[Federal Register Volume 59, Number 109 (Wednesday, June 8, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-13891] [[Page Unknown]] [Federal Register: June 8, 1994] VOL. 59, NO. 109 Wednesday, June 8, 1994 DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 246 Special Supplemental Food Program for Women, Infants and Children (WIC); Food Funding Formula Rule AGENCY: Food and Nutrition Service, USDA. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This rule proposes revisions to funding and funds allocation procedures for the Special Supplemental Food Program for Women, Infants and Children (WIC) in order to simplify and update the funding process in anticipation of a fully funded program. The proposed amendments will provide a greater share of funds to States receiving comparatively less than their fair share of funds based on their WIC income eligible population, simplify and better manage the food funding allocation process by eliminating obsolete features and provide all State agencies with stability funding, adjusted for inflation, to the extent funds are available. DATES: To be assured of consideration, written comments must be received on or before August 8, 1994. Since comments may be accepted simultaneously on several separate rulemakings, commenters on this proposed rule are asked to label their comments ``Food Funding Formula Rule''. ADDRESSES: Comments may be mailed to Stanley C. Garnett, Director, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, room 540, Alexandria, Virginia 22302, (703) 305-2746. All written submissions will be available for public inspection at this address during regular business hours (8:30 a.m. to 5 p.m.), Monday through Friday. FOR FURTHER INFORMATION CONTACT: Deborah McIntosh, Chief, Program Analysis and Monitoring Branch, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2710. SUPPLEMENTARY INFORMATION: Classification Executive Order 12866 This proposed rule is issued in conformance with Executive Order 12866 and has been classified as significant. Regulatory Flexibility Act This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that review, the Administrator of the Food and Nutrition Service (FNS) has certified that this rule will not have a significant impact on a substantial number of small entities. The rule affects how the Department will calculate food grant allocations for WIC State agencies. Paperwork Reduction Act No new data collection or recordkeeping requiring Office of Management and Budget (OMB) approval under the Paper Reduction Act of 1980 (44 U.S.C. 3501 through 3502) are included in this proposed rule. Executive Order 12372 This program is listed in the Catalog of Federal Domestic Assistance Programs under 10.557 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials (7 CFR part 3015, subpart V, and final rule-related notice published June 24, 1983 (48 FR 29114)). Executive Order 12778 This proposed rule has been reviewed under Executive Order 12778, Civil Justice Reform. This rule is intended to have 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 unless so specified in the ``Effective Date'' paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the WIC Program, the administrative procedures are as follows: (1) Local agencies and vendors--State agency hearing procedures issued pursuant to 7 CFR 246.18; (2) applicants and participants--State agency hearing procedures issued pursuant to 7 CFR 246.9; (3) sanctions against State agencies (but not claims for repayment assessed against a State agency) pursuant to 7 CFR 246.19--administrative appeal in accordance with 7 CFR 246.22; and (4) procurement by State or local agencies-- administrative appeal to the extent required by 7 CFR 3016.36. Background Need for Revisions to the Food Funds Allocation Process The WIC Program has consistently demonstrated its effectiveness in promoting the health and nutritional well-being of low-income women, infants and children at nutritional or medical risk, and has experienced large increases in its appropriation for the last several years. Due to its success, the WIC Program is likely to soon achieve ``full funding'' whereby it is estimated that all eligible women, infants and children who apply could obtain program benefits. In moving toward the full funding objective, the Department finds that its current food funding formula presents impediments to funding equality and is so complex it is difficult to execute and predict its results. Historically, WIC has never had enough funds to serve all who are in need of, and eligible for, its benefits. Certain State agencies receive levels of funding that allow them to serve more of their eligible populations than others. The concept of full funding for WIC as set forth by the Administration does not guarantee unlimited funds nor does it establish the WIC Program as a federal entitlement program. As before, WIC must manage within a finite appropriation level. However, a fully funded WIC Program implies that the appropriation level will more adequately provide for all eligible persons who apply for benefits, and that each State agency should have an equal chance to serve their eligible population. Currently, many State agencies are serving lesser proportions of their WIC-eligible population than other State agencies. Therefore, the formula must support growth among State agencies which are now funded to serve a lesser proportion of their eligible population, as well as allocate funds fairly among all State agencies under a stable, fully funded program. Therefore, to better prepare the WIC Program for full funding, the proposed revisions to the food funding formula strive for three major objectives: (1) To provide a greater share of funds to State agencies receiving comparatively less than their fair share of funds based on their WIC income eligible population; (2) to simplify the food funding formula and delete obsolete components; and (3) to maintain current services to eligible participants that State agencies are serving to the extent funds are available. FNS has recognized for some time that constraints of the current funds allocation process necessitated revisions to the food funding formula. Additionally, the National Association of WIC Directors (NAWD) formed a special Funding Formula Committee (Committee) to provide recommendations to FNS for revising the formula and improving methods for allocating WIC food funds. The Committee views are referenced in this preamble on particular issues. The Committee recommendations focused on how full funding should alter the funding formula for the future. The limited funds provided to the WIC Program in the past were not adequate to fully reach the eligible population. Consequently, the current funding formula sought to preserve participation gains that State agencies achieved. If additional funds were available, funds were allocated to foster program growth, particularly to the pregnant women and infant population at highest risk. Service to this highest risk group is now largely accomplished. A fully funded program must now strive to achieve greater funding equity among all State agencies. Assumptions Under Full Funding Cost Control Efforts. The President's goal of fully funding the WIC Program strongly assumes that current policies and procedures affecting cost containment strategies will continue. Cost savings through cost containment initiatives, including infant formula rebates, have been highly effective in the WIC Program in recent years, creating savings that have allowed the program to assist millions of additional participants. State agencies are required to continue infant formula rebates, and are encouraged to explore other cost containment initiatives to manage the WIC Program more efficiently and effectively and to ensure that the President's goal can be realized. Due to the intense scrutiny and competition for funds that all Government programs now face, it is imperative that in a fully funded program, WIC State agencies continue to monitor and aggressively pursue cost containment strategies. The Department seeks comments and suggestions as to how the policies, rules or procedures could be adjusted to better reward efficient State management and cost containment efforts without putting upward pressure on program costs or undue burdens on the program. State agencies may have valuable insights to share with the Department on cost containment strategies and on strengthening standards for cost containment to insure that existing structural incentives for cost efficiency will be maintained. WIC Food Costs. WIC Program food costs account for approximately 75 percent of the overall WIC budget. Therefore, it is critical that State agencies use these food dollars wisely so that additional WIC participants can be served. Since funds are allocated based on the national average food package cost, State agencies that have food package costs above the national average will not be able to serve the number of participants estimated to be served with their allocation. This will function as an incentive for these State agencies to manage their food package costs more efficiently in order to serve all eligibles in their respective jurisdictions. State agencies currently are required to employ various strategies to reduce food costs, such as infant formula rebates and effective vendor management. Additional strategies found effective in controlling costs include, but are not limited to, food container size and name brand management practices, and rebates on foods other than infant formula. Many States are utilizing these additional strategies; however, other State agencies may need to implement additional cost containment initiatives to reduce their per person food package cost to enable them to serve additional participants. Nutritional Risk Criteria. Another area where State agencies have some discretion in operating the WIC Program which may affect a State agency's ability to realize the President's goal of full funding are the nutritional risk standards used to establish program eligibility. In addition to meeting income eligibility standards, an applicant for program benefits must also be certified by a competent professional authority to be at nutritional risk due to medically-related conditions or dietary deficiencies that impair or endanger health. Currently State agencies have considerable flexibility in establishing and implementing nutritional risk criteria. The commitment to WIC full funding can only be met if States continue to utilize risk-related eligibility criteria that are based in sound medical, nutritional, and preventive health research. Poverty in and of itself, while strongly associated with many health and nutrition-related problems, is not a sufficient condition for program eligibility. In order to help advance understanding of the current state of scientific knowledge of nutritional risk as it pertains to the WIC target population, FNS funded a grant to the National Academy of Sciences, Institute of Medicine, Food and Nutrition Board (FNB). The grant will be used for a scientific evaluation of WIC nutrition risk criteria, including an independent review of all nutrition risk factors currently in use by the WIC Program, and a review of the related scientific literature. The FNB will issue a report summarizing its findings regarding determination of nutritional risk for each criterion, and will identify gaps in the scientific knowledge indicating that additional research is needed. The results of this review will be shared with State agencies to help them better manage program services and to ensure that full funding will meet the nutritional and health-related needs in a well targeted manner. Funding Formula Objectives The funding process should assure each State agency a grant that allows it an equal opportunity to serve its fair share of eligible persons seeking WIC service by providing a food package suited to the participant's unique nutritional deficiencies, not to exceed the maximum food benefit allowed under regulations. This rule proposes a funding formula to meet this overall goal. The objective of fair share allocation is to give each State agency a percentage of total available funds based on its number of WIC- eligibles as a percent of the total number of WIC-eligibles nationally. Accordingly, an ``under fair share'' State agency is one whose percent share of grant funds is less than its percent share of the total national WIC-eligible population. An ``over fair share'' State agency is one whose percent share of grant funds is greater than its percent share of the WIC-eligible population. While there is general agreement that the fair share concept is important and that it is necessary to bring ``under fair share'' State agencies closer to their fair share objective, the best way to implement this concept was a more difficult decision. The current formula provides a ``stability'' grant which assures all State agencies of their prior year grant plus some inflationary increases. While ``stability'' funding was important in the past to avoid eroding participation gains, fully funding the WIC Program does not ensure that grant levels to individual State agencies will be stable, since States' eligible populations may increase or decrease over time due to changes in the economy or other factors. The current formula for allocating food funds was published in a final rule on July 2, 1987 (52 FR 25182). Most recently, it was amended by a Final Rule published March 11, 1994, at 59 FR 11475. This preamble is organized first to describe the most significant current provisions, and to explain the proposed revision or elimination of these provisions. Second, a summary of how the proposed food funding formula will work is provided. Current Provisions Section 246.16(c)(1) Allocation Formula--Use of Participation Data in the Formula The proposed food funding formula would no longer use reported priority participation data or data reflecting State-funded participation for imputing the figures needed for the targeting components of the formula described in Sec. 246.16(c)(3)(ii) and (c)(1)(ii)(A). Accordingly, the Department is proposing to revise Sec. 246.16(c)(1) to eliminate the use of participation data for these purposes. Section 246.16(c)(3)(i) Allocation of Stability Funds Currently, in allocating funds to State agencies, first priority is given to maintaining each State's operating level ``stability funding''. The stability component of a State agency's allocation is initially based on the amount of food funds received by each State agency in the prior fiscal year, adjusted to restore 50 percent of any grant funds voluntarily returned in the prior year. This base level is then adjusted to account for a portion of the inflation estimated for the upcoming fiscal year (except that Indian State agencies receive a full inflation adjustment). The proposed formula retains this component with some modification. The principle of stability is maintained to help assure that each State agency receives enough funds to support its current participation level. However, the proposed rule tempers this with the principle of fair share allocation based on each State agency's eligible population. This rule proposes deleting the provision allowing a State agency the option to retain 50 percent of funds it returns before July 16 as a part of its stability grant the next fiscal year. For example, currently a State agency which voluntarily returns $100 in unspent food funds would be reduced by only $50 of that $100 in its stability grant for the next year. The 50 percent credit was intended as an incentive for a State agency to return food funds that it could not spend, thereby making those funds available for reallocation to State agencies that needed additional funds. Actually, almost all State agencies which have elected to return funds under this provision have been those which were in danger of failing to spend at least 95 percent of their allocated food funds. Failure to achieve this expenditure level results in a specific decrease in the amount of food funds in the subsequent fiscal year as specified in Sec. 246.16(e)(2). In these instances, State agencies simply returned the amount of funds necessary to ensure expenditures of at least 95 percent of their adjusted food grants. The Department no longer believes restoration of 50 percent of returned funds to State agencies in the next year is prudent. The restoration of these funds makes it possible for a State agency already serving all of its eligible population to retain funds it does not need. Section 246.16(c)(3)(i)(A) Inflation Adjustment The current food funding formula uses a calculation referred to as the ``targeted inflation factor''. It is designed to provide an inflation adjustment proportionate to a State agency's service to the highest priority participants. Under this process, the full inflation increase is adjusted according to each State agency's percentage of participants in the top three priority level categories (Priority I-III women, infants and children at nutritional or medical risk). Specifically, the formula requires multiplying the percentage of its participation which is in the top three priorities by the full rate of inflation. The resultant factor is multiplied by the prior year food grant to determine the stability grant, as adjusted for targeted inflation. For instance, if 75 percent of a State agency's participation was in the Priority I to III participation categories, and the full inflation rate was 4 percent, that State agency would receive a targeted inflation rate of 3 percent applied against its prior year grant to determine its stability grant. An exception is made for Indian State agencies which receive full inflation. The intent of the existing provision is twofold. First, it gives a greater inflation increase to State agencies which are serving high priority participants. Second, by not providing full inflation to all State agencies, some funds remain after stability grant allocations. These funds are distributed under the ``residual funds'' portion of the formula and provide additional funds to all State agencies. The impact of targeted inflation, coupled with the residual funds portion of the formula, has been to provide almost all State agencies with a full inflation increase anyway. However, the targeted inflation process is complicated and, since service to the highest risk participants is now largely achieved, is no longer relevant. This rule proposes the more straight-forward process of providing all State agencies with a full inflationary increase as long as funds are adequate to do so. If, however, the appropriation for any given year is insufficient to support prior year grant levels plus full inflation, the funding formula must reduce State agency grants to allow for funds allocation within available funding. Two options were considered when the appropriation is inadequate to support stability. The first option, and the one most favored by the Committee, was an equal pro rata reduction for all State agencies for that fiscal year. The second option is that State agencies with under fair share allocations receive first priority for any available inflationary increases, and those State agencies at or above their fair share allocation for that fiscal year receive second priority. The Department believes that when funds are limited, the concept of a fair share allocation should remain a priority in the allocation of funds. Therefore, this rule proposes to adopt the second option. This will assure continued progress in increasing the grants of States that are under their fair share. Section 246.16(c)(3)(i)(B) Migrant Set-Aside Section 17(g)(4) of the Child Nutrition Act of 1966 (42 U.S.C. 1786(g)(4)) provides that not less than \9/10\ of one percent of the funds appropriated for the WIC Program be available first for services to migrant women, infants and children. Currently, the regulations stipulate that the full \9/10\ of one percent set-aside is to be subtracted from all States' stability grants and then added to stability grants of States that report serving migrants. Because these adjustments for the migrant set-aside become part of the base grant of stability funds for the next fiscal year, FNS found that stability grants were skewed over time, directly causing some State agencies to receive more than their fair share of funds while preventing other States from receiving their fair share. This distorting effect becomes even larger as overall funding increases. Additionally, for the last few years, the number of reported migrants receiving WIC services is consistently and substantially less than the number that could be supported by the full migrant set-aside. The Department thinks that continued increases in the appropriation have made the full migrant set-aside excessive and unnecessary. With full funding and the fair share allocation objective proposed by this rule, the current method of allocating the migrant set-aside is irrelevant, since the proposed funding formula is based upon an estimate of WIC eligibles which already includes the migrant population. This rule proposes that for State agencies that serve migrants, a portion of the grant be designated for service to the migrant population. The designated amount would be based on prior year migrant participation reported by each State agency. By designating a target funding level, the migrant grant does not distort subsequent grant allocations, yet establishes service to this needy population as a priority. This is an approach similar to the one employed to target expenditures for breastfeeding promotion and support. However, as under current regulations, a State agency would not be penalized for not fully spending the portion of its grant designated for migrants as this would be to the detriment of other needy participants waiting for service. As the migrant population served in a State in a prior year may change in the following year when migrant workers travel to other States where work is available, it is unreasonable to hold funds to serve a population that may not be present that year. In a full funding environment, migrant populations actually pose a dilemma similar to unexpected changes in the overall eligible population. At any time, a demographic change could result in greater or fewer eligibles than estimated. The Department believes that State agencies must estimate and accommodate such changes according to the information available from State and local sources. Therefore, for planning purposes, expenditure targets will be established for both food grants and nutrition services and administration grants to insure that \9/10\ of one percent of the appropriation is made available for service to migrants. State agencies would be expected to plan for migrant participants as now required in their State Plan of Operation and give priority service to migrant participants that arrive from another State agency seeking WIC services. Section 246.16(c)(3)(ii) Allocation of Residual Funds Under the current rule, any funds remaining after stability grants are allocated are ``residual funds''. Residual funds are allocated under two components--''targeting'' and ``growth''. This rule proposes eliminating the targeting component and modifying the growth component as discussed below. Section 246.16(c)(3)(ii)(A) ``Targeting'' Component for Food Funds The current funding formula requires that 50 percent of residual funds be distributed to all State agencies for the targeting component. These targeting funds are allocated to each State agency based primarily on its number of Priority I participants. The targeting formula procedure is complex, requiring many computations to calculate a targeting index by which each State agency's share of targeting funds is determined. The targeting component was originally designed to provide an incentive for targeting benefits to the highest risk participants, Priority I women and infants. However, State-reported participation data indicate that nationwide, 90 percent of all fully (categorical, income and at nutritional risk) eligible infants and pregnant women are receiving services through the WIC Program. Therefore, the targeting component is no longer needed to encourage service to Priority I participants. The Department is also concerned that the targeting component is a barrier to achieving funding equity among State agencies. All State agencies receive targeting funds, regardless of whether their stability grants already provide a fair share allocation. With targeting, funding levels for State agencies at or above their fair share level can continue to increase, while State agencies receiving below their fair share amount have difficulty catching up. With the elimination of the targeting component, funding equity can be reached more rapidly. In short, this rule proposes the elimination of the targeting component to simplify the formula, and ensure greater funding equity based on each State agency's eligible population. Section 246.16(c)(3)(ii)(B) ``Growth'' Component for Food Funds Under the current formula, after targeting funds are allocated, the remaining half of residual funds are allocated for ``growth'' within State agencies that have less opportunity to serve their eligible population compared to other State agencies. Growth funds are allocated based primarily on a ``fair share'' concept similar to that discussed earlier. To determine fair share funding, FNS uses a mathematical equation to create an estimate of each State's eligible WIC population. The estimate begins with each State agency's number of income eligibles, currently extracted from decennial census data. The estimate is adjusted slightly to account for State agency variations in infant mortality and low birth weight rates (``health indicators''). Also, women, infants and children served by the Commodity Supplemental Food Program (CSFP) are subtracted from this estimate for those States in which CSFP operates. Each State agency's estimated ratio of the eligible WIC population is divided by the national estimated eligible WIC population to establish each State agency's ``fair share'' percent of total funds. A State agency receives growth funds if the funds it was allocated through the stability and targeting components are less than its calculated fair share. The amount of funds available for growth are divided among all State agencies receiving less than their fair share of funds, with State agencies furthest from their fair share of funds receiving greater allocations. The number of State agencies receiving growth funds each fiscal year varies. As explained below, the Department proposes retaining the ``growth'' component of the formula using only the estimate of income eligibles (with some adjustments) and deleting the use of health indicators. It is believed that this best defines each State agency's actual need for program funds and greatly simplifies the ``fair share'' equation. Each component and revision of the eligibles database is discussed below. Income Eligibles Currently, each State agency's estimate of WIC income eligible persons is based on data from the 1990 Decennial Census, which reflects population characteristics as of 1989. Although the Census data provides the most current State-by-State information, the Department recognizes that data which describe a population at a fixed point in the past may not accurately reflect recent and future socioeconomic and demographic trends. Accordingly, the Department is currently exploring other potential data sources for the state-level income eligibles estimates. One such potential source is the Current Population Survey (CPS), which provides state-level population data by income on an annual basis. CPS is used to estimate the total number of WIC income eligibles on a national basis. State-level CPS data, used in conjunction with other state-level economic, demographic and program participation data, may prove to be a better and more current alternative source for state-level income eligibles estimates. This proposed rule does not establish or define the exact source of the eligibles database in order to allow for the use of the most timely and reliable data as it becomes available. The fair share funding allocations are based on estimates of the State agency's target population at or below 185 percent of poverty rather than estimates of fully-eligibles (persons income eligible and at nutritional risk). This is, in part, because consistent state-level data on income is more readily available than state-level data on nutritional risk. In addition, the use of income-eligibles data results in consistent treatment of State agencies regardless of nutritional risk criteria. That is, State agency allocations are not adjusted for nutritional risk standards which, compared with other State agencies, are more or less inclusive. It should be noted that the state level income-eligible estimates will be used to determine each state's proportion of the national total of WIC income-eligibles. Funding allocations are based on this proportion--not on the absolute number of estimated income eligibles in each State. Each State agency's fair share allocation thus depends on both its share of income eligibles and the total amount of funds available nationally. Under full funding, the total amount of funds available should reflect a national estimate of the cost of serving all fully-eligible persons who wish to participate in the program. Because a national estimate will assume ``average'' nutritional risk criteria, each State agency's fair share allocation will also implicitly assume average nutritional risk certification practices, as well as average food costs. The allocation formula does not provide additional funds to States with higher than average food package costs or broader than average definitions of nutritional risk. This basic approach to establishing each State agency's fair share funding allocation would likely be maintained regardless of any foreseeable changes in the data and methodologies used to estimate income eligibles. Health Indicators In the current formula, the calculation of each State's eligible WIC population, used to compute its fair share allocation, includes an adjustment for its infant mortality and low birth weight rates. These health indicators were originally included in the food funding formula to help direct limited funds to States that were especially needy. However, as appropriation levels have grown, the WIC Program has been better able to serve high risk participants (who tend to have the highest rates of infant mortality and low birth weight babies). Since this prenatal population is now largely served, these adjustments are no longer necessary. Moreover, as service to the highest risk participants has increased, the overall impact of the health indicators on the amount of food funds received by States has become negligible. FNS examined the effect of these health indicators on States' Fiscal Year 1993 food grants and found that, as currently factored in the growth component, health indicators affected food grants for very few State agencies and only by a difference of one percent or less. Furthermore, the inclusion of the health indicators unduly complicates and reduces understanding of the food funding formula. Therefore, this rule proposes to eliminate the use of the health indicator adjustments. Adjustments for Higher Cost Areas The current growth component also makes an adjustment for the higher food costs of State agencies located outside of the continental United States. This adjustment is done to ensure that the share of funds received by these State agencies is adequate to serve their share of the eligible population given their higher costs. The current regulation provides detailed specifications for those States and territories with higher food costs as recognized by the Food Stamp Program's Thrifty Food Plan (TFP). These States and territories include Alaska, Hawaii, Guam, and the Virgin Islands. The Department proposes to retain this adjustment, but to allow more flexibility than the current regulation. Therefore, the proposed rule incorporates more general requirements so that if economic data is available that can measure and document higher costs in particular outlying State agencies, the Department may use available data to construct adjustment factors for such State agencies. Consideration of such adjustments would be predicated on the condition that State agencies with higher food costs aggressively pursue cost containment initiatives, such as stringent vendor management practices, participation in multi-state agency infant formula rebate contracts and other cost containment efforts. Adjustments for Indian Tribal Organizations The growth allocation for the Indian Tribal Organizations has traditionally presented problems due to inadequate data regarding eligibles. Currently, 30 Indian State agencies, each primarily representing members from one or more Native American tribes, operate WIC programs. The Department recognizes that the method for determining eligibles to be served by these Indian State agencies is imprecise, since census and Vital Statistics data on Native Americans are not available by tribe. Often these Indian State agencies also serve non- Native Americans, who are not captured within their estimated eligible population data. In many cases, the present method of determining growth allocations indicates that many Indians State agencies are already receiving adequate funds to fully serve their estimated eligible populations. The Department knows of no data source to resolve this problem. Therefore, the rule proposes to give FNS the authority to organize and oversee negotiations between the Indian State agency (or agencies) and the geographic State agency (or agencies) in which the Indian State agency is located. FNS could, acting independently or at the request of a State agency, involve affected State agencies in an agreement on the temporary or permanent transfer of funds. Negotiations could be conducted to shift funds among these State agencies to better reflect the actual service being provided by each of the State agencies. Commodity Supplemental Food Program The Commodity Supplemental Food Program's (CSFP) service to low- income women, infants and children contributes to the Administration's goal of fully funding the WIC Program by the end of Fiscal Year 1996. The Fiscal Year 1995 budget request and out year targets assume CSFP women, infants and children participation will equal the authorized caseload level. In those States where both CSFP and WIC operate, the current rule requires the subtraction from the WIC income eligible database of those participants (based on actual, average CSFP participation in the prior fiscal year) who are eligible for the WIC Program, but elect to receive benefits under CSFP. As CSFP is currently authorized to serve, in addition to WIC eligibles, 5 year old children and postpartum women from 6 months to 1 year postpartum, not all CSFP participants are categorically eligible for the WIC Program. Therefore, FNS currently assumes that one-fourth of the children and one-half of the postpartum women participating in CSFP are not eligible for the WIC Program. The balance of CSFP participants are subtracted from the WIC eligibles estimate. The Department is proposing to revise Sec. 246.16(c)(3)(i) to make three changes to this deduction from the WIC eligibles baseline data. First, the proposed rule modifies the method for determining the number of CSFP women, infants and children to subtract from the WIC eligibles baseline. The deduction will now be based upon the authorized CSFP women, infants and children caseload, rather than actual participation figures. Second, the deduction will be based on the CSFP caseload authorized at the beginning of the caseload cycle of the prior fiscal year (generally announced on December 1). This is a change from the current practice of using actual, average participation for the prior fiscal year. Finally, the adjustment described above for those CSFP participants who are not also categorically eligible for WIC (postpartum women from 6 months to 1 year postpartum and 5 year old children) will no longer be made. Utilizing the total CSFP caseload level for women, infants and children, rather than performance, more equitably accounts for the resources provided to a State agency to serve the WIC target population using CSFP. These changes will ensure that States that do not have access to CSFP will not be disadvantaged in their access to WIC funds when compared with States that operate both programs. Summary of the Proposed Food Funding Formula The foregoing has described the components of the current formula that are proposed for deletion, retention or modification. To ensure that the proposed formula is fully understood, the following describes the proposed allocation process and provides simplified examples of the proposed process. Fair Share Allocation Objective In the proposed Sec. 246.16(c)(3), the funding objective would be to give each State agency its fair share allocation of funds to the extent funds are available. Funds available would include funds appropriated for the fiscal year as well as unspent funds carried over from the prior fiscal year that State agencies have not retained under spendforward authority as provided in Sec. 246.16(b)(3)(ii). An example of a simplified fair share allocation is shown below. This example assumes that available funds total $5000, and the total number of income eligibles is 1000 persons. ------------------------------------------------------------------------ Eligibles Fair share Fair share Stateagency No. percentage allocation ------------------------------------------------------------------------ A.................................... 200 20 $1,000 B.................................... 500 50 2,500 C.................................... 300 30 1,500 ---------------------------------- Total.......................... 1,000 100 5,000 ------------------------------------------------------------------------ Stability Allocation Recognizing that State agencies may already have participants on the program supported with the grant funds each State agency received in the prior year, the formula would strive to protect this service depending on total funds available. Section 246.16 (c)(ii) proposes a Stability Allocation which protects prior year grant levels contingent on availability of funds. It is proposed that if funds are not adequate to fully fund prior year grants, all State agencies will receive a pro-rata reduction from their prior year grant level commensurate with the shortfall of available funds. If funds are available, each State agency would receive a stability allocation equal to its final authorized grant level as of September 30 of the prior fiscal year. If funds are still available, State agencies will receive an inflation adjustment in the following two-step sequence. (1) Each State agency with a prior year final authorized grant level which is less than its fair share allocation shall receive its prior year final authorized grant level, increased by an inflation factor which reflects the anticipated rate of food cost increases as determined by the Department, not to exceed its fair share allocation. Should funds be inadequate to fully meet this adjustment, each under fair share State agency will receive an equal percent increase as permitted by the amount of funds available. (2) If funds remain after completing step 1, each State agency with a prior year final authorized grant level that is at or greater than its fair share allocation shall receive its prior year final authorized grant level, increased by an inflation factor which reflects the anticipated rate of food cost increases as determined by the Department. Should funds be inadequate to fully meet this adjustment, each State agency will receive an equal percent increase as permitted by the amount of the funds available. Growth Allocation If funds remain after step 1 and 2 above, then funds are provided for a ``growth allocation''. The growth allocation gives additional funds to each State agency which has an inflation-adjusted stability allocation which is less than its fair share allocation. The formula subtracts each State agency's current year stability allocation from its fair share allocation to determine the dollar shortfall. Each State agency's shortfall, as a percent of all State agency's shortfalls, yields its percent share of the funds available for the growth allocation. Example of Formula Allocation Process The example below describes allocation steps for stability and growth. First, all State agencies have received at least their prior year final grant, which totaled $4,500. As $5,000 is available to allocate in this case, funds are sufficient to do both stability and growth allocations. 1. Stability Allocation--Under Fair Share First, under fair share State agencies get an inflationary increase, based on full inflation, to the extent permitted by available funding. In this example, available funding permits the entire inflationary increase: ------------------------------------------------------------------------ Prior Fair year Inflation New State agency share final 3 percent grant grant ------------------------------------------------------------------------ A.............................. $1,000 $1,100 NA $1,100 B.............................. 2,500 2,000 $60 2,060 C.............................. 1,500 1,400 42 1,442 ---------------------------------------- Total.................... 5,000 4,500 102 4,602 Funds remaining = $398 ------------------------------------------------------------------------ 2. Stability Allocation--Over Fair Share Next, over fair share State agencies get an inflationary increase, based on full inflation, to the extent permitted by available funding. In this example, available funding permits the entire inflationary increase: ------------------------------------------------------------------------ Prior Fair year Inflation New State agency share final 3 percent grant grant ------------------------------------------------------------------------ A.............................. $1,000 $1,100 $33 $1,133 B.............................. 2,500 2,000 60 2,060 C.............................. 1,500 1,400 42 1,442 ---------------------------------------- Total.................... 5,000 4,500 135 4,635 Funds remaining = $365 ------------------------------------------------------------------------ 3. Growth Allocation Under fair share State agencies get a proportion of remaining funds based on the shortfall between their fair share allocation and stability grant. In the example below, the $365 available for growth funding is shared by States B and C according to their respective shortfalls from their fair share allocations. ---------------------------------------------------------------------------------------------------------------- Shortfall State agency Fair share Stability -------------------------- Fundsreceived Final grant grant Dollar's Percent ---------------------------------------------------------------------------------------------------------------- A............................... $1,000 $1,133 NA NA NA $1,133 B............................... 2,500 2,060 $440 88 $322 2,382 C............................... 1,500 1,442 58 12 43 1,485 ------------------------------------------------------------------------------- Total..................... 5,000 4,635 498 100 365 5,000 Funds remaining = $0. ---------------------------------------------------------------------------------------------------------------- If any funds allocated in the three steps above cannot be used and are declined by one or more State agencies, then these funds will be allocated, using the method in Step 3, to the under fair share State agencies which have the ability to use more funds. If all funds are still not distributed, then these remaining funds would be allocated to State agencies which have a stability allocation which is at or greater than its fair share allocation. Each of these State agencies which can document the need for additional funds will be eligible to receive additional funds based on the difference between its stability allocation level and fair share allocation. State agencies closest to their fair share allocation shall receive first consideration. For instance, in the example above, State A would be able to receive funds declined by State B or C. In this way, the precedence for funding will be to increase funding to under fair share State agencies to the extent possible, while still allowing State agencies that are over their fair share level to receive additional funds when a documented need for additional funds exists. All grants awarded through this process would become the basis of the following year's stability allocation. Performance Standard The 95 percent performance standard in current regulations was reevaluated. This standard reduces the current year grant for any State agency that did not spend at least 95 percent of its food grant. The Department is concerned that this current standard of 95 percent of the grant is too generous in the context of a fully funded program. While the Department is sympathetic to the difficulties of rapidly growing States of meeting the 95 percent expenditure level, State agencies with relatively stable funding and participation do not face the same difficulties. For stable State agencies, expending less than the 95 percent of allocated food funds is likely to indicate they have funds they cannot use. Therefore, the Department has proposed in Sec. 246.16(e)(2)(i) a 95 percent standard for State agencies receiving less than their fair share allocation, and 98 percent for those at or over their fair share level. Additionally, prior to applying the performance standard, the current provision in Sec. 246.16(e)(3)(i) allows for exclusion from the grant of food funds that are spent forward into a succeeding fiscal year as authorized by Sec. 246.16(b)(3)(ii), and (iv) and (v). Since spentforward funds are merely unspent funds that the State agency can retain, the Department no longer believes that they should be excluded when assessing spending performance. Accordingly, the proposed rule deletes this provision. Any food funds backspent under Sec. 246.16(b)(3)(i) or converted to Nutritional Services and Administration (NSA) funds under Sec. 246.16(g) will continue to be excluded from the food grant for purposes of applying the performance standard. These two reductions are appropriate in that they reflect food funds actually expended in the current year, and not merely reserved for future use. List of Subjects in 7 CFR Part 246 Food assistance programs, Food donations, Grant programs--Social programs, Infants and children, Maternal and child health, Nutrition education, Public assistance programs, WIC, Women. Accordingly, 7 CFR part 246 is proposed to be amended as follows: PART 246--SPECIAL SUPPLEMENTAL FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN 1. The authority citation for part 246 continues to read as follows: Authority: 42 U.S.C. 1786. 2. In Sec. 246.16 a. Paragraph (c)(1) is revised. b. Paragraph (c)(3) is revised. c. Paragraph (e)(2)(i) is revised. The revisions read as follows: Sec. 246.16 Distribution of Funds. * * * * * (c) Allocation formula. * * * (1) Use of participation data in the formulas. Wherever the formula set forth in paragraphs (c)(2) and (c)(3) of this section require the use of participation data, the Department shall use participation data reported by State agencies according to Sec. 246.25(b). * * * * * (3) Allocation of food benefit funds. In any fiscal year, any amounts remaining from amounts appropriated for such fiscal year and amounts appropriated from the preceding fiscal year after making allocations under paragraph (a)(6) of this section and allocations for nutrition services and administration (NSA) as required by paragraph (c)(2) of this section shall be made available for food costs. Allocations to State agencies for food costs will be determined according to the following procedure: (i) Fair share allocation. (A) For each State agency, establish a fair share allocation which shall be an amount of funds proportionate to the State agency's share of the national aggregate population of persons who are income eligible to participate in the Program based on the nationally uniform 185 percent of poverty criterion. The Department will determine each State agency's population of income eligible persons through the best available indicators as determined by the Department. If the CSFP also operates in the area served by the WIC State agency, the CSFP women, infants and children caseload level at the beginning of the caseload cycle of the prior fiscal year shall be deducted from the WIC State agency's population of income eligible persons. (B) The Department may adjust the respective amounts of food funds that would be allocated to a State agency which is outside the 48 contiguous states and the District of Columbia when the State agency can document that economic conditions result in higher food costs for the State agency. Prior to any such adjustment, the State agency must demonstrate that it has successfully implemented voluntary cost containment measures, such as improved vendor management practices, participation in multi-state agency infant formula rebate contracts or other cost containment efforts. The Department may use the Thrifty Food Plan amounts used in the Food Stamp Program, or other available data, to formulate adjustment factors for such State agencies. (ii) Stability allocation. If funds are available, each State agency shall receive a stability allocation equal to its final authorized grant level as of September 30 of the prior fiscal year. If funds are not available to provide all State agencies with their prior year final authorized grant level, all State agencies shall receive a pro-rata reduction from their prior year grant level as required by the short fall of available funds. If additional funds are available after each State agency receives a stability allocation, the balance of funds shall be allocated first to meet the requirement in paragraph(c)(3)(ii)(A) of this section, then paragraph (c)(3)(ii)(B) of this section. (A) Each State agency with a prior year final authorized grant level which is less than its current fair share allocation shall receive its prior year final authorized grant level, increased by an inflation factor which reflects the anticipated rate of food cost increases as determined by the Department; not to exceed its fair share allocation. Should funds be inadequate to fully meet this requirement, each State agency will receive an equal percent increase as permitted by the funds available. (B) Each State agency with a prior year final authorized grant level that is at or greater than its fair share allocation shall receive its prior year final authorized grant level, increased by an inflation factor which reflects the anticipated rate of food cost increases as determined by the Department. Should funds be inadequate to fully meet this requirement, each State agency will receive an equal percent increase as permitted by the funds available. (iii) Growth allocation. (A) If additional funds remain available after the allocation of funds under paragraph (c)(3)(ii) of this section, each State agency which has a stability allocation, as calculated in paragraph (c)(3)(ii)(A) of this section, which is less than its fair share allocation shall receive additional funds based on the difference between its stability allocation and fair share allocation. Each State agency's difference shall be divided by the total of the differences for all such State agencies, to determine the percent share of the available growth funds each State agency shall receive. In the event a State agency declines any of its allocation in paragraph (c)(3)(ii) of this section or this paragraph, the funds declined shall be allocated to the remaining State agencies which are still under their fair share. (B) In the event funds still remain after completing the distribution in paragraph (c)(3)(iii)(A) of this section, these funds shall be allocated to all State agencies including those with a stability allocation at, or greater than, their fair share allocation. Each State agency which can document the need for additional funds shall receive additional funds based on the difference between its prior year grant level and its fair share allocation. State agencies closest to their fair share allocation shall receive first consideration. (iv) Migrant services. At least \9/10\ of one percent of appropriated funds for each fiscal year shall be available first to assure service to eligible members of migrant populations. For those State agencies serving migrants, a portion of the grant shall be designated to each State agency for service to members of migrant populations based on that State agency's prior year reported migrant participation. The national aggregate amount made available first for this purpose shall equal \9/10\ of one percent of all funds appropriated each year for the Program. Funds designated or used for migrant services shall not be included in a State agency's stability allocation, under paragraph (c)(3)(ii) of this section. (v) Special provisions for indian state agencies. The Department may choose to adjust the allocations and/or eligibles data among Indian State agencies and the geographic State agencies in which they are located when eligibles data for the State agencies' population is determined to not fairly represent the population to be served. Such allocations may be redistributed from one State agency to another, based on negotiated agreements among the affected State agencies approved by FNS. * * * * * (e) Recovery and reallocation of funds. * * * * * (2) * * * (i) The amount allocated to any State agency for food benefits in any fiscal year shall be reduced if such State agency's food expenditures for the preceding fiscal year were less than the established performance standard. For State agencies which received less than their fair share allocation as defined in paragraph (c)(3)(i) of this section, the performance standard shall be the expenditure of funds at no less than 95 percent of the food grant. For State agencies over their fair share allocation, the performance standard shall be the expenditure of funds at no less than 98 percent of the food grant. Such reduction shall equal the difference between the State agency's preceding year food expenditures and applicable percent performance standard applied to the amount allocated to the State agency for such benefits. For purposes of determining the amount of such reduction, the amount allocated to the State agency for food benefits for the preceding fiscal year shall not include food funds expended for food costs incurred under the spendback provision in paragraph (b)(3)(i) of this section or conversion authority in paragraph (g) of this section. Temporary waivers of the performance standard may be granted at the discretion of the Department. * * * * * Dated: June 2, 1994. Ellen Haas, Assistant Secretary for Food and Consumer Services. [FR Doc. 94-13891 Filed 6-7-94; 8:45 am] BILLING CODE 3410-30-U