[Federal Register Volume 85, Number 135 (Tuesday, July 14, 2020)]
[Rules and Regulations]
[Pages 42300-42303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15047]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 253

[FNS-2019-0048]
RIN 0584-AE78


Food Distribution Program on Indian Reservations: Two-Year 
Administrative Funding Availability and Substantial Burden Waiver 
Signatory Requirement

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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SUMMARY: Through this rulemaking, the U.S. Department of Agriculture's 
(the Department or USDA) Food and Nutrition Service (FNS) is codifying 
a revised statutory requirement included in the Agriculture Improvement 
Act of 2018. The 2018 Farm Bill at section 4003 requires FDPIR 
administrative funds to remain available for obligation at the Indian 
Tribal Organization (ITO) and State agency level for a period of two 
Federal fiscal years. This provision was self-executing and went into 
effect upon enactment of the 2018 Farm Bill in Federal fiscal year (FY) 
2019. This final rulemaking will also amend the Department's previous 
implementation of the 2018 Farm Bill provision on the administrative 
match waiver requirement based on substantial burden.

DATES: This rule is effective July 14, 2020.

FOR FURTHER INFORMATION CONTACT: Barbara Lopez, Program Analyst, Food 
Distribution Division, Food and Nutrition Service, U.S. Department of 
Agriculture, 1320 Braddock Place, Alexandria, Virginia 22314 or email 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Discussion of Final Rule
II. Two-Year Administrative Funding Availability
    A. Background
    B. Implementation Memorandum
    C. Regulatory Changes to Two-Year Availability of Administrative 
Funding
III. Revision of State Agency/ITO Administrative Match Waiver 
Requirements
    A. Background
    B. Comment Analysis and Regulatory Change
IV. Procedural Matters

I. Discussion of Final Rule

    In the following discussion and regulatory text, the term ``State 
agency,'' as defined at 7 CFR 253.2, is used to include ITOs authorized 
to administer FDPIR and the Food Distribution Program for Indian 
Households in Oklahoma (FDPIHO) in accordance with 7 CFR parts 253 and 
254. The term ``FDPIR'' is used in this rulemaking to refer 
collectively to FDPIR and FDPIHO.
    On December 20, 2018, the 2018 Farm Bill was signed into law. 
Section 4003 of the 2018 Farm Bill included FDPIR-specific provisions 
and modified Section 4(b) of the Food and Nutrition Act (FNA) (7 U.S.C. 
2013(b)). This rule codifies the statutory requirement included in 
Section 4003(a)(3), which modifies Section 4(b)(7) of the FNA (7 U.S.C. 
2013(b)(7)) to allow FDPIR administrative funds to remain available for 
obligation by the State agency for a period of two Federal fiscal 
years. Previously, funds made available to State agencies for the 
administration of FDPIR remained available for obligation for only one 
Federal fiscal year. This rule revises Federal regulation at 7 CFR 
253.11(i) to conform to Section 4003(a)(3) of the 2018 Farm Bill. This 
provision is non-discretionary; accordingly, the Department is issuing 
this rule as a final rule and is not taking comments.
    Section 4003 of the 2018 Farm Bill also modified Section 4(b)(4) of 
the FNA (7 U.S.C. 2013(b)(4)) to allow State agencies/ITOs to qualify 
for an administrative funding match waiver if their required match 
share would be a substantial burden. This provision was added to 
Federal regulations through a previous final rule with request for 
comments, Food Distribution Program on Indian Reservations: Revisions 
to the Administrative Match Requirement (84

[[Page 42301]]

FR 45873), published on September 3, 2019. In response to comments 
received, this rulemaking will revise FDPIR regulations at 7 CFR 
253.11(c)(2)(ii) to change the level of signatory required on the 
letter that an ITO submits to FNS to request the waiver of the 
administrative funding match requirement based on substantial burden. 
The modification in the signatory requirements for the substantial 
burden waiver evolved from comments received in prior rulemaking (84 FR 
45873). The provision has already been open to public comment; 
therefore, the Department is issuing this change in a final rule and is 
not taking comments.
    The Administrative Procedures Act (APA) at 5 U.S.C. 553(a)(2) 
specifically exempts rules involving grants and benefits from notice-
and-comment requirements, giving the Department the authority to issue 
final rules in grants and benefits programs, like FDPIR.

II. Two-Year Administrative Funding Availability

A. Background

    Prior to FY 2017, FDPIR administrative funds had a period of 
availability of only one Federal fiscal year. Beginning in FY 2017, FNS 
received authority in the Consolidated Appropriations Act, 2017 (Pub. 
L. 115-31), and in appropriation bills thereafter, to allow FDPIR 
administrative funds to remain available for obligation at the Federal 
level for a period of two Federal fiscal years. This authority allowed 
FNS to retain any unobligated or unliquidated FDPIR administrative 
funds after one Federal fiscal year. Instead of returning funds to the 
U.S. Treasury Department, FNS could reallocate those funds to State 
agencies in the following Federal fiscal year. This authority did not 
allow State agencies to retain the funds without interruption. Federal 
regulations, consistent with statutory requirements, required State 
agencies to obligate administrative funds by September 30 of each 
Federal fiscal year and liquidate those funds within 90 days following 
the close of the Federal fiscal year (e.g., by December 30). This 
resulted in delays in accessing any un-liquidated funds at the State 
agency level in the second Federal fiscal year since those funds, per 
federal regulation, had to be returned to FNS first.
    The 2018 Farm Bill made a statutory change to allow FDPIR 
administrative funds to remain with the State agency for a period of 
two Federal fiscal years. This statutory change improves program 
administration by allowing for a longer period of time in which funds 
can be obligated and expended, allowing FDPIR program administrators to 
plan operations and use funds more flexibly and effectively.

B. Implementation Memorandum

    The 2018 Farm Bill was signed into law during the FY 2019 FDPIR 
budget cycle. The Department determined that prolonging the 
implementation of this provision would negatively impact State agencies 
that administer the FDPIR by delaying their ability to utilize the new 
flexibility of retaining FDPIR administrative funds across two Federal 
fiscal years. The Department also determined that this provision was 
self-executing and, therefore, implemented the provision immediately in 
FY 2019.
    On April 5, 2019, FNS released a memorandum titled, ``Food 
Distribution Program on Indian Reservations (FDPIR)--Agriculture 
Improvement Act of 2018 (Pub. L. 115-334) Two-Year Administrative 
Funding Provision--Information Memorandum.'' This memorandum explained 
that as of December 20, 2018, FDPIR administrative grants now have a 
period of performance of two Federal fiscal years instead of one and 
provided information on related FDPIR reporting and financial 
procedures, enabling the change to go into effect prior to this 
rulemaking to update program regulation at 7 CFR part 253.

C. Regulatory Changes to Two-Year Availability of Administrative Funds

    FDPIR regulations at 7 CFR 253.11(i)(1) allow the Department to 
require State agencies to return unobligated funds or to reduce State 
agencies' administrative funding allocations prior to the end of the 
fiscal year if the Department determines any of the provisions at 7 CFR 
253.11(i)(1)(i), (ii), or (iii) are met.
    Consistent with the statutory change in the period of performance 
of FDPIR grants from one to two Federal fiscal years, this rule revises 
7 CFR 253.11(i)(1) to allow the Department to require the return of 
unobligated funds or to reduce administrative funding allocations 
during the entire period of performance of the administrative grant.
    This rulemaking also revises 7 CFR 253.11(i)(2), which requires 
State agencies to return to Department within ninety (90) days 
following the close of each Federal fiscal year any funds received 
which remained unobligated. The revised regulatory text requires 
unobligated funds to be returned within ninety (90) days following the 
close of the period of performance of the FDPIR administrative grant.

III. Revision of State Agency/ITO Administrative Match Waiver 
Requirement

A. Background

    Section 4003 of the 2018 Farm Bill added a new provision at Section 
4(b)(4)(B)(ii) of the FNA to allow State agencies and ITOs to qualify 
for an administrative match waiver if funding their share of the costs 
would be a substantial burden for the State agency/ITO. On September 3, 
2019, the Department published a final rule with request for comments, 
Food Distribution Program on Indian Reservations: Revisions to the 
Administrative Match Requirement (84 FR 45873), to add this provision 
to FDPIR federal regulations at 7 CFR part 253. In that rulemaking, the 
Department determined that, in order to apply for a waiver of the 
administrative match based on substantial burden, the State agency/ITO 
must submit a signed letter from the leadership of a State agency or, 
in the case of an Indian Tribal Organization, a signed letter from the 
Tribal Council, describing why providing the matching funds would be a 
substantial burden for the State agency/ITO along with supporting 
documentation, as needed.

B. Comment Analysis and Regulatory Change

    Five commenters on this rule, out of six total commenters, felt 
that getting a signature from the Tribal Council would be burdensome. 
Commenters expressed concern that the initial rulemaking required ITOs 
to obtain a signature from their Tribal Council, the highest level of 
political leadership in a Tribe, but did not require a State agency to 
obtain a signature from the highest level of their State political 
leadership (e.g., State Governor). Thus, commenters felt that the 
burden imposed on ITOs was greater than the burden imposed on State 
agencies under the same provision. Commenters requested that the 
signatory of the letter not be the Tribal Council but a more 
appropriate entity as determined by Tribal leadership such as Tribal 
budget offices, departments of agriculture, health, food or nutrition.
    In Tribal consultation meetings on December 10th, 2019 and February 
13th, 2020, Tribal leaders in attendance expressed to the Department 
that they shared and supported the concerns of the commenters about 
obtaining a signature at the Tribal Council level. Tribal leaders 
shared their support for changing the signatory and specifically 
referenced comments made on the rule.
    The comments received in response to the September 3rd rule and 
subsequent Tribal consultation meetings with

[[Page 42302]]

elected Tribal leaders have provided the Department with valuable 
perspective from FDPIR stakeholders on the implementation of this 2018 
Farm provision and on the FDPIR community's concerns about requiring a 
signed letter from the Tribal Council. FNS heavily weighted comments 
received from the Tribal community and, through this rule, will revise 
federal regulation to allow the appropriate Tribal department, instead 
of the Tribal Council, to be the signatory. Therefore, 7 CFR 
253.11(c)(2)(ii) is being revised to allow the leadership of the Tribal 
agency that oversees FDPIR to be the signatory when applying for an 
administrative match waiver based on substantial burden.

Procedural Matters

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Executive Order 12866 and 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 and was 
reviewed by the Office of Management and Budget (OMB) in conformance 
with Executive Order 12866.
Regulatory Impact Analysis
    This rule has been designated as not significant by the Office of 
Management and Budget, therefore, no Regulatory Impact Analysis is 
required.
Regulatory Flexibility Act
    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities. This final rule would not have an 
impact on small entities because the revised requirement provides more 
flexibility on the period of availability of administrative funds at 
the local agency level. This lessens the financial administrative 
burden previously required by allowing ITOs and State agencies to 
access their funds across a two-year period versus only one year.

Executive Order 13771

    Executive Order 13771 directs agencies to reduce regulation and 
control regulatory costs and provides that the cost of planned 
regulations be prudently managed and controlled through a budgeting 
process. This final rule is an E.O. 13771 deregulatory action. This 
rulemaking provides a reduction in the State agency/ITO requirement to 
return funds at the end of each Federal fiscal year, allowing for two 
Federal fiscal year availability instead.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Department generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local or tribal 
governments, in the aggregate, or the private sector, of $146 million 
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 
at http://www.bea.gov/iTable) in any one year. When such a statement is 
needed for a rule, Section 205 of the UMRA generally requires the 
Department to identify and consider a reasonable number of regulatory 
alternatives and adopt the most cost effective or least burdensome 
alternative that achieves the objectives of the rule.
    This final rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
tribal governments or the private sector of $146 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

    The program listed in the Catalog of Federal Domestic Assistance 
under Number 10.567 and is subject to Executive Order 12372, which 
requires intergovernmental consultation with State and local officials. 
(See 2 CFR chapter IV.)

Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under Section (6)(b)(2)(B) of Executive Order 13132.
    The Department has determined that this rule does not have 
Federalism implications. This rule does not impose substantial or 
direct compliance costs on State and local governments. Therefore, 
under Section 6(b) of the Executive Order, a Federalism summary impact 
statement is not required.

Executive Order 12988, Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not 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 and timely implementation.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with USDA Regulation 
4300-4, ``Civil Rights Impact Analysis,'' to identify any major civil 
rights impacts the rule might have on program participants on the basis 
of age, race, color, national origin, sex or disability. After a 
careful review of the rule's intent and provisions, FNS has determined 
that this rule is not expected to affect the participation of protected 
individuals in the FDPIR.

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 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 2019, the Department 
engaged in a series of consultative and coordinated sessions with 
elected Tribal leaders and Tribal representatives from the FDPIR 
community to discuss FDPIR-specific provisions included in the 2018 
Farm Bill, including the provisions included

[[Page 42303]]

in this rulemaking. Reports from the consultative sessions will be made 
part of the USDA annual reporting on Tribal Consultation and 
Collaboration. USDA is unaware of any current Tribal laws that could be 
in conflict with this rule.
    FNS consulted with ITO representatives late 2019 and early 2020 to 
assess their opinions on comments requesting a change in obtaining a 
signature from Tribal council in order to submit a waiver for 
substantial burden. This rulemaking is in direct response to concerns 
Tribal leaders shared during consultation with requiring a signature 
from Tribal council. We are unaware of any current Tribal laws that 
could be in conflict with the final rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 
1320) requires the Office of Management and Budget (OMB) approve all 
collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
This rule does not contain information collection requirements subject 
to approval by the Office of Management and Budget under the Paperwork 
Reduction Act of 1994.

E-Government Act Compliance

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

List of Subjects in 7 CFR Part 253

    Administrative practice and procedure, Food assistance programs, 
Grant programs, Social programs, Indians, 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 7 CFR part 253 continues to read as 
follows:

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


0
2. In Sec.  253.11:
0
a. Revise paragraph (c)(2)(ii);
0
b. Revise paragraph (i)(1) introductory text; and
0
c. Revise paragraph (i)(2).
    The revisions read as follows:


Sec.  253.11  Administrative funds.

* * * * *
    (c) * * *
    (2) * * *
    (ii) For a waiver based on substantial burden, a signed letter from 
the leadership of the State agency or, in the case of an Indian Tribal 
Organization, from the leadership of the Tribal agency that oversees 
the Food Distribution Program, describing why meeting the 20 percent 
matching requirement would impose a substantial burden on the State 
agency, and why additional administrative funds are necessary for the 
effective operation of the program, along with supporting 
documentation, as needed.
* * * * *
    (i) * * *
    (1) FNS may require State agencies to return, during the period of 
performance of their administrative grant and after receipt of 
administrative funds, any or all unobligated funds received under this 
section, and may reduce the amount it has apportioned or agreed to pay 
to any State agency if FNS determines that: * * *
    (2) The State agency shall return to FNS, within ninety (90) days 
following the close of the period of performance of each administrative 
grant, any funds received under this section which are unobligated at 
that time.

Pamilyn Miller,
Administrator, Food and Nutrition Service.
[FR Doc. 2020-15047 Filed 7-13-20; 8:45 am]
BILLING CODE 3410-30-P