Food Stamp Program: Student Eligibility

SUMMARY: On November 1, 1993, the Department published a proposed rule

regarding the eligibility of students for the Food Stamp Program and

the treatment of educational and training assistance for food stamp

purposes. Public comments were solicited and considered. This rule

finalizes the student eligibility provisions with the changes specified

herein and makes a technical change to the resource section. The

provisions regarding the handling of educational and training

assistance will be finalized in a separate rule.

DATES: Sections 273.5 (b)(1), (b)(4), and (b)(9) are effective February

1, 1992. The introductory paragraph of Sec. 273.5(b)(6) is effective

February 1, 1992. The introductory paragraph of Sec. 273.5(b)(10) is

effective February 1, 1992. Sections 273.5(b)(11)(ii), (b)(11)(iii),

and (b)(11)(iv) are effective February 1, 1992.

Sections 273.5 (b)(6)(i) and (b)(6)(ii) and sections 273.5

(b)(10)(i) and (b)(10)(ii) and the remaining provisions of this

regulation are effective November 1, 1995 and must be implemented no

later than February 1, 1996.

FOR FURTHER INFORMATION CONTACT: Judith M. Seymour, Chief,

Certification Policy Branch, Program Development Division, Food Stamp

Program, Food and Consumer Service, USDA, 3101 Park Center Drive,

Alexandria, Virginia 22302; Telephone: (703) 305-2520.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be significant and was reviewed by

the Office of Management and Budget under Executive Order 12866.

Executive Order 12372

The Food Stamp Program is listed in the Catalog of Federal Domestic

Assistance under No. 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 from the scope of Executive

Order 12372 which requires intergovernmental consultation with State

and local officials.

Regulatory Flexibility Act

This action has been reviewed with regard to the requirements of

the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). The

Administrator of the Food and Consumer Service has certified that this

action does not have a significant economic impact on a substantial

number of small entities. State welfare agencies are affected to the

extent that they must implement the provisions described in this

action. Households are affected to the extent that some currently

ineligible students will become eligible for program benefits.

Executive Order 12778

This proposed rulemaking has been reviewed under Executive Order

12778, Civil Justice Reform. This rule is intended to have preemptive

effect with respect to any State or local laws, regulations or policies

which conflict with its provisions or which would otherwise impede its

full implementation. This is not intended to have retroactive effective

dates unless so specified in the Dates section of this preamble. Prior

to any judicial challenge to the provisions of this rule or the

application of its provisions all applicable administrative procedures

must be exhausted. In the Food Stamp Program the administrative

procedures are as follows: (1) For program benefit recipients--state

administrative procedures issued pursuant to 7 U.S.C. 2020(e)(1)) and 7

CFR 273.15; (2) for State agencies--administrative procedures issued

pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to

nonquality control (QC) liabilities) or part 284 (for rules related to

QC liabilities); (3) for program retailers and wholesalers--

administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7

CFR 278.8.

Paperwork Reduction Act

Pursuant to 7 CFR 273.2(f), State welfare agencies must verify

certain information which affects household eligibility and benefits.

Applicant households are required to provide the necessary information

to the State agency. The reporting and recordkeeping burden associated

with the application, certification, and continued eligibility of food

stamp applicants has been approved by the Office of Management and

Budget under OMB No. 0584-0064. OMB approval includes the burden

associated with verification of information provided on the food stamp

application. OMB approval of the verification requirements in

Sec. 273.2(f)(xi) of this rule is not necessary because the statements

do not add new or additional verification responsibilities on State

agencies, but simply relocate existing verification requirements from

Sec. 273.5(a).

Background

On November 1, 1993, the Department proposed procedures to

implement amendments to the Food Stamp Act of 1977, as amended (7

U.S.C. 2011 et seq.), as set forth in sections 1715 and 1727 of the

Food, Agriculture, Conservation, and Trade Act of 1990, Public Law 101-

624, enacted November 28, 1990, and section 903 of Title IX of the

Food, Agriculture, Conservation, and Trade Act Amendments of 1991,

Public Law 102-237, enacted December 13, 1991. section 1715 of Public

Law 101-624, as amended by Section 903 of Public Law 102-237,

established procedures for determining an income exclusion for certain

educational and training assistance received by eligible students.

Section 1727 of Public Law 101-624 amended the Food Stamp Act to grant

eligibility for participation in the Food Stamp Program (``Program'')

to certain students currently considered ineligible to participate.

Procedures were also proposed for implementing amendments to the

Higher Education Act of 1965 as set forth in sections 471 and 1345 of

the Higher Education Amendments of 1992,

[[Page 48866]]

Public Law 102-325, enacted July 23, 1992. Those sections prohibit

certain Federal educational assistance from being considered as income

and resources for food stamp purposes.

Lastly, procedures were proposed for implementing a provision of

the Carl D. Perkins Vocational and Applied Technology Education Act

Amendments of 1990, Pub. L. 101-392, enacted September 25, 1990, which

prohibits counting certain educational assistance received by students

from a program funded by the Perkins Act as income or resources when

determining the eligibility and benefits of households containing

students.

The Department accepted comments on this rulemaking through January

2, 1994. Comments were received from eight State agencies, one public

interest group, and one advocate.

The proposed rule contained provisions on both student eligibility

and the treatment of educational and training assistance. This rule

finalizes only the provisions concerning student eligibility. The

comments pertaining to the student eligibility provisions are discussed

below. The provisions regarding the treatment of educational and

training assistance contain issues which are, as yet, unresolved, and

the Department has decided to finalize those provisions in a separate

rulemaking so as not to further delay publication of the student

eligibility provisions.

A full explanation of the rule was contained in the preamble of the

proposed rule published November 1, 1993 (``November 1 rule'') (58 FR

58463). The reader should refer to the preamble of that rule for a full

understanding of the provisions of this final rule.

In the proposed rule under Supplementary Information, Executive

Order 12778, the Department stated that prior to any judicial challenge

to the provisions of this rule or the application of its provisions all

applicable administrative procedures must be exhausted. One commenter

said that administrative procedures do not have to be exhausted before

judicial challenge and that the Department should correct this

misstatement and avoid making such statements in future rulemakings.

While we believe that it would have been fully within the Secretary's

discretionary authority, as granted in section 4(c) of the Food Stamp

Act (7 U.S.C. 2013(c)), to establish an exhaustion requirement, this

matter has now been specifically addressed by statute. Section 212(e)

of the Federal Crop Insurance Reform and Department of Agriculture

Reorganization Act of 1994, Public Law 103-354, requires persons to

exhaust all administrative appeal procedures established by the

Secretary or required by law before the person may bring an action in a

court of competent jurisdiction against the Secretary, the Department

or an agency, office, officer, or employee of the Department.

Institution of Higher Education--Sec. 271.2 and Sec. 273.5(a)

An institution of higher education is currently defined in 7 CFR

271.2 of the regulations as any institution which normally requires a

high school diploma or equivalency certificate for enrollment,

including, but not limited to, colleges, universities and vocational or

technical schools at the post-high school level. The November 1 rule

did not propose to change this definition.

One commenter requested that the regulations be changed to specify

that community colleges that do not routinely require high school

diplomas are not institutions of higher education.

The Department has become aware that some colleges no longer

require a high school diploma due to declining enrollment. It is the

Department's intent that persons enrolled in a regular curriculum at a

college be considered enrolled in an institution of higher education

even if a diploma is no longer required. The Department has also become

aware that some colleges that normally require a high school diploma or

equivalency certificate may not require them for special programs such

as courses for English as a second language or for courses which are

not part of the regular curriculum. The Department does not intend that

such persons be considered enrolled in an institution of higher

education. Therefore, the Department has decided to revise the language

so that a student will be considered enrolled in an institution of

higher education if the person is enrolled in a regular curriculum at a

college or university that offers degree programs regardless of whether

a diploma is required. A college includes a junior, community, two-

year, or four-year college or a university. A person who is attending a

business, technical, trade, or vocational school that normally requires

a high school diploma or equivalency certification for enrollment in

the curriculum would also be considered enrolled in an institution of

higher education.

The Department is also taking this opportunity to move the

provision regarding enrollment in an institution of higher education

from the definition section to the student eligibility section to

facilitate a better understanding of the student provisions.

Accordingly, the Department has removed the definition of an

institution of higher education from 7 CFR 271.2 and has added a new

sentence to 7 CFR 273.5(a).

Student Eligibility--Sec. 273.5

Age Limit

Current regulations provide that students age 60 or over do not

have to meet one of the student eligibility criteria to qualify for the

program. In accordance with section 1727 of the Food, Agriculture,

Conservation, and Trade Act of 1990, the proposed rule lowered the age

exemption from 60 to 50. Two commenters supported this change. Because

this is a nondiscretionary change, it is being adopted as proposed at 7

CFR 273.5(a).

The Department is taking this opportunity to move the student

exemptions contained in 7 CFR 273.5(a) to 7 CFR 273.5(b) to consolidate

them at one place.

On-the-Job Training

The Department proposed to incorporate current policy that a person

is exempt from the student ineligibility provisions during the period

of time the person is being trained by an employer under an on-the-job

training program. However, during the period of time that the person is

only attending classes, he or she would be considered a student subject

to the provisions of 7 CFR 273.5.

One commenter supported the provision. Another commenter suggested

that student status should coincide with the period of time educational

income is prorated. A third commenter said all participants in on-the-

job training should be exempt if their employer requires class

attendance; alternatively they should be exempt if they are enrolled in

non-degree programs or for periods too short, e.g., one semester or

quarter, to obtain a degree.

There is no basis in the Food Stamp Act for extending the exemption

to other participants in on-the-job training programs. Therefore, the

Department is adopting the proposal without change at 7 CFR 273.5(a). A

student would have to meet one of the other student exemptions to

qualify when enrolled and only attending classes in an institution of

higher education at least half time.

Work Study

The proposed regulations expanded the list of eligible students to

include students participating in a State (as well as a Federal) work

study program during the regular school year.

[[Page 48867]]

One commenter suggested that any needs-based subsidized employment

program that a State supports be defined as a work study program.

Section 6(e) of the Food Stamp Act, as amended, specifically

provides that the program must be a work study program. Since many

employment programs do not have a study component, the Department is

not adopting this suggestion. The Department is adopting the proposal

without change at 7 CFR 273.5(b)(1)(ii).

The Department further proposed that a student who was approved for

work study at the time of application for food stamps, and anticipated

starting a job within two months after the date of application for food

stamps, would qualify for this exemption until the student stopped

working. However, if a student stopped working because work study

funding had run out, the student would continue to qualify for this

exemption for no more than two months. The Department specifically

asked for comments on whether or not the two-month grace periods would

result in making affluent students eligible.

Three of the commenters indicated that affluent students would not

become eligible. One commenter thought that the student should actually

be participating in work study to be eligible. Another commenter

supported the provision but suggested that students remain on the

program when work study runs out for two months or until the end of the

school term, whichever is later. Five commenters were opposed to the

two-month provisions--four of them thought the procedures would be too

administratively complex and error prone. (The following are some

examples of administrative problems foreseen by commenters. The first

two-month period would be tied to the date of application whereas

eligibility for the food stamp program is determined for full months. A

person could quit work study and reapply for food stamps during the

two-month period. ``No more than two additional months'' could have

been interpreted as giving the State agency an option. It may be

difficult to anticipate when a student will actually begin work.

Numerous contacts with the institutions could be required to keep track

of when a student qualifies for the food stamp exemption.) Another

commenter suggested that student eligibility status based on work study

should continue through the term over which the work study is prorated.

The only exception should be for students who refuse to participate in

a work study assignment. Two commenters advised that most work study is

approved for a given term or semester and the proposed procedure is

unfair to students who receive the same amount of work study but whose

work assignments can be completed in a shorter period of time.

After carefully reviewing the comments, the Department has decided

to make some changes to the provisions as proposed. The Department has

decided to provide an exemption for the school term if a student has

been approved for work study during the school term and anticipates

actually working during that time. The student must be approved for

work study at the time she or he applies for food stamps. The student

exemption will begin with the month in which the school term begins or

the month work study is approved, whichever is later. Once begun, the

exemption will continue until the end of the month in which the school

term ends, or it becomes known that the student has refused an

assignment. The Department believes that this will simplify the

procedure and be in compliance with the Act which requires

participation in work study during the regular school year. The

Department has incorporated this change in the final regulations at 7

CFR 273.5(b)(1)(ii).

One commenter suggested that anyone accepted for work study by a

school should be considered participating in a work study program. The

Department has not adopted this suggestion because students may be

determined eligible for work study based on need but frequently funding

or work is not available.

One commenter suggested that the regulations mandate use of the

verified amount of work study approved by the school. While this would

simplify administration of the provision, the Department has not

adopted this suggestion because the actual anticipated amount may be

less than the approved amount.

One commenter asked if a claim would be required if a student

intended to begin work within two months but does not actually work.

Another commenter suggested that recoupment be pursued if a student

refuses to participate in a work study assignment.

Under the Department's revised procedure, the two-month time frame

is not an issue, but a student could anticipate work study during the

school term and it may not materialize. If the work study is

questionable, the school could be contacted to determine if funding and

a job will be available. A claim would not be required unless a

determination is made that the student deliberately gave wrong or

misleading information.

One commenter asked if student eligibility based on work study

would be retained through scheduled breaks and vacations. In accordance

with the Department's changes to the final regulation, the student work

study exemption will not continue between terms when there are breaks

of a full month or longer for which work study has not been approved.

The exemption only applies to months in which the student is approved

for work study.

Assigned Students

The proposed regulation expanded the list of eligible students to

include students who are assigned to, or placed in, an institution of

higher education through, or in compliance with, an employment and

training (E&T) program operated by a State or local government which

contains components which are at least equivalent to the acceptable

components of the food stamp E&T program.

One commenter supported this provision. A second commenter opposed

requiring standards comparable to food stamp E&T components; stated

that the Department does not have the authority to and should not

regulate the content of E&T programs; persons attending community

colleges should be considered participating in a State or local

government's E&T program, and E&T programs should not serve exclusively

food stamp recipients.

Section 6(e)(3)(D) of the Food Stamp Act, as amended by section

1727 of the Food, Agriculture, Conservation, and Trade Act of 1990,

clearly provides the Department with the authority for determining

which State and local E&T programs are appropriate. All persons

attending community colleges cannot be considered participating in a

state or local government's E&T program because attendance at a

community college does not necessarily indicate participation in an

employment program. The Department agrees that E&T programs need not

serve food stamp recipients exclusively in order to qualify, but they

must be for low-income households. Consequently, the Department is

revising the final regulations at 7 CFR 273.5(b)(11)(iv) to this

effect.

A third commenter on this provision suggested that the Department

clarify that an appropriate program does not have to have all the

components, or any combination of components, required in the food

stamp E&T program and that State agencies should make the general

equivalency determinations but that

[[Page 48868]]

students should be permitted to provide evidence of the appropriateness

of a program.

The Department agrees that the E&T program should have to meet only

one of the acceptable food stamp E&T components. Since the guidelines

for the food stamp E&T components are specified in the regulations, the

Department also agrees that State agencies may make the equivalency

determinations. The Department has changed the final regulations at 7

CFR 273.5(b)(11)(iv) accordingly. The Department does not believe that

it would be administratively feasible to require eligibility workers to

make a determination on the appropriateness of a program based on

information submitted by an individual student.

One commenter thought that self-placements in connection with any

of the E&T programs listed should exempt the student. The Department

agrees that placements that are initiated by a person while the person

is enrolled in an approved E&T program should be considered to be in

compliance with the requirements of that program provided that the E&T

program the person is enrolled in has a component for enrollment in an

institution of higher education and that program accepts the placement.

Other self-placements would not qualify. The Department has changed the

final regulations at 7 CFR 273.5(b)(11) accordingly.

One commenter thought that participants who voluntarily participate

in one of the listed E&T programs should be entitled to an exemption.

Section 6(e)(3) of the Food Stamp Act does not limit the exclusion to

persons who are required to participate in an approved E&T program.

Therefore, the Department agrees that all persons, regardless of

whether they are volunteers, who are placed in an institution of higher

education by or in accordance with the requirements of an approved

program, qualify for the student exemption. The Department has made

this change in the final regulations at 7 CFR 273.5(b)(11).

Job Opportunities and Basic Skills (JOBS) Program

The proposed regulations expanded the list of eligible students to

include students participating in the work incentive program under part

A of title IV of the Social Security Act or its successor program

(currently the JOBS program). One commenter supported this change.

Since this is a nondiscretionary provision that is required by the Food

Stamp Act, as amended, the Department is adopting the proposed language

without change at 7 CFR 273.5(b)(1)(vii).

Single Parents

The proposed regulations provided that a single parent enrolled

full time in an institution of higher education who is responsible for

the care of a child under age 12 is exempt from the student provisions.

This provision would apply where only one natural, adoptive, or

stepparent, regardless of martial status, is in the same food stamp

household as the child. For example, if one natural parent and a

stepparent are living with the child, neither the natural parent nor

the stepparent could qualify for the student exemption. If no natural,

adoptive, or stepparent is in the same food stamp household as the

child, another full-time student in the same food stamp household as

the child could qualify for eligible student status if he or she has

parental control over the child and is not living with his or her

spouse.

One commenter requested that the definition used for the Aid to

Families with Dependent Children (AFDC) program be used instead. The

commenter stated that the definition is a parent who is singly

responsible for a child because of the death, absence, or incapacity of

the child's other parent.

AFDC does not have a definition of a single parent. It appears that

the commenter is referring to the AFDC definition of deprivation. For

AFDC purposes, one category of needy children is those deprived of

parental support or of care by reason of the death, continued absence

from the home, or physical or mental incapacity of the parent, or

unemployment of a principal earner. There is no basis in the Food Stamp

Act for limiting the exclusion to cases of deprivation. Therefore, the

Department is not adopting this recommendation.

The Department would, however, like to clarify that ``regardless of

marital status'' means that the parent could be single (meaning never

married), a widow or widower, separated, divorced, or married and

living in a separate household from the other parent. For example, if

the natural parents are still legally married but only one parent is

living with the child, that parent would be considered a single parent

for purposes of this provision.

Resource Exclusions--Sec. 273.8(e)(11)

In the proposed regulations under the list of resources required to

be excluded by other Federal laws, the Department listed payments

received under the Job Training Partnership Act (Pub. L. 97-300). It

has come to the Department's attention that Public Law 97-300 only

requires that the payments be excluded from income for food stamp

purposes. Educational assistance is excluded from resources for the

period of time for which it is provided. Allowing an indefinite

resource exclusion would create an unnecessary administrative burden to

keep track of the payments in subsequent months. For these reasons, the

Department is not adopting the proposed change.

Technical Changes

The Department is taking this opportunity to make the following two

technical changes.

Verification--Sec. 273.2(f)

In order to consolidate the verification requirements, the

Department is moving the verification requirement for a determination

that a person is unfit from the student eligibility section at 7 CFR

273.5(a) to the verification section at 7 CFR 273.2(f)(1).

Resource Exclusions--Sec. 273.8(e)(11)(vi)

The Job Training Partnership Act of 1982 replaced the Comprehensive

Employment and Training Act (CETA) (Pub. L. 97-300, section 183).

Because CETA payments have not been made for over ten years, the

Department is deleting the reference to CETA payments in the resource

section at 7 CFR 273.8(e)(11)(vi).

Implementation--Sec. 272.1(g)

As stated in the preamble to the proposed regulations, State

welfare agencies were instructed through agency directive to implement

on February 1, 1992, the provisions of section 1727 of the Food,

Agriculture, Conservation, and Trade Act of 1990, which extended

eligibility to students attending institutions of higher education on

at least a half-time basis if the student is between 50 and 60 years of

age; a student with responsibility for a child between the ages of 5

and 12 if adequate child care is not available to enable the individual

to attend class and work a minimum of 20 hours per week or participate

in a work study program during the regular school year; a student

participating in a State financed work study program during the regular

school year; enrolled as a result of participation in the Job

Opportunities and Basic Skills (JOBS) program; assigned to an

institution of higher education by the food stamp employment and

training program, a program under section 236 of the Trade Act of 1974,

or certain State or local employment and training programs; or a full-

time student who is a single parent responsible for the care

[[Page 48869]]

of a child under 12. The corresponding provisions in this regulation

are effective on that date.

The remaining provisions are effective November 1, 1995 and must be

implemented no later than February 1, 1996.

The provisions of the final rule must be implemented no later than

the dates specified for all affected households that newly apply for

Food Stamp Program benefits on or after the implementation dates. If

for any reason a State agency fails to implement, restored benefits

must be provided, as appropriate, back to the effective date of the

provision, or the date of application, whichever is later.

The current caseload must be converted to the requirements of the

final regulations at a household's request, at the time of

recertification, or when the case is next reviewed, whichever occurs

first, and the State agency is required to provide restored benefits

back to the effective date of the provision or the date of application,

whichever is later.

The preamble to the proposed rule provided that any variance

resulting from implementation of the provisions of the subsequent final

rule would be excluded from error analysis for 90 days from the

specified implementation dates of such final rule.

One commenter pointed out that the grace period should be 120 days.

Section 13951 of the Mickey Leland Childhood Hunger Relief Act, enacted

August 10, 1993, excludes from the payment error rate any errors

resulting in the application of new procedures for 120 days from the

required implementation dates. Accordingly, the Department has provided

for a 120-day grace period at 7 CFR 272.1(g).

List of Subjects

7 CFR Part 271

Administrative practice and procedure, Food stamps, Grant programs-

social programs.

7 CFR Part 272

Alaska, Civil rights, Food stamps, Grant programs-social programs,

Reporting and recordkeeping requirements.

7 CFR Part 273

Administrative practice and procedures, Aliens, Claims, Food

Stamps, Fraud, Grant programs-social programs, Penalties, Reporting and

recordkeeping requirements, Social Security, Students.

Accordingly, 7 CFR parts 271, 272, and 273 are amended as follows:

1. The authority citation for parts 271, 272, and 273 continues to

read as follows:

Authority: 7 U.S.C. 2011-2032

PART 271--GENERAL INFORMATION AND DEFINITIONS

Sec. 271.2 [Amended]

2. In Sec. 271.2, the definition of an ``Institution of higher

education'' is removed.

PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES

3. In Sec. 272.1, a new paragraph (g)(144) is added to read as

follows:

Sec. 272.1 General terms and conditions.

* * * * *

(g) Implementation. * * *

(144) Amendment No. (370). The provisions of Amendment No. (370)

are effective and must be implemented as follows:

(i) Sections 273.5(b)(1), (b)(4), and (b)(9) are effective February

1, 1992. The introductory paragraph of 273.5(b)(6) is effective

February 1, 1992. The introductory paragraph of 273.5(b)(10) is

effective February 1, 1992. Sections 273.5(b)(11)(ii), (b)(11)(iii),

and (b)(11)(iv) are effective February 1, 1992.

(ii) Sections 273.5(b)(6)(i) and (b)(6)(ii) and sections

273.5(b)(10)(i) and (b)(10)(ii) and the remaining provisions of this

regulation are effective November 1, 1995 and shall be implemented no

later than February 1, 1996.

(iii) The current caseload shall be converted to these provisions

at the household's request, at the time of recertification, or when the

case is next reviewed, whichever occurs first. The State agency shall

provide restored benefits back to the effective date.

(iv) Any variance resulting from implementation of a provision in

this rule shall be excluded from error analysis for 120 days from the

required implementation date of that provision.

PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS

4. In Sec. 273.2, a new paragraph (f)(1)(xii) is added to read as

follows:

Sec. 273.2 Application processing.

* * * * *

(f) Verification. * * *

(1) Mandatory verification. * * *

(xii) Students. If a person claims to be physically or mentally

unfit for purposes of the student exemption contained in

Sec. 273.5(b)(2) and the unfitness is not evident to the State agency,

verification may be required. Appropriate verification may consist of

receipt of temporary or permanent disability benefits issued by

governmental or private sources, or of a statement from a physician or

licensed or certified psychologist.

* * * * *

5. In Sec. 273.5:

a. paragraph (a) is revised;

b. paragraphs (b)(2) and (b)(3) are redesignated as paragraphs (c)

and (d); and

c. the heading of paragraph (b) and paragraph (b)(1) are

redesignated as paragraph (b) and revised. The revisions read as

follows:

Sec. 273.5 Students.

(a) Applicability. An individual who is enrolled at least half-time

in an institution of higher education shall be ineligible to

participate in the Food Stamp Program unless the individual qualifies

for one of the exemptions contained in paragraph (b) of this section.

An individual is considered to be enrolled in an institution of higher

education if the individual is enrolled in a business, technical,

trade, or vocational school that normally requires a high school

diploma or equivalency certificate for enrollment in the curriculum or

if the individual is enrolled in a regular curriculum at a college or

university that offers degree programs regardless of whether a high

school diploma is required.

(b) Student Exemptions. To be eligible for the program, a student

as defined in paragraph (a) of the section must meet at least one of

the following criteria.

(1) Be age 17 or younger or age 50 or older;

(2) Be physically or mentally unfit;

(3) Be receiving Aid to Families with Dependent Children under

Title IV of the Social Security Act;

(4) Be enrolled as a result of participation in the Job

Opportunities and Basic Skills program under Title IV of the Social

Security Act or its successor program;

(5) Be employed for a minimum of 20 hours per week and be paid for

such employment or, if self-employed, be employed for a minimum of 20

hours per week and receiving weekly earnings at least equal to the

Federal minimum wage multiplied by 20 hours;

(6) Be participating in a State or federally financed work study

program during the regular school year.

(i) To qualify under this provision, the student must be approved

for work study at the time of application for food stamps, the work

study must be approved for the school term, and the student must

anticipate actually working during that time. The exemption shall begin

with the month

[[Page 48870]]

in which the school term begins or the month work study is approved,

whichever is later. Once begun, the exemption shall continue until the

end of the month in which the school term ends, or it becomes known

that the student has refused an assignment.

(ii) The exemption shall not continue between terms when there is a

break of a full month or longer unless the student is participating in

work study during the break.

(7) Be participating in an on-the-job training program. A person is

considered to be participating in an on-the-job training program only

during the period of time the person is being trained by the employer;

(8) Be responsible for the care of a dependent household member

under the age of 6;

(9) Be responsible for the care of a dependent household member who

has reached the age of 6 but is under age 12 when the State agency has

determined that adequate child care is not available to enable the

student to attend class and comply with the work requirements of

paragraph (b)(5) or (b)(6) of this section;

(10) Be a single parent enrolled in an institution of higher

education on a full-time basis (as determined by the institution) and

be responsible for the care of a dependent child under age 12.

(i) This provision applies in those situations where only one

natural, adoptive or stepparent (regardless of marital status) is in

the same food stamp household as the child.

(ii) If no natural, adoptive or stepparent is in the same food

stamp household as the child, another full-time student in the same

food stamp household as the child may qualify for eligible student

status under this provision if he or she has parental control over the

child and is not living with his or her spouse.

(11) Be assigned to or placed in an institution of higher education

through or in compliance with the requirements of one of the programs

identified in paragraphs (b)(11)(i) through (b)(11)(iv) of this

section. Self-initiated placements during the period of time the person

is enrolled in one of these employment and training programs shall be

considered to be in compliance with the requirements of the employment

and training program in which the person is enrolled provided that the

program has a component for enrollment in an institution of higher

education and that program accepts the placement. Persons who

voluntarily participate in one of these employment and training

programs and are placed in an institution of higher education through

or in compliance with the requirements of the program shall also

qualify for the exemption. The programs are:

(i) a program under the Job Training Partnership Act of 1974 (29

U.S.C. 1501, et seq.);

(ii) an employment and training program under Sec. 273.7;

(iii) a program under section 236 of the Trade Act of 1974 (19

U.S.C. 2296); or

(iv) an employment and training program for low-income households

that is operated by a State or local government where one or more of

the components of such program is at least equivalent to an acceptable

food stamp employment and training program component as specified in

Sec. 273.7(f)(1). Using the criteria in Sec. 273.7(f)(1), State

agencies shall make the determinations as to whether or not the

programs qualify.

Sec. 273.8 [Amended]

6. In Sec. 273.8, paragraph (e)(11)(vi) is removed, and paragraphs

(e)(11)(vii) through (e)(11)(xi) are redesignated as paragraphs

(e)(11)(vi) through (e)(11)(x).

Dated: September 15, 1995.

Ellen Haas,

Under Secretary for Food, Nutrition, and Consumer Services.

[FR Doc. 95-23404 Filed 9-21-95; 8:45 am]

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