[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
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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.

-----------------------------------------------------------------------

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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