[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-574]


  Federal Register / Vol. 59, No. 7 / Tuesday, January 11, 1994 /
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[[Page Unknown]]

[Federal Register: January 11, 1994]


                                                     VOL. 59, NO. 7

                                          Tuesday, January 11, 1994
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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 253 and 254

RIN Number 0584-AB67

 

Definition of ``Indian Tribal Household''

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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SUMMARY: This interim rule broadens the current regulatory definition 
of ``Indian tribal household'' in the Food Distribution Program on 
Indian Reservations (FDPIR) and the Food Distribution Program for 
Indian Households in Oklahoma (FDPIHO). First, this change mandates 
that all households which pass the program means test, reside in 
designated areas near a reservation where an Indian Tribal Organization 
(ITO) or State agency provides program services, and include a Native 
American be eligible to participate in the FDPIR, regardless of the 
Native American's tribal affiliation or age. Secondly, it also makes 
such households which lack a Native American adult, but which include 
Native American children, eligible to participate in the FDPIHO. 
Finally, this rule clarifies that all households which pass the program 
means test and live on a reservation where an ITO or State agency 
administers the FDPIR, are eligible to receive benefits regardless of 
whether they contain a Native American.

DATES: This interim rule becomes effective February 10, 1994. Comments 
must be received on or before March 14, 1994.

ADDRESSES: Comments should be sent to Philip K. Cohen, Chief, Program 
Administration Branch, Food Distribution Division, Food and Nutrition 
Service, U.S. Department of Agriculture, 3101 Park Center Drive, room 
502, Alexandria, Virginia 22302-1594, telephone (703) 305-2662.

FOR FURTHER INFORMATION CONTACT: Philip K. Cohen, Chief, Program 
Administration Branch, Food Distribution Division, Food and Nutrition 
Service, U.S. Department of Agriculture, 3101 Park Center Drive, room 
502, Alexandria, Virginia 22302-1594, telephone (703) 305-2662.

SUPPLEMENTARY INFORMATION:

Classification

Executive Order 12866

    This interim rule is issued in conformance with E.O. 12866.

Regulatory Flexibility Act

    This action has been reviewed with regard to the requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601-12). Ellen Haas, Assistant 
Secretary for Food and Consumer Services, has certified that this 
interim rule will not have a significant economic impact on a 
substantial number of small entities. Since this rule will not result 
in significant changes in participation for the Food Distribution 
Program on Indian Reservations and the Food Distribution Program for 
Indian Households in Oklahoma, the impact on Indian Tribal 
Organizations and State agencies which participate in these programs 
will be minimal.

Executive Order 12372

    The programs addressed in this action are listed in the Catalog of 
Federal Domestic Assistance under 10.550 and 10.570 and are subject to 
the provisions of Executive Order 12372, which requires 
intergovernmental consultation with state and local officials (7 CFR 
part 3015, subpart V, and final rule-related notice published June 24, 
1983 (48 FR 29114)).

Paperwork Reduction Act

    This interim rulemaking imposes no new reporting or recordkeeping 
provisions that are subject to Office of Management and Budget review 
in accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3501-
3520).

Executive Order 12778

    This interim rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This rule is intended to have preemptive effect 
with respect to any state or local laws, regulations, or policies which 
conflict with its provisions or which would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect 
unless so specified in the Effective Date section of the preamble. 
Prior to any judicial challenge to the provisions of this rule or the 
application of the provisions, all applicable administrative procedures 
must be exhausted. This includes any administrative procedures provided 
by state or local governments. For disputes involving procurements by 
State agencies or Indian Tribal Organizations, this includes any 
administrative appeal procedures to the extent required by 7 CFR 
253.5(l), 7 CFR 254.3(a), and 7 CFR part 3016.
    The rule published on October 20, 1987 (52 FR 39158), proposed to 
authorize ITOs and State agencies to serve income-eligible households 
residing in near areas which contain an Indian tribal member, 
regardless of that person's tribal affiliation. This interim rule will 
mandate that all such households be provided program benefits upon 
application. Because the Department believes that permitting ITOs and 
State agencies to exclude these Native Americans from program 
participation simply because they do not live on a reservation or near 
their tribe's reservation is inequitable and counter to the intent of 
FDPIR, the Administrator of FNS has determined that prior notice and 
comment on this provision of this rule would be unnecessary and 
contrary to public interest. For this reason, the Administrator has 
determined, in accordance with 5 U.S.C. 553(b)(3)(B), that good cause 
exists to waive the solicitation of public comments prior to 
implementation. However, the Department believes this rule may be 
improved by public comment based on actual operating experience. 
Therefore, comments solicited on this rule must be postmarked or 
submitted on or before March 14, 1994. All comments will be analyzed, 
and any appropriate changes to the rule will be incorporated in the 
subsequent publication of a final rule.

Background

    The Food Distribution Program on Indian Reservations (FDPIR) was 
established by section 4(b) of the Food Stamp Act of 1977, as amended 
(7 U.S.C. 2013(b)), as an alternative to food stamps for low-income 
Native Americans who, because they live on or near Indian reservations 
in sparsely populated areas, may not have convenient access to food 
stamp certification offices or authorized food stamp retailers. 
However, the current regulatory definition of ``Indian tribal 
household'' at 7 CFR 253.2(c) and 254.2(d) renders ineligible certain 
categories of such Native Americans.
    The first category is comprised of households which lack a Native 
American adult, but which include Native American children. Although 
such households do not exist in large numbers, they reside in many of 
the areas adjacent to reservations (i.e., ``near areas'') which Indian 
Tribal Organizations or State agencies have chosen to serve. Native 
American children may be part of a household that lacks a Native 
American adult due, for example, to death of a parent or divorce. Also, 
Native American children may be living with non-Native American foster 
or adoptive parents. These children are not necessarily in any less 
need of the program than children living with Native American adults in 
near areas, who may participate. The definition of ``Indian tribal 
household'' in the FDPIR at 7 CFR 253.2(c) requires that all households 
residing in a near area have an adult Indian tribal member in order to 
participate. The definition in the FDPIHO at 7 CFR 254.2(d) also 
requires that all households have an adult Indian member in order to 
participate. Thus, Native American children in otherwise eligible 
households are denied access to both of these programs.
    The second category excluded from participating applies only to 
FDPIR: Native American households, residing in near areas, which lack a 
member of a tribe that is represented by the ITO or State agency 
administering the program on the adjacent reservation. The definition 
of ``Indian tribal household'' at 7 CFR 253.2(c) excludes such 
households, in effect, due to the combination of their tribal 
affiliation and where they reside. They could be eligible if they lived 
on the reservation in question, or on or near the reservation of the 
tribe of which they are a member. The Department believes that 
exclusion of these Native Americans from program participation simply 
because they do not live on a reservation or near their tribe's 
reservation, is inequitable and counter to the intent of FDPIR. Their 
Native American identity and potential need for the program are in no 
way diminished by their current residence. In contrast, Native American 
tribal households residing in any program service area in Oklahoma may 
participate in FDPIHO regardless of their tribal affiliation.
    In Sec. 253.2(e) of the proposed rule published on October 20, 1987 
(52 FR 39158), the Department proposed to amend the FDPIR definition of 
``Indian tribal household'' to give ITOs and State agencies the option 
to serve a household which lacks a member of a tribe they represent, 
but which includes a member of another recognized Indian tribe. All 16 
comments received on this proposed change supported it. During its 1992 
annual meeting, the National Association of Food Distribution Programs 
on Indian Reservations (NAFDPIR) also supported the proposal. In 
resolution 92-7, NAFDPIR supported the broadening of the current 
definition of ``Indian tribal household'' to include ``any household in 
which at least one household member is recognized as an Indian.'' 
NAFDPIR believes that all Native Americans in near areas should be 
eligible to participate regardless of their tribal affiliation as has 
always been the case in FDPIHO service areas. The language in the 
proposed rule addressing this issue is therefore implemented in this 
interim rule with two clarifications.
    First, the definition of ``Indian tribal household'' in 
Sec. 253.2(c) is revised by changing ``recognized by the appropriate 
ITO as a tribal member'' to ``recognized as a tribal member by any 
Indian tribe as defined in this part.'' This change in definition would 
make those households containing a member of an ``Indian tribe'' as 
defined in Section 253.2(d) eligible to apply for FDPIR without regard 
to whether the person is a member of a tribe represented by the ITO or 
State agency administering the program in the near area. Thus, based on 
the definition of ``Indian tribe,'' any household containing a person 
belonging to any Indian tribe, band, or other organized Indian group on 
a reservation which is recognized as eligible for Federal programs and 
services provided to Indians, or which holds a treaty with a State 
government, would be eligible to receive FDPIR benefits if he/she also 
meets the income eligibility requirements. This same amendment is made 
to the definition of ``Indian tribal household'' in Sec. 254.2(d) of 
the FDPIHO regulations. However, in the FDPIHO, income-eligible Native 
American households residing in any program service area in the State 
have always been permitted to participate regardless of their tribal 
affiliation. Therefore, this amendment as applied to FDPIHO constitutes 
a clarification only and not, as in the case of the FDPIR, a 
substantive change which affects program eligibility.
    Second, Sec. 253.6(b)(1) is changed to clarify that all households 
which pass the program means test, reside in near areas and include a 
Native American must be allowed to participate in the FDPIR, regardless 
of the Native American's specific tribal affiliation. Thus, if a 
household member can obtain documentation from his/her tribe of origin 
that he/she is recognized as a member of an ``Indian tribe'' as defined 
in Sec. 253.2(d), the ITO or State agency administering the program in 
the near area must accept that recognition for purposes of program 
eligibility. The ITO or State agency itself has no discretion to decide 
which tribes it will recognize in the near area. It should be pointed 
out that the ITO or State agency also has no discretion to decide 
issues of tribal membership since each Indian tribe has always been 
responsible for defining its own members. Thus, for eligibility 
purposes, the ITO or State agency simply makes a determination as to 
whether or not an applicant household has official documentation of 
membership from its tribe of origin. If the tribe of origin is an 
``Indian tribe,'' as defined in Sec. 253.2(d), the ITO or State agency 
must serve the household as long as it meets all other FDPIR 
eligibility requirements.
    The October 20, 1987, proposed rule did not clearly propose to 
mandate that all households with Indian tribal members be eligible for 
program benefits in near areas. Rather, its thrust was to remove a 
regulatory barrier to participation of such households. Thus the 
language authorized ITOs and State agencies to serve such households. 
Upon further consideration of the issue, the Department has concluded 
that ITOs or State agencies themselves should not be in a position to 
impose barriers to participation based on the tribal affiliation of a 
member of a household residing in a near area. Therefore, this interim 
rule mandates that such households be served under the program if they 
are determined income-eligible, rather than permitting the 
administering agency to serve them at its discretion. Given the shift 
from allowing such households to be served in the proposed rule to 
mandating that they be served, the Department is publishing this rule 
as an interim regulation with provision for public comment.
    Current FDPIR regulations do not clearly state that non-Native 
American households living on the reservation who meet the program 
means test are eligible to receive program benefits, although this has 
always been the policy under which FDPIR has operated on all 
participating reservations. While the 1987 proposed rule did not 
specifically address this issue, this interim rule does so in order to 
formalize and clarify what has always been household eligibility policy 
and practice. Therefore, Sec. 253.6(b)(1) is revised to clarify that 
all households living on the reservation, and meeting the program means 
test, are eligible to receive program benefits, even if they do not 
contain a Native American.
    The 1987 proposed rule did not specifically propose to remove the 
FDPIR requirement that households living in a near area must include an 
adult Native American in order to be eligible for participation in 
FDPIR. However, in the preamble, the Department indicated that this 
suggestion had been made, summarized the reason for such a change, and 
solicited comments to determine how extensive this problem is and 
whether others believe that a change in the definition is necessary. 
Nineteen of the 20 comments received in response to this solicitation 
supported removal of the requirement. Accordingly, the definition of 
``Indian tribal household'' in FDPIR at 7 CFR 253.2(c) in the interim 
rule reads as follows: ``a household in which at least one household 
member is recognized as a tribal member by any Indian tribe, as defined 
in this part.'' This same amendment is also made to the definition of 
``Indian tribal household'' at 7 CFR 254.2(d). Since the requirement 
that the household include an adult Native American in order to be 
eligible also exists in FDPIHO, the change will have the same remedial 
effect in this program.

List of Subjects

7 CFR Part 253

    Administrative practice and procedure, Food assistance programs, 
Grant programs, Social programs, Indians, Reporting and recordkeeping 
requirements, Surplus agricultural commodities.

7 CFR Part 254

    Administrative practice and procedure, Food assistance programs, 
Grant programs, Social programs, Indians, Reporting and recordkeeping 
requirements, Surplus agricultural commodities.

    Accordingly, 7 CFR parts 253 and 254 are 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. 2011-2027).

    2. In Section 253.2, paragraph (c) is revised to read as follows:


Sec. 253.2  Definitions.

* * * * *
    (c) Indian tribal household means a household in which at least one 
household member is recognized as a tribal member by any Indian tribe, 
as defined in paragraph (d) of this section.
* * * * *
    3. In Sec. 253.6, the first sentence of paragraph (b)(1) is removed 
and four new sentences are added to read as follows:


Sec. 253.6  Eligibility of households.

* * * * *
    (b) * * * (1) All households residing on a reservation on which the 
FDPIR operates shall be eligible to apply for program benefits on that 
reservation regardless of whether they include an Indian member. All 
Indian tribal households as defined in Sec. 253.2(c) of this part which 
reside in near areas established under Sec. 253.4(d) of this part shall 
be eligible to apply for program benefits. The ITO or State agency 
shall serve all income-eligible applicant households residing on 
reservations who apply for benefits, and all income-eligible applicant 
Indian tribal households residing in near areas. The ITO or State 
agency administering the program in a near area shall, for purposes of 
determining program eligibility, accept documentation from a household 
member's tribe of origin as proof of tribal membership. * * *
* * * * *

PART 254-ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR INDIAN 
HOUSEHOLDS IN OKLAHOMA

    1. The authority citation for part 254 continues to read as 
follows:

    Authority: Pub.L. 97-98, sec. 1338; Pub.L. 95-113.

    2. In Sec. 254.2, paragraph (d) is revised to read as follows:


Sec. 254.2  Definitions.

* * * * *
    (d) Indian tribal household means a household in which at least one 
household member is recognized as a tribal member by any Indian tribe, 
as defined in Sec. 253.2(d) of this title.
* * * * *
    Dated: January 4, 1994.
George Braley,
Acting Administrator.
[FR Doc. 94-574 Filed 1-10-94; 8:45 am]
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