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Rules and Regulations Federal Register

5877 

Vol. 75, No. 24 

Friday, February 5, 2010 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 247 

[FNS–2009–0015] 

RIN 0584–AD93 

Commodity Supplemental Food 

Program (CSFP): Amendment 

Removing Priority Given to Women, 

Infants, and Children Before the 

Elderly in Program Participation 

AGENCY: Food and Nutrition Service, 

USDA (FNS) 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

regulations for the Commodity 

Supplemental Food Program (CSFP) by 

removing the priority given to women, 

infants, and children before the elderly 

in program participation, in accordance 

with the amendment made by the Food, 

Conservation, and Energy Act of 2008 

(the 2008 Farm Bill). As a result of this 

amendment, local agencies are no longer 

required to prioritize benefit issuance 

based on population group. All CSFP 

applicants may be treated equally when 

caseload slots become available, 

provided all eligibility requirements are 

met. 

DATES: Effective Date: This rule will 

become effective on March 8, 2010, 

without further notice. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Waters, Program Analyst, at 

Policy Branch, Food Distribution 

Division, Food and Nutrition Service, 

U.S. Department of Agriculture, Room 

500, 3101 Park Center Drive, 

Alexandria, Virginia 22302–1594 or by 

telephone at (703) 305–2662. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Food and Nutrition (FNS) is 

amending CSFP regulations at 7 CFR 

part 247 to incorporate the requirements 

of the Food, Conservation, and Energy 

Act of 2008, Public Law 110–246 (the 

2008 Farm Bill). Before the 2008 Farm 

Bill, the Agriculture and Consumer 

Protection Act of 1973, 7 U.S.C. 612c 

note, required that low-income elderly 

persons could only be served by CSFP 

if funds were available after all women, 

infants, and children were first served. 

Section 4221 of the 2008 Farm Bill 

eliminated the priority status given to 

women, infants, and children effective 

October 1, 2008. Following enactment of 

the 2008 Farm Bill, on July 16, 2008, 

FNS issued a policy memorandum 

implementing Section 4221, which 

became effective on October 1, 2008. As 

a result of the memorandum, FNS has 

not required local agencies to prioritize 

women, infant, and children applicants 

over elderly applicants for participation 

in CSFP since the effective date. 

The proportion of elderly individuals 

participating in CSFP has increased 

significantly in a relatively short 

amount of time. In fiscal year (FY) 1998, 

about two-thirds, or 66 percent, of all 

CSFP participants were elderly. Elderly 

participation increased to 93 percent by 

FY 2008. During the same time period, 

Special Supplemental Nutrition 

Program for Women, Infants, and 

Children (WIC) participation increased 

by over 1.3 million. The change in the 

CSFP participant population is due 

primarily to the prevalence of the WIC 

program. Because of greater accessibility 

of health care and nutrition education 

where it is available, WIC is more 

appropriate for women, infants, and 

children who are categorically eligible. 

The 2008 Farm Bill provision 

recognizes the participation trend and 

the fact that most women, infants, and 

children who are eligible to participate 

in CSFP could alternatively participate 

in WIC, which provides nutrition 

services to eligible pregnant, postpartum and breastfeeding women, 

infants, and children up to the age of 

five, while low-income elderly do not 

enjoy a choice between the two 

programs. WIC operates in all areas that 

CSFP serves and provides food, as well 

as nutrition education and health 

referrals. Furthermore, WIC has the 

capability to serve all CSFP participants 

who are eligible for WIC. 

II. Discussion of the Final Rule 

Provisions 

A. Applicants Exceed Caseload Levels, 7 

CFR Part 247.11 

In this final rule, we remove the 

requirement in 7 CFR 247.11(a) that 

local agencies identify the population 

group of each CSFP applicant on its 

waiting list. This rule provides that 

CSFP local agencies have the discretion 

to continue to collect this information, 

if needed for food package planning 

purposes. In 7 CFR 247.11(b), we 

remove the requirement that local 

agencies provide benefits to eligible 

individuals on the CSFP waiting list in 

order of priority by specified population 

group. The 2008 Farm Bill removed the 

priority given to women, infants, and 

children, thus eliminating the need for 

this regulatory provision. In the revised 

7 CFR 247.11(b), a local agency must 

certify eligible individuals consistent 

with civil rights requirements at 7 CFR 

247.37. Furthermore, we specify in the 

revised 7 CFR 247.11(b) that local 

agencies may certify eligible individuals 

from the waiting list based on the date 

of their application, on a first-come, 

first-served basis. 

B. Certification Period, 7 CFR Part 

247.16 

In 7 CFR 247.16(a)(2)(iii), we remove 

the requirement that State agencies may 

only allow local agencies to extend the 

certification period for elderly persons 

without a formal review only if no 

eligible women, infants, or children are 

waiting to be served. However, the local 

agency must continue to verify the 

elderly person’s address and continued 

interest in receiving CSFP benefits, and 

the local agency must have sufficient 

reason to believe the person still meets 

income eligibility standards. This 

change brings CSFP regulations into 

compliance with Section 4221 of the 

2008 Farm Bill. 

C. Caseload Assignment, 7 CFR Part 

247.21 

In the introductory text to 7 CFR 

247.21(a)(2), for additional caseload 

requests from State agencies, we 

eliminate the FNS priority consideration 

given to requests to increase service to 

women, infants, and children over 

requests to increase service to the 

elderly. In 7 CFR 247.21(a)(2)(iii)(A), we 

remove previous year program 

participation of women, infants, and 

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5878 Federal Register / Vol. 75, No. 24 / Friday, February 5, 2010 / Rules and Regulations 

children, and the elderly in a State as a 

factor of consideration for determining 

the amount of additional caseload States 

should receive. Likewise, in 7 CFR 

247.21(a)(3) we eliminate program 

participant categories as a factor of 

consideration in the FNS assignment of 

caseload to State agencies which have 

approved State Plans and begin to 

participate in CSFP. These three 

changes bring CSFP regulations into 

compliance with Section 4221 of the 

2008 Farm Bill. 

III. Procedural Matters 

A. Executive Order 12866 

This rule has been determined to be 

not significant and was not reviewed by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

B. Regulatory Flexibility Act 

This rule has been reviewed with 

regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). It has been certified that this 

action will not have a significant impact 

on a substantial number of small 

entities. Although State and local 

agencies administering CSFP will be 

affected by this rulemaking, the 

economic effect will not be significant. 

C. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under Section 202 of the UMRA, 

FNS generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may result 

in expenditures to State, local, or tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. When such a statement 

is needed for a rule, Section 205 of the 

UMRA generally requires FNS to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, more costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. This rule contains no 

Federal mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, and tribal governments or 

the private sector of $100 million or 

more in any one year. This rule is, 

therefore, not subject to the 

requirements of Sections 202 and 205 of 

the UMRA. 

D. Executive Order 12372 

CSFP is listed in the Catalog of 

Federal Domestic Assistance under 

10.565. For the reasons set forth in the 

final rule in 7 CFR part 3015, Subpart 

V and related Notice (48 FR 29114, June 

24, 1983), the donation of foods in such 

programs is included in the scope of 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. 

E. Federalism Summary Impact 

Statement 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have federalism implications, agencies 

are directed to provide a statement for 

inclusion in the preamble to the 

regulations describing the agency’s 

considerations in terms of the three 

categories called for under Section 

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

FNS has considered the impact of this 

rule on State and local governments and 

has determined that this rule does not 

have federalism implications. 

F. Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is intended to have a 

preemptive effect with respect to any 

State or local laws, regulations, or 

policies which conflict with its 

provisions or which would otherwise 

impede its full implementation. This 

rule is not intended to have retroactive 

effect. Prior to any judicial challenge to 

the provisions of this rule or the 

application of its provisions, all 

applicable administrative procedures 

must be exhausted. 

G. Civil Rights Impact Analysis (CRIA) 

The Office of Civil Rights (OCR) has 

assessed civil rights implications and 

impacts of eligibility criteria, methods 

of administration, and other 

requirements associated with this rule, 

including strategies to eliminate, 

alleviate, or mitigate adverse and any 

disproportionate civil rights impacts 

identified in the CRIA. Based on a 

thorough review of this regulation, OCR 

has determined: 

• This change will bring CSFP 

regulations into compliance with the 

2008 Farm Bill; 

• It is important to closely monitor 

changes in CSFP participation rates; 

• CSFP policy has directed local 

agencies to refer women, infants, and 

children to WIC or other appropriate 

programs; and 

• OCR will incorporate 

implementation of this rule change into 

Civil Rights Compliance Reviews to 

assess longitudinal trends. 

H. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

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

1320) requires that OMB approve all 

collections of information by a Federal 

agency from the public before they can 

be implemented. Respondents are not 

required to respond to any collection of 

information unless it displays a current 

valid OMB control number. This rule 

does not contain any new information 

collection requirements that are subject 

to review and approval by OMB. 

I. E-Government Act Compliance 

FNS is committed to compliance with 

the E-Government Act to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

J. Good Cause Determination 

This action is being finalized without 

prior notice or public comment under 

authority of 5 U.S.C. 553(b)(3). Section 

4221 of the 2008 Farm Bill amends 

Section 5 of the Agriculture and 

Consumer Protection Act of 1973 

(7 U.S.C. 612c note, 87 Stat. 249) by 

eliminating the requirement that all 

eligible women, infants, and children 

are to be served before elderly persons 

in CSFP. The 2008 Farm Bill language 

is clear and mandatory, leaving no room 

for discretion. CSFP regulations are 

therefore inconsistent with Section 5 of 

the Agriculture and Consumer 

Protection Act of 1973. Thus, the 

Department has determined in 

accordance with 5 U.S.C. 553(b) that 

Notice of Proposed Rulemaking and 

Opportunity for Public Comments is 

unnecessary and contrary to the public 

interest and, in accordance with 5 

U.S.C. 553(d), finds that good cause 

exists for making this action effective 

without prior public comment. 

List of Subjects in 7 CFR Part 247 

Education, Food assistance programs, 

Grant programs—health, Grant 

programs—social programs, Indians, 

Infants and children, Investigations, 

Maternal and child health, Nutrition, 

Reporting and recordkeeping 

requirements, Surplus agricultural 

commodities, Women. 

■ Accordingly, 7 CFR part 247 is 

amended as follows: 

PART 247—COMMODITY 

SUPPLEMENTAL FOOD PROGRAM 

1. The authority citation for 7 CFR 

part 247 is revised to read as follows: 

Authority: Sec. 5, Pub. L. 93–86, 87 Stat. 

249, as added by Sec. 1304(b)(2), Pub. L. 95– 

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Federal Register / Vol. 75, No. 24 / Friday, February 5, 2010 / Rules and Regulations 5879 

113, 91 Stat. 980 (7 U.S.C. 612c note); sec. 

1335, Pub. L. 97–98, 95 Stat. 1293 (7 U.S.C. 

612c note); sec. 209, Pub. L. 98–8, 97 Stat. 

35 (7 U.S.C. 612c note); sec. 2(8), Pub. L. 98– 

92, 97 Stat. 611 (7 U.S.C. 612c note); sec. 

1562, Pub. L. 99–198, 99 Stat. 1590 (7 U.S.C. 

612c note); sec. 101(k), Pub. L. 100–202; sec. 

1771(a), Pub. L. 101–624, 101 Stat. 3806 (7 

U.S.C. 612c note); sec 402(a), Pub. L. 104– 

127, 110 Stat. 1028 (7 U.S.C. 612c note); sec. 

4201, Pub. L. 107–171, 116 Stat. 134 (7 U.S.C. 

7901 note); sec. 4221, Pub. L. 110–246, 122 

Stat. 1886 (7 U.S.C. 612c note). 

2. Section 247.11 is amended by 

revising the second sentence in 

paragraph (a) and by revising paragraph 

(b) to read as follows: 

§ 247.11 Applicants exceed caseload 

levels. 

(a) * * * In establishing the waiting 

list, the local agency must include the 

date of application and information 

necessary to allow the local agency to 

contact the applicant when caseload 

space becomes available. * * * 

(b) What are the requirements for 

serving individuals on the waiting list 

once caseload slots become available? 

The local agency must certify eligible 

individuals from the waiting list 

consistent with civil rights requirements 

at § 247.37. For example, a local agency 

may certify eligible individuals from the 

waiting list based on the date the 

application was received on a firstcome, first-served basis. 

§ 247.16 [Amended] 

■ 3. Section 247.16 is amended in 

paragraph (a)(2)(i) by adding the word 

‘‘and’’ after the semi-colon; paragraph 

(a)(2)(ii) by removing ‘‘; and’’, and 

adding a period at the end of the 

sentence; and by removing paragraph 

(a)(2)(iii). 

■ 4. In § 247.21: 

■ a. Revise the introductory text of 

paragraph (a)(2); 

■ b. Remove paragraph (a)(2)(iii)(A); 

■ c. Redesignate paragraphs (a)(2)(iii)(B) 

through (a)(2)(iii)(D) as paragraphs 

(a)(2)(iii)(A) through (a)(2)(iii)(C), 

respectively; and 

■ d. Remove the second sentence of 

paragraph (a)(3). 

The revision reads as follows: 

§ 247.21 Caseload assignment. 

(a) * * * 

(2) Additional caseload. Each 

participating State agency may request 

additional caseload to increase program 

participation. Eligibility for and 

assignment of additional caseload are 

determined in the following manner: 

* * * * * 

Dated: January 27, 2010. 

Julia Paradis, 

Administrator, Food, Nutrition, and 

Consumer Services. 

[FR Doc. 2010–2594 Filed 2–4–10; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 925 and 944 

[Doc. No. AMS–FV–06–0184; FV03–925–1 

FIR] 

Grapes Grown in a Designated Area of 

Southeastern California and Imported 

Table Grapes; Change in Regulatory 

Periods 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule revising the regulatory period 

when minimum grade, size, quality, and 

maturity requirements apply to 

southeastern California grapes under 

Marketing Order No. 925 (order), and to 

imported grapes under the table grape 

import regulation, from April 20 

through August 15 of each year to April 

10 through July 10 of each year. The 

order regulates the handling of grapes 

grown in a designated area of 

southeastern California and is 

administered locally by the California 

Desert Grape Administrative Committee 

(Committee). The change to the 

regulatory period beginning date is 

needed to help ensure that imported 

table grapes marketed in competition 

with domestic grapes are subject to the 

grade, size, quality, and maturity 

requirements of the order. Section 8e of 

the Agricultural Marketing Agreement 

Act of 1937 (Act) provides authority for 

such change. The change to the 

regulatory period ending date is needed 

to realign the regulatory period with 

current shipping trends for grapes in the 

order’s production area. This rule also 

continues in effect the action that 

clarified the maturity (soluble solids) 

requirements for southeastern California 

and imported Flame Seedless variety 

grapes. 

DATES: Effective Date: February 8, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Barry Broadbent, Northwest Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1220 

SW. Third Avenue, Suite 385, Portland, 

Oregon 97204; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or E-mail: 

Barry.Broadbent@ams.usda.gov; or Kurt 

Kimmel, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 2202 Monterey Street, 

Suite 102B, Fresno, California 93721; 

Telephone: (559) 487–5901, Fax: (559) 

487–5906, or E-mail: 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 925 (7 CFR part 925), 

regulating the handling of grapes grown 

in a designated area of southeastern 

California, hereinafter referred to as the 

‘‘order.’’ The order is effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

This rule is also issued under section 

8e of the Act, which provides that 

whenever certain specified 

commodities, including table grapes, are 

regulated under a Federal marketing 

order, imports of these commodities 

into the United States are prohibited 

unless they meet the same or 

comparable grade, size, quality, or 

maturity requirements as those in effect 

for the domestically produced 

commodities. The table grape import 

regulation is specified in § 944.503 (7 

CFR part 944.503). 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This action is not intended to 

have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

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