Federal Means-Tested Public Benefits

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

RIN 0584-AC62

Federal Means-Tested Public Benefits

AGENCY: Food and Nutrition Service, USDA.

ACTION: Notice.

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SUMMARY: The term ``Federal means-tested public benefit'' is used in

several sections of Title IV of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (PRWORA) which restricts welfare

and public benefits for aliens. The purpose of this notice is to set

forth the U. S. Department of Agriculture's interpretation of the term

as it applies to the food assistance programs administered by the Food

and Nutrition Service (FNS). This notice announces that the Food Stamp

Program and the food assistance block grant programs in Puerto Rico,

the Commonwealth of the Northern Marianna Islands and American Samoa

are Federal means-tested programs. It announces that the other food

assistance programs administered by FNS, e.g., those under the Child

Nutrition Act and the School Lunch Act are not Federal means-tested

programs, or are excepted from the application of this term, for

purposes of PRWORA. (Section 402 of PRWORA limits participation in the

Food Stamp Program to certain specific categories of aliens. These

restrictions as well as other related issues will be addressed in a

separate rule.)

EFFECTIVE DATE: This notice is effective on July 7, 1998.

FOR FURTHER INFORMATION CONTACT:

Judith M. Seymour, Chief, Certification Policy Branch, Program

Development Division, Food Stamp Program, Food and Nutrition Service,

USDA, 3101 Park Center Drive, Alexandria, Virginia 22302; Telephone:

(703) 305-2520. The internet address is: [email protected]

SUPPLEMENTARY INFORMATION:

Regulatory Flexibility Act

This action is not a rule as defined by the Regulatory Flexibility

Act (5 U.S.C. 601-612) and thus is exempt from the provisions of this

Act.

Paperwork Reduction Act of 1995

This notice contains no reporting or recordkeeping requirements

subject to approval by the Office of Management and Budget in

accordance with the Paperwork Reduction Act of 1995.

Executive Order 12866

This notice has been reviewed by the Office of Management and

Budget under Executive Order 12866 and been determined to be

significant.

Executive Order 12372

The food assistance programs administered by the Food and Nutrition

Service are listed in the Catalog of Federal Domestic Assistance as

follows:

10.550 Food Distribution

10.551 Food Stamps

10.553 School Breakfast Program

10.555 National School Lunch Program

10.556 Special Milk Program for Children

10.557 Special Supplemental Nutrition Program for Women, Infants

and Children

10.558 Child and Adult Care Food Program

10.559 Summer Food Service Program for Children

10.564 Nutrition Education and Training Program

10.565 Commodity Supplemental Food Program

10.566 Nutrition Assistance for Puerto Rico

10.567 Food Distribution Program on Indian Reservations

10.569 Emergency Food Assistance Program (Food Commodities)

10.570 Nutrition Program for the Elderly

10.572 WIC Farmers' Market Nutrition Program

10.573 Homeless Children Nutrition Program.

The Food Stamp Program and the food assistance programs in Puerto

Rico, American Samoa and the Commonwealth of the Northern Mariana

Islands are excluded from the scope of Executive Order 12372 which

requires intergovernmental consultation with State and local officials.

The other food programs listed above are not excluded.

Background

The term ``Federal means-tested public benefit'' is used in the

following sections of PRWORA:

Section 402--This section contains the criteria for determining if

qualified aliens can be eligible for food stamps, including the

specific timeframes governing the eligibility of aliens for purposes of

the Food Stamp Program. Subsection (a)(2)(B)(ii)(I) provides that any

qualifying quarter of work creditable after December 31, 1996, in which

an alien received a Federal means-tested public benefit cannot be

included when determining whether the alien has the 40 quarters needed

for eligibility for food stamp benefits.

Section 403--With specified exceptions, a qualified alien who

enters the U.S. on or after August 22, 1996, is ineligible for any

Federal means-tested public benefit for 5 years from the date of entry.

As noted above the specific timeframes governing the Food Stamp Program

are included in section 402.

Sections 421(a) and (b)--In determining the eligibility and

benefits of an alien for any Federal means-tested public benefit, the

income and resources of the alien are deemed to include the income and

resources of any person who signs an affidavit of support. The deeming

period continues until the alien becomes a citizen or has worked 40

qualifying quarters, not counting quarters in which the alien received

any Federal means-tested public benefit.

Section 423--This section amended Title II of the Immigration and

Nationality Act to add requirements for the sponsor's affidavit of

support. It provides that no affidavit may be used to establish that an

alien is not excludable as a public charge unless the affidavit is

executed as a contract which is legally enforceable against the sponsor

by any agency which provides any means-tested public benefits. Section

423(e) provides that upon notification that a sponsored alien has

received any benefit under any means-tested public benefits program,

the appropriate agency shall request reimbursement by the sponsor in

the amount of such assistance. The Food Stamp Program is not listed

among the benefits excepted from this provision. Assistance or benefits

under the National School Lunch Act and Child Nutrition Act of 1966 are

specifically

[[Page 36654]]

listed as benefits not subject to reimbursement.

Section 435--This section contains a description of qualifying

quarters of work and disallows any quarter worked by a spouse or parent

in which the spouse or parent received a Federal means-tested public

benefit.

The law, however, does not include a definition of ``Federal means-

tested public benefit.'' Therefore, each Executive Branch agency whose

programs may be subject to the PRWORA provisions is responsible for

identifying the benefits to which the term applies.

Definition of Federal Means-Tested Public Benefit

The Department has determined that the Food Stamp Program and the

block grant food assistance programs in Puerto Rico, American Samoa,

and the Commonwealth of the Northern Mariana Islands are ``Federal

means-tested public benefit(s)'' for purposes of Title IV of PRWORA.

Based on the legislative history of PRWORA, the Department interprets

the term to refer only to mandatory spending programs. The Department

of Health and Human Services (62 FR 45256, August 26, 1997) and the

Social Security Administration (62 FR 45284, August 26, 1997) have

interpreted the term in a similar fashion. The food assistance programs

listed above are mandatory spending programs.

The Department has determined that the following Special Nutrition

Programs are either not a Federal means-tested public benefit, or are

exempted from the application of the term, for purposes of Title IV of

PRWORA.

The Nutrition Program for the Elderly

Food services provided through Summer Camps pursuant to Sec. 4(c) of

the Agricultural and Nutrition Protection Act of 1973 (7 U.S.C. 612c

note)

Disaster Commodity Distribution

The National School Lunch Program

The School Breakfast Program

The Special Milk Program

The Child and Adult Care Food Program

The Homeless Children Nutrition Program

The Summer Food Service Program for Children

The Special Supplemental Nutrition Program for Women, Infants, and

Children

The WIC Farmers' Market Nutrition Program

The Commodity Supplemental Food Program

The Emergency Food Assistance Program

The Food Distribution Program on Indian Reservations

Regulatory Impact Analysis

Designation: This action has been designated as significant.

Decrease in Number of Eligible Aliens: Effective August 22, 1996

for applicants and no later than August 22, 1997 for participating

households, PROWRA made most aliens ineligible for food stamps.

Exceptions were made for certain asylees, refugees, Cubans, Haitian,

Amerasians, deportees, and persons with a military connection. An

exception was also made to allow aliens admitted as lawful permanent

residents to be eligible if they have earned or can be credited with at

least 40 quarters (about 10 years) of qualified work. This notice only

affects the eligibility of lawful permanent residents who can be

credited with at least 40 quarters of work. After 12/31/96, a quarter

cannot count if the person was receiving a Federal means-tested public

benefit during that quarter.

Savings: By counting food stamp benefits as a Federal means-tested

public benefit, the Federal government may realize an estimated savings

of as much as $10 million a year for 10 years. This occurs because most

aliens admitted as a lawful permanent resident became ineligible 8/22/

97, thus any period of food stamp participation between 1/1/97 and 8/

22/97 would delay their fulfillment of the 40 quarter work requirement;

which, in turn, delays their eligibility. This reduces program costs

over the 10-year time period. The maximum length of time when

participating permanent resident aliens could have been working and

their work would not be counted toward the quarters of coverage is 8

months, the time between January 1, 1997, and August 22, 1997. In any

one year, the estimated savings come from only those participants who

would have achieved their 40 quarters in that year and do not when they

are not allowed to include the quarters earned between January 1997 and

August 1997 when they also received food stamps. Assuming that among

those working, 1/40th are in their 39th quarter, 1/40th are in their

38th quarter, etc., then no more than 4/40th or 10 percent can have

their benefits delayed in any year.

Consistency: A Department of Health and Human Service (HHS) notice

published on 8/26/97 (62 FR 45256) and a Social Security Administration

notice published on 8/26/97 (62 FR 45284) have determined that Federal

means-tested public assistance benefits applies to means-tested

mandatory spending programs. Therefore, this interpretation is

consistent with that of other agencies. The DHHS determined that its

notice was economically significant based on $5.1 billion in savings

from all of the alien restrictions contained in PRWORA for purposes of

the Medicaid Program rather than just the definition of a Federal

means-tested public benefit. The Social Security Administration did not

designate its notice. USDA is designating this notice as significant

because it affects the eligibility of aliens, but it is limiting the

cost estimate to the costs associated with the provisions concerning

the definition of a Federal means-tested public benefit.

Effect on small entities: State and local welfare agencies are

affected to the extent that they administer the Program. The notice

will affect a number of aliens who could otherwise qualify for food

stamp participation. The changes and the resulting decrease in benefits

will have a negative secondary effect on revenues of the approximately

190,000 food stamp retailers nationwide.

Dated: June 25, 1998.

Shirley R. Watkins,

Under Secretary, Food, Nutrition, and Consumer Services.

[FR Doc. 98-17932 Filed 7-6-98; 8:45 am]

BILLING CODE 3410-30-P