Food Distribution Program on Indian Reservations: Resource Limits and Exclusions, and Extended Certification Periods, 4469-4474 [2010-1708]

Download as PDF 4469 Rules and Regulations Federal Register Vol. 75, No. 18 Thursday, January 28, 2010 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. DEPARTMENT OF AGRICULTURE disabled to be certified for up to 24 months. DATES: Effective Date: This rule is effective March 1, 2010. FOR FURTHER INFORMATION CONTACT: Laura Castro, Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302, or by telephone (703) 305–2662. SUPPLEMENTARY INFORMATION: Food and Nutrition Service I. Procedural Matters II. Background and Discussion of the Final Rule 7 CFR Part 253 I. Procedural Matters [FNS–2007–0042] A. Executive Order 12866 RIN 0584–AD12 This rule has been determined to be significant, and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. Food Distribution Program on Indian Reservations: Resource Limits and Exclusions, and Extended Certification Periods 1. Need for Action rmajette on DSK29S0YB1PROD with RULES AGENCY: Food and Nutrition Service, USDA. ACTION: Final rule. SUMMARY: The Food and Nutrition Service (FNS) is amending the regulations for the Food Distribution Program on Indian Reservations (FDPIR). The changes will improve program service, ensure consistency between FDPIR and the Supplemental Nutrition Assistance Program (SNAP) (formerly 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 limits are insufficient for the target populations and serve as a barrier to participation. The rule will increase the maximum level of allowable resources to the same level permitted under SNAP (including the establishment of a resource limit of $3,000 for FDPIR households with a disabled member in accordance with Section 4107 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107–171), and annual adjustments for inflation in accordance with Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110–246), allow a resource exclusion for the first $1,500 of the equity value of one prepaid funeral arrangement per household member, and allow households in which all members are elderly and/or VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 B. Regulatory Impact Analysis 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 SNAP 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 SNAP households with a disabled member, and in Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110–246), which established an annual inflation adjustment to the SNAP resource limits starting in fiscal year (FY) 2009. 2. Benefits This rule amends FDPIR regulations by aligning several provisions with their counterparts in the SNAP. 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 are 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 change on FDPIR participation. However, we are unable to determine PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 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 changes in this rulemaking is projected to increase program costs by $68,000 in FY 2010 and $852,000 over a five-year period (FY 2010–2014). These increased costs are attributable to potential increases in participation. C. Regulatory Flexibility Act This 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 E:\FR\FM\28JAR1.SGM 28JAR1 4470 Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Rules and Regulations 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. rmajette on DSK29S0YB1PROD with RULES 1. Prior Consultation With Tribal/State Officials The programs affected by the regulatory provisions 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 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 will provide consistency between FDPIR and SNAP 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 FY 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 VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 107–171 established a SNAP resource limit of $3,000 for households with a disabled member. Also, Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110–246), enacted on May 22, 2008, established an annual inflation factor adjustment to the SNAP resource limits. That provision was effective October 1, 2008. The other regulatory provisions finalized in this rule are also consistent with SNAP provisions. 3. Extent to Which the Department Meets Those Concerns The Department has considered the impact of the final 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 lowincome households living on or near Indian reservations receive nutrition assistance. This rule will ensure consistency between FDPIR and SNAP in regard to certification period assignments for elderly and/or disabled households and resource standards. G. Executive Order 12988 This final 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 implementation. 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 Office of Civil Rights (OCR) has reviewed this rule in accordance with Departmental Regulation 4300–4, ‘‘Civil Rights Impact Analysis’’, to identify and address any major civil rights impact the rule might have on protected classes. Due to the unavailability of data, OCR cannot assess disproportionate impact on women, minorities, and persons with disabilities. OCR believes the intent of this rule is not to limit or reduce the ability of participants to receive the benefits of donated foods in the FDPIR, nor is its intent to reduce or eliminate equal access to participation in FDPIR. PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 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. Proposed information collection burden related to the provisions in this final rule and burden changes related to the implementation of a new Web-Based Supply Chain Management System (WBSCM) are currently at OMB for review under OMB No. 0584–0293, expiration date November 30, 2009. These information collection requirements will not become effective until approved by OMB. Once they have been approved, FNS will publish a separate action in the Federal Register announcing OMB’s approval. This rule will not change the current recordkeeping burden for ITOs and State agencies under OMB No. 0584– 0293, but it will impact the reporting burden due to an expected change in number of households participating in FDPIR as a result of this rule. Households complete an application process to participate in the program and are recertified at intervals determined by the State agency or ITO. The current estimated annual reporting burden for the certification or recertification of households to participate in FDPIR is 2,329.05. The provisions of this rule are expected to increase that burden to approximately 2,379.66, which is an increase of 50.61 burden hours. The approved and proposed information collection estimates for OMB No. 0584–0293 are as follows: Current estimated total annual responses: 1,160,746. Proposed estimated total annual responses: 1,655,720. Difference due to program changes, as reflected in this final rule: 99. Difference due to WBSCM implementation: 494,875. Current estimated annual recordkeeping and reporting burden: 1,073,701. Proposed estimated annual recordkeeping and reporting burden: 1,079,172. Difference due to program changes, as reflected in this final rule: 51. Difference due to WBSCM implementation: 5,420. J. E-Government Act Compliance The Department is committed to complying with the E-Government Act E:\FR\FM\28JAR1.SGM 28JAR1 Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Rules and Regulations 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. rmajette on DSK29S0YB1PROD with RULES II. Background and Discussion of the Final Rule On July 3, 2008, FNS published a proposed rule in the Federal Register (73 FR 38155) to amend the regulations for FDPIR at 7 CFR part 253. The proposed changes would improve program service by: (1) Bringing the maximum level of allowable resources in line with SNAP, including the establishment of a resource limit of $3,000 for households with a disabled member and a provision for an annual inflation adjustment to the resource limits starting in FY 2009; (2) allowing a resource exclusion for the first $1,500 of the equity 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. It was intended that these proposed changes would also impact the operation of FDPIHO under which the eligibility and certification provisions of 7 CFR part 253 are adopted by reference at 7 CFR 254.5(a). Comments were solicited through September 2, 2008 on the provisions of the proposed rulemaking. FNS received three comments from the public on the proposed regulatory changes. These comments are discussed below and are available for review at https:// www.regulation.gov. Enter ‘‘FNS–2007– 0042’’ in the box under ‘‘Search Documents’’ and click on ‘‘Go’’ to view the comments received. 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 final rule to refer collectively to FDPIR and FDPIHO. A. Bring the Maximum Level of Allowable Resources in Line With SNAP The July 3, 2008 rule proposed an amendment to regulations at 7 CFR 253.6(d)(1) to bring the maximum level of allowable resources in FDPIR in line with those established for SNAP under Section 5(g) of the Food and Nutrition Act of 2008 (formerly the Food Stamp Act of 1977) (7 U.S.C. 2014(g)). This would mean: (1) A resource limit of $3,000 for households with at least one elderly or disabled member; (2) a resource limit of $2,000 for households without any elderly or disabled VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 members; and (3) annual inflationary adjustments to the above resource limits starting in FY 2009. The annual resource limit adjustment is based on increases to the Bureau of Labor Standards Consumer Price Index for All Urban Consumers for the 12-month period ending the preceding June 30, rounded down to the nearest $250 increment. Each adjustment is based on the unrounded amount for the prior 12month period. The rule also proposed two conforming amendments to FDPIR regulations. The first change would add definitions for ‘‘elderly’’ and ‘‘disabled’’ at 7 CFR 253.2. These definitions conform to the definitions used under SNAP. The second amendment would revise 7 CFR 253.7(c)(1) to state that households must report within 10 calendar days when their countable resources exceed the applicable maximum allowable limit. One commenter expressed support for the proposed changes, especially the annual inflationary adjustment to the resource limits. Another commenter opposed the proposed changes to the resource standards. The commenter stated that program standards should be set according to local economic conditions rather than being based on state or national data. As discussed in the preamble to the July 3, 2008 proposed rule, the proposed changes are intended to bring FDPIR resource standards in line with the resource limits prescribed by Congress for SNAP. FDPIR was established by Congress in 1977 as an alternative to SNAP for low income households living on or near Indian reservations that did 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. Based on the above discussion of the comments received, the proposed changes to bring the maximum level of allowable resources in FDPIR in line with those established for SNAP are retained in this final rule. B. Resource Exclusion for the First $1,500 of the Equity Value of One PrePaid Funeral Agreement per Household Member The July 3, 2008 rule proposed an amendment to the regulations at 7 CFR 253.6(d)(2)(i) to ensure that pre-paid funeral agreements with equity value are treated the same under FDPIR as under SNAP. As proposed, the first $1,500 of equity value of one pre-paid funeral agreement per household PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 4471 member would not be counted as a household resource under FDPIR. A prepaid 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. In many instances pre-paid funeral agreements are already excluded as a resource under current FDPIR policy, or have no equity value and would not be counted as a resource. For example, funeral expenses are often covered under life insurance policies and current FDPIR policy allows a resource exclusion for the cash value of life insurance policies. Also, an irrevocable pre-paid funeral contract that has no cash surrender value would not be counted as a resource under FDPIR. Certain pre-paid funeral agreements, however, have equity value. This means that they have a specific value that can be legally converted to cash by the household member and used for normal living expenses. Under current FDPIR policy, the full equity value of a prepaid funeral agreement would be counted as a resource to the household. Therefore the intent of the proposed change was to provide a resource exclusion, as is provided under SNAP, for those pre-paid funeral agreements that have equity value, but are not currently excluded as a resource under FDPIR. FNS proposed a regulatory change that would ensure that those pre-paid funeral agreements would be treated the same under FDPIR as under SNAP. One commenter stated that their Tribal members, by and large, do not purchase pre-paid funeral agreements, and that many Tribes provide funeral assistance to their membership. FNS recognizes the valuable service that Tribes provide in assisting members with their funeral expenses. However, for those individuals that have had to use their own resources to secure their funeral arrangements in advance, FNS believes that the SNAP provision is a reasonable approach for providing an exclusion for pre-paid funeral agreements that have equity value. Another commenter stated that not all eligible FDPIR participants have resources earmarked for funeral expenses, but that funds set aside for funeral expenses should be verified. This comment may be in reference to households that have funds for funeral expenses comingled with other household savings. Under current FDPIR policy and this final rule, funds, including those held for funeral expenses, held in a checking or savings account that are accessible to a household for normal living expenses E:\FR\FM\28JAR1.SGM 28JAR1 4472 Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Rules and Regulations rmajette on DSK29S0YB1PROD with RULES are considered a resource to the household. As discussed in the preamble to the July 3, 2008 proposed rule, there is no verifiable way to distinguish the funds held for funeral expenses from a household’s general savings when the funds are comingled. One of the commenters suggested that we define ‘‘equity value’’ in the regulations and provide an example to clarify the proposed provision. We have added the definition of ‘‘equity value’’ and an example to 7 CFR 253.6(d)(2)(i). Based on the above discussion of the comments received, the proposed changes to allow a resource exclusion for the first $1,500 of the equity value of one pre-paid funeral agreement per household member are retained in this final rule with the addition of the definition of ‘‘equity value’’ and an example to 7 CFR 253.6(d)(2)(i), as discussed above. C. Extend Certification Periods Up to 24 Months for Households in Which All Members Are Elderly or Disabled The July 3, 2008 rule proposed the amendment of 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 FDPIR policy, no household can be certified for more than 12 months. This change is intended to benefit elderly and/or disabled households that have stable incomes and household circumstances. One commenter stated that this change ‘‘would help Tribal members very little’’ and would exclude individuals and families who have the right by Treaty to receive rations until they ‘‘are able to support themselves.’’ The commenter stated that ‘‘(i)f the harsher Food Stamp regulations are applied to FDPIR programs, even fewer Tribal members will be eligible for participation.’’ The intent of the SNAP provision is to remove potential barriers to participation by allowing elderly and/ or disabled households to continue to participate beyond the current 12-month limitation without a recertification interview. Eliminating the need for a recertification interview after the first 12 months of certification would make it easier for low-income elderly and/or disabled households to stay enrolled in FDPIR. Two commenters addressed the reporting requirements for households. One commenter stated that the proposed change would ‘‘help FDPIR reduce the cost of certification but each participant must self report if their eligibility or economic circumstances change.’’ Another commenter remarked that households must be informed that they VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 are still subject to the requirement to report changes in household circumstances. The proposed change would not modify the requirement at 7 CFR 253.7(c) for households to report changes in household composition and/ or income that occur during their certification period. Each State agency is required to develop procedures for when and how changes in circumstances are reported by households. Although the proposed change would require the State agency to contact the household at the end of the first 12 months so that the State agency can determine if there are any changes in circumstances at that time, this action by the State agency would not relieve the household of its responsibility to report changes in income or household composition in accordance with 7 CFR 253.7(c). D. Other Comments One commenter stated that FNS failed to consult with Indian Tribal governments prior to the publication of the proposed rulemaking and has failed to comply with Executive Order 13175 on government-to-government relationships with Indian Tribes. FNS’ actions in relation to this rule are in compliance with Departmental Regulation Number 1340–006 and Executive Order 13175 in regard to consultation and coordination with Indian Tribal governments. FNS published a proposed rulemaking in the Federal Register on July 3, 2008 with a 60-day comment period. In addition, on July 3, 2008 FNS specifically advised the ITOs and State agencies that administer FDPIR of the publication of the proposed rule and the 60-day comment period. The proposed rule was posted for public viewing on the FDPIR Web site at https://www.fns.usda.gov/ fdd/programs/fdpir. Prior to the publication of the proposed rulemaking, the provisions of the proposed rule were discussed with tribal and State representatives of the ITOs and State agencies that administer FDPIR at NAFDPIR conferences in 2001, 2003, 2004, and 2008. Also, as discussed in the preamble to the proposed rulemaking, the provision for a resource exclusion for the first $1,500 of the equity value of one pre-paid funeral agreement per household member was proposed in response to a resolution passed by NAFDPIR at its annual conference in 2000. The proposal for a regulatory change was discussed in a January 3, 2001 letter from the FNS Food Distribution Division Director to the President of NAFDPIR. The same commenter stated that the proposed rulemaking violated Treaty PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 Rights by requiring FDPIR to operate like SNAP. The commenter also stated its view that the ‘‘new USDA approach in treating FDPIR like the Food Stamp Program’’ was a means taken by FNS to evade its trust responsibility. FNS’ approach to align SNAP and FDPIR policies is not new. This has been FNS’ approach since the establishment of FDPIR in 1977. This approach is based on Congressional intent that FDPIR serve as an alternative to SNAP for lowincome households that reside on or near Indian reservations. The preamble to the December 8, 1978 proposed rulemaking (43 FR 57798) provides the rationale for FNS’ approach to align the policies of the two programs and a detailed history of FNS’ consultation efforts with tribal governments and other stakeholders in the development of those policies. The same commenter stated that ‘‘there should be full funding for each eligible program participant so that the food distributed fully meets the needs of those participants.’’ The purchase and distribution of USDA foods under FDPIR is authorized by section 4(b) of the Food and Nutrition Act of 2008 (7 U.S.C. 2013(b)) and section 4(a) of the Agriculture and Consumer Protection Act of 1973 (7 U.S.C. 612c note). FNS administers FDPIR in accordance with these legislative mandates. Section 4(a) of the Agriculture and Consumer Protection Act of 1973 directs the Secretary ‘‘to improve the variety and quantity of commodities supplied to Indians in order to provide them an opportunity to obtain a more nutritious diet.’’ The joint conference committee report that accompanied the amending legislation in 1977 noted that the conferees did not intend that ‘‘the commodity package will necessarily in and of itself constitute a ‘nutritionally adequate diet’ ’’ (H. Conf. Rpt. 95–599, p. 205 (September 12, 1977)). As such, the preamble to the December 8, 1978 proposed rulemaking states that it is the intent of the Department to offer a food package that ‘‘represents an acceptable alternative to Food Stamp Program benefits’’ (43 FR 57798). Moreover, Congress funds FDPIR through annual appropriations and FNS uses all available funding to support the Program. FNS does not have authority to exceed the appropriated funding levels for the purposes suggested by the commenter. Based on the above discussion of the comments received, the proposed changes for extended certification periods for elderly and/or disabled households are retained in this final rule. E:\FR\FM\28JAR1.SGM 28JAR1 Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Rules and Regulations 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 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 is revised to read as follows: ■ Authority: 91 Stat. 958 (7 U.S.C. 2011– 2036). 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: ■ ■ § 253.2 Definitions. rmajette on DSK29S0YB1PROD with RULES * * * * * 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 Stateadministered 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 Stateadministered 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 serviceconnected 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 VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 child of a veteran and considered by the VA to be permanently incapable of selfsupport 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 disabilitybased State general assistance benefits provided that the eligibility to receive any of these benefits is based upon disability or blindness criteria established 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; and ■ b. Revise paragraph (d)(2)(i). The revisions and addition read as follows: § 253.6 Eligibility of households. * * * * * (d) * * * (1) * * * The household’s maximum allowable resources shall not exceed the limits established for the Supplemental Nutrition Assistance Program. (2) * * * (i) The cash value of life insurance policies; pension funds, including funds in pension plans with interest penalties PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 4473 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 prepaid 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. * * * * * ■ 4. In § 253.7: ■ a. Amend paragraph (b)(2)(iii) by removing the last sentence; ■ b. Add new paragraph (b)(2)(iv); and ■ c. Amend paragraph (c)(1) by revising the third sentence; The revision and addition read as follows: § 253.7 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 E:\FR\FM\28JAR1.SGM 28JAR1 4474 Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Rules and Regulations identified in § 253.6(d)(2), exceed the maximum allowable limits as described at § 253.6(d)(1). * * * * * * * * Dated: January 12, 2010. Kevin W. Concannon, Under Secretary, Food, Nutrition, and Consumer Services. [FR Doc. 2010–1708 Filed 1–27–10; 8:45 am] BILLING CODE 3410–30–P DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket Nos. EE–RM/TP–99–450 and EE– RM/TP–05–500] RIN 1904–AA96 and 1904–AB53 Energy Conservation Program: Certification, Compliance, and Enforcement Requirements for Certain Consumer Products and Commercial and Industrial Equipment; Correction Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Final rule; technical correction. AGENCY: SUMMARY: This document contains a technical correction to the final rule regarding the certification, compliance and enforcement regulations that was published on January 5, 2010. In that final rule, the U.S. Department of Energy (DOE) adopted regulations to implement reporting requirements for energy conservation standards and energy use, and to address other matters, including compliance certification, prohibited actions, and enforcement procedures for specific consumer products and commercial and industrial equipment. Due to drafting errors, language added to the rule in one amendment was deleted from the rule by another amendment, and certain erroneous internal cross references were made. This correction addresses these errors. rmajette on DSK29S0YB1PROD with RULES DATES: This technical correction is effective February 4, 2010. FOR FURTHER INFORMATION CONTACT: Michael McCabe, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue, SW., Washington, DC 20585–0121, (202) 586– 9155. E-mail: Michael.McCabe@ee.doe.gov. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC–72, 1000 Independence Avenue, SW., Washington, DC 20585–0121, (202) VerDate Nov<24>2008 14:06 Jan 27, 2010 Jkt 220001 586–9507. E-mail: Michael.Kido@hq.doe.gov. SUPPLEMENTARY INFORMATION: I. Background On January 5, 2010, the U.S. Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE) published a final rule titled ‘‘Certification, Compliance, and Enforcement Requirements for Certain Consumer Products and Commercial and Industrial Equipment.’’ 75 FR 652. Since the publication of that rule, it has come to DOE’s attention that due to a technical oversight, a certain part of the final regulations was inadvertently deleted from the final rule. DOE did not intend to remove this language from its regulations and through this correction document DOE reinserts this inadvertently deleted language. Additionally, certain sections of the regulatory text have an internal referencing error. II. Need for Correction As published, the final regulation erroneously removed two provisions that DOE had intended to reserve (10 CFR 431.171) and to amend (10 CFR 431.172). This document intends to reestablishes these provisions. In FR Doc. E9–30886, appearing in the notice beginning on page 652 in the Federal Register of Tuesday, January 5, 2010, the following corrections are made: Subpart J—[Corrected] 1. On page 667, in the second column, correct the table of contents for subpart J to part 431 to read as follows: Subpart J—Provisions for Commercial Heating, Ventilating, Air-Conditioning and Water Heating Products Sec. 431.171 Purpose and scope. [Reserved] 431.172 Definitions. 431.173 Requirements applicable to all manufacturers. 431.174 Additional requirements applicable to Voluntary Independent Certification Program participants. 431.175 Additional requirements applicable to non-Voluntary Independent Certification Program participants. 431.176 Voluntary Independent Certification Programs. 2. On page 667, in the second column, directly below the heading of subpart J, add and reserve § 431.171, and add § 431.172, to read as follows: § 431.171 Purpose and scope. [Reserved] § 431.172 Definitions. The following definitions apply for purposes of subparts D through G, J through K and subpart T of this part. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 Other terms in these subparts shall be defined elsewhere in the Part and, if not defined in this part, shall have the meaning set forth in section 340 of the Act. Alternate efficiency determination method or AEDM means a method of calculating the efficiency of a commercial HVAC and WH product, in terms of the descriptor used in or under section 342(a) of the Act to state the energy conservation standard for that product. Basic model means, with respect to a commercial HVAC & WH product, all units of such product, manufactured by one manufacturer, which have the same primary energy source and which do not have any differing electrical, physical, or functional characteristics that affect energy consumption. Commercial HVAC & WH product means any small or large commercial package air-conditioning and heating equipment, packaged terminal air conditioner, packaged terminal heat pump, commercial packaged boiler, hot water supply boiler, commercial warm air furnace, instantaneous water heater, storage water heater, or unfired hot water storage tank. Flue loss means the sum of the sensible heat and latent heat above room temperature of the flue gases leaving the appliance. Industrial equipment means an article of equipment, regardless of whether it is in fact distributed in commerce for industrial or commercial use, of a type which: (1) In operation consumes, or is designed to consume energy; (2) To any significant extent, is distributed in commerce for industrial or commercial use; and (3) Is not a ‘‘covered product’’ as defined in Section 321(2) of EPCA, 42 U.S.C. 6291(2), other than a component of a covered product with respect to which there is in effect a determination under Section 341(c) of EPCA, 42 U.S.C. 6312(c). Private labeler means, with respect to a commercial HVAC & WH product, an owner of a brand or trademark on the label of a product which bears a private label. A commercial HVAC & WH product bears a private label if: (1) Such product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of such product; (2) The person with whose brand or trademark such product (or container) is labeled has authorized or caused such product to be so labeled; and (3) The brand or trademark of a manufacturer of such product does not appear on such label. E:\FR\FM\28JAR1.SGM 28JAR1

Agencies

[Federal Register Volume 75, Number 18 (Thursday, January 28, 2010)]
[Rules and Regulations]
[Pages 4469-4474]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1708]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / 
Rules and Regulations

[[Page 4469]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 253

[FNS-2007-0042]
RIN 0584-AD12


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

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Food and Nutrition Service (FNS) is amending the 
regulations for the Food Distribution Program on Indian Reservations 
(FDPIR). The changes will improve program service, ensure consistency 
between FDPIR and the Supplemental Nutrition Assistance Program (SNAP) 
(formerly 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 limits are 
insufficient for the target populations and serve as a barrier to 
participation. The rule will increase the maximum level of allowable 
resources to the same level permitted under SNAP (including the 
establishment of a resource limit of $3,000 for FDPIR households with a 
disabled member in accordance with Section 4107 of the Farm Security 
and Rural Investment Act of 2002 (Pub. L. 107-171), and annual 
adjustments for inflation in accordance with Section 4104 of the Food, 
Conservation, and Energy Act of 2008 (Pub. L. 110-246), allow a 
resource exclusion for the first $1,500 of the equity 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.

DATES: Effective Date: This rule is effective March 1, 2010.

FOR FURTHER INFORMATION CONTACT: Laura Castro, Chief, Policy Branch, 
Food Distribution Division, Food and Nutrition Service, 3101 Park 
Center Drive, Room 506, Alexandria, Virginia 22302, or by telephone 
(703) 305-2662.

SUPPLEMENTARY INFORMATION: 

I. Procedural Matters
II. Background and Discussion of the Final Rule

I. Procedural Matters

A. Executive Order 12866

    This 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 SNAP 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 SNAP households with a disabled member, and in Section 4104 
of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246), 
which established an annual inflation adjustment to the SNAP resource 
limits starting in fiscal year (FY) 2009.
2. Benefits
    This rule amends FDPIR regulations by aligning several provisions 
with their counterparts in the SNAP. 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 are 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 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 changes in this rulemaking is 
projected to increase program costs by $68,000 in FY 2010 and $852,000 
over a five-year period (FY 2010-2014). These increased costs are 
attributable to potential increases in participation.

C. Regulatory Flexibility Act

    This 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

[[Page 4470]]

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 provisions 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 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 will provide consistency between FDPIR and SNAP 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 FY 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 SNAP resource 
limit of $3,000 for households with a disabled member. Also, Section 
4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-
246), enacted on May 22, 2008, established an annual inflation factor 
adjustment to the SNAP resource limits. That provision was effective 
October 1, 2008. The other regulatory provisions finalized in this rule 
are also consistent with SNAP provisions.
3. Extent to Which the Department Meets Those Concerns
    The Department has considered the impact of the final 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 will ensure consistency between FDPIR and SNAP in regard to 
certification period assignments for elderly and/or disabled households 
and resource standards.

G. Executive Order 12988

    This final 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 implementation. 
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 Office of Civil Rights (OCR) has reviewed this rule in 
accordance with Departmental Regulation 4300-4, ``Civil Rights Impact 
Analysis'', to identify and address any major civil rights impact the 
rule might have on protected classes. Due to the unavailability of 
data, OCR cannot assess disproportionate impact on women, minorities, 
and persons with disabilities. OCR believes the intent of this rule is 
not to limit or reduce the ability of participants to receive the 
benefits of donated foods in the FDPIR, nor is its intent to reduce or 
eliminate equal access to participation in FDPIR.

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. 
Proposed information collection burden related to the provisions in 
this final rule and burden changes related to the implementation of a 
new Web-Based Supply Chain Management System (WBSCM) are currently at 
OMB for review under OMB No. 0584-0293, expiration date November 30, 
2009. These information collection requirements will not become 
effective until approved by OMB. Once they have been approved, FNS will 
publish a separate action in the Federal Register announcing OMB's 
approval.
    This rule will not change the current recordkeeping burden for ITOs 
and State agencies under OMB No. 0584-0293, but it will impact the 
reporting burden due to an expected change in number of households 
participating in FDPIR as a result of this rule. Households complete an 
application process to participate in the program and are recertified 
at intervals determined by the State agency or ITO. The current 
estimated annual reporting burden for the certification or 
recertification of households to participate in FDPIR is 2,329.05. The 
provisions of this rule are expected to increase that burden to 
approximately 2,379.66, which is an increase of 50.61 burden hours.
    The approved and proposed information collection estimates for OMB 
No. 0584-0293 are as follows:
    Current estimated total annual responses: 1,160,746.
    Proposed estimated total annual responses: 1,655,720.
    Difference due to program changes, as reflected in this final rule: 
99.
    Difference due to WBSCM implementation: 494,875.
    Current estimated annual recordkeeping and reporting burden: 
1,073,701.
    Proposed estimated annual recordkeeping and reporting burden: 
1,079,172.
    Difference due to program changes, as reflected in this final rule: 
51.
    Difference due to WBSCM implementation: 5,420.

J. E-Government Act Compliance

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

[[Page 4471]]

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.

II. Background and Discussion of the Final Rule

    On July 3, 2008, FNS published a proposed rule in the Federal 
Register (73 FR 38155) to amend the regulations for FDPIR at 7 CFR part 
253. The proposed changes would improve program service by: (1) 
Bringing the maximum level of allowable resources in line with SNAP, 
including the establishment of a resource limit of $3,000 for 
households with a disabled member and a provision for an annual 
inflation adjustment to the resource limits starting in FY 2009; (2) 
allowing a resource exclusion for the first $1,500 of the equity 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. It was intended that these proposed 
changes would also impact the operation of FDPIHO under which the 
eligibility and certification provisions of 7 CFR part 253 are adopted 
by reference at 7 CFR 254.5(a).
    Comments were solicited through September 2, 2008 on the provisions 
of the proposed rulemaking. FNS received three comments from the public 
on the proposed regulatory changes. These comments are discussed below 
and are available for review at https://www.regulation.gov. Enter ``FNS-
2007-0042'' in the box under ``Search Documents'' and click on ``Go'' 
to view the comments received.
    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 final rule to refer collectively to 
FDPIR and FDPIHO.

A. Bring the Maximum Level of Allowable Resources in Line With SNAP

    The July 3, 2008 rule proposed an amendment to regulations at 7 CFR 
253.6(d)(1) to bring the maximum level of allowable resources in FDPIR 
in line with those established for SNAP under Section 5(g) of the Food 
and Nutrition Act of 2008 (formerly the Food Stamp Act of 1977) (7 
U.S.C. 2014(g)). This would mean: (1) A resource limit of $3,000 for 
households with at least one elderly or disabled member; (2) a resource 
limit of $2,000 for households without any elderly or disabled members; 
and (3) annual inflationary adjustments to the above resource limits 
starting in FY 2009. The annual resource limit adjustment is based on 
increases to the Bureau of Labor Standards Consumer Price Index for All 
Urban Consumers for the 12-month period ending the preceding June 30, 
rounded down to the nearest $250 increment. Each adjustment is based on 
the unrounded amount for the prior 12-month period.
    The rule also proposed two conforming amendments to FDPIR 
regulations. The first change would add definitions for ``elderly'' and 
``disabled'' at 7 CFR 253.2. These definitions conform to the 
definitions used under SNAP. The second amendment would revise 7 CFR 
253.7(c)(1) to state that households must report within 10 calendar 
days when their countable resources exceed the applicable maximum 
allowable limit.
    One commenter expressed support for the proposed changes, 
especially the annual inflationary adjustment to the resource limits.
    Another commenter opposed the proposed changes to the resource 
standards. The commenter stated that program standards should be set 
according to local economic conditions rather than being based on state 
or national data. As discussed in the preamble to the July 3, 2008 
proposed rule, the proposed changes are intended to bring FDPIR 
resource standards in line with the resource limits prescribed by 
Congress for SNAP. FDPIR was established by Congress in 1977 as an 
alternative to SNAP for low income households living on or near Indian 
reservations that did 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.
    Based on the above discussion of the comments received, the 
proposed changes to bring the maximum level of allowable resources in 
FDPIR in line with those established for SNAP are retained in this 
final rule.

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

    The July 3, 2008 rule proposed an amendment to the regulations at 7 
CFR 253.6(d)(2)(i) to ensure that pre-paid funeral agreements with 
equity value are treated the same under FDPIR as under SNAP. As 
proposed, the first $1,500 of equity value of one pre-paid funeral 
agreement per household member would not be counted as a household 
resource under FDPIR. 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.
    In many instances pre-paid funeral agreements are already excluded 
as a resource under current FDPIR policy, or have no equity value and 
would not be counted as a resource. For example, funeral expenses are 
often covered under life insurance policies and current FDPIR policy 
allows a resource exclusion for the cash value of life insurance 
policies. Also, an irrevocable pre-paid funeral contract that has no 
cash surrender value would not be counted as a resource under FDPIR.
    Certain pre-paid funeral agreements, however, have equity value. 
This means that they have a specific value that can be legally 
converted to cash by the household member and used for normal living 
expenses. Under current FDPIR policy, the full equity value of a pre-
paid funeral agreement would be counted as a resource to the household. 
Therefore the intent of the proposed change was to provide a resource 
exclusion, as is provided under SNAP, for those pre-paid funeral 
agreements that have equity value, but are not currently excluded as a 
resource under FDPIR. FNS proposed a regulatory change that would 
ensure that those pre-paid funeral agreements would be treated the same 
under FDPIR as under SNAP.
    One commenter stated that their Tribal members, by and large, do 
not purchase pre-paid funeral agreements, and that many Tribes provide 
funeral assistance to their membership. FNS recognizes the valuable 
service that Tribes provide in assisting members with their funeral 
expenses. However, for those individuals that have had to use their own 
resources to secure their funeral arrangements in advance, FNS believes 
that the SNAP provision is a reasonable approach for providing an 
exclusion for pre-paid funeral agreements that have equity value.
    Another commenter stated that not all eligible FDPIR participants 
have resources earmarked for funeral expenses, but that funds set aside 
for funeral expenses should be verified. This comment may be in 
reference to households that have funds for funeral expenses comingled 
with other household savings. Under current FDPIR policy and this final 
rule, funds, including those held for funeral expenses, held in a 
checking or savings account that are accessible to a household for 
normal living expenses

[[Page 4472]]

are considered a resource to the household. As discussed in the 
preamble to the July 3, 2008 proposed rule, there is no verifiable way 
to distinguish the funds held for funeral expenses from a household's 
general savings when the funds are comingled.
    One of the commenters suggested that we define ``equity value'' in 
the regulations and provide an example to clarify the proposed 
provision. We have added the definition of ``equity value'' and an 
example to 7 CFR 253.6(d)(2)(i).
    Based on the above discussion of the comments received, the 
proposed changes to allow a resource exclusion for the first $1,500 of 
the equity value of one pre-paid funeral agreement per household member 
are retained in this final rule with the addition of the definition of 
``equity value'' and an example to 7 CFR 253.6(d)(2)(i), as discussed 
above.

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

    The July 3, 2008 rule proposed the amendment of 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 
FDPIR policy, no household can be certified for more than 12 months. 
This change is intended to benefit elderly and/or disabled households 
that have stable incomes and household circumstances.
    One commenter stated that this change ``would help Tribal members 
very little'' and would exclude individuals and families who have the 
right by Treaty to receive rations until they ``are able to support 
themselves.'' The commenter stated that ``(i)f the harsher Food Stamp 
regulations are applied to FDPIR programs, even fewer Tribal members 
will be eligible for participation.'' The intent of the SNAP provision 
is to remove potential barriers to participation by allowing elderly 
and/or disabled households to continue to participate beyond the 
current 12-month limitation without a recertification interview. 
Eliminating the need for a recertification interview after the first 12 
months of certification would make it easier for low-income elderly 
and/or disabled households to stay enrolled in FDPIR.
    Two commenters addressed the reporting requirements for households. 
One commenter stated that the proposed change would ``help FDPIR reduce 
the cost of certification but each participant must self report if 
their eligibility or economic circumstances change.'' Another commenter 
remarked that households must be informed that they are still subject 
to the requirement to report changes in household circumstances. The 
proposed change would not modify the requirement at 7 CFR 253.7(c) for 
households to report changes in household composition and/or income 
that occur during their certification period. Each State agency is 
required to develop procedures for when and how changes in 
circumstances are reported by households. Although the proposed change 
would require the State agency to contact the household at the end of 
the first 12 months so that the State agency can determine if there are 
any changes in circumstances at that time, this action by the State 
agency would not relieve the household of its responsibility to report 
changes in income or household composition in accordance with 7 CFR 
253.7(c).

D. Other Comments

    One commenter stated that FNS failed to consult with Indian Tribal 
governments prior to the publication of the proposed rulemaking and has 
failed to comply with Executive Order 13175 on government-to-government 
relationships with Indian Tribes. FNS' actions in relation to this rule 
are in compliance with Departmental Regulation Number 1340-006 and 
Executive Order 13175 in regard to consultation and coordination with 
Indian Tribal governments. FNS published a proposed rulemaking in the 
Federal Register on July 3, 2008 with a 60-day comment period. In 
addition, on July 3, 2008 FNS specifically advised the ITOs and State 
agencies that administer FDPIR of the publication of the proposed rule 
and the 60-day comment period. The proposed rule was posted for public 
viewing on the FDPIR Web site at https://www.fns.usda.gov/fdd/programs/fdpir. Prior to the publication of the proposed rulemaking, the 
provisions of the proposed rule were discussed with tribal and State 
representatives of the ITOs and State agencies that administer FDPIR at 
NAFDPIR conferences in 2001, 2003, 2004, and 2008. Also, as discussed 
in the preamble to the proposed rulemaking, the provision for a 
resource exclusion for the first $1,500 of the equity value of one pre-
paid funeral agreement per household member was proposed in response to 
a resolution passed by NAFDPIR at its annual conference in 2000. The 
proposal for a regulatory change was discussed in a January 3, 2001 
letter from the FNS Food Distribution Division Director to the 
President of NAFDPIR.
    The same commenter stated that the proposed rulemaking violated 
Treaty Rights by requiring FDPIR to operate like SNAP. The commenter 
also stated its view that the ``new USDA approach in treating FDPIR 
like the Food Stamp Program'' was a means taken by FNS to evade its 
trust responsibility. FNS' approach to align SNAP and FDPIR policies is 
not new. This has been FNS' approach since the establishment of FDPIR 
in 1977. This approach is based on Congressional intent that FDPIR 
serve as an alternative to SNAP for low-income households that reside 
on or near Indian reservations. The preamble to the December 8, 1978 
proposed rulemaking (43 FR 57798) provides the rationale for FNS' 
approach to align the policies of the two programs and a detailed 
history of FNS' consultation efforts with tribal governments and other 
stakeholders in the development of those policies.
    The same commenter stated that ``there should be full funding for 
each eligible program participant so that the food distributed fully 
meets the needs of those participants.'' The purchase and distribution 
of USDA foods under FDPIR is authorized by section 4(b) of the Food and 
Nutrition Act of 2008 (7 U.S.C. 2013(b)) and section 4(a) of the 
Agriculture and Consumer Protection Act of 1973 (7 U.S.C. 612c note). 
FNS administers FDPIR in accordance with these legislative mandates. 
Section 4(a) of the Agriculture and Consumer Protection Act of 1973 
directs the Secretary ``to improve the variety and quantity of 
commodities supplied to Indians in order to provide them an opportunity 
to obtain a more nutritious diet.'' The joint conference committee 
report that accompanied the amending legislation in 1977 noted that the 
conferees did not intend that ``the commodity package will necessarily 
in and of itself constitute a `nutritionally adequate diet' '' (H. 
Conf. Rpt. 95-599, p. 205 (September 12, 1977)). As such, the preamble 
to the December 8, 1978 proposed rulemaking states that it is the 
intent of the Department to offer a food package that ``represents an 
acceptable alternative to Food Stamp Program benefits'' (43 FR 57798). 
Moreover, Congress funds FDPIR through annual appropriations and FNS 
uses all available funding to support the Program. FNS does not have 
authority to exceed the appropriated funding levels for the purposes 
suggested by the commenter.
    Based on the above discussion of the comments received, the 
proposed changes for extended certification periods for elderly and/or 
disabled households are retained in this final rule.

[[Page 4473]]

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.

0
Accordingly, 7 CFR part 253 is amended as follows:

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

0
1. The authority citation for 7 CFR part 253 is revised to read as 
follows:

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


0
2. In Sec.  253.2:
0
a. Remove paragraph designations (a) through (j) and list the 
definitions in alphabetical order.
0
b. Add new definitions entitled ``Disabled member'' and ``Elderly 
member'' in alphabetical order to read as follows:


Sec.  253.2  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 established 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.
* * * * *

0
3. In Sec.  253.6:
0
a. Amend paragraph (d)(1) by revising the second sentence; and
0
b. Revise paragraph (d)(2)(i).
    The revisions and addition read as follows:


Sec.  253.6  Eligibility of households.

* * * * *
    (d) * * *
    (1) * * * The household's maximum allowable resources shall not 
exceed the limits established for the Supplemental Nutrition Assistance 
Program.
    (2) * * *
    (i) The cash value of life insurance policies; 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. 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.
* * * * *

0
4. In Sec.  253.7:
0
a. Amend paragraph (b)(2)(iii) by removing the last sentence;
0
b. Add new paragraph (b)(2)(iv); and
0
c. Amend paragraph (c)(1) by revising the third sentence;
    The revision and addition read as follows:


Sec.  253.7  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

[[Page 4474]]

identified in Sec.  253.6(d)(2), exceed the maximum allowable limits as 
described at Sec.  253.6(d)(1). * * *
* * * * *

    Dated: January 12, 2010.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2010-1708 Filed 1-27-10; 8:45 am]
BILLING CODE 3410-30-P