[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3960]
[[Page Unknown]]
[Federal Register: February 23, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
20 CFR Part 416
RIN 0960-AB86
Supplemental Security Income For the Aged, Blind, and Disabled;
Indian Judgment Funds and Per Capita Distributions
AGENCY : Social Security Administration, HHS.
ACTION : Final rules.
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SUMMARY: These final regulations update the lists of types of income
and resources that are excluded under the supplemental security income
(SSI) program by Federal laws other than the Social Security Act (the
Act) by reflecting the provisions of Public Law 97-458, enacted January
12, 1983, Public Law 98-64, enacted August 2, 1983, and Public Law 100-
241, enacted February 3, 1988. In addition, we are making two minor
technical changes. The effects of these final regulations are, in
certain cases, to provide additional exclusions from income and
resources permitting eligibility for, or increases in the payment of,
SSI benefits.
EFFECTIVE DATE: February 23, 1994.
FOR FURTHER INFORMATION CONTACT: Duane Heaton, Legal Assistant, 3-B-1
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-8470.
SUPPLEMENTARY INFORMATION:
Background:
Public Law 97-458
Public Law 97-458 was enacted January 12, 1983. Section 4 of this
legislation provides that certain Indian judgment funds held in trust
by the Secretary of the Interior or distributed per capita pursuant to
a plan prepared by the Secretary of the Interior and not disapproved by
a joint resolution of the Congress are excluded from income and
resources under the SSI program. Indian judgment funds include interest
and investment income accrued while the funds are held in trust. The
exclusion extends to initial purchases made with Indian judgment funds.
The exclusion does not apply to the proceeds from sales or conversions
of initial purchases or to subsequent purchases made with funds derived
from sales or conversions of originally excluded purchases, because
Congress sought to protect only the distributions made by the Secretary
of the Interior.
Section 4 of Public Law 97-458 also excludes from resources any
interests of Indians in trust or restricted Indian lands. Our current
regulations address only those lands that such individuals may possess.
These final regulations now also exclude from resources nonpossessory
interests in such lands.
Public Law 98-64
Public Law 98-64 was enacted August 2, 1983. This legislation
excludes all funds held in trust by the Secretary of the Interior for
an Indian tribe and distributed on a per capita basis from income and
resources for SSI purposes.
The Social Security Administration (SSA) sought advice from the
Department of the Interior on the issue of whether Alaska Native
Regional and Village Corporation (ANRVC) dividends not excluded under
the Alaska Native Claims Settlement Act (ANCSA) could be excluded under
Public Law 98-64. SSA issued interim instructions directing that ANRVC
dividend distributions paid on or after August 2, 1983, whether or not
excluded under ANCSA, would be excluded for SSI purposes pending
resolution of the issue.
The Department of the Interior has since advised SSA that funds
held by ANRVCs are not ``funds held in trust by the Secretary of the
Interior'' within the purview of Public Law 98-64. We therefore
concluded that these ANRVC dividend distributions could not qualify for
exclusion for SSI purposes under that law.
Public Law 100-241
A new law, Public Law 100-241, was enacted on February 3, 1988.
Under this law, none of the following, received from a Native
Corporation, is considered income or resources of an individual Alaska
Native or a descendant of an Alaska Native: cash (including cash
dividends on stock received from a Native Corporation) to the extent
that it does not, in the aggregate, exceed $2,000 per individual per
year (the exclusions are applied each year to the amount received in
such year); stock (including stock issued or distributed by a Native
Corporation as a dividend or distribution on stock); a partnership
interest; land or an interest in land (including land or an interest in
land received from a Native Corporation as a dividend or distribution
on stock); and an interest in a settlement trust.
Public Law 100-241 specifically provides that cash received from a
Native Corporation (including cash dividends on stock received from a
Native Corporation), to the extent that it does not, in the aggregate,
exceed $2,000 per individual per year, shall not be considered or taken
into account as an asset or resource. Although this statutory provision
does not explicitly mention ``income,'' the legislative history clearly
shows that such cash should not be considered a resource or ``otherwise
utilized in determining eligibility.'' H.R. Rep. No. 31, 100th Cong.,
1st Sess. 20 (1987). This language seems to require the exclusion of
the distributions from income as well as resources, to the extent that
they do not, in the aggregate, exceed $2,000 per individual per year in
determining eligibility and payment amount. To exclude a portion of the
distributions only from resources would result in benefit reductions or
ineligibility in months in which the distributions are received and
would be contrary to congressional intent. Therefore, we have changed
the income provisions of the appendix to subpart K to reflect the
exclusion.
In accordance with Public Law 100-241, we exclude ANRVC cash
(including cash dividends on stock received from a Native Corporation)
to the extent that this ANRVC cash does not, in the aggregate, exceed
$2,000 per individual per year. With respect to resources, we apply the
exclusion to each calendar year without regard to the prior year, so
that retained cash not exceeding $2,000 which an individual received
from a Native Corporation in a prior year will not be counted in a
subsequent year. This interpretation is consistent with the policy of
the Aid to Families with Dependent Children program. Any retained cash
exceeding $2,000 per year will be counted toward the SSI resource
limit.
Regulations Changes
The appendix to subpart K lists the types of income that are
excluded under the SSI program by Federal laws other than the Act and
explains how exclusions provided by other Federal statutes apply to
income deemed from a sponsor to an alien. We are amending the appendix
to subpart K, IV. Native Americans, on the basis of the legislation
discussed above by revising paragraph (a), deleting paragraph (b)(4),
redesignating paragraphs (b)(5) through (b)(13) as (b)(4) through
(b)(12), and adding new paragraphs (g) and (h). In addition, paragraphs
(g) and (h) provide that the exclusion applies to the sponsor's income
only if the alien lives with the sponsor, because the statute
authorizing the exclusions applies only to benefits to which the
household or member of the household would be eligible.
Similarly, we are amending subpart L of the regulations, which
deals with resources and exclusion of resources under the SSI program,
to reflect the above legislation. Specifically, we are amending
Sec. 416.1234 regarding exclusion of Indian lands and, Sec. 416.1236,
which encompasses resource exclusions provided by other statutes.
Public Comment
A Notice of Proposed Rulemaking (NPRM) was published on July 27,
1992 (57 FR 33137). A 60-day comment period was provided. The comment
period ended September 25, 1992. We received 9 comments. The comments
generally supported the NPRM. We have summarized and responded to the
issues raised in the comments below.
Comment: Seven commenters expressed concern that the Secretary of
Health and Human Services (the Secretary) might begin to apply a $2,000
annual limit to all exclusions of Indian judgment funds and per capita
distributions. They stated that the proposed regulations were unclear
as to whether ANCSA, as amended by Public Law 100-241, might adversely
affect the SSI benefits of Native Americans other than Alaska natives.
Response: ANCSA provides for the exclusion of ANRVC cash to the
extent that it does not, in the aggregate, exceed $2,000 per individual
per year. The provisions of ANCSA apply only to ANRVC distributions to
Alaska Natives. We believe this is clearly explained in the amended
regulations at paragraph IV(a) of the appendix to subpart K and at
Sec. 416.1236(a)(10). In accordance with Public Law 97-458 and Public
Law 98-64, the Secretary totally excludes all judgment fund and per
capita distributions made pursuant to those public laws.
Comment: One commenter asked why the proposed regulations did not
refer to a $2,000 limit for per capita distributions to Indian tribal
members other than Alaska Natives, because Public Law 97-458 appears to
include such a limit. Five commenters suggested that instead of
applying a $2,000 annual limit on Indian judgment fund and per capita
distributions, the Secretary should apply a $2,000 per payment limit,
in accordance with Public Law 97-458 and Public Law 98-64.
Consequently, only Indian judgment funds or per capita distributions in
excess of $2,000 per payment would be countable for SSI purposes.
Response: There appears to be some confusion over whether, as a
result of the proposed regulations, SSA would or could begin to apply a
$2,000 exclusion limit to other than ANSCA distributions. SSA never
intended to apply a $2,000 limit to such other distributions and these
final regulations clearly do not do so.
Public Law 97-458 provides that any Federal or federally assisted
program, other than Social Security Act programs, shall not consider
Indian judgment funds except for per capita shares in excess of $2,000,
as income or resources. However, the statute does not limit the amount
of payments that can be excluded under the Social Security Act
programs. Public Law 98-64 does not provide a $2,000 limit on exclusion
of funds covered by that statute.
Accordingly, for SSI purposes the Secretary excludes from income
and resources all judgment fund and per capita distributions made under
Public Law 97-458 and Public Law 98-64.
Comment: One commenter proposed that foster care payments paid to
tribal members to help defray the costs of basic needs, and that
General Assistance payments from the Bureau of Indian Affairs be
excluded from income and resources under the SSI program.
Response: We believe that the exclusions proposed by the commenter
would require the enactment of new legislation. Accordingly, in the
absence of such authority, we have not revised the regulations to
incorporate such exclusions.
Comment: One commenter suggested that the proposed regulations not
limit the exclusion of purchases contained in Pub. L. 97-458 to initial
purchases made with Indian judgment funds and per capita distributions,
because that law refers to ``* * * any purchases made with such funds *
* *''
Response: The exclusion of purchases in Pub. L. 97-458 does not
apply to proceeds from the sales or conversions of initial purchases or
to purchases made with the money derived from the sales or conversions
of initial purchases. As indicated earlier in this preamble, this
policy reflects Congressional intent to protect only the distributions
made by the Secretary of the Interior. Any purchases made subsequent to
initial purchases would not be made from distributions made by the
Secretary of the Interior. Furthermore, tracking the funds beyond the
initial purchase would be administratively difficult, if not
impossible.
Comment: One commenter suggested that the Secretary correct a
conflict between Sec. 416.1210(i) and Sec. 416.1234 as proposed.
Section 416.1210 provides a list of resource exclusions with
corresponding regulatory citations. Specifically, Sec. 416.1210(i),
states that the resource exclusion of restricted allotted land applies
to ``an enrolled member of an Indian tribe as provided in
Sec. 416.1234.'' Section 416.1234 states that the exclusion applies to
``an individual * * * who is of Indian descent from a federally
recognized Indian tribe,'' and does not limit its exclusion to an
enrolled member of an Indian tribe.
Response: We agree that Sec. 416.1210(i) may appear to be in
conflict with Sec. 416.1234. Although a change to correct this possible
inconsistency was not included in the NPRM, we believe a technical
change to correct our oversight and make our intent clear is
appropriate. Therefore, we are making a technical change to the
regulations at Sec. 416.1210(i) to read, ``Restricted allotted Indian
lands as provided in Sec. 416.1234;'' to provide a simplified and more
accurate cross-reference.
Other Regulations Changes
The provisions of Public Law 98-64 regarding the exclusion of
certain funds from income are reflected in the appendix to Subpart K,
IV. Native Americans, by the addition of paragraph (h) to these final
regulations. This obviates the need for continuance of paragraph (c)(3)
which only partially reflects the income exclusion provisions of Public
Law 98-64. Paragraph (c)(3) is duplicative and no longer needed.
Therefore, we are making a technical change to the regulations by
deleting paragraph (c)(3).
Except for the technical change in response to an issue raised by a
public comment and the technical change to remove a duplicative
provision, we are adopting these regulations as proposed.
Regulatory Procedures
Regulatory Flexibility Act
We certify that these regulations will not have a significant
impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis as provided in Public Law 96-354, the
Regulatory Flexibility Act, is not required.
Paperwork Reduction Act of 1980
These regulations impose no additional reporting and recordkeeping
requirements necessitating clearance by the Office of Management and
Budget.
(Catalog of Federal Domestic Assistance: Program No. 93.807--
Supplemental Security Income)
List of Subjects in 20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income.
Dated: November 19, 1993.
Shirley Chater,
Commissioner of Social Security.
Approved: February 8, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
Part 416 of title 20 of the Code of Federal Regulations is amended
as follows:
1. The authority citation for Subpart K of Part 416 continues to
read as follows:
Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621,
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382,
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66,
87 Stat. 154.
2. In the appendix following subpart K of part 416, under the
heading IV. Native Americans, the text preceding the note in paragraph
(a) is revised, paragraph (b)(4) and the note following it are removed,
paragraphs (b)(5) through (b)(13) are redesignated (b)(4) through
(b)(12) respectively, paragraph (c)(1) is amended by adding the word
``and'' after the semicolon, paragraph (c)(2) is amended by removing
the semicolon and the word ``and'' and adding a period, paragraph
(c)(3) is removed, and new paragraphs (g) and (h) are added to read as
follows:
Appendix to Subpart K of Part 416--List of Types of Income Excluded
Under the SSI Program as Provided by Federal Laws Other Than the Social
Security Act
* * * * *
IV. Native Americans
(a) Distributions received by an individual Alaska Native or
descendant of an Alaska Native from an Alaska Native Regional and
Village Corporation pursuant to the Alaska Native Claims Settlement
Act, as follows: cash, including cash dividends on stock received from
a Native Corporation, to the extent that it does not, in the aggregate,
exceed $2,000 per individual each year; stock, including stock issued
or distributed by a Native Corporation as a dividend or distribution on
stock; a partnership interest; land or an interest in land, including
land or an interest in land received from a Native Corporation as a
dividend or distribution on stock; and an interest in a settlement
trust. This exclusion is pursuant to section 15 of the Alaska Native
Claims Settlement Act Amendments of 1987, Public Law 100-241 (43 U.S.C.
1626(c)), effective February 3, 1988.
* * * * *
(g) Indian judgment funds that are held in trust by the Secretary
of the Interior or distributed per capita pursuant to a plan prepared
by the Secretary of the Interior and not disapproved by a joint
resolution of the Congress under Public Law 93-134 as amended by Public
Law 97-458 (25 U.S.C. 1407). Indian judgment funds include interest and
investment income accrued while such funds are so held in trust. This
exclusion extends to initial purchases made with Indian judgment funds.
This exclusion does not apply to sales or conversions of initial
purchases or to subsequent purchases.
Note--This exclusion applies to the income of sponsors of aliens
only if the alien lives in the sponsor's household.
(h) All funds held in trust by the Secretary of the Interior for an
Indian tribe and distributed per capita to a member of that tribe are
excluded from income under Public Law 98-64 (25 U.S.C. 117b). Funds
held by Alaska Native Regional and Village Corporations (ANRVC) are not
held in trust by the Secretary of the Interior and therefore ANRVC
dividend distributions are not excluded from countable income under
this exclusion. For ANRVC dividend distributions, see paragraph IV(a)
of this Appendix.
Note--This exclusion applies to the income of sponsors of aliens
only if the alien lives in the sponsor's household.
3. The authority citation for subpart L of part 416 continues to
read as follows:
Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621,
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382,
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66,
87 Stat. 154.
4. Section 416.1210(i) is revised to read as follows:
Sec. 416.1210 Exclusions from resources; general.
* * * * *
(i) Restricted allotted Indian lands as provided in Sec. 416.1234;
* * * * *
5. Section 416.1234 is revised to read as follows:
Sec. 416.1234 Exclusion of Indian lands.
In determining the resources of an individual (and spouse, if any)
who is of Indian descent from a federally recognized Indian tribe, we
will exclude any interest of the individual (or spouse, if any) in land
which is held in trust by the United States for an individual Indian or
tribe, or which is held by an individual Indian or tribe and which can
only be sold, transferred, or otherwise disposed of with the approval
of other individuals, his or her tribe, or an agency of the Federal
Government.
6. In Sec. 416.1236, paragraphs (a)(3) and (a)(10) are revised and
paragraph (a)(12) is added to read as follows:
Sec. 416.1236 Exclusions from resources; provided by other statutes.
(a) * * *
(3) Indian judgment funds held in trust by the Secretary of the
Interior or distributed per capita pursuant to a plan prepared by the
Secretary of the Interior and not disapproved by a joint resolution of
the Congress under Public Law 93-134, as amended by Public Law 97-458
(25 U.S.C. 1407). Indian judgment funds include interest and investment
income accrued while the funds are so held in trust. This exclusion
extends to initial purchases made with Indian judgment funds. This
exclusion will not apply to proceeds from sales or conversions of
initial purchases or to subsequent purchases.
* * * * *
(10) Distributions received by an individual Alaska Native or
descendant of an Alaska Native from an Alaska Native Regional and
Village Corporation pursuant to the Alaska Native Claims Settlement
Act, as follows: cash, including cash dividends on stock received from
a Native Corporation, is disregarded to the extent that it does not, in
the aggregate, exceed $2,000 per individual each year (the $2,000 limit
is applied separately each year, and cash distributions up to $2,000
which an individual received in a prior year and retained into
subsequent years will not be counted as resources in those years);
stock, including stock issued or distributed by a Native Corporation as
a dividend or distribution on stock; a partnership interest; land or an
interest in land, including land or an interest in land received from a
Native Corporation as a dividend or distribution on stock; and an
interest in a settlement trust. This exclusion is pursuant to the
exclusion under section 15 of the Alaska Native Claims Settlement Act
Amendments of 1987, Public Law 100-241 (43 U.S.C. 1626(c)), effective
February 3, 1988.
* * * * *
(12) All funds held in trust by the Secretary of the Interior for
an Indian tribe and distributed per capita to a member of that tribe
under Public Law 98-64. Funds held by Alaska Native Regional and
Village Corporations (ANRVC) are not held in trust by the Secretary of
the Interior and therefore ANRVC dividend distributions are not
excluded from resources under this exclusion. For treatment of ANRVC
dividend distributions, see paragraph IV(a)(10) of this appendix.
* * * * *
[FR Doc. 94-3960 Filed 2-22-94; 8:45 am]
BILLING CODE 4190-29-P
