Rule2024-24966
Food Distribution Programs: Improving Access and Parity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 31, 2024
Effective
December 30, 2024
Issuing agencies
Agriculture DepartmentFood and Nutrition Service
Abstract
This final rule considers public comments submitted in response to the proposed rule revising the Commodity Supplemental Food Program (CSFP), the Food Distribution Program on Indian Reservations (FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods disaster response regulations. This final rule makes access and parity improvements in USDA's food distribution programs to support access for eligible populations and streamline requirements for program operators.
Full Text
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[Federal Register Volume 89, Number 211 (Thursday, October 31, 2024)]
[Rules and Regulations]
[Pages 87228-87258]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24966]
[[Page 87227]]
Vol. 89
Thursday,
No. 211
October 31, 2024
Part V
Department of Agriculture
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Food and Nutrition Service
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7 Parts 247, 250, et al.
Food Distribution Programs: Improving Access and Parity; Final Rule
Federal Register / Vol. 89 , No. 211 / Thursday, October 31, 2024 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 247, 250, 251, 253, and 254
[FNS-2023-0026]
RIN 0584-AE92
Food Distribution Programs: Improving Access and Parity
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule.
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SUMMARY: This final rule considers public comments submitted in
response to the proposed rule revising the Commodity Supplemental Food
Program (CSFP), the Food Distribution Program on Indian Reservations
(FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods
disaster response regulations. This final rule makes access and parity
improvements in USDA's food distribution programs to support access for
eligible populations and streamline requirements for program operators.
DATES:
Effective date: This rule is effective December 30, 2024.
Implementation dates: See section 2 of the SUPPLEMENTARY
INFORMATION.
This rulemaking consists of multiple provisions. Implementation for
each provision is referenced in the SUPPLEMENTARY INFORMATION section
of this final rule and detailed in the section-by-section analysis.
FOR FURTHER INFORMATION CONTACT: Gregory Walton, Program Analyst, Food
Distribution Policy Branch, Supplemental Nutrition and Safety Programs,
U.S. Department of Agriculture's Food and Nutrition Service, 1320
Braddock Place, 3rd Floor, Alexandria, Virginia 22314 at 703-305-2746
or <a href="/cdn-cgi/l/email-protection#52152037353d202b7c05333e263d3c12272136337c353d24"><span class="__cf_email__" data-cfemail="175065727078656e3940767b637879576264737639707861">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Section 1. Background and Discussion of the Final Rule
The U.S. Department of Agriculture's (the Department or USDA) Food
and Nutrition Service (FNS) works to increase food security and reduce
hunger through the administration of 16 Federal nutrition assistance
programs. Through the provision of food and administrative funding,
USDA FNS food distribution programs assist the emergency feeding
network--made up of thousands of food banks, food pantries, Tribal
governments, and other community partners--in feeding those in need.
In a proposed rule published in the Federal Register on August 14,
2023 (88 FR 54908) (described hereafter as ``the proposed rule''), FNS
proposed to amend food distribution regulations at 7 CFR parts 247,
250, 251, 253, and 254 to make access and parity improvements within
the Commodity Supplemental Food Program (CSFP), the Food Distribution
Program on Indian Reservations (FDPIR), The Emergency Food Assistance
Program (TEFAP), and USDA Foods disaster response. Based on comments
received in response to the proposed rule, USDA is finalizing
regulatory changes with the following overall aims:
<bullet> Increasing access to food distribution programs so
eligible individuals can more easily receive the nutrition resources
they need, and program operators can more easily provide those
resources;
<bullet> Increasing parity between FDPIR and the Supplemental
Nutrition Assistance Program (SNAP);
<bullet> Modernizing program operations by updating some outdated
terminology and processes;
<bullet> Updating regulations to be consistent with current program
operations and building in flexibility for future changes; and
<bullet> Incorporating lessons learned from implementing these
critical programs during the COVID-19 pandemic.
Section II. Public Comments and USDA Response
During the 60-day comment period on the proposed rule (August 14--
October 13, 2023), USDA received a total of 155 comments. The
Department appreciates the comments provided and carefully considered
these in the development of this final rule.
All comments were considered without regard to whether they were
provided by a single commenter or repeated by many. Importance was
given to the substance or content of the comment, rather than the
number of times a comment was submitted. Of the 155 comments, 11 were
duplicate or non-germane submissions, resulting in 144 relevant
comments. All comments are posted online at (see docket FNS-2023-0026,
Food Distribution Programs: Improving Access and Parity). Relevant
comments were submitted by State and local agencies, Indian Tribal
Organizations (ITOs), advocacy organizations, nongovernmental
organizations, and other interested parties, including food banks,
professional and trade associations, the research community, and
individual commenters and members of the public. Comments that did not
refer to the changes in the proposed rule were considered outside of
scope and are not addressed as part of this final rule.
Overall, five comments fully supported the proposed rule generally
and one comment opposed it. The remaining comments were either mixed or
only referenced and supported specific provisions. Additional detail on
the comments received for provisions in the proposed rule are below.
A. Commodity Supplemental Food Program
I. Technical Updates to the Entire Part 247
This final rule codifies technical updates to 7 CFR part 247 as
proposed. The Department is replacing the term ``elderly'' with
``participants'' because, under the Agricultural Act of 2014 (Pub. L.
113-79), as of February 2020, CSFP is limited to participation by
senior adults aged 60 years and above. In Sec. 247.2, the Department
is removing reference to women, infants, and children receiving CSFP
benefits as they are no longer a part of the program. Additionally, the
Department is replacing the outdated term ``commodities'' with ``USDA
Foods'' to better reflect current terminology and align with the newly
proposed definition of USDA Foods in 7 CFR 247.1 (See II. Updates to
Definitions). This technical update does not change any current
requirements and is simply a change in terminology.
Public Comments and USDA Response
The Department received 21 comments that were all supportive of the
technical updates to 7 CFR part 247. Commenters supporting the changes
included: 4 State agencies, 7 advocacy groups, 5 program operators, and
5 individuals. One commenter discussed that updating the term
``elderly'' to ``participants'' would align with the use of person-
centered language. Commenters in support of updating the term
``commodities'' to ``USDA Foods'' discussed how the technical updates
will reduce confusion at the local agency level when identifying foods
procured through USDA.
One State agency commenter requested clarification or technical
guidance on which foods are solely eligible for CSFP versus other USDA
Foods programs. The commenter stated that all of the foods in each
program would be considered USDA Foods after this update is finalized.
Per Sec. 250.12(b), distributing agencies must ensure that USDA Foods
at all storage facilities (including subdistributing agencies) are
stored in a manner that permits them to be distinguished from other
foods, and
[[Page 87229]]
must ensure that a separate inventory record of USDA Foods is
maintained. Thus, State agencies must store USDA Foods provided for
CSFP separately from USDA Foods provided for any other program (e.g.,
TEFAP) and must use those foods solely for the operation of CSFP.
II. Updates to Definitions (Sec. 247.1)
This final rule codifies the updated definitions in Sec. 247.1 as
proposed. The Department is adding a new definition for the term ``USDA
Foods'' to replace the outdated definition of ``commodities'' and align
7 CFR part 247 with current terminology. The Department is deleting the
definition of ``elderly persons'' since Sec. 247.9(a) specifies CSFP-
eligible individuals must be at least 60 years of age and because the
term ``elderly persons'' is being replaced throughout the part.
Finally, the Department is updating the definition of ``proxy'' to
exclude a ``participant's adult parent'' because children are no longer
eligible to participate in CSFP under the Agricultural Act of 2014
(Pub. L. 113-79).
Public Comments and USDA Response
The Department received 21 comments that were all supportive of
updating the definitions in Sec. 247.1. Commenters supporting the
change included: 4 State agencies, 7 advocacy groups, 5 program
operators, and 5 individuals. The update to the definitions in Sec.
247.1 reflects the technical updates discussed above (See I. Technical
Updates to the Entire Part 247). Commenters noted these updates reflect
current practices in the program and the change to the term ``USDA
Foods'' provides clarity and consistency with other USDA programs while
potentially reducing confusion at the local agency level when
identifying USDA Foods. The Department concurs with commenters who
stated that the proposed changes to Sec. 247.1 will update the program
to use current terminology and provide clarity and consistency with
other USDA food distribution programs.
One commenter suggested expanding the definition of ``proxy'' to
allow for proxies during certification and remove an access barrier to
the program. The Department is not expanding the definition of
``proxy'' for certification periods as State agencies may already
permit the use of proxies during certification and recertification.
III. Public Posting of Availability of USDA Foods (Sec. 247.5)
This final rule codifies the proposed provision at Sec.
247.5(b)(16) with modification to require that State agencies make
available a list of CSFP local agencies, excluding agencies operating
under an agreement with a local agency, on a publicly available
internet web page. The State agency must post the name, address, and
telephone number for each local agency. The list must be updated, at a
minimum, on an annual basis. This is a revision from the proposed
provision, which would have required State agencies to make publicly
available a list of all CSFP distribution sites, including both local
agencies and agencies operating under an agreement with a local agency.
State agencies must implement this provision by October 31, 2025, a
revision from the proposed 60-day implementation timeline which
acknowledges the need for additional time to implement the new
requirement.
Public Comments and USDA Response
The Department received 33 comments, 23 of which were supportive of
the proposed changes and 10 that were unsupportive. Commenters
supporting the proposed change included: 4 State agencies, 6 advocacy
groups, 8 program operators and 2 individuals. Unsupportive comments
were received from: 5 State agencies, 1 advocacy group, 4 program
operators and 1 individual.
Many commenters in support of the proposal discussed how this
change would help potential applicants find food assistance during non-
work hours and based on residency. Other commenters in support of the
proposal pointed out that many State agencies currently list
distribution sites on their public website and so this change would
reflect current practice for many State agencies while increasing
awareness of the program. Several commenters stated that to be
effective, it is vital to keep distribution site information up-to-date
and accurate.
However, several commenters raised concerns with the feasibility
and practicality of this proposed requirement and offered alternative
approaches. Some commenters pointed out that for some State agencies,
posting every distribution site on a State agency's website might not
be a practical requirement, since distribution sites change
periodically, causing the list to potentially be outdated quickly.
Others pointed out that distribution sites may not have caseload
available for potential applicants and may not have the capability to
answer phone calls or handle on site arrivals as a result of posting
this information publicly. Some commenters proposed alternative
approaches, including allowing State agencies to refer potential
applicants directly to local agencies instead of maintaining the list
of distribution sites at the State level. Others suggested requiring
only posting of permanent site locations, a single lead agency, or one
point of contact. One commenter suggested offering technology grants to
support infrastructure updates, phasing in the requirement over time,
aligning State Plan requirements with public information requirements,
and for FNS to consider allowing State agencies to link to local agency
websites that might be in a better position to provide current and
updated information. Another commenter suggested the Department use
language that State agencies ``ensure'' sites are posted without
dictating the State agency maintain ownership of the website.
Public posting of CSFP distribution sites is intended to promote
program access and help potential CSFP participants find their closest
distribution sites. However, public comments noted the proposed
provision could cause confusion if the list of CSFP distribution sites
becomes outdated or inaccurate. The Department acknowledges that for
State agencies with many small distribution sites, the requirement to
post all CSFP distribution sites may not be beneficial as the list
could become outdated as distribution sites open and close. As such,
the Department modifies this proposed provision to require State
agencies to make a list of CSFP local agencies publicly available. This
revision reduces the administrative burden on State agencies to post
information on all distribution sites while helping potential CSFP
applicants locate local agencies, that may then direct potential
applicants to distribution sites and ultimately increase program
access.
State agencies are still encouraged, but not required, to post more
frequent updates as they are needed and include additional information,
such as operating hours, links to local agency websites, and
information on distribution sites. State agencies are also encouraged,
but not required, to develop tools to aid eligible individuals in
accessing the program (e.g., a searchable tool by ZIP code). State
agencies are encouraged to share any online resources they create with
other organizations that serve CSFP-eligible individuals.
[[Page 87230]]
IV. State Plan Requirement (Sec. Sec. 247.6(a) and 247.5(b)(17))
This final rule codifies the requirement that State agencies make
publicly available the State Plan that is currently in use by the State
agency on an internet web page as proposed. This modernizes the current
requirement at 7 CFR 247.6(a) that State agencies must keep a copy of
the State Plan on file at the State agency for public inspection. This
final rule also codifies as proposed a related provision at Sec.
247.5(b)(17), which requires State agencies to make publicly available
the State Plan that is currently in use by the State agency on an
internet web page. State agencies must implement this provision no
later than 12 months after the date of publication of the final rule in
the Federal Register.
Public Comments and USDA Response
The Department received 19 comments, 16 of which were supportive of
the proposed changes and 3 that were unsupportive. Commenters
supporting the proposed change included: 2 State agencies, 3 advocacy
groups, 2 food bank associations, 8 program operators and 1 individual.
Unsupportive commenters included: 1 State agency, 1 advocacy group, and
1 individual. Commenters supporting the proposed change expressed the
new requirement would increase program transparency and increase
awareness of the program. Unsupportive commenters had concerns the
proposed change would create an undue administrative burden, and one
suggested USDA post State Plans on its own website.
The Department recognizes there is an administrative burden
associated with posting the State Plan on a publicly available internet
web page. However, the Department estimates this burden will be modest
and believes this is outweighed by the benefits of increasing
transparency and awareness of the program and modernizing the current
requirement that the State Plan be available for public inspection. A
number of State agencies already post their State Plan on a publicly
available website. However, for the State agencies posting their State
Plan for the first time, FNS will provide guidance on the timing of
when State Plans need to be posted to a website, giving direction and
time to State agencies to comply with this change by the implementation
date of 12 months after the date of publication of this final rule.
V. Eligibility Requirements (Sec. 247.9)
This final rule codifies the increase to the CSFP maximum income
eligibility guidelines to 150 percent of the U.S. Federal Poverty
Guidelines published annually by the U.S. Department of Health and
Human Services (HHS) at Sec. 247.9(a) as proposed. This is an increase
from the prior limit of 130 percent of the U.S. Federal Poverty
Guidelines.
In addition to the proposed change to increase CSFP's maximum
income eligibility guidelines to 150 percent of the U.S. Federal
Poverty Guidelines without the addition of a medical deduction, the
Department specifically requested public comments on an alternate level
of 185 percent of the U.S. Federal Poverty Guidelines.
Public Comments and USDA Response
The Department received 88 comments on this provision, all of which
were in support of raising CSFP income eligibility guidelines. Of these
commenters, 19 supported raising the income guidelines without
specifying a new threshold, including 2 State agencies, 4 program
operators, 1 advocacy group, and 2 individuals. An additional 3
commenters supported raising the guidelines to 150 percent, including 1
State agency, 1 food bank association, and 1 program operator. The
remaining 66 commenters supported raising the income guidelines to 185
percent, including 9 State agencies, 3 food bank associations, 10
advocacy groups, 1 member of industry, 22 program operators, and 21
individuals.
Many commenters discussed how an increase in the CSFP income
eligibility limit would better serve residents in higher cost of living
areas, those who have high medical expense costs, as well as
participants living in remote, geographically isolated Tribal
jurisdictions. Other supporters mentioned how nationwide inflation
increases particularly affect CSFP's target population, given that
older individuals more often have fixed incomes compared to younger
individuals.
Specific to the 185 percent limit, commenters discussed how it
would align the program with the Senior Farmers' Market Nutrition
Program (SFMNP) and reduce confusion for participants of both programs.
Commenters also mentioned how a 185 percent limit would align the
program with other FNS food distribution programs.
The Department agrees the proposed increase to 150 percent will
help serve participants in higher cost of living or remote areas, those
with higher medical expenses, and participants experiencing higher
living costs due to increased inflation nationwide.
While the Department appreciates feedback on the alternative level
of 185 percent, the Department's priority is to provide CSFP benefits
to seniors who are most in need. As a discretionary program that does
not operate Statewide in most jurisdictions, the Department believes
the income eligibility limit of 150 percent of the U.S. Federal Poverty
Guidelines best achieves this goal.
VI. Changes to Identification Check at Distribution and Flexibility for
Identification Verification (Sec. Sec. 247.10(b) and 247.6(c))
This final rule codifies the changes to identification checks at
distribution at Sec. Sec. 247.10(b) and 247.6(c), as proposed,
increasing flexibility for State agencies in verifying participant
identity. At Sec. 247.10(b), the Department finalizes an update to the
current requirement that each participant, or their proxy, present some
form of identification before receiving USDA Foods, to instead require
local agencies have a process in place, in accordance with State agency
requirements, to verify the identity of a participant or their proxy
before distributing USDA Foods. The Department also finalizes the
associated change to Sec. 247.6(c) as proposed to require State Plans
have a description of the process in place to verify the identity of
participants before receipt of USDA Foods.
Public Comments and USDA Response
The Department received 58 comments relating to these provisions,
all of which were supportive of the proposed change to grant more
flexibility when checking the identity of CSFP participants, or their
proxies, during the time of delivery of the CSFP food package.
Commenters supporting the change included: 10 State agencies, 11
advocacy groups and food bank associations, 1 member of industry, 23
program operators and 13 individuals. Many supportive commenters
discussed how the proposed change would modernize and streamline the
current requirement and increase program access to individuals with
disabilities, mobility issues, language barriers, and individuals that
do not have identification. Other supportive commenters mentioned how
service would be streamlined under the proposed change and how the
change would lower the burden of delivering food packages and allow for
greater use of technology. The Department agrees this change modernizes
the identification requirement and streamlines program access for
[[Page 87231]]
participants with disabilities, mobility issues, language barriers, and
those without identification. This change allows local agencies and
participants more flexibility in verifying participant identity and
supports State and local agencies in modernizing the program's delivery
methods, for example through innovative partnerships with third-party
entities that deliver food packages directly to participants' homes.
These entities now have greater flexibility when verifying
participants' identity in line with the State's requirements.
Some commenters who supported the proposed provision also expressed
a desire to remove identification verification completely from the
program. Others requested examples of alternate materials that would
satisfy this requirement and minimum thresholds for identity
verification. State agencies have the flexibility to set their own
parameters to verify the identity of participants or their proxies
prior to distribution of food packages provided the method is in line
with regulatory requirements, including that USDA Foods are only
distributed to CSFP participants. FNS will provide additional guidance,
including examples of how to meet this requirement, as part of the
implementation of this final rule.
VII. Request for Comment: Federal and State Programs Conferring
Eligibility for CSFP
This final rule codifies a new provision at Sec. 247.9(b)(1) and
(2) to give State agencies the option to allow CSFP participants to
demonstrate eligibility for CSFP via participation in specific Federal
programs or a State program with income limits at or under the CSFP
threshold.
State agencies may accept participation in the following Federal
programs as demonstrating eligibility for CSFP: the Supplemental
Nutrition Assistance Program (SNAP), the Food Distribution Program on
Indian Reservations (FDPIR), Supplemental Security Income (SSI), the
Low Income Subsidy Program (LIS), also known as Extra Help, and
available under the Medicare Part D prescription drug program, and the
Medicare Savings Program(s) (MSP).
This final rule also allows State agencies to identify and accept
participation in State level programs that have maximum income
eligibility guidelines at or below the State's maximum CSFP guidelines
as demonstrating eligibility for CSFP.
The Department sought feedback from CSFP State agencies, including
ITOs, and the program community on this proposal through the proposed
rule, and specifically on the following questions:
1. Are there other Federal programs that you would like USDA to
consider as options to demonstrate eligibility for CSFP?
2. Should USDA consider an option for State agencies to have the
flexibility to include State means-tested programs to demonstrate
eligibility for CSFP?
Public Comments and USDA Response
The Department received 17 comments that were all in support of
considering participation in various programs at the Federal and State
level as demonstrating eligibility for CSFP. Commenters supporting the
change included: 5 State agencies, 4 advocacy groups, 5 program
operators, and 3 individuals. Commenters in support of this provision
suggested that participation in the following Federal programs should
demonstrate eligibility for CSFP: SNAP, SSI, FDPIR, the Low Income Home
Energy Assistance Program (LIHEAP), the Senior Farmers' Market
Nutrition Program (SFMNP), the Housing Choice Voucher Program Section
8, Medicaid, the Children's Health Insurance Program (CHIP), Medicare,
and the Supplemental Nutrition Program for Women, Infants, and Children
(WIC).
One commenter suggested including programs with income limits above
CSFP but did not suggest a limitation. Many commenters generally
supported demonstrating eligibility for CSFP through participation in
State-level programs with income limits at or below CSFP, and one
commenter suggested the Michigan Housing Authority residence and
utility assistance programs in their State.
Given that the Department received fully supportive comments on
this change, the Department codifies in this final rule a provision to
give State agencies the option to allow participation in specific
Federal programs and State level programs with income eligibility
standards at or below the CSFP requirements to demonstrate eligibility
for the program. This provision reduces the administrative burden on
local agencies and participants and will not impose any program changes
to State agencies which do not elect to implement this provision.
Through the comment period and subsequent analysis, the Department
identified programs outside of those listed in the request for comments
in the proposed rule, such as LIS and MSP, and included those as
additional Federal programs allowed to demonstrate CSFP income
eligibility.
VIII. Referral Materials for the Senior Farmers' Market Nutrition
Program (Sec. 247.14)
This final rule codifies a new provision at Sec. 247.14(a)(4) as
proposed to require that local agencies, where applicable, share
written information and referrals to the Senior Farmers' Market
Nutrition Program (SFMNP) with CSFP applicants. Section 247.14(a)
currently requires that local agencies, as appropriate, provide
applicants with written information and make referrals on various
programs, including SNAP. CSFP and SFMNP work in tandem to serve the
low-income senior population and the benefits provided by each program
help meet the needs of seniors at nutritional risk. State agencies and
other affected parties must implement this provision no later than 12
months after the date of publication of the final rule in the Federal
Register.
Public Comments and USDA Response
The Department received 29 comments for this provision, 25 of which
were in support and 4 that were unsupportive. Commenters supporting the
proposed provision included: 8 State agencies, 9 advocacy groups and
food bank associations, 5 program operators, and 3 individuals.
Unsupportive commenters included: 1 State agency and 1 local agency, 1
individual, and 1 advocacy group. Supportive commenters discussed how
CSFP participants who gain access to SFMNP could receive access to
fresh produce that is not currently offered in CSFP. The Department
concurs with commenters who stated that providing SFMNP referral
materials to CSFP participants can help participants access SFMNP and
potentially increase their consumption of fresh produce.
Three commenters representing Indian Tribal Organizations requested
FNS provide periodic updates on other CSFP or SFMNP program operators
in their areas. The Department recognizes this information is important
to support referrals and maintains publicly available contact
information for CSFP and SFMNP State agency operators to facilitate
connection between these programs.
One commenter requested that SFMNP have dedicated caseload for CSFP
participants to ensure access to the program, a change that would be
outside the scope of this rulemaking.
Other commenters requested a clarification on what ``written''
means in this provision, as many States operate in web-based
communications and because printing materials may exhaust the limited
budgets of implementing
[[Page 87232]]
agencies. One unsupportive commenter of this provision mentioned how,
with labor shortages and other challenges, the benefit of this
provision would not outweigh the cost of implementing it and how other
program activities may be negatively impacted. Another commenter
supported sharing information about SFMNP, but did not support formal
referrals to other programs, due to it being an undue burden on local
agencies. Another commenter mentioned how they do not support the
provision as written because printing may not be available everywhere.
The Department acknowledges that some State and local agencies have
limited budgets and clarifies that for purposes of this provision, and
in alignment with current CSFP policy, written materials can include
electronic communications. In addition, this provision includes the
language ``where applicable'' to ensure that SFMNP referrals do not
need to occur in areas in which the program is not offered and in other
instances when referrals are not applicable.
IX. Nondiscrimination Statement Update (Sec. 247.37)
The Department proposed an update to the nondiscrimination
statement language at Sec. 247.37 to state that CSFP must be operated
in accordance with the most up-to-date USDA nondiscrimination
statement. Because the nondiscrimination statement is applicable to
multiple USDA programs, the Department has reconsidered its approach.
The Department will not finalize the proposed provision in this
rulemaking. The Department will instead consider options to address
this in future rulemaking.
Public Comments and USDA Response
The Department received 4 comments on this proposed provision, all
of which were in support of the proposed change, including 1 State
agency, 2 advocacy groups, and 1 individual. Commenters highlighted how
this proposed change would retain important nondiscrimination language
while also ensuring that the most current USDA statement consistently
remains official policy. The Department appreciates support for the
proposed changes and will consider this feedback in future rulemaking
addressing the nondiscrimination statement, with the goal of
consistency across USDA programs.
B. USDA Foods in Disasters and Situations of Distress
I. Technical Updates to Sec. Sec. 250.69 and 250.70
This final rule codifies the technical updates to Sec. Sec. 250.69
and 250.70 as proposed, replacing the outdated terms ``commodities,''
``food commodities,'' ``donated commodities,'' and ``donated foods,''
with ``USDA Foods'' to further align with the definition of ``USDA
Foods'' in 7 CFR part 250. Technical updates also include
reorganization for clarity.
Public Comments and USDA Response
The Department received 10 comments that were all supportive of the
proposed change. Commenters included: 4 State agencies, 3 advocacy
groups, and 3 individuals. The Department concurs with the commenters
that noted the terms being replaced are no longer a part of the program
and are outdated, as well as the commenter noting the technical changes
will mitigate and reduce confusion at the recipient agency level.
II. Removal of Prohibition on Simultaneous Provision of USDA [Donated]
Foods and D-SNAP During a Disaster (Sec. Sec. 250.69(c)(2) and
250.70(d))
This final rule codifies the changes to Sec. Sec. 250.69(c)(2) and
250.70(d) as proposed to remove the prohibition on the simultaneous
distribution of USDA Foods and Disaster Supplemental Nutrition
Assistance Program (D-SNAP) benefits to households during a disaster
and situations of distress. The Department recognizes that immediate
implementation of this provision may benefit State distributing
agencies and recipients of USDA assistance during disasters. Because
the removal of the dual participation prohibition removes a
restriction, the Department is using the authority at 5 U.S.C.
553(d)(1) to make this provision effective immediately upon the date of
publication of this final rule.
Public Comments and USDA Response
The Department received 24 comments that were all supportive of the
proposed change. Commenters included: 6 State agencies, 10 advocacy
groups, 1 food bank association, 3 local agencies, and 4 individuals.
Many commenters noted that this change would allow disaster assistance
to run more seamlessly and be more streamlined while also acknowledging
that a person's ability to access grocery stores or food distributions
varies depending on the type of emergency. The Department concurs with
commenters that this change allows for more efficient disaster
assistance and for expedited distribution of foods during times of high
need.
III. Clarification of Requirements for Distribution of USDA Foods
During a Disaster and Situations of Distress (Sec. Sec. 250.69 and
250.70)
This rule codifies the clarification of requirements for the
distribution of USDA Foods during a disaster at Sec. 250.69 and during
situations of distress at Sec. 250.70 as proposed. The reorganization
of Sec. Sec. 250.69 and 250.70 clarifies which requirements in the
section apply to approval of disaster organizations serving congregate
meals and which requirements apply to disaster organizations providing
USDA Foods for household consumption, as follows:
<bullet> Congregate meals language from Sec. 250.69(c) and the
entirety of Sec. 250.69(e) will be consolidated at Sec. 250.69(a);
<bullet> Household distribution language from Sec. 250.69(c) and
the entirety of Sec. 250.69(d) will be consolidated at Sec.
250.69(b); and
<bullet> Section 250.69(f) through (h), which apply to both methods
of distribution, are redesignated to Sec. 250.69(d) Reporting and
recordkeeping requirements, Sec. 250.69(e) Replacement of USDA Foods,
and Sec. 250.69(f) Reimbursement of transportation costs,
respectively.
<bullet> Language from Sec. 250.70(c) and the entirety of Sec.
250.70(e) will be consolidated into a single provision at Sec.
250.70(a) to clarify the use of USDA Foods in congregate meals.
<bullet> All language relevant to distribution to households,
including language from Sec. 250.70(c) and the entirety of Sec.
250.70(d), will be consolidated into a single provision at Sec.
250.70(b) to clarify the use of USDA Foods for distribution to
households.
<bullet> Section 250.70(f) Reporting and recordkeeping
requirements, Sec. 250.70(g) Replacement of donated foods, and Sec.
250.70(h) Reimbursement of transportation costs, which apply to both
methods of distribution, will remain separate and will be redesignated
to Sec. 250.70(d) Reporting and recordkeeping requirements, Section
250.70(e) Replacement of donated foods, and Sec. 250.70(f)
Reimbursement of transportation costs, respectively.
Public Comments and USDA Response
The Department received 10 comments that were all supportive of the
proposed change. Commenters included: 3 State agencies, 4 advocacy
[[Page 87233]]
groups, and 3 individuals. Commenters generally supported this
provision along with the other technical changes proposed to Sec. Sec.
250.69 and 250.70 as these changes make it easier to understand the
regulations and provide disaster assistance.
IV. Limitation on Impacts to Other Programs (Sec. Sec. 250.69(c) and
250.70(c))
This final rule codifies the provisions at Sec. Sec. 250.69(c) and
250.70(c) as proposed to ensure the operation of congregate meals
service and/or disaster household distribution, including in situations
of distress, is not administered in lieu of regular program operations,
nor does it negatively impact the distribution of USDA Foods through
other programs within a distributing agency's jurisdiction. USDA Foods
for disaster response activities are typically drawn from local USDA
Foods inventories that support permanent programs such as TEFAP. This
provision ensures that distributing agencies consider the operation of
other USDA Foods programs when making decisions about using USDA Foods
for disaster response activities.
Public Comments and USDA Response
The Department received 10 comments, 3 of which were supportive (1
State agency and 2 advocacy groups), 1 unsupportive (advocacy group),
and 6 that requested additional clarification (2 State agencies, 3
local agencies, and 1 food bank association). The commenters requesting
clarification stated that the proposed provision was written
ambiguously and requested that FNS define what would qualify as an
``ongoing negative impact'' and what is considered a ``limitation on
impacts to other programs.'' Commenters mentioned how, without
thresholds as to what a negative impact is, distributing agencies will
be unable to enforce the provision. The Department clarifies that to
ensure the operation of congregate meals service and/or disaster
household distribution in situations of distress or during disasters is
not administered in lieu of regular program operations, distributing
agencies should only administer a USDA Foods in disaster response if
USDA Food inventory levels of other programs, such as FDPIR and TEFAP,
are sufficient to maintain and continue food distribution of those
programs at the same levels prior to diverting USDA Foods for disaster
response.
Additionally, negative impacts to the distribution of USDA Foods
through other programs administered by the distributing agency can
include, for example, when a disaster distribution lowers the USDA
Foods inventory of another program, such as FDPIR, to a level that may
impact the distributing agency's ability to provide FDPIR benefits to
participants at the current program levels. Distributing agencies
should ensure the operation of congregate meals service and disaster
household distribution, including under situations of distress, does
not lower the inventory levels of other programs below their regulatory
requirements. When determining whether an ongoing negative impact may
occur, the distributing agency must take into consideration, among
other factors, current program participation levels, household food
preferences and the historical and projected volume of food
distribution at each site.
The unsupportive comment argued the proposed provision would put
the responsibility on distributing agencies to implement other programs
like FDPIR and TEFAP and would put an undue burden on distributing
agencies to determine how to divide resources. The Department clarifies
this provision codifies a principle that is already in place for USDA
Foods in Disasters, which is that distributing agencies should consider
the operation, including inventory levels and current participant
caseload levels, of their permanent programs like TEFAP and FDPIR when
making decisions about using USDA Foods for disaster response. Although
the distribution of USDA Foods during and after disasters divides a
distributing agency's resources, operating USDA Foods disaster response
activities should not negatively impact the operation of other
programs. Specifically, disaster household distributions should not
take the place of regular FDPIR or TEFAP operations, nor reduce food
benefits and services of those programs. Per current regulations at
Sec. 250.69(g), USDA is responsible for the replacement of USDA Foods
used in Presidentially-declared disaster or emergency response, if
requested by the distributing agency. Replacement of those USDA Foods
occurs within 45 days following the termination of disaster assistance.
V. Updated Reporting Requirements for Distribution of USDA Foods to
Households During a Disaster (Sec. Sec. 250.69(d) and 250.70(d))
This final rule codifies the requirement at Sec. Sec. 250.69(d)
and 250.70(d) with modification to require distributing agencies
operating disaster household distributions to submit a biweekly report
to FNS, rather than weekly as described in the proposed rule. All
distributing agencies operating disaster household distributions must
submit a biweekly report (every two weeks) for the duration of the
approved disaster household distribution, regardless of the
distribution period's length. Distributing agencies must use the format
prescribed by FNS, which must be submitted electronically for the
duration of the approved disaster household distribution. The biweekly
report must include: (i) The weekly distribution start and end dates,
(ii) The total number of individual household members receiving
assistance at all locations, (iii) Material identification codes for
USDA Foods distributed, (iv) The USDA Foods description of the foods
distributed, and (v) The total units of each food distributed. The
information will be submitted electronically.
Public Comments and USDA Response
The Department received 19 comments on the proposed reporting
requirement, with 7 in support and 12 in opposition. Supportive
commenters included: 2 State agencies, 3 advocacy groups, 1 food bank
association, and 1 individual. Unsupportive commenters included: 4
State agencies, 7 advocacy groups, and 1 local agency. Commenters in
support of this provision discussed how the proposed reports would more
efficiently help efforts to replace USDA Foods used in disaster
response and would also assist in inventory management, ordering, and
distribution. Supporters of the proposed provision also suggested the
reporting mechanism be user-friendly and be a reasonable process that
uses modern technology.
Commenters expressed concern with the resulting administrative
burden associated with the increased reporting while also requesting
increased funding or widespread adoption of automated reporting
mechanisms to lessen the burden. Commenters also mentioned how the
administrative burden would occur during times of already heightened
administrative burden. Other suggestions included using a reporting
method that uses current, up-to-date technology and to consider
utilizing the data of other sources, such as the Federal Emergency
Management Agency (FEMA), to collect this information.
This provision was intended to improve FNS' and State distributing
agencies' understanding of the quantity and types of USDA Foods
available for emergency response and facilitate FNS' efforts to replace
USDA Foods used in disaster response to prioritize nutrition security
for participants in all programs serving USDA Foods. The prolonged
[[Page 87234]]
nature of the COVID-19 pandemic and the quantity of USDA Foods
distributed under disaster household distributions illustrated that
requiring reporting of USDA Foods distributed only after the end of the
disaster assistance period presented challenges. These challenges
included timely tracking of USDA Foods inventories at both the national
and State distributing agency levels, which affected USDA and State
distributing agencies' ability to source and distribute foods to meet
the needs of the public. However, the Department concurs with
commenters who stated the proposed requirement as written represented a
potential administrative burden on State distributing agencies.
In response to these comments, the Department amends the proposed
provision in the final rule to lessen the associated administrative
burden. Instead of weekly reporting required for disaster household
distributions longer than 14 calendar days, the Department requires all
distributing agencies operating disaster household distributions to
submit a biweekly report (every two weeks) for the duration of the
approved disaster household distribution, regardless of the
distribution period's length.
The Department's decision to limit reporting to a biweekly basis,
rather than the proposed weekly basis, lessens the administrative
burden on distributing agencies while still collecting the information
needed to track USDA Foods used in disaster response and monitoring
inventory levels.
The Department clarifies the information requested in this new
biweekly report is the same information that must be submitted with the
currently required FNS-292A, Report of Commodity Distribution for
Disaster Relief, that must be completed within 45 days following the
termination of disaster assistance. Under this new reporting
requirement, State distributing agencies may use the same data
submitted in the biweekly report(s) to timely submit the FNS-292A to
FNS. The Department agrees with utilizing available technology and will
require the submission of biweekly reports electronically.
C. The Emergency Food Assistance Program (TEFAP)
I. Technical Updates to the Entire Part 251
This final rule codifies the technical updates to 7 CFR part 251 as
proposed. The Department is replacing instances of the outdated terms
``commodities,'' ``food commodities,'' ``TEFAP commodities,'' ``TEFAP
foods,'' ``donated foods,'' and ``donated commodities'' to ``USDA
Foods'' to further align the program with the definition of ``USDA
Foods'' in 7 CFR part 250.
Public Comments and USDA Response
The Department received 15 comments that were all in support of the
proposed technical changes to 7 CFR part 251. Commenters included: 5
State and 5 local agencies, 2 food bank associations, and 3 advocacy
groups. The Department concurs with the commenters.
II. Technical Clarification to the Definition of a Food Bank (Sec.
251.3)
This final rule codifies the update to the definition of a food
bank at Sec. 251.3 as proposed. The Department is removing a
description of food provided by food banks in Sec. 251.3(f), deleting
``or edible commodities, or the products of food or edible
commodities'' from the definition of food bank, as this description
caused confusion about the types of foods to which regulations apply.
The Department did not receive any comments on this provision.
III. Requirement for the Public Posting of Availability of USDA Foods
Through TEFAP and Encouraging Distribution of USDA Foods in Tribal
Areas (Sec. 251.4)
This final rule codifies the proposed provision at Sec. 251.4(l)
with modification to require eligible recipient agencies (ERAs) that
have agreements with the State agency to be posted to a publicly
available internet web page. This final rule also codifies as proposed
the provision at Sec. 251.4(l) that each State agency publicly posts
the State's uniform statewide eligibility criteria to receive USDA
Foods for household consumption. The Department also codifies the
provision at Sec. 251.4(k) as proposed to encourage State agencies and
ERAs to implement or expand USDA Foods distributions in rural, remote,
and Tribal areas of the State, wherever possible.
1. Requirement for the Public Posting of Availability of USDA Foods
Through TEFAP (Sec. 251.4(l))
ERAs are organizations that distribute USDA Foods through TEFAP.
The proposed rule would have required TEFAP State agencies to post
information about all ERAs to publicly available websites, to include
those ERAs which have agreements with other ERAs. In consideration of
the administrative burden associated with this provision as highlighted
through public comments, this final rule codifies the proposed
provision at Sec. 251.4(l) with modification to require ERAs that have
agreements with the State agency to be posted to a publicly available
internet web page. At minimum, State agencies must publicly post the
names, addresses, and contact telephone numbers for all ERAs that have
an agreement with the State agency.
The Department codifies as proposed the requirement that State
agencies must post the State's uniform Statewide eligibility criteria
to receive USDA Foods for household consumption. The information must
be posted on a publicly available internet web page and be updated on
an annual basis or whenever changes to eligibility criteria are made
(See IV. State Agency Options for TEFAP Eligibility Criteria,
Documentation, and Public Communication (Sec. 251.5) 3. Public Posting
of Statewide TEFAP Eligibility Criteria for further discussion (Sec.
251.5(b)). State agencies must implement this provision no later than
12 months after the date of publication of the final rule in the
Federal Register.
Public Comments and USDA Response
The Department received 28 comments on this provision, 24 of which
were supportive and 4 that were not supportive. Supportive commenters
included 5 State and 6 local agencies, 6 food bank associations, 5
advocacy groups, and 2 individuals. Unsupportive commenters included 3
State agencies and 1 local agency.
Supporters of the change explained how publicly listing ERAs helps
potential participants find food assistance during non-working hours
and access residency information.
Other commenters supported the intent of the provision but had
concerns with the administrative and financial burden associated with
listing all ERAs, since information on smaller ERAs can change
frequently and without notice. Commenters suggested that single points
of direct contact be established that are better equipped to handle
potential participants. Additional commenters had concerns over the
accuracy of the data that would be made available to the public.
The Department agrees with commenters that suggested the proposed
list of all ERAs may not be useful to participants or potential
participants if there are issues with the list being outdated or
inaccurate. Smaller ERAs may be added or removed from the program more
frequently and may not have the capacity to handle direct referrals or
questions from potential participants as well as larger ERAs. To lower
the administrative and financial
[[Page 87235]]
burden of this provision, the Department is revising the provision to
only require that ERAs holding an agreement with the State agency be
posted publicly. ERAs that have direct agreements with the State agency
are more likely to maintain consistent contact information and have the
resources to direct potential participants to the program.
Additionally, excluding ERAs that have agreements with other ERAs
reduces the State agency's burden of posting the list.
Some commenters suggested that certain types of ERAs should not be
posted publicly, for example, domestic violence shelters. The
Department recognizes that some ERAs may have a compelling public
safety reason for not having their address posted publicly and commits
to working with State agencies on a case-by-case basis for ERAs that
may be in this situation.
The intent of this provision is to improve participants' and
potential participants' access to TEFAP, and the Department encourages
State agencies to post the complete list of ERAs, including ERAs that
hold agreements with other ERAs, to help the public understand where
they may access TEFAP.
State agencies are still encouraged, but not required, to post more
frequent updates as they are needed and to include additional
information, such as operating hours, the areas served by the ERA,
links to ERA websites, and distribution site addresses. State agencies
are also encouraged, but not required, to develop tools to aid eligible
individuals in accessing the program (e.g., a searchable tool by ZIP
code).
2. Encouraging Distribution of USDA Foods in Tribal Areas (Sec.
251.4(k))
This final rule codifies the revision to Sec. 251.4(k) as proposed
to encourage State agencies and ERAs to implement or expand
distributions of USDA Foods in Tribal areas, in addition to the rural
areas already listed.
Public Comments and USDA Response
The Department received 22 comments for this provision that were
all supportive of the proposed change. Commenters included: 4 State and
5 local agencies, 6 food bank associations, 6 advocacy groups, and 1
individual. Supportive commenters discussed how this provision would
help expand access to TEFAP in Tribal communities and other
historically underserved populations while bolstering partnerships with
Tribal Nations. Others mentioned their continued support for TEFAP
Reach and Resiliency grant funding to carry out projects to expand the
reach of TEFAP to remote, rural, Tribal and/or low-income areas and how
this provision can aid in these efforts. The Department agrees with all
the commenters who supported the proposed provision and with the
commenters who stated this proposed provision could expand TEFAP access
to historically underserved populations while strengthening the
program.
Commenters also suggested that FNS release guidance or best
practices on how to achieve expanded access to TEFAP in Tribal areas.
FNS will provide guidance and best practices to help implement or
expand distributions of USDA Foods in Tribal areas as a part of the
final rule implementation.
One commenter expressed the language that encourages the expansion
of TEFAP is not strong enough and suggested that it should be required,
and separately, that Congress should designate Tribes as legally
eligible to administer TEFAP. While the Department appreciates this
comment and agrees it is important to continue expanding TEFAP's reach
into Tribal areas, this request is outside of the scope of this
rulemaking.
IV. State Agency Options for TEFAP Eligibility Criteria, Documentation,
and Public Communication (Sec. 251.5)
The Department is revising TEFAP regulations to increase alignment
of income eligibility criteria nationwide, ensure access for vulnerable
individuals, and ensure that statewide eligibility criteria are posted
in a manner accessible to the public.
1. TEFAP Maximum Income Eligibility Range and State Agency Option for
Alternative Income Eligibility Thresholds (Sec. 251.5(b)(2))
This final rule codifies the proposed change with modification to
implement a TEFAP maximum income eligibility range and State agency
option for alternative income eligibility thresholds at Sec.
251.5(b)(2). This change requires that income-based eligibility
standards be between 185 percent and 300 percent of the U.S. Federal
Poverty Guidelines, which are published annually by the U.S. Department
of Health and Human Services (HHS). This is an increase from the upper
threshold in the proposed rule, which would have set income-based
standards at a maximum income eligibility threshold at or between 185
percent to 250 percent of the U.S. Federal Poverty Guidelines. This
revision maintains the ability for State agencies to propose
alternative income-based eligibility standards above this threshold
with supporting rationale, subject to FNS approval. Consistent with
current program requirements at Sec. 251.5(b), income eligibility
standards set by a TEFAP State agency under the final provision must be
applied uniformly statewide.
Public Comments and USDA Response
The Department received 62 comments on the proposed provision.
Twenty commenters supported the proposed range of 185-250 percent of
the U.S. Federal Poverty Guidelines, 32 did not support the cap as
proposed and requested a cap above 250 percent, 3 were opposed to any
maximum cap, 1 supported raising the lowest maximum above 185 percent
to 200 percent, 3 commenters opposed the 250 percent maximum as too
high, and 3 commenters opposed the proposed provision in full.
Commenters included 9 State agencies, 24 local agencies, 11 food bank
associations, 11 advocacy groups, and 7 individuals.
Commenters in support of the proposed provision stated the change
would increase access for individuals who would not have previously
qualified under the current guidelines and that the range is a starting
point for standardizing eligibility standards nationwide.
Commenters who supported increasing the maximum cap beyond 250
percent stated the proposed cap was too low and would create an undue
administrative burden on States currently operating over the 250
percent level, as they would have to submit additional justification to
FNS to maintain their current income eligibility guidelines. They also
mentioned the proposed maximum may be a potential deterrent for other
States to adjust their income eligibility thresholds above 250 percent
in the future, due to the increased administrative burden. Some
commenters who felt the 250 percent maximum threshold was too low
suggested that either FNS use no maximum threshold or create a maximum
of 400 percent if necessary.
Commenters also mentioned concerns that USDA may deny requests for
higher maximums above the proposed range. Supporters of a maximum cap
above 250 percent stated that a higher maximum would be more inclusive
of current State agency income eligibility thresholds and better
reflect the economic realities of food insecurity in the country.
Commenters also expressed concerns that in States with current income
eligibility thresholds above the maximum identified in the proposed
rule, participants could lose access to the program if their higher
thresholds were not approved. One commenter suggested that all TEFAP
participants be
[[Page 87236]]
treated like those visiting prepared meal sites and not be subject to
income eligibility guidelines.
The Department concurs with commenters who expressed that a maximum
income eligibility threshold of 250 percent of the U.S. Federal Poverty
Guidelines is too low and may not encompass those in need who are
living in areas with a high cost of living, such as urban centers,
Tribal areas, and some geographically isolated States and U.S.
Territories.
As some commenters mentioned, the Department also recognizes that
current participants may be impacted by the proposed maximum threshold
and the Department wishes to mitigate that impact. Thus, the Department
is revising the provision to increase the maximum income threshold in
this provision, from 250 percent to 300 percent of the Federal Poverty
Guidelines. Additionally, the Department retains the ability for States
to propose alternative income-based eligibility standards (i.e.,
standards above 300 percent) with FNS approval. While the Department
recognizes there is administrative burden associated with requesting
this approval, the Department estimates the burden is modest and views
this as necessary to ensure TEFAP resources are only reaching
individuals most in need, without unduly impacting current
participants.
Commenters also questioned whether FNS is changing its funding
allocation model to reflect a larger pool of eligible participants. The
TEFAP food and administrative funding formulas are set in program
statute and accordingly, FNS will continue to use this formula to
allocate program resources.
Additionally, some commenters requested guidance from FNS,
including an approval matrix for States wishing to increase their
ceiling above the maximum, and examples of what types of justification
will be approved by FNS. FNS will provide guidance during
implementation of this final rule to aid State agencies in requesting
maximum income eligibility thresholds over 300 percent and expects
requests will likely align with guidance in Policy Memo FD-153,
Guidance for Submitting Amendments to TEFAP State Plans per 7 CFR
251.6. For those State agencies who currently have income guidelines
over 300 percent, FNS will provide technical assistance to submit
timely justifications as needed, in accordance with FNS guidance, and
prior to this rulemaking's effective date.
2. Methods for Verifying Residency and Removal of Federal Address
Collection Requirements (Sec. Sec. 251.5(b)(3) and 251.10(a)(4))
This final rule codifies the change at Sec. 251.5(b)(3) as
proposed to establish that length of residency, address, or
identification documents shall not be used as eligibility criteria when
determining household eligibility. This final rule also codifies the
removal of Federal address collection requirements at Sec.
251.10(a)(4) as proposed. Current regulations at Sec. 251.10(a)(3)
require distribution sites to collect the addresses of households
receiving USDA Foods for home consumption and maintain the record of
participant addresses per the retention policy described in Sec.
251.10(a)(4).
Public Comments and USDA Response
The Department received 53 comments on this provision, 43 of which
were supportive and 10 unsupportive. Supportive commenters included: 6
State and 16 local agencies, 7 advocacy groups, 12 food bank
associations, and 2 individuals. Unsupportive commenters included: 1
State agency, 6 local agencies, and 3 individuals.
Supportive comments stated the current practice to collect full
household addresses is burdensome to participants and ERAs, as well as
a hindrance to migrant workers, people experiencing homelessness, those
who move frequently, or those who have privacy concerns with providing
an address. Other supportive comments stated that ERAs would benefit
from the change by eliminating a lengthy administrative intake step,
freeing up staff capacity and helping to shorten long lines at
distributions. The Department concurs with the majority of commenters
in support of the proposed change at Sec. 251.5(b)(3) that collecting
household information can be burdensome to both participants and ERAs.
FNS aims to ensure that TEFAP State agencies retain the ability to
develop statewide eligibility criteria which fit their needs, while
supporting program access for vulnerable individuals and households.
Opposed commenters had concerns that not using an address to verify
residency could result in individuals outside of their community
accessing their distribution sites and depleting resources intended for
community members. Some commenters expressed concern about not being
able to collect zip codes under the proposed provision. Some commenters
also suggested the final rule remove geographic limitations on service
altogether. Finally, one commenter requested clarification for State
agencies on acceptable alternative forms of verification.
Along with self-attestation, other options for State agencies to
confirm residency of TEFAP applicants may include collecting the zip
code or county of residence of TEFAP applicants. These alternate forms
of confirming residency also help address the concerns raised by a few
commenters of the risk of individuals from outside of a community
accessing an ERA's TEFAP offerings. In addition, the significant
benefits of this provision, including supporting program access for
vulnerable individuals and households, eliminating a lengthy
administrative intake step, freeing up staff capacity, and helping to
shorten long lines at distributions, outweigh the minimal concerns
raised by some commenters.
Some commenters requested clarification on whether addresses can
still be collected for other purposes, such as in cases of food recalls
and providing information on more resources. The Department clarifies
that ERAs cannot collect addresses as part of the eligibility
determination process but may still collect addresses on a voluntary
basis for other purposes, such as in cases of food recalls and
providing information on other assistance programs, if it is clear
providing the information is optional for applicants and is being
collected for reasons other than TEFAP eligibility.
3. Public Posting of Statewide TEFAP Eligibility Criteria (Sec.
251.5(b))
This final rule codifies the change at Sec. 251.5(b) as proposed
to require State agencies to post statewide eligibility criteria,
including requirements for demonstrating income and residency, to a
publicly available website. State agencies must implement this
provision no later than 12 months after the date of publication of the
final rule in the Federal Register.
Public Comments and USDA Response
The Department received 13 comments for this proposed change, 12 of
which were supportive and one which was mixed. Commenters included 3
food bank associations, 5 local agencies, and 5 advocacy groups.
Supportive commenters discussed how making this information
available online would make the program more transparent and accessible
to people seeking food assistance. One commenter expressed concern with
the administrative burden associated with posting the criteria, given
staffing shortages. The Department recognizes
[[Page 87237]]
this provision poses an administrative burden on State agencies;
however, FNS estimates the annual administrative burden as relatively
low. Once a State agency has posted their statewide eligibility
criteria to a publicly available website, State agencies only need to
make updates if their Statewide eligibility criteria changes. The
benefits of ensuring that eligible applicants are more easily able to
understand how they may receive TEFAP outweigh the minimal
administrative burden associated with this requirement.
V. Updated Reference for Farm to Food Bank Projects (Sec. 251.6)
This final rule codifies the change to Sec. 251.6 as proposed to
update the paragraphs cited for information that must be included in
TEFAP State Plans for Farm to Food Bank Projects to reflect the
reorganized section of regulations related to Farm to Food Bank
Projects at new Sec. 251.13. The Department did not receive any
comments on this proposed change.
VI. Updated Reference for TEFAP Reporting Requirements (Sec. 251.9)
This final rule codifies the technical edit to Sec. 251.6 as
proposed to update the paragraph cited for the FNS-667, Report of TEFAP
Administrative Costs. The Department did not receive any comments on
this proposed change.
VII. Establishing Confidentiality Protections for Applicant and
Participant Household Information and Participant Household Information
(Sec. 251.10(c))
This final rule codifies the changes to Sec. 251.10(c) as proposed
to require that TEFAP participant information must be kept confidential
and to create limits on the disclosure of information obtained from
applicants or participants and the identity of persons making a
complaint or allegation against persons participating in or
administering the program. Current regulations do not include
requirements for protecting the confidentiality of TEFAP applicant or
participant household information. This new provision ensures the
protection of information collected from households and aligns
recordkeeping and retention requirements with those of other food
assistance programs.
Public Comments and USDA Response
The Department received 29 comments on the proposed provision, 27
of which were supportive and 2 that were unsupportive. Supportive
commenters included: 2 State and 13 local agencies, 5 advocacy groups,
and 7 food bank associations. One State agency and 1 food bank
association were unsupportive of the provision.
Supportive commenters agreed that collecting names and addresses
from clients can pose risks to confidentiality and requires data
protection and stated that participants should not be vulnerable to
unlawful targeting or harassment throughout any process. Other
supportive comments cited that this provision would uphold privacy,
confidentiality, and dignity standards within the program and one
commenter urged USDA to prohibit the collection of unnecessary
personally identifying identification, such as social security numbers,
on the TEFAP eligibility form.
Some commenters expressed concern about whether the proposed
provision would allow for the use of electronic intake platforms. The
use of electronic systems in TEFAP, including electronic intake
platforms, will continue to be acceptable under the final provision, as
long as the systems are able to properly ensure the protection of
information collected from households and meet existing program
requirements and all relevant Federal or State requirements.
Other commenters expressed concern that the provision would not
allow volunteers to collect information. This provision is not intended
to stop the use of volunteers to collect program information. However,
volunteers should be made aware of the confidentiality rules in TEFAP
and keep information collected confidential. Commenters also questioned
whether the requirement would require each participant to sign a
separate sign-in sheet or intake form, which would be costly and time
consuming. Provided that confidentiality is maintained, a separate
sign-in sheets is not required for each participant. Finally, one
commenter was concerned the provision would negatively impact
categorical eligibility, and another was concerned the proposed
requirement would impact existing data sharing agreements and
questioned whether the proposed requirement would have a detrimental
impact on efforts to improve nutrition and hunger relief programming.
This provision does not impact categorical eligibility, as the
regulatory language at Sec. 251.10(c)(2) allows, with the consent of
the participant, State or local agencies to share information obtained
with other health or welfare programs for use in determining
eligibility for those programs, or for program outreach.
VIII. Nondiscrimination Statement Update (Sec. 251.14(b))
The Department proposed an update to the nondiscrimination
statement language at Sec. 251.10(c) and redesignating as Sec.
251.14(b) to state that TEFAP must be operated in accordance with the
most-up-to-date USDA nondiscrimination statement. Because the
nondiscrimination statement is applicable to multiple USDA programs,
the Department has reconsidered its approach. The Department will not
finalize the proposed provision in this rulemaking. The Department will
consider options to address this in future rulemaking. This rulemaking
moves the current nondiscrimination statement language from Sec.
251.10(c) to newly created Sec. 251.14(b), with confidentiality
protections codified at Sec. 251.10(c).
Public Comments and USDA Response
The Department received 4 comments from 2 State agencies and 2
advocacy groups, all of which were supportive of the proposed change.
The Department appreciates support for the proposed changes and will
consider this feedback in future rulemaking addressing the
nondiscrimination statement, with the goal of consistency across USDA
programs.
IX. Eligible Recipient Agency Reporting (Sec. 251.10(b)(3))
This final rule codifies the proposed provision at Sec.
251.10(b)(3) with modification to establish a new requirement for State
agencies to annually submit a list of all ERAs and statewide
eligibility criteria to FNS. The Department is revising the regulatory
language to retain the intent of this provision as proposed. The
proposed revision referenced the publicly available list of ERAs
described at Sec. 251.4(l). Since that provision is revised in this
final rule to only include ERAs with direct agreements with the State
agency, (see `Requirement for the Public Posting of Availability of
USDA Foods Through TEFAP'), the Department removes reference to the
publicly posted ERA list at Sec. 251.4(l) and instead modifies the
provision to require that State agencies must annually submit a list of
all ERAs and statewide eligibility criteria. This revision ensures this
report includes all ERAs, including those ERAs which distribute USDA
Foods to other ERAs, to eligible households for home consumption, or in
prepared meals.
This information is collected for program management purposes so
that FNS may understand both where TEFAP services are offered and the
national landscape of participating TEFAP ERAs. It is not intended to
be a `real-time' list for active participant referrals. The list
provided to FNS will include ERAs that have agreements with
[[Page 87238]]
a State agency and ERAs that have agreements with another ERA. The list
also includes ERAs that distribute USDA Foods for home consumption and
those that distribute USDA Foods in the form of prepared meals. This
will allow FNS to better understand areas where there may be gaps in
service, and work with States to eliminate these gaps. The Department
did not receive any specific comments on the above proposed change at
Sec. 251.10(b)(3).
X. Household Distribution Participation Reporting (Sec. 251.10(b)(4))
This final rule codifies the provision at Sec. 251.10(b)(4) with
modification to require State agencies to report the number of persons
(i.e., site visits) served by all TEFAP distribution sites providing
USDA Foods for home consumption per month. State agencies and ERAs will
only need to count the total number of individuals served in a month
and will not need to identify the number of unique households that are
served in a month. To the extent possible, State agencies and ERAs
should record the total number of persons in each household that is
served for each site visit, but the Department acknowledges accuracy of
these data will vary based on each agency's method of tracking
participants. This is a revision from the proposed provision which
would have required the State agency to report the total number of
persons in all households receiving USDA Foods for household
consumption per month. Consistent with the proposed rule, State
agencies will be required to provide this information on a quarterly
basis. FNS will align the timing of this report with other required
quarterly reporting, such as administrative funds usage, in order to
minimize reporting burden for State agencies.
Public Comments and USDA Response
The Department received 23 comments on the proposed provision, 14
of which were supportive and 9 which were not supportive. Supportive
commenters included: 1 State and 4 local agencies, 2 advocacy groups, 5
food bank associations, and 2 individuals. Non-supportive commenters
included: 6 State agencies, 2 local agencies, and 1 food bank
association. A commenter indicated that increased reporting on TEFAP
participation would enhance transparency in implementation and support
informed decisions about program improvements. Additionally, commenters
expressed support for the alignment of this report with other required
quarterly reporting, indicating that it will reduce the overall
reporting burden for State agencies.
Commenters expressed concern that the proposed method of tracking
could be complex because participants typically indicate the number of
household members on their application, and do not typically convey the
monthly number of individuals in their household each time they receive
food. Commenters discussed how this could result in inaccuracies as
individuals may move in and out of a household in each month, and that
tracking nonresponse forms would be time consuming. Other commenters
cited general administrative burden and more specifically, an increased
burden for those using manual data collection systems. Further concerns
were raised about the difficulty of ensuring unduplicated data when
comparing the number of visits to a distribution site versus the number
of individuals served.
The Department concurs with the commenters who expressed concern
with the potential difficulties of reporting an unduplicated record of
each household that visits a distribution site and other potential
inaccuracies with the data. The Department is revising this provision
in response to those comments to instead require that TEFAP State
agencies report the total number of individuals served by each TEFAP
distribution site per month, on a quarterly basis. This revision
addresses concerns on the additional administrative burden of providing
accurate and/or unduplicated data. For example, households that
participate more than once a month may be counted as a separate visit
each time they access a TEFAP distribution site. Distribution sites
only need to report the total number of persons they served at the end
of each month, without regard to how many unique households were
served. To the extent possible, State agencies and ERAs should record
the total number of individuals in each household who are served for
each site visit, but the Department acknowledges that the accuracy of
this data will vary based on each agency's method of tracking
participants.
The Department currently has little insight into the total number
of people served by TEFAP. This data will be used to help the
Department understand the current reach of the program and to better
understand and plan for future resource needs. The Department
recognizes there is administrative burden associated with collecting
this data and determined it is in the best interest of the program to
collect this data to support the current operation of TEFAP and plan
for the future of the program. The Department will provide additional
guidance on this provision as part of the implementation of this final
rule. In recognition of the burden this provision requires, State
agencies will have 12 months to implement this provision.
XI. Technical Corrections for Miscellaneous Provision (Sec. 251.10(d)
and (f))
This final rule codifies the technical corrections at Sec.
251.10(d) and (f) as proposed. The Department updates Sec. 251.10(d)
to correct an error in a reference to reporting requirements. The
Department updates paragraph (f) references to reflect redesignations
and newly created sections in the proposed rule, which are discussed
below. The Department is also clarifying the requirements for limits on
unrelated activities during the administration of TEFAP and potential
consequences for violation of these limits by more clearly stating
existing requirements.
Public Comments and USDA Response
The Department received 15 comments which were all supportive.
Commenters included 5 State and 5 local agencies, 2 food bank
associations, and 3 advocacy groups. The Department concurs with the
commenters.
XII. Redesignations for Miscellaneous Provisions (Sec. 251.10)
This final rule codifies the redesignation for miscellaneous
provisions at Sec. 251.10 as proposed. The Department is breaking the
current Sec. 251.10 Miscellaneous into five distinct sections: Sec.
251.10 Reports and recordkeeping, Sec. 251.11 State monitoring system,
Sec. 251.12 Limitation on unrelated activities, Sec. 251.13 Farm to
Food Bank projects, and Sec. 251.14 Miscellaneous to significantly
improve the readability of the regulation, with the intent of reducing
confusion on the part of State agencies. The Department did not receive
any specific comments on this provision.
XIII. New Sections Created for Clarity (Sec. Sec. 251.11, 251.12,
251.13, and 251.14)
This final rule codifies the creation of new sections for clarity
at Sec. Sec. 251.11, 251.12, 251.13, and 251.14 as proposed. Section
251.11 includes requirements for State agency monitoring systems, and
Sec. 251.12 explains limitations on unrelated activities at TEFAP
distributions. Farm to Food Bank Project regulations move into Sec.
251.13 so that State agencies can easily locate all requirements for
these projects. Finally, Sec. 251.14 includes miscellaneous
[[Page 87239]]
provisions that are not closely related to other provisions, such as
nondiscrimination and use of volunteer workers and non-USDA foods. The
Department did not receive any specific comments on the creation of new
sections for clarity.
D. Food Distribution Program on Indian Reservations
Final revisions to FDPIR regulations (7 CFR part 253) establish
further parity between FDPIR eligibility requirements and SNAP and
support program access. Among the final changes, the Department is
finalizing as proposed provisions to: clarify the household concept for
purposes of FDPIR eligibility for spouses living together and spouses
living apart in separate households; remove the urban place requirement
which limits the operation of FDPIR in approved near areas and/or
service areas that have a population of 10,000 people or more; update
the shelter/utility standard deduction to remove the Regional standard
deduction and set forth a revised approach pursuant to Tribal leader
and FDPIR program community feedback; and establish a limited
administrative waiver to be more consistent with SNAP waiver
authorities. As discussed in Procedural Matters: Executive Order 13175,
the Department consulted with Tribal leaders on a number of occasions
on the development of both the proposed and final rules. The Department
also commits to further consultation, including on implementation of
the below FDPIR provisions, as needed.
I. Technical Updates to the Entire Part 253
This final rule codifies technical updates to the entire 7 CFR part
253 as proposed. Technical corrections throughout 7 CFR part 253
replace instances of the outdated terms ``commodity'' and
``commodities'' with ``USDA Foods'' and the outdated term ``Food
Stamps'' with ``SNAP,'' the Supplemental Nutrition Assistance Program.
These updates align 7 CFR part 253 with other sections in this chapter.
The Department is also adding a technical edit to the definition of
State agency at Sec. 253.2. This technical change adds clarification
to the definition of State agency that State agencies are also referred
to as FDPIR administering agencies. This technical change supports
modernizing terminology and recognizes that FDPIR administering
agencies are primarily ITOs, with 107 ITOs and only 3 State agencies
administering the program in 2024. Additional technical corrections are
noted, as applicable, in section discussions below.
Public Comments and USDA Response
The Department received 7 comments that were all supportive of the
proposed changes. Commenters included: 2 ITOs and 5 advocacy groups.
One comment noted how replacing commodities with USDA Foods will
improve clarity and consistency across food distribution programs. The
Department concurs with the commenters.
II. Removal of Urban Place Definition (Sec. Sec. 253.2 and 253.4)
This final rule codifies the removal of references to urban places
and the associated requirement that an FDPIR Indian Tribal Organization
(ITO) or State agency must provide a justification to FNS to serve
urban places off the reservation at Sec. Sec. 253.2 and 253.4 as
proposed. Prior to this rule change, per Sec. 253.2, an urban place
was defined as a city or town with a population of 10,000 or more.
Further, per Sec. 253.4(d), any urban place outside of the reservation
boundaries could not be served unless an ITO or State agency requested
to serve the urban place with a justification for FNS review and
approval. Conforming revisions are also made to 7 CFR part 254,
Administration of the Food Distribution Program for Indian Households
in Oklahoma.
Additionally, the Department is changing the term ``contract'' in
Sec. 253.4(b)(3) to ``delegate'' in order to improve the clarity of
the section and to be consistent with language used in 7 CFR parts 247,
250, and 251.
Public Comments and USDA Response
The Department received 16 comments about this provision, all of
which were supportive. Commenters included: 2 ITOs, 10 advocacy groups,
and 4 local agencies. Eleven comments specifically requested language
ensuring that serving an urban population remains optional. The
Department affirms that with the removal of the urban place language,
FDPIR administering agencies maintain the choice of serving an urban
population.
III. Periodically Assessing the FDPIR Food Package (Sec. 253.3)
In Sec. 253.3, this final rule codifies as proposed the provision
which requires FNS to periodically assess how USDA Foods provided in
FDPIR compare to the Dietary Guidelines for Americans (DGAs) and the
market baskets of the Thrifty Food Plan (TFP) and, to the extent
practicable, adjust the FDPIR food package benefit as needed to ensure
the FDPIR food package continues to be consistent with these
assessments of basic dietary needs. The provision prohibits the FDPIR
food package benefit from being reduced as a result of the analysis.
Additionally, this final rule codifies as proposed the provisions
at Sec. 253.3(a)(2) to clarify in plain language that FDPIR households
can receive FDPIR USDA Foods as well as USDA Foods from other programs
in the same month, in accordance with the requirements of 7 CFR part
250 and with other Federal regulations applicable to specific USDA
Foods programs.
This final rule also codifies a technical correction that removes
the list of food groups in the FDPIR food package from Sec. 253.3(d)
as proposed.
Public Comments and USDA Response
The Department received 11 comments about this provision, all of
which were supportive. Comments were submitted by 2 ITOs, 7 advocacy
groups, and 2 local agencies. Commenters encouraged FNS to allow food
package reviews on an as-needed basis without limitations on frequency.
Comments also requested a requirement that any change in SNAP benefits
would trigger an immediate FDPIR food package review. Commenters
mentioned that changes to the FDPIR food package made during the
pandemic were not commensurate with changes made to SNAP benefit
levels.
FNS will continue to work with the program community, including
Tribal partners, to routinely review the FDPIR food package and, to the
extent practicable, offer USDA Foods that reflect preferences of
eligible households. In addition, FNS will assess consistency between
the amounts of food provided in FDPIR and SNAP at a frequency that
aligns with the reevaluation of the TFP market basket and is
practically feasible. While both SNAP and FDPIR benefit amounts are
determined in part by TFP market basket amounts, SNAP provides
participants with an electronic benefit to purchase eligible foods and
FDPIR provides participants with a tangible food package benefit. This
means that SNAP benefit levels must be adjusted annually for inflation
to ensure that participants can purchase the same amount of food year-
to-year, while FDPIR participants receive the same amount of food each
year regardless of inflation. When inflation affects food prices, the
increased cost of the FDPIR food package is absorbed by USDA and does
not impact participants in the same way as it does in SNAP. To support
transparency, FNS will communicate
[[Page 87240]]
when assessments will occur to program stakeholders with the frequency
of such evaluations informed by publication of the most current DGAs
and reevaluations of the TFP market baskets.
IV. Nondiscrimination Statement Update (Sec. 253.5)
The Department proposed an update to the nondiscrimination
statement language at Sec. 253.5 to state that FDPIR must be operated
in accordance with the most up-to-date USDA nondiscrimination
statement. Because the nondiscrimination statement is applicable to
multiple USDA programs, the Department has reconsidered its approach.
The Department will not finalize the proposed provision in this
rulemaking. The Department will consider options to address this in
future rulemaking.
Public Comments and USDA Response
The Department received 4 comments on this provision, all of which
were supportive. Comments included: 3 advocacy groups and 1 individual.
One commenter specifically requested that FNS ensure sexual orientation
and gender identity are protected classes in program implementation.
The Department appreciates input on the proposed changes and will
consider this feedback in future rulemaking addressing the
nondiscrimination statement, with the goal of consistency across USDA
programs.
V. Updates to FDPIR Eligibility Provisions (Sec. 253.6)
This final rule codifies several changes to FDPIR eligibility
provisions as proposed at Sec. 253.6 to increase access to the program
and to improve consistency between FDPIR and SNAP requirements.
1. Separate Household Status for Spouses Not Living Together (Sec.
253.6(a)(1))
This final rule codifies the removal of the regulatory prohibition
at Sec. 253.6(a)(1) on granting separate household status to spouses
living apart as proposed. For additional clarity, this final rule also
adds a new paragraph Sec. 253.6(a)(1)(iv) stating that spouses living
separately and apart are considered separate households. Prior to this
change, separate household status could not be granted to spouses
living apart. The final provision establishes parity between FDPIR and
SNAP regarding the treatment of household composition for spouses.
Public Comments and USDA Response
The Department received 12 comments about this provision, all of
which were supportive. Comments included: 2 ITOs, 6 advocacy groups,
and 2 local agencies. Comments described increased flexibility and
maintaining parity with SNAP as positive factors for this provision.
The Department concurs with the commenters.
2. Minor Children Living Apart From Parents and Household Status (Sec.
253.6(a)(4))
This final rule codifies a new section at Sec. 253.6(a)(4) as
proposed to clarify that a child is considered under parental control
if they are financially or otherwise dependent on a member of that
household. This change improves consistency between FDPIR and SNAP
requirements to ensure that both programs only certify a child if the
adult household member has ``parental'' control over the child. For
example, if a child is living with their grandparents, the child is not
considered a part of their parents' household when determining
eligibility. Previous FDPIR regulations at Sec. 253.6(a)(1) included
language that children under the age of 18 under the parental control
of a member of the household cannot receive separate household status,
which is now allowed through this rulemaking.
Public Comments and USDA Response
The Department received 8 comments about this provision, all of
which were supportive. Comments included: 2 ITOs, 4 advocacy groups,
and 2 food bank associations. Comments supported increased flexibility
and parity with SNAP for this provision. The Department concurs with
the commenters.
3. Removal of California SSI Cash-Out Reference (Sec. 253.6(a)(2)(ii))
This final rule codifies the removal of reference to Supplemental
Security Income (SSI) cash-out at Sec. 253.6(a)(2)(ii) when
determining household eligibility as proposed, as this provision is no
longer applicable. The Department did not receive any comments on this
proposed change.
4. Revisions to Shelter/Utility Deductions (Sec. 253.6(e)(5))
This final rule codifies the change to Sec. 253.6(e)(5) as
proposed to update the existing FDPIR standard shelter/utility
deduction to allow a household to choose either a standard deduction
amount or actual shelter/utility expenses when determining income
eligibility for FDPIR. Consistent with the proposed rule provision, FNS
will both simplify the standard deduction and increase it by using the
level of the SNAP maximum shelter deduction instead of the prior
Regional standard deductions. The FDPIR base income eligibility
thresholds are set annually using 100 percent of the U.S. Federal
Poverty Guidelines published by the U.S. Department of Health and Human
Services (HHS) and increased by the SNAP standard deduction by
household size. FDPIR regulations at Sec. 253.6(e) provide for income
deductions, including the shelter/utility deduction, in recognition of
expenses which impact the amount of household income available for food
purchases. The new standard deduction for the applicable area (e.g.,
contiguous U.S., Alaska) will be consistent with SNAP maximum monthly
excess shelter expense deduction limits outlined at Sec.
273.9(d)(6)(ii). If a household chooses to claim actual expenses, then
the household may claim up to 50 percent of their monthly net income
and must provide verification of expenses. See VI. Verification
Procedures (Sec. 253.7), where the Department finalizes verification
requirements for applicants and participants seeking to provide actual
shelter and utility expenses.
Under the revised standard deduction method, when the SNAP excess
shelter deduction is updated annually for the next fiscal year (FY), as
per Sec. 273.9(d)(6)(ii), the maximum monthly excess shelter deduction
limit established for the area is used as the FDPIR shelter/utility
standard deduction amount. For example, in FY 2024, the SNAP maximum
shelter deduction amount for the 48 contiguous States and the District
of Columbia was $672 and Alaska was $1,073. Under this finalized
provision, these amounts are used for the standard deduction for
households that elect to use this amount; or the household could choose
to provide actual expenses up to 50 percent of net income. The shelter/
utility standard deduction amounts will be updated annually by October
1. For FY 2025, the Department will issue shelter/utility deduction
standard amounts following publication of this final rule and prior to
the effective date of 60 days after publication of this final rule. In
future years, on October 1, the shelter/utility standard deduction will
be updated and effective immediately.
In addition to these changes, the Department also finalizes the
technical change at Sec. 253.6(e)(1) to indicate that under the earned
income deduction, twenty percent should be deducted from ``gross earned
income,'' instead of the
[[Page 87241]]
previous ``earned income,'' which increases clarity in this section.
Public Comments and USDA Response
The Department received 15 comments on this provision, all of which
were supportive. Comments included: 3 ITOs, 7 advocacy groups, and 5
food bank associations. Commenters highlighted the previous shelter and
utility deduction process sometimes failed to consider the unique
conditions in Indian country. Commenters also noted the proposed
changes would increase FDPIR access and acknowledge the varying
circumstances in Tribal communities. The Department concurs with
commenters; these changes to the shelter/utility deductions help ensure
access to households who may be food insecure due to high costs of
shelter and utility expenses.
5. Request for Public Comments: FDPIR Income Standards (Sec. 253.6(d))
As provided in the discussion of 4. Revisions to Shelter/Utility
Deductions (Sec. 253.6(e)(5)) above, the FDPIR base income eligibility
thresholds are set annually using 100 percent of the U.S. Federal
Poverty Guidelines published by HHS and increased by the SNAP standard
deduction by household size. The Department solicited comments
regarding whether further changes should be made to FDPIR income
eligibility standards to increase program access and parity with SNAP.
The Department sought feedback from FDPIR ITOs and State agencies to
inform potential future proposals on alternative eligibility thresholds
for FDPIR, including feedback on the following questions:
1. Are there data sources in addition to HHS data that the
Department should consider when determining income eligibility
standards for FDPIR?
2. Should the Department consider use of a gross income eligibility
requirement for FDPIR e.g., 185 percent of the U.S. Federal Poverty
Guidelines published annually by HHS, without application of any income
deductions?
Public Comments and USDA Response
The Department received 9 comments related to this request for
comment. Comments included: 2 ITOs, 6 advocacy groups, and 1 local
agency. Six commenters stated that national and regional standards do
not always accurately reflect the situations of those living in Indian
country and requested that FNS simplify the process by providing for an
alternate calculation for determining eligibility. These commenters
requested FNS allow applicants the choice of qualifying under either
increased gross income guidelines without deductions, or current
guidelines with the proposed, and now finalized, increased shelter and
utility cost deduction. Another commenter expressed that using gross
income eligibility without deductions would simplify the process for
many ITOs by minimizing the burden for administrative staff.
The Department appreciates the feedback received in response to
this request for comment and will consider these comments for potential
future rulemaking.
VI. Verification Procedures (Sec. 253.7)
This final rule codifies a technical update to the verification
requirements for the shelter/utility deduction as proposed to provide
verification for all expenses if actuals are used. The Department also
finalizes a technical update to the threshold for which an ITO or State
agency must verify a change in income from $50 to $100 at the time of
recertification.
Public Comments and USDA Response
The Department received 1 comment from an advocacy group on this
provision, which was supportive of the increased threshold. The
Department concurs with the commenter.
VII. USDA Foods Inventory Management (Sec. 253.10)
This final rule codifies technical updates to Sec. 253.10 as
proposed to make this section consistent with the 2016 Final Rule,
Requirements for the Distribution and Control of Donated Foods--The
Emergency Food Assistance Program: Implementation of the Agricultural
Act of 2014.\1\ The Department also finalizes the removal of current
FDPIR regulatory requirements at Sec. 253.10(c)(1) through (6) and
replacing them with a reference to follow storage and inventory
management regulations listed at Sec. Sec. 250.12 and 250.14.
Additionally, the Department finalizes the proposed changes to move
regulations at Sec. 253.10(c)(7) through (17) to (d), as these
regulations are applicable to distribution procedures and moving them
improves readability and clarity. The Department did not receive any
comments on this provision.
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\1\ USDA Food and Nutrition Service, Final Rule: Requirements
for the Distribution and Control of Donated Foods--The Emergency
Food Assistance Program: Implementation of the Agricultural Act of
2014 (81 FR 23085). Accessed 23 January 2023. Available at internet
site: <a href="https://www.federalregister.gov/documents/2016/04/19/2016-08639/requirements-for-the-distribution-and-control-of-donated-foods-the-emergency-food-assistance-program">https://www.federalregister.gov/documents/2016/04/19/2016-08639/requirements-for-the-distribution-and-control-of-donated-foods-the-emergency-food-assistance-program</a>.
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VIII. Soliciting Tribal Stakeholder Feedback on the FDPIR
Administrative Funding Methodology
The Department solicited comments on the method used to allocate
administrative funding to FDPIR administering agencies, which include
ITOs and State agencies that have an agreement with FNS to administer
FDPIR. This solicitation of comments was intended to gather FDPIR
administering agency feedback on the existing administrative funding
methodology, including the budget negotiation process, to frame any
necessary future discussions and changes to the methodology.
The Department specifically requested comments from FDPIR
administering agencies on the following questions:
1. With the advent of two-year FDPIR administrative funding, and
given the increase in funding in recent years, does the current
methodology provide your organization with adequate funding to meet its
administrative needs?
2. Are there aspects of the current funding methodology that could
be improved, and if so, how?
3. Specifically, please provide comment on the effectiveness of the
current regional allocation and budget negotiation process and if
modifications or another model could better serve Indian Tribal
Organization needs.
Public Comments and USDA Response
The Department received 8 comments applicable to this request for
comment. Commenters included: 2 ITOs and 6 advocacy groups. Some
commenters felt the current funding structure is adequate, while others
suggested improvements are needed. Commenters also suggested that
regional allocations and budget negotiations do not fully capture the
challenges ITOs face. Because ITOs have different needs, commenters
suggested increased flexibility in use of funds. Allowable uses of
appropriated funds may include salaries and benefits for FDPIR
personnel, materials and supplies, equipment, and meetings and
conferences. FNS allocates funding according to the requests it
receives from ITOs each fiscal year.
Commenters also requested increased Tribal inclusion in the USDA
annual budget process, with commenters suggesting a process similar to
the approach(es) at other Federal agencies.
The Department appreciates the varied feedback from commenters on
this request for comment and will use
[[Page 87242]]
this feedback to inform any future discussions on FDPIR administrative
funding.
IX. Establishment of Administrative Waiver Authority in FDPIR (Sec.
253.12)
This final rule codifies a new section at Sec. 253.12 as proposed
with technical modifications that provides authority for USDA FNS to
waive or modify specific administrative requirements contained in the
regulations under similar situations and processes and for similar
amounts of time as SNAP regulations at Sec. 272.3(c). Under this
provision, ITOs and State agencies can request waivers of specific
regulatory requirements. A technical correction was made to the text of
Sec. 253.12(a), which simplifies the language to be more in line with
current SNAP waiver language without impacting the effect of the
provision. The process requires ITOs and State agencies to provide
compelling justification for each waiver request submitted. FNS may
approve waivers only in the following circumstances: (1) the specific
regulatory provision cannot be implemented due to extraordinary
temporary situations, (2) FNS determines that the waiver would result
in a more effective and efficient administration of the program, or (3)
unique geographic conditions within the geographic area served by the
administering agency preclude effective implementation of the specific
regulatory provision and require an alternative procedure. FNS will not
issue any waivers in situations where the waivers are inconsistent with
provisions of the Food and Nutrition Act of 2008, as amended (Pub. L.
95-113). This provision is intended to mirror SNAP waiver requirements,
thus increasing parity between the two programs, but the provision is
separate and distinct from SNAP waiver authority. The Department
recognizes that immediate implementation of this provision may benefit
FDPIR ITOs and State agencies. Because this provision recognizes an
exemption, the Department is using the authority at 5 U.S.C. 553(d)(1)
to make this provision effective immediately upon the date of
publication of this final rule.
Public Comments and USDA Response
The Department received 10 comments regarding this provision, all
of which were generally supportive but also outlined specific requests
or concerns about the provision. Commenters included 2 ITOs and 8
advocacy groups. Five commenters requested more specific language or
examples regarding the need to provide a compelling justification for a
waiver, and specific language or examples of what documentation may be
needed to demonstrate a compelling justification. FNS will provide
written guidance on implementation of this provision including examples
of compelling justifications for requesting a waiver in addition to
example documentation and/or templates/formats for FDPIR ITOs and State
agencies to use. To support simplicity in the administrative waiver
process, FNS may also issue nationwide waivers if determined to be
necessary and applicable to all FDPIR ITOs and State agencies, further
reducing burden.
Multiple commenters also requested that FNS use the waiver
authority in Executive Order 13175 to provide additional flexibility to
the provision and to better reflect Tribal sovereignty. FNS notes the
waiver authority referenced in Executive Order 13175 only applies to
statutory or regulatory requirements that are discretionary and subject
to waiver by the agency. FNS currently does not have any statutory or
regulatory requirements for FDPIR that are discretionary in nature and
subject to waiver. However, FNS believes this provision, as proposed,
supports Executive Order 13175 by streamlining the process for FDPIR
ITOs and State agencies to apply for waivers of specific regulatory
requirements and further supports the comments received of providing
additional flexibility to better reflect Tribal sovereignty.
The Department has simplified the language of the provision to be
more in line with current SNAP waiver language, but the effect of the
provision has not changed from what was proposed. While this provision
will be effective upon publication of the final rule, the Department
commits to further consultation on the implementation of this
provision, including the waiver submission process, as needed.
E. Administration of the Food Distribution Program for Indian
Households in Oklahoma (7 CFR Part 254)
Circumstances unique to distributing FDPIR to households residing
in FNS services areas in Oklahoma are addressed in 7 CFR part 254. This
final rule codifies changes to 7 CFR part 254 to align with updates
made to 7 CFR part 253 as proposed. The technical updates to 7 CFR part
254 include replacing the outdated term ``commodities'' with ``USDA
Foods'' to further align the program with the definition of ``USDA
Foods'' in 7 CFR part 250. In accordance with the finalized changes in
d. Food Distribution on Indian Reservations, ii. Removal of Urban Place
Definition (Sec. Sec. 253.2 and 253.5), the Department is removing the
references to the urban place definition and related terminology and
the requirement to provide justification to FNS.
The Department did not receive any comments specific to changes
made in 7 CFR part 254.
Section 2. Implementation
The Department initially proposed that State agencies, ITOs, and
other affected parties must implement the provisions of the proposed
rule no later than 60 days after the date of publication of the final
rule in the Federal Register. The Department sought comments on the
type and scope of administrative burden that may be associated with
implementing the provisions in this proposed rule in this manner.
Commenters generally highlighted time, limited resources, and
systems changes needed to successfully implement some of the provisions
in this final rule. After evaluating comments, the Department is
providing a 60-day implementation timeline for all provisions, with the
exception of the following:
1. Two provisions will be effective immediately upon publication of
the final rule:
a. Under 5 U.S.C. 553(d)(1), because this provision recognizes an
exemption, the Department is making the Establishment of Administrative
Waiver Authority in FDPIR (7 CFR 253.12) effective immediately upon the
date of publication of this final rule.
b. Under 5 U.S.C. 553(d)(1), because this provision relieves a
restriction, the Department is making the Removal of Prohibition on
Simultaneous Provision of USDA [Donated] Foods and D-SNAP during a
Disaster (Sec. Sec. 250.69(c)(2) and 250.70(d)) effective immediately
upon the date of publication of this final rule.
2. The Department is establishing a 12-month implementation period
for the following six provisions:
a. CSFP State Plan Requirement (Sec. Sec. 247.6(a) and
247.5(b)(17));
b. CSFP Public Posting of the Availability of USDA Foods (Sec.
247.5(b)(16);
c. CSFP Referral Materials for the Senior Farmers' Market Nutrition
Program (Sec. 247.14(a)(4));
d. TEFAP Requirement for the Public Posting of Availability of USDA
Foods Through TEFAP (Sec. 251.4(l));
e. TEFAP Household Distribution Participation Reporting (Sec.
251.10(b)(4)); and
[[Page 87243]]
f. TEFAP Public Posting of Statewide TEFAP Eligibility Criteria
(Sec. 251.5(b)).
State agencies are allowed and encouraged to implement these
provisions prior to the 12-month deadline. For more information on each
of these provisions, please refer to section 1. Background and
Discussion of the Final Rule.
Severability: If any provision of such section promulgated through
this final rule, ``Food Distribution Programs: Improving Access and
Parity'' (FNS-2024-00XX; RIN 054-AE92), is held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstances, it shall be severable and not affect the remainder
thereof.
Section 3. Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
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
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule would not have a significant impact on a
substantial number of small entities.
While there may be some burden/impact on some small eligible
recipient agencies in TEFAP because of the proposed requirement to
report participation in TEFAP, the impact is not significant because
these entities are already collecting this information as a part of
their normal program operations under existing regulatory requirements.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a `major rule, as defined by 5 U.S.C. 804(2).
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 $146 million
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9
at <a href="http://www.bea.gov/iTable">http://www.bea.gov/iTable</a> 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 does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
tribal governments or the private sector of $146 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
Program names are listed in the Catalog of Federal Domestic
Assistance under Numbers 10.565 (CSFP), 10.569 (TEFAP), 10.568 (TEFAP
Administrative Costs), 10.567 (FDPIR), and are subject to Executive
Order 12372, which requires intergovernmental consultation with State
and local officials. (See 2 CFR chapter IV.)
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.
The Department has determined that this rule does not have
Federalism implications. This rule does not impose substantial or
direct compliance costs on State and local governments. Therefore,
under Section 6(b) of the Executive Order, a Federalism summary impact
statement is not required.
Executive Order 12988, Civil Justice Reform
This final 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 which
conflict with its provisions or which would otherwise impede its full
and timely implementation. This rule is not intended to have
retroactive effect unless so specified in the Effective Dates section
of the final rule. Prior to any judicial challenge to the provisions of
the final rule, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed the final rule, in accordance with the Department
Regulation 4300-004 ``Civil Rights Impact Analysis,'' to identify and
address any major civil rights impacts the final rule might have on
participants on the basis of race, sex (including gender identity and
sexual orientation), national origin, disability, or age. The
requirements outlined in the final rule aim to remove barriers to
access and improve parity across programs. The final rule would impact
State agencies, ITOs, local agencies, and food banks in ways that are
expected to increase equity and access for participants.
To mitigate potential impacts on program access, FNS will provide
State agencies with technical assistance aimed at ensuring that
communication about program changes is available in appropriate
languages and in alternative formats for persons with disabilities.
After reviewing the potential impacts, FNS does not believe the final
rule would result in civil rights impacts on protected groups of
participants and applicants. However, the FNS Civil Rights Division
will propose further outreach and mitigation strategies to alleviate
any unforeseen impacts, if deemed necessary.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship
[[Page 87244]]
between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes.
On November 8, 2022, December 6 and 13, 2022, February 22, 2023,
and June 27, 2023, FNS provided the opportunity for Tribal consultation
on the proposed rule and received substantive feedback from several
Tribal leaders which were taken into consideration during the
development of the proposed rule. FNS also consulted with Tribal
leaders on the implementation of the final rule on February 16, 2024.
Notes from these consultations are available at <a href="https://www.usda.gov/tribalrelations/tribal-consultations">https://www.usda.gov/tribalrelations/tribal-consultations</a>.
If a Tribe requests additional consultation in the future, FNS will
work with the USDA Office of Tribal Relations to ensure meaningful
consultation is provided. We are unaware of current Tribal laws that
could be in conflict with this rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR
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.
The information collection and recordkeeping requirements included
in this final rule have been submitted by the Agency to OMB for
approval which is currently pending. FNS will not collect any
information associated with this rule until the information collections
are approved by OMB.
E-Government Act Compliance
The Department 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.
List of Subjects
7 CFR Part 247
Aged, Agricultural commodities, Food assistance programs, Public
assistance programs.
7 CFR Part 250
Administrative practice and procedure, Aged, Disaster assistance,
Food assistance programs, Grant programs--social programs, Indians,
Infants and children, Reporting and recordkeeping requirements, Surplus
agricultural commodities.
7 CFR Part 251
Food assistance programs, Grant programs--social programs,
Reporting and recordkeeping requirements, Surplus agricultural
commodities.
7 CFR Part 253
Administrative practice and procedure, Agricultural commodities,
Food assistance programs, Grant programs--social programs, Indians,
Reporting and recordkeeping requirements, Surplus agricultural
commodities.
7 CFR Part 254
Food assistance programs, Grant programs--social programs, Indians,
Reporting and recordkeeping requirements, Surplus agricultural
commodities.
Accordingly, 7 CFR parts 247, 250, 251, 253, and 254 are amended as
follows:
PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM
0
1. The authority citation for part 247 continues 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. Amend Sec. 247.1 by:
0
a. Removing the definitions of ``Commodities'' and ``Elderly persons'';
0
b. Revising the definitions of ``Proxy'' and ``Subdistributing
agency''; and
0
c. Adding in alphabetical order a definition for ``USDA Foods''.
The revisions and addition read as follows:
Sec. 247.1 Definitions.
* * * * *
Proxy means any person designated by a participant or caretaker to
obtain USDA Foods on behalf of the participant.
* * * * *
Subdistributing agency means an agency or organization that has
entered into an agreement with the State agency to perform functions
normally performed by the State, such as entering into agreements with
eligible recipient agencies under which USDA Foods are made available,
ordering USDA Foods and/or making arrangements for the storage and
delivery of such USDA Foods on behalf of eligible recipient agencies.
USDA Foods means nutritious foods purchased by USDA to supplement
the diets of CSFP participants, also referred to as donated foods.
* * * * *
Sec. 247.2 [Amended]
0
3. In Sec. 247.2 amend paragraph (a):
0
a. In the first sentence, by removing the term ``commodities'' and
adding in its place the term ``USDA Foods'';
0
b. In the first sentence, by removing the term ``elderly persons'' and
adding in its place the term ``participants''; and
0
c. Removing the second sentence.
Sec. 247.3 [Amended]
0
4. Amend Sec. 247.3 in the first and fifth sentences of paragraph (a)
by removing the term ``commodities'' and adding in its place the term
``USDA Foods''.
Sec. 247.4 [Amended]
0
5. Amend Sec. 247.4 by removing the term ``commodities'' wherever it
appears in paragraphs (a)(1) through (3), (b)(3), and (c)(3) and adding
in its place the term ``USDA Foods''.
0
6. Amend Sec. 247.5 by:
0
a. Revising paragraphs (a)(2) through (4) and (b)(14) and (15);
0
b. Adding paragraphs (b)(16) and (17); and
0
c. Revising paragraph (c)(7).
The revisions and additions read as follows:
Sec. 247.5 State and local agency responsibilities.
* * * * *
(a) * * *
(2) Ordering USDA Foods for distribution;
(3) Storing and distributing USDA Foods;
(4) Establishing procedures for resolving complaints about USDA
Foods;
* * * * *
(b) * * *
(14) Providing guidance to local agencies, as needed;
(15) Ensuring that program participation does not exceed the State
agency's caseload allocation on an average monthly basis; and
(16) Making publicly available a list of all CSFP local agencies on
a publicly available internet web page. The State agency must post the
name, address,
[[Page 87245]]
and telephone number for each local agency. The list must be updated,
at a minimum, on an annual basis.
(17) Posting the State Plan that is currently in use on a publicly
available internet web page.
(c) * * *
(7) Meeting the special needs of homebound participants, to the
extent possible; and
* * * * *
0
7. Amend Sec. 247.6 by revising the last sentence of paragraph (a),
revising paragraphs (c)(5) and (6) and (10) through (12), and adding
paragraph (c)(13) to read as follows:
Sec. 247.6 State Plan.
(a) * * * A copy of the State Plan must be kept on file at the
State agency and must also be posted on a publicly available internet
web page for public inspection.
* * * * *
(c) * * *
(5) A description of plans for conducting outreach to participants;
(6) A description of the system for storing and distributing USDA
Foods;
* * * * *
(10) A description of the means by which the State will meet the
needs of homebound participants;
(11) Copies of all agreements entered into by the State agency;
(12) The length of the State agency's certification period; and
(13) A description of the process in place to verify the identity
of participants before receipt of USDA Foods.
* * * * *
0
8. Amend Sec. 247.9 by revising paragraphs (b), (c), (d)(2)
introductory text, and (d)(3) to read as follows:
Sec. 247.9 Eligibility requirements.
* * * * *
(b) What are the income eligibility requirements for CSFP
applicants? The State agency must use a household income limit at or
below 150 percent of the U.S. Federal Poverty Guidelines published
annually by the U.S. Department of Health and Human Services (HHS).
Participants in households with income at or below this level must be
considered eligible for CSFP benefits (assuming they meet other
requirements contained in this part). However, participants certified
before September 17, 1986 (i.e., under the three elderly pilot
projects) must remain subject to the eligibility criteria in effect at
the time of their certification.
(1) The State agency may accept as income-eligible for CSFP
benefits any applicant that documents that they are certified as fully
eligible for the following Federal programs: the Supplemental Nutrition
Assistance Program, the Food Distribution Program on Indian
Reservations, Supplemental Security Income (SSI), the Low Income
Subsidy Program, and the Medicare Savings Programs.
(2) The State agency may accept, as evidence of income within the
State agency's CSFP guidelines, documentation of the applicant's
participation in State-administered programs not specified in this
paragraph that routinely require documentation of income, provided that
those programs have income eligibility guidelines at or below the State
agency's CSFP threshold.
(3) Applicants who are adjunctively income eligible, as set forth
in paragraphs (b)(1) and (2) of this section, shall not be subject to
the income limits established under paragraph (b) of this section.
(c) When must the State agency revise the CSFP income guidelines to
reflect the annual adjustments of the U.S. Federal Poverty Guidelines?
Each year, FNS will notify State agencies, by memorandum, of adjusted
income guidelines by household size at 150 percent and 100 percent of
the U.S. Federal Poverty Guidelines published annually by HHS. The
memorandum will reflect the annual adjustments to the U.S. Federal
Poverty Guidelines issued by HHS. The State agency must implement the
adjusted guidelines immediately upon receipt of the memorandum.
(d) * * *
(2) The State agency may exclude from consideration the following
sources of income:
* * * * *
(3) The State agency must exclude from consideration all income
sources excluded by legislation. FNS will notify State agencies of
forms of income excluded by statute through program policy memoranda.
The income sources which must be excluded from consideration as income
include, but are not limited to:
(i) Reimbursements from the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (Pub. L. 91-646, sec. 216, 42
U.S.C. 4636);
(ii) Any payment to volunteers under Title I (VISTA and others) and
Title II (RSVP, foster grandparents, and others) of the Domestic
Volunteer Service Act of 1973 (Pub. L. 93-113, sec. 404(g), 42 U.S.C.
5044(g)) to the extent excluded by that Act;
(iii) Payment to volunteers under section 8(b)(1)(B) of the Small
Business Act (SCORE and ACE) (Pub. L. 95-510, sec. 101, 15 U.S.C.
637(b)(1)(D));
(iv) Income derived from certain submarginal land of the United
States which is held in trust for certain Indian Tribes (Pub. L. 94-
114, sec. 6, 25 U.S.C. 459e);
(v) Payments received under the Job Training Partnership Act (Pub.
L. 97-300, sec. 142(b), 29 U.S.C. 1552(b));
(vi) Income derived from the disposition of funds to the Grand
River Band of Ottawa Indians (Pub. L. 94-540, sec. 6);
(vii) Payments received under the Alaska Native Claims Settlement
Act (Pub. L. 100-241, sec. 15, 43 U.S.C. 1626(c));
(viii) The value of assistance to children or their families under
the National School Lunch Act, as amended (Pub. L. 94-105, sec. 9(d),
42 U.S.C. 1760(e)), the Child Nutrition Act of 1966 (Pub. L. 89-642,
sec. 11(b), 42 U.S.C. 1780(b)), and the Food and Nutrition Act of 2008
(Pub. L. 95-113, sec. 1301, 7 U.S.C. 2017(b));
(ix) Payments by the Indian Claims Commission to the Confederated
Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the
Mescalero Reservation (Pub. L. 95-433, sec. 2, 25 U.S.C. 609c-1);
(x) Payments to the Passamaquoddy Tribe and the Penobscot Nation or
any of their members received pursuant to the Maine Indian Claims
Settlement Act of 1980 (Pub. L. 96-420, sec. 6, 9(c), 25 U.S.C.
1725(i), 1728(c));
(xi) Payments under the Low-income Home Energy Assistance Act, as
amended (Pub. L. 99-125, sec. 504(c), 42 U.S.C. 8624(f));
(xii) Student financial assistance received from any program funded
in whole or part under Title IV of the Higher Education Act of 1965,
including the Pell Grant, Supplemental Educational Opportunity Grant,
State Student Incentive Grants, National Direct Student Loan, PLUS,
College Work Study, and Byrd Honor Scholarship programs, which is used
for costs described in section 472(1) and (2) of that Act (Pub. L. 99-
498, section 479B, 20 U.S.C. 1087uu). The specified costs set forth in
section 472(1) and (2) of the Higher Education Act are tuition and fees
normally assessed a student carrying the same academic workload as
determined by the institution, and including the costs for rental or
purchase of any equipment, materials, or supplies required of all
students in the same course of study; and an allowance for books,
supplies, transportation, and miscellaneous personal expenses for a
student attending the institution on at least a
[[Page 87246]]
half-time basis, as determined by the institution. The specified costs
set forth in section 472(1) and (2) of the Act are those costs which
are related to the costs of attendance at the educational institution
and do not include room and board and dependent care expenses;
(xiii) Payments under the Disaster Relief Act of 1974, as amended
by the Disaster Relief and Emergency Assistance Amendments of 1989
(Pub. L. 100-707, sec. 105(i), 42 U.S.C. 5155(d));
(xiv) Effective July 1, 1991, payments received under the Carl D.
Perkins Vocational Education Act, as amended by the Carl D. Perkins
Vocational and Applied Technology Education Act Amendments of 1990
(Pub. L. 101-392, sec. 501, 20 U.S.C. 2466d);
(xv) Payments pursuant to the Agent Orange Compensation Exclusion
Act (Pub. L. 101-201, sec. 1);
(xvi) Payments received for Wartime Relocation of Civilians under
the Civil Liberties Act of 1988 (Pub. L. 100-383, sec. 105(f)(2), 50
App. U.S.C. 1989b-4(f)(2));
(xvii) Value of any child care payments made under section
402(g)(1)(E) of the Social Security Act, as amended by the Family
Support Act (Pub. L. 100-485, sec. 301, 42 U.S.C. 602 (g)(1)(E));
(xviii) Value of any ``at-risk'' block grant child care payments
made under section 5081 of Pub. L. 101-508, which amended section
402(i) of the Social Security Act;
(xix) Value of any child care provided or paid for under the Child
Care and Development Block Grant Act, as amended (Pub. L. 102-586, Sec.
8(b)), 42 U.S.C. 9858q);
(xx) Mandatory salary reduction amount for military service
personnel which is used to fund the Veteran's Educational Assistance
Act of 1984 (GI Bill), as amended (Pub. L. 99-576, sec. 303(a)(1), 38
U.S.C. 1411 (b));
(xxi) Payments received under the Old Age Assistance Claims
Settlement Act, except for per capita shares in excess of $2,000 (Pub.
L. 98-500, sec. 8, 25 U.S.C. 2307);
(xxii) Payments received under the Cranston-Gonzales National
Affordable Housing Act, unless the income of the family equals or
exceeds 80 percent of the median income of the area (Pub. L. 101-625,
sec. 522(i)(4), 42 U.S.C. 1437f nt);
(xxiii) Payments received under the Housing and Community
Development Act of 1987, unless the income of the family increases at
any time to not less than 50 percent of the median income of the area
(Pub. L. 100-242, sec. 126(c)(5)(A), 25 U.S.C. 2307);
(xxiv) Payments received under the Sac and Fox Indian claims
agreement (Pub. L. 94-189, sec. 6);
(xxv) Payments received under the Judgment Award Authorization Act,
as amended (Pub. L. 97-458, sec. 4, 25 U.S.C. 1407 and Pub. L. 98-64,
sec. 2(b), 25 U.S.C. 117b(b));
(xxvi) Payments for the relocation assistance of members of Navajo
and Hopi Tribes (Pub. L. 93-531, sec. 22, 22 U.S.C. 640d-21);
(xxvii) Payments to the Turtle Mountain Band of Chippewas, Arizona
(Pub. L. 97-403, sec. 9);
(xxviii) Payments to the Blackfeet, Grosventre, and Assiniboine
Tribes (Montana) and the Papago (Arizona) (Pub. L. 97-408, sec. 8(d));
(xxiv) Payments to the Assiniboine Tribe of the Fort Belknap Indian
community and the Assiniboine Tribe of the Fort Peck Indian Reservation
(Montana) (Pub. L. 98-124, sec. 5);
(xxx) Payments to the Red Lake Band of Chippewas (Pub. L. 98-123,
sec. 3);
(xxxi) Payments received under the Saginaw Chippewa Indian Tribe of
Michigan Distribution of Judgment Funds Act (Pub. L. 99-346, sec.
6(b)(2));
(xxxii) Payments to the Chippewas of Mississippi (Pub. L. 99-377,
sec. 4(b));
(xxxiii) Payments received by members of the Armed Forces and their
families under the Family Supplemental Subsistence Allowance from the
Department of Defense (Pub. L. 109-163, sec. 608); and
(xxxiv) Payments received by property owners under the National
Flood Insurance Program (Pub. L. 109-64).
(xxxv) Combat pay received by the household member under Chapter 5
of Title 37 or as otherwise designated by the Secretary.
* * * * *
0
9. Revise Sec. 247.10 to read as follows:
Sec. 247.10 Distribution and use of USDA Foods.
(a) What are the requirements for distributing USDA Foods to
participants? The local agency must distribute a package of USDA Foods
to participants each month, or a two-month supply of USDA Foods to
participants every other month, in accordance with the food package
guide rates established by FNS.
(b) What must the local agency do to ensure that USDA Foods are
distributed only to CSFP participants? The local agency must have a
process in place, in accordance with State agency requirements, to
verify the identity of participants or the participant's proxy before
distributing USDA Foods to that person.
(c) What restrictions apply to State and local agencies in the
distribution of USDA Foods? State and local agencies must not require,
or request, that participants make any payments, or provide any
materials or services, in connection with the receipt of USDA Foods.
State and local agencies must not use the distribution of USDA Foods as
a means of furthering the political interests of any person or party.
(d) What are the restrictions for the use of USDA Foods? USDA Foods
may not be used for outreach, refreshments, or for any purposes other
than distribution to, and nutrition education for, CSFP participants.
0
10. Amend Sec. 247.14 by revising paragraphs (a)(2) and (3) and adding
paragraph (a)(4) to read as follows:
Sec. 247.14 Other public assistance programs.
(a) * * *
(2) Medical assistance provided under Title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.), including medical assistance
provided to a qualified Medicare beneficiary (42 U.S.C. 1395(p) and
1396d(5));
(3) The Supplemental Nutrition Assistance Program (7 U.S.C. 2011 et
seq.); and
(4) The Senior Farmers' Market Nutrition Program (7 U.S.C. 3007 et
seq.).
* * * * *
0
11. Amend Sec. 247.18 by revising paragraphs (b)(1) and (2) and (d) to
read as follows:
Sec. 247.18 Nutrition education.
* * * * *
(b) * * *
(1) The nutritional value of USDA Foods, and their relationship to
the overall dietary needs of the population groups served;
(2) Nutritious ways to use USDA Foods;
* * * * *
(d) May USDA Foods be used in cooking demonstrations? Yes. The
State or local agency, or another agency with which it has signed an
agreement, may use USDA Foods to conduct cooking demonstrations as part
of the nutrition education provided to program participants, but not
for other purposes.
Sec. 247.20 [Amended]
0
12. Amend Sec. 247.20:
0
a. In paragraph (a)(3), by removing the term ``commodities'' and adding
in its place the term ``USDA Foods''; and
0
b. In paragraphs (b)(1) through (3) by removing the term ``CSFP
commodities'' and adding in its place the term ``USDA Foods''.
[[Page 87247]]
0
13. Amend Sec. 247.21 by revising the first sentence of paragraph
(a)(3) to read as follows:
Sec. 247.21 Caseload assignment.
(a) * * *
(3) * * * Each State agency requesting to begin participation in
the program, and with an approved State Plan, may receive caseload to
serve participants, as requested in the State Plan. * * *
* * * * *
Sec. 247.25 [Amended]
0
14. Amend Sec. 247.25 in paragraph (e) by removing the term
``commodities'' and adding in its place ``USDA Foods''.
0
15. Revise Sec. 247.28 to read as follows:
Sec. 247.28 Storage and inventory of USDA Foods.
(a) What are the requirements for storage of USDA Foods? State and
local agencies must provide for storage of USDA Foods that protects
them from theft, spoilage, damage or destruction, or other loss. State
and local agencies may contract with commercial facilities to store and
distribute USDA Foods. The required standards for warehousing and
distribution systems, and for contracts with storage facilities, are
included in Sec. Sec. 250.12 and 250.14 of this chapter.
(b) What are the requirements for the inventory of USDA Foods? A
physical inventory of all USDA Foods must be conducted annually at each
storage and distribution site where these USDA Foods are stored.
Results of the physical inventory must be reconciled with inventory
records and maintained on file by the State or local agency.
0
16. Amend Sec. 247.29 by revising paragraphs (a) and (b)(2)(ii) to
read as follows:
Sec. 247.29 Reports and recordkeeping.
(a) What recordkeeping requirements must State and local agencies
meet? State and local agencies must maintain accurate and complete
records relating to the receipt, disposal, and inventory of USDA Foods,
the receipt and disbursement of administrative funds and other funds,
eligibility determinations, fair hearings, and other program
activities. State and local agencies must also maintain records
pertaining to liability for any improper distribution of, use of, loss
of, or damage to USDA Foods, and the results obtained from the pursuit
of claims arising in favor of the State or local agency. All records
must be retained for a period of three years from the end of the fiscal
year to which they pertain, or, if they are related to unresolved
claims actions, audits, or investigations, until those activities have
been resolved. All records must be available during normal business
hours for use in management reviews, audits, investigations, or reports
of the General Accounting Office.
(b) * * *
(2) * * *
(ii) The receipt and distribution of USDA Foods, and beginning and
ending inventories, as well as other USDA Foods data; and
* * * * *
0
17. Amend Sec. 247.30 by revising paragraphs (b), (c), (d)
introductory text, and (d)(1) to read as follows:
Sec. 247.30 Claims.
* * * * *
(b) What happens if a State or local agency misuses USDA Foods? If
a State or local agency misuses USDA Foods, FNS must initiate a claim
against the State agency to recover the value of the misused USDA
Foods. The procedures for pursuing claims resulting from misuse of USDA
Foods are detailed in Sec. 250.16(a) of this chapter. Misused USDA
Foods include USDA Foods improperly distributed or lost, spoiled,
stolen, or damaged as a result of improper storage, care, or handling.
The State agency is responsible for initiating and pursuing claims
against subdistributing agencies, local agencies, or other agencies or
organizations if they misuse USDA Foods. The State agency must use
funds recovered as a result of claims for USDA Foods losses in
accordance with Sec. 250.17(c) of this chapter.
(c) What happens if a participant improperly receives or uses CSFP
benefits through fraud? The State agency must ensure that a local
agency initiates a claim against a participant to recover the value of
USDA Foods improperly received or used if the local agency determines
that the participant or caretaker of the participant fraudulently
received or used the USDA Foods. For purposes of this program, fraud
includes intentionally making false or misleading statements, or
intentionally withholding information, to obtain USDA Foods, or the
selling or exchange of USDA Foods for non-food items. The local agency
must advise the participant of the opportunity to appeal the claim
through the fair hearing process, in accordance with Sec. 247.33(a).
The local agency must also disqualify the participant from CSFP for a
period of up to one year, unless the local agency determines that
disqualification would result in a serious health risk, in accordance
with the requirements of Sec. 247.20(b).
(d) What procedures must be used in pursuing claims against
participants? The State agency must establish standards, based on a
cost-benefit review, for determining when the pursuit of a claim is
cost-effective, and must ensure that local agencies use these standards
in determining if a claim is to be pursued. In pursuing a claim against
a participant, the local agency must:
(1) Issue a letter demanding repayment for the value of the USDA
Foods improperly received or used;
* * * * *
Sec. 247.31 [Amended]
0
18. Amend Sec. 247.31 in paragraph (d) by removing the term ``CSFP
commodities'' and adding in its place the term ``USDA Foods''.
Sec. 247.33 [Amended]
0
19. Amend Sec. 247.33 in paragraph (a) by removing the term
``commodities'' and adding in its place the term ``USDA Foods''.
PART 250--DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION
0
20. The authority citation for part 250 continues to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 612c, 612c note, 1431, 1431b,
1431e, 1431 note, 1446a-1, 1859, 2014, 2025; 15 U.S.C. 713c; 22
U.S.C. 1922; 42 U.S.C. 1751, 1755, 1758, 1760, 1761, 1762a, 1766,
3030a, 5179, 5180.
0
21. Revise Sec. 250.69 to read as follows:
Sec. 250.69 Disasters.
(a) Use of USDA Foods to provide congregate meals. The distributing
agency may provide USDA Foods from current inventories, either at the
distributing or recipient agency level, to a disaster organization (as
defined in Sec. 250.2), for use in providing congregate meals to
persons in need of food assistance as a result of a Presidentially
declared disaster or emergency (hereinafter referred to collectively as
a ``disaster''). FNS approval is not required for such use.
(1) Notification of congregate meals activity to FNS. Prior to
using USDA Foods for congregate meals under this section, the
distributing agency must notify FNS that such assistance is to be
provided, and the period of time that it is expected to be needed. The
distributing agency may extend such period of assistance as needs
dictate but must notify FNS of such extension.
(2) Selection of disaster organizations for disaster congregate
meal service by
[[Page 87248]]
the distributing agency. Distributing agencies are responsible for
choosing disaster organizations to implement congregate meal service,
subject to FNS approval as described in paragraph (a)(1) of this
section. Before distribution of USDA Foods to a disaster organization
for congregate meal service, the distributing agency must review and
approve such organization's application in accordance with applicable
FNS guidance. A disaster organization's application must be submitted
to the distributing agency in written form. The disaster organization's
application must, to the extent possible, include the following
information at a minimum:
(i) A description of the disaster situation;
(ii) The number of people requiring assistance;
(iii) The period of time for which USDA Foods are requested;
(iv) The quantity and types of USDA Foods needed; and
(v) The name, number, and location of sites where USDA Foods are to
be used, to the extent that such information is known.
(3) Eligibility of emergency relief workers for congregate meals.
The disaster organization may use USDA Foods to provide meals to any
emergency relief workers at the congregate feeding site who are
directly engaged in providing relief assistance.
(b) Use of USDA Foods for distribution to households. Subject to
FNS approval, the distributing agency may provide USDA Foods from
current inventories in accordance with paragraph (c) of this section,
either at the distributing or recipient agency level, to a disaster
organization, for distribution to households in need of food assistance
because of a disaster. Once approved, such distribution may continue
for the period that FNS has determined to be necessary to meet the
needs of such households. Distributing agencies may request an
extension of the distribution period, subject to FNS approval.
(1) FNS approval of disaster household distribution. Before
permitting the distribution of USDA Foods to a disaster organization
for household distribution, the distributing agency must submit an
application to FNS for review and approval. The distributing agency's
application must, to the extent possible, include the following
information:
(i) A description of the disaster situation;
(ii) The number of people requiring assistance;
(iii) The period of time for which USDA Foods are requested;
(iv) The quantity and types of USDA Foods needed;
(v) The name, number, and location of sites where USDA Foods are to
be used, to the extent that such information is known;
(vi) An explanation as to why household distribution is needed; and
(vii) The method(s) of distribution available.
(2) Selection of a disaster organization for disaster household
distribution of USDA Foods. Distributing agencies are responsible for
choosing disaster organizations to implement a disaster household
distribution, subject to FNS approval as described in paragraph (b)(1)
of this section. Before distribution of USDA Foods to a disaster
organization, the distributing agency must review and approve such
organization's application in accordance with applicable FNS guidance,
which must be submitted to the distributing agency either
electronically or in written form. The distributing agency must also
submit such application to FNS for review and approval before
permitting distribution of USDA Foods to households.
(c) Limitation on impacts to other programs. Distributing agencies
must ensure that the operation of disaster congregate meal service and/
or disaster household distribution is not administered in lieu of
regular program operations nor does it negatively impact the
distribution of USDA Foods through other programs administered by the
distributing agency.
(d) Reporting and recordkeeping requirements. The distributing
agency must report the following to FNS:
(1) The number, names, and locations of sites where USDA Foods are
used in congregate meals or household distribution as these sites are
established.
(2) The types and amounts of USDA Foods from distributing or
recipient agency storage facilities used in disaster assistance,
utilizing form FNS-292A, Report of Commodity Distribution for Disaster
Relief, which must be submitted electronically, within 45 days from the
termination of disaster assistance. This form must also be used to
request replacement of USDA Foods, in accordance with paragraph (e) of
this section. The distributing agency must maintain records of reports
and other information relating to disasters.
(3) If the distributing agency is operating disaster household
distribution per 250.69(b), the distributing agency must submit a
biweekly report to FNS, utilizing the format requested by FNS, for the
approved disaster period. This report must be submitted electronically
biweekly as long as the disaster household distribution continues
operation. Biweekly reports must include:
(i) The weekly distribution start and end dates;
(ii) The total number of individual household members receiving
assistance at all locations;
(iii) Material identification codes for USDA Foods distributed;
(iv) the USDA Foods description of the foods distributed; and
(v) the total units of each food distributed.
(e) Replacement of USDA Foods. In order to ensure replacement of
USDA Foods used in disasters, the distributing agency must submit to
FNS a request for such replacement, utilizing form FNS-292A, Report of
Commodity Distribution for Disaster Relief, within 45 days following
the termination of disaster assistance. The distributing agency may
request replacement of USDA Foods used from inventories in which USDA
Foods are commingled with other foods (i.e., at storage facilities of
recipient agencies utilizing single inventory management), if the
recipient agency received USDA Foods of the same type as the foods used
during the year preceding the onset of the disaster assistance. FNS
will replace such USDA Foods in the amounts used, or in the amount of
like USDA Foods received during the preceding year, whichever is less.
(f) Reimbursement of transportation costs. In order to receive
reimbursement for any costs incurred in transporting USDA Foods within
the State, or from one State to another, for use in disasters, the
distributing agency must submit a public voucher to FNS with
documentation of such costs. FNS will review the request and reimburse
the distributing agency.
0
22. Revise Sec. 250.70 to read as follows:
Sec. 250.70 Situations of distress.
(a) Use of USDA Foods to provide congregate meals. The distributing
agency may provide USDA Foods from current inventories, either at the
distributing or recipient agency level, to a disaster organization, for
use in providing congregate meals to persons in need of food assistance
because of a situation of distress, as this term is defined in Sec.
250.2.
(1) Notification of congregate meals activity to FNS. If the
situation of distress results from a natural event (e.g., a hurricane,
flood, or snowstorm), congregate meals may be provided for a
[[Page 87249]]
period not to exceed 30 days, without the need for FNS approval.
However, the distributing agency must notify FNS that such assistance
is to be provided. FNS approval must be obtained to permit such USDA
Foods assistance for a period exceeding 30 days. If the situation of
distress results from other than a natural event (e.g., an explosion),
FNS approval is required to permit USDA Foods assistance for use in
providing congregate meals for any period of time.
(2) Selection of disaster organizations for disaster congregate
meal service by the distributing agency. Distributing agencies are
responsible for choosing disaster organizations to implement congregate
meal service, subject to approval as described in paragraph (a)(1) of
this section. Before distribution of USDA Foods to a disaster
organization, the distributing agency must review and approve such
organization's application in accordance with applicable FNS guidance,
which must be submitted to the distributing agency in written form. The
distributing agency must also submit such application to FNS for review
and approval before permitting distribution of USDA Foods in a
situation of distress that is not the result of a natural event. The
disaster organization's application must, to the extent possible,
include the following information:
(i) A description of the situation of distress;
(ii) The number of people requiring assistance;
(iii) The period of time for which USDA Foods are requested;
(iv) The quantity and types of USDA Foods needed; and
(v) The name, number, and location of sites where USDA Foods are to
be used, to the extent that such information is known.
(3) Eligibility of emergency relief workers for congregate meals.
The disaster organization may use USDA Foods to provide meals to any
emergency relief workers at the congregate feeding site that are
directly engaged in providing relief assistance.
(b) Use of USDA Foods for distribution to households. The
distributing agency must receive FNS approval to provide USDA Foods
from current inventories in accordance with paragraph (c) of this
section, either at the distributing or recipient agency level, to a
disaster organization for distribution to households in need of food
assistance because of a situation of distress. Such distribution may
continue for the period of time that FNS determines necessary to meet
the needs of such households. Before permitting the distribution of
USDA Foods for household distribution, the distributing agency must
submit an application to FNS for review and approval. The distributing
agency's application must, to the extent possible, include the
following information:
(1) A description of the situation of distress;
(2) The number of people requiring assistance;
(3) The period of time for which USDA Foods are requested;
(4) The quantity and types of USDA Foods needed;
(5) The name, number, and location of sites where USDA Foods are to
be used, to the extent that such information is known;
(6) An explanation as to why household distribution is needed; and
(7) The method(s) of distribution available.
(c) Limitation on impacts to other programs. Distributing agencies
must ensure that the operation of congregate meal service and/or
disaster household distribution in situations of distress is not
administered in lieu of regular program operations nor does it
negatively impact the distribution of USDA Foods through other programs
administered by the distributing agency.
(d) Reporting and recordkeeping requirements. The distributing
agency must report the following to FNS:
(1) The number, names, and locations of sites where USDA Foods are
used in congregate meals or household distribution as these sites are
established.
(2) The distributing agency must also report the types and amounts
of USDA Foods from distributing or recipient agency storage facilities
used in the situation of distress, utilizing form FNS-292A, Report of
Commodity Distribution for Disaster Relief, which must be submitted
electronically, within 45 days from the termination of assistance. This
form must also be used to request replacement of USDA Foods, in
accordance with paragraph (e) of this section. The distributing agency
must maintain records of reports and other information relating to
situations of distress.
(3) If the distributing agency is operating disaster household
distribution per 250.70(b), the distributing agency must submit a
biweekly report to FNS, utilizing the format requested by FNS, for the
approved disaster period. This report must be submitted electronically
biweekly as long as the disaster household distribution continues
operation. Biweekly reports must include:
(i) The weekly distribution start and end dates;
(ii) The total number of individual household members receiving
assistance at all locations;
(iii) Material identification codes for USDA Foods distributed;
(iv) The USDA Foods description of the foods distributed; and
(v) The total units of each food distributed.
(e) Replacement of USDA Foods. FNS will replace USDA Foods used in
a situation of distress only to the extent that funds to provide for
such replacement are available. The distributing agency must submit to
FNS a request for replacement of such USDA Foods, utilizing form FNS-
292A, Report of Commodity Distribution for Disaster Relief, which must
be submitted electronically, within 45 days from the termination of
assistance. The distributing agency may request replacement of foods
used from inventories in which USDA Foods are commingled with other
foods (i.e., at storage facilities of recipient agencies utilizing
single inventory management), if the recipient agency received USDA
Foods of the same type as the USDA Foods used during the year preceding
the onset of the situation of distress. Subject to the availability of
funds, FNS will replace such USDA Foods in the amounts used, or in the
amount of like USDA Foods received during the preceding year, whichever
is less.
(f) Reimbursement of transportation costs. In order to receive
reimbursement for any costs incurred in transporting USDA Foods within
the State, or from one State to another, for use in a situation of
distress, the distributing agency must submit a public voucher to FNS
with documentation of such costs. FNS will review the request and
reimburse the distributing agency to the extent that funds are
available.
PART 251--THE EMERGENCY FOOD ASSISTANCE PROGRAM
0
23. The authority citation for part 251 continues to read as follows:
Authority: 7 U.S.C. 7501-7516; 7 U.S.C. 2011-2036.
Sec. 251.2 [Amended]
0
24. Amend Sec. 251.2:
0
a. In paragraph (a), by removing the term ``food commodities'' and
adding in its place the term ``USDA Foods'';
0
b. In paragraphs (c)(1) and (2), by removing the term ``donated foods''
wherever it appears and adding in its place the term ``USDA Foods'';
[[Page 87250]]
0
c. In paragraph (d)(1)(ii), by removing the term ``commodities'' and
adding in its place the term ``USDA Foods''; and
0
d. In paragraph (d)(2)(ii), by removing the terms ``TEFAP commodities''
and ``commodities'' and adding in their place the term ``USDA Foods''.
0
25. Amend Sec. 251.3:
0
a. In paragraphs (c) and (d)(5), by removing the term ``commodities''
and adding in its place the term ``USDA Foods'';
0
b. In paragraph (e) by removing the term ``TEFAP commodities'' and
adding in its place the term ``USDA Foods'';
0
c. By revising paragraph (f); and
0
d. In paragraphs (h) and (k) by removing the term ``commodities''
wherever it appears and adding in its place the term ``USDA Foods''.
The revision reads as follows:
Sec. 251.3 Definitions.
* * * * *
(f) Food bank means a public or charitable institution that
maintains an established operation involving the provision of food to
food pantries, soup kitchens, hunger relief centers, or other food or
feeding centers that, as an integral part of their normal activities,
provide meals or food to feed needy persons on a regular basis.
* * * * *
0
26. Amend Sec. 251.4 by:
0
a. Revising the section heading;
0
b. Removing the term ``donated commodity'' in paragraph (c)(4) and
adding in its place the term ``USDA Foods'';
0
c. Removing the term ``donated food'' in paragraphs (c)(4) and (5) and
adding in its place the term ``USDA Foods'';
0
d. Removing the term ``Commodities'' in paragraph (f) introductory text
and adding in its place the term ``USDA Foods'';
0
e. Revising paragraph (f)(3);
0
f. Removing the term ``donated commodities'' wherever it appears in
paragraph (g) and in paragraph (i) and adding in its place the term
``USDA Foods'';
0
g. Removing the term ``TEFAP commodities'' wherever it appears in
paragraphs (h)(1)(i) and (ii) and (h)(2) through (4) and adding in its
place the term ``USDA Foods'';
0
h. Removing the term ``commodity'' in paragraphs h(1)(i) and (ii) and
adding in its place the term ``USDA Foods'';
0
i. Removing the term ``USDA donated commodities'' in paragraph (i) and
adding in its place the term ``USDA Foods'';
0
j. Revising paragraph (k);
0
k. Removing the term ``commodities'' wherever it appears and adding in
its place the term ``USDA Foods''; and
0
k. Adding paragraph (l).
The revisions and addition read as follows:
Sec. 251.4 Availability of USDA Foods.
* * * * *
(f) * * *
(3) The State shall require the processor to meet Federal, State,
and local health standards.
* * * * *
(k) Distribution in rural and Tribal areas. FNS encourages State
agencies and eligible recipient agencies to implement or expand USDA
Foods distributions in rural, remote, and Tribal areas of the State
wherever possible.
(l) Public posting of availability of USDA Foods. State agencies
must make publicly available the list of eligible recipient agencies
that have an agreement with the State agency and the State's uniform
Statewide eligibility criteria to receive USDA Foods for household
consumption as per Sec. 251.5(b), to ensure that eligible populations
understand eligibility criteria and are able to identify where they may
access USDA Foods. At minimum, State agencies must publicly post the
names, addresses, and contact telephone numbers for all eligible
recipient agencies that have an agreement with the State agency. The
information must be posted on a publicly available internet web page
and be updated on an annual basis or whenever changes to eligibility
criteria are made.
0
27. Amend Sec. 251.5 by revising paragraphs (a) introductory text,
(a)(1) and (2), (b), and (c) to read as follows:
Sec. 251.5 Eligibility determinations.
(a) Criteria for determining eligibility of organizations. Prior to
making USDA Foods or administrative funds available, State agencies, or
eligible recipient agencies to which the State agency has delegated
responsibility for the distribution of USDA Foods or administrative
funds, must ensure that an organization applying for participation in
the program meets the definition of an ``eligible recipient agency''
under Sec. 251.3(d). In addition, applicant organizations must meet
the following criteria:
(1) Agencies distributing USDA Foods to households for home
consumption. Organizations distributing USDA Foods to households for
home consumption must limit the distribution of USDA Foods provided
under this part to those households which meet the eligibility criteria
established by the State agency in accordance with paragraph (b) of
this section.
(2) Agencies providing prepared meals. Organizations providing
prepared meals must demonstrate, to the satisfaction of the State
agency, or eligible recipient agency to which they have applied for the
receipt of USDA Foods or administrative funds, that they serve
predominantly needy persons. State agencies may establish a higher
standard than ``predominantly'' and may determine whether organizations
meet the applicable standard by considering socioeconomic data of the
area in which the organization is located, or from which it draws its
clientele. State agencies may not, however, require organizations to
employ a means test to determine that recipients are needy, or to keep
records solely for the purpose of demonstrating that its recipients are
needy.
* * * * *
(b) Criteria for determining recipient eligibility. Each State
agency must establish uniform Statewide criteria for determining the
eligibility of households to receive USDA Foods provided under this
part for home consumption and must make these criteria publicly
available as per Sec. 251.4(l). The criteria must:
(1) Enable the State agency to ensure only households that need
food assistance because of inadequate household income receive USDA
Foods;
(2) Include income-based standards and the methods by which
households may demonstrate eligibility under such standards. Income-
based standards must include a maximum income eligibility threshold at
or between 185 percent to 300 percent of the U.S. Federal Poverty
Guidelines published annually by the U.S. Department of Health and
Human Services (HHS). States may propose alternative income-based
eligibility standards above this threshold with supporting rationale,
subject to approval by FNS; and
(3) Include a requirement that the household reside in the
geographic location served by the State agency at the time of applying
for assistance, and the method for how residency will be determined.
Length of residency, address, or identification documents shall not be
used as an eligibility criterion.
(c) Delegation of authority. A State agency may delegate to one or
more eligible recipient agencies with which the State agency enters
into an agreement the responsibility for the distribution of USDA Foods
and administrative funds made available under this part. State agencies
may also delegate the authority for selecting eligible recipient
agencies and for
[[Page 87251]]
determining the eligibility of such organizations to receive USDA Foods
and administrative funds. However, responsibility for establishing
eligibility criteria for organizations in accordance with paragraph (a)
of this section, and for establishing recipient eligibility criteria in
accordance with paragraph (b) of this section, may not be delegated. In
instances in which State agencies delegate authority to eligible
recipient agencies to determine the eligibility of organizations to
receive USDA Foods and administrative funds, eligibility must be
determined in accordance with the provisions contained in this part and
the State plan. State agencies will remain responsible for ensuring
that USDA Foods and administrative funds are distributed in accordance
with the provisions contained in this part.
0
28. Amend Sec. 251.6 by revising paragraphs (a)(1), (2), (4), (5), and
(6) to read as follows:
Sec. 251.6 Distribution plan.
(a) * * *
(1) A designation of the State agency responsible for distributing
USDA Foods and administrative funds provided under this part, and the
address of such agency;
(2) A plan of operation and administration to expeditiously
distribute USDA Foods received under this part;
* * * * *
(4) A description of the criteria established in accordance with
Sec. 251.5(b) which must be used by eligible recipient agencies in
determining the eligibility of households to receive USDA Foods for
home consumption;
(5) At the option of the State agency, a plan of operation for one
or more Farm to Food Bank Projects in partnership with one or more
emergency feeding organizations located in the State, as described in
Sec. 251.13. The plan must include all items listed at Sec.
251.13(e); and
(6) A plan, which may include the use of a State advisory board
established under Sec. 251.4(h)(4), that provides emergency feeding
organizations or eligible recipient agencies within the State an
opportunity to provide input on the USDA Foods preferences and needs of
the emergency feeding organization or eligible recipient agency.
* * * * *
Sec. 251.7 [Amended]
0
29. Amend Sec. 251.7 in paragraph (a) by removing the word
``commodity'' and adding in its place the term ``USDA Foods''.
0
30. Amend Sec. 251.8 by revising paragraphs (a), (d), (e)(1)
introductory text, (e)(1)(i) and (iii), and (e)(4)(iii) to read as
follows:
Sec. 251.8 Payment of funds for administrative costs.
(a) Availability and allocation of funds. Funds made available to
the Department for State and local costs associated with the
distribution of USDA Foods under this part shall, in any fiscal year,
be distributed to each State agency on the basis of the funding formula
defined in Sec. 251.3(h).
* * * * *
(d) Priority for eligible recipient agencies distributing USDA
Foods. State agencies and eligible recipient agencies distributing
administrative funds must ensure that the administrative funding needs
of eligible recipient agencies which receive USDA Foods are met,
relative to both USDA Foods and any non-USDA foods they may receive
before such funding is made available to eligible recipient agencies
which distribute only non-USDA foods.
(e) * * *
(1) Allowable administrative costs. State agencies and eligible
recipient agencies may use funds made available under this part to pay
the direct expenses associated with the distribution of USDA Foods and
foods secured from other sources to the extent that the foods are
ultimately distributed by eligible recipient agencies which have
entered into agreements in accordance with Sec. 251.2. Direct expenses
include the following, regardless of whether they are charged to TEFAP
as direct or indirect costs:
(i) The intrastate and interstate transport, storing, handling,
repackaging, processing, and distribution of foods (including donated
wild game); except that for interstate expenditures to be allowable,
the foods must have been specifically earmarked for the particular
State or eligible recipient agency which incurs the cost;
* * * * *
(iii) Costs of providing information to persons receiving USDA
Foods concerning the appropriate storage and preparation of such foods;
* * * * *
(4) * * *
(iii) State agencies must not charge for USDA Foods made available
under this part to eligible recipient agencies.
* * * * *
0
31. Amend Sec. 251.9:
0
a. In paragraph (c)(2)(i) by removing the word ``commodities'' and
adding in its place the term ``USDA Foods'';
0
b. In paragraph (d) by removing the term ``donated foods'' and adding
in its place ``USDA Foods''; and
0
c. Revising paragraph (e).
The revision reads as follows:
Sec. 251.9 Matching of funds.
* * * * *
(e) Reporting requirements. State agencies must identify their
matching contribution on the FNS-667, Report of TEFAP Administrative
Costs, in accordance with Sec. 251.10(b)(1).
* * * * *
0
32. Revise Sec. 251.10 to read as follows:
Sec. 251.10 Reports and recordkeeping.
(a) Records--(1) USDA Foods. State agencies, subdistributing
agencies (as defined in Sec. 250.3 of this chapter), and eligible
recipient agencies must maintain records to document the receipt,
disposal, and inventory of USDA Foods received under this part that
they, in turn, distribute to eligible recipient agencies. Such records
must be maintained in accordance with the requirements set forth in
Sec. 250.16 of this chapter. Eligible recipient agencies must sign a
receipt for USDA Foods which they receive under this part for
distribution to households or for use in preparing meals, and records
of all such receipts must be maintained.
(2) Administrative funds. In addition to maintaining financial
records in accordance with 2 CFR part 200, subpart D, and USDA
implementing regulations at 2 CFR part 400, State agencies must
maintain records to document the amount of funds received under this
part and paid to eligible recipient agencies for allowable
administrative costs incurred by such eligible recipient agencies.
State agencies must also ensure that eligible recipient agencies
maintain such records.
(3) Eligible recipient agency list. State agencies must maintain a
list of eligible recipient agencies, including eligible recipient
agencies that have agreements with the State agency and eligible
recipient agencies that have agreements with another eligible recipient
agency. The list must include eligible recipient agencies that
distribute USDA Foods for home consumption and those that distribute
USDA Foods in the form of prepared meals.
(4) Information about households receiving USDA Foods for home
consumption. Each distribution site must collect and maintain on record
for each household receiving USDA Foods for home consumption, the name
of the household member receiving USDA Foods, the number of persons in
the household, and the basis for determining that the household is
[[Page 87252]]
eligible to receive USDA Foods for home consumption.
(5) Record retention. All records required by this section must be
retained for a period of 3 years from the close of the Federal Fiscal
Year to which they pertain, or longer if related to an audit or
investigation in progress. State agencies may take physical possession
of such records on behalf of their eligible recipient agencies.
However, such records must be reasonably accessible at all times for
use during management evaluation reviews, audits or investigations.
(b) Reports--(1) Submission of Form FNS-667. Designated State
agencies must identify funds obligated and disbursed to cover the costs
associated with the program at the State and local level. State and
local costs must be identified separately. The data must be identified
on Form FNS-667, Report of Administrative Costs (TEFAP) and submitted
to the appropriate FNS Regional Office on a quarterly basis. The
quarterly report must be submitted no later than 30 calendar days after
the end of the quarter to which it pertains. The final report must be
submitted no later than 90 calendar days after the end of the fiscal
year to which it pertains.
(2) Reports of excessive inventory. Each State agency must complete
and submit to the FNS Regional Office reports to ensure that excessive
inventories of USDA Foods are not maintained, in accordance with the
requirements of Sec. 250.18(a) of this chapter.
(3) Report of eligible recipient agency list. On an annual basis,
each State agency must provide the list of eligible recipient agencies
and statewide eligibility criteria, as described in paragraph (a)(3) of
this section, to FNS. The report should specify whether each eligible
recipient agency has an agreement with the State agency or with another
eligible recipient agency.
(4) Recipients of USDA Foods for home consumption. State agencies
must report the total number of persons served by each distribution
site for home consumption as collected in paragraph (a)(4) of this
section to FNS on a quarterly basis. This report must capture the total
number of persons in all households which participated in each calendar
month within the quarter.
(c) Confidentiality of applicants and participants--(1)
Confidential applicant and participant information. Confidential
applicant and participant information is any information about an
applicant or participant, whether it is obtained from the applicant or
participant, another source, or generated as a result of TEFAP
application, certification, or participation, that individually
identifies an applicant or participant and/or family member(s).
Applicant or participant information is confidential, regardless of the
original source and exclusive of previously applicable confidentiality
provided in accordance with other Federal, State, or local law.
(2) Limits on disclosure of information obtained from applicants or
participants. State and local agencies must restrict the use or
disclosure of information obtained from TEFAP applicants or
participants to persons directly connected with the administration or
enforcement of the program. With the consent of the participant, the
State or local agency may share information obtained with other health
or welfare programs for use in determining eligibility for those
programs, or for program outreach. However, the State agency must sign
an agreement with the administering agencies for these programs to
ensure that the information will be used only for the specified
purposes, and that agencies receiving such information will not further
share it.
(3) Limits on disclosing the identity of persons making a complaint
or allegation against an individual participating in or administering
the program. The State and local agency must protect the
confidentiality, and other rights, of any person making allegations or
complaints against another individual participating in, or
administering TEFAP, except as necessary to conduct an investigation,
hearing, or judicial proceeding, as applicable.
0
33. Add Sec. Sec. 251.11 through 251.14 to read as follows:
Sec.
* * * * *
251.11 State monitoring system.
251.12 Limitation on unrelated activities.
251.13 Farm to Food Bank Projects.
251.14 Miscellaneous.
Sec. 251.11 State monitoring system.
(a) Each State agency must monitor the operation of the program to
ensure that it is being administered in accordance with Federal and
State requirements. State agencies may not delegate this
responsibility.
(b) Unless specific exceptions are approved in writing by FNS, the
State agency monitoring system must include:
(1) An annual review of at least 25 percent of all eligible
recipient agencies which have signed an agreement with the State agency
pursuant to Sec. 251.2(c), provided each such agency must be reviewed
no less frequently than once every four years; and
(2) An annual review of one-tenth or 20, whichever is fewer, of all
eligible recipient agencies which receive USDA Foods and/or
administrative funds pursuant to an agreement with another eligible
recipient agency. Reviews must be conducted, to the maximum extent
feasible, simultaneously with actual distribution of USDA Foods and/or
meal service, and eligibility determinations, if applicable. State
agencies must develop a system for selecting eligible recipient
agencies for review that ensures deficiencies in program administration
are detected and resolved in an effective and efficient manner.
(c) Each review must encompass, as applicable, eligibility
determinations, food ordering procedures, storage and warehousing
practices, inventory controls, approval of distribution sites,
reporting and recordkeeping requirements, and civil rights.
(d) Upon concurrence by FNS, reviews of eligible recipient agencies
which have been conducted by FNS Regional Office personnel may be
incorporated into the minimum coverage required by paragraph (b) of
this section.
(e) If deficiencies are disclosed through the review of an eligible
recipient agency, the State agency must submit a report of the review
findings to the eligible recipient agency and ensure that corrective
action is taken to eliminate the deficiencies identified.
Sec. 251.12 Limitation on unrelated activities.
(a) Activities unrelated to the distribution of USDA Foods or meal
service may be conducted at distribution sites as long as:
(1) The person(s) conducting the activity makes clear that the
activity is not part of TEFAP and is not endorsed by the Department.
Nutrition education materials, such as recipes or other information
about USDA Foods, dates of future distributions, hours of operations,
or information about other Federal, State, or local government programs
or services for the needy may be distributed without a clarification
that the information is not endorsed by the Department;
(2) The person(s) conducting the activity makes clear that
cooperation is not a condition of the receipt of USDA Foods for home
consumption or prepared meals containing USDA Foods (cooperation
includes contributing money, signing petitions, or conversing with the
person(s));
(3) The activity is not conducted in a manner that disrupts the
distribution of USDA Foods or meal service, and;
(4) The activity does not involve information unrelated to TEFAP
being
[[Page 87253]]
placed in or printed on bags, boxes, or other containers in which USDA
Foods are distributed.
(b) Eligible recipient agencies and distribution sites shall ensure
that activities unrelated to the distribution of USDA Foods or meal
service are conducted in a manner consistent with paragraph (a) of this
section.
(c) Except as provided in paragraph (d) of this section, State
agencies shall immediately terminate from further participation in
TEFAP operations any eligible recipient agency that distributes or
permits distribution of materials in a manner inconsistent with the
provisions of paragraph (a) of this section.
(d) The State agency may withhold termination of an eligible
recipient agency's or distribution site's TEFAP participation if the
State agency cannot find another eligible recipient agency to operate
the distribution in the area served by the violating organization. In
such circumstances, the State agency shall monitor the violating
organization to ensure that no further violations occur.
Sec. 251.13 Farm to Food Bank Projects.
(a) Definition of project. Farm to Food Bank Projects are the
harvesting, processing, packaging, or transportation of unharvested,
unprocessed, or unpackaged foods donated by agricultural producers,
processors, or distributors for use by emergency feeding organizations
under section 203D of the Emergency Food Assistance Act of 1983.
(b) Availability and allocation of funds. Funds for the costs of
carrying out a Farm to Food Bank Project will be allocated to State
agencies as follows:
(1) Funds made available to the Department for Farm to Food Bank
Projects will be distributed to State agencies that have submitted an
approved amendment to their State plan. The amendment must describe a
plan of operation for a Farm to Food Bank Project and include all
elements listed in paragraph (e) of this section. The plan of operation
must be updated and resubmitted on an annual basis by the dates
requested by FNS.
(2) Funds for Farm to Food Bank Projects will be distributed each
fiscal year to State agencies using the funding formula defined in
Sec. 251.3(h).
(3) Funds will be available to State agencies for one year from the
date of allocation.
(c) Purpose and use of funds. State agencies may only use funds
made available under this section for the costs of carrying out a Farm
to Food Bank Project.
(1) Farm to Food Bank Projects must have a purpose of:
(i) Reducing food waste at the agricultural production, processing,
or distribution level through the donation of food;
(ii) Providing food to individuals in need; and
(iii) Building relationships between agricultural producers,
processors, and distributors and emergency feeding organizations
through the donation of food.
(2) Project funds may only be used for costs associated with
harvesting, processing, packaging, or transportation of unharvested,
unprocessed, or unpackaged foods donated by agricultural producers,
processors, or distributors for use by emergency feeding organizations.
(3) Project funds cannot be used to purchase foods or for
agricultural production activities such as purchasing seeds or planting
crops.
(d) Matching of funds--(1) State matching requirement. The State
agency must provide a cash or in-kind contribution at least equal to
the amount of funding received under this section for a Farm to Food
Bank Project.
(2) Allowable contributions. State agencies shall meet the match
requirement in paragraph (d) of this section by providing allowable
contributions as described at Sec. 251.9(c); contributions must only
be for costs which would otherwise be allowable as a Farm to Food Bank
Project cost.
(3) Emergency feeding organization contributions. Cash or in-kind
contributions from emergency feeding organizations that partner with
the State agency to administer the Farm to Food Bank Project are
allowable.
(4) Food donations. Donations of foods, including the value of
foods donated as a part of a Farm to Food Bank Project, cannot count
toward the match requirement in paragraph (d) of this section.
(e) Plans of Operation for Farm to Food Bank Projects. A plan of
operation for a Farm to Food Bank Project must include:
(1) A high-level summary of the Farm to Food Bank Project.
(2) A description of the types of foods expected to be donated
through the Project.
(3) A list of emergency feeding organizations within the State that
will operate the Project in partnership with the State agency.
(4) A list of any State agencies that will operate the Project as a
part of a cooperative agreement.
(5) A description of the Project that includes how the Project
will:
(i) Reduce food waste at the agricultural production, processing,
or distribution level through the donation of food;
(ii) Provide food to individuals in need; and
(iii) Build relationships between agricultural producers,
processors, and distributors and emergency feeding organizations
through the donation of food.
(6) The fiscal year in which the Project will begin operating; and
(7) A description of how the match requirement will be met.
(f) Reallocation of funds. If, during the course of the fiscal
year, the Department determines that a State agency will not expend all
of the funds allocated to the State agency for a fiscal year under this
section, the Department shall reallocate the unexpended funds to other
State agencies that have an approved State Plan describing a plan of
operation for a Farm to Food Bank Project during that fiscal year or
the subsequent fiscal year.
(g) Reporting requirements. Each State agency to which Farm to Food
Bank Project funds are allocated for a fiscal year must submit a report
describing use of the funds. The data must be identified on Form SF-
425, Federal Financial Report, and submitted to the appropriate FNS
Regional Office on a semiannual basis. The reports, including a final
report, must be submitted by the dates requested by FNS.
(h) Cooperative agreements. State agencies that carry out a Farm to
Food Bank Project may enter into cooperative agreements with State
agencies of other States to maximize the use of foods donated under the
project.
Sec. 251.14 Miscellaneous.
(a) USDA Foods not income. In accordance with section 206 of Public
Law 98-8, as amended, and notwithstanding any other provision of law,
USDA Foods distributed for home consumption and meals prepared from
USDA Foods distributed under this part shall not be considered income
or resources for any purposes under any Federal, State, or local law.
(b) Nondiscrimination. There shall be no discrimination in the
distribution of USDA Foods for home consumption or availability of
meals prepared from USDA Foods donated under this part because of race,
color, national origin, sex, age, or handicap.
(c) Use of volunteer workers and non-USDA foods. In the operation
of The Emergency Food Assistance Program, State agencies and eligible
recipient agencies shall, to the maximum extent practicable, use
volunteer workers and
[[Page 87254]]
foods which have been donated by charitable and other types of
organizations.
(d) Maintenance of effort. The State may not reduce the expenditure
of its own funds to provide USDA Foods or services to organizations
receiving funds or services under the Emergency Food Assistance Act of
1983 below the level of such expenditure existing in the fiscal year
when the State first began administering TEFAP, or Fiscal Year 1988,
which is the fiscal year in which the maintenance-of-effort requirement
became effective, whichever is later.
(e) Recruitment activities related to the Supplemental Nutrition
Assistance Program (SNAP). Any entity that receives USDA Foods
identified in this section must adhere to regulations set forth under
Sec. 277.4(b)(6) of this chapter.
PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR
HOUSEHOLDS ON INDIAN RESERVATIONS
0
34. The authority citation for part 253 continues to read as follows:
Authority: 91 Stat. 958 (7 U.S.C. 2011-2036).
0
35. Revise Sec. 253.1 to read as follows:
Sec. 253.1 General purpose and scope.
This part describes the terms and conditions under which: USDA
Foods (available under part 250 of this chapter) may be distributed to
households on or near all or any part of any Indian reservation, the
program may be administered by capable Indian tribal organizations
(ITOs) and funds may be obtained from the Department for the costs
incurred in administering the program. This part also provides for the
concurrent operation of the Food Distribution Program and the
Supplemental Nutrition Assistance Program (SNAP) on Indian reservations
when such concurrent operation is requested by an ITO.
0
36. Amend Sec. 253.2 by revising the definitions of ``Indian tribal
organization (ITO)'', ``Overissuance'', and ``State agency'' and
removing the definition of ``Urban place''.
The revisions read as follows:
Sec. 253.2 Definitions.
* * * * *
Indian Tribal Organization (ITO) means:
(1) The recognized governing body of any Indian tribe on a
reservation; or
(2) The tribally recognized intertribal organization which the
recognized governing bodies of two or more Indian tribes on a
reservation authorize to operate SNAP or a Food Distribution Program on
their behalf.
(3) State agencies are also referred to as FDPIR administering
agencies.
* * * * *
Overissuance means the dollar value of USDA Foods issued to a
household that exceeds the dollar value of USDA Foods it was eligible
to receive.
* * * * *
State agency means:
(1) The agency of State government, including the local offices
thereof, which enters into an agreement with FNS for the distribution
of USDA Foods on all or part of an Indian reservation, and
(2) The ITO of any Indian tribe, determined by the Department to be
capable of effectively administering a Food Distribution Program, which
enters into an agreement with FNS for the distribution of USDA Foods on
all or part of an Indian reservation.
0
37. Revise Sec. 253.3 to read as follows:
Sec. 253.3 Availability of USDA Foods.
(a) Conditions for distribution. In jurisdictions where SNAP is in
operation, there shall be no distribution of USDA Foods to households
under the authority of any law, except that distribution may be made:
(1) On a temporary basis under programs authorized by law to meet
disaster relief needs;
(2) For the purpose of the USDA Foods programs in accordance with
the requirements of part 250 of this chapter and with other Federal
regulations applicable to specific food assistance programs; and
(3) Whenever a request for concurrent or separate Food Distribution
Program on a reservation is made by an ITO.
(b) Concurrent or separate food program operation. Distribution of
USDA Foods under the Food Distribution Program, with or without SNAP,
shall be made whenever an ITO submits to FNS a completed application
for the Food Distribution Program on all or part of a reservation and
the application is approved by FNS.
(1) Except as provided in paragraph (b)(2) of this section, when
the Food Distribution Program is operating on all or part of a
reservation, all eligible households within those boundaries may
participate in the Food Distribution Program, or, if the ITO has
elected concurrent operation of SNAP, may elect to participate in
either program, without regard to whether the household is an Indian
tribal household.
(2) FNS may determine, based on the number of non-Indian tribal
households located on all or part of a reservation, that concurrent
operation is necessary. When such a determination has been made all
households residing in such areas may apply to participate in either
SNAP or the Food Distribution Program.
(c) Household distribution. USDA Foods acquired under section 416
of the Agricultural Act of 1949, as amended; section 32 of Public Law
320, 74th Congress, as amended; section 709 of the Food and
Agricultural Act of 1963, as amended; and section 4(a) of the
Agriculture and Consumer Protection Act of 1973, as amended, by section
1304 of the Food and Agriculture Act of 1977, may be made available
under part 250 of this chapter for distribution to households in
accordance with the provisions of that part and the additional
provisions and requirements of this part.
(d) Food distribution program benefits. Households eligible under
this part shall receive a monthly food package based on the number of
household members. The food package offered to each household shall
consist of a quantity and variety of USDA Foods made available by the
Department to provide eligible households with an opportunity to obtain
a more nutritious diet and shall represent an acceptable nutritional
alternative to SNAP benefits. The food package offered to each
household by the State agency shall contain a variety of foods from
each of the food groups in the Food Distribution Program on Indian
Reservations Monthly Distribution Guide Rates by Household Size. FNS
shall periodically notify State agencies of the kinds of USDA Foods it
proposes to make available based, insofar as practicable, on the
preferences of eligible households as determined by the State agency.
In the event one or more of the proposed USDA Foods cannot be
delivered, the Department shall arrange for delivery of a similar USDA
Foods within the same food group. FNS shall periodically assess how the
USDA Foods provided in the Food Distribution Program compares to the
Dietary Guidelines for Americans and the market baskets of the Thrifty
Food Plan and, to the extent practicable, will adjust the food package
as needed to ensure that the food package benefit is in alignment. The
food package benefit will not decrease based on this adjustment.
Sec. 253.4 [Amended]
0
38. Amend Sec. 253.4:
0
a. In paragraph (b)(3) by removing the term ``contract'' in the first
and fourth sentences and adding in its place the term ``delegate'' and
in the second sentence removing the terms
[[Page 87255]]
``commodity'' and ``commodities'' and adding in their place the term
``USDA Foods'';
0
b. In paragraph (d) by removing the term ``the Food Stamp Program'' in
the second sentence and adding in its place the term ``SNAP'' and by
removing the fifth, sixth, and seventh sentences; and
0
c. In paragraphs (e)(1)(i) and (iii) by removing the term
``commodities'' and adding in its place the term ``USDA Foods''.
0
39. Amend Sec. 253.5:
0
a. By removing the term ``commodities'' wherever it appears and adding
in its place the term ``USDA Foods'';
0
b. In paragraph (a)(2)(i) by removing the term ``the Food Stamp
Program'' and adding in its place the term ``SNAP'';
0
c. By revising paragraph (e); and
0
d. In paragraphs (f)(1) and (i)(2) by removing the term ``commodity''
and adding in its place the term ``USDA Foods''.
Sec. 253.4 State agency requirements.
* * * * *
(e) Outreach and referral. The State agency shall inform
potentially eligible households of the availability of the Food
Distribution Program. The State agency shall develop and distribute
printed information in the appropriate languages about the program and
eligibility requirements. Outreach material shall contain information
about a household's right to file an application on the same date it
contacts the certification office. The State agency shall be
sufficiently familiar with general eligibility requirements for the
Supplemental Food Program for Women, Infants and Children (WIC), the
Commodity Supplemental Food Program (if available to reservation
residents), the Supplemental Security Income Program (SSI), and
appropriate public and general assistance programs, to identify those
applicants whose households contain persons who may be eligible for
these programs, to inform the applicants of their potential
eligibility, and to provide the applicants with the addresses and
telephone numbers for these programs. For example, the State agency
should provide information on the WIC program to applicants whose
households contain pregnant women, nursing or postpartum women, or
children up to the fifth birthday.
* * * * *
0
40. Amend Sec. 253.6 by:
0
a. Revising paragraph (a);
0
b. Revising the second sentence in paragraph (b)(1) and removing the
term ``the Food Stamp Program'' in the seventh sentence;
0
c. Revising paragraphs (c) heading, (c)(1), and (d)(1)(i);
0
d. Removing the term ``the Food Stamp Program'' in paragraph (d)(1)(ii)
and adding in its place the term ``SNAP''; and
0
e. Revising paragraph (d)(2)(ii)(D);
0
f. Removing the term ``the Food Stamp Program'' in paragraph
(d)(2)(ii)(G) and adding in its place the term ``SNAP'';
0
g. Revising paragraphs (d)(3)(vii), (d)(3)(x)(C), and (e).
The revisions and addition read as follows:
Sec. 253.6 Eligibility of households.
(a) Household concept. (1) The State agency shall determine
eligibility for the Food Distribution Program on a household basis.
Household means any of the following individuals or groups of
individuals, provided that such individuals or groups are not boarders
or residents of an institution.
(i) An individual living alone.
(ii) An individual living with others, but customarily purchasing
food and preparing meals for home consumption separate and apart from
the others.
(iii) A group of individuals living together for whom food is
customarily purchased in common and for whom meals are prepared
together for home consumption.
(iv) Spouses living separately. For purposes of this part, spouses
living separately and apart are considered separate households.
(2) Nonhousehold members. The following individuals residing with a
household shall not be considered household members in determining the
household's eligibility. Nonhousehold members specified in paragraphs
(a)(2) (i) and (v) who are otherwise eligible may participate in the
Program as separate households.
(i) Roomers. Individuals to whom a household furnishes lodging, but
not meals, for compensation.
(ii) Disqualified individuals. Individuals disqualified from the
Food Distribution Program per 253.7(f)(1) and SNAP for fraud, as set
forth in Sec. 273.16.
(iii) Illegal residents. Individuals who are not legal residents of
the United States. While U.S. citizenship is not required for
participation in the Food Distribution Program, persons receiving food
distribution benefits must be lawfully living in the United States.
(iv) Others. Other individuals who share living quarters with the
household but who do not customarily purchase food and prepare meals
with the household. For example, if the applicant household shares
living quarters with another family to save on rent, but does not
purchase and prepare food together with that family, the members of the
other family are not members of the a
[…truncated; see source link]Indexed from Federal Register on October 31, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.