PART 253—ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS ON INDIAN RESERVATIONS Authority: 91 Stat. 958 (7 U.S.C. 2011-2036). Source: 44 FR 35928, June 19, 1979, unless otherwise noted. Redesignated by Amdt. 1, 47 FR 14137, Apr. 2, 1982. Editorial Note: Nomenclature changes to part 253 appear at 89 FR 87228, Oct. 31, 2024. § 253.1 General purpose and scope. This part describes the terms and conditions under which: USDA Foods (available under part 250 of this chapter) may be distributed to households on or near all or any part of any Indian reservation, the program may be administered by capable Indian tribal organizations (ITOs) and funds may be obtained from the Department for the costs incurred in administering the program. This part also provides for the concurrent operation of the Food Distribution Program and the Supplemental Nutrition Assistance Program (SNAP) on Indian reservations when such concurrent operation is requested by an ITO. [89 FR 87254, Oct. 31, 2024] § 253.2 Definitions. Disabled member (1) Receives supplemental security income benefits under title XVI of the Social Security Act or disability or blindness payments under titles I, II, X, XIV, or XVI of the Social Security Act; (2) Receives federally- or State-administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive the benefits is based upon the disability or blindness criteria used under title XVI of the Social Security Act; (3) Receives federally- or State-administered supplemental benefits under section 212(a) of Public Law 93-66; (4) Receives disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act; (5) Is a veteran with a service-connected or non-service-connected disability rated by the Veteran's Administration (VA) as total or paid as total by the VA under title 38 of the United States Code; (6) Is a veteran considered by the VA to be in need of regular aid and attendance or permanently housebound under title 38 of the United States Code; (7) Is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or permanently housebound or a surviving child of a veteran and considered by the VA to be permanently incapable of self-support under title 38 of the United States Code; (8) Is a surviving spouse or surviving child of a veteran and considered by the VA to be entitled to compensation for a service-connected death or pension benefits for a non-service-connected death under title 38 of the United States Code and has a disability considered permanent under section 221(i) of the Social Security Act. “Entitled” as used in this definition refers to those veterans' surviving spouses and surviving children who are receiving the compensation or pension benefits stated or have been approved for such payments, but are not yet receiving them; (9) Receives an annuity payment under: Section 2(a)(1)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board; or section 2(a)(1)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under title XVI of the Social Security Act; or (10) Is a recipient of interim assistance benefits pending the receipt of Supplemented Security Income, a recipient of disability related medical assistance under title XIX of the Social Security Act, or a recipient of disability-based State general assistance benefits provided that the eligibility to receive any of these benefits is based upon disability or blindness criteria established by the State agency, which are at least as stringent as those used under title XVI of the Social Security Act (as set forth at 20 CFR part 416, subpart I, Determining Disability and Blindness as defined in Title XVI). Elderly member Exercises governmental jurisdiction Food distribution program Indian tribal household Indian Tribal Organization (ITO) (1) The recognized governing body of any Indian tribe on a reservation; or (2) The tribally recognized intertribal organization which the recognized governing bodies of two or more Indian tribes on a reservation authorize to operate SNAP or a Food Distribution Program on their behalf. Indian tribe Overissuance Reservation State State agency (1) The agency of State government, including the local offices thereof, which enters into an agreement with FNS for the distribution of USDA Foods on all or part of an Indian reservation, and (2) The ITO of any Indian tribe, determined by the Department to be capable of effectively administering a Food Distribution Program, which enters into an agreement with FNS for the distribution of USDA Foods on all or part of an Indian reservation. (3) State agencies are also referred to as FDPIR administering agencies. [44 FR 35928, June 19, 1979. Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; 59 FR 1449, Jan. 11, 1994; 64 FR 73382, Dec. 30, 1999; 75 FR 4473, Jan. 28, 2010; 89 FR 87254, Oct. 31, 2024; 89 FR 104393, Dec. 23, 2024] § 253.3 Availability of USDA Foods. (a) Conditions for distribution. (1) On a temporary basis under programs authorized by law to meet disaster relief needs; (2) For the purpose of the USDA Foods programs in accordance with the requirements of part 250 of this chapter and with other Federal regulations applicable to specific food assistance programs; and (3) Whenever a request for concurrent or separate Food Distribution Program on a reservation is made by an ITO. (b) Concurrent or separate food program operation. (1) Except as provided in paragraph (b)(2) of this section, when the Food Distribution Program is operating on all or part of a reservation, all eligible households within those boundaries may participate in the Food Distribution Program, or, if the ITO has elected concurrent operation of SNAP, may elect to participate in either program, without regard to whether the household is an Indian tribal household. (2) FNS may determine, based on the number of non-Indian tribal households located on all or part of a reservation, that concurrent operation is necessary. When such a determination has been made all households residing in such areas may apply to participate in either SNAP or the Food Distribution Program. (c) Household distribution. (d) Food distribution program benefits. [44 FR 35928, June 19, 1979. Redesignated by Amdt. 1, 47 FR 14137, Apr. 2, 1982, as amended at 65 FR 47833, Aug. 4, 2000; 89 FR 87254, Oct. 31, 2024] § 253.4 Administration. (a) Federal administration. (b) State agency administration. (2) In the case where the Indian reservation boundaries cross State lines, the ITO and appropriate State agencies may jointly request FNS approval that a single State agency administer the Food Distribution Program on all or part of the Indian reservation. (3) An agency of State government responsible for administering the Food Distribution Program may delegate Program functions to an ITO. These functions include, but are not limited to, outreach, preparation of bilingual materials, USDA Foods issuance, determination of food preferences of households, publicizing uses of USDA Foods, and transportation and on-site delivery services. The State agency may also use the ITO in prescreening translations, interpretive services and other noncertification functions. The State agency shall not delegate responsibility for certification activities such as interviews or eligibility determinations with an ITO that has been determined incapable of administering the Food Distribution Program. In all cases the State agency shall retain full responsibility for program administration. (c) Qualification as a reservation. (2) The appropriate ITO for other areas, in order to qualify as reservations for the provisions of this part, must show to FNS: (i) That the ITO exercises governmental jurisdiction over a geographic area(s) which enjoys legal recognition from the Federal or a State government and is set aside for the use of Indians; (ii) A clear and precise description of the boundaries of such geographic area(s). (d) Application by an ITO. (e) Tribal capability. (i) Order and properly store USDA Foods, (ii) Certify eligible households, (iii) Arrange for physical issuance of USDA Foods, (iv) Keep appropriate records and submit required reports, (v) Budget and account for administrative funds, (vi) Determine the food preferences of households, and (vii) Conduct on-site reviews of certification and distribution procedures and practices. (2) The Food and Nutrition Service (FNS) shall make a determination of potential Indian Tribal Organization (ITO) capability within 30 days of receipt of a completed application for the Food Distribution Program. FNS shall promptly advise ITOs of the need for additional information if an incomplete application is received. (3) FNS shall, if requested by an ITO which has been determined by FNS to be potentially capable of administering a Food Distribution Program, provide the ITO's designees with appropriate training and technical assistance to prepare the ITO to take over program administration. In determining what training and technical assistance are necessary, FNS shall consult with the ITO and other sources, such as the BIA. [44 FR 35928, June 19, 1979, as amended by Amdt. 163, 45 FR 14006, Mar. 4, 1980. Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; 89 FR 87254, Oct. 31, 2024] § 253.5 State agency requirements. (a) Plan of operation. (i) Consult in good faith with the ITO on the reservation where the appropriate agency of the State government is responsible for administering the Food Distribution Program. (ii) A State agency which is not an ITO shall submit its plan of operation, budget and any substantive subsequent amendments to the ITO for comment at least 45 days prior to submission of the plan, budget or amendment to FNS. Comments by the ITO shall be attached to the plan, budget or amendment which is submitted to FNS. This paragraph does not apply to amendments required by FNS under § 253.7(a)(1). (2) The plan of operation shall describe the manner in which USDA Foods will be distributed, including, but not limited to, the storage and distribution facilities to be used, the procedures to assure ongoing consultation with the ITO where the appropriate agency of the State government administers the Program, the method by which the food preferences of households shall be determined, the manner in which the State agency plans to supervise the Food Distribution Program, and plans by which the State agency will control dual participation. The plan shall also include by reference or otherwise the following assurances: (i) No household on any Indian reservation shall be permitted to participate simultaneously in SNAP and the Food Distribution Program. (ii) The value of the USDA Foods provided to any eligible household shall not be considered income or resources for any purposes under any Federal, State, or local laws, including, but not limited to, laws relating to taxation, welfare, and public assistance programs; and no State agency shall decrease any assistance otherwise provided to a household because of the receipt of USDA Foods. (iii) The distribution of USDA Foods shall not be used as a means for furthering the political interest of any individual or party. (iv) There shall be no discrimination in the certification of applicant households or in the distribution of USDA Foods because of sex, race, color, age, political beliefs, religion, handicap or national origin. (v) Households shall not be required to make any payments in money, materials or services for, or in connection with, the receipt of USDA Foods; and they shall not be solicited in connection with the receipt of USDA Foods for voluntary cash contributions for any purpose. (vi) Adequate personnel, including supervisory personnel, to review the Food Distribution Program shall be provided to ensure compliance with the requirements of this part. (vii) Use of disclosure of information obtained from food distribution applicant households, exclusively for the Food Distribution Program, shall be restricted to persons directly connected with the administration or enforcement of the provisions of the Food Distribution Programs as defined in this part of this subchapter, the Food Stamp Act or regulations, or with other Federal or federally aided, means-tested assistance programs such as title IV-A (TANF), XIX (Medicaid), or XVI (SSI), or with general assistance programs that are subject to the joint processing requirements specified in § 273.2(j)(2). (b) Operating manuals. (c) Staffing. (d) Bilingual requirements. (2) The State agency shall ensure that offices serving reservations subject to the criteria in paragraph (d)(1) of this section provide sufficient bilingual staff for the timely processing of non-English speaking applicants. (3) The State agency shall develop estimates of the numbers of low-income, single-language minority households by using census data (including the Census Bureau's Current Population Report: Population Estimates and Projections, Series P-25, No. 627) and knowledge of the reservation. Local Bureau of Census offices, Community Services Administration offices, Community Action agencies, Bureau of Indian Affairs, Indian Health Services, planning agencies, the ITO and school officials may be important sources of information in determining the need for bilingual services. (e) Outreach and referral. (f) Training requirements. (1) State agency training programs shall cover eligibility criteria, certification procedures, USDA Foods ordering, storage and distribution practices, household rights and responsibilities and other job-related responsibilities. The content of the training material shall be reviewed and revised periodically to correct deficiencies in program operations or reflect changes in policy and procedures. (2) FNS shall review the effectiveness of State agency training based on information obtained from field reviews, administrative analyses and other sources. (g) Nutrition education. (h) Records and reports. (i) Monitoring. (1) The State agency shall review program operations at least annually, document program deficiencies and establish and implement specific plans of corrective action for deficiencies noted. (2) Reviews of operations shall include, but not be limited to, certification of households, determination of food preferences, distribution of USDA Foods, fair hearing procedures, USDA Foods inventories and timeliness and accuracy of reports to FNS. (3) Program reviews and corrective action plans shall be available to FNS upon request. (j) Investigations and complaints. (k) Sanctions. (1) Take action against any State agency under § 253.11(g) with respect to administrative funds available from FNS for use by the State agency or (2) disqualify the State agency from further distribution of USDA Foods to households. Disqualification of the State agency shall not prevent FNS or the Department from taking other actions, including prosecution under applicable Federal statutes, when deemed necessary. Reinstatement shall be contingent upon approval by FNS of the State agency's plan for corrective action or determination by FNS that the State agency has complied with any other requirements for reinstatement which FNS may set forth. These provisions apply to all State agencies, regardless of whether the Program is administered by an agency of the State government or an ITO. If the ITO is disqualified as a State agency, an appropriate agency of State government shall administer the Food Distribution Program on the reservation. If an agency of State government is disqualified as the State agency for the Food Distribution Program on the reservation, the ITO may request in writing a capability determination for program administration in accordance with § 253.4. (l) Appeals. (i) Whether or not the reservation definition is met; (ii) The capability of an ITO to administer the Food Distribution Program; (iii) Sanctions taken under paragraph (k) of this section or § 253.11(g); or (iv) The Federal matching percentage level of administrative funding made available by FNS. (2) At the time FNS advises the State agency or ITO of its determination, FNS shall also advise the State agency or ITO of its right to appeal and, except for appeals of funding determinations, shall advise the State agency or ITO of its right to request either a meeting to present its position in person or a review of the record. On appeals of funding determinations, FNS shall advise the State agency or ITO that it may indicate if it wishes a meeting, however, FNS need schedule a meeting only if FNS determines a meeting is warranted to reach a proper adjudication of the matter. Otherwise, FNS shall review supportive information submitted by the State agency or ITO in paragraph (l)(3)(ii) of this section. (3) Procedure Time limit. (ii) Acknowledgment. (4) Scheduling a meeting. (5) Review. (6) Final decision. (m) Implementation. (1) Amendment 2. (A) FNS shall determine tribal eligibility and capability to administer the Food Distribution Program on Indian Reservations within 60 days of receipt of a completed application. If an incomplete application is received, FNS shall within 15 days, notify the ITO of what additional information is required. The processing time for the capability determination shall start from the date the additional information is received by FNS. (B) Upon FNS' determination that the ITO will administer the Food Distribution Program on Indian Reservations, FNS shall expeditiously plan for and provide needed training and technical assistance to facilitate timely commencement of tribal administrative responsibilities. The ITO shall have 120 days from FNS' determination in paragraph (m)(1)(i)(A) of this section to submit and have approved a plan of operation, operating manuals, and to commence program operations under the regulations as specified in this part. Extensions may be granted by FNS to ITOs if good cause is shown. (C) If FNS determines that an ITO is not capable of administering the Food Distribution Program on Indian Reservations, FNS shall direct the State to continue program operations and submit a new plan of operation and to commence program operations under the regulations as specified in this part within 120 days from FNS' determination in paragraph (m)(1)(i)(A) of this section. (ii) If an ITO currently administers the Food Distribution Program on Indian Reservations, the timeframes specified in paragraph (m)(1)(i) of this section apply except that: (A) FNS shall determine tribal eligibility and capability to administer the Food Distribution Program on Indian Reservations within 30 days of receipt of a completed application. (B) If FNS determines that the ITO will not administer the Food Distribution Program on Indian Reservations, FNS shall direct the ITO to continue program operations until the State government can commence program operations. The State government shall have 120 days from FNS' determination in paragraph (m)(1)(i)(A) of this section to submit and have approved a plan of operation and to commence program operations under the regulations as specified in this part. (iii) If an ITO does not currently participate in a Food Distribution Program on Indian Reservations, the timeframes in paragraph (m)(1)(i) of this section apply except that if FNS determines that an ITO cannot administer the program, FNS shall direct the State to submit a plan of operation and to commence program operations under the regulations as specified in this part within 180 days from the determination. (iv) Extensions to the above implementation timeframe (except for those timeframes set forth in paragraphs (m)(1) (i)(A) and (ii)(A) of this section) may be granted by FNS to ITOs or State government agencies if there is compelling justification involving circumstances which were not reasonably foreseeable and which are not the fault of the ITO or the State agency and which circumstances present extraordinary problems that would render earlier implementation impossible. (Approved by the Office of Management and Budget under control number 0584-0071) (44 U.S.C. 3506; E.O. 12372, July 14, 1982, 47 FR 30959, sec. 401(b) of the Intergovernmental Cooperation Act of 1968, 31 U.S.C. 6506(c)) [44 FR 35928, June 19, 1979, as amended at 47 FR 746, Jan. 7, 1982. Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; Amdt. 2, 47 FR 19665, May 7, 1982; 48 FR 29123, June 24, 1983; 62 FR 53731, Oct. 16, 1997; 64 FR 73383, Dec. 30, 1999; 65 FR 47833, Aug. 4, 2000; 81 FR 66498, Sept. 28, 2016; 89 FR 87255, Oct. 31, 2024; 89 FR 104394, Dec. 23, 2024] § 253.6 Eligibility of households. (a) Household concept. (i) An individual living alone. (ii) An individual living with others, but customarily purchasing food and preparing meals for home consumption separate and apart from the others. (iii) A group of individuals living together for whom food is customarily purchased in common and for whom meals are prepared together for home consumption. (iv) Spouses living separately. (2) Nonhousehold members. (i) Roomers. (ii) Disqualified individuals. (iii) Illegal residents. (iv) Others. (3) Authorized representatives. (4) Children. (b) Residency or citizenship. (2) No person shall participate in the Food Distribution Program on an Indian reservation unless the person is legally a resident of the United States. A further discussion of “legal residency” is provided in paragraph (a)(2)(iv) of this section. (c) Income eligibility standards of public assistance, supplemental security income (SSI), and certain general assistance households. (2) If FNS determines that a State or local general assistance program applies criteria of need the same as or similar to, those applied under any of the federally aided public assistance programs, households in which all members are included in such a general assistance grant, shall, if otherwise eligible under this part, be determined to be eligible to participate in the Food Distribution Program while receiving such grants without regard to the income of household members. (d) Income Income eligibility standards for nonassistance households. (ii) The income eligibility standards for the Food Distribution Program shall be adjusted each October 1, as necessary, to reflect changes in SNAP income eligibility limits and standard deductions. (2) Definition of income. (i) Earned income shall include: (A) All wages and salaries of an employee. (B) The total gross income from a self-employment enterprise, including the net profit from the sale of any capital goods or equipment related to the business. Ownership of rental property shall be considered a self-employment enterprise. Payments from a roomer and returns on rental property shall be considered self-employment income. (C) Training allowances from vocational and rehabilitative programs recognized by Federal, State or local governments, such as the Work Incentive Program, and programs authorized by the Job Training Partnership Act, to the extent they are not a reimbursement. (ii) Unearned income shall include, but not be limited to: (A) Assistance payments from Federal or Federally aided public assistance programs, such as Supplemental Security Income (SSI) or Temporary Assistance for Needy Families (TANF), General Assistance (GA) programs, or other assistance programs based on need. (B) Annuities; pensions; retirement; veteran's or disability benefits; worker's or unemployment compensation; old-age, survivors, or social security benefits; strike benefits; foster care payments for children or adults. (C) Support or alimony payments made directly to the household from nonhousehold members. (D) Scholarships, education grants, fellowships, deferred payment loans for education, veteran's education benefit and the like in excess of amounts excluded under paragraph (d)(3)(iii) of this section. (E) Payments from Government-sponsored programs, dividends, interest, royalties, and all other direct money payments from any source which can be construed to be a gain or benefit. (F) Per capita payments that are derived from the profits of Tribal enterprises and distributed to Tribal members on a monthly basis. (G) The earned or unearned income of an individual disqualified from participation in SNAP for fraud shall continue to be counted as income, less the pro rata share for the disqualified member. Procedures for calculating this pro rata share are described in § 253.7. (iii) Income shall not include the following: (A) Monies withheld from an assistance payment, earned income or other income source, or monies received from any income source which are voluntarily or involuntarily returned to repay a prior overpayment received from that income source. (B) Child support payments received by TANF recipients which must be transferred to the agency administering title IV-D of the Social Security Act of 1935, as amended, to maintain TANF eligibility. (3) Income exclusions. (i) Any gain or benefit which is not in the form of money payable directly to the household, including: (A) In-kind income. (B) Vendor payments. (ii) Any income in the certification period which is received too infrequently or irregularly to be reasonably anticipated, but not in excess of $30 in a quarter. (iii) Education loans on which payment is deferred, grants scholarships, fellowships, veterans' educational benefits, and the like to the extent that they are used for tuition and mandatory school fees. Mandatory fees are those charged to all students or those charged to all students within a certain curriculum. For example, uniforms, lab fees, or equipment charged to all students to enroll in a chemistry course would be excluded. However, transportation, supplies, and textbook expenses are not uniformly charged to all students and, therefore, would not be excluded as mandatory fees. (iv) All loans, including loans from private individuals as well as commercial institutions, other than education loans on which repayment is deferred. (v) Reimbursements for past or future expenses to the extent they do not exceed actual expenses. For example, reimbursements of flat allowances for job or training related expenses such as travel per diem, uniforms, and transportation to and from the job or training site are excluded as income. (vi) Monies received and used for care and maintenance of a third party beneficiary who is not a household member. (vii) The earned income (as defined in paragraph (d)(2)(i) of this section) of children who are members of the household, who are students at least half time and who have not attained their eighteenth birthday. The exclusion shall continue to apply during temporary interruptions in school attendance due to semester or vacation breaks, provided the child's enrollment will resume following the break. Individuals are considered children for purposes of this provision if they are under the parental control of another household member. (viii) Money received in the form of a nonrecurring lump sum payment, including but not limited to, income tax refunds, rebates, or credits; retroactive lump-sum social security, SSI, public assistance, railroad retirement benefits or other payments, or retroactive lump-sum insurance settlements; refunds of security deposits on rental properties or utilities or lump-sum payments arising from land interests held in trust for, or by, a tribe. (ix) The cost of producing self-employment income. The procedures for computing the cost of producing self-employment income are described in § 253.7(b)(1)(iii). (x) Any income that is specifically excluded by any other Federal statute from consideration as income. The following Federal statutes provide such an exclusion. (A) Reimbursements from the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970 (Pub. L. 91-646, section 216). (B) Payments received under the Alaska Native Claims Settlement Act (Pub. L. 92-203, section 21(a)). (C) Any payment to volunteers under Title II (RSVP, foster grandparents, and others) and title III (SCORE and ACE) of the Domestic Volunteer Services Act of 1973 (Pub. L. 93-113), as amended. Payments under title I (VISTA) to volunteers shall be excluded for those individuals receiving federally donated USDA Foods, SNAP, or public assistance at the time they joined the title I program, except that households which are receiving an income exclusion for a VISTA or other title I subsistence allowance at the time of implementation of these rules shall continue to receive an income exclusion for VISTA for the length of their volunteer contract in effect at the time of implementation of these rules. Temporary interruptions in food distribution shall not alter the exclusion once an initial determination has been made. New applicants who are not receiving federally donated USDA Foods, SNAP benefits or public assistance at the time they joined VISTA shall have these volunteer payments included as earned income. (D) Income derived from certain submarginal land of the United States which is held in trust for certain Indian tribes (Pub. L. 94-114, section 6). (E) Payments received by certain Indian tribal members under Pub. L. 94-540 regarding the Grand River Band of Ottawa Indians. (xi) Combat pay. (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) Income deductions Earned income deduction. (2) Dependent care deduction. (3) Child support deduction. (4) Excess medical deduction. (5) Shelter/utility deduction. (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 § 273.9(d)(6)(ii) of this chapter for SNAP. (ii) The shelter/utility standard deduction amounts are set by FNS. The standard deductions are adjusted annually to reflect changes to SNAP maximum monthly excess shelter expense limits per § 273.9(d)(6)(ii) of this chapter. FNS will advise the State agencies of the updates prior to October 1 of each year. (iii) Households that select actual expenses, may claim expenses up to the amount that does not exceed 50 percent of their net monthly income. [44 FR 35928, June 19, 1979. Redesignated by Amdt. 1, 47 FR 14137, Apr. 2, 1982, and amended at 59 FR 1449, Jan. 11, 1994; 64 FR 73383, Dec. 30, 1999; 65 FR 47833, Aug. 4, 2000; 75 FR 4473; Jan. 28, 2010; 76 FR 18865, Apr. 6, 2011; 78 FR 52831, Aug. 27, 2013; 89 FR 87255, Oct. 31, 2024; 89 FR 104394, Dec. 23, 2024] § 253.7 Certification of households. (a) Application processing General purpose. (2) Food Distribution Program application form. (3) Filing an application. (4) Household cooperation. (5) Interviews. (6) Verification. (i) Mandatory verification. Gross non-exempt income. (B) Legal obligation and actual child support payments. (C) Medical expense deduction. (D) Shelter/utility deduction. (ii) Verification of questionable information. (iii) Responsibility for obtaining verification. (iv) Documentation. (v) Verification for recertification. (7) Processing standards. (8) Delays in processing. (9) Expedited service. (10) Authorized representatives. (i) Making application for USDA Foods. (ii) Obtaining USDA Foods. (b) Eligibility determinations Determining income. (ii) Income anticipated during the certification period shall be counted as income only in the month it is expected to be received, unless the income is averaged. (iii)(A) Self-employment income which represents a household's annual support including the net profit from the sale of any capital goods or equipment related to the business shall be annualized over a 12-month period, even if the income is received in only a short period of time. For example, self-employment income received by farmers shall be averaged over a 12-month period if the income represents the farmer's annual support. (B) Self-employment income which represents only a part of a household's annual support, including the net profit from the sale of any capital goods or equipment related to the business, shall be averaged over the period of time the income is intended to cover. For example, self-employed vendors who work only in the summer and supplement their income from other sources during the balance of the year shall have their self-employment income averaged over the summer months rather than a 12-month period. (C) For the period of time over which self-employment income is determined, the State agency shall add all gross self-employment income, exclude the cost of producing the self-employment income and divide the net self-employment income by the number of months over which the income will be averaged. The allowable costs of producing self-employment income include but are not limited to, the identifiable costs of labor, stock, raw materials, seed and fertilizer, interest paid to purchase income producing property, insurance premiums, and taxes paid on income producing property. (D) In determining net self-employment income, payments on the principal of the purchase price of income-producing real estate and capital assets, equipment, machinery, and other durable goods, net losses from previous periods, Federal, State, and local income taxes, money set aside for retirement purposes, and other work-related personal expenses (such as transportation to and from work) will not be allowable costs of doing business. (iv) The monthly net self-employment income shall be added to any other earned income received by the household. The total monthly earned income, less the 20 percent earned income deduction, shall then be added to all monthly unearned income received by the household. (v) Allowable costs for dependent care shall be subtracted from the household's total monthly income to determine net monthly income. (vi) The total net monthly income shall be compared to the income eligibility standard for the appropriate household size to determine the household's eligibility. (2) Certification periods. (ii) Certification periods shall conform to calendar months. The first month in the certification period of initial applicants shall be the month in which eligibility is determined. For example, if a household submits an application in late January and the household is determined eligible on the fifth working day which falls in February, a six-month certification period would include February through July. Upon recertification, the certification period will begin with the month following the last month of the previous certification period. (iii) A household shall be assigned a certification period for as long a period as the household's circumstances are expected to remain sufficiently stable such that the household is expected to continue to meet the program's eligibility standards. (iv) In no event may a certification period exceed 12 months, except that households in which all adult members are elderly and/or disabled may be certified for up to 24 months. Households assigned certification periods that are longer than 12 months must be contacted by the State agency at least once every 12 months to determine if the household wishes to continue to participate in the program and whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. The State agency may use any method it chooses for this contact, including a face-to-face interview, telephone call or a home visit. Contact with the household's authorized representative would not satisfy this requirement; the State agency must contact a household member. The case file must document the contact with the household and include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level. (3) Certification notices Notice of eligibility. (ii) Notice of denial. (iii) Notice of adverse action. (B) In State agencies that have elected joint public assistance or general assistance and Food Distribution processing, the notice of adverse action shall be considered timely if the advance notice period conforms to that period of time defined by the State agency as an adequate notice period for its public or general assistance caseload, provided that the period includes at least 10 days from the date the notice is mailed to the date upon which the action becomes effective. In circumstances other than joint processing, the advance notice shall be considered timely if the advance notice period includes at least 10 days from the date the notice is issued to the date upon which the action becomes effective. (C) The notice of adverse action must include the following in easily understandable language: ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 ( 7 (D) The State agency shall continue distribution of USDA Foods to the household after the end of the adverse notice period if the household requests a fair hearing during the advance notice period. (E) If the State agency determines that a household received more USDA Foods than it was entitled to receive, it must establish a claim against the household in accordance with § 253.9. The initial demand letter for repayment must be provided to the household at the same time the notice of adverse action is issued. It may be combined with the notice of adverse action. (c) Reporting changes. (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. (2) If the State agency determines that the household is no longer eligible or reduces the amount of USDA Foods due the household because the household has lost a member or members, the State agency shall provide the household with a notice of adverse action not later than ten days after the change is reported. If the reported change increases the amount of USDA Foods due the household, the household shall be notified that the increase shall be effective not later than the month following the date the change was reported. (d) Recertification. (2) The State agency shall approve or deny a household's application for recertification and notify the household of that determination prior to the expiration of the household's current certification period. Households applying for recertification in the last month of the current certification period must be provided an opportunity to obtain USDA Foods distribution on an uninterrupted basis. (3) The State agency shall continue distribution of USDA Foods to the household denied at the point of recertification if the household timely requests a fair hearing. (e) Controls for dual participation Prohibition on dual participation. (2) Choice of programs. (f) Treatment of disqualified household members. (i) Household members disqualified from the Food Distribution Program for an intentional program violation under § 253.8. These household members may participate, if otherwise eligible, in the Food Distribution Program once the period of disqualification has ended. (ii) Household members disqualified from SNAP for an intentional program violation under § 273.16 of this chapter. These household members may participate, if otherwise eligible, in the Food Distribution Program once the period of disqualification under SNAP has ended. The State agency must, in cooperation with the appropriate SNAP agency, develop a procedure that ensures that these household members are identified. (iii) Households disqualified from the Food Distribution Program for failure to pay an overissuance claim. The circumstances under which a disqualification is allowed for such failure are specified in FNS Handbook 501. (2) During the time a household member is disqualified, the eligibility and food distribution benefits of any remaining household members will be determined as follows: (i) Income. (ii) Eligibility and benefits. (g) Joint processing PA/GA. (2) The State agency shall process all applications for PA or GA as applications for the Food Distribution Program as well, unless the household clearly indicates on a space on the application that the household does not want USDA Foods. The State agency shall conduct a single interview for PA or GA and Food Distribution Program eligibility, unless the State agency is unable to do so within the Food Distribution Program processing standards specified in paragraphs (a)(7) and (a)(9)of this section. In such cases the State agency shall provide separate certification for PA or GA and Food Distribution Program eligibility. (3) The State agency may verify those factors of eligibility which must be verified for PA or GA, under PA or GA rules, but must follow the Food Distribution Program rules for all other factors. (4) PA households have the same reporting requirements as any other food distribution household. PA households which report a change in circumstances to the PA worker shall be considered to have reported the change for food distribution purposes. All of the requirements pertaining to reporting changes for PA households shall be applied to GA households in project areas where GA and food distribution cases are processed jointly. (5) The State agency must follow all Food Distribution Program timeliness rules for certification of households for the Food Distribution Program. (h) Fair hearing Availability of hearings. (2) Timely action on hearings Time frames for the State agency. (ii) Household requests for postponement. (3) Notification of right to request hearing. (4) Time period for requesting hearing. (5) Request for hearing. (6) Denial or dismissal of request for hearing. (i) The request is not received within the time period specified in paragraph (g)(4) of this section; (ii) The request is withdrawn in writing by the household or its representative; or (iii) The household or its representative fails, without good cause, to appear at the scheduled hearing. (7) Notification of time and place of hearing. (i) Advise the household or its representative of the name, address, and the phone number of the person to notify in the event it is not possible for the household to attend the scheduled hearing. (ii) Specify that the State agency will dismiss the hearing request if the household or its representative fails to appear for the hearing without good cause. (iii) Include the State agency hearing procedures and any other information that would provide the household with an understanding of the proceedings, and that would contribute to the effective presentation of the household's case. (iv) Explain that the household or representative may examine the casefile prior to the hearing. (8) Hearing official. (i) Administer oaths or affirmations if required by the State; (ii) Ensure that all relevant issues are considered; (iii) Request, receive and make part of the record all evidence determined necessary to decide the issues being raised; (iv) Regulate the conduct and course of the hearing consistent with due process to ensure an orderly hearing; and (v) Render a hearing decision in the name of the State agency, in accordance with paragraph (g)(11) of this section, which will resolve the dispute. (9) Attendance at hearing. (10) Conduct of hearing. (i) Examine all documents and records to be used at the hearing at a reasonable time before the date of the hearing, as well as during the hearing. The contents of the casefile, including the application forms and documents of verification used by the State agency shall be made available, provided the confidential information is protected from release. The State agency shall provide a free copy of the relevant portions of the casefile if requested by the household or its representative. Confidential information that is protected from release and other documents or records which the household will not otherwise have an opportunity to contest or challenge shall not be introduced at the hearing or affect the hearing official's decision. (ii) Present the case or have it presented by a legal counsel or other person. (iii) Bring witnesses. (iv) Advance arguments without undue interference. (v) Question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses. (vi) Submit evidence to establish all pertinent facts and circumstances in the case. (11) Hearing decisions. (ii) A decision by the hearing official shall be binding on the State agency and shall summarize the facts of the case, specify the reasons for the decision and identify the supporting evidence and the pertinent FNS regulations. The decision shall become a part of the record. (iii) Within 10 days of the date the fair hearing decision is issued, the State agency must issue a notice to the household advising it of the decision. (A) If the decision upheld the adverse action by the State agency, the notice must advise the household of the right to pursue judicial review. (B) If the decision upheld a disqualification, the notice must also include the reason for the decision, the date the disqualification will take effect, and the duration of the disqualification (that is, 12 months; 24 months; or permanent). The State agency must also advise any remaining household members if the household's benefits will change, or if the household is no longer eligible as a result of the disqualification. (iv) The State agency must revise the demand letter for repayment issued previously to the household to include the value of all overissued USDA Foods provided to the household during the appeal process, unless the fair hearing decision specifically requires the cancellation of the claim. The State agency must also advise the household that collection action on the claim will continue, in accordance with FNS Handbook 501, unless suspension is warranted. (12) Agency conferences. (ii) An agency conference for households requesting an immediate resolution by a higher authority of an eligibility issue shall be scheduled within four working days of the request unless the household requests that it be scheduled later or states that it does not wish to have an agency conference. (Approved by the Office of Management and Budget under control number 0584-0071) (44 U.S.C. 3506) [44 FR 35928, June 19, 1979, as amended at 47 FR 746, Jan. 7, 1982. Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; 64 FR 73383, Dec. 30, 1999; 65 FR 47833, Aug. 4, 2000; 75 FR 4473, Jan. 28, 2010; 78 FR 52831, Aug. 27, 2013; 89 FR 87256, Oct. 31, 2024] § 253.8 Administrative disqualification procedures for intentional program violation. (a) What is an intentional program violation? (1) Makes a false or misleading statement, or misrepresents, conceals, or withholds facts in order to obtain Food Distribution Program benefits which the household is not entitled to receive; or (2) Commits any act that violates a Federal statute or regulation relating to the acquisition or use of Food Distribution Program USDA Foods. (b) What are the disqualification penalties for an intentional program violation? (1) For a period of 12 months for the first violation; (2) For a period of 24 months for the second violation; and (3) Permanently for the third violation. (c) Who can be disqualified? (d) Can the disqualification be appealed? (e) What are the State agency's responsibilities? (2) The State agency must inform households in writing of the disqualification penalties for intentional program violations each time they apply for benefits, including recertifications. This notice must also advise households that an intentional program violation may be referred to authorities for prosecution. (3) The State agency must attempt to substantiate all suspected cases of intentional program violation. An intentional program violation is considered to be substantiated when the State agency has clear and convincing evidence demonstrating that a household member committed one or more acts of intentional program violation, as defined in paragraph (a) of this section. (4) Within 10 days of substantiating that a household member has committed an intentional program violation, the State agency must provide the household member with a notice of disqualification, as described in paragraph (f) of this section. A notice must still be issued in instances where the household member is not currently eligible or participating in the program. (5) The State agency must advise any remaining household members if the household's benefits will change or if the household will no longer be eligible as a result of the disqualification. (6) The State agency must provide the household member to be disqualified with an opportunity to appeal the disqualification through a fair hearing, as required by § 253.7(h). (7) The State agency must refer all substantiated cases of intentional program violations to Tribal, Federal, State, or local authorities for prosecution under applicable statutes. However, a State agency that has conferred with its legal counsel and prosecutors to determine the criteria for acceptance for possible prosecution is not required to refer cases that do not meet the prosecutors' criteria. (8) The State agency must establish claims, and pursue collection as appropriate, on all substantiated cases of intentional program violation in accordance with § 253.9. (f) What are the requirements for the notice of disqualification? (2) The notice must conform to the requirements of § 253.7(b)(3)(iii)(C) for notices of adverse action. (g) What are the appeal procedures for administrative disqualifications? Appeal rights. (2) Notification of hearing. (i) A warning that if the household member fails to appear at the hearing, the hearing decision will be based solely on the information provided by the State agency; and (ii) A statement that the hearing does not prevent the Tribal, Federal, State, or local government from prosecuting the household member in a civil or criminal court action, or from collecting any overissuance(s). (h) What are the procedures for applying disqualification penalties? (2) If the household member requested a fair hearing and the disqualification was upheld by the fair hearing official, the disqualification must begin with the next scheduled distribution of USDA Foods that follows the date the hearing decision is issued. If the USDA Foods are normally made available to the household within a specific period of time (for example, from the first day of the month through the tenth day of the month), the effective date of the disqualification will be the first day of that period. The State agency must apply the disqualification period (that is, 12 months, 24 months, or permanent) specified in the notice of disqualification. No further administrative appeal procedure exists after an adverse fair hearing decision. The decision by a fair hearing official is binding on the State agency. The household member, however, may seek relief in a court having appropriate jurisdiction. As provided under § 253.7(h)(11)(iii)(B), the State agency must advise any remaining household members if the household's benefits will change, or if the household is no longer eligible as a result of the disqualification. (3) Once a disqualification has begun, it must continue uninterrupted for the duration of the penalty period (that is, 12 months; 24 months; or permanent). Changes in the eligibility of the disqualified household member's household will not interrupt or shorten the disqualification period. (4) The same act of intentional program violation continued over a period of time will not be separated so that more than one penalty can be imposed. For example, a household intentionally fails to report that a household member left the household, resulting in an overissuance of benefits for 5 months. Although the violation occurred over a period of 5 months, only one penalty will apply to this single act of intentional program violation. (5) If the case was referred for Tribal, Federal, State, or local prosecution and the court of appropriate jurisdiction imposed a disqualification penalty, the State agency must follow the court order. [64 FR 73384, Dec. 30, 1999, as amended at 89 FR 87257, Oct. 31, 2024] § 253.9 Claims against households. (a) What are the procedures for establishing a claim against a household for an overissuance? (2) The procedures for establishing and collecting claims against households are specified in FNS Handbook 501, The Food Distribution Program on Indian Reservations. (b) Who is responsible for repaying a household overissuance claim? (2) Responsibility for repayment continues even in instances where the household becomes ineligible or is not participating in the program. [64 FR 73385, Dec. 30, 1999, as amended at 89 FR 87257, Oct. 31, 2024] § 253.10 USDA Foods inventory management, storage, and distribution. (a) Control and accountability. (b) USDA Foods inventories. (c) Inventory management and control. (d) Distribution. (1) Notification is provided to certified households of the location of distribution sites and days and hours of distribution. (2) An adequate supply of USDA Foods which are available from the Department is on hand at all distribution sites. (3) Sufficient distribution sites, either stationary or mobile, are geographically located or routed in relation to population density of eligible households. (4) Days and hours of distribution are sufficient for caseload size and convenience. (5) Households are advised they may refuse any USDA Foods not desired, even if the USDA Foods are prepackaged by household size. (6) Emergency issuance of USDA Foods will be made to households certified for expedited service in accordance with the provisions of § 253.7(a)(9). (7) Eligible households or authorized representatives are identified prior to the issuance of USDA Foods. (8) Authorized signatures are obtained for USDA Foods issued and the issue date recorded. (9) Posters are conspicuously displayed advising program participants to accept only those USDA Foods, and in such quantities, as will be consumed by them. (10) Complete and current records are kept of all USDA Foods received, issued, transferred, and on hand and of any inventory overages, shortages, and losses. (11) A list of USDA Foods offered by the Department is displayed at distribution sites so that households may indicate preferences for future orders. (e) Improper distribution or loss of or damage of USDA Foods. (f) Damaged or out-of-condition USDA Foods. [89 FR 87257, Oct. 31, 2024] § 253.11 Administrative funds. (a) Allocation of administrative funds to FNS Regional Offices. (1) 65 percent of all administrative funds available nationally will be allocated to each FNS Regional Office in proportion to its share of the total number of participants nationally, averaged over the three previous fiscal years; and (2) 35 percent of all administrative funds available nationally will be allocated to each FNS Regional Office in proportion to its share of the total current number of State agencies administering the program nationally. (b) Allocation of administrative funds to State agencies. (c) State agency matching requirement. (1) Unless Federal administrative funding is approved at a rate higher than 80 percent of approved administrative costs, in accordance with paragraph (c)(3) of this section, each State agency must contribute 20 percent of its total approved administrative costs. Cash or non-cash contributions, including third party in-kind contributions, and the value of services rendered by volunteers, may be used to meet the State agency matching requirement. Funds provided from another Federal source may be used to meet the State agency matching requirement, provided that such use is consistent with the purpose of those funds and complies with this subsection. To use funds from another Federal source, the State agency must submit documentation for approval to the FNS Regional Office which shows the source, value, and purpose of those funds. In accordance with part 277 of this chapter, such contributions must: (i) Be verifiable; (ii) Be necessary and reasonable to accomplish program objectives; (iii) Be allowable under part 277 of this chapter; and (iv) Be included in the approved budget. (2) Upon request from a State agency, an FNS Regional Office may approve a waiver reducing a State agency's matching requirement below 20 percent. To request a waiver, the State agency must submit compelling justification for the waiver to the appropriate FNS Regional Office. Compelling justification is based on either financial inability to meet the match requirement or the match requirement imposing a substantial burden. The request for the match waiver must be submitted with the following and in accordance with other FNS instructions: (i) For a waiver based on financial inability, a summary statement and recent financial documents showing that the State agency is unable to meet the 20 percent matching requirement and that additional administrative funds are necessary for the effective operation of the program; or (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. (3) The FNS Regional Office may not reduce any benefits or services to State agencies that are granted a waiver. (d) Use of funds by State agencies. (e) Application for funds. (2) Approval of the application by FNS shall be a prerequisite to the payment of any funds to State agencies. (f) Availability of funds. (2) FNS shall review and evaluate applications submitted by State agencies for administrative funds available under this section in the following order of priority and shall give preference in making payments of funds under this section in the same order of priority: (i) Applications from State agencies which desire to continue a Food Distribution Program now in operation, (ii) Applications from State agencies, in the order received, which FNS determines are immediately capable of effectively and efficiently administering the Program, and (iii) Applications from other States agencies, in the order received. (g) Method of payment to State agencies. (2) The Letter of Credit funding method shall be done in conjunction with Treasury Department procedures, Treasury Circular No. 1075 and through an appropriate Treasury Regional Disbursing Office (RDO). The Standard Form 183, “Request for Payment on Letter of Credit and Status of Funds Report,” shall be correctly prepared and certified by a duly appointed official of the State for requesting payment from an RDO. (3) The advance by Treasury check method shall be done by use of the Standard Form 270, “Request for Advance or Reimbursement,” and procedures associated with its use. State agencies receiving payments under this method may request payments before cash outlays are made. (4) Any State agency receiving payment under the Letter of Credit method or the advance by Treasury check method shall have in place and in operation, a financial management system which meets the standards for fund control and accountability prescribed in part 277 of this chapter, as amended. The State agency shall demonstrate on a continuing basis its willingness and ability to have and to function within procedures that will minimize the time lapse between the transfer of funds and its disbursement to meet obligations. For any State agency which does not meet the requirement of this paragraph, the reimbursement by Treasury check method shall be the preferred method for FNS to make payments to that State agency. (h) Accounting for funds. (i) Return, reduction, and reallocation of funds. (i) The State agency is not administering the Food Distribution Program in accordance with its plan of operation approved by FNS and the provisions of this part, or (ii) The amount of funds which the State agency requested from FNS is in excess of actual need, based on reports of expenditures and current projections of Program needs. (iii) Circumstances or conditions justify the return reallocation or transfer of funds to accomplish the purpose of this part. (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. (j) Records, reports, audits. (i) Keep such accounts and records as may be necessary to enable FNS to determine whether there has been compliance with this section, and (ii) Adhere to the retention and custodial requirements for records set forth in § 277.4 of this chapter. (2) The State agency receiving funds either through a Treasury RDO Letter of Credit system or Treasury check shall submit quarterly reports to FNS on Form SF-425, “Financial Status Report,” by the 30th day after close of the reporting quarter and shall submit such other reports as may be required by FNS. (3) The appropriate provisions of part 277 are adaptable to this section for additional guidance. (Approved by the Office of Management and Budget under control number 0584-0071) (44 U.S.C. 3506) [44 FR 35928, June 19, 1979, as amended at 47 FR 746, Jan. 7, 1982. Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982, as amended at 62 FR 53731, Oct. 16, 1997. Redesignated at 64 FR 73385, Dec. 30, 1999, as amended at 77 FR 50907, Aug. 23, 2012; 81 FR 66498, Sept. 28, 2016; 84 FR 45877, Sept. 3, 2019; 85 FR 42303, July 14, 2020] § 253.12 Administrative waivers. (a) The Administrator of the Food and Nutrition Service may waive or modify specific regulatory provisions contained in this part for one or more State agencies. Waivers may be issued only in the following situations: (1) The specific regulatory provision cannot be implemented due to extraordinary temporary situations; (2) FNS determines that the waiver would result in a more effective and efficient administration of the program; or (3) Unique geographic conditions within the geographic area served by the administering agency preclude effective implementation of the specific regulatory provision and require an alternate procedure. (b) FNS shall not approve waivers when: (1) The waiver would be inconsistent with the provisions of the Food and Nutrition Act of 2008; or (2) The waiver would result in material impairment of any statutory or regulatory rights of participants or potential participants. (c) FNS shall approve waivers for a period not to exceed one year unless the waiver is for an on-going situation. If the waiver is requested for longer than a year, appropriate justification shall be required and FNS will determine if a longer period is warranted and if so, the duration of the waiver. Extensions may be granted provided that State agencies submit appropriate justification to FNS. (d) When submitting requests for waivers, State agencies shall provide compelling justification for the waiver in terms of how the waiver will meet the conditions of paragraphs (a)(1), (2), and/or (3) of this section. At a minimum, requests for waivers shall include but not necessarily be limited to: (1) Reasons why the waiver is needed; (2) Anticipated impact on service to participants or potential participants who would be affected; (3) Anticipated time period for which the waiver is needed; and (4) Thorough explanation of the proposed alternative provision to be used in lieu of the waived or modified regulatory provision. [89 FR 87258, Oct. 31, 2024]