[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR253.8]

[Page 537-539]
 
                          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. 253.8  Administrative disqualification procedures for intentional 
program violation.

    (a) What is an intentional program violation? An intentional program 
violation is considered to have occurred when a household member 
knowingly, willingly, and with deceitful intent:
    (1) Makes a false or misleading statement, or misrepresents, 
conceals, or withholds facts in order to obtain Food Distribution 
Program benefits which the household is not entitled to receive; or
    (2) Commits any act that violates a Federal statute or regulation 
relating to the acquisition or use of Food Distribution Program 
commodities.
    (b) What are the disqualification penalties for an intentional 
program violation? Household members determined by the State agency to 
have committed an intentional program violation will be ineligible to 
participate in the program:
    (1) For a period of 12 months for the first violation;
    (2) For a period of 24 months for the second violation; and
    (3) Permanently for the third violation.
    (c) Who can be disqualified? Only the household member determined to 
have committed the intentional program violation can be disqualified. 
However, the disqualification may affect the eligibility of the 
household as a whole, as

[[Page 538]]

addressed under paragraphs (e)(5) and (h) of this section.
    (d) Can the disqualification be appealed? Household members 
determined by the State agency to have committed an intentional program 
violation may appeal the disqualification, as provided under Sec. 
253.7(h)(1).
    (e) What are the State agency's responsibilities?
    (1) Each State agency must implement administrative disqualification 
procedures for intentional program violations that conform to this 
section.
    (2) The State agency must inform households in writing of the 
disqualification penalties for intentional program violations each time 
they apply for benefits, including recertifications. This notice must 
also advise households that an intentional program violation may be 
referred to authorities for prosecution.
    (3) The State agency must attempt to substantiate all suspected 
cases of intentional program violation. An intentional program violation 
is considered to be substantiated when the State agency has clear and 
convincing evidence demonstrating that a household member committed one 
or more acts of intentional program violation, as defined in paragraph 
(a) of this section.
    (4) Within 10 days of substantiating that a household member has 
committed an intentional program violation, the State agency must 
provide the household member with a notice of disqualification, as 
described in paragraph (f) of this section. A notice must still be 
issued in instances where the household member is not currently eligible 
or participating in the program.
    (5) The State agency must advise any remaining household members if 
the household's benefits will change or if the household will no longer 
be eligible as a result of the disqualification.
    (6) The State agency must provide the household member to be 
disqualified with an opportunity to appeal the disqualification through 
a fair hearing, as required by Sec. 253.7(h).
    (7) The State agency must refer all substantiated cases of 
intentional program violations to Tribal, Federal, State, or local 
authorities for prosecution under applicable statutes. However, a State 
agency that has conferred with its legal counsel and prosecutors to 
determine the criteria for acceptance for possible prosecution is not 
required to refer cases that do not meet the prosecutors' criteria.
    (8) The State agency must establish claims, and pursue collection as 
appropriate, on all substantiated cases of intentional program violation 
in accordance with Sec. 253.9.
    (f) What are the requirements for the notice of disqualification?
    (1) Within 10 days of substantiating the intentional program 
violation, the State agency must issue to the household member a notice 
of disqualification. The notice must allow an advance notice period of 
at least 10 days. The disqualification must begin with the next 
scheduled distribution of commodities that follows the expiration of the 
advance notice period, unless the household member requests a fair 
hearing. A notice must still be issued in instances where the household 
member is not currently eligible or participating in the program.
    (2) The notice must conform to the requirements of Sec. 
253.7(b)(3)(iii)(C) for notices of adverse action.
    (g) What are the appeal procedures for administrative 
disqualifications?
    (1) Appeal rights. The household member has the right to request a 
fair hearing to appeal the disqualification in accordance with the 
procedures at Sec. 253.7(h).
    (2) Notification of hearing. The State agency must provide the 
household member with a notification of the time and place of the fair 
hearing as described in Sec. 253.7(h)(7). The notice must also include:
    (i) A warning that if the household member fails to appear at the 
hearing, the hearing decision will be based solely on the information 
provided by the State agency; and
    (ii) A statement that the hearing does not prevent the Tribal, 
Federal, State, or local government from prosecuting the household 
member in a civil or criminal court action, or from collecting any 
overissuance(s).
    (h) What are the procedures for applying disqualification penalties?

[[Page 539]]

    (1) If the household member did not request a fair hearing, the 
disqualification must begin with the next scheduled distribution of 
commodities that follows the expiration of the advance notice period of 
the notice of adverse action. 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. The State agency must apply the disqualification period 
(that is, 12 months, 24 months, or permanent) specified in the notice of 
disqualification. The State agency must 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.
    (2) If the household member requested a fair hearing and the 
disqualification was upheld by the fair hearing official, the 
disqualification must begin with the next scheduled distribution of 
commodities that follows the date the hearing decision is issued. 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. The State agency 
must apply the disqualification period (that is, 12 months, 24 months, 
or permanent) specified in the notice of disqualification. No further 
administrative appeal procedure exists after an adverse fair hearing 
decision. The decision by a fair hearing official is binding on the 
State agency. The household member, however, may seek relief in a court 
having appropriate jurisdiction. As provided under Sec. 
253.7(h)(11)(iii)(B), the State agency must 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.
    (3) Once a disqualification has begun, it must continue 
uninterrupted for the duration of the penalty period (that is, 12 
months; 24 months; or permanent). Changes in the eligibility of the 
disqualified household member's household will not interrupt or shorten 
the disqualification period.
    (4) The same act of intentional program violation continued over a 
period of time will not be separated so that more than one penalty can 
be imposed. For example, a household intentionally fails to report that 
a household member left the household, resulting in an overissuance of 
benefits for 5 months. Although the violation occurred over a period of 
5 months, only one penalty will apply to this single act of intentional 
program violation.
    (5) If the case was referred for Tribal, Federal, State, or local 
prosecution and the court of appropriate jurisdiction imposed a 
disqualification penalty, the State agency must follow the court order.

[64 FR 73384, Dec. 30, 1999]