[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Rules and Regulations]
[Pages 67315-67317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28230]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 /
Rules and Regulations
[[Page 67315]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 275
[FNS-2011-0060]
RIN 0584-AE24
Supplemental Nutrition Assistance Program: Quality Control Error
Tolerance Threshold
AGENCY: Food and Nutrition Service, USDA.
ACTION: Direct final rule.
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SUMMARY: This direct final rule is amending the Quality Control (QC)
review error threshold in our regulations from $25.00 to $50.00. The
purpose for raising the QC error threshold is to make permanent the
temporary threshold change that was required by the American Recovery
and Reinvestment Act of 2008. This change does not have an impact on
the public. The QC system measures the accuracy of the eligibility
system for the Supplemental Nutrition Assistance Program (SNAP).
DATES: This rule will become effective on January 3, 2012 unless the
Department receives written significant adverse comments on or before
December 1, 2011. If significant adverse comments that are relevant
within the scope of the rulemaking are received within the specified
comment period, the Department will publish timely notification of
withdrawal of this rule in the Federal Register. This rule shall apply
to all FY 2012 QC reviews.
ADDRESSES: The Food and Nutrition Service (FNS) invites interested
persons to submit comments on this direct final rule. Comments may be
submitted by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: Submit comments by facsimile transmission to: (703)
605-0795.
Mail: Send comments to Francis Heil, Branch Chief, Quality
Control Branch, SNAP, FNS, 3101 Park Center Drive, 822,
Alexandria, VA 22302, (703) 305-2442.
E-mail: Send comments to [email protected]. Include
Docket ID Number FNS-2011-0060, Supplemental Nutrition Assistance
Program: Quality Control Error Tolerance Threshold Direct Rule, in the
subject line of the message.
Hand Delivery or Courier: Deliver comments to Francis
Heil, Branch Chief, Quality Control Branch, SNAP, FNS, 3101 Park Center
Drive, Alexandria, VA 22302, Room 822.
All comments submitted in response to this direct final rule will be
included in the record and will be made available to the public. Please
be advised that the substance of the comments and the identity of the
individuals or entities submitting the comments will be subject to
public disclosure. FNS will make the comments publicly available on the
Internet via http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Francis Heil, FNS, 3101 Park Center
Drive, 822, Alexandria, VA 22302, (703) 305-2442.
SUPPLEMENTARY INFORMATION:
I. Background
The current regulations at Sec. 275.12(f)(2) state, ``If the
reviewer determines that food stamp allotments were either overissued
or underissued to eligible households in the sample month, in an amount
exceeding $25.00, the occurrence and the amount of the error shall be
coded and reported.'' In practice, when conducting both State and
Federal QC reviews any overissuances or underissuances found in the
amount of $25.00 or less are not included as an error in the
calculation of that fiscal year's (FY) error rates. This $25.00 or less
error is also known as the error tolerance threshold (the threshold).
This $25.00 threshold, however, does not excuse any State from their
responsibility for following procedures found at Sec. 275.16(c)
regarding corrective action for all errors found in QC cases.
On February 17, 2009, the President signed Public Law 111-5, the
American Recovery and Reinvestment Act of 2009 (ARRA). Title I, Section
101(b)(5) of Public Law 111-5, indicated the Agriculture Secretary
shall, ``set the tolerance level for excluding small errors for the
purposes of section 16(c) of the Food and Nutrition Act of 2008 (7
U.S.C. 2025(c)) at $50.00 through September 30, 2009.'' This temporary
threshold increase was tied to the increase in the benefit amount also
provided by ARRA. In short, this meant there was a temporary threshold
increase from $25.00 to $50.00 for QC errors from April 2009 through
September 2009. According to FNS's calculations, we estimate that the
ARRA's provision excluding any errors between $25.00 and $50.00 from
the calculation decreased the 2009 combined Payment Error Rate (PER) by
15 percent. The total combined Payment Error Rate (PER) decreased from
FY 2008's 5.01 percent to 4.36 percent.
The ARRA provision concerning the QC threshold expired September
30, 2009. The threshold for the FY 2010 QC review period reverted to
$25.00. The increased benefit allotment, however, remains in place. The
Department believes that the State agencies should continue to benefit
from the increased threshold amount of $50.00 to offset the increased
benefit amounts. Therefore, in this rulemaking, the Department is
raising the QC tolerance threshold of $25.00 to $50.00 to make the
temporary ARRA change permanent.
Prior experience with the provisions of this rule under the ARRA
demonstrates that they contribute to a significant reduction in the
rate of improper payments in SNAP. SNAP is identified by the Office of
Management and Budget (OMB) as a high risk program for improper
payments. Reducing the payment error rate is a priority for both USDA
and OMB. To improve business efficiency, agencies must prioritize those
areas that have the most potential to improve payment accuracy and
reduce improper payments. This rulemaking supports that goal by
focusing on errors that are the most economically efficient to correct.
The provisions of this rule will improve the data available at the
Federal level allowing for further analysis of the root causes of
payment errors. The Department's payment accuracy team will be better
able to focus on the largest and most
[[Page 67316]]
problematic errors and then work with States on additional cost
efficient ways to improve the Administration's goals to reduce improper
payments.
The Department is also requiring all error amounts found shall be
coded and reported by the State Agencies on FNS 380-1, OMB 0584-0299,
Review Schedule for SNAP QC Reviews, or as directed by FNS. Currently,
State Agencies do not have to code and report QC errors for cases with
overissuances or underissuances of $25.00 or below since they are not
counted as QC errors when FNS calculates the National QC Error Rates at
the end of each review year. However, during the temporary ARRA change
from $25.00 to $50.00, States were required to code and report all
errors between $25.00 and $50.00, which became valuable in conducting
State corrective action as well as determining the impact of the
threshold on the State and National QC error rates. The Department has
determined that it would be valuable to know this information for all
variances under $50.00, even though such variances are not included in
the PER calculation. The information will be used to assist in
corrective action. Therefore, the Department is making a change to
current coding and reporting procedures for the FNS 380-1 to require
the coding and reporting of any variances that directly contribute to
the error determination, even those below the $50.00 threshold. This
coding and reporting requirement will not affect the method of
calculation for the underissuance error rate, overissuance error rate,
and the combined PER, since the calculation will continue to exclude
all errors equal to or below the proposed threshold change of $50.00.
State Agencies will continue to be responsible for taking
corrective action for all errors found in QC cases, in accordance with
the provisions of Sec. 275.16(c).
II. Procedural Matters
Issuance of a Direct Final Rule and Date of Effectiveness
FNS has determined that this rule is appropriate for direct final
rulemaking because we believe this amendment to be noncontroversial and
we anticipate no significant adverse comments. We believe this rule to
be noncontroversial as the State agencies which administer SNAP have
already expressed their unequivocal support for the policy implemented
by this rule. The amendment contained in this rule was previously in
effect under the ARRA for a six month period in fiscal year 2009. As
such, the State agencies have significant experience with the
operational implications of this amendment. We anticipate no
significant adverse comments to be submitted as public comments to this
rule as FNS did not, in the past, receive adverse comments as a result
of the previous amendment to the threshold when it was raised from
$5.00 to $25.00. In addition, State agencies have repeatedly expressed
desire for the ARRA QC provisions to be reinstated on a permanent basis
both individually and through their representative association, the
American Public Human Services Association (APHSA). This direct final
rulemaking is consistent with the State agencies' requests.
This rule is effective January 3, 2012 unless the Department
receives written significant adverse comments on or before December 1,
2011. FNS invites public comment on this direct final rule. If
significant adverse comments within the scope of the rulemaking are
received, the Department will publish timely notification of withdrawal
of this rule in the Federal Register. A significant adverse comment is
defined as one where the comment explains why the rule would be
inappropriate, including challenges to the rule's underlying premise or
approach, or would be ineffective or unacceptable without a change.
Although the rule is not effective until January 3, 2012, State
agencies are required to apply the raised threshold for the entire FY
2012 QC review period.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 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 rule has been designated not significant under section 3(f) of
Executive Order 12866.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, Audrey
Rowe, FNS Administrator, has certified that this rule would not have a
significant impact on a substantial number of small entities.
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 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 rule does not contain 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 (SNAP) is listed in
the Catalog of Federal Domestic Assistance Programs under 10.561. 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
included in the scope of Executive Order 12372 which requires
intergovernmental consultation with State and local officials.
Executive Order 13175
USDA will undertake, within 6 months after this rule becomes
effective, a series of Tribal consultation sessions to gain input by
elected Tribal officials or their designees concerning the impact of
this rule on Tribal governments, communities and individuals. These
sessions will establish a baseline of consultation for future actions,
should any be necessary, regarding this rule. Reports from these
sessions for consultation will be made part of the USDA annual
reporting on Tribal Consultation and Collaboration. USDA will respond
in a timely and meaningful manner to all Tribal government requests for
consultation concerning this rule and will provide additional venues,
such as webinars and
[[Page 67317]]
teleconferences, to periodically host collaborative conversations with
Tribal leaders and their representatives concerning ways to improve
this rule in Indian country.
The policies contained in this rule would not have Tribal
implications that preempt Tribal law since State welfare agencies will
be the most affected to the extent that they administer the SNAP.
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 13121. FNS has
considered this rule's impact on State and local agencies and has
determined that it does not have Federalism implications under E.O.
13132.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not 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
and timely implementation. State agencies are required to apply the
raised threshold in this rule to all cases reviewed as part of the FY
2012. 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 rule in accordance with the Department
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and
address any major civil rights impacts the rule might have on
minorities, women, and persons with disabilities. After a careful
review of the rule's intent and provisions, FNS has determined that
this rule will not in any way limit or reduce the ability of protected
classes of individuals to participate in SNAP. This regulation does not
apply to the certification determinations made on the intended
beneficiaries of the SNAP. Quality Control procedures are designed to
evaluate the accuracy of the application of SNAP certification policy
and therefore, the evaluation procedures do not impact protected
classes or individuals.
Paperwork Reduction Act
Information collections associated with this rule have been
approved under following OMB control numbers: 0584-0074, Worksheet for
SNAP Quality Control Reviews (expiration date April 30, 2013), and
0584-0299 Form FNS-380-1, Quality Control Review Schedule, Form FNS-
380-1 (March 31, 2013).
E-Government Act Compliance
FNS is committed to complying with the E-Government Act, 2002, 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.
List of Subjects in 7 CFR Part 275
Administrative practice and procedure, Supplemental Nutrition
Assistance Program, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 275 is
amended as follows:
PART 275--PERFORMANCE REPORTING SYSTEM
0
1. The authority citation for part 275 continues to read as follows:
Authority: 7 U.S.C. 2011-2036.
0
2. In Sec. 275.12, paragraph (f)(2) is revised to read as follows:
Sec. 275.12 Review of active cases.
* * * * *
(f) * * *
(2) Basis of issuance of errors. If the reviewer determines that
SNAP allotments were either overissued or underissued to eligible
households in the sample month, the State agency shall code and report
any variances that directly contributed to the error determination that
were discovered and verified during the course of the review. Only
variances that exceed $50.00 (the threshold) shall be included in the
calculation of the underissuance error rate, overissuance error rate,
and payment error. If the State agency has chosen to report information
on all variances in elements of eligibility and basis of issuance, the
reviewer shall code and report any other such variances that were
discovered and verified during the course of the review.
* * * * *
Dated: October 25, 2011.
Jeffrey J. Tribiano,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 2011-28230 Filed 10-31-11; 8:45 am]
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