03-3568. Substance Abuse Prevention and Treatment Block Grant: Waiver for U.S. Territories (Other Than Puerto Rico) of Synar Program Requirements

AGENCY:

Substance Abuse and Mental Health Services Administration, HHS.

SUMMARY:

In keeping with the Substance Abuse and Mental Health Services Administration's (SAMHSA) delegation of authority from the Secretary and in compliance with title XIX, subpart II, section 1932(c) and with section 1926 of the Public Health Service Act, SAMHSA is issuing the following guidance to be used in determining whether to approve a U.S. Territory's request for a waiver from the requirements of section 1926 of the Public Health Service (PHS) Act (the Synar Amendment), and its implementing regulations, 45 CFR 96.130.

This guidance will become effective only at such time that an appropriation act for the Department of Health and Human Services (HHS) does not contain a prohibition on penalizing the territories under section 1926 of the PHS Act that receive less than $1,000,000. (See, e.g., section 214 of Departments of Labor Health and Human Services, and Education, and Related Agencies Appropriation Act, Pub. L. 107-116 (Jan. 10, 2002).) SAMHSA, however, is seeking comment from the public on this guidance.

Section 1926 of the Public Health Service (PHS) Act and its implementing regulation, require each State, the District of Columbia and each U.S. Territory, as a condition for receiving a Substance Abuse Prevention and Treatment (SAPT) Block Grant award, to enact and enforce laws making illegal the sale or distribution of tobacco products to individuals under the age of 18 years. States, the District of Columbia and the Territories are also required to annually conduct unannounced inspections of tobacco retail outlets to ensure compliance with the law. These inspections must be based on a statistically valid random sample of retail outlets across the State, the District of Columbia or the Territory. Additionally, States, the District of Columbia and Territories are required, unless extraordinary circumstances exist, to meet negotiated annual retailer violation target rates, and to annually submit a report to the Secretary describing their activities to enforce the laws and reduce the availability of tobacco products to minors. Section 1926 also stipulates that any State, the District of Columbia or Territory failing to meet the requirements stated above may receive a 40 percent penalty against their SAPT Block Grant.

Section 1932(c) of the PHS Act authorizes the Secretary, in the case of any territory of the United States except Puerto Rico, to waive such provisions of this subpart II and subpart III as the Secretary determines to be appropriate, * * *” The reference is to subpart II and III of title XIX of the PHS Act which authorize the SAPT Block Grant. This discretionary authority extends to section 1926. This authority has been delegated by the Secretary to the Administrator of SAMHSA. This guidance explains the conditions under which the Administrator of SAMHSA, in his discretion, will grant a waiver for any Territory other than Puerto Rico from the requirements of section 1926.

DATES:

Comments on the guidance must be in writing and should be sent to Mr. David Robbins, Acting Director, Division of State and Community Systems Development, Center for Substance Abuse Prevention (CSAP), Rockwall II Building, Room 930, 5600 Fishers Lane, Rockville, MD 20857, by April 14, 2003.

FOR FURTHER INFORMATION CONTACT:

Mr. David Robbins, Acting Director, Division of State and Community Systems Development, Center for Substance Abuse Prevention (CSAP), Rockwall II Building, Room 930, 5600 Fishers Lane, Rockville, MD 20857. Mr. Robbins may be reached on [phone].

SUPPLEMENTARY INFORMATION:

U.S. Territories have faced many challenges in meeting the Synar legislative and regulatory requirements. Specifically, cultural issues have created significant challenges for the conduct of tobacco outlet inspections to assess the youth tobacco access rates within each of the U.S. Territories, as required by the Synar legislation. For example, in some Territories it is customary for individuals under the age of 18 to buy provisions, including tobacco, for their elders. In others, it is considered inappropriate to ask a person's age for any reason, even as part of a retail transaction. Additionally, the Territories are predominately comprised of small community centers within islands. Family loyalties toward merchants and the fear of community ostracism increase the difficulty of recruiting youth for retail outlet inspections. Ensuring youth safety is also a significant concern when retailer inspections are combined with enforcement. Territories report that maintaining the anonymity of youth inspectors is extremely difficult, if not impossible, in many of these small communities. Youth inspectors have been threatened, verbally harassed, and even injured as a result of their participation in the inspections.

In addition to cultural barriers to the conduct of inspections, accessibility to tobacco outlets often presents significant human and resource challenges for the U.S. Territories. Many Territories include outlying islands with very small populations. In order to conduct compliance inspections in these outlying areas, travel by boat and overnight stays are often required. Such travel is often costly and requires staff to work substantial numbers of hours to complete the required work. These logistical issues further burden the process of complying with the Synar legislative and regulatory requirements. Currently, a Territory must commit significant resources toward the development, implementation, and analysis of the survey of tobacco retail outlets across the Territory, as well as the conduct of law enforcement activities for violators of a Territory's youth tobacco access control law. Given that eligible Territories receive relatively small SAPT Block Grant awards (between $85,919 and $756,531), SAMHSA believes that resources expended directly toward the implementation of broader tobacco prevention and control programming would be more productive for obtaining the overall goal of the Synar program—reducing the use of tobacco products by youth.

Waiver Criteria: The Administrator of SAMHSA, in his discretion, will grant a waiver to any eligible Territory if:

• A waiver is requested by the eligible Territory at the same time it submits its application for SAPT funds;
• The waiver request is signed by the chief executive officer of the Territory in question;
• The request contains a comprehensive tobacco prevention and control program acceptable to the Administrator; and
• The Territory in question agrees to submit to the Administrator an annual report on its progress in implementing the plan.

A waiver may be granted for up to three years during which period the Territory in question will be obligated to submit an annual progress report. However, a waiver may be withdrawn as determined appropriate by the Administrator of SAMHSA if the territory fails to submit an annual report or if the progress is determined to be unsatisfactory by the Administrator of SAMHSA. If that should occur, the territory will be required to once again abide by the legislative and regulatory requirements of Synar.

SAMHSA recommends that Territories include the following in their comprehensive tobacco prevention and control plans:

• Public education including information regarding the health consequences of tobacco use, and the problem of youth access to tobacco. Public education may include media campaigns.
• Education and training for retail store owners, managers, and sales clerks on the health consequences of tobacco use and the problem of youth access to tobacco.
• Distribution of culturally sensitive educational materials.
• Community mobilization, which may occur through the formation of community-based coalitions. To be effective, such community coalitions shall support the Territorys capacity to reduce youth use of tobacco products by involving youth in tobacco issues, and by gaining support of the community to reduce a minor's access to tobacco products.
• Environmental strategies including proposals to change or enforce Territorial laws and policies to support efforts to reduce youth use of tobacco products. Examples of possible policy initiatives may include, but not be limited to, encouraging clean indoor air policies, increasing tobacco taxes, or formally supporting youth tobacco cessation programs.

Dated: January 6, 2003.

Charles G. Curie,

Administrator, Substance Abuse and Mental Health Services Administration.