Aid to Families With Dependent Children; Adult Assistance Programs; Income and Resource Disregards Related to Interests of Individual Indians in Trust or Restricted Lands

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 233

Aid to Families With Dependent Children; Adult Assistance

Programs; Income and Resource Disregards Related to Interests of

Individual Indians in Trust or Restricted Lands

AGENCY: Administration for Children and Families (ACF), HHS.

ACTION: Proposed rule.

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SUMMARY: These proposed regulations incorporate additional statutory

disregards in the rules for the Aid to Families With Dependent Children

(AFDC) program and the adult assistance programs in Guam, Puerto Rico

and the Virgin Islands. Included is the income disregard provided under

section 13736 of Pub. L. 103-66, the Omnibus Budget Reconciliation Act

of 1993, which amends section 8 of Pub. L. 93-134. This income

disregard is effective January 1, 1994. This amendment provides that up

to $2,000 per year of income derived from interests of individual

Indians in trust or restricted lands shall not be considered in

determining assistance under the Social Security Act or any other

Federal or federally assisted program.

Additionally, we propose to incorporate the resource disregard

provided under section 8 of Pub. L. 93-134, as added by section 4 of

Pub. L. 97-458, effective January 12, 1983. This provision requires

that interests of individual Indians in trust or restricted lands shall

not be considered a resource in determining eligibility for assistance

under the Social Security Act or any other Federal or federally

assisted program.

DATES: Interested persons and agencies are invited to submit written

comments concerning the proposed regulations no later than December 12,

1994.

FOR FURTHER INFORMATION CONTACT:

Mr. Mack A. Storrs, Division of AFDC Program, Office of Family

Assistance, Administrative for Children and Families, Fifth Floor, 370

L'Enfant Promenade, SW, Washington, DC 20447, Telephone (202) 401-9289.

SUPPLEMENTARY INFORMATION:

Discussion of Proposed Rule Provisions

Disregard of Certain Income Derived From Interests of Individual

Indians in Trust or Restricted Lands

Effective January 1, 1994, section 13736 of Pub. L. 103-66, the

Omnibus Budget Reconciliation Act of 1993, amends section 8 of Pub. L.

93-134 to provide that up to $2,000 per year of amounts derived from

interests of individual Indians in trust or restricted lands shall not

be counted as income. The Conference Report identifies ``leases on

individually-owned trust or restricted Indian lands'' as such interests

[H.R. Rep. No. 103-111, 103D Cong., 1st Sess., 494-495 (1993)]. The

income generally comes from interests in lands allotted to individual

Indians many years ago. Income to individual Indians generated by these

interests is likely to be quite small because many of the original

interests is allotted lands have fractionized over time due to the

inheritance of multiple heirs over several generations.

Under the proposed regulations, the disregard of up to $2,000 per

year would be applicable only to income. Any disregarded amounts

retained by an individual after the month in which they are received

would be counted as a resource. We also propose to give States the

flexibility to define the yearly period for applying the income

disregard.

Section 233.20 would be amended by redesignating paragraph

(a)(4)(i) as (a)(4)(i)(a), and adding a new paragraph (a)(4)(i)(b) to

incorporate the income disregard required by section 8 of Pub. L. 93-

134, as amended.

Disregard of Individual Indian Interests in Trust or Restricted Lands

From Consideration as a Resource

Public Law 93-134, enacted October 19, 1973, provides for the use

or distribution of certain Indian judgment funds. Public Law 97-458,

enacted January 12, 1983, made several amendments to Pub. L. 93-134.

One amendment made by section 4 of Pub. L. 97-458 was the addition of a

new section 8 to Pub. L. 93-134. Section 8 of Pub. L. 93-134 requires

that interests of individual Indians in trust or restricted lands shall

not be considered a resource in determining eligibility for assistance

under the Social Security Act of any other Federal or federally

assisted program.

Although this provision was effective in 1983, it was not

incorporated in the regulations at that time because it was considered

unnecessary. Interests in trust or restricted lands are not considered

a resource under the definition of available income and resources in

existing regulations at 45 CFR 233.20(a)(3)(ii)(D). These regulations

provide, in pertinent part, that income and resources are considered

available both when actually available and when the applicant or

recipient has a legal interest in a liquidated sum and has the legal

ability to make such sum available for support and maintenance.

However, we now propose to incorporate the resource disregard in

order to prevent any confusion that may result were we to incorporate

only the income disregard provided under section 13736 of Pub. L. 103-

66. Therefore, we would further amend section 233.20 by adding

paragraph (a)(4)(ii)(v) to incorporate the resource disregard required

by section 8 of Pub. L. 93-134, as added by section 4 of Pub. L. 97-

458.

Regulatory Procedures

Executive Order 12866, Regulatory Planning and Review

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. An assessment

of the costs and benefits of available regulatory alternatives

(including not regulating) demonstrated that the approach taken in the

regulation is the most cost-effective and least burdensome while still

achieving the regulatory objectives.

The total Federal and State cost for implementing this statutory

amendment is estimated to be $10.6 million for the first full year with

$5.8 million (55.2%) of this amount being the Federal share. Assuming

that the number of additional Indian families becoming eligible for

AFDC after the first year is an added 10 percent, then an added cost of

$0.6 million is estimated for a total Federal cost of $6.4 million.

These costs result from the statutory requirements and not from

decisions made in the proposed rule.

Regulatory Flexibility Act

We certify that these regulations will not have significant impact

on a substantial number of small entities because they primarily affect

State governments and individuals. Therefore, a regulatory flexibility

analysis as provided in Pub. L. 96-354, the Regulatory Flexibility Act,

is not required.

Paperwork Reduction Act

There will be no new reporting or recordkeeping requirements

imposed on the public or the States which would require clearance by

the Office of Management and Budget under the Paperwork Reduction Act

of 1980 (Pub. L. 95-511).

(Catalog of Federal Domestic Assistance Program 93.020, Public

Assistance Maintenance Assistance (State Aid)).

List of Subjects in 45 CFR Part 233

Aliens, Grant programs/social programs, Public assistance programs,

Reporting and recordkeeping requirements.

Dated: July 28, 1994.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Approved: September 8, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the preamble, Part 233, Chapter I, Title

45, Code of Federal Regulations, is proposed to be amended as follows:

PART 233--COVERAGE AND CONDITIONS OF ELIGIBILITY IN FINANCIAL

ASSISTANCE PROGRAMS

1. The authority citation for Part 233 is revised to read as

follows:

Authority: 42 U.S.C. 301, 602, 602 (note), 606, 607, 1202, 1302,

1352 and 1382 (note); and sec. 6 of Pub. L. 94-114, 89 Stat. 579;

Pub. L. 99-603, 100 Stat. 3359; sec. 4 of Pub. L. 97-458, 96 Stat.

2513; sec. 2 of Pub. L. 98-64, 97 Stat. 365; sec. 1883 of Pub. L.

99-514, 100 Stat. 2916; sec. 15 of Pub. L. 100-241, 101 Stat. 1812;

sec. 105(f) of Pub. L. 100-383, 102 Stat. 908; sec. 206(d) of Pub.

L. 100-383, 102 Stat. 914; sec. 105(i) of Pub. L. 100-707, 102 Stat.

4693; sec. 1(a) of Pub. L. 101-201, 103 Stat. 1795; sec. 10405 of

Pub. L. 101-239, 103 Stat. 2489; sec. 501(c) of Pub. L. 101-392, 104

Stat. 831; sec. 6(h)(2) of Pub. L. 101-426, 104 Stat. 925; and sec.

471(a) of Pub. L. 102-325, 106 Stat. 606 and 25 U.S.C. 1452.

2. Section 233.20 is amended by revising paragraphs (a)(4)(i) and

adding (a)(4)(ii)(v) to read as follows:

Sec. 233.20 Need and amount of assistance.

(a) * * *

(4) * * *

(i) Provide that in determining eligibility for public assistance

and the amount of the assistance payment, the following will be

disregarded as income:

(a) For all programs except AFDC. If the State chooses to disregard

income from all sources before applying other provisions for

disregarding or setting aside income, specify the amount that is first

to be disregarded, but not more than $7.50 per month, of any income of

an individual, child or relative claiming assistance. All income must

be included such as social security or other benefits, earnings,

contributions from relatives, or other income the individual may have;

(b) Pursuant to section 8 of Pub. L. 93-134, as amended by section

13736 of Pub. L. 103-66, disregard as income up to $2,000 per year of

amounts derived from leases or any other uses of interests of

individual Indians in trust or restricted lands. Any amounts retained

after the month in which they are received will be taken into account

as resources.

(ii) * * *

(v) As resources, pursuant to section 8 of Pub. L. 93-134, as added

by section 4 of Pub. L. 97-458, interests of individual Indians in

trust or restricted lands.

* * * * *

[FR Doc. 94-25178 Filed 10-11-94; 8:45 am]

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