80 FR 54410 - Clarification of Eligibility of Fleeing Felons

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service

Federal Register Volume 80, Issue 175 (September 10, 2015)

This rule implements Section 4112 of the Food, Conservation, and Energy Act of 2008. Section 4112 amended Section 6(k) of the Food and Nutrition Act of 2008 to require the Secretary of Agriculture to define the terms ``fleeing'' and ``actively seeking'' to ensure that State agencies use consistent procedures regarding the disqualification of a fleeing felon from eligibility for SNAP benefits when the individual is fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing (or a high misdemeanor in New Jersey) or is violating a condition of probation or parole under Federal or State law.

[Federal Register Volume 80, Number 175 (Thursday, September 10, 2015)]
[Rules and Regulations]
[Pages 54410-54417]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-22763]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 272 and 273

RIN 0584-AE01


Clarification of Eligibility of Fleeing Felons

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

ACTION: Final rule.

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SUMMARY: This rule implements Section 4112 of the Food, Conservation, 
and Energy Act of 2008. Section 4112 amended Section 6(k) of the Food 
and Nutrition Act of 2008 to require the Secretary of Agriculture to 
define the terms ``fleeing'' and ``actively seeking'' to ensure that 
State agencies use consistent procedures regarding the disqualification 
of a fleeing felon from eligibility for SNAP benefits when the 
individual is fleeing to avoid prosecution, custody or confinement 
after conviction for committing a crime or attempting to commit a crime 
that is a felony under the law of the place from which the individual 
is fleeing (or a high misdemeanor in New Jersey) or is violating a 
condition of probation or parole under Federal or State law.

DATES: This rule is effective November 9, 2015.

FOR FURTHER INFORMATION CONTACT: Sasha Gersten-Paal, Certification 
Policy Branch, Program Development Division, Food and Nutrition 
Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, 
(703) 305-2507.

SUPPLEMENTARY INFORMATION: 

Background

    The Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Food 
Stamp Act of 1977 (now entitled The Food and Nutrition Act of 2008) 
(the Act) to disqualify fleeing felons from the Supplemental Nutrition 
Assistance Program (SNAP). To be disqualified under the fleeing felon 
provisions of PRWORA, an individual must be either: Fleeing to avoid 
prosecution, custody or confinement after conviction for committing a 
crime or attempting to commit a crime that is a felony under the law of 
the place from which the individual is fleeing (or a high misdemeanor 
in New Jersey); or violating a condition of probation or parole imposed 
under Federal or State law. The intent of the law was to prohibit 
individuals who were intentionally fleeing to avoid prosecution or 
imprisonment from receiving SNAP benefits and to aid law enforcement 
officials actively seeking to apprehend those fleeing to avoid 
prosecution or custody by providing them with needed information as 
allowable under the Act. The disqualification provisions were codified 
in the SNAP regulations on January 17, 2001, at 66 FR 4438. For 
simplicity, throughout the balance of this preamble we will use the 
term felony to encompass felonies, and, in the State of New Jersey, 
felonies and high misdemeanors.
    Section 4112 of the Food, Conservation, and Energy Act of 2008 
(Pub. L. 110-246) amended Section 6(k) of the Act to require the 
Secretary of Agriculture to define the terms ``fleeing'' and ``actively 
seeking'' to ensure State agencies use consistent procedures to 
disqualify individuals fleeing to avoid prosecution, custody or 
confinement after conviction for committing a crime or attempting to 
commit a crime that is a felony under the law of the place from which 
the individual is fleeing or is violating a condition of probation or 
parole under Federal or State law. On August 19, 2011, the U.S. 
Department of Agriculture's (USDA) Food and Nutrition Service (FNS) 
published a proposed rule at 76 FR 51907, providing proposed 
definitions for ``fleeing'' and ``actively seeking'', and procedures 
for disqualifying individuals determined to be fleeing or violating a 
condition of probation or parole. Readers are directed to the proposed 
rule for a more thorough description of the policies in effect prior to 
the publication of the proposed rule and for the reasons the Department 
was directed to define these terms. The Department received thirty-
seven comments on the proposed rule. Comments were received from State 
agencies, legal service organizations, advocacy groups, state 
investigative agencies, and private citizens.
    The regulations governing the fleeing felon and parole and 
probation violators are found at 7 CFR 272.1(c)(1)(vii) Disclosure, 7 
CFR 273.1(b)(7)(ix) Special household requirements, 7 CFR 
273.2(b)(4)(ii) Privacy Act Statement, and 7 CFR 273.11(n) Fleeing 
Felons and probation or parole violators. The Department proposed 
revising Sec.  273.11(n) in its entirety. The Department also proposed 
a conforming amendment for 7 CFR 272.1(c)(1)(vii) Disclosure.
    Section 202 of PRWORA established similar provisions for 
Supplemental Security Income (SSI). The Social Security Administration 
(SSA) developed more rigorous standards than FNS in implementing the 
legislative

[[Page 54411]]

provision. SSA's Social Security Program Operations Manual System 
(POMS) provided that an individual is ineligible to receive SSI 
benefits beginning any month in which a warrant, court order or 
decision, or an order of decision by an appropriate agency is issued 
which finds that individual is wanted in connection with a crime that 
is a felony. SSA was sued in multiple courts on its policy. On 
September 24, 2009, the United States District Court for the Northern 
District of California approved a settlement agreement in the case of 
Martinez v. Astrue, Civ. No. 08-cv-04735 cw. Under that settlement, SSA 
will suspend or deny benefits to an individual only if a law 
enforcement officer presents an outstanding felony arrest warrant for 
any of three categories of National Crime Information Center (NCIC) 
Uniform Offense Classification Codes: Escape (4901), Flight to Avoid 
(prosecution, confinement, etc.) (4902), and Flight-Escape (4999). This 
method of identifying fleeing felon status is referred to throughout 
the rest of the preamble as Martinez for ease of reference.
    In developing the proposed rule, the Department did not adopt the 
Martinez settlement for SNAP. As explained more thoroughly in the 
preamble to the proposed rule, after FNS' implementation of PRWORA 
requirements, the FCEA contained specific direction for additional 
amendments to SNAP requirements surrounding the disqualification of 
felons. At the same time, FNS believed that SSA's implementation of its 
PRWORA requirements were overly rigorous. Because the direction to FNS 
in the FCEA preceded the settlement agreement in Martinez, FNS did not 
believe it was appropriate to follow the Martinez settlement. However, 
the Department did express interest in hearing from commenters whether 
they believed that SNAP should follow the Martinez settlement in 
defining a fleeing felon. Twenty-two of the thirty-seven commenters 
recommended that the Department adopt the Martinez settlement. The 
Department has taken those comments into consideration in developing 
this final rule and is incorporating Martinez as an alternative test 
for establishing whether an individual is a fleeing felon and whether a 
law enforcement agency is actively seeking the individual.

Fleeing Felons

    In Sec.  273.11(n), the Department proposed that, before a State 
agency determines an individual to be a ``fleeing'' felon, the 
following four criteria must be met: (1) There has to be a felony 
warrant for an individual; (2) the individual has to be aware of, or 
should reasonably have been able to expect that, a warrant has or would 
have been issued; (3) the individual has to have taken some action to 
avoid being arrested or jailed; and (4) a law enforcement agency must 
be actively seeking the individual. The Department proposed that all 
four items have to be present and verified by the State agency to 
determine that an individual is a fleeing felon (i.e., there is an 
outstanding felony warrant, the State agency has documented evidence 
that the individual knew about the warrant or could reasonably have 
anticipated a warrant was going to be issued, the State agency has 
documentation that the individual took an action to avoid arrest or 
jail for the felony, and a law enforcement agency is actively seeking 
the individual).
    The proposed rule allowed one exception to the four-part test. This 
exception provided that FNS would consider an individual to be a 
fleeing felon if a law enforcement officer presents an outstanding 
felony arrest warrant for any of three categories of NCIC Uniform 
Offense Classification Codes: Escape (4901), Flight to Avoid 
(prosecution, confinement, etc.) (4902), and Flight-Escape (4999) to a 
State agency to obtain information on the location of and other 
information about the individual named in the warrant, in accordance 
with the provisions of Section 11(e)(8)(E) of the Act. Although the 
Department indicated in the proposed rule the intention not to adopt 
Martinez, the proposed exception essentially was Martinez, and an 
alternative to the four-part test. For this and other reasons discussed 
subsequently, in this final rule a State agency may adopt either the 
four-part test or, as an alternative, the Martinez test for purposes of 
determining whether an individual is a fleeing felon.
    Thirteen commenters supported the four-part test, although, as 
noted above, most of those supporting it would prefer the Department 
adopt the Martinez test. One commenter recommended that we allow each 
State agency the option to adopt either the four-part test or the 
Martinez test.
    Ten commenters opposed the four-part test, although the reasons for 
opposition were not consistent. Two commenters opposed the requirement 
that State agencies have the responsibility to verify fleeing felon 
status instead of the household. Eight commenters supported the 
proposed requirement. The Department is adopting the requirement that 
the State agency has responsibility for obtaining verification of 
fleeing felon status. Since publication of the proposed rule, we have 
determined that the requirement that the State agency, not the 
household, has responsibility for verification of fleeing felon and 
probation or parole violation status should also be addressed in 7 CFR 
273.2(f) (Verification). Consequently, the Department has added a 
provision to 7 CFR 273.2(f)(5)(i) that places responsibility for 
verification of fleeing felon on the State agency.
    One commenter pointed out that the regulations needed to clarify 
that the underlying cause for the warrant was for a felony offense. The 
Department agrees and has revised Sec.  273.11(n) to clarify that the 
underlying crime for which the warrant was issued was for committing a 
crime or attempting to commit a crime that is a felony under the law of 
the place from which the individual is fleeing.
    Five commenters were concerned about the requirement that the State 
agency verify that the individual was aware or should have been aware 
of a warrant and/or that the individual had taken some action to avoid 
being arrested or jailed (parts 2 and 3 of the 4-part test of fleeing 
felon). The Department is aware that these are difficult 
determinations. However, it is impossible for the Department to supply 
an exhaustive list of actions that would constitute knowledge in either 
circumstance. Evidence provided by a law enforcement officer that the 
individual left the jurisdiction following a court appearance would be 
indicative of the individual taking action to avoid being arrested or 
jailed, for instance, but moving from one home to another would not be 
evidence of either part of the test. The State agency will have to 
evaluate each case separately, using a reasonable standard established 
by the State to ensure consistency for all cases, and document the case 
file accordingly.
    Five commenters opposed the four-part test because they believed 
that the current tests are sufficient or that the proposal was too 
complex, and that a warrant in and of itself should be sufficient to 
identify a person as a fleeing felon. Two of these five commenters were 
investigative agencies and one was an organization representing 
investigative agencies. One commenter was a State agency who reported 
that its fraud investigators felt the Department had no authority to 
dictate a time frame for a law enforcement agency to act on a warrant. 
The fifth was a private citizen. The investigative agencies, in 
particular, wanted the policies to remain the same.

[[Page 54412]]

While we understand the concerns expressed by the investigative 
agencies, the Department cannot leave the regulations as currently 
written. The Department is required by law to define the terms 
``fleeing felon'' and ``actively seeking.'' Congress, in enacting 
section 4112 and the legislative history supporting it, as documented 
in the proposed rule, made it clear that the current policies were not 
sufficient. The Department is not dictating the time frame for a law 
enforcement officer to act on a warrant. The Department is simply 
defining ``actively seeking'' for SNAP purposes, establishing when an 
individual must be disqualified under the fleeing felon provisions of 
the Act. That definition does not require a law enforcement agency to 
act within those time frames.
    To more closely mirror the language in the Act, and to improve 
consistency of terms, the Department is revising certain terms referred 
to in the regulatory text of the final rule. In particular, the 
Department specifies that warrants are felony warrants that law 
enforcement agencies must be Federal, State or local law enforcement 
agencies, and that law enforcement officials must be acting in their 
official capacity, in the text of the final regulations. For 
consistency, the Department also adds to the text of the final 
regulation that not only if a law enforcement agency does not indicate 
that it intends to enforce a felony warrant, but also if a law 
enforcement agency does not intend to arrest an individual for 
probation or parole violations, within 30 days, the State agency shall 
not determine the person is a fleeing felon or probation or parole 
violator. In addition, the Department makes other minor changes in the 
final rule text to improve readability and legal clarity.
    One commenter raised concerns about the difficulty of serving 
warrants on Indian reservations. While the Department recognizes that 
an Indian reservation may not cooperate with a local law enforcement 
agency concerning enforcement of a warrant, the Department does not 
believe that it is appropriate to disqualify an individual indefinitely 
from food assistance because of jurisdictional issues that cannot be 
resolved. It should be noted, however, that as long as the law 
enforcement agency continues to attempt to enforce the warrant, the law 
enforcement agency would be considered to be actively seeking the 
individual. The State agency would need verification from the law 
enforcement agency that it is continuing its attempts to enforce the 
warrant and would need to document the case file accordingly.
    The Department finds the commenters' arguments supporting the use 
of the Martinez test persuasive. As discussed in the proposed rule and 
above, the Department believed the initial factors subject to the suit 
in Martinez to be too stringent and inappropriate for purposes of SNAP 
and that the legislative intent of the FCEA (post Martinez decision) 
required distinct, uniform, and clear standards. However, in light of 
the comments to the proposed rule, the Department is persuaded that the 
Martinez approach can still support the uniformity and clarity required 
by the FCEA. As demonstrated by the public's response to the 
Department's requests for specific feedback on this matter, allowing 
the Martinez test as an alternative to the Department's four-part test 
has garnered significant support as a usable and administratively 
feasible way to also implement the FCEA's requirements of uniformity 
and clarity. For example, one commenter, an association representing 
State agencies, commented that the proposed rule definition would 
require a complex and time-consuming series of steps that must be taken 
for disqualification of each individual, and includes criteria that 
cannot be known with objective certainty. The Martinez test, in 
contrast, provides simplicity and certainty due to its objective 
enforceability--the presentation of a felony arrest warrant by a law 
enforcement officer. This commenter also explained that although some 
States had implemented approaches similar to the four-part test in the 
Department's proposed rule, a number of States had already implemented 
the Martinez test or were planning to do so. This established, real 
world use and commenter response demonstrates the value and reliability 
of the Martinez test.
    The objective standard used by Martinez--the presentation of a 
felony arrest warrant based on one of the three NCIC categories by a 
law enforcement officer--effectively establishes uniform definitions of 
``fleeing'' and ``actively seeking,'' as required by the FCEA. The 
definition of ``fleeing'' is uniformly established by requiring that 
the individual's actions must fit within one of the three NCIC Uniform 
Offense Classification Codes, Escape (4901), Flight to Avoid 
(prosecution, confinement, etc.) (4902), and Flight-Escape (4999). The 
presentation of a felony arrest warrant to a State agency by a law 
enforcement officer establishes that the law enforcement agency is 
``actively seeking'' the individual.
    On further review, based on the comments received, the Department 
has decided to require State agencies to adopt the definitions of 
fleeing felon and actively seeking as proposed by using either the 
four-part test or the Martinez test. This allows State agencies the 
flexibility to determine which test best suits their needs and 
administrative structures, while still requiring uniform definitions, 
standards and procedures.
    Each State agency will have to submit an amendment to its State 
Plan identifying the option it selects. We have added a requirement to 
7 CFR 272.2(d)(1) to mandate that each State agency identify the option 
chosen in its State plan and have modified Sec.  273.11(n) to reflect 
the two alternative tests to establish whether a person is a fleeing 
felon.
    Three commenters raised concerns about inconsistency with SSA and 
State Combined Application Projects (CAP). The Department does not 
believe that inconsistency between the two agencies will present a 
problem. An individual disqualified by SSA as a fleeing felon would not 
be eligible for the State's CAP. If the question of whether an 
individual may be a fleeing felon arises in the SNAP office, it will be 
the State agency's responsibility to determine if the individual meets 
its definition of fleeing felon status. Each State agency using the 
four-part test would also remain responsible for determining ``actively 
seeking'' in the event that an individual is identified as a fleeing 
felon or probation or parole violator, regardless of whether the 
individual is participating through a CAP. Also, if a law enforcement 
officer approaches the State agency with a felony warrant, the State 
agency would still have to make a determination of fleeing felon status 
for a CAP SNAP participant. So, the State agency would not be relying 
on the SSA determination of fleeing felon status.

Probation and Parole Violators

    Section 6(k) of the Act prohibits any individual from participating 
in SNAP during any period in which the individual is violating a 
condition of probation or parole imposed under a Federal or State law. 
Neither the term ``fleeing'' nor ``felony'' is referenced in the 
prohibition from participating based on probation or parole violation. 
Additionally, the Act and the legislative history of the Act provide no 
guidance about what constitutes a probation or parole violation. 
Likewise, the Act does not limit such violations to felony charges 
only. Therefore, the Department proposed that the disqualification 
apply to all identified probation or parole violations. The Department 
received no

[[Page 54413]]

comments addressing this aspect of the proposal and is adopting the 
provision that an individual determined to have violated any probation 
or parole imposed under Federal or State law will be disqualified from 
SNAP eligibility.
    In the proposed rule, we proposed that in order for an individual 
to be a probation or parole violator, (1) the individual must have 
violated a condition of his or her probation or parole, and (2) law 
enforcement must be actively seeking the individual to enforce the 
conditions of the probation or parole.
    The Department received eighteen comments on the proposed standards 
and procedures for determining whether an individual should be 
considered a probation or parole violator. Fourteen of those commenters 
requested that the regulation specify that an impartial party must make 
a determination that there has been a probation or parole violation. 
The Department agrees with these commenters that only an impartial 
party should determine whether an individual violated probation or 
parole imposed under Federal or State law. The State agency has the 
discretion to determine what constitutes an impartial party. The 
provision at Sec.  273.11(n)(2) has been modified accordingly. Two 
commenters wanted the Department to make no changes to the current 
standards and procedures. One was an investigative agency, the other a 
private citizen. Congress directed the Department to address the lack 
of clarity in the current procedures; therefore, the Department cannot 
accommodate these two commenters.
    As discussed in the preamble to the proposed rule, Section 6(k)(2) 
of the Act requires the Department to ensure that ``actively seeking'' 
is defined, and that consistent procedures are established that 
disqualify individuals whom law enforcement authorities are actively 
seeking for the purpose of holding criminal proceedings against the 
individual. In the proposed rule, we interpreted Section 6(k)(2) to 
also require the application of the term ``actively seeking'' to 
probation and parole violators. We proposed in Sec.  273.11(n) that 
State agencies follow the same procedures for verifying through law 
enforcement whether an applicant or participant is a probation or 
parole violator as those used to determine if an individual is a 
fleeing felon. This would ensure that there are consistent procedures 
in place for establishing if a law enforcement office is actively 
seeking an individual, whether that individual is a fleeing felon or a 
probation or parole violator. One commenter, an investigator, wanted 
the current procedure that does not define actively seeking to remain 
in place. Because we are required by law to define ``actively 
seeking,'' we have adopted the definition of ``actively seeking'' for 
probation and parole violators as proposed. We have also determined 
that State agencies have the responsibility of verifying the parole or 
probation violator status of an individual.

Application Processing

    As discussed in the proposed rule, the time necessary for 
determining fleeing felon or probation or parole violator status may 
extend beyond the time frames allowed under 7 CFR 273.2(g) and 7 CFR 
273.2(i)(3) for State agencies to process applications. Therefore, the 
Department proposed in Sec.  273.11(n)(5) that if a State agency needs 
to act on an application without determining fleeing felon or probation 
or parole violator status in order to comply with the time frames 
allowed under 7 CFR 273.2(g) and 7 CFR 273.2(i)(3), the State agency 
shall process the application without consideration of the individual's 
fleeing felon or probation or parole violator status.
    Three commenters raised concerns about expedited service. As 
proposed in Sec.  273.11(n)(5), the State agency would be required to 
meet the time frames for providing expedited service in 7 CFR 
273.2(i)(3) if fleeing felon or probation or parole violator status 
could not be resolved within the expedited service time frames. The 
Department is adopting Sec.  273.11(n)(5) as proposed.
    One commenter raised a concern about determining when a person 
ceases to be a fleeing felon or a probation or parole violator (e.g., 
when the warrant expires, when the individual is arrested, at the next 
reporting period, or at recertification). That commenter recommended 
that an individual be disqualified until the individual is arrested. 
The Act does not define a specific period for which an individual is 
denied or terminated for being a fleeing felon or a probation or parole 
violator. It simply provides that the individual is disqualified if the 
individual is a fleeing felon or a probation or parole violator. It is 
the Department's view that an individual is only a fleeing felon or a 
parole or probation violator for SNAP purposes if that individual meets 
the definition in Sec.  273.11(n). Therefore, assuming the law 
enforcement agency has not arrested the individual who is therefore 
ineligible because he or she is a resident of an institution, the 
individual would be free to apply for SNAP at any time. A new 
determination of fleeing felon or probation or parole violator would 
need to be made each time the individual applies. The Department 
recognizes that this could result in churning (that is, when a SNAP 
case exits the program and then reenters within four months or less); 
however, there is no provision in the Act that would establish a time 
period for disqualification or preclude the individual from reapplying.

Privacy Act, Simplified Reporting, and Transitional Benefits

    It should be noted that the Privacy Act provisions and 
confidentiality provisions found at Section 11(e)(8) of the Act remain 
intact for individuals subject to the fleeing felon and parole or 
probation violator provisions of the Act. Therefore, the Department is 
reminding the reviewers of this rule that the provisions regarding the 
process of providing information to law enforcement officials only 
applies to legitimate law enforcement officers. Information about 
potential fleeing felons or parole or probation violators must not be 
released to individuals reporting possible violations by recipients or 
applicants, such as bounty hunters.
    Under 7 CFR 273.12(a)(5), State agencies are permitted to place 
households under a simplified reporting system. Under such a system, 
the State agency may choose to act on all changes in household 
circumstances (7 CFR 273.12(a)(5)(vi)(A)), or to act on any change if 
it would increase the household's benefits and not act on any change 
that would decrease the household's benefits, unless the household has 
voluntarily requested that its case be closed, the State agency has 
information about the household's circumstances considered verified 
upon receipt, or there has been a change in the household's public 
assistance grant (7 CFR 273.12(a)(5)(vi)(B)). If an individual has been 
determined to be a fleeing felon or a probation or parole violator in 
accordance with 7 CFR 273.11(n), the Act prohibits this individual from 
participating in SNAP. In order to ensure that the individual is 
removed from the program in accordance with the requirements of the 
Act, the Department proposed to add a requirement to 7 CFR 
273.12(a)(5)(vi)(B) that the State agency act to remove the individual 
even though it might result in a decrease in benefits. Two comments 
were received on this proposal. One commenter supported removing the 
individual; the other commenter opposed removing the individual as it 
complicates simplified reporting and requires additional computer 
programming. No commenter raised a

[[Page 54414]]

legal point that would allow an individual to continue to participate 
due to the restrictions of simplified reporting, and because an 
individual determined to be a fleeing felon or a probation or parole 
violator is prohibited by the Act from participating in the program, 
the individual cannot be allowed to participate regardless of the 
household's reporting system. Therefore, the Department has adopted the 
provision as proposed.
    Subpart H of Part 273, beginning at Sec.  273.26, which was 
promulgated in accordance with Section 4115 of the Farm Security and 
Rural Investment Act of 2002 (FSRIA), Pub. L. 107-17, permits 
households leaving the Temporary Assistance for Needy Families (TANF) 
program to receive transitional benefits for households. Section 4115 
refers to ineligible households rather than ineligible household 
members. The regulations at 7 CFR 273.26 provide that State agencies 
may choose to limit transitional benefits to households in which all 
members had been receiving TANF, or may provide benefits to any 
household in which at least one member had been receiving TANF. 
Households in which all members are disqualified for being fleeing 
felons or probation or parole violators are clearly excluded from 
receiving transitional benefits. Once approved for transitional 
benefits, the benefit amount cannot be changed unless the State agency 
has opted to adjust the benefit in accordance with 7 CFR 273.27. 
Consequently, the Department proposed that, in order to conform to the 
intent of section 4115 of the FSRIA concerning ineligible households 
rather than ineligible household members, the State agency shall not 
take action to adjust a household's transitional benefit amount because 
an individual in that household has been determined to be a fleeing 
felon or a probation or parole violator, unless the provisions of 7 CFR 
273.27 are applicable. The Department did, however, express interest in 
seeking comments about this decision to continue transitional benefits 
for the entire household when an individual household member has been 
determined to be a fleeing felon or probation or parole violator.
    The Department received five comments about transitional benefits. 
Three commenters supported continuing transitional benefits for the 
entire household when a household member has been determined to be a 
fleeing felon or probation or parole violator. One commenter 
misunderstood and thought the Department was proposing to remove the 
individual, not keep the benefits unchanged. One commenter opposed the 
preamble explanation, and recommended that the fleeing felon be removed 
from the household and the benefits reduced. The Department is 
finalizing the prohibition that a State shall not adjust a household's 
transitional benefit amount because an individual in that household has 
been determined to be a fleeing felon or a probation or parole 
violator, unless the provisions of 7 CFR 273.27 are applicable. The 
Department continues to believe this decision conforms to the intent of 
section 4115 of the Farm Security and Rural Investment Act concerning 
ineligible households rather than ineligible household members.

Miscellaneous

    Since publication of the proposed rule, two issues related to the 
provision disqualifying fleeing felons from participation, but not 
addressed in the proposed rule, have come to the Department's 
attention. When the final rule, Personal Responsibility Provisions of 
the Personal Responsibility Act of 1996 (66 FR 4438), January 17, 2001, 
was published, the preamble explained that the proposed paragraph 7 CFR 
272.1(c)(1)(vii) essentially tracked the statutory language, including 
the requirement for the name of the household member being sought to be 
provided when requesting disclosure of household information. However, 
the actual language of paragraph 7 CFR 272.1(c)(1)(vii), in both the 
proposed rule and the final rule, omitted the requirement that the law 
enforcement officer provide the name of the individual being sought. 
Section 11(e)(8)(E) of the Act requires that the law enforcement 
officer furnish the State agency with the name of the household member 
being sought. This was a technical oversight that needs to be 
corrected. Therefore, the Department is adding this requirement at 7 
CFR 272.1(c)(1)(vii) through this final rulemaking.
    Following publication of the proposed rule, State agencies 
requested policy clarifications from FNS regional offices about how to 
determine the time period for establishing claims for individuals 
identified as fleeing felons or as probation or parole violators. 
Although we did not receive any formal comments about this issue, the 
Department would like to clarify that, for purposes of SNAP, an 
individual is not considered a fleeing felon or a probation or parole 
violator until a determination has been made in accordance with 7 CFR 
273.11(n). Therefore, the date of the determination of fleeing felon or 
probation or parole violator status would be the date from which any 
claims calculation would be made.

Procedural Matters

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has been designated not significant and 
was not reviewed by the Office of Management and Budget (OMB) in 
conformance with Executive Order 12866.

Regulatory Impact Analysis

    This rule has been designated as not significant by the Office of 
Management and Budget, therefore, no Regulatory Impact Analysis is 
required.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
Department generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may

[[Page 54415]]

result in expenditures by State, local or Tribal governments, in the 
aggregate, or the private sector, of $100 million or more in any one 
year. When such a statement is needed for a rule, Section 205 of the 
UMRA generally requires the Department to identify and consider a 
reasonable number of regulatory alternatives and adopt the most cost 
effective or least burdensome alternative that achieves the objectives 
of the rule.
    This final rule does not contain any Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
Tribal governments or the private sector of $100 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

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

Federalism Summary Impact Statement

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

Executive Order 12988

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

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities.
    Section 821 of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 
6 of the Act to prohibit fleeing felons and parole violators from 
participating in the program. This prohibition was codified in SNAP 
regulations by the final rule ``Food Stamp Program; Personal 
Responsibility Provisions of the Personal Responsibility and Work 
opportunity Reconciliation Act of 1996'' (66 FR 4438). SNAP regulations 
at 7 CFR 273.11(n) addresses the prohibition for participation by an 
individual identified as a fleeing felon or a probation or parole 
violator. The existing regulations do not define ``fleeing'' and do not 
provide procedures for the State agency to use in disqualifying an 
individual identified as a fleeing felon or a probation or parole 
violator. Section 6(k) of the Act requires the Secretary of Agriculture 
to define the terms ``fleeing'' and ``actively seeking'' to ensure SNAP 
State agencies use consistent procedures to disqualify individuals. 
After a careful review of the rule's intent and provisions, FNS has 
determined that there is no way to determine whether the rule would 
have any impact on minorities, women, and persons with disabilities. 
FNS does not collect information on persons disqualified under the 
fleeing felon and parole violation provisions. Such a new collection 
would be difficult information to capture and cause an unnecessary 
burden on State agencies. Therefore, we are unable to determine whether 
a disproportionate number of minorities, women, and persons with 
disabilities are disqualified. This rule provides greater direction on 
what constitutes a fleeing felon or parole violator, what constitutes 
actively seeking, and more uniform procedures among the States. The 
impact of the rule may be to lower the number of individuals 
disqualified, but without information on the number currently being 
disqualified or information on the number of warrants that will be 
applicable under the procedures, there is no way to determine if there 
actually will be a reduction. Nor, without such data being available is 
there a way to determine if the new provisions affect minorities, 
women, and persons with disabilities more than the general SNAP 
caseload.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires the Office of Management and Budget (OMB) to approve all 
collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
Under this final rule State agencies will have to submit an amendment 
to its State Plan identifying which definition of ``fleeing felon'' it 
selects. Reporting burden for annual State Plan of Operations Updates, 
such as the requirement at 272.2(d)(1) to indicate the definition of 
fleeing felon, is included in a currently approved information 
collection (OMB Control Number 0584-0083, expiration date 4/30/2017). 
The impact of this rule on the existing burden is negligible and 
therefore no modification to the current requirements is necessary.

E-Government Act Compliance

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

Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
    We are unaware of any current Tribal laws that could be in conflict 
with the final rule. We did not receive any comments from Tribal 
organizations. One commenter raised concerns about the difficulties 
local law enforcement officers may have trying to enforce a warrant on 
tribal land. That is not a SNAP concern; it is a law enforcement 
concern. This regulation does not require any change in operations for 
the Tribal organizations.

[[Page 54416]]

List of Subjects

7 CFR Part 272

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

7 CFR Part 273

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

    For the reasons set forth in the preamble, 7 CFR parts 272 and 273 
are amended as follows:

0
1. The authority citation for Parts 272 and 273 continue to read as 
follows:

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

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

0
2. Revise Sec.  272.1(c)(1)(vii) to read as follows:


Sec.  272.1  General terms and conditions.

* * * * *
    (c) * * *
    (1) * * *
    (vii) Local, State, or Federal law enforcement officers acting in 
their official capacity, upon written request by such law enforcement 
officers that includes the name of the household member being sought, 
for the purpose of obtaining the address, social security number, and, 
if available, photograph of the household member, if the member is 
fleeing to avoid prosecution or custody for a crime, or an attempt to 
commit a crime, that would be classified as a felony (or a high 
misdemeanor in New Jersey), or is violating a condition of probation or 
parole imposed under a Federal or State law. The State agency shall 
provide information regarding a household member, upon written request 
of a law enforcement officer acting in his or her official capacity 
that includes the name of the person being sought, if the other 
household member has information necessary for the apprehension or 
investigation of the other household member who is fleeing to avoid 
prosecution or custody for a felony, or has violated a condition of 
probation or parole imposed under Federal or State law. The State 
agency must accept any document that reasonably establishes the 
identity of the household member being sought by law enforcement 
authorities. If a law enforcement officer provides documentation 
indicating that a household member is fleeing to avoid prosecution or 
custody for a felony, or has violated a condition of probation or 
parole, the State agency shall follow the procedures in Sec.  273.11(n) 
to determine whether the member's eligibility in SNAP should be 
terminated. A determination and request for information that does not 
comply with the terms and procedures in Sec.  273.11(n) would not be 
sufficient to terminate the member's participation. The State agency 
shall disclose only such information as is necessary to comply with a 
specific written request of a law enforcement agency authorized by this 
paragraph.
* * * * *

0
3. Amend Sec.  272.2 by adding new paragraph (d)(1)(xvii) to read as 
follows:


Sec.  272.2  Plan of operation.

* * * * *
    (d) * * *
    (1) * * *
    (xvii) A plan indicating the definition of fleeing felon the State 
agency has adopted, as provided for in Sec.  273.11(n).
* * * * *

PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS

0
4. Amend Sec.  273.2 by adding a new sentence at the end of paragraph 
(f)(5)(i) to read as follows:


Sec.  273.2  Office operations and application processing.

* * * * *
    (f) * * *
    (5) * * *
    (i) * * * However, the State agency has primary responsibility for 
verifying fleeing felon and parole or probation violator status in 
accordance with Sec.  273.11(n).
* * * * *
0
5. Amend Sec.  273.11 by adding paragraphs (n)(1) through (5) to read 
as follows:


Sec.  273.11  Action on households with special circumstances.

* * * * *
    (n) * * *
    (1) Fleeing felon. An individual determined to be a fleeing felon 
shall be an ineligible household member. To establish an individual as 
a fleeing felon, a State agency must verify that an individual is a 
fleeing felon as provided in paragraph (n)(1)(i) of this section, or a 
law enforcement official acting in his or her official capacity must 
have provided the State agency with a felony warrant as provided in 
paragraph (n)(1)(ii) of this section. The State shall specify in its 
State plan of operation which fleeing felon test it has adopted as 
required at Sec.  272.2(d)(1)(xvii) of this chapter.
    (i) Four-part test to establish fleeing felon status. To establish 
that an individual is a fleeing felon, the State agency must verify 
that:
    (A) There is an outstanding felony warrant for the individual by a 
Federal, State, or local law enforcement agency, and the underlying 
cause for the warrant is for committing or attempting to commit a crime 
that is a felony under the law of the place from which the individual 
is fleeing or a high misdemeanor under the law of New Jersey;
    (B) The individual is aware of, or should reasonably have been able 
to expect that, the felony warrant has already or would have been 
issued;
    (C) The individual has taken some action to avoid being arrested or 
jailed; and
    (D) The Federal, State, or local law enforcement agency is actively 
seeking the individual as provided in paragraph (n)(3) of this section.
    (ii) Alternative test to establish fleeing felon status. 
Alternatively, a State agency may establish that an individual is a 
fleeing felon when a Federal, State, or local law enforcement officer 
acting in his or her official capacity presents an outstanding felony 
arrest warrant that conforms to one of the following National Crime 
Information Center Uniform Offense Classification Codes, to the State 
agency to obtain information on the location of and other information 
about the individual named in the warrant:
    (A) Escape (4901);
    (B) Flight to Avoid (prosecution, confinement, etc.) (4902); or
    (C) Flight-Escape (4999).
    (2) Probation and parole violator. An individual determined a 
parole or probation violator shall not be considered to be an eligible 
household member. To be considered a probation or parole violator, an 
impartial party, as designated by the State agency, must determine that 
the individual violated a condition of his or her probation or parole 
imposed under Federal or State law and that Federal, State, or local 
law enforcement authorities are actively seeking the individual to 
enforce the conditions of the probation or parole, as provided in 
paragraph (n)(3) of this section.
    (3) Actively seeking. For the purposes of this paragraph (n), 
actively seeking is defined as follows:
    (i) A Federal, State, or local law enforcement agency informs a 
State agency that it intends to enforce an outstanding felony warrant 
or to arrest

[[Page 54417]]

an individual for a probation or parole violation within 20 days of 
submitting a request for information about the individual to the State 
agency;
    (ii) A Federal, State, or local law enforcement agency presents a 
felony arrest warrant as provided in paragraph (n)(1)(ii) of this 
section; or
    (iii) A Federal, State, or local law enforcement agency states that 
it intends to enforce an outstanding felony warrant or to arrest an 
individual for a probation or parole violation within 30 days of the 
date of a request from a State agency about a specific outstanding 
felony warrant or probation or parole violation.
    (4) Response time. The State agency shall give the law enforcement 
agency 20 days to respond to a request for information about the 
conditions of a felony warrant or a probation or parole violation, and 
whether the law enforcement agency intends to actively pursue the 
individual. If the law enforcement agency does not indicate that it 
intends to enforce the felony warrant or arrest the individual for the 
probation or parole violation within 30 days of the date of the State 
agency's request for information about the warrant, the State agency 
shall determine that the individual is not a fleeing felon or a 
probation or parole violator and document the household's case file 
accordingly. If the law enforcement agency indicates that it does 
intend to enforce the felony warrant or arrest the individual for the 
probation or parole violation within 30 days of the date of the State 
agency's request for information, the State agency will postpone taking 
any action on the case until the 30-day period has expired. Once the 
30-day period has expired, the State agency shall verify with the law 
enforcement agency whether it has attempted to execute the felony 
warrant or arrest the probation or parole violator. If it has, the 
State agency shall take appropriate action to deny an applicant or 
terminate a participant who has been determined to be a fleeing felon 
or a probation or parole violator. If the law enforcement agency has 
not taken any action within 30 days, the State agency shall not 
consider the individual a fleeing felon or probation or parole 
violator, shall document the case file accordingly, and take no further 
action.
    (5) Application processing. The State agency shall continue to 
process the application while awaiting verification of fleeing felon or 
probation or parole violator status. If the State agency is required to 
act on the case without being able to determine fleeing felon or 
probation or parole violator status in order to meet the time standards 
in Sec.  273.2(g) or Sec.  273.2(i)(3), the State agency shall process 
the application without consideration of the individual's fleeing felon 
or probation or parole violator status.
* * * * *

0
6. Amend Sec.  273.12 by redesignating paragraph (a)(5)(vi)(B)(3) as 
paragraph (a)(5)(vi)(B)(4) and adding a new paragraph (a)(5)(vi)(B)(3) 
to read as follows:


273.12  Requirements for change reporting households.

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

    Dated: September 1, 2015.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2015-22763 Filed 9-9-15; 8:45 am]
 BILLING CODE 3410-30-P