Download:
pdf |
pdfkpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.2
expenses incurred in connection with
such donated food as determined by the
Department. The Department may, in
any event, repossess damaged or outof-condition donated food.
(c) FNS sales verification. FNS may
conduct a verification of processor reported sales utilizing a statistically
valid sampling technique. If, as a result
of this verification, FNS determines
that the value of the donated food has
not been passed on to recipient agencies or if end products have been improperly distributed, FNS may assert a
claim against the processor. This claim
may include a projection of the
verification sample to the total NCP
sales reported by the processor.
(d) Sanctions. Any processor or recipient agency which has failed to comply
with the provisions of this part or any
instructions or procedures issued in
connection herewith, or any agreements entered into pursuant hereto,
may, at the discretion of the Department, be disqualified from further participation in the NCP Program. Reinstatement may be made at the option
of the Department. Disqualification
shall not prevent the Department from
taking other action through other
available means when considered necessary, including prosecution under applicable Federal statutes.
(e) Embezzlement, misuse, theft, or obtainment by fraud of commodities and
commodity related funds, assets, or property in child nutrition programs. Whoever
embezzles, willfully misapplies, steals,
or obtains by fraud commodities donated for use in the NCP Program, or
any funds, assets, or property deriving
from such donations, or whoever receives, conceals, or retains such commodities, funds, assets, or property for
his own use or gain, knowing such commodities, funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud,
shall be subject to Federal criminal
prosecution under section 12(g) of the
National School Lunch Act, as amended, or section 4(c) of the Agriculture
and Consumer Protection Act of 1973,
as amended. For the purpose of this
paragraph ‘‘funds, assets, or property’’
include, but are not limited to, commodities which have been processed
into different end products as provided
for by this part, and the containers in
which commodities have been received
from the Department.
§ 252.7
OMB control number.
The information collection and reporting requirements contained in this
part have been approved by the Office
of Management and Budget under control number 0584–0325.
PART 253—ADMINISTRATION OF
THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS ON INDIAN RESERVATIONS
Sec.
253.1 General purpose and scope.
253.2 Definitions.
253.3 Availability of commodities.
253.4 Administration.
253.5 State agency requirements.
253.6 Eligibility of households.
253.7 Certification of households.
253.8 Administrative disqualification procedures for intentional program violation.
253.9 Claims against households.
253.10 Commodity control, storage and distribution.
253.11 Administrative funds.
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.
§ 253.1 General purpose and scope.
This part describes the terms and
conditions under which: commodities
(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, 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 Food Stamp Program
on Indian reservations when such concurrent operation is requested by an
ITO.
§ 253.2 Definitions.
Disabled member means a member of a
household who:
(1) Receives supplemental security
income benefits under title XVI of the
Social Security Act or disability or
603
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00613
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.2
7 CFR Ch. II (1–1–22 Edition)
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 means a member of a
household who is sixty years of age or
older.
Exercises
governmental
jurisdiction
means the active exercise of the legislative, executive or judicial powers of
government by an Indian tribal organization.
Food distribution program means a
food distribution program for households on Indian reservations operated
pursuant to sections 4(b) and 1304(a) of
Pub. L. 95–113.
Indian tribal household means a
household in which at least one household member is recognized as a tribal
member by any Indian tribe, as defined
in paragraph (d) of this section.
Indian
tribal
organization
(ITO)
means: (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 the Food Stamp Program or a Food Distribution Program
on their behalf.
Indian tribe means (1) any Indian
tribe, Band, or other organized Indian
group, for example, a Rancheria, Pueblo, or colony, and including any Alaska
Native village or regional or village
corporation (established pursuant to
the Alaska Native Claims Settlement
Act (85 Stat. 688)), and that is on a reservation and recognized as eligible for
Federal programs and services provided
604
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00614
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 253.3
to Indians because of their status as Indians; or (2) any Indian tribe or Band
on a reservation holding a treaty with
a State government.
Overissuance means the dollar value
of commodities issued to a household
that exceeds the dollar value of commodities it was eligible to receive.
Reservation means the geographically
defined area or areas over which an
ITO exercises governmental jurisdiction so long as such area or areas are
legally recognized by the Federal or a
State government as being set aside for
the use of Indians.
State means any one of the fifty
States, the District of Columbia, and
the reservation of an Indian tribe
whose ITO meets the requirements of
the Food Stamp Act of 1977 for participation as a State agency.
State agency means:
(1) The agency of State government,
including the local offices thereof,
which enters into an agreement with
FNS for the distribution of commodities 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 commodities on all
or part of an Indian reservation.
Urban place means a town or city
with a population of 10,000 or more.
kpayne on VMOFRWIN702 with $$_JOB
[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]
§ 253.3 Availability of commodities.
(a) Conditions for distribution. In jurisdictions where the Food Stamp Program is in operation, there shall be no
distribution of commodities to households under the authority of any law,
except that distribution may be made
(1) on a temporary basis under programs authorized by law to meet disaster relief needs, (2) for the purpose of
the Commodity Supplemental Food
Program, 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. Distribution of com-
modities, with or without the Food
Stamp Program, shall be made whenever an ITO submits to FNS a completed application for the Food Distribution Program on all or part of a
reservation and the application is approved by FNS.
(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 the Food
Stamp Program, 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 the Food Stamp or the Food Distribution Program.
(c) Household distribution. Commodities acquired under section 416 of the
Agricultural Act of 1949, as amended;
section 32 of Pub. L. 320, 74th Congress,
as amended; section 709 of the Food and
Agricultural Act of 1963, as amended;
and section 4(a) of the Agriculture and
Consumer Protection Act of 1973, as
amended, by section 1304 of the Food
and Agriculture Act of 1977, may be
made available under part 250 of this
chapter for distribution to households
in accordance with the provisions of
that part and the additional provisions
and requirements of this part.
(d) Food distribution program benefits.
Households eligible under this part
shall receive a monthly food package
based on the number of household
members. The food package offered to
each household shall consist of a quantity and variety of commodities made
available by the Department to provide
eligible households with an opportunity to obtain a more nutritious diet
and shall represent an acceptable nutritional alternative to Food Stamp
Program benefits. The food package offered to each household by the State
agency shall contain a variety of foods
from each of the food groups in the
605
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00615
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 253.4
7 CFR Ch. II (1–1–22 Edition)
Food Distribution Program on Indian
Reservations
Monthly
Distribution
Guide Rates by Household Size—Vegetables, Fruit, Bread-Cereal-Rice-Pasta,
Meat-Poultry-Fish-Dry
Beans-EggsNuts, Milk-Yogurt-Cheese, and FatsOils-Sweets. FNS shall periodically notify State agencies of the kinds of commodities it proposes to make available
based, insofar as practicable, on the
preferences of eligible households as
determined by the State agency. In the
event one or more of the proposed commodities cannot be delivered, the Department shall arrange for delivery of
a similar commodity within the same
food group.
kpayne on VMOFRWIN702 with $$_JOB
[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]
§ 253.4 Administration.
(a) Federal administration. Within the
Department of Agriculture, the Food
and Nutrition Service (FNS) shall be
responsible for the Food Distribution
Program. FNS shall have the power to
determine the amount of any claim and
to settle and adjust any claim.
(b) State agency administration. (1) If
FNS determines that the ITO is capable of effective and efficient administration, the ITO shall administer the
Food Distribution Program on all or
part of the reservation. If FNS determines that the ITO is not capable of effective and efficient administration of
the Food Distribution Program, the appropriate agency of the State government shall be responsible for the Food
Distribution Program on all or part of
the Indian reservation. In addition, the
appropriate agency of the State government may administer the Program
on behalf of an otherwise capable tribe
if agreed to in writing by both parties.
(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 contract
Program functions to an ITO. These
functions include, but are not limited
to, outreach, preparation of bilingual
materials, commodity issuance, determination of food preferences of households, publicizing uses of commodities,
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 contract 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. (1)
The appropriate ITO of an established
Indian reservation will qualify for participation under the provisions of this
part, when that ITO files an application which demonstrates the status of
an area as an established reservation,
unless FNS determines that such
area(s) does not qualify as a reservation as that term is defined in these
regulations. For purposes of this part,
established reservation means the geographically defined area(s) currently
recognized and established by Federal
or State treaty or by Federal statute
whereby such geographically defined
area(s) is set aside for the use of Indians. Where such established areas
exist, the appropriate ITO is presumed
to exercise governmental jurisdiction,
unless otherwise determined by FNS.
(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. Any ITO
which desires to participate in the
Food Distribution Program shall file
an application with the FNS Regional
Office serving the State or States in
which the reservation is located. The
ITO shall specify if it is requesting the
Food Distribution Program alone or
606
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00616
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.5
concurrently with the Food Stamp
Program. The ITO shall also specify
whether it wants either or both programs on all or part of the reservation,
and if on part, shall describe the geographic boundaries of the relevant
part(s). Additionally, if the ITO wishes
to serve areas near the reservation, the
ITO shall describe the geographic
boundaries of the near area(s) for FNS
review and approval. Any urban place
inside a reservation can be served by
the Food Distribution Program. Any
urban place outside reservation boundaries may not be served. However, an
ITO or State agency can request the
Department to change those limitations with justification. The ITO application shall also provide other information requested by FNS, including
but not limited to, that the ITO serves
an established reservation or a reservation otherwise qualified as described in
paragraph (c) of this section. Properly
addressed applications shall be acknowledged by the FNS Regional Office in writing within five working
days of receipt.
(e) Tribal capability. (1) In determining whether the ITO on a given reservation is potentially capable of effectively and efficiently administering a
Food Distribution Program, allowing
for fulfillment of that potential
through training and technical assistance, FNS shall consult with other
sources, such as the BIA, and shall consider the ITO’s experience, if any, in
operating other government programs
and its management and fiscal capabilities. Other factors for evaluation
include, but are not limited to, the
ITO’s ability to:
(i) Order and properly store commodities,
(ii) Certify eligible households,
(iii) Arrange for physical issuance of
commodities,
(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]
§ 253.5
State agency requirements.
(a) Plan of operation. (1) The State
agency that assumes responsibility for
the Food Distribution Program shall
submit a plan of operation for approval
by FNS. Approval of the plan shall be
a prerequisite to the donation of commodities available for use by households under part 250 of this chapter.
The approved plan shall be considered
permanent, with amendments to be
added as changes in State agency administration or management of the
program, as described in the plan, are
made, or at the request of FNS. No
amendment to the plan of operation of
any State agency shall be effective
without prior approval of FNS, and
FNS may require amendment of any
plan as a condition of continuing approval. If the agency is not an ITO, the
appropriate agency of the State government shall also:
(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
607
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00617
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.5
7 CFR Ch. II (1–1–22 Edition)
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 commodities 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 the Food Stamp
Program and the Food Distribution
Program.
(ii) The value of the commodities
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 commodities.
(iii) The distribution of commodities
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 commodities 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 commodities; and
they shall not be solicited in connection with the receipt of commodities
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. The State
agency shall maintain ongoing consultation with the ITO in developing
the State agency’s written internal
policies, instructions, and forms which
are necessary to carry out the Food
Distribution Program and shall submit
them to FNS for approval prior to their
use. The State agency shall file any
comments or recommendations offered
by the ITO, for review by FNS.
(c) Staffing. Personnel used in the
certification process shall be employed
in accordance with (1) the current
standards for a Merit System of Personnel Administration or any standards later prescribed by the Office of
Personnel Management under section
208 of the Intergovernmental Personnel
Act of 1970 or (2) when appropriate, the
ITO’s personnel system if it incorporates the basic elements of a merit
system.
(d) Bilingual requirements. (1) The
State agency shall provide bilingual
staff, certification forms, including the
application form and certification notices as specified in § 253.7(a)(2) and
(b)(3), respectively, and any form developed by the State agency for reporting
changes in household composition and
income, pursuant to § 253.7(c), and outreach materials, when either an estimated 100 or more low income households or the majority of low-income
households on the reservation are a
single language minority. Single-language minority refers to households
608
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00618
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.5
which speak the same non-English language and which do not contain
adults(s) fluent in English as a second
language. If the non-English language
is spoken but not written, the State
agency shall provide bilingual staff, if
required, but not bilingual material.
(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. The State
agency shall inform potentially eligible households of the availability of
the Food Distribution Program. The
State agency shall develop and distribute printed information in the appropriate languages about the Program
and eligibility requirements. Outreach
material shall contain information
about a household’s right to file an application on the same date it contacts
the certification office. The State
agency shall be sufficiently familiar
with general eligibility requirements
for the Supplemental Food Program for
Women, Infants and Children (WIC) or
the Commodity Supplemental Food
Program, if available to reservation
residents, the Supplemental Security
Income Program (SSI), and appropriate
public and general assistance programs, to identify those applicants
whose households contain persons who
may be eligible for these programs, to
inform the applicants of their potential
eligibility, and to provide the applicants with the addresses and telephone
numbers for these programs. For example, the State agency should provide
information on the WIC program to ap-
plicants whose households contain
pregnant
women,
nursing
or
postpartum women, or children up to
the fifth birthday.
(f) Training requirements. The State
agency shall institute a training program for all personnel who are assigned
responsibility for the certification of
applicant households, for fair hearing
officers, for field supervisors who review local Food Distribution Programs,
for those involved in outreach and
those responsible for ordering, storing,
and distributing commodities.
(1) State agency training programs
shall cover eligibility criteria, certification procedures, commodity 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. The State
agency shall publicize how commodities may be used to contribute to a nutritious diet and how commodities may
be properly stored by means of visual
displays, and printed material. The
State agency shall encourage appropriate organizations, county extension
home economists, expanded Food and
Nutrition Program aides, and qualified
volunteers to provide food and nutrition information, menus, or cooking
demonstrations, as appropriate for participating households. The State agency shall encourage the dissemination of
food and nutrition information designed to improve the nutrition of
households on reservations.
(h) Records and reports. The State
agency shall keep records and submit
reports and other information as required by FNS. Records required under
this part shall be retained for a period
of three years from the date of the submission of the annual financial status
report, SF–425; except that, if any litigation, claim or audit is started before
the expiration of the three year period,
the records shall be retained until all
609
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00619
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.5
7 CFR Ch. II (1–1–22 Edition)
litigation, claims or audit findings involving the records have been resolved.
(i) Monitoring. In accordance with its
responsibility for efficient and effective program administration the State
agency shall monitor and review its operations under this part to ensure compliance with the provisions of this part
and with any applicable instructions of
FNS.
(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 commodities, fair hearing procedures, commodity 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. The
State agency shall promptly investigate complaints received of irregularities in the handling, distribution, receipt or use of commodities, other than
use of commodities by eligible households in the preparation of meals for
home consumption, and shall take appropriate action to correct any irregularities. The State agency shall also
promptly investigate complaints of
irregularities relating to certification
procedures or the delivery of services
and shall take appropriate action to
correct any irregularities or noncompliance with provisions relating to
certification procedures, provision of
services or household rights. The State
agency shall document each investigation and action in sufficient detail to
allow for FNS review of all State agency actions and information. The Department shall make investigations at
the request of the State agency and
ITO or when the Department determines an investigation is necessary.
(k) Sanctions. If the State agency
fails to comply with the provisions of
this part or its plan of operation, FNS
may:
(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 commodities 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. (1) The agency of the
State government or an ITO may appeal an initial determination by FNS
on:
(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,
610
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00620
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.5
FNS shall review supportive information submitted by the State agency or
ITO in paragraph (l)(3)(ii) of this section.
(3) Procedure—(i) Time limit. Any
State agency or ITO that wants to appeal an initial FNS determination
under paragraph (l) of this section
must notify the Administrator of FNS,
in writing, within 15 days from the
date of the determination. If the appeal
concerns either paragraph (l)(1) (i) or
(ii) of this section, the implementation
timeframes as specified in paragraph
(m) of this section and the timeframe
for determining an ITO’s capability as
specified in § 253.4(e)(2) are suspended
from the date the appeal is requested
to the date of the final determination.
(ii) Acknowledgment. Within five days
of receipt by the Administrator, of
FNS, of a request for review, FNS shall
provide the State agency or ITO with a
written acknowledgment of the request
by certified mail, return receipt requested. The acknowledgment shall include the name and address of the official designated by the Administrator,
FNS, to review the appeal. The acknowledgment shall also notify the
State agency or ITO that within ten
days of receipt of the acknowledgment,
the State agency or ITO shall submit
written information in support of its
position.
(4) Scheduling a meeting. If the Administrator, FNS, grants a meeting FNS
shall advise the State agency or ITO of
the time, date and location of the
meeting by certified mail, return receipt requested at least ten days in advance of the meeting. FNS shall schedule and conduct the meeting and make
a decision within 60 days of the receipt
of the information submitted in response to paragraph (l)(3)(ii) of this
section.
(5) Review. If no meeting is conducted
the official designated by the Administrator, FNS, shall review information
presented by a State agency or ITO
which requests a review and shall make
a final determination in writing within
45 days of the receipt of the State agency’s or ITO’s information submitted in
response to paragraph (l)(3)(ii) of this
section setting forth in full the reasons
for the determination.
(6) Final decision. The official’s decision after a meeting or a review shall
be final.
(m) Implementation. The State agency
shall implement changes required by
amendments to these regulations in accordance with schedules specified in
the amendment.
(1) Amendment 2. (i) If an ITO currently participates in, but does not administer, the Food Distribution Program on Indian Reservations:
(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
611
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00621
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 253.6
7 CFR Ch. II (1–1–22 Edition)
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))
kpayne on VMOFRWIN702 with $$_JOB
[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]
§ 253.6 Eligibility of households.
(a) Household concept. (1) The State
agency shall determine eligibility for
the Food Distribution Program on a
household basis. Household means any
of the following individuals or groups
of individuals, provided that such individuals or groups are not boarders or
residents of an institution and provided
that separate household or boarder status shall not be granted to a spouse of
a member of the household, or to children under 18 years of age under the
parental control of a member of the
household.
(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.
(2) Nonhousehold members. The following individuals residing with a
household shall not be considered
household members in determining the
household’s eligibility. Nonhousehold
members specified in paragraphs (a)(2)
(i) and (v) who are otherwise eligible
may participate in the Program as separate households.
(i) Roomers. Individuals to whom a
household furnishes lodging, but not
meals, for compensation.
(ii) SSI recipients in ‘‘cash-out’’ States.
Recipients of SSI benefits who reside
in a State designated by the Secretary
of Health, Education, and Welfare to
have specifically included the value of
the coupon allotment in its State supplemental payments. These persons are
not eligible for Food Distribution Program benefits.
(iii) Disqualified individuals. Individuals disqualified from the Food Stamp
Program for fraud, as set forth in
§ 273.16.
(iv) Illegal residents. Individuals who
are not legal residents of the United
States. While U.S. citizenship is not required for participation in the Food
Distribution Program, persons receiving food distribution benefits must be
lawfully living in the United States.
(v) Others. Other individuals who
share living quarters with the household but who do not customarily purchase food and prepare meals with the
household. For example, if the applicant household shares living quarters
with another family to save on rent,
but does not purchase and prepare food
612
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00622
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.6
together with that family, the members of the other family are not members of the applicant household.
(3) Authorized representatives. The
head of the household, spouse, or any
other responsible member of the household may designate an authorized representative to act on behalf of the
household in making application for
commodities and/or obtaining commodities as provided in § 253.7(a)(10)(i) and
§ 253.7(a)(10)(ii) respectively.
(b) Residency or citizenship. (1) All
households residing on a reservation on
which the FDPIR operates shall be eligible to apply for program benefits on
that reservation regardless of whether
they include an Indian member. All Indian tribal households as defined in
§ 253.2(c) of this part which reside in
near areas established under § 253.4(d)
of this part shall be eligible to apply
for program benefits. The ITO or State
agency shall serve all income-eligible
applicant households residing on reservations who apply for benefits, and
all income-eligible applicant Indian
tribal households residing in near
areas. The ITO or State agency administering the program in a near area
shall, for purposes of determining program eligibility, accept documentation
from a household member’s tribe of origin as proof of tribal membership. Residency shall not mean domicile nor
shall the State agency impose any
durational
residency
requirement.
However, persons on the reservation
solely for vacations shall not be considered residents. No household may participate in the Food Stamp Program or
in the Food Distribution Program in
more than one geographical area at the
same time.
(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,
and certain general assistance households. (1) Households in which all members are included in a federally aided
public assistance or supplemental security income grant, except as provided
for in paragraph (a)(2)(ii) of this sec-
tion, 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 the
household members.
(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—(1) Income eligibility standards for nonassistance households. (i)
The State agency shall apply uniform
national income eligibility standards
for the Food Distribution Program except for households in which all members are recipients of public assistance,
supplemental security income except
as provided for in paragraph (a)(2)(ii) of
this section, paragraph (c) of this section, or certain general assistance program payments as provided in § 283.6(c).
The income eligibility standards shall
be the applicable SNAP net monthly
income eligibility standards for the appropriate area, increased by the
amount of the applicable SNAP standard deduction for that area.
(ii) The income eligibility standards
for the Food Distribution Program
shall be adjusted each October 1, as
necessary, to reflect changes in the
Food Stamp Program income eligibility limits and standard deductions.
(2) Definition of income. Household income shall mean all income from whatever source, excluding only items specified in paragraph (e)(3) of this section.
(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.
613
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00623
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.6
7 CFR Ch. II (1–1–22 Edition)
(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 (e)(3)(iii) of
this section.
(E) Payments from Governmentsponsored 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 the Food Stamp Program 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. Only the following items shall be excluded from
household income and no other income
shall be disregarded:
(i) Any gain or benefit which is not in
the form of money payable directly to
the household, including:
(A) In-kind income. Nonmonetary or
in-kind benefits, such as meals, clothing, public housing, or produce from a
garden.
(B) Vendor payments. A payment
made in money on behalf of a household shall be considered a vendor payment whenever a person or organization outside of the household uses its
own funds to make a direct payment to
either the household’s creditors or a
person or organization providing a
service to the household. For example,
if a relative, who is not a household
member, pays out of its own resources
the household’s rent directly to the
landlord, the payment is considered a
vendor payment and is not counted as
income to the household. Also, payments specified by a court order or
other written support or alimony
agreement to go directly to a third
party rather than the household and
support payments which are paid to a
third party are excluded as vendor payments. Wages garnished or diverted by
employers, or money deducted or otherwise diverted from a household’s public assistance grant by a State for purposes such as managing the household’s expenses, shall not be considered
a vendor payment, since the person or
organization making the payment is
using money payable to the household
rather than its own funds.
(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
614
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00624
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.6
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 (e)(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 vaction
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 selfemployment 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 commodities, food
stamps, 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 commodities, food stamps 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. Combat pay is defined as additional payment that is received by or from a member of the
United States Armed Forces deployed
to a combat zone, if the additional pay
is the result of deployment to or service in a combat zone, and was not received immediately prior to serving in
a combat zone.
615
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00625
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
(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. (1) Households
with earned income, as defined in paragraph (e)(2)(i) of this section, shall be
allowed a deduction of twenty percent
of their earned income. Earned income
excluded under paragraph (e)(3) of this
section shall not be considered earned
income for the purpose of computing
this deduction.
(2) Households shall also receive a deduction for the actual costs for the
care of a child or other dependent when
necessary for a household member to
accept or continue employment or attend training or pursue education
which is preparatory to employment.
(3) Households will receive a deduction for legally required child support
payments paid by a household member
to or for a nonhousehold member, including payments made to a third
party on behalf of the nonhousehold
member (vendor payments). The State
agency must allow a deduction for
amounts paid towards overdue child
support (arrearages). Alimony payments made to or for a nonhousehold
member cannot be included in the child
support deduction.
(4) Households must receive a medical deduction for that portion of medical expenses in excess of $35 per
month, excluding special diets, incurred by any household member who
is elderly or disabled as defined in
§ 253.2 of this chapter. Spouses or other
persons receiving benefits as a dependent of a Supplemental Security Income
(SSI), or disability and blindness recipient are not eligible to receive this
deduction; however, persons receiving
emergency SSI benefits based on presumptive eligibility are eligible for
this deduction. The allowable medical
costs are those permitted at 7 CFR
273.9(d)(3) for the Supplemental Nutrition Assistance Program (SNAP).
(5) Households that incur monthly
shelter and utility expenses will receive a shelter/utility standard deduction, subject to the provisions below.
(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 7 CFR 273.9(d)(6)(ii) for
SNAP.
(ii) The shelter/utility standard deduction amounts are set by FNS on a
regional basis. The standard deductions
are adjusted annually to reflect
changes to SNAP Quality Control data.
FNS will advise the State agencies of
the updates prior to October 1 of each
year.
(iii) If eligible to receive a shelter/
utility standard deduction, the applicant household may opt to receive the
appropriate deduction amount for the
State in which the household resides or
the State in which the State agency’s
central administrative office is located.
[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]
§ 253.7 Certification of households.
(a) Application processing—(1) General
purpose. The application process includes filing and completing an application form, being interviewed, and
having certain information verified.
The State agency shall act promptly
on all applications. Expedited service
shall be available to household in immediate need. When the State agency
is other than the ITO, the ITO, when
appropriate, may receive copies of certification and/or termination notices to
the extent requested or agreed upon by
the household. State agencies and ITOs
may develop formalized mechanisms to
ensure ITO receipt of notices.
(2) Food Distribution Program application form. The State agency shall use
an application form acceptable to FNS.
The State agency shall consult with
the ITO in developing the application
form. The State agency shall make application forms readily accessible to
potentially eligible households and
those groups or organizations involved
in outreach efforts. The State agency
shall also provide an application form
to anyone who requests the form. State
agencies which elect joint PA or GA/
616
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00626
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.7
Food Distribution Program procedures
shall follow the requirements of paragraph (g) of this section for the application form. State agencies may also
use an abbreviated recertification
form.
(3) Filing an application. Households
must file an application for the Food
Distribution Program by submitting
the form to a certification office in
person, through an authorized representative or by mail. The State agency shall document the date the application was received. Each household has
the right to file an application form
the same day it contacts the certification office during office hours on the
reservation where the household resides. The household shall be advised
that it does not have to be interviewed
before filing the application and may
file an incomplete application form as
long as the application contains the applicant’s name and address and is
signed by a responsible member of the
household or the household’s authorized representative.
(4) Household cooperation. To determine eligibility, the application form
must be completed and signed, the
household or its authorized representative must be interviewed, and certain
information on the application must be
verified. If the household refuses to cooperate with the State agency in completing this process, the application
shall be denied upon a determination of
refusal. For a determination of refusal
to be made, the household must be able
to cooperate, but clearly demonstrate
that it will not take actions that it can
take and that are required to complete
the application process. For example,
to be denied for refusal to cooperate, a
household must refuse to be interviewed and not merely fail to appear
for the interview. If there is any question as to whether the household has
merely failed to cooperate, as opposed
to refused to cooperate, the household
shall not be denied solely for this reason. The household shall also be determined ineligible if it refuses to cooperate in any subsequent review of its eligibility. Once denied or terminated for
refusal to cooperate, the household
may reapply but shall not be determined eligible until it cooperates.
(5) Interviews. All applicant households, including those submitting applications by mail, shall have an interview with a qualified eligibility worker
prior to initial certification and all recertifications. At State agency discretion, applicants may be interviewed by
telephone or in the home. No household
shall be interviewed by telephone for
any two consecutive certifications
without a face-to-face interview. State
agencies must attempt to schedule
home visits in advance. Home visits
cannot extend required processing
standards set forth in paragraphs (a)(7)
and (a)(9) of this section. The individual interviewed may be the head of
household, spouse, any other responsible member of the household or an
authorized representative. The household, if it wishes, may be accompanied
to the interview by anyone of its
choice. The interviewer shall not only
review the information that appears on
the application, but shall explore and
resolve with the household unclear and
incomplete information. Households
shall be advised of their rights and responsibilities during the interview. The
interview shall be conducted as an official and confidential discussion of
household circumstances. The applicant’s right to privacy shall be protected during the interview. Facilities
shall be adequate to preserve the privacy and confidentiality of the interview.
(6) Verification. Verification is the use
of third party information or documentation to establish the accuracy of
statements on the application in order
to determine eligibility or ineligibility
of the household.
(i) Mandatory verification. (A) Gross
non-exempt income. The State agency
must obtain verification of each household’s gross non-exempt income prior
to certification. Households certified
under the expedited service processing
standards at paragraph (a)(9) of this
section are not subject to this requirement. Income does not need to be
verified to the exact dollar amount unless the household’s eligibility would
be affected, since Food Distribution
Program benefits are not reduced as income rises. If the eligibility worker is
unable to verify the household’s income, the worker must determine an
617
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00627
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
amount to be used for certification
purposes based on the best available information. Reasons for inability to
verify income include failure of the
person or organization providing the
income to cooperate with the household and the State agency, or lack of
other sources of verification.
(B) Legal obligation and actual child
support payments. The State agency
must obtain verification of the household’s legal obligation to pay child support, the amount of the obligation, and
the monthly amount of child support
the household actually pays. Documentation that verifies the household’s
legal obligation to pay child support,
such as a court order, cannot be used to
verify the household’s actual monthly
child support payments.
(C) Excess medical expense deduction.
The
State
agency
must
obtain
verification for those medical expenses
that the household wishes to deduct in
accordance with 7 CFR 253.6(e)(4). The
allowability of services provided (e.g.,
whether the billing health professional
is a licensed practitioner authorized by
State law or other qualified health professional) must be verified, if questionable. Only out-of-pocket expenses can
be deducted. Expenses reimbursed to
the household by an insurer are not deductible. The eligibility of the household to qualify for the deduction (i.e.,
the household includes a member who
is elderly or disabled) must be verified,
if questionable.
(D) Standard shelter/utility deduction.
A household must incur, on a monthly
basis, at least one allowable shelter/
utility expense in accordance with 7
CFR 253.6(e)(5)(i) to qualify for the
standard shelter/utility deduction. The
State agency must verify that the
household incurs the expense.
(ii) Verification of questionable information. Eligibility criteria other than
income, including residency on or near
the reservation, shall be verified prior
to certification only if they are questionable. To be considered questionable, the information on the application must be inconsistent with statements by the applicant, inconsistent
with other information on the application or previous applications, or inconsistent with other information received
by the State agency. However, due to
the difficulty in verifying whether a
group of individuals is a household,
State agencies shall generally accept
the household’s statement regarding
food preparation and consumption.
(iii)
Responsibility
for
obtaining
verification. The household has primary
responsibility for providing documentary evidence or an acceptable collateral contact to support its income
statements and to resolve any questionable information. However, the
State agency shall assist the household
in obtaining the needed verification.
The State agency shall accept any reasonable documentary evidence provided by the household and shall be primarily concerned with how adequately
the verification proves the statements
on the application. The State agency
shall also accept verification from collateral contacts so long as the collateral contacts can provide accurate
third party verification. The State
agency shall rely on the household to
provide the name of the collateral contact. The State agency is not required
to use a collateral contact designated
by the household if the collateral contact cannot be expected to provide accurate third party verification. If the
collateral contact designated by the
household is unacceptable to the State
agency, the State agency shall ask the
household to designate another collateral contact, and the State agency
shall document the casefile as to the
reason the collateral contact was rejected and an alternate was requested.
The State agency shall use collateral
contacts, rather than documentary evidence,
for
verification
if
such
verification is acceptable, and would
result in better service to the household. For example, the household may
be able to obtain a wage stub from the
employer, but the State agency could
call the employer the same day to provide the verification of income. Home
visits shall be used as verification only
if documentary evidence and collateral
contacts cannot be obtained, and the
State agency attempts to schedule the
visit in advance with the household.
(iv) Documentation. Casefiles must be
documented to support a determination of eligibility or denial. Documentation shall be in sufficient detail
to permit a reviewer to determine the
618
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00628
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.7
reasonableness and accuracy of the determination.
(v) Verification for recertification. At
recertification, the State agency shall
verify a change in income if the source
has changed or the amount has
changed by more than $50 per month
since the last time the income was
verified. State agencies may verify income which is unchanged or has
changed by $50 per month or less, provided verification is, at a minimum, required when information is questionable as defined in paragraph (a)(6)(ii) of
this section. All other changes reported
at the time of recertification shall be
subject to the same verification procedures as apply at initial certification.
Unchanged information, other than income, shall not be verified at recertification unless the information is questionable as defined in paragraph
(a)(6)(ii) of this section.
(7) Processing standards. The State
agency shall provide eligible households that complete the initial application process an opportunity to participate as soon as possible, but not later
than seven calendar days excluding
weekends and holidays after the application was filed. An application is filed
the day the State agency receives an
application containing the applicant’s
name and address and which is signed
by either a responsible member of the
household or the household’s authorized representative.
(8) Delays in processing. If the State
agency cannot determine a household’s
eligibility within seven calendar days
excluding weekends and holidays of the
date the application was filed due to
lack of verification as required in paragraph (a)(6) of this section, the State
agency shall authorize the distribution
of commodities to the household for
one month pending verification. In
order to certify the household pending
verification, the information on the application form must be complete and
indicate that the household will likely
be eligible. No further distribution of
commodities shall be made without
completing the eligibility determination.
(9) Expedited service. The State agency shall provide an opportunity to obtain commodities within one calendar
day excluding weekends and holidays
after the date the application was filed
for those households with no income in
the current month and also for those
households which, in the judgment of
the certifying agency, would likely be
eligible and would otherwise suffer a
hardship. The basis for this determination shall be recorded in the casefile.
State agencies shall provide same day
service, if possible, to households eligible for expedited service which would
likely suffer a hardship if required to
return to the office the next day. Warehouses or other distribution points
need not be open during all certification hours to meet this need. However, accessibility to federally donated
commodities by appropriate certification or other personnel should be established for households in immediate
need. When State agencies can demonstrate a need, FNS may approve
other expedited timeframes based on
circumstances such as distance to
warehouses
or
other
distribution
points. To expedite the certification of
households in immediate need the
State agency shall postpone the
verification required under paragraph
(a)(6) of this section. However, the
State agency shall verify the household’s identity and address through a
collateral contact or readily available
documentary evidence. If possible, the
household’s income statements should
be verified at the same time. The State
agency shall complete the verification
for households certified on an expedited basis prior to the distribution of
commodities to the household for any
subsequent month.
(10) Authorized representatives. The
head of the household, spouse, or any
other responsible member of the household may designate an authorized representative to act on behalf of the
household in one or all of the following
capacities:
(i) Making application for commodities.
When the head of the household or the
spouse cannot make application, another household member may apply or
an adult nonhousehold member may be
designated in writing as the authorized
representative for that purpose. The
head of the household or the spouse
should prepare or review the application whenever possible, even though
619
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00629
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
another household member or the authorized representative will actually be
interviewed. Adults who are nonhousehold members may be designated as authorized representatives for certification purposes only if they are sufficiently aware of relevant household
circumstances.
(ii) Obtaining commodities. An authorized representative of the household
may be designated to obtain commodities. Designation shall be made at the
time the application is completed except that the household may be permitted to designate an emergency authorized representative in the event
that illness or other unforeseen circumstances prevent the household
from otherwise obtaining commodities.
Designation of an emergency authorized representative must be made in
writing by a responsible member of the
household. State agencies may distribute commodities to household
members or authorized representatives
presenting an identification card or
other appropriate identification that
satisfactorily identifies the member
obtaining commodities.
(b) Eligibility determinations—(1) Determining income. (i) The State agency
shall take into account the income already received by the household during
the certification period and any anticipated income the household and the
State agency are reasonably certain
will be received during the remainder
of the certification period. If the
amount of income that is anticipated is
uncertain, that portion of the household’s income that is uncertain shall
not be counted by the State agency.
For example, a household anticipating
income from a new source, such as a
new job or recently applied for public
assistance benefits, may be uncertain
as to the timing and amount of the initial payment. These monies shall not
be anticipated by the State agency unless there is reasonable certainty concerning the month in which the payment will be received and in what
amount. If the exact amount of the income is not known, that portion of it
which can be anticipated with reasonable certainty shall be considered as
income. In cases where the receipt of
income is reasonably certain but the
monthly amount may fluctuate, and
the household’s income is close to the
income eligibility limit the State agency may elect to average income provided that such averaging does not disadvantage the household. Such averaging shall be based on income that is
anticipated to be available to the
household during the certification period. The State agency shall use income received in the past 30 days as an
indicator of future income during the
certification period unless changes in
income have occurred or can be anticipated.
(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, selfemployment 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,
620
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00630
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.7
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 incomeproducing 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. (i) The State
agency shall establish definite periods
of time within which households shall
be eligible to receive benefits. Further
eligibility shall be established upon a
recertification based upon a newly
completed application, an interview,
and such verification as required by
paragraph (a)(6)(v) of this section.
(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—(i) Notice of
eligibility. If an application is approved,
the State agency shall provide the
household a written notice of eligibility and the beginning and ending
dates of the certification period.
Households certified on an expedited
basis shall be advised that the subsequent month’s eligibility will depend
upon completion of the postponed
verification.
(ii) Notice of denial. If the application
is denied, the State agency shall provide the household written notice explaining the basis for the denial, the
household’s right to request a fair
hearing, and the telephone number and
address of the person to contact for additional information. If there is an individual or organization available
which provides free legal representation, the notice shall also advise the
621
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00631
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
household of the availability of the
service.
(iii) Notice of adverse action. (A) Prior
to any action to reduce or terminate a
household’s benefits within the certification period, except for households
voluntarily switching program participation from the Food Distribution Program to the Food Stamp Program,
State agencies shall provide the household timely and adequate advance notice before the adverse action is taken.
The notice must be issued within 10
days of determining that an adverse action is warranted. The adverse action
must take effect with the next scheduled distribution of commodities that
follows the expiration of the advance
notice period, unless the household requests a fair hearing.
(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) The reason for the adverse action;
(2) The date the adverse action will
take effect;
(3) The household’s right to request a
fair hearing and continue to receive
benefits pending the outcome of the
fair hearing;
(4) The date by which the household
must request the fair hearing;
(5) The liability of the household for
any
overissuances
received
while
awaiting the outcome of the fair hearing, if the fair hearing official’s decision is adverse to the household;
(6) The telephone number and address
of someone to contact for additional
information; and
(7) The telephone number and address
of an individual or organization that
provides free legal representation, if
available.
(D) The State agency shall continue
distribution of commodities 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
commodities 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. (1) The State
agency must develop procedures for
how
changes
in
household
circumstances are reported. Changes reported over the telephone or in person
must be acted on in the same manner
as those reported in writing. Participating households are required to report the following changes within 10
calendar days after the change becomes
known to the household:
(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 commodities
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 commodities 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.
622
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00632
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.7
(d) Recertification. (1) The State agency shall develop a procedure for notifying the household prior to or shortly
after the end of its certification period
that the household must reapply and
be recertified for continued participation. Households shall also be notified
of the date upon which termination
from participation will be effective
should the household fail to reapply before the expiration of the certification
period.
(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
commodity distribution on an uninterrupted basis.
(3) The State agency shall continue
distribution of commodities to the
household denied at the point of recertification if the household timely requests a fair hearing.
(e) Controls for dual participation—(1)
Prohibition on dual participation. No
household shall be allowed to participate simultaneously in the Food Stamp
Program and Food Distribution Program. The State agency shall inform
each applicant household of this prohibition and shall develop a method to
detect dual participation. The method
developed by the State agency shall, at
a minimum, employ lists of currently
certified households provided by and
provided to the appropriate food stamp
agency on a monthly basis. The State
agency may also employ computer
checks, address checks and telephone
calls to prevent dual participation. The
State agency shall coordinate with the
appropriate food stamp agency or agencies in developing controls for dual
participation.
(2) Choice of programs. Households eligible for either the Food Stamp Program or Food Distribution Program on
reservations on which both programs
are available may elect to participate
in either program. Such households
may elect to participate in one program, and subsequently elect the other
at the end of the certification period.
Households may also elect to switch
from one program to the other program
within a certification period only by
terminating their participation, and
notifying the State agency of their intention to switch programs. Households certified in either the Food Distribution or Food Stamp Program on
the first day of the month can only receive benefits in the program for which
they are currently certified during that
month. At the point the household
elects to change programs the household should notify the State agency of
its intent to switch programs, and
should file an application for the program in which it wishes to participate.
Households voluntarily withdrawing
from one program with the intent of
switching to the other shall have their
eligibility terminated for the program
in which they are currently certified
on the last day of the month in which
the household notifies the State agency of its intent to change programs.
Entitlement in the program for which
a household is now filing an application, if all eligibility criteria are met,
would begin in the month following the
month of termination in the previous
program.
(f) Treatment of disqualified household
members. (1) The following are not eligible to participate in the Food Distribution Program:
(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 the Food Stamp Program 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 the Food Stamp Program
has ended. The State agency must, in
cooperation with the appropriate food
stamp agency, develop a procedure that
ensures that these household members
are identified.
(iii) Households disqualified from the
Food Distribution Program for failure
623
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00633
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
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. A pro rata share of the income of the disqualified member will
be counted as income to the remaining
members. This pro rata share is calculated by dividing the disqualified
member’s earned (less the 20 percent
earned income deduction) and unearned
income evenly among all household
members, including the disqualified
member. All but the disqualified member’s share is counted as income to the
remaining household members.
(ii) Eligibility and benefits. The disqualified member will not be included
when determining the household’s size
for purposes of assigning food distribution benefits to the household or for
purposes of comparing the household’s
net monthly income with the income
eligibility standards.
(g) Joint processing PA/GA. (1) State
agencies which are responsible for and
administer both the Food Distribution
and public assistance (PA) or general
assistance (GA) programs on Indian
reservations may allow a household to
apply for the Food Distribution Program at the same time the household
applies for PA or GA benefits. However,
while PA households are categorically
eligible, GA households except for
those households in GA programs
which have been determined by FNS to
have criteria of need the same as, or
similiar to those under federally aided
public assistance programs as provided
for in § 253.6(c)(2) shall have their eligibility for commodities based solely on
Food Distribution eligibility criteria.
All criteria provided in this paragraph
(f), are applicable to State agencies
which administer both the Food Distribution and assistance programs and
which elect joint processing. Under
joint processing, the State agency shall
use joint application forms that contain all the information needed to determine eligibility for commodities or
shall attach a form for the other needed information.
(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 commodities. 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—(1) Availability of
hearings. The State agency shall provide a fair hearing to any household
aggrieved by any action of the State
agency which affects the participation
of the household in the Food Distribution Program.
(2) Timely action on hearings—(i) Time
frames for the State agency. The State
agency must conduct the hearing, arrive at a decision, and notify the
household of the decision within 60
days of receipt of a request for a fair
hearing. The fair hearing decision may
result in a change in the household’s
eligibility or the amount of commodities issued to the household based on
household size. The State agency must
implement these changes to be effective for the next scheduled distribution
624
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00634
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.7
of commodities following the date of
the fair hearing decision. If the commodities 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.
(ii) Household requests for postponement. The household may request and
is entitled to receive, a postponement
of the scheduled hearing. The postponement shall not exceed 30 days and, the
time limit for action on the decision
may be extended for as many days as
the hearing is postponed.
(3) Notification of right to request hearing. At the time of application, each
household shall be informed of its right
to a hearing, of the method by which a
hearing may be requested, and that its
case may be presented by a household
member or a representative, such as a
legal counsel, a relative, a friend or
other spokesperson. If there is an individual or organization available which
provides free legal representation, the
household shall also be informed of the
availability of that service. Hearing
procedures shall be published by the
State agency and made available to
any interested party.
(4) Time period for requesting hearing.
A household shall be allowed to request
a hearing on any action by the State
agency which occurred in the prior 90
days or which affects current benefits.
(5) Request for hearing. A request for a
hearing is any clear expression, oral or
written, by the household or its representative to the State agency that it
wishes to present its case to a higher
authority. The freedom to make such a
request shall not be limited or interfered with in any way. Upon request,
the State agency shall make available
without charge the specific materials
necessary for a household or its representative to determine whether a
hearing should be requested or to prepare for a hearing.
(6) Denial or dismissal of request for
hearing. The State agency shall not
deny or dismiss a request for a hearing
unless:
(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. The time, date and place of the
hearing shall be convenient to the
household. At least 15 days prior to the
hearing, advance written notice shall
be provided to all parties involved to
permit adequate preparation of the
case. The notice shall:
(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. Hearings shall be
conducted by an impartial official(s),
designated by the State agency, who
does not have any personal interest or
involvement in the case and who was
not directly involved in the initial determination of the action which is
being contested. The hearing official
shall:
(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
625
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00635
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.7
7 CFR Ch. II (1–1–22 Edition)
(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. The hearing
shall be attended by a representative of
the State agency which initiated the
action being contested and by the
household and/or its representative.
The hearing may also be attended by
friends or relatives of the household
upon household consent.
(10) Conduct of hearing. The household
may not be familiar with the rules of
order and it may be necessary to make
particular efforts to arrive at the facts
of the case in a manner that makes the
household feel most at ease. The household or its representative must be
given adequate opportunity to:
(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. (i) Decisions of
the hearing officials shall comply with
Federal law or regulations and shall be
based on the hearing record. The verbatim transcript or recording of testimony and exhibits or an official report
containing the substance of what transpired at the hearing, together with all
papers and requests filed in the proceeding, shall constitute the exclusive
record for a final decision by the hearing official.
(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 commodities
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. (i) The State
agency shall offer agency conferences
to households which request an immediate resolution by a higher authority
of a denial of eligibility for food distribution benefits. The State agency
may also offer agency conferences to
households adversely affected by any
agency action. The State agency shall
advise households that use of an agency conference is optional and that such
use shall in no way delay or replace the
626
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00636
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 253.8
fair hearing process. The agency conferences may be attended by the eligibility worker responsible for the agency action, and shall be attended by an
eligibility supevisor and/or the agency
director, as well as the household and/
or its representative. An agency conference may lead to an informal resolution of the dispute. However, a fair
hearing must still be held if requested
by the household.
(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]
kpayne on VMOFRWIN702 with $$_JOB
§ 253.8 Administrative disqualification
procedures for intentional program
violation.
(a) What is an intentional program violation? An intentional program violation is considered to have occurred
when a household member knowingly,
willingly, and with deceitful intent:
(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 commodities.
(b) What are the disqualification penalties for an intentional program violation? Household members determined
by the State agency to have committed
an intentional program violation will
be ineligible to participate in the program:
(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? Only the
household member determined to have
committed the intentional program
violation can be disqualified. However,
the disqualification may affect the eligibility of the household as a whole, as
addressed under paragraphs (e)(5) and
(h) of this section.
(d) Can the disqualification be appealed? Household members determined
by the State agency to have committed
an intentional program violation may
appeal the disqualification, as provided
under § 253.7(h)(1).
(e) What are the State agency’s responsibilities? (1) Each State agency must
implement administrative disqualification procedures for intentional program violations that conform to this
section.
(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
627
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00637
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.8
7 CFR Ch. II (1–1–22 Edition)
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? (1) Within 10
days of substantiating the intentional
program violation, the State agency
must issue to the household member a
notice of disqualification. The notice
must allow an advance notice period of
at least 10 days. The disqualification
must begin with the next scheduled
distribution of commodities that follows the expiration of the advance notice period, unless the household member requests a fair hearing. A notice
must still be issued in instances where
the household member is not currently
eligible or participating in the program.
(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?—(1) Appeal rights. The household member has
the right to request a fair hearing to
appeal the disqualification in accordance with the procedures at § 253.7(h).
(2) Notification of hearing. The State
agency must provide the household
member with a notification of the time
and place of the fair hearing as described in § 253.7(h)(7). The notice must
also include:
(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? (1) If the
household member did not request a
fair hearing, the disqualification must
begin with the next scheduled distribution of commodities that follows the
expiration of the advance notice period
of the notice of adverse action. If the
commodities 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. 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.
(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 commodities that follows the
date the hearing decision is issued. If
the commodities 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
628
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00638
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 253.10
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]
§ 253.9 Claims against households.
(a) What are the procedures for establishing a claim against a household for an
overissuance? (1) The State agency must
establish a claim against any household that has received more Food Distribution Program commodities than it
was entitled to receive.
(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? (1) All
adult household members are jointly
and separately liable for the repayment
of the value of any overissuance of
Food Distribution Program benefits to
the household.
(2) Responsibility for repayment continues even in instances where the
household becomes ineligible or is not
participating in the program.
kpayne on VMOFRWIN702 with $$_JOB
[64 FR 73385, Dec. 30, 1999]
§ 253.10 Commodity control, storage
and distribution.
(a) Control and accountability. The
State agency shall be responsible for
the issuance of commodities to households and the control of and account-
ability for the commodities upon its
acceptance of the commodities at time
and place of delivery.
(b) Commodity inventories. The State
agency shall, in cooperation with the
FNS Regional office, develop an appropriate procedure for determining and
monitoring the level of commodity inventories at central commodity storage facilities and at each local distribution point. The State agency shall
maintain the inventories at proper levels taking into consideration, among
other factors, household preferences
and the historical and projected volume of distribution at each site. The
procedures shall provide that commodity inventories at each central
storage facility and each local distribution point are not in excess, but are
adequate for, an uninterrupted distribution of commodities.
(c) Storage facilities and practices. The
State agency shall as a minimum ensure that:
(1) Adequate and appropriate storage
facilities are maintained. The facilities
shall be clean and neat and safe-guarded against theft, damage, insects, rodents and other pests.
(2)
Department
recommended
dunnage, stacking and ventilation
methods are followed.
(3) Commodities are stacked in a
manner which facilitates an accurate
inventory.
(4) Commodities are issued on a firstin, first-out basis.
(5) Commodities held in storage for a
protracted period of time are reinspected prior to issuance.
(6) Out-of-condition commodities are
disposed of in accordance with Department approved methods.
(7) Notification is provided to certified households of the location of distribution sites and days and hours of
distribution.
(8) An adequate supply of commodities which are available from the Department is on hand at all distribution
sites.
(9) Sufficient distribution sites, either stationary or mobile, are geographically located or routed in relation to population density of eligible
households.
629
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00639
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.11
7 CFR Ch. II (1–1–22 Edition)
(10) Days and hours of distribution
are sufficient for caseload size and convenience.
(11) Households are advised they may
refuse any commodity not desired,
even if the commodities are prepackaged by household size.
(12) Emergency issuance of commodities will be made to households certified for expedited service in accordance with the provisions of § 253.7(a)(9).
(13) Eligible households or authorized
representatives are identified prior to
the issuance of commodities.
(14) Authorized signatures are obtained for commodities issued and the
issue date recorded.
(15) Posters are conspicuously displayed advising program participants
to accept only those commodities, and
in such quantities, as will be consumed
by them.
(16) Complete and current records are
kept of all commodities received,
issued, transferred, and on hand and of
any inventory overages, shortages, and
losses.
(17) A list of commodities offered by
the Department is displayed at distribution sites so that households may
indicate preferences for future orders.
(d) Distribution. The State agency
shall distribute commodities only to
households eligible to receive them
under this part. If the State agency
uses any other agency, administration,
bureau, service or similar organization
to effect or assist in the certification
of households or distribution of commodities, the State agency shall impose upon such organization responsibility for determining that households
to whom commodities are distributed
are eligible under this part. The State
agency shall not delegate to any such
organization its responsibilities to the
Department for overall management
and control of the Food Distribution
Program.
(e) Improper distribution or loss of or
damage of commodities. State agencies
shall take action to obtain restitution
in connection with claims arising in
their favor for improper distribution,
use or loss, or damage of commodities
in accordance with §§ 250.13 and 250.15 of
this chapter.
(f) Damaged or out-of-condition commodities. The State agency shall imme-
diately notify the appropriate Food
and Nutrition Service Regional Office
(FNSRO) if any commodities are found
to be damaged or out-of-condition at
the time of arrival, or at any subsequent time, whether due to latent defects or any other reason. FNSRO shall
advise the State agency of the appropriate action to be taken with regard
to such commodities. If the commodities are declared unfit for human consumption in accordance with § 250.13(f)
of this chapter, they shall be disposed
of as provided for under that section.
When out-of-condition commodities do
not create a hazard to other food at the
same location, they shall not be disposed of until FNSRO or the responsible commodity contractor approves.
When circumstances require prior disposal of a commodity, the quantity and
manner of disposition shall be reported
to the appropriate FNSRO. If any damaged or out-of-condition commodities
are inadvertently issued to a household
and are rejected or returned by the
household because the commodities
were unsound at the time of issuance
and not because the household failed to
provide proper storage, care or handling, the State agency shall replace
the damaged or out-of-condition commodities with the same or similar kind
of commodities which are sound and in
good condition. The State agency shall
account for such replacements on its
monthly inventory report.
(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 by Amdt. 1,
47 FR 14137, Apr. 2, 1982, and further redesignated at 64 FR 73384, Dec. 30, 1999.]
§ 253.11
Administrative funds.
(a) Allocation of administrative funds to
FNS Regional Offices. Each fiscal year,
after enactment of a program appropriation for the full fiscal year and apportionment of funds by the Office of
Management and Budget, administrative funds will be allocated to each
FNS Regional Office for further allocation to State agencies. To the extent
practicable, administrative funds will
be allocated to FNS Regional Offices in
the following manner:
630
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00640
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 253.11
(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. Prior to receiving administrative funds, State agencies
must submit a proposed budget reflecting planned administrative costs to the
appropriate FNS Regional Office for
approval. Planned administrative costs
must be allowable under part 277 of
this chapter. To the extent that funding levels permit, the FNS Regional Office allocates to each State agency administrative funds necessary to cover
no less than 80 percent of approved administrative costs.
(c) State agency matching requirement.
State agencies must match administrative funds allocated to them as follows:
(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. Any
funds received under this section shall
be used only for costs that are allowable under part 277 of this chapter, and
that are incurred in operating the food
distribution program. Such funds may
not be used to pay costs that are, or
may be, paid with funds provided from
other Federal sources.
(e) Application for funds. (1) Any State
agency administering a Food Distribution Program that desires to receive
administrative funds under this section
shall submit form SF–424, ‘‘Application
631
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00641
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 253.11
7 CFR Ch. II (1–1–22 Edition)
for Federal Assistance,’’ to the appropriate FNS Regional Office at least
three months prior to the beginning of
a Federal fiscal year. The application
shall include budget information, reflecting by category of expenditure the
State agency’s best estimate of the
total amount to be expended in the administration of the program during the
fiscal year. FNS may require that detailed information be submitted by the
State agency to support or explain the
total estimated amounts shown for
each budget cost category. As required
by 2 CFR part 200, subpart D, and
USDA implementing regulations 2 CFR
part 400 and part 415, agencies of State
government shall submit the application for Federal assistance to the State
clearinghouse before submitting it to
the FNSRO. ITOs shall not be subject
to this requirement.
(2) Approval of the application by
FNS shall be a prerequisite to the payment of any funds to State agencies.
(f) Availability of funds. (1) FNS shall
review and evaluate the budget information submitted by the State agency
in relationship to the State agency’s
plan of operation and any other factors
which may be relevant to FNS’ determination as to whether the estimated
expenditures itemized by budget category are reasonable and justified. FNS
shall give written notification to the
State agency of (i) its approval or disapproval of any or all of the itemized
expenditures, (ii) the amount of funds
which will be made available, and (iii)
the period for which funds are available.
(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. (1) Payments are made to State
agencies through a Letter of Credit or
an advance by Treasury check. The
Letter of Credit funding method shall
be used by FNS except when the advances to be made within a 12 month
period are estimated to be less than
$120,000. However, FNS may, at its option, reimburse a State agency by
Treasury check regardless of the
amount in response to a valid claim
submitted by the State agency.
(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. Each State
agency which receives administrative
funds under this section shall establish
and maintain an effective system of
fiscal control and accounting procedures. Expenditures and accountability
632
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00642
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 254.2
of such funds shall be in accordance
with the appropriate provisions of part
277. The accounting procedures maintained by the State agency shall be
such as to accurately reflect the receipt, expenditure and current balance
of funds provided by FNS and to facilitate the prompt preparation of reports
required by FNS. The accounting procedures shall also provide for segregation of costs specifically identifiable to
the Food Distribution Program from
any other costs incurred by the State
agency. Any budget revisions by a
State agency which require the transfer of funds from an approved cost category to another shall be in accordance
with the budget revision procedures set
forth in 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR
part 400 and part 415, and shall be approved by FNS prior to any transfer of
funds.
(i) Return, reduction, and reallocation
of funds. (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:
(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. (1) The
State agency shall:
(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]
PART 254—ADMINISTRATION OF
THE FOOD DISTRIBUTION PROGRAM FOR INDIAN HOUSEHOLDS IN OKLAHOMA
Sec.
254.1
254.2
254.3
254.4
254.5
General purpose.
Definitions.
Administration by an ITO.
Application by an ITO.
Household eligibility.
AUTHORITY: Pub. L. 97–98, sec. 1338; Pub. L.
95–113.
SOURCE: 49 FR 32756, Aug. 16, 1984, unless
otherwise noted.
§ 254.1 General purpose.
This part sets the requirement under
which commodities (available under
part 250 of this chapter) may be distributed to households residing in FNS
service areas in Oklahoma. This part
also sets the conditions for administration of the Food Distribution Program
by eligible Oklahoma tribes determined capable by the Department.
§ 254.2 Definitions.
(a) Exercises governmental jurisdiction
means the exercise of authorities
granted to ITOs under the Oklahoma
633
VerDate Sep<11>2014
09:56 Jun 07, 2022
Jkt 256015
PO 00000
Frm 00643
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
| File Type | application/pdf |
| File Modified | 2022-10-04 |
| File Created | 2022-10-04 |