Food Distribution Program on Indian Reservations: Two-Year Administrative Funding Availability and Substantial Burden Waiver Signatory Requirement
| Published date | 14 July 2020 |
| Citation | 85 FR 42300 |
| Record Number | 2020-15047 |
| Section | Rules and Regulations |
| Court | Food And Nutrition Service |
Federal Register, Volume 85 Issue 135 (Tuesday, July 14, 2020)
[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
