This final rule amends the Supplemental Nutrition Assistance Program (SNAP or Program) regulations to ensure that retail food stores can no longer use the Freedom of Information Act (FOIA) process to delay FNS' administrative actions to sanction a retail food store for SNAP violations. Under this rule, FNS will process FOIA requests and FOIA appeals separately from the administrative action for all SNAP violations, as originally proposed. The processing of FOIA requests and appeals during the administrative and judicial review process will have no impact on when the agency can take administrative action.
DATES:
This rule is effective Oct. 26, 2020 and will apply to any FOIA request or appeal received by the agency on or after the effective date.
Background
SNAP regulations at 7 CFR 278.6 provide that retailers considered for a sanction as a result of committing a program violation will be charged with those violations and have a full opportunity to respond to FNS prior to FNS' making a final administrative determination and applying the sanction. After FNS issues a charge letter to the store with detailed information regarding the nature of the violations, the firm has 10 days to respond to the charge letter, orally or in writing, with any information or evidence that explains the activities that led to the charges outlined in the letter. FNS does not consider a FOIA action as an official response to the charge letter. However, if a firm files a FOIA request after receiving a charge letter, FNS currently interrupts the administrative process, such as issuing a sanction determination, while the agency responds to the FOIA request. Even if the firm submits a response to the charge letter in addition to a FOIA request, FNS delays the review of the firm's charge letter response until FNS has responded to the FOIA request.
In the event that the firm appeals the agency's FOIA response, FNS again delays administrative action while it responds to the appeal. The FOIA requires FNS to provide a response to the initial request within 20 days of receipt. The FOIA also requires FNS to make a determination with respect to any appeal within 20 days of receipt. FNS is continually working to improve the time it takes to process FOIA requests and appeals and to reduce its backlog. Today, however, firms continue participating in SNAP and redeeming benefits until the FOIA actions are complete, regardless of the seriousness of the charges originally outlined in the charge letter or the fact that the firm has not submitted a formal response to the charges. Once responses to the FOIA request and FOIA appeal are complete, the agency renews administrative proceedings by either (a) reviewing the firm's official response to the charge letter if one has been submitted, or (b) giving the firm another 10 days to provide an official response.
If the firm's official response provides documentation supporting its stance relating to the charges outlined in the charge letter, FNS considers this documentation before issuing a notice of determination. It is only on the issuance of this notice of determination that FNS may impose sanctions against a firm.
Holding SNAP administrative actions, particularly the issuance of a notice of determination, in abeyance throughout the entire FOIA process has had a serious impact on SNAP integrity because FNS practice has enabled violating firms to continue to participate in SNAP during the FOIA process. From Fiscal Year (FY) 2015 to FY 2018, 1,550 SNAP retail food stores submitted FOIA requests to FNS after receiving a charge letter. Of those retail food stores, 902 appealed the agency's FOIA response. These 1,550 firms collectively redeemed over $266 million in SNAP benefits while the FOIA actions were processed (see Table 1).
Proposed Action
In the Notice of Proposed Rulemaking (NPRM), FNS proposed to amend SNAP regulations in order to process FOIA requests and FOIA appeals separately from administrative actions FNS takes against retail food stores.