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Proposed Rule

Food Distribution Program on Indian Reservations: Resource Limits and Exclusions, and Extended Certification Periods

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AGENCY:

Food and Nutrition Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule would amend regulations for the Food Distribution Program on Indian Reservations (FDPIR). The changes are intended to improve program service, ensure consistency between FDPIR and the Food Stamp Program, and respond to concerns expressed by the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR) that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The proposed rule would increase the maximum level of allowable resources to the same level permitted under the Food Stamp Program (including annual adjustments for inflation in accordance with Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234)), allow a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member, and allow households in which all members are elderly and/or disabled to be certified for up to 24 months. The rule would also implement Section 4107 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a disabled member.

DATES:

To be assured of consideration, comments must be received on or before September 2, 2008.

ADDRESSES:

The Food and Nutrition Service (FNS) invites interested persons to submit comments on this proposed rule. You may submit comments identified by Regulatory Identifier Number (RIN) 0584-AD12, by any of the following methods:

  • Fax: Submit comments by facsimile transmission to (703) 305-2420.
  • Disk or CD-ROM: Submit comments on disk to Lillie F. Ragan, Assistant Branch Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302-1594.
  • Mail: Send comments to Lillie F. Ragan at the above address.
  • Hand Delivery or Courier: Deliver comments to the above address.
  • Federal eRulemaking Portal: Go to http://www.regulations.gov, select “Food and Nutrition Service” from the agency drop-down menu, and click “Submit.” In the Docket ID column of the search results select “FNS-2007-0042” to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link.

Comments submitted in response to this 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. The Department will make the comments publicly available on the Internet via http://www.regulations.gov.

All written submissions will be available for public inspection at the address above during regular business hours (8:30 a.m. to 5:30 p.m.), Monday through Friday, except Federal holidays.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Lillie F. Ragan at the above address, or telephone (703) 305-2662.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Procedural Matters

III. Background and Discussion of the Proposed Rule

I. Public Comment Procedures

Your written comments on this proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason(s) for any change you recommend or proposal(s) you oppose. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. Comments received after the close of the comment period (see DATES) will not be considered or included in the Administrative Record for the final rule.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (e.g., grouping and order of sections, use of headings, and paragraphing) make it clearer or less clear?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?

(5) Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand?

II. Procedural Matters

A. Executive Order 12866

This proposed rule has been determined to be significant, and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

B. Regulatory Impact Analysis

1. Need for Action

This action is needed to ensure that regulations pertaining to certification period assignments for elderly and/or disabled households and resource standards are consistent between FDPIR and the Food Stamp Program and to reflect provisions contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a Start Printed Page 38156disabled member, and in Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), which established an annual inflation adjustment to the Food Stamp Program resource limits starting in fiscal year 2009.

2. Benefits

This rule would amend FDPIR regulations by aligning several provisions with their counterparts in the Food Stamp Program. These regulatory changes are designed to help ensure that FDPIR benefits are provided to low-income households living on or near Indian reservations that are in need of nutrition assistance. Because FDPIR regulations regarding resource limits and exclusions would be altered by this rule, participation could potentially increase, thus expanding access to those eligible for the program and increasing nutritional benefits to the targeted population.

FNS has projected the impact of each proposed change on FDPIR participation. However, we are unable to determine the total number of individuals that might be added as a result of this rule. An individual might benefit from more than one provision and the effect of the overlap could not be determined.

3. Cost

This action is not expected to significantly increase costs of State and local agencies, or their commercial contractors, in using donated foods. The combined impact of the proposed changes in this rulemaking is projected to increase program costs by $90,000 in FY 2009 and $473,000 over a five-year period (FY 2009-2013). These increased costs are attributable to potential increases in participation.

C. Regulatory Flexibility Act

This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). The Under Secretary for Food, Nutrition and Consumer Services has certified that this action will not have a significant impact on a substantial number of small entities. While program participants and Indian Tribal Organizations (ITOs) and State agencies that administer the FDPIR and the Food Distribution Program for Indian Households in Oklahoma (FDPIHO) will be affected by this rulemaking, the economic effect will not be significant.

D. Public Law 104-4

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 to State, local, or Tribal governments, in the aggregate, or to 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 least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose on State, local or Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 12372

The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under No. 10.567. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice published at 48 FR 29114, June 24, 1983, the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

F. Executive Order 13132

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 13132.

1. Prior Consultation With Tribal/State Officials

The programs affected by the regulatory proposals in this rule are all Tribal or State-administered, federally funded programs. FNS' national headquarters and regional offices have formal and informal discussions with State officials on an ongoing basis regarding program issues relating to the distribution of donated foods. FNS meets annually with the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), a national group of State agencies, to discuss issues relating to food distribution.

2. Nature of Concerns and the Need To Issue This Rule

This rule is intended to provide consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards. The rule was prompted, in part, by a resolution passed by NAFDPIR in fiscal year 2000. NAFDPIR expressed concern that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The rule was also prompted, in part, by a provision contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), enacted on May 13, 2002. Section 4107 of Public Law 107-171 established a Food Stamp Program resource limit of $3,000 for households with a disabled member. Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), enacted on May 22, 2008, established an annual inflation factor adjustment to the Food Stamp Program resource limits. This provision is effective October 1, 2008. The other regulatory provisions proposed in this rule are also consistent with Food Stamp Program provisions.

3. Extent to Which We Meet Those Concerns

The Department has considered the impact of the proposed rule on State agencies. The Department does not expect the provisions of this rule to conflict with any State or local law, regulations or policies. The overall effect of this rule is to ensure that low-income households living on or near Indian reservations receive nutrition assistance. This rule would ensure consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards.

G. Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Although the provisions of this rule are not expected to conflict with any State or local law, regulations, or policies, the rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies that conflict with its provisions or that would otherwise impede its full Start Printed Page 38157implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions all applicable administrative procedures must be exhausted.

H. Civil Rights Impact Analysis

The Department 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, the Department has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution programs on the basis of an individual's or group's race, color, national origin, sex, age, political beliefs, religious creed, or disability. The Department found no factors that would negatively and disproportionately affect any group of individuals.

I. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain any new information collection requirements subject to review and approval by OMB.

J. E-Government Act Compliance

The Department is committed to complying with the E-Government Act 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.

III. Background and Discussion of the Proposed Rule

The Department is proposing to amend the regulations for FDPIR at 7 CFR part 253. The changes would improve program service by: (1) Bringing the maximum level of allowable resources in line with the Food Stamp Program, including the establishment of a resource limit of $3,000 for households with a disabled member and an annual inflation adjustment to the resource limits starting in fiscal year 2009; (2) allowing a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member; and (3) allowing households in which all members are elderly and/or disabled to be certified for up to 24 months. These changes would also impact the operation of the Food Distribution Program for Indian Households in Oklahoma (FDPIHO), 7 CFR part 254, under which the eligibility and certification provisions of 7 CFR part 253 are adopted by reference at 7 CFR 254.5(a).

In the following discussion and regulatory text, the term “State agency,” as defined at 7 CFR 253.2, is used to include ITOs authorized to operate FDPIR and FDPIHO in accordance with 7 CFR parts 253 and 254. The term “FDPIR” is used in this proposed rule to refer collectively to FDPIR and FDPIHO.

A. Bring the Maximum Level of Allowable Resources in Line With the Food Stamp Program

This proposed rule would amend 7 CFR 253.6(d)(1) to bring the maximum level of allowable resources in FDPIR in line with those established for the Food Stamp Program under Section 5(g) of the Food Stamp Act of 1977 (7 U.S.C. 2014(g)). This would mean: (1) Establishing a new resource limit of $3,000 for households with a disabled member; (2) increasing the resource limit from $1,750 to $2,000 for households without elderly or disabled members; and (3) adjusting the above resource limits for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234.

The Department is proposing an additional change to ensure consistency with the Food Stamp Program in the treatment of the resources of elderly households. The Food Stamp Program allows all households that include one or more elderly members to have a resource limit of $3,000. Under FDPIR, only households with two or more elderly members are allowed a resource limit of $3,000. This rule proposes to amend 7 CFR 253.6(d)(1) to allow one-person elderly households to have a resource limit of $3,000.

As indicated above, the resource limits would be adjusted for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234. That section of the Act requires the annual adjustment of the Food Stamp Program resource standards to reflect changes in the Consumer Price Index for All Urban Consumers for the 12-month period ending the preceding June. The Consumer Price Index is published by the Bureau of Labor Statistics of the U.S. Department of Labor. This rule proposes to amend 7 CFR 253.6(d) to ensure that the FDPIR resource standards reflect the annual adjustments made to the Food Stamp Program resources standards.

This rule also proposes to amend 7 CFR 253.7(c)(1), which contains the requirement that households report within 10 days when their countable resources exceed $1,750. This provision would be revised to specify that households must report within 10 days when their countable resources exceed the applicable maximum allowable limit. Also, this rule proposes to clarify 7 CFR 253.7(c)(1) to specify that the referenced 10-day period means 10 calendar days.

The current regulations for FDPIR do not define “elderly” or “disabled”. Since FDPIR serves as an alternative nutrition assistance program to the Food Stamp Program, this rule proposes the adoption of the definitions used under the Food Stamp Program at 7 CFR 271.2. Accordingly, this rule proposes to amend 7 CFR 253.2 to include the definitions for elderly and disabled used under the Food Stamp Program.

B. Resource Exclusion for the First $1,500 of the Value of One Pre-Paid Funeral Arrangement per Household Member

The National Association of Food Distribution Programs on Indian Reservations has expressed concerns, in the form of a resolution passed by that Association, regarding households that are determined ineligible for FDPIR because of resources earmarked for funeral expenses. Families commonly commingle funds earmarked for funeral expenses with other household savings. Generally, there is no verifiable way to distinguish the funds held for funeral expenses from a household's general savings, which are considered available to the household for normal living expenses. To resolve this issue, Food Stamp Program regulations (7 CFR 273.8(e)(2)) allow a resource exclusion for “the value of one bona fide funeral agreement per household member, provided that the agreement does not exceed $1,500 in equity value, in which event the value above $1,500 is counted.” This provision allows each household member to ensure that the cost of their funeral will be covered, without jeopardizing the household's eligibility for food stamp benefits.

This rule proposes to amend the regulations at 7 CFR 253.6(d)(2)(i) to ensure consistent treatment of pre-paid funeral agreements between FDPIR and the Food Stamp Program by allowing a resource exclusion for the first $1,500 of Start Printed Page 38158the equity value of one pre-paid funeral agreement per household member. A pre-paid funeral agreement is a pre-need agreement, or contract, with a bona fide funeral home, cemeterian, burial planner, etc., for funeral and/or burial services. As with other excluded resources, verification would not be required unless the information provided by the household is questionable (see 7 CFR 253.7(a)(6)(ii)).

C. Extend Certification Periods Up to 24 Months for Households in Which All Members Are Elderly or Disabled

This rule proposes to amend the regulations at 7 CFR 253.7(b)(2) to allow households in which all members are elderly and/or disabled to be certified for up to 24 months. Under current policy, certification periods are assigned according to the stability of a household's circumstances. Households consisting entirely of persons who only receive unearned income, such as Supplemental Security Income or Social Security payments, may be certified for up to 12 months, provided other household circumstances are expected to remain stable.

In accordance with Section 801 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 193-104), which amended Section 3(c) of the Food Stamp Act of 1977 (7 U.S.C. 2012(c)), the Department published a final rulemaking (65 FR 70134) on November 21, 2000, that implemented the above provision under the Food Stamp Program. This provision would also benefit the elderly and disabled participants of FDPIR. The elderly and/or disabled households often have stable incomes, and their other household circumstances change infrequently. Also, because of health and transportation problems, these households often have difficulty in attending face-to-face interviews.

Accordingly, this rule proposes to amend 7 CFR 253.7(b)(2) to state that FDPIR certification periods cannot exceed 12 months, except that households in which all adult members are elderly and/or disabled, as defined in the proposed definition at 7 CFR 253.2, may be certified for up to 24 months. This rule also proposes to require that the State agency must contact the household every 12 months. This means that if a household in which all adult members are elderly and/or disabled is certified for 24 months, the State agency would be required to have at least one direct contact with the household by the end of the first 12 months. The purpose of the contact is to determine: (1) That the household wishes to continue to participate in FDPIR; and (2) whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. In most cases, this contact could be made when the household receives its monthly distribution at the warehouse or tailgate site. However, some elderly and/or disabled households may rely on authorized representatives to pick up their commodities each month. In these instances, the State agency would be required to employ another method to contact the household. The State agency may use any method(s) it chooses for this contact, such as a telephone call or home visit. Contact with the authorized representative would not satisfy this requirement—a household member must be contacted. As with all actions taken by the State agency, the contact with the household must be documented in the case file to include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level.

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List of Subjects in 7 CFR Part 253

End List of Subjects

Accordingly, 7 CFR part 253 is proposed to be amended as follows:

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PART 253—ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS ON INDIAN RESERVATIONS

1. The authority citation for 7 CFR part 253 is revised to read as follows:

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Authority: 91 Stat. 958 (7 U.S.C. 2011-2036).

End Authority

2. In § 253.2:

a. Remove paragraph designations (a) through (j) and list the definitions in alphabetical order.

b. Add new definitions entitled “Disabled member” and “Elderly member” in alphabetical order to read as follows:

Definitions.

Disabled member means a member of a household who:

(1) Receives supplemental security income benefits under title XVI of the Social Security Act or disability or blindness payments under titles I, II, X, XIV, or XVI of the Social Security Act;

(2) Receives federally- or State-administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive the benefits is based upon the disability or blindness criteria used under title XVI of the Social Security Act;

(3) Receives federally- or State-administered supplemental benefits under section 212(a) of Public Law 93-66;

(4) Receives disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act;

(5) Is a veteran with a service-connected or non-service-connected disability rated by the Veteran's Administration (VA) as total or paid as total by the VA under title 38 of the United States Code;

(6) Is a veteran considered by the VA to be in need of regular aid and attendance or permanently housebound under title 38 of the United States Code;

(7) Is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or permanently housebound or a surviving child of a veteran and considered by the VA to be permanently incapable of self-support under title 38 of the United States Code;

(8) Is a surviving spouse or surviving child of a veteran and considered by the VA to be entitled to compensation for a service-connected death or pension benefits for a non-service-connected death under title 38 of the United States Code and has a disability considered permanent under section 221(i) of the Social Security Act. “Entitled” as used in this definition refers to those veterans' surviving spouses and surviving children who are receiving the compensation or pension benefits stated or have been approved for such payments, but are not yet receiving them;

(9) Receives an annuity payment under: Section 2(a)(1)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board; or section 2(a)(1)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under title XVI of the Social Security Act; or

(10) Is a recipient of interim assistance benefits pending the receipt of Supplemented Security Income, a recipient of disability related medical assistance under title XIX of the Social Security Act, or a recipient of disability-based State general assistance benefits provided that the eligibility to receive any of these benefits is based upon disability or blindness criteria Start Printed Page 38159established by the State agency, which are at least as stringent as those used under title XVI of the Social Security Act (as set forth at 20 CFR Part 416, Subpart I, Determining Disability and Blindness as defined in Title XVI).

Elderly member means a member of a household who is sixty years of age or older.

* * * * *

3. In § 253.6:

a. Amend paragraph (d)(1) by revising the second sentence;

b. Revise paragraph (d)(2)(i).

The revisions and addition read as follows:

Eligibility of households.
* * * * *

(d) * * *

(1) * * * The household's maximum allowable resources shall not exceed the limits established for the Food Stamp Program.

(2) * * *

(i) The cash value of life insurance polices; pension funds, including funds in pension plans with interest penalties for early withdrawals, such as a Keogh plan or an Individual Retirement Account, as long as the funds remain in the pension plans; and the first $1,500 of the equity value of one bona fide pre-paid funeral agreement per household member.

* * * * *

4. In § 253.7:

a. Amend paragraph (b)(2)(iii) by removing the last sentence;

b. Add new paragraph (b)(2)(iv);

c. Amend paragraph (c)(1) by revising the third sentence;

The revision and addition read as follows:

Certification of households.
* * * * *

(b) * * *

(2) * * *

(iv) In no event may a certification period exceed 12 months, except that households in which all adult members are elderly and/or disabled may be certified for up to 24 months. Households assigned certification periods that are longer than 12 months must be contacted by the State agency at least once every 12 months to determine if the household wishes to continue to participate in the program and whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. The State agency may use any method it chooses for this contact, including a face-to-face interview, telephone call or a home visit. Contact with the household's authorized representative would not satisfy this requirement; the State agency must contact a household member. The case file must document the contact with the household and include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level.

* * * * *

(c) * * *

(1) * * * Households must also report within 10 calendar days when countable resources, which are identified in § 253.6(d)(2), exceed the maximum allowable limits as described at § 253.6(d)(1). * * *

* * * * *
Start Signature

Dated: June 25, 2008.

Nancy Montanez Johner,

Under Secretary, Food, Nutrition, and Consumer Services.

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[FR Doc. E8-15003 Filed 7-2-08; 8:45 am]

BILLING CODE 3410-30-P