[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3960]


[[Page Unknown]]

[Federal Register: February 23, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
20 CFR Part 416

RIN 0960-AB86

 

Supplemental Security Income For the Aged, Blind, and Disabled; 
Indian Judgment Funds and Per Capita Distributions

AGENCY : Social Security Administration, HHS.

ACTION : Final rules.

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SUMMARY: These final regulations update the lists of types of income 
and resources that are excluded under the supplemental security income 
(SSI) program by Federal laws other than the Social Security Act (the 
Act) by reflecting the provisions of Public Law 97-458, enacted January 
12, 1983, Public Law 98-64, enacted August 2, 1983, and Public Law 100-
241, enacted February 3, 1988. In addition, we are making two minor 
technical changes. The effects of these final regulations are, in 
certain cases, to provide additional exclusions from income and 
resources permitting eligibility for, or increases in the payment of, 
SSI benefits.

EFFECTIVE DATE: February 23, 1994.

FOR FURTHER INFORMATION CONTACT: Duane Heaton, Legal Assistant, 3-B-1 
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235, 
(410) 965-8470.

SUPPLEMENTARY INFORMATION:

Background:

Public Law 97-458

    Public Law 97-458 was enacted January 12, 1983. Section 4 of this 
legislation provides that certain Indian judgment funds held in trust 
by the Secretary of the Interior or distributed per capita pursuant to 
a plan prepared by the Secretary of the Interior and not disapproved by 
a joint resolution of the Congress are excluded from income and 
resources under the SSI program. Indian judgment funds include interest 
and investment income accrued while the funds are held in trust. The 
exclusion extends to initial purchases made with Indian judgment funds. 
The exclusion does not apply to the proceeds from sales or conversions 
of initial purchases or to subsequent purchases made with funds derived 
from sales or conversions of originally excluded purchases, because 
Congress sought to protect only the distributions made by the Secretary 
of the Interior.
    Section 4 of Public Law 97-458 also excludes from resources any 
interests of Indians in trust or restricted Indian lands. Our current 
regulations address only those lands that such individuals may possess. 
These final regulations now also exclude from resources nonpossessory 
interests in such lands.

Public Law 98-64

    Public Law 98-64 was enacted August 2, 1983. This legislation 
excludes all funds held in trust by the Secretary of the Interior for 
an Indian tribe and distributed on a per capita basis from income and 
resources for SSI purposes.
    The Social Security Administration (SSA) sought advice from the 
Department of the Interior on the issue of whether Alaska Native 
Regional and Village Corporation (ANRVC) dividends not excluded under 
the Alaska Native Claims Settlement Act (ANCSA) could be excluded under 
Public Law 98-64. SSA issued interim instructions directing that ANRVC 
dividend distributions paid on or after August 2, 1983, whether or not 
excluded under ANCSA, would be excluded for SSI purposes pending 
resolution of the issue.
    The Department of the Interior has since advised SSA that funds 
held by ANRVCs are not ``funds held in trust by the Secretary of the 
Interior'' within the purview of Public Law 98-64. We therefore 
concluded that these ANRVC dividend distributions could not qualify for 
exclusion for SSI purposes under that law.

Public Law 100-241

    A new law, Public Law 100-241, was enacted on February 3, 1988. 
Under this law, none of the following, received from a Native 
Corporation, is considered income or resources of an individual Alaska 
Native or a descendant of an Alaska Native: cash (including cash 
dividends on stock received from a Native Corporation) to the extent 
that it does not, in the aggregate, exceed $2,000 per individual per 
year (the exclusions are applied each year to the amount received in 
such year); stock (including stock issued or distributed by a Native 
Corporation as a dividend or distribution on stock); a partnership 
interest; land or an interest in land (including land or an interest in 
land received from a Native Corporation as a dividend or distribution 
on stock); and an interest in a settlement trust.
    Public Law 100-241 specifically provides that cash received from a 
Native Corporation (including cash dividends on stock received from a 
Native Corporation), to the extent that it does not, in the aggregate, 
exceed $2,000 per individual per year, shall not be considered or taken 
into account as an asset or resource. Although this statutory provision 
does not explicitly mention ``income,'' the legislative history clearly 
shows that such cash should not be considered a resource or ``otherwise 
utilized in determining eligibility.'' H.R. Rep. No. 31, 100th Cong., 
1st Sess. 20 (1987). This language seems to require the exclusion of 
the distributions from income as well as resources, to the extent that 
they do not, in the aggregate, exceed $2,000 per individual per year in 
determining eligibility and payment amount. To exclude a portion of the 
distributions only from resources would result in benefit reductions or 
ineligibility in months in which the distributions are received and 
would be contrary to congressional intent. Therefore, we have changed 
the income provisions of the appendix to subpart K to reflect the 
exclusion.
    In accordance with Public Law 100-241, we exclude ANRVC cash 
(including cash dividends on stock received from a Native Corporation) 
to the extent that this ANRVC cash does not, in the aggregate, exceed 
$2,000 per individual per year. With respect to resources, we apply the 
exclusion to each calendar year without regard to the prior year, so 
that retained cash not exceeding $2,000 which an individual received 
from a Native Corporation in a prior year will not be counted in a 
subsequent year. This interpretation is consistent with the policy of 
the Aid to Families with Dependent Children program. Any retained cash 
exceeding $2,000 per year will be counted toward the SSI resource 
limit.

Regulations Changes

    The appendix to subpart K lists the types of income that are 
excluded under the SSI program by Federal laws other than the Act and 
explains how exclusions provided by other Federal statutes apply to 
income deemed from a sponsor to an alien. We are amending the appendix 
to subpart K, IV. Native Americans, on the basis of the legislation 
discussed above by revising paragraph (a), deleting paragraph (b)(4), 
redesignating paragraphs (b)(5) through (b)(13) as (b)(4) through 
(b)(12), and adding new paragraphs (g) and (h). In addition, paragraphs 
(g) and (h) provide that the exclusion applies to the sponsor's income 
only if the alien lives with the sponsor, because the statute 
authorizing the exclusions applies only to benefits to which the 
household or member of the household would be eligible.
    Similarly, we are amending subpart L of the regulations, which 
deals with resources and exclusion of resources under the SSI program, 
to reflect the above legislation. Specifically, we are amending 
Sec. 416.1234 regarding exclusion of Indian lands and, Sec. 416.1236, 
which encompasses resource exclusions provided by other statutes.

Public Comment

    A Notice of Proposed Rulemaking (NPRM) was published on July 27, 
1992 (57 FR 33137). A 60-day comment period was provided. The comment 
period ended September 25, 1992. We received 9 comments. The comments 
generally supported the NPRM. We have summarized and responded to the 
issues raised in the comments below.
    Comment: Seven commenters expressed concern that the Secretary of 
Health and Human Services (the Secretary) might begin to apply a $2,000 
annual limit to all exclusions of Indian judgment funds and per capita 
distributions. They stated that the proposed regulations were unclear 
as to whether ANCSA, as amended by Public Law 100-241, might adversely 
affect the SSI benefits of Native Americans other than Alaska natives.
    Response: ANCSA provides for the exclusion of ANRVC cash to the 
extent that it does not, in the aggregate, exceed $2,000 per individual 
per year. The provisions of ANCSA apply only to ANRVC distributions to 
Alaska Natives. We believe this is clearly explained in the amended 
regulations at paragraph IV(a) of the appendix to subpart K and at 
Sec. 416.1236(a)(10). In accordance with Public Law 97-458 and Public 
Law 98-64, the Secretary totally excludes all judgment fund and per 
capita distributions made pursuant to those public laws.
    Comment: One commenter asked why the proposed regulations did not 
refer to a $2,000 limit for per capita distributions to Indian tribal 
members other than Alaska Natives, because Public Law 97-458 appears to 
include such a limit. Five commenters suggested that instead of 
applying a $2,000 annual limit on Indian judgment fund and per capita 
distributions, the Secretary should apply a $2,000 per payment limit, 
in accordance with Public Law 97-458 and Public Law 98-64. 
Consequently, only Indian judgment funds or per capita distributions in 
excess of $2,000 per payment would be countable for SSI purposes.
    Response: There appears to be some confusion over whether, as a 
result of the proposed regulations, SSA would or could begin to apply a 
$2,000 exclusion limit to other than ANSCA distributions. SSA never 
intended to apply a $2,000 limit to such other distributions and these 
final regulations clearly do not do so.
    Public Law 97-458 provides that any Federal or federally assisted 
program, other than Social Security Act programs, shall not consider 
Indian judgment funds except for per capita shares in excess of $2,000, 
as income or resources. However, the statute does not limit the amount 
of payments that can be excluded under the Social Security Act 
programs. Public Law 98-64 does not provide a $2,000 limit on exclusion 
of funds covered by that statute.
    Accordingly, for SSI purposes the Secretary excludes from income 
and resources all judgment fund and per capita distributions made under 
Public Law 97-458 and Public Law 98-64.
    Comment: One commenter proposed that foster care payments paid to 
tribal members to help defray the costs of basic needs, and that 
General Assistance payments from the Bureau of Indian Affairs be 
excluded from income and resources under the SSI program.
    Response: We believe that the exclusions proposed by the commenter 
would require the enactment of new legislation. Accordingly, in the 
absence of such authority, we have not revised the regulations to 
incorporate such exclusions.
    Comment: One commenter suggested that the proposed regulations not 
limit the exclusion of purchases contained in Pub. L. 97-458 to initial 
purchases made with Indian judgment funds and per capita distributions, 
because that law refers to ``* * * any purchases made with such funds * 
* *''
    Response: The exclusion of purchases in Pub. L. 97-458 does not 
apply to proceeds from the sales or conversions of initial purchases or 
to purchases made with the money derived from the sales or conversions 
of initial purchases. As indicated earlier in this preamble, this 
policy reflects Congressional intent to protect only the distributions 
made by the Secretary of the Interior. Any purchases made subsequent to 
initial purchases would not be made from distributions made by the 
Secretary of the Interior. Furthermore, tracking the funds beyond the 
initial purchase would be administratively difficult, if not 
impossible.
    Comment: One commenter suggested that the Secretary correct a 
conflict between Sec. 416.1210(i) and Sec. 416.1234 as proposed. 
Section 416.1210 provides a list of resource exclusions with 
corresponding regulatory citations. Specifically, Sec. 416.1210(i), 
states that the resource exclusion of restricted allotted land applies 
to ``an enrolled member of an Indian tribe as provided in 
Sec. 416.1234.'' Section 416.1234 states that the exclusion applies to 
``an individual * * * who is of Indian descent from a federally 
recognized Indian tribe,'' and does not limit its exclusion to an 
enrolled member of an Indian tribe.
    Response: We agree that Sec. 416.1210(i) may appear to be in 
conflict with Sec. 416.1234. Although a change to correct this possible 
inconsistency was not included in the NPRM, we believe a technical 
change to correct our oversight and make our intent clear is 
appropriate. Therefore, we are making a technical change to the 
regulations at Sec. 416.1210(i) to read, ``Restricted allotted Indian 
lands as provided in Sec. 416.1234;'' to provide a simplified and more 
accurate cross-reference.

Other Regulations Changes

    The provisions of Public Law 98-64 regarding the exclusion of 
certain funds from income are reflected in the appendix to Subpart K, 
IV. Native Americans, by the addition of paragraph (h) to these final 
regulations. This obviates the need for continuance of paragraph (c)(3) 
which only partially reflects the income exclusion provisions of Public 
Law 98-64. Paragraph (c)(3) is duplicative and no longer needed. 
Therefore, we are making a technical change to the regulations by 
deleting paragraph (c)(3).
    Except for the technical change in response to an issue raised by a 
public comment and the technical change to remove a duplicative 
provision, we are adopting these regulations as proposed.

Regulatory Procedures

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis as provided in Public Law 96-354, the 
Regulatory Flexibility Act, is not required.

Paperwork Reduction Act of 1980

    These regulations impose no additional reporting and recordkeeping 
requirements necessitating clearance by the Office of Management and 
Budget.

(Catalog of Federal Domestic Assistance: Program No. 93.807--
Supplemental Security Income)

List of Subjects in 20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income.

    Dated: November 19, 1993.
Shirley Chater,
Commissioner of Social Security.
    Approved: February 8, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.

    Part 416 of title 20 of the Code of Federal Regulations is amended 
as follows:
    1. The authority citation for Subpart K of Part 416 continues to 
read as follows:

    Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66, 
87 Stat. 154.

    2. In the appendix following subpart K of part 416, under the 
heading IV. Native Americans, the text preceding the note in paragraph 
(a) is revised, paragraph (b)(4) and the note following it are removed, 
paragraphs (b)(5) through (b)(13) are redesignated (b)(4) through 
(b)(12) respectively, paragraph (c)(1) is amended by adding the word 
``and'' after the semicolon, paragraph (c)(2) is amended by removing 
the semicolon and the word ``and'' and adding a period, paragraph 
(c)(3) is removed, and new paragraphs (g) and (h) are added to read as 
follows:
Appendix to Subpart K of Part 416--List of Types of Income Excluded 
Under the SSI Program as Provided by Federal Laws Other Than the Social 
Security Act
* * * * *

IV. Native Americans

    (a) Distributions received by an individual Alaska Native or 
descendant of an Alaska Native from an Alaska Native Regional and 
Village Corporation pursuant to the Alaska Native Claims Settlement 
Act, as follows: cash, including cash dividends on stock received from 
a Native Corporation, to the extent that it does not, in the aggregate, 
exceed $2,000 per individual each year; stock, including stock issued 
or distributed by a Native Corporation as a dividend or distribution on 
stock; a partnership interest; land or an interest in land, including 
land or an interest in land received from a Native Corporation as a 
dividend or distribution on stock; and an interest in a settlement 
trust. This exclusion is pursuant to section 15 of the Alaska Native 
Claims Settlement Act Amendments of 1987, Public Law 100-241 (43 U.S.C. 
1626(c)), effective February 3, 1988.
* * * * *
    (g) Indian judgment funds that are held in trust by the Secretary 
of the Interior or distributed per capita pursuant to a plan prepared 
by the Secretary of the Interior and not disapproved by a joint 
resolution of the Congress under Public Law 93-134 as amended by Public 
Law 97-458 (25 U.S.C. 1407). Indian judgment funds include interest and 
investment income accrued while such funds are so held in trust. This 
exclusion extends to initial purchases made with Indian judgment funds. 
This exclusion does not apply to sales or conversions of initial 
purchases or to subsequent purchases.

    Note--This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (h) All funds held in trust by the Secretary of the Interior for an 
Indian tribe and distributed per capita to a member of that tribe are 
excluded from income under Public Law 98-64 (25 U.S.C. 117b). Funds 
held by Alaska Native Regional and Village Corporations (ANRVC) are not 
held in trust by the Secretary of the Interior and therefore ANRVC 
dividend distributions are not excluded from countable income under 
this exclusion. For ANRVC dividend distributions, see paragraph IV(a) 
of this Appendix.

    Note--This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    3. The authority citation for subpart L of part 416 continues to 
read as follows:

    Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66, 
87 Stat. 154.

    4. Section 416.1210(i) is revised to read as follows:


Sec. 416.1210  Exclusions from resources; general.

* * * * *
    (i) Restricted allotted Indian lands as provided in Sec. 416.1234;
* * * * *
    5. Section 416.1234 is revised to read as follows:


Sec. 416.1234  Exclusion of Indian lands.

    In determining the resources of an individual (and spouse, if any) 
who is of Indian descent from a federally recognized Indian tribe, we 
will exclude any interest of the individual (or spouse, if any) in land 
which is held in trust by the United States for an individual Indian or 
tribe, or which is held by an individual Indian or tribe and which can 
only be sold, transferred, or otherwise disposed of with the approval 
of other individuals, his or her tribe, or an agency of the Federal 
Government.
    6. In Sec. 416.1236, paragraphs (a)(3) and (a)(10) are revised and 
paragraph (a)(12) is added to read as follows:


Sec. 416.1236  Exclusions from resources; provided by other statutes.

    (a) * * *
    (3) Indian judgment funds held in trust by the Secretary of the 
Interior or distributed per capita pursuant to a plan prepared by the 
Secretary of the Interior and not disapproved by a joint resolution of 
the Congress under Public Law 93-134, as amended by Public Law 97-458 
(25 U.S.C. 1407). Indian judgment funds include interest and investment 
income accrued while the funds are so held in trust. This exclusion 
extends to initial purchases made with Indian judgment funds. This 
exclusion will not apply to proceeds from sales or conversions of 
initial purchases or to subsequent purchases.
* * * * *
    (10) Distributions received by an individual Alaska Native or 
descendant of an Alaska Native from an Alaska Native Regional and 
Village Corporation pursuant to the Alaska Native Claims Settlement 
Act, as follows: cash, including cash dividends on stock received from 
a Native Corporation, is disregarded to the extent that it does not, in 
the aggregate, exceed $2,000 per individual each year (the $2,000 limit 
is applied separately each year, and cash distributions up to $2,000 
which an individual received in a prior year and retained into 
subsequent years will not be counted as resources in those years); 
stock, including stock issued or distributed by a Native Corporation as 
a dividend or distribution on stock; a partnership interest; land or an 
interest in land, including land or an interest in land received from a 
Native Corporation as a dividend or distribution on stock; and an 
interest in a settlement trust. This exclusion is pursuant to the 
exclusion under section 15 of the Alaska Native Claims Settlement Act 
Amendments of 1987, Public Law 100-241 (43 U.S.C. 1626(c)), effective 
February 3, 1988.
* * * * *
    (12) All funds held in trust by the Secretary of the Interior for 
an Indian tribe and distributed per capita to a member of that tribe 
under Public Law 98-64. Funds held by Alaska Native Regional and 
Village Corporations (ANRVC) are not held in trust by the Secretary of 
the Interior and therefore ANRVC dividend distributions are not 
excluded from resources under this exclusion. For treatment of ANRVC 
dividend distributions, see paragraph IV(a)(10) of this appendix.
* * * * *
[FR Doc. 94-3960 Filed 2-22-94; 8:45 am]
BILLING CODE 4190-29-P