[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR253.7]

[Page 519-529]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS ON INDIAN RESERVATIONS--Table of Contents
 
Sec. 253.7  Certification of households.

    (a) Application processing--(1) General purpose. The application 
process includes filing and completing an application form, being 
interviewed, and having certain information verified. The State agency 
shall act promptly on all applications. Expedited service shall be 
available to household in immediate need. When the State agency is other 
than the ITO, the ITO, when appropriate, may receive copies of 
certification and/or termination notices to the extent requested or 
agreed upon by the household. State agencies and ITOs may develop 
formalized mechanisms to ensure ITO receipt of notices.
    (2) Food Distribution Program application form. The State agency 
shall use an application form acceptable to FNS. The State agency shall 
consult with the ITO in developing the application form. The State 
agency shall make application forms readily accessible to potentially 
eligible households and those groups or organizations involved in 
outreach efforts. The State agency shall also provide an application 
form to anyone who requests the form. State agencies which elect joint 
PA or GA/Food Distribution Program procedures shall follow the 
requirements of paragraph (g) of this section for the application form. 
State agencies may also use an abbreviated recertification form.
    (3) Filing an application. Households must file an application for 
the Food Distribution Program by submitting the form to a certification 
office in person, through an authorized representative or by mail. The 
State agency shall document the date the application was received. Each 
household has the right to file an application form the same day it 
contacts the certification office during office hours on the reservation 
where the household resides. The household shall be advised that it does 
not have to be interviewed before filing the application and may file an 
incomplete application form as long as the application contains the 
applicant's name and address and is signed by a responsible member of 
the household or the household's authorized representative.
    (4) Household cooperation. To determine eligibility, the application 
form must be completed and signed, the household or its authorized 
representative must be interviewed, and certain

[[Page 520]]

information on the application must be verified. If the household 
refuses to cooperate with the State agency in completing this process, 
the application shall be denied upon a determination of refusal. For a 
determination of refusal to be made, the household must be able to 
cooperate, but clearly demonstrate that it will not take actions that it 
can take and that are required to complete the application process. For 
example, to be denied for refusal to cooperate, a household must refuse 
to be interviewed and not merely fail to appear for the interview. If 
there is any question as to whether the household has merely failed to 
cooperate, as opposed to refused to cooperate, the household shall not 
be denied solely for this reason. The household shall also be determined 
ineligible if it refuses to cooperate in any subsequent review of its 
eligibility. Once denied or terminated for refusal to cooperate, the 
household may reapply but shall not be determined eligible until it 
cooperates.
    (5) Interviews. All applicant households, including those submitting 
applications by mail, shall have an interview with a qualified 
eligibility worker prior to initial certification and all 
recertifications. At State agency discretion, applicants may be 
interviewed by telephone or in the home. No household shall be 
interviewed by telephone for any two consecutive certifications without 
a face-to-face interview. State agencies must attempt to schedule home 
visits in advance. Home visits cannot extend required processing 
standards set forth in paragraphs (a)(7) and (a)(9) of this section. The 
individual interviewed may be the head of household, spouse, any other 
responsible member of the household or an authorized representative. The 
household, if it wishes, may be accompanied to the interview by anyone 
of its choice. The interviewer shall not only review the information 
that appears on the application, but shall explore and resolve with the 
household unclear and incomplete information. Households shall be 
advised of their rights and responsibilities during the interview. The 
interview shall be conducted as an official and confidential discussion 
of household circumstances. The applicant's right to privacy shall be 
protected during the interview. Facilities shall be adequate to preserve 
the privacy and confidentiality of the interview.
    (6) Verification. Verification is the use of third party information 
or documentation to establish the accuracy of statements on the 
application in order to determine eligibility or ineligibility of the 
household.
    (i) Mandatory verification.
    (A) Gross non-exempt income. The State agency must obtain 
verification of each household's gross non-exempt income prior to 
certification. Households certified under the expedited service 
processing standards at paragraph (a)(9) of this section are not subject 
to this requirement. Income does not need to be verified to the exact 
dollar amount unless the household's eligibility would be affected, 
since Food Distribution Program benefits are not reduced as income 
rises. If the eligibility worker is unable to verify the household's 
income, the worker must determine an amount to be used for certification 
purposes based on the best available information. Reasons for inability 
to verify income include failure of the person or organization providing 
the income to cooperate with the household and the State agency, or lack 
of other sources of verification.
    (B) Legal obligation and actual child support payments. The State 
agency must obtain verification of the household's legal obligation to 
pay child support, the amount of the obligation, and the monthly amount 
of child support the household actually pays. Documentation that 
verifies the household's legal obligation to pay child support, such as 
a court order, cannot be used to verify the household's actual monthly 
child support payments.
    (C) Medicare Part B medical insurance premium. The State agency must 
obtain verification of the household's payment of the Medicare Part B 
medical insurance premium. Documentation of this expense could include:
    (1) A copy of the current year Social Security benefit statement 
(SSA-4926-SM), or a similar statement provided to Railroad Retirement 
Board and Civil Service Retirement beneficiaries, which identifies the 
amount of the

[[Page 521]]

Medicare Part B premium withheld each month; or
    (2) A receipt for Medicare Part B premium payments paid directly to 
Medicare by the household.
    (ii) Verification of questionable information. Eligibility criteria 
other than income, including residency on or near the reservation, shall 
be verified prior to certification only if they are questionable. To be 
considered questionable, the information on the application must be 
inconsistent with statements by the applicant, inconsistent with other 
information on the application or previous applications, or inconsistent 
with other information received by the State agency. However, due to the 
difficulty in verifying whether a group of individuals is a household, 
State agencies shall generally accept the household's statement 
regarding food preparation and consumption.
    (iii) Responsibility for obtaining verification. The household has 
primary responsibility for providing documentary evidence or an 
acceptable collateral contact to support its income statements and to 
resolve any questionable information. However, the State agency shall 
assist the household in obtaining the needed verification. The State 
agency shall accept any reasonable documentary evidence provided by the 
household and shall be primarily concerned with how adequately the 
verification proves the statements on the application. The State agency 
shall also accept verification from collateral contacts so long as the 
collateral contacts can provide accurate third party verification. The 
State agency shall rely on the household to provide the name of the 
collateral contact. The State agency is not required to use a collateral 
contact designated by the household if the collateral contact cannot be 
expected to provide accurate third party verification. If the collateral 
contact designated by the household is unacceptable to the State agency, 
the State agency shall ask the household to designate another collateral 
contact, and the State agency shall document the casefile as to the 
reason the collateral contact was rejected and an alternate was 
requested. The State agency shall use collateral contacts, rather than 
documentary evidence, for verification if such verification is 
acceptable, and would result in better service to the household. For 
example, the household may be able to obtain a wage stub from the 
employer, but the State agency could call the employer the same day to 
provide the verification of income. Home visits shall be used as 
verification only if documentary evidence and collateral contacts cannot 
be obtained, and the State agency attempts to schedule the visit in 
advance with the household.
    (iv) Documentation. Casefiles must be documented to support a 
determination of eligibility or denial. Documentation shall be in 
sufficient detail to permit a reviewer to determine the reasonableness 
and accuracy of the determination.
    (v) Verification for recertification. At recertification, the State 
agency shall verify a change in income if the source has changed or the 
amount has changed by more than $50 per month since the last time the 
income was verified. State agencies may verify income which is unchanged 
or has changed by $50 per month or less, provided verification is, at a 
minimum, required when information is questionable as defined in 
paragraph (a)(6)(ii) of this section. All other changes reported at the 
time of recertification shall be subject to the same verification 
procedures as apply at initial certification. Unchanged information, 
other than income, shall not be verified at recertification unless the 
information is questionable as defined in paragraph (a)(6)(ii) of this 
section.
    (7) Processing standards. The State agency shall provide eligible 
households that complete the initial application process an opportunity 
to participate as soon as possible, but not later than seven calendar 
days excluding weekends and holidays after the application was filed. An 
application is filed the day the State agency receives an application 
containing the applicant's name and address and which is signed by 
either a responsible member of the household or the household's 
authorized representative.
    (8) Delays in processing. If the State agency cannot determine a 
household's eligibility within seven calendar days excluding weekends 
and holidays of the

[[Page 522]]

date the application was filed due to lack of verification as required 
in paragraph (a)(6) of this section, the State agency shall authorize 
the distribution of commodities to the household for one month pending 
verification. In order to certify the household pending verification, 
the information on the application form must be complete and indicate 
that the household will likely be eligible. No further distribution of 
commodities shall be made without completing the eligibility 
determination.
    (9) Expedited service. The State agency shall provide an opportunity 
to obtain commodities within one calendar day excluding weekends and 
holidays after the date the application was filed for those households 
with no income in the current month and also for those households which, 
in the judgment of the certifying agency, would likely be eligible and 
would otherwise suffer a hardship. The basis for this determination 
shall be recorded in the casefile. State agencies shall provide same day 
service, if possible, to households eligible for expedited service which 
would likely suffer a hardship if required to return to the office the 
next day. Warehouses or other distribution points need not be open 
during all certification hours to meet this need. However, accessibility 
to federally donated commodities by appropriate certification or other 
personnel should be established for households in immediate need. When 
State agencies can demonstrate a need, FNS may approve other expedited 
timeframes based on circumstances such as distance to warehouses or 
other distribution points. To expedite the certification of households 
in immediate need the State agency shall postpone the verification 
required under paragraph (a)(6) of this section. However, the State 
agency shall verify the household's identity and address through a 
collateral contact or readily available documentary evidence. If 
possible, the household's income statements should be verified at the 
same time. The State agency shall complete the verification for 
households certified on an expedited basis prior to the distribution of 
commodities to the household for any subsequent month.
    (10) Authorized representatives. The head of the household, spouse, 
or any other responsible member of the household may designate an 
authorized representative to act on behalf of the household in one or 
all of the following capacities:
    (i) Making application for commodities. When the head of the 
household or the spouse cannot make application, another household 
member may apply or an adult nonhousehold member may be designated in 
writing as the authorized representative for that purpose. The head of 
the household or the spouse should prepare or review the application 
whenever possible, even though another household member or the 
authorized representative will actually be interviewed. Adults who are 
nonhousehold members may be designated as authorized representatives for 
certification purposes only if they are sufficiently aware of relevant 
household circumstances.
    (ii) Obtaining commodities. An authorized representative of the 
household may be designated to obtain commodities. Designation shall be 
made at the time the application is completed except that the household 
may be permitted to designate an emergency authorized representative in 
the event that illness or other unforeseen circumstances prevent the 
household from otherwise obtaining commodities. Designation of an 
emergency authorized representative must be made in writing by a 
responsible member of the household. State agencies may distribute 
commodities to household members or authorized representatives 
presenting an identification card or other appropriate identification 
that satisfactorily identifies the member obtaining commodities.
    (b) Eligibility determinations--(1) Determining income. (i) The 
State agency shall take into account the income already received by the 
household during the certification period and any anticipated income the 
household and the State agency are reasonably certain will be received 
during the remainder of the certification period. If the amount of 
income that is anticipated is uncertain, that portion of the household's 
income that is uncertain shall not be counted by the State agency.

[[Page 523]]

For example, a household anticipating income from a new source, such as 
a new job or recently applied for public assistance benefits, may be 
uncertain as to the timing and amount of the initial payment. These 
monies shall not be anticipated by the State agency unless there is 
reasonable certainty concerning the month in which the payment will be 
received and in what amount. If the exact amount of the income is not 
known, that portion of it which can be anticipated with reasonable 
certainty shall be considered as income. In cases where the receipt of 
income is reasonably certain but the monthly amount may fluctuate, and 
the household's income is close to the income eligibility limit the 
State agency may elect to average income provided that such averaging 
does not disadvantage the household. Such averaging shall be based on 
income that is anticipated to be available to the household during the 
certification period. The State agency shall use income received in the 
past 30 days as an indicator of future income during the certification 
period unless changes in income have occurred or can be anticipated.
    (ii) Income anticipated during the certification period shall be 
counted as income only in the month it is expected to be received, 
unless the income is averaged.
    (iii)(A) Self-employment income which represents a household's 
annual support including the net profit from the sale of any capital 
goods or equipment related to the business shall be annualized over a 
12-month period, even if the income is received in only a short period 
of time. For example, self-employment income received by farmers shall 
be averaged over a 12-month period if the income represents the farmer's 
annual support.
    (B) Self-employment income which represents only a part of a 
household's annual support, including the net profit from the sale of 
any capital goods or equipment related to the business, shall be 
averaged over the period of time the income is intended to cover. For 
example, self-employed vendors who work only in the summer and 
supplement their income from other sources during the balance of the 
year shall have their self-employment income averaged over the summer 
months rather than a 12-month period.
    (C) For the period of time over which self-employment income is 
determined, the State agency shall add all gross self-employment income, 
exclude the cost of producing the self-employment income and divide the 
net self-employment income by the number of months over which the income 
will be averaged. The allowable costs of producing self-employment 
income include but are not limited to, the identifiable costs of labor, 
stock, raw materials, seed and fertilizer, interest paid to purchase 
income producing property, insurance premiums, and taxes paid on income 
producing property.
    (D) In determining net self-employment income, payments on the 
principal of the purchase price of income-producing real estate and 
capital assets, equipment, machinery, and other durable goods, net 
losses from previous periods, Federal, State, and local income taxes, 
money set aside for retirement purposes, and other work-related personal 
expenses (such as transportation to and from work) will not be allowable 
costs of doing business.
    (iv) The monthly net self-employment income shall be added to any 
other earned income received by the household. The total monthly earned 
income, less the 20 percent earned income deduction, shall then be added 
to all monthly unearned income received by the household.
    (v) Allowable costs for dependent care shall be subtracted from the 
household's total monthly income to determine net monthly income.
    (vi) The total net monthly income shall be compared to the income 
eligibility standard for the appropriate household size to determine the 
household's eligibility.
    (2) Certification periods. (i) The State agency shall establish 
definite periods of time within which households shall be eligible to 
receive benefits. Further eligibility shall be established upon a 
recertification based upon a newly completed application, an interview, 
and such verification as required by paragraph (a)(6)(v) of this 
section.
    (ii) Certification periods shall conform to calendar months. The 
first

[[Page 524]]

month in the certification period of initial applicants shall be the 
month in which eligibility is determined. For example, if a household 
submits an application in late January and the household is determined 
eligible on the fifth working day which falls in February, a six-month 
certification period would include February through July. Upon 
recertification, the certification period will begin with the month 
following the last month of the previous certification period.
    (iii) A household shall be assigned a certification period for as 
long a period as the household's circumstances are expected to remain 
sufficiently stable such that the household is expected to continue to 
meet the program's eligibility standards. In no event shall a 
certification period exceed one year.
    (3) Certification notices--(i) Notice of eligibility. If an 
application is approved, the State agency shall provide the household a 
written notice of eligibility and the beginning and ending dates of the 
certification period. Households certified on an expedited basis shall 
be advised that the subsequent month's eligibility will depend upon 
completion of the postponed verification.
    (ii) Notice of denial. If the application is denied, the State 
agency shall provide the household written notice explaining the basis 
for the denial, the household's right to request a fair hearing, and the 
telephone number and address of the person to contact for additional 
information. If there is an individual or organization available which 
provides free legal representation, the notice shall also advise the 
household of the availability of the service.
    (iii) Notice of adverse action. (A) Prior to any action to reduce or 
terminate a household's benefits within the certification period, except 
for households voluntarily switching program participation from the Food 
Distribution Program to the Food Stamp Program, State agencies shall 
provide the household timely and adequate advance notice before the 
adverse action is taken. The notice must be issued within 10 days of 
determining that an adverse action is warranted. The adverse action must 
take effect with the next scheduled distribution of commodities that 
follows the expiration of the advance notice period, unless the 
household requests a fair hearing.
    (B) In State agencies that have elected joint public assistance or 
general assistance and Food Distribution processing, the notice of 
adverse action shall be considered timely if the advance notice period 
conforms to that period of time defined by the State agency as an 
adequate notice period for its public or general assistance caseload, 
provided that the period includes at least 10 days from the date the 
notice is mailed to the date upon which the action becomes effective. In 
circumstances other than joint processing, the advance notice shall be 
considered timely if the advance notice period includes at least 10 days 
from the date the notice is issued to the date upon which the action 
becomes effective.
    (C) The notice of adverse action must include the following in 
easily understandable language:
    (1) The reason for the adverse action;
    (2) The date the adverse action will take effect;
    (3) The household's right to request a fair hearing and continue to 
receive benefits pending the outcome of the fair hearing;
    (4) The date by which the household must request the fair hearing;
    (5) The liability of the household for any overissuances received 
while awaiting the outcome of the fair hearing, if the fair hearing 
official's decision is adverse to the household;
    (6) The telephone number and address of someone to contact for 
additional information; and
    (7) The telephone number and address of an individual or 
organization that provides free legal representation, if available.
    (D) The State agency shall continue distribution of commodities to 
the household after the end of the adverse notice period if the 
household requests a fair hearing during the advance notice period.
    (E) If the State agency determines that a household received more 
USDA commodities than it was entitled to receive, it must establish a 
claim against the household in accordance with

[[Page 525]]

Sec. 253.9. The initial demand letter for repayment must be provided to 
the household at the same time the notice of adverse action is issued. 
It may be combined with the notice of adverse action.(c) Reporting 
changes. (1) Certified households are required to report changes in 
household composition and income which would necessitate a change in the 
determination of eligibility. To facilitate reporting changes in income 
each certified household shall be advised at the time of certification 
what the maximum monthly income limit, as defined in Sec. 253.6(e)(1), 
is for its size household, and shall be required to report any change in 
income that goes above that limit to the certification office within ten 
days after the change becomes known to the household. Households must 
also report within ten days when cash on hand, money in checking or 
savings accounts, savings certificates, stocks, or bonds, or other 
readily negotiable instruments exceeds $1,750. The State agency shall 
develop the procedures for when and how changes in household 
circumstances are reported. Changes reported over the telephone or in 
person shall be acted on in the same manner as those reported in 
writing.
    (2) If the State agency determines that the household is no longer 
eligible or reduces the amount of commodities due the household because 
the household has lost a member or members, the State agency shall 
provide the household with a notice of adverse action not later than ten 
days after the change is reported. If the reported change increases the 
amount of commodities due the household, the household shall be notified 
that the increase shall be effective not later than the month following 
the date the change was reported.
    (d) Recertification. (1) The State agency shall develop a procedure 
for notifying the household prior to or shortly after the end of its 
certification period that the household must reapply and be recertified 
for continued participation. Households shall also be notified of the 
date upon which termination from participation will be effective should 
the household fail to reapply before the expiration of the certification 
period.
    (2) The State agency shall approve or deny a household's application 
for recertification and notify the household of that determination prior 
to the expiration of the household's current certification period. 
Households applying for recertification in the last month of the current 
certification period must be provided an opportunity to obtain commodity 
distribution on an uninterrupted basis.
    (3) The State agency shall continue distribution of commodities to 
the household denied at the point of recertification if the household 
timely requests a fair hearing.
    (e) Controls for dual participation--(1) Prohibition on dual 
participation. No household shall be allowed to participate 
simultaneously in the Food Stamp Program and Food Distribution Program. 
The State agency shall inform each applicant household of this 
prohibition and shall develop a method to detect dual participation. The 
method developed by the State agency shall, at a minimum, employ lists 
of currently certified households provided by and provided to the 
appropriate food stamp agency on a monthly basis. The State agency may 
also employ computer checks, address checks and telephone calls to 
prevent dual participation. The State agency shall coordinate with the 
appropriate food stamp agency or agencies in developing controls for 
dual participation.
    (2) Choice of programs. Households eligible for either the Food 
Stamp Program or Food Distribution Program on reservations on which both 
programs are available may elect to participate in either program. Such 
households may elect to participate in one program, and subsequently 
elect the other at the end of the certification period. Households may 
also elect to switch from one program to the other program within a 
certification period only by terminating their participation, and 
notifying the State agency of their intention to switch programs. 
Households certified in either the Food Distribution or Food Stamp 
Program on the first day of the month can only receive benefits in the 
program for which they are currently certified during that month. At the 
point the household

[[Page 526]]

elects to change programs the household should notify the State agency 
of its intent to switch programs, and should file an application for the 
program in which it wishes to participate. Households voluntarily 
withdrawing from one program with the intent of switching to the other 
shall have their eligibility terminated for the program in which they 
are currently certified on the last day of the month in which the 
household notifies the State agency of its intent to change programs. 
Entitlement in the program for which a household is now filing an 
application, if all eligibility criteria are met, would begin in the 
month following the month of termination in the previous program.
    (f) Treatment of disqualified household members. (1) The following 
are not eligible to participate in the Food Distribution Program:
    (i) Household members disqualified from the Food Distribution 
Program for an intentional program violation under Sec. 253.8. These 
household members may participate, if otherwise eligible, in the Food 
Distribution Program once the period of disqualification has ended.
    (ii) Household members disqualified from the Food Stamp Program for 
an intentional program violation under Sec. 273.16 of this chapter. 
These household members may participate, if otherwise eligible, in the 
Food Distribution Program once the period of disqualification under the 
Food Stamp Program has ended. The State agency must, in cooperation with 
the appropriate food stamp agency, develop a procedure that ensures that 
these household members are identified.
    (iii) Households disqualified from the Food Distribution Program for 
failure to pay an overissuance claim. The circumstances under which a 
disqualification is allowed for such failure are specified in FNS 
Handbook 501.
    (2) During the time a household member is disqualified, the 
eligibility and food distribution benefits of any remaining household 
members will be determined as follows:
    (i) Resources. The resources of the disqualified member will 
continue to count in their entirety to the remaining household members.
    (ii) Income. A pro rata share of the income of the disqualified 
member will be counted as income to the remaining members. This pro rata 
share is calculated by dividing the disqualified member's earned (less 
the 20 percent earned income deduction) and unearned income evenly among 
all household members, including the disqualified member. All but the 
disqualified member's share is counted as income to the remaining 
household members.
    (iii) Eligibility and benefits. The disqualified member will not be 
included when determining the household's size for purposes of assigning 
food distribution benefits to the household or for purposes of comparing 
the household's net monthly income with the income eligibility 
standards.
    (g) Joint processing PA/GA. (1) State agencies which are responsible 
for and administer both the Food Distribution and public assistance (PA) 
or general assistance (GA) programs on Indian reservations may allow a 
household to apply for the Food Distribution Program at the same time 
the household applies for PA or GA benefits. However, while PA 
households are categorically eligible, GA households except for those 
households in GA programs which have been determined by FNS to have 
criteria of need the same as, or similiar to those under federally aided 
public assistance programs as provided for in Sec. 253.6(c)(2) shall 
have their eligibility for commodities based solely on Food Distribution 
eligibility criteria. All criteria provided in this paragraph (f), are 
applicable to State agencies which administer both the Food Distribution 
and assistance programs and which elect joint processing. Under joint 
processing, the State agency shall use joint application forms that 
contain all the information needed to determine eligibility for 
commodities or shall attach a form for the other needed information.
    (2) The State agency shall process all applications for PA or GA as 
applications for the Food Distribution Program as well, unless the 
household clearly indicates on a space on the application that the 
household does not want commodities. The State agency shall conduct a 
single interview for PA or GA and Food Distribution Program

[[Page 527]]

eligibility, unless the State agency is unable to do so within the Food 
Distribution Program processing standards specified in paragraphs (a)(7) 
and (a)(9)of this section. In such cases the State agency shall provide 
separate certification for PA or GA and Food Distribution Program 
eligibility.
    (3) The State agency may verify those factors of eligibility which 
must be verified for PA or GA, under PA or GA rules, but must follow the 
Food Distribution Program rules for all other factors.
    (4) PA households have the same reporting requirements as any other 
food distribution household. PA households which report a change in 
circumstances to the PA worker shall be considered to have reported the 
change for food distribution purposes. All of the requirements 
pertaining to reporting changes for PA households shall be applied to GA 
households in project areas where GA and food distribution cases are 
processed jointly.
    (5) The State agency must follow all Food Distribution Program 
timeliness rules for certification of households for the Food 
Distribution Program.
    (h) Fair hearing--(1) Availability of hearings. The State agency 
shall provide a fair hearing to any household aggrieved by any action of 
the State agency which affects the participation of the household in the 
Food Distribution Program.
    (2) Timely action on hearings--(i) Time frames for the State agency. 
The State agency must conduct the hearing, arrive at a decision, and 
notify the household of the decision within 60 days of receipt of a 
request for a fair hearing. The fair hearing decision may result in a 
change in the household's eligibility or the amount of commodities 
issued to the household based on household size. The State agency must 
implement these changes to be effective for the next scheduled 
distribution of commodities following the date of the fair hearing 
decision. If the commodities are normally made available to the 
household within a specific period of time (for example, from the first 
day of the month through the tenth day of the month), the effective date 
of the disqualification will be the first day of that period.
    (ii) Household requests for postponement. The household may request 
and is entitled to receive, a postponement of the scheduled hearing. The 
postponement shall not exceed 30 days and, the time limit for action on 
the decision may be extended for as many days as the hearing is 
postponed.
    (3) Notification of right to request hearing. At the time of 
application, each household shall be informed of its right to a hearing, 
of the method by which a hearing may be requested, and that its case may 
be presented by a household member or a representative, such as a legal 
counsel, a relative, a friend or other spokesperson. If there is an 
individual or organization available which provides free legal 
representation, the household shall also be informed of the availability 
of that service. Hearing procedures shall be published by the State 
agency and made available to any interested party.
    (4) Time period for requesting hearing. A household shall be allowed 
to request a hearing on any action by the State agency which occurred in 
the prior 90 days or which affects current benefits.
    (5) Request for hearing. A request for a hearing is any clear 
expression, oral or written, by the household or its representative to 
the State agency that it wishes to present its case to a higher 
authority. The freedom to make such a request shall not be limited or 
interfered with in any way. Upon request, the State agency shall make 
available without charge the specific materials necessary for a 
household or its representative to determine whether a hearing should be 
requested or to prepare for a hearing.
    (6) Denial or dismissal of request for hearing. The State agency 
shall not deny or dismiss a request for a hearing unless:
    (i) The request is not received within the time period specified in 
paragraph (g)(4) of this section;
    (ii) The request is withdrawn in writing by the household or its 
representative; or
    (iii) The household or its representative fails, without good cause, 
to appear at the scheduled hearing.
    (7) Notification of time and place of hearing. The time, date and 
place of the hearing shall be convenient to the

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household. At least 15 days prior to the hearing, advance written notice 
shall be provided to all parties involved to permit adequate preparation 
of the case. The notice shall:
    (i) Advise the household or its representative of the name, address, 
and the phone number of the person to notify in the event it is not 
possible for the household to attend the scheduled hearing.
    (ii) Specify that the State agency will dismiss the hearing request 
if the household or its representative fails to appear for the hearing 
without good cause.
    (iii) Include the State agency hearing procedures and any other 
information that would provide the household with an understanding of 
the proceedings, and that would contribute to the effective presentation 
of the household's case.
    (iv) Explain that the household or representative may examine the 
casefile prior to the hearing.
    (8) Hearing official. Hearings shall be conducted by an impartial 
official(s), designated by the State agency, who does not have any 
personal interest or involvement in the case and who was not directly 
involved in the initial determination of the action which is being 
contested. The hearing official shall:
    (i) Administer oaths or affirmations if required by the State;
    (ii) Ensure that all relevant issues are considered;
    (iii) Request, receive and make part of the record all evidence 
determined necessary to decide the issues being raised;
    (iv) Regulate the conduct and course of the hearing consistent with 
due process to ensure an orderly hearing; and
    (v) Render a hearing decision in the name of the State agency, in 
accordance with paragraph (g)(11) of this section, which will resolve 
the dispute.
    (9) Attendance at hearing. The hearing shall be attended by a 
representative of the State agency which initiated the action being 
contested and by the household and/or its representative. The hearing 
may also be attended by friends or relatives of the household upon 
household consent.
    (10) Conduct of hearing. The household may not be familiar with the 
rules of order and it may be necessary to make particular efforts to 
arrive at the facts of the case in a manner that makes the household 
feel most at ease. The household or its representative must be given 
adequate opportunity to:
    (i) Examine all documents and records to be used at the hearing at a 
reasonable time before the date of the hearing, as well as during the 
hearing. The contents of the casefile, including the application forms 
and documents of verification used by the State agency shall be made 
available, provided the confidential information is protected from 
release. The State agency shall provide a free copy of the relevant 
portions of the casefile if requested by the household or its 
representative. Confidential information that is protected from release 
and other documents or records which the household will not otherwise 
have an opportunity to contest or challenge shall not be introduced at 
the hearing or affect the hearing official's decision.
    (ii) Present the case or have it presented by a legal counsel or 
other person.
    (iii) Bring witnesses.
    (iv) Advance arguments without undue interference.
    (v) Question or refute any testimony or evidence, including an 
opportunity to confront and cross-examine adverse witnesses.
    (vi) Submit evidence to establish all pertinent facts and 
circumstances in the case.
    (11) Hearing decisions. (i) Decisions of the hearing officials shall 
comply with Federal law or regulations and shall be based on the hearing 
record. The verbatim transcript or recording of testimony and exhibits 
or an official report containing the substance of what transpired at the 
hearing, together with all papers and requests filed in the proceeding, 
shall constitute the exclusive record for a final decision by the 
hearing official.
    (ii) A decision by the hearing official shall be binding on the 
State agency and shall summarize the facts of the

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case, specify the reasons for the decision and identify the supporting 
evidence and the pertinent FNS regulations. The decision shall become a 
part of the record.
    (iii) Within 10 days of the date the fair hearing decision is 
issued, the State agency must issue a notice to the household advising 
it of the decision.
    (A) If the decision upheld the adverse action by the State agency, 
the notice must advise the household of the right to pursue judicial 
review.
    (B) If the decision upheld a disqualification, the notice must also 
include the reason for the decision, the date the disqualification will 
take effect, and the duration of the disqualification (that is, 12 
months; 24 months; or permanent). The State agency must also advise any 
remaining household members if the household's benefits will change, or 
if the household is no longer eligible as a result of the 
disqualification.
    (iv) The State agency must revise the demand letter for repayment 
issued previously to the household to include the value of all 
overissued commodities provided to the household during the appeal 
process, unless the fair hearing decision specifically requires the 
cancellation of the claim. The State agency must also advise the 
household that collection action on the claim will continue, in 
accordance with FNS Handbook 501, unless suspension is warranted.
    (12) Agency conferences. (i) The State agency shall offer agency 
conferences to households which request an immediate resolution by a 
higher authority of a denial of eligibility for food distribution 
benefits. The State agency may also offer agency conferences to 
households adversely affected by any agency action. The State agency 
shall advise households that use of an agency conference is optional and 
that such use shall in no way delay or replace the fair hearing process. 
The agency conferences may be attended by the eligibility worker 
responsible for the agency action, and shall be attended by an 
eligibility supevisor and/or the agency director, as well as the 
household and/or its representative. An agency conference may lead to an 
informal resolution of the dispute. However, a fair hearing must still 
be held if requested by the household.
    (ii) An agency conference for households requesting an immediate 
resolution by a higher authority of an eligibility issue shall be 
scheduled within four working days of the request unless the household 
requests that it be scheduled later or states that it does not wish to 
have an agency conference.

(Approved by the Office of Management and Budget under control number 
0584-0071)

(44 U.S.C. 3506)

[44 FR 35928, June 19, 1979, as amended at 47 FR 746, Jan. 7, 1982. 
Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; 64 FR 
73383, Dec. 30, 1999; 65 FR 47833, Aug. 4, 2000]