Food Assistance in Disaster and Distress Situations

SUMMARY: This rule proposes to amend the provisions of the Food

Distribution Program Regulations that relate to food assistance

provided in response to Presidentially declared disasters and

emergencies and in other situations of distress. The proposals

contained in this rule address: (1) Simultaneous issuance of

commodities and food stamps in a disaster; (2) distribution of

commodities to households in situations of distress; (3) authorization

for providing commodity assistance; (4) reporting requirements; and (5)

the replacement of commodities. In addition, revised definitions are

being proposed which encompass the definitions contained in the Robert

T. Stafford Disaster Relief and Emergency Assistance Act. These

revisions will help ensure that commodity assistance is made available

to victims of disasters and to those in situations of distress in the

most efficient and effective manner possible while maintaining the

integrity of the program.

DATES: To be assured of consideration, comments must be postmarked on

or before February 6, 1996.

ADDRESSES: Comments should be sent to: Lillie Ragan, Section Head,

Household Programs Section, Policy and Program Development Branch, Food

Distribution Division, Food and Consumer Service, U.S. Department of

Agriculture, Park Office Center, Room 502, 3101 Park Center Drive,

Alexandria, Virginia 22302-1594. Comments in response to this rule may

be inspected at 3101 Park Center Drive, Room 502, Alexandria, Virginia,

during normal business hours (8:30 a.m. to 5 p.m.), Monday through

Friday.

FOR FURTHER INFORMATION CONTACT: Lillie Ragan at the above address or

telephone (703) 305-2661.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This proposed rule has been determined to be not significant for

purposes of Executive Order 12866, and, therefore, has not been

reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

This action has been reviewed with regard to the requirements of

the Regulatory Flexibility Act (5 U.S.C. 601-612). The Administrator of

the Food and Consumer Service (FCS) has certified that this action will

not have a significant economic impact on a substantial number of small

entities. The primary impact of the procedures in this rulemaking would

be on FCS Regional Offices, State governments and individuals who might

apply for disaster or distress commodity benefits. To the extent that

county or other local governments assist in the distribution of

commodities at a disaster or distress feeding site, they would also be

affected.

Executive Order 12372

These programs are listed in the Catalog of Federal Domestic

Assistance under 10.550 and are subject to the provisions of Executive

Order 12372, which requires intergovernmental consultation with State

and local officials (7 CFR part 3015, Subpart V and final rule-related

notices published at 48 FR 29114, June 24, 1983 and 49 FR 22676, May

31, 1984).

Information Collection

This proposed rule contains information collection requirements

which are subject to review and approval by the Office of Management

and Budget (OMB). As required by section 3504(h) of the Paperwork

Reduction Act of 1980 (44 U.S.C. 3504(h)), FCS has submitted a copy of

this proposed rule to OMB for review of these information collection

requirements. The title, description, and respondent description of the

information collections are shown below with an estimate of the annual

reporting and recordkeeping burdens.

Title: Commodity Assistance to Households in Disasters and

Situations of Distress.

Description: In instances when the Food Stamp Program is in

operation and commodities are being made available for distribution to

households, this proposed rule increases the reporting and

recordkeeping burden by requiring the collection of the following

minimal information from each household receiving commodities during

Presidentially declared disasters and other situations of distress: (1)

name of one household member; (2) address; (3) number of persons in the

household; and (4) a signed statement of assurance that the household

is not receiving food stamp benefits. Such information is necessary in

that it can be used by local organizations involved in the distribution

of commodities to determine if a household is receiving food stamp

benefits, thus significantly reducing the possibility of both food

stamp and commodity assistance being provided to households

simultaneously.

The reporting and recordkeeping requirements identified below have

been submitted to OMB for approval and are not effective until such

approval is obtained. The new information collection requirements will

not become effective until OMB has assigned a control number. Current

reporting and recordkeeping requirements for disaster assistance were

approved under Control Number 0584-0037.

Description of Respondents: Relief organizations, households

receiving commodities for home consumption in Presidentially declared

disasters and other situations of distress when the situation warrants.

[[Page 63000]]

Food Assistance in Disaster and Distress Situations Description of Respondent's Estimated Annual Reporting and

Recordkeeping Burden

----------------------------------------------------------------------------------------------------------------

Annual Annual Average

Section 7 CFR part Number frequency burden per Annual

respondents response hours burden

----------------------------------------------------------------------------------------------------------------

7 CFR 250.43:

Previous................................................ 0 0 0 0

Proposed................................................ 1000 1 .020 20

7 CFR 250.44:

Previous................................................ 0 0 0 0

Proposed................................................ 1000 1 .020 20

----------------------------------------------------------------------------------------------------------------

Total Previous Burden Hours: 0; Total Proposed Burden Hours: 66; Total Difference: +66.

Executive Order 12778

This proposed rule has been reviewed under Executive Order 12778,

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

implementation. This rule is not intended to have retroactive effect

unless so specified in the ``Effective Date'' section of the preamble

of the final rule. All available administrative procedures must be

exhausted prior to any judicial challenge to the provisions of this

rule or the application of its provisions.

Background

On October 13, 1994, the President signed the Federal Crop

Insurance Reform and Department of Agriculture Reorganization Act of

1994, Pub. L. 103-354. One of the provisions of the Act eliminated the

Food and Nutrition Service (FNS) and replaced it with the Food and

Consumer Service (FCS). Therefore, references to FNS throughout this

proposed rule have been changed to FCS. References to FNS in the

remainder of 7 CFR Part 250 will be changed through rulemaking at a

later date.

The Department makes commodities available for use in providing

food assistance to victims of disasters and emergencies, and to those

in situations of distress, in accordance with authority contained in

several statutes. Donated commodities are made available for use in

providing food assistance to victims of Presidentially declared

disasters and emergencies in accordance with the provisions contained

in sections 412 and 413 of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act (DREAA). DREAA was formerly known as ``The

Disaster Relief Act of 1974.'' It was amended and its title changed to

DREAA by Public Law 100-707 (November 23, 1988), the Disaster Relief

and Emergency Assistance Amendments of 1988.

Donated commodities are made available for use in non-

Presidentially declared emergencies (i.e., situations of distress) in

accordance with section 32 of the Act of August 24, 1935, section 416

of the Agricultural Act of 1949, and section 4(a) of the Agriculture

and Consumer Protection Act of 1973.

The regulations governing the Food Distribution Program (7 CFR Part

250) outline the responsibilities of FCS and distributing agencies with

regard to the distribution of donated commodities during a disaster or

emergency, and in situations of distress.

As discussed in detail below, some proposals contained in this

proposed rule reflect amendments which have been made to the

authorizing legislation. This proposed rule also includes regulatory

changes recommended by the Task Force for Disaster Preparedness

established by the Department of Agriculture (USDA or Department) in

response to issues which arose in the course of providing food

assistance to victims of several disasters and other types of

emergencies in the past several years. The Task Force was comprised of

representatives from USDA, the Federal Emergency Management Agency

(FEMA), private national organizations such as the Red Cross, and State

and local agencies. One of the objectives of the Task Force was to

identify current Federal disaster policies that are in need of

revision. Regulatory amendments embodying Task Force recommendations

are proposed in this rule under the discretionary authority granted to

the Secretary by section 32 of the Act of August 24, 1935, section 416

of the Agricultural Act of 1949, and the DREAA. The discretionary

changes are part of the Department's effort to ensure that commodity

assistance is made available to victims of disasters, emergencies and

situations of distress in the most efficient and effective manner

possible while maintaining the integrity of the program.

Definitions

Section 250.3 of the current regulations contains definitions of

``Emergency'' and ``Major Disaster'' derived from the Disaster Relief

Act of 1974 (now ``DREAA''). Pub. L. 100-707 amended the Disaster

Relief Act of 1974 to revise these definitions.

The DREAA defines ``Emergency'' as ``any occasion or instance for

which, in the determination of the President, Federal assistance is

needed to supplement State and local efforts and capabilities to save

lives and to protect property and public health and safety, or to

lessen or avert the threat of a catastrophe in any part of the United

States.''

A ``Major Disaster'' is defined under the DREAA as ``any natural

catastrophe (including any hurricane, tornado, storm, flood, high

water, wind-driven water, tidal wave, tsunami, earthquake, volcanic

eruption, landslide, mudslide, snowstorm, drought), or, regardless of

cause, any fire, flood, or explosion, in any part of the United States,

which in the determination of the President causes damage of sufficient

severity and magnitude to warrant major disaster assistance under the

DREAA to supplement the efforts and available resources of States,

local governments, and disaster relief organizations in alleviating the

damage, loss, hardship, or suffering caused thereby.''

The majority of the general public is not familiar with the

specific terms contained in the DREAA (i.e. ``Emergency'' and ``Major

Disaster''). Furthermore, this rulemaking establishes no distinctions

between the situations these terms represent regarding types of

benefits or procedures for authorizing, utilizing, reporting on

utilization of, or replacing commodities. Therefore, this rule proposes

to: (1) add to Section 250.3 the term ``Disaster,'' which would

incorporate the definitions of ``Emergency'' and ``Major Disaster''

contained in the DREAA; and (2) delete the terms ``Emergency'' and

``Major

[[Page 63001]]

Disaster'' currently contained in Section 250.3. These proposed

revisions would not impact on program operations or benefits in any

way.

The key distinction between disasters and situations of distress

with regard to food assistance is whether a Presidential declaration is

made. However, there is no definition of ``Situation of Distress''

under Section 250.3 of the current regulations to make this distinction

immediately clear.

Therefore, this rule also proposes to amend Section 250.3 to add a

definition for ``Situation of Distress.'' Under this proposal, a

``Situation of Distress'' is defined as ``(1) a hurricane, tornado,

storm, flood, high water, wind-driven water, tidal wave, tsunami,

earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought,

fire, explosion, or other natural catastrophe not declared by the

President to be an emergency or disaster, but which, in the judgment of

a State distributing agency, warrants the use of USDA commodities for

congregate feeding; and (2) any other situation not declared by the

President to be an emergency or disaster, but which, in the judgment of

FCS, warrants the use of USDA commodities for congregate feeding or

household distribution.'' This proposed definition will: (1) clarify

that a situation of distress lacks a Presidential declaration; and (2)

clearly identify those situations in which State distributing agencies

can independently initiate USDA commodity assistance, on the one hand,

and those in which prior approval by FCS is required.

Reference to the Disaster Relief Act of 1974

The Disaster Relief Act of 1974 is referenced in Sections 250.43(a)

and 250.43(e) of the current regulations. Following publication of the

regulations, the Disaster Relief Act of 1974 was amended and renamed

the DREAA. Therefore, this rule proposes to amend Section 250.43(e) to

remove the outdated reference and replace it with a reference to the

DREAA, and proposes to remove all reference to any statutory authority

in Section 250.43(a) since such reference is unnecessary.

Distribution of Commodities to Households in Presidentially Declared

Disaster Areas

This section of the preamble addresses ``disasters,'' the proposed

definition for which encompasses only situations in which a

Presidential declaration has been issued. ``Situations of distress,''

proposed to be defined as situations lacking a Presidential

declaration, are discussed later in this preamble.

On August 19, 1985, an overall revision of Part 250 was published

as a proposed rule in the Federal Register (50 FR 33470). Section

250.43 of the proposed rule limited the distribution of commodities to

households residing in areas served by the Food Stamp Program to those

instances in which commercial channels of trade have been disrupted due

to a major disaster or emergency.

Approval of requests to make commodities available for distribution

to households was made contingent upon commercial channels of trade

having been disrupted because it is in these circumstances that

households would have no way of using food stamps. Thus, such a

contingency would ensure that commodity and food stamp assistance would

not be provided in any area simultaneously, thereby eliminating any

possibility of households receiving dual benefits.

In general, commenters on the proposed rule of August 1985 opposed

limiting the distribution of commodities to households in this manner.

However, the interim rule published in the Federal Register on June 3,

1988, (53 FR 20416) retained the provision as proposed on the premise

that in instances in which commercial channels of trade are intact,

nutritional needs of disaster victims can be met through the Food Stamp

Program.

Since implementation of the interim rule, several disasters have

occurred in response to which the Department provided food assistance.

This experience, and recommendations of the Task Force for Disaster

Preparedness, have led the Department to reevaluate the current

regulatory provisions. While the Department still believes that the

Food Stamp Program should be the primary food assistance program for

disaster victims whenever commercial channels of trade are intact, it

also acknowledges that there are instances in which such facilities

remain in operation yet are inaccessible to some disaster victims. For

example, where roads have been heavily damaged or flooded, some

individuals residing in households in that area may not be able to

reach food stamp certification offices or local grocery stores. They

may, however, have access to emergency commodity distribution sites

strategically located in response to the specific situation.

Therefore, in accordance with the discretionary authority provided

under the DREAA, to facilitate reasonable access to food assistance for

all disaster victims, this rule proposes to amend Section 250.43 of the

current regulations to establish FCS's authority to permit distribution

of commodities to households regardless of whether commercial channels

of trade have been disrupted or the Food Stamp Program is in operation

in instances in which such distributions are warranted. However, the

Department believes that most disaster situations will not warrant the

simultaneous operation of the Food Stamp Program and a household

commodity distribution program in the same area.

Submission of Requests

Section 250.43(c) of the current regulations requires that

distributing agencies submit requests to the appropriate FCS Regional

Office (FCSRO) for approval prior to making commodities available for

distribution to households. However, the process for approving such

requests has not been clearly understood.

While the regulations require submission of such requests to the

appropriate FCSRO, the requests are forwarded to FCS Headquarters for

actual approval. In an effort to eliminate any confusion regarding the

approval process, this rule proposes to revise Section 250.43(c) to

require that requests be submitted to the FCSRO for forwarding to FCS

for approval. Since the FCSRO is typically very close to or on the

scene of a disaster, the FCSRO will be expected to submit a

recommendation to FCS along with the application for use in making

appropriate determinations. In addition, this rule proposes to revise

this section to clarify the information currently required to be

submitted as part of such requests.

This rule also proposes to apply information requirements

established under current rules for approval to make household

distributions in situations when commercial channels of trade have been

disrupted to situations in which commercial channels are intact. The

proposal would also establish additional requirements in both types of

situations. In addition to the information distributing agencies are

currently required to submit when requesting approval for the

distribution of commodities to households, requests would be required

to include, at a minimum, the following information: (1) An explanation

as to why the distribution of commodities to households is warranted;

(2) identification of the specific area(s) included in the request; (3)

a statement of assurance that simultaneous food stamp and commodity

assistance will not be provided to individual households; and (4) a

description of the

[[Page 63002]]

system that will be implemented to prevent dual participation.

Submission of such information is necessary in order for FCS to

determine if the situation warrants the simultaneous distribution of

food stamps and commodities and to ensure that the State has a viable

system to prevent dual benefits from being provided to households.

Collection of Household Information

While various forms have been developed by States for use in

collecting household data, current regulations contain no provisions

concerning the collection of information from households for the

receipt of donated foods during a disaster. Under the provisions

contained in this proposed rule, food stamp benefits can be issued and

commodities distributed for home consumption in areas where it has been

determined by the Department that the situation warrants such

simultaneous operations. However, the Department is concerned that in

such instances food stamp benefits and commodities may be provided to

the same household simultaneously. In an effort to ensure that

information necessary to prevent the issuance of dual benefits and for

establishing and pursuing claims action is available, this rule

proposes to amend section 250.43(c) to require that organizations

distributing donated foods to households in areas where the Food Stamp

Program is in operation obtain, at a minimum, the name of the household

member applying for assistance, number of members in the household, and

the household's address. Such information must be recorded in whatever

format the State deems appropriate.

In addition to providing the above information, organizations

distributing donated foods to households would be required to obtain a

signed statement of assurance from the adult member of the household

applying for benefits to the effect that the household: (1) Is in need

of food assistance as a result of the disaster; (2) understands that

misrepresentation of need and the sale or exchange of the donated food

are prohibited and could result in a fine, imprisonment, or both; (3)

is not residing in a shelter which provides food assistance; and (4) is

not receiving food stamp assistance. While the intent of this signed

statement is to prevent applicants from receiving duplicative food

assistance benefits, it should be reasonably interpreted in the context

of the individual case. For example, a household which applies for

commodity assistance en route from a shelter where food assistance was

provided to reoccupy its permanent residence should not be considered

to be ``residing in a shelter.'' The signing of such statements will

ensure that households understand the conditions under which the food

assistance is being provided. Such statements will also provide further

support for pursuing a claim against a household in instances in which

both food stamp and commodity assistance were provided. Under the

proposal, all signed statements must be provided to the distributing

agency unless the organization distributing the commodities is an

agency of the State. At the discretion of the distributing agency, non-

State agencies may be assigned responsibility of retaining such

statements rather than forwarding them to the State.

In instances when it is determined that claims action against a

household is warranted due to the receipt of both food stamp and

commodity assistance, the Department intends to pursue such action

through establishment of a claim against the household for the value of

the food stamps issued. This course of action is preferred since the

recordkeeping requirements that would have to be imposed on a disaster

organization to ensure availability of information necessary to

establish a claim for the value of commodities would be significant,

while recording the value of the food stamp benefit provided is already

required and much less time consuming.

There have been instances in past years in which other Federal

agencies have been involved in providing food assistance to disaster

victims with USDA commodities. Questions were raised as to whether

these agencies were subject to the requirements set forth for disaster

situations. In instances in which it has been determined that the

collection of certain information is necessary and the regulations

contain information collection requirements, all organizations,

regardless of the type, must comply with the requirements. This

proposed rule will clarify that any entity, including Federal, State,

and local agencies, involved in the distribution of USDA commodities

must comply with all such regulatory requirements. In addition, this

proposed rule will clarify that State and Federal agencies can act as a

disaster organization in providing food assistance during disasters and

situations of distress.

Replacement of Commodities

Section 250.43(g) of the current regulations states that USDA

commodities used from the State's inventory for a major disaster or

emergency will be replaced by FCS to the extent that foods are

available.

Section 413(b) of the DREAA authorizes the use of funds under

section 32 of the Act of August 24, 1935, to purchase food necessary to

provide adequate supplies for use in a major disaster or emergency.

This rule proposes to amend paragraph (g) of Section 250.43 to reflect

the statutory authority. This change will guarantee that USDA

commodities used by a State for disaster assistance are replaced,

provided that a timely request is submitted by the distributing agency.

Use of Commodities in Situations of Distress

The primary difference between a disaster and a situation of

distress, with regard to USDA food assistance, is that a situation of

distress is not of a magnitude to warrant an emergency or disaster

declaration by the President. This section of the preamble addresses

only such situations of distress.

Section 250.44 of the current regulations permits, upon approval by

the Secretary, the distribution of donated foods to organizations for

use in preparing meals in situations in which the need for food

assistance cannot be met through other provisions of Part 250

regulations. Prior to the overall revision of Part 250, which was

published as an interim rule in the Federal Register on June 3, 1988,

(53 FR 20416), the regulations also permitted the Department to

authorize distribution of commodities to households in all such

situations. In drafting the overall revision, the Department decided to

delete those provisions relative to household distribution in

situations of distress on the premise that food assistance to

households can be provided through the Food Stamp Program.

Since implementation of the interim rule, the Department has

determined that the Food Stamp Program may not be able to meet the

nutritional needs of all affected households in situations of distress.

For example, it may not be possible for some households to obtain food

stamp benefits due to certain eligibility requirements, such as

resource limits on the value of vehicles, or citizenship. In addition,

there may be instances in which certain areas are hard hit by a non-

Presidentially declared disaster (i.e., situation of distress) and

using food stamps is not feasible because commercial channels of trade

in those particular areas are disrupted.

Therefore, to ensure that food assistance can be made available to

households in these types of situations,

[[Page 63003]]

this rule proposes to revise Section 250.44 to reinstate the

Department's authority to permit the distribution of commodities to

households in situations of distress. This discretionary authority is

afforded the Secretary under section 416 of the Agricultural Act of

1949, and section 32 of the Act of August 24, 1935.

Section 250.44 is being revised instead of Section 250.43, which

sets forth provisions relative to disasters, in order to clarify and

underscore the different treatment of Presidentially declared

``disasters,'' on the one hand, and ``situations of distress,'' on the

other.

Submission of Requests

Section 250.44 of the current regulations requires that all

requests for the donation of commodities for use in situations of

distress be submitted for approval by the Secretary.

This rule proposes to revise Section 250.44 to delegate the

authority for approving requests for the donation of commodities for

use in congregate feeding to the distributing agency in instances in

which the need for such assistance meets the conditions of paragraph

(1) of the definition of ``Situation of Distress'' set forth in Section

250.3. Those instances include ``a hurricane, tornado, storm, flood,

high water, wind-driven water, tidal wave, tsunami, earthquake,

volcanic eruption, landslide, mudslide, snowstorm, drought, fire,

explosion, or other natural catastrophe not declared by the President

to be an emergency or disaster.'' This delegation of authority is

consistent with the delegation of authority contained in Section 250.43

for the use of commodities for congregate feeding in Presidentially

declared disasters. While the Department recognizes that instances

other than those included above may warrant the donation of commodities

for use in preparing congregate meals, such donations should be limited

to those situations where it can be determined that other traditional

Federal or State assistance programs cannot meet the needs of

individuals who have been adversely affected by the situation. Thus, in

an effort to ensure consistency in such determinations, Section 250.44

of this rule proposes to require that requests for the donation of

commodities for use in preparing congregate meals in instances when the

situation of distress does not fit the above criteria be submitted for

approval by FCS. Approval by FCS, instead of by the Secretary, will

facilitate expeditious handling of requests, while still maintaining an

appropriate level of oversight.

Section 250.44(c)(2) of this rule also proposes to require that

requests for the donation of commodities for distribution to households

in situations of distress, regardless of the type of situation, be

submitted for approval by FCS. The proposal would require this level of

approval in an effort to ensure that: (1) Such distributions are

limited to situations that warrant this type of assistance; and (2)

households will not be receiving food stamp and commodity assistance

simultaneously.

As discussed in the Definitions section earlier in this preamble,

for purposes of clarification, this rule also proposes to specify the

above-described approval authorities for congregate feeding and

household distribution, respectively, in the definition of ``Situation

of Distress'' contained in Section 250.3.

This rule also proposes to amend Section 250.44 to require that

organizations requesting the donation of commodities for use in

congregate meal service for victims of situations of distress provide

the following information to the distributing agency: (1) A description

of the distress situation; (2) number of people requiring meals; (3)

period of time for which the donations are being requested; and (4)

quantity and types of food needed. In addition, information on the

number and location of sites providing meals will be provided as sites

are established.

It is imperative that this information be provided so that FCS and

the distributing agency are able to determine if: (1) The donation of

commodities is warranted; (2) the amount and types of commodities

requested are appropriate for the situation; and (3) there is

sufficient food in inventory within the State to meet the needs of the

organizations. When the distributing agency has approved requests for

the donation of commodities for congregate feeding in accordance with

the delegation of authority prescribed above, it must forward this

information to the appropriate FCSRO.

This rule proposes to revise Section 250.44 to require that

requests to FCS for permission to distribute commodities to households

contain, at a minimum, the following information: (1) A description of

the situation; (2) an explanation as to why such distributions are

warranted; (3) period of time for which the request is being made; (4)

identification of the specific area(s) included in the request; (5)

number of households expected to participate; (6) quantity and types of

food needed; (7) a statement of assurance that both food stamp and

commodity assistance will not be provided to individual households

simultaneously; and (8) a description of the system that will be

implemented to prevent dual participation in the Food Stamp Program and

the commodity household distribution program. In addition, information

relative to the number and location of distribution sites must be

provided to FCS as sites are established.

Collection of Household Information

Section 250.44 is also revised in this proposed rule to require

that any entity, including Federal, State, and local agencies, involved

in the distribution of USDA commodities comply with the requirements

contained in Section 250.43(c) of this proposed rule regarding the

collection and submission of information (i.e., household information,

and statements of assurance). As with Presidentially declared

disasters, this information will be used to ensure that such

distributions are warranted and to enhance program accountability.

Submission of Form FNS-292

This rule proposes to incorporate in Section 250.44 a requirement

that distributing agencies submit a summary report to the FCSRO using

Form FNS-292, Report of Coupon Issuance and Commodity Distribution for

Disaster Relief, within 30 days following termination of the

distribution period. This requirement is being incorporated to ensure

timely reporting, strengthen program accountability, and facilitate

timely replacement of State inventories of USDA commodities in

instances in which replacement commodities are available.

Thirty-Day Restriction

Section 250.44 of the current regulations limits the distribution

of commodities in situations of distress to a period of 30 days.

However, it is the opinion of the Department that some situations of

distress may warrant a longer distribution period. Thus, this rule

proposes to amend Section 250.44 to permit the distribution of

commodities for longer periods of time when the situation warrants. In

instances in which the distributing agency approves the distribution of

commodities for use in preparing congregate meals, such approval may be

granted for a period not to exceed 30 days. Should the distributing

agency determine that the situation warrants a longer distribution

period, the distributing agency must submit a request to justify an

extension to FCS for

[[Page 63004]]

approval. These provisions will afford FCS increased flexibility in

responding to situations of distress, and at the same time ensure that

the use of USDA commodities in these situations is warranted.

In addition, this rule proposes to clarify in Section 250.44 that

the determination as to the appropriate period of time for which

commodities will be made available would be subject to revision as

developing circumstances dictate. In instances when the distributing

agency extends the distributions within the 30-day period discussed

above, it must notify the FCSRO of such extensions. Submission of this

information to the FCSRO is necessary to facilitate accurate

replacement of USDA commodities, as discussed below.

Replacement of Commodities

Section 250.44 of the current regulations does not contain

provisions relative to the replacement of the USDA commodities that

States use to provide assistance during a situation of distress. USDA

has limited funding to purchase commodities for use in providing food

assistance in situations of distress, and can also donate for this use

commodities purchased under price-support and surplus removal

authorities. Therefore, USDA commodities that are used from the State's

inventory for a situation of distress will be replaced at the request

of the distributing agency to the extent that inventories of price-

support and surplus-removal commodities permit. This rule proposes to

amend Section 250.44 to include this replacement policy. In addition,

to ensure timely submission of requests for replacement, this rule

proposes to incorporate a requirement that such requests be submitted

within 30 days following termination of the distributions.

The attached chart has been included in this preamble to assist

readers in understanding the basic provisions set forth in this

proposed rule.

Situation of

Disaster distress

Definition............ (1) any natural (1) a hurricane,

catastrophe (including tornado, storm,

any hurricane, tornado, flood, high water,

storm, flood, high water, wind-driven water,

wind-driven water, tidal tidal wave,

wave, tsunami, tsunami,

earthquake, volcanic earthquake,

eruption, landslide, volcanic eruption,

mudslide, snowstorm, landslide,

drought), or, regardless mudslide,

of cause, any fire, snowstorm, drought,

flood, or explosion, in fire, explosion, or

any part of the U.S., other natural

which in the catastrophe not

determination of the declared by the

President causes damage President to be an

of sufficient severity emergency or

and magnitude to warrant disaster, but

major disaster assistance which, in the

under the DREAA to judgment of the

supplement the efforts distributing

and available resources agency, warrants

of States, local the use of USDA

governments, and disaster commodities for

relief organizations in congregate feeding;

alleviating the damage, and (2) any other

loss, hardship, or situation not

suffering caused thereby; declared by the

or (2) any other occasion President to be an

or instance for which, in emergency or

the determination of the disaster, but

President, Federal which, in the

assistance is needed to judgment of FCS,

supplement State and warrants the use of

local efforts and USDA commodities

capabilities to save for congregate

lives and to protect feeding or

property and public household

health and safety, or to distribution.

lessen or avert the

threat of a catastrophe

in any part of the U.S.

----------------------------------------------------------------------------------------------------------------

Household Household

Food assistance authorized Congregate feeding distribution Congregate feeding distribution

----------------------------------------------------------------------------------------------------------------

Approval authority.............. State distributing FCS HQ............ If distress FCS HQ.

agency. situation in

accordance with

(1) in above

definition, State

distributing

agency;

Otherwise, FCS HQ.

Applicable sections of 250.43(b)......... 250.43(c)......... 250.44(b)......... 250.44(c).

regulations.

Household information required.. None.............. Name; Address; None.............. Name; Address;

Number in Number in

Household; Household;

Assurance Assurance

Statement re: Statement re:

need and dual need and dual

participation in participation in

food stamps; food stamps;

Signature (in Signature (in

instances when instances when

the Food Stamp the Food Stamp

Program is in Program is in

operation). operation).

Replacement of USDA commodities. Yes............... Yes............... To the extent To the extent

available. available.

----------------------------------------------------------------------------------------------------------------

List of Subjects

7 CFR Part 250

Aged, Agricultural commodities, Business and industry, Food

assistance programs, Food donations, Food processing, Grant programs-

social programs, Indian, Infants and children, Price support programs,

Reporting and recordkeeping requirements, School breakfast and lunch

programs, Surplus agricultural commodities.

Accordingly, 7 CFR Part 250 is proposed to be amended as follows:

PART 250--DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS

TERRITORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION

1. The authority citation for Part 250 continues to read as

follows:

Authority: 5 U.S.C. 301; 7 U.S.C. 612c, 612 note, 612c note,

1431, 1431b, 1431e, 1431 note, 1446a-1, 1859; 15 U.S.C. 713c; 22

U.S.C. 1922; 42 U.S.C. 1755, 1758, 1760, 1761, 1762a, 1766, 3030a,

5179, 5180.

2. In Section 250.3:

a. The definitions of Emergency and Major Disaster are removed; and

b. definitions of Disaster and Situation of Distress are added in

alphabetical order.

The additions read as follows:

Sec. 250.3 Definitions.

* * * * *

Disaster means:

(a) any natural catastrophe (including any hurricane, tornado,

storm, flood, high water, wind-driven water, tidal wave, tsunami,

earthquake, volcanic eruption, landslide, mudslide, snowstorm,

drought), or, regardless of

[[Page 63005]]

cause, any fire, flood, or explosion, in any part of the United States,

which in the determination of the President causes damage of sufficient

severity and magnitude to warrant major disaster assistance under the

Disaster Relief and Emergency Assistance Act to supplement the efforts

and available resources of States, local governments, and disaster

relief organizations in alleviating the damage, loss, hardship, or

suffering caused thereby; or

(b) any other occasion or instance for which, in the determination

of the President, Federal assistance is needed to supplement State and

local efforts and capabilities to save lives and to protect property

and public health and safety, or to lessen or avert the threat of a

catastrophe in any part of the United States.

* * * * *

Situation of Distress means:

(a) a hurricane, tornado, storm, flood, high water, wind-driven

water, tidal wave, tsunami, earthquake, volcanic eruption, landslide,

mudslide, snowstorm, drought, fire, explosion, or other natural

catastrophe not declared by the President to be an emergency or

disaster, but which, in the judgment of the distributing agency,

warrants the use of USDA commodities for congregate feeding; and

(b) any other situation not declared by the President to be an

emergency or disaster, but which, in the judgment of FCS, warrants the

use of USDA commodities for congregate feeding or household

distribution.

* * * * *

3. Section 250.43 is revised to read as follows:

Sec. 250.43 Disaster Food Assistance.

(a) Organizational eligibility. In instances in which the President

has declared a disaster and FCS has determined that, as a result of the

disaster, low-income households are unable to purchase adequate amounts

of nutritious food, disaster organizations (including agencies of State

and Federal government) may be eligible to receive donated foods for

congregate meal service or household distribution to disaster victims.

Applications submitted for the receipt and distribution of donated

foods in accordance with paragraphs (b)(2) and (c)(2) of this section

shall be initially submitted in writing if circumstances permit and, if

not, confirmed in writing in a timely manner. Both the applications and

the written approval for the use of USDA commodities shall be

maintained in accordance with the recordkeeping requirements of this

Part.

(b) Congregate meal service. (1) Approval authority and duration.

Distributing agencies may review and approve applications submitted by

disaster organizations for the donation of foods for use in preparing

congregate meals for disaster victims. Distributing agencies also shall

determine the length of such donations, taking into consideration the

magnitude of the situation, and may extend the duration of such

donations as developing circumstances dictate. Following approval of a

request for donated foods, the distributing agency shall make

appropriate donated foods available from any source within the State to

the disaster organization(s) and within 24 hours of approving the

application shall report the information listed in paragraph (b)(2) of

this section to the appropriate FCSRO.

(2) Applications. Disaster organizations shall submit applications

for the receipt and distribution of donated foods for use in providing

congregate meal service to the distributing agency. Applications shall,

to the extent possible, include the following information.

(i) Description of disaster or emergency situation;

(ii) Number of people requiring meals;

(iii) Period of time for which commodities are requested; and

(iv) Quantity and types of food needed for congregate meal service.

In addition, organizations shall report the number and location of

sites providing congregate meal service as sites are established.

(c) Household distribution. (1) Approval authority and duration.

Distributing agencies shall submit applications for the distribution of

donated foods to households to the appropriate FCSRO for submission to

FCS for approval. FCS will determine the length of time such donations

will be made, taking into consideration the magnitude of the situation,

and may extend the duration of such donations as developing

circumstances dictate.

(2) Applications. Disaster organizations shall submit applications

for the receipt and distribution of donated foods to households to the

distributing agency. Applications shall, to the extent possible,

include the following information:

(i) Description of disaster or emergency situation;

(ii) Identification of the specific area(s) included in the

request;

(iii) Number of households affected;

(iv) Explanation as to why the distribution of commodities to

households is warranted;

(v) Anticipated distribution period;

(vi) Method of distribution available;

(vii) Quantity and types of food needed for distribution;

(viii) Statement of assurance that simultaneous food stamp and

commodity assistance will not be provided to individual households; and

(ix) Description of the system that will be implemented to prevent

dual participation.

Information on the number and location of sites where commodities

are to be distributed shall be provided as sites are established.

(3) Collection of household information. In instances in which the

Food Stamp Program is in operation, any entity (i.e. Federal, State, or

local) distributing donated foods to households shall, at a minimum,

collect the information listed below in a format prescribed by the

distributing agency. Such information shall be forwarded to the

distributing agency and maintained by the distributing agency in

accordance with the recordkeeping requirements contained in this Part,

except that such information may, at the discretion of the distributing

agency, be maintained by the organization distributing commodities if

such organization is an agency of the State government.

(i) Name of household member applying for assistance;

(ii) Address;

(iii) Number of household members; and

(iv) Statement signed by the household certifying that the

household:

(A) is in need of food assistance;

(B) understands that misrepresentation of need, and the sale or

exchange of the donated food are prohibited and could result in a fine,

imprisonment, or both;

(C) is not residing in a shelter which provides food assistance;

and

(D) is not receiving food stamp assistance.

(d) Quantities and value of donated foods. The distributing agency

shall make donated foods available to eligible disaster organizations

based on the caseload factor information provided by the disaster

organizations.

(e) Types of donated foods authorized for donation. Disaster

organizations providing food assistance under this Section are eligible

to receive donated foods under section 416, section 32, section 709,

section 4(a), and sections 412 and 413 of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (42 U.S.C. 5181-82).

(f) Summary report. Within 30 days following termination of the

disaster assistance, the distributing agency shall provide a summary

report to the appropriate FCSRO using Form FNS-

[[Page 63006]]

292, Report of Coupon Issuance and Commodity Distribution for Disaster

Relief.

(g) Replacement. The distributing agency shall request, in writing

to the FCSRO, the replacement of foods used for disaster assistance

within 30 days following termination of the assistance. FCS will

replace donated foods used from State and/or local inventories for

disaster assistance in instances when a request for replacement is

submitted within the required 30 days or sufficient justification

exists to waive the 30-day requirement.

4. Section 250.44 is revised to read as follows:

Sec. 250.44 Food Assistance in Situations of Distress.

(a) Organizational eligibility. In situations of distress in which

needs for food assistance cannot be met under other provisions of this

Part, organizations (including agencies of State and Federal

government) may be eligible to receive donated foods for congregate

meal service or household distribution to victims of the situation of

distress. Applications submitted for the receipt and distribution of

donated foods in accordance with paragraphs (b)(2) and (c)(2) of this

section shall be initially submitted in writing if circumstances permit

and, if not, confirmed in writing in a timely manner. Both the

applications and the written approval for the use of USDA commodities

shall be maintained in accordance with the recordkeeping requirements

of this Part.

(b) Congregate meal service. (1) Approval authority and duration.

Distributing agencies may review and approve applications for the

donation of foods for use in preparing congregate meals for a period

not to exceed 30 days for victims of situations of distress in

instances in which the need for such assistance meets the conditions of

paragraph (a) of the definition of Situation of Distress in Section

250.3. Following approval of a request, distributing agencies shall

report the information listed in paragraph (b)(2) of this section to

the appropriate FCSRO within 24 hours. In instances when the

distributing agency extends the distribution period initially approved

up to the 30-day limit, it shall notify the FCSRO of such extensions.

Distributing agencies shall request approval from FCS, via the

appropriate FCSRO, for donations to exceed 30 days. Applications for

the donation of foods for congregate meals in instances other than

those that meet the criteria in paragraph (a) of the definition of

Situation of Distress in Section 250.3 shall be forwarded by the

distributing agency to the appropriate FCSRO for submission to FCS for

approval. FCS will determine the duration of such donations, taking

into consideration the magnitude of the situation. Determinations as to

the length of donations may be revised as developing circumstances

dictate.

(2) Applications. (i) Organizations shall submit applications for

the receipt and distribution of donated foods for use in providing

congregate meal service to the distributing agency. Applications shall,

to the extent possible, include the following information:

(A) Description of the situation of distress;

(B) Number of people requiring meals and congregate meal service

period; and

(C) Quantity and types of food needed.

(ii) In addition, information on the number and location of sites

providing meals shall be submitted as sites are established.

(c) Household distribution. (1) Approval authority and duration.

Applications for the donation of foods for distribution to households

shall be forwarded by the distributing agency to the appropriate FCSRO

for submission to FCS for approval. FCS will determine the duration of

the donations, taking into consideration the magnitude of the

situation. Such determinations may be revised as developing

circumstances dictate.

(2) Applications. Organizations shall submit applications for the

receipt and distribution of donated foods to households to the

distributing agency. The distributing agency shall review and submit

applications to the appropriate FCSRO. Applications shall, to the

extent possible, include the following information:

(i) Description of the situation of distress;

(ii) Explanation as to why the distribution of commodities to

households is warranted;

(iii) Identification of the specific area(s) included in the

request;

(iv) Anticipated distribution period;

(v) Number of households expected to participate;

(vi) Quantity and types of food needed for distribution;

(vii) Statement of assurance that simultaneous food stamp and

commodity assistance will not be provided to individual households; and

(viii) Description of the system that will be implemented to

prevent dual participation.

In addition, information on the number and location of sites shall

be provided as sites are established.

(3) Collection of household information. In a format prescribed by

the distributing agency, any entity (i.e. Federal, State, or local)

distributing donated foods to households in an area where the Food

Stamp Program is in operation shall, at a minimum, collect the

information listed below. Such information shall be forwarded to the

distributing agency and maintained by the distributing agency in

accordance with the recordkeeping requirements contained in this Part,

except that such information may, at the discretion of the distributing

agency, be maintained by the organization distributing commodities if

such organization is an agency of the State government.

(i) Name of household member applying for assistance;

(ii) Address;

(iii) Number of household members; and

(iv) Statement signed by the household certifying that the

household:

(A) is in need of food assistance;

(B) understands that misrepresentation of need, and the sale or

exchange of the donated food are prohibited and could result in a fine,

imprisonment, or both;

(C) is not residing in a shelter which provides food assistance;

and

(D) is not receiving food stamp assistance.

(d) Quantities and value of donated foods. The distributing agency

shall make donated foods available to eligible organizations based on

the caseload factor information provided by the organizations.

(e) Types of donated foods authorized for donation. Organizations

providing food assistance in situations of distress are eligible to

receive donated foods under section 416, section 32, section 709, and

section 4(a).

(f) Summary report. Within 30 days following termination of the

assistance, the distributing agency shall provide a summary report to

the appropriate FCSRO using Form FNS-292, Report of Coupon Issuance and

Commodity Distribution for Disaster Relief.

(g) Replacement. The distributing agency shall request, in writing

to the FCSRO, the replacement of foods used for a situation of distress

within 30 days following termination of the assistance. FCS will

replace donated foods used from State and/or local inventories for

situations of distress to the extent that foods are available.

Dated: November 28, 1995.

William E. Ludwig,

Administrator.

[FR Doc. 95-29923 Filed 12-7-95; 8:45 am]

BILLING CODE 3410-30-U