[Federal Register Volume 75, Number 24 (Friday, February 5, 2010)]
[Rules and Regulations]
[Pages 5877-5879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2594]



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  Federal Register / Vol. 75, No. 24 / Friday, February 5, 2010 / Rules 
and Regulations  

[[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.

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

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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