[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Proposed Rules]
[Pages 22027-22031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9645]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 253
[FNS-2009-0017]
RIN 0584-AD95
Food Distribution Program on Indian Reservations: Amendments
Related to the Food, Conservation, and Energy Act of 2008
AGENCY: Food and Nutrition Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend Food Distribution Program on
Indian Reservations (FDPIR) regulations to conform FDPIR policy to the
requirements included in the Food, Conservation, and Energy Act of 2008
(the Farm Bill) for the Supplemental Nutrition Assistance Program
(SNAP). The proposed rule is intended to improve program service to
applicants and participants and ensure consistency between FDPIR and
SNAP. When determining eligibility for FDPIR, the proposed rule would
permanently exclude combat pay from being considered income and
eliminate the
[[Page 22028]]
maximum dollar limit of the dependent care deduction. The rule would
also exclude from resource consideration household funds held in
qualified education savings accounts identified in the Farm Bill and
would exclude any other education savings accounts for which an
exclusion is allowed under SNAP. The proposed rule would also clarify
that the current resource exclusion for retirement accounts is
restricted to the qualified retirement accounts identified in the Farm
Bill, but that a resource exclusion would be allowed for any other
retirement account for which an exclusion is allowed under SNAP.
Additionally, the rule would clarify that the FDPIR regulations
regarding income eligibility refer to the SNAP net monthly income
standard, not the SNAP gross monthly income standard.
DATES: To be assured of consideration, comments must be received on or
before June 28, 2010.
ADDRESSES: The Food and Nutrition Service invites interested persons to
submit comments on this proposed rule. You may submit comments,
identified by RIN number 0584-AD95, by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Preferred method; follow the online instructions
for submitting comments on docket FNS-2009-0017.
Fax: Submit comments by facsimile transmission to (703)
305-2420.
Mail: Send comments to Laura Castro, Branch Chief, Policy
Branch, Food Distribution Division, Food and Nutrition Service, U.S.
Department of Agriculture, Room 500, 3101 Park Center Drive,
Alexandria, Virginia 22302-1594.
Hand Delivery or Courier: Deliver comments to the above
address during regular business hours.
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.
FOR FURTHER INFORMATION CONTACT: Laura Castro at the above address or
telephone (703) 305-2662. A regulatory impact analysis has been
prepared for this rule. You may request a copy of the analysis by
contacting us at the above address, or by e-mail to
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
Your written comments on this proposed rule should be specific,
confined to issues pertinent to the proposed rule, and should explain
your reasons for any change recommended. 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 (grouping and order of sections,
use of headings, paragraphing, etc.) make it more 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?
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
Need for Action
This action is needed to ensure that regulations are consistent
between FDPIR and SNAP. FDPIR was established by Congress in 1977 as an
alternative to the Food Stamp Program for low-income households living
on Indian reservations and households near reservations or in Oklahoma
that contain at least one person who is a member of a Federally-
recognized Tribe that does not have easy access to Food Stamp offices
and authorized grocery stores. The name of the Food Stamp Program was
changed to the Supplemental Nutrition Assistance Program pursuant to
the Food, Conservation and Energy Act of 2008, Public Law 110-246 (Farm
Bill). To avoid confusion, hereinafter, the terms Food Stamp Act and
Food Stamp Program will not be used.
FDPIR has similar eligibility criteria to SNAP, although certain
administrative requirements have been simplified and streamlined under
FDPIR. The proposed rulemaking will update FDPIR regulations to be
consistent with recent changes to SNAP in accordance with Sections
4101, 4103, and 4104 of the Farm Bill. Section 4101 permanently
excludes combat pay (i.e., additional pay earned as a result of
deployment to or service in a combat zone) as income for the purposes
of determining SNAP eligibility. Section 4103 eliminates the maximum
dollar limit to the dependent care deduction allowed under SNAP, and
Section 4104 excludes from resources any household funds held in
qualified retirement or education savings accounts when determining
eligibility for SNAP. Section 4104 also excludes future qualified
retirement accounts should they be created, and provides the Secretary
with discretion to allow resource exclusions for other retirement plans
and education savings accounts. This proposed rulemaking will also
provide clarification that FDPIR regulations regarding income
eligibility are referring to the SNAP net income guidelines, rather
than the gross.
Benefits
This rule would amend FDPIR regulations by aligning provisions with
recent changes to SNAP as a result of the Farm Bill. These regulatory
changes are designed to help ensure that FDPIR benefits are provided to
low-income households living on Indian reservations and households near
reservations or in Oklahoma that contain at least one person who is a
member of a Federally-recognized Tribe that are in need of nutrition
assistance. Because FDPIR regulations regarding resource limits and
income exclusions would be altered by this rule, participation could
potentially increase, thus expanding access to the program and
increasing benefits to the targeted population.
FNS has projected the impact of the proposed changes on FDPIR
participation. The combined effect of the provisions in this proposed
rule will potentially make a small number of households become newly
eligible, primarily those households with sizeable dependent care
expenses and/or funds in qualified education savings
[[Page 22029]]
accounts. However, individual households might benefit from more than
one provision and the effect of the overlap could not be determined.
Therefore, we are unable to determine with any certainty the total
number of individuals that might be added as a result of this rule.
Costs
This action is not expected to significantly increase costs of
State and local agencies, or their commercial contractors. The combined
impact of the proposed changes in this rulemaking is projected to
increase Federal program costs by $1,000 in fiscal year (FY) 2010 and
$7,000 over a five-year period (FY 2010 through FY 2014). These
increased costs are attributable to potential increases in
participation, primarily among those households that have funds in
qualified education savings accounts.
C. Regulatory Flexibility Act
This proposed rule has been reviewed with regard to the
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). It
has been certified that this action will not have a significant impact
on a substantial number of small entities. While Indian Tribal
Organizations (ITOs) and State Agencies that administer FDPIR 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, FNS
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 FNS 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) for State, local,
and 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 10.567. For the reasons set forth in
the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR
29115, 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.
The programs affected by the regulatory proposals in this rule are
all Tribal or State-administered, Federally-funded programs. The FNS
National Office 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 Tribal and State
agencies, to discuss issues relating to food distribution.
This rule is intended to provide consistency between FDPIR and
SNAP. The rule was prompted by provisions contained in the Farm Bill,
enacted on June 18, 2008. Section 4101 of the Farm Bill permanently
excludes combat pay (i.e., additional pay earned as a result of
deployment to or service in a combat zone) from income when determining
eligibility for SNAP. Section 4103 removes the maximum limit on the
dependent care deduction and Section 4104 excludes from resources any
household funds held in qualified tuition program or retirement
accounts when determining eligibility for SNAP.
FNS has considered the impact of the proposed rule on ITOs and
State agencies. The overall effect is to ensure that nutrition
assistance is provided to low-income households. During the prior
consultation period in advance of this rulemaking, FNS was not made
aware of any adverse concerns by ITOs or State Agencies.
G. Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed rule, when finalized, is intended
to have preemptive effect with respect to any State or local laws,
regulations, or policies which conflict with its provisions or which
would otherwise impede its full implementation. This proposed rule
would not 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
FNS 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, FNS 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, or disability. FNS 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. Chap. 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 that are subject to review and approval by OMB.
J. E-Government Act Compliance
FNS is committed to compliance with the E-Government Act of 2002 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 proposed rule would amend the regulations for FDPIR at 7 CFR
253.6 to be consistent with SNAP relative to the requirements set forth
in the Farm Bill. FDPIR was established by Congress in 1977 as an
alternative to SNAP for low-income households living on Indian
reservations and households near
[[Page 22030]]
reservations or in Oklahoma that contain at least one person who is a
member of a Federally-recognized Tribe that does not have easy access
to SNAP offices and authorized grocery stores. Consequently, FDPIR has
similar eligibility criteria to SNAP, although certain administrative
requirements have been simplified and streamlined under FDPIR. The
changes would improve program service by: (1) Excluding household funds
held in education savings accounts specified in Section 4104 of the
Farm Bill and any other education accounts for which a resource
exclusion is provided under SNAP; (2) clarifying that the current FDPIR
resource exclusion for retirement accounts is limited to qualified
retirement accounts specified in Section 4104 of the Farm Bill and any
other retirement accounts for which a resource exclusion is provided
under SNAP; (3) clarifying that the FDPIR regulations regarding income
eligibility are referring to the SNAP net monthly income standard,
rather than the SNAP gross monthly income standard; (4) permanently
excluding combat pay from income when determining eligibility for
FDPIR; and (5) eliminating the maximum limit to the dependent care
deduction.
The proposed amendments 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). The term
``FDPIR,'' as used in this proposed rule, refers collectively to FDPIR
and FDPIHO. The proposed amendments are discussed in more detail below.
A. Excluding Household Funds Held in Education Savings Accounts From
Consideration as a Resource
This proposed rule would amend FDPIR regulations at 7 CFR
253.6(d)(2) to ensure consistent treatment of certain resources in
determining FDPIR and SNAP eligibility. In accordance with Section 4104
of the Farm Bill, which amended Section 5(g) of the Food and Nutrition
Act 2008 (7 U.S.C. 2014(g)), funds that are held in qualified tuition
program accounts described in section 529 of the Internal Revenue Code
of 1986 or in a Coverdell education savings account under section 530
of that Code are excluded from the calculation of household resources
when determining eligibility for SNAP. This rule proposes to amend 7
CFR 253.6(d)(2) to exclude any funds held in these accounts from being
considered FDPIR resources.
Section 4104 of the Farm Bill also provides the Secretary with
discretion to exclude in the calculation of resources under SNAP any
other education programs, contracts or accounts as determined by the
Secretary. This rule proposes to amend 7 CFR 253.6(d)(2) to allow a
resource exclusion for any other education savings accounts for which a
resource exclusion is allowed under SNAP. This would allow FNS to
maintain consistent policy in the treatment of education savings
accounts and promote consistency in policy between FDPIR and SNAP.
B. Clarification Regarding the Resource Exclusion for Qualified
Retirement Accounts
This proposed rule would amend FDPIR regulations at 7 CFR
253.6(d)(2) to ensure consistent treatment of certain resources in
determining FDPIR and SNAP eligibility. In accordance with Section
4104, funds that are held in qualified retirement accounts are excluded
when determining eligibility for SNAP. Specifically, that section of
the Farm Bill excludes the value of funds held in retirement accounts
described in sections 401(a), 403(a), 403(b), 408, 408A, 457(b), and
501(c)(18) of the Internal Revenue Code of 1986 and the value of funds
held in a Federal Thrift Savings Plan account as described in 5 U.S.C.
8439.
In accordance with FDPIR regulations and policy, retirement
accounts and pension plans are excluded as long as the funds remain in
the accounts. However, for clarification purposes and to ensure
consistency between FDPIR and SNAP, this rule proposes to amend 7 CFR
253.6(d)(2) to exclude under FDPIR the comprehensive list of qualified
retirement accounts specified in Section 4104 of the Farm Bill.
Section 4104 of the Farm Bill also provides for the exclusion of
retirement accounts that may be enacted and determined to be exempt
from tax under the Internal Revenue Code of 1986, and any other
retirement plans, contracts, or accounts as determined by the
Secretary. To allow FNS to maintain consistency with regard to its
treatment of retirement accounts and promote consistency in policy
between FDPIR and SNAP, this rule proposes to amend 7 CFR 253.6(d)(2)
to allow a resource exclusion for any other retirement accounts for
which a resource exclusion is allowed under SNAP.
C. Clarifying the Application of SNAP Net Income Standards to FDPIR
Current FDPIR regulations at 7 CFR 253.6(e)(1)(i) state that the
FDPIR income eligibility standards shall be the ``monthly income
eligibility standards for the Food Stamp Program.'' However, SNAP
eligibility procedures employ two separate income standards--a gross
monthly income standard and a net monthly income standard. It is FNS
policy that the SNAP net monthly income standard is the applicable
income standard for determining income eligibility for FDPIR. However,
due to lack of clarity in the regulations, FNS has received requests
for policy clarification regarding which SNAP income guideline is
applicable under FDPIR. Therefore, FNS is proposing an amendment to the
regulations at 7 CFR 253.6(e)(1)(i) to clarify that FDPIR applies the
SNAP net income standard, not the gross income standard. This change
would clarify the regulatory language at 7 CFR 253.6(e)(1)(i), but not
change current FDPIR policy nor revise current FDPIR income guidelines
or eligibility criteria.
D. Excluding Combat Pay From Income
Appropriation legislation in FY 2005 through FY 2008 excluded
combat pay (i.e., additional pay earned as a result of deployment to or
service in a combat zone) from income for the purposes of determining
eligibility for SNAP. This policy was adopted for FDPIR and implemented
by policy memorandum for those fiscal years. Section 4101 of the Farm
Bill amended Section 5(d) of the Food and Nutrition Act of 2008 (7
U.S.C. 2014(d)) to permanently exclude combat pay from income for the
purposes of determining SNAP eligibility. This change was implemented
under FDPIR by policy memorandum on July 16, 2008. FNS is proposing a
conforming amendment to FDPIR regulations at 7 CFR 253.6(e)(3)(xi) to
permanently exclude combat pay from income when determining eligibility
for FDPIR. The proposed change would align FDPIR regulations with
current FDPIR and SNAP policy.
E. Amending the Dependent Care Deduction
Current FDPIR regulations at 7 CFR 253.6(f)(2) state that the
dependent care deduction cannot exceed the maximum allowable under
SNAP. Section 4103 of the Farm Bill amended Section 5(e)(3)(A) of the
Food and Nutrition Act of 2008 (7 U.S.C. 2014(e)(3)(A)) and eliminated
the maximum dollar limit to the SNAP dependent care deduction, allowing
participants to claim the full cost of their dependent care expenses.
FNS implemented this change under FDPIR by the same policy memorandum
mentioned in the previous paragraph.
[[Page 22031]]
This proposed revision would remove regulatory language at 7 CFR
253.6(f)(2) that imposes a maximum limit on dependent care deductions,
thereby aligning the FDPIR regulations with current FDPIR and SNAP
policy.
List of Subjects in 7 CFR Part 253
Administrative practice and procedure, Food assistance programs,
Grant programs, Social programs, Indians, Reporting and recordkeeping
requirements, Surplus agricultural commodities.
Accordingly, 7 CFR Part 253 is proposed to be amended as follows:
PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR
HOUSEHOLDS ON INDIAN RESERVATIONS
1. The authority citation for 7 CFR Part 253 continues to read as
follows:
Authority: 91 Stat. 958 (7 U.S.C. 2011-2032).
2. In Sec. 253.6:
a. Revise paragraph (d)(2)(i);
b. Redesignate paragraphs (d)(2)(ii) through (d)(2)(iv) as
(d)(2)(iii) through (d)(2)(v), respectively;
c. Add new paragraph (d)(2)(ii);
d. Add new paragraph (d)(2)(vi);
e. Revise the second sentence of paragraph (e)(1)(i);
f. Add new paragraph (e)(3)(xi); and
g. Remove the second sentence of paragraph (f)(2).
The revisions and additions read as follows:
Sec. 253.6 Eligibility of households.
* * * * *
(d) * * *
(2) * * *
(i) The cash value of life insurance policies and the first $1,500
of the equity value of one bona fide pre-paid funeral agreement per
household member. The equity value of a pre-paid funeral agreement is
the value that can be legally converted to cash by the household
member. For example, an individual has a $1,200 pre-paid funeral
agreement with a funeral home. The conditions of the agreement allow
the household to cancel the agreement and receive a refund of the
$1,200 minus a service fee of $50. The equity value of the pre-paid
funeral agreement is $1,150.
(ii) The value of funds held in retirement accounts described in
sections 401(a), 403(a), 403(b), 408, 408A, 457(b), and 501(c)(18) of
the Internal Revenue Code of 1986; the value of funds held in a Federal
Thrift Savings Plan account as described in 5 U.S.C. 8439; and any
other retirement program or account for which a resource exclusion is
allowed under the Supplemental Nutrition Assistance Program (SNAP).
* * * * *
(vi) The value of funds held in a qualified education savings
program described in section 529 of Internal Revenue Code of 1986 or in
a Coverdell education savings account under section 530 of that Code,
and any other education savings program or account for which a resource
exclusion is allowed under SNAP.
* * * * *
(e) * * *
(1) * * *
(i) * * * The income eligibility standards shall be the applicable
SNAP net monthly income eligibility standards for the appropriate area,
increased by the amount of the applicable SNAP standard deduction for
that area.
* * * * *
(3) * * *
(xi) Combat pay. Combat pay is defined as additional payment that
is received by or from a member of the United States Armed Forces
deployed to a combat zone, if the additional pay is the result of
deployment to or service in a combat zone, and was not received
immediately prior to serving in a combat zone.
* * * * *
Dated: April 20, 2010.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2010-9645 Filed 4-22-10; 11:15 am]
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