Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility, 52827-52832 [2013-20844]

Download as PDF 52827 Rules and Regulations Federal Register Vol. 78, No. 166 Tuesday, August 27, 2013 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. FOR FURTHER INFORMATION CONTACT: Dana Rasmussen, 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. Background and Discussion of Final Rule II. Procedural Matters I. Background and Discussion of the Final Rule DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 253 [FNS–2011–0036] RIN 0584–AE05 Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility Food and Nutrition Service, USDA. ACTION: Final rule. AGENCY: This rulemaking establishes requirements to simplify and improve the administration of and expand access to the Food Distribution Program on Indian Reservations and the Food Distribution Program for Indian Households in Oklahoma, both of which are referred to as ‘‘FDPIR’’ in this rulemaking. The rulemaking amends FDPIR regulations to promote conformity with the Supplemental Nutrition Assistance Program (SNAP). First, the final rule revises FDPIR regulations to eliminate household resources from consideration when determining FDPIR eligibility. Second, the final rule will expand the current FDPIR income deduction for Medicare Part B Medical Insurance and Part D Prescription Drug Coverage premiums to include other monthly medical expenses in excess of $35 for households with elderly and/or disabled members. Third, the final rule will establish an income deduction for shelter and utility expenses. Finally, the final rule will provide new verification requirements related to the new income deductions, and provide revisions to the household reporting requirements that will more closely align FDPIR and SNAP regulations. DATES: This rule is effective September 26, 2013. pmangrum on DSK3VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 A. Why is the Department adopting this final rule? The Department issued a Notice of Proposed Rulemaking (NPRM) on January 11, 2012, at 77 FR 1642. In the NPRM, the Department proposed to amend regulations at 7 CFR Part 253 to simplify, improve and expand access to FDPIR, while promoting conformity with SNAP. The final rule will achieve these objectives by amending the regulations at 7 CFR Part 253 to: • Eliminate the household resource eligibility criterion. • Expand the current deductions for medical expenses. • Establish a deduction for shelter and utility expenses. • Add household verification requirements relating to the proposed medical and shelter/utility expense deductions. • Revise household reporting requirements. B. Summary of Comments on January 11, 2012 Proposed Rule The comment period on the proposed rule ended on April 10, 2012. These comments are discussed below and are available for review at www.regulations.gov. To view the comments received, enter ‘‘FNS–2011– 0036’’ in the search field on the main page of www.regulations.gov. Then click on ‘‘Search.’’ Under ‘‘Document Type’’, select ‘‘Public Submission’’. The Department received 98 written comments from seven elected Tribal leaders, seven FDPIR program administrators, three Tribal Associations, 68 Tribal members, nine non-profit and community-based organizations, two academics/students, and two comments from private citizens regarding the proposed provisions. Ninety-seven commenters supported the provisions in the proposed rule. Of the comments received, 89 commenters supported the provisions to align FDPIR PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 with SNAP policy; 91 commenters specifically supported eliminating household resources from consideration when determining FDPIR eligibility; 89 commenters supported expanding income deductions for medical expenses; and 88 commenters supported the new income deductions for shelter and utility expenses. Six supporting commenters cited the provisions as a positive change for current and prospective FDPIR participants, while four commenters cited the provisions as a positive change for the elderly and disabled population specifically. One commenter cited the provisions in the proposed rule as well explained and easily understood. Finally, two commenters cited the provisions as a positive response to Resolution 2009–01 passed by the membership of the National Association of Food Distribution Program on Indian Reservations (NAFDPIR) in 2009. One commenter objected to the proposal to eliminate household resources from consideration when determining FDPIR eligibility. The commenter stated that removal of the resource test may allow non-needy participants to receive benefits. Regarding the commenter’s objection, the Department will continue to require the income test to certify program eligibility among all participants and ensure services are targeted to the neediest in accordance with Program statutory and regulatory requirements. The Department also estimates that eliminating the household resource test would increase FDPIR participation by less than one percent. Removal of the resource test will streamline the certification process for new applicants and currently participating households. In addition, this action will simplify program administration, reducing the burden on State agency certification staff while improving program access to those individuals in need of nutrition assistance. The vast majority of commenters (97) specifically cited support for eliminating the household resource test to determine FDPIR eligibility. Thus, the proposed removal of the resource test is retained without change. However, FNS will continue to pay close attention to the issue as well as to similar concerns expressed by Congress regarding the ability for individuals in receipt of substantial windfalls to be E:\FR\FM\27AUR1.SGM 27AUR1 52828 Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / Rules and Regulations eligible to the program. FNS will continue to evaluate ways to improve both program integrity and efficiency. Further, FNS will remain attentive to any future changes in related programs such as SNAP and consider similar adjustments within FDPIR as appropriate. Two commenters expressed concern with regard to the proposed provision which would require households to report changes in income exceeding $100. Both commenters cited this provision as creating additional paperwork burdens for staff while diverging from SNAP policy. The current provision at 7 CFR 253.7(c)(1) requires households to report changes in income that would necessitate a change in the eligibility determination. The Department believes this methodology is impractical because households cannot be expected to know when their income eligibility changes based on a net monthly income calculation. Furthermore, the proposed provision conforms with SNAP regulations at 7 CFR 273.12(a)(1)(i)(C)(2), where a change in earned income exceeding $100 must be reported for certified change reporting households. Although SNAP allows for additional State options regarding income change reporting, the FDPIR provision, as proposed, offers a uniform, streamlined approach which is simple and easy to understand, while at the same time promoting program integrity. The provision will provide households with a more effective guideline for determining when changes in income must be reported. Thus, the proposed provision is retained without change in this final rule. Two commenters expressed concern regarding the proposed provision which would require an applicant household to show proof of at least one allowable shelter/utility expense to receive the FDPIR standard deduction. Both commenters observed that an applicant’s statement is acceptable as proof to receive the standard deduction under SNAP. SNAP allows for selfdeclaration of shelter/utility expenses at or below the applicable standard. However in SNAP, all expenses a household wishes to claim or which are questionable and which are beyond that applicable standard must be verified. The Department believes the FDPIR provision, as proposed, is simple and easy to understand, without creating an undue burden on FDPIR certification staff and applicants. Thus, the proposed provision is retained without change in this final rule. As proposed, FNS would set regionspecific standard income deductions for monthly shelter and utility expenses. An explanation regarding the Department’s methodology for setting the Regional shelter/utility deduction amounts may be found in the preamble of the proposed rule. If implemented in Fiscal Year (FY) 2013, the Department does not anticipate significant changes to the Regional amounts set in the proposed rule, with the exception to the amount proposed for the Northeast/ Midwest region, which was projected to be $350 for FY 2013 in the proposed rule. This amount is revised to $400 in this final rule to reflect the most recent data available. The Regional amounts are listed below: FY 2013 FDPIR STANDARD SHELTER/UTILITY EXPENSE DEDUCTIONS BASELINE BY REGION Shelter/utility deduction Region States currently with FDPIR programs Northeast/Midwest ................................... Southeast/Southwest ............................... Mountain Plains ....................................... Michigan, Minnesota, New York, Wisconsin ........................................................... Mississippi, New Mexico, North Carolina, Oklahoma, Texas ................................. Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, Wyoming. Alaska, Arizona, California, Idaho, Nevada, Oregon, Washington ......................... West ........................................................ C. Regulatory Revisions, 7 CFR 253.6 and 253.7 In the following discussion and regulatory text, the term ‘‘State agency,’’ as defined at 7 CFR 253.2, is used to include Indian Tribal Organizations (ITOs) authorized to operate FDPIR and Food Distribution Program for Indian Households in Oklahoma (FDPIHO) in accordance with 7 CFR Parts 253 and 254. This final rulemaking amends the regulations for FDPIR at 7 CFR 253.6 and 253.7 as follows: pmangrum on DSK3VPTVN1PROD with RULES 1. Eliminate the Eligibility Criterion Based on Household Resources—7 CFR 253.6(d) In the proposed rule, to eliminate the resource standard from current regulations, the Department proposed to remove the regulatory provisions at 7 CFR 253.6(d). Removal of the resource test would streamline the certification process for new and currently participating households and simplify program administration, reducing the burden on State agency certification VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 staff and improving service to those in need of nutrition assistance. Based on the comments discussed, which reflect vast majority support for eliminating the eligibility criterion based on household resources, the proposed removal of 7 CFR 253.6(d) is included without change in this final rule. This final rule makes conforming amendments to 7 CFR 253.6(c) on categorical eligibility and removes reference to resource eligibility. This final rule also removes 7 CFR 253.7(f)(2)(i), which currently references resources of disqualified household members, and redesignates the current paragraphs at 7 CFR 253.7(f)(2)(ii) and (iii) as paragraphs (f)(2)(i) and (ii), respectively. The Department also proposed to redesignate 7 CFR 253.6(e)(3)(viii) as 7 CFR 253.6(d)(3)(viii), and remove the provision which currently counts nonrecurring lump sum payments as resources in the month received. The Department proposed similar treatment of periodic per capita payments that are PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 $400 300 400 350 derived from the profits of Tribal enterprises and distributed to Tribal members less frequently than monthly. Therefore, non-recurring lump sum payments and non-monthly per capita payments will not be considered in determining the eligibility of households for FDPIR. No comments were received on these proposed changes. Thus, the proposed changes are retained in this final rule. Furthermore, this final rule redesignates 7 CFR 253.6(e)(2)(ii) as 7 CFR 253.6(d)(2)(ii), and clarifies that per capita payments received monthly are considered unearned income in the month received. This is consistent with current program policy. No comments were received on this proposed provision. Thus, the proposed change is retained in this final rule. 2. Medical Expense Deduction—7 CFR 253.6(f) (To Be Redesignated as 7 CFR 253.6(e)) In the proposed rule, the Department proposed to redesignate 7 CFR E:\FR\FM\27AUR1.SGM 27AUR1 Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / Rules and Regulations 253.6(f)(4) as 7 CFR 253.6(e)(4) and expand the current deduction for Medicare Part B Medical Insurance and Part D Prescription Drug Coverage premiums to include other monthly medical expenses in excess of $35 incurred by any household member who is elderly or disabled as defined in 7 CFR 253.2. As provided above, in order to reflect the elimination of 7 CFR 253.6(d), this final rule redesignates current 7 CFR 253.6(f) as paragraph (e). All comments received on this provision were in support of expanding medical expenses as proposed. Thus, the proposed changes are retained in this final rule. In the proposed rule, the Department also proposed to adopt SNAP position codified at 7 CFR 273.9(d)(3) in regards to allowable medical costs. A vast majority of comments received support aligning FDPIR with SNAP policy. Thus, the proposed changes are retained in this final rule. pmangrum on DSK3VPTVN1PROD with RULES 3. Shelter and Utility Expense Deduction—7 CFR 253.6(f) (To Be Redesignated as 7 CFR 253.6(e)) In the proposed rule, the Department proposed to redesignate 7 CFR 253.6(f) as 7 CFR 253.6(e), and establish regionspecific standard income deductions for monthly shelter and utility expenses, with all States within each designated region receiving the same deduction amount. All comments received regarding this provision were in support of establishing regional shelter and utility expense deductions, as proposed. Thus, the proposed changes are retained in this final rule. In the proposed rule, the Department also proposed to adopt SNAP policy under 7 CFR 273.9(d)(6)(ii) for allowable shelter and utility expenses. A vast majority of comments received support aligning FDPIR with SNAP policy. Thus, the proposed changes are retained in this final rule. 4. Verification Requirements and Household Reporting—7 CFR 253.7(a)(6)(i) and 7 CFR 253.7(c)(1) In the proposed rule, the Department proposed to amend 7 CFR 253.7(a)(6)(i) to revise the current verification requirements for Medicare Part B and Part D premiums to reflect the expanded medical expense deduction. No comments were received specific to this provision for expanded medical expenses. The Department also proposed to amend 7 CFR 253.7(a)(6)(i) to add a verification requirement for shelter and utility expenses. Although two commenters expressed concern with this verification requirement, the vast majority of commenters were VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 generally in support of the proposed provisions. As discussed in Section I.B. of the preamble, the Department believes that requiring minimal verification of shelter/utility expenses is important to ensure Program integrity. The proposed verification requirements are included without change in 7 CFR 253.7(a)(6)(i) of this final rule. In the proposed rule, the Department proposed to amend the reporting requirements at 7 CFR 253.7(c)(1) and require a household to report a change in residence; changes in shelter/utility expenses when the household no longer incurs shelter/utility costs; changes in the legal obligation to pay child support; and changes in income that result in an increase of more than $100 in gross monthly income. The Department believes these provisions, as proposed, will provide for better comprehension, and improve the administration of FDPIR. Although two commenters expressed concern with the requirement to report a change in income exceeding $100 in gross monthly income, the vast majority of commenters were generally in support of the proposed reporting requirements. As discussed in Section I.B. of the preamble, the Department believes this reporting requirement provides a more effective guideline for households to determine when changes in income must be reported. The proposed reporting requirements are included without change in 7 CFR 253.7(c)(1) of this final rule. II. Procedural Matters A. Executive Order 12866 and Executive Order 13563 Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be not significant for purposes of Executive Order 12866. Therefore, it was not reviewed by the Office of Management and Budget (OMB). B. Regulatory Flexibility Act This final 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 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 52829 on a substantial number of small entities. While program participants and ITOs and State agencies that administer FDPIR will be affected by this rulemaking, the economic effect will not be significant. C. Unfunded Mandates Reform Act of 1995 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 Food and Nutrition Service (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 costeffective or least burdensome alternative that achieves the objectives of the rule. This final 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 final rule is, therefore, not subject to the requirements of Sections 202 and 205 of the UMRA. D. 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 29115 on 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. E. 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. E:\FR\FM\27AUR1.SGM 27AUR1 52830 Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / Rules and Regulations 1. Prior Consultation With Tribal/State Officials The Programs affected by the provisions in this final rule are all Tribal or State-administered federally funded programs. FNS’ national and regional offices have formal and informal discussions with State agency officials and representatives on an ongoing basis regarding program issues relating to FDPIR. FNS meets annually with the NAFDPIR membership, a national group of Tribal and Stateappointed FDPIR Program Directors, to discuss issues relating to FDPIR. FNS also meets with the NAFDPIR Board on a more frequent basis. The changes in this final rulemaking related to the deduction for shelter and utility expenses are based on a resolution passed by the NAFDPIR membership in June 2009, and were discussed with the NAFDPIR Board and its membership. This rulemaking was also the subject of formal consultation sessions with Tribal officials held in seven locations in October 2010 through January 2011, as well as an additional consultation session held on February 29, 2012. Section J below, provides additional information on FNS’ consultation efforts as it relates specifically to this rule. pmangrum on DSK3VPTVN1PROD with RULES 2. Nature of Concerns and the Need To Issue This Rule Eligible low-income households living in areas served by FDPIR may choose to participate in either FDPIR or SNAP. SNAP regulations offer an income deduction for excess shelter expenses and an income deduction for allowable monthly medical expenses in excess of $35 for households with elderly and/or disabled members. This final rulemaking responds to a resolution passed by the membership of the NAFDPIR in June 2009 that requested income deductions for home heating expenses and utilities, prescription medications, and other outof-pocket medical expenses. The NAFDPIR resolution read that the FDPIR income eligibility criterion unfairly penalizes households whose net monthly income is determined to be over the income standard by as little as one dollar, while many of these households have monthly shelter, utility and/or medical expenses. NAFDPIR believes that some low-income households are forced to choose between paying for food and paying for heat and/or medicine. FNS also received numerous public comments in response to separate proposed rulemaking supporting elimination of the FDPIR resource test VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 or alignment of FDPIR and SNAP policies. This final rulemaking responds to the concerns raised by commenters. 3. Extent to Which We Address Those Concerns The Department has considered the impact of this final rule on Indian Tribal Organizations and State agencies that administer FDPIR. The Department does not expect the provisions of this final rule to conflict with any State or local law, regulations, or policies. The overall effect of this final rule is to ensure that low-income households living on or near Indian reservations receive nutrition assistance. F. 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 applications of its provisions, all applicable administrative procedures must be exhausted. G. Civil Rights Impact Analysis The Department has reviewed this final 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. Consistent with current SNAP regulations, the provision to expand the current income deduction for Medicare Part B Medical Insurance and Part D Prescription Drug Coverage premiums to include other allowable monthly medical expenses in excess of $35 would apply only to households with elderly and/or disabled members, as defined at 7 CFR 253.2. However, after a careful review of the rule’s intent and provisions, the Department has determined that this final rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution programs on the basis of an individual’s or group’s race, color, national origin, sex, age, political beliefs, religious creed, or disability. The Department found no factors that would negatively affect any group of individuals. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 H. 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. Information collections related to the provisions in this final rule are approved under OMB No. 0584–0293 (Expiration date: December 31, 2014). This final rule would impact the reporting and recordkeeping burden for Indian Tribal Organizations and State agencies under OMB No. 0584–0293 due to an expected change in number of households participating in FDPIR as a result of this rule and related changes to verification and household reporting requirements. Documentation supporting the eligibility of all participating households must be maintained by the Indian Tribal Organizations and State agencies. The approved information collection estimates under OMB No. 0584–0293 are as follows: Estimated total annual burden: 1,079,172.92. Estimated annual recordkeeping burden: 746,400.42. Estimated annual reporting burden: 332,772.49. Changes resulting from this final rule would result in the following changes to OMB No. 0584–0293: Estimated total annual burden: 1,081,071.76. Estimated annual recordkeeping burden: 746,428.44. Estimated annual reporting burden: 334,643.32. 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. I. E-Government Act Compliance The Department is committed to complying with the E-Government Act 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. J. Executive Order 13175 Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that E:\FR\FM\27AUR1.SGM 27AUR1 Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / Rules and Regulations have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. In late 2010 and early 2011, USDA engaged in a series of consultative sessions to obtain input by Tribal officials or their designees concerning the effect of this and other rules on Tribes or Indian Tribal governments, or whether this rule may preempt Tribal law. The Department provided an additional consultation session on February 29, 2012, as part of its quarterly consultation meetings for FY 2012 and discussed the proposed provisions of this rule with Tribal officials, their designees, and Tribal members. Reports from the consultative sessions will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will offer future opportunities, such as webinars and teleconferences, for collaborative conversations with Tribal leaders and their representatives concerning ways to improve rules with regard to their affect on Indian country. We are unaware of any current Tribal laws that could be in conflict with the final rule. 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 part 253 continues to read as follows: ■ Authority: 91 Stat. 958 (7 U.S.C. 2011– 2036). 2. In § 253.6: a. Amend the heading of paragraph (c) introductory text by removing the words ‘‘and resource’’; ■ b. Amend paragraph (c)(1) by removing the words ‘‘and resources’’; ■ c. Amend paragraph (c)(2) by removing the words ‘‘and resources’’; ■ d. Remove paragraph (d) and redesignate paragraphs (e) and (f) as paragraphs (d) and (e), respectively; ■ e. In newly redesignated paragraph (d), redesignate paragraph (d)(2)(ii)(F) as paragraph (d)(2)(ii)(G), and add new paragraph (d)(2)(ii)(F); pmangrum on DSK3VPTVN1PROD with RULES ■ ■ VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 f. Amend redesignated paragraph (d)(3)(viii) by removing the second sentence; ■ g. Add paragraph (d)(3)(xii); ■ h. Revise newly redesignated paragraph (e)(4) and add paragraph (e)(5). The revision and additions read as follows: ■ § 253.6 Eligibility of households. * * * * * (d) * * * (2) * * * (ii) * * * (F) Per capita payments that are derived from the profits of Tribal enterprises and distributed to Tribal members on a monthly basis. * * * * * (3) * * * (xii) Per capita payments that are derived from the profits of Tribal enterprises and distributed to Tribal members less frequently than monthly (e.g., quarterly, semiannually or annually) are excluded from consideration as income. * * * * * (e) * * * (4) Households must receive a medical deduction for that portion of medical expenses in excess of $35 per month, excluding special diets, incurred by any household member who is elderly or disabled as defined in § 253.2 of this chapter. Spouses or other persons receiving benefits as a dependent of a Supplemental Security Income (SSI), or disability and blindness recipient are not eligible to receive this deduction; however, persons receiving emergency SSI benefits based on presumptive eligibility are eligible for this deduction. The allowable medical costs are those permitted at 7 CFR 273.9(d)(3) for the Supplemental Nutrition Assistance Program (SNAP). (5) Households that incur monthly shelter and utility expenses will receive a shelter/utility standard deduction, subject to the provisions below. (i) The household must incur, on a monthly basis, at least one allowable shelter/utility expense. The allowable shelter/utility expenses are those permitted at 7 CFR 273.9(d)(6)(ii) for SNAP. (ii) The shelter/utility standard deduction amounts are set by FNS on a regional basis. The standard deductions are adjusted annually to reflect changes to SNAP Quality Control data. FNS will advise the State agencies of the updates prior to October 1 of each year. (iii) If eligible to receive a shelter/ utility standard deduction, the applicant household may opt to receive the PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 52831 appropriate deduction amount for the State in which the household resides or the State in which the State agency’s central administrative office is located. ■ 3. In § 253.7: ■ a. Revise paragraph (a)(6)(i)(C); ■ b. Add paragraph (a)(6)(i)(D); ■ c. Revise paragraph (c)(1); ■ d. Remove paragraph (f)(2)(i) and redesignate paragraphs (f)(2)(ii) and (iii) as paragraphs (f)(2)(i) and (ii), respectively. The revisions and addition read as follows: § 253.7 Certification of households. (a) * * * (6) * * * (i) * * * (C) Excess medical expense deduction. The State agency must obtain verification for those medical expenses that the household wishes to deduct in accordance with 7 CFR 253.6(e)(4). The allowability of services provided (e.g., whether the billing health professional is a licensed practitioner authorized by State law or other qualified health professional) must be verified, if questionable. Only out-of-pocket expenses can be deducted. Expenses reimbursed to the household by an insurer are not deductible. The eligibility of the household to qualify for the deduction (i.e., the household includes a member who is elderly or disabled) must be verified, if questionable. (D) Standard shelter/utility deduction. A household must incur, on a monthly basis, at least one allowable shelter/ utility expense in accordance with 7 CFR 253.6(e)(5)(i) to qualify for the standard shelter/utility deduction. The State agency must verify that the household incurs the expense. * * * * * (c) * * * (1) The State agency must develop procedures for how changes in household circumstances are reported. Changes reported over the telephone or in person must be acted on in the same manner as those reported in writing. Participating households are required to report the following changes within 10 calendar days after the change becomes known to the household: (i) A change in household composition; (ii) An increase in gross monthly income of more than $100; (iii) A change in residence; (iv) When the household no longer incurs a shelter and utility expense; or (v) A change in the legal obligation to pay child support. * * * * * E:\FR\FM\27AUR1.SGM 27AUR1 52832 Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / Rules and Regulations Dated: August 19, 2013. Audrey Rowe, Administrator, Food and Nutrition Service. E-Government Act Compliance FCIC is committed to complying 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. [FR Doc. 2013–20844 Filed 8–26–13; 8:45 am] BILLING CODE 3410–30–P DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 402 [Docket No. FCIC–11–0003] RIN 0563–AC31 Catastrophic Risk Protection Endorsement Federal Crop Insurance Corporation, USDA. ACTION: Final rule. AGENCY: The Federal Crop Insurance Corporation (FCIC) finalizes the Catastrophic Risk Protection Endorsement. The intended effect of this action is to clarify existing policy provisions and to incorporate changes that are consistent with those made in the Common Crop Insurance Policy Basic Provisions and to incorporate provisions regarding catastrophic risk protection coverage for area yield plans from the Area Risk Protection Insurance (ARPI) Basic Provisions. The changes will be effective for the 2014 and succeeding crop years for all crops with a contract change date on or after the effective date of this rule, and for the 2015 and succeeding crop years for all crops with a contract change date prior to the effective date of this rule. DATES: This rule is effective September 26, 2013. FOR FURTHER INFORMATION CONTACT: Tim Hoffmann, Director, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141–6205, telephone (816) 926–7730. SUPPLEMENTARY INFORMATION: SUMMARY: Executive Order 12866 pmangrum on DSK3VPTVN1PROD with RULES The Office of Management and Budget (OMB) has determined that this rule is not-significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by OMB. Paperwork Reduction Act of 1995 Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563–0053. VerDate Mar<15>2010 13:33 Aug 26, 2013 Jkt 229001 Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. 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. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Executive Order 13132 It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Executive Order 13175 This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications. Regulatory Flexibility Act FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). Federal Assistance Program This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983. Executive Order 12988 This final rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought. Environmental Evaluation This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed. Background This rule finalizes changes to the Catastrophic Risk Protection Endorsement that were published by FCIC on August 17, 2011, as a notice of proposed rulemaking in the Federal Register at 76 FR 50929–50931. The public was afforded 60 days to submit written comments after the regulation was published in the Federal Register. E:\FR\FM\27AUR1.SGM 27AUR1

Agencies

[Federal Register Volume 78, Number 166 (Tuesday, August 27, 2013)]
[Rules and Regulations]
[Pages 52827-52832]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20844]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 78, No. 166 / Tuesday, August 27, 2013 / 
Rules and Regulations

[[Page 52827]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 253

[FNS-2011-0036]
RIN 0584-AE05


Food Distribution Program on Indian Reservations: Income 
Deductions and Resource Eligibility

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rulemaking establishes requirements to simplify and 
improve the administration of and expand access to the Food 
Distribution Program on Indian Reservations and the Food Distribution 
Program for Indian Households in Oklahoma, both of which are referred 
to as ``FDPIR'' in this rulemaking. The rulemaking amends FDPIR 
regulations to promote conformity with the Supplemental Nutrition 
Assistance Program (SNAP). First, the final rule revises FDPIR 
regulations to eliminate household resources from consideration when 
determining FDPIR eligibility. Second, the final rule will expand the 
current FDPIR income deduction for Medicare Part B Medical Insurance 
and Part D Prescription Drug Coverage premiums to include other monthly 
medical expenses in excess of $35 for households with elderly and/or 
disabled members. Third, the final rule will establish an income 
deduction for shelter and utility expenses. Finally, the final rule 
will provide new verification requirements related to the new income 
deductions, and provide revisions to the household reporting 
requirements that will more closely align FDPIR and SNAP regulations.

DATES: This rule is effective September 26, 2013.

FOR FURTHER INFORMATION CONTACT: Dana Rasmussen, 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. Background and Discussion of Final Rule
II. Procedural Matters

I. Background and Discussion of the Final Rule

A. Why is the Department adopting this final rule?

    The Department issued a Notice of Proposed Rulemaking (NPRM) on 
January 11, 2012, at 77 FR 1642. In the NPRM, the Department proposed 
to amend regulations at 7 CFR Part 253 to simplify, improve and expand 
access to FDPIR, while promoting conformity with SNAP. The final rule 
will achieve these objectives by amending the regulations at 7 CFR Part 
253 to:
     Eliminate the household resource eligibility criterion.
     Expand the current deductions for medical expenses.
     Establish a deduction for shelter and utility expenses.
     Add household verification requirements relating to the 
proposed medical and shelter/utility expense deductions.
     Revise household reporting requirements.

B. Summary of Comments on January 11, 2012 Proposed Rule

    The comment period on the proposed rule ended on April 10, 2012. 
These comments are discussed below and are available for review at 
www.regulations.gov. To view the comments received, enter ``FNS-2011-
0036'' in the search field on the main page of www.regulations.gov. 
Then click on ``Search.'' Under ``Document Type'', select ``Public 
Submission''.
    The Department received 98 written comments from seven elected 
Tribal leaders, seven FDPIR program administrators, three Tribal 
Associations, 68 Tribal members, nine non-profit and community-based 
organizations, two academics/students, and two comments from private 
citizens regarding the proposed provisions.
    Ninety-seven commenters supported the provisions in the proposed 
rule. Of the comments received, 89 commenters supported the provisions 
to align FDPIR with SNAP policy; 91 commenters specifically supported 
eliminating household resources from consideration when determining 
FDPIR eligibility; 89 commenters supported expanding income deductions 
for medical expenses; and 88 commenters supported the new income 
deductions for shelter and utility expenses. Six supporting commenters 
cited the provisions as a positive change for current and prospective 
FDPIR participants, while four commenters cited the provisions as a 
positive change for the elderly and disabled population specifically. 
One commenter cited the provisions in the proposed rule as well 
explained and easily understood. Finally, two commenters cited the 
provisions as a positive response to Resolution 2009-01 passed by the 
membership of the National Association of Food Distribution Program on 
Indian Reservations (NAFDPIR) in 2009.
    One commenter objected to the proposal to eliminate household 
resources from consideration when determining FDPIR eligibility. The 
commenter stated that removal of the resource test may allow non-needy 
participants to receive benefits. Regarding the commenter's objection, 
the Department will continue to require the income test to certify 
program eligibility among all participants and ensure services are 
targeted to the neediest in accordance with Program statutory and 
regulatory requirements. The Department also estimates that eliminating 
the household resource test would increase FDPIR participation by less 
than one percent. Removal of the resource test will streamline the 
certification process for new applicants and currently participating 
households. In addition, this action will simplify program 
administration, reducing the burden on State agency certification staff 
while improving program access to those individuals in need of 
nutrition assistance. The vast majority of commenters (97) specifically 
cited support for eliminating the household resource test to determine 
FDPIR eligibility. Thus, the proposed removal of the resource test is 
retained without change.
    However, FNS will continue to pay close attention to the issue as 
well as to similar concerns expressed by Congress regarding the ability 
for individuals in receipt of substantial windfalls to be

[[Page 52828]]

eligible to the program. FNS will continue to evaluate ways to improve 
both program integrity and efficiency. Further, FNS will remain 
attentive to any future changes in related programs such as SNAP and 
consider similar adjustments within FDPIR as appropriate.
    Two commenters expressed concern with regard to the proposed 
provision which would require households to report changes in income 
exceeding $100. Both commenters cited this provision as creating 
additional paperwork burdens for staff while diverging from SNAP 
policy. The current provision at 7 CFR 253.7(c)(1) requires households 
to report changes in income that would necessitate a change in the 
eligibility determination. The Department believes this methodology is 
impractical because households cannot be expected to know when their 
income eligibility changes based on a net monthly income calculation. 
Furthermore, the proposed provision conforms with SNAP regulations at 7 
CFR 273.12(a)(1)(i)(C)(2), where a change in earned income exceeding 
$100 must be reported for certified change reporting households. 
Although SNAP allows for additional State options regarding income 
change reporting, the FDPIR provision, as proposed, offers a uniform, 
streamlined approach which is simple and easy to understand, while at 
the same time promoting program integrity. The provision will provide 
households with a more effective guideline for determining when changes 
in income must be reported. Thus, the proposed provision is retained 
without change in this final rule.
    Two commenters expressed concern regarding the proposed provision 
which would require an applicant household to show proof of at least 
one allowable shelter/utility expense to receive the FDPIR standard 
deduction. Both commenters observed that an applicant's statement is 
acceptable as proof to receive the standard deduction under SNAP. SNAP 
allows for self-declaration of shelter/utility expenses at or below the 
applicable standard. However in SNAP, all expenses a household wishes 
to claim or which are questionable and which are beyond that applicable 
standard must be verified. The Department believes the FDPIR provision, 
as proposed, is simple and easy to understand, without creating an 
undue burden on FDPIR certification staff and applicants. Thus, the 
proposed provision is retained without change in this final rule.
    As proposed, FNS would set region-specific standard income 
deductions for monthly shelter and utility expenses. An explanation 
regarding the Department's methodology for setting the Regional 
shelter/utility deduction amounts may be found in the preamble of the 
proposed rule. If implemented in Fiscal Year (FY) 2013, the Department 
does not anticipate significant changes to the Regional amounts set in 
the proposed rule, with the exception to the amount proposed for the 
Northeast/Midwest region, which was projected to be $350 for FY 2013 in 
the proposed rule. This amount is revised to $400 in this final rule to 
reflect the most recent data available. The Regional amounts are listed 
below:

  FY 2013 FDPIR Standard Shelter/Utility Expense Deductions Baseline by
                                 Region
------------------------------------------------------------------------
                                States currently with   Shelter/utility
            Region                  FDPIR programs         deduction
------------------------------------------------------------------------
Northeast/Midwest.............  Michigan, Minnesota,                $400
                                 New York, Wisconsin.
Southeast/Southwest...........  Mississippi, New                     300
                                 Mexico, North
                                 Carolina, Oklahoma,
                                 Texas.
Mountain Plains...............  Colorado, Kansas,                    400
                                 Montana, Nebraska,
                                 North Dakota, South
                                 Dakota, Utah,
                                 Wyoming.
West..........................  Alaska, Arizona,                     350
                                 California, Idaho,
                                 Nevada, Oregon,
                                 Washington.
------------------------------------------------------------------------

C. Regulatory Revisions, 7 CFR 253.6 and 253.7

    In the following discussion and regulatory text, the term ``State 
agency,'' as defined at 7 CFR 253.2, is used to include Indian Tribal 
Organizations (ITOs) authorized to operate FDPIR and Food Distribution 
Program for Indian Households in Oklahoma (FDPIHO) in accordance with 7 
CFR Parts 253 and 254. This final rulemaking amends the regulations for 
FDPIR at 7 CFR 253.6 and 253.7 as follows:
1. Eliminate the Eligibility Criterion Based on Household Resources--7 
CFR 253.6(d)
    In the proposed rule, to eliminate the resource standard from 
current regulations, the Department proposed to remove the regulatory 
provisions at 7 CFR 253.6(d). Removal of the resource test would 
streamline the certification process for new and currently 
participating households and simplify program administration, reducing 
the burden on State agency certification staff and improving service to 
those in need of nutrition assistance. Based on the comments discussed, 
which reflect vast majority support for eliminating the eligibility 
criterion based on household resources, the proposed removal of 7 CFR 
253.6(d) is included without change in this final rule.
    This final rule makes conforming amendments to 7 CFR 253.6(c) on 
categorical eligibility and removes reference to resource eligibility. 
This final rule also removes 7 CFR 253.7(f)(2)(i), which currently 
references resources of disqualified household members, and 
redesignates the current paragraphs at 7 CFR 253.7(f)(2)(ii) and (iii) 
as paragraphs (f)(2)(i) and (ii), respectively.
    The Department also proposed to redesignate 7 CFR 253.6(e)(3)(viii) 
as 7 CFR 253.6(d)(3)(viii), and remove the provision which currently 
counts non-recurring lump sum payments as resources in the month 
received. The Department proposed similar treatment of periodic per 
capita payments that are derived from the profits of Tribal enterprises 
and distributed to Tribal members less frequently than monthly. 
Therefore, non-recurring lump sum payments and non-monthly per capita 
payments will not be considered in determining the eligibility of 
households for FDPIR. No comments were received on these proposed 
changes. Thus, the proposed changes are retained in this final rule. 
Furthermore, this final rule redesignates 7 CFR 253.6(e)(2)(ii) as 7 
CFR 253.6(d)(2)(ii), and clarifies that per capita payments received 
monthly are considered unearned income in the month received. This is 
consistent with current program policy. No comments were received on 
this proposed provision. Thus, the proposed change is retained in this 
final rule.
2. Medical Expense Deduction--7 CFR 253.6(f) (To Be Redesignated as 7 
CFR 253.6(e))
    In the proposed rule, the Department proposed to redesignate 7 CFR

[[Page 52829]]

253.6(f)(4) as 7 CFR 253.6(e)(4) and expand the current deduction for 
Medicare Part B Medical Insurance and Part D Prescription Drug Coverage 
premiums to include other monthly medical expenses in excess of $35 
incurred by any household member who is elderly or disabled as defined 
in 7 CFR 253.2. As provided above, in order to reflect the elimination 
of 7 CFR 253.6(d), this final rule redesignates current 7 CFR 253.6(f) 
as paragraph (e). All comments received on this provision were in 
support of expanding medical expenses as proposed. Thus, the proposed 
changes are retained in this final rule.
    In the proposed rule, the Department also proposed to adopt SNAP 
position codified at 7 CFR 273.9(d)(3) in regards to allowable medical 
costs. A vast majority of comments received support aligning FDPIR with 
SNAP policy. Thus, the proposed changes are retained in this final 
rule.
3. Shelter and Utility Expense Deduction--7 CFR 253.6(f) (To Be 
Redesignated as 7 CFR 253.6(e))
    In the proposed rule, the Department proposed to redesignate 7 CFR 
253.6(f) as 7 CFR 253.6(e), and establish region-specific standard 
income deductions for monthly shelter and utility expenses, with all 
States within each designated region receiving the same deduction 
amount. All comments received regarding this provision were in support 
of establishing regional shelter and utility expense deductions, as 
proposed. Thus, the proposed changes are retained in this final rule.
    In the proposed rule, the Department also proposed to adopt SNAP 
policy under 7 CFR 273.9(d)(6)(ii) for allowable shelter and utility 
expenses. A vast majority of comments received support aligning FDPIR 
with SNAP policy. Thus, the proposed changes are retained in this final 
rule.
4. Verification Requirements and Household Reporting--7 CFR 
253.7(a)(6)(i) and 7 CFR 253.7(c)(1)
    In the proposed rule, the Department proposed to amend 7 CFR 
253.7(a)(6)(i) to revise the current verification requirements for 
Medicare Part B and Part D premiums to reflect the expanded medical 
expense deduction. No comments were received specific to this provision 
for expanded medical expenses. The Department also proposed to amend 7 
CFR 253.7(a)(6)(i) to add a verification requirement for shelter and 
utility expenses. Although two commenters expressed concern with this 
verification requirement, the vast majority of commenters were 
generally in support of the proposed provisions. As discussed in 
Section I.B. of the preamble, the Department believes that requiring 
minimal verification of shelter/utility expenses is important to ensure 
Program integrity. The proposed verification requirements are included 
without change in 7 CFR 253.7(a)(6)(i) of this final rule.
    In the proposed rule, the Department proposed to amend the 
reporting requirements at 7 CFR 253.7(c)(1) and require a household to 
report a change in residence; changes in shelter/utility expenses when 
the household no longer incurs shelter/utility costs; changes in the 
legal obligation to pay child support; and changes in income that 
result in an increase of more than $100 in gross monthly income. The 
Department believes these provisions, as proposed, will provide for 
better comprehension, and improve the administration of FDPIR. Although 
two commenters expressed concern with the requirement to report a 
change in income exceeding $100 in gross monthly income, the vast 
majority of commenters were generally in support of the proposed 
reporting requirements. As discussed in Section I.B. of the preamble, 
the Department believes this reporting requirement provides a more 
effective guideline for households to determine when changes in income 
must be reported. The proposed reporting requirements are included 
without change in 7 CFR 253.7(c)(1) of this final rule.

II. Procedural Matters

A. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. Therefore, it was not reviewed by 
the Office of Management and Budget (OMB).

B. Regulatory Flexibility Act

    This final 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 program participants and 
ITOs and State agencies that administer FDPIR will be affected by this 
rulemaking, the economic effect will not be significant.

C. Unfunded Mandates Reform Act of 1995

    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 
Food and Nutrition Service (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 final 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 final rule is, therefore, not subject to the requirements of 
Sections 202 and 205 of the UMRA.

D. 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 29115 on 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.

E. 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.

[[Page 52830]]

1. Prior Consultation With Tribal/State Officials
    The Programs affected by the provisions in this final rule are all 
Tribal or State-administered federally funded programs. FNS' national 
and regional offices have formal and informal discussions with State 
agency officials and representatives on an ongoing basis regarding 
program issues relating to FDPIR. FNS meets annually with the NAFDPIR 
membership, a national group of Tribal and State-appointed FDPIR 
Program Directors, to discuss issues relating to FDPIR. FNS also meets 
with the NAFDPIR Board on a more frequent basis.
    The changes in this final rulemaking related to the deduction for 
shelter and utility expenses are based on a resolution passed by the 
NAFDPIR membership in June 2009, and were discussed with the NAFDPIR 
Board and its membership. This rulemaking was also the subject of 
formal consultation sessions with Tribal officials held in seven 
locations in October 2010 through January 2011, as well as an 
additional consultation session held on February 29, 2012. Section J 
below, provides additional information on FNS' consultation efforts as 
it relates specifically to this rule.
2. Nature of Concerns and the Need To Issue This Rule
    Eligible low-income households living in areas served by FDPIR may 
choose to participate in either FDPIR or SNAP. SNAP regulations offer 
an income deduction for excess shelter expenses and an income deduction 
for allowable monthly medical expenses in excess of $35 for households 
with elderly and/or disabled members. This final rulemaking responds to 
a resolution passed by the membership of the NAFDPIR in June 2009 that 
requested income deductions for home heating expenses and utilities, 
prescription medications, and other out-of-pocket medical expenses. The 
NAFDPIR resolution read that the FDPIR income eligibility criterion 
unfairly penalizes households whose net monthly income is determined to 
be over the income standard by as little as one dollar, while many of 
these households have monthly shelter, utility and/or medical expenses. 
NAFDPIR believes that some low-income households are forced to choose 
between paying for food and paying for heat and/or medicine.
    FNS also received numerous public comments in response to separate 
proposed rulemaking supporting elimination of the FDPIR resource test 
or alignment of FDPIR and SNAP policies. This final rulemaking responds 
to the concerns raised by commenters.
3. Extent to Which We Address Those Concerns
    The Department has considered the impact of this final rule on 
Indian Tribal Organizations and State agencies that administer FDPIR. 
The Department does not expect the provisions of this final rule to 
conflict with any State or local law, regulations, or policies. The 
overall effect of this final rule is to ensure that low-income 
households living on or near Indian reservations receive nutrition 
assistance.

F. 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 applications 
of its provisions, all applicable administrative procedures must be 
exhausted.

G. Civil Rights Impact Analysis

    The Department has reviewed this final 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. Consistent with 
current SNAP regulations, the provision to expand the current income 
deduction for Medicare Part B Medical Insurance and Part D Prescription 
Drug Coverage premiums to include other allowable monthly medical 
expenses in excess of $35 would apply only to households with elderly 
and/or disabled members, as defined at 7 CFR 253.2. However, after a 
careful review of the rule's intent and provisions, the Department has 
determined that this final rule will not in any way limit or reduce the 
ability of participants to receive the benefits of donated foods in 
food distribution programs on the basis of an individual's or group's 
race, color, national origin, sex, age, political beliefs, religious 
creed, or disability. The Department found no factors that would 
negatively affect any group of individuals.

H. 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. 
Information collections related to the provisions in this final rule 
are approved under OMB No. 0584-0293 (Expiration date: December 31, 
2014).
    This final rule would impact the reporting and recordkeeping burden 
for Indian Tribal Organizations and State agencies under OMB No. 0584-
0293 due to an expected change in number of households participating in 
FDPIR as a result of this rule and related changes to verification and 
household reporting requirements. Documentation supporting the 
eligibility of all participating households must be maintained by the 
Indian Tribal Organizations and State agencies.
    The approved information collection estimates under OMB No. 0584-
0293 are as follows:
    Estimated total annual burden: 1,079,172.92.
    Estimated annual recordkeeping burden: 746,400.42.
    Estimated annual reporting burden: 332,772.49.
    Changes resulting from this final rule would result in the 
following changes to OMB No. 0584-0293:
    Estimated total annual burden: 1,081,071.76.
    Estimated annual recordkeeping burden: 746,428.44.
    Estimated annual reporting burden: 334,643.32.
    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.

I. E-Government Act Compliance

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

J. Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that

[[Page 52831]]

have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    In late 2010 and early 2011, USDA engaged in a series of 
consultative sessions to obtain input by Tribal officials or their 
designees concerning the effect of this and other rules on Tribes or 
Indian Tribal governments, or whether this rule may preempt Tribal law. 
The Department provided an additional consultation session on February 
29, 2012, as part of its quarterly consultation meetings for FY 2012 
and discussed the proposed provisions of this rule with Tribal 
officials, their designees, and Tribal members. Reports from the 
consultative sessions will be made part of the USDA annual reporting on 
Tribal Consultation and Collaboration. USDA will offer future 
opportunities, such as webinars and teleconferences, for collaborative 
conversations with Tribal leaders and their representatives concerning 
ways to improve rules with regard to their affect on Indian country.
    We are unaware of any current Tribal laws that could be in conflict 
with the final rule.

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

0
1. The authority citation for part 253 continues to read as follows:

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


0
2. In Sec.  253.6:
0
a. Amend the heading of paragraph (c) introductory text by removing the 
words ``and resource'';
0
b. Amend paragraph (c)(1) by removing the words ``and resources'';
0
c. Amend paragraph (c)(2) by removing the words ``and resources'';
0
d. Remove paragraph (d) and redesignate paragraphs (e) and (f) as 
paragraphs (d) and (e), respectively;
0
e. In newly redesignated paragraph (d), redesignate paragraph 
(d)(2)(ii)(F) as paragraph (d)(2)(ii)(G), and add new paragraph 
(d)(2)(ii)(F);
0
f. Amend redesignated paragraph (d)(3)(viii) by removing the second 
sentence;
0
g. Add paragraph (d)(3)(xii);
0
h. Revise newly redesignated paragraph (e)(4) and add paragraph (e)(5).
    The revision and additions read as follows:


Sec.  253.6  Eligibility of households.

* * * * *
    (d) * * *
    (2) * * *
    (ii) * * *
    (F) Per capita payments that are derived from the profits of Tribal 
enterprises and distributed to Tribal members on a monthly basis.
* * * * *
    (3) * * *
    (xii) Per capita payments that are derived from the profits of 
Tribal enterprises and distributed to Tribal members less frequently 
than monthly (e.g., quarterly, semiannually or annually) are excluded 
from consideration as income.
* * * * *
    (e) * * *
    (4) Households must receive a medical deduction for that portion of 
medical expenses in excess of $35 per month, excluding special diets, 
incurred by any household member who is elderly or disabled as defined 
in Sec.  253.2 of this chapter. Spouses or other persons receiving 
benefits as a dependent of a Supplemental Security Income (SSI), or 
disability and blindness recipient are not eligible to receive this 
deduction; however, persons receiving emergency SSI benefits based on 
presumptive eligibility are eligible for this deduction. The allowable 
medical costs are those permitted at 7 CFR 273.9(d)(3) for the 
Supplemental Nutrition Assistance Program (SNAP).
    (5) Households that incur monthly shelter and utility expenses will 
receive a shelter/utility standard deduction, subject to the provisions 
below.
    (i) The household must incur, on a monthly basis, at least one 
allowable shelter/utility expense. The allowable shelter/utility 
expenses are those permitted at 7 CFR 273.9(d)(6)(ii) for SNAP.
    (ii) The shelter/utility standard deduction amounts are set by FNS 
on a regional basis. The standard deductions are adjusted annually to 
reflect changes to SNAP Quality Control data. FNS will advise the State 
agencies of the updates prior to October 1 of each year.
    (iii) If eligible to receive a shelter/utility standard deduction, 
the applicant household may opt to receive the appropriate deduction 
amount for the State in which the household resides or the State in 
which the State agency's central administrative office is located.

0
3. In Sec.  253.7:
0
a. Revise paragraph (a)(6)(i)(C);
0
b. Add paragraph (a)(6)(i)(D);
0
c. Revise paragraph (c)(1);
0
d. Remove paragraph (f)(2)(i) and redesignate paragraphs (f)(2)(ii) and 
(iii) as paragraphs (f)(2)(i) and (ii), respectively.
    The revisions and addition read as follows:


Sec.  253.7  Certification of households.

    (a) * * *
    (6) * * *
    (i) * * *
    (C) Excess medical expense deduction. The State agency must obtain 
verification for those medical expenses that the household wishes to 
deduct in accordance with 7 CFR 253.6(e)(4). The allowability of 
services provided (e.g., whether the billing health professional is a 
licensed practitioner authorized by State law or other qualified health 
professional) must be verified, if questionable. Only out-of-pocket 
expenses can be deducted. Expenses reimbursed to the household by an 
insurer are not deductible. The eligibility of the household to qualify 
for the deduction (i.e., the household includes a member who is elderly 
or disabled) must be verified, if questionable.
    (D) Standard shelter/utility deduction. A household must incur, on 
a monthly basis, at least one allowable shelter/utility expense in 
accordance with 7 CFR 253.6(e)(5)(i) to qualify for the standard 
shelter/utility deduction. The State agency must verify that the 
household incurs the expense.
* * * * *
    (c) * * *
    (1) The State agency must develop procedures for how changes in 
household circumstances are reported. Changes reported over the 
telephone or in person must be acted on in the same manner as those 
reported in writing. Participating households are required to report 
the following changes within 10 calendar days after the change becomes 
known to the household:
    (i) A change in household composition;
    (ii) An increase in gross monthly income of more than $100;
    (iii) A change in residence;
    (iv) When the household no longer incurs a shelter and utility 
expense; or
    (v) A change in the legal obligation to pay child support.
* * * * *


[[Page 52832]]


    Dated: August 19, 2013.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2013-20844 Filed 8-26-13; 8:45 am]
BILLING CODE 3410-30-P