and the Survey of Income and Program
increased naturalization, AREERA, and
a State or local housing authority, are
Participation (SIPP) on the work
changes in the counting of PRWORA-
emergency or special payments, or the
histories of aliens, we estimate that 20
ineligible aliens' income being
assistance is provided under a program
percent of permanent residents meet the
implemented starting in FY 2001,
in a State in which no GA payments
40-quarters work exemption. Using
savings are estimated at $315 million in
may be made directly to the household
information from the Current
FY 2000, $320 million in FY 2001, $360
in the form of cash. State agencies will
Population Survey on the veteran status
million in FY 2002, $380 million in FY
have to notify affected households that
of aliens, we estimate that less than 1
2003, and $410 million in FY 2004.
their benefits will be reduced. Based on
percent meet the veteran's exemption.
Savings related to the alien provisions
estimates derived from data on AFDC
Moreover, because applications for
for the 5-year period FY 2000-FY 2004
and shelter payments made to the
naturalization have increased
are estimated to be $1.785 billion.
number of food stamp households
dramatically over the last two years, it
estimated to be living in welfare hotels
is anticipated that naturalizations will
Section 807-Earnings of Children
approximately 76,000 recipients will
increase through FY 2001, reducing
This provision revises the current
lose benefits, for a savings of $10
somewhat the number of persons losing
exclusion from income of the earnings
million in FY 2000 and a 5-year savings
eligibility and benefits through that time
of elementary or secondary school
of $50 million. The average benefit loss
period compared to FY 1998.
students under age 22 to exclude the
per person is about $11 a month.
The enactment of AREERA on
earnings of these students if they are
November 1, 1998 restored benefits to
under 18. Based on the 1996 Quality
Section 809-Standard Utility
Allowances
an estimated 210,000 legal aliens,
Control data, it is estimated that the
costing an additional $185 million in
benefits of approximately 2,700 students
This provision allows State agencies
2000 and $775 million for the 5-year
will be reduced an average of $89 per
to mandate use of a standard utility
period FY 2000-FY 2004.
month. FY 2000 savings are estimated at
allowance that includes heating or
PRWORA does not address how or
$5 million and a 5-year savings of $25
cooling costs, provided the State agency
whether to count the income or
million.
has another standard allowance that
resources of the aliens made ineligible
does not include heating or cooling
by PRWORA for purposes of
Section 808-Energy Assistance
costs and the mandatory standards will
determining eligibility or allotment
This provision eliminates the
not increase Program costs. The
amounts for the rest of the household.
exclusion from income of most State
PRWORA also provides that in a State
Alternatives were considered including
and local energy assistance payments.
that does not choose to make standards
counting ineligible aliens' resources and
Federal, State, or local one-time
mandatory, households are allowed to
all income; counting resources and a
payments for weatherization and
switch between actual expenses and a
pro-rated share of income; not counting
replacement or repair of heating or
standard only at recertification.
the ineligible aliens' income, but
cooling devices are excluded. All
The proposed rule provides
capping the resulting allotment for the
federal energy assistance payments are
requirements for a nonheating/cooling
eligible members at the allotment a
excluded, except those provided under
standard and would require State
similarly situated all citizen household
Title IV-A of the Social Security Act.
agencies to provide FNS with sufficient
would receive; or counting neither
State agencies are required to count as
data to determine whether or not the
income nor resources. The alternative
income the portion of the public
State agency's proposed standards are
chosen under the proposed rule would
assistance grant previously excluded as
cost-neutral. The proposed rule also
be to allow the State agency to pick one
energy assistance. Using 1996 food
provides that elderly or disabled
State-wide option for determining the
stamp QC data on the number of AFDC/
households certified for 24 months may
eligibility and benefit level of
FSP households in each State and 1996
switch at the 12-month point when the
households with members who are
Green Book data on the average AFDC
State agency is required to contact the
aliens made ineligible under PRWORA.
disregard for state-provided energy
household. The State agency would be
Federal Register/ 65, No. Tuesday, February 29, 2000 Proposed Rules
10859
required to allow households a choice
ineligible alien's income if the alien is
ineligible aliens' income causes their
between using actual expenses or a
in a category that was ineligible prior to
countable income to exceed the
standard when they move and incur
PRWORA when calculating the
thresholds. Other households remain
shelter expenses. The proposed rule also
eligibility and benefits of the other
eligible but, with a higher net income,
would allow households in private
individuals in the household. These
qualify for smaller benefits.
rental housing to use a standard
aliens are primarily aliens admitted
Using a simulation based on 1996
allowance that includes heating or
under color of law, those without
Food Stamp Quality Control data
cooling costs if they incur an expense
documentation to establish eligible
adjusted to reflect rules in place in FY
for heating or cooling separately from
status, and those temporarily residing in
1999, we estimate that under the
their rent. Many of these households are
the country legally, such as diplomats
provision allowing States to count 100
currently entitled to the standard
and students. (Treatment of the income
percent of the income of aliens
because they receive Low-Income Home
and resources of the classes of aliens
ineligible prior to enactment of
Energy Assistance (LIHEAP) payments.
made ineligible by PRWORA is
PRWORA, approximately 1,000 people
Households in public rental housing
different, and it is discussed above.)
remained eligible but lost an average of
that incur only the cost of excess usage
In order not to give preferential
$95 a month in benefits and 1,000
are prohibited by the Food Stamp Act
treatment to households with ineligible
recipients became ineligible losing $190
from receiving a heating or cooling
aliens in classes that were ineligible
a month in benefits. Savings are
standard. Providing direct entitlement
prior to PRWORA over citizen
estimated at $5 million for FY 2000 and
to a heating or cooling standard to
households, the rule would allow State
$25 million for FY 2000-FY 2004.
households in private rental housing
agencies a further option to count all of
would eliminate the need for the State
the income for purposes of applying the
Section 827-Proration of Benefits at
agency to verify receipt of LIHEAP,
gross income test, but use a prorated
Recertification
which has been problematic for State
share to determine eligibility and level
This provision requires that
agencies and households.
of benefits. For example, a household
provisions for prorating benefits at
The provision of the PRWORA
consisting of an undocumented alien
recertification revert to those in place
allowing mandatory utility standards
and a citizen may have an income
before enactment of the Mickey Leland
would increase State agency flexibility
which would place the household over
Childhood Hunger Relief Act of 1993.
and reduce the time needed to calculate
the maximum income limit if all of it is
Except for migrant and seasonal
the shelter expenses of households
counted. However, if the undocumented
farmworker households, benefits would
which previously claimed actual costs.
alien is excluded from the household
be prorated if there is any break in
Savings result from two factors: (1) If a
and only a prorated share of his or her
certification. State agencies are affected
State mandates a standard, households
income is counted, the remaining
to the extent that they have to reprogram
with shelter costs higher than the SUA
citizen member could be eligible. This
computers and revise guidance to staff.
would no longer be allowed to claim
option would allow the State agency to
Based on a 1989 GAO study on
actual costs and (2) households will no
count all of the undocumented alien's
recertification, entitled Participants
longer be allowed to switch between the
income for purposes of determining if
Temporarily Terminated for Procedural
SUA and actual costs one additional
the household's gross income is below
Noncompliance, we estimate that the
time during each 12-month period.
the gross income limit but only counting
benefits of approximately 1.23 million
Using a simulation model based on
a prorated share for determining the
people will be reduced, for a savings of
1994 data from the Survey of Income
household's allotment level. The State
$20 million in FY 2000 and $100
and Program Participation (SIPP), and
agency will need to consider if the
million over 5 years. Those losing
adjusting for the fact that only five
number of cases affected will warrant
benefits lose an estimated average of
States (Delaware, Louisiana, Michigan,
two different income computations.
less than $1.50 a month.
North Dakota, and Wyoming) with only
Whatever option the States selects will
seven percent of the caseload initially
have to be applied to all ineligible aliens
Departmental Initiative-Inaccessible
implemented this option, we estimate
in the same class.
Resources and Vehicles
that the benefits of approximately
Prior to the enactment of PRWORA,
60,000 people were reduced in 1998 for
States were required to prorate only a
Benefits
an average loss of $12 a month, and 783
share of the ineligible alien's income to
This proposed rule would allow some
people lost eligibility for an average
the household. For example if a
households with licensed vehicles of
monthly loss of $31. The total savings
household consisted of one ineligible
moderate value to participate in the
were estimated to be $10 million.
alien and two eligible participants,
program, if they are otherwise eligible
We assume that more States will
under prorating, two-thirds of the
and have little equity in the vehicle.
implement this provision, once they
income of the ineligible alien would be
State agencies could benefit from
turn their attention from implementing
counted as income available to the food
simplification of procedures as vehicles
TANF. We estimate that in five years,
stamp household. Under the 100
in which the household has little equity
States that account for 28 percent of
percent option, all of that ineligible
are excluded from consideration as
total benefit issuance will have opted
alien's income would be counted.
resources.
for required use of the SUA. Under
Of the two States electing to count
Costs
these assumptions, total savings are $20
100 percent of the income of ineligible
million in FY 2000 and $175 million
aliens, only one State has continued this
This provision will revise current
over 5 years. By FY 2004, slightly over
policy. The budget assumes only that
procedures to include some vehicles
3,000 people may lose eligibility.
one State will continue to opt for the
under the inaccessible resources
100 percent option. Deeming 100
provision. Equity in a vehicle of less
Section 818-Treatment of the Income
percent of the income of an ineligible
than one-half of the applicable resource
of Ineligible Aliens
household member increases the
standard for the household will exempt
This rule would implement the
countable income of food stamp
the vehicle from consideration as a
provision which allows State agencies
households. Some households lose
resource. This provision has negligible
to elect to count either all or part of an
eligibility if deeming 100 percent of the
costs in FY 2000. In FY 2001, the
10860
Federal Register 65, No. Tuesday, February 29, Proposed Rules
estimated cost is $55 million and the
encourage individuals to take personal
shelter deduction; (3) require mandatory
five year cost is $430 million.
responsibility for their own welfare.
utility allowances; (4) certify
Paperwork Reduction Act
These provisions are addressed in this
households in which all members are
proposal. In addition, this rule
elderly or disabled for 24 months; (5)
The information collection
addresses provisions of PRWORA
determine the benefits of a household
requirements described in § 273.2,
relating to the eligibility of aliens which
containing an ineligible alien in
§ 273.14(b),and § 273.21 of this
did not amend the Act. State agencies
accordance with 7 CFR 273.11(c)(1) or
proposed rule governing the
were notified in an agency
(c)(2); (5) make exceptions to using
application, certification, and ongoing
memorandum that they were required to
direct mail issuance in rural areas; and
eligibility of food stamp households
implement the mandatory provisions
(6) accept an oral withdrawal from the
have been approved under OMB No.
upon enactment for applicant
household for a fair hearing request. The
0584-0064. The information collection
households and at recertification for
proposed provisions for including these
requirements described in § 273.9(d)
participant households without waiting
options in the regulations are discussed
and § 273.11(b) of this proposed rule
for formal regulations.
in detail below in order of the regulatory
governing administration of the
For those sections of the regulations
citation.
homeless shelter deduction, establishing
we are proposing to amend as a result
and reviewing standard utility
State Employee Training-7 CFR
of PRWORA, we are also taking this
allowances, and establishing
272.4(d)
opportunity to propose regulatory
methodologies for offsetting the cost of
changes in response to the President's
Section 836 of PRWORA deleted all
producing self-employment income
regulatory reform initiative to remove
Federal requirements for State employee
have been approved under OMB No.
overly prescriptive, outdated and
training. Prior to the enactment of
0584-0096. See Vol. 64 FR 472, dated
unnecessary provisions of the
PROWRA, Section 11(e)(6) of the Food
January 5, 1999, for a description of the
regulations.
Stamp Act (7 U.S.C. 2020(e)(6)) required
information collection requirements and
The requirements of each provision of
State agencies to provide continuing
request for comment.
PRWORA addressed by this proposal
training for all personnel involved with
The information collection
and the proposed regulatory changes are
certification actions. The Food Stamp
requirements governing State agency
discussed in the remaining pages of this
Act further provided State agencies with
administration and management
preamble. Those changes being made in
the option of contracting for training for
described in this proposed rule at Part
response to the President's regulatory
persons who work with volunteers or
272 have been eliminated, made
reform initiative are also identified and
nonprofit organizations that provide
optional or significantly modified as a
discussed.
outreach or eligibility screening to
result of implementation of certain
persons who may be potentially eligible
provisions of the PRWORA amending
Part 272-Requirements for
for food stamp benefits. The current
the Food Stamp Program. Therefore,
Participating State Agencies
rules at 7 CFR 272.4(d) include these
current reporting and record keeping
Operating Guidelines and Forms-7
provisions and require State agencies to
burden, previously approved by OMB
CFR 272.3
provide training for all hearing officials
and assigned control numbers 0584-
and performance reporting system
0064, 0584-0083, and 0584-0350, either
The PRWORA contains several
reviewers. Under current rules, FNS is
remains the same or there is no longer
provisions offering State agencies
also required to review the effectiveness
an information collection burden
optional courses of action in their
of State agency training based on
associated with the provisions
administration of the Food Stamp
information obtained from Agency
discussed in the preamble to this rule.
Program. These options will be included
reviews and other sources.
Comments regarding this burden
in Program regulations at the
To implement Section 836 of
estimate or any other aspect of this
appropriate location and are discussed
PRWORA, we are proposing to delete all
collection of information, including
later in this preamble. We propose that
the mandatory training requirements at
suggestions to reduce this burden may
the options chosen by the State agencies
7 CFR 272.4(d). On the basis of their
be sent to: U.S. Department of
be included in the State's Plan of
own experience, States will determine
Agriculture, Clearance Officer, OCIO,
Operation. However, we do not intend
the training needs necessary to develop
room 404-W, Washington, DC 20250
to make a conforming amendment at 7
staff skills that assure efficient and
and to Wendy A. Taylor, OIRM, Office
CFR 272.3 as the current regulation
effective program administration. FNS
of Management and Budget,
sufficiently addresses this requirement.
fully supports State training efforts and
Washington, DC 20503.
Under current rules at 7 CFR 272.3,
believes State agencies will maintain
when a State agency implements rule
Background and Discussion of
quality training programs as an essential
changes, including any optional
Proposed Regulatory Changes
element of effective Program
provisions, the State agency is required
administration. Deleting 7 CFR 272.4(d)
On August 26, 1996, Pub. L. 104-193,
to provide written procedures or
reflects the change in the law.
the Personal Responsibility and Work
guidelines to State staff. These written
Opportunity Reconciliation Act of 1996
procedures or guidelines are also
Hours of Operation-7 CFR 272.4(g)
(hereinafter referred to as "PRWORA")
required to be submitted to FNS for
Section 848 of PRWORA deleted
was enacted. PRWORA contained
review and comment at the same time
previously designated Section 16(b) of
numerous provisions amending the
they are issued to State staff.
the Food Stamp Act. That section
Food Stamp Act of 1977 (hereinafter
The optional provisions referred to in
required the Secretary of Agriculture to
referred to as "the Food Stamp Act" or
the previous paragraph include State
establish standards for the periodic
"the Act"). The PRWORA contained
agency options to: (1) Issue separate or
review of food stamp office hours to
several provisions designed to increase
combined allotments to expedited
ensure that employed individuals were
State agency flexibility in administering
service households that apply for
adequately served by the FSP. It also
the Food Stamp Program-especially in
benefits after the 15th of the month as
required State agencies to submit
the area of household application and
is currently allowed for non-expedited
regular reports specifying the
certification for Program benefits and to
service households; (2) have a homeless
administrative actions that the State
Federal Register Vol. 65, No. Tuesday, February 29, Proposed Rules
10861
planned to take to meet the standards
Section 835 of PRWORA deleted
Paragraphs (b)(2) and (b)(3), which
prescribed in that section. The
Section 11(e)(14) of the Food Stamp Act.
reiterate certain State agencies'
corresponding rules at 7 CFR 272.4(g)
The removal of this language requiring
responsibilities, would be redesignated
specify that State agencies are
FNS to supply nutrition education
as paragraphs (b)(3) and (b)(4).
responsible for determining the hours
materials to States in no way implies a
Optional Use of the Income and
that food stamp offices are open and
lesser commitment to nutrition
Eligibility Verification System (IEVS)
that, at least once annually, State
education in the FSP by FNS. In fact, it
and the Systematic Alien Verification
agencies must review the hours of
is our intention to strengthen and
for Entitlements (SAVE) Program-7
operation and maintain the results of
improve nutrition among low-income
CFR 272.8, 272.11 and 273.2
the reviews for review by FNS.
households through the vigorous
To implement Section 848 of
promotion of nutrition education in the
Currently, 7 CFR 272.8 and 7 CFR
PRWORA, we are proposing to make
Program. Our commitment to the
273.2 require State agencies to maintain
clear that State agencies are responsible
importance of nutrition education for
and use an income and eligibility
for setting the hours of operation for
food stamp recipients reflects the
verification system (IEVS) to request
their food stamp offices. However, we
mandate of the Program which is, as
and to exchange wage and benefit
specified by Section 2 of the Food
information on Food Stamp applicants
propose that in setting office hours State
*
safeguard
the
and recipients from specified data
agencies are expected to take into
Stamp Act, to
account the special needs of the people
health and well-being of the nation's
sources. The provisions of 7 CFR 272.8
they expect to serve. We ask them to be
population by raising levels of
also require that, prior to requesting or
especially sensitive to the needs of
nutrition." (7 U.S.C. 2012) We will
exchanging data, State agencies enter
continue to expect States to help
into data exchange agreements with the
households who contain working
persons because these individuals may
recipients use food stamp benefits to
data source agencies and that these
not be able to leave work to go to the
maximum nutritional advantage. States'
agreements bei included in the State
food stamp office unless the food stamp
growing levels of commitment to
Plan of Operation. The State Plan
nutrition education and its importance
attachment details the State agency's
office is open during non-traditional
are supported by the increasing number
IEVS targeting methods, number of
times such as evenings or weekends. In
deciding what office hours will be
of States that have approved State plans
information items acted upon, and a
offered, State agencies need to consider
for optional nutrition education over the
cost-benefit analysis justification. The
section 11(e)(2)(A) of the Food Stamp
past several years. As of Fiscal Year
regulations at 7 CFR 272.11 require
Act, as amended by section 835 of
1999, 46 State agencies have nutrition
State agencies to participate in the
PRWORA, which requires them to
education plans and have committed
Immigration and Naturalization
over $70 million in non-Federal
Service's Systematic Alien Verification
accommodate special needs. In singling
resources to FSP nutrition education. It
for Entitlement (SAVE) Program.
out the working poor, we recognize that
is expected in future years that
Section 840 of PRWORA amended
the Program serves a vital role in
additional States will become actively
Section 11(e)(18) of the Food Stamp Act
helping families move to self-sufficiency
involved in nutrition education
(7 U.S.C. 2020(e)(18)) to make IEVS and
and that even people working full-time
delivery. FNS will continue to
SAVE State options. Consequently, we
at minimum wages and taking
encourage active State agency
are proposing in this rule to remove the
advantage of the Earned Income Tax
commitment to the delivery of nutrition
requirement that State agencies operate
Credit may continue to fall below the
education to FSP clients.
either an IEVS or a SAVE system. We
poverty level without food stamp
In response to changes in PRWORA,
believe that many States will decide to
assistance. In commenting on this
we are proposing to replace paragraphs
continue to avail themselves of these
provision, we would appreciate any
7 CFR 272.5(b)(1)(i), 7 CFR
opportunities to match their Food
recommendations on how eligible or
272.5(b)(1)(ii), and 7 CFR 272.5(b)(1)(iii)
Stamp case files against other Federal
potentially eligible working individuals
with a new paragraph (b)(1). The
data sources. Furthermore, it is in a
can best be assured adequate access to
proposed paragraph would specify FNS'
State's best interest to utilize wage,
the Program.
commitment to encourage State agencies
income, and immigration status
The proposed revisions at newly
to develop Food Stamp Nutrition
information as there is a Food Stamp
redesignated § 272.4(f) no longer require
Education Plans as allowed under
error reduction and cost avoidance
State agencies to assess or report on
current rules at 7 CFR 272.2(d)(2). While
potential in the use of these matches.
office hours. It is expected that they will
most State agencies have a Nutrition
Therefore, since in all likelihood many
do such assessment on their own
Education Plan, FNS encourages all
States will wish to continue to take
without the need for a regulatory
State agencies to seriously consider
advantage of these matching
requirement.
developing such plans so that FSP
opportunities, these proposed
Nutrition Education Materials-7 CFR
clients have access not only to food
regulations would provide a maximum
stamps, but also to nutrition education
amount of latitude to States to use IEVS
272.5(b)
that promotes the effective and
and SAVE to the best advantage of the
Prior to the enactment of PRWORA,
economical use of food stamps for
State and with minimum Federal
Section 11(e)(14) of the Food Stamp Act
healthier diets and healthier lives.
oversight and record keeping
(7 U.S.C. 2020(e)(14)) and
Paragraph 7 CFR 272.5(b)(1)(iv),
requirements. These proposed
corresponding regulations at 7 CFR
which discusses the Expanded Food
regulations would require only that
272.5(b) required FNS to supply State
and Nutrition Education Program
State agencies which opt to use IEVS
agencies with posters and pamphlets
(EFNEP), would be redesignated as 7
and SAVE observe the requirements of
containing information about nutrition
CFR 272.5(b)(2). By law, State agencies
the data exchange agreements with
and the relationship between diet and
must continue to encourage food stamp
agencies from which data will be
health. State agencies were required to
participants to participate in EFNEP and
obtained or exchanged. Current
display these posters and to make these
allow EFNEP personnel to distribute
requirements to report targeting
pamphlets available at all food stamp
nutrition education materials or talk to
methods and provide cost-benefit
and public assistance offices.
participants in local food stamp offices.
justification would be rescinded in this
10862
Federal Register / Vol. 65, No. 40 Tuesday, February 29, Proposed Rules
rule. This proposed rule also eliminates
requiring applicant signatures; and (5)
requirements for meeting follow-up time
added a sentence that the State agency
require that the State agency provide
frames. States should be aware,
must have a procedure for informing
each household, at the time of
persons who wish to apply for food
however, that quality control reviews
application, a clear written statement
stamps about the application process
will continue to use data obtained from
explaining what acts the household
and their rights and responsibilities.
IEVS and SAVE systems as a case
must perform to cooperate in obtaining
State agencies are reminded that
analysis tool.
verification and otherwise complete the
pursuant to current regulations at 7 CFR
The proposed amendments to the
application process.
272.3(b), operating procedures or
current regulations are incorporated
Pursuant to Section 11(e) of the Act,
guidelines established by the State
under 7 CFR 272.8, 7 CFR 272.11 and
as amended by Section 835 of PRWORA
agency are required to be submitted to
7 CFR 273.2.
and the Department's response to the
FNS as part of the State's Food Stamp
President's reform initiative to remove
Part 273-Certification of Eligible
Plan of Operation.
Households
overly prescriptive, outdated, and
unnecessary provisions of regulations,
Food Stamp Application-7 CFR
Application Processing-7 CFR 273.2 (a)
we are proposing to amend 7 CFR 273.
273.2(b) and (c)
Through (j)
2, "Application Processing." The
New paragraph (b) would be titled
Section 835 of PRWORA amended
changes that would be made are
"Application processing." The
sections 11(e)(2) and (e)(3) of the Act, 7
discussed in detail in the following
introductory text for this paragraph
U.S.C. 2020(e)(2) and (e)(3) which
paragraphs of this preamble. Some
would include language from the first
govern the food stamp application and
minor editing changes would also be
sentence of current paragraph (a) which
certification process. Section 11(e)
made but are not discussed in detail.
defines the application process to
provides more flexibility for State
Title of Part 273.2
include filing of an application, being
agencies to tailor day-to-day operations
interviewed, and providing verification.
of the Program to the needs of
The rulemaking would change the
The second, third, and fourth sentences
individual States while ensuring that
title of 7 CFR 273.2 from "Application
of current paragraph (a) would be
processing" to "Office operations and
removed. The second sentence now
households continue to receive timely,
application processing."
accurate and fair service. More
requires State agencies to act promptly
specifically, Section 835 removed the
General Purpose-7 CFR 273.2(a)
on applications and provide food stamp
benefits retroactive to the month of
requirement that the Secretary design a
A new paragraph (a) would be added
uniform national food stamp application
application for those households
and titled "Office operations." Current
form and eliminated dictates concerning
determined eligible. The third sentence
paragraphs (a), (b), and (c) of 7 CFR
what information had to be included on
provides that expedited service must be
273.2 would be revised and combined
the application form and in what
available. These requirements are
into a single new paragraph (b).
particular location on the form. Section
addressed in separate paragraphs under
New paragraph (a) would incorporate
this section; therefore, there is no need
11(e) of the Act now provides that State
the language contained in amended
to repeat them here. The fourth sentence
agencies must develop their own food
Section 11(e)(2)(A) requiring State
simply introduces the rest of the
stamp application form and establish
agencies to establish their own
provisions under 7 CFR 273.2(a) and is
their own operating procedures for local
procedures governing office operations
unnecessary.
food stamp offices. States may now use
that the State agency determines best
New paragraph 7 CFR 273.2(b)(1)
electronic storage of applications and
serve households in the State, including
would be titled "Application design"
other information, including the use of
households with special needs, such.as,
and would include the requirement of
electronic signatures. States must
but not limited to, households with
amended Section 11(e)(2)(B)(ii) that
provide a method of certifying and
elderly or disabled members,
State agencies design their own
issuing coupons to eligible homeless
households in rural areas with low-
application forms. Pursuant to Section
individuals.
income members, homeless individuals,
11(e)(2)(C), the application form may
While the language of amended
households residing on reservations,
include the electronic storage of
Section 11(e) encourages personal
and households in areas in which a
information and the use of electronic
responsibility and provides more State
substantial number of members of low-
signatures. The requirement in current
agency flexibility, it retains a few
income households speak a language
paragraph (b)(3) regarding the need for
specific provisions to protect a client's
other than English. It would also
prior FNS approval of State-designed
right to timely, accurate, and fair
incorporate the requirements that the
applications which deviate from the
service. The Act continues to: (1)
State agency provide timely, accurate,
Federally designed application would
Require that applications be processed
and fair service as required by Section
be removed because Section 835
within 30 days; (2) permit households to
835 of PRWORA. This revised
eliminated the requirement that State
apply for participation on the same day
paragraph would also clarify that a State
agencies use a Federally-designed
they first contact the food stamp office
agency may not impose a processing
application.
during office hours; (3) consider an
requirement for another assistance
Proposed paragraph (b)(1) would
application as "filed" on the date the
program as a condition of food stamp
provide that the food stamp application
applicant submits the application with
eligibility. This is in accordance with
may be designed separately or included
the applicant's name, address, and
Section 11(e)(5) of the Act (7 U.S.C.
in a State-designed multi-program
signature (benefits are calculated based
2020(e)(5)) which provides that the
application. As discussed later in this
on the filing date of an application); (4)
State agency may not impose any
preamble under the section entitled
require that an adult representative
additional eligibility requirements.
"PA, SSI, and GA categorical
certify the truth of the information on
Eligibility for food stamps must be
eligibility-7 CFR 273.2(j)," PRWORA
the application, including citizenship or
based solely on the Act and food stamp
eliminated mandatory joint application
alien status of each member, and that
regulations and not on another
processing for certain households.
such signature is sufficient to comply
program's requirements. Pursuant to the
However, under Section 11(e), State
with any provision of Federal law
requirement for fair service, we have
agencies are not prohibited from
Federal Register / Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
10863
continuing to use joint processing. If
applicants of the use of IEVS,
for failure to comply with a public
they do, the food stamp eligibility of
participation in the SAVE program, and
assistance program rule or regulation.
jointly processed cases would continue
other computer matching systems as
The proposed regulation provides that
to be based solely on food stamp
governed by the Deficit Reduction Act
households that file a joint application
eligibility criteria contained in the Act.
and the Computer Matching and Privacy
for food stamps and another program
The benefit levels of all households
Protection Acts. These requirements are
and are denied benefits for the other
would also continue to be based solely
discussed at greater length in 7 CFR
program shall not be required to
on food stamp criteria.
273.2(f). Use of the IEVS and SAVE
resubmit the joint application or to file
New paragraph 7 CFR 273.2(b)(2)
systems were made optional by Section
another application for food stamps but
would be entitled "Application
840 PRWORA; but if a State uses these
shall have their food stamp eligibility
contents." Section 835 of PRWORA
systems, they must notify applicants
determined based on the joint
amended section 11(e) of the Act to
pursuant to the Computer Matching and
application in accordance with the food
remove the list of mandatory
Privacy Protection Acts. As stated
stamp processing time frames for
application content requirements. This
earlier, prior to PRWORA, State-
expedited service and normal
mandatory list currently appears at 7
designed applications were required to
processing time frames from the date the
CFR 273.2(b). New paragraph (b)(2)
be modeled after the Federally-designed
joint application was initially accepted
would replace this list with a general
application; therefore, all State-designed
by the State.
requirement that the application must
applications were in compliance with
Pursuant to this rulemaking, new
contain all necessary information to
these other requirements. We would
paragraph (c) would be entitled "Filing
comply with the Act and regulations.
include in new paragraph (b)(2)
an application" and new paragraph
Notices that are required to be given to
language necessary to ensure that State
(c)(1) would be entitled "Filing
households by the Act may be included
agencies continue to include this
process." This paragraph contains the
on the application itself or a document
information on State-designed
requirement appearing in the first
to accompany the application.
applications even though the
sentence of current paragraph (c)(1)
Departmental regulation 4300-3,
applications are no longer subject to
regarding the manner in which
dated February 25, 1998, requires that
FNS approval.
applications can be submitted. The new
the following nondiscrimination
We are proposing that a new
language clarifies that the application
statement appear on the application
statement be included on State-designed
may be submitted by facsimile
itself even if a joint program application
applications to ensure specific
transmission as well as in person,
is being used:
compliance with the Privacy Act as it
through an authorized representative, or
"The U.S. Department of Agriculture
relates to administrative offset programs
by mail. The new language also
(USDA) prohibits discrimination in all
as described in sections 3716 and 3720A
recognizes that some State agencies are
its programs and activities on the basis
of title 31 U.S.C. and section 5514 of
using on-line or other types of
of race, color, sex, religion, national
title 5 U.S.C.
automated applications that may require
origin, or political beliefs. Persons with
New paragraph 7 CFR 273.2(b)(3)
the applicant to come into the local
disabilities who require alternative
would be entitled "Jointly processed
office to complete the application. New
means for communication of program
cases" and would provide that if a State
paragraph (c)(1) would also contain the
information (Braille, large print,
agency has a procedure that allows
requirement appearing in the fifth
audiotape, etc.) should contact USDA's
applicants to apply for the food stamp
sentence of current paragraph (c)(1) that
TARGET Center at (202) 720-2600
program and another program at the
allows an applicant to file an
(voice and TDD).
same time, the State agency shall notify
incomplete application provided it
"To file a complaint of
applicants that they may file a joint
contains at the least the applicant's
discrimination, write to USDA, Director,
application for more than one program
name, address, and signature. The
Office of Civil Rights, Room 326-W,
or they may file a separate application
proposed language of new paragraph
Whiten Building, 14th and
for food stamps independent of their
(c)(1) would also include PRWORA
Independence Avenue, SW,
application for benefits from any other
requirement which allows the use of
Washington, D.C. 20250-9410 or call
program. The proposed paragraph
electronic signatures. The new
(202) 720-5964 (voice and TDD). USDA
would continue to require joint
paragraph specifically provides that
is an equal opportunity provider and
applications to be processed for food
applications signed through the use of
employer."
stamp purposes in accordance with food
electronic signature techniques and
State agencies are reminded that
stamp procedural, timeliness, notice,
applications containing handwritten
Section 835 only affected application
and fair hearing requirements. The
signatures which are then transmitted to
content requirements mandated by the
proposed rule would continue to
the appropriate office via fax or other
Act. Some of the other notices appearing
provide that no household shall have its
electronic transmission technique are
on the former model food stamp
food stamp benefits denied solely on the
acceptable.
application form were included to
basis that its application to participate
New paragraph 7 CFR 273.2(c)(2)
ensure compliance with other laws or to
in another program has been denied or
would be entitled "Household's right to
ensure a stronger case against Program
its benefits under another program have
file." It would provide that the State
violators. The notices that are still
been terminated without a separate
agency must make food stamp
required by other Federal laws include:
determination by the State agency that
applications readily accessible to all
(1) Collection of racial and ethnic data
the household failed to satisfy a food
potentially eligible households or to
and notification to applicants that
stamp eligibility requirement. Section
anyone who requests one which is
disclosure of such information is
835 of PRWORA added an exception to
currently required by 7 CFR 273.2(c)(3).
voluntary; (2) notification to applicants
this prohibition for disqualifications as
The proposed paragraph would contain
that the Act requires collection of the
a penalty for failure to comply with a
the requirement in current 7 CFR
social security numbers of household
public assistance program rule or
273.2(c)(2)(i) that the State agency shall
members and that the Privacy Act
regulation. We have published a
provide an application in person or by
requires notification of the intended use
separate proposed rule (64 FR 70920) to
mail to anyone who requests one. The
of the numbers; and (3) notification to
address disqualifications as a penalty
requirement in current paragraph
10864
Federal Register / Vol. 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
(c)(2)(i) for mailing an application on
provision is necessary if the State
identifying the date an application was
the same day as initial contact by the
agency informs households of the right
received may be more appropriate than
household is modified to require
to file an application on the first day
the method specified in the regulations.
mailing by the next business day. The
they contact the food stamp office.
We believe that State agencies are in the
proposed paragraph would contain the
New paragraph (c)(2) would address
best position to decide the method for
requirement in the fourth sentence of 7
the handling of applications filed at the
establishing the date of application.
CFR 273.2(c)(1) that a household be
wrong certification office. The proposed
Removing the requirement to annotate
allowed to file an application on the
rule would continue to allow the State
the application does not eliminate a
same day it contacts the food stainp
agency to require households to file an
State agency's responsibility to process
office during office hours.
application at a specific certification
an application within 30 days of its
The first sentence of 7 CFR 273.2(c)(4)
office or allow them to file an
receipt.
provides that the State agency shall post
application at any certification office
We would retain in new paragraph
signs in the certification offices which
within the State or project area. The
(c)(4) the requirement in current
explain the application processing
proposed rule would contain the
paragraph (c)(5), "Notice of required
standards and the right to file an
requirement in the second sentence of 7
verification," that State agencies
application on the day of initial contact.
CFR 273.2(c)(2)(ii) that if an application
provide households, at the time of
New paragraph (c)(2) would require
is received at an incorrect office, the
application for certification and
State agencies to post signs or make
State agency shall advise the household
recertification, with a clear written
available other advisory materials
of the address and telephone number of
statement of what acts the household
explaining a person's right to file an
the correct office. However, this
must perform in cooperating with the
application on the day of their first
proposal would modify the requirement
application process, and identify
contact with the food stamp office and
in the third sentence that the State
potential sources of required
the application processing procedures.
agency offer to forward the application
verification. The requirement in current
State agencies would be required to
to the correct office that same day. We
paragraph (c)(5) that State agencies
notify all persons who contact a food
would require the State agency to
assist in the verification processing
stamp office and either request food
forward the application to the correct
would be retained, but modified, in the
assistance or express financial and other
office not later than the next business
new provision. While PRWORA
circumstances which indicate a
day. The third sentence in 7 CFR
eliminated the specific requirement to
probable need for food assistance, of
273.2(c)(2)(ii) that requires the State
assist in obtaining verification, it
their right to file an application and
agency to inform the household that its
substituted a general requirement that
"encourage" them to do so. For
application will not be considered filed
State agencies address the requirements
purposes of this provision "encourage"
and the processing standards shall not
of "special needs" households in their
does not mean recruitment or
begin until the application is received
administration of the Program. Such
persuasion. It means that State agencies
by the appropriate office would be
households include, but are not limited
have a responsibility to inform
removed, because this information
to, households with elderly or disabled
individuals who express an interest in
should be included on the sign or other
members; households in rural areas
food assistance, or express concerns
advisory information required above.
with low-income members, homeless
which indicate food insecurity, about
The fourth sentence in 7 CFR
individuals, households residing on
the Food Stamp Program and their right
273.2(c)(2)(ii) that requires State
reservations, and households in areas in
to apply. We believe these requirements
agencies to forward applications mailed
which a substantial number of members
are necessary under Section 835 of
to the wrong office to the appropriate
of low-income households speak a
PROWRA which requires fair, accurate,
office the same day would be revised to
language other than English. We do not
and timely service, and that applicant
require mailing by the next business
believe that PRWORA amendment
households be permitted to apply the
day. As noted above, if an application
should have the result of leaving
same day they first contact the food
is received at the incorrect office, the
households with limited mobility,
stamp office in person. It is very
State agency would be required to
transportation difficulties, or limited
important to notify households through
inform the household of the address and
English language capabilities to
some means of these rights because
telephone number of the correct office.
complete verification requirements
benefits are provided to eligible
Section 7 CFR 273.2(c)(iii) provides
totally without State agency assistance.
households retroactive to the date of
that in States that have elected to have
Accordingly, the State agency must
application.
Statewide residency, the application
continue to inform such households of
The second sentence of current 7 CFR
processing time frames begin when the
the State agency's responsibility to
273.2(c)(4) requires State agencies to
application is filed in any food stamp
assist the household in obtaining
include information on the application
office in the State. This provision would
required verification, providing the
form that explains the processing
be removed as unnecessary, because any
household is cooperating with the State
standards and the right to file an
office in the State would be considered
agency. The specific requirement in
application on the day of initial contact.
the correct food stamp office.
current paragraph (c)(5) that the State
As explained above, State agencies are
The language appearing in the sixth
agency comply with bilingual
no longer required to have this
sentence of current paragraph (c)(1)
requirements would not be included in
information on the food stamp
which requires State agencies to
the new provision, because a general
application form.
document the date the application was
requirement to comply with bilingual
The language appearing in the fifth
filed by recording on the application the
standards is set forth elsewhere in
sentence of current paragraph (c)(1)
date it was received by the food stamp
current regulations (7 CFR 272.4(b)),
requiring the State agency to advise
office would be removed. State agencies
and it is not necessary to repeat the
households that they do not need to be
have developed many ways of
requirement here. With these changes,
interviewed before filing an application
maintaining applications, through paper
current paragraph (c)(5) would be
as long as it is signed by the applicant
records and through automated systems.
removed.
or an authorized representative would
Depending on the system used by a
Current 7 CFR 273.2(c)(6),
be removed. We do not believe this
State agency, an alternate method of
"Withdrawing an application," would
Federal Register / Vol. 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
10865
be redesignated as the new paragraph
section 11(e)(3) of the Act to remove this
household is certified for longer than 12
(c)(3).
requirement. As a result of this change,
months or the face-to-face interview is
the last sentence of current paragraph
waived by the State agency. This would
Household Cooperation-7 CFR
(d)(1) is unnecessary and would be
eliminate the requirement to conduct a
273.2(d)
removed. That sentence describes
face-to-face interview at the time a
Current 7 CFR 273.2(d) contains
certain individuals who are not
recertification if it occurs during the 12-
provisions relative to household
considered "outside" the household for
month period since the last face-to-face
cooperation in the application process
the purpose of the existing provision.
interview. Conforming amendments
and quality control reviews. We propose
Removal of these provisions does not
would be made to the recertification
to retain most of the language of current
change current policy because refusal to
provisions of existing rules at 7 CFR
paragraph (d)(1) and all of the contents
cooperate continues to be defined as
273.14. Proposed provisions regarding
of current paragraph (d)(2). The changes
refusal by a household member.
State agency waiver of the face-to-face
to paragraph (d)(1) we would make are
interview are discussed later in this
discussed below. Paragraph (d)(1)
Interviews-7 CFR 273.2(e)
section of the preamble.
would be titled "Cooperation with
Current 7 CFR 273.2(e) requires
In response to the President's
application process.' We would remove
households to participate in a face-to-
regulatory reform initiative to remove
the example of "refusal to cooperate"
face interview with a caseworker at the
outdated, unnecessary and overly
appearing in current paragraph (d)(1) as
time of certification and each
prescriptive rules, we are also proposing
unnecessary. There are numerous ways
recertification. Prior to PRWORA, the
additional changes to current interview
that a household could refuse to
Act did not contain an explicit
requirements, as discussed below. The
cooperate, and the example is not
provision requiring food stamp
proposed changes are also consistent
definitive. While we are removing the
applicants to be interviewed. This has
with the spirit of PRWORA to provide
example, we nonetheless expect State
always been a regulatory requirement.
more State agency flexibility in the area
agencies to continue to determine non-
Section 11(e)(2) did provide language
of household application and
cooperation in accordance with the
which allowed elderly/disabled
certification.
standard set forth in the regulation. If a
households to request a waiver of the in-
Current 7 CFR 273.2(e)(1) requires
household believes that it has been
office interview under certain
that interviews be held in the food
denied unjustly for refusal to cooperate,
conditions. Section 835 of PRWORA
stamp office or other certification site.
it retains the right to request a fair
amended section 11(e)(2) of the Act to
We propose to remove this requirement.
hearing.
remove this waiver language, thereby
State agencies could continue to
We would expand on the policy
eliminating any reference in the Act to
conduct all interviews in a food stamp
regarding household cooperation with
the fact that in-office interviews are
office or could choose to conduct
subsequent reviews to provide that a
conducted. The Department believes
interviews in other mutually convenient
subsequent review can be in the form of
that Congress did not seek to eliminate
locations, including the household's
an in-office interview. It is not our
the Program's requirement for
home. If the interview is conducted in
intent that State agencies routinely
conducting in-office interviews; rather,
the household's residence, the proposal
require households to appear for an
by removing the in-office interview
would continue to require that such
interview to resolve discrepancies found
waiver language in the Act, Congress
interview be scheduled in advance with
during a household's certification
provided State agencies, rather than
the household.
period. However, we do believe State
households, the flexibility to determine
We would also remove the sixth and
agencies should have the flexibility to
when the in-office interview should be
eighth sentences of paragraph (e)(1).
require an in-office interview when the
waived. In consideration of the removal
These sentences address the need for
State agency has new information which
of the waiver language and in the spirit
privacy and confidentiality of the
calls into question the household's
of PRWORA, the Department believes it
household's circumstances. The seventh
current eligibility or level of benefits.
is appropriate to reevaluate current
sentence also addresses the need for
For example, a State agency may
policy and determine whether or not to
privacy; therefore, the sixth and eighth
discover information indicating that a
continue requiring face-to-face
sentences are repetitive and
household is not reporting earned or
interviews. A face-to-face interview
unnecessary.
unearned income, which would affect
affords an eligibility worker the best
The provision would continue to
the household's eligibility and benefit
opportunity to explore and resolve
provide that the person interviewed
level and raise questions about whether
questionable or unclear information on
may be the head of the household,
the failure to report is an intentional
the application or other documents
spouse, or another responsible
Program violation. Refusal to appear for
presented by the household in support
household member, or an authorized
the interview would result in the
of its application for benefits in order to
representative and that the applicant
household's case being closed. In all
make an informed eligibility
may bring any person to the interview
cases, where the State agency
determination. The face-to-face
he or she chooses, and that the
determines that benefits will be reduced
interview also provides an opportunity
applicant's right to privacy must be
or terminated, the household is entitled
for households to ask questions to help
protected during the interview. The
to receive a notice of adverse action,
them better understand the many facets
proposal also clarifies that the interview
unless exempt from such notice,
of the Program and to obtain
may be conducted separately or jointly
pursuant to 7 CFR 273.13.
clarification of questions on the
with an interview for another assistance
We would remove the last two
application.
program.
sentences of current paragraph (d)(1).
At the same time, we want to allow
Current 7 CFR 273.2(e)(2) addresses
The first of these sentences provides
some flexibility in this area. Therefore,
waivers of the interview requirement.
that the State agency may not determine
after careful consideration, the
Prior to enactment of PRWORA, the
a household to be ineligible when a
Department is proposing that a face-to-
interview could only be waived if
person outside of the household fails to
face interview be required at the time of
requested by the household because the
cooperate with a request for verification.
initial certification and at least once
household was unable to appoint an
Section 835 of PRWORA amended
every 12 months thereafter unless the
authorized representative and had no
10866
Federal Register / 65, No. Tuesday, February 29, Proposed Rules
adult household members able to come
requirement that State agencies
Attorney General to publish regulations
to the office because the members were
schedule a second interview if the
not later than 18 months after the date
elderly, mentally or physically
applicant fails to attend the first
of enactment of PRWORA (August 22,
handicapped, lived in a location not
scheduled interview. Some State
1996) providing requirements for
served by a certification office, had
agencies have found it burdensome to
verifying that a person applying for a
transportation difficulties, or had
schedule multiple interviews and have
Federal public benefit is a qualified
similar hardships as determined by the
found that a household that fails to
alien and is eligible to receive the
State agency. Section 835 of PRWORA
attend the first scheduled interview
benefit. Section 504 of the Omnibus
struck this waiver provision from the
frequently does not attend a second
Consolidated Appropriations Act
Act and amended Section 11(e)(2) to
scheduled interview. We recognize that
(OCAA), Pub. L. 104-208 amended
provide State agencies the authority to
a household may not be able to attend
section 432(a) to provide that by the
waive an interview without first being
a scheduled interview. However, in the
same date the Attorney General, in
requested by a household. Under this
spirit of PRWORA, which focuses on
consultation with the Secretary of
proposal, the State agency must waive
State agency flexibility in the
Health and Human Services (HHS),
the in-office face-to-face interview in
certification process and household
must also establish procedures for a
favor of a telephone interview or
responsibility, we do not want to
person applying for a Federal public
announced home visit for household
mandate that the State agency be
benefit to provide proof of citizenship.
hardship cases. The proposal would
responsible for rescheduling a missed
Section 5572(a) of the Balanced Budget
allow the State agency to determine
interview. State agencies that want to
Act of 1997, Pub. L. 105-33 provides
what constitutes hardship cases. State
may continue to do this. To be
that not later than 90 days after
agencies could also waive the in-office
consistent with the waiver approvals
enactment of the law, the Attorney
interview in favor of a telephone
noted above, we are adding a
General, in consultation with HHS,
interview or announced home visit for
requirement to proposed paragraph
must issue interim guidance for
households with no earned income if all
(c)(1) that State agencies advise
verifying qualified alien status and
of its members are elderly or disabled.
households that they may reschedule
eligibility for a Federal public benefit.
This change is consistent with existing
any missed appointment.
The interim guidance developed by the
waiver authority at 7 CFR 273.14 which
Verification-7 CFR 273.2(f)
Department of Justice (DOJ) was
allows the State agency to waive the in-
published in the Federal Register on
person interview at recertification for
Current 7 CFR 273.2(f) sets forth the
November 17, 1997 (62 FR 61344). State
such households. The State agency
procedures, including the types of
agencies should also be aware that DOJ
would continue to be required to grant
documents required, for providing
will be publishing a final rule on
a face-to-face interview to any.
verification to establish the accuracy of
Verification of Eligibility for Public
household that requests one.
statements on the application. Some
Benefits. The proposed rule has been
We would remove 7 CFR 273.2(e)(2)(i)
information must be verified in all cases
and other information must be verified
published in the Federal Register, 63 FR
regarding State agency options to
41662, August 4, 1998. Our proposed
conduct telephone or announced home
if questionable. The mandatory
rule references the forthcoming final
visit interviews as this policy is
verification requirements are specified
rule. Relevant changes to alien
incorporated in the new introductory
in paragraph (f)(1), and the verification
verification procedures made by DOJ's
language of paragraph (e)(2) discussed
requirements for questionable
final rule will be incorporated into the
above. We would also remove current
information are specified in paragraph
final version of this rule. The interim
paragraphs (e)(2)(ii) and (iii) as
(f)(2).
unnecessary and overly prescriptive.
In response to the President's
guidance provides currently acceptable
regulatory reform initiative, we propose
procedures for the verification of
Paragraph (e)(2)(ii) provides that the
to simplify the current provisions of
citizenship, alien status, and military
waiver of the face-to-face interview does
connections. Section 432(b) of PRWORA
not exempt the household from the
paragraphs (f)(1) and (f)(2) by removing
verification requirements. Paragraph
repetitive information and overly
provided that not later than 24 months
(e)(2)(iii) provides that the waiver of the
prescriptive requirements for use of
after the date the verification regulations
face-to-face interview must not affect
specific documents wherever possible.
are adopted, States that administer a
the length of the household's
We also propose to change the order of
program that provides a Federal public
certification period.
the subparagraphs in paragraph (f)(1) so
benefit must have in effect a verification
those that relate to financial criteria will
system that complies with the new
We would remove current paragraph
be grouped together toward the end of
regulations. We would remove current
(e)(3). The first sentence requires the
State agency to schedule all interviews
the paragraph. Current paragraph
paragraphs (f)(1)(ii)(B), (C), and (D),
(f)(1)(i) regarding gross nonexempt
which mandate the types of documents
as promptly as possible to insure that
eligible households receive an
income would be renumbered (f)(1)(vi).
that must be used for verification. State
Current paragraph (f)(1)(ii) regarding
agencies may refer to the interim
opportunity to participate within 30
alien status would be revised and
guidance developed by DOJ, Program
days after the application is filed. We
would remove this sentence and add a
renumbered as (f)(1)(iv).
policy interpretations, and procedures
sentence to remind State agencies that
Section 402 of PRWORA and Sections
developed by the Social Security
503 through 509 AREERA made
Administration (SSA) for obtaining
they should schedule interviews so as to
allow the household at least 10 days to
extensive changes in requirements for
work history information. These sources
provide required verification before the
alien eligibility which affect the
provide examples of verification,
end of the 30 day processing period.
verification requirements. The changes
including verification provided by the
The remainder of current paragraph
affecting eligibility are described below
household, which State agencies may
(e)(3) requires State agencies to schedule
under the discussion of Alien
use in developing their own verification
a second interview if a household fails
eligibility-7 CFR 273.4. Section 432 of
requirements.
to attend the first scheduled interview.
PRWORA also affects the requirements
Current 7 CFR 273.2(f)(1)(ii)(A) which
Under the waiver authority in 7 CFR
for verification of alien eligibility.
requires the household to provide
272.3(c), we have granted waivers to the
Section 432(a) of PRWORA required the
verification that each alien is eligible
Federal Register / Vol. 65, No. /Tuesday, February 29, 2000 Proposed Rules
10867
would be removed. In the introductory
of work. The conforming amendment
to mandate use of standard utility
paragraph (f)(1)(iv), we would provide
proposed here would provide that
allowances. The revised paragraph
that the immigration status of all aliens
verification of eligibility based on 40
would require that actual utility costs be
and other factors relevant to the
qualifying quarters of work must be
verified if they are used. Current
eligibility of individual aliens must be
obtained before the alien can be
paragraphs (f)(1)(iv) regarding the
verified prior to certification. Other
certified unless the State agency or the
verification of medical costs would be
factors relevant to the eligibility of
applicant has submitted a request to
renumbered (f)(1)(vii).
individual aliens could be the date of
SSA regarding the number of quarters of
Current paragraph (f)(1)(v) regarding
admission or date status was granted;
work that can be credited, SSA has
verification of social security numbers
military connection; 40 qualifying
responded that the individual has fewer
(SSN) would be revised and renumbered
quarters of work coverage; battered
than 40 quarters, and the individual or
(f)(1)(iii). The third sentence of current
status; Indian, Hmong or Highland
the State agency has documentation
paragraph (f)(1)(v) requires that once an
Laotian status; place of residence on
from SSA that SSA is conducting an
SSN is verified, the State agency must
August 22, 1996; or age on August 22,
investigation to determine if more
permanently annotate in the case file
1996. We would also include in new
quarters can be credited. If it can be
the verification provided by the
paragraph (f)(1)(iv) the provision from
documented that SSA is conducting an
household to prevent unnecessary
the first sentence of current paragraph
investigation, the individual may
reverification. Section 835 of PRWORA
(f)(1)(ii)(G), which provides that an alien
participate for up to 6 months from the
amended Section 11(e) of the Act to
whose eligibility is questionable is
date of the first determination that the
remove the prohibition against requiring
ineligible until the alien provides
number of quarters was insufficient for
a household to submit additional
acceptable documentation, with two
eligibility. This provision is based on an
verification for information already
exceptions which would be contained
interpretation of the phrase "has worked
currently verified. Therefore, we would
in new paragraphs (f)(1)(ii)(A) and (B).
40 qualifying quarters of coverage" set
remove this requirement currently
The last sentence of current paragraph
forth in section 402(a)(2)(B)(ii) of
found in paragraph 273.2(f). We would
(f)(1)(ii)(G) would be removed because
PRWORA. An immigrant, under the
make the fourth sentence of current
the reference to 7 CFR 273.11(c) is
express terms of section 402(a)(2)(B),
paragraph (f)(1)(v), which provides that
unnecessary. With these changes,
would be eligible for food stamp
the State agency must accept as verified
current paragraph (f)(1)(ii)(G) would be
benefits if the immigrant had actually
an SSN which has been verified by
eliminated. In regard to expedited
worked 40 qualifying quarters of
another program participating in the
service, the eligible status of aliens
coverage, notwithstanding SSA's
Income Eligibility and Verification
would have to be determined prior to
inaccurate or incomplete recording of
System (IEVS), optional except for
certification, but verification could be
the immigrant's work history. Food
households which are categorically
postponed in accordance with
stamp eligibility is premised on the
eligible. We believe this provision is
paragràph (i).
immigrant's act of working the 40
overly prescriptive, and State agencies
Pursuant to the President's regulatory
quarters rather than SSA's recording of
should have the flexibility to determine
reform initiative, the first two sentences
the immigrant's work history. Thus, in
if they want to continue such
and the last sentence of current
keeping with past practice concerning
verification polices. We would remove
paragraph (f)(1)(ii)(E) would be removed
the receipt of benefits pending the
the last two sentences of current
because they do not provide any
completion of Federal government
paragraph (f)(1)(v) which instruct State
significant guidance to State agencies
verification, we propose to permit
agencies on what to do if an individual
and are unnecessary. New paragraph
immigrants to receive food stamp
is unable to provide an SSN or does not
(f)(1)(ii)(A) would include the
benefits for a maximum period of 6
months. We emphasize that food stamp
have an SSN. These procedures are
provisions appearing in the third and
established in 7 CFR 273.6 and do not
fourth sentences of current paragraph
benefits pending the completion of an
(f)(1)(ii)(E), with some changes in
SSA investigation are only available to
need to be repeated here. We would
include a reference to 7 CFR 273.6
wording for clarity. The third sentence
an alien who: (1) Is admitted as a lawful
of current paragraph (f)(1)(ii)(E)
permanent resident under the INA (i.e.,
instead. We would add the requirement
provides that when a State agency
an immigrant); (2) SSA has determined
in 7 CFR 273.2(f)(8)(i)(B) to verify newly
obtained SSNs at recertification.
accepts a non-Immigration and
has fewer than 40 quarters of coverage;
Naturalization Service (INS) document
and (3) provides the State agency with
Current 7 CFR 273.2(f)(1)(vi) would be
from the household as reasonable
documentation produced by SSA
revised and renumbered (f)(1)(ii). This
evidence of alien status, the State
indicating SSA is investigating the
paragraph requires the verification of
agency must send the document to INS
number of quarters creditable to the
residency, specifies that to the extent
for verification. The fourth sentence of
alien.
possible residency must be verified in
current paragraph (f)(1)(ii)(E) provides
Current 7 CFR 273.2(f)(1)(ii)(F) would
conjunction with the verification of
that the agency must not delay, deny,
be removed. That paragraph specifies
other information, and includes
reduce or terminate an individual's
that alien applicants must be provided
examples of sources of verification. We
benefits while awaiting such
sufficient time (at least 10 days) to
would remove the requirement that
verification. With these changes, current
provide verification and that benefits
residency be verified in conjunction
paragraph (f)(1)(ii)(E) would be
must be provided timely. The time
with other information and remove the
eliminated.
period for providing verification would
examples. The list is not inclusive, and
New paragraph (f)(1)(iv)(B) would be
be included in the introductory text of
the eligibility worker is in the best
added to address verification of alien
paragraph (f).
position to know whether the other
eligibility when work history is
Current paragraph (f)(1)(iii) would be
documentation provided is sufficient to
questionable. Section 402(a)(2)(B) of
renumbered (f)(1)(x), and the first
verify residency. We would also remove
PRWORA provides that aliens lawfully
sentence would be revised to conform to
the last sentence in current paragraph
admitted for permanent residence may
Section 809 of PRWORA which
(f)(1)(vi) which specifies that no
be eligible for food stamps if they can
amended Section 5(e) of the Act, 7
durational requirement may be
be credited with 40 qualifying quarters
U.S.C. 2014(e), to allow State agencies
established. This requirement is already
10868
Federal Register / 65, No. Tuesday, February 29, Proposed Rules
established in 7 CFR 273.3 and does not
the Act, 7 U.S.C. 2015(e)(5), as amended
what will be considered questionable
need to be repeated here.
by Section 809 of PRWORA which
and prohibits any requirement for
Current paragraph (f)(1)(vii) specifies
establishes an optional homeless
verification based on race, religion,
the requirements for verifying identity
household shelter deduction. This
ethnic background, or national origin or
and includes a list of examples of
PRWORA change is discussed later in
targeting the guidelines to groups such
acceptable documentary evidence. We
this preamble. We would not include
as migrant workers or Native Americans
would renumber it as (f)(1)(i) and
the language currently appearing in the
for more intensive verification. These
remove the list of examples of
second and third sentences of this
provisions would be retained.
acceptable documentary evidence. State
newly designated paragraph which
Paragraph (f)(2)(ii) currently provides
agencies may establish their own
requires the eligibility worker to use
requirements for verification of
documentation standards, provided
prudent judgment in determining if the
citizenship if a household's statement
those standards do not exceed the
homeless household's verification of
that a household member is a U.S.
general standards provided in this
shelter expenses is adequate and
citizen is questionable. We would
paragraph.
provides an example. These sentences
combine paragraphs (f)(2)(i) and (f)(2)(ii)
Current paragraph (f)(1)(viii) would be
do not provide specific verification
into a new paragraph (f)(2) and revise
renumbered as (f)(1)(v). Current
requirements and thus are not
the provisions regarding verification of
paragraph (f)(1)(viii)(A) specifies the
necessary.
citizenship. We are retaining the
types of documentation required to
It should be noted that through a
requirement that citizenship be verified
verify disability as defined in 7 CFR
regulatory publishing error, the current
only if it is questionable and the
271.2. We would remove the detailed
regulations at 7 CFR 273.2(f) contain
provision that participation in another
listing of required documentation. Some
two paragraphs designated as (f)(1)(xii).
program that requires verification of
of the documentation listed is self-
The first paragraph (f)(1)(xii) regarding
citizenship is acceptable if verification
evident and does not need to be
the verification of physical or mental
was obtained for the other program. As
regulated. Other documentation
fitness of a student claiming to be an
indicated above under the discussion of
requirements that may be necessary are
eligible student because of a disability
verification of alien eligibility, DOJ has
best left to the discretion of the
would be removed. Since the
provided guidelines for verification of
eligibility worker. In current paragraph
verification is not mandatory in every
citizenship as well as alien eligibility.
(f)(1)(viii)(B), we would make some
case and State agencies are allowed by
Therefore, we propose to remove the
minor editing changes for clarity.
current paragraph (f)(2) to verify
verification guidance in current
Current paragraph (f)(1)(ix) contains
questionable information, we believe
paragraph (f)(2)(ii) and provide in new
provisions regarding verification
the current provision is unnecessary.
paragraph (f)(2) that State agencies must
required when a household reapplies
The second paragraph (f)(1)(xii)
verify citizenship in accordance with
after being disqualified for refusal to
pertains to child support payments.
the DOJ guidance if a household
cooperate with quality control (QC)
This paragraph would be revised and
member's citizenship status is
reviewers. We would renumber this
renumbered (f)(1)(vii). We would retain
questionable.
paragraph (f)(1)(xii) and add the title
the requirement for verification of the
Current paragraph (f)(3) allows the
"Refusal to cooperate with QC
information. We would remove the third
State agency to mandate verification of
reviewer" to the paragraph for
and fourth sentences because they are
any other factor which affects
consistency.
unnecessary. The third sentence
household eligibility or benefit level,
We would remove current paragraph
encourages, but does not require, State
including household size where not
(f)(1)(x). The requirement in this
agencies to use information from the
questionable. We would remove the
paragraph to verify household
State's Child Support Enforcement
phrase "including household size where
composition if it is questionable is not
(CSE) automated data files in verifying
not questionable.' The provision
necessary since paragraph (f)(2) requires
child support payments. The fourth
already allows the State agency to
verification of all questionable
sentence provides that the State agency
mandate verification of any factor not
information. The remainder of the text
must give the household an opportunity
already mandated by the regulations.
of current paragraph (f)(1)(x) requires
to resolve discrepancies between
Therefore, this phrase is unnecessary.
individuals who claim separate
household and CSE verification. Since
Current paragraph (f)(3)(i) provides
household status to provide
this is the standard procedure for use of
that the State agency may establish its
documentation to the State agency that
computer match data, it is not necessary
own standards to provide that all
they are separate. We believe that this
to include the requirement here.
questionable information is verified in
requirement is unnecessary and
We would add a new paragraph (xi),
accordance with 7 CFR 273.2(f)(2), that
provides no meaningful guidance to the
"Unverified expenses." Currently 7 CFR
such standards do not allow for
State agency. If the individual(s) meets
273.2(f)(3)(ii) contains procedures a
inadvertent discrimination, and that the
the requirements in regulations at 7 CFR
State agency must follow if a household
standards cannot be applied to
273.1 to be a separate household, the
fails to provide required verification of
households certified by SSA in
State agencies can request proof;
a deductible expense within the
accordance with 7 CFR 273.2(k) without
however, the primary evidence that
required processing time. We believe
SSA concurrence. We would remove the
would need to be provided is proof that
this provision should be simplified and
references to verifying questionable
the individual purchases food and
moved to paragraph (f)(1) because it
information and nondiscrimination
prepares meals separately. Signed
applies to that paragraph as well.
because these requirements are covered
statements by the individuals involved
Current 7 CFR 273.2(f)(2)(i) provides
in the new paragraph (f)(2) and § 272.6
would in most cases be the only
that the State agency must verify, prior
respectively.
documentation that could be provided.
to certification of the household, all
We would remove 7 CFR
Current paragraph (f)(1)(ix)
other factors of eligibility which are
273.2(f)(3)(ii) which contains
concerning shelter costs for homeless
questionable and affect a household's
procedures for handling a case if a State
households would be renumbered
eligibility and benefit level. This section
agency opts to verify a deductible
(f)(1)(x) and the first sentence would be
also requires State agencies to establish
expense and obtaining the verification
revised to conform with Section 5(e) of
guidelines to be used in determining
would delay a household's certification.
Federal Register/Vol 65, No. Tuesday, February 29, / Proposed Rules
10869
The first sentence provides that if a
Edmunds 472 F. Supp 1218 (D. Minn.
verification standards, establishes
State agency opts to verify a deductible
1979). The new paragraph (f)(4) would
collateral contact requirements, and
expense and obtaining the verification
also retain the requirement in current
requires that home visits be scheduled
may delay the certification, the State
paragraph (f)(4)(iv) on the handling of
in advance. Therefore, these statements
agency must advise the household that
verification discrepancies.
are unnecessary.
its eligibility and benefit level may be
We would condense the provisions of
Current paragraph (f)(6) requires the
determined without providing a
7 CFR 273.2(f)(5)(i) and (f)(5)(ii) into a
State agency to document eligibility,
deduction for the claimed but
single new paragraph (f)(5). This
ineligibility, and benefit level
paragraph would include the
determinations. This documentation
unverified expense. As all expenses for
which verification is mandatory are
requirement in the first sentence of
must be in sufficient detail to allow a
covered by this provision, we would
current paragraph (f)(5)(i) which
reviewer to determine the
include it under new paragraph (f)(1)(xi)
provides that the household has primary
reasonableness and accuracy of the
of this section. The second and third
responsibility for providing
determination. For obvious reasons, we
sentences identify specific deductions
documentary evidence to support
do not intend to change the
covered by this provision, and they
statements on the application and to
requirements of this paragraph.
resolve any questionable information.
We would remove 7 CFR 273.2(f)(7)
would be removed because they are
The remaining sentences of current
regarding use of the State Data Exchange
unnecessary. The provision in the
fourth sentence regarding use of the
paragraph (f)(5)(i) require State agencies
(SDX) and Beneficiary Data Exchange
to help applicants with verification,
(BENDEX) databases. The provisions in
standard utility allowance would be
included in new paragraph (f)(1)(xi) of
allow households to supply
this section are also contained in 7 CFR
documentary evidence in person or
272.8 and are not necessary here.
this section. The remaining text
concerning delayed processing would
through another means, prohibit State
Consistent with the removal of
be removed because it is covered by
agencies from requiring households to
paragraph (f)(7), we would renumber
new paragraph (h)(3) of this section
present verification in person, and
current paragraphs (f)(8), (9), and (10) as
require the State agency to accept any
paragraphs (f)(7), (8), and (9),
regarding delays in application
reasonable documentary evidence
respectively.
processing.
provided by households. Section 835 of
Newly redesignated paragraph (f)(7)
We would combine the provisions of
PRWORA revised section 11(e) of the
provides procedures for verification of
7 CFR 273.2 (f)(4)(i), (ii), (iii) and (iv)
Act to remove the requirement that State
household circumstances reported
regarding sources of verification into a
agencies assist households in obtaining
subsequent to initial certification.
single paragraph designated as (f)(4).
verification and the prohibition against
Current paragraph (f)(7)(i) contains
Current paragraphs (f)(4)(i), (ii) and (iii)
requiring households to present
requirements for verifying changes
provide that documentary evidence
additional proof of a matter for which
reported at the time of recertification.
must be the primary source of
the State agency already possesses
Current paragraph (c)(7)(ii) contains
verification and that collateral contacts
current verification. While PRWORA
requirements for verifying changes
and home visits may be used only when
removed the requirement to assist all
reported during the certification period.
documentary evidence is insufficient.
households in the verification process,
We would combine paragraphs (f)(7)(i)
We recognize that each State agency
there remains a mandate to offer
and (f)(7)(ii) into a single paragraph
needs the flexibility to decide what
assistance to special needs households.
designated as (f)(7) and establish new
sources of verification are appropriate in
As previously stated in the discussion
verification requirements for changes
that State. Technological advances have
relating to the notice of required
that occur at any time subsequent to the
made verification of many items
verification, the proposal would require
initial certification.
achievable through computer checks. In
State agencies to offer assistance in
Section 11(e)(3)(C) of the Act prior to
many instances, the eligibility worker is
completing verification requirements for
PROWRA prohibited a State agency
best able to decide what verification is
such households. We would retain the
from requiring additional proof of a
appropriate in a specific situation.
sentences allowing households to
matter on which the State agency
However, State agencies should afford
provide verification through whatever
already has current verification, unless
households some flexibility in
means they choose, prohibiting States
the State agency has reason to believe
providing necessary verifications.
from requiring the household to supply
that the information possessed by the
Therefore, in the new paragraph (f)(4),
verification in person, except in the case
agency is inaccurate, incomplete, or
we would replace the specific
of a suspected intentional Program
inconsistent. The current regulations
requirements on sources of verification
violation, and requiring the State agency
require verification for a change in
with a general statement requiring State
to accept any reasonable documentary
income or actual utility expenses if the
agencies to establish their own
evidence provided by households. We
source has changed or the amount has
standards for sources of verification.
believe these long standing policies are
changed by more than $25 and for
The standards would focus on
a necessary adjunct of the PRWORA
previously unreported medical expenses
determining the adequacy of the
requirement that State agencies provide
and total recurring medical expenses
documentary evidence the household
accurate, timely, and fair service.
which have changed by more than $25.
provides to support the statement on the
We would also remove current
Income may not be verified if the source
application. State agencies may not
paragraph (f)(5)(ii) which provides that
has not changed or if the amount has
limit households to one specific form of
the State agency may use collateral
not changed by more than $25, unless
verification, if other documents can
contacts or announced home visits
the information is incomplete,
prove equally its statements. The new
when documentary evidence is
inaccurate, inconsistent or outdated.
paragraph (f)(4) would continue to
insufficient to make a determination of
Section 835 of PROWRA removed the
prohibit home visits unless scheduled
eligibility or benefit'level and
prohibition on requiring households to
in advance with the household. In some
establishes specific requirements for
submit additional information.
contexts such visits have been found to
obtaining a reliable collateral contact.
Therefore, we propose to replace the
be violations of the Fourth Amendment
Proposed paragraph (f)(4) would allow
current regulatory requirements with a
to the Constitution (See, e.g., Reyes V.
State agencies to set their own
general requirement that the State
10870
Federal Register / Vol. 65, No. /Tuesday, February 29, 2000 Proposed Rules
agency verify information as required by
negative action. We would remove the
contact with the State agency to express
7 CFR 273.2(f)(1), (2), and (3), as
repetitive language regarding a
interest in pursuing the application and
proposed to be amended by this action,
household's right to a fair hearing.
requires the household to file a new
when a household reports any changes
Newly designated paragraph (f)(9)
application if it is denied under these
during the certification period or at
provides procedures for verifying alien
circumstances. This paragraph also
recertification which would affect
status through the SAVE system. As
requires that the State agency deny an
eligibility or the benefit level, or if
previously discussed in this preamble,
application on the 30th day if it was
unchanged information becomes
section 11(p) of the Act, as amended by
able to conduct an interview and
questionable. Although this may
section 840 of PRWORA, makes use of
request all of the necessary verification,
increase verification efforts in a few
the SAVE system a State agency option.
but the household failed to provide the
instances, e.g., when income changes by
If the State agency uses the SAVE
verification.
less than $25, we believe that this
system, the procedures in this paragraph
As stated above, under the
requirement is simpler to understand
would apply. We would simplify the
and administer, because the procedure
language of paragraph (f)(9) and
Department's proposal, current
is the same for all household
eliminate repetitive statements
paragraph (h) would be removed. It
contained in paragraph (f)(9)(i)
provides detailed procedures for State
circumstances. We believe that the
regarding the procedures for obtaining
agencies to follow in the event that final
proposed requirement that the change
would have to affect eligibility or the
verification from the household and the
action is not taken on an application
first sentence of (f)(9)(iii) regarding the
within 30 days from the date a
benefit level will limit the increase in
verification efforts significantly. The
procedures for accessing the SAVE
household applies. We propose to
Department is particularly interested in
system.
replace the provisions under current
receiving comments on this proposal.
paragraph (h) with a new paragraph
Normal Processing-7 CFR 273.2(g);
We would remove newly designated
(h)(2) which would require State
Delays in Processing-7 CFR 273.2(h)
paragraph (f)(8)(ii) regarding disclosure
agencies to continue to process cases if
safeguards and agreements because 7
Current 7 CFR 273.2(g) requires State
the State agency is at fault for not
CFR 272.8 contains these requirements.
agencies to process applications within
processing the case within the 30-day
With the removal of newly designated
30 days. Current 7 CFR 273.2(h)
time period. If the State agency is at
paragraph (f)(8)(ii), newly designated
provides requirements for handling
fault for delaying the application
paragraphs (f)(8)(iii), (iv), and (v) would
applications when the process is
process, benefits would be restored back
be redesignated as paragraphs (f)(8)(ii),
delayed beyond the legislatively
to the application filing date. If the
(iii), and (iv), respectively. Minor
mandated 30 days. We would remove
household is at fault for the delay, the
editing changes would be made to the
paragraph (h) entirely. We would revise
State agency may either deny the case
newly designated paragraphs (f)(8)(ii)
paragraph (g) and redesignate it as
or hold it pending for an additional
and (iii).
paragraph (h). New paragraph (g) would
period of time to be determined by the
Current paragraph (f)(9), newly
contain provisions related to authorized
State agency but not more than 2
designated as paragraph (f)(8), contains
representatives, and it will be addressed
months. If the household is at fault for
procedures for using the Income
later. Proposed changes are made in
the delay, benefits would be provided
Eligibility Verification System (IEVS)
response to the President's regulatory
retroactive to the date the household
information to verify eligibility and
reform initiative to remove overly
takes the required action.
benefits. As previously discussed in this
prescriptive regulations. The changes
preamble, section 840 of PRWORA
are also consistent with the spirit of
In new paragraph (h)(3), we would
amended Section 11(i)(18) of the Act, 7
PRWORA allowing State agencies to
retain, but consolidate, the procedures
establish their own operating
for determining the cause of a delay,
U.S.C. 2020(e)(18), to make use of IEVS
procedures and our belief that State
taking into account the changes
a State agency option. This provision
agencies should have more flexibility
mandated by PRWORA. Delays that are
was effective upon enactment of the
law, and States were allowed to
with regard to application processing.
the fault of the State agency include, but
implement this provision as of that date.
New paragraph (h)(1) would retain the
are not limited, to failure to explore and
If State agencies do access IEVS, most of
policy contained in current paragraph
attempt to resolve with the household
the procedures contained in this
(g)(1) that State agencies provide eligible
any unclear and incomplete information
paragraph are still appropriate.
households an opportunity to
provided at the interview; failure to
participate within 30 days of the date of
inform the household of the need for
However, in newly redesignated
paragraph (f)(8)(iv), we would remove
application. We would remove, as
one or members to register for work and
the requirement that the State agency
unnecessary, the third sentence of
allow the members at least 10 days to
put in writing any information it has
current paragraph (g)(1) referring to the
complete work registration; failure to
received from IEVS if it is requesting
special procedures in 7 CFR 273.2(i) for
provide the household with a statement
independent verification from the
expedited service.
of required verification and allow the
household. State agencies may be
The first sentence of current
household at least 10 days to provide
obtaining this information on-line while
paragraph (g)(3), which requires that a
the missing verification; and failure to
the household is present or may be able
notice of denial be sent within 30 days
notify the household that it could
to request the independent verification
if the household is found to be
reschedule a missed interview. Delays
more readily through a telephone call.
ineligible, would be added to new
that are the fault of the household
Therefore, specifying that the request for
paragraph (h)(1). The remainder of
include, but are not limited to, failure to
verification be in writing restricts the
current paragraph (g)(3) would be
cooperate with the State agency in
State agency unnecessarily. Currently
removed to enhance State agency
resolving any unclear or incomplete
the section specifies the household's
flexibility. The second sentence requires
information provided at the interview;
right to a fair hearing if it is terminated
the State agency to send a notice of
failure to register household members
for failure to respond to a request for
denial on the 30th day if a household
for work; failure to provide missing
verification of IEVS data and again if it
has failed to appear for two scheduled
verification; and failure to reschedule a
verifies information that results in a
interviews and made no subsequent
missed interview appointment.
Federal Register/Vol. 65, No. /Tuesday, February 29, Proposed Rules
10871
Authorized Representatives-7 CFR
(f)(1)(i) and (f)(1)(ii) with minor editorial
emergency authorized representative
273.2(g)
changes. The new paragraph would
subsequent to the time of certification.
We propose to redesignate the
include the current provisions that
A new paragraph (3) entitled "Using
provisions of current 7 CFR 273.1(f) on
allow an authorized representative to
benefits" would be added. This
authorized representatives as paragraph
act for the household in the application
paragraph would include the
7 CFR 273.2(g). We believe the
process and to complete work
information currently contained in 7
authorized representative provisions
registration forms for those household
CFR 274.5(a)(6) and (7) and 274.5(c).
more appropriately belong under 7 CFR
members required to register for work.
The last sentence in 7 CFR 274.5(c)
273.2. We also propose to amend the
It would also continue to require the
which prohibits a person disqualified
authorized representative provisions as
State agency to inform the household of
for committing an intentional Program
discussed below.
its liability for overissuances which
violation from using coupons on behalf
Current provisions regarding the use
result from erroneous information given
of the household would be removed
of authorized representatives in the
by the authorized representative. We
because it is not administratively
application process are contained in
would remove the two regulatory
feasible to enforce this provision.
several sections of the regulations.
references, because they are misleading.
The current restrictions on
Section 273.1(f) contains general
The reference to 7 CFR 273.11 is
designating authorized representatives
requirements for using an authorized
intended to assure that, except when the
in 7 CFR 273.1(f)(4) for application
representative to apply for the program,
drug and alcoholic treatment centers
processing and 7 CFR 274.5 for
special procedures for drug addict and
obtaining benefits would be combined
and certain group living arrangements
alcoholic treatment centers and group
in proposed paragraph 7 CFR
act as authorized representatives, the
homes acting as authorized
273.2(g)(4), entitled "Restrictions on
household is told of its liability for
representatives, special procedures for
designations of authorized
erroneous information given by the
use of an authorized representative for
representatives." We would revise the
authorized representative. We would
minor household members, restrictions
provisions to omit examples and other
add regulatory language and remove the
on the use of authorized representatives,
unnecessary language. Proposed
regulatory reference to ensure proper
and provisions for disqualification of
paragraph (4)(i) would provide that
application of the policy. The intent of
authorized representatives. Sections
State agency employees involved in
the reference to 7 CFR 273.16 is unclear
273.11(e) and (f) also contain
certification and issuance and retailers
so we are removing it. The new
requirements for use of authorized
authorized to accept food stamp benefits
paragraph would retain the criteria in
representatives in the certification of
may not act as authorized
current paragraphs (f)(1)(i) and (f)(1)(ii)
residents of treatment centers and group
representatives without the specific
homes, respectively. Section 274.5
that nonhousehold members may be
written approval of the designated State
contains requirements for use of
designated as authorized representatives
agency official and only if that official
authorized representatives to obtain
only if the authorized representative has
determines that no one else is available
benefits and current 7 CFR 274.10(c)
been designated in writing by the head
to serve as an authorized representative.
of the household, the spouse, or another
contains requirements for emergency
Proposed paragraph (4)(ii) would
authorized representatives. In proposed
responsible member of the household,
provide that individuals disqualified for
new paragraph (g), we would condense
and the authorized representative is an
intentional Program violations cannot
and revise requirements for use of
adult who is sufficiently aware of
act as authorized representatives while
relevant household circumstances to
authorized representatives that appear
they are disqualified unless no one else
in 7 CFR 273.1(f), 7 CFR 273.11(e) and
properly represent the household. We
is available. Proposed paragraph (4)(iii)
(f), and 7 CFR 274.5.
would remove current paragraph (3)
would include the provisions for
We would move to 7 CFR 273.11(e)
regarding nonhousehold members who
disqualifying authorized representatives
and (f) the requirements for treatment
can apply for minors and include the
for misrepresentation or abuse, and
centers and group homes. The
content in new paragraph (f)(ii).
paragraph (4)(iv) would contain the
infroductory paragraph of 7 CFR
The information in introductory
current provision that homeless meal
273.1(f)(2) would be removed as
paragraph 7 CFR 274.5(a) and the first
providers may not act as authorized
unnecessary. The discussion in
sentence of paragraph (b) would be
representatives for homeless food stamp
subparagraph (i) regarding addict and
removed as unnecessary. The contents
recipients.
alcoholic treatment centers would be
of paragraph (a)(1) and the second
The current restrictions provide that
the State agency cannot impose a limit
included in 7 CFR 273.11(e)(1) in place
sentence of (a)(2) would be included in
on the number of households an
of the reference to 7 CFR 273.1(f)(2). In
new paragraph (g)(2) entitled
authorized representative may
current subparagraph (ii) regarding
"Obtaining food stamp benefits" with
represent. In the event an employer is
group living arrangements, similar
minor editorial changes. The new
designated as the authorized
references in the first, second, fourth,
paragraph would include the current
fifth, and last sentences would be
representative for his or her employee or
provisions for encouraging the
that a single authorized representative
included in 7 CFR 273.11(f)(1). The 6th
household to name an authorized
has access to a large amount of benefits,
sentence would be included in 7 CFR
representative for obtaining benefits at
the State agency must exercise caution
273.11(f)(7). The remainder of the
the time of application, that the
to assure that the household has freely
paragraph would be removed as
representative's name be recorded in the
requested the assistance of the
unnecessary. A reference to 7 CFR
household's casefile and on its ID, and
authorized representative, the
273.11(e) and (f) would be included in
that the representative for obtaining
household's circumstances are correctly
the new paragraph 7 CFR
benefits may be the same person
represented, the household is receiving
273.2(g)(1)(iii).
designated to make application on
the correct amount of benefits, and the
Proposed 7 CFR 273.2(g)(1) would be
behalf of the household. In proposed
authorized representative is properly
entitled "Applying for benefits." In new
new paragraph (g)(2)(ii), we would
using the coupons. We believe these are
paragraph (g)(1)(i) we would include the
include a reference to 7 CFR 274.10(c)
unrealistic expectations for the State
provisions of current 7 CFR 273.1(f),
which provides for designating an
agency. Section 11(e)(7) of the Act, 7
10872
Federal Register / Vol. 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
U.S.C. 2020(e)(7), allows the Secretary
Electronic Benefit Transfer (EBT) system
residency, and income provided that
to restrict the number of households
or other electronic access devices in the
verification can be accomplished within
which may be represented by an
first sentence. We would remove the
expedited processing standards. We
individual. We would delegate this
reference to households residing in
believe that providing specific
authority to the State agency in lieu of
institutions applying jointly for SSI and
directions for certain additional items is
the current provision in order to enable
food stamps as procedures for these
therefore unnecessary. The eligibility
the State agency to prevent abuse.
households are addressed elsewhere in
worker is in the best position to decide
With these proposed changes, current
the regulations. We would remove
what information can be verified and
7 CFR 273.1(f) and 7 CFR 274.5 would
paragraphs (i)(3)(ii) and (i)(3)(v). These
how verification can be achieved in a
be removed. The regulatory site of 7
two paragraphs provide the expedited
specific case.
CFR 274.5 would be reserved for future
time frame within which benefits must
Paragraph (i)(4)(i)(B) currently
use.
be provided to residents of drug
provides that households entitled to
addiction or alcoholic treatment and
expedited service will be asked to
Expedited Service-7 CFR 273.2(i)
rehabilitation centers, residents of group
furnish an SSN or apply for one for each
Currently, 7 CFR 273.2 (i) lists the
living arrangements, and residents of
person before the second full month of
categories of households entitled to
shelters for battered women and
participation. Households entitled to
expedited service and establishes the
children who are eligible for expedited
expedited service were allowed to
procedures that State agencies must use
service. As the expedited time frame is
participate for the first full month
in providing that service. The PRWORA
no different from the requirements for
without providing or applying for an
included several provisions affecting the
other households eligible for expedited
SSN because of the requirement to
expedited service requirements.
service, there is no need for separate
combine the prorated allotment for the
Section 838 of PRWORA amended
regulatory sections for these
month of application and benefits for
Section 11(e)(9) of the Act, 7 U.S.C.
households.
the first full month for households
2020(e)(9) by removing households
We would renumber 7 CFR
applying after the 15th of the month.
consisting entirely of homeless people
273.2(i)(3)(iii) and (i)(3)(iv) as
Since Section 828 of PRWORA made
as a category of households entitled to
paragraphs (i)(3)(ii) and (i)(3)(iii),
use of combined allotments a State
expedited service. Section 838 also
respectively, to reflect the proposed
agency option, as discussed below, we
increased the number of days which
removal of paragraph (i)(3)(ii). We
propose to provide that households
State agencies have to provide
would amend newly designated
must furnish or apply for an SSN prior
expedited service from 5 to 7 calendar
paragraph (i)(3)(ii) to reflect the
to the second month's issuance or, if the
days. In accordance with these
proposed removal of the requirement for
State agency issues combined
provisions, this rule removes the
an in-office interview discussed earlier
allotments, prior to the third month's
reference to homeless households in
in this preamble. We would also remove
issuance. For newborns, we would
current paragraph (i)(1)(iii), renumbers
the sentence that provides that the first
require the household to provide an
paragraph (iv) as (iii), and changes the
day of the 7-day period within which
SSN or proof of an application for an
expedited processing timeframe
expedited service must commence is the
SSN at its next recertification or within
appearing in current paragraph (i)(3)
calendar day following application. The
6 months following the month the baby
from 5 days to 7 days. Note: These
first day for all application processing
is born, whichever is later, in
changes are also included in another
requirements is the calendar day
accordance with 7 CFR 273.6(b)(4).
rule which may be published before this
following application. This sentence is,
Those household members who do not
rule. These are nondiscretionary
therefore, repetitive and unnecessary.
meet these requirements must be
changes that are being made here to
Current paragraph (i)(4) provides the
allowed to continue to participate if
avoid unnecessary confusion.
special procedures State agencies must
they satisfy the good cause requirements
In response to the President's
use for expedited service. These
specified in 7 CFR 273.6(d).
regulatory reform initiative to remove
procedures are very detailed
We would remove 7 CFR
unnecessary, redundant, outdated, or
requirements that State agencies must
273.2(i)(4)(ii). This paragraph requires
overly prescriptive rules, we would
follow, including a multitude of
the State agency to promptly contact the
remove repetitive definitions and make
options. In this rule we propose to
collateral contact to obtain verification.
several changes in the procedures for
significantly streamline these
State agencies have the option of
providing expedited service, as
requirements as discussed below.
verifying information provided by the
discussed below.
In 7 CFR 273.2(i)(4)(i), we would
household either through a collateral
Under current paragraph (i)(2), State
remove the references to the sources of
contact or through readily available
agencies are required to design their
verification. We would subdivide
documentation pursuant to current
application procedures to identify
current paragraph (i)(4)(i) into
paragraph (i)(4)(i)(A). There is no
households eligible for expedited
paragraphs entitled "Verification,"
requirement that verification be
service at the time they apply. The
"Social security numbers," and "Work
accomplished solely through a collateral
proposed rule would continue to require
registration." Under new paragraph
contact. Further, the State agency is
State agencies to prescreen applications
(i)(4)(iii), we would include a
required to process an application so
for entitlement to expedited service. In
requirement that the applicant register
that benefits can be provided within the
addition, the proposed rule would
for work, but we would remove the
expedited service time standard,
require State agencies to document their
language about attempting to register
regardless of the method of verification
evaluations. The current paragraph
other members prior to certification. If
used. Therefore, this paragraph is
provides screening examples. The
an authorized representative applies on
unnecessary.
examples would be removed in the
behalf of the household, that person
We would remove 7 CFR
proposed rule, because they are
may register a member for work so this
273.2(i)(4)(iii). The provisions regarding
unnecessary.
should not delay the process.
certification periods would be removed
We would amend the first sentence of
Current paragraph (i)(4)(i)(B) already
because they are unnecessary. The
7 CFR 273.2(i)(3)(i) to add language
provides that the State agency may
provisions regarding postponed
referring to access to benefits through an
verify factors other than identity,
verification would be included in new
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
10873
paragraph (i)(4)(i)(B). The provisions
We would remove 7 CFR
the regulations or in the new paragraph
regarding notices of eligibility and
273.2(i)(4)(iii)(D) which prohibits
(j). Current paragraph (j)(5) also
expiration would be removed because
providing benefits to households
provides that a separate application
they are also included in 7 CFR
determined ineligible in the month of
must be used for TANF/GA food stamp
273.10(g)(1).
application or the following month or
applicants. Under the provisions of
Proposed paragraph (i)(4)(ii)(A) would
which have failed to provide postponed
PRWORA, the type of application used
provide that if a household applies on
verification. This paragraph would be
or before the 15th of the month and is
is a State agency option; therefore, the
removed because it is not necessary.
provision is being removed. With the
assigned a certification period of longer
Current paragraph (i)(4)(iv) would be
than one month postponed verification
removal of paragraphs (j)(1) and (j)(3),
renumbered as paragraph (i)(6), and it
current paragraphs (j)(2) and (j)(4)
must be obtained prior to the second
would be entitled "Frequency." The
month's issuance. The State agency
would be redesignated as paragraphs
provision would continue to provide
(j)(1) and (j)(2), respectively.
must issue the second month's benefits
that there is no limit to the number of
New paragraph (j)(1) would be
within seven working days from receipt
times a household can be certified
entitled "TANF and SSI households."
of the verification but not before the first
under the expedited service procedures
and it would be revised in its entirety.
day of the second month.
but the expedited procedures would not
Proposed paragraph (i)(4)(ii)(B) would
We would retain the policy but simplify
apply at the time of recertification if a
the language. New paragraph (j)(2)
provide that if a household applies after
household reapplies before the end of
would be entitled "GA households."
the 15th of the month postponed
its current certification period.
The new paragraph would be revised.
verification must be submitted prior to
Current paragraph (i)(4)(v) would be
the third month's issuance. The third
We would retain the policy but make
removed as unnecessary. That
some editorial changes. We would
month's benefits must be provided
paragraph provides that households
remove current paragraphs (j)(4)(vi)
within seven working days from the
requesting, but not entitled to,
regarding categorical eligibility for
receipt of the necessary verification, but
expedited service must have their
combination households as
not before the first day of the third
applications processed according to
month.
unnecessary.
normal standards.
Newly designated paragraph (i)(5)
We are also proposing to make
Alien Eligibility-7 CFR 273.4
allows State agencies to issue combined
additional editing changes throughout
Under section 6(f) of the Act; 7 U.S.C.
allotments to households that apply
paragraph (i) which are not discussed in
2015(f), and current rules at 7 CFR
after the 15th of the month and have
detail in this preamble. These changes
273.4(a), citizens, nationals, and aliens
their applications processed under the
do not affect the procedural
lawfully admitted for permanent
expedited service procedures. The
requirements but simply provide clarity
residence, refugees, asylees, parolees,
combined allotment consists of a
or brevity.
and certain other specifically listed
prorated amount for the month of
PA, GA and Categorically Eligible
categories of aliens were eligible to
application and the benefits for the first
full month of participation. Section 203
Households-7 CFR 273.2(j)
participate in the Food Stamp Program,
if they met the other eligibility criteria.
of the Hunger Prevention Act of 1988
Current regulations at 7 CFR 273.2(j)
Under section 402 of PRWORA, as
(Pub. L. 100-435) amended section 8(c)
mandate categorical eligibility for
amended, citizens and non-citizen
of the Act, 7 U.S.C. 2017(c), to require
certain households and mandate joint
nationals remain eligible, but the
State agencies to provide combined
application processing requirements for
remaining categories of eligible aliens
allotments to all households applying
households in which all members are
have been changed.
after the 15th of the month. Regulations
receiving public assistance,
We propose to revise 7 CFR 273.4(a)
dated June 7, 1989 (54 FR 24518)
supplemental security income (SSI), or
to remove references to those aliens no
implemented this requirement. Section
general assistance (GA). Section 835 of
longer eligible and add provisions
1732 of the 1990 Leland Act (Pub. L.
PRWORA amended Section 11(e) of the
referencing the alien provisions of Title
101-624) amended section 8(c)(3) of the
Act to eliminate the mandate for joint
IV of PRWORA, as amended. We also
Act to make use of combined allotments
processing of such cases. However, State
propose to revise the section to remove
for households processed under the 30-
agencies may opt to continue to jointly
day standard a State agency option. This
unnecessary and overly prescriptive
process these cases. Accordingly, we
requirements. As discussed above, we
provision was added to 7 CFR 273.2(g)
would revise current paragraph (j) in its
by regulations dated October 17, 1996
would also make conforming
entirety to: (1) Retain pertinent
amendments to 7 CFR 273.2(f)(1)(ii) to
(61 FR 54303). Combined allotments
categorical eligibility provisions; (2)
were still required for households
address verification of alien eligibility
remove provisions or references
entitled to expedited service. The
under the new alien eligibility
associated with mandatory joint
October 17, 1996 regulations moved that
requirements and to reference the DOJ
application processing; and (3) retain
interim guidance.
requirement from 7 CFR 274.2(b)(2) to 7
those joint processing provisions we
Current regulations at 7 CFR 273.4(a)
CFR 273.2(i)(4) and provided that, if
believe are necessary to protect the
which provide that a citizen is eligible
necessary, verification should be
client should a State agency opt to
for food stamp benefits do not define
postponed to meet the expedited time
continue joint processing of TANF, SSI
frame. Section 828 of PRWORA
"citizen." We propose to add a reference
or GA households.
in paragraph (a)(1) to the DOJ interim
amended section 8(c) of the Act again to
We would change the title of 7 CFR
guidance which includes a definition of
make combined allotments optional for
273.2(j) to "Categorical eligibility." We
expedited service households as well as
the term. According to Step 3 A. of the
would remove current paragraphs (j)(1),
guidance, a citizen is one of the
households processed under normal
(j)(3) and (j)(5) which set forth
procedures. We would amend newly
following (subject to certain exceptions
mandatory joint processing
and qualifications):
designated paragraph (i)(5) to provide
requirements. Although we would
1. A person (other than the child of a
that, at State agency option, households
remove paragraphs (j)(1) and (j)(3), some
foreign diplomat) born in one of the
applying after the 15th of the month
statements in these paragraphs would be
several States or in the District of
may receive a combined allotment.
retained but moved to other locations in
Columbia, Puerto Rico, Guam, the U.S.
10874
Federal Register 65, No. 0/Tuesday, February 29, Proposed Rules
Virgin Islands, or the Northern Mariana
exclusion into one procedure called
abuse. Section 5571 also provides that
Islands who has not renounced or
removal. The section was renumbered
the Attorney General must issue
otherwise lost citizenship;
as 241(b)(3) but appropriate conforming
guidance concerning the meaning of the
2. A person born outside of the United
amendments were not made to section
terms "battery" and "extreme cruelty"
States to at least one U.S. citizen parent
402 and other sections of PRWORA
and the standards to be used for
(sometimes referred to as a "derivative
which referenced section 243(h). The
determining whether there is a
citizen"); or
Balanced Budget Act corrected that
substantial connection between the
3. A naturalized U.S. citizen.
omission.
abuse and the need for benefits. The
The DOJ interim guidance also
Section 501 of the OCAA amended
Attorney General's guidance was
includes non-citizen nationals under the
section 431 of PRWORA by adding a
published in the Federal Register on
discussion of citizenship. A non-citizen
new paragraph (c) to provide that
December 11, 1997 (62 FR 75285).
national is a person born in an outlying
certain aliens who have been battered or
We do not propose to include in the
possession of the United States
subject to extreme cruelty are
regulatory language all the provisions of
(American Samoa or Swain's Island) on
considered qualified aliens if they meet
the law for establishing eligibility as a
or after the date the U.S. acquired the
certain criteria. Section 5571(c) of the
battered alien because detailed
Balanced Budget Act further amended
information is available in the DOJ
possession, a person whose parents are
U.S. non-citizen nationals (subject to
section 431(c) by adding a new
interim guidance and the battered aliens
certain residency requirements), or
paragraph (3) to include the alien child
are not eligible for food stamps unless
certain persons who elected to become
of a battered parent as a qualified alien.
they meet one of the criteria we propose
nationals but not citizens of the United
To be a qualified alien based on battery
to list in new paragraph (a)(5)(ii).
or extreme cruelty, the alien must meet
Section 5302 of the Balanced Budget
States pursuant to section 302 of the
the following conditions:
Act added Cuban and Haitian entrants,
Covenant to Establish a Commonwealth
of the Northern Mariana Islands in
(1) The alien or the alien's child has
as defined in section 501(e) of the
Political Union with the United States
been battered or subjected to extreme
Refugee Education Assistance Act of
cruelty in the U.S. by a spouse or parent
1980, to the list of qualified aliens in
of America (Pub. L. 94-241, 90 Stat.
or by a member of the spouse or parent's
section 431 of PRWORA. We would
263, 48 U.S.C. 1801 note). In the past,
family residing in the same household
include the list of qualified aliens in the
Food Stamp Program regulations did not
distinguish between citizens and non-
as the alien, but only if the spouse or
proposed paragraph (a)(5)(i).
citizen nationals. For clarity, we
parent consents to or acquiesces in such
To be eligible for food stamps, most
propose to add the term "non-citizen
battery or cruelty; in the case of a
aliens must be both a qualified alien as
national" to paragraph (a)(2) to provide
battered child, the alien did not actively
defined in section 431 of PRWORA and
that non-citizen nationals are eligible to
participate in the battery or cruelty; in
meet one of the food stamp criteria in
the case of an alien child whose parent
section 402 of PRWORA. Section 402, as
participate.
has been battered, the child must be
amended by the Balanced Budget Act,
Section 431 of PRWORA, as amended
living in the same household as a parent
limits eligibility for food stamps to
by section 501 of the OCAA and
sections 5302, 5562, and 5571 of the
who has been battered under these
qualified refugees, asylees, deportees,
circumstances;
specified Amerasians, Cuban and
Balanced Budget Act, defines a qualified
alien as:
(2) The battered alien or child no
Haitian entrants, certain legal
longer resides in the same household as
permanent residents, and veterans and
(1) An alien who is lawfully admitted
for permanent residence under the
the abuser;
active duty personnel and the spouse
Immigration and Nationality Act (INA);
(3) There is a substantial connection
and unmarried dependent children of
(2) An alien who is granted asylum
between the battery or cruelty and the
the veterans and active duty personnel.
need for benefits;
We would include the list in proposed
under section 208 of the INA;
(3) A refugee who is admitted to the
(4) The alien described in paragraph
paragraph (a)(5)(ii).
(1) must also have been approved or
Under section 402(a)(2)(B) of
United States under section 207 of the
have a petition pending with INS that
PRWORA, the eligibility of aliens
Act;
(4) An alien who is paroled into the
sets forth a prima facie case for status as
lawfully admitted for permanent
United States under section 212(d)(5) of
a spouse or a child of a U.S. citizen
residence is limited to those who have
the INA for a period of at least 1 year;
under INA section 204(a)(1)(A)(ii), (iii)
earned or can be credited with 40
(5) An alien whose removal or
or (iv); classification under section
qualifying quarters of work as
204(a)(1)(B)(ii) or (iii); suspension of
determined under title II of the Social
deportation is being withheld under
section 241(b)(3) or 243(h) of the INA;
deportation and adjustment of status
Security Act and as provided under
section 435 of PRWORA, as amended by
(6) An alien who is granted
under section 244(a)(3); status as a
conditional entry pursuant to section
spouse or child of a citizen under
section 5573 of the Balanced Budget
203(a)(7) of the INA as in effect prior to
section 204(a)(1)(A)(i); or classification
Act. An alien may be credited with all
April 1, 1980;
under section 204(a)(1)(B)(i). An alien
of the qualifying quarters worked by a
(7) A battered alien, an alien whose
whose child has been battered or
parent of the alien before the alien
child has been battered, or an alien
subjected to extreme cruelty by a spouse
becomes 18 and the quarters worked by
child of a battered parent; or
of a parent of the alien must have been
a spouse of the alien during their
(8) A Cuban or Haitian entrant as
approved or have a petition pending
marriage, if they are still married or the
defined in section 501(e) of the Refugee
with INS for classification under section
spouse is deceased. We propose to
Education Assistance Act of 1980.
204(a)(1)(B)(ii) or (iii).
include this requirement in the
Section 5562 of the Balanced Budget
Section 5571 of the Balanced Budget
introductory language of the new
Act amended the INA citation for aliens
Act also amended section 431 of
paragraph (b)(1).
whose deportation has been withheld to
PRWORA to provide that the agency
To establish eligibility based on 40
add a reference to section 241(b) of the
providing the benefits will be
quarters of work, the State agency may
INA. The OCAA amended section
responsible for determining whether
request information from the Social
243(h) of the INA to consolidate the two
there is a substantial connection
Security Administration through the
former procedures of deportation and
between the need for benefits and the
Quarters of Coverage History System
Federal Register/Vol. 65, No. 0/Tuesday, February 29, 0/Proposed Rules
10875
(QCHS) and/or obtain verification from
sources. This will always be the case for
We propose to provide in paragraph
the household. State agencies may
recent quarters worked because of the
(a)(5)(ii)(A) that if an alien was
request and receive information
time it takes SSA to update the database
determined eligible for any Federal
regarding qualifying quarters from SSA
using the most recent tax returns. Lag
means-tested public benefit as defined
according to SSA instructions. For each
quarters are quarters for which SSA has
by the agency providing the benefit or
individual (other than the person who
not had time to update the information.
was certified to receive food stamps
signed the application) whose SSN is
Section 402(a)(2)(B)(ii) of PRWORA
during any quarter after December 31,
submitted to SSA with a request for
also provides that no qualifying quarter
1996, the quarter cannot be credited
quarters of coverage information, the
creditable for a period beginning after
toward the 40-quarter total. Likewise, if
State agency must obtain a signed form
December 31, 1996, can be included as
the alien needs a quarter from a parent
consenting to the release of the
one of the credited quarters if the
or spouse, the parent or spouse's quarter
information. This form is to be filed in
individual received any Federal means-
cannot be counted if the parent or
the household's case file. Section 5573
tested public benefit (as provided under
spouse was determined eligible for any
of the Balanced Budget Act authorizes
section 403) during that quarter. Section
Federal means-tested public benefit or
SSA to disclose quarters of coverage
435 of PRWORA provides that no
was certified to receive food stamps
information concerning an alien and an
qualifying quarter for any period after
during the quarter. For example, if the
alien's spouse or parents to other
December 31, 1996, by a parent or
alien worked and his parents received
government agencies. Therefore, if
spouse of the alien may be included if
SSI in the first quarter of 1997, the alien
quarters of coverage based on
the parent or spouse received any.
would have one quarter counted
relationship are needed and a signed
Federal means-tested public benefit
because he worked and he did not
form cannot be obtained, the State
during that quarter. Section 403(c)
receive assistance; if the alien did not
agency may submit a request to SSA for
includes a list of types of assistance or
work, but his parents worked and
information regarding the individual's
benefits that are exempt from the
received SSI, the alien would not have
work history. These requests will be
prohibition (exempt assistance). The list
any countable quarters.
processed manually by SSA. Procedures
includes certain emergency medical
Section 402(a)(2)(A) of PRWORA
for requesting information from SSA are
assistance; short-term, non-cash
provided that refugees admitted under
contained in SSA's manual for obtaining
emergency disaster relief; assistance
section 207 of the INA, asylees admitted
quarters of coverage information.
under the National School Lunch Act;
under section 208 of the INA, and aliens
Aliens who can be credited with 40
assistance under the Child Nutrition Act
whose deportation or removal has been
qualifying quarters, as reported by SSA,
of 1966; certain non-Title XIX public
withheld under sections 243(h) or
would be certified, if otherwise eligible.
health assistance; certain foster care and
241(b)(3) of the INA would be eligible
Those who do not have 40 quarters
adoption payments; student assistance
for 5 years. Refugees would be eligible
according to SSA records and who
provided under titles IV, V, IX, and X
for 5 years from the date of entry into
accept that determination would be
of the Higher Education Act of 1965,
the country, asylees would be eligible
denied participation. However,
and titles III, VII, and VIII of the Public
for 5 years from the date asylum was
individuals who believe they should be
Health Service Act; benefits under the
granted, and deportees would be eligible
credited with more quarters of work
Head Start Act; and benefits under the
for 5 years from the date deportation or
may request that SSA investigate their
Workforce Reinvestment Act. The list
removal was withheld. Section 5302 of
work history to determine if more
also includes in-kind services which
the Balanced Budget Act reorganized
quarters can be credited. As indicated
may not be means-tested, such as soup
section 402(a)(2)(A) to separate the
above under the discussion of
kitchens and short-term shelter,
requirements for eligibility for SSI and
verification of alien eligibility, we
specified by the Attorney General. The
food stamps and to provide in paragraph
propose to require that if SSA is
DOJ published a Notice in the Federal
(A)(ii)(IV) that an alien granted status as
conducting an investigation to
Register on August 30, 1996 (61 FR
a Cuban or Haitian entrant, as defined
determine if more quarters can be
45985), containing a non-exclusive list
in section 501(e) of the Refugee
credited, the applicant may participate
of the types of exempt in-kind services.
Education Assistance Act of 1980,
pending the results of the investigation
Each federal agency which issues
would be eligible for 5 years from the
for up to 6 months from the date of
means-tested public benefits is
date granted that status. Section 5306 of
SSA's original finding of insufficient
responsible for identifying and
the Balanced Budget Act further
quarters. A conforming amendment is
publishing a list of benefits to which the
amended section 402(a)(2)(A) of
being proposed to include this
term "Federal means-tested public
PRWORA to add a new paragraph
requirement in the verification
benefit" as used in PRWORA applies.
(A)(ii)(V) which provided that certain
requirements in new 7 CFR
According to Federal Register Notices
Amerasians would be eligible for 5 years
273.2(f)(1)(iv)(B).
published by HHS (62 FR 45256) and
from date admitted to the United States
SSA has prepared guidance for State
SSA (62 FR 5284) on August 26, 1997,
as an Amerasian immigrant pursuant to
agencies to use in requesting work
TANF, Medicaid, and SSI are Federal
section 584 of the Foreign Operations
history information through the QCHS.
means-tested public benefits. According
Appropriations Act, incorporated as
Through this system, State agencies are
to a Federal Register Notice published
section 101(e) of Public Law 100-202
able to obtain information about work
by this Department on July 7, 1998 (63
and amended by Public Law 100-461.
performed in jobs covered by Title II of
FR 36653), the Food Stamp Program and
This legislation provided for certain
the Social Security Act and some work
the block grant food assistance programs
Amerasians in Vietnam, with their close
that is not covered by Title II, such as
in Puerto Rico, American Samoa, and
family members, to be admitted to the
some employment with federal, State, or
the Commonwealth of the Northern
U.S. as immigrants through the Orderly
local governments or nonprofit
Mariana Islands are the only FNS
Departure Program beginning on March
organizations. If the State agency cannot
program to which the term applies. We
20, 1988. These Amerasians will be
obtain work history information from
are proposing that "received" means
admitted for permanent residence at the
SSA, the State agency will have to
that the alien actually received the
point of entry.
obtain verification of work from the
assistance or food stamps in the quarter
The AREERA further amended section
applicant or other available data
in question.
402 of PRWORA. Section 503 of
10876
Federal Register Vol. 65, No. Tuesday, February 29, Proposed Rules
AREERA amended section 402(a)(2)(A)
stamps. These are the only aliens who
avoids the absurd result of separate
of PRWORA to extend the time period
can be eligible for food stamps without
provisions of PRWORA mandating
that refugees, asylees, deportees,
being a qualified alien as defined in
mutually inconsistent eligibility
Cubans, Haitians, and Amerasians can
Section 431 of PROWRA.
determinations. Additionally, this
be eligible from 5 years to 7 years.
We propose to include the alien
interpretation is supported by Congress'
Section 402(a)(1) of PRWORA makes all
eligibility criteria added by AREERA in
express citation to the Food Stamp Act
other types of qualified aliens (with the
section 7 CFR 273.4(a).
within the body of section 402 (see
exceptions of lawful permanent
The aliens provisions contained in
402(a)(3))(B), 7 U.S.C. 1612(a)(3)(B)),
residents with 40 qualifying quarters of
AREERA are effective November 1,
while section 403 contains no such
work and alien members of the armed
1998.
cross-reference. Thus, we believe the
forces, alien veterans, and certain
Section 403 of PRWORA, as amended
strictures of section 402 more closely
members of such an alien's family)
by Balanced Budget Act, provides that,
express Congress' intentions for alien
ineligible for food stamps for as long as
with certain exceptions, aliens,
participation in the Food Stamp
they maintain their current alien status;
including those admitted for lawful
Program.
all other non-qualified aliens are
permanent residence, who enter the
Section 402, as amended, does not
ineligible under section 401(a) of
country on or after August 22, 1996, are
impose any time limit on aliens
PRWORA. Section 504 of AREERA
barred from Federal means-tested public
admitted for legal permanent residence
amended section 402(a)(2)(F) of
benefits for 5 years. As noted above,
who can be credited with 40 quarters of
PRWORA to provide that aliens who are
section 402 of PRWORA, as amended by
work. We propose that the five-year ban
receiving benefits or assistance for
the Balanced Budget Act, contains a
in section 403 not apply to aliens
blindness or disability as defined in
specific timeframe for the Food Stamp
admitted for lawful permanent
section 3(r) of the Food Stamp Act may
Program which is somewhat different.
residence for food stamp purposes. We
be eligible for food stamps provided that
Section 402, as amended, provides that
propose to include the seven-year time
they were lawfully residing in the
for food stamp purposes refugees,
limit in section 402 for refugees, asylees,
United States on August 22, 1996.
asylees, aliens whose deportation have
deportees, Cubans, Haitians, and
been withheld, Cubans, Haitians and
Section 505 of AREERA amended
Amerasians in new paragraph (a)(2).
Amerasians are only eligible for 7 years.
Under section 402(a)(2)(C) of
section 402(a)(2)(G) of PRWORA to
The time limits imposed by section 402,
PRWORA, an alien lawfully residing in
provide that aliens who are American
Indians born in Canada to whom the
as amended, govern the Food Stamp
any State who is a veteran honorably
provisions of section 289 of the
Program because that section
discharged for reasons other than alien
specifically references the Food Stamp.
status or who is on active duty in the
Immigration and Nationality Act apply
or who are members of an Indian tribe
Program. Section 403 of PRWORA
Armed Forces of the United States for
arguably also applies to the Food Stamp
reasons other than training or the
as defined in section 4(e) of the Indian
Program. This is because food stamps
spouse or unmarried dependent child of
Self-Determination and Education
are a "Federal means-tested public
a veteran or person on active duty is
Assistance Act may be eligible for food
benefit under section 403. See 63 FR
eligible to participate. Section 5563 of
stamps. Section 506 of AREERA added
36653, 36654. However, section
the Balanced Budget Act amended the
a new section (I) to section 402(a)(2) of
402(a)(2)(A) of PRWORA makes
provision regarding military-related
PRWORA to make aliens eligible if they
refugees, asylees, deportees, Cubans,
eligibility to: (1) Apply the minimum
were lawfully residing in the United
Haitian, and Amerasians eligible for
active duty service requirement (24
States on August 22, 1996 and they were
food stamps for 7 years. Following this
months or the period for which the
65 years of age or older on that date.
7-year eligibility period, these groups of
person was called to active duty); (2)
Section 507 of AREERA added a new
qualified aliens are ineligible for as long
expand the definition of "veteran" to
section (J) to section 402(a)(2) of
as they remain in one of the described
include military personnel who die
PRWORA to make aliens eligible if they
alien categories. Conversely, section
while on active duty and certain aliens
were lawfully residing in the United
403(b)(1) exempts these same groups of
who served in the Philippine
States on August 22, 1996 and are
qualified aliens from the initial 5-year
Commonwealth Army during World
currently under 18 years of age. Section
ban on the receipt of Federal means-
War II or served as Philippine Scouts
508 of AREERA added a new section (K)
tested public benefits. At the expiration
after World War II; and (3) add
to section 402(a)(2) of PRWORA to make
of the 5-year ban, a qualified alien
eligibility for the unremarried surviving
any individual eligible who is lawfully
falling into one of the described alien
spouse of a deceased veteran, provided
residing in the United States and was a
categories is eligible for Federal means-
the couple was married for at least one
member of a Hmong or Highland
tested public benefits without any time
year or for any period if a child was
Laotian tribe at the time that the tribe
limitation. Thus, the application of both
born of the marriage or was born to the
rendered assistance to United States
sections 402 and 403 of the Food Stamp
veteran and the spouse before the
personnel by taking part in a military or
Program would result in an unavoidable
marriage and the spouse has not
rescue operation during the Vietnam era
conflict: under section 402, aliens
remarried.
(8/5/64-5/7/75.) Section 508 further
within the described categories would
We propose to define an unmarried
extends food stamp eligibility to the
be eligible for 7 years followed by a ban
dependent child for purposes of section
spouse, or unremarried surviving
on the receipt of further benefits, while
402(a)(2)(C) regarding persons with a
spouse, and unmarried dependent
under section 403, these same aliens
military connection to include a legally
children of such Hmong or Laotian.
would be eligible for benefits from the
adopted or biological dependent child
Section 509 of AREERA amended
time they fall within one of the
of an honorably discharged veteran or
section 403(b) of PROWRA to provide
described alien categories without time
active duty member of the Armed
that American Indians made eligible by
limitation.
Forces if the child is under the age of
Section 505 and Hmong and Highland
In order to avoid this conflict, we
18 or if a full-time student under the age
Laotians and their families made
propose to apply the requirements of
of 22. It would also include a child of
eligible by Section 508 do not have to
section 402 uniformly to the Food
a decreased veteran provided the child
be qualified aliens to be eligible for food
Stamp Program. This interpretation
was dependent upon the veteran at the
Federal Register 65, No. 0/Tuesday, February 29, Proposed Rules
10877
time of the veteran's death. In addition,
7 CFR 273.4. We would retain in
ownership would greatly assist
we propose to include a disabled child
redesignated paragraph 7 CFR 273.4(b)
individuals and families in achieving
age 18 or older if the child was disabled
the requirement in current 7 CFR
self-sufficiency. In rural areas,
and dependent on the active duty
273.4(e) to report illegal aliens to INS.
ownership of a reliable vehicle is a
member or veteran prior to the child's
We are proposing a conforming
virtual prerequisite to employment.
18th birthday. This definition is
amendment to 7 CFR 273.1(b)(2)(ii),
Even for residents of urban areas,
consistent with that developed for the
concerning ineligible household
ownership of a vehicle to drive to work
Supplemental Security Income (SSI)
members. We propose to change the
is an increasing necessity as more
program. We also propose to apply this
reference in 7 CFR 273.1(b)(2)(ii) from
desirable, higher paying jobs move to
definition of an unmarried dependent
273.4(a)" to 273.4" because both
suburban areas with little or no mass
child to section 402(a)(2)(K) regarding
paragraphs 273.4(a) and (b) describe
transit access. The current food stamp
unmarried dependent children of
eligibility requirements for aliens.
vehicle policy seems antithetical to the
Hmong and Highland Laotians. Section
We are proposing to move the
broader goal of assisting families to
431(a) of PROWRA provides that except
sponsored alien provisions from 7 CFR
become self-sufficient. Too many times
as otherwise provided, the terms used
273.11(j) to new 7 CFR 273.4(c) and to
low-income working households face
have the same meaning given such
renumber 7 CFR 273.11(k) as 7 CFR
"Hobson's choice" in applying for food
terms in section 101(a) of the
273.11(j). This will consolidate most of
stamps. If they dispose of a dependable
Immigration and Nationality Act (INA).
the alien provisions.
vehicle because its excess fair market
However, there is no definition of a
Inaccessible Resources-Vehicles-7
value would cause the household to
child in section 101(a), and there are
CFR 273.8(e) and (g)
exceed the resource limit, they may
two definitions in 101(b), one for
On August 21, 1995, we published a
thereby lose the means necessary to seek
immigration purposes and one for
nationality purposes. Because of the
final rule implementing section 1719 of
or maintain employment. If they choose
ambiguity of the law and the fact that
the Mickey Leland Memorial Domestic
to retain the vehicle, they must do
both of the INS definitions are much
Hunger Relief Act of 1990 (Pub. L. 101-
without the important nutrition support
624, 104 Stat. 3783), as amended by
food stamps provide, even though their
more complicated than the definition
section 904 of the Food, Agriculture,
income level would otherwise qualify
used for SSI purposes, we propose to
use the SSI definition of dependent
Conservation, and Trade Act of 1991
them for participation.
child. We also considered using
(Pub. L. 102-237, 105 Stat.1818). These
We believe it is possible, under our
dependent as used for other food stamp
statutory provisions, which amended
new policy, to eliminate this
purposes such as the work registration
section 5(g) of the Act (7 U.S.C.
undesirable obstacle to self-sufficiency
exemption, but believe they are too
2014(g)(5)), expanded the criteria under
while not allowing households that own
restrictive for this purpose.
which a resource is considered
expensive vehicles to qualify for food
We propose to include the eligibility
inaccessible. The final rule required
stamps. Under the proposed method of
provision for individuals with a military
State agencies to develop standards for
evaluating vehicles' resource value,
connection in new paragraph
identifying resources which, as a
together with the existing food stamp
(a)(5)(ii)(G).
practical matter, the household is
income tests, households would have to
Under current regulations at 7 CFR
unable to sell for any significant return
have income significantly higher than
273.4(a)(8) and (a)(9), aged, blind, or
because the household's interest is
130 per cent of the poverty guidelines
disabled aliens admitted for temporary
relatively slight or because the costs of
to be able to afford the monthly
or permanent residence under section
selling the household's interest would
payments and insurance to maintain a
245A(b)(1) of the INA and special
be relatively great. Under the final rule,
vehicle of more than modest value.
agricultural workers admitted for
a resource so identified is excluded if
Moreover, research findings from our
temporary residence under section
the estimated amount returned to the
Vehicle Exclusion Limit Demonstration
210(a) of the INA are eligible to
household from its sale would be less
Project (VELD) in North Carolina, which
participate. The PRWORA does not
than half of the amount of the
ran from November 1994 through
address the status of aliens admitted for
applicable resource standard for the
September 1996, indicate that very few
temporary residence. Therefore, these
household. For reasons cited in the
low income households have vehicles of
aliens are eligible only if they meet the
preamble discussion, we determined
more than modest value. See (http://
requirements of section 402 of PRWORA
that the amendment did not apply to
www.fns.usda.gov/oane/MENU/
described above, and we propose to
negotiable instruments or vehicles.
Published/FSP/FSP.HTM). The vehicles
remove paragraphs (a)(8) and (a)(9).
Subsequently, through litigation,
of the substantial majority of
We also propose to remove 7 CFR
various courts determined that our
households participating in the VELD
273.4(b), (c) and (d) as unnecessary and
policy was a reasonable, but not the
were worth $8,000 or less. The mean
redesignate paragraph (e) as paragraph
only possible, interpretation of the
fair market value of the households' first
(b). Current paragraph (b) is a partial list
statute. In the absence of clear
vehicle excluded was $7,253. It is our
of ineligible aliens. Current paragraph
Congressional direction, the courts gave
judgment that, in appropriate
(c) refers to the provisions in 7 CFR
deference to the decision of the
circumstances, possession of such a
273.11(c)(2) for treatment of the income
administering agency in this matter.
vehicle can be compatible with the
and resources of an ineligible alien and
We now are proposing to pursue a
purposes of the Program.
is unnecessary. Current paragraph (d)
different policy which would include
Even vehicles of such modest. value
explains how to treat the income and
vehicles under the inaccessible
might not, however, qualify for
resources of an alien while awaiting a
resources provisions. Since we
exclusion from countable resources
determination of an individual's eligible
established the current policy in the
under the proposed rule. Thirty-nine
alien status. Provisions governing the
early 1990's, public policy has focused
percent of VELD participants, for
treatment of individuals while awaiting
on the challenges of enabling families to
example, had less than $1,000 equity in
verification of eligible alien status are
attain self-sufficiency. It has become
the first vehicle. Thus a significant
located at 7 CFR 273.2(f)(1)(ii), and it is
evident that a more flexible resource
portion of those households, but not all
not necessary to repeat the procedure at
policy with respect to vehicle
of them, would have benefited from
10878
Federal Register/ 65, No. Tuesday, February 29, 2000 Proposed Rules
application of the inaccessible resource
training purposes, would be subject to
We are interested in receiving public
rule to vehicles.
the excess fair market value test only;
comment on this significant proposed
For these reasons, we have
and
change in policy. We would also like to
reexamined and proposed to change our
(3) Any other vehicle the household
receive public comment on the ways in
policy against applying the inaccessible
possesses would be subject to a dual
which we could simplify the method for
resource provision to vehicles. We
test, that is, the higher of the fair market
evaluating vehicles. Currently, the rules
believe this interpretation is permissible
value in excess of $4,650 1 or the equity
are fairly complex. Some vehicles are
under the current statutory authority.
value.
exempted from consideration as a
We previously took the position that the
The following examples show how
resource. Others which are nonexempt,
inaccessible resource provision, 7 U.S.C.
the new policy would work: (1) A
but are the household's only
2014(g)(5), was inapplicable to vehicles.
household is making payments on a
transportation or are used for
See 60 FR 43347, 43349 (1994). In
1994 sedan with a fair market value of
employment or training are subject only
sustaining our earlier interpretation,
$7,000. The household has no elderly
to the fair market test. A third category
however, the Federal Courts of Appeals
members. The household has no other
of household vehicles is subject to a
in Alexander V. Glickman, 139 F.3d 733
vehicles and it has $500 equity (fair
dual test, which counts as a resource the
(9th Cir. 1997), and Warren V. North
market value less debt) in the 1994
higher of the fair market value in excess
Carolina Dept. of Human Resources, 65
sedan. As the household's equity in the
of $4,650 or the equity value.
F.3d 385 (4th Cir. 1995), concluded that
vehicle is less than $1,000, the entire
Commenters should be mindful that the
the Secretary's interpretation was
value of the vehicle would be deemed
fair market value test is established by
plausible, but was not the only valid
to be an inaccessible resource and
statute, while the equity test is subject
interpretation of the statute. The Ninth
would thus be excluded from
to Departmental discretion.
Circuit opined that "Congress clearly
consideration as a resource for
intended that the Secretary would
JTPA Payments-7 CFR 273.9(b)(1)(v)
eligibility purposes. (2) Alternatively,
determine what was and what was not
assume a household has a single vehicle
Current regulations at 7 CFR
an 'inaccessible resource," and
with a fair market value of $6,200, the
273.9(b)(1)(v) provide that earnings of
identified as a "plausible construction"
sale of which would produce a return of
individuals 19 years of age or older who
of the statute one that would count
$1,000 or more. In that case, the
are participating in on-the-job training
vehicles "as assets under (g)(2) unless
inaccessible resource provision would
programs under Section 204(5), Title II,
they are inaccessible under
not apply. The State agency would thus
(g)(5)
*
Alexander, 139 F.3d at
of the Job Training Partnership Act
evaluate the vehicle according to its
736. The Fourth Circuit concluded that
(JTPA), Pub. L. 97-300, must be counted
excess fair market value. The countable
as income, unless otherwise excluded
the statute was best read not to treat
fair market value of the vehicle as a
vehicles as subject to the inaccessible
under the provisions of 7 CFR
resource would be $1,350
273.9(c)(7). Section 142 (b) of the
resource provision, but nonetheless
($6,000 $4,650 ¹). Assuming the
noted that the statute was "ambiguous"
original JTPA provided that allowances,
household did not have any other
on that issue. Warren, 65 F.3d at 391.
earnings, and payments to individuals
countable resources that, combined with
Accordingly, since the statute affords
participating in programs under JTPA
discretion on the issue of whether
the $1,350, would exceed the applicable
could not be considered as income for
resource limit for the household, the
vehicles may be treated as inaccessible
Federal means-tested programs.
household would remain eligible for
resources, the Secretary proposes to
Subsequently Pub. L. 99-198, the Food
exercise his discretion to propose a
participation. (3) Assume the household
Security Act of 1985, amended Section
has two non-excludable cars, neither of
revision of the current policy through
5(1) of the Act, 7 U.S.C. 2014(1), to
this rulemaking. He would amend
which is used for employment-related
require counting as income on-the-job
section 273.8(e)(18) to allow vehicles to
purposes. The State agency would
training payments provided under
be treated as inaccessible resources as
evaluate the first car, which is exempt
Section 204(5) of Title II of the JTPA,
described herein. Specifically, he would
from the equity test regardless of use, for
except for dependents less than 19 years
amend section 273.8(h)(1) to add a
excess fair market value only as in
old. Section 702(b) of Pub. L. 102-367,
provision for excluding the value of a
example (2). Because the second car is
the Job Training Reform Amendments of
vehicle that the household is unable to
not used to transport household
1992, restructured the provisions in the
sell for any significant return because
members for employment-related
JTPA and further amended Section 5(1)
the household's interest is relatively
purposes, the State agency would
of the Food Stamp Act by replacing the
establish both this vehicle's fair market
slight or the costs of selling the
reference to Section 204(5) with
household's interest would be relatively
value and its equity value, and would
references to Section 204(b)(1)(C) and
count toward the household's resources
great.
Section 264(c)(1)(A). This change
In summary State agencies would
the greater of the two amounts.
requires the exclusion of all on-the-job
handle vehicles as follows:
Assuming the second car has fair market
training payments received under the
(1) A vehicle would be completely
value of $6,000 and a equity value of
Summer Youth Employment and
excluded from the resource test if
$2,200, for example, the equity value
Training Program. Moreover, section
necessary to produce income, used as a
would exceed the excess fair market
199A(c) of the Workforce Investment
home, necessary to transport a disabled
value of $1,350, and the equity value
Act (WIA) of 1998 states that all
household member, necessary to carry
would be counted. The $2,200 equity
references in any other provision of law
fuel for heating or water for home use,
value would render ineligible a
to a provision of the Comprehensive
or classified as an inaccessible resource
household subject to the $2,000
Employment and Training Act (CETA),
(i.e., likely to produce a return of less
resource limit.
or of the Job Training Partnership Act
than $1,000 or $1,500, depending on the
(JTPA), as the case may be, shall be
household's resource limit);
1 Effective October 1, 1996, section 810 of
deemed to refer to the corresponding
PRWORA amended section (5)(g) of the Act to set
(2) One nonexempt licensed vehicle
the fair market value exclusion limit at $4,650. See
provision of that law. We propose to
regardless of use, plus any vehicles
the proposed rule published at 64 FR 37456 for
change the references in 7 CFR
which are used for employment or
further information.
273.9(b)(1)(v) accordingly.
Federal Register Vol. 65, No. 40 Tuesday, February 29, Proposed Rules
10879
Transitional Housing Payments-7 CFR
exclusion for the full amount of the
plan to add a sentence to allow TANF
273.9(c)(1)(i)(E) and (c)(1)(ii)(E)
assistance.
diversion payments to be excluded
Current regulations at 7 CFR
In accordance with PRWORA
under certain conditions. Current policy
273.9(c)(1)(i) and (ii) exclude the full
requirement, we propose to rescind 7
is that they may be excluded if no more
amount of any PA or GA grant made to
CFR 273.9(c)(1)(i)(E) and (c)(1)(ii)(E) to
than one payment is anticipated in any
a third party (vendor payment) on
eliminate the exclusion for PA or GA
12-month period to meet needs that do
behalf of a household residing in
transitional housing vendor payments.
not extend beyond a 90-day period, the
transitional housing for the homeless.
State agencies may continue to exclude
payment is designed to address barriers
The regulations are based on a provision
emergency housing assistance to
to achieving self-sufficiency rather than
of the Mickey Leland Childhood Hunger
migrant or seasonal farmworker
provide assistance for normal living
Relief Act (Pub. L. 103-66), which was
households while they are in the
expenses, and the household did not
implemented in final regulations dated
migrant stream and emergency and
receive a regular monthy TANF
August 29, 1994 (59 FR 44309). Section
special assistance that is above the
payment in the prior month or the
811 of PRWORA amended Section
normal grant. GA payments from a State
current month. We are proposing to
5(k)(2)(F) of the Act to remove the
or local housing authority and
include this policy except that we plan
exclusion for transitional housing
assistance provided under a program in
to change the 90-day period to a 4-
payments.
a State in which no cash GA payments
month period. The Department of
Because of the many changes in this
are provided may also be excluded.
Health and Human Services uses a 4-
provision in recent years, we are
With the removal of paragraph
month period as the regulatory
providing a brief historical summary
(c)(1)(i)(E), current paragraph (c)(1)(i)(F)
framework for its definition of short-
that may be helpful to readers. The Food
would become paragraph (c)(1)(i)(E).
term. (See Federal Register Volume 64,
Security Act of 1985 (Pub. L. 99-198),
With the removal of paragraph
No. 69, dated April 12, 1999, page
implemented by regulations dated
(c)(1)(ii)(E) and the removal of
17759.)
September 29, 1987 (52 FR 36390),
paragraph (c)(1)(ii)(A), as described
under "Energy Assistance" below,
Energy Assistance-7 CFR 273.9(c)(11)
specifically provided that PA or GA
current paragraphs (c)(1)(ii)(B) through
Under current regulations at 7 CFR
payments diverted to a third party on
behalf of the household for living
(G) would become paragraphs
273.9(c)(11), energy assistance provided
expenses should be considered income.
(c)(1)(ii)(A) though (c)(1)(ii)(E).
under any Federal law is excluded from
The law reinforced previous policy that
consideration as income. Energy
Earnings of Children-7 CFR 273.9(c)(7)
assistance provided under State or local
payments from governmental assistance
Current regulations at 7 CFR
law which meets the requirements
programs be treated as income.
273.9(c)(7) exclude the earned income
specified in the regulations is excluded
However, the law also provided an
of any household member who is under
from income if FNS has approved the
exclusion for State or local emergency
age 22 and an elementary or secondary
exclusion. That section also contains
or special assistance vendor payments.
school student living with a natural,
detailed guidance for determining when
These payments are excluded to the
adoptive or stepparent or under the
assistance is actually provided for the
extent that the payment is not normally
parental control of a household member
"purpose" of energy assistance.
provided as part of a PA grant and is
other than a parent. Section 807 of
Section 808 of PRWORA replaced
provided over and above the normal
PRWORA amended section 5(d)(7) of
section 5(d)(11) of the Act with a new
grant. In 1987, Pub. L. 100-77, the
the Act (7 U.S.C. 2014(d)(7)) to exclude
section 5(d)(11) 7 U.S.C. 2014(d)(11),
Stewart B. McKinney Homeless
the income of children age 17 and
which modifies the exclusion for
Assistance Act, amended the Act by
under. Accordingly, we propose to
Federal and State agency energy
excluding PA or GA housing assistance
amend 7 CFR 273.9(c)(7) to exclude the
assistance payments. Federal energy
made to a third party on behalf of
earned income of any household
assistance payments are excluded under
households residing in temporary
member who is under age 18. We
this provision, with one exception.
housing facilities, if the temporary
propose to retain all the other
Energy assistance provided under Title
housing unit did not have a stove or
provisions of 7 CFR 273.9(c)(7)
IV-A of the Social Security Act is not
refrigerator. The provision was to expire
regarding this exclusion which were
excluded. This eliminates the exclusion
on September 30, 1989. The Mickey
implemented in the rule published
of energy assistance provided as part of
Leland Memorial Domestic Hunger
October 17, 1996 (61 FR 54292).
a State's public assistance grant. The
Relief Act (Pub. L. 101-624) amended
Currently, 7 CFR 273.10(e)(2)(i)
new provision allows an exclusion for
the Act to allow an exclusion for
provides that for prospective eligibility
one-time payments or allowances made
households living in transitional
and benefit determination, the earned
under a Federal or State law for the
housing equal to 50 percent of the
income of a high school or elementary
costs of weatherization or emergency
maximum shelter allowance provided to
school student must be counted
repair or replacement of an unsafe or
households receiving assistance under
beginning with the month following the
inoperative furnace or other heating or
Title IV-A of the Social Security Act
month in which the student turns 22.
cooling device.
who live in permanent housing and
Section 273.21(j)(1)(vii)(A) provides that
In accordance with PRWORA
made the provision retroactive to
the student's income must be counted
provisions, we propose to revise 7 CFR
October 1, 1990. Section 906 of the
beginning with the budget month after
273.9(c)(11) in its entirety. In the new
Food, Agriculture, Conservation, and
the month in which the student turns
paragraph (c)(11)(i) we would add an
Trade Act Amendments of 1991 (Pub. L.
22. We propose to make conforming
exclusion for any payments or
102-237) clarified that the subject
amendments to these sections to change
allowances made for the purpose of
provision was effective only if the State
the age from 22 to 18.
providing energy assistance under any
calculates a shelter allowance to be paid
Federal law other than Part A of Title IV
under the State Plan of Operation
Nonrecurring Lump-sum Payments-7
of the Social Security Act. In new
separate and apart from payments for
CFR 273.9(c)(8)
paragraph (c)(11)(ii) we would add an
other household needs. The 1993
In 7 CFR 273.9(c)(8) regarding
exclusion for one-time payments issued
Leland Act (Pub. L. 103-66) provided an
nonrecurring lump-sum payments, we
on an as-needed basis under State or
10880
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
Federal law for weatherization or
are needed to implement this PRWORA
published on December 4, 1991 (56 FR
emergency replacement or repair of
provision. Paragraph 5(k)(4)(B) of the
63594) for a more complete discussion
heating or cooling devices. For the
Act, as amended, also provides that for
of the issues involved. In implementing
purposes of this provision, we would
purposes of the excess shelter
this provision, FNS provided that the
consider a one-time payment as one
deduction, an expense paid on behalf of
homeless shelter estimate would be
which is provided on an as-needed basis
a household under a State law to
used in determining the household's
rather than in a regular series of
provide energy assistance is considered
excess shelter deduction. That is, if the
payments. A household would have to
an out-of-pocket expense incurred and
household claimed no shelter costs
apply for this assistance each time it
paid by the household. Therefore, the
exceeding the estimate, the estimate
incurred a cost for weatherization or
household is entitled to claim the
would be considered to be the
emergency repair or replacement of a
expense as a shelter cost. This provision
household's total shelter cost and the
heating or cooling device. If one
is discussed further under the standard
amount of the estimate over 50 percent
payment is received to replace windows
utility allowance provision below.
of the household's income would be the
and another payment is later received to
household's excess shelter deduction.
Shelter Costs-7 CFR 273.9(d)(5),
replace a furnace, each payment could
Section 809 of PRWORA amended
Standard Utility Allowance-7 CFR
be considered a one-time payment. If a
section 11(e)(3) of the Act to remove the
273.9(d)(6), and Adjustment of Shelter
down payment on an expense is made
homeless shelter provision and added a
Deduction-7 CFR 273.9(d)(9)
and the final payment is made when the
new paragraph (5) to section 5(d) of the
work is completed this would be one
We propose to reorganize 7 CFR
Act (7 U.S.C. 2014(d)(5)) to provide that
payment. All other provisions appearing
273.9(d)(5) and (6) to include all
State agencies may develop an optional
under current paragraph (c)(11) would
provisions related to shelter expenses in
standard homeless shelter allowance not
be removed.
revised 7 CFR 273.9(d)(6). Current
to exceed $143 per month. The new
Section 808 of PRWORA also made a
paragraph (d)(5) sets forth the
paragraph provides that the State agency
conforming amendment to section 5(k)
requirements for allowing a deduction
may use the allowance in determining
of the Act (7 U.S.C. 2014(k)) to remove
from the household's income for shelter
eligibility and allotments for homeless
existing exclusions for energy assistance
expenses, including a description of
households and that the State agency
in sections 5(k)(1)(B) and (C). These
allowable shelter costs and the special
may make a household with extremely
exclusions appear in current regulations
provisions for homeless households.
low shelter costs ineligible for the
at 7 CFR 273.9(c)(1). Previously, section
Current paragraph (d)(6) describes the
allowance.
5(k)(1)(B) of the Act excluded third-
procedures for establishing and using a
The Conference Report accompanying
party housing assistance for energy and
standard utility allowance as a shelter
PRWORA (House Report 104-725)
utility expenses, and section 5(k)(1)(C)
cost deduction. We believe these two
indicates that the homeless shelter
excluded third-party energy assistance
sections of regulations are closely
allowance is to be used in determining
related and should be combined.
a homeless household's excess shelter
payments. PRWORA added a new
paragraph (C) to section 5(k)(1) to
Therefore, we would move the
deduction. However, the provision was
exclude only the types of energy
provisions of paragraph (d)(5), combine
added to the Act as a separate
assistance listed in section 5(d)(11) of
them with the provisions in paragraph
deduction. The language of the law is
the Act, as amended by PRWORA, when
(d)(6), and retitle the revised paragraph
clear that the allowance is to be used as
the assistance is provided in the form of
(d)(6) as "Shelter costs." Paragraph
a deduction in determining eligibility
third-party payments. Accordingly, we
(d)(7) regarding child support would be
and allotments. The law does not
would make a conforming amendment
redesignated as (d)(5).
indicate that the standard is to be used
at 7 CFR 273.9(c) to remove the income
1. Homeless households. Current
in computing the excess shelter
exclusion for GA vendor payments for
regulations at 7 CFR 273.9(d)(5)(i)
expense, as is the case with the standard
utility expenses in paragraph
provide that State agencies must use a
utility allowance. Since the language is
(c)(1)(ii)(A). It is not necessary to make
standard estimate of the shelter
clear, there is no reason to refer to the
a conforming amendment to the income
expenses for households in which all
legislative history of the provision.
exclusion provisions at 7 CFR
members are homeless and are not
Therefore, we propose to revise current
273.9(c)(1)(i)(C) and (c)(1)(ii)(B)
receiving free shelter throughout the
7 CFR 273.9(d)(5)(i) (redesignated as
regarding energy assistance because
month. State agencies may develop their
paragraph (d)(6)(i)) to add an optional
they refer to paragraph (c)(11), which
own standards or use an annually
homeless shelter deduction from net
contains the new exclusion.
adjusted standard provided by FNS. In
income. Households claiming the
Section 808 of PRWORA also added a
October 1995, the standard was updated
homeless shelter deduction would be
new paragraph (4)(A) to section 5(k) of
to $143 per month for FY 1996. The
entitled to no other shelter deduction.
the Act to provide that, with one
regulation is based on a provision of the
They could, however, be entitled to a
exception, a third-party payment under
Mickey Leland Domestic Hunger Relief
deduction for excess shelter expenses
a State law for energy assistance is
Act (Pub. L. 104-624) which amended
instead of the homeless shelter
considered to be money paid directly to
section 11(e)(3)(E) of the Act U.S.C.
deduction if they verified actual costs.
the household. The exception is
2020(e)(3)(E)) to require that State
We are also proposing a conforming
contained in paragraph 5(k)(2)(G) of the
agencies develop standard shelter
amendment to 7 CFR 273.10(e)(1)(i) to
Act and refers to assistance provided to
estimates. The provision authorized the
add a new paragraph (G) to include the
a third party on behalf of a household
Secretary to issue regulations to
standard homeless shelter deduction.
under a State or local GA program, or
preclude the use of the standard shelter
2. Excess shelter deduction. Currently,
comparable program, if, under State
estimate for homeless households with
7 CFR 273.9(d)(5)(ii) provides that
law, no assistance under the program
extremely low shelter costs. The State
households are allowed a deduction for
may be provided directly to the
agency was required to use the estimate
shelter costs in excess of 50 percent of
household in the form of a cash
in determining benefits unless a
the household's income after all other
payment. This exclusion is located in
household verified higher expenses.
deductions have been subtracted. It
current regulations at 7 CFR
Readers may refer to the final
provides that the shelter deduction
273.9(c)(1)(ii)(G). Therefore, no changes
regulations implementing this provision
cannot exceed the maximum limit
Federal Register/V 65, No. Tuesday, February 29, Proposed Rules
10881
established for the area, unless the
be addressed in paragraph (iii)(F).
to use two standards that include the
household contains a member who is
Changes are being proposed as required
same expense. The State agency may
elderly or disabled. It indicates that the
by PRWORA and to enhance State
vary the standards by factors such as
shelter deduction limit applicable for
flexibility and simplify the regulations.
household size, geographical area, or
use in the States, the District of
In addition, we are taking this
season. However, only utility costs
Columbia, Guam, and the Virgin Islands
opportunity to review the proposed
identified in proposed paragraph
will be prescribed in Federal Register
changes in the ESE rule and to
(d)(6)(ii)(C) are allowable expenses. As
notices. Paragraphs (5)(d)(ii)(A) through
repropose several provisions which
provided in Policy Memo 3-97-04,
(E) describe allowable shelter expenses.
have been modified in response to
dated May 9, 1997, States in which the
The provisions of current paragraph
comments. The final ESE rule was
cooling expense is minimal may include
(d)(5)(ii) concerning application of the
withdrawn from clearance when it
the cooling cost in the LUA as part of
excess shelter expense limit in
became apparent that pending
the electricity component.
households with and without an elderly
legislation would make several of the
The proposed ESE rule would have
or disabled member would be included
proposed provisions obsolete.
allowed State agencies to establish an
in the introductory language of new 7
A. Developing Standards
LUA that includes electricity, water,
CFR 273.9(d)(6)(ii).
sewerage, and garbage or trash
Current paragraph (d)(5)(ii) provides
Current regulations at 7 CFR
collection and is available only to
that the maximum shelter deduction
273.9(d)(6)(i) allow State agencies to
households that have no heating or
amounts will be published in General
offer a single standard utility allowance
cooling costs but incur the cost of
Notices published in the Federal
that includes the cost of heating and/or
electricity and either water or sewerage.
Register. In 7 CFR 273.9(d)(9), the
cooling, cooking fuel, electricity not
Four of the nine State agencies that
shelter deduction amounts and
used to heat or cool the residence, the
commented on this proposal objected to
adjustments are described. Section 809
basic service fee for one telephone,
the requirement that households incur
of PRWORA sets the limits for the
water, sewerage, and garbage and trash
various areas by year. Therefore, we
collection to households that incur a
specific utility costs to qualify for an
LUA. They asked that the rule be
propose to remove these provisions and
heating or cooling cost, receive energy
assistance under the Low-Income Home
revised to give State agencies greater
provide instead that FNS will notify
State agencies when the amount of the
Energy Assistance Act of 1981 (LIHEA),
latitude in developing an appropriate
excess shelter limits change.
or receive other energy assistance but
LUA and that the regulations not
We propose to amend current 7 CFR
still incur out-of-pocket expenses. For
mandate which expenses a household
would have to incur to receive the LUA.
273.9(d)(5)(ii)(C) to expand the list of
the purposes of this proposed rule, we
allowable utility costs to include fuel or
propose to identify this allowance as the
We are not reproposing the LUA
electricity used for household purposes
heating and/or cooling standard utility
provisions of the ESE rule in this
other than heating or cooling (including
allowance (HCSUA). Instead of offering
proposed rule because they have been
cooking) as an allowable utility expense.
a single HCSUA, State agencies may
superseded by Section 809 of PRWORA
These additions are being made in
offer an individual standard allowance
as discussed above. However, in this
response to comments on the proposed
for each utility expense, such as
proposed rule, we are including several
rule published November 22, 1994 (59
electricity, water, sewerage, or trash
ESE provisions regarding standards and
FR 60087) titled Excess Shelter Expense
collection.
entitlement to a HCSUA.
Limit and Standard Utility Allowances
Section 890 of the PWORA, which
B. Updating Standards
(ESE) rule.
amended section 5(d) of the Act, allows
The provisions of current (d)(5)(ii)(A)
State agencies to develop one or more
Current regulations at 7 CFR
through (E), with the modifications
standards that include the cost of
273.9(d)(6)(iv) require State agencies to
outlined above, would be included in
heating and cooling and one or more
submit the methodology used in
new paragraph (d)(6)(ii)(A) through (E).
standards that do not include the cost or
developing a standard to FNS for
In addition, we would remove an
heating and cooling. Currently, there is
approval. These current rules also
unnecessary sentence referring to the
no regulatory provision for a limited
require State agencies to review and
excess shelter deduction from 7 CFR
utility allowance (LUA) that includes
adjust the standard annually to reflect
273.10(e)(1)(i)(E).
utility expenses other than heating or
changes in the cost of utilities. The
3. Standard utility allowance-7 CFR
cooling and is offered to households
proposed ESE rule would have required
273.9(d)(6) Under the proposed
that do not have a heating or cooling
State agencies that develop new
reorganization of 7 CFR 273.9(d)(6)
expense but do incur the costs of other
standards to use FNS-approved
outlined above, provisions for utility
utilities. However, prior to enactment of
methodologies, review and adjust the
standards would be contained in 7 CFR
PRWORA, approximately half of the
standards annually, and submit revised
273.9(d)(6)(iii) and would be organized
State agencies had been granted waivers
amounts to FNS for approval. The final
as follows. The provisions for
to offer an LUA to households that do
ESE rule would have required State
developing standards would be located
not qualify for the SUA. The new
agencies to submit methodologies used
in paragraph (iii)(A), and requirements
authority for developing an LUA would
in developing and updating standards to
for updating standards would be
be contained in proposed paragraph
FNS every 3 years, when they are
contained in paragraph (iii)(B).
(d)(6)(iii)(A).
revised, or upon a request from FNS.
Provisions governing entitlement to the
We propose to provide in paragraph
Two State agencies commented on
standard containing heating or cooling
(d)(6)(iii)(A) that State agencies may
these provisions. One asked whether
expenses would be included in
establish an LUA that includes at least
standards would have to be submitted
paragraph (iii)(C). Household options
two utilities other than telephone. State
each year or only if costs have risen
would be addressed in paragraph
agencies may offer individual standards
significantly and whether a threshold
(iii)(D), a new option to allow States to
to households that incur only one utility
would be established for increases. The
mandate use of the standards would be
expense. We would also provide that
other objected to the requirement to
addressed in paragraph (iii)(E), and the
State agencies may use different types of
submit methodologies every 3 years and
requirements for shared expenses would
standards but cannot allow households
suggested that FNS redistribute FNS
10882
Federal Register / Vol. 65, No. / Tuesday, February 29, 2000 Proposed Rules
Notice 79-47, which contained
individual metering to be entitled to use
changes regarding the entitlement of
methodology guidance and examples.
the HCSUA.) A household not entitled
renters to the HCSUA with minor
In response to comments received and
to the HCSUA may claim actual
revisions for clarity in this proposed
the desire to eliminate burdensome
expenses.
rule at new 7 CFR 273.9(d)(6)(iii).
mandates, we would remove the
In the ESE rule published November
Three comments were received
requirement for annual submission of
22, 1994, we proposed to revise 7 CFR
concerning residents of public housing
the amounts of the standards. Under
273.9(d)(6)(ii) to clarify and simplify the
and entitlement to the HCSUA. Two
this proposal, in new 7 CFR
rules for determining entitlement to an
State agencies requested that residents
273.9(d)(6)(ii), State agencies would be
HCSUA. For more information regarding
of public housing be allowed the
required to review standards
the background of the provisions
HCSUA and one suggested that "public
periodically, make adjustments, and to
governing entitlement to the HCSUA,
housing" be defined. One commenter
notify FNS if the amount changes. They
readers may refer to the preamble to the
suggested that the rule clarify that
may, at their option, establish
proposed rule.
households in public housing that incur
thresholds for making adjustments. We
One proposed change in the ESE rule
a heating or cooling expense separately
would also require that methodologies
would have extended use of the HCSUA
from their rent (not just for excess
be submitted for approval when a
to households that live in separate
usage) are entitled to the HCSUA. As
standard is developed or changed. We
residences but share a single utility
explained in the preamble to the
plan to provide guidance on
meter. For example, there may be two
proposed ESE rule (59 FR 60088),
methodologies similar to FNS Notice
separate houses on a lot that share one
households in public housing that incur
79-47. In the interim, we will make
gas meter. Under current policy, if two
only the cost of excess usage are not
copies of the Notice or similar guidance
households live separately but have one
allowed to use an HCSUA. Section
available for distribution upon request.
meter, the households are prohibited
5(e)(7)(C)(ii)(II) of the Act prohibits
from sharing the HCSUA, and the State
State agencies from allowing the
C. Entitlement
agency cannot grant the HCSUA to both
HCSUA to households in a public
Section 5(e)(7)(iv) of the Act, as
households even though both incur
housing unit which has central utility
revised by section 809 of PRWORA,
heating or cooling costs separately from
meters and charges households only for
provides that recipients of LIHEA are
their rent. Under the ESE proposed
excess heating or cooling costs.
entitled to use an HCSUA only if they
change, the State agency was required to
However, to address State agency
incur out-of-pocket heating or cooling
grant the full heating or cooling
concerns and to simplify administration
expenses in excess of the amount of the
standard to both households if both
we are proposing that State agencies
assistance paid on behalf of the
incur or anticipate incurring out-of-
may elect to include excess heating and
household to an energy provider, that a
pocket heating or cooling expenses
cooling costs in the LUA and offer the
State agency may use a separate HCSUA
separately from their rent or receive or
lower standard to public housing
for households receiving LIHEA, and
anticipate receiving LIHEA. Five
residents. Households in public housing
that the LIHEA must be considered to be
commenters supported the proposal,
that incur an out-of-pocket expense for
prorated over the heating or cooling
and under this rule both households
heating or cooling that is other than an
season. Section 2605(f)(2) of the LIHEA
would be entitled to the full HCSUA.
expense for excess usage would be
Act of 1981 (42 U.S.C. 8624(f)), provides
Under another proposed change in the
entitled to use the HCSUA. As used in
that LIHEA payments must be deemed
ESE rule, the HCSUA would have been
the proposed new paragraph (d)(6)(iii),
to be expended by such household for
made available to households in private
"public housing" refers to housing
heating or cooling expenses, without
rental housing who are billed by their
provided by local Public Housing
regard to whether such payments or
landlords on the basis of individual
Authorities under provisions of the U.S.
allowances are provided directly to, or
usage or who are charged a flat rate
Housing Act of 1937, as amended, 42
indirectly for the benefit of such
separately from their rent. One
U.S.C. 1401, et seq.
household.
commenter suggested that all
The ESE proposed rule would have
Current regulations at 7 CFR
households that incur heating or cooling
allowed State agencies to anticipate
273.9(d)(6)(ii) provide that the standard
costs as part of their rent should be
entitlement to an annualized HCSUA
utility allowance which includes a
allowed to use the HCSUA because all
based on the expectation that the
heating or cooling component must be
landlords who include heating or
household would incur heating or
made available only to households
cooling costs in the rent are passing the
cooling costs or receive a LIHEA
which incur heating and cooling costs
cost on to the renter. The State agency
payment in the next heating or cooling
separately and apart from their rent or
believes it is cumbersome and error-
season. This change was intended to
mortgage. These households include
prone to require verification from the
reduce the problems associated with
residents of rental housing who are
landlord concerning the "flat amount"
determining when a household is
billed on a monthly basis by their
that is charged for heating or cooling.
entitled to an annualized HCSUA.
landlords for actual usage as determined
We realize that State agencies may
Under the ESE rule proposal, a
through individual metering, recipients
experience some problems in verifying
household that incurs or expects to
of LIHEA, or recipients of indirect
whether a particular household incurs a
incur out-of-pocket heating or cooling
energy assistance payments other than
heating or cooling expense separately
costs during the next heating or cooling
LIHEA who continue to incur out-of-
from the rent amount. However, section
season (except a household in public
pocket heating or cooling expenses
5(e)(7)(C)(ii)(I) of the Act does not
housing with a central meter where the
during any month covered by the
permit use of an HCSUA for a
household is billed only for excess
certification period. Households in
household that does not incur such a
usage) would be entitled to an HCSUA
public or private housing with a central
heating or cooling expense. Therefore,
regardless of when the certification
meter who are billed only for excess
only those households with an
period begins or ends. The ESE rule
usage are not permitted to use the
identifiable heating or cooling expense
further proposed that the household
HCSUA. (Renters must be billed on a
may use the HCSUA. We have
would continue to be entitled to the
monthly basis by their landlords for
considered the comments and are
HCSUA until it no longer expects to
actual usage as determined through
including the ESE proposed rule
incur heating or cooling costs during the
Federal Register Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
10883
next heating or cooling season. The
between the standard and a deduction
cases except vendored assistance
State agency would be required to
based on actual utility costs at the end
provided under the LIHEA Act, a
reexamine a household's entitlement to
of any certification period.
deduction is not allowed for an expense
the HCSUA at recertification, when the
As indicated above and in the
paid by a vendor payment that is
household moves, or when the
preamble to the proposed ESE rule (59
excluded from income. The LIHEA Act
household voluntarily reports a change
FR 60089), provisions of LIHEA control
requires that households receiving
affecting entitlement to the HCSUA.
(without specifically repealing) sections
LIHEA payments be treated as if they
In response to comments and the
5(e)(7)(iv)(I) through (IV) of the Food
had incurred the expense. HUD utility
desire to increase State agency
Stamp Act which provides that (1)
reimbursement payments and some
flexibility in using utility standards, this
recipients of LIHEA are entitled to the
other utility assistance are excluded
new proposal does not contain the
HCSUA only if they incur expenses that
from income and there is no legislative
changes proposed in the ESE regarding
exceed the LIHEA payments, (2) State
provision requiring that households
anticipation of entitlement to an
agencies may use a separate standard for
receiving these payments be treated as
HCSUA. Instead, this proposed rule in
households that receive LIHEA, (3) State
if they had incurred the expense. If a
7 CFR 273.9(d)(6)(iii) would allow State
agencies using a single allowance are
heating or cooling expense is paid by an
agencies the discretion to develop and
not required to reduce the allowance for
excluded vendor payment other than a
use whatever procedures they deem
households that receive LIHEA, and (4)
LIHEA payment, the household is not
appropriate so long as they comply with
the LIHEA must be prorated over the
entitled to the HCSUA unless the
the requirements of the Act and the
entire heating or cooling season. Section
household incurs an expense that
LIHEA Act regarding use of an HCSUA.
2704(f)(2) of the LIEHA (42 U.S.C.
exceeds the amount of the payment. We
The following requirements of the Act
8624(f)) provides that LIHEA payments
agree with the commenter that this area
and the LIHEA Act are included in
must-be treated consistently regardless
of the proposed ESE rule needed
proposed 7 CFR 273.9(d)(6)(iii) for
of whether the payments are received
clarification and have attempted to
clarity:
directly or indirectly and that the full
clarify the provision in this rule.
(1) An allowance for a heating or
amount of the payments must be
In summary, this proposed rule would
cooling expense may not be used for a
considered to be expended by the
amend 7 CFR 273.9(d)(6)(iii) to provide
household that does not incur a heating
household for heating or cooling
increased State agency flexibility in
or cooling expense.
expenses. These requirements would be
applying the requirements of the Act
(2) A household that incurs a heating
included in new paragraph (d)(6)(ii)(C).
and the LIHEA Act regarding
or cooling expense but is located in a
The proposed ESE rule provided that
entitlement to an HCSUA.
public housing unit which has central
households receiving indirect energy
We are proposing to delete the last
utility meters and charges households
assistance other than LIHEA must incur
sentence in 7 CFR 273.2(f)(1)(iii) which
only for excess heating or cooling costs
an out-of-pocket expense to qualify for
prohibits a household that wishes to
is not entitled to a standard that
the HCSUA. One State agency
claim expenses for an unoccupied home
includes heating or cooling costs.
commented that households receiving
from using the standard utility
However, the State agency may use the
direct non-LIHEA energy assistance,
allowance. We are proposing to add a
excess costs in developing an overall
such as utility reimbursements from the
sentence to 7 CFR 273.9(d)(6)(ii)(C) to
LUA or develop a standard specifically
Department of Housing and Urban
provide that only one standard utility
for households which pay excess
Development (HUD), should be entitled
allowance can be allowed if the
heating or cooling costs.
to the HCSUA regardless of whether
household has both an occupied home
(3) For purposes of determining any
they incur out-of-pocket utility
and an unoccupied home.
excess shelter expense deduction, the
expenses. The State agency asked that
full amount of LIHEA energy assistance
the term "indirect" be removed from the
D. Household Options
payments must be deemed to be
final ESE rule because it could create
Current regulations at 7 CFR
expended by such household for heating
the impression that HCSUA entitlement
273.9(d)(6)(vii) provide that households
or cooling expenses, without regard to
is affected by the method in which non-
may claim verified actual costs rather
whether such payments or allowances
LIHEA energy assistance is received. In
than a standard allowance (except for
are provided directly or indirectly to the
response to this comment, we are
the telephone standard). Under current
household.
including in new paragraph (d)(6)(iii)
rules at 7 CFR 273.9(d)(6)(viii),
(4) An HCSUA must be made
the basic requirements for allowing a
households have the right to switch
available to households receiving energy
deduction when a household receives
between the use of actual utility costs
assistance (other than LIHEA) only if the
direct or indirect assistance in paying its
and a standard at the time of
household incurs out-of-pocket heating
shelter expenses. If a household receives
recertification and one additional time
or cooling expenses. A State agency may
direct assistance that is counted as
during each 12-month period. Section
use a separate utility standard for these
income and incurs a deductible cost, the
5(e)(7)(iii)(II) of the Act, as amended by
households.
entire expense is included in the excess
section 809 of PRWORA, provides that
(5) An HCSUA may not be used for a
shelter deduction computation. If the
a State agency that has not made use of
household that shares the heating or
household's bill is paid by a vendor
a standard mandatory must allow a
cooling costs with and lives with
payment that is counted as income, the
household to switch between actual
another individual not participating in
household is likewise entitled to the
expenses and the standard or vice versa
the Program, another participating
expense.
only at recertification. Therefore, the
household, or both, unless the HCSUA
However, there is a distinction in
option to switch one additional time
is prorated between the household and
Program regulations between
during each 12-month period is being
the other individual, household, or
entitlement to a deduction for an
removed. Since some households may
both.
expense paid directly by the household
be certified for 24 months under the
(6) A State agency that has not made
and an expense paid by a vendor
certification period requirements of
the use of a standard mandatory (as
payment if the vendor payment is
section 3(c) of the Act, as amended by
provided in paragraph (d)(6)(iii)(E))
excluded from income consideration. As
PRWORA, we propose that these
must allow a household to switch
provided in 7 CFR 273.10(d)(1)(i), in all
households be allowed to switch at the
10884
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
time of the mandatory interim contact.
a standard, provided that use of the
standards be prorated and does not
Under the proposed reorganization of
mandatory standard does not increase
specify how the HCSUA should be
the regulations, the "switching"
Program costs and the standards have
prorated. Therefore, we are not
requirements would be included in 7
been approved by FNS. Requests for
proposing to regulate in this area.
CFR 273.9(d)(6)(iii)(D).
approval to use a single standard for a
As indicated in the preamble to the
utility (such as a water standard) would
G. Adjustment of standard deduction-
ESE rule (59 FR 60092), current policy
7 CFR 273.9(d)(8)
be required to include the figures upon
is that households may choose between
which the standard is based. If a State
Current paragraph (d)(8) describes
actual expenses and a standard when
wants to mandate use of utility
adjustments to be made to the standard
they move. We proposed that the
standards but does not want individual
deduction. Section 809 of PRWORA sets
redetermination of entitlement to a
standards for each utility, the State
the amounts by area. This paragraph
standard when a household moves
would be required to submit
would be removed since the amounts
would not be considered a "switch."
information showing the approximate
are now specified in the law.
Four State agencies supported this
number of food stamp households that
provision in their comments. One of
would be entitled to the nonheating and
Proration of benefits at recertification-
these recommended that it would be
noncooling standard and their average
7 CFR 273.10(a)
preferable to remove the switching
utility costs before implementation of
Current regulations at 7 CFR
provision from the regulations.
the mandatory standards, the standards
273.10(a)(1)(ii) provide that the term
However, the limitation on changing
the State proposes to use, and an
"initial month" means the first month
from actual costs to a standard or vice
explanation of how the standards were
for which the household is certified for
versa is contained in section 5(e) of the
computed.
participation in the Food Stamp
Food Stamp Act and cannot be removed
by regulation. Another commenter
F. Sharing
Program following any period of more
than one month, fiscal or calendar
supported the proposal but requested
Section 5(e)(7)(iii)(II) of the Act
that the rule be clarified to indicate that
requires proration of an HCSUA when
depending on the State's issuance cycle,
households live together and share the
during which the household was not
the household can opt for either the
cost. Current regulations at 7 CFR
certified. By revising section 8(c)(2)(B)
standard or actual costs when it moves.
273.9(d)(6)(viii) provide that if a
of the Act to provide that "initial
The proposed ESE rule provision to
require a State agency to provide an
household lives with and shares utility
month" means the first month for which
an allotment is issued to a household
opportunity for a household that moves
expenses with another household, the
to select either the standard or actual
State agency must prorate a standard
following any period in which the
costs at the new address is included in
among the households or allow the
household was not certified, section 827
this proposed rule in new paragraph
actual costs of each household. The
of PRWORA reinstated the requirement
State agency determines the proration
to prorate benefits which existed prior
(d)(6)(iii)(D) with clarification.
method if a standard is used.
to the Mickey Leland Childhood Hunger
E. Mandatory standards
The ESE proposed rule would have
Relief Act (Pub. L. 104-624). Under the
Section 809 of PRWORA amends
revised paragraph (d)(6)(viii) to provide
new statutory provision, benefits are
section 5(d) of the Act to provide in
that households living together and
prorated at initial certification and at
section 5(d)(7)(C)(iii)(I) that a State
sharing expenses could claim actual
recertification if there has been any
agency may, at its option, make use of
costs or a share of a standard. It would
break in certification following the last
a standard utility allowance mandatory
have prohibited State agencies from
month of certification, except for
for all households with qualifying
allowing households to use a
migrant and seasonal farmworker
utility costs, provided:
combination of actual costs and a share
households. For migrant and seasonal
(a) The State agency has developed
of the standard. That is, State agencies
farmworkers, the term initial month
one or more standards that include the
could not allow one household to claim
means the first month for which the
cost of heating and cooling and one or
a share of the utility standard and allow
household is certified following any
more standards that do not include the
another household sharing the expense
period of more than 30 days during
cost of heating and cooling, and
to claim actual costs.
which the household was not certified.
(b) The standards will not increase
Four of the eight comments we
We propose to amend 7 CFR
Program costs.
received on this provision supported it.
273.10(a)(1)(ii) and 7 CFR 274.10(a)(2)
Households that are entitled to the
Two State agencies objected to the
to provide that for all other households
standard will not be able to claim actual
requirement to prorate the telephone
"initial month" means the first month
costs even if they are higher.
allowance and recommended that this
for which a household is certified
Households not entitled to the standard
be a State agency option. One State
following any break in participation.
will be able to claim actual allowable
agency did not see how the proposal
Certification periods-7 CFR 273.10(f)
costs. Using mandatory standards does
would simplify the policy regarding
not bestow entitlement to a standard a
households that live together and share
Under current regulations at 7 CFR
household would not otherwise be
heating or cooling costs. The State
273.10(f), certification periods are
entitled to receive. For example,
agency suggested that each household
assigned according to the stability of a
households in public housing units
be allowed the full standard. One State
household's circumstances. Households
which have central utility meters and
agency objected to the provision
consisting entirely of unemployable or
charge households only for excess
prohibiting State agencies from mixing
elderly individuals with very stable
heating or cooling costs are not entitled
a share of the standard and actual costs
income are certified for up to 12
to a standard that includes heating or
because the cases involved might be
months, provided other household
cooling costs, but they may claim the
handled by different eligibility workers.
circumstances are expected to remain
LUA.
Although the Act requires that an
stable. Current regulations are based on
We propose to provide in paragraph
HCSUA be prorated among households
Section 3(c) of the Act (7 U.S.C.
(d)(6)(iii)(E) that States using both an
that share the heating or cooling
2012(c)), which, prior to enactment of
HCSUA and LUA may mandate use of
expense, it does not require that all
PRWORA, provided specific
Federal Register Vol. 65, No. 40 / Tuesday, February 29, / Proposed Rules
10885
certification period requirements
provide that households reporting one-
to mandate certification periods that are
depending on the type of household.
time-only medical expenses during their
less than 12 months if the household is
Section 801 of PRWORA amended
certification period may elect to have a
not required to report child support
section 3(c) of the Act and eliminated
one-time deduction or to have the
information monthly or quarterly.
specific certification periods by type of
expense averaged over the remaining
We also propose to make a
household. PRWORA now provides that
months of the certification period. This
conforming amendment to remove 7
the certification period cannot exceed
provision assumes a certification period
CFR 272.3(c)(5) from the regulations and
12 months, except that the certification
of no more than 12 months. Averaging
renumber paragraphs (c)(6) and (c)(7).
period may be up to 24 months for
an expense over more than 12 months
Paragraph (c)(5), which authorized
households in which all adult
could result in a very small expense
waivers of the certification period
household members are elderly or
each month. Therefore, we required as
requirements in section 3(c) of the Act,
disabled. Section 801 requires that the
a condition of waiver approval that
is now obsolete. We also propose to
State agency have at least one contact
State agencies give the household three
make a conforming amendment to
with each certified household every 12
options for budgeting the expense. We
remove 7 CFR 273.11(a)(5), which
months.
propose to include those options in 7
addresses certification period
We have granted waivers to several
CFR 273.10(f)(1)(iii) as follows:
requirements for households with self-
State agencies to allow certification
Households certified for more than 12
employment income. This paragraph is
periods of 24 months for households
months that incur a one-time medical
unnecessary because the provision
consisting entirely of elderly or disabled
expense in the first 12 months of the
regarding certification period length for
members with no earned income. These
certification period may elect to (a)
these households was removed from the
waivers will no longer be necessary
budget the expense in one month, (b)
Act by PRWORA.
since section 801 increases State agency
average the expense over the remainder
To provide more State agency
flexibility to assign 24-month
of the first 12 months of the certification
flexibility in its day-to-day operations of
certification periods to households
period, or (c) average it over the
the Program, we would amend the
whose only adult members are elderly
remainder of the certification period.
regulations to add a new paragraph 7
or disabled. However, Section 801 also
One-time expenses reported after the
CFR 273.10(f)(4) allowing the State
amended the Act to remove the
12th month of the certification period
agency to shorten a household's
Department's authority to waive the
would be allowed in one month or
currently assigned certification period
requirements of the Act concerning
averaged over the remainder of the
under certain circumstances with a
certification periods. Therefore, we will
certification period, at the household's
notice of adverse action. We have
no longer be able to grant waivers of the
option. This guarantees that households
traditionally prohibited shortening
12-month certification period limit for
will not be adversely affected because
certification periods once established,
households that are not elderly or
averaging the cost over more than 12
except in the following instances: a PA
disabled. We note that the language in
months would have a negligible benefit
or GA household's certification period
the law provides that all adult members
impact in each month. A reference to
is shortened in accordance with 7 CFR
must be elderly or disabled rather than
the budgeting options is also proposed
273.12(f); in accordance with Policy
the language in the waivers which
to be added to 7 CFR 273.10(d)(3) for
Memo 85-03, the State agency needs to
provided that all members had to be
conformity.
adjust the caseload to more evenly
In addition to removing the provision
distribute the workload, a household
elderly or disabled. Therefore
households in which all adult members
of section 3(c) of the Act that the 12-
reports a change that indicates that the
are elderly or disabled may be certified
month limit on certification periods
new circumstances are very unstable, or
up to 24 months even if there are
could be waived, section 801 of
the household fails to provide required
children in the household.
PRWORA removed the requirement that
information regarding a change in
Accordingly, we propose to amend 7
the certification period of households in
household circumstances. When a
CFR 273.10(f) to reflect the new
which all members received PA or GA
household's certification period is
certification period requirements of
must coincide with the period of the
shortened under these circumstances, a
PRWORA. We propose that households
grant. It also removed the requirement
notice of expiration must be sent; or for
cannot be certified for no more than 12
that monthly reporting households be
households subject to monthly
months, except households in which all
certified for 6 or 12 months, unless a
reporting, a State agency must shorten
adult members are elderly or disabled
waiver was granted. We propose to
the certification period with an
may be certified for no more than 24
revise 7 CFR 273.10(f) and to remove 7
adequate notice in accordance with 7
months, and that the State agency must
CFR 273.21(a)(3) to reflect these
CFR 273.21(m).
have at least one contact every 12
changes. We also propose to include in
State agencies have continually
months with each certified household.
the new 7 CFR 273.10(f)(2), the
argued that there are other situations
Therefore, if a household in which all
provision at 7 CFR 273.21(t) that
under which the State agency should
adult members are elderly or disabled is
monthly reporting households residing
have the authority to shorten the
certified for 18 months, the State agency
on reservations must be certified for 2
certification period and close the case.
must have at least one contact with the
years, unless a waiver is approved. This
The situations described by State
household by the end of the first 12
requirement is based on section
agencies over time have been: a
months. State agencies may use any
6(c)(1)(C)(iv) of the Act, which was not
household is not using its benefits
method they choose for this contact,
affected by the amendment to section
timely (i.e., not drawing down on their
3(c).
EBT account or not redeeming their
including a change report form or a
telephone-call.
We propose to include in revised 7
Authorization to Participate card for
In approving waivers to allow 24-
CFR 273.10(f)(3) the provision of current
coupons); a household is suspected of
month certification periods for elderly
7 CFR 273.10(f)(9) concerning the
trafficking or otherwise misusing
or disabled households, we included a
assignment of certification periods to
benefits; a household is not reporting
special condition for treatment of one-
households claiming a deduction for
earned or unearned income properly; a
time medical expenses. Current
legally obligated child support
change in program operations (such as
regulations at 7 CFR 273.10(d)(3)
payments. We believe the law allows us
converting the caseload to a new
10886
Federal Register / Vol. 65, No. 0/Tuesday, February 29, /Proposed Rules
computer system) warrants the
stamp participation of TANF leavers
clearly specifying the actions a
adjustment of certification periods of all
with a notice of adverse action when it
household must take to continue its
or part of a State agency's caseload; or
is clear that changes in the household's
eligibility. This two-step procedure is
the State agency wants to align food
circumstances require a reduction or
discussed in detail in the following
stamp certification periods with the
termination of benefits. In this instance,
paragraph. States have used the
certification periods of other programs.
the State agency already has sufficient
procedures outlined in 7 CFR
We have carefully considered the
information about the household to
273.10(f)(5) since the implementation of
current policy in light of State agency
enable a seamless transition to
the Food Stamp Act of 1977. We
concerns and our current statutory
nonassistance status. Current 7 CFR
encourage public comment on the
authority. To recap the pertinent
273.10(f)(5) outlines the procedures a
continuing workability of these
statutory provisions, section 11(e)(4) of
State agency must follow when TANF
procedures and the possibility of
the Act (7 U.S.C. 2019(e)(4)) provides
leavers do not fully apprise the State
alternatives to the current procedure.
that the State agency must issue a notice
agency of their new circumstances and
Our aim is to find the most effective
of expiration to households prior to the
the State agency does not possess
way to allow States to continue to
start of the last month of the assigned
enough information to make an
provide nutritional support for families
certification period. Section 11(e)(10) of
informed determination about their
leaving TANF.
the Act (7 U.S.C. 2019(e)(10)) provides
Outside the context of transitioning
that the State agency must issue a notice
continuing food stamp eligibility. In
TANF households to nonassistance
of adverse action to reduce or terminate
some cases, the State agency may need
a household's benefits within an
only one or two pieces of information or
status, we believe that State agencies
assigned certification period. Further, if
documentation to determine continuing
should be allowed to require
eligibility; in others, a more thorough
households to explain changes in
the household timely requests a hearing
to contest the proposed reduction or
review of the circumstances may be in
household circumstances during a
termination of benefits, the State agency
order, depending on the level of
certification period, especially in
information available in the case file.
suspected intentional Program violation
must continue benefits at the level
situations, and shorten certification
authorized immediately prior to the
We believe it would be preferable to
avoid requiring the household to report
periods if warranted by no response or
notice of adverse action. Once
an unsatisfactory response from the
continued, benefits will remain at the
for a full recertification, if a response to
household. Therefore, we propose to
prior level until a hearing official issues
a notice to the household requesting
consolidate in new paragraph (f)(4) most
an adverse decision or the certification
information could clear up a few
situations where shortening the
period ends, whichever comes first.
remaining points of eligibility. Thus
certification period would be allowed.
These statutory provisions act
adjusting the household's participation
The vehicle for early closure of cases
independently of one another. In other
with a notice of adverse action may be
would be the notice of adverse action.
words, section 11(e)(4) of the Act
an appropriate option. However, there
State agencies may no longer use the
contemplates that States will use the
are instances where the changes in
notice of expiration to shorten
notice of expiration to advise a
circumstances may be extensive and
certification periods for the reasons
household that its certification period is
questions concerning continuing
cited previously. The new paragraph
ending. Section 11(e)(10) of the Act
eligibility would not be resolved easily
provides specific authority to shorten
contemplates that once a household
through a limited contact with the
the certification period when the State
receives notification that it is authorized
household. In this regard, a household
agency has information indicating that
for benefits, States will use the notice of
receiving TANF participates in the
the household is not reporting income
adverse action if it becomes necessary to
Program based on categorical eligibility.
properly, the household has become
reduce or terminate benefits within an
Eligibility is deemed because of receipt
ineligible, a household reports a change
assigned certification period. We have
of TANF, and not necessarily verified as
that indicates that the new
come to believe that the current practice
in the-case of nonassistance households.
circumstances are very unstable, or the
of shortening certification periods with
Thus, when receipt of TANF assistance
household fails to provide adequate
the notice of expiration is not the best
ends, the household may be considered
information regarding a change in
reading of section 11(e)(10) of the Act.
to be more closely in the position of a
household circumstances other than
Use of the notice of expiration in the
new applicant for food stamps. The
income. We considered other situations
situations noted previously improperly
State agency might not have collected
where States felt that they needed
shortens the period of continued
information about or considered
authority to close food stamp cases
benefits the household is entitled to
eligibility factors pertinent to
earlier than originally authorized.
receive had it instead received a notice
nonassistance households in the initial
However, we determined that only the
of adverse action. Accordingly, we are
certification process. Factors of
instances listed above rose to a level of
proposing to eliminate the use of the
eligibility not pertinent to the eligibility
urgency requiring early termination of
notice of expiration as a vehicle for
of a categorically eligible household
benefits.
shortening certification periods, with
now may become relevant. We feel that
The proposal limits such action to
one exception, which we will discuss
this situation justifies use of the notice
those situations specifically described
below. Despite our concerns over the
of expiration, in lieu of the notice of
here to ensure that State agencies apply
use of the notice of expiration, we will
adverse action. Closing the case with a
this new policy only under the most
not require State agencies to change
notice of expiration allows the State
compelling circumstances. We are
their procedures pending issuance of
agency to request that the household
proposing a two-step process for
final rules on this issue.
report for an interview and
shortening certification periods. First,
We propose to retain the long-
recertification in a non-confrontational
the State agency must provide the
standing procedure for adjusting the
way. However, we are proposing an
household written notice that it has
certification periods of households
option which would allow State
reason to believe the household's
leaving the TANF rolls, with a
agencies to close cases with a notice of
circumstance have changed. The notice
modification. Current 7 CFR 273.10(f)(4)
adverse action, provided the State
must clearly specify the basis for the
requires that State agencies adjust food
agency has sent the household a notice
State agency's belief and the actions the
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
10887
State agency expects the household to
business, including a flat amount or
Current regulations allow households
take. The notice must give the
fixed percentage of the gross income,
to choose between a standard amount or
household at least 10 days to contact the
provided that the method used to
actual costs in claiming expenses
State agency and clarify its situation.
determine the flat amount or fixed
incurred in producing boarder and day-
Second, at the end of the period allowed
percentage is objective and justifiable
care income. However, section 812 of
for responding to the notice, the State
and is stated in the State's food stamp
PRWORA requires FNS to establish a
agency may issue a notice of adverse
manual. Paragraph (b)(2) provides that
procedure whereby States may request
action shorten the certification period if:
households with income from day care
to use a method of producing a
(1) the household does not respond; (2)
may choose one of the following in
reasonable estimate of excludable
the household does not provide
determining the cost of meals provided
expenses "in lieu of calculating the
sufficient information to clarify its
to the individuals: the actual
actual cost of producing self-
circumstances; or (3) the household
documented costs of meals, a standard
employment income." In accordance
agrees that changes in its circumstances
per-day amount based on estimated per-
with this provision, we propose that
warrant filing a new application. The
meal costs, or the current
State agencies, rather than households,
notice of adverse action must meet the
reimbursement amounts used in the
must determine whether to use actual
requirements of 7 CFR 273.13 and
Child and Adult Care Food Program.
costs or another approved method to
explain the reason for the action. After
These procedures for using standard
determine self-employment expenses.
hearing from the household, State
estimates of costs for households with
We also propose to take this
agencies may also find that no further
self-employment from boarders or day
opportunity to completely revise 7 CFR
action is required or that benefits may
care were added to the regulations in a
273.11(a) to simplify the regulations and
be adjusted without shortening the
final rule dated October 17, 1996 (61 FR
increase State agency flexibility.
assigned certification period. We are
54318). In this rule, we propose to
Currently, 7 CFR 273.11(a) contains
also proposing conforming changes to
consolidate allowable costs of
special procedures for determining a
new 7 CFR 273.10(f)(2) and 7 CFR
producing self-employment income and
household's income from self-
273.11(g)(5) in light of the above.
include them in a revised paragraph (b).
employment. Current regulations
Lastly, under the proposal in
To simplify the certification process
provide that income received from self-
paragraph (f)(5), we would continue to
and respond to State agency requests for
employment is offset by the cost of
prohibit lengthening of a household's
increased flexibility, we would add in
producing the self-employment income.
current certification period once it is
The remaining income is then averaged
new paragraph (b)(3)(iii) an option for
established. The lengthening of
over the number of months it is
State agencies to use the same standard
certification periods could result in
intended to cover. We would revise and
self-employment expense amounts or
some households continuing to receive
combine portions of paragraphs (a)(1),
percents established for households
benefits that they should not. FNS
(a)(2), and (a)(3) and remove
receiving TANF benefits under Title IV-
would continue to consider waiver
superfluous language and examples
A of the Social Security Act.
requests from State agencies to lengthen
without changing any policy contained
In addition, section 812 of PRWORA
assigned certification periods. Some
in those provisions. We would not
State agencies have requested and have
required the Department to establish by
include in the proposed paragraph (a)
been granted a waiver by FNS to
August 22, 1997, a procedure by which
the provision of current paragraph (a)(5)
lengthen certifications, usually due to a
a State may submit a method for
regarding certification periods for
specific one-time problem situation
producing a reasonable estimate of the
certain self-employment households
such as implementing a new computer
cost of producing self-employment
because it is no longer necessary, as
system. It should be noted, however,
income in place of calculating actual
discussed earlier in this preamble under
that PRWORA limits certification
costs. issued a guidance
the section title "Certification periods."
periods to 12 months, except for
memorandum in compliance with the
To increase State agency flexibility,
households in which all adult members
statutory requirement on August 1,
we would eliminate some prescriptive
are elderly or disabled. Therefore, FNS
1997. The method proposed by the State
requirements in the current regulations
cannot allow extension of certification
agency and submitted to FNS for
at 7 CFR 273.11(b) regarding the
periods beyond 24 months for
approval must be designed so that it
treatment of shelter expenses paid by
households in which all adult members
does not increase Program costs. The
boarders. Currently, paragraph (b)(1)(i)
are elderly or disabled or beyond 12
method may be different for different
specifies that contributions made by the
months for other households. This
types of self-employment.
boarder to the household to cover its
limitation is reflected in the proposed
To implement the provisions of
shelter expenses are included as income
language.
section 812 of PRWORA, we propose to
to the household. The current provision
amend 7 CFR 273.11 to provide in new
further specifies that expenses paid by
Self-employment Expenses-7 CFR
paragraph (b)(3)(iv) that State agencies
the boarder to someone outside of the
273.11(a)(4) and (b)(2)
may submit requests to FNS to use a
household cannot be counted as income
Current regulations at 7 CFR
simplified method of calculating self-
to the proprietor household. In addition,
273.11(a)(4) contain requirements for
employment expenses for specified
the current regulation in paragraph
determining the allowable costs that can
categories of businesses. The request
(b)(1)(iii) provides requirements
be excluded in determining the amount
must include a description of the
addressing whether costs paid by the
of self-employment income to be
proposed method, information
boarder count in determining the
counted. Paragraph (a)(4)(i) provides
concerning the number and type of
proprietor household's entitlement to a
that the allowable costs of producing
households affected, and documentation
shelter deduction. We would eliminate
self-employment income include, but
indicating that the proposed procedure
these prescriptive requirements in favor
are not limited to, certain identifiable
would not increase Program costs. We
of letting State agencies determine the
costs. Section 273.11(b)(1) provides that
are soliciting comments on this
appropriate way to handle these shelter
households with income from boarders
proposed procedure for submission of
expenses. The provision of current
may elect from among several methods
State agency requests and suggestions
paragraph (b)(1)(ii) allowing options for
of determining the cost of doing
for other methods.
determining the cost of doing business
10888
Federal Register / 65, No. Tuesday, February 29, Proposed Rules
for households with boarders would be
option applies to aliens who do not
admitted for permanent residence.
included in proposed new paragraph
meet the alien eligibility requirements
(b)(3)(ii) and modified to remove overly
Therefore, we are proposing to allow the
in section 6(f) of the Food Stamp Act.
State agency to pick one State-wide
prescriptive language.
Additional categories of aliens were
option for determining the eligibility
Treatment of the Income and Resources
made ineligible for food stamp benefits
and benefit level of households with
of Ineligible Aliens-7 CFR 273.11(c)(2)
by PRWORA, beyond those ineligible
members who are aliens made ineligible
under section 6(f) of the Act. The
Current regulations at 7 CFR
under PRWORA. State agencies may
majority of these aliens are refugees and
either: (1) count all of the aliens'
273.11(c)(2) provide that the benefits of
asylees who have been in this country
a household containing either a person
resources and a pro-rated share of the
for more than 7 years and lawful
disqualified for failure to provide a
aliens' income and deductions; or (2)
permanent residents except those who
social security number or an ineligible
count all of the aliens' resources, not
can be credited with 40-quarters of work
alien must be determined as follows: the
count the aliens' income and
or who were living in this country on
resources of the ineligible member
deductions, but cap the resulting
August 22, 1996, and were elderly on
count in their entirety to the rest of the
allotment for the eligible members at the
that date or are now disabled or under
household; all but a pro rata share of the
allotment amount the household would
age 18. The treatment of the income and
ineligible household member's income
receive were it not for the PRWORA
resources of these additional categories
is counted; and the 20 percent earned
of ineligible aliens were not addressed
eligibility restrictions. Option (1) merely
income deduction is applied to the
continues the policy that most State
by PRWORA. Congress did not grant
prorated income earned by the ineligible
agencies are pursuing with respect to
State agencies statutory authority to
member, and all but the ineligible
PRWORA-ineligible aliens. State
count all or all but a pro rata share of
member's pro rata share of the
agencies operating State Option
the income of aliens made ineligible by
household's allowable shelter, child
Programs under section 8(j) of the Act
PRWORA. Further, the amended version
support, and dependent care expenses
may find option (2) attractive in terms
of subsection 6(f) of the Act is explicitly
which are either paid by or billed to the
of simplifying administration. This
limited by its plain language to aliens in
ineligible member is allowed as a
option would require two benefit
categories ineligible prior to the
deductible expense for the household.
calculations. In calculation (1), the State
enactment of PRWORA. Therefore, we
We propose to renumber paragraph
have examined various options for
agency would determine eligibility and
(c)(3) as (c)(4), to remove the provisions
benefit level as if all PRWORA-
counting the resources and income of
regarding ineligible aliens from (c)(2),
those categories of aliens newly made
ineligible aliens could still receive
and add a new paragraph (c)(3) for
ineligible by PRWORA.
Federal benefits. In calculation (2), the
ineligible aliens.
Current regulations at 7 CFR 273.11(c)
State agency would determine eligibility
Section 818 of PRWORA amended
and (d) provide several methods for the
and level of benefits for the eligible
section 6(f) of the Act (7 U.S.C. 2015(f))
treatment of ineligible household
members, excluding the income and
and grants State agencies the statutory
members. Section 273.11(c)(1) provides
deductions of the PRWORA-ineligible
authority to count all or all but a pro
that all of the income and resources of
aliens; however, the benefit amount
rata share of the income of an alien who
a household member who is ineligible
could not exceed the amount
is in an ineligible category listed under
because of an intentional program
determined in calculation (1). In State
the alien provisions of 6(f) of the Act,
violation disqualification or workfare or
Option Programs, the difference
i.e., those ineligible prior to PRWORA.
work requirement sanction must be
between calculation (1) and calculation
They are primarily visitors, tourists,
counted in determining the eligibility
(2) would be the State's share of benefits
diplomats, students, and undocumented
and benefits of the rest of the
payable to FNS. Funding for state-to-
aliens. We propose to list the categories
household. Section 273.11(c)(2)
state technical assistance visits will be
of aliens eligible under the Act in new
provides that all of the resources and all
available through our State Exchange
paragraphs (c)(3)(i)(A) through (D).
but a pro rata share of the income of a
program for States wishing to learn
Proposed paragraph (c)(3)(i) would
member who is an ineligible alien or
about the automation procedures
provide that State agencies must count
who does not provide a social security
necessary for implementation of this
all of the resources and either all or all
number must be counted. Section
option. We are proposing to allow a
but a pro rata share of the income and
273.11(d) provides that the resources
second variance exclusion period under
deductions of these ineligible aliens.
and income of other ineligible
7 CFR 275.12(d)(2)(vii) for States which
One State agency asked if it could
household members, such as an
implement option 1, and then decide at
count all of the alien's income for
ineligible student, cannot be considered
a later date to implement option 2. For
purposes of applying the gross income
available to the household with whom
aliens ineligible under section 6(f) of the
test and only all but a pro rata share for
the individual resides. In addition, 7
Act and for those unable or unwilling to
other purposes. The State agency was
CFR 273.1(b)(1) provides that the
document their alien status, the
concerned that counting a pro rata share
income and resources of certain
proposed rule would reflect the statute
of the alien's income could result in
nonhousehold members, including
which permits the State agency the
some households with ineligible aliens
roomers and live-in attendants who may
option to count all or all but a pro rata
being eligible whereas a similar
participate as separate households, are
share of such an alien's income and
household made up of citizens with the
excluded in determining the eligibility
require that all of such an alien's
same income would be ineligible based
and benefits of the individuals with
resources be counted.
on gross income. To remedy this
whom they live.
Congress has explicitly and in plain
situation, we propose to allow the State
Data from the Integrated Quality
statutory language specified how the
agency to count all of the alien's income
Control System indicate that most of the
income and resources of aliens
for purposes of applying the gross
ineligible lawful permanent resident
ineligible under section 6(f) of the Act
income test for eligibility purposes but
aliens live in households with children,
should be counted. Conversely,
only count a pro rata share for applying
many of whom are citizens. Further,
Congress has been silent as to how such
the net income test and determining the
these ineligible aliens have not violated
counting should be accomplished for
level of benefits. This State agency
any Program rules and have been legally
aliens eligible under section 6(f) of the
Federal Register / Vol. 65, No. Tuesday, February 29, Proposed Rules
10889
Act but ineligible under PRWORA. With
unspent benefits of a household that has
procedures used as part of the design
this in mind, we specifically invite
left the center to the State agency.
used to accommodate DAA facilities
comments on our proposal to treat the
Section 830 of PRWORA amended
must assure that a household has access
income and resources of aliens made
section 8 of the Act to allow State
to one-half of its allotment when it
ineligible by PRWORA.
agencies the option of providing an
leaves the center before the 16th of the
allotment for the individual to: (a) the
month. This policy requirement may be
Residents of Drug and Alcoholic
center as an authorized representative
easily met if the State opts to issue semi-
Treatment and Rehabilitation Centers-
for a period that is less than 1 month;
monthly allotments. However, the
7 CFR 273.11(e)
and (b) the individual, if the individual
requirement must be met regardless of
Current rules at 7 CFR 273.11(e) set
leaves the center. Since State agencies
issuance frequency or the issuance
forth the procedures for certifying
will generally not know in advance
system.
residents of a drug addict or alcoholic
when a resident is going to leave the
The Department proposes to delete
treatment and rehabilitation (DAA)
center, we are proposing that State
current paragraphs (e)(3)(i) through (iii)
centers for Program participation. The
agencies be allowed to routinely issue
which provide that the expedited and
Department is proposing to revise the
allotments for household's in DAA
regular processing standards apply to
title of paragraph (e) and paragraphs
centers on a semi-monthly basis, e.g.,
residents of DAA centers.as well as
(e)(1) through (5) to make the
half of the allotment could be issued on
other households and the requirement
procedures clearer, to take into account
the first of the month and half could be
for the State agency to process changes
electronic benefit transfer (EBT)
issued on the 16th of the month. We are
in circumstances and recertification for
issuances, and to add two new
proposing to include this option in new
these households the same as other
provisions contained in Section 830 of
paragraph (e)(4).
households. These provisions still
PRWORA.
We are also taking this opportunity to
apply, but it is not necessary to
Paragraph 11(e)(1) provides that
propose provisions to take into account
specifically mention them.
individuals in DAA centers may
various EBT systems being used, but
Sponsored Aliens-7 CFR 273.11(j)
individually apply for food stamp
still maintain the requirement that the
benefits, but certification must be
household have access to one-half of its
We are proposing to move the
accomplished through an authorized
monthly allotment if it leaves the DAA
sponsored alien provisions from 7 CFR
representative who is an employee of
before the 16th of the month.
273.11(j) to new paragraph 7 CFR
the treatment center. Section 830 of
Under some EBT systems, DAA
273.4(c) and to renumber 7 CFR
PRWORA amended section 8 of the Act
centers are authorized as retail stores
273.11(k) as 7 CFR 273.11(j). This will
(7 U.S.C. 2017(f)) to allow the State
and have point of sale devices (POS)
consolidate most of the alien provisions.
agency the option of requiring
located at the centers. This occurs only
Current rules at 7 CFR 273.11(j)
households to designate the DAA-center
if the State has obtained the appropriate
establish special procedures for
as their authorized representative for the
waivers from FNS to do so. The
determining the income and resources
purpose of receiving allotments on
amounts transacted through the POS are
of sponsored aliens. Sponsored aliens
behalf of the households. We are
deposited into the authorized retailer's
are individuals lawfully admitted to the
proposing that this change be included
bank account. The households' EBT
United States for permanent residence.
in new paragraph (e)(1) and that it
cards may be transacted at the facility's
A sponsor is a person who executed an
would only apply with regard to
POS either by the household or a
affidavit of support on behalf of an alien
obtaining and using benefits on behalf
representative of the DAA. An amount
as one of the conditions required for the
of the household. The current regulatory
per meal, per day, per week or the full
alien's entry into the United States. The
requirement in paragraph (e)(1) that
allotment may be transacted at one time.
current rules require that a portion of
households residing in treatment
All POS devices must have refund
the gross income and resources of the
centers must apply and be certified
capabilities. Therefore, if the DAA has
sponsor and the sponsor's spouse (if
through an authorized representative
a POS an amount could be refunded to
living with the sponsor) be deemed to
would continue to apply. We are
the household's account and debited
the sponsored alien for a period of 3
proposing that a reference to this section
from the DAA's daily settlement
years from the date of the sponsored
be added to new 7 CFR 273(g)(3)(i) as
amount.
alien's entry into the country as a:
contained in this proposed action which
Other State EBT systems allow the
lawfully admitted permanent resident
concerns authorized representative for
State agency to transfer, via computer
alien. Under Section 5(i) of the Food
other households.
terminal, the allotments of individual
Stamp Act, the income of the sponsor
Paragraph (e)(5)(i) of current rules
households into a single account for the
and the sponsor's spouse (if living with
provides that if a resident leaves the
DAA. The DAA is given its own EBT
the sponsor) is the total annual income
DAA center, the center must provide the
card which it can use at authorized food
reduced by the income eligibility
household with its full allotment if the
stores. When a household leaves the
standard for a household equal in size
allotment has been issued and no
facility and this is properly reported, the
to the sponsor's household and deeming
portion of the allotment has been spent
State can transfer benefits from the DAA
continues for only 3 years. The Act also
by the center on behalf of the
aggregated account back to the
requires that $1,500 be subtracted from
household. If a resident household
individual household account. States
the resources of the sponsor and the
leaves the center prior to the 16th of the
remain responsible for monitoring DAA
sponsor's spouse to be deemed to the
month and a portion of the allotment
facilities. EBT systems help the State in
alien.
has already been spent by the center on
monitoring because States may review
Section 421 of PRWORA, as modified
behalf of the household, the center must
the DAA records showing when clients
by the OCAA and the Balanced Budget
provide the departing household with
leave the DAA and then review EBT
Act, contains several provisions which
one-half of its monthly allotment. If the
data to determine if benefits had been
revise the current requirements. First,
household leaves the center on or after
properly returned to the client's EBT
section 421(a)(1) provides that,
the 16th of the month, the household is
account.
notwithstanding any other provision of
not be entitled to any portion of the
We do not intend to endorse a single
law, the income and resources of the
allotment. The center must return any
EBT design, but any design or State
alien must be deemed to include all of
10890
Federal Register / Vol. 65, No. Tuesday, February 29, Proposed Rules
the income and resources of any person
substantial connection to the need for
for a household equal in size to the
who executed an affidavit of support
benefits. These provisions do not apply
sponsor's household. We would also
pursuant to section 423 of PRWORA
if the battered alien lives with the
remove the provision allowing use of
which is a legally binding affidavit.
batterer.
the income amount reported for AFDC
Section 421(a)(2) provides that the
Section 423, as amended by section
purposes in current paragraph (j)((2)(ii).
income and resources of the spouse (if
551(a) of the OCAA, provides that the
We would remove the provision of
any) of the person executing the
sponsored alien provisions in PRWORA
paragraph (j)(2)(iv) which limits the
affidavit are to be deemed to the alien.
apply to aliens who are sponsored
deemed amount of the sponsors'
Section 421(b) provides that the
under a new legally binding affidavit of
resources to those in excess of $1,500
deeming must continue until the alien
support. It also requires that if a
because PRWORA requires deeming all
becomes a citizen or has worked 40
sponsored alien has received any
of the sponsors' resources. With the
qualifying quarters of coverage as
benefits under a means-tested public
removal of these provisions, current
defined under title II of the Social
benefit program, the State agency must
paragraphs (j)(2)(iii) regarding money
Security Act or can be credited with
request reimbursement by the sponsor
paid to the alien by the sponsor and
such qualifying quarters. Any quarter
in the amount of such assistance. If
(j)(2)(iv) requiring that the income and
creditable for a period beginning after
within 45 days after requesting
resources of the sponsor be divided
December 31, 1996, cannot be credited
reimbursement, the sponsor has not
among the number of aliens sponsored
if the alien received any Federal means-
indicated a willingness to commence
by that sponsor would be retained and
tested public benefit during the quarter.
payment, legal action may be brought
be designated as paragraphs (j)(2)(i) and
Section 403 includes a list of types of
against the sponsor pursuant to the
(j)(2)(ii), respectively. Current paragraph
assistance exempt from the prohibition
affidavit of support. The Department of
(j)(2)(vii) which provides specific
against allowing a quarter of work credit
Justice (DOJ) published an interim rule
procedures for handling changes in
for a quarter in which an alien received
with request for comments on the new
sponsors would not be included in this
any means-tested public benefit. This
affidavits of support and reimbursement
proposal in order to provide State
list of exempt assistance is addressed in
provisions in the Federal Register on
agency flexibility. We believe that the
the discussion of alien eligibility
October 20, 1997 (62 FR 54346). The
State agency is in the best position to
requirements above.
rule is effective on December 19, 1997,
make these decisions. Requirements
The income and resources of
and the new affidavits of support should
contained elsewhere in current
ineligible sponsored aliens would
be used for all aliens who become
regulations for reporting and acting on
include the income and resources of the
sponsored after that date.
changes that affect a household's
sponsor and would be counted in
We propose to revise 7 CFR 273.11(j)
eligibility or benefit levels are already
determining the eligibility and benefits
to incorporate PRWORA, OCAA, and
comprehensive and we believe there is
of the rest of the household, in
Balanced Budget Act provisions and to
no additional Federal interest to be
accordance with 7 CFR 273.11(c).
streamline the section by increasing
protected by providing specific
Section 552 of OCAA amends section
State agency flexibility and removing
procedures for this particular kind of
421 of PRWORA to provide two
redundant requirements. The following
change.
exceptions to the requirement that all of
revisions are proposed:
3. Current paragraph (j)(3) exempts
the income and resources of the
1. Paragraph (j)(1) would be revised to
the following aliens from the deeming
sponsor(s) and sponsor's spouse be
add a reference to section 213A of the
provisions: aliens whose sponsor is
deemed to the sponsored alien. For
INA, which contains requirements for
participating in the Food Stamp
indigent aliens deeming is limited to the
the affidavit of support. We would
Program in the same household as the
amount actually provided by the
incorporate the definition of "sponsor"
sponsored alien or in a separate
sponsor to the alien for a period
in the definition of "sponsored alien"
household, aliens who are sponsored by
beginning on the date of such
and remove the definitions of "Date of
a group as opposed to an individual,
determination and ending 12 months
entry" and "Date of admission" because
and aliens not required to have
after such date. The Department
those terms are no longer relevant to the
sponsors. We propose to delete the
proposes that the State agency establish
new deeming requirements.
exemption for aliens whose sponsor is
criteria for determining when an alien is
2. The introductory text of current
participating in the Food Stamp
unable to obtain food and shelter
paragraph (j)(2) would be revised to
Program in a separate household from
considering all income and assistance
incorporate the requirement of
the sponsored alien. We propose to
provided by individuals and thus
PRWORA that all of the sponsor's
retain the exemption for sponsored
should be considered indigent. The
income and resources be counted in
aliens who are included in the same
agency must notify the Attorney General
determining the eligibility and benefits
household as the sponsor so that the
of each such determination, including
of the sponsored alien and that deeming
sponsor's income and resources will not
the names of the sponsor and the
lasts until the alien becomes a citizen or
be double counted. We propose to add
sponsored alien involved. Deeming is
can be credited with 40 qualifying
exemptions for indigent aliens and
eliminated for 12 months for battered
quarters of coverage. The current
certain battered aliens and the child of
alien spouses and children and parents
provision in paragraph (j)(2)(v) requiring
a battered alien as provided in the
of battered children if the benefit
that the income and resources of both
OCAA and the Balanced Budget Act and
provider determines that the battering is
the sponsor and sponsor's spouse be
to require reporting to Attorney General
substantially connected to the need for
counted in determining eligibility
of each indigent determination.
benefits. Section 5571 of the Balanced
would be removed. We would remove
4. We would retain the provisions of
Budget Act includes the alien child of
the provisions of current regulations in
current paragraph (j)(4) concerning the
a battered parent in this provision.
paragraph (j)(2)(i)(A) allowing a 20
sponsored alien's responsibility for
Deeming of the batterer's income and
percent deduction from the sponsor's
obtaining the cooperation of the sponsor
resources is eliminated after 12 months
earned income and paragraph (j)(2)(i)(B)
and providing information about the
if the battery is: (1) Recognized by a
allowing a deduction for an amount
sponsor to the State agency.
court or the Immigration and
equal to the Food Stamp Program's
5. We would not include the
Naturalization Service; and (2) has a
monthly gross income eligibility limit
provisions of current paragraph (j)(5)
Federal Register 65, No. /Tuesday, February 29, Proposed Rules
10891
which lists specific responsibilities of
which the notice of adverse action
affect in the month following the month
the State agency for processing cases
period expires.
in which the notice expires. unless the
involving households with sponsored
Pursuant to current regulations at 7
household has requested a continuation
aliens. We believe that these
CFR 273.13(a)(1), the NOAA is
of benefits pending the outcome of a fair
requirements are unnecessary because
considered timely if the advance notice
hearing.
the State agency is aware of the
period conforms to that period of time
Recertification-7 CFR 273.14
information about the sponsor that must
defined by the State agency as an
be obtained and there is no need to
adequate notice for its public assistance
We would propose amendments to 7
provide detailed regulatory
caseload, provided that the notice
CFR 273.14 to conform the
requirements.
period includes at least 10 days from the
recertification application process to the
6. We would renumber current
date the notice is mailed to the date
changes made pursuant to PRWORA
paragraph (j)(6) concerning procedures
upon which the action becomes
relative to the initial application process
for acting on a household's application
effective. At the time the regulations
(discussed earlier in this preamble).
pending receipt of verification about the
were written, the adequate notice period
More specifically, we would:
sponsor's income and resources as
for public assistance cases in most
1. Remove the second sentence of
paragraph (j)(5). We would not include
States was 10-15 days. With the
paragraph (b)(1)(ii) which provides that
the last sentence of current paragraph
increased flexibility under PRWORA for
a model notice of expiration (NOE) is
(j)(6) in the new paragraph (j)(5). That
State agencies to make changes in
available from FNS. FNS will no longer
sentence requires State agencies to assist
public assistance procedures, we
be developing model forms.
aliens in obtaining verification in
anticipate that many States may make
2. Remove paragraph (b)(1)(iii), which
significant changes in the NOAA
encourages State agencies to send a
accordance with the provisions of
procedures for public assistance. Such
recertification form, interview
current 7 CFR 273.2(f)(5). In accordance
with amendments made by PRWORA
changes could result in shorter or longer
appointment letter, and statement of
discussed above, the requirement to
NOAA periods. Current regulations
required verification with the NOE.
restrict using public assistance NOAA
Since this was only a recommendation,
assist households in obtaining
periods which are less than 10 days
it is not necessary.
verification is being removed from the
from the date the notice is issued, but
3. Revise paragraph (b)(2)(i) to remove
regulations.
7. We propose to remove current
do not limit using public assistance
those statements which provide that a
paragraph (j)(7) requiring the
notice periods which may be
new application form must be obtained,
Department to enter into a
unnecessarily lengthy. The purpose of
that the application can be the same as
Memorandum of Agreement between
the current provision is to provide due
that used at initial certification or a
the Department and other Federal
process for households by establishing a
special recertification form, and that the
set period of time for household to
forms must be approved by FNS. Under
agencies as this is a Federal
request a fair hearing and continuation
PRWORA, as discussed earlier, these
responsibility, and it is addressed by
of benefits while awaiting the hearing
procedures are no longer required. We
DOJ's interim rule published on October
decision. We do not believe it is
would also remove, as unnecessary or
20, 1997, (62 FR 54346).
appropriate to have a lengthy time
overly prescriptive; those statements
8. We also propose to remove the
period for households to request a fair
regarding the use and/or approval of
provisions of current paragraph (j)(8)
hearing and continuation of benefits. In
joint applications for PA, GA and/or SSI
concerning overissuances which may
addition, longer NOAA periods have the
households and the use of
result from the use of incorrect sponsor
potential to increase Program costs.
recertification forms for monthly
information. Section 423(e) of PRWORA
In order to ensure that food stamp
reporting and nonmonthly reporting
requires State agencies to request
households have adequate time to reply
households. The proposal would
reimbursement from sponsors for food
to a NOAA and request a fair hearing
provide: (a) That the recertification
stamps issued to sponsored aliens. State
and continuation of benefits while
process must only be used for those
agencies shall follow the collection
limiting the potential for increased
households applying for recertification
procedures prescribed in INS
Program costs, we are proposing to
prior to the end of the current
regulations at 8 CFR 213a.4. Amounts
change the regulations at 7 CFR 273.13
certification period; (b) that the State
collected shall be transmitted to FNS.
to clarify that the NOAA period must be
agency must, at a minimum, obtain
Notice of Adverse Action-7 CFR
a set period of time. Most State agencies
sufficient information that, when added
currently have a notice period of 10-18
to information already contained in the
273.13
days for household's to respond. There
casefile, will ensure an accurate
We are also taking this opportunity to
is nothing in our current records to
determination of eligibility; (c) that the
clarify what is meant by a Notice of
indicate that this time span has caused
method of obtaining and recording
Adverse Action (NOAA) period. Current.
problems for either households or State
information from the applicant
rules at 7 CFR 273.13(a) require a State
agencies. We propose to amend 7 CFR
household must be established by the
agency to provide a household timely
273.13(a)(1) to clarify that the NOAA is
State agency and may include a
and adequate advance notice before
considered timely if the advance notice
specially designed recertification
taking any action to reduce or terminate
period conforms to that period of time
application or the State agency may
a household's benefits, unless exempt
defined by the State agency as an
choose to simply annotate changes since
from these requirements pursuant to 7
adequate notice for its public assistance
the last certification on an existing
CFR 273.13(b). This procedure allows
caseload, provided that the notice
application; (d) that the State agency
households an opportunity to request a
period is a set period of time which is
must issue a notice of required
fair hearing and continuation of benefits
no less than 10 days and no more than
verification, which would provide a
until the matter is settled by hearing
18 days from the date the notice is
clear written statement of the acts a
officials. If the household does not
mailed to the date the notice period
household must perform to cooperate
request a continuation of benefits, the
expires. We are not proposing any
with the application process, identify
adverse action is effective no later than
change to current regulations which
potential sources of verification, and
the month following the month in
provide that the adverse action take
offer assistance to special needs
10892
Federal Register / 65, No. / Tuesday, February 29, 2000 Proposed Rules
households; and (e) that a new
Section 839 of PRWORA amended
signature, whether handwritten or
authority. The Department is addressing
Section 11(e)(10) of the Food Stamp Act
electronic, be obtained from the
the limit on benefit losses in rulemaking
to specify that, "at the option of a State,
because of its particular impact on
applicant at the time of each
at any time prior to a fair hearing
households.
recertification.
determination under this paragraph, a
4. Remove the provision of paragraph
household may withdraw, orally or in
Definitions-§ 273.25(a)
(b)(2)(ii) that State agencies may request
writing, a request by the household for
For purposes of this section, the
the household to bring the
the fair hearing. If the withdrawal
following definitions are proposed:
recertification form to the interview or
request is an oral request, the State
1. Simplified Food Stamp Program
return it by a specified date because it
agency shall provide a written notice to
(SFSP) means a program authorized
is unnecessary.
the household confirming the
under 7 U.S.C. 2035.
5. Revise (b)(3)(i) regarding
withdrawal request and providing the
2. Temporary Assistance for Needy
interviews. State agencies would only
household with an opportunity to
Families (TANF) means assistance from
be required to have a face-to-face
request a hearing."
a State program funded under part A of
interview once every 12 months. We
We are proposing to implement
title IV of the Social Security Act (42
would add a new sentence to clarify that
Section 839 by revising 273.15(j) to
U.S.C. 601 et seq.).
if a telephone interview is conducted,
specify that State agencies may accept
3. Pure-TANF household means a
the State agency must mail the
an expression (orally or in writing) to
household in which all members receive
application to the household to obtain
withdraw a fair hearing request from the
assistance under a State program funded
the necessary signature.
household. State agencies electing to
under part A of title IV of the Social
6. Remove the second sentence of
accept oral withdrawals of the fair
Security Act (42 U.S.C. 601 et seq.).
paragraph (b)(3)(ii), which requires the
hearing request must, as required by
4. Mixed-TANF household means a
State agency to conduct an annual face-
Section 11(e)(10), provide the
household in which 1 or more members,
to-face interview at the same time as the
household with a written notice
but not all members, receive assistance
PA or GA interview. PRWORA
confirming the withdrawal.
under a State program funded under
eliminated the requirement for a single
Simplified Food Stamp Program-7
part A of title IV of the Social Security
food stamp/PA interview.
CFR 273.25
Act (42 U.S.C. 601 et seq.).
7. Remove the first two sentences of
paragraph (b)(3)(iii). The provisions
The PRWORA provides State agencies
Benefit Reduction for Mixed-TANF
regarding interview scheduling are
with a number of options to align the
Households Under the Simplified Food
rules and procedures between the TANF
Stamp Program-$ 273.25(b)
unnecessary. We propose to retain the
requirement that the State agency
program and the Food Stamp Program
Under the regular Food Stamp
schedule interviews so that the
(FSP). One such option available is the
Program (FSP), certain deductions have
Simplified Food Stamp Program (SFSP).
ensured that households receive the
household has at least 10 days to
provide the required verification before
Under a SFSP, States may determine
appropriate level of food assistance to
food stamp benefit levels for households
meet basic nutritional needs. The
the certification period expires.
8. Remove the second sentence of
receiving TANF by using food stamp
Department wishes to maintain benefit
requirements, TANF rules and
levels under a SFSP so that mixed-
paragraph (b)(4) regarding the notice of
procedures, or a combination of the two.
TANF households continue to be able to
required verification because the notice
Since the purpose of an SFSP is to
meet their nutritional needs.
is no longer required. We propose to
simplify program requirements for State
add the phrase "and benefits cannot be
At the same time, the Department
agencies as well as for applicants and
supports the objectives for
prorated" to the last sentence for
recipients by aligning TANF and FSP
clarification.
simplification. In establishing approval
rules and procedures, the Department
criteria for mixed-TANF households,
9. Revise and simplify the language in
recognizes that over-regulating the SFSP
the Department considered requiring a
current paragraph (e) regarding delays
is contrary to the goals of simplification.
medical deduction and/or standard
in application processing but retain the
As a result, the Department is
deduction for mixed-TANF households.
current State agency options.
publishing regulations on the area of the
As the Department's overall objective is
Fair Hearings-7 CFR 273.15
statute where the Department has
to ensure benefits are not reduced
explicit authority to establish program
Under Section 11(e)(10) of the Food
beyond a certain point for these
rules. Except where discretion is
Stamp Act (7 U.S.C. 2020(e)(10)) and
households, it was felt that requiring
provided, the Department believes the
specific deductions was too
current rules at 7 CFR 273.15(a), the
statutory language governing the SFSP
State agency must provide a fair hearing
prescriptive. The Department, therefore,
provides sufficient guidance for State
is proposing to limit benefit reductions
to any household adversely affected by
agencies choosing to implement such
any action of the State agency which
and provide States with flexibility in
programs.
deciding the best mechanism for
affects the participation of the
Legislation governing the Simplified
household in the FSP. The current rules
achieving the desired results.
Food Stamp Program (SFSP) at 7 U.S.C.
In formulating a threshold for benefit
at 7 CFR 273.15(j) further specify that
2035(c)(3) provides the Department with
reduction for mixed-TANF households,
the State agency may not deny or
authority to establish criteria for
the Department considered criterion
dismiss a request for a hearing unless:
approving participation in SFSPs for
(1) the request is not received within the
used under demonstration authority
households in which at least one, but
which stipulates that projects reducing
allowable time period specified in the
not all members, receive assistance
benefits by more than 20 percent for
rules; (2) the request is withdrawn in
under a State program funded under
writing by the household or its
more than 5 percent of participating
part A of title IV of the Social Security
households cannot include more than
representative; or (3) the household or
Act (42 U.S.C. 601 et seq.). This
15 percent of the State's total caseload.
its representative fails, without good
rulemaking establishes criteria for limits
The Department, however, rejected this
cause to appear at the scheduled
on benefit losses that the Department
criterion for the SFSP due to several
hearing.
will implement under this discretionary
major differences between
Federal Register 65, No. Tuesday, February 29, Proposed Rules
10893
demonstration projects and SFSPs.
benefit reduction requirement). In other
benefit reductions compared to the
Demonstration projects are time-limited.
words, the Department is proposing a 3-
benefit amount the household would
Consequently, any benefit reductions
tier standard to limit benefit loss in
receive under the regular FSP. In order
experienced by households
which: 1) there is no limit on the
for FNS to accurately evaluate the
participating in these projects last only
number of participating mixed-TANF
program's impact, States must describe
for the duration of the project. SFSPs,
households that can have benefit
in detail the methodology used as the
however, have no time-limit. Any
reductions of 9.99 percent or less of the
basis for this analysis. If it is determined
benefit reductions under an SFSP are
amount they are eligible to receive
by FNS that a SFSP will reduce benefits
permanent unless the SFSP is
under the regular FSP; 2) no more than
for mixed-TANF households beyond the
terminated or the household loses
5 percent of participating mixed-TANF
5/10/25 benefit reduction requirement
eligibility for the SFSP. Demonstration
households can have benefits reduced
excluding reductions of $10 or less, the
projects also require a research
between 10 and 24.99 percent of the
plan will not be approved for these
evaluation which provides an
amount they are eligible to receive
households. To ensure compliance with
opportunity to determine its effects and
under the regular FSP, and 3) no mixed-
the benefit reduction requirement once
make changes in program design based
TANF household can have benefits
an SFSP is operational, States must
on these findings. SFSPs have no
reduced by 25 percent or more of the
describe in their plans and have.
comparable evaluation requirements
amount it is eligible to receive under the
approved by FNS a methodology for
that would provide information
regular FSP. Under this criterion, FNS
measuring benefit reductions for mixed-
necessary to determine any long-term
does not limit the number of households
TANF households on an on-going basis
nutritional gains or losses a household
experiencing a loss of benefits until the
throughout the duration of the SFSP. In
may experience under an SFSP. Finally,
reduction reaches the 10 percent level.
addition, States must report periodically
a methodology similar to that used for
In addition, the Department believes
to FNS the amount of benefit loss
demonstration projects which allow
that benefit reductions of 25 percent or
experienced by mixed-TANF
large benefit reductions for a small
more would significantly impair a
households participating in the State's
percentage of households has the
household's nutritional security, and is
SFSP. The frequency of the reports will
potential to create inequities in its
therefore prohibiting reductions of this
be determined by FNS taking into
application. Under demonstration
magnitude.
consideration such factors as the
project authority for example, a State
Since minor reductions in monthly
number of mixed-TANF households
would be allowed to operate a project
allotments that are relatively small
participating in the SFSP and the
with benefit reductions of 50 percent for
could result in changes exceeding the
amount of benefit loss attributed to
4 percent of its food stamp caseload;
requisite threshold, the Department is
these households through initial or on-
however, another State would be
proposing to disregard benefit
going analyses. If it is determined that
prohibited from operating a project in
reductions of $10 or less from this
an approved SFSP is reducing benefits
which benefits are reduced by 21
requirement. For example, an $8
beyond the allowable thresholds, the
percent for 6 percent of its caseload. It
reduction to a $40 monthly allotment
State will need to modify its SFSP to
can be argued that the second situation
would not be considered when applying
bring it into compliance.
is far less severe than the first in terms
the 5/10/25 percent benefit reduction
of impact on households although the
requirement even though benefits are
Part 274-Issuance and Use of Coupons
second situation could not be approved.
reduced by 20 percent.
Mail Issuance-7 CFR 274.2
In determining the extent of benefit
Prior to the enactment of PRWORA,
Since benefits under the regular FSP
reduction beyond the regular FSP, the
Section 11(e)(25) of the Food Stamp Act
are based on the Thrifty Food Plan
Department will take into consideration
(7 U.S.C. 2020(e)(25)) required State
which is the least costly of several food
the program options that are available to
agencies to issue food stamp benefits
plans developed by the Department that
States and any administrative waivers
through a mail issuance system in rural
meet nutritional dietary standards, any
approved for a State. For example,
areas where households experience
reductions, regardless of how small,
consider when a State uses the
transportation difficulties in obtaining
limit a household's access to a
legislative option to reduce food stamp
benefits. Current rules at 7 CFR 274.2(g)
nutritious, healthy diet. The
benefits under the regular FSP by 25
specify the requirements that State
Department, however, wishes to balance
percent when a household member fails
agencies must meet in determining the
this concern with the needs of States for
to comply with a TANF requirement.
rural areas in need of mail issuance. The
flexibility in program design while
The State then requests to use its TANF
regulations at 7 CFR 272.2(g) also
ensuring compliance with legislative
procedures under an SFSP to impose a
require State agencies to submit an
requirements that SFSPs do not increase
30 percent reduction in benefits for the
attachment to the State Plan of
costs to the Federal government. As a
same violation. In determining the
Operation describing mail issuance
result, the Department is proposing
amount of benefit loss under the State's
requirements.
criterion for approving mixed-TANF
simplified proposal, FNS would
Section 835 of PRWORA deleted
households that it believes will achieve
consider the 25 percent reduction that is
direct-mail issuance requirements.
the appropriate balance between these
already allowable under the regular
To implement this provision, we are
priorities. If a State's SFSP reduces
FSP. Consequently, the State's proposal
proposing to remove the mandatory
benefits for mixed-TANF households,
is considered to reduce benefits beyond
mail issuance requirements from State
then no more than 5 percent of these
the regular FSP by 5 percent (the
plan requirements at 7 CFR
participating households can have
difference between 30 and 25 percent)
272.2(d)(1)(xi) and 7 CFR 274.2(g)(1)
benefits reduced by 10 percent or more
rather than 30 percent.
and (g)(2). This proposal would retain,
of the amount they are eligible to
If a State chooses to include mixed-
however, the basic provisions at 7 CFR
receive under the regular FSP and no
TANF households in its SFSP, the State
274.2(g) requiring State agencies to issue
mixed-TANF household can have
must include in its plan an analysis
food stamp benefits through a direct
benefits reduced by 25 percent or more
showing the impact of the SFSP on
mail issuance system in rural areas
of the amount it is eligible to receive
benefit levels for these participating
where households experience
under the regular FSP (5/10/25 percent
households and the amount of any
transportation difficulties in obtaining
10894
Federal Register / 65, No. 40 Tuesday, February 29, 2000 / Proposed Rules
benefits. These provisions would apply
about how to make the plan approval
22, 1996 and no later than
unless an EBT system is in place. Under
process more efficient. We would also
recertification for recipients.
this proposal, the State agency would
welcome comments on how to
Section 827 of PRWORA, which
determine the rural areas which are in
encourage additional State agencies to
requires proration of benefits after any
need of direct mail issuance.
prepare Program informational plans.
break in certification, was effective on
Furthermore, in areas where direct mail
Implementation
August 22, 1996, and required to be
issuance would continue, the State
implemented at recertification of
agency would determine if any
The provisions of PRWORA, as
affected households. Section 847 of
households or geographic areas would
amended by the Balanced Budget Act,
PRWORA, which prohibits Federal
be granted an exception. Finally, we are
were effective and required to be
reimbursement for recruitment activities
proposing to eliminate State plan
implemented by State agencies on the
requirements at 7 CFR 272.2(d)(1)(xi)
date of enactment of PRWORA (August
was effective on August 22, 1996.
although exceptions to direct mail
22, 1996) for new applicants and no
Sections 801, 809, 812, 818, 828, 830,
issuance would be reported to FNS as
later than the next recertification for
835, 836, 839, 840, and 848 of PRWORA
specified at 7 CFR 272.3(a)(2) and (b)(2).
recipients, unless otherwise noted.
were effective on August 22, 1996 but
Therefore, we propose that the effective
have no required implementation date
7 CFR 272.3(a)(2) and 7 CFR 272.3(b)(2)
date and required implementation date
because they allow, but do not require,
require State agencies to prepare and
provide staff with Operating Guidelines
for sections 402, 807, 808 and 811 of
action by the State agency.
and to submit their operating guidelines
PRWORA would be August 22, 1996 for
Sections 503 through 509 of AREERA
to FNS.
new applicants and no later than
are effective on November 1, 1998.
We believe retaining this basic
recertification for recipients. Section
Accordingly, we propose to
requirement would ensure that benefits
402 of PRWORA, as amended by section
incorporate into the final rule, at 7 CFR.
are provided to all eligible households
510 of the OCAA, specified that the
272.1(g), the effective dates and
in a fair and timely manner as required
alien eligibility requirements cannot
implementation dates as discussed in
by Section 835 of PRWORA. Once
apply until April 1, 1997, to an alien
the previous paragraphs of this section
implemented, EBT will replace the need
who received benefits on August 22,
of the preamble. The provisions of the
for mail issuance. More than 70 percent
1996, unless the alien is ineligible for
final rule are proposed to be effective 60
of food stamp benefits are currently
another reason. State agencies were
days after publication and must be
issued through an EBT system and, by
required to recertify all aliens between
implemented no later than 180 days
law, EBT must be implemented in all
April 1 and August 22, 1997.
after publication. The provisions would
Section 551 of the OCAA amended
States nationwide by 2002.
have to be implemented no later than
section 423 of PRWORA to provide that
the required implementation date for all
Part 277-Payments of Certain
the sponsored alien provisions of
households newly applying for Program
Administrative Costs of State Agencies
section 421 of PRWORA apply to new
benefits on or after the required
Funding for Program Informational
legally binding affidavits of support
executed on or after a date specified by
implementation date. The current
Activities-7 CFR 277.4
caseload would be required to be
the Attorney General. The Attorney
converted no later than the next
Section 11(e)(1) of the Food Stamp
General issued a notice in the Federal
Act and the regulations at 7 CFR
Register on October 20, 1997 setting this
recertification following the
272.5(c) allow State agencies, at their
date as December 19, 1997. The
implementation date. Any variances
option, to conduct activities designed to
Attorney General determined the
would be excluded from quality control
inform low-income households about
PRWORA's legally binding affidavit of
analysis in accordance with 7 CFR
the availability, eligibility requirements,
support requirement would not apply to
275.12(d)(2)(vii) and 7 U.S.C.
application procedures, and benefits of
an alien who had, prior to December 19,
2025(c)(3)(A). We would allow a second
the FSP. States electing to conduct
1997: (1) applied for admission (via
variance exclusion period under 7 CFR
Program informational activities must
application for either an immigrant visa
275.12(d)(2)(vii) for States which first
obtain FNS approval as specified in the
or adjustment of status); and (2) had an
implement option 1 under proposed 7
current rules at 7 CFR 272.2(d)(1)(ix).
official interview with either a consular
CFR 273.11(c)(3)(ii), and then decide at
State agencies with approval from FNS
or immigration officer (62 FR 54346,
a later date to implement option 2.
are reimbursed at the 50 percent rate
54347.) Therefore, the proposed
List of Subjects
under Section 16(a) of the Food Stamp
provisions in 7 CFR 273.11(j) of this
action apply only to sponsored aliens
7 CFR Part 272
Act (7 U.S. C. 2025(a)) and 7 CFR Part
277 of the corresponding regulations.
who had an official interview with a
Alaska, Civil rights, Claims, Food and
Section 847 of PRWORA amended
consular or immigration official on or
Nutrition Service, Food stamps, Grant
Section 16(a)(4) of the Food Stamp Act
after December 19, 1997, and whose
programs-social programs, Reporting
to specify that Federal reimbursement
sponsors signed an affidavit of support
and recordkeeping requirements,
funding not include "recruitment
on or after December 19, 1997.
Unemployment compensation, Wages.
activities." We are proposing to
The provision of section 809 of
implement Section 847 of PRWORA by
PRWORA allowing a shelter deduction
List of Subjects
amending 7 CFR 277.4(b) to prohibit
for homeless households was effective
7 CFR Part 273
Federal reimbursement for recruitment
August 22, 1996. There is no required
activities. State agencies seeking
implementation date because the
Administrative practice and
reimbursement from FNS for Program
deduction is a State option. However,
procedure, Aliens, Claims, Employment,
informational and educational activities
section 809 removed the provision of
Food and Nutrition Service, Food
would continue to be required to
section 11(e) of the Act requiring use of
stamps, Fraud, Government employees,
provide a plan to FNS as specified at 7
a standard shelter estimate for homeless
Grant programs-social programs, Income
CFR 272.2(d)(1)(ix). However, we are
households. Therefore, State agencies
taxes, Reporting and recordkeeping
interested in receiving comments about
were required to discontinue use of the
requirements, Students, Supplemental
the usefulness of this plan and ideas
estimate for new applicants on August
Security Income, Wages.
Federal Register Vol. 65, No. Tuesday, February 29, 2000 / Proposed Rules
10895
7 CFR 274
The revisions read as follows:
in paragraph (a)(1) of this section must
Food and Nutrition Service, Food
be included in an attachment to the
$272.5 Program informational activities.
stamps, Fraud, Grant program-social
State Plan of Operation as required in
programs, Reporting and recordkeeping
272.2(d). This document must include
requirements.
(b) Minimum requirements.
a description of procedures used and
(1) FNS shall encourage State agencies
agreements with the other agencies and
7 CFR Part 277
to develop Nutrition Education Plans as
programs specified in paragraph (a) of
Administrative practice and
specified at 7 CFR 272.2(d)(2) to inform
this section. The State agency shall
procedure, Food stamps, Fraud, Grant
applicant and participant households
submit revisions to the attachment if
programs-social programs, Penalties.
about the importance of a nutritious diet
and when changes to the procedures
Accordingly, 7 CFR Parts 272, 273,
and the relationship between diet and
used or agreements with other agencies
274, and 277 are proposed to be
health.
or programs occur.
amended as follows:
*****
(f) Documentation. The State agency
1. The authority citation for Parts 272,
6. In § 272.8:
shall document, as required by
273, 274, and 277 continues to read as
a. Paragraph (a)(1) introductory text is
272.2(f)(6), information obtained
follows:
amended by removing the word "shall"
through the IEVS both when an adverse
Authority: 7 U.S.C. 2011-2036.
in the first, second, and third sentences,
action is and is not instituted.
and adding the word "may" in its place;
PART 272-REQUIREMENTS FOR
b. Paragraph (a)(1) introductory text is
§272.11 [Amended]
PARTICIPATING STATE AGENCIES
further amended by revising the last
7. In § 272.11:
sentence;
a. Paragraph (a) is amended by
$272.2 [Amended]
C. Paragraph (a)(2) introductory text is
removing the word, "shall" and adding
2. In 272.2:
amended by removing the word "shall"
the word "may" in its place;
a. Paragraph (a)(2) is amended by
in the first sentence, and adding the
b. Paragraph (b)(2)(iii) is amended by
removing the thirteenth sentence; and
b. Paragraph (d)(1)(xi) is removed and
word "may" in its place;
removing the words "as outlined in
d. Paragraph (a)(2)(i) is revised;
paragraph (d)(1) of this section,";
paragraph (d)(1)(xii) is redesignated as
e. Paragraph (a)(4) is revised;
C. Paragraph (d)(1) and the heading of
paragraph (d)(1)(xi).
f. Paragraph (a)(5) is removed;
paragraph (d)(2) are removed, and the
$272.3 [Amended]
g. Paragraphs (b), (d), (e), (f), and (j)
text of paragraph (d)(2) is redesignated
3. In § 272.3:
are removed, and paragraphs (c), (g), (h),
as the text of paragraph (d);
a. In paragraph (b)(1), the words
and (i) are redesignated as paragraphs
d. The text of newly redesignated
except the Application for Food
(b), (c), (d), and (e), respectively;
paragraph (d) is amended by removing
Stamps," and the last sentence of the
h. Newly redesignated paragraphs (b)
the words "as described in paragraph
and (e) are revised; and
(d)(1) of this section"; and
paragraph are removed; and
e. Paragraph (e)(2) is removed, and
b. Paragraph (c)(5) is removed, and
i. A new paragraph (f) is added.
paragraphs (c)(6) and (c)(7) are
The addition and revisions read as
paragraph (e)(1) is redesignated as the
follows:
text of paragraph (e).
redesignated as paragraphs (c)(5) and
(c)(6), respectively.
$272.8 State Income and eligibility
PART 273-CERTIFICATION OF
4. In 272.4:
verification system.
ELIGIBLE HOUSEHOLDS
a. Paragraph (d) is removed:
b. Paragraphs (e), (f), (g), and (h) are
(4) Agreements.
$273.1 [Amended]
(a) General. (1)
* * *
redesignated as paragraphs (d), (e), (f),
Data exchange
8. In § 273.1, paragraph (f) is removed
and (g) respectively; and
agencies, at a minimum, are:
and paragraph (g) is redesignated as
C. Newly redesignated paragraph (f) is
paragraph (f).
revised to read as follows:
(2)
9. In $ 273.2, the section heading and
(i) Temporary Assistance to Needy
paragraphs (a) through (j) are revised to
§ 272.4 Program administration and
Families;
read as follows:
personnel requirements.
§ 273.2 Office operations and application
(f) Hours of operation. State agencies
(4) Prior to requesting or exchanging
processing.
are responsible for setting the hours of
information with other agencies, State
(a) Office operations. State agencies
operation for their food stamp offices. In
agencies shall execute data exchange
must establish procedures governing the
doing so, State agencies shall take into
agreements with those agencies. The
operation of food stamp offices that the
account the special needs of the
agreements shall specify the information
to be exchanged and the procedures
State agency determines best serve
populations they serve including
which will be used in the exchange of
households in the State, including
households containing a working
households with special needs, such as,
information. These agreements shall be
person.
but not limited to, households with
part of the State agency's Plan of
****.
elderly or disabled members,
Operation.
5. In § 272.5:
households in rural areas with low-
*****
a. Paragraph (b)(1)(i) is redesignated
income members, homeless individuals,
as the text of paragraph (b)(1) and
(b) Alternate data sources. A State
households residing on reservations,
revised;
agency may continue to use income
and households in areas in which a
b. Paragraphs (b)(1)(ii) and (b)(1)(iii)
information from an alternate source or
substantial number of members of low-
are removed;
sources to meet any requirement under
income households speak a language
C. Paragraphs (b)(2) and (b)(3) are
paragraph (a) of this section.
other than English, and households with
redesignated as (b)(3) and (b)(4)
****.
earned income (working households).
respectively; and
(e) State Plan of Operation. The data
The State agency must provide timely,
d. Paragraph (b)(1)(iv) is redesignated
exchange agreements conducted by the
accurate, and fair service to applicants
as paragraph (b)(2).
State agency with data sources specified
for, and participants in, the Food Stamp
10896
Federal Register Vol. 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
Program. The State agency cannot, as a
(A) Notification that the Civil Rights
(3) Jointly processed cases. If a State
condition of eligibility, impose
Act of 1964 allows for the collection of
agency has a procedure that allows
additional application or application
racial and ethnic data in connection
applicants to apply for the food stamp
processing requirements. The State
with the Food Stamp Program (as
program and another program at the
agency must have a procedure for
required by § 272.6(g) of this chapter),
same time, the State agency shall notify
informing persons who wish to apply
that the information is voluntary and
applicants that they may file a joint
for food stamps about the application
only serves to help us comply with the
application for more than one program
process and their rights and
Civil Rights Act, and that it will not
or they may file a separate application
responsibilities. The State agency shall
affect whether the application is
for food stamps independent of their
base food stamp eligibility solely on the
approved.
application for benefits from any other
criteria contained in the Act and the
(B) Notification that information
program. All food stamp applications,
regulations.
available through the IEVS will be
regardless of whether they are joint
(b) Application processing. The
requested, used and may be verified
applications or separate applications,
application process must include filing
through collateral contact when
must be processed for food stamp
and completing an application, being
discrepancies are found by the State
purposes in accordance with food stamp
interviewed, and providing verification
agency and that such information may
procedural, timeliness, notice, and fair
of certain information.
affect the household's eligibility and
hearing requirements. No household
(1) Application design. The State
level of benefits. This applies only to
shall have its food stamp benefits
agency, in the development of its food
State agencies which opt to use IEVS.
denied solely on the basis that its
stamp application, may use an
(C) Notification that the alien status of
application to participate in another
electronic format and electronic
any household member may be subject
program has been denied or its benefits
signature. The design and format of the
to verification by INS through the
under another program have been
application are the State agency's
submission of information from the
terminated without a separate
responsibility. The State agency may
applicant to INS. The resulting
determination by the State agency that
information received from INS may
the household failed to satisfy a food
design a separate application for food
stamps or include the necessary food
affect the alien's eligibility. This
stamp eligibility requirement.
statement is required even if a State
Households that file a joint application
stamp information in a multi-program
application designed by the State
agency opts not to use INS' SAVE
for food stamps and another program
and are denied benefits for the other
agency.
system for this and other purposes
(2) Application contents. The State
pursuant to the Privacy Act.
program shall not be required to
agency's application must include the
(D) Notification of the following facts
resubmit the joint application or to file
another application for food stamps but
following:
through a written statement on or
shall have its food stamp eligibility
(i) All information necessary to
provided with the application and any
determined based on the joint
comply with the Act and the
other document where social security
application in accordance with the food
regulations. Notifications to households
numbers are obtained.
stamp processing time frames from the
may be included on the application
(1) The Food Stamp Act requires the
date the joint application was initially
itself or a separate document;
collection of social security numbers
accepted by the State agency.
(ii) The following nondiscrimination
(SSN) as a condition of food stamp
(c) Filing an application.
statement must appear on the
eligibility and failure to provide a SSN
(1) Filing process. An adult member of
application itself even if a joint program
may result in the household member
the household, or an authorized
application is being used.
who fails to provide a SSN being
representative as provided in paragraph
"The U.S. Department of Agriculture
ineligible to receive food stamps;
(g) of this section, must sign the
(USDA) prohibits discrimination in all
(2) Collection of the information is
application and submit it to the food
its programs and activities on the basis
authorized under 42 U.S.C. 2000 and 7
stamp office. An adult representative of
of race, color, sex, religion, national
USC 2011-2036; and
each applicant household must certify
origin, or political beliefs. Persons with
(3) A statement of how the social
in writing, under penalty of perjury, that
disabilities who require alternative
security number will be used and to
the information contained in the
means for communication of program
whom it may be disclosed. The SSN
application is true and that all members
information (Braille, large print,
will be used to check the identity of
of the household are citizens or are
audiotape, etc.) should contact USDA's
household members, to prevent
eligible aliens. The application may be
TARGET Center at (202) 720-2600
duplicate participation and to make
submitted in person, by fax or other
(voice and TDD).
mass food stamps changes. It will also
electronic transmission, by mail, or by
"To file a complaint of
be used to check information provided
completing an on-line electronic
discrimination, write to USDA, Director,
by the household against information in
application in person at the food stamp
Office of Civil Rights, Room 326-W,
food stamp records and against other
office. The household may file an
Whitten Building, 14th and
Federal, state and local government
incomplete application as long as it
Independence Avenue, SW,
agency computer matching systems.
contains the applicant's name and
Washington, D.C. 20250-9410 or call
This could mean that employers, banks
address, and is signed by an adult
(202) 720-5964 (voice and TDD). USDA
and other parties may be contacted.
member of the household or the
is an equal opportunity provider and
SSNs may be disclosed to auditors to
household's authorized representative.
employer."
assure that cases are properly certified
Applications signed through the use of
(iii) Written notifications required by
and to the Internal Revenue Service for
electronic signature techniques or
other Federal laws, such as, but not
the purpose of collecting food stamp
applications containing a handwritten
limited to those in paragraphs
claims through tax refund offset. SSNs
signature and then transmitted by fax or
(b)(2)(iii)(A) through (b)(2) (iii)(D). The
may be released to a court, magistrate,
other electronic transmission are
notifications may be on the application
or administrative tribunal when
acceptable.
itself or provided with the application
required in civil or criminal
(2) Household's right to file. State
on a separate document.
proceedings.
agencies shall post signs or make
Federal Register/Vol. 65, No. 40 Tuesday, February 29, Proposed Rules
10897
available other advisory materials
to cooperate in obtaining verification
cooperate with a quality control
explaining a person's right to file an
and otherwise completing the
reviewer, the household may reapply,
application on the day of their first
application process, and identifying
but cannot be determined eligible until
contact with the food stamp office and
potential sources of required
it cooperates with the quality control
explaining the application processing
verification. The notice must also
reviewer. If a household which was
procedures. State agencies shall notify
inform special needs households of the
terminated for refusal to cooperate with
all persons who contact a food stamp
State agency's responsibility to assist
a State quality control review reapplies
office and either request food assistance
the household in obtaining required
after 90 days from the end of the annual
or express financial and other
verification, provided the household is
review period, the household cannot be
circumstances which indicate a
cooperating with the State agency as
determined ineligible for the refusal to
probable need for food assistance, of
specified in paragraph (d)(1) of this
cooperate with a State quality control
their right to file an application and
section. Such households include, but
reviewer during the completed review
encourage them to do so. For purposes
are not limited to, households with
period, but must provide verification in
of this paragraph (c)(2), encourage
elderly or disabled members,
accordance with paragraph (f)(1)(xii) of
means that State agencies have a
households in rural areas with low-
this section. If a household terminated
responsibility, at a minimum, to inform
income members, homeless individuals,
for refusal to cooperate with a Federal
individuals who express an interest in
households residing on reservations,
quality control reviewer reapplies after
food assistance, or express concerns
and households in areas in which a
seven months from the end of the
which indicate food insecurity, about
substantial number of members of low-
annual review period, the household
the Food Stamp Program and their right
income households speak a language
cannot be determined ineligible for its
to apply. The State agency shall make
other than English.
refusal to cooperate with a Federal
food stamp applications readily
(d) Household cooperation.
quality control reviewer during the
accessible to all potentially eligible
(1) Cooperation with application
completed review period, but must
households and to anyone who requests
processing. If the household refuses to
provide verification in accordance with
one. The State agency shall provide an
cooperate with the State agency in
paragraph (f)(1)(xii) of this section.
application in person or by mail to
completing the food stamp application
(e) Interviews.
anyone who requests one. If a
process, the State agency shall deny the
household requests to receive an
application at the time of refusal. For a
(1) Face-to-face interview. Except for
application through the mail, the State
determination of refusal to be made, the
households certified for longer than 12
agency must mail the application by the
household must be able to cooperate,
months, households must have a face-
next business day. Households must be
but clearly demonstrate that it will not
to-face interview with an eligibility
worker at initial certification and at
allowed to file an application on the
take the necessary actions that are
required to complete the application
least once every 12 months thereafter. If
same day the household or its
a household in which all adult members
authorized representative contacts the
process. If there is any question as to
are elderly or disabled is certified for 24
State agency food stamp office in person
whether the household has merely
months in accordance with
or by telephone during office hours and
failed to cooperate, as opposed to
expresses interest in obtaining food
refused to cooperate, the household
§ 273.10(f)(1), or a household residing
stamp assistance. The State agency may
cannot be denied. The household must
on a reservation is required to submit
also be determined ineligible if it
monthly reports and is certified for 24
require households to file an application
at a specific certification office or allow
refuses to cooperate in any subsequent
months in accordance with
them to file an application at any
interview or review of its case,
§ 273.10(f)(2), a face-to-face interview is
certification office within the State or
including interviews or reviews
not required during the certification
generated by reported changes or
period. Interviews may be conducted at
project area. If an application is received
discrepancies discovered by the State
the food stamp office or another
at an incorrect office, the State agency
shall advise the household when the
agency during the certification period,
mutually convenient location of the
application is received of the address
interviews at the time of application for
State agency's choosing, including a
and telephone number of the correct
recertification, and quality control
household's residence. The individual
office and shall forward the application
reviews. The scheduling of in-office
interviewed may be the head of
for the household not later than the next
interviews to resolve discrepancies
household, spouse, any other
business day.
reported or discovered during a
responsible member of the household,
(3) Withdrawing an application. A
household's certification period must be
or an authorized representative. The
household may voluntarily withdraw its
limited to those situations in which the
applicant may bring any person he or
application at any time prior to the
State agency has new information
she chooses to the interview. The
determination of eligibility. The State
indicating a potential intentional
interviewer shall not simply review the
agency shall document in the case file
Program violation situation. Refusal to
information that appears on the
the reason for withdrawal, if any was
appear for such an interview would
application, but shall explore and
stated by the household, and that
result in termination of the case. In all
resolve with the household unclear and
contact was made with the household to
cases, where the State agency
incomplete information. The applicant's
confirm the withdrawal. The State
determines that benefits will be reduced
right to privacy must be protected
agency shall notify the household of its
or terminated, households are entitled
during the interview. The interview may
right to reapply for food stamp benefits
to a notice of adverse action, unless
be conducted separately or jointly with
at any time after it withdraws its current
exempt, pursuant to the provisions of
an interview for other types of
application.
§ 273.13.
assistance programs for which the
(4) Notice of required verification. The
(2) Quality control review. The
household has applied. If the interview
State agency must provide each
household must be determined
will be conducted in a household's
applicant household, at the time of
ineligible if it refuses to cooperate in
residence, it must be scheduled in
application for certification and
any subsequent review of its eligibility
advance with the household. Interviews
recertification, a clear written statement
as part of a quality control review. If a
should be scheduled so as to allow the
explaining what the household must do
household is terminated for refusal to
household at least 10 days to provide
10898
Federal Register 65, No. Tuesday, February 29, /Proposed Rules
requested verification before the end of
benefits to an otherwise eligible
number of qualifying quarters that can
the 30-day processing period.
household solely to verify the SSN of a
be credited is under investigation, the
(2) Waivers of the face-to-face
household member. If an individual is
individual may be certified pending the
interview. The State agency shall waive
unable to provide an SSN or does not
results of the investigation for up to 6
the face-to-face interview required in
have an SSN, the State agency must
months from the date of the original
paragraph (e)(1) of this section in favor
follow the procedures in § 273.6. Newly
determination of insufficient quarters.
of a telephone interview on a case-by-
obtained SSNs must be verified at
(v)
case basis because of household
recertification.
(A) Verification of a person's
hardship situations as determined by
(iv) Alien eligibility. The immigration
disability must be obtained.
the State agency. The State agency shall
status of aliens must be verified. The
(B) To determine if a disabled person
document the case file to show when a
Department of Justice (DOJ) Interim
qualifies as a separate household under
waiver was granted because of a
Guidance On Verification of
273.1(a)(2)(ii), the State agency must
hardship. The State agency may opt to
Citizenship, Qualified Alien Status and
use the most recent list of disabilities
waive the face-to-face interview in favor
Eligibility Under Title IV of the Personal
issued by SSA to determine if a
of a telephone interview for all
Responsibility and Work Opportunity
disability is considered permanent
households which have no earned
Reconciliation Act of 1996 (Interim
under the Social Security Act. If the
income and all members of the
Guidance) (62 FR 61344, November 17,
disability is on the list, the State agency
household are elderly or disabled.
1998) contains information on
must determine if the person is unable
Regardless of any approved waivers, the
acceptable documents and INS codes.
to purchase and prepare meals because
State agency must grant a face-to-face
State agencies should use the Interim
of such disability. If the person suffers
interview to any household which
Guidance until DOJ publishes a final
from a nondisease-related severe,
requests one. The State agency has the
rule on this issue. Thereafter, State
permanent physical or mental disability
option of conducting a telephone
agencies should consult both the
that is not on SSA's list, and it is
interview or a home visit that is
Interim Guidance and the DOJ final rule.
obvious to the caseworker that the
scheduled in advance with the
Where the Interim Guidance and the
person is unable to purchase and
household if the office interview is
DOJ final rule conflict, the latter should
prepare meals because of the disability,
waived.
control the alien eligibility
no verification is required. If it is not
(f) Verification. Verification is the use
determination. As provided in § 273.4
obvious to the caseworker, the
of documentation or a contact with a
the following information may also be
caseworker must require a statement
third party to confirm the accuracy of
relevant to the eligibility of some aliens:
from a physician or licensed or certified
statements or information. The State
date of admission or date status was
psychologist certifying that the
agency must give households at least 10
granted; military connection; battered
individual is unable to purchase and
days to provide required verification.
status; if the alien was lawfully residing
prepare meals because the individual
Paragraph (i)(4) of this section contains
in the United States on August 22, 1996;
suffers from one of the disabilities on
verification procedures for expedited
membership in certain Indian tribes; if
the SSA list or other nondisease-related,
service cases.
the person was age 65 or older on
severe, permanent physical or mental
(1) Mandatory verification. Prior to
August 22, 1996; if a lawful permanent
disability. The elderly and disabled
initial certification, State agencies must
resident can be credited with 40
individual (or his or her authorized
verify the following information:
qualifying quarters of covered work and
representative) is responsible for
(i) Identity. The identity of the person
if any Federal means-tested public
obtaining the cooperation of the
making application must be verified.
benefits were received in any quarter
individuals with whom he or she
Where an authorized representative
after December 31, 1996; or if the alien
resides in providing the necessary
applies on behalf of a household, the
was a member of certain Hmong or
income information about the others for
identity of both the authorized
Highland Laotian tribes during a certain
purposes of this provision.
representative and the head of
period of time or is the spouse or
(vi) Gross nonexempt income. Gross
household must be verified.
unmarried dependent of such a person.
nonexempt income must be verified.
(ii) Residency. The household's
If applicable to the alien's eligibility,
However, where all attempts to verify
residency must be verified except where
these factors must also be verified. An
the income have been unsuccessful
verification of residency cannot
alien is ineligible until acceptable
because the person or organization
reasonably be accomplished (such as
documentation is provided unless:
providing the income has failed to
residency for homeless households,
(A) The State agency has submitted a
cooperate with the household and the
some migrant farmworkers, and
copy of a document provided by the
State agency, and all other sources of
households who have recently moved to
household to INS for verification.
verification are unavailable, the
the area).
Pending such verification, the State
eligibility worker must determine an
(iii) Social security numbers. Except
agency cannot delay, deny, reduce or
amount to be used for certification
for TANF and SSI categorically eligible
terminate the individual's eligibility for
purposes based on the best available
households described in paragraph (j) of
benefits on the basis of the individual's
information.
this section, the State agency must
immigration status.
(vii) Medical expenses. The amount of
verify social security numbers (SSN)
(B) The applicant or the State agency
medical expenses (including the amount
reported by households by submitting
has submitted a request to SSA for
of reimbursements) deductible under
them to the Social Security
information regarding the number of
§ 273.9(d)(3) must be verified.
Administration (SSA) for verification
quarters of work that can be credited to
Verification of other factors, such as
according to procedures established by
the individual, SSA has responded that
whether an expense is deductible or
SSA. The State agency may accept as
the individual has fewer than 40
entitlement of the person incurring the
verified an SSN that has been verified
quarters, and the individual provides
cost to the medical deduction, is
by another program participating in the
documentation from SSA that SSA is
required if questionable.
IEVS described in § 272.8 of this
conducting an investigation to
(viii) Legal obligation and actual child
chapter. The State agency cannot delay
determine if more quarters can be
support payments. The household's
the certification for or issuance of
credited. If SSA indicates that the
legal obligation to pay child support, the
Federal Register/\ 65, No. /Tuesday, February 29, 1000/Proposed Rules
10899
amount of the obligation, and the
DOJ Interim Guidance. After DOJ issues
from a source other than the household
monthly amount of child support the
final rules, State agencies should
contradicts statements made by the
household actually pays must be
consult both the Interim Guidance and
household, the household must be
verified.
the final rule. Where the Interim
afforded a reasonable opportunity to
(ix) Shelter costs for homeless
Guidance and the DOJ final rule
resolve the discrepancy prior to a
households. Homeless households
conflict, the latter should control the
determination of eligibility or benefits.
claiming shelter expenses must provide
eligibility determination. The State
If unverified information is obtained
verification of their shelter expenses to
agency must accept participation in
through the IEVS, as specified in § 272.8
qualify for the homeless shelter
another program as acceptable
of this chapter, the State agency must
deduction if the State agency has such
verification if verification of citizenship
follow the procedures in paragraph
a deduction.
was obtained for that program. The
(f)(8)(iv) of this section.
(x) Utility expenses. The household
member whose citizenship is in
(5) Responsibility for obtaining
must provide verification of utility
question is ineligible to participate until
verification. The household has primary
expenses (for its current home and an
the issue is resolved.
responsibility for providing
unoccupied home) claimed in excess of
(3) State agency options. In addition
documentary evidence to support
the standard allowance if the expenses
to the verification required in
statements on the application, reported
would actually result in a deduction
paragraphs (f)(1) and (f)(2) of this
changes in household circumstances,
and the State agency does not mandate
section, the State agency may elect to
and statements provided at
the use of utility standards.
mandate verification of any other factor
recertification and to resolve any
(xi) Unverified expenses. If required
which affects household eligibility or
questionable information. Households
verification of an allowable expense
allotment level. Such mandatory
may supply verification in person,
cannot be obtained within the 30-day
verification policy must be applied to
through the mail, facsimile or other
processing time, the State agency must
all households on a Statewide basis or
electronic device, or through an
advise the household that its eligibility
throughout a project area and cannot be
authorized representative. State
and benefit level will be determined
selectively imposed on a case-by-case
agencies shall not require households to
without allowing the unverified
basis. The optional verification does not
present verification in person at the
expense. If the household's actual utility
apply in those offices of the SSA which,
food stamp office, except as provided in
expenses cannot be verified within the
in accordance with paragraph (k) of this
paragraph (d)(1) of this section. The
30-day processing time, the State agency
section, provide for the food stamp
State agency shall accept any reasonable
must use the standard utility allowance,
certification of households containing
documentary evidence provided by the
provided the household is entitled to
recipients of Supplemental Security
household.
use the standard as specified in
Income (SSI) and social security
(6) Documentation. The State agency
§ 273.9(d).
benefits. However, the State agency may
must document the case file to support
(xii) Refusal to cooperate with QC
negotiate with those SSA offices with
eligibility, ineligibility, and benefit level
reviewer. State agencies must verify all
regard to mandating verification of these
determinations. Documentation must be
factors of eligibility for households
options.
in sufficient detail to permit a reviewer
which have been terminated for refusal
(4) Sources of verification. State
to determine the reasonableness and
to cooperate with a State quality control
agencies must establish their own
accuracy of the determination. The State
reviewer and which reapply after 90
standards for sources of verification,
agency may store records electronically.
days from the end of the annual review
subject to the provisions of this
(7) Verification subsequent to initial
period. State agencies must verify all
paragraph (f)(4). Such standards shall
certification. Information required to be
factors of eligibility for households who
emphasize determining the adequacy of
verified in paragraphs (f)(1), (f)(2) and
have been terminated for refusal to
the documentary evidence the
(f)(3) of this section must be verified
cooperate with a Federal quality control
household provides to support the
again when changes are reported during
reviewer and reapply after seven
statement on the application. State
the certification period or at
months from the end of the annual
agencies shall not limit households to
recertification which would affect
review period.
one specific form of verification, if other
eligibility or the benefit level and when
(2) Verification of questionable
documents can equally prove its
unchanged information becomes
information.
statements. Home visits may be used as
questionable.
(i) Prior to certification, the State
verification only when documentary
(8) Optional use of IEVS.
agency must verify all factors that could
evidence is insufficient to make a firm
(i) The State agency may obtain
affect the household's eligibility and
determination of eligibility or benefit
information through IEVS in accordance
benefit level, including household
level, or cannot be obtained, and the
with procedures specified in § 272.8 of
composition, if they are questionable.
home visit is scheduled in advance with
this chapter and use it to verify the
The State agency must establish
the household. State agencies may use
eligibility and benefit levels of
guidelines to be followed in
a collateral contact, that is, oral
applicants and participating
determining what will be considered
confirmation of a household's
households.
questionable information. These
circumstances by a person outside of the
(ii) The State agency must take action,
guidelines cannot prescribe verification
household, as verification. The
including proper notices to households,
based on race, religion, ethnic
collateral contact may be made either in
to terminate, deny, or reduce benefits
background, or national origin; and they
person or over the telephone. The State
based on information obtained through
cannot target groups such as migrant
agency may select a collateral contact if
IEVS which is considered verified upon
farm workers or Native Americans for
the household fails to designate one or
receipt. Information considered verified
more intensive verification under this
designates one which is unacceptable to
upon receipt is social security, SSI,
paragraph (f)(2)(i).
the State agency, but shall first apprise
TANF, and Unemployment Insurance
(ii) If a member's citizenship is
the household of the selection and
Benefits (UIB) information obtained
questionable, the teagency must
afford the household an opportunity to
from the agencies administering those
verify the member's citizenship in
verify the information using alternate
programs. If the information about a
accordance with attachment 4 of the
means. Where unverified information
particular household is questionable,
10900
Federal Register / Vol. 65, No. 40 Tuesday, February 29, / Proposed Rules
the information is considered unverified
household, to terminate, deny or reduce
homes must apply and be certified
upon receipt, and the State agency must
benefits.
through the use of authorized
take action as specified in paragraph
(iv) The use of SAVE must be
representatives in accordance with
(f)(8)(iii) of this section.
documented in the casefile or other
§ 273.11(e) and § 273.11(f).
(iii) Except as noted in this paragraph
agency records. When the State agency
(2) Obtaining food stamp benefits. An
(f)(8)(iii), prior to taking action to
is waiting for a response from SAVE,
authorized representative may be
terminate, deny, or reduce benefits
agency records must contain either a
designated to obtain benefits, and the
based on information obtained through
notation showing the date of the State
designation should be done at the time
IEVS which is considered unverified
agency's transmission or a copy of the
of certification. Even if the household is
upon receipt or questionable, State
INS Form G-845 sent to INS. Once the
able to obtain benefits, it should be
agencies must independently verify the
SAVE response is received, agency
encouraged to name an authorized
information. Information that is
records must show documentation of
representative for obtaining benefits in
considered unverified upon receipt may
the ASVI Query Verification Number or
case of illness or other circumstances
include but is not limited to unearned
contain a copy of the INS-annotated
which might result in an inability to
income information from IRS, wage
Form G-845. Whenever the response
obtain benefits. The name of the
information from SSA and SWICAs, and
from automated access to the ASVI
authorized representative must be
questionable information. Except with
directs the eligibility worker to initiate
recorded in the household's case record
respect to unearned income information
secondary verification, agency records
and on the food stamp identification
from IRS, if a State agency has
must show documentation of the ASVI
(ID) card, as provided in § 274.10(a)(1)
information which indicates that
Query Verification Number and contain
of this chapter. The authorized
independent verification is not needed,
a copy of the INS Form G-845.
representative for obtaining benefits
such verification is not required.
(g) Authorized representatives.
may or may not be the same individual
(iv) Independent verification includes
Representatives may be authorized to
designated for application processing
verification of the amount of the
act on behalf a household in the
purposes. The State agency must
resources or income involved and when
application process, in obtaining food
develop a system by which a household
the household had the resources or
stamp benefits, and in using food stamp
may designate an emergency authorized
received the income. The State agency
benefits.
representative in accordance with
must obtain independent verification of
(1) Application process. When a
§ 274.10(c) of this chapter to obtain the
unverified information obtained from
responsible member of the household
household's benefits for a particular
IEVS by contacting the household or the
cannot complete the application
month.
appropriate income or resource source.
process, a nonhousehold member may
(3) Using benefits. A household may
If the State agency chooses to contact
be designated as the authorized
allow any household member or
the household, it must inform the
representative for application
nonmember to use its ID card and
household of the information which it
processing purposes. The household
benefits to purchase food or meals, if
has received and provide the household
member or the authorized representative
authorized, for the household. Drug or
with a reasonable opportunity to
may complete work registration forms
alcohol treatment centers and group
respond. If the household fails to
for those household members required
living arrangements which act as
respond in a timely manner (or when
to register for work. Except for those
authorized representatives for residents
the household or appropriate source
situations in which a drug and alcoholic
of the facilities must use food stamp
provides the independent verification),
treatment center or other group living
benefits for food prepared and served to
the State agency must properly notify
arrangement acts as the authorized
those residents participating in the Food
the household of the action it intends to
representative, the State agency must
Stamp Program (except when residents
take and provide the household with an
inform the household that the
leave the facility as provided in
opportunity to request a fair hearing
household will be held liable for any
§ 273.11(e) and (f)).
prior to any adverse action.
overissuance that results from erroneous
(4) Restrictions on designations of
(9) Optional Use of SAVE.
information given by the authorized
authorized representatives. The State
Households are required to submit
representative.
agency must restrict the use of
documents to verify the immigration
(i) A nonhousehold member may be
authorized representatives for purposes
status of aliens. State agencies that
designated as an authorized
of application processing and obtaining
verify the validity of such documents
representative for application
food stamp benefits as follows:
through the INS SAVE system in
processing purposes provided that the
(i) State agency employees who are
accordance with § 272.11 of this chapter
person is an adult who is sufficiently
involved in the certification or issuance
must use the following procedures.
aware of relevant household
processes and retailers who are
(i) The written consent of the alien is
circumstances and the authorized
authorized to accept food stamp benefits
not required for the State agency to
representative designation has been
may not act as authorized
contact INS to verify the validity of
made in writing by the head of the
representatives without the specific
documents the household presents.
household, the spouse, or another
written approval of a designated State
(ii) Pending resolution of
responsible member of the household.
agency official and only if that official
discrepancies between the Alien Status
Paragraph (g)(4) of this section contains
determines that no one else is available
Verification Index database and
further restrictions on who can be
to serve as an authorized representative.
information submitted by the
designated an authorized representative.
(ii) An individual disqualified for an
household, the State agency must not
(ii) In the event the only adult living
intentional Program violation cannot act
delay, deny, reduce, or terminate the
with a household is a nonhousehold
as an authorized representative during
alien's eligibility for benefits on the
member as defined in § 273.1(b), the
the disqualification period, unless the
basis of the individual's alien status.
adult may be the authorized
State agency has determined that no one
(iii) If the State agency determines
representative for the minor household
else is available to serve as an
that the alien is not in an eligible alien
member(s).
authorized representative. The State
status, the State agency must take
(iii) Residents of drug addict or
agency must separately determine
action, including proper notices to the
alcoholic treatment centers and group
whether the individual is needed to
Federal Register Vol. 65, No. 40 Tuesday, February 29, 2000 Proposed Rules
10901
apply on behalf of the household, or to
part, the State agency must either deny
(i) Households with less than $150 in
obtain benefits on behalf of the
the case or hold the case pending for an
monthly gross income, as computed in
household.
additional period of time. The State
273.10(e), provided their liquid
(iii) If a State agency has determined
agency may determine the length of the
resources do not exceed $100;
that an authorized representative has
application pending period, provided
(ii) Migrant or seasonal farmworker
knowingly provided false information
the period is not more than 2 months in
households who are destitute, as
about household circumstances or has
addition to the month of application. If
defined in § 273.10(e)(3), provided their
made improper use of coupons, it may
the household caused the delay, the
liquid resources do not exceed $100; or
disqualify that person from being an
State agency must provide benefits
(iii) Households whose combined
authorized representative for up to one
retroactive to the date the household
monthly gross income and liquid
year. The State agency must send
takes the required action.
resources are less than the household's
written notification to the affected
household(s) and the authorized
(3) Determining cause for delayed
monthly rent or mortgage and utilities
actions. The State agency must
(or utility standard in accordance with
representative 30 days prior to the date
determine the cause of a delay in
273.9(d)), or less than the homeless
of disqualification. The notification
processing using the following criteria:
shelter standard if the household is
must specify the reason for the proposed
(i) Delays that are the fault of the State
homeless.
action and the household's right to
agency include, but are not limited to,
(2) Identifying households needing
request a fair hearing. This provision is
the following:
expedited service. The State agency
not applicable in the case of drug and
alcoholic treatment centers and those
(A) Failure to explore and attempt to
shall screen all applications at the time
group homes which act as authorized
resolve with the household any unclear
they are filed to identify households
and incomplete information at the
entitled to expedited service and shall
representatives for their residents.
(iv) Homeless meal providers, as
interview;
document their evaluation.
defined in $ 271.2 of this chapter, may
(B) failure to inform the household of
(3) Processing time. Households
not act as authorized representatives for
the need for one or more members to
entitled to expedited service must have
register for work and failure to allow the
their cases processed in accordance
homeless food stamp recipients.
(v) In order to prevent abuse of the
members at least 10 days to complete
with the following provisions (except
program, the State agency may set a
work registration;
during periods of allotment reductions
limit on the number of households an
(C) Failure to provide the household
or suspensions as provided in
authorized representative may
with a statement of required verification
§ 271.7(e)(2) of this chapter).
represent.
and failure to allow the household at
(i) Benefit delivery. The State agency
(h) Normal processing.
least 10 days to provide the missing
must make benefits available to the
(1) Thirty-day standard. The State
verification; or
household in accordance with $ 274.2(b)
agency must provide eligible
(D) Failure to notify the household
of this chapter not later than the seventh
households that complete the initial
that it could reschedule a missed
calendar day following the date the
application process an opportunity to
interview appointment.
application was filed. If the State agency
participate (as defined in § 274.2(b) of
(ii) Delays that are the fault of the
elects to interview the household
this chapter) as soon as possible, but no
household include, but are not limited
outside of the office, the State agency
later than 30 calendar days following
to, the following:
must conduct the interview and make
the filing date. The filing date is the date
(A) Failure to cooperate with the State
benefits available not later than the
an application that contains the
agency in resolving any unclear or
seventh calendar day following the date
applicant's name and address and the
incomplete information provided at the
the application was filed (unless the
signature of a responsible member of the
interview;
household cannot be reached to
household or the household's
(B) Failure to register household
schedule the interview).
authorized representative is filed at the
members for work;
(ii) Telephone interviews. If the State
correct office. Day one of the 30-day
(C) Failure to provide missing
agency conducts a telephone interview
period is the day after the date an
verification; or
and mails the application to the
application is filed. When a resident of
(D) Failure to reschedule a missed
household for signature, the mailing
an institution jointly applies for SSI and
interview appointment.
time involved and the time during
which the household has the
food stamps prior to leaving the
(4) Combined allotments. At State
institution in accordance with
agency option, households which apply
application in its possession is not
§ 273.1(e)(2), the filing date is the date
after the 15th of the month may be
counted in the seven-day standard.
(iii) Late determinations. If the State
the applicant is released from the
issued a combined allotment which
institution. Households that are found
agency fails to identify a household as
includes prorated benefits for the month
to be ineligible must be sent a notice of
being entitled to expedited service at the
of application and full benefits for the
denial as soon as the decision is made
time the application is filed, but
next month provided that the month of
but no later than 30 days following the
subsequently discovers this, benefits
application is an initial month (as
must be made available to the
date of application.
described in § 273.10(a)), and the
household not later than the seventh
(2) Delayed actions. If the State
household has completed the
agency cannot act on an application
calendar day following the date the
application process within 30 days of
within 30 days because of a delay on its
State agency discovers the household is
the date of application and been
part, the State agency must continue to
entitled to expedited service.
determined eligible for those benefits.
(4) Special procedures. The State
process the case. If the State agency
The benefits must be issued in
determines that the household is
agency must use the following
accordance with § 274.2(c) of this
eligible, the household is entitled to
procedures for households entitled to
chapter.
expedited service.
benefits retroactive to the date of
(i) Expedited service.
(i) Verification.
application. If the State agency cannot
(1) Entitlement. The following
(A) Mandatory verification. Prior to
act on the application within 30 days
households are entitled to expedited
certification, the State agency must
because of a delay on the household's
service:
verify the identity of the person making
10902
Federal Register / Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
the application. All reasonable efforts
participation within the expedited
members, sponsored alien information,
must be made to verify residency,
service time frame. If necessary,
and residency are deemed to be
income (including, if appropriate, a
verification must be postponed to meet
acceptable without verification. A
statement that the household has no
the expedited time frame. The benefits
household is not categorically eligible if
income), and liquid resources within
must be issued in accordance with
any member of the household has been
the expedited processing time frame.
274.2(c) of this chapter.
disqualified for an intentional Program
State agencies may verify other factors
(6) Frequency. There is no limit to the
violation in accordance with $ 273.16 or
as well, but benefits cannot be delayed
number of times a household can be
the entire household has been
beyond the delivery standard prescribed
certified under expedited procedures as
disqualified from the Program for any
in paragraph (i)(3) of this section solely
long as, prior to each expedited
reason. All other food stamp eligibility
because eligibility factors other than
certification, the household either
criteria apply, including, but not limited
identity have not been verified.
completes the verification that was
to, the definition of a food stamp
(B) Postponed verification.
postponed at the last expedited
household in § 273.1, the ineligible
(1) If a household applies on or before
certification or was certified under
alien provisions in § 273.4, and the
the 15th of the month, any verification
normal processing standards since the
work requirements of $ 273.7. The
that was postponed must be submitted
last expedited certification. The
household must complete the food
prior to the second month's issuance. If
provisions of this section do not apply
stamp application process, cooperate in
a certification period of longer than one
at recertification if a household
providing necessary information for
month is assigned, the State agency
reapplies before the end of its current
food stamp purposes and submit
must issue the second month's benefits
certification period.
required reports.
within seven working days from receipt
(j) Categorical eligibility. Households
(i) Ineligible members. No person can
of the necessary verification but not
in which each member receives TANF
be included as an eligible member of a
before the first day of the second month.
or SSI benefits pursuant to the
categorically eligible household if that
(2) If a household applies after the
provisions of paragraph (j)(1) of this
person is one of the ineligible
15th of the month, verification that was
section, or receives certain GA benefits
household members listed in
postponed must be submitted prior to
pursuant to the provisions of paragraph
273.1(b)(2).
the third month's issuance. If a
(j)(2) of this section, are considered to be
(ii) Joint processing. Households that
certification period of longer than two
categorically eligible for food stamps
apply jointly for TANF or SSI and food
months is assigned, the State agency
based on their status as recipients of
stamp benefits and whose food stamp
must issue the third month's benefits
such benefits. For the purpose of the
within seven working days from receipt
provisions of paragraphs (j)(1) and (j)(2)
eligibility depends on their categorical
eligibility status must be issued benefits
of the necessary verification information
of this section, individuals are
from the beginning of the period for
but not before the first day of the third
considered recipients of TANF, SSI, or
which TANF or SSI benefits are paid or
month.
GA benefits if they are actually
(ii) Social security numbers.
the original food stamp application date,
receiving such benefits, they are
whichever is later. However, in
Households entitled to expedited
authorized to receive such benefits but
service must be asked to furnish or
accordance with § 273.1(e)(2), food
the actual payments have not been
apply for an SSN for each household
received, the benefits are suspended or
stamp benefits cannot be issued to
member prior to the second month's
recouped, or the benefits are not paid
residents of public institutions who
issuance, or if the State agency issues
because the grant is less than a
apply jointly for SSI and food stamp
combined allotments as provided in
minimum benefit level. Residents of
benefits prior to their release from the
institution.
paragraph (i)(5) of this section, prior to
institutions who are found by SSA to be
the third month's issuance. Those
potentially eligible for SSI are not
(2) GA households. Except as
household members who do not meet
considered categorically eligible until
specified in paragraph (j)(2)(ii) of this
this requirement must be allowed to
such time as a final SSI eligibility
section, households in which each
continue to participate if they satisfy the
determination has been made and they
member receives benefits from a State or
good cause requirements specified in
are released from the institution.
local GA program which meets the
§ 273.6(d): The household must provide
Individuals not receiving TANF, SSI, or
criteria in paragraph (j)(2)(i) of this
an SSN or proof of an application for an
GA benefits who are entitled to
section are categorically eligible.
SSN for a newborn within 6 months
Medicaid only are not considered
(i) Qualifying GA programs. The GA
after the month the baby is born.
categorically eligible. The food stamp
program must meet the criteria in
(iii) Work registration. With regard to
benefit level of categorically eligible
paragraph (j)(2)(i)(A) of this section or
the work registration requirements
households must be computed in
be certified by FNS in accordance with
specified in § 273.7, the State agency
accordance with food stamp procedures
paragraph (j)(2)(i)(B) of this section.
must, at a minimum, require the
contained in § 273.10.
(A) The program must:
applicant to register (unless exempt).
(1) TANF and SSI Households. Except
(1) Have income and resource
The State agency may attempt to register
as provided in this paragraph (j)(1),
standards which may be separate from
other members within the expedited
households in which each member
or included in the benefit computation
service time frame.
receives SSI or TANF benefits are
and which do not exceed the limits for
(5) Combined allotments. Households
considered categorically eligible to
income and resources of the Food
that apply for initial benefits (as
participate in the Food Stamp Program.
Stamp Program, TANF program, or SSI
described in § 273.10(a)) after the 15th
Categorical eligibility means that the
program. The rules for the GA program
of the month and are eligible to receive
household is eligible for food stamps
apply in determining countable income
benefits for the initial month and the
without regard to the amount of its
and resources for purposes of this
next month may, at the option of the
resources (whether or not it transferred
provision;
State agency, receive a combined
resources to become eligible) or the
(2) Provide GA benefits as defined in
allotment consisting of prorated benefits
amount of its gross and net income. In
§ 271.2 of this part; and
for the initial month of application and
addition, information regarding the
(3) Provide ongoing benefits which
benefits for the first full month of
social security numbers of household
are not limited to emergency assistance.
Federal Register / Vol. 65, No. 40 Tuesday, February 29, 2000 / Proposed Rules
10903
(B) If a GA program does not meet all
(C) Residency. The household's
older if the child was disabled and
of the criteria in paragraphs (j)(2)(i)(A)
residency is deemed to be acceptable.
dependent on the person prior to the
of this section, the State agency may
Verification is not needed.
child's 18th birthday; or
request certification of the program by
(D) Sponsored aliens. The sponsored
(5) An individual who is both a
FNS as one that is appropriate for
alien information is deemed to be
qualified alien as defined in paragraph
categorical eligibility. In requesting
acceptable. Verification is not needed.
(a)(5)(i) of this section and an eligible
certification, the State agency must
(vi) Zero benefit households. The
alien as defined in paragraph (a)(5)(ii) of
submit to the appropriate FNS regional
provision of § 273.10(e)(2)(iii)(A) which
this section.
office a description of the program
allows a State agency to deny the
(i) A qualified alien is:
containing, at a minimum, the type of
application of a household with three or
(A) An alien who is lawfully admitted
assistance provided, the income and
more members entitled to no benefits
for permanent residence under the
resource eligibility limits, and the
because its net income exceeds the level
Immigration and Nationality Act (INA);
period for which the GA is provided.
at which benefits are issued does not
(B) An alien who is granted asylum
(ii) Ineligible households. A
apply to categorically eligible
under section 208 of the INA;
household is not considered
households. All eligible households of
(C) A refugee who is admitted to the
categorically eligible if it:
one or two persons must be provided
United States under section 207 of the
(A) Refuses to cooperate in providing
the minimum benefit, as required by
INA;
to the State agency information that is
§ 273.10(e)(2)(ii)(C).
(D) An alien who is paroled into the
necessary for making a determination of
United States under section 212(d)(5) of
its eligibility or for completing any
10. In § 273.4:
the INA for a period of at least 1 year;
subsequent review of its eligibility, as
a. Paragraphs (a) and (c) are revised.
(E) An alien whose deportation is
described in paragraph (d) of this
b. Paragraphs (b) and (d) are removed,
being withheld under section 243(h) of
section or § 273.21(m)(l)(ii); or
and paragraph (e) is redesignated as
the INA as in effect prior to April 1,
(B) Is disqualified for failure to
paragraph (b).
1997, or whose removal is withheld
comply with a work requirement of
The revisions read as follows:
under section 241(b)(3) of the INA;
§ 273.7.
(F) An alien who is granted
(iii) Ineligible members. No person
§ 273.4 Citizenship and alien status.
conditional entry pursuant to section
can be included as an eligible member
(a) Household members meeting
203(a)(7) of the INA as in effect prior to
in any household which is otherwise
citizenship or alien status requirements.
April 1, 1980;
categorically eligible if that person is
No person is eligible to participate in
(G) An alien who has been battered or
one of the ineligible household
the Food Stamp Program unless that
subjected to extreme cruelty in the U.S.
members listed in § 273.1(b)(2).
person is:
by a spouse or a parent or by a member
(iv.) Verification requirements. In
(1) A U. S. citizen;
of the spouse or parent's family residing
(2) A U. S. alien national;
in the same household as the alien at the
determining whether a household is
(3) An individual who is:
time of the abuse, an alien whose child
categorically eligible, the State agency
(i) An American Indian born in
must verify that each member receives
has been battered or subjected to battery
PA or SSI benefits, or GA benefits from
Canada who possesses at least 50 per
or cruelty, or an alien child whose
centum of blood of the American Indian
a GA program that meets the criteria in
parent has been battered, provided the
race to whom the provisions of section
individual meets the requirements
paragraph (j)(2)(i) of this section; the
household has not been disqualified as
289 of the Immigration and Nationality
specified in Exhibit B to Attachment 5
Act (8 U.S.C. 1359) apply; or
provided in paragraph (j)(2)(ii); and no
of the DOJ Interim Guidance (or any
(ii) A member of an Indian tribe as
provision of a DOJ final rule
individuals have been disqualified as
defined in section 4(e) of the Indian
provided in paragraph (j)(2)(iii) of this
superseding Exhibit B to Attachment 5
Self-Determination and Education
of the Interim Guidance); or
section.
Assistance Act 5.U.S.C. 1359) which
(H) An alien who is a Cuban or
(v) Deemed eligibility factors. When
is recognized as eligible for the special
Haitian entrant, as defined in section
determining the eligibility for a
programs and services provided by the
501(e) of the Refugee Education
categorically eligible household, all
United States to Indians because of their
Assistance Act of 1980.
Food Stamp Program provisions apply
status as Indians;
(ii) A qualified alien, as defined in
except the following:
(4) An individual who is:
paragraph (a)(5)(i) of this section, must
(A) Resources. None of the provisions
(i) Lawfully residing in the United
also be at least one of the following to
of § 273.8 apply to categorically eligible
States and was a member of a Hmong or
be eligible to receive food stamps:
households except the second sentence
Highland Laotian tribe at the time that
(A) An alien lawfully admitted for
of § 273.8(a) pertaining to categorical
the tribe rendered assistance to United
permanent residence under the INA
eligibility and § 273.8(i) concerning
States personnel by taking part in a
who has worked 40 qualifying quarters
transfer of resources. The provisions in
military or rescue operation during the
as determined under title II of the Social
§ 273.10(b) regarding resources available
Vietnam eΓa beginning August 5, 1964
Security Act or can be credited with 40
at the time of the interview do not apply
and ending May 7, 1975;
quarters worked by a parent of the alien
to categorically eligible households.
(ii) The spouse, or surviving spouse of
before the alien became 18 and/or
(B) Gross and net income limits. None
such an individual who is deceased, or
quarters worked by a spouse of the alien
of the provisions of § 273.9(a) relating to
(iii) An unmarried dependent child of
during their marriage and they are still
income eligibility standards apply to
such Hmong or Highland Laotian who is
married or the spouse is deceased. After
categorically eligible households, except
under the age of 18 or if a full-time
December 31, 1996, a quarter in which
the fourth sentence pertaining to
student under the age of 22; an
the alien actually received any Federal
categorical eligibility. The provisions in
unmarried child of such a deceased
means-tested public benefit, as defined
§ 273.10(a)(10)(i) and § 273.10(c)
Hmong or Highland Laotian provided
by the agency providing the benefit, or
relating to the income eligibility
the child was dependent upon him or
actually received food stamps is not
determination also do not apply to
her at the time of his or her death; or
creditable toward the 40-quarter total.
categorically eligible households.
an unmarried disabled child age 18 or
Likewise, a parent or spouse's quarter is
10904
Federal Register Vol. 65, No. Tuesday, February 29, 2000 / Proposed Rules
not creditable if the parent or spouse
the veteran prior to the child's 18th
(3) Exempt aliens. The provisions of
actually received any Federal means-
birthday.
paragraph (c)(2) of this section do net
tested public benefit or actually
(H) An individual who on August 22,
apply to:
1996, was lawfully residing in the
(i) An alien who is a member of his
received food stamps in that quarter.
(B) An alien admitted as a refugee
United States, and is now receiving
or her sponsor's food stamp household;
under section 207 of the INA. Eligibility
benefits or assistance for blindness or
(ii) An alien who is sponsored by an
is limited to 7 years from the date of the
disability (as specified in § 271.2).
organization or group as opposed to an
(I) An individual who on August 22,
individual;
alien's entry into the United States.
1996, was lawfully residing in the
(iii) An alien who is not required to
(C) An alien granted asylum under
section 208 of the INA. Eligibility is
United States and was 65 years of age
have a sponsor under the Immigration
limited to 7 years from the date asylum
or older on that date; or
and Nationality Act, such as a refugee,
was granted.
(J) An individual who on August 22,
a parolee, an asylee, or a Cuban or
Haitian entrant;
(D) An alien whose deportation is
1996, was lawfully residing in the
(iv) An indigent alien that the State
withheld under section 243(h) of the
United States and is now under 18 years
agency has determined is unable to
INA as in effect prior to April 1, 1997,
of age.
obtain food and shelter taking into
or whose removal is withheld under
*
account the alien's own income plus
section 241(b)(3) or the INA. Eligibility
(c) Households containing sponsored
any cash, food, housing, or other
is limited to 7 years from the date
alien members.
assistance provided by other
deportation or removal was withheld.
(1) Definition. A sponsored alien is an
individuals, including the sponsor(s).
(E) An alien granted status as a Cuban
alien for whom a person (the sponsor)
The only amount that will be deemed to
or Haitian entrant (as defined in section
has executed an affidavit of support on
such an alien will be the amount
501(e) of the Refugee Education
behalf of the alien pursuant to section
actually provided for a period beginning
Assistance Act of 1980). Eligibility is
213A of the INA.
on the date of such determination and
limited to 7 years from the date the
(2) Deeming. For purposes of
ending 12 months after such date. The
status as a Cuban or Haitian entrant was
determining the eligibility and benefit
State agency must notify the Attorney
granted.
level of a household of which a
General of each such determination,
(F) An Amerasian, admitted pursuant
sponsored alien is a member, all of the
including the names of the sponsor and
to section 584 of Public Law 100-202,
income and resources of the sponsor
the sponsored alien involved;
as amended by Public Law 100-461.
and the sponsor's spouse, if living with
(v) A battered alien spouse, alien
Eligibility is limited to 7 years from the
the sponsor, must be deemed to be the
parent of a battered child, or child of a
date admitted as an Amerasian.
unearned income and resources of the
battered alien, for 12 months after the
(G) An alien with one of the following
sponsored alien. The income and
State agency determines that the
military connections:
resources must be deemed until the
battering is substantially connected to
(1) A veteran who was honorably
alien gains United States citizenship or
the need for benefits, provided such
discharged for reasons other than alien
has worked or can be credited with 40
individual meets the requirements
status, who fulfills the minimum active-
qualifying quarters of work as
specified in Exhibit B to Attachment 5
duty service requirements of 38 U.S.C.
determined under title II of the Social
of the DOJ Interim Guidance (or any
5303A(d), including an individual who
Security Act.
provision of a DOJ final rule
died in active military, naval or air
(i) The monthly income of the sponsor
superseding Exhibit B to Attachment 5
service. The definition of veteran
and sponsor's spouse deemed to be that
of the Interim Guidance) and the
includes an individual who served
of the alien must be the total monthly
battered individual does not live with
before July 1, 1946, in the organized
earned and unearned income, as defined
the batterer. After 12 months, the
military forces of the Government of the
in § 273.9(b) with the exclusions
batterer's income and resources will not
Commonwealth of the Philippines while
provided in § 273.9(c), of the sponsor
be deemed if the battery is recognized
such forces were in the service of the
and sponsor's spouse at the time the
by a court or the INS and has a
Armed Forces of the United States or in
household containing the sponsored
substantial connection to the need for
the Philippine Scouts, as described in
alien member applies or is recertified
benefits and the alien does not live with
38 U.S.C. 107;
for participation.
the batterer.
(2) An individual on active duty in
(ii) Money paid to the alien by the
(4) Sponsored alien's responsibilities.
the Armed Forces of the United States
sponsor or the sponsor's spouse will be
During the period the alien is subject to
(other than for training); or
considered as income to the alien only
deeming, the alien is responsible for
(3) The spouse and unmarried
to the extent that it exceeds the amount
obtaining the cooperation of the sponsor
dependent children of a person
deemed to the alien in accordance with
and for providing the State agency at the
described in paragraphs (a)(5)(ii)(G) (1)
paragraph (c)(2)(i) of this section.
time of application and at the time of
or (G)(2) of this section, including the
(iii) Resources of the sponsor and
recertification with the information and
spouse of a deceased veteran, provided
sponsor's spouse deemed to be that of
documentation necessary to calculate
the marriage fulfilled the requirements
the alien must be the total amount of
deemed income and resources in
of 38 U.S.C. 1304, and the spouse has
their resources as determined in
accordance with the paragraphs (c)(2)(i)
not remarried. An unmarried dependent
accordance with § 273.8.
through (c)(2) (iii) of this section. The
child for purposes of this provision is a
(iv) If a sponsored alien can
alien is responsible for providing the
child who is under the age of 18 or if
demonstrate to the State agency's
names and other identifying factors of
a full-time student under the age of 22;
satisfaction that his or her sponsor
other aliens for whom the alien's
an unmarried child of a deceased
sponsors other aliens, the income and
sponsor has signed an affidavit of
veteran provided the child was
resources deemed under the provisions
support. The entire amount of income
dependent upon the veteran at the time
of paragraphs (c)(2)(i) and (c)(2)(iii) of
and resources will be attributed to the
of the veteran's death; or an unmarried
this section must be divided by the
applicant alien until this information is
disabled child age 18 or older if the
number of such aliens that apply for or
provided. The alien is also to be
child was disabled and dependent on
are participating in the program.
responsible for reporting the required
Federal Register / Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
10905
information about the sponsor and
household's interest is relatively slight
excess fair market value and the
sponsor's spouse should the alien obtain
or the costs of selling the household's
countable equity value shall be counted
a different sponsor during the
interest would be relatively great. A
as a resource.
certification period and for reporting a
resource shall be SO identified if its sale
*
*
*
*
*
change in income should the sponsor or
or other disposition is unlikely to
12. In § 273.9:
the sponsor's spouse change or lose
produce any significant amount of funds
a. Paragraph (b)(1)(v) is revised.
employment or die during the
for the support of the household or the
b. Paragraph (b)(4) is revised.
certification period. Such changes will
cost of selling the resource would be
C. Paragraph (c)(1)(i)(E) is removed
be handled in accordance with the
relatively great. This provision does not
and paragraph (c)(1)(i)(F) is
timeliness standards described in
apply to financial instruments such as
redesignated as paragraph (c)(1)(i)(E).
§ 273.12.
stocks, bonds, and negotiable financial
d. Paragraphs (c)(1)(ii)(A) and
(5) Awaiting verification. Until the
instruments. The determination of
(c)(1)(ii)(E) are removed and paragraphs
alien provides information or
whether any part of the value of a
(c)(1)(ii)(B), (c)(1)(ii)(C), (c)(1)(ii)(D),
verification necessary to carry out the
vehicle is included as a resource shall
(c)(1)(ii)(F) and (c)(91)(ii)(G) are
provisions of paragraph (c)(2) of this
be made in accordance with the
redesignated as paragraphs (c)(1)(ii)(A),
section, the sponsored alien is
provisions of paragraph (h) of this
(c)(1)(ii)(B), (c)(1)(ii)(C), (c)(1)(ii)(D) and
ineligible. The eligibility of any
section. The State agency may require
(c)(1)(ii)(E), respectively.
remaining household members must be
verification of the value of a resource to
e. The first sentence of paragraph
determined. The income and resources
be excluded if the information provided
(c)(7) is amended by removing the
of the ineligible alien (excluding the
by the household is questionable. The
number "22" and adding the number
deemed income and resources of the
following definitions shall be used in
"18" in its place.
alien's sponsor and sponsor's spouse)
developing these standards:
f. A new sentence is added before the
must be considered available in
last sentence in paragraph (c)(8).
determining the eligibility and benefit
(h) Handling of licensed vehicles.
g. Paragraph (c)(11) is revised.
level of the remaining household
***
h. Paragraphs (d)(6), (d)(8) and (d)(9)
members in accordance with paragraph
(1)
are removed.
(c) of this section. If the sponsored alien
(vii) the value of the vehicle is
i. Paragraph (d)(5) is redesignated as
refuses to cooperate in providing
inaccessible, in accordance with
paragraph (d)(6) and paragraph (d)(7) is
information or verification, other adult
paragraph (e)(18) of this section,
redesignated as paragraph (d)(5).
members of the alien's household are
because its sale would produce an
j. Newly redesignated paragraph
responsible for providing the
estimated return of not more than one-
(d)(6)(i) is revised in its entirety.
information or verification required in
half of the applicable resource limit for
k. The heading and introductory text
accordance with the provisions of
the household.
of newly redesignated paragraph
273.2(d). If the information or
(d)(6)(ii) is revised.
*****
verification is subsequently received,
1. Newly redesignated paragraph
(6) In summary, each licensed vehicle
the State agency must act on the
(d)(6)(ii)(C) is revised.
shall be handled as follows: First, the
information as a reported change in
m. A new paragraph (d)(6)(iii) is
vehicle shall be evaluated under
added.
household membership in accordance
paragraph (h)(1) of this section to
The additions and revisions read as
with the timeliness standards in
determine if it is excludable from
follows:
273.12. If the same sponsor is
resources as an income producer, a
responsible for the entire household, the
home, necessary to transport a disabled
$273.9 Income and deductions.
entire household is ineligible until such
household member, necessary to carry
time as needed sponsor information or
fuel for heating or water for home use,
(b) Definition of income.
***
verification is provided.
or its value is inaccessible in accordance
(1)
***.**
with paragraph (e)(18) of this section.
(v) Earnings to individuals who are
11. In 273.8:
Any vehicle excluded under paragraph
participating in on-the-job training
a. Paragraphs (c)(3), (e)(18)
(h)(1) of this section shall be deemed to
programs under section 204(b)(1)(C) or
introductory text and (h)(6) are revised.
have no countable value as a resource
section 264(c)(1)(A) of the Workforce
b. A new paragraph (h)(1)(vii) is
affecting eligibility; thus, such a vehicle
Investment Act. This provision does not
added.
need not be evaluated further under
apply to household members under 19
The revisions and addition read as
either paragraph (h)(3) or paragraph
years of age who are under the parental
follows:
(h)(4) of this section. If not so excluded,
control of another adult member,
however, a vehicle shall be evaluated
regardless of school attendance and/or
§ 273.8 Resource eligibility standards.
under paragraph (h)(3) of this section to
enrollment as discussed in paragraph
*****
determine the amount, if any, by which
(c)(7) of this section. For the purpose of
(c) Definition of resources. ***
fair market value exceeds $4,650
this provision, earnings include monies
(3) For a household containing a
("excess fair market value"). The
paid by the Workforce Investment Act
sponsored alien, the resources of the
vehicle shall also be evaluated under
and monies paid by the employer.
sponsor and the sponsor's spouse shall
paragraph (h)(4) of this section to see if
*****
be deemed in accordance with
it is exempt from having its equity value
(4) For a household containing a
$273.4(c)(2).
assessed as the household's only vehicle
sponsored alien, the income of the
or as a second vehicle necessary for
sponsor and the sponsor's spouse shall
(e) Exclusions from resources.
***
employment reasons. If the vehicle is
be deemed in accordance with
(18) State agencies shall develop clear
equity exempt, the excess fair market
§ 273.4(c)(2).
and uniform standards for identifying
value shall be counted as a resource. If
*
kinds of resources that, as a practical
the vehicle is not equity exempt, the
(c) Income exclusions. ***
matter, the household is unable to sell
countable equity value shall be
(8) * * TANF payments made to
for any significant return because the
determined, and the greater of the
divert a family from becoming
10906
Federal Register Vol. 65, No. /Tuesday, February 29, 2000/Proposed Rules
dependent on welfare may be excluded
deduction cannot exceed the maximum
available to households that incur
as a nonrecurring lump-sum payment if
shelter deduction limit established for
heating or cooling expenses separately
no more than one payment is
the area. FNS will notify State agencies
from their rent or mortgage and to
anticipated in any 12-month period to
of the amount of the limit. Only the
households that receive direct or
meet needs that do not extend beyond
following expenses are allowable shelter
indirect assistance under the Low
a 4-month period, the payment is
expenses:
Income Home Energy Assistance Act of
designed to address barriers to
1981 (LIHEAA). A heating or cooling
achieving self-sufficiency rather than
(C) The cost of fuel for heating;
standard is available to households in
provide assistance for normal living
cooling (i.e., the operation of air
private rental housing who are billed by
expenses, and the household did not
conditioning systems or room air
their landlords on the basis of
receive a regular monthly TANF
conditioners); electricity or fuel used for
individual usage or who are charged a
payment in the prior month or the
purposes other than heating or cooling;
flat rate separately from their rent.
current month.
*
*
water; sewerage; garbage and trash
However, households in public housing
collection; the basic service fee for one
units which have central utility meters
(11) Energy assistance as follows:
telephone (including tax on the basic
and which charge households only for
(i) Any payments or allowances made
fee); and fees charged by the utility
excess heating or cooling costs are not
for the purpose of providing energy
provider for initial installation of the
entitled to a standard that includes
assistance under any Federal law other
utility. One-time deposits cannot be
heating or cooling costs based only on
than part A of Title IV of the Social
included.
the charge for excess usage. Households
Security Act (42 U.S.C. 601 et seq.) and
that receive direct or indirect energy
(ii) A one-time payment or allowance
(iii) Standard utility allowances.
assistance that is excluded from income
applied for on an as-needed basis and
(A) With FNS approval, a State agency
consideration (other than that provided
made under a Federal or State law for
may develop the following standard
under the LIHEAA) are entitled to a
the costs of weatherization or
utility allowances (standards) to be used
standard that includes heating or
emergency repair or replacement of an
in place of actual costs in determining
cooling only if the amount of the
unsafe or inoperative furnace or other
a household's excess shelter deduction:
expense exceeds the amount of the
heating or cooling device. A down-
an individual standard for each type of
assistance. Households that receive
payment followed by a final payment
utility expense; a standard utility
direct or indirect energy assistance that
upon completion of the work will be
allowance for all utilities that includes
is counted as income and incur a
considered a one-time payment for
heating or cooling costs (HCSUA); and,
heating or cooling expense are entitled
purposes of this provision.
a limited utility allowance (LUA) that
to use a standard that includes heating
includes electricity and fuel for
or cooling costs. A household that has
(d) Income deductions.
purposes other than heating or cooling,
both an occupied home and an
(6) Shelter costs.
water, sewerage, and garbage or trash
unoccupied home is only entitled to one
(i) Homeless shelter deduction. A
collection. The LUA must include
standard.
State agency may develop a standard
expenses for at least two utilities other
(D) At initial certification,
homeless shelter deduction up to a
than telephone. However, at its option;
recertification, and when a household
maximum of $143 a month for shelter
the State agency may include the excess
moves, the household may choose
expenses specified in paragraphs
heating and cooling costs of public
between a standard or verified actual
(d)(6)(ii)(A), (d)(6)(ii)(B) and (d)(6)(ii)(C)
housing residents in the LUA if it
utility costs for any allowable expense
of this section that may reasonably be
wishes to offer the lower standard to
identified in paragraph (d)(6)(ii)(C) of
expected to be incurred by households
such households. The State agency may
this section (except the telephone
in which all members are homeless
use different types of standards but
standard), unless the State agency has
individuals but are not receiving free
cannot allow households the use of two
opted, with FNS approval, to mandate
shelter throughout the month. The
standards that include the same
use of a standard. The State agency may
deduction must be subtracted from net
expense. In States in which the cooling
require use of the telephone standard for
income in determining eligibility and
expense is minimal, the State agency
the cost of basic telephone service even
allotments for the households. The State
may include the cooling expense in the
if actual costs are higher. Households
agency may make a household with
electricity component. The State agency
certified for 24 months may also choose
extremely low shelter costs ineligible for
may vary the allowance by factors such
to switch between a standard and actual
the deduction. A household receiving
as household size, geographical area, or
the homeless shelter deduction cannot
season. Only utility costs identified in
costs at the time of the mandatory
have its shelter expenses considered
paragraph (d)(6)(ii)(C) of this section
interim contact required by
under paragraphs (d)(6)(ii) or (d)(6)(iii)
must be used in developing standards.
§ 273.10(f)(1)(i), if the State agency has
not mandated use of the standard.
of this section. However, a homeless
(B) The State agency must review the
household may choose to claim actual
standards periodically and make
(E) A State agency may mandate use
costs under paragraph (d)(6)(ii) of this
adjustments to reflect changes in costs.
of standard utility allowances for all
section instead of the homeless shelter
State agencies may opt to establish
households with qualifying expenses if
deduction if actual costs are higher and
thresholds for making adjustments.
the State has developed one or more
verified.
State agencies must provide the
standards that include the costs of
(ii) Excess shelter deduction. Monthly
amounts of standards to FNS when they
heating and cooling and one or more
shelter expenses in excess of 50 percent
are changed and submit methodologies
standards that do not include the costs
of the household's income after all other
used in developing and updating
of heating and cooling, the standards
deductions in paragraphs (d)(1) through
standards to FNS for approval when the
will not result in increased program
(d)(5) of this section have been allowed.
methodologies are developed or
costs, and FNS approves the standard.
If the household does not contain an
changed.
Under this option households entitled
elderly or disabled member, as defined
(C) A standard with a heating or
to the standard may not claim actual
in § 271.2 of this chapter, the shelter
cooling component must be made
expenses, even if the expenses are
Federal Register Vol. 65, No. Tuesday, February 29, Proposed Rules
10907
higher than the standard. Households
Stamp Program following any period
(1) Households in which all adult
not entitled to the standard may claim
during which the household was not
members are elderly or disabled. The
actual allowable expenses. Households
certified for participation, except for
State agency may certify for up to 24
in public housing units that have central
migrant and seasonal farmworker
months households in which all adult
utility meters and charge households
households. In the case of migrant and
members are elderly or disabled. The
only for excess heating or cooling costs
seasonal farmworker households, the
State agency must have at least one
are not entitled to the HCSUA but, at
term "initial month" means the first
contact with each household every 12
State agency option, may claim the
month for which the household is
months. The State agency may use any
LUA. Requests for approval to use a
certified for participation in the Food
method it chooses for this contact.
standard for a single utility must
Stamp Program following any period of
(2) Households residing on a
include the cost figures upon which the
more than 30 days during which the
reservation. Households residing on a
standard is based. Requests to use an
household was not certified for
reservation that are required to submit
LUA should include the approximate
participation
monthly reports in accordance with
number of food stamp households that
273.21 must be certified for 24 months
would be entitled to the nonheating and
(d) Determining deductions.
***
unless the State agency obtains a waiver
noncooling standard, the average utility
(3)
***
For households certified for
from FNS. Any request for a waiver
costs prior to use of the mandatory
24 months that have one-time medical
shall include justification for the shorter
standard, the proposed standards, and
expenses, the State agency must use the
period, quality control error rate
an explanation of how the standards
following procedure. In averaging any
information for the affected households,
were computed.
one-time medical expense incurred by a
and input from the affected Indian tribal
(F) If a household lives with and
household during the first 12 months,
organization(s). When households move
shares heating or cooling expenses with
the State agency must give the
off the reservation, the State agency
another individual, another household,
must either continue their certification
household the option of deducting the
or both, the State agency must prorate
expense for one month, averaging the
periods until they would normally
a standard that includes heating or
expense over the remainder of the first
expire or shorten the certification
cooling expenses among the household
12 months of the certification period, or
periods in accordance with paragraph
and the other individual, household, or
averaging the expense over the
(f)(4) of this section.
both.
(3) Households eligible for a child
remaining months in the certification
period. One-time expenses reported
support deduction. The State agency
13. In § 273.10,
after the 12th month of the certification
may certify for no longer than 3 months
a. The third and fourth sentences of
period will be deducted in one month
households eligible for a child support
deduction which have no record of
paragraph (a)(1)(ii) are revised.
or averaged over the remaining months
b. Paragraph (a)(1)(iv) is removed.
in the certification period, at the
regular child support payments or of
C. The third sentence of paragraph
child support arrearages and which are
household's option.
(a)(2) is amended by removing the
not required to report child support
words "an application for recertification
payment information periodically
(e) Calculating net income and benefit
is submitted more than one month" and
(monthly or quarterly) during the
levels.
adding in their place, "a household,
certification. The State agency may
(1) Net monthly income.
other than a migrant or seasonal
certify for no longer than 6 months
(i)
farmworker household, submits an
(G) Subtract the homeless shelter
households with a record of regular
application".
deduction, if any, up to the maximum
child support and arrearage payments
d. Three sentences are added to the
of $143.
which are not required to report
end of paragraph (d)(3).
(H) Total the allowable shelter
payment information periodically
e. The second sentence of paragraph
expenses to determine shelter costs, a
during the certification period. The
(e)(1)(i)(E) is removed.
deduction has been subtracted in
State agency may certify for no longer
f. Paragraphs (e)(1)(i)(G) and
accordance with paragraph (e)(1)(i)(G) of
than 12 months households required to
(e)(1)(i)(H) are redesignated as
this section. Subtract from total shelter
report child support payment
paragraphs (e)(1)(i)(H) and (e)(1)(i)(I),
costs 50 percent of the household's
information monthly or quarterly.
respectively, and a new paragraph
(4) Shortening certification periods. (i)
monthly income after all the above
(e)(1)(i)(G) is added.
deductions have been subtracted. The
The State agency may shorten the
g. Newly redesignated paragraph
certification period with a notice of
remaining amount, if any, is the excess
(e)(1)(i)(H) is revised.
adverse action under the following
shelter cost. If there is no excess shelter
h. Paragraph (e)(2)(i)(E) is amended by
cost, the net monthly income has been
conditions provided the State agency
removing the number "22" wherever it
has afforded the household at least 10
determined. If there is excess shelter
appears and adding in its place the
cost, compute the shelter deduction
days to respond to a previously issued
number "18".
written request for a contact with the
according to paragraph (e)(1)(i)(I) of this
i. Paragraph (f) is revised.
State agency to clarify its circumstances:
section.
The additions and revisions read as
(A) The State agency has information
*****
follows:
indicating that a household is not
(f) Certification periods. The State
reporting earned or unearned income
§ 273.10 Determining household eligibility
agency must certify each eligible
properly;
and benefit levels.
household for a definite period of time.
(B) The State agency has information
(a) Month of application.
The first month of the certification
indicating the household has become
(1) Determination of eligibility and
period will be the first month for which
ineligible;
benefit levels.
the household is eligible to participate.
(C) A household reports a change that
(ii)
* As used in this section, the
The certification period cannot exceed
indicates that the new circumstances are
term "initial month" means the first
12 months, except as specified in
very unstable; or
month for which the household is
paragraphs (f)(1) and (f)(2) of this
(D) The household fails to provide
certified for participation in the Food
section:
adequate information regarding a
10908
Federal Register 65, No. Tuesday, February 29, 2000/Proposed Rules
change in household circumstances
monthly amount projected for the
is actually received. If income is
other than income.
coming year.
prorated, the net income assigned in any
(ii) If the household does not respond,
(iii) Notwithstanding the provisions of
month cannot exceed the maximum
does not provide sufficient information
paragraphs (a)(1)(i) and (a)(1)(ii) of this
monthly income eligibility standards for
to clarify its circumstances, or agrees
section, households subject to monthly
the household's size.
that changes in its circumstances
reporting and retrospective budgeting
(3) Capital gains. The proceeds from
warrant filing a new application, the
who derive their self-employment
the sale of capital goods or equipment
State agency may issue a notice of
income from a farming operation and
must be calculated in the same manner
adverse action as described in 273.13
who incur irregular expenses to produce
as a capital gain for Federal income tax
which shortens the certification period
such income have the option to
purposes. Even if only 50 percent of the
and explains the reasons for the action.
annualize the allowable costs of
proceeds from the sale of capital goods
(5) Lengthening certification periods.
producing self-employment income
or equipment is taxed for Federal
State agencies are prohibited from
from farming when the self-employment
income tax purposes, the State agency
lengthening a household's current
farm income is annualized.
must count the full amount of the
certification period once it is
(2) Determining monthly income from
capital gain as income for food stamp
established. FNS will consider waiver
self-employment.
(i) For the period of time over which
purposes. For households whose self-
requests from State agencies to lengthen
certification periods pursuant to
self-employment income is determined,
employment income is calculated on an
the State agency must add all gross self-
anticipated (rather than averaged) basis
§ 272.3(c) of this chapter for up to 24
months for households in which all
employment income (either actual or
in accordance with paragraph (a)(1) of
anticipated, as provided in paragraph
this section, the State agency must
adult members are elderly or disabled
(a)(1)(i) of this section) and capital gains
count the amount of capital gains the
and up to 12 months for other
households.
(according to paragraph (a)(3) of this
household anticipates receiving during
the months over which the income is
section), exclude the costs of producing
14. In § 273.11,
the self-employment income (as
being averaged.
determined in paragraph (a)(4) of this
(b) Allowable costs of producing self-
a. Paragraphs (a) and (b) are revised.
section), and divide the remaining
employment income.
b. The heading and introductory text
of paragraph (c)(2) are revised,
amount of self-employment income by
(1) Allowable costs of producing self-
paragraph (c)(3) is redesignated as
the number of months over which the
employment income include, but are
paragraph (c)(4) and a new paragraph
income will be averaged. This amount is
not limited to, the identifiable costs of
(c)(3) is added.
the monthly net self-employment
labor, stock, raw material, seed and
c. The heading of paragraph (e) and
income. The monthly net self-
fertilizer, interest paid to purchase
paragraphs (e)(1) through (e)(5) are
employment income must be added to
income-producing property, insurance
revised.
any other earned income received by the
premiums, and taxes paid on income-
d. Paragraphs (f)(1) and (f)(7) are
household to determine total monthly
producing property.
revised.
earned income.
(2) In determining net self-
e. Paragraph (g)(5) is revised.
(ii) If the cost of producing self-
employment income, the following
f. Paragraph (j) is removed and
employment income exceeds the
items are not allowable costs of doing
paragraph (k) is redesignated as
income derived from self-employment
business:
paragraph (j).
as a farmer (defined for the purposes of
(i) Payments on the principal of the
The revisions and additions read as
this paragraph (a)(2)(ii) as a self-
purchase price of income-producing real
follows:
employed farmer who receives or
estate and capital assets, equipment,
anticipates receiving annual gross
machinery, and other durable goods;
§273.11 Action on households with
proceeds of $1,000 or more from the
special circumstances.
(ii) Net losses from previous periods;
farming enterprise), such losses must be
(a) Self-employment income. The
(iii) Federal, State, and local income
prorated in accordance with paragraph
State agency must calculate a
taxes, money set aside for retirement
(a)(1) of this section, and then offset
household's self-employment income as
purposes, and other work-related
against countable income to the
follows:
personal expenses (such as
household as follows:
(1) Averaging self-employment
(A) Offset farm self-employment
transportation to and from work), as
income.
losses first against other self-
these expenses are accounted for by the
(i) Self-employment income must be
employment income.
20 percent earned income deduction
averaged over the period the income is
(B) Offset any remaining farm self-
specified in § 273.9(d)(2);
intended to cover, even if the household
employment losses against the total
(iv) Depreciation; and
receives income from other sources. If
amount of earned and unearned income
(v) Any amount that exceeds the
the averaged amount does not
after the earned income deduction has
payment a household receives from a
accurately reflect the household's actual
been applied.
boarder for lodging and meals.
circumstances because the household
(iii) If a State agency determines that
(3) When calculating the costs of
has experienced a substantial increase
a household is eligible based on its
producing self-employment income,
or decrease in business, the State agency
monthly net income, the State may elect
State agencies may elect to use actual
must calculate the self-employment
to offer the household an option to
costs for allowable expenses in
income on the basis of anticipated, not
determine the benefit level by using
accordance with paragraphs (b)(1) and
prior, earnings.
either the same net income which was
(b)(2) of this section or determine self-
(ii) If a household's self-employment
used to determine eligibility, or by
employment expenses as follows:
enterprise has been in existence for less
unevenly prorating the household's total
(i) For income from day care, use the
than a year, the income from that self-
net income over the period for which
current reimbursement amounts used in
employment enterprise must be
the household's self-employment
the Child and Adult Care Food Program
averaged over the period of time the
income was averaged to more closely
or a standard amount based on
business has been in operation and the
approximate the time when the income
estimated per-meal costs.
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
10909
(ii) For income from boarders, other
(D) Who is paroled in accordance
(1) Narcotic addicts or alcoholics who
than those in commercial boarding
with section 212(d)(5) of the INA; or
regularly participate in publicly
houses or from foster care boarders, use:
(E) Whose deportation or removal has
operated or private non-profit drug
(A) The maximum food stamp
been withheld in accordance with
addict or alcoholic (DAA) treatment and
allotment for a household size that is
section 243 of the INA.
rehabilitation programs on a resident
equal to the number of boarders; or
(ii) For an ineligible alien within a
basis may voluntarily apply for the Food
(B) A flat amount or fixed percentage
category described in paragraphs
Stamp Program. Applications must be
of the gross income, provided that the
(c)(3)(i)(A) through (c)(3)(i)(E) of this
made through an authorized
method used to determine the flat
section, State agencies may either:
representative who is employed by the
amount or fixed percentage is objective
(A) Count all of the ineligible alien's
DAA center and designated by the
and justifiable and is stated in the
resources and all but a pro rata share of
center for that purpose. The State
State's food stamp manual.
the ineligible alien's income and
agency may require the household to
(iii) For income from foster care
deductible expenses; or
designate the DAA center as its
boarders, refer to § 273.1(c)(6).
(B) Count all of the ineligible alien's
authorized representative for the
(iv) Use the standard amount the State
resources, count none of the ineligible
purpose of receiving and using an
uses for its TANF program.
alien's income and deductible expenses,
allotment on behalf of the household.
(v) Use an amount approved by FNS.
count any money payment (including
Residents must be certified as one-
State agencies may submit a proposal to
payments in currency, by check, or
person households unless their children
FNS for approval to use a simplified
electronic transfer) made by the
are living with them, in which case their
self-employment expense calculation
ineligible alien to at least one eligible
children must be included in the
method that does not result in increased
household member, not deduct as a
household with the parent.
Program costs. Different methods may
household expense any otherwise
(2)(i) Prior to certifying any residents
be proposed for different types of self-
deductible expenses paid by the
for food stamps, the State agency must
employment. The proposal must
ineligible alien, but cap the resulting
verify that the DAA center is authorized
include a description of the proposed
benefit amount for the eligible members
by FNS as a retailer in accordance with
at the allotment amount the household
method, the number and type of
278.1(e) of this chapter or that it comes
would receive if the household member
households and percent of the caseload
under part B of title XIX of the Public
affected, and documentation indicating
within the one of the categories
Health Service Act, 42 U.S.C. 300x et
that the proposed procedure will not
described in paragraphs (c)(3)(i)(A)
seq., (as defined in "Drug addiction or
increase Program costs.
through (c)(3)(i)(E) of this section were
alcoholic treatment and rehabilitation
(c) Treatment of income and
still an eligible alien. The State agency
program" in § 271.2).
resources of certain nonhousehold
must elect one State-wide option for
(ii) Except as otherwise provided in
members.
determining the eligibility and benefit
this paragraph (e)(2), the State agency
level of households with members who
(2) SSN disqualification. The
must certify residents of DAA centers by
eligibility and benefit level of any
are aliens within the categories
using the same provisions that apply to
described in paragraphs (c)(3)(i)(A)
remaining household members of a
all other households, including, but not
through (c)(3)(i)(E) of this section.
household containing individuals who
limited to, the same rights to notices of
(iii) For an alien who is ineligible
are disqualified for refusal to obtain or
adverse action and fair hearings.
under § 273.4(b) because the alien's
(iii) DAA centers in areas without
provide an SSN must be determined as
household indicates inability or
follows:
EBT systems may redeem the
unwillingness to provide
households' paper coupons through
documentation of the alien's alien
authorized food stores: DAA centers in
(3) Ineligible alien. The eligibility and
status, the State agency must count all
areas with EBT systems may redeem
benefit level of any remaining
or, at the discretion of the State agency,
benefits in various ways depending on
household members of a household
all but a pro rata share of the ineligible
the State's EBT system design. The
containing an ineligible alien must be
alien's income and deductible expenses
designs may include DAA use of
determined as follows:
and all of the ineligible alien's resources
individual household EBT cards at
(i) The State agency must count all or,
in accordance with paragraph (c)(1) or
authorized stores, authorization of DAA
at the discretion of the State agency, all
(c)(2) of this section. In exercising its
centers as retailers with EBT access via
but a pro rata share, of the ineligible
discretion under this paragraph
POS at the center, DAA use of a center
alien's income and deductible expenses
(c)(3)(iii), the State agency may count all
EBT card that is an aggregate of
and all of the ineligible alien's resources
of the alien's income for purposes of
individual household benefits, and
in accordance with paragraphs (c)(1) or
applying the gross income test for
other designs. Guidelines for approval
(c)(2) of this section. In exercising its
eligibility purposes while only counting
of EBT systems are contained in
discretion under this paragraph (c)(3)(i),
all but a pro rata to apply the net
$ 274.12 of this chapter.
the State agency may count all of the
income test and determine level of
(iv) The treatment center must notify
alien's income for purposes of applying
benefits.
the State agency of changes in the
the gross income test for eligibility
(iv) The income of the ineligible
household's circumstances as provided
purposes while only counting all but a
aliens must be computed using the
in § 273.12(a).
pro rata share to apply the net income
income definition in $ 273.9(b) and the
(3) The DAA center must provide the
test and determine level of benefits.
income exclusions in 273.9(c).
State agency a list of currently
This paragraph (c)(3)(i) shall not apply
(v) The resources and income of an
participating residents that includes a
to an alien:
ineligible sponsored alien must include
statement signed by a responsible center
(A) Who is lawfully admitted for
the resources and income of the sponsor
official attesting to the validity of the
permanent residence under the INA;
and the sponsor's spouse.
list. The State agency must require
(B) Who is granted asylum under
submission of the list on either a
section 208 of the INA;
(e) Residents of drug addict and
monthly or semimonthly basis. In
(C) Who is admitted as a refugee
alcoholic treatment and rehabilitation
addition, the State agency must conduct
under section 207 of the INA;
programs.
periodic random on-site visits to the
10910
Federal Register Vol. 65, No. Tuesday, February 29, Proposed Rules
center to assure the accuracy of the list
benefits authorized by the household's
and prepare food to be consumed by
and that the State agency's records are
HIR or ATP or posted to the EBT
eligible residents on a group basis if
consistent and up to date.
account at the time the household
residents normally obtain their meals at
(4) The State agency may issue
leaves the center.
a central location as part of the GLA's
allotments on a semimonthly basis to
(iii) The center must return to the
service or if meals are prepared at a
households in DAA centers.
State agency any EBT card or coupons
central location for delivery to the
(5) When a household leaves the
not provided to departing residents by
individual residents. If personalized
center, the center must notify the State
the end of each month. These coupons
meals are prepared and paid for with
agency and the center must provide the
include those not provided to departing
food stamps, the GLA must ensure that
household with its ID card. If possible,
residents because they left either prior
the resident's food stamps are used for
the center must provide the household
to the 16th and the center was unable
meals intended for that resident.
with a change report form to report to
to provide the household with the
(g) Shelters for battered women and
the State agency the household's new
coupons or the household left on or
children.
address and other circumstances after
after the 16th of the month and the
****
leaving the center and must advise the
coupons were not returned to the
(5) State agencies shall take prompt
household to return the form to the
household.
action to ensure that the former
appropriate office of the State agency
*
*
household's eligibility or allotment
within 10 days. After the household
(f) Residents of a group living
reflects the change in the household's
leaves the center, the center can no
arrangement.
composition. Such action shall include
longer act as the household's authorized
(1) Disabled or blind residents of a
acting on the reported change in
representative for certification purposes
group living arrangement (GLA) (as
accordance with 273.12 by issuing a
or for obtaining or using benefits.
defined in § 271.2) may apply either
notice of adverse action in accordance
(i) The center must provide the
household with its EBT card if it was in
through use of an authorized
with 273.13.
the possession of the center, any
representative employed and designated
*
*
*
*
*
untransacted ATP, or the household's
by the group living arrangement or on
15. In § 273.12, paragraph (f)(5) is
full allotment if already issued and if no
their own behalf or through an
revised as follows:
coupons have been spent on behalf of
authorized representative of their
choice. The GLA must determine if a
273.12 Reporting Changes.
that individual household. If the
household has already left the center,
resident may apply on his or her own
*
*
*
*
the center must return them to the State
behalf based on the resident's physical
(f) PA and GA households.
and mental ability to handle his or her
*
agency. These procedures are applicable
own affairs. Some residents of the GLA
at any time during the month.
(5) Whenever a change results in the
(ii) If the coupons have already been
may apply on their own behalf while
termination of a household's PA
issued and any portion spent on behalf
other residents of the same GLA may
benefits within its food stamp
of the household, the following
apply through the GLA's representative.
certification period, and the State
procedures must be followed.
Prior to certifying any residents, the
agency does not have sufficient
(A) If the household leaves prior to
State agency must verify that the GLA
information to determine how the
the 16th of the month and benefits are
is authorized by FNS or is certified by
change affects the household's food
not issued under an EBT system, the
the appropriate agency of the State (as
stamp eligibility and benefit level (such
center must provide the household with
defined in § 271.2) including the
as when an absent parent returns to a
one-half of its monthly coupon
agency's determination that the center is
household, and the State agency does
allotment unless the State agency issues
a nonprofit organization.
not have any information on the income
semi-monthly allotments and the
(i) If the residents apply on their own
of the new household member), the
second half has not been turned over to
behalf, the household size must be in
State agency shall take the following
the center. If benefits are issued under
accordance with the definition in
action:
an EBT system, the State must ensure
273.1. The State agency must certify
(i) Where a PA notice of adverse
that the EBT design or procedures for
these residents using the same
action has been sent, the State agency
DAAs prohibit the DAA from obtaining
provisions that apply to all other
shall wait until the household's notice
more than one-half of the household's
households. If FNS disqualifies the GLA
of adverse action period expires or until
allotment prior to the 16th of the month
as an authorized retail food store, the
the household requests a fair hearing,
or permit the return of one-half of the
State agency must suspend its
whichever occurs first. If the household
allotment to the household's EBT
authorized representative status for the
requests a fair hearing and its PA
account through a refund, transfer, or
same time; but residents applying on
benefits are continued pending the
other means if the household leaves
their own behalf will still be able to
appeal, the household's food stamp
prior to the 16th of the month.
participate if otherwise eligible.
benefits shall be continued at the same
(B) If the household leaves on or after
(ii) If the residents apply through the
basis.
the 16th day of the month, the State
use of the GLA's authorized
(ii) If a PA notice of adverse action is
agency, at its option, may require the
representative, their eligibility must be
not required, or the household decides
center to give the household a portion
determined as a one-person household.
not to request a fair hearing and
of its allotment. Under an EBT system
*
continuation of its PA benefits, the State
where the center has an aggregate EBT
(7) If the residents are certified on
agency shall send the household a
card, the State agency may, but is not
their own behalf, the coupon allotment
notice of expiration which informs the
required to transfer a portion of the
may either be returned to the GLA to be
household that its certification period
household's monthly allotment from a
used to purchase meals served either
will expire at the end of the month
center's EBT account back to the
communally or individually to eligible
following the month the notice of
household's EBT account. However, the
residents or retained and used to
expiration is sent and that it must
household, not the center, must be
purchase and prepare food for their own
reapply if it wishes to continue to
allowed to receive any remaining
consumption. The GLA may purchase
participate. The notice of expiration
Federal Register/Vol. 65, No. Tuesday, February 29, Proposed Rules
10911
shall also explain to the household that
the household with a notice of required
(2) A State agency electing to accept
its certification period is expiring
verification as specified in 273.2(c)(4).
an oral expression from the household
because of changes in its circumstances
(3) Interview.
or its representative to withdraw a fair
which may affect its food stamp
(i) As part of the recertification
hearing must provide a written notice to
eligibility and benefit level. At its
process, the State agency must conduct
the household confirming the
option, the State agency may follow the
an interview with a member of the
withdrawal request and providing the
procedure set forth at 273.10(f)(4) to
household or its authorized
household with an opportunity to
shorten certification periods.
representative. At least one face-to-face
request a hearing.
16. In 273.13, the first sentence of
interview is required every 12 months
*****
paragraph (a)(1) is revised to read as
unless the State agency grants a waiver
follows:
in accordance with § 273.2(e)(2). If a
$273.21 [Amended]
$273.13 Notice of adverse action.
telephone interview is conducted the
19. In 273.21:
(a) Use of notice.
State agency must mail the application
a. Paragraph (a)(3) is removed and
***
to the household to obtain the
(1) The notice of adverse action is
paragraph (a)(4) is redesignated as
household's signature.
paragraph (a)(3).
considered timely if the advance notice
*****
b. Paragraph (j)(1)(vii)(A) is amended
period conforms with that period of
(e) Delayed processing.
by removing the number "22" at the end
time defined by the State agency as an
adequate notice for its public assistance
(1) If an eligible household files an
of the second sentence and adding in its
application before the end of the
place the number "18".
caseload, provided that the period is no
less than 10 days and no more than 18
certification period but the
C. Paragraph (t)(2) is removed and
recertification process cannot be
paragraphs (t)(3) through (t)(6) are
days from the date the notice is mailed
completed within 30 days after the date
redesignated as (t)(2) through (t)(5).
to the date the notice expires. ***
of application because of State agency
20. § 273.25 is added to read as
*
*
*
fault, the State agency must continue to
follows:
17. In § 273.14:
process the case and provide a full
a. Paragraph (b)(1) is amended by
$273.25 Simplified Food Stamp Program.
month's allotment for the first month of
removing the second sentence of the
the new certification period.
(a) Definitions. For purposes of this
introductory text of paragraph (b)(1)(ii)
section:
(2) If a household files an application
and removing paragraph (b)(1)(iii).
before the end of the certification
(1) Simplified Food Stamp Program
b. Paragraph (b)(2) is revised.
(SFSP) means a program authorized
period, but fails to take a required
C. Paragraph (b)(3) is amended by
under 7 U.S.C. 2035.
action, the State agency may deny the
revising paragraph (b)(3)(i), removing
(2) Temporary Assistance for Needy
case at that time, at the end of the
the second sentence of paragraph
Families (TANF) means assistance from
certification period, or at the end of 30
(b)(3)(ii), and removing the first two
a State program funded under part A of
days. If the household takes the required
sentences of paragraph (b)(3)(iii).
title IV of the Social Security Act (42
action before the end of the certification
d. Paragraph (b)(4) is amended by
U.S.C. 601 et seq.).
removing the second sentence and
period, the State agency must reopen
(3) Pure-TANF household means a
the case. If the household takes the
adding the words "and benefits cannot
household in which all members receive
required action after the end of the
be prorated" at the end of the paragraph.
assistance under a State program funded
e. Paragraph (e) is revised.
certification period, the State agency
under part A of title IV of the Social
The addition and revisions read as
may reopen the case and provide
Security Act (42 U.S.C. 601 et seq.).
follows:
benefits retroactive to the date the
(4) Mixed-TANF household means a
household takes the required action or
household in which 1 or more members,
$273.14 Recertification.
it may require the household to reapply.
but not all members, receive assistance
*****
(3) If a household files an application
under a State program funded under
(b) Recertification process.
***
after the end of the certification period,
part A of title IV of the Social Security
(2) Application. The State agency
benefits must be prorated in accordance
Act (42 U.S.C. 601 seq.).
must develop an application to be used
with 273.10(a).
(b) Limit on Benefit Reduction for
by households when applying for
*
*
Mixed-TANF Households under the
recertification. It may be the same as the
18. In § 273.15, paragraph (j) is
SFSP. If a State agency chooses to
initial application, a simplified version,
revised to read as follows:
operate an SFSP and includes mixed-
a monthly reporting form, or other
TANF households in its program, the
§ 273.15 Fair hearings.
method such as annotating changes on
following requirements apply in
the initial application form. A new
addition to the statutory requirements
household signature and date is
(j) Denial or dismissal of request for
governing the SFSP.
required at the time of application for
hearing.
(1) If a State's SFSP reduces benefits
recertification. The recertification
(1) The State agency must not deny or
for mixed-TANF households, then no
process can only be used for those
dismiss a request for a hearing unless:
more than 5 percent of these
(i) The request is not received within
households which apply for
participating households can have
the appropriate time frame;
recertification prior to the end of their
benefits reduced by 10 percent of the
(ii) The household or its
current certification period. The
amount they are eligible to receive
representative fails, without good cause,
under the regular FSP and no mixed-
process, at a minimum, must elicit from
to appear at the scheduled hearing;
TANF household can have benefits
the household sufficient information
(iii) The request is withdrawn in
that, when added to information already
reduced by 25 percent or more of the
writing by the household or its
contained in the casefile, will ensure an
amount it is eligible to receive under the
representative; or
regular FSP. Reductions of $10 or less
accurate determination of eligibility and
(iv) The request is withdrawn orally
benefits. The State agency must notify
will be disregarded when applying this
by the household or its representative
requirement.
the applicant of information which is
and the State agency has elected to
(2) The State must include in its State
specified in § 273.2(b)(2), and provide
allow such oral requests.
SFSP plan an analysis showing the
10912
Federal Register/Vol. 65, No. Tuesday, February 29, 2000 Proposed Rules
impact its program has on benefit levels
SFSP. The frequency of such reports
specified under §§ 272.3(a)(2) and (b)(2)
for mixed-TANF households by
will be determined by FNS taking into
of this chapter.
comparing the allotment amount such
consideration such factors as the
number of mixed-TANF households
§ 274.5 [Removed]
households would receive using the
rules and procedures of the State's SFSP
participating in the SFSP and the
22. Section 274.5 is removed and
with the allotment amount these
amount of benefit loss attributed to
reserved.
households would receive if certified
these households through initial or on-
under regular Food Stamp Program
going analyses.
PART 277-PAYMENTS OF CERTAIN
rules and showing the number of
ADMINISTRATIVE COSTS OF STATE
households whose allotment amount
PART 274-ISSUANCE AND USE OF
AGENCIES
would be reduced by 9.99 percent or
COUPONS
less, by 10 to 24.99 percent, and by 25
23. In § 277.4, paragraph (b) is
21. In § 274.2:
percent or more, excluding those
a. The last sentence in paragraph (a)
amended by adding a new sentence to
households with reductions of $10 or
is removed; and
the end of the introductory text to read
less. In order for FNS to accurately
b. Paragraph (g) is revised to read as
as follows:
evaluate the program's impact, States
follows:
§ 277.4 Funding.
must describe in detail the methodology
*
*
used as the basis for this analysis.
§ 274.2 Providing benefits to participants.
(b) Federal reimbursement rate.
*
*
*
(3) To ensure compliance with the
*
benefit reduction requirement once an
(g) Issuance in rural areas. Unless the
This rate includes reimbursement for
SFSP is operational, States must
area is served by an electronic benefit
food stamp informational activities but
describe in their plan and have
transfer system, State agencies shall use
not for recruitment activities.
approved by FNS a methodology for
direct-mail issuance in any rural areas
*
*
measuring benefit reductions for mixed-
where the State agency determines that
TANF households on an on-going basis
recipients face substantial difficulties in
Dated: February 18, 2000.
throughout the duration of the SFSP. In
obtaining transportation in order to
Julie Paradis,
addition, States must report to FNS on
obtain their food stamp benefits by
Deputy Under Secretary, Food, Nutrition and
a periodic basis the amount of benefit
methods other than direct-mail
Consumer Services.
loss experienced by mixed-TANF
issuance. State agencies shall report any
[FR Doc. 00-4369 Filed 2-23-00; 8:45 am]
households participating in the State's
exceptions to direct-mail issuance as
BILLING CODE 3410-30-U
Patrick Waldron, Program Analyst
RD
MayNatRonal Immigration Law Center
agg435 Wilshire Blvd., Suite 2850
Los Angeles, California 90010
213 639-3900
fax 213 639-3911
NILC
May 1, 2000
Patrick Waldron, Program Analyst
Certification Policy Branch
Program Development Division
Food and Nutrition Service
U.S. Department of Agriculture
3101 Park Center Drive
Alexandria, VA 22302
FAX # (703) 305-2486
[email protected]
RE: Comments on Proposed Rule: "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," 65 Fed. Reg. 10856 (Feb. 29, 2000)
Dear Mr. Waldron:
Thank you for the opportunity to comment on the proposed regulations governing
noncitizen eligibility for the Food Stamp Program (FSP). These comments are
submitted by the National Immigration Law Center (NILC), a national support center
with staff that specialize in immigration law and the public benefits and employment
rights of immigrants and their family members. NILC has extensive experience working
with immigrants and immigrant communities and is deeply committed to encouraging
and facilitating the availability of food stamps to low-income immigrants and to their
citizen family members.
INTRODUCTION
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA, or "the welfare law") and subsequent laws brought about severe restrictions
on immigrant eligibility for public benefits. Even after Congress restored eligibility to
some immigrants in 1998, almost 600,000 immigrants had lost federal food stamp
According to USDA estimates, approximately 790,000 immigrants had lost eligibility for food
Patrick Waldron, Program Analyst
May 1, 2000
Page
eligibility. Yet, the FSP continues to be an important component of the safety net for
many immigrant families. At the end of fiscal year 1997, 793,000 noncitizens continued
to participate.
Many citizens in households that contain immigrants also receive food stamps and are
directly affected by immigrant-related restrictions and barriers to access. About six of
every seven families headed by a non-citizen parent - 85 percent of such families - are
"mixed-status" families that include at least one U.S. citizen, typically a child. Among all
families with children in the United States, nearly one in ten is a "mixed-status" family.
FSP data show a large decline in food stamp participation among children in immigrant
families over the last few years even though the overwhelming majority of them have
remained eligible for food stamp benefits. Since welfare reform, immigrant families
have become more hesitant to apply for benefits or have any contact with benefits
agencies. Between 1994 and 1997, the number of citizen children receiving food
stamps who live with legal immigrants fell by 41 percent, compared to a 15 percent
decline for children living with native-born parents. To reverse this disturbing trend,
food stamp agencies must reduce access barriers faced by immigrants. These include
the bureaucratic barriers that are also faced by non-immigrant applicants and
beneficiaries; but many immigrant households also are denied and deterred by unfair
stamps by 1998. For these immigrants, the average benefit loss was $75 a month. The Agricultural
Research, Extension, and Education Reform Act, enacted on Nov. 1, 1998, restored benefits to an
estimated 210,000 legal immigrants.
Scott Cody, The Effect of Welfare Reform on Legal Permanent Resident Alien Food Stamp
Recipients, Mathematical Policy Research, Inc. (Draft: October 1998). Approximately 1.9 million
immigrants received food stamps in fiscal year 1996 prior to implementation of the PRWORA
changes.
See Michael Fix and Wendy Zimmermann, All Under One Roof: Mixed Status Families in an
Era of Reform, Urban Institute, June 1999, figure 1.
Many immigrants did not receive food stamps out of fear that they would become a "public
charge" and be excluded or removed from the United States. Guidance has been issued that
receipt of food stamps and other non-cash assistance will not count against people. Field
Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689,
28693 (May 26, 1999). Nonetheless, participation rates remain low.
United States Department of Agriculture, Food and Nutrition Service, Office of Analysis,
Nutrition, and Evaluation, Who is Leaving the Food Stamp Program? An Analysis of Caseload
Changes from 1994 to 1997, March 1999. See also Michael Fix and Jeffrey S. Passel, Trends
in Noncitizens' and Citizens' Use of Public Benefits Following Welfare Reform: 1994-1997,
Urban Institute, March 1999.
Patrick Waldron, Program Analyst
May 1, 2000
Page
and overly-harsh income-counting and verification practices, lack of confidentiality and
fear of INS reporting, and lack of linguistic access.
The proposed rules will have a profound effect on both legal immigrants and their
citizen family members. In this regard, we support the very positive proposed state
option to not count the income of ineligible immigrants in determining the eligibility of
the rest of the household. However, the proposed rules contain some harmful
provisions that create unnecessary barriers and will exacerbate the steep drop-out
rates. One of the most troubling is the proposal to count a sponsor's income in
determining the benefits of citizens and non-sponsored immigrants who live with a
sponsored immigrant, even where the sponsored immigrant is ineligible for food
stamps. This would result in denial of benefits to thousands of citizen children and
eligible immigrants. In addition, the proposed rules regarding verification, immigration
status and social security number (SSN) inquiries of non-applicants and the USDA's
silence on the importance of linguistic and cultural access would burden immigrant
families and lead to further declines in participation by eligible households.
The laws leave the Department of Agriculture (USDA, the Department) with
considerable discretion to issue rules that encourage participation by all those who
remain eligible. It is imperative that USDA educate and lead states toward FSP policies
that do not create unnecessary barriers to receiving food stamps by eligible immigrants
and their families. We urge you to adopt the recommendations set forth below which
will help to ensure that goals of the Food Stamp Program to serve all eligible hungry
people are met.
A. PROVISIONS RELATED TO FINANCIAL ELIGIBILITY OF IMMIGRANT FAMILIES
The welfare law imposed more stringent requirements related to deeming of sponsor
income to immigrants with "new" (Form I-864) Affidavits of Support. These Affidavits
are required for persons who submit family-based applications for immigration on or
after December 19, 1997. Deeming will often render the applicant financially ineligible
because the income will be too high to qualify under food stamp income eligibility rules.
Whereas under previous law deeming ended after three years, the welfare law
extended the deeming period until the immigrant becomes a U.S. citizen or can claim
40 qualifying quarters of work, which can take 10 years or more to accrue.
"Sponsor deeming" applies when the food stamp agency determines the financial eligibility of
an immigrant sponsored under an Affidavit of Support. It means that the agency treats the
income and resources of the sponsor signing the Affidavit of Support, and the income and
resources of the sponsor's spouse, as available income and resources of the immigrant
applicant.
The welfare law includes exceptions to deeming for "indigent" immigrants and certain battered
spouses and children.
Patrick Waldron, Program Analyst
May 1, 2000
Page
1. Deeming of Sponsor's Income to Non-sponsored Immigrants and Citizen
Children (Proposed 7 C.F.R. § 273.11(c)(3)(v))
Under current food stamp rules, a sponsor's income and resources are not deemed to
non-sponsored individuals when a sponsored immigrant who lives with the non-
sponsored individuals is ineligible for food stamps. The proposed rule would have the
sponsor's income and resources deemed to non-sponsored individuals in a sponsored
immigrant's household when the sponsored immigrant is ineligible for food stamps. This
creates an unnecessary barrier to receipt of food stamps and has the devastating effect
of denying food stamps to citizens and eligible immigrants who live in households with
ineligible, sponsored immigrants.
Under federal law, sponsors are only obligated to support sponsored immigrants. They
are not obligated to support individuals that they do not sponsor. Under such
circumstances, it is improper to "deem" the sponsor's income and resources available
to non-sponsored citizens and immigrants when sponsors are under no obligation to
support them. USDA should strike this provision from the final rule and ensure that a
sponsor's income and resources are not deemed to non-sponsored individuals who live
with ineligible sponsored immigrants.
2. Deeming of a Sponsor's Gross Income with No Deductions (Proposed §
273.4(c)(2)(i))
USDA is proposing to deem all of a sponsor's gross income without any deductions for
a sponsor's other financial obligations. The USDA rationalizes this by indicating that
section 421(a)(1) of PROWRA provides that, "notwithstanding any other provision of
law, the income and resources of the alien must be deemed to include all of the income
7 C.F.R. § 273.11(j)(6).
Proposed 7 C.F.R. § 273.11(c)(3)(v).
8 U.S.C. § 1183a.
Indeed, a recent guidance issued by the Immigration and Naturalization Service (INS) states
that "The Affidavit of Support places no obligation on a sponsor or joint sponsor to support any
U.S. citizen children of the sponsored immigrant." Immigration & Naturalization Service,
"Clarification of Service Policy Concerning I-864 Affidavit of Support," Memorandum from
Michael D. Cronin, Acting Associate Commissioner Office of Programs, March 7, 2000.
Patrick Waldron, Program Analyst
May 1, 2000
Page
and resources of any person who executed an affidavit of support pursuant to section
423 of PROWRA which is a legally binding affidavit." In fact, the statute does not use
the word all, it merely indicates that the income and resources of the alien include "the
income and resources of any person who executed an affidavit of support on behalf of
such alien." Thus, it is not statutorily mandated that all income and resources of the
sponsor be deemed to the alien. It is possible, and reasonable, to include deductions
from the sponsor's gross income for the sponsor's own support.
Deductions are essential to estimate the amount of support a sponsor could actually be
required to provide to a sponsored immigrant. For example, monies owed for taxes or
court-ordered child support is not available to support the immigrant. USDA should
allow reasonable income deductions, as it does under the current rules, for amounts
required by the sponsor for self-support and support of dependents. This will assist
eligible immigrants to qualify for food stamps.
USDA has discretion to retain the current deeming rule that better reflects the amount
of a sponsor's income that could lawfully be made available to the sponsored immigrant
for support. USDA should implement a rule that recognizes both that the sponsor's
needs to retain some income for support of self and dependents, and also that the
amount of income deemed needs to fairly relate to the amount of income actually
available for the sponsored immigrant's support.
The existing food stamp law provides guidance on how to determine the income of a
sponsor for deeming purposes. Consistent with the current food stamp deeming rules,
USDA should calculate the amount of a sponsor's income that must be deemed to the
sponsored immigrant. Under this provision, the agency would deem to the immigrant
the sponsor's total monthly incomewith the existing income exclusions and also with the
following deductions:
a deduction equal to 20 percent of the sponsor's earned income; and
a deduction in an amount equal to the food stamp program's monthly gross income
eligibility limit for a household equal in size to a household that consists of the
65 Fed. Reg. 10856, 10899-10890 (Feb. 29, 2000) (emphasis added).
8 U.S.C. § 1631(a)(1).
7 C.F.R. § 273.11(j).
Food Stamp Act, sec. 5(i) (7 U.S.C. § 2014(i)).
As defined in 7 C.F.R. § 273.9(b).
Patrick Waldron, Program Analyst
May 1, 2000
Page
sponsor, the sponsor's spouse, and any dependents the sponsor claims for income tax
purposes.
These are reasonable income deductions for amounts required by the sponsor for self-
support and support of dependents and will facilitate eligible immigrants' access to food
stamps.
3. Deeming of a Sponsor's Resources with No Deductions (Proposed §
273.4(c)(2)(iii))
The USDA also proposes to eliminate all sponsor resource deductions on the basis that
the statute mandates it. As discussed above, the statute does not mandate that all
resources be counted. Thus it is possible, and reasonable, to include resource
deductions for the same reason it reasonable to include income deductions.
Current food stamp deeming provisions require agencies to count the total amount of a
sponsor's resources (as determined under 7 C.F.R. § 273.8) minus $1,500, which used
to be the asset limit for non-elderly households. The proposed rule eliminates this
reduction. This is unrealistic and creates an artificial barrier because the lack of
proposed deductions fails to recognize that the sponsor needs some assets for his or
her own household. The Department should continue to allow a resource reduction,
and to make that deduction equal to the current asset limit for non-elderly households,
which has now been raised to $2,000.
4. Deeming When Two or More Immigrants Are Sponsored by the Same Person
(Proposed § 273.4(c)(2)(iv))
The Department's proposal to require states to deem only a pro rata share of the
sponsor's income and resources when two or more immigrants are sponsored by the
same person is positive. It reflects the reality that the sponsor's income and resources
must be shared by all immigrants for whom the sponsor has signed an Affidavit of
Support. However, the proposed rule would add a harmful qualification, requiring that
in order to be counted, other sponsored immigrants must also apply for or participate in
the FSP.
The qualification to the rule defeats the rule's equitable purpose, since the sponsor's
income must be shared among all sponsored immigrants regardless of their relationship
65 Fed. Reg. 10856, 10899-10890 (Feb. 29, 2000).
8 U.S.C. § 1631(a)(1).
Patrick Waldron, Program Analyst
May 1, 2000
Page
to the FSP. To restore equity, the USDA should permit the sponsor's income and resources to be
divided by the total number of immigrants that he or she has sponsored, regardless of whether or
not those other sponsored immigrants apply for or participate in the Food Stamp Program.
5. Deeming When the Sponsor and Immigrant Live in Separate Households
(Proposed § 273.4(c)(3))
Current rules provide that sponsor deeming does not apply to an immigrant who is
participating in the Food Stamp Program as a member of his or her sponsor's
household. The rule also provides that deeming does not apply to an immigrant whose
sponsor is participating in the food stamp program separate and apart from the
sponsored immigrant. The proposed rules retain the exemption for immigrants who are
participating as a member of their sponsor's household but delete the exemption for
immigrants whose sponsors are participating as part of a household separate from that
of the sponsored immigrant. This is overly restrictive because sponsors who are also
food stamp recipients are unlikely to have income that could lawfully be made available
to the sponsored immigrant for support.
Low-income families often decide where extended family members will live based on
considerations that include maximizing the economic resources of the entire extended
family. USDA should not create disincentives for immigrant families in this regard. The
Department should retain the exemption from deeming for sponsors who are
participating in the food stamp program, whether they live with the sponsored immigrant
or not. Likewise, in all such circumstances, sponsors should be exempt from liability for
receipt of food stamps by sponsored immigrants.
Finally, the USDA proposes to eliminate references to deeming under the pre-
PRWORA section of the Food Stamp Act. This is a positive change that merits support
because it will help avoid unnecessary confusion in an already-complex area.
6. Treatment of Income and Resources of Ineligible Immigrants (Proposed §
273.11(c)(3)(ii)(B))
The proposed rule includes an important state option that allows states to not count the
income of immigrants ineligible under PRWORA in determining the food stamp eligibility
7 C.F.R. § 273.11(j)(3)(i).
Patrick Waldron, Program Analyst
May 1, 2000
Page
and benefits of U.S. citizens and eligible immigrants in the same household. This is a
favorable income-counting rule because it maximizes the allotment of food stamps that
can be received by immigrant households, who already face greatly restricted eligibility
because of PRWORA. The proposal also has the advantage of enabling states to
provide much more generous state-funded food stamp restorations than would
otherwise be possible. By increasing the amount of federally-funded food stamps that
an immigrant family receives, this policy reduces the gap a state-funded program must
fill, which will help immigrant families that face hunger to receive allotments that more
nearly approach the allotments which citizen families can receive.
While this is a favorable provision, the Department should make one revision in the way
the proposed rule is written. The proposal provides that a state adopting the option not
to count the income of an ineligible legal immigrant must ensure that the resulting
benefit level for the eligible household members does not exceed the benefit the
household would receive if the ineligible immigrant member were "still an eligible alien"
(emphasis added). As written, the proposed rule could have the unintended effect of
reducing or eliminating benefits for some citizen children and other eligible immigrants
whom the rule is designed to benefit. USDA can avoid this unintended consequence by
using the words "if they were a citizen," instead of the words "if they were still an eligible
alien."
Indicating that eligible household members cannot receive a larger benefit level than
the household would receive if the ineligible member were "an eligible alien" could
require complex deeming calculations to determine the benefit level that cannot be
exceeded. This would have two deleterious effects. First, if the state counts the
income deemed from an ineligible immigrant's sponsor, the result will generally be that
the eligible household members - who are primarily citizen children - will have their
food stamp benefits cut or eliminated as a result of an option that was supposed to help
them. Second, the complexity of the deeming procedures could reduce state interest in
the otherwise-helpful option allowing states not to count the income of PRWORA-
ineligible immigrants.
These results would be avoided if the food stamp benefit level for the eligible household
members were to be capped at the level the household would receive if the ineligible
immigrant members were citizens, rather than if they were eligible aliens. USDA is
requested to make this change in the wording of an otherwise very helpful provision.
7. Termination of Deeming
Immigrant sponsor income deeming terminates for a sponsored immigrant who has
8 U.S.C. § 1183a.
Patrick Waldron, Program Analyst
May 1, 2000
Page
forty qualifying quarters of credit or becomes a U.S. citizen. The regulations should
provide reasonable procedures to establish immigrant sponsor income deeming has
terminated due to a sponsored immigrant's naturalization or receipt of forty qualifying
quarters.
B. IMMIGRATION STATUS, SOCIAL SECURITY NUMBER AND VERIFICATION
ISSUES FOR IMMIGRANT FAMILIES
1. Removing Immigration Status, Social Security Number and Immigration Status
Verification Barriers
Many U.S. citizens and immigrants who are eligible for food stamps live with parents or
other household members who are ineligible due to their immigration status or because
they lack social security numbers. As noted above, thousands of eligible citizen
children living in immigrant households have dropped out of the food stamp program
since enactment of the 1996 welfare law. A major barrier to their participation is
created by food stamp agency requests for specific immigration status information or
the social security numbers of ineligible family members who are not applying for food
stamps.
Although agencies may ask food stamp applicants if they are eligible immigrants with
social security numbers, it is unnecessary to ask non-applicant household members the
same information. Doing so presents an unnecessary barrier to eligible immigrants and
citizens who live with ineligible immigrants.
Non-applicant immigrants who are ineligible for food stamps due to their immigration
status will not have immigration documents to establish their eligibility and will be
unable to provide them. Likewise, non-applicant immigrants who lack social security
numbers will not be able to provide them. More importantly, eligible immigrants fear
that if their family members are required to provide sensitive information about their
immigration status or lack of a social security number, the information will be provided
to the Immigration and Naturalization Service. Thus, many eligible applicants decline to
participate in the Food Stamp Program. This has devastating consequences for
citizens and immigrants who need food stamps to alleviate hunger.
To avoid unnecessary barriers for eligible immigrants and citizens who live with
ineligible immigrants, the regulations should permit households to designate which
members of the household are applicants and which members of the household are
non-applicants. Applicants may be requested to provide immigration status information
8 U.S.C. § 1183a.
Some eligible immigrants may not have social security numbers at the time they apply for food
Patrick Waldron, Program Analyst
May 1, 2000
Page
and social security numbers to establish eligibility. However, the regulations should
instruct that non-applicants should not be asked, either orally or in writing, about their
specific immigration status. Specific information about an ineligible immigrant's status
is irrelevant to the food stamp application process and requests for it create
unnecessary barriers to applying for food stamps.
Further, although agencies may appropriately ask non-applicant household members
for information about income to determine household eligibility, the regulations should
prohibit requests to non-applicants for social security numbers. Alternatively, non-
applicants should be requested to provide a social security number only if one is
available. If the alternative is implemented, the regulation should instruct that no
negative inference may be drawn about the immigration status of an individual who
indicates that he or she does not have a social security number. Many immigrants who
are lawfully present in the United States do not have social security numbers either
because their immigration status does not permit them to work or there are processing
delays in receiving the number.
Finally, the regulation should indicate that only applicants' immigration status will be
verified. It will also reduce non-applicants' fears of having members of their household
apply for food stamps.
Drafting the regulation in this manner would serve both the interests of the Food Stamp
Program and mixed households. The Food Stamp Program would obtain all
information necessary to administer the program and mixed households could be
assured that unnecessary questions would not be asked of non-applicants about
immigration status and social security numbers. This would alleviate fear in the
immigrant community and lead to higher participation rates among desperately hungry
U.S. citizen and eligible immigrant children who live with ineligible immigrants.
To the extent that these suggestions are accepted and incorporated into the final
regulation, the following proposed amendments may be unnecessary or need to be
modified to fit the context of the amended regulation. In any event, the amendments
proposed below are intended to ensure that non-applicants are not asked unnecessary
questions about social security numbers or immigration status and that verification of
immigration status is limited to applicants.
stamps. For example, a newly arrived refugee may not immediately have a social security number. In
such instances, provisions should be made in the regulations for an otherwise eligible immigrant to
receive food stamps pending receipt of a social security number.
This is consistent with the Interim Guidance on Verification of Citizenship, Qualified Alien
Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1966, 62 Fed. Reg. 61,344, 61347 (Nov. 17, 1997).
Patrick Waldron, Program Analyst
May 1, 2000
Page
The proposed amendments are as follows:
Amend § 273.2(b)(2)(iii)(C), in part, to read:
Notification that the alien status of any household member applicant may be
subject to verification by INS through the submission of information from the
applicant to INS.
Patrick Waldron, Program Analyst
May 1, 2000
Page
Amend § 273.2(b)(2)(iii)(D)(1), in part, to read:
The Food Stamp Act requires the collection of applicants' social security
numbers (SSN) as a condition of food stamp eligibility and failure to provide a
SSN may result in the applicant household member who fails to provide a SSN
being ineligible to receive Food Stamps.
Amend § 273.2(b)(2)(iii)(D)(3), in part, to read:
A statement of how the social security number will be used and to whom it may
be disclosed. The SSN will be used to check the identity of applicant household
members, and to prevent duplicate participation.
Note, this subsection appears to be incorrectly numbered in the text of the proposed
rule. Section 273.2(b)(2)(iii)(D)(3) appears twice.
Amend § 273.2(c)(1), in part, to read as follows:
An adult representative of each applicant household must certify in writing, under
penalty of perjury that the information contained in the application is true and that
all applicant household members of the household are citizens or are eligible
aliens.
Amend Preamble to § 273.2(c)(1), at pg. 10863, col. 3, first full paragraph, following the
first sentence, insert new text to read as follows:
This paragraph includes the requirement that an adult representative of each
applicant household must certify in writing, under penalty of perjury, that the
information contained in the application is true and that applicant household
members are citizens or eligible aliens.
Amend § 273.2(f)(1)(iv), in part, to read:
The immigration status of applicant aliens must be verified. If an applicant
household member does not wish to have the INS contacted, the household
shall be given the option of participating without that member or withdrawing its
application.
Amend Preamble to § 273.2(f)(1), at pg. 10867, col. 1, first full sentence, to read:
In the introductory paragraph (f)(1)(iv), we would provide that the immigration
status of all applicant aliens and other factors relevant to the eligibility of
individual applicant aliens must be verified prior to certification. To ensure that
any eligible household member is not deterred from participating in the Food
Stamp Program, if any applicant household member does not wish to have the
INS contacted, the household shall be given the option of participating in the
Patrick Waldron, Program Analyst
May 1, 2000
Page
Food Stamp Program without that member or withdrawing its application.
To the extent that similar provisions appear in the preamble or proposed rule that have
not been mentioned here, they too should be amended consistent with the principle that
verification of immigration status should be limited to applicants and that non-applicants
should not be asked unnecessary questions about social security numbers or
immigration status.
2. Verification of Identity (Proposed § 273.2(f)(1)(i))
Immigrants and naturalized citizens may have difficulty obtaining specific documents
such as birth certificates to establish identity, but can provide alternative evidence.
USDA should require states to accept any document that reasonably establishes
identity, as is required by current rules but has been deleted from the proposed rules.
C. HOME VISITS (Proposed § 273.2(e))
It is requested that the "home visit" provisions of the proposed rule be amended. As
written, they present an unnecessary barrier to receipt of food stamps by immigrant
families.
Proposed rule 273.2(3)(1) would permit state agencies to conduct interviews of food
stamp households during their certification period "at the food stamp office or another
mutually convenient location of the State agency's choosing, including a household
residence." This proposed change gives states authority to require households to be
subject to home interviews in order to receive food stamps. For mixed households in
which eligible immigrants or U.S. citizens live with ineligible immigrants, some of whom
may be undocumented, home visits are particularly threatening. Further, many
immigrants, particularly refugees and asylees, come from countries in which official
visits to their homes constitute a hostile and threatening act. Out of fear, or to protect
their privacy interests, many households forego food stamps rather than submit to
home visits. This creates an unnecessary barrier to participation by U.S. citizens and
immigrants who live in mixed households.
The integrity of the Food Stamp Program can be protected without home visits.
Meetings may take place at food stamp offices or other convenient locations outside the
home and any necessary information may be obtained at these meetings. Thus, home
visits should be prohibited. Alternatively, the final rule should require two conditions be
met before allowing home visits: 1) the household is unwilling to come to the food
stamp office or other mutually convenient location; and 2) the household agrees to be
interviewed in the home. Advance notice of home visits should be required and home
visits should not occur if a household has submitted sufficient verification.
Patrick Waldron, Program Analyst
May 1, 2000
Page
D. LINGUISTIC AND CULTURAL ACCESS ISSUES FOR IMMIGRANTS
Currently almost 14 percent of Americans speak a language other than English at
home. Many recent arrivals such as immigrants from Southeast Asian countries live in
linguistically isolated households. Limited-English proficient (LEP) immigrants face
daunting and often insurmountable barriers to accessing quality social services. The
anomaly of declining caseloads at a time of significant and persistent need underscores
the importance of ensuring outreach to LEP populations.
The U.S. Supreme Court has found that under Title VI of the Civil Rights Act of 1964,
recipients of federal financial assistance such as state food stamp agencies have an
affirmative duty to provide LEP persons with a meaningful opportunity to participate in
public programs. It is imperative that USDA clarify and emphasize state responsibilities
under Title VI. USDA's use of thresholds in triggering minimum standards for written
materials to be available in different languages when a language group in the recipient's
service population is numerically or proportionately significant is commendable.
However, experience has shown that even stronger standards are necessary to ensure
participation by LEP individuals in the Food Stamp Program.
1. Applicability of Title VI to All Languages and All Individuals
The regulations should contain a clear statement that the protections and rights to
linguistic and cultural access afforded under Title VI apply to all LEP individuals,
regardless of the numbers of individuals from a given language group who live in a
given service area. Also, access should be provided for all language groups,
regardless of how obscure a language may be.
2. Nondiscrimination Compliance
Jane Perkins, Harry Simon, Francis Cheng, Kristi Olson, and Yolanda Vera, Ensuring Linguistic
Access in Health Care Settings: Legal Rights and Responsibilities, National Health Law
Program, January 1998.
Lau V. Nichols, 414 U.S. 563 (1974).
See In re Department of Social Services, OCR No. 08917007 at 3, n. 1 (Sept. 30, 1992) (noting
that "a recipient who denies services to even one person due to his LEP status violates Title
VI."), quoted in Jane Perkins et. al., see note 12, at page 28. See also United States
Department of Agriculture, Food and Nutrition Service, Policy Memo No. 5-11 (December 1,
1978).
Patrick Waldron, Program Analyst
May 1, 2000
Page
The regulations should explain that states will violate civil rights laws if they fail to
provide linguistically appropriate and accessible services. With the proposed deletion
of training requirements it is even more essential for USDA to provide information in the
final rule on implementation of civil rights statutes, including examples of both violations
and best practices. The rules should also require states to inform households that
failure to provide linguistically and culturally appropriate notices and services is grounds
for filing a grievance, appeal or lawsuit.
3. Minimum Standards and Procedures
It is requested that USDA implement procedures throughout Part 273 for providing
linguistic and culturally competent access at all stages of service: from outreach to
enrollment to delivery of services to grievances and appeals. The Department should
strongly recommend these standards and procedures for any LEP individuals, and
should require standards for written materials when states have numbers of LEP
individuals that meet thresholds.
One important minimum standard is a prohibition on states from requiring, suggesting,
or encouraging households to use family members or friends as interpreters. This
practice should be used only as a last resort, and in all instances, USDA should prohibit
the widespread practice of using minors as interpreters. In addition, there should also
be explicit instructions to provide translated signage and written materials informing
households of their right to receive bilingual or interpreter services.
E. IMMIGRATION STATUS ELIGIBILITY ISSUES
1. The Seven-Year Eligibility Limit for the Refugee Group (Proposed § 273.4)
The proposed rule recognizes that immigrants in certain statuses grouped with refugees
(refugees, asylees, persons granted withholding of removal, Cuban and Haitian
Entrants and Amerasians) are eligible for food stamps for seven years from the date the
immigrant received the status. However, USDA should clarify two important points
about their eligibility. First, they are eligible for seven years even if before the end of the
seven years they adjust status to a category of legal permanent resident that is not
eligible for food stamps. Second, reaching the seven-year limit is only a limit on
eligibility for these immigrants if they are not otherwise eligible for food stamps. Some
may change to an immigration status that does not have limits on the length of time that
they may receive assistance, such as a lawful permanent resident credited with 40
See, e.g., HHS Office of Minority Health's "Draft Standards on Culturally and Linguistically
Appropriate Health Care," 64 Fed. Reg. 70042-70044 (Dec. 15, 1999).
Patrick Waldron, Program Analyst
May 1, 2000
Page
quarters of work.
Further, at least two years prior to the completion of seven years of eligibility, USDA
should advise immigrants that they may lose eligibility at the end of seven years if they
do not adjust their immigration status or have another status that makes them eligible.
USDA should also encourage them to seek competent assistance to adjust their
immigration status.
2. Definition of Non-Citizen National and Citizen (Proposed 7 C.F.R. § 273.4)
The proposed rule provides that a person who is a "U.S. alien national" is eligible for
food stamps. The term, "U.S. alien national," is novel and does not appear to have
legal meaning, but presumably refers to "non-citizen nationals," a common term with
legal meaning. To reduce confusion, it is recommended that the term "non-citizen
national" be used in place of the term "U.S. alien national."
The preamble to the proposed rule states that a reference to the definition of "citizen"
contained in the Interim Guidance has been added to the rule. No such reference
appears in the proposed rule. To avoid confusion, the food stamp rule should include
the definition. Further, it is recommended that the actual definition be included in the
text of the food stamp rule rather than merely providing a cross reference to the
definition in the Interim Guidance. This would make the food stamp rule easier to use.
Finally, some children may automatically become citizens when their parent(s)
naturalize. In such cases, there may be delays in receiving proof from the INS of such
citizenship. The regulations should permit the child to receive food stamps upon a
showing that the child meets the statutory requirement of citizenship pending receipt of
proof from INS.
3. Definition of "Lawfully Residing" in the United States
Certain immigrants are eligible for food stamps if they are or were "lawfully residing" in
Immigration law defines "alien" as a person who is not a citizen or national of the U.S. 8 U.S.C.
§ 1101(a)(3). See also Interim Guidance on Verification of Citizenship, Qualified Alien Status
and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, 62 Fed. Reg. 61,344, 61,347 (November 17, 1997).
65 Fed. Reg. 10856, 10,873-10,874 (Feb. 29, 2000).
8 U.S.C. § 1432. See also Interim Guidance on Verification of Citizenship, Qualified Alien
Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, 62 Fed. Reg. 61,344, 61,364 (November 17, 1997).
Patrick Waldron, Program Analyst
May 1, 2000
Page
the United States. The proposed rule does not define "lawfully residing" in the United States. To
avoid confusion, the term should be defined.
The U.S. Attorney General and the Social Security Administration have defined the
term "lawfully residing" for Title Il social security benefits. The definition used in the
social security context is appropriate in the context of food stamps. The food stamp
rule should expressly define the term "lawfully residing" and use the term as defined for
Title II social security benefits purposes.
CONCLUSION
Since enactment of PRWORA in 1996, many immigrant households have foregone
food stamps due to unnecessary barriers that stand between them and the receipt of
food
stamps. This has lead to unnecessary hunger in the community. To alleviate hunger,
the USDA should implement food stamp rules that eliminate unnecessary barriers to
receipt of food stamps by immigrants and their families.
Sincerely,
BRADEN CANCILLA
NATIONAL IMMIGRATION LAW CENTER
Definition of the Term Lawfully Present in the United States for Purposes of Applying for Title II
Benefits Under Section 401(b)(2) for Public Law 104-193, 61 Fed. Reg. 47,039 (September 6,
1996); Program Operations manual System (POMS) SI 00502.142.
FAX COVER
Income Maintenance Branch
ast)
Office of Management and Budget
Executive Office of the President
Washington, D.C. 20503
CC
Are
To:
One
Eb
1B
Organization:
Fax Number:
From:
Jennifer
Date/Time:
Number of Pages: Cover ÷ 8
Notes:
Helpfl hr to day's 2pm
In
(202) 395-0851
Voice Confirmation:
(202) 395-4686
CENTER ON BUDGET
AND POLICY PRIORITIES
April 17, 2000
PROPOSED FOOD STAMP RULES THREATEN CITIZEN CHILDREN
AND ELIGIBLE LEGAL IMMIGRANTS
by Shawn Fremsted
Overview
On February 29, 2000, the U.S. Department of Agriculture's Food and Nutrition Service
(FNS) published the most important set of proposed food stamp rules on immigrant issues in
years (and probably in the food stamp program's history). The proposed rules contain one very
positive provision that should help families with legal immigrants. Unfortunately, the rules also
include numerous damaging provisions that could cause many thousands of legal immigrants and
citizen children to lose food stamps. Overall. the proposed rules would be quite harmful to legal
immigrants and citizen children of immigrant parents.
For example, the proposed rules would count the income of a sponsor of an immigrant
who is ineligible for food stamps in determining the food stamp eligibility and benefit level of
citizens and eligible non-sponsored immigrants who live with the sponsored immigrant. In the
vast majority of such cases, counting the income of the sponsor of the ineligible immigrant as
though it worc part of the income of the other people in the dwelling unit would make the other
household members ineligible for food stamps. The result would be the termination of food
stamps for thousands of citizen children whose parents are sponsored immigrants.
This provision is not required by statute, and there is no evidence to suggest Congress
intended it; to the contrary, the legislative history suggests Congress did not intend it. If this
provision is included in the final rules, it will be tantamount to a new cut in the food stamp
benefits of eligible legal immigrants and citizen children that USDA and the Clinton
Administration will unnecessarily he imposing
The proposed rules also include other troubling provisions related to deeming. One
provision would substantially increase the amount of a sponsor's income that is deemed to a
sponsored immigrant by eliminating existing regulatory provisions that adjust the amount of
deemed income downward to take into Account A sponsor's work expenses and the sponsor's
obligation to support his or her own household. Another provision would increase the number of
households subject to deeming by eliminating a current regulatory provision that exempts from
deeming those households that contain immigrants whose sponsors are so poor they receive food
stamps themselves as part of a separate food stamp household. USDA has discretion in these
areas, but in each case, has proposed highly restrictive rules the welfare law does not require.
A20 First Street, NE, Suite 510, Washington, DC 20002
Tel: 202-408-1080 Fax: 202-408-1056 [email protected] http://www.cbpp.org HN0026
Many Immigrants Remain Eligible for Food Stamps
In spite of the 1996 welfare law's restrictions on immigrant eligibility for public benefits, the food
stamp program continues 10 be an important part of the safety net for many legal immigrant families. Refugees.
asylees, Cuban/Haitian entrants. Ameracians, and persons granted withholding of deportation HTB eligible for
food stamps for their first seven years in the United States or their first seven years after having been emniod
that status, regardless of their date of entry. Qualified immigrants are eligible for food stamps without a soven-
year time restriction if they are VETARANA or on Active duty in the armed forces, or if they can claim 40 quarters of
work. olther through their own employment or through adding that of their parents or spouses. Qualified
immigrants who, on August 22, 1996, were lawfully residing in the United States, remain eligible for food
stamps if they:
receive benefits or assistance for blindness or disability;
were 65 years or older on August 22, 1994: or
are now under 18 VENTS or age.
Also eligible for food stamps are Native Americans with tresty rights to cross the U.S. borders with Canada and
Mexico, and members of Hmong/Highland Lao tribes and their spouses, widows and dependent children.
The rules also include a number of other troubling provisions that would make it more
difficult for eligible immigrants and citizen children to access food stamps. In particular, a
number of changes related to verification of immigration status, income and other information
could burden immigrant families and would likely lead to further declines in food stamp
participation by eligible immigrant household members and citizen children.
This paper provides a summary of several of the provisions in the proposed rules that
would significantly affect immigrants and their families. A companion paper by the Center on
Budget and Policy Priorities, "Analysis of Proposed Food Stamp Rules: Nanoitizen Provisions."
analyzes these provisions in greater detail. The companion paper also analyzes several additional
provisions of the proposed rules not summarized in this paper.
Provisions Related to Deeming and the Treatment of the Income of Ineligible
Immigrants
The proposed rules include deeming provisions that would:
result in the denial of food stamp benefits 10 thousands of citizen children by
counting the income of the sponsor of an ineligible immigrant in determining the
food stamp eligibility and benefit levels of citizens and non-sponsored immigrants
who live with the sponsored immigrant;
substantially increase the amount of a sponsor's income that is deemed to a
sponsored immigrant by eliminating existing deductions that recognize A
sponsor's work expenses and the sponsor's obligation to support his or her own
household at a minimal lovel; and
2
increase the number of households subject to deeming by deleting an existing
exemption from deeming for immigrants whose sponsors are SO poor they receive
food stamps themselves as part of R separate food stamp household.
USDA has discretion on each of these issues but has proposed highly restrictive rules the welfare
law does not require that would result in the denial of food stamps to otherwise-eligible citizens
and legal immigrants.
Consider, for example, the proposal requiring that the income of sponsors of ineligible
immigrants be counted. Under current USDA guidance, statan have discretion on this issue and
do not have to count the income of sponsors of ineligible immigrants in determining the benefits
of other household members.
This rule would apply to any food stamp household that contains a sponsored immigrant
who filed an application for an immigrant visa or adjustment of status on or after December 19.
1997. These sponsored immigrants are immigrants who have what is commonly known as a
"Form I-864" Affidavit of Support. Counting the sponsor's income in these cases has no effect
on whether the sponsored immigrant gets food stamps; virtually all immigrants with these
affidavits of support entered the United States after August 22, 1996 and are ineligible for food
stamps anyway, What this rule would do would be to make the non-sponsored household
members - including citizen children - ineligible for food stamps for a number of years or to
deter these eligible household members from applying for food stamps in the first place. Even in
cases where a sponsor's income would not make such household members ineligible for food
stamps, the reporting and paperwork requirements associated with deeming would make many of
these household members unlikely to seek food stamps.¹
This proposal to attribute a sponsor's income and resources to citizen children and non-
sponsored immigrants is not required by federal law. The welfare law is silent on whether a
sponsored Immigrant made ineligible by the law must be treated as a household member and
1
" may be argued that under these rules, the proposal to attribute the income of an incligible immigrant's sponsor
in citizen children and non-sponsored immigrants would he I state option. This could be $0 because another
provision of the proposed rulan would give status the options our to COUNT the income of an Immigrant made Inoligible
by the welfare law in determining the eligibility and benefit levels of U.S. citizens and eligible immigrants rending
with that immigrant. Although the proposed rulex me osem explicit on this point, it reasonable 10 assume that in
# state that elected the option not to count the income of ineligible immigrants, the income of an incligible
immigrant's sponsor would not be counted withes.
(ven if this is the CBSC, however, it dues IIIH milve the serious problem that the proposal 10 deem the income or
an inoligible immigrant's sponsor would create. The majority of states are unlikely in take the option not to count
the income of incligible immig ents who uside with citizen children and eligible immigrants. This option has been
available 10 states (through USDA guidance) sinue April 1998. Only five states have implemented it. (Several
additional states are actively considering it.) Furthermore, A MIALO option to attribute the income of & sponsor of un
incligible immigrant to non-xponsored household members is inappropriate in any case. 11 is tentamount to giving
states the option to deny And stamp benefits IU otherwise eligible chizen children. wornothing Congress clearly did
not intend.
3
whether the income and resources of the sponsor of an immigrant who is ineligible for food
stampa must be counted in determining the eligibility of citizens and eligible non-sponsored
immigrants who reside with the sponsored immigrant. USDA has discretion to not to count the
sponsor's income and resources - so that citizen children residing in the houschold may receive
food stamps. Indeed, the legislative history supports such a reading of the welfare law's deeming
requirement. The conference report explains that a sponsor's income is to be taken into account
"in determining the sponsored individual's neediness" [emphasis added].
Making the Current Deeming Rules More Onerous in Ways the Law Does Not Require
Another disturbing provision of the proposed regulations would deem all of a sponsor's
gross income to a sponsored immigrant, without adjusting the income downward to reflect the
amount of support the sponsor might actually be required to provide to such an immigrant.
Under the current food stamp deeming rules. 20 percent of 8 sponsor's earned income is
subtracted to reflect the sponsor's work expenses and taxes. An amount equal to the food stamp
program's monthly gross income limit for a household of the same size as the sponsor's
household also is deducted; this is done to reflect the fact that the sponsor needs to use some of
his or her income to cover the basic living expenses of his or her own household. The proposed
rule would drop both of these deductions and deem 100 percent of the sponsor's gross income to
the sponsored immigrant
USDA has discretion to adopt a deeming rule that better reflects the amount of a
sponsor's Income that could actually be made available to the sponsored immigrant for support.
A range of options can be considered. The best option would be to maintain the current food
stamp deeming rules in this area.
On yet another matter related to deeming, current rules provide that sponsor deeming
does not apply to an immigrant whose sponsor is participating in the food stamp program
separate and apart from the sponsored immigrant. The proposed rules delete this exemption from
deeming. The final rules ought to retain it. Sponsors who are participating in the food stamp
program are unlikely to have much income that could be made available to sponsored immigrants
for support.
Treatment of Income and Resources of Aliens Made Ineligible Under the Welfare Law
On the positive side, the proposed rule includes an important state option to allow states
not to count the income of immigrants made ineligible by the welfare law in determining the
eligibility and benefit levels of U.S. citizens and eligible immigrants who reside with those
immigrants. In states that elect this option - which current USDA guidance allows and which a
modest number of states, including Califor have adopted - citizen children who reside with
ineligible legal immigrants would receive larger benefits. This option also would enable states to
provide more generous state-funded food stamp restorations than would be likely in the rule's
absence. Ry increasing the amount of federally-funded food stamps that eligible children in an
immigrant family receive, this policy reduces the gap a state-funded program must fill and
enables the state to cover 8 broader range of legal immigrants.
4
This is an important provision that deserves support. But it also needs revision. As
written in the proposed rules. this provision could have the unintended effect of reducing or
eliminating benefits for some citizen children and other eligible immigrants.
The proposed rule provides that a state adopting the option not 10 count the income of
ineligible legal immigrants must ensure that the resulting benefit level for the eligible household
members does not exceed the benefit the household would receive if the ineligible immigrant
members were eligible immigrants. The intent of this proposal rules is reasonable. But if the
ineligible immigrant household member is a sponsored immigrant with a Form I-864 Affidavit of
Support, stipulating that the eligible household members cannot receive a larger benefit level
than the household would receive if the ineligible member were an eligible immigrant would
appear to mean the state would have to go through complex deeming procedures to determine the
benefit level that cannot be exceeded.
This would have two deleterious consequences. First, the complexity of the deeming
procedures could significantly reduce state interest in this otherwise-helpful option. Second, if
the state counts the income deemed from an ineligible immigrant's sponsor, the result will
generally be that the eligible household members - who are primarily citizen children - will
have their food stamp benefits cast or eliminated as a result of an option that was supposed 10
help them. This problem can readily be solved if the food stamp benefit level for the eligible
household members is capped at the level the household would be receiving if the ineligible
immigrant members were citizens, rather than if they were eligible aliens. The sole difference
here is that by using an "if they were citizens" test, the perverse and unintended application of
deeming in these circumstances is avoided.
Verification Issues that May Burden Participation by Immigrant Families
The verification process raises special concerns for immigrant families. Documents
required to establish that an applicant is a citizen or has an immigration status that makes the
immigrant eligible for food stamps sometimes can be difficult or take a number of weeks to
obtain. In addition, routine requests from food stamp offices for Immigration status information
or for the social security numbers of immigrant household members who are ineligible for food
stamps - and are not applying for food stamps may raise concerns about whether the
information will be shared with the INS and deter participation by citizens and other eligible
household members. Immigrants also may have language barriers that make it difficult to
understand or comply quickly with verification requirements.
For these reasons, the verification issues the proposed rules present deserve careful
consideration and should be crafted in a manner that does not unnecessarily impede participation
by immigrant families. Unfortunately. the proposed rules fail this test They weaken or repeal a
number of longstanding provisions aimed al assisting and protecting immigrant and other
families, provisions that have been in the food stamp rules for more than 20 years and were
examined and retained by the Reagan and Bush administrations. The likely result would be to
5
intensify "chill" effects that discourage some eligible immigrants and citizen children from
applying for food stamps and to make the program less accessible in Ruch households
Verification of Identity: The proposed rules delete language in the current rules that
state that in verifying identify: "[a]ny documents which reasonably establish the
applicant's identity must be accepted, and no requirement for a specific type of
document, such as a birth certificate, may be imposed." This language should be retained
to preclude burdensome requests for particular documents, such as birth certificates, that
immigrants and naturalized citizens may have difficulty obtaining. This language was
added to the rules in the late 1970s because a major participation barrier in a number of
areas at that time was a requirement for a specific form of documentation of identity,
often a birth certificate. (USDA may contend 11 is not changing its policy here, and that a
state still cannot demand a specific type of document such as & birth certificate. But if
this clear and explicit sentence is removed from the rules, the practices of the 1970s alc
likely to return in some areas.)
Verification of Alien Status: This part of the proposed rules states that "[t]he
immigration status of aliens must be verified." To prevent agencies from interpreting this
provision as requiring the verification of the immigration status of inaligible aliens, which
would have a chilling effect on the participation of eligible household members and
especially citizen children, this sentence should be revised to read: "the immigration
status of eligible aliens must be verified."
The proposed rule also delotes a sentence in the current rules that provide: "[i]f the alien
does not wish to contact the INS [for purposes of verifying immigration status], the
household should be given the option of withdrawing its application or participating
without that member." This provision needs to be retained.
Allowing Sufficient Time to Gather Required Documents: Current food stamp rules
provide that in cases where verification is incomplete, the agency must provide the
household with a statement of what verification is still required and allow the household
at least 10 additional days to provide the "particular verification that was missing." The
proposed rules weaken this protection. They eliminate the reference to the "particular
verification that was missing" and can be read to allow only 10 days for all verification to
be provided, even if some additional verification is requested by the state agency during
the 10-day period. The final rules should maintain the current practice, under which the
household must receive at least ten days to provide any specific piece of verification (and
longer if necessary if the household is attempting to cooperate but needs more time to
come up with the documents).
In addition, current rules prohibit denying a household's application within the 30 days
after a household has applied if the application cannot be processed because some needed
information is missing and the household is trying to secure the information. The
proposed rules eliminate this protection. The current regulation was written to curb what
6
had been a fairly widespread practice of automatically denying applicants after ten days
regardless of whether they were trying to obtain required verification.
Suppose an immigrant. provides documents in verify immigration STATUS on the seventh
day of the initial 10 day verification period and the agency responds by requesting
additional documents it had not specifically identified before. This is not an uncommon
occurrence. Under the proposed rule, the agency could take the position that the
additional documents must be provided within the remaining three days of the 10 day
period, rather than providing an additional 10 days as is required under the current rule.
If the household is unable to provide the additional documents in three days, the state
could deny the application, 8 consequence not allowed under the current rules. The result
could be more denials of immigrant households that apply for food stamps.
Related problems could occur under the proposed rule when the food stamp office
requests additional verification and the applicant household is attempting to secure the
material but has not been able 10 do 80 within 30 days. Under current rules, if the
household provides the needed information by the 60th day after applying, the application
is processed. By contrast, under the proposed rules, food stamp offices could deny all
such applications on the 30th day and make households providing the necessary
information on the 35th or 40th day submit new applications and start the application
process all over again, even though all of the information needed to determine their
eligibility has now been provided. This may cause some households to give up,
especially immigrant working families that have to take time off from work to go to the
food stamp office.
These proposed changes in the rules pose particular problems for immigrants, who often
are faced with highly technical verification requirements related to immigration status
and may need more time to get certain documents from government agencies or from
overseas. Immigrants also may have language barriers that make it more difficult for
them to understand or quickly provide exactly what the food stamp agency is requesting.
Requests for Social Security Numbers and Immigration Status
A substantial number of children eligible for food stamps live with parents or other
household members who are undocumented or in an immigration status that renders them
ineligible for some means-tested programs. Requests for immigration status information or the
Social Security numbers of these ineligible family members during the food stamp application
process can dater citizen children and eligible legal immigrant members of some mixed-status
households from participating in the food stamp program.
In the near future, HHS and USDA are expected to issue joint guidance relating to state
requests for SSNs and immigration status information on Medicaid, CHIP, food stamps, and
TANF application forms. It is important that the final food stamp rules be consistent with this
forthcoming joint agency guidance, which is expected to be excellent. The preferred approach to
food stamp agency requests for SSNs and information about immigration status should be
7
modeled an the Medicaid application process. In Medicaid, states must allow applicants to
designate specific family members as "non-applicants" before applicants are asked to provide
immigration status information or SSNs for family members applying for Medicaid. At a
minimum, the final food stamp rules should prohibit states from asking non-applicants to provide
immigration status information and give states the option not to ask non-applicants to provide
social security numbers.
Home Visits
Home visits, especially unannounced home visits, are likely to have a chilling effect on
the participation of mixed immigrant-status households in the food stamp program. Current food
stamp rules generally do not allow home visits unless documentary evidence is unavailable and
the home visit is scheduled in advance with the household. Several states, however, conduct
unannounced home visits on a widespread basis and claim that current protections in the food
stamp rules do not apply because the visits are for "fraud prevention" purposes.
In some states these practices are used in cases where the state has no basis to believe a
particular family has committed fraud. These states target home visits on households that fall in
a category of households that has a significantly higher-than-average error rate and label such
visits as "fraud prevention." Such practices reflect a rather tortured interpretation of current food
stamp rules, but USDA's Food and Nutrition Service allows them.
These practices are likely to affect a disproportionate percentage of mixed-immigrant-
status households because of the complex nature of the food stamp rules that now relate to
immigrants' eligibility for food stamps. The welfare law and other recent legislation make some
members of immigrant households eligible for food stamps and other members ineligible. The
complexities of determining immigrant eligibility and doaling with the treatment of income and
expenses of ineligible immigrants in the household make these households more error-prone than
other food stamp households. Prior to the welfare law, immigrant households did not have an
above-average food stamp error rate. Now, the error rate for households with immigrant
members is well above average, a direct result of the added complexity the federal government
has imposed in this part of the program. As a result, those households can be classified as error-
prone and disproportionately subjected to unannounced home visits.
The final rules should reduce the chilling effect that unannounced home visits have on
immigrants' participation in the food stamp program by applying the protections in the current
rules on the use of home visits for verification purposes to all home visits conducted by food
stamp agency personnel. Unamounced home visits should be restricted to cases where law
enforcement officials have & specific basis for suspecting the household has committed fraud.
They should not be used by food stamp offices when a household falls into # category that has an
above-average error rate.
8