[Federal Register Volume 79, Number 131 (Wednesday, July 9, 2014)]
[Rules and Regulations]
[Pages 38748-38751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16055]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 247

RIN 0584-AE31


Commodity Supplemental Food Program (CSFP): Implementation of the 
Agricultural Act of 2014

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations for the Commodity 
Supplemental Food Program (CSFP) to phase out the eligibility of women, 
infants, and children, in accordance with the amendments made by the 
Agricultural Act of 2014 (the 2014 Farm Bill). Under amendments made to 
the Agriculture and Consumer Protection Act of 1973 by Section 4102 of 
the 2014 Farm Bill, women, infants, and children who apply to 
participate in CSFP on February 7, 2014, or later cannot be certified 
to participate in the program. Under these amendments the population 
served by CSFP will only be low-income elderly persons at least 60 
years of age. However, Section 4102 also included amendments for a 
phase-out provision, which requires State and local agencies to 
continue providing assistance to all women, infants, and children who 
were certified and receiving CSFP benefits as of February 6, 2014. 
Those individuals can continue to receive assistance until they are no 
longer eligible under the program rules in effect on February 6, 2014.

DATES: Effective Date: This rule will become effective on August 8, 
2014, without further notice.

FOR FURTHER INFORMATION CONTACT: Erica Antonson, Program Analyst, 
Policy Branch, Food Distribution Division, Food and Nutrition Service, 
3101 Park Center Drive, Room 500, Alexandria, Virginia 22302, or by 
telephone (703) 305-2662.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Food and Nutrition Service (FNS) is amending CSFP regulations 
at 7 CFR part 247 to incorporate the requirements of the Agricultural 
Act of 2014 (Pub. L. 113-79, the 2014 Farm Bill). Prior to enactment of 
the 2014 Farm Bill on February 7, 2014, the Agriculture and Consumer 
Protection Act of 1973, 7 U.S.C. 612c note, provided for the 
eligibility of women, infants, and children in CSFP.
    Amendments made by Section 4102 of the 2014 Farm Bill phase out the 
participation of women, infants, and children in CSFP and transition it 
to a low-income, elderly-only program. The participation of elderly 
persons in CSFP began as a pilot program at limited sites in the early 
1980s, following which the Food Security Act of 1985 (Pub. L. 99-198) 
provided for the provision of benefits to the elderly at all CSFP 
sites, provided that all eligible women, infants, and children were 
already served. The Food, Conservation, and Energy Act of 2008 (Pub. L. 
110-246), eliminated the priority status given to women, infants, and 
children effective October 1, 2008.
    FNS issued a policy memorandum on March 10, 2014, implementing the 
amendments made by Section 4102; the memorandum is available on the FNS 
Web site at http://www.fns.usda.gov/sites/default/files/CSFP_Farm_Bill_Implementation_Memo.pdf. As a result of the change, no women, 
infants, or children applicants are eligible to be newly certified to 
participate in CSFP. However, women, infants, and children who were 
certified and receiving CSFP benefits as of February 6, 2014, the day 
before enactment of the 2014 Farm Bill, remain eligible for CSFP 
benefits until such time as they are no longer eligible to receive 
assistance under the program rules in effect on that date. As stated in 
the implementing memorandum, prospective applicants who are no longer 
eligible for CSFP participation as a result of the 2014 Farm Bill 
provisions should be referred to other nutrition programs such as the 
Supplemental Nutrition Assistance Program (SNAP) and the Special 
Supplemental Nutrition Assistance Program for Women, Infants and 
Children (WIC).
    The number of women, infants, and children participating in CSFP 
has declined steadily in recent years. In Fiscal Year (FY) 1998, 34 
percent of CSFP participants were women, infants, or children and 66 
percent were low-income elderly persons. In FY 2013, only three percent 
of CSFP participants were women, infants, or children and 97 percent of 
participants were elderly. At the same time, with WIC serving as an 
alternative to CSFP for eligible women, infants, and children, and due 
to greater demand for WIC benefits nationally, WIC participation 
increased by approximately 1.3 million over that same period.
    The 2014 Farm Bill amendments recognize 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. WIC 
operates in all areas that CSFP serves and provides nutrition 
assistance benefits, as well as nutrition education and health 
referrals.

II. Discussion of the Final Rule

A. Eligibility of Women, Infants, and Children for CSFP

    In this final rule, we amend several sections of 7 CFR part 247 to 
establish that new applications from women, infants, and children are 
not eligible for certification on or after February 7, 2014. References 
to women, infants, and children are removed from the regulations, 
except where they are necessary for the continued provision of benefits 
to those individuals still eligible for CSFP under the phase-out 
provision. Conforming amendments are made where necessary to clarify 
that these remaining regulatory provisions apply only to this limited 
group of women, infants, and children.
    Amendments to 7 CFR part 247 are summarized as follows:
    1. Section 247.2 describes the purpose and scope of CSFP. This 
section is revised to state that the population served by CSFP is 
elderly, low-income individuals 60 years of age or older, but includes 
a limited group of women, infants, and children who were certified for 
CSFP and receiving benefits as of February 6, 2014.
    2. Sections 247.5 and 247.19 describe State and local agency 
responsibilities and dual participation, respectively. These sections 
are amended to clarify that coordination between CSFP State and local 
agencies and State WIC agencies on the detection and prevention of dual 
participation is required only when women, infants, or

[[Page 38749]]

children remain enrolled in CSFP in the State.
    3. Section 247.6 describes the requirements for State Plans. This 
section is amended to remove the recommendation that State agencies 
collaborate with WIC agencies in the development of State Plans. This 
recommendation is no longer relevant because women, infants, and 
children will not be served by States who join CSFP in the future. 
Existing State Plans are considered permanent. These plans will already 
reflect needed collaboration and will continue to apply in States with 
women, infant, or children participants until they are phased out of 
the program. This section is additionally amended to clarify that 
several requirements specific to women, infant, and children 
participants only pertain where applicable.
    4. Section 247.9 describes the eligibility requirements for 
participation in CSFP. The eligibility requirements for women, infants, 
and children are retained in this rulemaking as they will continue to 
be necessary for the administration of the program until the Section 
4102 phase-out is complete. However, language is added to this section 
to clarify that the eligibility requirements for women, infants, and 
children apply only to individuals who were certified and receiving 
CSFP benefits as of February 6, 2014.
    5. Section 247.16 describes certification periods. This section is 
amended to clarify that the certification period for women, infants, 
and children applies only to the recertification of individuals who 
remain eligible under the Section 4102 phase-out provision.
    6. Sections 247.8, 247.12, 247.14, 247.18, 247.20, 247.21, 247.30 
and 247.33, are amended to make conforming revisions to wording 
specific to women, infants and children.

B. Corrections and Updated Reporting Requirements

    A correction is made to the regulatory citation in Sec.  
247.9(e)(3) and outdated reporting requirements are updated in Sec.  
247.29.

III. Procedural Matters

Executive Order 12866 and 13563

    This final rule has been determined to be not significant and was 
not reviewed by the Office of Management and Budget (OMB) in 
conformance with Executive Order 12866.

Regulatory Impact Analysis

    This rule has been designated as not significant by the Office of 
Management and Budget, therefore, no Regulatory Impact Analysis is 
required.

Regulatory Flexibility Act

    This final 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.

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, the 
Department 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 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 the Department to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the most 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 and 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

    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.

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 13121. FNS has 
considered the impact of this rule on State and local governments and 
has determined that this rule does not have federalism implications.

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.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department 
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. While this rule does 
impact the eligibility of women, a protected group, for CSFP, the 
rule's intention is not to exclude, limit, or otherwise disadvantage 
any group or class of person in one or more of the prohibited bases 
from receiving federal nutrition assistance. This change is mandated by 
statute.
    After a careful review of the rule's intent and provisions, the 
Department has determined that this final rule will not otherwise limit 
or reduce the ability of participants to receive the benefits of USDA 
Foods in food distribution programs on the basis of an individual's or 
group's race, color, national origin, sex, age, political beliefs, 
religious creed, or disability. The Department found no factors that 
would negatively affect any group of individuals.

Executive Order 13175

    The Programs affected by the provisions in this final rule are all 
State or Tribally administered federally funded programs. FNS' national 
and regional offices have formal and informal discussions with State 
agency officials and representatives on an ongoing basis regarding 
program issues relating to CSFP. Additionally, FNS meets periodically 
throughout the year with the National CSFP Association to discuss 
issues relating to the program. The changes in this final rulemaking 
are required by federal law. This rulemaking was the subject of formal 
consultation in May 2014. Reports from the consultation session will be 
made part of the USDA annual reporting on Tribal Consultation and 
Collaboration.

[[Page 38750]]

USDA will respond in a timely and meaningful manner to all additional 
Tribal government requests for consultation concerning this final rule 
and will provide additional venues, such as webinars and 
teleconferences, to periodically host collaborative conversations with 
Tribal leaders and their representatives concerning ways to improve 
regulations in Indian country.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320) requires the Office of Management and Budget (OMB) approve 
all collections of information by a Federal agency 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 new information collection requirements 
subject to approval by OMB under the Paperwork Reduction Act of 1995. 
Existing information collection requirements associated with this rule 
have been approved by OMB under OMB 0584-0025, 0584-0067, and 
0584-0293.

E-Government Act Compliance

    The Food and Nutrition Service is committed to complying 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.

Final Action

    This action is being finalized without prior notice or public 
comment under the authority of 5 U.S.C. 553(a)(2). Section 4102 of the 
2014 Farm Bill amends Section 5 of the Agriculture and Consumer 
Protection Act of 1973 (7 U.S.C. 612c note) to phase out the 
eligibility of women, infants, and children in CSFP. Existing CSFP 
regulations are therefore inconsistent with Section 5 of the 
Agriculture and Consumer Protection Act of 1973. The 2014 Farm Bill 
language is clear and mandatory, leaving no room for discretion.

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.

    Accordingly, 7 CFR part 247 is amended as follows:

PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM

0
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. 95-113, 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); sec. 4221, Pub. L. 113-79, 7 U.S.C. 612c note).


0
2. In Sec.  247.2, revise paragraph (a) to read as follows:


Sec.  247.2  The purpose and scope of CSFP.

    (a) How does CSFP help participants? Through CSFP, the Department 
provides nutritious commodities to help State and local agencies meet 
the nutritional needs of low-income elderly persons. CSFP also helps 
State and local agencies meet the nutritional needs of women, infants, 
and children who were certified and receiving CSFP benefits as of 
February 6, 2014. Through local agencies, each participant receives a 
monthly package of commodities, based on food package guide rates 
developed by FNS, with input from State and local agencies. Food 
packages include such nutritious foods as canned fruits and vegetables, 
canned meat, poultry and other protein items, and grain products such 
as pasta, as well as other foods. Participants are offered the 
opportunity to receive nutrition education.
* * * * *

0
3. In Sec.  247.5, revise paragraph (b)(8) to read as follows:


Sec.  247.5  State and local agency responsibilities.

* * * * *
    (b) * * *
    (8) Developing a plan for the detection and prevention of dual 
participation, in coordination with CSFP local agencies and with the 
WIC State agency, unless no women, infants, and children remain 
enrolled in CSFP in the State;
* * * * *

0
4. In Sec.  247.6:
0
a. Revise paragraph (a);
0
b. In paragraph (c)(2) add ``if applicable,'' after ``children,'';
0
c. In paragraph (c)(4), remove ``women, infants, children, and 
elderly'';
0
d. In paragraph (c)(5), remove ``women, infants, children, and'';
0
e. In paragraph (c)(8), add ``, if applicable,'' after the word 
``including'' and remove the comma after ``collaboration with the State 
WIC agency'';
0
f. In paragraph (d), remove the phrase ``women, infants, children, and 
the elderly'' and add in its place ``participants''.
    The revision reads as follows:


Sec.  247.6  State Plan.

    (a) What is the State Plan? The State Plan is a document that 
describes how the State agency will operate CSFP and the caseload 
needed to serve eligible applicants. The State agency must submit the 
State Plan to FNS for approval. Once submitted and approved, the State 
Plan is considered permanent, with amendments submitted at the State 
agency's initiative, or at FNS request. All amendments are subject to 
FNS approval. The State Plan may be submitted in the format provided in 
FNS guidance, in an alternate format, or in combination with other 
documents required by Federal regulations. The State Plan must be 
signed by the State agency official responsible for program 
administration. A copy of the State Plan must be kept on file at the 
State agency for public inspection.
* * * * *

0
5. In Sec.  247.8:
0
a. In paragraph (a) introductory text, revise the first sentence;
0
b. In paragraph (a)(4), remove ``or pregnancy, as applicable'';
0
b. In paragraph (b), revise the second and third sentences.
    The revisions read as follows:


Sec.  247.8  Individuals applying to participate in CSFP.

    (a) * * * To apply for CSFP benefits, the applicant or caretaker of 
the applicant must provide the following information on the 
application: * * *
    (b) * * * After informing the applicant or caretaker of the 
applicant of his or her rights and responsibilities, in accordance with 
Sec.  247.12, the local agency must ensure that the applicant or 
caretaker signs the application form beneath the following pre-printed 
statement. The statement must be read by, or to, the applicant or 
caretaker before signing. * * *

0
6. In Sec.  247.9:
0
a. Revise paragraph (a);
0
b. Add a new paragraph (b)(4);
0
c. In paragraph (d), revise the last sentence;
0
d. In paragraph (e)(3), remove the regulatory citation ``Sec.  
246.7(d)(2)(iv)(C)'' and add in its place ``Sec.  246.7(d)(2)(iv)(D)''.

[[Page 38751]]

    The revisions and addition read as follows:


Sec.  247.9  Eligibility requirements.

    (a) Who is eligible for CSFP? To be eligible for CSFP, individuals 
must be at least 60 years of age and meet the income eligibility 
requirements outlined in paragraph (c) of this section; or the 
individual must be a woman, infant, or child who was certified and 
receiving CSFP benefits as of February 6, 2014, and whose enrollment in 
CSFP has continued without interruption.
    (b) * * *
    (4) The eligibility requirements in this section apply only to 
women, infants, and children who were certified and receiving CSFP 
benefits as of February 6, 2014, and whose enrollment has continued 
without interruption. Effective February 7, 2014, no new applications 
from women, infants, or children may be approved.
* * * * *
    (d) * * * However, for the recertification of women, infants, and 
children, the State agency must implement the adjusted guidelines at 
the same time that the WIC agency implements the adjusted guidelines in 
WIC.
* * * * *

0
7. In Sec.  247.12, revise paragraph (a)(2) to read as follows:


Sec.  247.12  Rights and responsibilities.

    (a) * * *
    (2) The local agency will make nutrition education available to all 
adult participants, and, if applicable, to parents or caretakers of 
infant and child participants, and will encourage them to participate; 
and
* * * * *

0
8. In Sec.  247.14(a), revise the paragraph heading to read as follows:


Sec.  247.14  Other public assistance programs.

    (a) What information on other public assistance programs must the 
local agency provide to women, infants, and children applying for 
recertification? * * *
* * * * *

0
9. In Sec.  247.16:
0
a. In paragraph (a)(1), add a new final sentence;
0
b. Revise paragraph (b);
0
c. In paragraph (c), revise the second sentence.
    The revisions and addition read as follows:


Sec.  247.16  Certification period.

    (a) * * *
    (1) * * * This paragraph only applies to the recertification of 
women, infants, and children who were certified and receiving CSFP 
benefits as of February 6, 2014, and whose enrollment in CSFP has 
continued without interruption.
* * * * *
    (b) On what day of the final month does the certification period 
end? The certification period extends to the final day of the month in 
which eligibility expires.
    (c) * * * The State agency must ensure that local agencies serve a 
CSFP participant who moves from another area to an area served by CSFP 
and whose certification period has not expired. * * *
* * * * *

0
10. In Sec.  247.18, revise paragraph (c) to read as follows:


Sec.  247.18  Nutrition education.

* * * * *
    (c) To whom must local agencies provide nutrition education? The 
local agency must make nutrition education available to all adult 
participants and, if applicable, to parents or caretakers of infant and 
child participants. Local agencies are encouraged to make nutrition 
education available to children, where appropriate.
* * * * *

0
11. In Sec.  247.19:
0
a. Revise paragraph (a);
0
b. In paragraph (b), revise the fourth sentence.
    The revisions read as follows:


Sec.  247.19  Dual participation.

    (a) What must State and local agencies do to prevent and detect 
dual participation? Unless no women, infants, or children remain 
enrolled in the program, the State agency must work with the State WIC 
agency to develop a plan to prevent and detect dual participation, in 
accordance with an agreement signed by both agencies. The State agency 
must work with local agencies to prevent and detect dual participation. 
In accordance with Sec.  247.8(a)(1), the local agency must check the 
identification of all applicants when they are certified or 
recertified. In accordance with Sec.  247.8(b), the local agency must 
ensure that the applicant or caretaker of the applicant signs an 
application form which includes a statement advising the applicant that 
he or she may not receive CSFP benefits at more than one CSFP site at 
the same time.
    (b) * * * In accordance with Sec.  247.20(b), if the dual 
participation resulted from the participant or caretaker of the 
participant making false or misleading statements, or intentionally 
withholding information, the local agency must disqualify the 
participant from CSFP, unless the local agency determines that 
disqualification would result in a serious health risk. * * *


Sec.  247.20  [Amended]

0
12. In Sec.  247.20, remove ``or the parents'' in each place it occurs.

0
13. In Sec.  247.21:
0
a. Revise the paragraph heading and first sentence of paragraph (a)(3);
0
b. Remove the phrase ``women, infants, children, and the elderly,'' 
from the last sentence of paragraph (c) and add in its place the word 
``participants''.
    The revision reads as follows:


Sec.  247.21  Caseload assignment.

    (a) * * *
    (3) New caseload. Each State agency requesting to begin 
participation in the program, and with an approved State Plan, may 
receive caseload to serve the elderly, as requested in the State Plan. 
* * *
* * * * *

0
14. In Sec.  247.29:
0
a. Revise the paragraph heading and first sentence of (b)(1);
0
b. Remove paragraph (d).
    The revision reads as follows:


Sec.  247.29  Reports and recordkeeping.

* * * * *
    (b) * * *
    (1) SF-425, Federal Financial Report. The State agency must submit 
the SF-425, Federal Financial Report, to report the financial status of 
the program at the close of the fiscal year. * * *
* * * * *

0
15. In Sec.  247.30(c), remove ``, or the parent'' where it occurs and 
remove the comma before ``fraudulently'' in the first sentence.

0
16. In Sec.  247.33, revise the sentence following the heading of 
paragraph (c) to read as follows:


Sec.  247.33  Fair hearings.

* * * * *
    (c) * * * An individual or an individual's caretaker may request a 
fair hearing by making a clear expression, verbal or written, to a 
State or local agency official that an appeal of the adverse action is 
desired.
* * * * *

    Dated: July 2, 2014.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2014-16055 Filed 7-8-14; 8:45 am]
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