[Federal Register: February 12, 2004 (Volume 69, Number 29)]
[Notices]
[Page 6933-6936]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe04-14]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
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[[Page 6933]]
DEPARTMENT OF AGRICULTURE
Privacy Act: Proposed New System of Records
AGENCY: Office of the Secretary, USDA.
ACTION: Notice of a proposed new privacy system of records.
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SUMMARY: In accordance with the requirements of the Privacy Act of
1974, as amended, 5 U.S.C. 552(a), the United States Department of
Agriculture (USDA) Food and Nutrition Service (FNS) is giving notice
that it proposes to establish a new system of records: USDA/FNS-11,
entitled Information on Persons Identified as Responsible for Serious
Deficiencies, Proposed for Disqualification, or Disqualified to
Participate as Principals or Family Day Care Home Operators in the
Child and Adult Care Food Program (CACFP). This system consists of
information on individuals (1) who have been identified by an
administering State agency as having responsibility for serious
deficiencies in the operation of the CACFP in institutions or sponsored
centers which operate the program; (2) who have been proposed for
disqualification from participation in the CACFP as a result of having
been determined to be responsible for an uncorrected serious deficiency
in the operation of the program in a institution or sponsored center;
or (3) who have been disqualified from participation in the CACFP as
principals of institutions, sponsored centers, or as operators of day
care homes, as a result of being determined to be responsible for an
uncorrected serious deficiency in the operation of an institution, a
sponsored center, or a family day care home that participates in the
program. Within the system of records, the records of persons who have
been disqualified from participation in the program will be considered
to be part of the National Disqualified List, which also includes the
names of institutions that have been disqualified from participation in
the CACFP.
A principal means any individual who holds a management position
within, or is an officer of, an institution or a sponsored center
participating in the CACFP, including all members of the institution's
board of directors or the sponsored center's board of directors. A day
care home means an organized nonresidential child care program for
children enrolled in a private home, licensed or approved as a family
or group day care home and under the auspices of a sponsoring
organization.
This list will be made available to State agencies and sponsoring
organizations that administer and operate the CACFP. For individuals
who have been identified as having responsibility for a serious
deficiency at an institution or who have been proposed for termination
as responsible principals or individuals, the information will include
the individual's name, the name of the State agency which identified
the individual as responsible for the serious deficiency or proposed
the individual to be disqualified, the reason for the serious
deficiency or proposed disqualification, the name and address of the
institution with which the individual was associated, and the
individual's title at that institution. For individuals who have been
disqualified as a result of being determined to be responsible for an
uncorrected serious deficiency in the operation of an institution or a
sponsored center, in addition to the information listed in the
preceding sentence, the system will include the individual's mailing
address and date of birth, the effective date of the disqualification,
and whether the individual owes a debt to the CACFP. For individuals
who have been disqualified as a result of being determined to be
responsible for an uncorrected serious deficiency as the operator of a
family day care home, the information will include name, mailing
address, date of birth, reason for the disqualification, effective date
of the disqualification, and whether the individual owes a debt to the
program.
DATES: Comments must be received on or before March 15, 2004 to be
assured of consideration. Comments will also be accepted via e-mail if
sent no later than 11:59 p.m. on March 15, 2004. This notice will be
effective April 12, 2004 unless modified by a subsequent notice to
incorporate comments received by the public.
ADDRESSES: Comments should be addressed to: Mr. Terry Hallberg, Chief,
Program Analysis and Monitoring Branch, Child Nutrition Division, Food
and Nutrition Service, USDA, Room 638, 3101 Park Center Drive,
Alexandria, Virginia 22302. Comments will also be accepted via e-mail
sent to CNDPROPOSAL@FNS.USDA.GOV. All written submissions will be
available for public inspection at this location Monday through Friday,
8:30 a.m.-5 p.m.
FOR FURTHER INFORMATION CONTACT: Susan Fouts at (703) 305-2600.
SUPPLEMENTARY INFORMATION:
Statutory Basis
Section 243(c) of Public Law 106-224, the Agricultural Risk
Protection Act of 2000, amended Sec. 17(d)(5) of the Richard B. Russell
National School Lunch Act (42 U.S.C. 1766 (d)(5)(E)(i) and (ii))
requires the USDA to maintain a list of institutions, family day care
home providers, and individuals that have been terminated or otherwise
disqualified from participation in the CACFP. The law also requires the
USDA to make the list available to State agencies for their use in
reviewing applications to participate and to sponsoring organizations
to ensure that they do not employ as principals any persons who are
disqualified from the program. This statutory mandate has been
incorporated into Sec. 226.6(c)(7) of the CACFP regulations.
Background
In order to implement this and other provisions of Public Law 106-
243, which was designed to improve the management and integrity of the
CACFP, the USDA has published an interim rule entitled, ``Child and
Adult Care Food Program: Implementing Legislative Reforms to Strengthen
Program Integrity'' (67 FR 43447, June 27, 2002). As amended by the
interim rule, Sec. 226.6(b)(12) of the CACFP regulations prohibits
State agencies from approving an institution's application to
participate in the program if either the institution or any of its
principals is on the National Disqualified List. This section of the
regulations also prohibits State agencies from approving an application
[[Page 6934]]
submitted by a sponsoring organization on behalf of a facility if the
facility or any of its principals is on the National Disqualified List.
In addition, sponsoring organizations are prohibited (introductory
paragraph of Sec. 226.16(b) and Sec. 226.6(c)(7)(iv)(B)) from
submitting an application on behalf of a facility if either the
facility or any of its principals is on the National Disqualified List
and are prohibited from employing in a principal capacity any
individual who is on the National Disqualified List (Sec.Sec.
226.6(c)(3)(ii)(B), 226.6(c)(6)(ii)(G)(2), and 226.6(c)(7)(iv)(A)).
Inclusion of ``Responsible Principals'' and ``Responsible Individuals''
of Institutions in the System of Records
An institution that operates the CACFP is disqualified from
participation in the program and placed on the National Disqualified
List after having been declared seriously deficient; failing to take
the required corrective action within the stated period of time; being
notified of the State agency's intent to terminate their program
agreement; and being offered an administrative review (appeal) of the
State agency's proposed termination. When a State agency determines
that an institution is seriously deficient, it must also identify the
principals or individuals associated with the institution whose actions
or conduct led to the institution's serious deficiency, and notify
these persons that (1) they have been determined to be a ``responsible
principal'' or a ``responsible individual'' for the serious deficiency,
and (2) the failure to correct the serious deficiencies in the allotted
time will result in the State agency's proposed termination of the
institution's agreement and proposed disqualification of the
institution and the responsible principals and individuals from
participation in the program. The State agency must submit a copy of
the notification of serious deficiency, including the names of the
responsible principals and individuals, to the FNS regional office
(FNSRO) that oversees the operation of the CACFP in that State.
If the serious deficiency is not corrected or if the State agency
determines that the responsible principal(s) and individual(s) should
be proposed for disqualification independently of the disqualification
of the institution, it must notify the responsible principals and
individuals that the State agency proposes to disqualify them and
include them on the National Disqualified List and offer them an
administrative review of the State agency's proposed termination. The
State agency must provide a copy of the notice of proposed
disqualification to the FNSRO.
Section 226.6(k)(8) of the regulations requires that, in most
instances, an individual's appeal will be considered as part of an
institution's appeal of its proposed termination and disqualification.
However, the administrative review officer may separate the appeals of
the institution and the responsible principals and/or responsible
individuals if (a) the institution does not appeal, but the individual
wishes to do so or if (b) either the institution or the individual
demonstrates to the administrative review officer's satisfaction that
their interests conflict.
If the appeals of the institution and the responsible principal(s)
and responsible individual(s) have not been separated by the
administrative review officer, when the State agency terminates the
institution's program and disqualifies it from participation in the
CACFP, it will also disqualify those persons named as ``responsible
principals'' or ``responsible individuals,'' and will submit a copy of
the termination notice (including the name(s), birth date(s), and
address(es) of responsible principals and responsible individuals) to
the FNSRO. If the institution is not terminated and disqualified but
the responsible principals and individuals are disqualified, the State
agency must notify the individuals of the disqualification and send a
copy of the notice to the FNSRO. The FNSRO will transmit information on
disqualified institutions and disqualified responsible principals and
individuals to FNS Headquarters, which will then include the
individual(s) on the National Disqualified List. State agencies are
prohibited (Sec. 226.6(b)(12)) from approving the application of an
institution that employs any person on the National Disqualified List
in a principal capacity, or of a facility if the facility or any of its
principals is on the National Disqualified List. Sponsoring
organizations are prohibited (introductory paragraph of Sec. 226.16(b)
and Sec. 226.6(c)(7)(iv)(B)) from submitting an application on behalf
of a facility if either the facility or any of its principals is on the
National Disqualified List and are prohibited from employing in a
principal capacity any individual who is on the National Disqualified
List (Sec.Sec. 226.6(c)(3)(ii)(B), 226.6(c)(6)(ii)(G)(2), and
226.6(c)(7)(iv)(A)).
Inclusion of Operators of Family Day Care Homes in the System of
Records
The operator of a family day care home will be placed on the
National Disqualified List only after having been declared seriously
deficient by the operator's sponsoring organization; failing to take
the required corrective action within the stated period of time; being
notified of the sponsoring organization's intent to terminate the
operator's CACFP agreement; and being offered an administrative review
of the sponsoring organization's proposed termination. If the operator
of the family day care home fails to exercise his/her appeal rights, or
if he/she loses the appeal, the sponsoring organization will terminate
the operator's program agreement and will submit a copy of the
termination notice (including the name, mailing address and date of
birth of the family day care home operator, the effective date of the
termination, the reasons for the termination, and whether the operator
owes a debt to the program) to the State agency. The State agency will
forward the information to FNS, which will include the family day care
home operator on the National Disqualified List. The National
Disqualified List is maintained at FNS Headquarters, and will be shared
with other State administering agencies and sponsoring organizations.
Period of Time on the National Disqualified List
Once placed on the National Disqualified List, a responsible
principal or individual or the operator of a family day care home will
remain on the list for 7 years from the effective date of the
disqualification or until acceptable corrective action is taken. Also,
no responsible principal or individual or operator of a family day care
home can be removed from the list until any debt owed to the program is
repaid in full, even if the full 7 years has elapsed.
In order for a responsible principal or individual to be removed
from the National Disqualified List, he/she must demonstrate to the
satisfaction of both the State agency and FNS that appropriate
corrective action has been taken. In order for a family day care home
operator to be removed from the National Disqualified List, he/she must
demonstrate to the satisfaction of the State agency that appropriate
corrective action has been taken.
Purpose of the National Disqualified List
The purpose of maintaining a National Disqualified List and making
it
[[Page 6935]]
available to State agencies and sponsoring organizations is to provide
these entities with a tool for promoting CACFP integrity by preventing
several situations from occurring. First, it prevents institutions
whose CACFP agreements were terminated for cause in one State from
simply moving to another State and reapplying for program
participation. Second, it prevents individuals responsible for fraud or
serious mismanagement from continuing to be involved in CACFP
administration by forming a new corporate entity and entering the
program under a different organizational name. Third, it prevents
individuals associated with a disqualified institution from re-entering
the CACFP as a family day care home provider, as a principal with
another institution, or as a principal in a sponsored center. Finally,
it prevents family day care home providers terminated for cause by one
sponsoring organization from re-entering the CACFP under the auspices
of a different sponsoring organization.
Reason for This Notice
Because this system of records contains personal information about
individuals (i.e., names, birth dates, and addresses) as well as the
nature of the serious deficiency for which they were responsible, the
Privacy Act of 1974, as amended, requires publication of a notice in
the Federal Register announcing the existence and character of the
system of records and the routine uses to which it is put. Therefore,
FNS is proposing the following routine use for this system of records
in order to fully comply with this legislative mandate. This system of
records is routinely updated and the data on individuals who have been
disqualified from participation in the CACFP is made available to all
State agencies and sponsoring organizations administering the program.
A ``Report on a New System,'' required by 5 U.S.C. 552a(r), as
implemented by OMB Circular A-130, was sent to the Chair, Senate
Committee on Governmental Affairs, the Chairman, House Committee on
Government Reform, and to the Administrator, Office of Information and
Regulatory Affairs, of the Office of Management and Budget on or before
February 12, 2004.
Dated: February 5, 2004.
Ann M. Veneman,
Secretary.
USDA/FNS-11
SYSTEM NAME:
USDA/FNS-11, Information on Persons Identified as Responsible for
Serious Deficiencies, Proposed for Disqualification, or Disqualified to
Participate as Principals or Family Day Care Home Operators in the
Child and Adult Care Food Program (CACFP).
SECURITY CLASSIFICATION:
None.
SYSTEM LOCATION:
This system of records is under the control of the Deputy
Administrator, Special Nutrition Programs, Food and Nutrition Service,
United States Department of Agriculture, 3101 Park Center Drive,
Alexandria, Virginia 22302. The data on individuals who have been
identified or proposed for disqualification because of responsibility
for a serious deficiency in an institution or sponsored center which
operates the CACFP will be maintained at the FNS Regional Office which
oversees the State agency which has made the determination of serious
deficiency or proposed the disqualification. The data on individuals
who have been disqualified from participation in the CACFP will be
maintained in the Child Nutrition Division of the Food and Nutrition
Service.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
The system consists of information on individuals that have been
determined to be responsible for serious deficiencies, proposed for
disqualification, or disqualified from participation in the CACFP. The
list will include both individuals disqualified based on responsibility
for serious deficiencies in the operation of CACFP independent centers
and sponsoring organizations based on regulations in place before July
29, 2002, as well as all individuals that are disqualified from CACFP
participation after July 29, 2002.
CATEGORIES OF RECORDS IN THE SYSTEM:
For individuals who have been determined to be responsible for a
serious deficiency at an institution or who have been proposed for
disqualification as responsible principals or individuals of a
seriously deficient institution: individual's name, name and address of
the institution, title or position held with institution, reason for
determination of serious deficiency or proposed disqualification, name
of the State agency making the determination of serious deficiency or
proposing disqualification.
For individuals who have been disqualified as responsible
principals or individuals: all of the information in the previous
paragraph, plus the individual's mailing address, the individual's date
of birth, the effective date of the disqualification and whether the
individual owes a debt to the CACFP.
For family day care home providers: individual's name, address,
date of birth, reason for disqualification, name of the sponsoring
organization, state agency imposing disqualification, termination date,
and whether any debt is owed to the CACFP.
Since State agencies were not required to collect the mailing
addresses or birth date of disqualified responsible principals and
individuals and operators of family day care homes prior to July 29,
2002, this information may not be available for individuals
disqualified from the CACFP before this date.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
42 U.S.C. 1766 (d)(5)(E)(i) and (ii), the Richard B. Russell
National School Lunch Act.
PURPOSE:
To promote integrity in the CACFP by providing State administering
agencies and sponsoring organizations with the names of institutions,
family day care home operators and individuals that have been
terminated or otherwise disqualified from participating in the CACFP.
Once disqualified, these institutions, individuals, and day care home
operators will be prohibited from participating in the program for 7
years from the effective date of the disqualification. Institutions and
individuals associated with institutions may be removed from the list
earlier if the State agency and FNS concur that the serious deficiency
that caused their placement on the list has been corrected; operators
of family day care homes may be removed earlier if the State agency
concurs that the serious deficiency that caused their placement on the
list has been corrected. However, no institution, individual, or family
day care home operator may be removed from the list if they owe a debt
to the CACFP.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
(1) USDA/FNS will disclose information from this system of records
on individuals who have been disqualified from participation in the
CACFP to every agency, whether State or FNS, that administers the CACFP
directly in the States or at the Federal level, and to every sponsoring
organization participating in the program. The information will be
available to the State agency Directors
[[Page 6936]]
and staff members who make decisions about application approval or
termination from participation in the program or, in the case of
sponsoring organizations, make hiring decisions or submit applications
for approval of family day care home operators to the State agency.
(2) USDA/FNS may disclose information from this system of records
to the Department of Justice when: (a) The agency or any component
thereof; or (b) any employee of the agency in his or her official
capacity where the Department of Justice has agreed to represent the
employee; or (c) the United States Government is a party to litigation
or has an interest in such litigation, and by careful review, the
agency determines that the records are both relevant and necessary to
the litigation, and the use of such records by the Department of
Justice is therefore deemed by the agency to be for a purpose that is
compatible with the purpose for which the agency collected the records.
(3) USDA/FNS may disclose information from this system of records
to a court or adjudicative body in a proceeding when: (a) The agency or
any component thereof; or (b) any employee of the agency in his or her
official capacity; or (c) any employee of the agency in his or her
individual capacity where the agency has agreed to represent the
employee; or (d) the United States Government is a party to litigation
or has an interest in such litigation, and by careful review, the
agency determines that the records are both relevant and necessary to
the litigation, and the use of such records is therefore deemed by the
agency to be for a purpose that is compatible with the purpose for
which the agency collected the records.
(4) USDA/FNS may disclose information from this system of records
when a record on its face, or in conjunction with other records,
indicates a violation or potential violation of law, whether civil,
criminal or regulatory in nature, and whether arising by general
statute or particular program statute, or by regulation, rule, or order
issued pursuant thereto, disclosure may be made to the appropriate
agency, whether Federal, foreign, State, local, or Tribal, or other
public authority responsible for enforcing, investigating or
prosecuting such violation or charged with enforcing or implementing
the statute, or rule, regulation, or order issued pursuant thereto, if
the information disclosed is relevant to any enforcement, regulatory,
investigative or prosecutive responsibility of the receiving entity.
(5) USDA/FNS may disclose information from this system of records
to a Member of Congress or to a congressional staff member in response
to an inquiry of the congressional office made at the written request
of the constituent about whom the record is maintained.
(6) USDA/FNS may disclose information from this system of records
to the National Archives and Records Administration or to the General
Services Administration for records management inspections conducted
under 44 U.S.C. 2904 and 2906.
POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
Records are maintained on computer disks, in computer files on the
FNS network, and in file folders at FNS Regional offices and at FNS
Headquarters; information on individuals who have been disqualified
from participation in the CACFP will also be available in a password-
protected environment on the Internet.
RETRIEVABILITY:
Records are retrieved by the individual's name.
SAFEGUARDS:
Access to records is limited to those persons who process the
records for the specific routine uses stated above. Computer disks are
kept in physically secured rooms or cabinets. Files on the network are
only available to persons with authorized access to the network. Paper
records are segregated and physically stored in locked cabinets.
Internet access will be restricted to those State agency or sponsoring
organization staff with a need to know the list's contents and with
password access to the list.
RETENTION AND DISPOSAL:
Once placed on the National Disqualified List, a responsible
principal or individual or the operator of a family day care home will
remain on the list for 7 years from the effective date of the
disqualification or until acceptable corrective action is taken. Also,
no responsible principal or individual or operator of a family day care
home can be removed from the list until any debt owed to the CACFP is
repaid in full, even if the full 7 years has elapsed.
SYSTEM MANAGER AND ADDRESS:
Director, Child Nutrition Division, Food and Nutrition Service,
United States Department of Agriculture, 3101 Park Center Drive, Room
638, Alexandria, Virginia 22302.
NOTIFICATION PROCEDURE:
Individuals may request from the system manager identified above
information regarding this system of records or whether the system
contains records pertaining to them. Any individual requesting such
information must provide his or her name, birth date, and address.
RECORD ACCESS PROCEDURES:
Individuals may obtain information about records in the system
pertaining to them by submitting a written request to the system
manager listed above. The envelope and letter should be marked
``Privacy Act Request'' and must include the name and address of the
individual for whom the request is made.
CONTESTING RECORD PROCEDURES:
Before being included in this system of records, operators of day
care homes, responsible principals, and responsible individuals have
been afforded the right to an administrative review of the findings
that led to the action to disqualify them from CACFP participation.
Therefore, the procedures set forth in this provision are not intended
as an additional method of appeal.
Individuals desiring to contest or amend information maintained in
the system should direct their requests to the System Manager listed
above. The request should state the reason(s) for contesting the
information and provide any available documentation to support the
requested action.
RECORD SOURCE CATEGORIES:
Information in this system is provided to FNS by State agencies
that administer the CACFP in the States.
EXEMPTIONS CLAIMED FOR THE SYSTEM:
None.
[FR Doc. 04-3116 Filed 2-11-04; 8:45 am]
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