54530 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsections (e)(4)(G), (e)(4)(H), 

and (e)(4)(I) (Agency Requirements), and (f) 

(Agency Rules) because portions of this 

system are exempt from the individual access 

provisions of subsection (d) for the reasons 

noted above, and therefore DHS is not 

required to establish requirements, rules, or 

procedures with respect to such access. 

Providing notice to individuals with respect 

to existence of records pertaining to them in 

the system of records or otherwise setting up 

procedures pursuant to which individuals 

may access and view records pertaining to 

themselves in the system would undermine 

investigative efforts and reveal the identities 

of witnesses, and potential witnesses, and 

confidential informants. 

Dated: September 1, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–22307 Filed 9–7–10; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 253 

[FNS–2008–001] 

RIN 0584–AD85 

Food Distribution Program on Indian 

Reservations: Administrative Funding 

Allocations 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule proposes to 

establish the requirements regarding the 

allocation of administrative funds for 

the Food Distribution Program on 

Indian Reservations and the Food 

Distribution Program for Indian 

Households in Oklahoma, both of which 

are referred to as ‘‘FDPIR’’ in this 

rulemaking. The rulemaking would 

propose amendments to FDPIR 

regulations to ensure that administrative 

funding is allocated in a fair and 

equitable manner. The proposed rule 

would also revise FDPIR regulations to 

clarify current program requirements 

relative to the distribution of 

administrative funds to Indian Tribal 

Organizations (ITOs) and State agencies. 

DATES: To be assured of consideration, 

comments must be received on or before 

December 7, 2010. 

ADDRESSES: FNS invites interested 

persons to submit comments on this 

proposed rule. You may submit 

comments, identified by Regulatory 

Identifier Number (RIN) number 0584– 

AD85, by any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Preferred 

method; follow the online instructions 

for submitting comments on ‘‘FNS– 

2008–001.’’ 

• Fax: Submit comments by facsimile 

transmission to Laura Castro at (703) 

305–2420. 

• Mail: Send comments to Laura 

Castro, Branch Chief, Policy Branch, 

Food Distribution Division, Food and 

Nutrition Service, U.S. Department of 

Agriculture, Room 500, 3101 Park 

Center Drive, Alexandria, Virginia 

22302–1594. 

• Hand Delivery or Courier: Deliver 

comments to the above address during 

regular business hours. 

Comments submitted in response to 

this rule will be included in the record 

and will be made available to the 

public. Please be advised that the 

substance of the comments and the 

identity of the individuals or entities 

submitting the comments will be subject 

to public disclosure. FNS will make the 

comments publicly available on the 

Internet via http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Laura Castro at the above address or 

telephone (703) 305–2662. You may also 

contact Dana Rasmussen at (703) 305– 

1628, or via e-mail at 

Dana.Rasmussen@fns.usda.gov. 

SUPPLEMENTARY INFORMATION: 

I. Public Comment Procedures 

II. Procedural Matters 

III. Background and Discussion of the 

Proposed Rule 

I. Public Comment Procedures 

Your written comments on this 

proposed rule should be specific, 

should be confined to issues pertinent 

to the proposed rule, and should 

explain your reason(s) for any change 

you recommend or proposal(s) you 

oppose. Where possible, you should 

reference the specific section or 

paragraph of the proposal you are 

addressing. Comments received after the 

close of the comment period (see DATES) 

will not be considered or included in 

the Administrative Record for the final 

rule. 

Executive Order 12866 requires each 

agency to write regulations that are 

simple and easy to understand. We 

invite your comments on how to make 

these regulations easier to understand, 

including answers to questions such as 

the following: 

(1) Are the requirements in the rule 

clearly stated? 

(2) Does the rule contain technical 

language or jargon that interferes with 

its clarity? 

(3) Does the format of the rule (e.g., 

grouping and order of sections, use of 

headings, and paragraphs) make it 

clearer or less clear? 

(4) Would the rule be easier to 

understand if it were divided into more 

(but shorter) sections? 

(5) Is the description of the rule in the 

preamble section entitled ‘‘Background 

and Discussion of the Proposed Rule’’ 

helpful in understanding the rule? How 

could this description be more helpful 

in making the rule easier to understand? 

II. Procedural Matters 

In the following discussion and 

regulatory text, the term ‘‘State agency,’’ 

as defined at 7 CFR 253.2, is used to 

include ITOs authorized to operate 

FDPIR in accordance with 7 CFR parts 

253 and 254. 

A. Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

Therefore it was not reviewed by the 

Office of Management and Budget 

(OMB). 

B. Title 5, United States Code 601–612, 

‘‘Regulatory Flexibility Act’’ 

This proposed rule has been reviewed 

with regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). It has been certified that this 

action will not have a significant impact 

on a substantial number of small 

entities. While State agencies that 

administer FDPIR will be affected by 

this rulemaking, the economic effect 

will not be significant. 

C. Public Law 104–4, ‘‘Unfunded 

Mandates Reform Act of 1995’’ (UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under Section 202 of the UMRA, 

FNS generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with Federal mandates that may result 

in expenditures to State, local, or Tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. When such a statement 

is needed for a rule, Section 205 of the 

UMRA generally requires FNS to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, more costVerDate Mar<15>2010 16:36 Sep 07, 2010 Jkt 220001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1

srobinson on DSKHWCL6B1PROD with PROPOSALS
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effective or least burdensome alternative 

that achieves the objectives of the rule. 

This rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, and Tribal governments or 

the private sector of $100 million or 

more in any one year. This rule is, 

therefore, not subject to the 

requirements of Sections 202 and 205 of 

the UMRA. 

D. Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs’’ 

The program addressed in this action 

is listed in the Catalog of Federal 

Domestic Assistance under No. 10.567. 

For the reasons set forth in the final rule 

in 7 CFR part 3015, subpart V and 

related Notice published at 48 FR 29115 

on June 24, 1983, the donation of foods 

in such programs is included in the 

scope of Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials. 

E. Executive Order 13132, ‘‘Federalism’’ 

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. 

1. Prior Consultation With State and 

Local Officials 

The programs that receive FDPIR 

administrative funding from FNS’ 

Regional Offices are all Tribal or Stateadministered, federally-funded 

programs. On an ongoing basis, the FNS 

National and Regional Offices have 

formal and informal discussions related 

to FDPIR with Tribal and State officials. 

FNS meets regularly with the Board and 

the membership of the National 

Association of Food Distribution 

Programs on Indian Reservations 

(NAFDPIR), an association of Tribal and 

State-appointed FDPIR Program 

Directors, to discuss issues relating to 

the program. 

This rulemaking proposes regulatory 

changes regarding the distribution of 

FDPIR administrative funds to the FNS 

Regional Offices for allocation to the 

ITOs and State agencies that administer 

FDPIR. Section F, Tribal Consultation, 

below, provides additional information 

on FNS’ efforts to work directly with the 

ITOs and State agencies in the 

development of the funding 

methodology proposed in this rule. 

2. Nature of Concerns and the Need To 

Issue This Rule 

Current regulations at 7 CFR part 253 

do not specify how FDPIR 

administrative funds must be 

distributed. For many years, the 

National Office of the FNS used fixed 

percentages to allocate FDPIR 

administrative funds to each of the FNS 

Regional Offices, which in turn 

distributed the available funding to 

FDPIR State agencies. As noted 

previously, FDPIR State agencies 

include both ITOs and agencies of state 

government. The funding methodology 

did not account for any administrative 

cost drivers, such as the number of ITOs 

and State agencies within each Region 

or the number of individuals served by 

each ITO/State agency. Therefore, it did 

not provide a rational basis for 

allocating funds to the Regional Offices. 

FDPIR State agencies expressed concern 

that the methodology did not allocate 

funds equitably to the FNS Regional 

Offices, and in turn negatively impacted 

certain State agencies’ ability to 

adequately administer the program. 

3. Extent To Which We Address Those 

Concerns 

FNS has considered the impact of the 

proposed rule on FDPIR State agencies. 

FNS does not expect the provisions of 

this rule to conflict with any State or 

local laws, regulations, or policies. The 

intent of this rule is to respond to the 

concerns of the State agencies by 

ensuring that funds are allocated to the 

FNS Regional Offices as fairly as 

possible; and to ensure that related 

program requirements with regard to the 

allocation of administrative funds to 

State agencies, as well as State agency 

matching requirements, are clear and 

easy to understand. 

F. Executive Order 13175, ‘‘Tribal 

Impact Statement’’ 

This rulemaking proposes regulatory 

changes regarding the distribution of 

FDPIR administrative funds to the FNS 

Regional Offices, which further allocate 

the funds to the ITOs and State agencies 

that administer FDPIR. These 

amendments are intended to ensure that 

FDPIR administrative funding is 

distributed to the FNS Regional Offices 

in a fair and equitable manner. The 

proposed rule would also revise FDPIR 

regulations to clarify current program 

requirements relative to the allocation of 

administrative funds to ITOs and State 

agencies. During the course of 

developing this rule, FNS has taken a 

number of actions to ensure meaningful 

and timely input by elected tribal 

leaders. In 2005 FNS convened a work 

group comprised of FNS staff and Tribal 

and State-appointed FDPIR Program 

Directors representing NAFDPIR and its 

membership. The work group was asked 

to develop a proposal(s) for a new 

funding methodology for the allocation 

of FDPIR federal administrative funds. 

The work group conducted its 

deliberations via 33 conference calls 

and six face-to-face meetings from May 

2005 through October 2007. Discussions 

were also held at the annual meetings of 

the membership of NAFDPIR, in which 

some elected Tribal leaders took part. 

The work group and FNS solicited 

written comments from elected Tribal 

leaders and State officials at various 

stages of the development of the funding 

methodology proposed in this rule. In 

addition to the requests for written 

comments, FNS hosted public meetings 

that were held in January 2007 at four 

locations throughout the country. 

Elected Tribal leaders and State officials 

were invited to discuss the proposal to 

develop a funding methodology at those 

public meetings. Discussion from the 

public meetings and written comments 

submitted to the work group were 

considered by the work group in the 

development of its recommendations to 

FNS’ Administrator. On October 19, 

2007, the work group presented 

recommendations for a funding 

methodology. These recommendations 

were used to develop the funding 

methodology proposed in this rule. 

In fiscal year 2008, FNS implemented 

the funding methodology proposed in 

this rulemaking on a trial basis. FNS 

solicited comments from elected Tribal 

leaders and State officials on the impact 

of the funding methodology in fiscal 

year 2008 for consideration in 

determining the funding methodology to 

be used in fiscal year 2009, pending the 

development of this proposed 

rulemaking. 

A regulatory work plan was 

developed in fiscal year 2008 for the 

development of this proposed 

rulemaking with the intent of soliciting 

comments from elected Tribal leaders, 

State officials, and other interested 

members of the public in response to 

the funding methodology implemented 

in fiscal year 2008 and proposed in this 

rule. 

A summary of concerns raised by 

tribal officials, the agency’s need to 

issue this regulation, and an explanation 

of how these concerns have been 

addressed is thoroughly discussed in 

section III of the preamble. 

G. Executive Order 12988, ‘‘Civil Justice 

Reform’’ 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54532 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

Justice Reform. Although the provisions 

of this rule are not expected to conflict 

with any State or local laws, regulations, 

or policies, the 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 proposed rule is 

not intended to have retroactive effect. 

Prior to any judicial challenge to the 

provisions of this rule or the application 

of its provisions, all applicable 

administrative procedures must be 

exhausted. 

H. Department Regulation 4300–4, ‘‘Civil 

Rights Impact Analysis’’ 

FNS has reviewed this rule in 

accordance with the Department 

Regulation 4300–4, ‘‘Civil Rights Impact 

Analysis,’’ to identify and address any 

major civil rights impacts the rule might 

have on minorities, women, and persons 

with disabilities. After a careful review 

of the rule’s intent and provisions, FNS 

has determined that this rule will not in 

any way limit or reduce the ability of 

participants to receive the benefits of 

donated foods on the basis of an 

individual’s or group’s race, color, 

national origin, sex, age, political 

beliefs, religious creed, or disability. 

FNS found no factors that would 

negatively and disproportionately affect 

any group of individuals. 

I. Title 44, United States Code, Chapter 

35, ‘‘Paperwork Reduction Act’’ 

The Paperwork Reduction Act of 1995 

(44 U.S.C. Chap. 35; see 5 CFR part 

1320) requires that OMB approve all 

collections of information by a Federal 

agency from the public before they can 

be implemented. Respondents are not 

required to respond to any collection of 

information unless it displays a current 

valid OMB control number. This 

proposed rule does not contain any new 

information collection requirements 

subject to review and approval by OMB 

under the Paperwork Reduction Act of 

1995. However, previous burdens for 7 

CFR part 253 information collections 

associated with this rule have been 

approved under OMB control number 

0584–0293. 

J. Public Law 107–347, ‘‘E-Government 

Act Compliance’’ 

FNS is committed to complying with 

the E-Government Act of 2002 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. 

III. Background and Discussion of the 

Proposed Rule 

The proposed rule would amend the 

regulations for FDPIR at 7 CFR 253.11 

and impact 7 CFR part 254, which crossreferences 7 CFR part 253. 

A. Prior Administrative Funding 

Allocation Methodology 

Currently, FDPIR regulations at 7 CFR 

253.11 do not specify a methodology for 

the allocation of administrative funds. 

Under the traditional practice, the FNS 

National Office allocated funds to the 

FNS Regional Offices using fixed 

percentages. These funding percentages 

varied from one Region to the next, did 

not change for many years prior to fiscal 

year 2008, and did not reflect cost 

drivers such as each Region’s share of 

national program participation and 

current number of ITOs and State 

agencies. Regional Offices then 

allocated each State agency its share of 

administrative funds based on 

negotiations between the two entities. 

Because FNS Regional Offices received 

funding without regard to the effect of 

cost drivers, similar State agencies in 

different Regions could have received 

significantly different funding levels. 

This in turn could have impacted 

program operations and potentially 

resulted in inconsistent or uneven 

service to participants. 

B. FDPIR Funding Methodology Work 

Group and Public Meetings 

To address concerns raised by FDPIR 

State agencies over potential FDPIR 

administrative funding inequities, a 

funding methodology work group was 

convened by FNS in 2005. The work 

group, which was comprised of FDPIR 

program representatives, including 

NAFDPIR officers, and FNS staff, was 

charged with developing a new 

methodology for the distribution of 

FDPIR administrative funds that would 

be fair, objective, and easy to 

understand. 

After conducting data collection and 

analysis for several months, the work 

group completed a preliminary proposal 

in November 2006 and submitted it to 

elected Tribal leaders and State officials 

for written comment. Elected Tribal 

leaders and State officials were also 

invited to attend public meetings held 

in January 2007 at four locations across 

the country in order to discuss the work 

group’s preliminary proposal—Green 

Bay, Wisconsin, Oklahoma City, 

Oklahoma, Rapid City, South Dakota, 

and San Francisco, California. Over 100 

elected Tribal leaders, State officials, 

and FDPIR program officials attended 

the public meetings and/or submitted 

written comments on the preliminary 

proposals. 

The work group met in April 2007 to 

review the written comments and 

transcripts of the four public meetings. 

The comments reflected a diversity of 

opinion among elected Tribal leaders 

and State officials. From April through 

October 2007, the work group diligently 

attempted to address the issues and 

concerns presented in the comments, 

and resolve any differences of opinion 

within the work group as well. The 

work group submitted its final 

recommendations to former FNS 

Administrator in a letter dated October 

19, 2007. The work group was unable to 

reach consensus on a single approach, 

thus it provided three funding 

allocation methodology proposals. All 

of the work group members supported at 

least one of the proposals. 

Under the work group’s first proposal, 

individual State agencies would have 

submitted annual budgets to their 

respective FNS Regional Offices that 

reflected their individual program 

needs. If the total amount requested by 

all State agencies combined exceeded 

the amount of the available funding in 

any fiscal year, the FNS National Office 

would have reduced each Region’s total 

request by an equal percentage. 

Under the work group’s second 

proposal, the FNS National Office 

would have allocated funds to the 

Regional Offices based on three 

weighted factors: Each Region’s share of 

the national participation level averaged 

over the most recent three-year period; 

the current number of programs in each 

Region; and the current number of 

programs in each Region with tailgate 

operations, home delivery, and/or 

multiple warehouses or other issuance 

methods. As a background, tailgate 

operations are mobile distribution 

systems where food packages are 

delivered to a site or sites nearer to 

clients’ residences rather than being 

distributed solely out of a central 

location. Under the work group’s second 

proposal, the FNS Regional Offices 

would have negotiated budgets with 

their State agencies within the amount 

of funds made available. 

Under the work group’s third 

proposal, the FNS National Office 

would have employed a formula to 

determine a basic grant amount that 

each State agency would receive. Each 

State agency would have had the 

opportunity to negotiate with their FNS 

Regional Office for supplemental funds 

to meet their individual needs. Under 

this proposal, 85 percent of the available 

funding each year would have been 

allocated to the State agencies in the 

form of a basic grant. The basic grant 


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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54533 

would have been determined by two 

factors: A fixed base amount that would 

be adjusted annually by an inflation 

factor; and an amount based on each 

State agency’s share of the national 

participation level averaged over the 

most recent three-year period. The FNS 

National Office would have allocated 

the remaining 15 percent of available 

funding to the FNS Regional Offices 

based on each Region’s share of the 

national participation level averaged 

over the most recent three-year period. 

That funding would have been used by 

the FNS Regional Offices to supplement 

the basic grants to the State agencies 

based on individual negotiations. 

C. Pilot Funding Allocation 

Methodology and Comment Solicitation 

In response to the work group’s 

proposals, FNS developed an 

administrative funding allocation 

methodology that was based in large 

part on the work group’s second 

proposal, to be piloted in fiscal year 

2008. The methodology, which has been 

used in FDPIR since fiscal year 2008, 

allocates funding to the extent 

practicable to the Regional Offices based 

on two weighted components: Each 

Region’s share of the total number of 

participants nationally, and each 

Region’s share of the total current 

number of State agencies administering 

the program nationally. Proportionally 

more weight is given to the first 

element, program participation, which 

FNS believes to be a major cost driver 

in the administration of FDPIR. Sixtyfive percent of all administrative funds 

available nationally are allocated to FNS 

Regional Offices in proportion to their 

share of the number of participants 

nationally, averaged over the three 

previous fiscal years. In order to 

recognize the fixed costs common to 

programs of all participation levels, the 

remaining 35 percent of all 

administrative funds available 

nationally are allocated to each FNS 

Regional Office in proportion to its 

share of the total current number of 

State agencies administering the 

program nationally. 

By selecting these two factors, FNS 

intended to design a funding 

methodology that would provide each 

FNS Regional Office with the funding to 

support the operational costs of all of its 

programs, particularly those impacted 

by the number of participants served by 

each State agency. FNS believes that 

this methodology is based on objective 

and current cost drivers and provides a 

reasonable basis for allocating 

administrative funds. 

FNS did not include the factor in the 

work group’s second proposal which 

would have allocated funds based on 

each Region’s share of tailgate 

operations, home deliveries, and/or 

multiple warehouses. FNS recognizes 

that such operations are important 

program components and contribute 

significantly to the cost of administering 

a program. Some State agencies expend 

considerable resources in conducting 

tailgate operations and maintaining 

multiple warehouses. However, this 

factor, as proposed by the work group, 

did not differentiate among the degree 

of service provided. In addition, 

exclusion of this factor was not 

expected to significantly impact 

Regional allocations because 90 percent 

of FDPIR programs have some degree of 

tailgate operations, home delivery, and/ 

or multiple warehouses. 

As a result, FNS opted to disregard 

this factor and provide proportionally 

greater emphasis to the other two factors 

outlined above. FNS believes that this 

approach offers a proper balance by 

providing each FNS Regional Office 

with funding to support the operational 

costs of all of its programs in relation to 

the number of participants served by 

each State agency. 

The decision to pilot a new funding 

methodology in fiscal year 2008 was 

prompted by Congressional action. 

Recognizing the funding inequities in 

FDPIR, Congress appropriated a total of 

$34.7 million in FDPIR administrative 

funding for fiscal year 2008, an increase 

of nearly $7.7 million over the fiscal 

year 2007 level. Report language from 

both the House of Representatives and 

the Senate (House Report 110–258, 

accompanying H.R. 3161, and Senate 

Committee Report 110–134, 

accompanying S. 1859, respectively) 

communicated Congress’ expectation 

that this funding be used ‘‘to address 

current inequities among tribes in the 

allocation of funds * * *.’’ On October 

31, 2007, FNS announced the decision 

to pilot the funding methodology in a 

letter to elected Tribal leaders and State 

officials. In that letter, FNS sought 

comments with regard to the impact of 

the piloted methodology on the 

program. The comments received were 

considered in the development of this 

proposed rule. 

D. Comments Received and Analysis 

FNS received written comments from 

three elected Tribal leaders, one State 

official, and two FDPIR program 

administrators regarding FNS’ decision. 

Five commenters supported the 

methodology as implemented, while 

one commenter opposed the allocation 

methodology. Of the five commenters 

supporting the funding allocation 

methodology, four specifically cited 

sufficient or improved State agency 

funding levels as one of the reasons for 

their support. Three of the five 

commenters cited equity or fairness as 

another factor in their support of the 

methodology. Three supporting 

commenters cited the funding 

methodology’s positive impact on the 

program services provided to 

participants. 

One commenter opposed the manner 

in which administrative funds were 

allocated to the Regional Offices in 

fiscal year 2008. The commenter stated 

three key objections: FNS did not 

consult with the Tribes and State 

agencies prior to pilot implementation; 

the funding methodology implemented 

in fiscal year 2008 was not one of the 

three methodologies recommended by 

the work group; and FNS failed to 

address the work group’s 

recommendation regarding food storage 

and transportation costs for the seven 

independent FDPIR programs serviced 

by the Montana and North Dakota State 

agencies. 

Regarding the commenter’s first 

objection referencing Tribal 

consultation, the work group and FNS 

consulted with elected Tribal leaders 

and State officials on multiple occasions 

prior to the piloting the methodology, as 

outlined above. The decision to pilot the 

methodology was made in response to 

the Congressional expectation that FNS 

address funding inequities with the 

additional funds provided in fiscal year 

2008. The pilot permitted FNS to test 

the new methodology in fiscal year 2008 

in order to meet this Congressional 

expectation, while at the same time 

continuing to consult with elected 

Tribal leaders and State officials. The 

consultation process continues in this 

proposed rulemaking. 

Regarding the commenter’s second 

objection, the commenter was correct in 

asserting that the funding methodology 

implemented was not one of the three 

methodologies recommended by the 

work group. However, as described 

above, the funding methodology which 

was implemented was based in large 

part on one of the work group’s three 

proposals. The pilot included the two 

work group-proposed factors regarding 

the proportionate Regional Office shares 

of national program participation and 

the current number of State 

administering agencies. FNS removed 

the work group-proposed factor which 

would have allocated funds based on 

each Region’s share of tailgate 

operations, home deliveries, and/or 

multiple warehouses, because it did not 

differentiate among the degree of service 

provided and was not expected to 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54534 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

significantly impact Regional 

allocations. 

Regarding the commenter’s final 

objection, currently, the Montana and 

North Dakota State agencies maintain 

central warehouses to receive, store, and 

transport USDA foods to local programs 

that they administer. In addition, these 

two State agencies perform ordering, 

storage, and delivery functions for seven 

programs that are not under the 

administration of the two State agencies. 

Both Montana and North Dakota receive 

FDPIR administrative funds to support 

the Federal share of costs for 

warehousing and transporting USDA 

foods to both the independent programs 

and those programs that they administer 

directly. Because the two State agencies 

are performing functions similar to 

those performed by FNS, the work 

group recommended that Montana’s and 

North Dakota’s warehousing and 

transportation costs for the seven 

independent programs be paid with 

Federal funds appropriated for the 

purchase and delivery of USDA foods 

(i.e., ‘‘food funds’’) rather than 

administrative funds. 

However, funds appropriated for the 

purchase and delivery of USDA foods 

may only be used for food shipments to 

and from a USDA-contracted 

warehouse, or directly to a FDPIR 

program operator. The seven programs 

are too small to regularly take full-truck 

shipments directly from a vendor 

without significantly exceeding 

maximum inventory requirements and 

risking foods going out of condition. 

Therefore, the only way to shift their 

warehousing and delivery costs from 

administrative to food dollars would be 

to require that these independent 

operators be served by a USDAcontracted warehouse rather than the 

Montana and North Dakota warehouses. 

FNS researched this approach and 

found no evidence that the seven 

programs would receive better service 

from the national warehouse. Serving 

these independent programs through a 

USDA-contracted warehouse would 

increase costs significantly. Also, the 

Montana and North Dakota State 

agencies expressed objections in writing 

to this proposal. Since there is no 

evidence indicating that the seven 

independent programs would receive 

better service from the national 

warehouse, this was not considered a 

workable solution. 

As a result of the increase in the 

program appropriation and the pilot 

funding allocation methodology, the 

FNS Mountain Plains Regional Office, 

which provides administrative funds to 

Montana and North Dakota, received a 

sufficient increase in funding in fiscal 

year 2008 to fully meet the budget 

requests of all State agencies. On April 

22, 2008, the Director, FNS Food 

Distribution Division advised the 

Montana and North Dakota State 

agencies and the affected FDPIR 

program operators that FNS did not 

intend to alter current warehousing and 

delivery arrangements for the seven 

independent programs served by 

Montana and North Dakota. They were 

also advised that the FNS National 

Office will work with the Mountain 

Plains Regional Office to ensure that 

future administrative funding needs are 

met. 

E. Proposed Regulatory Revisions 

Based on the comments submitted on 

the pilot implementation of the funding 

methodology, FNS is proposing 

revisions to Federal regulations at 7 CFR 

253.11 to clarify existing program 

requirements relative to the allocation of 

appropriated FDPIR administrative 

funds to the FNS Regional Offices, and 

the further allocation of such funds to 

State agencies. FNS is also proposing 

revisions to 7 CFR 253.11 in order to 

make clear State agency administrative 

funding matching requirements. 

Additional guidance is contained in 

FNS Instruction 700–1, Rev. 2, FNS 

Instruction 716–4, Rev. 1, and FNS 

Handbook 501. 

First, FNS proposes to amend 7 CFR 

253.11 by revising the title of that 

section to read ‘‘Administrative funds’’ 

rather than ‘‘Administrative funds for 

State agencies.’’ This proposed revision 

would provide greater flexibility, 

permitting further explanation of the 

FNS National Office administrative 

funding allocations to FNS Regional 

Offices. This revision is necessary to 

more clearly detail the funding 

allocation process. 

As an overview, this rule proposes to 

amend 7 CFR 253.11(a) by removing the 

current regulatory language from that 

section, and replacing it with language 

specific to how administrative funds are 

allocated to FNS Regional Offices. This 

rule further proposes to redesignate 

paragraphs (b) through (h) of current 7 

CFR 253.11 as paragraphs (d) through 

(j). Applicable provisions contained in 

current 7 CFR 253.11(a) would be 

rewritten in plain language and set out 

in the newly designated and proposed 

paragraphs (b) and (c). Additional 

information reflecting current program 

requirements would be added to newly 

designated paragraph (c) of this 

proposed section as well. 

In new section 253.11(a), we are 

proposing to clarify that administrative 

funds would be allocated to the FNS 

Regional Offices in the following 

manner: Sixty-five percent of all 

administrative funds available 

nationally would be allocated to each 

FNS Regional Office in proportion to its 

share of the number of participants 

nationally, averaged over the three 

previous fiscal years; and thirty-five 

percent of all administrative funds 

available nationally would be allocated 

to each FNS Regional Office in 

proportion to its share of the total 

current number of State agencies 

administering the program nationally. 

As an outcome of the pilot 

implementation, FNS identified the 

need to incorporate regulatory language 

to ensure that the funding methodology 

does not have undue negative impact on 

individual FDPIR State agencies. FNS 

recognized that funding must be made 

available to support participation of 

new State agencies for which prior 

participation data is not available. Based 

on State agency total approved budgets, 

FNS also recognized the need to ensure 

that funding not needed by one FNS 

Regional Office could be distributed to 

other FNS Regional Offices. Finally, 

FNS recognized that some flexibility is 

required within the funding allocation 

methodology described above in order 

for it to meet 75 percent of State agency 

administrative costs approved by the 

FNS Regional Offices, should funding 

levels permit. Therefore, this proposed 

rule would permit the FNS National 

Office to allocate administrative funds 

to the FNS Regional Offices based on 

the proportionate shares of national 

program participation and the current 

number of State agencies administering 

the program, ‘‘to the extent practicable 

* * *.’’ This language would permit 

FNS some limited flexibility to meet 

individual State agency administrative 

funding needs not reflected under the 

two weighted factors. However, similar 

to current practice, the FNS National 

Office would allocate the vast majority 

of all administrative funds to the FNS 

Regional Offices based on each Region’s 

proportionate shares of national 

program participation and the current 

number of State agencies administering 

the program. 

Regarding the current requirement at 

7 CFR 253.11(a) that annual budget 

submissions and revisions must be 

approved by FNS, we propose to 

relocate this requirement to the new 

proposed section 253.11(b) with the 

clarification that the budget request 

must be sent to the FNS Regional Office 

for approval. This proposed requirement 

is consistent with FNS Instruction 700– 

1, Rev. 2, which gives each FNS 

Regional Administrator the authority to 

review State agency budget 

submissions. The current provision at 7 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54535 

CFR 253.11(a) requiring State agencies 

to submit only those administrative 

costs which are allowable under 7 CFR 

part 277 would be relocated to proposed 

section 253.11(b) as well. This 

requirement is currently contained in 

FNS Instruction 716–4, Rev. 1, and FNS 

Handbook 501. Finally, the current 

provision at 7 CFR 253.11(a) which 

specifies that, within funding 

limitations, FNS provides State agencies 

with administrative funds necessary to 

meet 75 percent of approved 

administrative costs would be revised in 

plain language and relocated to 

proposed section 253.11(b), with the 

clarification that FNS Regional Offices 

provide the administrative funds to 

State agencies. This reflects current 

program practice. 

The newly designated section 

253.11(c) would set forth the State 

agency matching requirements. 

Paragraph (c)(1) of this proposed section 

would specify that the State agency 

matching requirement is 25 percent of 

approved administrative costs, and that 

both cash and non-cash contributions 

may be used to meet the matching 

requirement. This is currently required 

via FNS Instruction 716–4, Rev. 1. For 

the sake of clarity, paragraph (c)(1) of 

this proposed section would list the 

criteria for allowable cash and non-cash 

contributions, similar to what is 

currently provided in 7 CFR part 277. 

The current provision at 7 CFR 

253.11(a) regarding requests for Federal 

matching rates that exceed 75 percent 

and compelling justification would be 

rewritten in plain language and 

relocated to the newly designated 7 CFR 

253.11(c)(2). In paragraph (c)(2) of this 

proposed section, consistent with FNS 

Instruction 716–4, Rev. 1, and FNS 

Handbook 501, we require the State 

agency to submit a summary statement 

and supporting financial documents to 

the FNS Regional Office when providing 

compelling justification in its budget 

proposal. Furthermore, we propose to 

add a provision which gives the FNS 

Regional Office the discretion to provide 

additional administrative funds beyond 

75 percent. This is consistent with 

current program practice, and the 

Regional Office authority to approve 

State agency budget requests per 

proposed section 253.11(b). Finally, the 

types of acceptable compelling 

justification provided in current 7 CFR 

253.11(a) and FNS Instruction 716–4, 

Rev. 1, would be specified in paragraph 

(c)(2) of this proposed section. Per 

proposed paragraph (c)(2) of this 

section, compelling justification may 

include but would not be limited to: the 

need for additional administrative 

funding for startup costs during the first 

year of program operation, or the need 

to prevent a reduction in the level of 

necessary and reasonable program 

services provided. 

List of Subjects in 7 CFR Part 253 

Administrative practice and 

procedure, Food assistance programs, 

Grant programs, Social programs, 

Indians, Reporting and recordkeeping 

requirements, Surplus agricultural 

commodities. 

Accordingly, 7 CFR part 253 is 

proposed to be amended as follows: 

PART 253—ADMINISTRATION OF THE 

FOOD DISTRIBUTION PROGRAM FOR 

HOUSEHOLDS ON INDIAN 

RESERVATIONS 

1. The authority citation for 7 CFR 

part 253 continues to read as follows: 

Authority: 91 Stat. 958 (7 U.S.C. 2011– 

2036). 

2. In § 253.11: 

a. Revise the heading of this section; 

b. Remove paragraph (a); 

c. Redesignate paragraphs (b) through 

(h) as paragraphs (d) through (j); and 

d. Add new paragraphs (a) through 

(c). 

The revisions and additions read as 

follows: 

§ 253.11 Administrative funds. 

(a) Allocation of administrative funds 

to FNS Regional Offices. Each fiscal 

year, after enactment of a program 

appropriation for the full fiscal year and 

apportionment of funds by the Office of 

Management and Budget, administrative 

funds will be allocated to each FNS 

Regional Office for further allocation to 

State agencies. To the extent practicable, 

administrative funds will be allocated to 

FNS Regional Offices in the following 

manner: 

(1) 65 percent of all administrative 

funds available nationally will be 

allocated to each FNS Regional Office in 

proportion to its share of the number of 

participants nationally, averaged over 

the three previous fiscal years; and 

(2) 35 percent of all administrative 

funds available nationally will be 

allocated to each FNS Regional Office in 

proportion to its share of the total 

current number of State agencies 

administering the program nationally. 

(b) Allocation of administrative funds 

to State agencies. Prior to receiving 

administrative funds, State agencies 

must submit a proposed budget 

reflecting planned administrative costs 

to the appropriate FNS Regional Office 

for approval. Planned administrative 

costs must be allowable under part 277 

of this chapter. To the extent that 

funding levels permit, the FNS Regional 

Office provides each State agency 

administrative funds necessary to cover 

75 percent of approved administrative 

costs. 

(c) State agency matching 

requirement. 

(1) Unless Federal administrative 

funding is approved at a rate higher 

than 75 percent in accordance with 

paragraph (c)(2) of this section, each 

State agency must contribute 25 percent 

of its total approved administrative 

costs. Cash or non-cash contributions, 

including third party in-kind 

contributions, may be used to meet the 

State agency matching requirement. To 

be considered allowable towards 

meeting this requirement, both cash and 

non-cash contributions must meet the 

criteria established under Part 277 of 

this chapter. State agency contributions 

must: 

(i) Be verifiable; 

(ii) Not be contributed for another 

federally-assisted program, unless 

authorized by Federal legislation; 

(iii) Be necessary and reasonable to 

accomplish program objectives; 

(iv) Be allowable under part 277 of 

this chapter; 

(v) Not be paid by the Federal 

Government under another assistance 

agreement unless authorized under the 

other agreement and its subject laws and 

regulations; and 

(vi) Be included in the approved 

budget. 

(2) The State agency may request a 

waiver to reduce its matching 

requirement below 25 percent. In its 

proposed budget, the State agency must 

submit compelling justification to the 

appropriate FNS Regional Office that it 

is unable to meet the 25 percent 

matching rate and that additional 

administrative funds are necessary for 

the effective operation of the program. 

The FNS Regional Office may, at its 

discretion, provide additional 

administrative funds beyond 75 percent 

of approved administrative costs to a 

State agency that provides compelling 

justification. In its compelling 

justification submission, the State 

agency must include a summary 

statement and recent financial 

documents, in accordance with FNS 

instructions. Compelling justification 

may include but is not limited to: 

(i) The need for additional 

administrative funding for startup costs 

during the first year of program 

operation; or 

(ii) The need to prevent a reduction in 

the level of necessary and reasonable 

program services provided. 

* * * * * 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54536 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

Dated: August 31, 2010. 

Jeffrey Tribiano, 

Acting Administrator, Food and Nutrition 

Service. 

[FR Doc. 2010–22247 Filed 9–7–10; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2010–0852; Directorate 

Identifier 2010–NM–005–AD] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A330–200 and –300 and A340–200 and 

–300 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for the 

products listed above that would 

supersede an existing AD. This 

proposed AD results from mandatory 

continuing airworthiness information 

(MCAI) originated by an aviation 

authority of another country to identify 

and correct an unsafe condition on an 

aviation product. The MCAI describes 

the unsafe condition as: 

A debonding area was detected on the RH 

[right-hand] elevator of an A340 in-service 

aeroplane during a scheduled maintenance 

task inspection. 

Investigation has revealed that this 

debonding may have been caused by water 

ingress and, if not detected and corrected, 

might compromise the structural integrity of 

the elevators [and could result in reduced 

controllability of the airplane]. 

The proposed AD would require 

actions that are intended to address the 

unsafe condition described in the MCAI. 

DATES: We must receive comments on 

this proposed AD by October 25, 2010. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–40, 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

For service information identified in 

this proposed AD, contact Airbus SAS— 

Airworthiness Office—EAL, 1 Rond 

Point Maurice Bellonte, 31707 Blagnac 

Cedex, France; telephone +33 5 61 93 36 

96; fax +33 5 61 93 45 80; e-mail 

airworthiness.A330-A340@airbus.com; 

Internet http://www.airbus.com. You 

may review copies of the referenced 

service information at the FAA, 

Transport Airplane Directorate, 1601 

Lind Avenue, SW., Renton, Washington. 

For information on the availability of 

this material at the FAA, call 425–227– 

1221. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Operations office between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The AD docket 

contains this proposed AD, the 

regulatory evaluation, any comments 

received, and other information. The 

street address for the Docket Operations 

office (telephone (800) 647–5527) is in 

the ADDRESSES section. Comments will 

be available in the AD docket shortly 

after receipt. 

FOR FURTHER INFORMATION CONTACT: 

Vladimir Ulyanov, Aerospace Engineer, 

International Branch, ANM–116, 

Transport Airplane Directorate, FAA, 

1601 Lind Avenue, SW., Renton, 

Washington 98057–3356; telephone 

(425) 227–1138; fax (425) 227–1149. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to send any written 

relevant data, views, or arguments about 

this proposed AD. Send your comments 

to an address listed under the 

ADDRESSES section. Include ‘‘Docket No. 

FAA–2010–0852; Directorate Identifier 

2010–NM–005–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this proposed AD. We will 

consider all comments received by the 

closing date and may amend this 

proposed AD based on those comments. 

We have lengthened the 30-day 

comment period for proposed ADs that 

address MCAI originated by aviation 

authorities of other countries to provide 

adequate time for interested parties to 

submit comments. The comment period 

for these proposed ADs is now typically 

45 days, which is consistent with the 

comment period for domestic transport 

ADs. 

We will post all comments we 

receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. We 

will also post a report summarizing each 

substantive verbal contact we receive 

about this proposed AD. 

Discussion 

On September 29, 2005, we issued AD 

2005–20–32, Amendment 39–14329 (70 

FR 59263, October 12, 2005). That AD 

required actions intended to address an 

unsafe condition on the products listed 

above. 

Since we issued AD 2005–20–32, we 

have determined that the existing 

inspection of the upper and lower 

elevator skin panels needs to be a 

repetitive inspection in order to 

adequately address the identified unsafe 

condition. We have also added airplane 

models to the applicability of this 

proposed AD, and we have identified 

additional affected elevators in Table 1 

of this proposed AD. The European 

Aviation Safety Agency (EASA), which 

is the Technical Agent for the Member 

States of the European Community, has 

issued EASA Airworthiness Directive 

2009–0255, dated December 1, 2009 

(referred to after this as ‘‘the MCAI’’), to 

correct an unsafe condition for the 

specified products. The MCAI states: 

A debonding area was detected on the RH 

[right-hand] elevator of an A340 in-service 

aeroplane during a scheduled maintenance 

task inspection. 

Investigation has revealed that this 

debonding may have been caused by water 

ingress and, if not detected and corrected, 

might compromise the structural integrity of 

the elevators [and could result in reduced 

controllability of the airplane]. 

DGAC [Direction Ge ́ne ́rale de l’Aviation 

Civile] France AD F–2004–118 R1 (EASA 

approval N. 2004–10125) required a one-time 

inspection of elevators skin panels installed 

on MSN up to 091, to detect potential liquid 

ingress and repair as necessary, in 

accordance with Airbus inspection service 

bulletins (ISB) A330–55–3032 and A340–55– 

4029. 

Following the AD issuance, further inservice experience has shown that in order to 

ensure the structural integrity of all A330/ 

A340 elevators skin panels with sandwich 

construction (excluding A340–500/–600), it 

is necessary to perform the same elevators 

panels inspection and to repair as necessary, 

but in a repetitive manner. 

The aim of this AD, which supersedes 

DGAC France AD F–2004–118 R1, is to 

require this additional inspection program in 

order to maintain the structural integrity of 

the elevators. 

The required actions include repetitive 

special detailed inspections and 

repetitive re-protection of the elevator 

assembly. The special detailed 

inspections consist of the following 

actions: 


srobinson on DSKHWCL6B1PROD with PROPOSALS