# Food Distribution Programs: Improving Access and Parity

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-17467

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 14, 2023
- **Citation:** 88 FR 54908

## Text

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 247, 250, 251, 253, and 254
[FNS-2023-0026]
RIN 0584-AE92
Food Distribution Programs: Improving Access and Parity

AGENCY:

Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA)

ACTION:

Proposed rule.

SUMMARY:

The Food and Nutrition Service is proposing to amend its regulations to make access and parity improvements within several food distribution programs, including the Commodity Supplemental Food Program (CSFP), the Food Distribution Program on Indian Reservations (FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods disaster response. The proposed provisions use plain language to make them easier to read and understand.

DATES:

Written comments must be received on or before October 13, 2023 to be assured of consideration.

ADDRESSES:

The Food and Nutrition Service, USDA, invites interested persons to submit written comments on this proposed rule. Comments may be submitted in writing by one of the following methods:

•
Federal eRulemaking Portal:
Go to
http://www.regulations.gov.
Follow the online instructions for submitting comments.

•
Regular U.S. Mail:
Food Distribution Policy Branch, Policy Division, Food and Nutrition Service, P.O. Box 2885, Fairfax, Virginia 22031-0885.

•
Overnight, Courier, or Hand Delivery:
Gregory Walton, Supplemental Nutrition and Safety Programs, Food Distribution Policy Branch, Food and Nutrition Service, 1320 Braddock Place, 3rd Floor, Alexandria, Virginia 22314.

• All written comments submitted in response to this proposed 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 written comments publicly available on the internet via
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Gregory Walton, Program Analyst, Food Distribution Policy Branch, Supplemental Nutrition and Safety Programs, U.S. Department of Agriculture's Food and Nutrition Service, 1320 Braddock Place, 3rd Floor, Alexandria, Virginia 22314 at 703-305-2746 or
Gregory.Walton@usda.gov.

SUPPLEMENTARY INFORMATION:

Section 1: Background and Discussion of the Proposed Rule

Background

The Department of Agriculture's (the Department or USDA) Food and Nutrition Service (FNS) works to end hunger and obesity through the administration of 16 federal nutrition assistance programs. The Coronavirus Disease 2019 (COVID-19) pandemic had devastating impacts on our nation's food systems and economy, forcing millions of Americans to turn to the country's emergency food network for aid. Through the provision of food and administrative funding, USDA FNS food distribution programs have assisted this network—made up of thousands of food banks, food pantries, Tribal governments and other community partners—in feeding those in need.

As the pandemic subsides, FNS has a key opportunity to apply lessons learned to improve food distribution programs, including through regulatory updates. These proposed changes are intended to help ensure that eligible populations are able to more easily access the programs and streamline requirements for program operators.

This proposed rulemaking would amend regulatory provisions at 7 CFR 247, 250, 251, 253, and 254 to make access and parity improvements within several food distribution programs, including the Commodity Supplemental Food Program (CSFP), the Food Distribution Program on Indian Reservations (FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods disaster response. The proposed changes are discussed in detail below.

Discussion of the Rule's Proposed Provisions

a. Commodity Supplemental Food Program

Proposed revisions to CSFP regulations at 7 CFR 247 focus on increasing access to the program and standardizing language throughout the part. Program access would be increased by updating income eligibility guidelines for program participants. The update would also improve the readability of CSFP income calculation requirements by removing outdated references to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).

i. Technical Updates to the Entire Part 247

The Department proposes technical updates throughout part 247. The term “elderly” is proposed to be replaced with “participants,” because CSFP is limited to participation by senior adults aged 60 years and above as of February 2020. The Agricultural Act of 2014 (Pub. L. 113-79, the Farm Bill) amended CSFP's eligibility requirements to phase out the participation of women (under 60 years of age), infants, and children in the program, transitioning it to a seniors-only program. The Department recognizes that many Tribal communities recognize elders starting at the age of 55; however, per the Agriculture and Consumer Protection Act of 1973 (Pub. L. 93-86, as amended), which authorizes CSFP, assistance under the Commodity Supplemental Food Program must only be provided to low-income persons aged 60 years and older. In 7 CFR 247.2, the Department proposes removing reference to women, infants, and children receiving CSFP benefits as they are no longer a part of the program. Additionally, the Department proposes replacing the outdated term “commodities” with “USDA Foods.”
1

1
(250.2) Donated foods means foods purchased by USDA for donation in food assistance programs, or for donation to entities assisting eligible persons, in accordance with legislation authorizing such purchase and donation. Donated foods are also referred to as USDA Foods.

ii. Updates to Definitions (§ 247.1)

The Department proposes a new definition for the term “USDA Foods” to replace the outdated definition of “commodities.” The definition of “elderly persons” is proposed to be deleted, since § 247.9(a) specifies that CSFP-eligible individuals must be at least 60 years of age and because the term “elderly persons” is being replaced throughout the part. Finally, the definition of “proxy” is proposed to be updated to exclude a “participant's adult parent,” because children are no longer eligible to participate in CSFP under the Agricultural Act of 2014 (Pub. L. 113-79).

iii. Public Posting of Availability of USDA Foods and State Plans (§ 247.5)

The Department proposes adding a new provision at § 247.5(b)(16), which would require State agencies to make publicly available a list of all CSFP distribution sites, including both local agencies and agencies operating under an agreement with a local agency. At a minimum, the information would be required to be posted on a publicly available internet web page and updated on an annual basis, listing the name, address, and a contact telephone number for each site. State agencies are also encouraged, but not required, to develop tools to aid eligible individuals in accessing the program (
e.g.,
a searchable tool by ZIP code). State agencies may share any online resources they create with other organizations that serve CSFP-eligible individuals. Publicly listing all CSFP distribution sites would increase access to the program by helping direct potential participants to their closest distribution site.

The Department also proposes adding a new provision at § 247.5(b)(17), which would require State agencies to make publicly available the State Plan that is currently in use by the State agency on an internet web page. This proposed addition would modernize the current requirement at 7 CFR 247.6(a) that a copy of the State Plan must be kept on file at the State agency for public inspection and allow easier access to State Plans. The Department also proposes amending 7 CFR 247.6(a) to reflect the new requirement that State Plans be posted publicly on internet web pages. See section iv. State Plan Requirement and Flexibility for Identification Verification for more details.

iv. State Plan Requirement and Flexibility for Identification Verification (§ 247.6)

As mentioned above in section iii. Public Posting of Availability of USDA Foods and State Plans, the Department proposes amending § 247.6(a) to reflect that a copy of the current State Plan must be made available on a publicly available internet web page in addition to the existing requirement that a copy be kept on file at the State agency for public inspection. This proposed amendment would modernize the current requirement and allow for easier access to the State Plan by the public.

To maintain program fairness and accountability, the Department also proposes amending § 247.6(c) to require State Plans to include a description of the process State agencies have in place to verify the identity of participants, or their proxies, before receipt of USDA Foods. The proposed process would be subject to approval by FNS. This is consistent with the Department's proposed change at § 247.10 to replace the current federal regulatory requirement at § 247.10(b) that local agencies must require each participant or their proxy to present some form of identification at the time of distribution. The proposed changes would add language that local agencies must have a process in place to verify the identity of participants, in accordance with State agency requirements.

Taken together, the proposed changes would provide CSFP operators flexibility in how they verify the identity of participants or their proxies before distribution of USDA Foods,
i.e.,
using the latest technology. The two proposed provisions would help support State and local agencies in modernizing the program's delivery methods, a change brought on by the unique operational challenges with home deliveries during the COVID-19 pandemic. See “vi. Changes to Identification Check at Distribution (§ 247.10)” for further details.

v. Eligibility Requirements (§ 247.9)

The Department proposes amending § 247.9(c) to increase CSFP's maximum income eligibility guidelines to 150 percent of the U.S. Federal Poverty Guidelines published annually by the U.S. Department of Health and Human Services. This would be an increase from the current limit of 130 percent of the Federal Poverty Guidelines. The proposed increase to the income eligibility guidelines would provide increased access to the program by increasing the program's total eligible population and assist States in meeting their assigned caseloads. Increasing the maximum income eligibility guidelines would help bridge the gap between the number of seniors served and the total eligible caseload population nationwide without adding an administrative burden to applicants and local agencies.

Further, health data indicates that six in ten Americans live with at least one chronic disease, while one in four individuals live with two or more chronic conditions.
2

The prevalence of one or more chronic medical conditions increases with age, indicating that many adults of CSFP-eligible age are likely to live with one or more chronic medical conditions.
3

Additionally, data from the Administration for Community Living indicates that adults over age 65 spend an average of 19 percent of their household income on out-of-pocket healthcare expenditures. In 2014, people ages 65 years and up spent an average of $19,098 per year on health spending, 87 percent higher than the $10,212 for those ages 45-64 and 293 percent higher than the $4,856 for those ages 18-44.
4

Seniors with incomes below 150 percent of the Federal Poverty Income guidelines are significantly more vulnerable to be at nutritional risk. Research from the Food Research and Action Center provides that there are more than 1.3 million food insecure individuals 65 years and older, and another 512,000 with very low food security.
5

Through the proposed increase to the CSFP maximum from 130 percent to 150 percent of the U.S. Federal Poverty Guidelines, the Department recognizes that medical expenditures take up a significant proportion of many seniors' incomes and allows for expanded access for

seniors who spend a significant portion of their incomes on such expenses.

2
Fiscal Year 2022 CSFP Caseload Assignment Memorandum. April 18, 2022.
USDA Food and Nutrition Service.
Accessed 15 December, 2022. Available at internet site:
https://www.fns.usda.gov/csfp/caseload-assignments-2022-caseload-cycle-and-administrative-grants.

3
Fiscal Year 2022 CSFP Caseload Assignment Memorandum. April 18, 2022.
USDA Food and Nutrition Service.
Accessed 15 December, 2022. Available at internet site:
https://www.fns.usda.gov/csfp/caseload-assignments-2022-caseload-cycle-and-administrative-grants.

4

Centers for Medicare and Medicaid Services, Office of the Actuary, National Health Statistics Group. Age and Gender: Health Expenditures by Age and Gender.
Accessed 20 January, 2023. Available at internet site:
https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/Age-and-Gender.

5
Food Research & Action Center. December 2019.
Hunger is a Health Issue for Older Adults: Food Security, Health, and the Federal Nutrition Programs.
Accessed 15 December, 2022. Available at internet site:
https://frac.org/wp-content/uploads/hunger-is-a-health-issue-for-older-adults-1.pdf.

Although the Department considered the addition of a medical deduction for CSFP, the Department believes the proposed increase in the gross income limit for CSFP, without the addition of a medical deduction, supports simplicity and ease in program administration, consistent with current practice. Further, the Department considered the increased burden that a medical deduction would place on program applicants and participants, which could pose a barrier to participation for those who have concerns about sharing health information and/or costs.

The Department seeks public comment on the proposed change to increase CSFP's maximum income eligibility guidelines to 150 percent of the U.S. Federal Poverty Guidelines without the addition of a medical deduction. Additionally, given the discretionary nature of CSFP and the need to target limited resources at individuals most in need, the Department would like to request public comment from CSFP stakeholders regarding whether there is a preference between the current proposal to increase CSFP's maximum income eligibility guidelines to 150 percent of the U.S. Federal Poverty Guidelines, or an alternate level of 185 percent of the U.S. Federal Poverty Guidelines. The Department recognizes that the alternate level of 185 percent of the U.S. Federal Poverty Guidelines would align CSFP with the Senior Farmers' Market Nutrition Program (SFMNP), which provides low-income seniors with access to access to fresh, nutritious, unprepared, locally grown fruits and vegetables, honey, and herbs.

In § 247.9(d), the Department proposes removing references to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). With this change, the income exclusions that previously followed the WIC regulations at 7 CFR 246.7 are proposed to be updated to be CSFP-specific by directly listing such exclusions.

Finally, the Department seeks public comment regarding potential future changes to eligibility requirements to allow CSFP applicants to demonstrate eligibility for CSFP via participation in another Federal means-tested program with income limits at or under the CSFP threshold. Per 7 CFR 247.9 Eligibility Requirements, CSFP applicants must meet the household income limit to be eligible for the program. Currently, State agencies have the option of allowing self-declaration of income or requiring proof of income to demonstrate eligibility. The Department is considering a future change to allow State agencies to accept participation in Federal programs such as the Supplemental Nutrition Assistance Program (SNAP), the Food Distribution Program on Indian Reservations (FDPIR), and Supplemental Security Income (SSI) as demonstrating eligibility for CSFP. The Department is seeking feedback from CSFP State agencies, ITOs, and other stakeholders on this proposal, and specifically on the following questions:

1. Are there other Federal programs that you would like USDA to consider as options to demonstrate eligibility for CSFP?

2. Should USDA consider an option for State agencies to have the flexibility to include State means-tested programs to demonstrate eligibility for CSFP?

vi. Changes to Identification Check at Distribution (§ 247.10)

The Department proposes updating the language in § 247.10(b), in conjunction with § 247.6(c), to increase flexibility in local agencies' ability to check the identity of participants or their proxies before distributing USDA Foods. The Department proposes replacing the current federal regulatory requirement at § 247.10(b) that local agencies must require each participant or their proxy to present some form of identification at the time of distribution with the requirement that local agencies must have a process in place to verify the identity of participants, in accordance with State agency requirements. This proposed change would allow local agencies and participants more flexibility in satisfying the requirement and would support State and local agencies in modernizing the program's delivery methods, for example through innovative partnerships with third-party entities, such as entities which deliver food packages directly to participants' homes. The COVID-19 pandemic has presented unique operational challenges with home deliveries. This proposal would allow for flexibility for purposes of verifying receipt of food packages and the identity of applicants. Ultimately, in accordance with State agency requirements, local agencies must verify participants' identities and have a system in place to verify that the USDA Foods are received by the participant for which such foods are intended.

vii. Referral Materials for the Senior Farmers' Market Nutrition Program (§ 247.14)

The Department proposes updating § 247.14(a) with a new paragraph (4) that requires local agencies, where applicable, to share written information and referrals to the SFMNP with applicants, increasing awareness and access to other senior nutrition assistance programs relevant to CSFP participants. Both CSFP and SFMNP work in tandem to serve the low-income senior population and the benefits provided by each program help meet the nutritional needs of seniors at nutritional risk. Adding this information sharing requirement increases access to USDA programs by directly informing potentially eligible individuals of their access to SFMNP, increasing low-income seniors' ability to access fresh, nutritious, unprepared, locally grown fruits, vegetables, honey, and herbs, where applicable. The information sharing requirement may help increase the domestic consumption of nutritious foods and directly support locally-grown foods offered through farmers' markets, roadside stands, and community supported agricultural programs.

viii. Nondiscrimination Statement Update (§ 247.37)

The Department proposes updating § 247.37(a) to advise the public that CSFP must be operated in accordance with the most up-to-date USDA nondiscrimination statement. The current USDA nondiscrimination statement applicable to CSFP prohibits discrimination on the basis of race, color, national origin, sex (including gender identity and sexual orientation), disability, age, or reprisal or retaliation for prior civil rights activity. The proposed change to § 247.37(a) would align the regulations with the nondiscrimination statement if it changes in the future.

b. USDA Foods in Disasters and Situations of Distress

Revisions to USDA Foods disaster response regulations (7 CFR 250.69 and 250.70) focus on clarifying the requirements for the use of USDA Foods in disasters and situations of distress. A disaster refers to a Presidentially declared disaster or emergency, as defined in Section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5179-5180). Situations of distress differ from disasters in that situations of distress are natural catastrophes or other events that do not meet the definition of a

Presidentially declared disaster or emergency, but that, in the determination of the State distributing agency or of FNS, as applicable, warrant the use of USDA Foods to assist survivors of such catastrophe or other event. Examples of situations of distress may include hurricanes, floods, snowstorms, or explosions. USDA Foods were used widely for disaster response during the first year of the COVID-19 pandemic. FNS is applying lessons learned from the pandemic to streamline these provisions.

i. Technical Updates to 250.69 and 250.70

Proposed technical updates to parts 250.69 and 250.70 include replacing the outdated terms “commodities,” “food commodities,” “donated commodities,” and “donated foods,” with “USDA Foods” to further align with the definition of “USDA Foods” in 7 CFR 250. The term commodities is no longer commonly used and has been replaced by “USDA Foods.” Proposed technical updates would include reorganization for clarity as well.

ii. Removal of Prohibition on Simultaneous Provision of USDA [Donated] Foods and D-SNAP During a Disaster (§ 250.69(c)(2))

The Department proposes removing language at § 250.69(c)(2) which prohibits the simultaneous provision of USDA Foods and Disaster Supplemental Nutrition Assistance Program (D-SNAP) benefits during a disaster. Receipt of USDA Foods for home consumption and D-SNAP benefits at the same time is not prevented by The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5180). Distribution of USDA Foods during a disaster does not supplant or duplicate the benefit to the household which D-SNAP provides, as D-SNAP is a temporary food assistance benefit provided to households to purchase foods, as opposed to a food package benefit provided for home consumption. Distribution of USDA Foods during a disaster is intended to operate in the immediate aftermath of a disaster, when commercial food distribution channels are disrupted, stores are closed due to power outages, or roads are inaccessible. In general, D-SNAP benefits would not be able to be readily utilized until the retail grocery infrastructure was fully functional. State distributing agencies responding to disasters must work quickly to provide food assistance to households in need which may not have access to personal documents or a complete understanding of available food assistance resources. Removing the requirement that distributing agencies confirm whether a household has received D-SNAP benefits reduces the amount of information collected and verified for each applicant household, which may allow for expedited food provision during times of high need.

iii. Clarification of Requirements for Distribution of USDA Foods During a Disaster (§ 250.69)

As State agencies operated disaster household distributions during the COVID-19 pandemic, it became apparent to the Department that many State agencies had difficulty understanding which provisions of § 250.69 apply to congregate meals and which apply to distribution to households. The current organization of § 250.69(c) provides information that State distributing agencies must consider when determining which disaster organizations may serve either congregate meals or USDA Foods for household consumption. In some instances, State distributing agencies approved disaster organizations to provide USDA Foods for home consumption without ensuring that those disaster organizations had provided the additional information beyond what was required for organizations serving congregate meals, as required by § 250.69(c)(2). In order to clarify which requirements apply to approval of disaster organizations serving congregate meals and which requirements apply to disaster organizations providing USDA Foods for household consumption, proposed revisions to the rule would reorder provisions so that all congregate meal language, including language from § 250.69(c) and the entirety of § 250.69(e), would be consolidated into a single provision at proposed § 250.69(a) to clarify the use of USDA Foods in congregate meals. Similarly, all language relevant to distribution to households, including language from § 250.69(c) and the entirety of § 250.69(d), is proposed to be consolidated into a single provision at proposed § 250.69(b) to clarify the use of USDA Foods for distribution to households. Section 250.69(f)
Reporting and recordkeeping requirements,
§ 250.69(g)
Replacement of donated foods,
and § 250.69(h)
Reimbursement of transportation costs,
which apply to both methods of distribution, are proposed to remain separate. The Department proposes to redesignate these sections to § 250.69(d)
Reporting and recordkeeping requirements,
§ 250.69(e)
Replacement of donated foods,
and § 250.69(f)
Reimbursement of transportation costs,
respectively.

iv. Limitation on Impacts to Other Programs (§ 250.69(c) and § 250.70(c))

The Department proposes a new paragraph in 250.69(c) and 250.70(c) that would ensure that the use of USDA Foods for disaster response activities does not have an ongoing negative impact on the operation of other programs. USDA Foods for disaster response activities are typically drawn from local USDA Foods inventories that support permanent programs such as TEFAP. The prolonged nature of the COVID-19 pandemic has been atypical when compared to previous Presidentially declared disasters or emergencies that lasted weeks or months rather than years. This provision would ensure that State agencies consider the operation of other USDA Foods programs when making decisions about using USDA Foods for disaster response activities.

v. Updated Reporting Requirements for Distribution of USDA Foods to Households During a Disaster (§ 250.69(d))

The Department proposes introducing a new weekly State distributing agency reporting requirement for disaster household distributions at the newly proposed § 250.69(d). During the COVID-19 pandemic, State distributing agencies significantly increased distribution of USDA Foods for household consumption to meet the increased need for food assistance and to comply with social distancing requirements. State distributing agencies must submit FNS Form FNS-292A,
Report of Commodity Distribution for Disaster Relief,
to FNS 45 days after the termination of disaster assistance to report the types and amounts of USDA Foods from distributing or recipient agency storage facilities used in disaster assistance. The prolonged nature of the COVID-19 pandemic and the quantity of USDA Foods distributed illustrated that restricting reporting of USDA Foods distributed until after the end of the disaster assistance period presents a challenge for the tracking of USDA Foods inventories available nationally and within States, and USDA and State distributing agencies' ability to source and distribute foods to meet the needs of the public. To improve USDA's ability to mobilize foods to areas affected by disasters, the Department proposes requiring a new weekly report which State distributing agencies must complete if disaster household distribution persists for longer than 14 calendar days. Weekly tracking of USDA Foods served via disaster household distribution, beginning 14 days after the

start of distribution, would improve USDA's and State distributing agencies' understanding of the quantity and types of USDA Foods available for emergency response. This would also facilitate USDA's efforts to replace USDA Foods used in disaster response to prioritize nutrition security for participants in all programs serving USDA Foods. Furthermore, the proposed weekly reporting would require State distributing agencies to report the total number of individuals receiving assistance through disaster household distributions, which would provide USDA with an improved understanding of how many affected individuals are receiving assistance.

vi. Removal of the Prohibition on the Simultaneous Provision of USDA [Donated] Foods and D-SNAP During Situations of Distress (§ 250.70(d))

The Department proposes removing language at § 250.70(d) which prohibits simultaneous provision of USDA Foods and Disaster Supplemental Nutrition Assistance Program (D-SNAP) benefits simultaneously during situations of distress. Distribution of USDA Foods during a situation of distress does not supplant or duplicate the benefit to the household which D-SNAP provides, as D-SNAP is a temporary food assistance benefit provided to households to purchase foods, as opposed to a food package benefit provided for consumption. As with distribution of USDA Foods during a disaster, distribution of USDA Foods during a situation of distress is intended to operate in the immediate aftermath of a disaster. State distributing agencies responding to disasters must work quickly to provide food assistance in conditions which may vary from typical operating conditions, and to households which may not have access to documents and which may be unfamiliar with food assistance resources. Removing the requirement that State distributing agencies confirm whether a household has received D-SNAP benefits reduces the amount of information collected and verified for each applicant household, allowing for expedited provision of foods during times of high need.

vii. Clarification of Requirements for Distribution of USDA Foods During Situations of Distress (§ 250.70)

Proposed revisions to reorder § 250.70 for clarity parallel revisions to § 250.69 above. Proposed revisions would reorder provisions so that all congregate meal language, including language from § 250.70(c) and the entirety of § 250.70(e), are consolidated into a single provision at proposed § 250.70(a) to clarify the use of USDA Foods in congregate meals. Similarly, all language relevant to distribution to households, including language from § 250.70(c) and the entirety of § 250.70(d), are proposed to be consolidated into a single provision at proposed § 250.70(b) to clarify the use of USDA Foods for distribution to households. § 250.70(f)
Reporting and recordkeeping requirements,
§ 250.70(g)
Replacement of donated foods,
and § 250.70(h)
Reimbursement of transportation costs,
which apply to both methods of distribution, are proposed to remain separate. The Department proposes to redesignate these sections to § 250.70(d)
Reporting and recordkeeping requirements,
§ 250.70(e)
Replacement of donated foods,
and § 250.70(f)
Reimbursement of transportation costs,
respectively.

c. The Emergency Food Assistance Program (TEFAP)

The Department proposes revisions to TEFAP regulations (7 CFR 251) which would focus on improving access to the program by simplifying requirements for program operators and enabling FNS to obtain better data on the reach of current program operations. Among the changes, the Department proposes eliminating barriers to program access by prohibiting State agencies from collecting an address as part of determining program eligibility and requiring State agencies to develop processes for eligible households to meet residency requirements at § 251.5(b). The Department also proposes requiring States to publicly post statewide eligibility requirements to make information about the program more easily accessible to the public at proposed § 251.4. Additionally, the proposed rule would update Farm to Food Bank Project requirements to simplify and make technical updates to administrative requirements for State agencies, in particular Farm to Food Bank Project reporting requirements, which have become points of confusion for program stakeholders.

i. Technical Updates to the Entire Part 251

Proposed technical updates to part 251 include replacing instances of the outdated terms “commodities,” “food commodities,” “TEFAP commodities,” “TEFAP foods,” “donated foods,” and “donated commodities” to “USDA Foods” to further align the program with the definition of “USDA Foods” in 7 CFR 250. The term commodities is no longer commonly used and has been replaced by “USDA Foods.” Additional technical corrections are noted, as applicable, in section discussions below.

ii. Technical Clarification to the Definition of a Food Bank (§ 251.3)

The Department proposes removing a description of food provided by food banks in § 251.3(f), deleting “or edible commodities, or the products of food or edible commodities” from the definition of
food bank,
as this description caused confusion about the types of foods to which regulations apply.

iii. Requirement for the Public Posting of Availability of USDA Foods Through TEFAP and Encouraging Distribution of USDA Foods in Tribal Areas (§ 251.4)

To improve public access to TEFAP, the Department proposes clarifying requirements for standards of communication about TEFAP eligible recipient agencies in the new proposed section § 251.4(l) and strengthening program regulations at § 251.4(k) to encourage distribution of USDA Foods in Tribal areas.

1. Eligible recipient agencies are organizations that distribute USDA Foods through TEFAP. The Department proposes requiring TEFAP State agencies to post information about eligible recipient agencies and TEFAP statewide eligibility criteria to publicly available websites to help the public understand where they may receive USDA Foods through TEFAP. This requirement would be codified in the proposed new section 251.4(l). Eligible recipient agency information that must be publicly posted includes the name, address, and a contact telephone number for all eligible recipient agencies which distribute USDA Foods to other eligible recipient agencies, to eligible households for home consumption, or in prepared meals. The Department proposes requiring State agencies to update this information annually. State agencies are encouraged but not required to post more frequent updates as they are needed and include additional information, such as operating hours, the areas served by the eligible recipient agency, links to eligible recipient agency websites, and distribution site addresses. Requiring State agencies to post complete eligible recipient agency information on publicly available websites would help eligible households understand where they may receive benefits and which eligible recipient agencies they may contact for additional program information. This proposed requirement would allow FNS to better understand the number and location of eligible recipient agency sites, which would, in

turn, improve understanding of where TEFAP is available nationally, and where program coverage may need to be improved.

2. In addition, the Department proposes updating § 251.4(k) to encourage State agencies and eligible recipient agencies to implement or expand distributions of USDA Foods in Tribal areas, in addition to the rural areas already listed. During the COVID-19 pandemic, TEFAP eligible recipient agencies across the country stepped up to meet a substantial increase in need for emergency food assistance that, in some areas, has not yet subsided. The Department applauds our TEFAP partners for these continued efforts, while also recognizing that the pandemic has exposed some inequities withing our nation's broader emergency food network—especially in Tribal communities. In FY 2022 and FY 2023, USDA made $100 million in TEFAP Reach and Resiliency grant funding available to all TEFAP State agencies to carry out projects to expand the reach of TEFAP into remote, rural, Tribal, and/or low-income areas. These funds are being used, in part, to expand TEFAP partnerships in Tribal areas and to strengthen the emergency food assistance network in Indian country. The Department proposes to further encourage TEFAP distributions and activities in Tribal areas through this proposed regulatory change, to ensure that TEFAP's collective reach spreads to all eligible individuals in need.

iv. State Agency Options for TEFAP Eligibility Criteria, Documentation, and Public Communication (§ 251.5)

The Department proposes revisions to TEFAP regulations to increase alignment of income eligibility criteria nationwide, ensure access for vulnerable individuals, and ensure that statewide eligibility criteria are posted in a manner accessible to the public.

1. TEFAP Maximum Income Eligibility Range and State Agency Option for Alternative Income Eligibility Thresholds (§ 251.5(b)(2))

Per section 202A(b)(4)(A) of the Emergency Food Assistance Act of 1983 (Pub. L. 98-92 as amended), TEFAP State agencies must ensure that standards of eligibility require participating households to be comprised of “needy persons.” Current regulations at § 251.5(b)(2) require State agencies to develop statewide income-based eligibility standards, but do not include a suggested income range that States should use for developing those requirements. Proposed revisions to income-based standards would include a maximum income eligibility threshold that is at or between 185 percent to 250 percent of the U.S. Federal Poverty Guidelines published annually by the U.S. Department of Health and Human Services (HHS). For example, a TEFAP State agency may set its maximum income eligibility criterion at 185 percent of the U.S. Federal Poverty Income Guidelines published annually by HHS. Another TEFAP State agency may set its maximum at 200 percent of the Federal Poverty Income Guidelines, while another TEFAP State agency may set its maximum at 250 percent. Consistent with current program requirements at § 251.5(b), such standards set by a TEFAP State agency must be applied uniformly statewide.

Overall, this proposed revision would reduce the variance in income eligibility criteria across States. As of September 2022, income eligibility ranged from 125 percent to 400 percent of U.S. Federal Poverty Income Guidelines, nationally. Establishing a national, allowable range for income eligibility would allow the Department to protect TEFAP access for those individuals most in need while simultaneously providing State agencies flexibility to develop income-based eligibility criteria which account for variance in cost of living across States.

Under this proposal, the Department would permit TEFAP State agencies to develop maximum income-based eligibility standards above this range if they provide rationale for their proposed threshold, subject to FNS approval.

2. Methods for Verifying Residency (§ 251.5(b)(3))

Per § 202A(b)(4)(B) of the Emergency Food Assistance Act of 1983 (Pub. L. 98-92 as amended) and § 251.5(b)(3), TEFAP State agencies must set forth standards of eligibility for recipients of USDA Foods which require participating individuals or household members to reside in the geographic location served by the State agency at the time of applying for assistance. Proposed revisions to this paragraph would require State agencies to develop a process for requesting residency information to determine eligibility that does not require an address or identification, such as self-declaration of residency by the applicant. Furthermore, this proposed revision would prohibit State agencies from requiring households to provide an address or identification to confirm residency as part of their statewide eligibility criteria. Related to this proposal, the Department proposes amending regulations to remove the federal address collection requirement in current § 251.10(a)(3) and proposes establishing requirements for protecting information obtained from applicants and participants to establish eligibility.

This proposed change would ensure that TEFAP agencies would retain the ability to develop statewide eligibility criteria which fit their needs, while supporting program access for vulnerable individuals and households. See preamble section (vii)(1) Removal of Federal Address Collection Requirements and Establishing Confidentiality Protections for Applicant and Participant Household Information (§ 251.10(a)(4), § 251.10(c)) for further details.

3. Public Posting of Statewide TEFAP Eligibility Criteria (§ 251.5(b))

Current regulations do not direct State agencies on how they must inform the public of TEFAP statewide eligibility criteria. Proposed revisions to § 251.5(b) would require State agencies to post to publicly available websites statewide eligibility criteria, including requirements for demonstrating income and residency. Clarifying standards of communication for statewide eligibility criteria would ensure that eligible applicants are more easily able to understand how they may receive TEFAP, as well as requirements for demonstrating eligibility.

v. Updated Reference for Farm to Food Bank Projects (§ 251.6)

Proposed revisions to this section would update the paragraphs cited for information that must be included in TEFAP State Plans for Farm to Food Bank Projects. A new proposed provision would encompass all provisions related to Farm to Food Bank Projects at new § 251.13.

vi. Updated Reference for TEFAP Reporting Requirements (§ 251.9)

Proposed revisions to this section would update the paragraph cited for the FNS-667,
Report of TEFAP Administrative Costs.
Provisions in § 251.10 are proposed to be updated for clarity and improved readability, resulting in redesignation of several provisions. The proposed, revised paragraph at § 251.9(e) references the newly redesignated paragraph § 251.10(b)(1).

vii. Removal of Federal Address Collection Requirements, Redesignations, and Updated References for Miscellaneous Provisions (§ 251.10)

The Department proposes removing federal address collection requirements for TEFAP participants who receive USDA Foods for home consumption at

proposed § 251.10(a)(4), adding requirements for protecting information obtained from TEFAP applicants and participants at § 251.10(c), and redesignating sections of the entire § 251.10 in order to improve clarity and readability.

1. Removal of Federal Address Collection Requirements and Establishing Confidentiality Protections for Applicant and Participant Household Information (§ 251.10(a)(4), § 251.10(c))

Current regulations at § 251.10(a)(3) require distribution sites to collect the addresses of households receiving USDA Foods for home consumption and maintain the record of participant addresses per the retention policy described in § 251.10(a)(4). The federal address collection requirement is administratively burdensome for program operators and does not serve a demonstrated program need. During the COVID-19 pandemic, increased demand at emergency feeding organizations resulted in long lines for families searching for food assistance. Removing the federal address collection requirement would simplify the administration of TEFAP for eligible recipient agencies. Removing the federal address collection requirement would also allow States to develop more streamlined methods for determining TEFAP applicant residency, which may help local program operators reduce wait time for food distribution. Additionally, FNS has received many questions about the necessity of collecting addresses from persons who have difficulty providing this information for reasons such as being unhoused. The Department proposes removing federal address collection requirements for TEFAP participants who receive USDA Foods for home consumption at proposed § 251.10(a)(4).

Current regulations do not include requirements for protecting the confidentiality of TEFAP applicants or participant household information. To ensure protection of information collected from households, and to align recordkeeping and retention requirements with those of other food assistance programs, proposed regulations would establish confidentiality requirements in the new § 251.10(c). The proposed section would define the information which must be kept confidential and would explain limits on disclosure of information obtained from applicants or participants and the identity of persons making a complaint or allegation against persons participating in or administering the program.

2. Nondiscrimination Statement Update (§ 251.14(b))

The Department proposes updating current § 251.10(c) and redesignating as § 251.14(b) to advise the public that TEFAP must be operated in accordance with the most up-to-date USDA nondiscrimination statement.

The current USDA nondiscrimination statement applicable to TEFAP prohibits discrimination on the basis of race, color, national origin, sex (including gender identity and sexual orientation), disability, age, or reprisal or retaliation for prior civil rights activity. The proposed change to newly proposed § 251.14(b) would align the regulations with the current applicable USDA nondiscrimination statement and any future changes to the nondiscrimination statement.

3. Eligible Recipient Agency and Household Distribution Participation Reporting (§ 251.10(b)(3) and § 251.10(b)(4))

The Department proposes updating 251.10(b) with two new provisions to improve understanding of program coverage and participation in TEFAP. The proposed provision would collect information on eligible recipient agencies and TEFAP participants.

Proposed revisions would establish a requirement for the public posting of eligible recipient agency information in new paragraph 251.4(l), described in (c)(iii) above, to improve public access to TEFAP. In proposed 251.10(b)(3), the Department proposes to require TEFAP State agencies report this information to FNS on an annual basis so that FNS may understand where TEFAP services are offered and the landscape of eligible recipient agencies participating in TEFAP nationally. The list provided to FNS would include eligible recipient agencies that have agreements with a State agency and eligible recipient agencies that have agreements with another eligible recipient agency. The list would also include eligible recipient agencies that distribute USDA Foods for home consumption and those that distribute USDA Foods in the form of prepared meals. This would allow FNS to better understand areas where there may be gaps in service, and work with States to eliminate these gaps.

Per current 251.10(a)(3), each distribution site must collect and maintain on record the name of the household member receiving USDA Foods for home consumption, as well as the address of the household to the extent practicable, and the number of persons in the household. The Department proposes removing the collection of household addresses as described in (c)(iv)(1) above. To understand how many individuals participate in TEFAP through the distribution of USDA Foods for home consumption, the Department proposes to add a requirement in proposed 251.10(b)(4) that State agencies report the total number of persons participating in TEFAP in this manner. State agencies would be required to report the total monthly number of individuals receiving USDA Foods through TEFAP for home consumption on a quarterly basis. The Department intends to align timing of this report with other required quarterly reporting, such as administrative funds usage, in order to minimize reporting burden for State agencies.

4. Technical Corrections for Miscellaneous Provision (§ 251.10(d) and (f))

The Department proposes updating § 251.10(d) to correct an error in a reference to reporting requirements. The current reference to reports of excessive inventory directs readers to § 250.17(a), and this would be corrected to direct readers to § 250.18
Reporting requirements.

The Department proposes updating paragraph (f) references to reflect redesignations and newly created sections in the proposed rule, which are discussed below. The Department also proposes clarifying the requirements for limits on unrelated activities during the administration of TEFAP, and potential consequences for violation of these limits by more clearly stating existing requirements.

5. Redesignations for Miscellaneous Provisions (§ 251.10)

The Department proposes breaking current § 251.10 Miscellaneous into five distinct sections: § 251.10 Reports and recordkeeping, § 251.11 State monitoring system, § 251.12 Limitation on unrelated activities, § 251.13 Farm to Food Bank projects, and § 251.14 Miscellaneous. These proposed revisions would significantly improve the readability of the regulation, with the ultimate intent of reducing confusion on the part of State agencies. Current § 251.10 contains paragraphs (a) through (j) and includes topics ranging from reports and recordkeeping to Farm to Food Bank Projects. In this proposed rulemaking, all previous provisions would be retained, but several are proposed to move to new proposed paragraphs for clarity. The proposed revision establishes a new § 251.10, Reports and recordkeeping, for all TEFAP reports and recordkeeping

information and is updated to include confidentiality requirements for information about TEFAP participant households, as explained above.

6. New Sections Created for Clarity (§ 251.11, § 251.12, § 251.13, and § 251.14)

The new proposed § 251.11 would include requirements for State agency monitoring systems, and the new proposed § 251.12 would explain limitations on unrelated activities at TEFAP distributions. Farm to Food Bank Project regulations are proposed to be moved into a new, proposed § 251.13 so that State agencies can easily locate all requirements for these projects. New proposed § 251.14 would include miscellaneous provisions that are not closely related to other provisions, such as nondiscrimination and use of volunteer workers and non-USDA foods.

d. Food Distribution Program on Indian Reservations (FDPIR)

Proposed revisions to FDPIR regulations (7 CFR 253) focus on establishing further parity between FDPIR eligibility requirements and the Supplemental Nutrition Assistance Program (SNAP) and ensuring program access. Among the proposed changes, the Department proposes clarifying the household concept for purposes of FDPIR eligibility for spouses living together and spouses living apart in separate households, removing the urban place requirement which limits the operation of FDPIR in approved near areas and/or service areas that have a population of 10,000 people or more, updating the shelter/utility standard deduction to remove the Regional standard deduction and set forth a revised approach pursuant to Tribal leader and FDPIR program community feedback, and establishing a limited administrative waiver to be more consistent with SNAP waiver authorities.

i. Technical Updates to the Entire Part 253

Proposed technical corrections throughout part 253 would replace instances of the outdated terms “commodity” and “commodities” with “USDA Foods” and the outdated term “Food Stamps” with “SNAP,” the Supplemental Nutrition Assistance Program. These updates align part 253 in accordance with other sections in this chapter. Additional technical corrections are noted, as applicable, in section discussions below.

ii. Removal of Urban Place Definition (§ 253.2 and § 253.4)

In § 253.2 and § 253.4, the Department proposes to remove the urban place regulatory references and the associated requirement that an FDPIR Indian Tribal Organization (ITO) or State agency must provide a justification to FNS to serve urban places off the reservation. Per § 253.2, an urban place is defined as a city or town with a population of 10,000 or more. Currently, per FDPIR regulations at § 253.4(d), any urban place outside of the reservation boundaries may not be served unless an ITO or State agency requests to serve the urban place with a justification.

Tribal leaders and the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR) Board have submitted multiple Resolutions to FNS to remove and/or adjust the definition of urban place to increase the population from 10,000. Resolutions have cited the nutritional needs of Tribal members, their preferences for FDPIR benefits over SNAP, access to FDPIR nutrition education which is more tailored to meet Tribal needs, and a desire to remain connected to Tribal services. The FDPIR community has expressed frustration with the administrative difficulties in applying for an “urban place waiver,” and with what is perceived to be an arbitrarily low population cap of 10,000.

The current restriction on the Program's operation in urban places is an outdated provision which unnecessarily limits the availability of FDPIR for Tribal members in urban areas. This proposed change would increase program access and reach, allowing the potential for more individuals in need to receive nutritious FDPIR food package benefits, and allows households to have the option to choose between FDPIR and SNAP within the month in any area where FDPIR is available. The proposed change would not remove the dual participation statutory prohibition for a household to participate in FDPIR and SNAP within the same month; however, a household may more easily have the flexibility to move between both programs from month to month as they see fit without the urban place requirements in place.

Conforming revisions are proposed below to 7 CFR part 254, Administration of the Food Distribution Program for Indian Households in Oklahoma.

Additionally, the Department proposes changing the term “contract” in § 253.4(b)(3) to “delegate” in order to improve the clarity of the section and to be consistent with language used in 7 CFR 247, 250, and 251.

iii. Periodically Assessing the FDPIR Food Package (§ 253.3)

In § 253.3, the Department proposes adding a new requirement for FNS to periodically assess how USDA Foods provided in FDPIR compare to the Dietary Guidelines for Americans (DGAs) and the market baskets of the Thrifty Food Plan (TFP) and, to the extent practicable, adjust the FDPIR food package benefit as needed to ensure the FDPIR food package continues to be consistent with these assessments of basic dietary needs. The proposed provision would prohibit the FDPIR food package benefit from being reduced as a result of the analysis. Currently, FNS makes changes to the food package at the request of stakeholders through the FDPIR Food Package Review Work Group (the Work Group). The Work Group is critical to this process and helps make changes to the food package, including adding additional units (
i.e.,
increasing volume) and increasing food variety within the food package. The proposed change to § 253.3 will not limit the Work Group's ability to implement changes and improvements to the food package independent of these assessments. If an assessment results in potential proposed changes to the FDPIR food package benefit, the Work Group process will continue to be followed to consider such changes.

For background, current FDPIR regulations do not include language regarding the method that is used to make changes to the benefit level of the food package. In 2002, at the request of stakeholders such as the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), FNS established the FDPIR Food Package Review Work Group (the Work Group). The goal of the Work

Group is to consider revisions to the food package to better meet the nutritional needs and food preferences of program participants. The types of changes that have been implemented by the Work Group include increasing choices in a particular food category, changing the size of products, and improving the quality and nutrient profile of USDA Foods provided by FDPIR. Each prospective change is considered in terms of its impact on the people being served, the nutrient profile, and the cost of the entire food package. Any adjustments made to the FDPIR Food Package as a result of this proposed change would be discussed with the Work Group. This proposed provision would help ensure that the FDPIR food package stays more consistent with changes made in SNAP.

Additionally, the Department proposes updating the provisions at 7 CFR 253.3(a)(2) to clarify in plain language that FDPIR households can receive FDPIR USDA Foods as well as other USDA Foods programs in the same month in accordance with the requirements of part 250 and with other federal regulations applicable to specific USDA Foods programs. FDPIR households can currently receive USDA Foods through FDPIR and other USDA Foods in the same month, but current language only includes the Commodity Supplemental Food Program (CSFP).

The Department also proposes a technical correction that would remove the list of food groups in the FDPIR food package from 7 CFR 253.3(d). This list is outdated and FNS publishes the current list of food groups in Exhibit O of the 501 Handbook.

iv. Nondiscrimination Statement Update (§ 253.5)

The Department proposes updating § 253.5(a)(2)(iv) to advise the public that FDPIR must be operated in accordance with the most up-to-date USDA nondiscrimination statement. This currently includes prohibiting discrimination on the basis of race, color, national origin, sex (including gender identity and sexual orientation), religious creed, disability, age, political beliefs, or reprisal or retaliation for prior civil rights activity. The proposed change would align the regulations with the current applicable USDA nondiscrimination statement and any future changes to the nondiscrimination statement.

v. Updates to FDPIR Eligibility Provisions (§ 253.6)

The Department proposes making several changes to FDPIR eligibility provisions at 7 CFR 253.6 to increase access to the program and to improve consistency between FDPIR and SNAP requirements.

1. Separate Household Status for Spouses Not Living Together (§ 253.6(a)(1))

The Department proposes removing the regulatory prohibition at current 7 CFR 253.6(a)(1) on granting separate household status to spouses living apart. Current regulations require that separate household status cannot be granted to spouses not living together. SNAP regulations at 7 CFR 273.1(b)(1) currently provide flexibility for spouses that are not living together to be considered separate households. The current prohibition in FDPIR presents a barrier to access for individuals who are legally married but not living in the same household. Individuals in this situation can prove they are living apart, but because they are legally married, regardless of their living situation, they cannot receive separate household status under current regulations. If one of the individuals is receiving FDPIR or SNAP benefits, then the other individual cannot receive FDPIR as a separate household. The proposed provision would establish parity between FDPIR and SNAP regarding the treatment of household composition for spouses.

2. Minor Children Living Apart From Parents (§ 253.6(a)(1))

The Department also proposes further clarifying requirements for determining parental control of minor children for the purposes of determining the composition of the household and household eligibility. Current FDPIR regulations at 7 CFR 253.6(a)(1) include language that children under the age of 18 under the parental control of a member of the household cannot receive separate household status. More clarity is needed to account for situations involving minor children living apart from their parents, for example when a child is living with their grandparents.

A new section at proposed 7 CFR 253.6(a)(4) would use the language found in SNAP regulations at 7 CFR 273.1(b)(1)(iii), which clarifies that a child is considered under parental control for purposes of this provision if they are financially or otherwise dependent on a member of that household, for example, a grandparent. This proposed change would also improve consistency between FDPIR and SNAP requirements to ensure that both programs only certify a child if the adult household member has “parental” control over the child.

3. Removal of California SSI Cash-Out Reference (§ 253.6(a)(2)(ii))

The Department additionally proposes removing reference to Supplemental Security Income (SSI) cash-out at 7 CFR 253.6(a)(2)(ii), as this provision is no longer applicable. The California Assembly Bill (AB) 1811 reversed the cash-out policy, resulting in SSI recipients in California becoming eligible for SNAP or FDPIR benefits provided all other eligibility criteria are met.
6

The bill was enrolled and enacted in June 2018. This change was effective on June 1, 2019.

6
California State Legislature,
Assembly Bill No. 1811 Human Services Omnibus (2017-2018).
Accessed 23 January, 2023. Available at internet site:
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1811.

4. Revisions to Shelter/Utility Deductions (§ 253.6(e)(5))

Currently, FDPIR's base income eligibility thresholds are set using 100 percent of the U.S. Federal Poverty Guidelines published by HHS and increased by the SNAP standard deduction by household size. The thresholds are updated annually by October 1. FDPIR regulations at 7 CFR 253.6(e) provide for income deductions, in recognition of expenses which impact the amount of household income available for food purchases. These income deductions may assist applicants in meeting income standards for the program. Under current FDPIR regulations at 7 CFR 253.6(e), income deductions include an earned income deduction, dependent care deduction, child support deduction, medical expense deduction, and shelter/utility standard deduction. FDPIR fiscal year 2023 income eligibility standards and a full list of deductions are provided on the FNS website at
https://www.fns.usda.gov/fdpir/net-monthly-income-standards.

The Department proposes revising 7 CFR 253.6(e)(5) to amend the process FNS uses to update the shelter/utility standard deduction each year. The current method was finalized in the 2013 Final Rule:
Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility.
7

Under current regulations, households that incur at least one monthly shelter and/or utility expense permitted under SNAP at 7 CFR

273.9(d)(6)(ii) may receive the deduction. Each year, FNS establishes the regional shelter/utility standard deduction amounts by taking the average SNAP shelter deduction in each FDPIR State in the region weighted by FDPIR participation in the State. As the SNAP data used lags by two years, the weighted values are indexed by inflation to the current year and then rounded to the nearest $50 increment. For fiscal year 2023, the FDPIR Regional shelter/utility deductions are as follows:

7
USDA Food and Nutrition Service,
Final Rule: The Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility
(78 FR 52827), Accessed 23 January 2023. Available at internet site:
https://www.federalregister.gov/documents/2013/08/27/2013-20844/food-distribution-program-on-indian-reservations-income-deductions-and-resource-eligibility.

Table 1.1—FY 2023 FDPIR Standard Shelter/Utility Expense Deductions

Region
States currently with FDPIR programs
Shelter/utility deduction

Northeast/Midwest
Maine, Michigan, Minnesota, New York, Wisconsin
$500

Southeast/Southwest
Arizona, Mississippi, New Mexico, North Carolina, Oklahoma, Texas, Utah
400

Mountain Plains
Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Wyoming
550

West
Alaska, California, Idaho, Nevada, Oregon, Washington
450

* If the geographic boundaries of an Indian reservation extend to more than one region per the identified regional groupings above, then a qualifying household has the option to receive the appropriate shelter/utility expense deduction amount for the State in which the household resides or the State agency's central administrative office is located.

Tribal leaders and NAFDPIR have expressed concern that the current approach does not reflect current conditions and does not address the variances in Indian Country. In addition, it has been expressed that in times of historically high inflation and household costs, there may be households that are slightly over the FDPIR income standards but due to high costs of shelter and utility expenses, a household may be food insecure.

The Department remains committed to working with Tribal leaders and NAFDPIR to continue to discuss FDPIR income eligibility and program access. The Department proposes updating the FDPIR shelter/utility standard deduction to allow FDPIR households to use actual expenses up to 50 percent of net income, and to increase the standard deduction option to the level of the SNAP maximum shelter deduction instead of the current Regional standard deduction.

Under the newly proposed standard deduction method, when the SNAP excess shelter deduction is updated annually for the next fiscal year (FY), per 7 CFR 273.9(d)(6)(ii), the maximum monthly excess shelter deduction limit established for the area would be used as the FDPIR shelter/utility standard deduction amount. For example, in FY 2023, the SNAP maximum shelter deduction amount for the 48 contiguous States and the District of Columbia is $624 and Alaska is $996. Under this proposal, these amounts would be used for the standard deduction for households that elect to use this amount; or the household could choose to provide actual expenses up to 50 percent of net income. The shelter/utility standard deduction amounts would be updated annually by October 1. See the preamble discussion applicable to verification procedures (§ 253.7), where the Department proposes verification requirements for applicants and participants seeking to provide actual shelter and utility expenses to receive a shelter/utility deduction of up to 50 percent of net income.

In addition to responding to concerns raised by Tribal leaders at recent Consultations, as well as NAFDPIR and FDPIR ITOs and State agencies, the Department believes the proposed amendment to the shelter/utility standard deduction would further promote simplicity and efficiency in program administration, relieving burden on FDPIR administering agencies.

Additionally, the Department proposes a change to § 253.6(e)(1) to indicate that under the earned income deduction, twenty percent should be deducted from “gross earned income,” instead of the previous “earned income,” which would increase clarity in this section.

5. Request for Public Comments: FDPIR Income Standards (§ 253.6(d))

As provided in the preamble discussion at § 253.6(e)(5), the FDPIR base income eligibility thresholds are set using 100 percent of the U.S. Federal Poverty Guidelines published by the U.S. Department of Health and Human Services (HHS) and increased by the SNAP standard deduction by household size. The Department is soliciting comments regarding whether further changes should be made to FDPIR income standards to increase program access and parity with SNAP. The Department is seeking feedback from FDPIR ITOs and State agencies to inform potential future proposals on alternative eligibility thresholds for FDPIR, including feedback on the following questions:

1. Are there data sources in addition to HHS data that the Department should consider when determining income eligibility standards for FDPIR?

2. Should the Department consider use of a gross income eligibility requirement for FDPIR
e.g.,
185 percent of the U.S. Federal Poverty Guidelines published annually by HHS, without application of any income deductions?

USDA FNS appreciates and values your thoughtful and responsive replies to these questions. Your feedback is essential to helping FNS ensure the administration of FDPIR is as effective and efficient as possible. Moving forward, FNS will continue to prioritize Tribal consultation and feedback from FDPIR partners on a wide range of issues related to FDPIR, as it considers ways to improve an already successful program.

vi. Verification Procedures (§ 253.7)

The Department proposes a technical update to the verification requirements for the shelter/utility standard deduction to provide verification for all expenses if actuals are used. Furthermore, the Department proposes updating the threshold for which an ITO or State agency must verify a change in income from $50 to $100 at the time of recertification. The 2013 Final Rule,
The Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility,
included a provision that households must report an increase in gross monthly income of more than $100 within 10 calendar days of when the change becomes known to the household.
8

As an oversight, the update was not applied to the recertification verification at 253.7(a)(6)(v). This proposed update

would align the required household income reporting changes that require notification from the household.

8
USDA Food and Nutrition Service,
Final Rule: The Food Distribution Program on Indian Reservations: Income Deductions and Resource Eligibility
(78 FR 52827), Accessed 23 January 2023. Available at internet site:
https://www.federalregister.gov/documents/2013/08/27/2013-20844/food-distribution-program-on-indian-reservations-income-deductions-and-resource-eligibility
.

vii. USDA Foods Inventory Management (§ 253.10)

The proposed technical update would make this section consistent with the 2016 Final Rule,
Requirements for the Distribution and Control of Donated Foods—The Emergency Food Assistance Program: Implementation of the Agricultural Act of 2014.
9

The Department proposes removing current FDPIR regulatory requirements at 7 CFR 253.10(c)(1)-(6) and replacing them with a reference to follow storage and inventory management regulations listed at 7 CFR 250.12 and 250.14. This proposal would ensure that FDPIR regulations remain consistent with 7 CFR 250. Additionally, the Department proposes moving 7 CFR 253.10(c)(7) through (17) to 253.10(d), as these citations are applicable to distribution procedures.

9
USDA Food and Nutrition Service,
Final Rule: Requirements for the Distribution and Control of Donated Foods—The Emergency Food Assistance Program: Implementation of the Agricultural Act of 2014
(81 FR 23085). Accessed 23 January 2023. Available at internet site:
https://www.federalregister.gov/documents/2016/04/19/2016-08639/requirements-for-the-distribution-and-control-of-donated-foods-the-emergency-food-assistance-program.

viii. Soliciting Tribal Stakeholder Feedback on the FDPIR Administrative Funding Methodology

While not proposing changes in this rulemaking, the Department is soliciting comments on the method that is used to allocate administrative funding to FDPIR administering agencies, which include ITOs and State agencies that have an agreement with FNS to administer FDPIR. This solicitation of comments is intended to gather FDPIR administering agency feedback on the existing administrative funding methodology, including the budget negotiation process, to frame any necessary future discussions and changes to the methodology. If FNS determines that comments received are sufficient to justify a change to the administrative funding methodology, FNS will use feedback received to inform next steps.

Currently, administrative funds are allocated to FNS Regional Offices based on a funding formula established in program regulations at 7 CFR 253.11(a). To the extent practicable, administrative funds are allocated to FNS Regional Offices in the following manner: (1) sixty five percent of all administrative funds available nationally will be allocated to each FNS Regional Office in proportion to its share of the total number of participants nationally, averaged over the three previous fiscal years; and (2) thirty-five 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. FDPIR administrative funds are then allocated to administering agencies through a budget process conducted by FNS Regional Offices. ITOs and State agencies are entitled to FDPIR administrative funding to administer the program. Through this process, ITOs and State agencies submit a proposed budget reflecting planned administrative costs to the appropriate FNS Regional Office for approval. To the extent that funding levels permit, the FNS Regional Office allocates to each State agency administrative funds necessary to cover no less than 80 percent of approved administrative costs, with the remainder matched by the ITO/State agency (20 percent) unless the State agency/ITO provides sufficient justification to match less.

The current funding methodology was established based on feedback from a FDPIR Funding Methodology Workgroup, consisting of FNS staff and representatives from FDPIR administering agencies. The Workgroup developed proposals for a new administrative funding allocation methodology for FDPIR, and FNS formally consulted with Tribal leaders on the funding methodology before implementation. The current funding methodology was implemented in FY 2008 on an interim basis and codified in FDPIR regulations in 2012.

Notably, there have been significant changes in FDPIR administrative funding levels and statutory requirements over the last few years. Until FY 2019, FDPIR administrative funds were only available to FDPIR ITOs and State agencies for obligation for one fiscal year. Importantly, Section 4003 of the Agriculture Improvement Act of 2018 (Pub. L. 115-134, the 2018 Farm Bill) required all FDPIR administrative grants to remain available for obligation at the ITO and State agency level for a period of two fiscal years. This statutory change improved program administration by allowing administering agencies to plan operations and use funds more flexibly and effectively from one fiscal year to the next. This statutory change allowing for carryover of unspent administrative grants at the FDPIR ITO and State agency levels has coincided with an increase in the amount of FDPIR administrative funding available nationally in recent years. In FY 2018, Congress appropriated $48.0 million for FDPIR ITO and State agency administrative expenses. By FY 2022, appropriated funding for ITO and State agency administrative grants had increased to $62.669 million, of which $4 million was dedicated to FDPIR nutrition education activities (an increase from the previous annual appropriation of $250,000 for nutrition education). In addition to the annual, national administrative funding increases, in 2020, $62 million was made available to FDPIR administering agencies under the Coronavirus Aid, Relief and Economic Security Act (Pub. L. 116-396, CARES Act) for FDPIR facilities improvements, equipment upgrades, and supplemental administrative funding.

Based on these key changes in the program since the current funding methodology was established, FNS is seeking comments on whether the current process adequately meets the needs of the program. FNS specifically requests comments from FDPIR administering agencies on the following questions:

1. With the advent of two-year FDPIR administrative funding, and given the increase in funding in recent years, does the current methodology provide your organization with adequate funding to meet its administrative needs?

2. Are there aspects of the current funding methodology that could be improved, and if so, how?

3. Specifically, please provide comment on the effectiveness of the current regional allocation and budget negotiation process and if modifications or another model could better serve Indian Tribal Organization needs.

USDA FNS appreciates and values your thoughtful and responsive replies to all questions. Your feedback is essential to helping FNS ensure the administration of FDPIR is as equitable as possible. Moving forward, USDA FNS will continue to prioritize Tribal consultation and feedback from FDPIR partners on a wide range of issues related to FDPIR, as it considers ways to improve an already successful program. USDA welcomes your feedback on how FNS could seek further input from the FDPIR community on this important topic outside of this rulemaking.

ix. Establishment of Administrative Waiver Authority in FDPIR (§ 253.12)

Tribal leaders have expressed concern regarding the lack of parity between FDPIR and SNAP with respect to FNS' ability to waive or modify specific regulatory requirements in certain

situations. The Department proposes adding an amendment to current FDPIR regulations that would allow FNS to waive or modify specific administrative requirements contained in this part, under similar processes, for similar amounts of time, and in similar situations as outlined in SNAP regulations at 7 CFR 272.3(c). This proposed provision is intended to mirror SNAP waiver requirements but would be separate and distinct from SNAP waiver authority. Under this proposed provision, FDPIR ITOs and State agencies would be able to request waivers of specific regulatory requirements. This process would require State agencies and ITOs to provide compelling justification for each waiver request submitted. FNS envisions the final regulations would outline, among other potential stipulations, that waiver approvals would only be issued when (1) the specific regulatory provision cannot be implemented due to extraordinary temporary situations, (2) FNS determines that the waiver would result in a more effective and efficient administration of the program, or (3) unique geographic conditions within the geographic area served by the administering agency preclude effective implementation of the specific regulatory provision and require an alternative procedure. FNS seeks comment on these specific stipulations and other considerations. If the situation that necessitates the waiver is widely applicable to all FDPIR ITOs and State agencies, FNS could choose to issue nationwide waivers of specific administrative requirements if determined to be necessary. Waivers would not be issued in situations where the waiver would be inconsistent with provisions of the Food and Nutrition Act of 2008, as amended (Pub. L. 95-113).

e. Administration of the Food Distribution Program for Indian Households in Oklahoma (7 CFR 254)

Part 254 addresses circumstances unique to distributing FDPIR to households residing in FNS services areas in Oklahoma. The Department is proposing to make conforming changes to part 254 to align with updates made to part 253. The proposed technical updates to part 254 would include replacing the outdated term “commodities” with “USDA Foods” to further align the program with the definition of “USDA Foods” in 7 CFR 250. The term commodities is no longer commonly used and has been replaced by “USDA Foods.” In accordance with the changes proposed in d. Food Distribution on Indian Reservations, ii. Removal of Urban Place Definition (§ 253.2 and § 253.5), the Department proposes removing the references to the urban place definition and related terminology and the requirement to provide justification to FNS.

Section 2: Implementation

The Department proposes that State agencies, ITOs, and other affected parties must implement the provisions of this rule no later than 60 days after the date of publication of the final rule in the
Federal Register
. The Department seeks comments on the type and scope of administrative burden that may be associated with implementing the provisions in this proposed rule in this manner.

Section 3: Procedural Matters

Executive Order 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Under Executive Order 12866, as amended, OMB's Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to OMB review. OMB determined this proposed rule to be not significant under E.O. 12866, as amended.

Regulatory Impact Analysis

OMB designated this rule as not significant. Therefore, no Regulatory Impact Analysis is required.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities.

While there may be some burden/impact on some small eligible recipient agencies in TEFAP because of the proposed requirement to report participation in TEFAP, the impact is not significant because these entities are already collecting this information as a part of their normal program operations under existing regulatory requirements.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801
et seq.
), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 at
http://www.bea.gov/iTable
) in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This proposed rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $146 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 12372

Program names are listed in the Catalog of Federal Domestic Assistance under Numbers 10.565 (CSFP), 10.569 (TEFAP), 10.568 (TEFAP Administrative Costs), 10.567 (FDPIR), and are subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

Federalism Summary Impact Statement

Executive Order 13132 requires federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.

The Department has 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 is not required.

Executive Order 12988, Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

Civil Rights Impact Analysis

FNS has reviewed this proposed rule in accordance with USDA Regulation 4300-004, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants based on age, race, color, national origin, sex, or disability. A comprehensive Civil Rights Impact Analysis (CRIA) was conducted on the proposed rule, including an analysis of participant data and provisions contained in the proposed rule. The CRIA outlines outreach, mitigation, and monitoring strategies to lessen any possible civil rights impacts. The CRIA concludes by stating FNS believes that the promulgation of this proposed rule would impact State agencies, Indian Tribal Organizations (ITOs), local agencies and food banks, and participants. The proposed rule aims to improve access and parity for participants in the food distribution programs.

However, FNS finds that the implementation of the outreach, mitigation, and monitoring strategies may lessen any impacts on these entities. If deemed necessary, FNS would propose further mitigation and outreach strategies to alleviate impacts that may result from the implementation of the final rule.

Executive Order 13175

Executive Order 13175 requires federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. On November 8, 2022, December 6 and 13, 2022, February 22, 2023, and June 27, 2023, FNS provided the opportunity for Tribal consultation on the proposed rule and received substantive feedback from several Tribal leaders which were taken into consideration during the development of the proposed rule. Notes from these consultations are available at
https://www.usda.gov/tribalrelations/tribal-consultations.
Once the proposed rule is published in the
Federal Register
, FNS will encourage stakeholders representing Indian Tribal Organizations to provide input on whether the proposed rule poses any adverse Tribal implications. If a Tribe requests additional consultation in the future, FNS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided. FNS is unaware of any current Tribal laws that could be in conflict with this proposed rule.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. FNS is seeking a new OMB Control Number for new, existing, and changing provisions in this rule subject to the Paperwork Reduction Act (PRA) of 1995. Once OMB approves the new information collection request burden associated with this rulemaking, FNS will submit a request to merge the newly-approved burden hours into OMB Control Number 0584-0293, Food Distribution Programs, the existing collection to which they pertain, and will publish a
Federal Register
Notice announcing OMB's subsequent approval. Once the merge is approved, the newly assigned OMB control number can then be discontinued.

Other unaffected burden inventories for this proposed rule have been approved under OMB Control Numbers 0584-0055 Child and Adult Care Food Program (expiration date August 31, 2025), 0584-0067 State Administrative Expense (SAE) Funds (expiration date January 31, 2026), and 0584-0594 Food Programs Reporting System (expiration date July 31, 2023).

Comments on this proposed rule must be received by October 13, 2023.

Comments may be sent to: Polly Fairfield, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, 3rd Floor, Alexandria, Virginia 22314. Comments may also be submitted via email to Polly Fairfield (
Polly.Fairfield@usda.gov
). Comments will also be accepted through the Federal eRulemaking Portal. Go to
https://www.regulations.gov
and follow the online instructions for submitting comments electronically.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Title:
Food Distribution Programs Improving Access and Parity—Reporting and Recordkeeping Burden.

OMB Number:
0584-NEW.

Expiration Date:
Not Yet Determined.

Type of Request:
New collection.

Abstract:

This is a new information collection. The Department proposes new information collections to improve understanding about the quantities and types of USDA Foods being provided nationally and within States during disasters and situations of distress, the organizations providing USDA Foods to eligible households through TEFAP and their locations for a clearer understanding of service coverage, and to increase knowledge about the number of persons served by TEFAP distribution of USDA Foods for home consumption. Below is summary of the changes proposed by the rulemaking and the accompanying reporting and recordkeeping requirements.

Sections 250.69(d)(3) and 250.70(d)(3) reporting and recordkeeping requirements.
During typical Presidentially declared emergencies, State distributing agencies submit FNS

Form FNS-292A, Report of Commodity Distribution for Disaster Relief, to FNS 45 days after the termination of disaster assistance to report the types and amounts of USDA Foods used in disaster assistance. The length of the COVID-19 pandemic and the quantity of USDA Foods distributed presented a challenge for USDA's ability to track USDA Foods inventories available nationally and within States, and USDA and State distributing agencies' ability to source and distribute foods to meet the needs of the public with reporting limited to after the end of the disaster assistance period. To improve USDA's ability to mobilize foods to areas affected by disasters, the Department proposes requiring a new weekly report which State distributing agencies must complete if disaster household distribution persists for longer than 14 calendar days. Weekly tracking of USDA Foods served via disaster household distribution, beginning 14 days after the start of distribution, would improve USDA's and State distributing agencies' understanding of the quantity and types of USDA Foods available for emergency response and facilitate USDA's efforts to replace USDA Foods used in disaster response. The proposed weekly reporting would also require State distributing agencies to report the total number of individuals receiving assistance through disaster household distributions, which would provide USDA with an improved understanding of how many affected individuals are receiving assistance. The Department estimates that 5 State, local, or Tribal government respondents would complete 23 responses in a year, with each response taking 1 hour to complete. The proposed total annual burden is estimated to be 115.00 hours, annually.

Section 251.4(l) Public posting of availability of USDA Foods.
The Department proposes requiring TEFAP State agencies to post the name, address, and a contact telephone number for all eligible recipient agencies which distribute USDA Foods to other eligible recipient agencies, to eligible households for home consumption, or in prepared meals to publicly available websites. The Department proposes requiring State agencies to update this information annually. Requiring State agencies to report complete eligible recipient agency information on publicly accessible websites would help eligible households understand where they may receive benefits, and which eligible recipient agencies they may contact for additional program information. The Department estimates that 54 State agency respondents would complete 1 response each year, with each response taking 8 hours to complete. The proposed total annual burden is estimated to be 432.00 hours, annually.

Section 251.10(b)(3) report of eligible recipient agency list.
The Department proposes to require TEFAP State agencies report the name, address, and a contact telephone number for all eligible recipient agencies which distribute USDA Foods to other eligible recipient agencies, to eligible households for home consumption, or in prepared meals to FNS on an annual basis so that FNS may understand where TEFAP services are offered and the landscape of eligible recipient agencies receiving USDA Foods nationally. This would allow FNS to better understand areas where there may be gaps in service, and work with States to eliminate these gaps. The Department estimates that 54 State agency respondents would complete 1 response each year, with each response taking 2 hours to complete. The proposed total annual burden is estimated to be 108.00 hours, annually.

Section 251.10(b)(4) Recipients of USDA Foods for home consumption.
Existing regulations at § 251.10(a)(3) require each distribution site to collect and maintain on record the number of persons in each household receiving USDA Foods for home consumption, as well as other household information. The Department proposes adding a new requirement for State agencies to report the total number of persons receiving USDA Foods for home consumption. State agencies would be required to report the monthly number of individuals receiving USDA Foods in this manner on a quarterly basis. This report will help the Department understand how many households participate in TEFAP through the distribution of USDA Foods for home consumption. The Department estimates that 54 State agencies will complete 4 responses annually, with each response taking 2 hours to complete. The proposed total annual burden is estimated to be 432.00 hours, annually.

In addition to the above reporting requirements, FNS has reviewed all information collections associated with 7 CFR parts 240, 247, 250, 251, 253, and 254 and determined that no additional changes are needed to existing reporting and recordkeeping requirements. Those adjustments result in a net burden increase of 1,087 hours for 0584-NEW. After OMB has approved the information collection requirements submitted in conjunction with the final rule, FNS will merge the requirements and their burden into the existing program information collection request to which they pertain: OMB Control Number 0584-0293, Food Distribution Programs. This would result in a net burden increase of 1,087 hours for 0584-0293.

The table below summarizes the changes to all burden numbers associated with 7 CFR parts 240, 247, 250, 251, 253, and 254. For additional details, see the information collection material included in the docket to this rule.

Affected public

Estimated
number of
respondents

Number of
responses per
respondent

Total
annual
responses

Estimated
total hours
per response

Estimated
total burden

Reporting

State, Local, and Tribal Governments
26,585
8.78
233,499.24
0.26
60,431.75

Private For Profit
4,013
213.98
858,787.33
0.03
23,985.88

Private Not for Profit
840
3.86
3,240.00
0.19
614.50

Individual
725,700.00
1.97
1,428,200.00
0.25
361,650.00

Total Burden Estimates
757,138.33
3.33
2,523,726.57
0.18
446,682.13

Recordkeeping

State, Local, and Tribal Governments
51,611.00
9.14
471,683.46
0.08
35,491.18

Private For Profit
4,775
216.62
1,034,429.00
0.06
62,671.72

Private Not for Profit
3,079
4.15
12,782.00
52.63
672,662.29

Individual
0
0.00
0.00
0.00
0.00

Total Estimated Recordkeeping Burden
59,465.33
25.54
1,518,894.46
0.51
770,825.19

Total of Reporting and Recordkeeping

Reporting
757,138.33
3.33
2,523,726.57
0.18
446,682.13

Recordkeeping
59,465.33
25.54
1,518,894.46
0.51
770,825.19

Total
757,138.33
5.34
4,042,621.03
0.30
1,217,507.32

E-Government Act Compliance

The Department 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.

List of Subjects

7 CFR Part 247
Aged, Agricultural commodities, Food assistance programs, Public assistance programs.

7 CFR Part 250
Administrative practice and procedure, Aged, Disaster assistance, Food assistance programs, Grant programs-social programs, Indians, Infants and children, Reporting and recordkeeping requirements, Surplus agricultural commodities.

7 CFR Part 251
Food assistance programs, Grant programs-social programs, Reporting and recordkeeping requirements, Surplus agricultural commodities.

7 CFR Part 253
Administrative practice and procedure, Agricultural commodities, Food assistance programs, Grant programs-social programs, Indians, Reporting and recordkeeping requirements, Surplus agricultural commodities.

7 CFR Part 254
Food assistance programs, Grant programs-social programs, Indians, Reporting and recordkeeping requirements, Surplus agricultural commodities.

Accordingly, FNS proposes to amend 7 CFR parts 247, 250, 251, 253, and 254 to read as follows:

PART 247—COMMODITY SUPPLEMENTAL FOOD PROGRAM

1. The authority citation for part 247 continues to read as follows:

Authority:

Sec. 5, Pub. L. 93-86, 87 Stat. 249, as added by Sec. 1304(b)(2), Pub. L. 95-113, 91 Stat. 980 (7 U.S.C. 612c note); sec. 1335, Pub. L. 97-98, 95 Stat. 1293 (7 U.S.C. 612c note); sec. 209, Pub. L. 98-8, 97 Stat. 35 (7 U.S.C. 612c note); sec. 2(8), Pub. L. 98-92, 97 Stat. 611 (7 U.S.C. 612c note); sec. 1562, Pub. L. 99-198, 99 Stat. 1590 (7 U.S.C. 612c note); sec. 101(k), Pub. L. 100-202; sec. 1771(a), Pub. L. 101-624, 101 Stat. 3806 (7 U.S.C. 612c note); sec 402(a), Pub. L. 104-127, 110 Stat. 1028 (7 U.S.C. 612c note); sec. 4201, Pub. L. 107-171, 116 Stat. 134 (7 U.S.C. 7901 note); sec. 4221, Pub. L. 110-246, 122 Stat. 1886 (7 U.S.C. 612c note); sec. 4221, Pub. L. 113-79, 7 U.S.C. 612c note).

2. Amend § 247.1 by:
a. Removing the definitions of “Commodities” and “Elderly persons”;
b. Revising the definition of “Proxy”; and
c. Adding a definition of “USDA Foods”.
The addition and revision read as follows:

§ 247.1
Definitions.

Proxy
means any person designated by a participant or caretaker to obtain supplemental foods on behalf of the participant.

USDA Foods
means foods purchased by USDA to supplement the diets of CSFP participants, also referred to as donated foods.

§ 247.2
[Amended]

3. In § 247.2 amend paragraph (a) by:
a. In the first sentence, removing the term “elderly persons” and adding in its place the term “participants”; and
b. Removing the second sentence.
4. Amend § 247.5 by:
a. Revising paragraphs (b)(14) and (15) and adding (b)(16) and (17); and
b. Revising paragraph (c)(7).
The revisions and additions read as follows:

§ 247.5
State and local agency responsibilities.

(b) * * *

(14) Providing guidance to local agencies, as needed;

(15) Ensuring that program participation does not exceed the State agency's caseload allocation on an average monthly basis; and

(16) Making publicly available a list of all CSFP distribution sites, including local agencies and agencies operating under an agreement with a local agency, on a publicly available internet web page. The State agency must post the name, address, and telephone number for each site. The list must be updated, at a minimum, on an annual basis.

(17) Posting the State Plan that is currently in use on a publicly available internet web page.

(c) * * *

(7) Meeting the special needs of homebound participants, to the extent possible; and

5. Amend § 247.6 by revising the last sentence of paragraph (a) and paragraphs (c)(5), (c)(10), (11), and (12), and adding (c)(13) to read as follows:

§ 247.6
State Plan.
(a) * * * A copy of the State Plan must be kept on file at the State agency and must also be posted on a publicly available internet web page for public inspection.

(c) * * *

(5) A description of plans for conducting outreach to participants;

(10) A description of the means by which the State will meet the needs of homebound participants;

(11) Copies of all agreements entered into by the State agency;

(12) The length of the State agency's certification period; and

(13) A description of the process in place to verify the identity of

participants before receipt of USDA Foods.

6. Amend § 247.9 by revising paragraphs (b), (c), (d)(2) introductory text and (d)(3) to read as follows:

§ 247.9
Eligibility requirements.

(b)
What are the income eligibility requirements for CSFP applicants?
The State agency must use a household income limit at or below 150 percent of the U.S. Federal Poverty Guidelines published annually by the U.S. Department of Health and Human Services (HHS). Participants in households with income at or below this level must be considered eligible for CSFP benefits (assuming they meet other requirements contained in this part). However, participants certified before September 17, 1986 (
i.e.,
under the three elderly pilot projects) must remain subject to the eligibility criteria in effect at the time of their certification.

(c)
When must the State agency revise the CSFP income guidelines to reflect the annual adjustments of the Federal Poverty Income Guidelines?
Each year, FNS will notify State agencies, by memorandum, of adjusted income guidelines by household size at 150 percent and 100 percent of the U.S. Federal Poverty Guidelines published annually by HHS. The memorandum will reflect the annual adjustments to the Federal Poverty Income Guidelines issued by the Department of Health and Human Services. The State agency must implement the adjusted guidelines immediately upon receipt of the memorandum.

(d) * * *

(2) The State agency may exclude from consideration the following sources of income:

(3) The State agency must exclude from consideration all income sources excluded by legislation. FNS will notify State agencies of forms of income excluded by statute through program policy memoranda. The income sources which must be excluded from consideration as income include, but are not limited to:

(i) Reimbursements from the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646, sec. 216, 42 U.S.C. 4636);

(ii) Any payment to volunteers under Title I (VISTA and others) and Title II (RSVP, foster grandparents, and others) of the Domestic Volunteer Service Act of 1973 (Pub. L. 93-113, sec. 404(g), 42 U.S.C. 5044(g)) to the extent excluded by that Act;

(iii) Payment to volunteers under section 8(b)(1)(B) of the Small Business Act (SCORE and ACE) (Pub. L. 95-510, sec. 101, 15 U.S.C. 637(b)(1)(D));

(iv) Income derived from certain submarginal land of the United States which is held in trust for certain Indian tribes (Pub. L. 94-114, sec. 6, 25 U.S.C. 459e);

(v) Payments received under the Job Training Partnership Act (Pub. L. 97-300, sec. 142(b), 29 U.S.C. 1552(b));

(vi) Income derived from the disposition of funds to the Grand River Band of Ottawa Indians (Pub. L. 94-540, sec. 6);

(vii) Payments received under the Alaska Native Claims Settlement Act (Pub. L. 100-241, sec. 15, 43 U.S.C. 1626(c));

(viii) The value of assistance to children or their families under the National School Lunch Act, as amended (Pub. L. 94-105, sec. 9(d), 42 U.S.C. 1760(e)), the Child Nutrition Act of 1966 (Pub. L. 89-642, sec. 11(b), 42 U.S.C. 1780(b)), and the Food and Nutrition Act of 2008 (Pub. L. 95-113, sec. 1301, 7 U.S.C. 2017(b));

(ix) Payments by the Indian Claims Commission to the Confederated Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the Mescalero Reservation (Pub. L. 95-433, sec. 2, 25 U.S.C. 609c-1);

(x) Payments to the Passamaquoddy Tribe and the Penobscot Nation or any of their members received pursuant to the Maine Indian Claims Settlement Act of 1980 (Pub. L. 96-420, sec. 6, 9(c), 25 U.S.C. 1725(i), 1728(c));

(xi) Payments under the Low-income Home Energy Assistance Act, as amended (Pub. L. 99-125, sec. 504(c), 42 U.S.C. 8624(f));

(xii) Student financial assistance received from any program funded in whole or part under Title IV of the Higher Education Act of 1965, including the Pell Grant, Supplemental Educational Opportunity Grant, State Student Incentive Grants, National Direct Student Loan, PLUS, College Work Study, and Byrd Honor Scholarship programs, which is used for costs described in section 472 (1) and (2) of that Act (Pub. L. 99-498, section 479B, 20 U.S.C. 1087uu). The specified costs set forth in section 472 (1) and (2) of the Higher Education Act are tuition and fees normally assessed a student carrying the same academic workload as determined by the institution, and including the costs for rental or purchase of any equipment, materials, or supplies required of all students in the same course of study; and an allowance for books, supplies, transportation, and miscellaneous personal expenses for a student attending the institution on at least a half-time basis, as determined by the institution. The specified costs set forth in section 472 (1) and (2) of the Act are those costs which are related to the costs of attendance at the educational institution and do not include room and board and dependent care expenses;

(xiii) Payments under the Disaster Relief Act of 1974, as amended by the Disaster Relief and Emergency Assistance Amendments of 1989 (Pub. L. 100-707, sec. 105(i), 42 U.S.C. 5155(d));

(xiv) Effective July 1, 1991, payments received under the Carl D. Perkins Vocational Education Act, as amended by the Carl D. Perkins Vocational and Applied Technology Education Act Amendments of 1990 (Pub. L. 101-392, sec. 501, 20 U.S.C. 2466d);

(xv) Payments pursuant to the Agent Orange Compensation Exclusion Act (Pub. L. 101-201, sec. 1);

(xvi) Payments received for Wartime Relocation of Civilians under the Civil Liberties Act of 1988 (Pub. L. 100-383, sec. 105(f)(2), 50 App. U.S.C. 1989b-4(f)(2));

(xvii) Value of any child care payments made under section 402(g)(1)(E) of the Social Security Act, as amended by the Family Support Act (Pub. L. 100-485, sec. 301, 42 U.S.C. 602 (g)(1)(E));

(xviii) Value of any “at-risk” block grant child care payments made under section 5081 of Pub. L. 101-508, which amended section 402(i) of the Social Security Act;

(xix) Value of any child care provided or paid for under the Child Care and Development Block Grant Act, as amended (Pub. L. 102-586, Sec. 8(b)), 42 U.S.C. 9858q);

(xx) Mandatory salary reduction amount for military service personnel which is used to fund the Veteran's Educational Assistance Act of 1984 (GI Bill), as amended (Pub. L. 99-576, sec. 303(a)(1), 38 U.S.C. 1411 (b));

(xxi) Payments received under the Old Age Assistance Claims Settlement Act, except for per capita shares in excess of $2,000 (Pub. L. 98-500, sec. 8, 25 U.S.C. 2307);

(xxii) Payments received under the Cranston-Gonzales National Affordable Housing Act, unless the income of the family equals or exceeds 80 percent of the median income of the area (Pub. L. 101-625, sec. 522(i)(4), 42 U.S.C. 1437f nt);

(xxiii) Payments received under the Housing and Community Development Act of 1987, unless the income of the family increases at any time to not less than 50 percent of the median income

of the area (Pub. L. 100-242, sec. 126(c)(5)(A), 25 U.S.C. 2307);

(xxiv) Payments received under the Sac and Fox Indian claims agreement (Pub. L. 94-189, sec. 6);

(xxv) Payments received under the Judgment Award Authorization Act, as amended (Pub. L. 97-458, sec. 4, 25 U.S.C. 1407 and Pub. L. 98-64, sec. 2(b), 25 U.S.C. 117b(b));

(xxvi) Payments for the relocation assistance of members of Navajo and Hopi Tribes (Pub. L. 93-531, sec. 22, 22 U.S.C. 640d-21);

(xxvii) Payments to the Turtle Mountain Band of Chippewas, Arizona (Pub. L. 97-403, sec. 9);

(xxviii) Payments to the Blackfeet, Grosventre, and Assiniboine tribes (Montana) and the Papago (Arizona) (Pub. L. 97-408, sec. 8(d));

(xxiv) Payments to the Assiniboine Tribe of the Fort Belknap Indian community and the Assiniboine Tribe of the Fort Peck Indian Reservation (Montana) (Pub. L. 98-124, sec. 5);

(xxx) Payments to the Red Lake Band of Chippewas (Pub. L. 98-123, sec. 3);

(xxxi) Payments received under the Saginaw Chippewa Indian Tribe of Michigan Distribution of Judgment Funds Act (Pub. L. 99-346, sec. 6(b)(2));

(xxxii) Payments to the Chippewas of Mississippi (Pub. L. 99-377, sec. 4(b));

(xxxiii) Payments received by members of the Armed Forces and their families under the Family Supplemental Subsistence Allowance from the Department of Defense (Pub. L. 109-163, sec. 608); and

(xxxiv) Payments received by property owners under the National Flood Insurance Program (Pub. L. 109-64).

(xxxv) Combat pay received by the household member under Chapter 5 of Title 37 or as otherwise designated by the Secretary.

7. Amend § 247.10 by revising the section heading and paragraph (b) to read as follows:

§ 247.10
Distribution and use of USDA Foods in CSFP.

(b)
What must the local agency do to ensure that USDA Foods are distributed only to CSFP participants?
The local agency must have a process in place, in accordance with State agency requirements, to verify the identity of participants or the participant's proxy before distributing USDA Foods to that person.

8. Amend § 247.14 by revising paragraphs (a)(2) and (3) and adding (a)(4) to read as follows:

§ 247.14
Other public assistance programs.
(a) * * *

(2) Medical assistance provided under Title XIX of the Social Security Act (42 U.S.C. 1396
et seq.
), including medical assistance provided to a qualified Medicare beneficiary (42 U.S.C. 1395(p) and 1396d(5));

(3) The Supplemental Nutrition Assistance Program (7 U.S.C. 2011
et seq.
); and

(4) The Senior Farmers' Market Nutrition Program (7 U.S.C. 3007
et seq.
).

9. Amend § 247.21 by revising the first sentence of paragraph (a)(3) to read as follows:

§ 247.21
Caseload assignment.

(a) * * *

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

10. Amend § 247.28 by revising the section heading to read as follows:

§ 247.28
Storage and inventory of USDA Foods.

11. Amend § 247.37(a) by revising the last sentence to read as follows:

§ 247.37
Civil Rights Requirements.
(a) * * * State and local agencies must ensure that the program is operated in accordance with the most up-to-date USDA nondiscrimination statement.

PART 247 [Amended]

12. In addition to the amendments set forth above, amend part 247 by removing the word “commodities” wherever it appears and adding, in its place, the words “USDA Foods”.

PART 250—DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION

13. The authority citation for part 250 continues to read as follows:

Authority:

5 U.S.C. 301; 7 U.S.C. 612c, 612c note, 1431, 1431b, 1431e, 1431 note, 1446a-1, 1859, 2014, 2025; 15 U.S.C. 713c; 22 U.S.C. 1922; 42 U.S.C. 1751, 1755, 1758, 1760, 1761, 1762a, 1766, 3030a, 5179, 5180.

14. Revise § 250.69 to read as follows:

§ 250.69
Disasters.

(a)
Use of USDA Foods to provide congregate meals.
The distributing agency may provide USDA Foods from current inventories, either at the distributing or recipient agency level, to a disaster organization (as defined in § 250.2), for use in providing congregate meals to persons in need of food assistance as a result of a Presidentially declared disaster or emergency (hereinafter referred to collectively as a “disaster”). FNS approval is not required for such use.

(1)
Notification of congregate meals activity to FNS.
Prior to using USDA Foods for congregate meals under this section, the distributing agency must notify FNS that such assistance is to be provided, and the period of time that it is expected to be needed. The distributing agency may extend such period of assistance as needs dictate but must notify FNS of such extension.

(2)
Selection of disaster organizations for disaster congregate meal service by the distributing agency.
Distributing agencies are responsible for choosing disaster organizations to implement congregate meal service, subject to FNS approval as described in paragraph (a)(1) of this section. Before distribution of USDA Foods to a disaster organization for congregate meal service, the distributing agency must review and approve such organization's application in accordance with applicable FNS guidance. A disaster organization's application must be submitted to the distributing agency in written form. The disaster organization's application must, to the extent possible, include the following information at a minimum:

(i) A description of the disaster situation;

(ii) The number of people requiring assistance;

(iii) The period of time for which USDA Foods are requested;

(iv) The quantity and types of USDA Foods needed; and

(v) The name, number and location of sites where USDA Foods are to be used, to the extent that such information is known.

(3)
Eligibility of emergency relief workers for congregate meals.
The disaster organization may use USDA Foods to provide meals to any emergency relief workers at the congregate feeding site who are directly engaged in providing relief assistance.

(b)
Use of USDA Foods for distribution to households.
Subject to FNS approval, the distributing agency may provide USDA Foods from current inventories in accordance with paragraph (c) of this section, either at

the distributing or recipient agency level, to a disaster organization, for distribution to households in need of food assistance because of a disaster. Once approved, such distribution may continue for the period that FNS has determined to be necessary to meet the needs of such households. Distributing agencies may request an extension of the distribution period, subject to FNS approval.

(1)
FNS approval of disaster household distribution.
Before permitting the distribution of USDA Foods to a disaster organization for household distribution, the distributing agency must submit an application to FNS for review and approval. The distributing agency's application must, to the extent possible, include the following information:

(i) A description of the disaster situation;

(ii) The number of people requiring assistance;

(iii) The period of time for which USDA Foods are requested;

(iv) The quantity and types of USDA Foods needed;

(v) The name, number, and location of sites where USDA Foods are to be used, to the extent that such information is known;

(vi) An explanation as to why household distribution is needed; and

(vii) The method(s) of distribution available.

(2)
Selection of a disaster organization for disaster household distribution of USDA Foods.
Distributing agencies are responsible for choosing disaster organizations to implement congregate meal service, subject to FNS approval as described in paragraph (b)(1) of this section. Before distribution of USDA Foods to a disaster organization, the distributing agency must review and approve such organization's application in accordance with applicable FNS guidance, which must be submitted to the distributing agency either electronically or in written form. The distributing agency must also submit such application to FNS for review and approval before permitting distribution of USDA Foods to households.

(c)
Limitation on impacts to other programs.
Distributing agencies must ensure that the operation of disaster congregate meal service and/or disaster household distribution is not administered in lieu of regular program operations nor does it negatively impact the distribution of USDA Foods through other programs in the State.

(d)
Reporting and recordkeeping requirements.
The distributing agency must report the following to FNS:

(1) The number, names, and locations of sites where USDA Foods are used in congregate meals or household distribution as these sites are established.

(2) The types and amounts of USDA Foods from distributing or recipient agency storage facilities used in disaster assistance, utilizing form FNS-292A,
Report of Commodity Distribution for Disaster Relief,
which must be submitted electronically, within 45 days from the termination of disaster assistance. This form must also be used to request replacement of USDA Foods, in accordance with paragraph (e) of this section. The distributing agency must maintain records of reports and other information relating to disasters.

(3) If the distributing agency is operating disaster household distribution per 250.69(b), and the disaster household distribution continues past 14 calendar days, the distributing agency must submit a weekly report to FNS, utilizing the format requested by FNS. This report must be submitted electronically each week that the disaster household distribution continues operation. Weekly reports must include:

(i) The weekly distribution start and end dates;

(ii) The total number of individual household members receiving assistance at all locations;

(iii) Material identification codes for USDA Foods distributed;

(iv) the USDA Foods description of the foods distributed; and

(v) the total units of each food distributed.

(e)
Replacement of USDA Foods.
In order to ensure replacement of USDA Foods used in disasters, the distributing agency must submit to FNS a request for such replacement, utilizing form FNS-292A,
Report of Commodity Distribution for Disaster Relief,
within 45 days following the termination of disaster assistance. The distributing agency may request replacement of USDA Foods used from inventories in which USDA Foods are commingled with other foods (
i.e.,
at storage facilities of recipient agencies utilizing single inventory management), if the recipient agency received USDA Foods of the same type as the foods used during the year preceding the onset of the disaster assistance. FNS will replace such USDA Foods in the amounts used, or in the amount of like USDA Foods received during the preceding year, whichever is less.

(f)
Reimbursement of transportation costs.
In order to receive reimbursement for any costs incurred in transporting USDA Foods within the State, or from one State to another, for use in disasters, the distributing agency must submit a public voucher to FNS with documentation of such costs. FNS will review the request and reimburse the distributing agency.

15. Revise § 250.70 to read as follows:

§ 250.70
Situations of distress.

(a)
Use of USDA Foods to provide congregate meals.
The distributing agency may provide USDA Foods from current inventories, either at the distributing or r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-17467. Public record. Not legal advice.