[Federal Register: February 5, 2010 (Volume 75, Number 24)]
[Rules and Regulations]
[Page 5877-5879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05fe10-1]
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Rules and Regulations
Federal Register
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[[Page 5877]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 247
[FNS-2009-0015]
RIN 0584-AD93
Commodity Supplemental Food Program (CSFP): Amendment Removing
Priority Given to Women, Infants, and Children Before the Elderly in
Program Participation
AGENCY: Food and Nutrition Service, USDA (FNS)
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations for the Commodity
Supplemental Food Program (CSFP) by removing the priority given to
women, infants, and children before the elderly in program
participation, in accordance with the amendment made by the Food,
Conservation, and Energy Act of 2008 (the 2008 Farm Bill). As a result
of this amendment, local agencies are no longer required to prioritize
benefit issuance based on population group. All CSFP applicants may be
treated equally when caseload slots become available, provided all
eligibility requirements are met.
DATES: Effective Date: This rule will become effective on March 8,
2010, without further notice.
FOR FURTHER INFORMATION CONTACT: Michelle Waters, Program Analyst, at
Policy Branch, Food Distribution Division, Food and Nutrition Service,
U.S. Department of Agriculture, Room 500, 3101 Park Center Drive,
Alexandria, Virginia 22302-1594 or by telephone at (703) 305-2662.
SUPPLEMENTARY INFORMATION:
I. Background
The Food and Nutrition (FNS) is amending CSFP regulations at 7 CFR
part 247 to incorporate the requirements of the Food, Conservation, and
Energy Act of 2008, Public Law 110-246 (the 2008 Farm Bill). Before the
2008 Farm Bill, the Agriculture and Consumer Protection Act of 1973, 7
U.S.C. 612c note, required that low-income elderly persons could only
be served by CSFP if funds were available after all women, infants, and
children were first served. Section 4221 of the 2008 Farm Bill
eliminated the priority status given to women, infants, and children
effective October 1, 2008. Following enactment of the 2008 Farm Bill,
on July 16, 2008, FNS issued a policy memorandum implementing Section
4221, which became effective on October 1, 2008. As a result of the
memorandum, FNS has not required local agencies to prioritize women,
infant, and children applicants over elderly applicants for
participation in CSFP since the effective date.
The proportion of elderly individuals participating in CSFP has
increased significantly in a relatively short amount of time. In fiscal
year (FY) 1998, about two-thirds, or 66 percent, of all CSFP
participants were elderly. Elderly participation increased to 93
percent by FY 2008. During the same time period, Special Supplemental
Nutrition Program for Women, Infants, and Children (WIC) participation
increased by over 1.3 million. The change in the CSFP participant
population is due primarily to the prevalence of the WIC program.
Because of greater accessibility of health care and nutrition education
where it is available, WIC is more appropriate for women, infants, and
children who are categorically eligible.
The 2008 Farm Bill provision recognizes the participation trend and
the fact that most women, infants, and children who are eligible to
participate in CSFP could alternatively participate in WIC, which
provides nutrition services to eligible pregnant, post-partum and
breastfeeding women, infants, and children up to the age of five, while
low-income elderly do not enjoy a choice between the two programs. WIC
operates in all areas that CSFP serves and provides food, as well as
nutrition education and health referrals. Furthermore, WIC has the
capability to serve all CSFP participants who are eligible for WIC.
II. Discussion of the Final Rule Provisions
A. Applicants Exceed Caseload Levels, 7 CFR Part 247.11
In this final rule, we remove the requirement in 7 CFR 247.11(a)
that local agencies identify the population group of each CSFP
applicant on its waiting list. This rule provides that CSFP local
agencies have the discretion to continue to collect this information,
if needed for food package planning purposes. In 7 CFR 247.11(b), we
remove the requirement that local agencies provide benefits to eligible
individuals on the CSFP waiting list in order of priority by specified
population group. The 2008 Farm Bill removed the priority given to
women, infants, and children, thus eliminating the need for this
regulatory provision. In the revised 7 CFR 247.11(b), a local agency
must certify eligible individuals consistent with civil rights
requirements at 7 CFR 247.37. Furthermore, we specify in the revised 7
CFR 247.11(b) that local agencies may certify eligible individuals from
the waiting list based on the date of their application, on a first-
come, first-served basis.
B. Certification Period, 7 CFR Part 247.16
In 7 CFR 247.16(a)(2)(iii), we remove the requirement that State
agencies may only allow local agencies to extend the certification
period for elderly persons without a formal review only if no eligible
women, infants, or children are waiting to be served. However, the
local agency must continue to verify the elderly person's address and
continued interest in receiving CSFP benefits, and the local agency
must have sufficient reason to believe the person still meets income
eligibility standards. This change brings CSFP regulations into
compliance with Section 4221 of the 2008 Farm Bill.
C. Caseload Assignment, 7 CFR Part 247.21
In the introductory text to 7 CFR 247.21(a)(2), for additional
caseload requests from State agencies, we eliminate the FNS priority
consideration given to requests to increase service to women, infants,
and children over requests to increase service to the elderly. In 7 CFR
247.21(a)(2)(iii)(A), we remove previous year program participation of
women, infants, and
[[Page 5878]]
children, and the elderly in a State as a factor of consideration for
determining the amount of additional caseload States should receive.
Likewise, in 7 CFR 247.21(a)(3) we eliminate program participant
categories as a factor of consideration in the FNS assignment of
caseload to State agencies which have approved State Plans and begin to
participate in CSFP. These three changes bring CSFP regulations into
compliance with Section 4221 of the 2008 Farm Bill.
III. Procedural Matters
A. Executive Order 12866
This rule has been determined to be not significant and was not
reviewed by the Office of Management and Budget (OMB) under Executive
Order 12866.
B. Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612). It has been certified
that this action will not have a significant impact on a substantial
number of small entities. Although State and local agencies
administering CSFP will be affected by this rulemaking, the economic
effect will not be significant.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 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 to 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 rule contains no Federal mandates (under
the regulatory provisions of Title II of the UMRA) for State, local,
and tribal governments or the private sector of $100 million or more in
any one year. This rule is, therefore, not subject to the requirements
of Sections 202 and 205 of the UMRA.
D. Executive Order 12372
CSFP is listed in the Catalog of Federal Domestic Assistance under
10.565. For the reasons set forth in the final rule in 7 CFR part 3015,
Subpart V and related Notice (48 FR 29114, June 24, 1983), the donation
of foods in such programs is included in the scope of Executive Order
12372, which requires intergovernmental consultation with State and
local officials.
E. 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.
F. Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is intended to have a preemptive effect with
respect to any State or local laws, regulations, or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect.
Prior to any judicial challenge to the provisions of this rule or the
application of its provisions, all applicable administrative procedures
must be exhausted.
G. Civil Rights Impact Analysis (CRIA)
The Office of Civil Rights (OCR) has assessed civil rights
implications and impacts of eligibility criteria, methods of
administration, and other requirements associated with this rule,
including strategies to eliminate, alleviate, or mitigate adverse and
any disproportionate civil rights impacts identified in the CRIA. Based
on a thorough review of this regulation, OCR has determined:
This change will bring CSFP regulations into compliance
with the 2008 Farm Bill;
It is important to closely monitor changes in CSFP
participation rates;
CSFP policy has directed local agencies to refer women,
infants, and children to WIC or other appropriate programs; and
OCR will incorporate implementation of this rule change
into Civil Rights Compliance Reviews to assess longitudinal trends.
H. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
part 1320) requires that OMB approve all collections of information by
a Federal agency from the public before they can be implemented.
Respondents are not required to respond to any collection of
information unless it displays a current valid OMB control number. This
rule does not contain any new information collection requirements that
are subject to review and approval by OMB.
I. E-Government Act Compliance
FNS is committed to compliance with the E-Government Act to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
J. Good Cause Determination
This action is being finalized without prior notice or public
comment under authority of 5 U.S.C. 553(b)(3). Section 4221 of the 2008
Farm Bill amends Section 5 of the Agriculture and Consumer Protection
Act of 1973 (7 U.S.C. 612c note, 87 Stat. 249) by eliminating the
requirement that all eligible women, infants, and children are to be
served before elderly persons in CSFP. The 2008 Farm Bill language is
clear and mandatory, leaving no room for discretion. CSFP regulations
are therefore inconsistent with Section 5 of the Agriculture and
Consumer Protection Act of 1973. Thus, the Department has determined in
accordance with 5 U.S.C. 553(b) that Notice of Proposed Rulemaking and
Opportunity for Public Comments is unnecessary and contrary to the
public interest and, in accordance with 5 U.S.C. 553(d), finds that
good cause exists for making this action effective without prior public
comment.
List of Subjects in 7 CFR Part 247
Education, Food assistance programs, Grant programs--health, Grant
programs--social programs, Indians, Infants and children,
Investigations, Maternal and child health, Nutrition, Reporting and
recordkeeping requirements, Surplus agricultural commodities, Women.
0
Accordingly, 7 CFR part 247 is amended as follows:
PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM
1. The authority citation for 7 CFR part 247 is revised to read as
follows:
Authority: Sec. 5, Pub. L. 93-86, 87 Stat. 249, as added by
Sec. 1304(b)(2), Pub. L. 95-
[[Page 5879]]
113, 91 Stat. 980 (7 U.S.C. 612c note); sec. 1335, Pub. L. 97-98, 95
Stat. 1293 (7 U.S.C. 612c note); sec. 209, Pub. L. 98-8, 97 Stat. 35
(7 U.S.C. 612c note); sec. 2(8), Pub. L. 98-92, 97 Stat. 611 (7
U.S.C. 612c note); sec. 1562, Pub. L. 99-198, 99 Stat. 1590 (7
U.S.C. 612c note); sec. 101(k), Pub. L. 100-202; sec. 1771(a), Pub.
L. 101-624, 101 Stat. 3806 (7 U.S.C. 612c note); sec 402(a), Pub. L.
104-127, 110 Stat. 1028 (7 U.S.C. 612c note); sec. 4201, Pub. L.
107-171, 116 Stat. 134 (7 U.S.C. 7901 note); sec. 4221, Pub. L. 110-
246, 122 Stat. 1886 (7 U.S.C. 612c note).
2. Section 247.11 is amended by revising the second sentence in
paragraph (a) and by revising paragraph (b) to read as follows:
Sec. 247.11 Applicants exceed caseload levels.
(a) * * * In establishing the waiting list, the local agency must
include the date of application and information necessary to allow the
local agency to contact the applicant when caseload space becomes
available. * * *
(b) What are the requirements for serving individuals on the
waiting list once caseload slots become available? The local agency
must certify eligible individuals from the waiting list consistent with
civil rights requirements at Sec. 247.37. For example, a local agency
may certify eligible individuals from the waiting list based on the
date the application was received on a first-come, first-served basis.
Sec. 247.16 [Amended]
0
3. Section 247.16 is amended in paragraph (a)(2)(i) by adding the word
``and'' after the semi-colon; paragraph (a)(2)(ii) by removing ``;
and'', and adding a period at the end of the sentence; and by removing
paragraph (a)(2)(iii).
0
4. In Sec. 247.21:
0
a. Revise the introductory text of paragraph (a)(2);
0
b. Remove paragraph (a)(2)(iii)(A);
0
c. Redesignate paragraphs (a)(2)(iii)(B) through (a)(2)(iii)(D) as
paragraphs (a)(2)(iii)(A) through (a)(2)(iii)(C), respectively; and
0
d. Remove the second sentence of paragraph (a)(3).
The revision reads as follows:
Sec. 247.21 Caseload assignment.
(a) * * *
(2) Additional caseload. Each participating State agency may
request additional caseload to increase program participation.
Eligibility for and assignment of additional caseload are determined in
the following manner:
* * * * *
Dated: January 27, 2010.
Julia Paradis,
Administrator, Food, Nutrition, and Consumer Services.
[FR Doc. 2010-2594 Filed 2-4-10; 8:45 am]
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