Commodity Supplemental Food ProgramCaseload Assignment

DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Part 247

RIN 0584-AC60

Commodity Supplemental Food Program--Caseload Assignment

AGENCY: Food and Consumer Service, USDA.

ACTION: Direct final rule.

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SUMMARY: This direct final rule amends provisions of the Commodity

Supplemental Food Program Regulations to provide for the allocation of

a single caseload to State agencies each year, instead of the

allocation of two separate caseloads, one for women, infants, and

children, and one for the elderly. This rule will permit State

agencies, and the local agencies with which they have signed

agreements, to utilize this single caseload to serve low-income women,

infants, and children and elderly populations as needed, provided they

give priority in service to women, infants, and children over the

elderly. This rule will also streamline and simplify program management

at the State and local level.

DATES: This rule will become effective on December 8, 1997, unless the

Department receives written adverse comments or notices of intent to

submit adverse comments postmarked on or before November 24, 1997. If

adverse comments within the scope of this rulemaking are received, the

Department will publish timely notification of withdrawal of this rule

in the Federal Register.

ADDRESSES: Comments should be sent to Lillie Ragan, Assistant Branch

Chief, Household Programs Branch, Food Distribution Division, Food and

Consumer Service, U.S. Department of Agriculture, Park Office Center,

Room 502, 3101 Park Center Drive, Alexandria, VA 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., Mondays through Fridays).

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

telephone (703) 305-2662.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This direct final 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 (OMB).

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. While procedures in this rulemaking will affect State and

local agencies that administer the Commodity Supplemental Food Program,

any economic effect will not be significant.

Unfunded Mandate Reform Act of 1995

Title II of the Unfunded Mandate 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, FCS

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, or tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. When such a statement is needed for a rule, section 205 of

the UMRA generally requires FCS to identify and consider a reasonable

number of regulatory alternatives and adopt the least costly, more

cost-effective or lease burdensome alternative that achieves the

objectives of the rule.

This rule contains no Federal mandates (under the regulatory

provisions of Title II of the UMRA) for State, local, and tribal

governments or the private sector of $100 million or more in any one

year. Thus, this direct final rule is not subject to the requirements

of sections 202 and 205 of the UMRA.

Executive Order 12372

This program is listed in the Catalog of Federal Domestic

Assistance under 10.565, and is 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).

Paperwork Reduction Act

This final rule reflects no new information collection requirements

under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The

existing recordkeeping and reporting requirements for 7 CFR part 247,

which were approved by OMB under control number 0584-0293, will not

change as a result of this final rule.

Executive Order 12988

This direct final 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 implementation. This rule is not intended to have

retroactive effect unless so specified in the EFFECTIVE DATE section of

the preamble. There are no administrative procedures which must be

exhausted prior to any judicial challenge to the provisions of this

rule or the application of its provisions.

Background

The primary purpose of the Commodity Supplemental Food Program

(CSFP) is to provide nutritious commodities and nutrition education to

low-income pregnant, postpartum, and breastfeeding women, infants, and

children up to the age of six, to help meet their dietary needs at a

critical life stage of growth and development. This has been the

program's basic goal since the initiation of a ``supplemental food

program'' for pregnant and breastfeeding women and infants in 1968,

utilizing funds appropriated for child feeding programs, and its

subsequent designation as the ``Commodity Supplemental Food Program''

in the Food and Agriculture Act of 1977 (Pub. L. 95-113), which added

sections 4 and 5 to the Agriculture and Consumer Protection Act of 1973

(Pub. L. 93-86). However, legislation expanded the eligible population

in 1981 and 1982 to include elderly persons under a pilot project. With

the passage of the Food Security Act of 1985 (Pub. L. 99-198) authority

to provide program benefits to the low-income elderly was extended to

all State agencies that had resources remaining after providing

benefits to all eligible applicant women, infants, and children. Thus,

while women, infants, and children retained priority in service, the

elderly were established as a second eligible population group in the

program. This requirement is found

[[Page 55143]]

in section 5(g) of the Agriculture and Consumer Protection Act of 1983

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

The Special Supplemental Nutrition Program for Women, Infants, and

Children (WIC) also provides benefits (in the form of food vouchers) to

pregnant, breastfeeding, and postpartum women, infants and children,

with modest differences in categorical eligibility requirements from

CSFP. In WIC, women are eligible up to six months postpartum, compared

to 12 months in CSFP; and children are eligible up to five years of age

in WIC, and up to six years in CSFP. WIC participation increased

significantly during the period 1988-1996, from 3.6 million to

approximately 7.2 million--an average increase of 450,000 per year. The

increased scope of the WIC Program contributed to a decline in

participation of women, infants, and children in CSFP, as persons

eligible for both programs may only participate in one of them. From

1993 to 1996, participation of women, infants, and children in CSFP

declined by 40 percent, while elderly participation in that period

increased by 35.4 percent. By fiscal year 1996, elderly participation

in CSFP averaged 219,281 per month, or 61.5 percent of total program

participation.

Resources are allocated to participating State agencies in CSFP in

the form of caseload, which is the monthly average number of

participants a State agency is authorized to serve over a specified 12-

month period (the caseload cycle). State agencies' caseload allocations

each year are based on program participation from the previous year,

and requests to expand the program. In implementing the authority to

serve elderly pursuant to the Food Security Act of 1985, the Department

provided, through program regulations, for the assignment of an elderly

caseload to State agencies, separate from the assignment of the women,

infants, and children caseload. While State agencies may not serve more

elderly persons than their assigned elderly caseload level, they may

request a conversion of caseload slots for women, infants, and children

that are unutilized during the caseload cycle to service for the

elderly, if State agencies have more elderly applicants seeking program

benefits. As evidence that the conversion request will not restrict the

participation of women, infants and children, State agencies may

include evidence of outreach efforts conducted by the State and/or

local agency to promote and facilitate service to eligible women,

infants, and children in the service area. To further ensure that this

priority group is adequately served, current regulations do not permit

submission of caseload conversion requests until 90 days after the

assignment of caseload.

Allocation of separate caseloads for the two population groups

served in CSFP, and the caseload conversion requirement, serve the

purpose of protecting program resources for women, infants, and

children, while allowing unused resources to be redirected for use by

the elderly. However, with the decline in participation of women,

infants, and children, and the increased participation of the elderly

in CSFP, the caseload restrictions, and caseload conversion

requirement, have become obstacles to the efficient use of program

resources to serve States' needy populations. Until caseload conversion

requests can be made, and acted upon, caseload slots allocated to State

agencies for women, infants, and children may remain unused. State and

local agencies need more flexibility in caseload management to allow

them to fill caseload slots throughout the caseload cycle.

In order to provide State agencies with greater flexibility in

caseload management, this direct final rule amends regulatory

requirements in part 247 to assign participating State agencies a

single caseload, instead of separate women-infants-children, and

elderly, caseloads. Local agencies within States may serve women,

infants, and children, and the elderly, on a first-come, first-served

basis, up to the single caseload limit assigned to them by the State

agency, but must continue to meet the priority requirements in

Sec. 247.7(b)(2)--i.e., if eligible women, infants, and children are

waiting to be served, the next available caseload slots must be

utilized to serve them.

The Department will continue to transform all funds available for

CSFP commodity purchases each year into caseload, and to allocate all

available caseload among the State agencies. Procedures for

establishing total available caseload are not governed by legislation

or regulations and will be modified only to the minor extent necessary

to reflect the shift from two caseloads to one. In accordance with

sections 5(a) and (1) of the Agriculture and Consumer Protection Act of

1973, the Department will make 20 percent of the annual appropriation

and 20 percent of any unspent food funds carried over from the previous

year available to State agencies in the form of administrative funds.

The Department will convert remaining funds to caseload based on

estimates of the percentage of total participation to be accounted for

by each subgroup--e.g., pregnant and breastfeeding women, the elderly--

and projections of the average cost of foods to be taken by

participants in each subgroup. These data will be used to compute a

single, blended average cost of food per participant per year, and that

cost will be divided into available food funds to yield total CSFP

caseload.

The amendments to the regulatory requirements addressing caseload

assignment and the State plan of operation are discussed in more detail

below. The Department invites comments only on the regulatory

amendments in this rulemaking, which establish a single caseload for

the program, and not on any other sections of program regulations. The

Department considers the regulatory amendments in this direct final

rule to be noncontroversial and unlikely to elicit adverse comments. In

order for the Department to issue CSFP caseload by the December 1, 1997

deadline, as required by Sec. 247.10(a), this rule will be effective on

December 8, 1997, rather than on a date conforming with the 60-day time

period generally provided to effectuate direct final rules.

Caseload Assignment

Section 247.10 of the current regulations describes the procedures

for assigning caseload to State agencies each year, the procedures and

restrictions for requesting caseload conversion, and the use of elderly

caseload to serve women, infants, and children. The transition to a

single caseload assignment in this final rule requires the revision of

paragraph (a)(2) of this section, which addresses the specific order

and manner in which caseload assignments are made, and the removal of

paragraphs (a)(3), (a)(4), and (a)(5) of this section, which address

caseload conversion--not necessary in a single caseload system--and the

use of elderly caseload slots. As part of the amendment of paragraph

(a)(2), the method for assigning caseload to State agencies requesting

expansion of service to women, infants, and children is revised. The

present assignment of expansion caseload to State agencies based on

their capacity to serve their categorically eligible women, infants,

and children in WIC and CSFP is overly complicated, and no longer

necessary, as the expansion of the WIC Program has resulted in a much

more extensive coverage of the target population. Furthermore, reliable

data on this capacity are no longer available. Hence, the Department is

revising this method to bring it into conformance with the means of

addressing expansion requests for the elderly.

[[Page 55144]]

Additionally, all references to caseload cycles beginning on

specific dates are removed, since these cycles have long since passed.

In assigning caseload, the Department will continue to attach a

higher priority to requests to expand service for women, infants, and

children over requests to expand service for the elderly. Although

State agencies will always be allocated caseload that is not designated

for use by a particular population group, if they request expansion

caseload to serve additional women, infants, and children, they will be

expected to promote and facilitate use of such caseload for the

intended purpose, for example, by assigning the caseload to areas where

women, infants, and children are underserved by the WIC Program, and by

intensifying outreach efforts to this population group in areas where

the additional caseload is assigned. In States which currently do not

operate the program, requests for initiation of program service to

women, infants, and children will likewise be considered ahead of

requests to initiate service to the elderly.

Below, the primary features of each of the steps in the current

order of caseload assignment, as delineated in Sec. 247.10(a)(2), are

described, together with any changes that this rulemaking makes to that

step. As at present, caseload assignment will proceed through as many

of the steps in the process as available resources permit.

Under paragraph (a)(2)(i), State agencies receive caseload for the

three elderly pilot projects in Detroit, New Orleans, and Des Moines,

equal to December 1985 levels. This remains unchanged.

Under paragraph (a)(2)(ii), currently participating State agencies

receive caseload, first for women, infants, and children, and then for

elderly persons, based on participation in one of three time periods in

the previous year, but not to exceed the caseload allocations for each

of these two groups in the preceding caseload cycle. This step is

revised to assign to currently participating State agencies a single

caseload based on total participation of women, infants, and children,

and the elderly in one of the three time periods in the previous year,

but not to exceed total caseload assigned to State agencies in the

preceding caseload cycle. As at present, State agencies entering their

second caseload cycle of program service will receive caseload equal to

the level assigned for their first cycle of program service, and not in

accordance with first-year participation levels. However, the

distinction between women, infants, and children, and elderly caseload

will cease to be made.

Under paragraph (a)(2)(iii), requests from currently participating

State agencies for expansion caseload for women, infants, and children

are considered. As delineated in paragraph (a)(2)(iii)(A), a State's

participation level for this group must equal 90 percent of assigned

caseload for any of three time periods in the previous year in order

for the State to be considered for expansion caseload. If the State

meets this criterion, expansion caseload is assigned based on the

State's capacity to serve its categorically eligible women, infants,

and children in WIC and CSFP, and in an amount that will increase the

number of this population served in the State to a specific level, as

delineated in paragraphs (a)(2)(iii) (B) and (C). First, this

rulemaking revises paragraph (iii) to add a new sentence stating that

expansion requests to increase service to women, infants, and children

will receive priority over expansion requests to increase service to

the elderly, in accordance with program priorities established in

Sec. 247.7(b)(2). Second, a revised Sec. 247.10(a)(2)(iii)(A) addresses

expansion requests for either women, infants, and children, or the

elderly, utilizing the 90 percent participation requirement for both

populations together. Finally, paragraph (a)(2)(iii)(B) is revised to

address expansion requests for service to women, infants, and children

in the same manner as presently utilized for fulfilling expansion

requests for the elderly: i.e., each State agency requesting expansion

caseload for women, infants, and children will receive an equal share

of the available caseload, or the amount that FCS determines the State

agency needs and can effectively manage, whichever is less. A new

paragraph (a)(2)(iii)(C) addresses the distribution of caseload for

expanded service to the elderly, which is unchanged from the present

procedure, as currently described in paragraph (a)(2)(iv)(B).

Under paragraph (a)(2)(iv), requests from currently participating

State agencies to initiate or expand service to the elderly are

considered. As delineated in paragraph (a)(2)(iv)(A), a State's

participation level for this group must equal 90 percent of assigned

caseload for any of three time periods in the previous year, in order

to be considered for expansion caseload. If State agencies meet this

criterion, expansion caseload is assigned in equal amounts to State

agencies, or in amounts that FCS determines that State agencies need

and can effectively manage, whichever is less, as delineated in

paragraph (a)(2)(iv)(B). Paragraph (a)(2)(iv)(C) states that, if State

agencies' shares exceed their approved requests, the excess amount is

redistributed among State agencies whose allocations did not meet their

approved requests. This rulemaking removes paragraph (a)(2)(iv), since

the revised paragraph (a)(2)(iii) establishes uniform procedures which

cover expansion requests for the elderly, as well as women, infants,

and children.

Under paragraph (a)(2)(v), requests from State agencies to initiate

service to women, infants, and children (i.e., those States not

presently participating in CSFP), are considered, and caseload

assigned. Paragraph (a)(2)(v)(A) utilizes the same means of determining

a State agencies' capacity to serve its potentially eligible women,

infants, and children, and for assigning caseload based on this

determination, as described in paragraphs (a)(2)(iii) (B) and (C).

State agencies may not request to serve the elderly in their initial

year of service; if they wish to serve the elderly, they must wait for

the following caseload cycle, as described in paragraph (a)(4) of this

section, which, as previously mentioned, is removed. This rulemaking

redesignates paragraph (a)(2)(v) as (a)(2)(iv), and revises it to

address requests to initiate service to elderly persons, as well as

women, infants, and children. A new sentence is added stating that

requests to initiate service to women, infants, and children shall

receive priority over requests to initiate service to the elderly, in

accordance with program priorities established in Sec. 247.7(b)(2).

Section 247.10(a)(2)(v)(A) is revised to utilize the same means of

caseload assignment described above in revised paragraphs (a)(2)(iii)

(B) and (C).

Subparagraph (B) is removed. State agencies are no longer

restricted to serving only women, infants, and children in their first

year of operations.

Section 247.24, which refers to temporary caseload assignment

procedures that were applied to a previous caseload cycle, is removed,

as these procedures are no longer relevant.

State Plan of Operation

In accordance with Sec. 247.5, before the beginning of the fiscal

year, State agencies submit to FCS a plan describing the means by which

the program will be operated and administered. Included in the

information that State agencies must submit, which is detailed in this

section, are caseload conversion requests, plans for caseload

utilization, outreach activities, and documentation of data supporting

requests to serve the elderly. Revisions to the regulatory

[[Page 55145]]

requirements for the submission of this information in the State plan

are described below.

Currently, under Sec. 247.5, State agency requests to convert

unfilled women, infants, and children caseload slots to serve the

elderly are made during the fiscal year as an amendment to the State

plan, and must include documentation supporting the need for elderly

service in the proposed service area, and assurances that caseload

conversion may be accomplished without restricting service to women,

infants, and children in the service area. The assignment of a single

caseload to State agencies, in this rule, makes caseload conversion,

and the attendant documentation, unnecessary. Hence, language in the

introductory text of Sec. 247.5, and paragraph (a)(16) of that section

addressing caseload conversion, its timing, scope, and attendant

documentation, are removed.

Section 247.5(a)(4), which addresses a description of plans for

conducting outreach to reach maximum caseload, is amended to define the

objective of outreach activities as ensuring that women, infants,

children, and elderly persons are aware of program benefits, without

the present language referring to reaching maximum caseload. Since, by

this rulemaking, caseload may be utilized to serve either population

group, it is important to specify the two population groups that should

be targeted in outreach activities. In addition, although reaching

maximum caseload is an objective that this rulemaking is designed to

help State agencies achieve, it is not a regulatory requirement, as

current language implies.

Section 247.5(a)(15) currently requires that State agencies wishing

to serve the elderly provide documentation, as part of the State plan,

describing the extent of need for elderly service in the proposed

service area. Since this rule is intended to provide State agencies

with the flexibility to utilize a single assigned caseload to serve

their needy elderly without the need to request caseload conversion or

provide attendant documentation, this section is amended to require

such documentation only of State agencies wishing to initiate service

to the elderly, or requesting expansion caseload to serve the elderly.

Additionally, paragraph (a)(15)(i) is revised to remove the requirement

that demographic statistics be included as part of the supporting

documentation. Lastly, the language in paragraph (a)(15)(ii) concerning

descriptions of how a State agency will meet the needs of homebound

elderly is clarified, without changing its meaning.

List of Subjects in 7 CFR Part 247

Agricultural commodities, Food assistance programs, Infants and

children, Maternal and child health, Public assistance programs,

nutrition, women, aged.

Accordingly, 7 CFR Part 247 is amended as follows.

PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM

1. The authority citation for part 247 is revised to read as

follows:

Authority: Sec. 5, Pub.L. 93-86, 87 Stat. 249, as added by sec.

1304(b)(2), Pub.L. 95-113, 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).

2. In Sec. 247.5:

a. The fifth, sixth, and seventh sentences of the introductory text

of paragraph (a) are removed;

b. Paragraphs (a)(4) and (a)(15) are revised;

c. Paragraph (a)(16) is removed.

The revisions read as follows:

Sec. 247.5 State agency plan of program operation and administration.

(a) * * *

(4) A description of any plans for conducting outreach to ensure

that all women, infants, and children, and elderly persons are aware of

program benefits.

* * * * *

(15) If a State agency wishes to initiate service to the elderly,

or request expansion caseload to serve the elderly, a description of

plans for providing program benefits to elderly persons within the

State during the caseload cycle. Such description shall include--

(i) An identification of the elderly population to be served,

including documentation of the extent of need in the proposed service

area; and

(ii) A description of the means by which the State agency will meet

the needs of the homebound elderly.

* * * * *

3. In Sec. 247.10:

a. Paragraph (a)(2) is revised;

b. Paragraphs (a)(3), (a)(4), and (a)(5) are removed.

The revision reads as follows:

Sec. 247.10. Caseload assignment and administrative funding.

(a) * * *

(2) To the extent that funds are available, FCS shall assign

caseload to State agencies in the following order.

(i) State agencies for the three elderly feeding projects in

Detroit, New Orleans, and Des Moines shall be assigned caseload equal

to the level of participation for each project in December 1985.

(ii) Currently participating State agencies, except those entering

their second cycle of program service, shall receive caseload in

amounts equal to the greatest of their total participation of women,

infants, and children, and elderly persons (except for caseload equal

to the December 1985 level of participation at the three elderly

feeding projects) during September, or monthly average participation

for the period July through September, or for the prior fiscal year;

provided, however, that a State agency shall not receive caseload under

this paragraph in excess of caseload assigned for the preceding

caseload cycle. State agencies entering their second caseload cycle of

program service shall receive caseload equal to the caseload level

assigned for their first cycle of program service.

(iii) Requests from currently participating State agencies to

expand service to women, infants, and children, and the elderly, shall

be addressed in the following manner. Expansion requests to increase

service to women, infants, and children shall receive priority over

expansion requests to increase service to the elderly.

(A) State agencies shall be eligible to receive expansion caseload

only if, during the preceding September, the period July through

September, or the prior fiscal year, their monthly average

participation equaled at least 90 percent of their assigned caseload

level for the preceding caseload cycle.

(B) State agencies requesting expansion caseload to increase

service to women, infants, and children shall be assigned the lesser of

an equal share of available caseload or the amount of expansion

caseload FCS has determined that the State agency needs and can

effectively manage. If any State agencies' shares exceed their approved

requests, the excess caseload shall be divided equally among State

agencies whose approved requests exceed their shares.

(C) State agencies requesting expansion caseload to increase

service to the elderly shall be assigned the lesser of an equal share

of available caseload or the amount of expansion caseload FCS has

determined that the State agency needs and can effectively manage. If

any State agencies' shares exceed their approved requests, the

[[Page 55146]]

excess caseload shall be divided equally among State agencies whose

approved requests exceed their shares.

(iv) Requests from State agencies to initiate program service for

women, infants, and children, and the elderly shall be addressed in the

following manner. Requests to initiate service to women, infants, and

children shall receive priority over requests to initiate service to

the elderly.

(A) State agencies with approved State plans incorporating requests

for program initiation to provide service to women, infants, and

children shall be assigned caseload in the same manner described in

paragraph (a)(2)(iii)(B) of this section.

(B) State agencies with approved State plans incorporating requests

for program initiation to provide service to the elderly shall be

assigned caseload in the same manner described in paragraph

(a)(2)(iii)(C) of this section.

* * * * *

Sec. 247.24 [Removed]

4. Section 247.24 is removed.

Dated: October 15, 1997.

Yvette S. Jackson,

Acting Administrator, Food and Consumer Service.

[FR Doc. 97-28060 Filed 10-22-97; 8:45 am]

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