[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Rules and Regulations]
[Pages 48373-48375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22861]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 /
Rules and Regulations
[[Page 48373]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 249
RIN 0584-AD92
Senior Farmers' Market Nutrition Program Regulations,
Nondiscretionary Provisions of Public Law 110-246, the Food,
Conservation, and Energy Act of 2008
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule.
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SUMMARY: This final rule incorporates into the Senior Farmers' Market
Nutrition Program regulations, statutory provisions set forth in
Section 4231 of the Food, Conservation, and Energy Act of 2008 (Pub. L.
110-246, also known as the Farm Bill of 2008). The three provisions
include adding honey as an eligible food for purchase with Senior
Farmers' Market Nutrition Program (SFMNP) benefits, prohibiting the
value of SFMNP benefits from consideration as income or resources when
determining eligibility for other programs under any Federal, State or
local law, and prohibiting the collection of State or local tax on a
purchase of food with a benefit distributed under the SFMNP.
DATES: Effective Date: October 23, 2009.
FOR FURTHER INFORMATION CONTACT: Debra Whitford, Supplemental Food
Programs Division, Food and Nutrition Service, USDA, 3101 Park Center
Drive, Room 528, Alexandria, Virginia 22302; (703) 305-2746; e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Public Law 110-246, the Food, Conservation, and Energy Act of 2008
(also known as the Farm Bill, hereinafter referred to as ``the Act''),
includes three nondiscretionary provisions regarding the SFMNP. The
three provisions add honey as an eligible food; prohibit the value of
SFMNP benefits from consideration as income when determining
eligibility for other programs under any Federal, State or local law;
and prohibit the collection of State or local tax on a purchase of food
with SFMNP benefits. This final rule implements these nondiscretionary
SFMNP provisions verbatim as reflected in Section 4231 of the Act. No
discretion has been exercised by the Department in the implementation
of these provisions.
1. Honey as an Eligible Food
Section 4231 of the Act amends Section 4402(b)(1) of the Farm
Security and Rural Investment Act of 2002 (7 U.S.C. 3007) to add honey
as an eligible food for purchase with SFMNP benefits. This provision of
the law was effective October 1, 2008.
Previously, State agencies were only permitted to authorize fresh
fruits, vegetables and herbs as eligible foods. This provision gives
State agencies the flexibility to add honey to their eligible-foods
lists for the SFMNP. The SFMNP regulations have been revised to reflect
the addition of honey as an eligible SFMNP food.
2. No Aid Reduction
Section 4231 of the Act amends Section 4402 of the Farm Security
and Rural Investment Act of 2002 (7 U.S.C. 3007) to include a provision
that excludes SFMNP benefits from consideration as income or resources
for any purposes under any Federal, State or local law. This provision
would exclude SFMNP benefits from the determination of eligibility for
other means tested programs, bringing the SFMNP in line with other
Department of Agriculture nutrition assistance programs such as the
Supplemental Nutrition Assistance Program (SNAP), the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC),
and the WIC Farmers Market Nutrition Program (FMNP). Section 249.25 of
the SFMNP regulations has been amended to include this provision.
3. Prohibition on Collecting Sales Tax
Section 4231 of the Act further amends Section 4402 of the Farm
Security and Rural Investment Act of 2002 (7 U.S.C. 3007) to include a
provision that prohibits the collection of State or local tax on the
purchase of foods purchased with SFMNP benefits. This provision also
brings SFMNP in line with other Department of Agriculture nutrition
assistance programs such as SNAP, WIC and FMNP. Section 249.10 of the
SFMNP regulations has been amended to include this provision.
Notice and Comment
In accordance with the Secretary's Statement of Policy (36 FR
13804), it is found and determined upon good cause that it is
unnecessary to engage in the Notice and Comment provisions of 5 U.S.C.
553 normally required before the adoption of final regulations in an
FNS-sponsored program. As indicated earlier, the three provisions of
Section 4231 of the Act adopted as final rules in the SFMNP in this
rulemaking are nondiscretionary. These provisions are being
incorporated as regulations in language verbatim from the Act. The
nondiscretionary nature of Section 4231 means that notice and comment
would serve no useful purpose in the promulgation of these regulations.
Executive Order 12866
The Office of Management and Budget designated this rule as not
significant under Executive Order 12866 therefore no OMB review is
required.
Regulatory Flexibility Act
The Food, Nutrition, and Consumer Services has certified that this
rule will not have a significant economic impact on a substantial
number of small entities. The provisions of this rulemaking are
applicable to all State and local agencies, farmers, farmers' markets,
roadside stands, and community supported agriculture programs,
regardless of their size or of the volume of SFMNP business they
conduct.
Regulatory Impact Analysis
This rule has been designated as not significant by the Office of
Management and Budget; therefore, a Regulatory Impact Analysis (RIA) is
not necessary.
Need for Action
The final rule amends the SFMNP regulations to implement three
provisions mandated in Public Law
[[Page 48374]]
110-234, the Food, Conservation, and Energy Act of 2008 (also known as
the Farm Bill of 2008). One provision adds honey as an eligible food
for purchase with SFMNP benefits; another provision prohibits the
consideration of the value of SFMNP benefits as income or resources
when determining eligibility for other programs under any Federal,
State or local law; and the third provision prohibits the collection of
State or local tax on a purchase of food with SFMNP benefits.
Benefits
The benefit of these provisions is twofold. It provides State
agencies with the flexibility to add honey as an authorized food, and
it brings the SFMNP into conformance with other nutrition assistance
programs administered by USDA's Food and Nutrition Service (FNS).
Costs
The provisions of this final rule are not expected to increase
significantly the administrative burden to the Department or to State
agencies, nor will they affect overall program costs since the SFMNP is
funded by an annual appropriation.
Public Law 104-4
Title II of the UMRA establishes requirements for Federal agencies
to assess the effects of their regulatory actions on State, local, and
tribal governments and the private sector. Under Section 202 of the
UMRA, FNS generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, or tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is needed for a rule,
Section 205 of the UMRA generally requires FNS to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, more cost-effective or least burdensome alternative that
achieves the objectives of the rule.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector of $100 million or more in any one
year. Thus, the rule is not subject to the requirements of Sections 202
and 205 of the UMRA.
Executive Order 12372
The SFMNP is listed in the Catalog of Federal Domestic Assistance
under No. 10.576. For the reasons set forth in the final rule at 7 CFR
part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983),
this program is included in the scope of Executive Order 12372 that
requires intergovernmental consultation with State and local officials.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations, or policies that
conflict with its provisions or that would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the Dates paragraph of the preamble to the final
rule. Prior to any judicial challenge to the application of the
provisions of this rule, all applicable administrative procedures must
be exhausted.
In the SFMNP, the administrative procedures are as follows: (1)
Local agencies, farmers, farmers' markets, roadside stands, and
community supported agriculture programs--State agency hearing
procedures issued pursuant to 7 CFR 249.16; (2) Applicants and
participants--State agency hearing procedures pursuant to 7 CFR 249.16;
(3) sanctions against State agencies (but not claims for repayment
assessed against a State agency) pursuant to 7 CFR 249.17--
administrative appeal in accordance with 7 CFR 249.16, and (4)
procurement by State or local agencies--administrative appeal to the
extent required by 7 CFR 3016.36.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section 6(b)(2)(B) of Executive Order 13132. FNS has
considered the impact of this rule on State and local governments and
has determined that this rule does not have federalism implications.
Therefore, under Section 6(b) of the Executive Order, a federalism
summary impact statement is not required.
Civil Rights Impact Analysis
FNS has reviewed this rule in accordance with FNS Regulation 4300-
4, ``Civil Rights Impact Analysis,'' to identify and address any major
civil rights impacts the rule might have on minorities, women, and
persons with disabilities. After a careful review of the rule's intent
and provisions, and the characteristics of SFMNP participants, FNS has
determined that none of the provisions in this rule have a discernible
impact on minorities, women, or persons with disabilities that are
likely to result in inequitable treatment. FNS specifically prohibits
State agencies that administer the SFMNP, and their cooperators, from
engaging in actions that discriminate against any individual in any of
the protected classes (see 7 CFR 249.7 for the nondiscrimination policy
in the SFMNP). Where State agencies have options, and they choose to
implement a certain provision, they must implement it in such a way
that it complies with the SFMNP regulations set forth at Sec. 249.7.
Paperwork Reduction Act
This rule does not constitute a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
E-Government Act Compliance
FNS is committed to complying with the E-Government Act to promote
the use of the internet and other information technologies to provide
increased opportunities to provide for citizen access to government
information and services, and for other purposes. State plan amendments
regarding the implementation of the provisions contained in this rule,
as is the case with the entire State Plan, may be transmitted
electronically by the State agency to FNS. Also, State agencies may
provide SFMNP information, as well as their financial reports, to FNS
electronically.
List of Subjects in 7 CFR Part 249
Food assistance programs, Food donations, Grant programs--Social
programs, Indians, Aging, Nutrition education, Public assistance
programs, WIC, Senior citizens.
0
For reasons discussed above, 7 CFR Part 249 is amended as follows:
PART 249--SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP)
0
1. The authority citation for part 249 continues to read as follows:
Authority: 7 U.S.C. 3007.
0
2. In Part 249:
0
a. Add the word ``honey,'' after ``vegetables,'' wherever the phrase
``fresh, nutritious, unprepared, locally grown fruits, vegetables, and
herbs'' appears; and
[[Page 48375]]
0
b. Remove the word ``honey,'' wherever the phrase ``wild, rice, nuts of
any kind (even raw), honey, maple syrup,'' appears.
Sec. 249.4 [Amended]
0
3. In Sec. 249.4, amend paragraph (a)(14)(vii) and the first sentence
in paragraph (a)(18) by adding the word ``honey,'' after
``vegetables,''.
0
4. In Sec. 249.10, amend paragraph (b)(2)(ii) by removing the period
and adding ``; nor'' at the end of the sentence and add a new paragraph
(b)(2)(iii) to read as follows:
Sec. 249.10 Coupon, market, and CSA program management.
* * * * *
(b)* * *
(2)* * *
(iii) Collect tax on SFMNP coupon purchases.
* * * * *
0
5. In Sec. 249.25, add a new paragraph (c) to read as follows:
Sec. 249.25 Other provisions.
* * * * *
(c) Exclusion of benefits in determining eligibility for other
programs. The value of any benefit provided to any eligible SFMNP
recipient shall not be considered to be income or resources for any
purposes under any Federal, State or local law.
Dated: September 4, 2009.
Julia Paradis,
Administrator, Food and Nutrition Service.
[FR Doc. E9-22861 Filed 9-22-09; 8:45 am]
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