PART 281—ADMINISTRATION OF SNAP ON INDIAN RESERVATIONS Authority: 7 U.S.C. 2011-2036. Source: 44 FR 35925, June 19, 1979, unless otherwise noted. Editorial Note: Nomenclature changes to part 281 appear at 78 FR 11972, Feb. 21, 2013. § 281.1 General purpose and scope. (a) These regulations govern the operation of SNAP on Indian reservations either separately or concurrently with the Food distribution program. In order to assure that SNAP is responsive to the needs of Indians on reservations, State agencies are required to consult with Indian tribal organizations about the implementation and operation of SNAP on reservations. Also, under certain specified conditions Indian tribal organizations on reservations can administer SNAP. The Act authorizes the Secretary to pay such amounts for administrative costs as are determined to be necessary for the effective operation of SNAP on Indian reservations. (b) The operation of SNAP on Indian reservations is governed by all of the terms and conditions set forth in the Food and Nutrition Act of 2008 as amended and the regulations of this chapter. (c) Additionally, under no circumstances shall any household participate simultaneously in SNAP and the Food Distribution Program. Policy governing this prohibition is found in § 253.7(e). [44 FR 35925, June 19, 1979, as amended at 78 FR 11972, Feb. 21, 2013] § 281.2 Administration. (a) Qualification. (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). (3) Otherwise qualified areas for which the responsible ITO has requested operation of the Food Distribution Program alone in accordance with § 283.4, rather than concurrent operation with SNAP, shall be exempt from the requirements of this part, and shall not be considered SNAP areas for any other purposes of this subchapter. Indian tribal households (households in which at least one adult member is recognized by the appropriate ITO as a tribal member) resident in these areas shall be ineligible for SNAP benefits. However, non-Indian tribal households resident in these areas may apply and be certified for SNAP benefits at the State agency's certification office which would otherwise service the area. Otherwise qualified areas for which the responsible ITO has requested operation of the food distribution Program concurrently with SNAP or areas within the reservation where FNS has determined that concurrent operation is necessary in accordance with § 283.3(b)(2) shall be subject to all requirements of this part and subchapter. (b) State plan. (c) Project area designation. (i) The State agency demonstrates to FNS that the size or population of the reservation does not warrant such designation; (ii) The State agency demonstrates to FNS that the tribe can be adequately served by the existing or a planned project area because of the location of certification and issuance offices; (iii) The State agency demonstrates to FNS that such designation would reduce the availability of certification and issuance offices; or (iv) The State agency otherwise demonstrates to FNS that such designation would impair its Statewide administration of the Program. (2) In the case where the Indian reservation boundaries cross State lines, the ITO and the appropriate State agencies may jointly request FNS approval that a single State agency administer SNAP on all or part of the Indian reservation. A single agency of the State government would have to administer the Program under the same terms and conditions applied to all other political subdivisions within its jurisdiction. An ITO designated as a State agency pursuant to § 281.4(d) would have to administer the Program under the same terms and conditions on all areas of the reservation. (d) Contracts with an Indian tribal organization. [44 FR 35925, June 19, 1979, as amended by Amdt. 207, 47 FR 52338, Nov. 19, 1982] § 281.3 Determination of failure. (a) Request for determination of State government agency failure. (b) Review Content of the review for State agency performance. (i) The records of State agency consultation with the ITO required under § 281.2(a); (ii) The estimated percentage of all eligible Indians on the reservation who are participating the Program; (iii) The nature and extent of violations, if any, of the 30-day and other processing standards for Indians; (iv) The percentage of errors made in determining eligibility and/or the amount of benefits overissued or underissued; (v) Compliance with standards for location and hours of certification and issuance offices as required in § 272.5; (vi) Compliance with bilingual requirements of this regulation, where appropriate; (vii) Compliance with nondiscrimination requirements of this regulation; (viii) Compliance with other significant program requirements; (ix) Comparison with services provided in all other areas of the State; and (x) Any other relevant information that becomes available during the course of reviews including information received through contacts with the Indian tribe. (2) Finding of no or of minor deficiencies. (c) Formal warning. (d) Determination of failure and sanctions. (e) ITO operations. § 281.4 Determining Indian tribal organization capability. (a) Determining capability of ITO. (b) ITO responsibility. (i) Operation of government programs. (ii) Fiscal capabilities. (iii) Projected certification and issuance facilities. (iv) Fraud hearings and claims. (v) Staffing. (vi) Civil rights assurance. (2) Prior to the determination of ITO capability, FNS shall consult with other sources such as the Bureau of Indian Affairs (BIA) to obtain any information relevant to the capability determination. (3) If it is determined by FNS, after consultation with other sources such as the BIA, that the ITO is not capable of operating an efficient and effective SNAP, the agency of the State government shall continue to operate the Program on the reservation in accordance with § 281.3. (c) Training and technical assistance. (d) Assumption of duties. (1) State plans. (2) Proposed budget. (3) Termination and transition arrangement. § 281.5 Responsibilities of an Indian tribal organization designated as State agency. An ITO administering SNAP on a reservation shall adhere to the Food and Nutrition Act of 2008, all subsequent amendments, and all regulations issued pursuant to that law in the same manner as any other State agency. The ITO may contract certain administrative functions to private organizations as provided in parts 274 and 277. The ITO may not, however, contract responsibility for certification activities such as interviews or eligibility determinations. The ITO shall retain full responsibility for program administration. § 281.6 Liabilities and sanctions. An ITO administering SNAP on a reservation is subject to the same liabilities and Federal sanctions as is any other State agency. FNS shall monitor administration of the Program and conduct reviews through the Performance Reporting System described in part 275. When necessary, warning procedures and other Federal sanctions prescribed in part 276 will be implemented. § 281.7 Indian tribal organization failure. When Performance Reporting System reviews indicate that continuing deficiencies exist and corrective action proposals (including training and technical assistance to overcome these deficiencies), and/or appropriate sanctions have not, in the opinion of FNS, resulted in a sufficient degree of improvement, FNS will conduct a review to determine if the ITO has failed to properly administer SNAP. FNS shall examine the relevant factors specified in § 281.3(b)(1) and shall follow the notification and determination procedures set forth in § 281.3 (c) and (d). If ITO failure is determined, FNS shall require the appropriate agency of the State government to resume administration of the Program on the reservation in accordance with an approved termination and transition arrangement. § 281.8 Transfer of program administration. The transfer of program administration from an agency of the State government to an ITO pursuant to a determination of failure as provided for in § 281.3, or from an ITO to an agency of the State government pursuant to § 281.7, shall be contingent on the establishment of an effective termination and transition arrangement and an approved Plan of Operation from the State agency assuming program administration. Grant closeout procedures shall be followed in accordance with part 277. FNS shall approve the transition plan, monitor its implementation and resolve any issues which may arise during the transition and after the transfer of program administration. § 281.9 Funding. (a) Agency of State government. (b) Indian tribal organization acting as State agency. § 281.10 Appeals. (a) Failure/capability. (i) Whether or not the reservation definition is met; (ii) The failure or absence of failure of an agency of State government to properly administer SNAP; (iii) The capability or incapability of an ITO to administer SNAP; (iv) The failure of an ITO to properly administer SNAP; (v) The Federal matching percentage level of administrative funding made available by FNS. To prevail the State agency must show a compelling justification that additional funding is needed for the effective administration of the Program on the reservation. (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 (b)(2) of this section. (b) Procedures Time limit. (2) Acknowledgment. (3) Scheduling a meeting. (4) Review. (5) Final decision. (c) Funding and other sanctions.