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Rules and Regulations Federal Register

48373 

Vol. 74, No. 183 

Wednesday, September 23, 2009 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 249 

RIN 0584–AD92 

Senior Farmers’ Market Nutrition 

Program Regulations, 

Nondiscretionary Provisions of Public 

Law 110–246, the Food, Conservation, 

and Energy Act of 2008 

AGENCY: Food and Nutrition Service 

(FNS), USDA. 

ACTION: Final rule. 

SUMMARY: This final rule incorporates 

into the Senior Farmers’ Market 

Nutrition Program regulations, statutory 

provisions set forth in Section 4231 of 

the Food, Conservation, and Energy Act 

of 2008 (Pub. L. 110–246, also known as 

the Farm Bill of 2008). The three 

provisions include adding honey as an 

eligible food for purchase with Senior 

Farmers’ Market Nutrition Program 

(SFMNP) benefits, prohibiting the value 

of SFMNP benefits from consideration 

as income or resources when 

determining eligibility for other 

programs under any Federal, State or 

local law, and prohibiting the collection 

of State or local tax on a purchase of 

food with a benefit distributed under 

the SFMNP. 

DATES: Effective Date: October 23, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Debra Whitford, Supplemental Food 

Programs Division, Food and Nutrition 

Service, USDA, 3101 Park Center Drive, 

Room 528, Alexandria, Virginia 22302; 

(703) 305–2746; e-mail 

Debbie.Whitford@fns.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Public Law 110–246, the Food, 

Conservation, and Energy Act of 2008 

(also known as the Farm Bill, 

hereinafter referred to as ‘‘the Act’’), 

includes three nondiscretionary 

provisions regarding the SFMNP. The 

three provisions add honey as an 

eligible food; prohibit the value of 

SFMNP benefits from consideration as 

income when determining eligibility for 

other programs under any Federal, State 

or local law; and prohibit the collection 

of State or local tax on a purchase of 

food with SFMNP benefits. This final 

rule implements these nondiscretionary 

SFMNP provisions verbatim as reflected 

in Section 4231 of the Act. No 

discretion has been exercised by the 

Department in the implementation of 

these provisions. 

1. Honey as an Eligible Food 

Section 4231 of the Act amends 

Section 4402(b)(1) of the Farm Security 

and Rural Investment Act of 2002 (7 

U.S.C. 3007) to add honey as an eligible 

food for purchase with SFMNP benefits. 

This provision of the law was effective 

October 1, 2008. 

Previously, State agencies were only 

permitted to authorize fresh fruits, 

vegetables and herbs as eligible foods. 

This provision gives State agencies the 

flexibility to add honey to their eligiblefoods lists for the SFMNP. The SFMNP 

regulations have been revised to reflect 

the addition of honey as an eligible 

SFMNP food. 

2. No Aid Reduction 

Section 4231 of the Act amends 

Section 4402 of the Farm Security and 

Rural Investment Act of 2002 (7 U.S.C. 

3007) to include a provision that 

excludes SFMNP benefits from 

consideration as income or resources for 

any purposes under any Federal, State 

or local law. This provision would 

exclude SFMNP benefits from the 

determination of eligibility for other 

means tested programs, bringing the 

SFMNP in line with other Department 

of Agriculture nutrition assistance 

programs such as the Supplemental 

Nutrition Assistance Program (SNAP), 

the Special Supplemental Nutrition 

Program for Women, Infants and 

Children (WIC), and the WIC Farmers 

Market Nutrition Program (FMNP). 

Section 249.25 of the SFMNP 

regulations has been amended to 

include this provision. 

3. Prohibition on Collecting Sales Tax 

Section 4231 of the Act further 

amends Section 4402 of the Farm 

Security and Rural Investment Act of 

2002 (7 U.S.C. 3007) to include a 

provision that prohibits the collection of 

State or local tax on the purchase of 

foods purchased with SFMNP benefits. 

This provision also brings SFMNP in 

line with other Department of 

Agriculture nutrition assistance 

programs such as SNAP, WIC and 

FMNP. Section 249.10 of the SFMNP 

regulations has been amended to 

include this provision. 

Notice and Comment 

In accordance with the Secretary’s 

Statement of Policy (36 FR 13804), it is 

found and determined upon good cause 

that it is unnecessary to engage in the 

Notice and Comment provisions of 5 

U.S.C. 553 normally required before the 

adoption of final regulations in an FNSsponsored program. As indicated 

earlier, the three provisions of Section 

4231 of the Act adopted as final rules in 

the SFMNP in this rulemaking are 

nondiscretionary. These provisions are 

being incorporated as regulations in 

language verbatim from the Act. The 

nondiscretionary nature of Section 4231 

means that notice and comment would 

serve no useful purpose in the 

promulgation of these regulations. 

Executive Order 12866 

The Office of Management and Budget 

designated this rule as not significant 

under Executive Order 12866 therefore 

no OMB review is required. 

Regulatory Flexibility Act 

The Food, Nutrition, and Consumer 

Services has certified that this rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The provisions of this 

rulemaking are applicable to all State 

and local agencies, farmers, farmers’ 

markets, roadside stands, and 

community supported agriculture 

programs, regardless of their size or of 

the volume of SFMNP business they 

conduct. 

Regulatory Impact Analysis 

This rule has been designated as not 

significant by the Office of Management 

and Budget; therefore, a Regulatory 

Impact Analysis (RIA) is not necessary. 

Need for Action 

The final rule amends the SFMNP 

regulations to implement three 

provisions mandated in Public Law 

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48374 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Rules and Regulations 

110–234, the Food, Conservation, and 

Energy Act of 2008 (also known as the 

Farm Bill of 2008). One provision adds 

honey as an eligible food for purchase 

with SFMNP benefits; another provision 

prohibits the consideration of the value 

of SFMNP benefits as income or 

resources when determining eligibility 

for other programs under any Federal, 

State or local law; and the third 

provision prohibits the collection of 

State or local tax on a purchase of food 

with SFMNP benefits. 

Benefits 

The benefit of these provisions is 

twofold. It provides State agencies with 

the flexibility to add honey as an 

authorized food, and it brings the 

SFMNP into conformance with other 

nutrition assistance programs 

administered by USDA’s Food and 

Nutrition Service (FNS). 

Costs 

The provisions of this final rule are 

not expected to increase significantly 

the administrative burden to the 

Department or to State agencies, nor 

will they affect overall program costs 

since the SFMNP is funded by an 

annual appropriation. 

Public Law 104–4 

Title II of the UMRA establishes 

requirements for Federal agencies to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

Under Section 202 of the UMRA, FNS 

generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures by State, local, or 

tribal governments in the aggregate, or 

to the private sector, of $100 million or 

more in any one year. When such a 

statement is needed for a rule, Section 

205 of the UMRA generally requires 

FNS to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

more cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This final rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, or tribal governments or the 

private sector of $100 million or more 

in any one year. Thus, the rule is not 

subject to the requirements of Sections 

202 and 205 of the UMRA. 

Executive Order 12372 

The SFMNP is listed in the Catalog of 

Federal Domestic Assistance under No. 

10.576. For the reasons set forth in the 

final rule at 7 CFR part 3015, Subpart V 

and related Notice (48 FR 29115, June 

24, 1983), this program is included in 

the scope of Executive Order 12372 that 

requires intergovernmental consultation 

with State and local officials. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is intended to have 

preemptive effect with respect to any 

State or local laws, regulations, or 

policies that conflict with its provisions 

or that would otherwise impede its full 

implementation. This rule is not 

intended to have retroactive effect 

unless so specified in the Dates 

paragraph of the preamble to the final 

rule. Prior to any judicial challenge to 

the application of the provisions of this 

rule, all applicable administrative 

procedures must be exhausted. 

In the SFMNP, the administrative 

procedures are as follows: (1) Local 

agencies, farmers, farmers’ markets, 

roadside stands, and community 

supported agriculture programs—State 

agency hearing procedures issued 

pursuant to 7 CFR 249.16; (2) 

Applicants and participants—State 

agency hearing procedures pursuant to 

7 CFR 249.16; (3) sanctions against State 

agencies (but not claims for repayment 

assessed against a State agency) 

pursuant to 7 CFR 249.17— 

administrative appeal in accordance 

with 7 CFR 249.16, and (4) procurement 

by State or local agencies— 

administrative appeal to the extent 

required by 7 CFR 3016.36. 

Federalism Summary Impact Statement 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have federalism implications, agencies 

are directed to provide a statement for 

inclusion in the preamble to the 

regulations describing the agency’s 

considerations in terms of the three 

categories called for under Section 

6(b)(2)(B) of Executive Order 13132. 

FNS has considered the impact of this 

rule on State and local governments and 

has determined that this rule does not 

have federalism implications. Therefore, 

under Section 6(b) of the Executive 

Order, a federalism summary impact 

statement is not required. 

Civil Rights Impact Analysis 

FNS has reviewed this rule in 

accordance with FNS Regulation 4300– 

4, ‘‘Civil Rights Impact Analysis,’’ to 

identify and address any major civil 

rights impacts the rule might have on 

minorities, women, and persons with 

disabilities. After a careful review of the 

rule’s intent and provisions, and the 

characteristics of SFMNP participants, 

FNS has determined that none of the 

provisions in this rule have a 

discernible impact on minorities, 

women, or persons with disabilities that 

are likely to result in inequitable 

treatment. FNS specifically prohibits 

State agencies that administer the 

SFMNP, and their cooperators, from 

engaging in actions that discriminate 

against any individual in any of the 

protected classes (see 7 CFR 249.7 for 

the nondiscrimination policy in the 

SFMNP). Where State agencies have 

options, and they choose to implement 

a certain provision, they must 

implement it in such a way that it 

complies with the SFMNP regulations 

set forth at § 249.7. 

Paperwork Reduction Act 

This rule does not constitute a 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35). 

E-Government Act Compliance 

FNS is committed to complying with 

the E-Government Act to promote the 

use of the internet and other 

information technologies to provide 

increased opportunities to provide for 

citizen access to government 

information and services, and for other 

purposes. State plan amendments 

regarding the implementation of the 

provisions contained in this rule, as is 

the case with the entire State Plan, may 

be transmitted electronically by the 

State agency to FNS. Also, State 

agencies may provide SFMNP 

information, as well as their financial 

reports, to FNS electronically. 

List of Subjects in 7 CFR Part 249 

Food assistance programs, Food 

donations, Grant programs—Social 

programs, Indians, Aging, Nutrition 

education, Public assistance programs, 

WIC, Senior citizens. 

■ For reasons discussed above, 7 CFR 

Part 249 is amended as follows: 

PART 249—SENIOR FARMERS’ 

MARKET NUTRITION PROGRAM 

(SFMNP) 

■ 1. The authority citation for part 249 

continues to read as follows: 

Authority: 7 U.S.C. 3007. 

■ 2. In Part 249: 

■ a. Add the word ‘‘honey,’’ after 

‘‘vegetables,’’ wherever the phrase 

‘‘fresh, nutritious, unprepared, locally 

grown fruits, vegetables, and herbs’’ 

appears; and 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Rules and Regulations 48375 

1To view the interim rule, go to http:// 

www.regulations.gov/fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2008-0124. 

2The delay was put into place in an interim rule 

published in the Federal Register on September 11, 

2008 (73 FR 52775–52777, Docket No. APHIS– 

2008–0068). The interim rule may be viewed on the 

Internet at http://www.regulations.gov/fdmspublic/ 

component/main?main=DocketDetail&d=APHIS2008-0068. 

■ b. Remove the word ‘‘honey,’’ 

wherever the phrase ‘‘wild, rice, nuts of 

any kind (even raw), honey, maple 

syrup,’’ appears. 

§ 249.4 [Amended] 

■ 3. In § 249.4, amend paragraph 

(a)(14)(vii) and the first sentence in 

paragraph (a)(18) by adding the word 

‘‘honey,’’ after ‘‘vegetables,’’. 

■ 4. In § 249.10, amend paragraph 

(b)(2)(ii) by removing the period and 

adding ‘‘; nor’’ at the end of the sentence 

and add a new paragraph (b)(2)(iii) to 

read as follows: 

§ 249.10 Coupon, market, and CSA 

program management. 

* * * * * 

(b)* * * 

(2)* * * 

(iii) Collect tax on SFMNP coupon 

purchases. 

* * * * * 

■ 5. In § 249.25, add a new paragraph (c) 

to read as follows: 

§ 249.25 Other provisions. 

* * * * * 

(c) Exclusion of benefits in 

determining eligibility for other 

programs. The value of any benefit 

provided to any eligible SFMNP 

recipient shall not be considered to be 

income or resources for any purposes 

under any Federal, State or local law. 

Dated: September 4, 2009. 

Julia Paradis, 

Administrator, Food and Nutrition Service. 

[FR Doc. E9–22861 Filed 9–22–09; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 77 

[Docket No. APHIS–2008–0124] 

Tuberculosis in Cattle and Bison; State 

and Zone Designations; New Mexico 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: We are adopting as a final 

rule, without change, an interim rule 

that amended the bovine tuberculosis 

regulations by establishing two separate 

zones with different tuberculosis risk 

classifications for the State of New 

Mexico. Prior to the interim rule, the 

entire State of New Mexico had been 

classified as modified accredited 

advanced; however, all its affected 

herds were located in Curry and 

Roosevelt Counties, NM, along the 

State’s eastern border. The interim rule 

was necessary to relieve restrictions on 

the interstate movement of cattle and 

bison from areas of New Mexico outside 

those two counties. 

DATES: Effective on September 23, 2009, 

we are adopting as a final rule the 

interim rule published at 74 FR 12055– 

12058 on March 23, 2009. 

FOR FURTHER INFORMATION CONTACT: Dr. 

C. William Hench, Senior Staff 

Veterinarian, National Tuberculosis 

Eradication Program, Veterinary 

Services, APHIS, 2150 Centre Ave, Bldg 

B, MSC 3E20, Ft. Collins, CO 80526; 

(970) 494–7378. 

SUPPLEMENTARY INFORMATION: 

Background 

Bovine tuberculosis is a contagious 

and infectious granulomatous disease 

caused by the bacterium Mycobacterium 

bovis. Although commonly defined as a 

chronic debilitating disease, bovine 

tuberculosis can occasionally assume an 

acute, rapidly progressive course. While 

any body tissue can be affected, lesions 

are most frequently observed in the 

lymph nodes, lungs, intestines, liver, 

spleen, pleura, and peritoneum. 

Although cattle are considered to be the 

true hosts of M. bovis, the disease has 

been reported in several other species of 

both domestic and nondomestic 

animals, as well as in humans. 

At the beginning of the past century, 

tuberculosis caused more losses of 

livestock than all other livestock 

diseases combined. This prompted the 

establishment in the United States of the 

National Cooperative State/Federal 

Bovine Tuberculosis Eradication 

Program for tuberculosis in livestock. 

In carrying out the national 

eradication program, the Animal and 

Plant Health Inspection Service (APHIS) 

issues and enforces regulations. The 

regulations require the testing of cattle 

and bison for tuberculosis, define the 

Federal tuberculosis status levels for 

States or zones (accredited-free, 

modified accredited advanced, modified 

accredited, accreditation preparatory, 

and nonaccredited), provide the criteria 

for attaining and maintaining those 

status levels, and contain testing and 

movement requirements for cattle and 

bison leaving States or zones of a 

particular status level. These regulations 

are contained in 9 CFR part 77 (referred 

to below as the regulations) and in the 

Bovine Tuberculosis Eradication 

Uniform Methods and Rules, 1999, 

which is incorporated by reference into 

the regulations. 

According to the regulations, if bovine 

tuberculosis is detected in a portion of 

a State, the State may request split-State 

status via partitioning into specific 

geographic regions or zones with 

differential status designations. With 

regard to cattle and bison, State animal 

health officials in New Mexico 

demonstrated to APHIS that New 

Mexico, excluding Curry and Roosevelt 

Counties, meets the criteria for 

accredited-free status set forth in the 

definition of accredited-free State or 

zone in § 77.5 of the regulations. 

Therefore, we amended the 

regulations in an interim rule 1 effective 

and published in the Federal Register 

on March 23, 2009 (74 FR 12055–12058, 

Docket No. APHIS–2008–0124), by 

removing New Mexico from the list of 

modified accredited States in § 77.9(a), 

adding an area consisting of Curry and 

Roosevelt Counties, NM, to the list of 

modified accredited advanced zones in 

§ 77.9(b), and adding the remainder of 

the State to the list of accredited-free 

zones in § 77.7(b). 

Comments on the interim rule were 

required to be received on or before May 

22, 2009. We did not receive any 

comments by that date. Therefore, for 

the reasons given in the interim rule, we 

are adopting the interim rule as a final 

rule without change. 

We note that the indefinite delay 2 in 

compliance with certain identification 

and certification requirements in § 77.10 

of the regulations will continue to apply 

with respect to Curry and Roosevelt 

Counties, NM, which continue to hold 

modified accredited advanced status. 

The specific provisions of § 77.10 for 

which we delayed the compliance date 

were as follows: 

• The identification of sexually intact 

heifers moving to approved feedlots and 

steers and spayed heifers moving to any 

destination (§ 77.10(b)); 

• The identification requirements for 

sexually intact heifers moving to 

feedlots that are not approved feedlots 

(§ 77.10(d)); and 

• Because identification is required 

for certification, the certification 

requirements for sexually intact heifers 

moving to unapproved feedlots 

(§ 77.10(d)). 

This action also affirms the 

information contained in the interim 

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