The Emergency Food Assistance Program: Amendments to Requirements Regarding the Submission of State Plans and Allowability of Certain Administrative Costs, 62473-62474 [E9-28611]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Rules and Regulations]
[Pages 62473-62474]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28611]



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Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / 
Rules and Regulations

[[Page 62473]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 251

[FNS-2009-0026]
RIN 0584-AD94


The Emergency Food Assistance Program: Amendments to Requirements 
Regarding the Submission of State Plans and Allowability of Certain 
Administrative Costs

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule amends regulations for The Emergency Food 
Assistance Program (TEFAP) by making State plans permanent, which is 
intended to reduce the administrative burden on States; and by 
explicitly designating the processing of donated wild game as an 
allowable use of TEFAP administrative funds, which is intended to 
increase the amount and variety of protein-rich foods available to 
program participants. These changes are required by the Food, 
Conservation, and Energy Act of 2008 (the 2008 Farm Bill).

DATES: This rule is effective on March 1, 2010.

FOR FURTHER INFORMATION CONTACT: Rogelio Carrasco at 
Rogelio.Carrasco@fns.usda.gov or by telephone at (703) 305-2662.

SUPPLEMENTARY INFORMATION:

I. Background

    Prior to enactment of the 2008 Farm Bill on June 18, 2008, Sec.  
202A of the Emergency Food Assistance Act of 1983 (the EFAA), 7 U.S.C. 
7501 et seq., required TEFAP State agencies to submit operating plans 
to USDA for approval every four years (7 U.S.C. 7503). This statutory 
requirement was reflected in program regulations at 7 CFR 251.6(b). The 
regulation required States to submit a plan for Fiscal Year 2001 by 
August 15, 2000. Thereafter, the States were required to submit a plan 
every four years. Section 4201(b) of the Farm Bill amended Section 202A 
of the EFAA by making State plans permanent. This change was 
implemented by policy memorandum on July 16, 2008. This final rule 
amends 7 CFR 251.6(b) to make State plans permanent, bringing program 
regulations into compliance with the EFAA, as amended. This rule also 
deletes 251.6(c), Amendments, and moves the contents of the paragraph 
into 251.6(b).
    Prior to enactment of the Farm Bill on June 18, 2008, Sec.  
204(a)(1) of the EFAA did not specifically include the processing of 
donated wild game as an allowable use of TEFAP administrative funds. 
Section 204(a)(1) and 7 CFR 251.8(e) did allow State agencies and 
eligible recipient agencies to use administrative funds to pay for 
certain direct and indirect costs associated with foods secured from 
sources other than TEFAP. While this section does not specifically 
address donations of wild game, it does allow the costs associated with 
transport, storage, handling, repackaging, processing, and distribution 
of foods secured from sources outside of TEFAP, as long as those foods 
are ultimately distributed to eligible recipient agencies for 
distribution to needy people. As a matter of policy, FNS included 
donated wild game under the category of foods secured from other 
sources. Section 4201(c)(2) of the 2008 Farm Bill amended Section 
204(a)(1) of the EFAP Act to specifically allow the use of TEFAP 
administrative funds to process and distribute donated wild game. This 
clarification was reflected in a policy memorandum on July 16, 2008. 
This final rule amends 7 CFR 251.8(e)(1)(i) to reflect that TEFAP 
administrative costs can be used to defray the eligible direct and 
indirect costs associated with donated wild game. This amendment will 
bring program regulations into compliance with the EFAA, as amended.

II. Procedural Matters

A. Executive Order 12866

    This rule has been determined to be not significant and was not 
reviewed by the Office of Management and Budget under Executive Order 
12866.

B. Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). It has been certified 
that this rule will not have a significant economic impact on a 
substantial number of small entities. Making State plans permanent will 
only affect the State agencies that administer TEFAP, and will decrease 
their administrative burden. Allowing the use of TEFAP administrative 
funds to process donations of wild game will only affect entities that 
accept such donations, and only to the extent that they choose to use 
their funds in that manner.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, 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 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 the Department to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, more cost-effective or least burdensome alternative 
that achieves the objectives of the rule. This rule contains no Federal 
mandates (under the regulatory provisions of Title II of the UMRA) for 
State, local, and Tribal governments or the private sector of $100 
million or more in any one year. This rule is, therefore, not subject 
to the requirements of sections 202 and 205 of the UMRA.

D. Executive Order 12372

    TEFAP is listed in the Catalog of Federal Domestic Assistance under 
Nos. 10.568 and 10.569. For the reasons set forth in the final rule in 
7 CFR Part 3015, Subpart V and related Notice published at 48 FR 29114, 
June 24, 1983, this program is excluded from the scope of Executive 
Order 12372 which

[[Page 62474]]

requires intergovernmental consultation with State and local officials.

E. Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agencies' considerations in terms of the three 
categories called for under section (6)(b)(2)(B) of Executive Order 
13132. FNS has considered the impact of this rule on State and local 
governments and has determined that this rule does not have federalism 
implications. This rule does not impose substantial or direct 
compliance costs on State and local governments. Therefore, under 
Section 6(b) of the Executive Order, a federalism summary impact 
statement is not required.

F. Executive Order 12988

    This 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. 
Prior to any judicial challenge to the provisions of this rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.

G. Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. After a careful 
review of the rule's intent and provisions, FNS has determined that 
this rule will not in any way limit or reduce the ability of 
participants to receive the benefits of donated foods in food 
distribution programs on the basis of an individual's or group's race, 
color, national origin, sex, age, or disability. FNS found no factors 
that would negatively and disproportionately affect any group of 
individuals.

H. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires that 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. 
This rule does not contain any information collection requirements 
subject to approval by OMB under the Paperwork Reduction Act of 1995.

I. E-Government Act Compliance

    FNS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

J. Good Cause Determination

    This action is being finalized without prior notice or public 
comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). The language 
of Sections 4201(b) and 4201(c)(2) of the Farm Bill, which amend 
Sections 202A and 204(a)(1) of the EFAA, respectively, is clear and 
leaves no room for discretion. Consequently, that language also renders 
7 CFR 251.6(b) and 7 CFR 251.8(e)(1) inconsistent with the Sections 
202A and 204(a)(1) of the EFAA, respectively. This final rule will 
bring program regulations into compliance with the EFAA. Thus, FNS has 
determined in accordance with 5 U.S.C. 553(b) that notice of proposed 
rulemaking and opportunity for public comments is unnecessary and 
contrary to the public interest and, in accordance with 5 U.S.C. 
553(b), finds that good cause exists for making this action effective 
without prior public comment.

List of Subjects in 7 CFR Part 251

    Food assistance programs, Grant programs-social programs, Reporting 
and recordkeeping requirements, Surplus agricultural commodities.

0
Accordingly, 7 CFR Part 251 is amended as follows:

PART 251--THE EMERGENCY FOOD ASSISTANCE PROGRAM

0
1. The authority citation for 7 CFR Part 251 continues to read as 
follows:

    Authority: 7 U.S.C. 7501-7516.


0
2. Section 251.6 is amended by revising paragraph (b) to read as 
follows:


Sec.  251.6  Distribution plan.

* * * * *
    (b) Plan submission and amendments. Once approved, State plans are 
permanent. State agencies must submit amendments to the distribution 
plan when necessary to reflect any changes in program operations or 
administration as described in the plan, or at the request of FNS, to 
the appropriate FNS Regional Office.
* * * * *

0
3. Section 251.8 is amended by revising paragraph 251.8(e)(1)(i) to 
read as follows:


Sec.  251.8  Payment of funds for administrative costs.

* * * * *
    (e) * * *
    (1) * * *
    (i) The intrastate and interstate transport, storing, handling, 
repackaging, processing, and distribution of commodities (including 
donated wild game); except that for interstate expenditures to be 
allowable, the commodities must have been specifically earmarked for 
the particular State or eligible recipient agency which incurs the 
cost;
* * * * *

    Dated: November 20, 2009.
Julia Paradis,
Administrator, Food, Nutrition, and Consumer Services.
[FR Doc. E9-28611 Filed 11-27-09; 8:45 am]
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