Food Distribution Programs: Improving Access and Parity, 87228-87258 [2024-24966]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 89, Number 211 (Thursday, October 31, 2024)]
[Rules and Regulations]
[Pages 87228-87258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24966]



[[Page 87227]]

Vol. 89

Thursday,

No. 211

October 31, 2024

Part V





 Department of Agriculture





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 Food and Nutrition Service





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7 Parts 247, 250, et al.





Food Distribution Programs: Improving Access and Parity; Final Rule

Federal Register / Vol. 89 , No. 211 / Thursday, October 31, 2024 / 
Rules and Regulations

[[Page 87228]]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 247, 250, 251, 253, and 254

[FNS-2023-0026]
RIN 0584-AE92


Food Distribution Programs: Improving Access and Parity

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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SUMMARY: This final rule considers public comments submitted in 
response to the proposed rule revising the Commodity Supplemental Food 
Program (CSFP), the Food Distribution Program on Indian Reservations 
(FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods 
disaster response regulations. This final rule makes access and parity 
improvements in USDA's food distribution programs to support access for 
eligible populations and streamline requirements for program operators.

DATES: 
    Effective date: This rule is effective December 30, 2024.
    Implementation dates: See section 2 of the SUPPLEMENTARY 
INFORMATION.
    This rulemaking consists of multiple provisions. Implementation for 
each provision is referenced in the SUPPLEMENTARY INFORMATION section 
of this final rule and detailed in the section-by-section analysis.

FOR FURTHER INFORMATION CONTACT: Gregory Walton, Program Analyst, Food 
Distribution Policy Branch, Supplemental Nutrition and Safety Programs, 
U.S. Department of Agriculture's Food and Nutrition Service, 1320 
Braddock Place, 3rd Floor, Alexandria, Virginia 22314 at 703-305-2746 
or [email protected].

SUPPLEMENTARY INFORMATION:

Section 1. Background and Discussion of the Final Rule

    The U.S. Department of Agriculture's (the Department or USDA) Food 
and Nutrition Service (FNS) works to increase food security and reduce 
hunger through the administration of 16 Federal nutrition assistance 
programs. Through the provision of food and administrative funding, 
USDA FNS food distribution programs assist the emergency feeding 
network--made up of thousands of food banks, food pantries, Tribal 
governments, and other community partners--in feeding those in need.
    In a proposed rule published in the Federal Register on August 14, 
2023 (88 FR 54908) (described hereafter as ``the proposed rule''), FNS 
proposed to amend food distribution regulations at 7 CFR parts 247, 
250, 251, 253, and 254 to make access and parity improvements within 
the Commodity Supplemental Food Program (CSFP), the Food Distribution 
Program on Indian Reservations (FDPIR), The Emergency Food Assistance 
Program (TEFAP), and USDA Foods disaster response. Based on comments 
received in response to the proposed rule, USDA is finalizing 
regulatory changes with the following overall aims:
     Increasing access to food distribution programs so 
eligible individuals can more easily receive the nutrition resources 
they need, and program operators can more easily provide those 
resources;
     Increasing parity between FDPIR and the Supplemental 
Nutrition Assistance Program (SNAP);
     Modernizing program operations by updating some outdated 
terminology and processes;
     Updating regulations to be consistent with current program 
operations and building in flexibility for future changes; and
     Incorporating lessons learned from implementing these 
critical programs during the COVID-19 pandemic.

Section II. Public Comments and USDA Response

    During the 60-day comment period on the proposed rule (August 14--
October 13, 2023), USDA received a total of 155 comments. The 
Department appreciates the comments provided and carefully considered 
these in the development of this final rule.
    All comments were considered without regard to whether they were 
provided by a single commenter or repeated by many. Importance was 
given to the substance or content of the comment, rather than the 
number of times a comment was submitted. Of the 155 comments, 11 were 
duplicate or non-germane submissions, resulting in 144 relevant 
comments. All comments are posted online at (see docket FNS-2023-0026, 
Food Distribution Programs: Improving Access and Parity). Relevant 
comments were submitted by State and local agencies, Indian Tribal 
Organizations (ITOs), advocacy organizations, nongovernmental 
organizations, and other interested parties, including food banks, 
professional and trade associations, the research community, and 
individual commenters and members of the public. Comments that did not 
refer to the changes in the proposed rule were considered outside of 
scope and are not addressed as part of this final rule.
    Overall, five comments fully supported the proposed rule generally 
and one comment opposed it. The remaining comments were either mixed or 
only referenced and supported specific provisions. Additional detail on 
the comments received for provisions in the proposed rule are below.

A. Commodity Supplemental Food Program

I. Technical Updates to the Entire Part 247
    This final rule codifies technical updates to 7 CFR part 247 as 
proposed. The Department is replacing the term ``elderly'' with 
``participants'' because, under the Agricultural Act of 2014 (Pub. L. 
113-79), as of February 2020, CSFP is limited to participation by 
senior adults aged 60 years and above. In Sec.  247.2, the Department 
is removing reference to women, infants, and children receiving CSFP 
benefits as they are no longer a part of the program. Additionally, the 
Department is replacing the outdated term ``commodities'' with ``USDA 
Foods'' to better reflect current terminology and align with the newly 
proposed definition of USDA Foods in 7 CFR 247.1 (See II. Updates to 
Definitions). This technical update does not change any current 
requirements and is simply a change in terminology.
Public Comments and USDA Response
    The Department received 21 comments that were all supportive of the 
technical updates to 7 CFR part 247. Commenters supporting the changes 
included: 4 State agencies, 7 advocacy groups, 5 program operators, and 
5 individuals. One commenter discussed that updating the term 
``elderly'' to ``participants'' would align with the use of person-
centered language. Commenters in support of updating the term 
``commodities'' to ``USDA Foods'' discussed how the technical updates 
will reduce confusion at the local agency level when identifying foods 
procured through USDA.
    One State agency commenter requested clarification or technical 
guidance on which foods are solely eligible for CSFP versus other USDA 
Foods programs. The commenter stated that all of the foods in each 
program would be considered USDA Foods after this update is finalized. 
Per Sec.  250.12(b), distributing agencies must ensure that USDA Foods 
at all storage facilities (including subdistributing agencies) are 
stored in a manner that permits them to be distinguished from other 
foods, and

[[Page 87229]]

must ensure that a separate inventory record of USDA Foods is 
maintained. Thus, State agencies must store USDA Foods provided for 
CSFP separately from USDA Foods provided for any other program (e.g., 
TEFAP) and must use those foods solely for the operation of CSFP.
II. Updates to Definitions (Sec.  247.1)
    This final rule codifies the updated definitions in Sec.  247.1 as 
proposed. The Department is adding a new definition for the term ``USDA 
Foods'' to replace the outdated definition of ``commodities'' and align 
7 CFR part 247 with current terminology. The Department is deleting the 
definition of ``elderly persons'' since Sec.  247.9(a) specifies CSFP-
eligible individuals must be at least 60 years of age and because the 
term ``elderly persons'' is being replaced throughout the part. 
Finally, the Department is updating the definition of ``proxy'' to 
exclude a ``participant's adult parent'' because children are no longer 
eligible to participate in CSFP under the Agricultural Act of 2014 
(Pub. L. 113-79).
Public Comments and USDA Response
    The Department received 21 comments that were all supportive of 
updating the definitions in Sec.  247.1. Commenters supporting the 
change included: 4 State agencies, 7 advocacy groups, 5 program 
operators, and 5 individuals. The update to the definitions in Sec.  
247.1 reflects the technical updates discussed above (See I. Technical 
Updates to the Entire Part 247). Commenters noted these updates reflect 
current practices in the program and the change to the term ``USDA 
Foods'' provides clarity and consistency with other USDA programs while 
potentially reducing confusion at the local agency level when 
identifying USDA Foods. The Department concurs with commenters who 
stated that the proposed changes to Sec.  247.1 will update the program 
to use current terminology and provide clarity and consistency with 
other USDA food distribution programs.
    One commenter suggested expanding the definition of ``proxy'' to 
allow for proxies during certification and remove an access barrier to 
the program. The Department is not expanding the definition of 
``proxy'' for certification periods as State agencies may already 
permit the use of proxies during certification and recertification.
III. Public Posting of Availability of USDA Foods (Sec.  247.5)
    This final rule codifies the proposed provision at Sec.  
247.5(b)(16) with modification to require that State agencies make 
available a list of CSFP local agencies, excluding agencies operating 
under an agreement with a local agency, on a publicly available 
internet web page. The State agency must post the name, address, and 
telephone number for each local agency. The list must be updated, at a 
minimum, on an annual basis. This is a revision from the proposed 
provision, which would have required State agencies to make publicly 
available a list of all CSFP distribution sites, including both local 
agencies and agencies operating under an agreement with a local agency. 
State agencies must implement this provision by October 31, 2025, a 
revision from the proposed 60-day implementation timeline which 
acknowledges the need for additional time to implement the new 
requirement.
Public Comments and USDA Response
    The Department received 33 comments, 23 of which were supportive of 
the proposed changes and 10 that were unsupportive. Commenters 
supporting the proposed change included: 4 State agencies, 6 advocacy 
groups, 8 program operators and 2 individuals. Unsupportive comments 
were received from: 5 State agencies, 1 advocacy group, 4 program 
operators and 1 individual.
    Many commenters in support of the proposal discussed how this 
change would help potential applicants find food assistance during non-
work hours and based on residency. Other commenters in support of the 
proposal pointed out that many State agencies currently list 
distribution sites on their public website and so this change would 
reflect current practice for many State agencies while increasing 
awareness of the program. Several commenters stated that to be 
effective, it is vital to keep distribution site information up-to-date 
and accurate.
    However, several commenters raised concerns with the feasibility 
and practicality of this proposed requirement and offered alternative 
approaches. Some commenters pointed out that for some State agencies, 
posting every distribution site on a State agency's website might not 
be a practical requirement, since distribution sites change 
periodically, causing the list to potentially be outdated quickly. 
Others pointed out that distribution sites may not have caseload 
available for potential applicants and may not have the capability to 
answer phone calls or handle on site arrivals as a result of posting 
this information publicly. Some commenters proposed alternative 
approaches, including allowing State agencies to refer potential 
applicants directly to local agencies instead of maintaining the list 
of distribution sites at the State level. Others suggested requiring 
only posting of permanent site locations, a single lead agency, or one 
point of contact. One commenter suggested offering technology grants to 
support infrastructure updates, phasing in the requirement over time, 
aligning State Plan requirements with public information requirements, 
and for FNS to consider allowing State agencies to link to local agency 
websites that might be in a better position to provide current and 
updated information. Another commenter suggested the Department use 
language that State agencies ``ensure'' sites are posted without 
dictating the State agency maintain ownership of the website.
    Public posting of CSFP distribution sites is intended to promote 
program access and help potential CSFP participants find their closest 
distribution sites. However, public comments noted the proposed 
provision could cause confusion if the list of CSFP distribution sites 
becomes outdated or inaccurate. The Department acknowledges that for 
State agencies with many small distribution sites, the requirement to 
post all CSFP distribution sites may not be beneficial as the list 
could become outdated as distribution sites open and close. As such, 
the Department modifies this proposed provision to require State 
agencies to make a list of CSFP local agencies publicly available. This 
revision reduces the administrative burden on State agencies to post 
information on all distribution sites while helping potential CSFP 
applicants locate local agencies, that may then direct potential 
applicants to distribution sites and ultimately increase program 
access.
    State agencies are still encouraged, but not required, to post more 
frequent updates as they are needed and include additional information, 
such as operating hours, links to local agency websites, and 
information on distribution sites. State agencies are also encouraged, 
but not required, to develop tools to aid eligible individuals in 
accessing the program (e.g., a searchable tool by ZIP code). State 
agencies are encouraged to share any online resources they create with 
other organizations that serve CSFP-eligible individuals.

[[Page 87230]]

IV. State Plan Requirement (Sec. Sec.  247.6(a) and 247.5(b)(17))
    This final rule codifies the requirement that State agencies make 
publicly available the State Plan that is currently in use by the State 
agency on an internet web page as proposed. This modernizes the current 
requirement at 7 CFR 247.6(a) that State agencies must keep a copy of 
the State Plan on file at the State agency for public inspection. This 
final rule also codifies as proposed a related provision at Sec.  
247.5(b)(17), which requires State agencies to make publicly available 
the State Plan that is currently in use by the State agency on an 
internet web page. State agencies must implement this provision no 
later than 12 months after the date of publication of the final rule in 
the Federal Register.
Public Comments and USDA Response
    The Department received 19 comments, 16 of which were supportive of 
the proposed changes and 3 that were unsupportive. Commenters 
supporting the proposed change included: 2 State agencies, 3 advocacy 
groups, 2 food bank associations, 8 program operators and 1 individual. 
Unsupportive commenters included: 1 State agency, 1 advocacy group, and 
1 individual. Commenters supporting the proposed change expressed the 
new requirement would increase program transparency and increase 
awareness of the program. Unsupportive commenters had concerns the 
proposed change would create an undue administrative burden, and one 
suggested USDA post State Plans on its own website.
    The Department recognizes there is an administrative burden 
associated with posting the State Plan on a publicly available internet 
web page. However, the Department estimates this burden will be modest 
and believes this is outweighed by the benefits of increasing 
transparency and awareness of the program and modernizing the current 
requirement that the State Plan be available for public inspection. A 
number of State agencies already post their State Plan on a publicly 
available website. However, for the State agencies posting their State 
Plan for the first time, FNS will provide guidance on the timing of 
when State Plans need to be posted to a website, giving direction and 
time to State agencies to comply with this change by the implementation 
date of 12 months after the date of publication of this final rule.
V. Eligibility Requirements (Sec.  247.9)
    This final rule codifies the increase to the CSFP maximum income 
eligibility guidelines to 150 percent of the U.S. Federal Poverty 
Guidelines published annually by the U.S. Department of Health and 
Human Services (HHS) at Sec.  247.9(a) as proposed. This is an increase 
from the prior limit of 130 percent of the U.S. Federal Poverty 
Guidelines.
    In addition to the proposed change to increase CSFP's maximum 
income eligibility guidelines to 150 percent of the U.S. Federal 
Poverty Guidelines without the addition of a medical deduction, the 
Department specifically requested public comments on an alternate level 
of 185 percent of the U.S. Federal Poverty Guidelines.
Public Comments and USDA Response
    The Department received 88 comments on this provision, all of which 
were in support of raising CSFP income eligibility guidelines. Of these 
commenters, 19 supported raising the income guidelines without 
specifying a new threshold, including 2 State agencies, 4 program 
operators, 1 advocacy group, and 2 individuals. An additional 3 
commenters supported raising the guidelines to 150 percent, including 1 
State agency, 1 food bank association, and 1 program operator. The 
remaining 66 commenters supported raising the income guidelines to 185 
percent, including 9 State agencies, 3 food bank associations, 10 
advocacy groups, 1 member of industry, 22 program operators, and 21 
individuals.
    Many commenters discussed how an increase in the CSFP income 
eligibility limit would better serve residents in higher cost of living 
areas, those who have high medical expense costs, as well as 
participants living in remote, geographically isolated Tribal 
jurisdictions. Other supporters mentioned how nationwide inflation 
increases particularly affect CSFP's target population, given that 
older individuals more often have fixed incomes compared to younger 
individuals.
    Specific to the 185 percent limit, commenters discussed how it 
would align the program with the Senior Farmers' Market Nutrition 
Program (SFMNP) and reduce confusion for participants of both programs. 
Commenters also mentioned how a 185 percent limit would align the 
program with other FNS food distribution programs.
    The Department agrees the proposed increase to 150 percent will 
help serve participants in higher cost of living or remote areas, those 
with higher medical expenses, and participants experiencing higher 
living costs due to increased inflation nationwide.
    While the Department appreciates feedback on the alternative level 
of 185 percent, the Department's priority is to provide CSFP benefits 
to seniors who are most in need. As a discretionary program that does 
not operate Statewide in most jurisdictions, the Department believes 
the income eligibility limit of 150 percent of the U.S. Federal Poverty 
Guidelines best achieves this goal.
VI. Changes to Identification Check at Distribution and Flexibility for 
Identification Verification (Sec. Sec.  247.10(b) and 247.6(c))
    This final rule codifies the changes to identification checks at 
distribution at Sec. Sec.  247.10(b) and 247.6(c), as proposed, 
increasing flexibility for State agencies in verifying participant 
identity. At Sec.  247.10(b), the Department finalizes an update to the 
current requirement that each participant, or their proxy, present some 
form of identification before receiving USDA Foods, to instead require 
local agencies have a process in place, in accordance with State agency 
requirements, to verify the identity of a participant or their proxy 
before distributing USDA Foods. The Department also finalizes the 
associated change to Sec.  247.6(c) as proposed to require State Plans 
have a description of the process in place to verify the identity of 
participants before receipt of USDA Foods.
Public Comments and USDA Response
    The Department received 58 comments relating to these provisions, 
all of which were supportive of the proposed change to grant more 
flexibility when checking the identity of CSFP participants, or their 
proxies, during the time of delivery of the CSFP food package. 
Commenters supporting the change included: 10 State agencies, 11 
advocacy groups and food bank associations, 1 member of industry, 23 
program operators and 13 individuals. Many supportive commenters 
discussed how the proposed change would modernize and streamline the 
current requirement and increase program access to individuals with 
disabilities, mobility issues, language barriers, and individuals that 
do not have identification. Other supportive commenters mentioned how 
service would be streamlined under the proposed change and how the 
change would lower the burden of delivering food packages and allow for 
greater use of technology. The Department agrees this change modernizes 
the identification requirement and streamlines program access for

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participants with disabilities, mobility issues, language barriers, and 
those without identification. This change allows local agencies and 
participants more flexibility in verifying participant identity and 
supports State and local agencies in modernizing the program's delivery 
methods, for example through innovative partnerships with third-party 
entities that deliver food packages directly to participants' homes. 
These entities now have greater flexibility when verifying 
participants' identity in line with the State's requirements.
    Some commenters who supported the proposed provision also expressed 
a desire to remove identification verification completely from the 
program. Others requested examples of alternate materials that would 
satisfy this requirement and minimum thresholds for identity 
verification. State agencies have the flexibility to set their own 
parameters to verify the identity of participants or their proxies 
prior to distribution of food packages provided the method is in line 
with regulatory requirements, including that USDA Foods are only 
distributed to CSFP participants. FNS will provide additional guidance, 
including examples of how to meet this requirement, as part of the 
implementation of this final rule.
VII. Request for Comment: Federal and State Programs Conferring 
Eligibility for CSFP
    This final rule codifies a new provision at Sec.  247.9(b)(1) and 
(2) to give State agencies the option to allow CSFP participants to 
demonstrate eligibility for CSFP via participation in specific Federal 
programs or a State program with income limits at or under the CSFP 
threshold.
    State agencies may accept participation in the following Federal 
programs as demonstrating eligibility for CSFP: the Supplemental 
Nutrition Assistance Program (SNAP), the Food Distribution Program on 
Indian Reservations (FDPIR), Supplemental Security Income (SSI), the 
Low Income Subsidy Program (LIS), also known as Extra Help, and 
available under the Medicare Part D prescription drug program, and the 
Medicare Savings Program(s) (MSP).
    This final rule also allows State agencies to identify and accept 
participation in State level programs that have maximum income 
eligibility guidelines at or below the State's maximum CSFP guidelines 
as demonstrating eligibility for CSFP.
    The Department sought feedback from CSFP State agencies, including 
ITOs, and the program community on this proposal through the proposed 
rule, and specifically on the following questions:
    1. Are there other Federal programs that you would like USDA to 
consider as options to demonstrate eligibility for CSFP?
    2. Should USDA consider an option for State agencies to have the 
flexibility to include State means-tested programs to demonstrate 
eligibility for CSFP?
Public Comments and USDA Response
    The Department received 17 comments that were all in support of 
considering participation in various programs at the Federal and State 
level as demonstrating eligibility for CSFP. Commenters supporting the 
change included: 5 State agencies, 4 advocacy groups, 5 program 
operators, and 3 individuals. Commenters in support of this provision 
suggested that participation in the following Federal programs should 
demonstrate eligibility for CSFP: SNAP, SSI, FDPIR, the Low Income Home 
Energy Assistance Program (LIHEAP), the Senior Farmers' Market 
Nutrition Program (SFMNP), the Housing Choice Voucher Program Section 
8, Medicaid, the Children's Health Insurance Program (CHIP), Medicare, 
and the Supplemental Nutrition Program for Women, Infants, and Children 
(WIC).
    One commenter suggested including programs with income limits above 
CSFP but did not suggest a limitation. Many commenters generally 
supported demonstrating eligibility for CSFP through participation in 
State-level programs with income limits at or below CSFP, and one 
commenter suggested the Michigan Housing Authority residence and 
utility assistance programs in their State.
    Given that the Department received fully supportive comments on 
this change, the Department codifies in this final rule a provision to 
give State agencies the option to allow participation in specific 
Federal programs and State level programs with income eligibility 
standards at or below the CSFP requirements to demonstrate eligibility 
for the program. This provision reduces the administrative burden on 
local agencies and participants and will not impose any program changes 
to State agencies which do not elect to implement this provision. 
Through the comment period and subsequent analysis, the Department 
identified programs outside of those listed in the request for comments 
in the proposed rule, such as LIS and MSP, and included those as 
additional Federal programs allowed to demonstrate CSFP income 
eligibility.
VIII. Referral Materials for the Senior Farmers' Market Nutrition 
Program (Sec.  247.14)
    This final rule codifies a new provision at Sec.  247.14(a)(4) as 
proposed to require that local agencies, where applicable, share 
written information and referrals to the Senior Farmers' Market 
Nutrition Program (SFMNP) with CSFP applicants. Section 247.14(a) 
currently requires that local agencies, as appropriate, provide 
applicants with written information and make referrals on various 
programs, including SNAP. CSFP and SFMNP work in tandem to serve the 
low-income senior population and the benefits provided by each program 
help meet the needs of seniors at nutritional risk. State agencies and 
other affected parties must implement this provision no later than 12 
months after the date of publication of the final rule in the Federal 
Register.
Public Comments and USDA Response
    The Department received 29 comments for this provision, 25 of which 
were in support and 4 that were unsupportive. Commenters supporting the 
proposed provision included: 8 State agencies, 9 advocacy groups and 
food bank associations, 5 program operators, and 3 individuals. 
Unsupportive commenters included: 1 State agency and 1 local agency, 1 
individual, and 1 advocacy group. Supportive commenters discussed how 
CSFP participants who gain access to SFMNP could receive access to 
fresh produce that is not currently offered in CSFP. The Department 
concurs with commenters who stated that providing SFMNP referral 
materials to CSFP participants can help participants access SFMNP and 
potentially increase their consumption of fresh produce.
    Three commenters representing Indian Tribal Organizations requested 
FNS provide periodic updates on other CSFP or SFMNP program operators 
in their areas. The Department recognizes this information is important 
to support referrals and maintains publicly available contact 
information for CSFP and SFMNP State agency operators to facilitate 
connection between these programs.
    One commenter requested that SFMNP have dedicated caseload for CSFP 
participants to ensure access to the program, a change that would be 
outside the scope of this rulemaking.
    Other commenters requested a clarification on what ``written'' 
means in this provision, as many States operate in web-based 
communications and because printing materials may exhaust the limited 
budgets of implementing

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agencies. One unsupportive commenter of this provision mentioned how, 
with labor shortages and other challenges, the benefit of this 
provision would not outweigh the cost of implementing it and how other 
program activities may be negatively impacted. Another commenter 
supported sharing information about SFMNP, but did not support formal 
referrals to other programs, due to it being an undue burden on local 
agencies. Another commenter mentioned how they do not support the 
provision as written because printing may not be available everywhere. 
The Department acknowledges that some State and local agencies have 
limited budgets and clarifies that for purposes of this provision, and 
in alignment with current CSFP policy, written materials can include 
electronic communications. In addition, this provision includes the 
language ``where applicable'' to ensure that SFMNP referrals do not 
need to occur in areas in which the program is not offered and in other 
instances when referrals are not applicable.
IX. Nondiscrimination Statement Update (Sec.  247.37)
    The Department proposed an update to the nondiscrimination 
statement language at Sec.  247.37 to state that CSFP must be operated 
in accordance with the most up-to-date USDA nondiscrimination 
statement. Because the nondiscrimination statement is applicable to 
multiple USDA programs, the Department has reconsidered its approach. 
The Department will not finalize the proposed provision in this 
rulemaking. The Department will instead consider options to address 
this in future rulemaking.
Public Comments and USDA Response
    The Department received 4 comments on this proposed provision, all 
of which were in support of the proposed change, including 1 State 
agency, 2 advocacy groups, and 1 individual. Commenters highlighted how 
this proposed change would retain important nondiscrimination language 
while also ensuring that the most current USDA statement consistently 
remains official policy. The Department appreciates support for the 
proposed changes and will consider this feedback in future rulemaking 
addressing the nondiscrimination statement, with the goal of 
consistency across USDA programs.

B. USDA Foods in Disasters and Situations of Distress

I. Technical Updates to Sec. Sec.  250.69 and 250.70
    This final rule codifies the technical updates to Sec. Sec.  250.69 
and 250.70 as proposed, replacing the outdated terms ``commodities,'' 
``food commodities,'' ``donated commodities,'' and ``donated foods,'' 
with ``USDA Foods'' to further align with the definition of ``USDA 
Foods'' in 7 CFR part 250. Technical updates also include 
reorganization for clarity.
Public Comments and USDA Response
    The Department received 10 comments that were all supportive of the 
proposed change. Commenters included: 4 State agencies, 3 advocacy 
groups, and 3 individuals. The Department concurs with the commenters 
that noted the terms being replaced are no longer a part of the program 
and are outdated, as well as the commenter noting the technical changes 
will mitigate and reduce confusion at the recipient agency level.
II. Removal of Prohibition on Simultaneous Provision of USDA [Donated] 
Foods and D-SNAP During a Disaster (Sec. Sec.  250.69(c)(2) and 
250.70(d))
    This final rule codifies the changes to Sec. Sec.  250.69(c)(2) and 
250.70(d) as proposed to remove the prohibition on the simultaneous 
distribution of USDA Foods and Disaster Supplemental Nutrition 
Assistance Program (D-SNAP) benefits to households during a disaster 
and situations of distress. The Department recognizes that immediate 
implementation of this provision may benefit State distributing 
agencies and recipients of USDA assistance during disasters. Because 
the removal of the dual participation prohibition removes a 
restriction, the Department is using the authority at 5 U.S.C. 
553(d)(1) to make this provision effective immediately upon the date of 
publication of this final rule.
Public Comments and USDA Response
    The Department received 24 comments that were all supportive of the 
proposed change. Commenters included: 6 State agencies, 10 advocacy 
groups, 1 food bank association, 3 local agencies, and 4 individuals. 
Many commenters noted that this change would allow disaster assistance 
to run more seamlessly and be more streamlined while also acknowledging 
that a person's ability to access grocery stores or food distributions 
varies depending on the type of emergency. The Department concurs with 
commenters that this change allows for more efficient disaster 
assistance and for expedited distribution of foods during times of high 
need.
III. Clarification of Requirements for Distribution of USDA Foods 
During a Disaster and Situations of Distress (Sec. Sec.  250.69 and 
250.70)
    This rule codifies the clarification of requirements for the 
distribution of USDA Foods during a disaster at Sec.  250.69 and during 
situations of distress at Sec.  250.70 as proposed. The reorganization 
of Sec. Sec.  250.69 and 250.70 clarifies which requirements in the 
section apply to approval of disaster organizations serving congregate 
meals and which requirements apply to disaster organizations providing 
USDA Foods for household consumption, as follows:
     Congregate meals language from Sec.  250.69(c) and the 
entirety of Sec.  250.69(e) will be consolidated at Sec.  250.69(a);
     Household distribution language from Sec.  250.69(c) and 
the entirety of Sec.  250.69(d) will be consolidated at Sec.  
250.69(b); and
     Section 250.69(f) through (h), which apply to both methods 
of distribution, are redesignated to Sec.  250.69(d) Reporting and 
recordkeeping requirements, Sec.  250.69(e) Replacement of USDA Foods, 
and Sec.  250.69(f) Reimbursement of transportation costs, 
respectively.
     Language from Sec.  250.70(c) and the entirety of Sec.  
250.70(e) will be consolidated into a single provision at Sec.  
250.70(a) to clarify the use of USDA Foods in congregate meals.
     All language relevant to distribution to households, 
including language from Sec.  250.70(c) and the entirety of Sec.  
250.70(d), will be consolidated into a single provision at Sec.  
250.70(b) to clarify the use of USDA Foods for distribution to 
households.
     Section 250.70(f) Reporting and recordkeeping 
requirements, Sec.  250.70(g) Replacement of donated foods, and Sec.  
250.70(h) Reimbursement of transportation costs, which apply to both 
methods of distribution, will remain separate and will be redesignated 
to Sec.  250.70(d) Reporting and recordkeeping requirements, Section 
250.70(e) Replacement of donated foods, and Sec.  250.70(f) 
Reimbursement of transportation costs, respectively.
Public Comments and USDA Response
    The Department received 10 comments that were all supportive of the 
proposed change. Commenters included: 3 State agencies, 4 advocacy

[[Page 87233]]

groups, and 3 individuals. Commenters generally supported this 
provision along with the other technical changes proposed to Sec. Sec.  
250.69 and 250.70 as these changes make it easier to understand the 
regulations and provide disaster assistance.
IV. Limitation on Impacts to Other Programs (Sec. Sec.  250.69(c) and 
250.70(c))
    This final rule codifies the provisions at Sec. Sec.  250.69(c) and 
250.70(c) as proposed to ensure the operation of congregate meals 
service and/or disaster household distribution, including in situations 
of distress, is not administered in lieu of regular program operations, 
nor does it negatively impact the distribution of USDA Foods through 
other programs within a distributing agency's jurisdiction. USDA Foods 
for disaster response activities are typically drawn from local USDA 
Foods inventories that support permanent programs such as TEFAP. This 
provision ensures that distributing agencies consider the operation of 
other USDA Foods programs when making decisions about using USDA Foods 
for disaster response activities.
Public Comments and USDA Response
    The Department received 10 comments, 3 of which were supportive (1 
State agency and 2 advocacy groups), 1 unsupportive (advocacy group), 
and 6 that requested additional clarification (2 State agencies, 3 
local agencies, and 1 food bank association). The commenters requesting 
clarification stated that the proposed provision was written 
ambiguously and requested that FNS define what would qualify as an 
``ongoing negative impact'' and what is considered a ``limitation on 
impacts to other programs.'' Commenters mentioned how, without 
thresholds as to what a negative impact is, distributing agencies will 
be unable to enforce the provision. The Department clarifies that to 
ensure the operation of congregate meals service and/or disaster 
household distribution in situations of distress or during disasters is 
not administered in lieu of regular program operations, distributing 
agencies should only administer a USDA Foods in disaster response if 
USDA Food inventory levels of other programs, such as FDPIR and TEFAP, 
are sufficient to maintain and continue food distribution of those 
programs at the same levels prior to diverting USDA Foods for disaster 
response.
    Additionally, negative impacts to the distribution of USDA Foods 
through other programs administered by the distributing agency can 
include, for example, when a disaster distribution lowers the USDA 
Foods inventory of another program, such as FDPIR, to a level that may 
impact the distributing agency's ability to provide FDPIR benefits to 
participants at the current program levels. Distributing agencies 
should ensure the operation of congregate meals service and disaster 
household distribution, including under situations of distress, does 
not lower the inventory levels of other programs below their regulatory 
requirements. When determining whether an ongoing negative impact may 
occur, the distributing agency must take into consideration, among 
other factors, current program participation levels, household food 
preferences and the historical and projected volume of food 
distribution at each site.
    The unsupportive comment argued the proposed provision would put 
the responsibility on distributing agencies to implement other programs 
like FDPIR and TEFAP and would put an undue burden on distributing 
agencies to determine how to divide resources. The Department clarifies 
this provision codifies a principle that is already in place for USDA 
Foods in Disasters, which is that distributing agencies should consider 
the operation, including inventory levels and current participant 
caseload levels, of their permanent programs like TEFAP and FDPIR when 
making decisions about using USDA Foods for disaster response. Although 
the distribution of USDA Foods during and after disasters divides a 
distributing agency's resources, operating USDA Foods disaster response 
activities should not negatively impact the operation of other 
programs. Specifically, disaster household distributions should not 
take the place of regular FDPIR or TEFAP operations, nor reduce food 
benefits and services of those programs. Per current regulations at 
Sec.  250.69(g), USDA is responsible for the replacement of USDA Foods 
used in Presidentially-declared disaster or emergency response, if 
requested by the distributing agency. Replacement of those USDA Foods 
occurs within 45 days following the termination of disaster assistance.
V. Updated Reporting Requirements for Distribution of USDA Foods to 
Households During a Disaster (Sec. Sec.  250.69(d) and 250.70(d))
    This final rule codifies the requirement at Sec. Sec.  250.69(d) 
and 250.70(d) with modification to require distributing agencies 
operating disaster household distributions to submit a biweekly report 
to FNS, rather than weekly as described in the proposed rule. All 
distributing agencies operating disaster household distributions must 
submit a biweekly report (every two weeks) for the duration of the 
approved disaster household distribution, regardless of the 
distribution period's length. Distributing agencies must use the format 
prescribed by FNS, which must be submitted electronically for the 
duration of the approved disaster household distribution. The biweekly 
report must include: (i) The weekly distribution start and end dates, 
(ii) The total number of individual household members receiving 
assistance at all locations, (iii) Material identification codes for 
USDA Foods distributed, (iv) The USDA Foods description of the foods 
distributed, and (v) The total units of each food distributed. The 
information will be submitted electronically.
Public Comments and USDA Response
    The Department received 19 comments on the proposed reporting 
requirement, with 7 in support and 12 in opposition. Supportive 
commenters included: 2 State agencies, 3 advocacy groups, 1 food bank 
association, and 1 individual. Unsupportive commenters included: 4 
State agencies, 7 advocacy groups, and 1 local agency. Commenters in 
support of this provision discussed how the proposed reports would more 
efficiently help efforts to replace USDA Foods used in disaster 
response and would also assist in inventory management, ordering, and 
distribution. Supporters of the proposed provision also suggested the 
reporting mechanism be user-friendly and be a reasonable process that 
uses modern technology.
    Commenters expressed concern with the resulting administrative 
burden associated with the increased reporting while also requesting 
increased funding or widespread adoption of automated reporting 
mechanisms to lessen the burden. Commenters also mentioned how the 
administrative burden would occur during times of already heightened 
administrative burden. Other suggestions included using a reporting 
method that uses current, up-to-date technology and to consider 
utilizing the data of other sources, such as the Federal Emergency 
Management Agency (FEMA), to collect this information.
    This provision was intended to improve FNS' and State distributing 
agencies' understanding of the quantity and types of USDA Foods 
available for emergency response and facilitate FNS' efforts to replace 
USDA Foods used in disaster response to prioritize nutrition security 
for participants in all programs serving USDA Foods. The prolonged

[[Page 87234]]

nature of the COVID-19 pandemic and the quantity of USDA Foods 
distributed under disaster household distributions illustrated that 
requiring reporting of USDA Foods distributed only after the end of the 
disaster assistance period presented challenges. These challenges 
included timely tracking of USDA Foods inventories at both the national 
and State distributing agency levels, which affected USDA and State 
distributing agencies' ability to source and distribute foods to meet 
the needs of the public. However, the Department concurs with 
commenters who stated the proposed requirement as written represented a 
potential administrative burden on State distributing agencies.
    In response to these comments, the Department amends the proposed 
provision in the final rule to lessen the associated administrative 
burden. Instead of weekly reporting required for disaster household 
distributions longer than 14 calendar days, the Department requires all 
distributing agencies operating disaster household distributions to 
submit a biweekly report (every two weeks) for the duration of the 
approved disaster household distribution, regardless of the 
distribution period's length.
    The Department's decision to limit reporting to a biweekly basis, 
rather than the proposed weekly basis, lessens the administrative 
burden on distributing agencies while still collecting the information 
needed to track USDA Foods used in disaster response and monitoring 
inventory levels.
    The Department clarifies the information requested in this new 
biweekly report is the same information that must be submitted with the 
currently required FNS-292A, Report of Commodity Distribution for 
Disaster Relief, that must be completed within 45 days following the 
termination of disaster assistance. Under this new reporting 
requirement, State distributing agencies may use the same data 
submitted in the biweekly report(s) to timely submit the FNS-292A to 
FNS. The Department agrees with utilizing available technology and will 
require the submission of biweekly reports electronically.

C. The Emergency Food Assistance Program (TEFAP)

I. Technical Updates to the Entire Part 251
    This final rule codifies the technical updates to 7 CFR part 251 as 
proposed. The Department is replacing instances of the outdated terms 
``commodities,'' ``food commodities,'' ``TEFAP commodities,'' ``TEFAP 
foods,'' ``donated foods,'' and ``donated commodities'' to ``USDA 
Foods'' to further align the program with the definition of ``USDA 
Foods'' in 7 CFR part 250.
Public Comments and USDA Response
    The Department received 15 comments that were all in support of the 
proposed technical changes to 7 CFR part 251. Commenters included: 5 
State and 5 local agencies, 2 food bank associations, and 3 advocacy 
groups. The Department concurs with the commenters.
II. Technical Clarification to the Definition of a Food Bank (Sec.  
251.3)
    This final rule codifies the update to the definition of a food 
bank at Sec.  251.3 as proposed. The Department is removing a 
description of food provided by food banks in Sec.  251.3(f), deleting 
``or edible commodities, or the products of food or edible 
commodities'' from the definition of food bank, as this description 
caused confusion about the types of foods to which regulations apply. 
The Department did not receive any comments on this provision.
III. Requirement for the Public Posting of Availability of USDA Foods 
Through TEFAP and Encouraging Distribution of USDA Foods in Tribal 
Areas (Sec.  251.4)
    This final rule codifies the proposed provision at Sec.  251.4(l) 
with modification to require eligible recipient agencies (ERAs) that 
have agreements with the State agency to be posted to a publicly 
available internet web page. This final rule also codifies as proposed 
the provision at Sec.  251.4(l) that each State agency publicly posts 
the State's uniform statewide eligibility criteria to receive USDA 
Foods for household consumption. The Department also codifies the 
provision at Sec.  251.4(k) as proposed to encourage State agencies and 
ERAs to implement or expand USDA Foods distributions in rural, remote, 
and Tribal areas of the State, wherever possible.
1. Requirement for the Public Posting of Availability of USDA Foods 
Through TEFAP (Sec.  251.4(l))
    ERAs are organizations that distribute USDA Foods through TEFAP. 
The proposed rule would have required TEFAP State agencies to post 
information about all ERAs to publicly available websites, to include 
those ERAs which have agreements with other ERAs. In consideration of 
the administrative burden associated with this provision as highlighted 
through public comments, this final rule codifies the proposed 
provision at Sec.  251.4(l) with modification to require ERAs that have 
agreements with the State agency to be posted to a publicly available 
internet web page. At minimum, State agencies must publicly post the 
names, addresses, and contact telephone numbers for all ERAs that have 
an agreement with the State agency.
    The Department codifies as proposed the requirement that State 
agencies must post the State's uniform Statewide eligibility criteria 
to receive USDA Foods for household consumption. The information must 
be posted on a publicly available internet web page and be updated on 
an annual basis or whenever changes to eligibility criteria are made 
(See IV. State Agency Options for TEFAP Eligibility Criteria, 
Documentation, and Public Communication (Sec.  251.5) 3. Public Posting 
of Statewide TEFAP Eligibility Criteria for further discussion (Sec.  
251.5(b)). State agencies must implement this provision no later than 
12 months after the date of publication of the final rule in the 
Federal Register.
Public Comments and USDA Response
    The Department received 28 comments on this provision, 24 of which 
were supportive and 4 that were not supportive. Supportive commenters 
included 5 State and 6 local agencies, 6 food bank associations, 5 
advocacy groups, and 2 individuals. Unsupportive commenters included 3 
State agencies and 1 local agency.
    Supporters of the change explained how publicly listing ERAs helps 
potential participants find food assistance during non-working hours 
and access residency information.
    Other commenters supported the intent of the provision but had 
concerns with the administrative and financial burden associated with 
listing all ERAs, since information on smaller ERAs can change 
frequently and without notice. Commenters suggested that single points 
of direct contact be established that are better equipped to handle 
potential participants. Additional commenters had concerns over the 
accuracy of the data that would be made available to the public.
    The Department agrees with commenters that suggested the proposed 
list of all ERAs may not be useful to participants or potential 
participants if there are issues with the list being outdated or 
inaccurate. Smaller ERAs may be added or removed from the program more 
frequently and may not have the capacity to handle direct referrals or 
questions from potential participants as well as larger ERAs. To lower 
the administrative and financial

[[Page 87235]]

burden of this provision, the Department is revising the provision to 
only require that ERAs holding an agreement with the State agency be 
posted publicly. ERAs that have direct agreements with the State agency 
are more likely to maintain consistent contact information and have the 
resources to direct potential participants to the program. 
Additionally, excluding ERAs that have agreements with other ERAs 
reduces the State agency's burden of posting the list.
    Some commenters suggested that certain types of ERAs should not be 
posted publicly, for example, domestic violence shelters. The 
Department recognizes that some ERAs may have a compelling public 
safety reason for not having their address posted publicly and commits 
to working with State agencies on a case-by-case basis for ERAs that 
may be in this situation.
    The intent of this provision is to improve participants' and 
potential participants' access to TEFAP, and the Department encourages 
State agencies to post the complete list of ERAs, including ERAs that 
hold agreements with other ERAs, to help the public understand where 
they may access TEFAP.
    State agencies are still encouraged, but not required, to post more 
frequent updates as they are needed and to include additional 
information, such as operating hours, the areas served by the ERA, 
links to ERA websites, and distribution site addresses. State agencies 
are also encouraged, but not required, to develop tools to aid eligible 
individuals in accessing the program (e.g., a searchable tool by ZIP 
code).
2. Encouraging Distribution of USDA Foods in Tribal Areas (Sec.  
251.4(k))
    This final rule codifies the revision to Sec.  251.4(k) as proposed 
to encourage State agencies and ERAs to implement or expand 
distributions of USDA Foods in Tribal areas, in addition to the rural 
areas already listed.
Public Comments and USDA Response
    The Department received 22 comments for this provision that were 
all supportive of the proposed change. Commenters included: 4 State and 
5 local agencies, 6 food bank associations, 6 advocacy groups, and 1 
individual. Supportive commenters discussed how this provision would 
help expand access to TEFAP in Tribal communities and other 
historically underserved populations while bolstering partnerships with 
Tribal Nations. Others mentioned their continued support for TEFAP 
Reach and Resiliency grant funding to carry out projects to expand the 
reach of TEFAP to remote, rural, Tribal and/or low-income areas and how 
this provision can aid in these efforts. The Department agrees with all 
the commenters who supported the proposed provision and with the 
commenters who stated this proposed provision could expand TEFAP access 
to historically underserved populations while strengthening the 
program.
    Commenters also suggested that FNS release guidance or best 
practices on how to achieve expanded access to TEFAP in Tribal areas. 
FNS will provide guidance and best practices to help implement or 
expand distributions of USDA Foods in Tribal areas as a part of the 
final rule implementation.
    One commenter expressed the language that encourages the expansion 
of TEFAP is not strong enough and suggested that it should be required, 
and separately, that Congress should designate Tribes as legally 
eligible to administer TEFAP. While the Department appreciates this 
comment and agrees it is important to continue expanding TEFAP's reach 
into Tribal areas, this request is outside of the scope of this 
rulemaking.
IV. State Agency Options for TEFAP Eligibility Criteria, Documentation, 
and Public Communication (Sec.  251.5)
    The Department is revising TEFAP regulations to increase alignment 
of income eligibility criteria nationwide, ensure access for vulnerable 
individuals, and ensure that statewide eligibility criteria are posted 
in a manner accessible to the public.
1. TEFAP Maximum Income Eligibility Range and State Agency Option for 
Alternative Income Eligibility Thresholds (Sec.  251.5(b)(2))
    This final rule codifies the proposed change with modification to 
implement a TEFAP maximum income eligibility range and State agency 
option for alternative income eligibility thresholds at Sec.  
251.5(b)(2). This change requires that income-based eligibility 
standards be between 185 percent and 300 percent of the U.S. Federal 
Poverty Guidelines, which are published annually by the U.S. Department 
of Health and Human Services (HHS). This is an increase from the upper 
threshold in the proposed rule, which would have set income-based 
standards at a maximum income eligibility threshold at or between 185 
percent to 250 percent of the U.S. Federal Poverty Guidelines. This 
revision maintains the ability for State agencies to propose 
alternative income-based eligibility standards above this threshold 
with supporting rationale, subject to FNS approval. Consistent with 
current program requirements at Sec.  251.5(b), income eligibility 
standards set by a TEFAP State agency under the final provision must be 
applied uniformly statewide.
Public Comments and USDA Response
    The Department received 62 comments on the proposed provision. 
Twenty commenters supported the proposed range of 185-250 percent of 
the U.S. Federal Poverty Guidelines, 32 did not support the cap as 
proposed and requested a cap above 250 percent, 3 were opposed to any 
maximum cap, 1 supported raising the lowest maximum above 185 percent 
to 200 percent, 3 commenters opposed the 250 percent maximum as too 
high, and 3 commenters opposed the proposed provision in full. 
Commenters included 9 State agencies, 24 local agencies, 11 food bank 
associations, 11 advocacy groups, and 7 individuals.
    Commenters in support of the proposed provision stated the change 
would increase access for individuals who would not have previously 
qualified under the current guidelines and that the range is a starting 
point for standardizing eligibility standards nationwide.
    Commenters who supported increasing the maximum cap beyond 250 
percent stated the proposed cap was too low and would create an undue 
administrative burden on States currently operating over the 250 
percent level, as they would have to submit additional justification to 
FNS to maintain their current income eligibility guidelines. They also 
mentioned the proposed maximum may be a potential deterrent for other 
States to adjust their income eligibility thresholds above 250 percent 
in the future, due to the increased administrative burden. Some 
commenters who felt the 250 percent maximum threshold was too low 
suggested that either FNS use no maximum threshold or create a maximum 
of 400 percent if necessary.
    Commenters also mentioned concerns that USDA may deny requests for 
higher maximums above the proposed range. Supporters of a maximum cap 
above 250 percent stated that a higher maximum would be more inclusive 
of current State agency income eligibility thresholds and better 
reflect the economic realities of food insecurity in the country. 
Commenters also expressed concerns that in States with current income 
eligibility thresholds above the maximum identified in the proposed 
rule, participants could lose access to the program if their higher 
thresholds were not approved. One commenter suggested that all TEFAP 
participants be

[[Page 87236]]

treated like those visiting prepared meal sites and not be subject to 
income eligibility guidelines.
    The Department concurs with commenters who expressed that a maximum 
income eligibility threshold of 250 percent of the U.S. Federal Poverty 
Guidelines is too low and may not encompass those in need who are 
living in areas with a high cost of living, such as urban centers, 
Tribal areas, and some geographically isolated States and U.S. 
Territories.
    As some commenters mentioned, the Department also recognizes that 
current participants may be impacted by the proposed maximum threshold 
and the Department wishes to mitigate that impact. Thus, the Department 
is revising the provision to increase the maximum income threshold in 
this provision, from 250 percent to 300 percent of the Federal Poverty 
Guidelines. Additionally, the Department retains the ability for States 
to propose alternative income-based eligibility standards (i.e., 
standards above 300 percent) with FNS approval. While the Department 
recognizes there is administrative burden associated with requesting 
this approval, the Department estimates the burden is modest and views 
this as necessary to ensure TEFAP resources are only reaching 
individuals most in need, without unduly impacting current 
participants.
    Commenters also questioned whether FNS is changing its funding 
allocation model to reflect a larger pool of eligible participants. The 
TEFAP food and administrative funding formulas are set in program 
statute and accordingly, FNS will continue to use this formula to 
allocate program resources.
    Additionally, some commenters requested guidance from FNS, 
including an approval matrix for States wishing to increase their 
ceiling above the maximum, and examples of what types of justification 
will be approved by FNS. FNS will provide guidance during 
implementation of this final rule to aid State agencies in requesting 
maximum income eligibility thresholds over 300 percent and expects 
requests will likely align with guidance in Policy Memo FD-153, 
Guidance for Submitting Amendments to TEFAP State Plans per 7 CFR 
251.6. For those State agencies who currently have income guidelines 
over 300 percent, FNS will provide technical assistance to submit 
timely justifications as needed, in accordance with FNS guidance, and 
prior to this rulemaking's effective date.
2. Methods for Verifying Residency and Removal of Federal Address 
Collection Requirements (Sec. Sec.  251.5(b)(3) and 251.10(a)(4))
    This final rule codifies the change at Sec.  251.5(b)(3) as 
proposed to establish that length of residency, address, or 
identification documents shall not be used as eligibility criteria when 
determining household eligibility. This final rule also codifies the 
removal of Federal address collection requirements at Sec.  
251.10(a)(4) as proposed. Current regulations at Sec.  251.10(a)(3) 
require distribution sites to collect the addresses of households 
receiving USDA Foods for home consumption and maintain the record of 
participant addresses per the retention policy described in Sec.  
251.10(a)(4).
Public Comments and USDA Response
    The Department received 53 comments on this provision, 43 of which 
were supportive and 10 unsupportive. Supportive commenters included: 6 
State and 16 local agencies, 7 advocacy groups, 12 food bank 
associations, and 2 individuals. Unsupportive commenters included: 1 
State agency, 6 local agencies, and 3 individuals.
    Supportive comments stated the current practice to collect full 
household addresses is burdensome to participants and ERAs, as well as 
a hindrance to migrant workers, people experiencing homelessness, those 
who move frequently, or those who have privacy concerns with providing 
an address. Other supportive comments stated that ERAs would benefit 
from the change by eliminating a lengthy administrative intake step, 
freeing up staff capacity and helping to shorten long lines at 
distributions. The Department concurs with the majority of commenters 
in support of the proposed change at Sec.  251.5(b)(3) that collecting 
household information can be burdensome to both participants and ERAs. 
FNS aims to ensure that TEFAP State agencies retain the ability to 
develop statewide eligibility criteria which fit their needs, while 
supporting program access for vulnerable individuals and households.
    Opposed commenters had concerns that not using an address to verify 
residency could result in individuals outside of their community 
accessing their distribution sites and depleting resources intended for 
community members. Some commenters expressed concern about not being 
able to collect zip codes under the proposed provision. Some commenters 
also suggested the final rule remove geographic limitations on service 
altogether. Finally, one commenter requested clarification for State 
agencies on acceptable alternative forms of verification.
    Along with self-attestation, other options for State agencies to 
confirm residency of TEFAP applicants may include collecting the zip 
code or county of residence of TEFAP applicants. These alternate forms 
of confirming residency also help address the concerns raised by a few 
commenters of the risk of individuals from outside of a community 
accessing an ERA's TEFAP offerings. In addition, the significant 
benefits of this provision, including supporting program access for 
vulnerable individuals and households, eliminating a lengthy 
administrative intake step, freeing up staff capacity, and helping to 
shorten long lines at distributions, outweigh the minimal concerns 
raised by some commenters.
    Some commenters requested clarification on whether addresses can 
still be collected for other purposes, such as in cases of food recalls 
and providing information on more resources. The Department clarifies 
that ERAs cannot collect addresses as part of the eligibility 
determination process but may still collect addresses on a voluntary 
basis for other purposes, such as in cases of food recalls and 
providing information on other assistance programs, if it is clear 
providing the information is optional for applicants and is being 
collected for reasons other than TEFAP eligibility.
3. Public Posting of Statewide TEFAP Eligibility Criteria (Sec.  
251.5(b))
    This final rule codifies the change at Sec.  251.5(b) as proposed 
to require State agencies to post statewide eligibility criteria, 
including requirements for demonstrating income and residency, to a 
publicly available website. State agencies must implement this 
provision no later than 12 months after the date of publication of the 
final rule in the Federal Register.
Public Comments and USDA Response
    The Department received 13 comments for this proposed change, 12 of 
which were supportive and one which was mixed. Commenters included 3 
food bank associations, 5 local agencies, and 5 advocacy groups.
    Supportive commenters discussed how making this information 
available online would make the program more transparent and accessible 
to people seeking food assistance. One commenter expressed concern with 
the administrative burden associated with posting the criteria, given 
staffing shortages. The Department recognizes

[[Page 87237]]

this provision poses an administrative burden on State agencies; 
however, FNS estimates the annual administrative burden as relatively 
low. Once a State agency has posted their statewide eligibility 
criteria to a publicly available website, State agencies only need to 
make updates if their Statewide eligibility criteria changes. The 
benefits of ensuring that eligible applicants are more easily able to 
understand how they may receive TEFAP outweigh the minimal 
administrative burden associated with this requirement.
V. Updated Reference for Farm to Food Bank Projects (Sec.  251.6)
    This final rule codifies the change to Sec.  251.6 as proposed to 
update the paragraphs cited for information that must be included in 
TEFAP State Plans for Farm to Food Bank Projects to reflect the 
reorganized section of regulations related to Farm to Food Bank 
Projects at new Sec.  251.13. The Department did not receive any 
comments on this proposed change.
VI. Updated Reference for TEFAP Reporting Requirements (Sec.  251.9)
    This final rule codifies the technical edit to Sec.  251.6 as 
proposed to update the paragraph cited for the FNS-667, Report of TEFAP 
Administrative Costs. The Department did not receive any comments on 
this proposed change.
VII. Establishing Confidentiality Protections for Applicant and 
Participant Household Information and Participant Household Information 
(Sec.  251.10(c))
    This final rule codifies the changes to Sec.  251.10(c) as proposed 
to require that TEFAP participant information must be kept confidential 
and to create limits on the disclosure of information obtained from 
applicants or participants and the identity of persons making a 
complaint or allegation against persons participating in or 
administering the program. Current regulations do not include 
requirements for protecting the confidentiality of TEFAP applicant or 
participant household information. This new provision ensures the 
protection of information collected from households and aligns 
recordkeeping and retention requirements with those of other food 
assistance programs.
Public Comments and USDA Response
    The Department received 29 comments on the proposed provision, 27 
of which were supportive and 2 that were unsupportive. Supportive 
commenters included: 2 State and 13 local agencies, 5 advocacy groups, 
and 7 food bank associations. One State agency and 1 food bank 
association were unsupportive of the provision.
    Supportive commenters agreed that collecting names and addresses 
from clients can pose risks to confidentiality and requires data 
protection and stated that participants should not be vulnerable to 
unlawful targeting or harassment throughout any process. Other 
supportive comments cited that this provision would uphold privacy, 
confidentiality, and dignity standards within the program and one 
commenter urged USDA to prohibit the collection of unnecessary 
personally identifying identification, such as social security numbers, 
on the TEFAP eligibility form.
    Some commenters expressed concern about whether the proposed 
provision would allow for the use of electronic intake platforms. The 
use of electronic systems in TEFAP, including electronic intake 
platforms, will continue to be acceptable under the final provision, as 
long as the systems are able to properly ensure the protection of 
information collected from households and meet existing program 
requirements and all relevant Federal or State requirements.
    Other commenters expressed concern that the provision would not 
allow volunteers to collect information. This provision is not intended 
to stop the use of volunteers to collect program information. However, 
volunteers should be made aware of the confidentiality rules in TEFAP 
and keep information collected confidential. Commenters also questioned 
whether the requirement would require each participant to sign a 
separate sign-in sheet or intake form, which would be costly and time 
consuming. Provided that confidentiality is maintained, a separate 
sign-in sheets is not required for each participant. Finally, one 
commenter was concerned the provision would negatively impact 
categorical eligibility, and another was concerned the proposed 
requirement would impact existing data sharing agreements and 
questioned whether the proposed requirement would have a detrimental 
impact on efforts to improve nutrition and hunger relief programming. 
This provision does not impact categorical eligibility, as the 
regulatory language at Sec.  251.10(c)(2) allows, with the consent of 
the participant, State or local agencies to share information obtained 
with other health or welfare programs for use in determining 
eligibility for those programs, or for program outreach.
VIII. Nondiscrimination Statement Update (Sec.  251.14(b))
    The Department proposed an update to the nondiscrimination 
statement language at Sec.  251.10(c) and redesignating as Sec.  
251.14(b) to state that TEFAP must be operated in accordance with the 
most-up-to-date USDA nondiscrimination statement. Because the 
nondiscrimination statement is applicable to multiple USDA programs, 
the Department has reconsidered its approach. The Department will not 
finalize the proposed provision in this rulemaking. The Department will 
consider options to address this in future rulemaking. This rulemaking 
moves the current nondiscrimination statement language from Sec.  
251.10(c) to newly created Sec.  251.14(b), with confidentiality 
protections codified at Sec.  251.10(c).
Public Comments and USDA Response
    The Department received 4 comments from 2 State agencies and 2 
advocacy groups, all of which were supportive of the proposed change. 
The Department appreciates support for the proposed changes and will 
consider this feedback in future rulemaking addressing the 
nondiscrimination statement, with the goal of consistency across USDA 
programs.
IX. Eligible Recipient Agency Reporting (Sec.  251.10(b)(3))
    This final rule codifies the proposed provision at Sec.  
251.10(b)(3) with modification to establish a new requirement for State 
agencies to annually submit a list of all ERAs and statewide 
eligibility criteria to FNS. The Department is revising the regulatory 
language to retain the intent of this provision as proposed. The 
proposed revision referenced the publicly available list of ERAs 
described at Sec.  251.4(l). Since that provision is revised in this 
final rule to only include ERAs with direct agreements with the State 
agency, (see `Requirement for the Public Posting of Availability of 
USDA Foods Through TEFAP'), the Department removes reference to the 
publicly posted ERA list at Sec.  251.4(l) and instead modifies the 
provision to require that State agencies must annually submit a list of 
all ERAs and statewide eligibility criteria. This revision ensures this 
report includes all ERAs, including those ERAs which distribute USDA 
Foods to other ERAs, to eligible households for home consumption, or in 
prepared meals.
    This information is collected for program management purposes so 
that FNS may understand both where TEFAP services are offered and the 
national landscape of participating TEFAP ERAs. It is not intended to 
be a `real-time' list for active participant referrals. The list 
provided to FNS will include ERAs that have agreements with

[[Page 87238]]

a State agency and ERAs that have agreements with another ERA. The list 
also includes ERAs that distribute USDA Foods for home consumption and 
those that distribute USDA Foods in the form of prepared meals. This 
will allow FNS to better understand areas where there may be gaps in 
service, and work with States to eliminate these gaps. The Department 
did not receive any specific comments on the above proposed change at 
Sec.  251.10(b)(3).
X. Household Distribution Participation Reporting (Sec.  251.10(b)(4))
    This final rule codifies the provision at Sec.  251.10(b)(4) with 
modification to require State agencies to report the number of persons 
(i.e., site visits) served by all TEFAP distribution sites providing 
USDA Foods for home consumption per month. State agencies and ERAs will 
only need to count the total number of individuals served in a month 
and will not need to identify the number of unique households that are 
served in a month. To the extent possible, State agencies and ERAs 
should record the total number of persons in each household that is 
served for each site visit, but the Department acknowledges accuracy of 
these data will vary based on each agency's method of tracking 
participants. This is a revision from the proposed provision which 
would have required the State agency to report the total number of 
persons in all households receiving USDA Foods for household 
consumption per month. Consistent with the proposed rule, State 
agencies will be required to provide this information on a quarterly 
basis. FNS will align the timing of this report with other required 
quarterly reporting, such as administrative funds usage, in order to 
minimize reporting burden for State agencies.
Public Comments and USDA Response
    The Department received 23 comments on the proposed provision, 14 
of which were supportive and 9 which were not supportive. Supportive 
commenters included: 1 State and 4 local agencies, 2 advocacy groups, 5 
food bank associations, and 2 individuals. Non-supportive commenters 
included: 6 State agencies, 2 local agencies, and 1 food bank 
association. A commenter indicated that increased reporting on TEFAP 
participation would enhance transparency in implementation and support 
informed decisions about program improvements. Additionally, commenters 
expressed support for the alignment of this report with other required 
quarterly reporting, indicating that it will reduce the overall 
reporting burden for State agencies.
    Commenters expressed concern that the proposed method of tracking 
could be complex because participants typically indicate the number of 
household members on their application, and do not typically convey the 
monthly number of individuals in their household each time they receive 
food. Commenters discussed how this could result in inaccuracies as 
individuals may move in and out of a household in each month, and that 
tracking nonresponse forms would be time consuming. Other commenters 
cited general administrative burden and more specifically, an increased 
burden for those using manual data collection systems. Further concerns 
were raised about the difficulty of ensuring unduplicated data when 
comparing the number of visits to a distribution site versus the number 
of individuals served.
    The Department concurs with the commenters who expressed concern 
with the potential difficulties of reporting an unduplicated record of 
each household that visits a distribution site and other potential 
inaccuracies with the data. The Department is revising this provision 
in response to those comments to instead require that TEFAP State 
agencies report the total number of individuals served by each TEFAP 
distribution site per month, on a quarterly basis. This revision 
addresses concerns on the additional administrative burden of providing 
accurate and/or unduplicated data. For example, households that 
participate more than once a month may be counted as a separate visit 
each time they access a TEFAP distribution site. Distribution sites 
only need to report the total number of persons they served at the end 
of each month, without regard to how many unique households were 
served. To the extent possible, State agencies and ERAs should record 
the total number of individuals in each household who are served for 
each site visit, but the Department acknowledges that the accuracy of 
this data will vary based on each agency's method of tracking 
participants.
    The Department currently has little insight into the total number 
of people served by TEFAP. This data will be used to help the 
Department understand the current reach of the program and to better 
understand and plan for future resource needs. The Department 
recognizes there is administrative burden associated with collecting 
this data and determined it is in the best interest of the program to 
collect this data to support the current operation of TEFAP and plan 
for the future of the program. The Department will provide additional 
guidance on this provision as part of the implementation of this final 
rule. In recognition of the burden this provision requires, State 
agencies will have 12 months to implement this provision.
XI. Technical Corrections for Miscellaneous Provision (Sec.  251.10(d) 
and (f))
    This final rule codifies the technical corrections at Sec.  
251.10(d) and (f) as proposed. The Department updates Sec.  251.10(d) 
to correct an error in a reference to reporting requirements. The 
Department updates paragraph (f) references to reflect redesignations 
and newly created sections in the proposed rule, which are discussed 
below. The Department is also clarifying the requirements for limits on 
unrelated activities during the administration of TEFAP and potential 
consequences for violation of these limits by more clearly stating 
existing requirements.
Public Comments and USDA Response
    The Department received 15 comments which were all supportive. 
Commenters included 5 State and 5 local agencies, 2 food bank 
associations, and 3 advocacy groups. The Department concurs with the 
commenters.
XII. Redesignations for Miscellaneous Provisions (Sec.  251.10)
    This final rule codifies the redesignation for miscellaneous 
provisions at Sec.  251.10 as proposed. The Department is breaking the 
current Sec.  251.10 Miscellaneous into five distinct sections: Sec.  
251.10 Reports and recordkeeping, Sec.  251.11 State monitoring system, 
Sec.  251.12 Limitation on unrelated activities, Sec.  251.13 Farm to 
Food Bank projects, and Sec.  251.14 Miscellaneous to significantly 
improve the readability of the regulation, with the intent of reducing 
confusion on the part of State agencies. The Department did not receive 
any specific comments on this provision.
XIII. New Sections Created for Clarity (Sec. Sec.  251.11, 251.12, 
251.13, and 251.14)
    This final rule codifies the creation of new sections for clarity 
at Sec. Sec.  251.11, 251.12, 251.13, and 251.14 as proposed. Section 
251.11 includes requirements for State agency monitoring systems, and 
Sec.  251.12 explains limitations on unrelated activities at TEFAP 
distributions. Farm to Food Bank Project regulations move into Sec.  
251.13 so that State agencies can easily locate all requirements for 
these projects. Finally, Sec.  251.14 includes miscellaneous

[[Page 87239]]

provisions that are not closely related to other provisions, such as 
nondiscrimination and use of volunteer workers and non-USDA foods. The 
Department did not receive any specific comments on the creation of new 
sections for clarity.
D. Food Distribution Program on Indian Reservations
    Final revisions to FDPIR regulations (7 CFR part 253) establish 
further parity between FDPIR eligibility requirements and SNAP and 
support program access. Among the final changes, the Department is 
finalizing as proposed provisions to: clarify the household concept for 
purposes of FDPIR eligibility for spouses living together and spouses 
living apart in separate households; remove the urban place requirement 
which limits the operation of FDPIR in approved near areas and/or 
service areas that have a population of 10,000 people or more; update 
the shelter/utility standard deduction to remove the Regional standard 
deduction and set forth a revised approach pursuant to Tribal leader 
and FDPIR program community feedback; and establish a limited 
administrative waiver to be more consistent with SNAP waiver 
authorities. As discussed in Procedural Matters: Executive Order 13175, 
the Department consulted with Tribal leaders on a number of occasions 
on the development of both the proposed and final rules. The Department 
also commits to further consultation, including on implementation of 
the below FDPIR provisions, as needed.
I. Technical Updates to the Entire Part 253
    This final rule codifies technical updates to the entire 7 CFR part 
253 as proposed. Technical corrections throughout 7 CFR part 253 
replace instances of the outdated terms ``commodity'' and 
``commodities'' with ``USDA Foods'' and the outdated term ``Food 
Stamps'' with ``SNAP,'' the Supplemental Nutrition Assistance Program. 
These updates align 7 CFR part 253 with other sections in this chapter. 
The Department is also adding a technical edit to the definition of 
State agency at Sec.  253.2. This technical change adds clarification 
to the definition of State agency that State agencies are also referred 
to as FDPIR administering agencies. This technical change supports 
modernizing terminology and recognizes that FDPIR administering 
agencies are primarily ITOs, with 107 ITOs and only 3 State agencies 
administering the program in 2024. Additional technical corrections are 
noted, as applicable, in section discussions below.
Public Comments and USDA Response
    The Department received 7 comments that were all supportive of the 
proposed changes. Commenters included: 2 ITOs and 5 advocacy groups. 
One comment noted how replacing commodities with USDA Foods will 
improve clarity and consistency across food distribution programs. The 
Department concurs with the commenters.
II. Removal of Urban Place Definition (Sec. Sec.  253.2 and 253.4)
    This final rule codifies the removal of references to urban places 
and the associated requirement that an FDPIR Indian Tribal Organization 
(ITO) or State agency must provide a justification to FNS to serve 
urban places off the reservation at Sec. Sec.  253.2 and 253.4 as 
proposed. Prior to this rule change, per Sec.  253.2, an urban place 
was defined as a city or town with a population of 10,000 or more. 
Further, per Sec.  253.4(d), any urban place outside of the reservation 
boundaries could not be served unless an ITO or State agency requested 
to serve the urban place with a justification for FNS review and 
approval. Conforming revisions are also made to 7 CFR part 254, 
Administration of the Food Distribution Program for Indian Households 
in Oklahoma.
    Additionally, the Department is changing the term ``contract'' in 
Sec.  253.4(b)(3) to ``delegate'' in order to improve the clarity of 
the section and to be consistent with language used in 7 CFR parts 247, 
250, and 251.
Public Comments and USDA Response
    The Department received 16 comments about this provision, all of 
which were supportive. Commenters included: 2 ITOs, 10 advocacy groups, 
and 4 local agencies. Eleven comments specifically requested language 
ensuring that serving an urban population remains optional. The 
Department affirms that with the removal of the urban place language, 
FDPIR administering agencies maintain the choice of serving an urban 
population.
III. Periodically Assessing the FDPIR Food Package (Sec.  253.3)
    In Sec.  253.3, this final rule codifies as proposed the provision 
which requires FNS to periodically assess how USDA Foods provided in 
FDPIR compare to the Dietary Guidelines for Americans (DGAs) and the 
market baskets of the Thrifty Food Plan (TFP) and, to the extent 
practicable, adjust the FDPIR food package benefit as needed to ensure 
the FDPIR food package continues to be consistent with these 
assessments of basic dietary needs. The provision prohibits the FDPIR 
food package benefit from being reduced as a result of the analysis.
    Additionally, this final rule codifies as proposed the provisions 
at Sec.  253.3(a)(2) to clarify in plain language that FDPIR households 
can receive FDPIR USDA Foods as well as USDA Foods from other programs 
in the same month, in accordance with the requirements of 7 CFR part 
250 and with other Federal regulations applicable to specific USDA 
Foods programs.
    This final rule also codifies a technical correction that removes 
the list of food groups in the FDPIR food package from Sec.  253.3(d) 
as proposed.
Public Comments and USDA Response
    The Department received 11 comments about this provision, all of 
which were supportive. Comments were submitted by 2 ITOs, 7 advocacy 
groups, and 2 local agencies. Commenters encouraged FNS to allow food 
package reviews on an as-needed basis without limitations on frequency. 
Comments also requested a requirement that any change in SNAP benefits 
would trigger an immediate FDPIR food package review. Commenters 
mentioned that changes to the FDPIR food package made during the 
pandemic were not commensurate with changes made to SNAP benefit 
levels.
    FNS will continue to work with the program community, including 
Tribal partners, to routinely review the FDPIR food package and, to the 
extent practicable, offer USDA Foods that reflect preferences of 
eligible households. In addition, FNS will assess consistency between 
the amounts of food provided in FDPIR and SNAP at a frequency that 
aligns with the reevaluation of the TFP market basket and is 
practically feasible. While both SNAP and FDPIR benefit amounts are 
determined in part by TFP market basket amounts, SNAP provides 
participants with an electronic benefit to purchase eligible foods and 
FDPIR provides participants with a tangible food package benefit. This 
means that SNAP benefit levels must be adjusted annually for inflation 
to ensure that participants can purchase the same amount of food year-
to-year, while FDPIR participants receive the same amount of food each 
year regardless of inflation. When inflation affects food prices, the 
increased cost of the FDPIR food package is absorbed by USDA and does 
not impact participants in the same way as it does in SNAP. To support 
transparency, FNS will communicate

[[Page 87240]]

when assessments will occur to program stakeholders with the frequency 
of such evaluations informed by publication of the most current DGAs 
and reevaluations of the TFP market baskets.
IV. Nondiscrimination Statement Update (Sec.  253.5)
    The Department proposed an update to the nondiscrimination 
statement language at Sec.  253.5 to state that FDPIR must be operated 
in accordance with the most up-to-date USDA nondiscrimination 
statement. Because the nondiscrimination statement is applicable to 
multiple USDA programs, the Department has reconsidered its approach. 
The Department will not finalize the proposed provision in this 
rulemaking. The Department will consider options to address this in 
future rulemaking.
Public Comments and USDA Response
    The Department received 4 comments on this provision, all of which 
were supportive. Comments included: 3 advocacy groups and 1 individual. 
One commenter specifically requested that FNS ensure sexual orientation 
and gender identity are protected classes in program implementation. 
The Department appreciates input on the proposed changes and will 
consider this feedback in future rulemaking addressing the 
nondiscrimination statement, with the goal of consistency across USDA 
programs.
V. Updates to FDPIR Eligibility Provisions (Sec.  253.6)
    This final rule codifies several changes to FDPIR eligibility 
provisions as proposed at Sec.  253.6 to increase access to the program 
and to improve consistency between FDPIR and SNAP requirements.
1. Separate Household Status for Spouses Not Living Together (Sec.  
253.6(a)(1))
    This final rule codifies the removal of the regulatory prohibition 
at Sec.  253.6(a)(1) on granting separate household status to spouses 
living apart as proposed. For additional clarity, this final rule also 
adds a new paragraph Sec.  253.6(a)(1)(iv) stating that spouses living 
separately and apart are considered separate households. Prior to this 
change, separate household status could not be granted to spouses 
living apart. The final provision establishes parity between FDPIR and 
SNAP regarding the treatment of household composition for spouses.
Public Comments and USDA Response
    The Department received 12 comments about this provision, all of 
which were supportive. Comments included: 2 ITOs, 6 advocacy groups, 
and 2 local agencies. Comments described increased flexibility and 
maintaining parity with SNAP as positive factors for this provision. 
The Department concurs with the commenters.
2. Minor Children Living Apart From Parents and Household Status (Sec.  
253.6(a)(4))
    This final rule codifies a new section at Sec.  253.6(a)(4) as 
proposed to clarify that a child is considered under parental control 
if they are financially or otherwise dependent on a member of that 
household. This change improves consistency between FDPIR and SNAP 
requirements to ensure that both programs only certify a child if the 
adult household member has ``parental'' control over the child. For 
example, if a child is living with their grandparents, the child is not 
considered a part of their parents' household when determining 
eligibility. Previous FDPIR regulations at Sec.  253.6(a)(1) included 
language that children under the age of 18 under the parental control 
of a member of the household cannot receive separate household status, 
which is now allowed through this rulemaking.
Public Comments and USDA Response
    The Department received 8 comments about this provision, all of 
which were supportive. Comments included: 2 ITOs, 4 advocacy groups, 
and 2 food bank associations. Comments supported increased flexibility 
and parity with SNAP for this provision. The Department concurs with 
the commenters.
3. Removal of California SSI Cash-Out Reference (Sec.  253.6(a)(2)(ii))
    This final rule codifies the removal of reference to Supplemental 
Security Income (SSI) cash-out at Sec.  253.6(a)(2)(ii) when 
determining household eligibility as proposed, as this provision is no 
longer applicable. The Department did not receive any comments on this 
proposed change.
4. Revisions to Shelter/Utility Deductions (Sec.  253.6(e)(5))
    This final rule codifies the change to Sec.  253.6(e)(5) as 
proposed to update the existing FDPIR standard shelter/utility 
deduction to allow a household to choose either a standard deduction 
amount or actual shelter/utility expenses when determining income 
eligibility for FDPIR. Consistent with the proposed rule provision, FNS 
will both simplify the standard deduction and increase it by using the 
level of the SNAP maximum shelter deduction instead of the prior 
Regional standard deductions. The FDPIR base income eligibility 
thresholds are set annually using 100 percent of the U.S. Federal 
Poverty Guidelines published by the U.S. Department of Health and Human 
Services (HHS) and increased by the SNAP standard deduction by 
household size. FDPIR regulations at Sec.  253.6(e) provide for income 
deductions, including the shelter/utility deduction, in recognition of 
expenses which impact the amount of household income available for food 
purchases. The new standard deduction for the applicable area (e.g., 
contiguous U.S., Alaska) will be consistent with SNAP maximum monthly 
excess shelter expense deduction limits outlined at Sec.  
273.9(d)(6)(ii). If a household chooses to claim actual expenses, then 
the household may claim up to 50 percent of their monthly net income 
and must provide verification of expenses. See VI. Verification 
Procedures (Sec.  253.7), where the Department finalizes verification 
requirements for applicants and participants seeking to provide actual 
shelter and utility expenses.
    Under the revised standard deduction method, when the SNAP excess 
shelter deduction is updated annually for the next fiscal year (FY), as 
per Sec.  273.9(d)(6)(ii), the maximum monthly excess shelter deduction 
limit established for the area is used as the FDPIR shelter/utility 
standard deduction amount. For example, in FY 2024, the SNAP maximum 
shelter deduction amount for the 48 contiguous States and the District 
of Columbia was $672 and Alaska was $1,073. Under this finalized 
provision, these amounts are used for the standard deduction for 
households that elect to use this amount; or the household could choose 
to provide actual expenses up to 50 percent of net income. The shelter/
utility standard deduction amounts will be updated annually by October 
1. For FY 2025, the Department will issue shelter/utility deduction 
standard amounts following publication of this final rule and prior to 
the effective date of 60 days after publication of this final rule. In 
future years, on October 1, the shelter/utility standard deduction will 
be updated and effective immediately.
    In addition to these changes, the Department also finalizes the 
technical change at Sec.  253.6(e)(1) to indicate that under the earned 
income deduction, twenty percent should be deducted from ``gross earned 
income,'' instead of the

[[Page 87241]]

previous ``earned income,'' which increases clarity in this section.
Public Comments and USDA Response
    The Department received 15 comments on this provision, all of which 
were supportive. Comments included: 3 ITOs, 7 advocacy groups, and 5 
food bank associations. Commenters highlighted the previous shelter and 
utility deduction process sometimes failed to consider the unique 
conditions in Indian country. Commenters also noted the proposed 
changes would increase FDPIR access and acknowledge the varying 
circumstances in Tribal communities. The Department concurs with 
commenters; these changes to the shelter/utility deductions help ensure 
access to households who may be food insecure due to high costs of 
shelter and utility expenses.
5. Request for Public Comments: FDPIR Income Standards (Sec.  253.6(d))
    As provided in the discussion of 4. Revisions to Shelter/Utility 
Deductions (Sec.  253.6(e)(5)) above, the FDPIR base income eligibility 
thresholds are set annually using 100 percent of the U.S. Federal 
Poverty Guidelines published by HHS and increased by the SNAP standard 
deduction by household size. The Department solicited comments 
regarding whether further changes should be made to FDPIR income 
eligibility standards to increase program access and parity with SNAP. 
The Department sought feedback from FDPIR ITOs and State agencies to 
inform potential future proposals on alternative eligibility thresholds 
for FDPIR, including feedback on the following questions:
    1. Are there data sources in addition to HHS data that the 
Department should consider when determining income eligibility 
standards for FDPIR?
    2. Should the Department consider use of a gross income eligibility 
requirement for FDPIR e.g., 185 percent of the U.S. Federal Poverty 
Guidelines published annually by HHS, without application of any income 
deductions?
Public Comments and USDA Response
    The Department received 9 comments related to this request for 
comment. Comments included: 2 ITOs, 6 advocacy groups, and 1 local 
agency. Six commenters stated that national and regional standards do 
not always accurately reflect the situations of those living in Indian 
country and requested that FNS simplify the process by providing for an 
alternate calculation for determining eligibility. These commenters 
requested FNS allow applicants the choice of qualifying under either 
increased gross income guidelines without deductions, or current 
guidelines with the proposed, and now finalized, increased shelter and 
utility cost deduction. Another commenter expressed that using gross 
income eligibility without deductions would simplify the process for 
many ITOs by minimizing the burden for administrative staff.
    The Department appreciates the feedback received in response to 
this request for comment and will consider these comments for potential 
future rulemaking.
VI. Verification Procedures (Sec.  253.7)
    This final rule codifies a technical update to the verification 
requirements for the shelter/utility deduction as proposed to provide 
verification for all expenses if actuals are used. The Department also 
finalizes a technical update to the threshold for which an ITO or State 
agency must verify a change in income from $50 to $100 at the time of 
recertification.
Public Comments and USDA Response
    The Department received 1 comment from an advocacy group on this 
provision, which was supportive of the increased threshold. The 
Department concurs with the commenter.
VII. USDA Foods Inventory Management (Sec.  253.10)
    This final rule codifies technical updates to Sec.  253.10 as 
proposed to make this section consistent with the 2016 Final Rule, 
Requirements for the Distribution and Control of Donated Foods--The 
Emergency Food Assistance Program: Implementation of the Agricultural 
Act of 2014.\1\ The Department also finalizes the removal of current 
FDPIR regulatory requirements at Sec.  253.10(c)(1) through (6) and 
replacing them with a reference to follow storage and inventory 
management regulations listed at Sec. Sec.  250.12 and 250.14. 
Additionally, the Department finalizes the proposed changes to move 
regulations at Sec.  253.10(c)(7) through (17) to (d), as these 
regulations are applicable to distribution procedures and moving them 
improves readability and clarity. The Department did not receive any 
comments on this provision.
---------------------------------------------------------------------------

    \1\ USDA Food and Nutrition Service, Final Rule: Requirements 
for the Distribution and Control of Donated Foods--The Emergency 
Food Assistance Program: Implementation of the Agricultural Act of 
2014 (81 FR 23085). Accessed 23 January 2023. Available at internet 
site: https://www.federalregister.gov/documents/2016/04/19/2016-08639/requirements-for-the-distribution-and-control-of-donated-foods-the-emergency-food-assistance-program.
---------------------------------------------------------------------------

VIII. Soliciting Tribal Stakeholder Feedback on the FDPIR 
Administrative Funding Methodology
    The Department solicited comments on the method used to allocate 
administrative funding to FDPIR administering agencies, which include 
ITOs and State agencies that have an agreement with FNS to administer 
FDPIR. This solicitation of comments was intended to gather FDPIR 
administering agency feedback on the existing administrative funding 
methodology, including the budget negotiation process, to frame any 
necessary future discussions and changes to the methodology.
    The Department specifically requested comments from FDPIR 
administering agencies on the following questions:
    1. With the advent of two-year FDPIR administrative funding, and 
given the increase in funding in recent years, does the current 
methodology provide your organization with adequate funding to meet its 
administrative needs?
    2. Are there aspects of the current funding methodology that could 
be improved, and if so, how?
    3. Specifically, please provide comment on the effectiveness of the 
current regional allocation and budget negotiation process and if 
modifications or another model could better serve Indian Tribal 
Organization needs.
Public Comments and USDA Response
    The Department received 8 comments applicable to this request for 
comment. Commenters included: 2 ITOs and 6 advocacy groups. Some 
commenters felt the current funding structure is adequate, while others 
suggested improvements are needed. Commenters also suggested that 
regional allocations and budget negotiations do not fully capture the 
challenges ITOs face. Because ITOs have different needs, commenters 
suggested increased flexibility in use of funds. Allowable uses of 
appropriated funds may include salaries and benefits for FDPIR 
personnel, materials and supplies, equipment, and meetings and 
conferences. FNS allocates funding according to the requests it 
receives from ITOs each fiscal year.
    Commenters also requested increased Tribal inclusion in the USDA 
annual budget process, with commenters suggesting a process similar to 
the approach(es) at other Federal agencies.
    The Department appreciates the varied feedback from commenters on 
this request for comment and will use

[[Page 87242]]

this feedback to inform any future discussions on FDPIR administrative 
funding.
IX. Establishment of Administrative Waiver Authority in FDPIR (Sec.  
253.12)
    This final rule codifies a new section at Sec.  253.12 as proposed 
with technical modifications that provides authority for USDA FNS to 
waive or modify specific administrative requirements contained in the 
regulations under similar situations and processes and for similar 
amounts of time as SNAP regulations at Sec.  272.3(c). Under this 
provision, ITOs and State agencies can request waivers of specific 
regulatory requirements. A technical correction was made to the text of 
Sec.  253.12(a), which simplifies the language to be more in line with 
current SNAP waiver language without impacting the effect of the 
provision. The process requires ITOs and State agencies to provide 
compelling justification for each waiver request submitted. FNS may 
approve waivers only in the following circumstances: (1) the specific 
regulatory provision cannot be implemented due to extraordinary 
temporary situations, (2) FNS determines that the waiver would result 
in a more effective and efficient administration of the program, or (3) 
unique geographic conditions within the geographic area served by the 
administering agency preclude effective implementation of the specific 
regulatory provision and require an alternative procedure. FNS will not 
issue any waivers in situations where the waivers are inconsistent with 
provisions of the Food and Nutrition Act of 2008, as amended (Pub. L. 
95-113). This provision is intended to mirror SNAP waiver requirements, 
thus increasing parity between the two programs, but the provision is 
separate and distinct from SNAP waiver authority. The Department 
recognizes that immediate implementation of this provision may benefit 
FDPIR ITOs and State agencies. Because this provision recognizes an 
exemption, the Department is using the authority at 5 U.S.C. 553(d)(1) 
to make this provision effective immediately upon the date of 
publication of this final rule.
Public Comments and USDA Response
    The Department received 10 comments regarding this provision, all 
of which were generally supportive but also outlined specific requests 
or concerns about the provision. Commenters included 2 ITOs and 8 
advocacy groups. Five commenters requested more specific language or 
examples regarding the need to provide a compelling justification for a 
waiver, and specific language or examples of what documentation may be 
needed to demonstrate a compelling justification. FNS will provide 
written guidance on implementation of this provision including examples 
of compelling justifications for requesting a waiver in addition to 
example documentation and/or templates/formats for FDPIR ITOs and State 
agencies to use. To support simplicity in the administrative waiver 
process, FNS may also issue nationwide waivers if determined to be 
necessary and applicable to all FDPIR ITOs and State agencies, further 
reducing burden.
    Multiple commenters also requested that FNS use the waiver 
authority in Executive Order 13175 to provide additional flexibility to 
the provision and to better reflect Tribal sovereignty. FNS notes the 
waiver authority referenced in Executive Order 13175 only applies to 
statutory or regulatory requirements that are discretionary and subject 
to waiver by the agency. FNS currently does not have any statutory or 
regulatory requirements for FDPIR that are discretionary in nature and 
subject to waiver. However, FNS believes this provision, as proposed, 
supports Executive Order 13175 by streamlining the process for FDPIR 
ITOs and State agencies to apply for waivers of specific regulatory 
requirements and further supports the comments received of providing 
additional flexibility to better reflect Tribal sovereignty.
    The Department has simplified the language of the provision to be 
more in line with current SNAP waiver language, but the effect of the 
provision has not changed from what was proposed. While this provision 
will be effective upon publication of the final rule, the Department 
commits to further consultation on the implementation of this 
provision, including the waiver submission process, as needed.

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

    Circumstances unique to distributing FDPIR to households residing 
in FNS services areas in Oklahoma are addressed in 7 CFR part 254. This 
final rule codifies changes to 7 CFR part 254 to align with updates 
made to 7 CFR part 253 as proposed. The technical updates to 7 CFR part 
254 include replacing the outdated term ``commodities'' with ``USDA 
Foods'' to further align the program with the definition of ``USDA 
Foods'' in 7 CFR part 250. In accordance with the finalized changes in 
d. Food Distribution on Indian Reservations, ii. Removal of Urban Place 
Definition (Sec. Sec.  253.2 and 253.5), the Department is removing the 
references to the urban place definition and related terminology and 
the requirement to provide justification to FNS.
    The Department did not receive any comments specific to changes 
made in 7 CFR part 254.

Section 2. Implementation

    The Department initially proposed that State agencies, ITOs, and 
other affected parties must implement the provisions of the proposed 
rule no later than 60 days after the date of publication of the final 
rule in the Federal Register. The Department sought comments on the 
type and scope of administrative burden that may be associated with 
implementing the provisions in this proposed rule in this manner.
    Commenters generally highlighted time, limited resources, and 
systems changes needed to successfully implement some of the provisions 
in this final rule. After evaluating comments, the Department is 
providing a 60-day implementation timeline for all provisions, with the 
exception of the following:
    1. Two provisions will be effective immediately upon publication of 
the final rule:
    a. Under 5 U.S.C. 553(d)(1), because this provision recognizes an 
exemption, the Department is making the Establishment of Administrative 
Waiver Authority in FDPIR (7 CFR 253.12) effective immediately upon the 
date of publication of this final rule.
    b. Under 5 U.S.C. 553(d)(1), because this provision relieves a 
restriction, the Department is making the Removal of Prohibition on 
Simultaneous Provision of USDA [Donated] Foods and D-SNAP during a 
Disaster (Sec. Sec.  250.69(c)(2) and 250.70(d)) effective immediately 
upon the date of publication of this final rule.
    2. The Department is establishing a 12-month implementation period 
for the following six provisions:
    a. CSFP State Plan Requirement (Sec. Sec.  247.6(a) and 
247.5(b)(17));
    b. CSFP Public Posting of the Availability of USDA Foods (Sec.  
247.5(b)(16);
    c. CSFP Referral Materials for the Senior Farmers' Market Nutrition 
Program (Sec.  247.14(a)(4));
    d. TEFAP Requirement for the Public Posting of Availability of USDA 
Foods Through TEFAP (Sec.  251.4(l));
    e. TEFAP Household Distribution Participation Reporting (Sec.  
251.10(b)(4)); and

[[Page 87243]]

    f. TEFAP Public Posting of Statewide TEFAP Eligibility Criteria 
(Sec.  251.5(b)).
    State agencies are allowed and encouraged to implement these 
provisions prior to the 12-month deadline. For more information on each 
of these provisions, please refer to section 1. Background and 
Discussion of the Final Rule.
    Severability: If any provision of such section promulgated through 
this final rule, ``Food Distribution Programs: Improving Access and 
Parity'' (FNS-2024-00XX; RIN 054-AE92), is held to be invalid or 
unenforceable by its terms, or as applied to any person or 
circumstances, it shall be severable and not affect the remainder 
thereof.

Section 3. Procedural Matters

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This final rule has been determined to be not significant and was 
not reviewed by the Office of Management and Budget (OMB) in 
conformance with Executive Order 12866.
Regulatory Impact Analysis
    This rule has been designated as not significant by the Office of 
Management and Budget, therefore, no Regulatory Impact Analysis is 
required.
Regulatory Flexibility Act
    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities.
    While there may be some burden/impact on some small eligible 
recipient agencies in TEFAP because of the proposed requirement to 
report participation in TEFAP, the impact is not significant because 
these entities are already collecting this information as a part of 
their normal program operations under existing regulatory requirements.

Congressional Review Act

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

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Department generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local or Tribal 
governments, in the aggregate, or the private sector, of $146 million 
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 
at https://www.bea.gov/iTable in any one year. When such a statement is 
needed for a rule, Section 205 of the UMRA generally requires the 
Department to identify and consider a reasonable number of regulatory 
alternatives and adopt the most cost effective or least burdensome 
alternative that achieves the objectives of the rule.
    This final rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
tribal governments or the private sector of $146 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

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

Federalism Summary Impact Statement

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

Executive Order 12988, Civil Justice Reform

    This 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 
and timely implementation. This rule is not intended to have 
retroactive effect unless so specified in the Effective Dates section 
of the final rule. Prior to any judicial challenge to the provisions of 
the final rule, all applicable administrative procedures must be 
exhausted.

Civil Rights Impact Analysis

    FNS has reviewed the final rule, in accordance with the Department 
Regulation 4300-004 ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the final rule might have on 
participants on the basis of race, sex (including gender identity and 
sexual orientation), national origin, disability, or age. The 
requirements outlined in the final rule aim to remove barriers to 
access and improve parity across programs. The final rule would impact 
State agencies, ITOs, local agencies, and food banks in ways that are 
expected to increase equity and access for participants.
    To mitigate potential impacts on program access, FNS will provide 
State agencies with technical assistance aimed at ensuring that 
communication about program changes is available in appropriate 
languages and in alternative formats for persons with disabilities. 
After reviewing the potential impacts, FNS does not believe the final 
rule would result in civil rights impacts on protected groups of 
participants and applicants. However, the FNS Civil Rights Division 
will propose further outreach and mitigation strategies to alleviate 
any unforeseen impacts, if deemed necessary.

Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship

[[Page 87244]]

between the Federal Government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    On November 8, 2022, December 6 and 13, 2022, February 22, 2023, 
and June 27, 2023, FNS provided the opportunity for Tribal consultation 
on the proposed rule and received substantive feedback from several 
Tribal leaders which were taken into consideration during the 
development of the proposed rule. FNS also consulted with Tribal 
leaders on the implementation of the final rule on February 16, 2024. 
Notes from these consultations are available at https://www.usda.gov/tribalrelations/tribal-consultations.
    If a Tribe requests additional consultation in the future, FNS will 
work with the USDA Office of Tribal Relations to ensure meaningful 
consultation is provided. We are unaware of current Tribal laws that 
could be in conflict with this rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 
1320) requires the Office of Management and Budget (OMB) approve all 
collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number.
    The information collection and recordkeeping requirements included 
in this final rule have been submitted by the Agency to OMB for 
approval which is currently pending. FNS will not collect any 
information associated with this rule until the information collections 
are approved by OMB.

E-Government Act Compliance

    The Department 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.

List of Subjects

7 CFR Part 247

    Aged, Agricultural commodities, Food assistance programs, Public 
assistance programs.

7 CFR Part 250

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

7 CFR Part 251

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

7 CFR Part 253

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

7 CFR Part 254

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

    Accordingly, 7 CFR parts 247, 250, 251, 253, and 254 are amended as 
follows:

PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM

0
1. The authority citation for part 247 continues to read as follows:

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

0
2. Amend Sec.  247.1 by:
0
a. Removing the definitions of ``Commodities'' and ``Elderly persons'';
0
b. Revising the definitions of ``Proxy'' and ``Subdistributing 
agency''; and
0
c. Adding in alphabetical order a definition for ``USDA Foods''.
    The revisions and addition read as follows:


Sec.  247.1  Definitions.

* * * * *
    Proxy means any person designated by a participant or caretaker to 
obtain USDA Foods on behalf of the participant.
* * * * *
    Subdistributing agency means an agency or organization that has 
entered into an agreement with the State agency to perform functions 
normally performed by the State, such as entering into agreements with 
eligible recipient agencies under which USDA Foods are made available, 
ordering USDA Foods and/or making arrangements for the storage and 
delivery of such USDA Foods on behalf of eligible recipient agencies.
    USDA Foods means nutritious foods purchased by USDA to supplement 
the diets of CSFP participants, also referred to as donated foods.
* * * * *


Sec.  247.2  [Amended]

0
3. In Sec.  247.2 amend paragraph (a):
0
a. In the first sentence, by removing the term ``commodities'' and 
adding in its place the term ``USDA Foods'';
0
b. In the first sentence, by removing the term ``elderly persons'' and 
adding in its place the term ``participants''; and
0
c. Removing the second sentence.


Sec.  247.3  [Amended]

0
4. Amend Sec.  247.3 in the first and fifth sentences of paragraph (a) 
by removing the term ``commodities'' and adding in its place the term 
``USDA Foods''.


Sec.  247.4  [Amended]

0
5. Amend Sec.  247.4 by removing the term ``commodities'' wherever it 
appears in paragraphs (a)(1) through (3), (b)(3), and (c)(3) and adding 
in its place the term ``USDA Foods''.

0
6. Amend Sec.  247.5 by:
0
a. Revising paragraphs (a)(2) through (4) and (b)(14) and (15);
0
b. Adding paragraphs (b)(16) and (17); and
0
c. Revising paragraph (c)(7).
    The revisions and additions read as follows:


Sec.  247.5  State and local agency responsibilities.

* * * * *
    (a) * * *
    (2) Ordering USDA Foods for distribution;
    (3) Storing and distributing USDA Foods;
    (4) Establishing procedures for resolving complaints about USDA 
Foods;
* * * * *
    (b) * * *
    (14) Providing guidance to local agencies, as needed;
    (15) Ensuring that program participation does not exceed the State 
agency's caseload allocation on an average monthly basis; and
    (16) Making publicly available a list of all CSFP local agencies on 
a publicly available internet web page. The State agency must post the 
name, address,

[[Page 87245]]

and telephone number for each local agency. The list must be updated, 
at a minimum, on an annual basis.
    (17) Posting the State Plan that is currently in use on a publicly 
available internet web page.
    (c) * * *
    (7) Meeting the special needs of homebound participants, to the 
extent possible; and
* * * * *

0
7. Amend Sec.  247.6 by revising the last sentence of paragraph (a), 
revising paragraphs (c)(5) and (6) and (10) through (12), and adding 
paragraph (c)(13) to read as follows:


Sec.  247.6  State Plan.

    (a) * * * A copy of the State Plan must be kept on file at the 
State agency and must also be posted on a publicly available internet 
web page for public inspection.
* * * * *
    (c) * * *
    (5) A description of plans for conducting outreach to participants;
    (6) A description of the system for storing and distributing USDA 
Foods;
* * * * *
    (10) A description of the means by which the State will meet the 
needs of homebound participants;
    (11) Copies of all agreements entered into by the State agency;
    (12) The length of the State agency's certification period; and
    (13) A description of the process in place to verify the identity 
of participants before receipt of USDA Foods.
* * * * *

0
8. Amend Sec.  247.9 by revising paragraphs (b), (c), (d)(2) 
introductory text, and (d)(3) to read as follows:


Sec.  247.9  Eligibility requirements.

* * * * *
    (b) What are the income eligibility requirements for CSFP 
applicants? The State agency must use a household income limit at or 
below 150 percent of the U.S. Federal Poverty Guidelines published 
annually by the U.S. Department of Health and Human Services (HHS). 
Participants in households with income at or below this level must be 
considered eligible for CSFP benefits (assuming they meet other 
requirements contained in this part). However, participants certified 
before September 17, 1986 (i.e., under the three elderly pilot 
projects) must remain subject to the eligibility criteria in effect at 
the time of their certification.
    (1) The State agency may accept as income-eligible for CSFP 
benefits any applicant that documents that they are certified as fully 
eligible for the following Federal programs: the Supplemental Nutrition 
Assistance Program, the Food Distribution Program on Indian 
Reservations, Supplemental Security Income (SSI), the Low Income 
Subsidy Program, and the Medicare Savings Programs.
    (2) The State agency may accept, as evidence of income within the 
State agency's CSFP guidelines, documentation of the applicant's 
participation in State-administered programs not specified in this 
paragraph that routinely require documentation of income, provided that 
those programs have income eligibility guidelines at or below the State 
agency's CSFP threshold.
    (3) Applicants who are adjunctively income eligible, as set forth 
in paragraphs (b)(1) and (2) of this section, shall not be subject to 
the income limits established under paragraph (b) of this section.
    (c) When must the State agency revise the CSFP income guidelines to 
reflect the annual adjustments of the U.S. Federal Poverty Guidelines? 
Each year, FNS will notify State agencies, by memorandum, of adjusted 
income guidelines by household size at 150 percent and 100 percent of 
the U.S. Federal Poverty Guidelines published annually by HHS. The 
memorandum will reflect the annual adjustments to the U.S. Federal 
Poverty Guidelines issued by HHS. The State agency must implement the 
adjusted guidelines immediately upon receipt of the memorandum.
    (d) * * *
    (2) The State agency may exclude from consideration the following 
sources of income:
* * * * *
    (3) The State agency must exclude from consideration all income 
sources excluded by legislation. FNS will notify State agencies of 
forms of income excluded by statute through program policy memoranda. 
The income sources which must be excluded from consideration as income 
include, but are not limited to:
    (i) Reimbursements from the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (Pub. L. 91-646, sec. 216, 42 
U.S.C. 4636);
    (ii) Any payment to volunteers under Title I (VISTA and others) and 
Title II (RSVP, foster grandparents, and others) of the Domestic 
Volunteer Service Act of 1973 (Pub. L. 93-113, sec. 404(g), 42 U.S.C. 
5044(g)) to the extent excluded by that Act;
    (iii) Payment to volunteers under section 8(b)(1)(B) of the Small 
Business Act (SCORE and ACE) (Pub. L. 95-510, sec. 101, 15 U.S.C. 
637(b)(1)(D));
    (iv) Income derived from certain submarginal land of the United 
States which is held in trust for certain Indian Tribes (Pub. L. 94-
114, sec. 6, 25 U.S.C. 459e);
    (v) Payments received under the Job Training Partnership Act (Pub. 
L. 97-300, sec. 142(b), 29 U.S.C. 1552(b));
    (vi) Income derived from the disposition of funds to the Grand 
River Band of Ottawa Indians (Pub. L. 94-540, sec. 6);
    (vii) Payments received under the Alaska Native Claims Settlement 
Act (Pub. L. 100-241, sec. 15, 43 U.S.C. 1626(c));
    (viii) The value of assistance to children or their families under 
the National School Lunch Act, as amended (Pub. L. 94-105, sec. 9(d), 
42 U.S.C. 1760(e)), the Child Nutrition Act of 1966 (Pub. L. 89-642, 
sec. 11(b), 42 U.S.C. 1780(b)), and the Food and Nutrition Act of 2008 
(Pub. L. 95-113, sec. 1301, 7 U.S.C. 2017(b));
    (ix) Payments by the Indian Claims Commission to the Confederated 
Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the 
Mescalero Reservation (Pub. L. 95-433, sec. 2, 25 U.S.C. 609c-1);
    (x) Payments to the Passamaquoddy Tribe and the Penobscot Nation or 
any of their members received pursuant to the Maine Indian Claims 
Settlement Act of 1980 (Pub. L. 96-420, sec. 6, 9(c), 25 U.S.C. 
1725(i), 1728(c));
    (xi) Payments under the Low-income Home Energy Assistance Act, as 
amended (Pub. L. 99-125, sec. 504(c), 42 U.S.C. 8624(f));
    (xii) Student financial assistance received from any program funded 
in whole or part under Title IV of the Higher Education Act of 1965, 
including the Pell Grant, Supplemental Educational Opportunity Grant, 
State Student Incentive Grants, National Direct Student Loan, PLUS, 
College Work Study, and Byrd Honor Scholarship programs, which is used 
for costs described in section 472(1) and (2) of that Act (Pub. L. 99-
498, section 479B, 20 U.S.C. 1087uu). The specified costs set forth in 
section 472(1) and (2) of the Higher Education Act are tuition and fees 
normally assessed a student carrying the same academic workload as 
determined by the institution, and including the costs for rental or 
purchase of any equipment, materials, or supplies required of all 
students in the same course of study; and an allowance for books, 
supplies, transportation, and miscellaneous personal expenses for a 
student attending the institution on at least a

[[Page 87246]]

half-time basis, as determined by the institution. The specified costs 
set forth in section 472(1) and (2) of the Act are those costs which 
are related to the costs of attendance at the educational institution 
and do not include room and board and dependent care expenses;
    (xiii) Payments under the Disaster Relief Act of 1974, as amended 
by the Disaster Relief and Emergency Assistance Amendments of 1989 
(Pub. L. 100-707, sec. 105(i), 42 U.S.C. 5155(d));
    (xiv) Effective July 1, 1991, payments received under the Carl D. 
Perkins Vocational Education Act, as amended by the Carl D. Perkins 
Vocational and Applied Technology Education Act Amendments of 1990 
(Pub. L. 101-392, sec. 501, 20 U.S.C. 2466d);
    (xv) Payments pursuant to the Agent Orange Compensation Exclusion 
Act (Pub. L. 101-201, sec. 1);
    (xvi) Payments received for Wartime Relocation of Civilians under 
the Civil Liberties Act of 1988 (Pub. L. 100-383, sec. 105(f)(2), 50 
App. U.S.C. 1989b-4(f)(2));
    (xvii) Value of any child care payments made under section 
402(g)(1)(E) of the Social Security Act, as amended by the Family 
Support Act (Pub. L. 100-485, sec. 301, 42 U.S.C. 602 (g)(1)(E));
    (xviii) Value of any ``at-risk'' block grant child care payments 
made under section 5081 of Pub. L. 101-508, which amended section 
402(i) of the Social Security Act;
    (xix) Value of any child care provided or paid for under the Child 
Care and Development Block Grant Act, as amended (Pub. L. 102-586, Sec. 
8(b)), 42 U.S.C. 9858q);
    (xx) Mandatory salary reduction amount for military service 
personnel which is used to fund the Veteran's Educational Assistance 
Act of 1984 (GI Bill), as amended (Pub. L. 99-576, sec. 303(a)(1), 38 
U.S.C. 1411 (b));
    (xxi) Payments received under the Old Age Assistance Claims 
Settlement Act, except for per capita shares in excess of $2,000 (Pub. 
L. 98-500, sec. 8, 25 U.S.C. 2307);
    (xxii) Payments received under the Cranston-Gonzales National 
Affordable Housing Act, unless the income of the family equals or 
exceeds 80 percent of the median income of the area (Pub. L. 101-625, 
sec. 522(i)(4), 42 U.S.C. 1437f nt);
    (xxiii) Payments received under the Housing and Community 
Development Act of 1987, unless the income of the family increases at 
any time to not less than 50 percent of the median income of the area 
(Pub. L. 100-242, sec. 126(c)(5)(A), 25 U.S.C. 2307);
    (xxiv) Payments received under the Sac and Fox Indian claims 
agreement (Pub. L. 94-189, sec. 6);
    (xxv) Payments received under the Judgment Award Authorization Act, 
as amended (Pub. L. 97-458, sec. 4, 25 U.S.C. 1407 and Pub. L. 98-64, 
sec. 2(b), 25 U.S.C. 117b(b));
    (xxvi) Payments for the relocation assistance of members of Navajo 
and Hopi Tribes (Pub. L. 93-531, sec. 22, 22 U.S.C. 640d-21);
    (xxvii) Payments to the Turtle Mountain Band of Chippewas, Arizona 
(Pub. L. 97-403, sec. 9);
    (xxviii) Payments to the Blackfeet, Grosventre, and Assiniboine 
Tribes (Montana) and the Papago (Arizona) (Pub. L. 97-408, sec. 8(d));
    (xxiv) Payments to the Assiniboine Tribe of the Fort Belknap Indian 
community and the Assiniboine Tribe of the Fort Peck Indian Reservation 
(Montana) (Pub. L. 98-124, sec. 5);
    (xxx) Payments to the Red Lake Band of Chippewas (Pub. L. 98-123, 
sec. 3);
    (xxxi) Payments received under the Saginaw Chippewa Indian Tribe of 
Michigan Distribution of Judgment Funds Act (Pub. L. 99-346, sec. 
6(b)(2));
    (xxxii) Payments to the Chippewas of Mississippi (Pub. L. 99-377, 
sec. 4(b));
    (xxxiii) Payments received by members of the Armed Forces and their 
families under the Family Supplemental Subsistence Allowance from the 
Department of Defense (Pub. L. 109-163, sec. 608); and
    (xxxiv) Payments received by property owners under the National 
Flood Insurance Program (Pub. L. 109-64).
    (xxxv) Combat pay received by the household member under Chapter 5 
of Title 37 or as otherwise designated by the Secretary.
* * * * *

0
9. Revise Sec.  247.10 to read as follows:


Sec.  247.10  Distribution and use of USDA Foods.

    (a) What are the requirements for distributing USDA Foods to 
participants? The local agency must distribute a package of USDA Foods 
to participants each month, or a two-month supply of USDA Foods to 
participants every other month, in accordance with the food package 
guide rates established by FNS.
    (b) What must the local agency do to ensure that USDA Foods are 
distributed only to CSFP participants? The local agency must have a 
process in place, in accordance with State agency requirements, to 
verify the identity of participants or the participant's proxy before 
distributing USDA Foods to that person.
    (c) What restrictions apply to State and local agencies in the 
distribution of USDA Foods? State and local agencies must not require, 
or request, that participants make any payments, or provide any 
materials or services, in connection with the receipt of USDA Foods. 
State and local agencies must not use the distribution of USDA Foods as 
a means of furthering the political interests of any person or party.
    (d) What are the restrictions for the use of USDA Foods? USDA Foods 
may not be used for outreach, refreshments, or for any purposes other 
than distribution to, and nutrition education for, CSFP participants.

0
10. Amend Sec.  247.14 by revising paragraphs (a)(2) and (3) and adding 
paragraph (a)(4) to read as follows:


Sec.  247.14  Other public assistance programs.

    (a) * * *
    (2) Medical assistance provided under Title XIX of the Social 
Security Act (42 U.S.C. 1396 et seq.), including medical assistance 
provided to a qualified Medicare beneficiary (42 U.S.C. 1395(p) and 
1396d(5));
    (3) The Supplemental Nutrition Assistance Program (7 U.S.C. 2011 et 
seq.); and
    (4) The Senior Farmers' Market Nutrition Program (7 U.S.C. 3007 et 
seq.).
* * * * *

0
11. Amend Sec.  247.18 by revising paragraphs (b)(1) and (2) and (d) to 
read as follows:


Sec.  247.18  Nutrition education.

* * * * *
    (b) * * *
    (1) The nutritional value of USDA Foods, and their relationship to 
the overall dietary needs of the population groups served;
    (2) Nutritious ways to use USDA Foods;
* * * * *
    (d) May USDA Foods be used in cooking demonstrations? Yes. The 
State or local agency, or another agency with which it has signed an 
agreement, may use USDA Foods to conduct cooking demonstrations as part 
of the nutrition education provided to program participants, but not 
for other purposes.


Sec.  247.20  [Amended]

0
12. Amend Sec.  247.20:
0
a. In paragraph (a)(3), by removing the term ``commodities'' and adding 
in its place the term ``USDA Foods''; and
0
b. In paragraphs (b)(1) through (3) by removing the term ``CSFP 
commodities'' and adding in its place the term ``USDA Foods''.

[[Page 87247]]


0
13. Amend Sec.  247.21 by revising the first sentence of paragraph 
(a)(3) to read as follows:


Sec.  247.21  Caseload assignment.

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


Sec.  247.25  [Amended]

0
14. Amend Sec.  247.25 in paragraph (e) by removing the term 
``commodities'' and adding in its place ``USDA Foods''.

0
15. Revise Sec.  247.28 to read as follows:


Sec.  247.28  Storage and inventory of USDA Foods.

    (a) What are the requirements for storage of USDA Foods? State and 
local agencies must provide for storage of USDA Foods that protects 
them from theft, spoilage, damage or destruction, or other loss. State 
and local agencies may contract with commercial facilities to store and 
distribute USDA Foods. The required standards for warehousing and 
distribution systems, and for contracts with storage facilities, are 
included in Sec. Sec.  250.12 and 250.14 of this chapter.
    (b) What are the requirements for the inventory of USDA Foods? A 
physical inventory of all USDA Foods must be conducted annually at each 
storage and distribution site where these USDA Foods are stored. 
Results of the physical inventory must be reconciled with inventory 
records and maintained on file by the State or local agency.

0
16. Amend Sec.  247.29 by revising paragraphs (a) and (b)(2)(ii) to 
read as follows:


Sec.  247.29  Reports and recordkeeping.

    (a) What recordkeeping requirements must State and local agencies 
meet? State and local agencies must maintain accurate and complete 
records relating to the receipt, disposal, and inventory of USDA Foods, 
the receipt and disbursement of administrative funds and other funds, 
eligibility determinations, fair hearings, and other program 
activities. State and local agencies must also maintain records 
pertaining to liability for any improper distribution of, use of, loss 
of, or damage to USDA Foods, and the results obtained from the pursuit 
of claims arising in favor of the State or local agency. All records 
must be retained for a period of three years from the end of the fiscal 
year to which they pertain, or, if they are related to unresolved 
claims actions, audits, or investigations, until those activities have 
been resolved. All records must be available during normal business 
hours for use in management reviews, audits, investigations, or reports 
of the General Accounting Office.
    (b) * * *
    (2) * * *
    (ii) The receipt and distribution of USDA Foods, and beginning and 
ending inventories, as well as other USDA Foods data; and
* * * * *

0
17. Amend Sec.  247.30 by revising paragraphs (b), (c), (d) 
introductory text, and (d)(1) to read as follows:


Sec.  247.30  Claims.

* * * * *
    (b) What happens if a State or local agency misuses USDA Foods? If 
a State or local agency misuses USDA Foods, FNS must initiate a claim 
against the State agency to recover the value of the misused USDA 
Foods. The procedures for pursuing claims resulting from misuse of USDA 
Foods are detailed in Sec.  250.16(a) of this chapter. Misused USDA 
Foods include USDA Foods improperly distributed or lost, spoiled, 
stolen, or damaged as a result of improper storage, care, or handling. 
The State agency is responsible for initiating and pursuing claims 
against subdistributing agencies, local agencies, or other agencies or 
organizations if they misuse USDA Foods. The State agency must use 
funds recovered as a result of claims for USDA Foods losses in 
accordance with Sec.  250.17(c) of this chapter.
    (c) What happens if a participant improperly receives or uses CSFP 
benefits through fraud? The State agency must ensure that a local 
agency initiates a claim against a participant to recover the value of 
USDA Foods improperly received or used if the local agency determines 
that the participant or caretaker of the participant fraudulently 
received or used the USDA Foods. For purposes of this program, fraud 
includes intentionally making false or misleading statements, or 
intentionally withholding information, to obtain USDA Foods, or the 
selling or exchange of USDA Foods for non-food items. The local agency 
must advise the participant of the opportunity to appeal the claim 
through the fair hearing process, in accordance with Sec.  247.33(a). 
The local agency must also disqualify the participant from CSFP for a 
period of up to one year, unless the local agency determines that 
disqualification would result in a serious health risk, in accordance 
with the requirements of Sec.  247.20(b).
    (d) What procedures must be used in pursuing claims against 
participants? The State agency must establish standards, based on a 
cost-benefit review, for determining when the pursuit of a claim is 
cost-effective, and must ensure that local agencies use these standards 
in determining if a claim is to be pursued. In pursuing a claim against 
a participant, the local agency must:
    (1) Issue a letter demanding repayment for the value of the USDA 
Foods improperly received or used;
* * * * *


Sec.  247.31  [Amended]

0
18. Amend Sec.  247.31 in paragraph (d) by removing the term ``CSFP 
commodities'' and adding in its place the term ``USDA Foods''.


Sec.  247.33  [Amended]

0
19. Amend Sec.  247.33 in paragraph (a) by removing the term 
``commodities'' and adding in its place the term ``USDA Foods''.

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

0
20. The authority citation for part 250 continues to read as follows:

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

0
21. Revise Sec.  250.69 to read as follows:


Sec.  250.69  Disasters.

    (a) Use of USDA Foods to provide congregate meals. The distributing 
agency may provide USDA Foods from current inventories, either at the 
distributing or recipient agency level, to a disaster organization (as 
defined in Sec.  250.2), for use in providing congregate meals to 
persons in need of food assistance as a result of a Presidentially 
declared disaster or emergency (hereinafter referred to collectively as 
a ``disaster''). FNS approval is not required for such use.
    (1) Notification of congregate meals activity to FNS. Prior to 
using USDA Foods for congregate meals under this section, the 
distributing agency must notify FNS that such assistance is to be 
provided, and the period of time that it is expected to be needed. The 
distributing agency may extend such period of assistance as needs 
dictate but must notify FNS of such extension.
    (2) Selection of disaster organizations for disaster congregate 
meal service by

[[Page 87248]]

the distributing agency. Distributing agencies are responsible for 
choosing disaster organizations to implement congregate meal service, 
subject to FNS approval as described in paragraph (a)(1) of this 
section. Before distribution of USDA Foods to a disaster organization 
for congregate meal service, the distributing agency must review and 
approve such organization's application in accordance with applicable 
FNS guidance. A disaster organization's application must be submitted 
to the distributing agency in written form. The disaster organization's 
application must, to the extent possible, include the following 
information at a minimum:
    (i) A description of the disaster situation;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed; and
    (v) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known.
    (3) Eligibility of emergency relief workers for congregate meals. 
The disaster organization may use USDA Foods to provide meals to any 
emergency relief workers at the congregate feeding site who are 
directly engaged in providing relief assistance.
    (b) Use of USDA Foods for distribution to households. Subject to 
FNS approval, the distributing agency may provide USDA Foods from 
current inventories in accordance with paragraph (c) of this section, 
either at the distributing or recipient agency level, to a disaster 
organization, for distribution to households in need of food assistance 
because of a disaster. Once approved, such distribution may continue 
for the period that FNS has determined to be necessary to meet the 
needs of such households. Distributing agencies may request an 
extension of the distribution period, subject to FNS approval.
    (1) FNS approval of disaster household distribution. Before 
permitting the distribution of USDA Foods to a disaster organization 
for household distribution, the distributing agency must submit an 
application to FNS for review and approval. The distributing agency's 
application must, to the extent possible, include the following 
information:
    (i) A description of the disaster situation;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed;
    (v) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known;
    (vi) An explanation as to why household distribution is needed; and
    (vii) The method(s) of distribution available.
    (2) Selection of a disaster organization for disaster household 
distribution of USDA Foods. Distributing agencies are responsible for 
choosing disaster organizations to implement a disaster household 
distribution, subject to FNS approval as described in paragraph (b)(1) 
of this section. Before distribution of USDA Foods to a disaster 
organization, the distributing agency must review and approve such 
organization's application in accordance with applicable FNS guidance, 
which must be submitted to the distributing agency either 
electronically or in written form. The distributing agency must also 
submit such application to FNS for review and approval before 
permitting distribution of USDA Foods to households.
    (c) Limitation on impacts to other programs. Distributing agencies 
must ensure that the operation of disaster congregate meal service and/
or disaster household distribution is not administered in lieu of 
regular program operations nor does it negatively impact the 
distribution of USDA Foods through other programs administered by the 
distributing agency.
    (d) Reporting and recordkeeping requirements. The distributing 
agency must report the following to FNS:
    (1) The number, names, and locations of sites where USDA Foods are 
used in congregate meals or household distribution as these sites are 
established.
    (2) The types and amounts of USDA Foods from distributing or 
recipient agency storage facilities used in disaster assistance, 
utilizing form FNS-292A, Report of Commodity Distribution for Disaster 
Relief, which must be submitted electronically, within 45 days from the 
termination of disaster assistance. This form must also be used to 
request replacement of USDA Foods, in accordance with paragraph (e) of 
this section. The distributing agency must maintain records of reports 
and other information relating to disasters.
    (3) If the distributing agency is operating disaster household 
distribution per 250.69(b), the distributing agency must submit a 
biweekly report to FNS, utilizing the format requested by FNS, for the 
approved disaster period. This report must be submitted electronically 
biweekly as long as the disaster household distribution continues 
operation. Biweekly reports must include:
    (i) The weekly distribution start and end dates;
    (ii) The total number of individual household members receiving 
assistance at all locations;
    (iii) Material identification codes for USDA Foods distributed;
    (iv) the USDA Foods description of the foods distributed; and
    (v) the total units of each food distributed.
    (e) Replacement of USDA Foods. In order to ensure replacement of 
USDA Foods used in disasters, the distributing agency must submit to 
FNS a request for such replacement, utilizing form FNS-292A, Report of 
Commodity Distribution for Disaster Relief, within 45 days following 
the termination of disaster assistance. The distributing agency may 
request replacement of USDA Foods used from inventories in which USDA 
Foods are commingled with other foods (i.e., at storage facilities of 
recipient agencies utilizing single inventory management), if the 
recipient agency received USDA Foods of the same type as the foods used 
during the year preceding the onset of the disaster assistance. FNS 
will replace such USDA Foods in the amounts used, or in the amount of 
like USDA Foods received during the preceding year, whichever is less.
    (f) Reimbursement of transportation costs. In order to receive 
reimbursement for any costs incurred in transporting USDA Foods within 
the State, or from one State to another, for use in disasters, the 
distributing agency must submit a public voucher to FNS with 
documentation of such costs. FNS will review the request and reimburse 
the distributing agency.

0
22. Revise Sec.  250.70 to read as follows:


Sec.  250.70  Situations of distress.

    (a) Use of USDA Foods to provide congregate meals. The distributing 
agency may provide USDA Foods from current inventories, either at the 
distributing or recipient agency level, to a disaster organization, for 
use in providing congregate meals to persons in need of food assistance 
because of a situation of distress, as this term is defined in Sec.  
250.2.
    (1) Notification of congregate meals activity to FNS. If the 
situation of distress results from a natural event (e.g., a hurricane, 
flood, or snowstorm), congregate meals may be provided for a

[[Page 87249]]

period not to exceed 30 days, without the need for FNS approval. 
However, the distributing agency must notify FNS that such assistance 
is to be provided. FNS approval must be obtained to permit such USDA 
Foods assistance for a period exceeding 30 days. If the situation of 
distress results from other than a natural event (e.g., an explosion), 
FNS approval is required to permit USDA Foods assistance for use in 
providing congregate meals for any period of time.
    (2) Selection of disaster organizations for disaster congregate 
meal service by the distributing agency. Distributing agencies are 
responsible for choosing disaster organizations to implement congregate 
meal service, subject to approval as described in paragraph (a)(1) of 
this section. Before distribution of USDA Foods to a disaster 
organization, the distributing agency must review and approve such 
organization's application in accordance with applicable FNS guidance, 
which must be submitted to the distributing agency in written form. The 
distributing agency must also submit such application to FNS for review 
and approval before permitting distribution of USDA Foods in a 
situation of distress that is not the result of a natural event. The 
disaster organization's application must, to the extent possible, 
include the following information:
    (i) A description of the situation of distress;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed; and
    (v) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known.
    (3) Eligibility of emergency relief workers for congregate meals. 
The disaster organization may use USDA Foods to provide meals to any 
emergency relief workers at the congregate feeding site that are 
directly engaged in providing relief assistance.
    (b) Use of USDA Foods for distribution to households. The 
distributing agency must receive FNS approval to provide USDA Foods 
from current inventories in accordance with paragraph (c) of this 
section, either at the distributing or recipient agency level, to a 
disaster organization for distribution to households in need of food 
assistance because of a situation of distress. Such distribution may 
continue for the period of time that FNS determines necessary to meet 
the needs of such households. Before permitting the distribution of 
USDA Foods for household distribution, the distributing agency must 
submit an application to FNS for review and approval. The distributing 
agency's application must, to the extent possible, include the 
following information:
    (1) A description of the situation of distress;
    (2) The number of people requiring assistance;
    (3) The period of time for which USDA Foods are requested;
    (4) The quantity and types of USDA Foods needed;
    (5) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known;
    (6) An explanation as to why household distribution is needed; and
    (7) The method(s) of distribution available.
    (c) Limitation on impacts to other programs. Distributing agencies 
must ensure that the operation of congregate meal service and/or 
disaster household distribution in situations of distress is not 
administered in lieu of regular program operations nor does it 
negatively impact the distribution of USDA Foods through other programs 
administered by the distributing agency.
    (d) Reporting and recordkeeping requirements. The distributing 
agency must report the following to FNS:
    (1) The number, names, and locations of sites where USDA Foods are 
used in congregate meals or household distribution as these sites are 
established.
    (2) The distributing agency must also report the types and amounts 
of USDA Foods from distributing or recipient agency storage facilities 
used in the situation of distress, utilizing form FNS-292A, Report of 
Commodity Distribution for Disaster Relief, which must be submitted 
electronically, within 45 days from the termination of assistance. This 
form must also be used to request replacement of USDA Foods, in 
accordance with paragraph (e) of this section. The distributing agency 
must maintain records of reports and other information relating to 
situations of distress.
    (3) If the distributing agency is operating disaster household 
distribution per 250.70(b), the distributing agency must submit a 
biweekly report to FNS, utilizing the format requested by FNS, for the 
approved disaster period. This report must be submitted electronically 
biweekly as long as the disaster household distribution continues 
operation. Biweekly reports must include:
    (i) The weekly distribution start and end dates;
    (ii) The total number of individual household members receiving 
assistance at all locations;
    (iii) Material identification codes for USDA Foods distributed;
    (iv) The USDA Foods description of the foods distributed; and
    (v) The total units of each food distributed.
    (e) Replacement of USDA Foods. FNS will replace USDA Foods used in 
a situation of distress only to the extent that funds to provide for 
such replacement are available. The distributing agency must submit to 
FNS a request for replacement of such USDA Foods, utilizing form FNS-
292A, Report of Commodity Distribution for Disaster Relief, which must 
be submitted electronically, within 45 days from the termination of 
assistance. The distributing agency may request replacement of foods 
used from inventories in which USDA Foods are commingled with other 
foods (i.e., at storage facilities of recipient agencies utilizing 
single inventory management), if the recipient agency received USDA 
Foods of the same type as the USDA Foods used during the year preceding 
the onset of the situation of distress. Subject to the availability of 
funds, FNS will replace such USDA Foods in the amounts used, or in the 
amount of like USDA Foods received during the preceding year, whichever 
is less.
    (f) Reimbursement of transportation costs. In order to receive 
reimbursement for any costs incurred in transporting USDA Foods within 
the State, or from one State to another, for use in a situation of 
distress, the distributing agency must submit a public voucher to FNS 
with documentation of such costs. FNS will review the request and 
reimburse the distributing agency to the extent that funds are 
available.

PART 251--THE EMERGENCY FOOD ASSISTANCE PROGRAM

0
23. The authority citation for part 251 continues to read as follows:

    Authority:  7 U.S.C. 7501-7516; 7 U.S.C. 2011-2036.


Sec.  251.2  [Amended]

0
24. Amend Sec.  251.2:
0
a. In paragraph (a), by removing the term ``food commodities'' and 
adding in its place the term ``USDA Foods'';
0
b. In paragraphs (c)(1) and (2), by removing the term ``donated foods'' 
wherever it appears and adding in its place the term ``USDA Foods'';

[[Page 87250]]

0
c. In paragraph (d)(1)(ii), by removing the term ``commodities'' and 
adding in its place the term ``USDA Foods''; and
0
d. In paragraph (d)(2)(ii), by removing the terms ``TEFAP commodities'' 
and ``commodities'' and adding in their place the term ``USDA Foods''.

0
25. Amend Sec.  251.3:
0
a. In paragraphs (c) and (d)(5), by removing the term ``commodities'' 
and adding in its place the term ``USDA Foods'';
0
b. In paragraph (e) by removing the term ``TEFAP commodities'' and 
adding in its place the term ``USDA Foods'';
0
c. By revising paragraph (f); and
0
d. In paragraphs (h) and (k) by removing the term ``commodities'' 
wherever it appears and adding in its place the term ``USDA Foods''.
    The revision reads as follows:


Sec.  251.3  Definitions.

* * * * *
    (f) Food bank means a public or charitable institution that 
maintains an established operation involving the provision of food to 
food pantries, soup kitchens, hunger relief centers, or other food or 
feeding centers that, as an integral part of their normal activities, 
provide meals or food to feed needy persons on a regular basis.
* * * * *

0
26. Amend Sec.  251.4 by:
0
a. Revising the section heading;
0
b. Removing the term ``donated commodity'' in paragraph (c)(4) and 
adding in its place the term ``USDA Foods'';
0
c. Removing the term ``donated food'' in paragraphs (c)(4) and (5) and 
adding in its place the term ``USDA Foods'';
0
d. Removing the term ``Commodities'' in paragraph (f) introductory text 
and adding in its place the term ``USDA Foods'';
0
e. Revising paragraph (f)(3);
0
f. Removing the term ``donated commodities'' wherever it appears in 
paragraph (g) and in paragraph (i) and adding in its place the term 
``USDA Foods'';
0
g. Removing the term ``TEFAP commodities'' wherever it appears in 
paragraphs (h)(1)(i) and (ii) and (h)(2) through (4) and adding in its 
place the term ``USDA Foods'';
0
h. Removing the term ``commodity'' in paragraphs h(1)(i) and (ii) and 
adding in its place the term ``USDA Foods'';
0
i. Removing the term ``USDA donated commodities'' in paragraph (i) and 
adding in its place the term ``USDA Foods'';
0
j. Revising paragraph (k);
0
k. Removing the term ``commodities'' wherever it appears and adding in 
its place the term ``USDA Foods''; and
0
k. Adding paragraph (l).
    The revisions and addition read as follows:


Sec.  251.4   Availability of USDA Foods.

* * * * *
    (f) * * *
    (3) The State shall require the processor to meet Federal, State, 
and local health standards.
* * * * *
    (k) Distribution in rural and Tribal areas. FNS encourages State 
agencies and eligible recipient agencies to implement or expand USDA 
Foods distributions in rural, remote, and Tribal areas of the State 
wherever possible.
    (l) Public posting of availability of USDA Foods. State agencies 
must make publicly available the list of eligible recipient agencies 
that have an agreement with the State agency and the State's uniform 
Statewide eligibility criteria to receive USDA Foods for household 
consumption as per Sec.  251.5(b), to ensure that eligible populations 
understand eligibility criteria and are able to identify where they may 
access USDA Foods. At minimum, State agencies must publicly post the 
names, addresses, and contact telephone numbers for all eligible 
recipient agencies that have an agreement with the State agency. The 
information must be posted on a publicly available internet web page 
and be updated on an annual basis or whenever changes to eligibility 
criteria are made.

0
27. Amend Sec.  251.5 by revising paragraphs (a) introductory text, 
(a)(1) and (2), (b), and (c) to read as follows:


Sec.  251.5  Eligibility determinations.

    (a) Criteria for determining eligibility of organizations. Prior to 
making USDA Foods or administrative funds available, State agencies, or 
eligible recipient agencies to which the State agency has delegated 
responsibility for the distribution of USDA Foods or administrative 
funds, must ensure that an organization applying for participation in 
the program meets the definition of an ``eligible recipient agency'' 
under Sec.  251.3(d). In addition, applicant organizations must meet 
the following criteria:
    (1) Agencies distributing USDA Foods to households for home 
consumption. Organizations distributing USDA Foods to households for 
home consumption must limit the distribution of USDA Foods provided 
under this part to those households which meet the eligibility criteria 
established by the State agency in accordance with paragraph (b) of 
this section.
    (2) Agencies providing prepared meals. Organizations providing 
prepared meals must demonstrate, to the satisfaction of the State 
agency, or eligible recipient agency to which they have applied for the 
receipt of USDA Foods or administrative funds, that they serve 
predominantly needy persons. State agencies may establish a higher 
standard than ``predominantly'' and may determine whether organizations 
meet the applicable standard by considering socioeconomic data of the 
area in which the organization is located, or from which it draws its 
clientele. State agencies may not, however, require organizations to 
employ a means test to determine that recipients are needy, or to keep 
records solely for the purpose of demonstrating that its recipients are 
needy.
* * * * *
    (b) Criteria for determining recipient eligibility. Each State 
agency must establish uniform Statewide criteria for determining the 
eligibility of households to receive USDA Foods provided under this 
part for home consumption and must make these criteria publicly 
available as per Sec.  251.4(l). The criteria must:
    (1) Enable the State agency to ensure only households that need 
food assistance because of inadequate household income receive USDA 
Foods;
    (2) Include income-based standards and the methods by which 
households may demonstrate eligibility under such standards. Income-
based standards must include a maximum income eligibility threshold at 
or between 185 percent to 300 percent of the U.S. Federal Poverty 
Guidelines published annually by the U.S. Department of Health and 
Human Services (HHS). States may propose alternative income-based 
eligibility standards above this threshold with supporting rationale, 
subject to approval by FNS; and
    (3) Include a requirement that the household reside in the 
geographic location served by the State agency at the time of applying 
for assistance, and the method for how residency will be determined. 
Length of residency, address, or identification documents shall not be 
used as an eligibility criterion.
    (c) Delegation of authority. A State agency may delegate to one or 
more eligible recipient agencies with which the State agency enters 
into an agreement the responsibility for the distribution of USDA Foods 
and administrative funds made available under this part. State agencies 
may also delegate the authority for selecting eligible recipient 
agencies and for

[[Page 87251]]

determining the eligibility of such organizations to receive USDA Foods 
and administrative funds. However, responsibility for establishing 
eligibility criteria for organizations in accordance with paragraph (a) 
of this section, and for establishing recipient eligibility criteria in 
accordance with paragraph (b) of this section, may not be delegated. In 
instances in which State agencies delegate authority to eligible 
recipient agencies to determine the eligibility of organizations to 
receive USDA Foods and administrative funds, eligibility must be 
determined in accordance with the provisions contained in this part and 
the State plan. State agencies will remain responsible for ensuring 
that USDA Foods and administrative funds are distributed in accordance 
with the provisions contained in this part.

0
28. Amend Sec.  251.6 by revising paragraphs (a)(1), (2), (4), (5), and 
(6) to read as follows:


Sec.  251.6  Distribution plan.

    (a) * * *
    (1) A designation of the State agency responsible for distributing 
USDA Foods and administrative funds provided under this part, and the 
address of such agency;
    (2) A plan of operation and administration to expeditiously 
distribute USDA Foods received under this part;
* * * * *
    (4) A description of the criteria established in accordance with 
Sec.  251.5(b) which must be used by eligible recipient agencies in 
determining the eligibility of households to receive USDA Foods for 
home consumption;
    (5) At the option of the State agency, a plan of operation for one 
or more Farm to Food Bank Projects in partnership with one or more 
emergency feeding organizations located in the State, as described in 
Sec.  251.13. The plan must include all items listed at Sec.  
251.13(e); and
    (6) A plan, which may include the use of a State advisory board 
established under Sec.  251.4(h)(4), that provides emergency feeding 
organizations or eligible recipient agencies within the State an 
opportunity to provide input on the USDA Foods preferences and needs of 
the emergency feeding organization or eligible recipient agency.
* * * * *


Sec.  251.7  [Amended]

0
29. Amend Sec.  251.7 in paragraph (a) by removing the word 
``commodity'' and adding in its place the term ``USDA Foods''.

0
30. Amend Sec.  251.8 by revising paragraphs (a), (d), (e)(1) 
introductory text, (e)(1)(i) and (iii), and (e)(4)(iii) to read as 
follows:


Sec.  251.8  Payment of funds for administrative costs.

    (a) Availability and allocation of funds. Funds made available to 
the Department for State and local costs associated with the 
distribution of USDA Foods under this part shall, in any fiscal year, 
be distributed to each State agency on the basis of the funding formula 
defined in Sec.  251.3(h).
* * * * *
    (d) Priority for eligible recipient agencies distributing USDA 
Foods. State agencies and eligible recipient agencies distributing 
administrative funds must ensure that the administrative funding needs 
of eligible recipient agencies which receive USDA Foods are met, 
relative to both USDA Foods and any non-USDA foods they may receive 
before such funding is made available to eligible recipient agencies 
which distribute only non-USDA foods.
    (e) * * *
    (1) Allowable administrative costs. State agencies and eligible 
recipient agencies may use funds made available under this part to pay 
the direct expenses associated with the distribution of USDA Foods and 
foods secured from other sources to the extent that the foods are 
ultimately distributed by eligible recipient agencies which have 
entered into agreements in accordance with Sec.  251.2. Direct expenses 
include the following, regardless of whether they are charged to TEFAP 
as direct or indirect costs:
    (i) The intrastate and interstate transport, storing, handling, 
repackaging, processing, and distribution of foods (including donated 
wild game); except that for interstate expenditures to be allowable, 
the foods must have been specifically earmarked for the particular 
State or eligible recipient agency which incurs the cost;
* * * * *
    (iii) Costs of providing information to persons receiving USDA 
Foods concerning the appropriate storage and preparation of such foods;
* * * * *
    (4) * * *
    (iii) State agencies must not charge for USDA Foods made available 
under this part to eligible recipient agencies.
* * * * *

0
31. Amend Sec.  251.9:
0
a. In paragraph (c)(2)(i) by removing the word ``commodities'' and 
adding in its place the term ``USDA Foods'';
0
b. In paragraph (d) by removing the term ``donated foods'' and adding 
in its place ``USDA Foods''; and
0
c. Revising paragraph (e).
    The revision reads as follows:


Sec.  251.9  Matching of funds.

* * * * *
    (e) Reporting requirements. State agencies must identify their 
matching contribution on the FNS-667, Report of TEFAP Administrative 
Costs, in accordance with Sec.  251.10(b)(1).
* * * * *

0
32. Revise Sec.  251.10 to read as follows:


Sec.  251.10  Reports and recordkeeping.

    (a) Records--(1) USDA Foods. State agencies, subdistributing 
agencies (as defined in Sec.  250.3 of this chapter), and eligible 
recipient agencies must maintain records to document the receipt, 
disposal, and inventory of USDA Foods received under this part that 
they, in turn, distribute to eligible recipient agencies. Such records 
must be maintained in accordance with the requirements set forth in 
Sec.  250.16 of this chapter. Eligible recipient agencies must sign a 
receipt for USDA Foods which they receive under this part for 
distribution to households or for use in preparing meals, and records 
of all such receipts must be maintained.
    (2) Administrative funds. In addition to maintaining financial 
records in accordance with 2 CFR part 200, subpart D, and USDA 
implementing regulations at 2 CFR part 400, State agencies must 
maintain records to document the amount of funds received under this 
part and paid to eligible recipient agencies for allowable 
administrative costs incurred by such eligible recipient agencies. 
State agencies must also ensure that eligible recipient agencies 
maintain such records.
    (3) Eligible recipient agency list. State agencies must maintain a 
list of eligible recipient agencies, including eligible recipient 
agencies that have agreements with the State agency and eligible 
recipient agencies that have agreements with another eligible recipient 
agency. The list must include eligible recipient agencies that 
distribute USDA Foods for home consumption and those that distribute 
USDA Foods in the form of prepared meals.
    (4) Information about households receiving USDA Foods for home 
consumption. Each distribution site must collect and maintain on record 
for each household receiving USDA Foods for home consumption, the name 
of the household member receiving USDA Foods, the number of persons in 
the household, and the basis for determining that the household is

[[Page 87252]]

eligible to receive USDA Foods for home consumption.
    (5) Record retention. All records required by this section must be 
retained for a period of 3 years from the close of the Federal Fiscal 
Year to which they pertain, or longer if related to an audit or 
investigation in progress. State agencies may take physical possession 
of such records on behalf of their eligible recipient agencies. 
However, such records must be reasonably accessible at all times for 
use during management evaluation reviews, audits or investigations.
    (b) Reports--(1) Submission of Form FNS-667. Designated State 
agencies must identify funds obligated and disbursed to cover the costs 
associated with the program at the State and local level. State and 
local costs must be identified separately. The data must be identified 
on Form FNS-667, Report of Administrative Costs (TEFAP) and submitted 
to the appropriate FNS Regional Office on a quarterly basis. The 
quarterly report must be submitted no later than 30 calendar days after 
the end of the quarter to which it pertains. The final report must be 
submitted no later than 90 calendar days after the end of the fiscal 
year to which it pertains.
    (2) Reports of excessive inventory. Each State agency must complete 
and submit to the FNS Regional Office reports to ensure that excessive 
inventories of USDA Foods are not maintained, in accordance with the 
requirements of Sec.  250.18(a) of this chapter.
    (3) Report of eligible recipient agency list. On an annual basis, 
each State agency must provide the list of eligible recipient agencies 
and statewide eligibility criteria, as described in paragraph (a)(3) of 
this section, to FNS. The report should specify whether each eligible 
recipient agency has an agreement with the State agency or with another 
eligible recipient agency.
    (4) Recipients of USDA Foods for home consumption. State agencies 
must report the total number of persons served by each distribution 
site for home consumption as collected in paragraph (a)(4) of this 
section to FNS on a quarterly basis. This report must capture the total 
number of persons in all households which participated in each calendar 
month within the quarter.
    (c) Confidentiality of applicants and participants--(1) 
Confidential applicant and participant information. Confidential 
applicant and participant information is any information about an 
applicant or participant, whether it is obtained from the applicant or 
participant, another source, or generated as a result of TEFAP 
application, certification, or participation, that individually 
identifies an applicant or participant and/or family member(s). 
Applicant or participant information is confidential, regardless of the 
original source and exclusive of previously applicable confidentiality 
provided in accordance with other Federal, State, or local law.
    (2) Limits on disclosure of information obtained from applicants or 
participants. State and local agencies must restrict the use or 
disclosure of information obtained from TEFAP applicants or 
participants to persons directly connected with the administration or 
enforcement of the program. With the consent of the participant, the 
State or local agency may share information obtained with other health 
or welfare programs for use in determining eligibility for those 
programs, or for program outreach. However, the State agency must sign 
an agreement with the administering agencies for these programs to 
ensure that the information will be used only for the specified 
purposes, and that agencies receiving such information will not further 
share it.
    (3) Limits on disclosing the identity of persons making a complaint 
or allegation against an individual participating in or administering 
the program. The State and local agency must protect the 
confidentiality, and other rights, of any person making allegations or 
complaints against another individual participating in, or 
administering TEFAP, except as necessary to conduct an investigation, 
hearing, or judicial proceeding, as applicable.

0
33. Add Sec. Sec.  251.11 through 251.14 to read as follows:
Sec.
* * * * *
251.11 State monitoring system.
251.12 Limitation on unrelated activities.
251.13 Farm to Food Bank Projects.
251.14 Miscellaneous.


Sec.  251.11   State monitoring system.

    (a) Each State agency must monitor the operation of the program to 
ensure that it is being administered in accordance with Federal and 
State requirements. State agencies may not delegate this 
responsibility.
    (b) Unless specific exceptions are approved in writing by FNS, the 
State agency monitoring system must include:
    (1) An annual review of at least 25 percent of all eligible 
recipient agencies which have signed an agreement with the State agency 
pursuant to Sec.  251.2(c), provided each such agency must be reviewed 
no less frequently than once every four years; and
    (2) An annual review of one-tenth or 20, whichever is fewer, of all 
eligible recipient agencies which receive USDA Foods and/or 
administrative funds pursuant to an agreement with another eligible 
recipient agency. Reviews must be conducted, to the maximum extent 
feasible, simultaneously with actual distribution of USDA Foods and/or 
meal service, and eligibility determinations, if applicable. State 
agencies must develop a system for selecting eligible recipient 
agencies for review that ensures deficiencies in program administration 
are detected and resolved in an effective and efficient manner.
    (c) Each review must encompass, as applicable, eligibility 
determinations, food ordering procedures, storage and warehousing 
practices, inventory controls, approval of distribution sites, 
reporting and recordkeeping requirements, and civil rights.
    (d) Upon concurrence by FNS, reviews of eligible recipient agencies 
which have been conducted by FNS Regional Office personnel may be 
incorporated into the minimum coverage required by paragraph (b) of 
this section.
    (e) If deficiencies are disclosed through the review of an eligible 
recipient agency, the State agency must submit a report of the review 
findings to the eligible recipient agency and ensure that corrective 
action is taken to eliminate the deficiencies identified.


Sec.  251.12   Limitation on unrelated activities.

    (a) Activities unrelated to the distribution of USDA Foods or meal 
service may be conducted at distribution sites as long as:
    (1) The person(s) conducting the activity makes clear that the 
activity is not part of TEFAP and is not endorsed by the Department. 
Nutrition education materials, such as recipes or other information 
about USDA Foods, dates of future distributions, hours of operations, 
or information about other Federal, State, or local government programs 
or services for the needy may be distributed without a clarification 
that the information is not endorsed by the Department;
    (2) The person(s) conducting the activity makes clear that 
cooperation is not a condition of the receipt of USDA Foods for home 
consumption or prepared meals containing USDA Foods (cooperation 
includes contributing money, signing petitions, or conversing with the 
person(s));
    (3) The activity is not conducted in a manner that disrupts the 
distribution of USDA Foods or meal service, and;
    (4) The activity does not involve information unrelated to TEFAP 
being

[[Page 87253]]

placed in or printed on bags, boxes, or other containers in which USDA 
Foods are distributed.
    (b) Eligible recipient agencies and distribution sites shall ensure 
that activities unrelated to the distribution of USDA Foods or meal 
service are conducted in a manner consistent with paragraph (a) of this 
section.
    (c) Except as provided in paragraph (d) of this section, State 
agencies shall immediately terminate from further participation in 
TEFAP operations any eligible recipient agency that distributes or 
permits distribution of materials in a manner inconsistent with the 
provisions of paragraph (a) of this section.
    (d) The State agency may withhold termination of an eligible 
recipient agency's or distribution site's TEFAP participation if the 
State agency cannot find another eligible recipient agency to operate 
the distribution in the area served by the violating organization. In 
such circumstances, the State agency shall monitor the violating 
organization to ensure that no further violations occur.


Sec.  251.13   Farm to Food Bank Projects.

    (a) Definition of project. Farm to Food Bank Projects are the 
harvesting, processing, packaging, or transportation of unharvested, 
unprocessed, or unpackaged foods donated by agricultural producers, 
processors, or distributors for use by emergency feeding organizations 
under section 203D of the Emergency Food Assistance Act of 1983.
    (b) Availability and allocation of funds. Funds for the costs of 
carrying out a Farm to Food Bank Project will be allocated to State 
agencies as follows:
    (1) Funds made available to the Department for Farm to Food Bank 
Projects will be distributed to State agencies that have submitted an 
approved amendment to their State plan. The amendment must describe a 
plan of operation for a Farm to Food Bank Project and include all 
elements listed in paragraph (e) of this section. The plan of operation 
must be updated and resubmitted on an annual basis by the dates 
requested by FNS.
    (2) Funds for Farm to Food Bank Projects will be distributed each 
fiscal year to State agencies using the funding formula defined in 
Sec.  251.3(h).
    (3) Funds will be available to State agencies for one year from the 
date of allocation.
    (c) Purpose and use of funds. State agencies may only use funds 
made available under this section for the costs of carrying out a Farm 
to Food Bank Project.
    (1) Farm to Food Bank Projects must have a purpose of:
    (i) Reducing food waste at the agricultural production, processing, 
or distribution level through the donation of food;
    (ii) Providing food to individuals in need; and
    (iii) Building relationships between agricultural producers, 
processors, and distributors and emergency feeding organizations 
through the donation of food.
    (2) Project funds may only be used for costs associated with 
harvesting, processing, packaging, or transportation of unharvested, 
unprocessed, or unpackaged foods donated by agricultural producers, 
processors, or distributors for use by emergency feeding organizations.
    (3) Project funds cannot be used to purchase foods or for 
agricultural production activities such as purchasing seeds or planting 
crops.
    (d) Matching of funds--(1) State matching requirement. The State 
agency must provide a cash or in-kind contribution at least equal to 
the amount of funding received under this section for a Farm to Food 
Bank Project.
    (2) Allowable contributions. State agencies shall meet the match 
requirement in paragraph (d) of this section by providing allowable 
contributions as described at Sec.  251.9(c); contributions must only 
be for costs which would otherwise be allowable as a Farm to Food Bank 
Project cost.
    (3) Emergency feeding organization contributions. Cash or in-kind 
contributions from emergency feeding organizations that partner with 
the State agency to administer the Farm to Food Bank Project are 
allowable.
    (4) Food donations. Donations of foods, including the value of 
foods donated as a part of a Farm to Food Bank Project, cannot count 
toward the match requirement in paragraph (d) of this section.
    (e) Plans of Operation for Farm to Food Bank Projects. A plan of 
operation for a Farm to Food Bank Project must include:
    (1) A high-level summary of the Farm to Food Bank Project.
    (2) A description of the types of foods expected to be donated 
through the Project.
    (3) A list of emergency feeding organizations within the State that 
will operate the Project in partnership with the State agency.
    (4) A list of any State agencies that will operate the Project as a 
part of a cooperative agreement.
    (5) A description of the Project that includes how the Project 
will:
    (i) Reduce food waste at the agricultural production, processing, 
or distribution level through the donation of food;
    (ii) Provide food to individuals in need; and
    (iii) Build relationships between agricultural producers, 
processors, and distributors and emergency feeding organizations 
through the donation of food.
    (6) The fiscal year in which the Project will begin operating; and
    (7) A description of how the match requirement will be met.
    (f) Reallocation of funds. If, during the course of the fiscal 
year, the Department determines that a State agency will not expend all 
of the funds allocated to the State agency for a fiscal year under this 
section, the Department shall reallocate the unexpended funds to other 
State agencies that have an approved State Plan describing a plan of 
operation for a Farm to Food Bank Project during that fiscal year or 
the subsequent fiscal year.
    (g) Reporting requirements. Each State agency to which Farm to Food 
Bank Project funds are allocated for a fiscal year must submit a report 
describing use of the funds. The data must be identified on Form SF-
425, Federal Financial Report, and submitted to the appropriate FNS 
Regional Office on a semiannual basis. The reports, including a final 
report, must be submitted by the dates requested by FNS.
    (h) Cooperative agreements. State agencies that carry out a Farm to 
Food Bank Project may enter into cooperative agreements with State 
agencies of other States to maximize the use of foods donated under the 
project.


Sec.  251.14   Miscellaneous.

    (a) USDA Foods not income. In accordance with section 206 of Public 
Law 98-8, as amended, and notwithstanding any other provision of law, 
USDA Foods distributed for home consumption and meals prepared from 
USDA Foods distributed under this part shall not be considered income 
or resources for any purposes under any Federal, State, or local law.
    (b) Nondiscrimination. There shall be no discrimination in the 
distribution of USDA Foods for home consumption or availability of 
meals prepared from USDA Foods donated under this part because of race, 
color, national origin, sex, age, or handicap.
    (c) Use of volunteer workers and non-USDA foods. In the operation 
of The Emergency Food Assistance Program, State agencies and eligible 
recipient agencies shall, to the maximum extent practicable, use 
volunteer workers and

[[Page 87254]]

foods which have been donated by charitable and other types of 
organizations.
    (d) Maintenance of effort. The State may not reduce the expenditure 
of its own funds to provide USDA Foods or services to organizations 
receiving funds or services under the Emergency Food Assistance Act of 
1983 below the level of such expenditure existing in the fiscal year 
when the State first began administering TEFAP, or Fiscal Year 1988, 
which is the fiscal year in which the maintenance-of-effort requirement 
became effective, whichever is later.
    (e) Recruitment activities related to the Supplemental Nutrition 
Assistance Program (SNAP). Any entity that receives USDA Foods 
identified in this section must adhere to regulations set forth under 
Sec.  277.4(b)(6) of this chapter.

PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR 
HOUSEHOLDS ON INDIAN RESERVATIONS

0
34. The authority citation for part 253 continues to read as follows:

    Authority:  91 Stat. 958 (7 U.S.C. 2011-2036).

0
35. Revise Sec.  253.1 to read as follows:


Sec.  253.1  General purpose and scope.

    This part describes the terms and conditions under which: USDA 
Foods (available under part 250 of this chapter) may be distributed to 
households on or near all or any part of any Indian reservation, the 
program may be administered by capable Indian tribal organizations 
(ITOs) and funds may be obtained from the Department for the costs 
incurred in administering the program. This part also provides for the 
concurrent operation of the Food Distribution Program and the 
Supplemental Nutrition Assistance Program (SNAP) on Indian reservations 
when such concurrent operation is requested by an ITO.

0
36. Amend Sec.  253.2 by revising the definitions of ``Indian tribal 
organization (ITO)'', ``Overissuance'', and ``State agency'' and 
removing the definition of ``Urban place''.
    The revisions read as follows:


Sec.  253.2  Definitions.

* * * * *
    Indian Tribal Organization (ITO) means:
    (1) The recognized governing body of any Indian tribe on a 
reservation; or
    (2) The tribally recognized intertribal organization which the 
recognized governing bodies of two or more Indian tribes on a 
reservation authorize to operate SNAP or a Food Distribution Program on 
their behalf.
    (3) State agencies are also referred to as FDPIR administering 
agencies.
* * * * *
    Overissuance means the dollar value of USDA Foods issued to a 
household that exceeds the dollar value of USDA Foods it was eligible 
to receive.
* * * * *
    State agency means:
    (1) The agency of State government, including the local offices 
thereof, which enters into an agreement with FNS for the distribution 
of USDA Foods on all or part of an Indian reservation, and
    (2) The ITO of any Indian tribe, determined by the Department to be 
capable of effectively administering a Food Distribution Program, which 
enters into an agreement with FNS for the distribution of USDA Foods on 
all or part of an Indian reservation.

0
37. Revise Sec.  253.3 to read as follows:


Sec.  253.3  Availability of USDA Foods.

    (a) Conditions for distribution. In jurisdictions where SNAP is in 
operation, there shall be no distribution of USDA Foods to households 
under the authority of any law, except that distribution may be made:
    (1) On a temporary basis under programs authorized by law to meet 
disaster relief needs;
    (2) For the purpose of the USDA Foods programs in accordance with 
the requirements of part 250 of this chapter and with other Federal 
regulations applicable to specific food assistance programs; and
    (3) Whenever a request for concurrent or separate Food Distribution 
Program on a reservation is made by an ITO.
    (b) Concurrent or separate food program operation. Distribution of 
USDA Foods under the Food Distribution Program, with or without SNAP, 
shall be made whenever an ITO submits to FNS a completed application 
for the Food Distribution Program on all or part of a reservation and 
the application is approved by FNS.
    (1) Except as provided in paragraph (b)(2) of this section, when 
the Food Distribution Program is operating on all or part of a 
reservation, all eligible households within those boundaries may 
participate in the Food Distribution Program, or, if the ITO has 
elected concurrent operation of SNAP, may elect to participate in 
either program, without regard to whether the household is an Indian 
tribal household.
    (2) FNS may determine, based on the number of non-Indian tribal 
households located on all or part of a reservation, that concurrent 
operation is necessary. When such a determination has been made all 
households residing in such areas may apply to participate in either 
SNAP or the Food Distribution Program.
    (c) Household distribution. USDA Foods acquired under section 416 
of the Agricultural Act of 1949, as amended; section 32 of Public Law 
320, 74th Congress, as amended; section 709 of the Food and 
Agricultural Act of 1963, as amended; and section 4(a) of the 
Agriculture and Consumer Protection Act of 1973, as amended, by section 
1304 of the Food and Agriculture Act of 1977, may be made available 
under part 250 of this chapter for distribution to households in 
accordance with the provisions of that part and the additional 
provisions and requirements of this part.
    (d) Food distribution program benefits. Households eligible under 
this part shall receive a monthly food package based on the number of 
household members. The food package offered to each household shall 
consist of a quantity and variety of USDA Foods made available by the 
Department to provide eligible households with an opportunity to obtain 
a more nutritious diet and shall represent an acceptable nutritional 
alternative to SNAP benefits. The food package offered to each 
household by the State agency shall contain a variety of foods from 
each of the food groups in the Food Distribution Program on Indian 
Reservations Monthly Distribution Guide Rates by Household Size. FNS 
shall periodically notify State agencies of the kinds of USDA Foods it 
proposes to make available based, insofar as practicable, on the 
preferences of eligible households as determined by the State agency. 
In the event one or more of the proposed USDA Foods cannot be 
delivered, the Department shall arrange for delivery of a similar USDA 
Foods within the same food group. FNS shall periodically assess how the 
USDA Foods provided in the Food Distribution Program compares to the 
Dietary Guidelines for Americans and the market baskets of the Thrifty 
Food Plan and, to the extent practicable, will adjust the food package 
as needed to ensure that the food package benefit is in alignment. The 
food package benefit will not decrease based on this adjustment.


Sec.  253.4   [Amended]

0
38. Amend Sec.  253.4:
0
a. In paragraph (b)(3) by removing the term ``contract'' in the first 
and fourth sentences and adding in its place the term ``delegate'' and 
in the second sentence removing the terms

[[Page 87255]]

``commodity'' and ``commodities'' and adding in their place the term 
``USDA Foods'';
0
b. In paragraph (d) by removing the term ``the Food Stamp Program'' in 
the second sentence and adding in its place the term ``SNAP'' and by 
removing the fifth, sixth, and seventh sentences; and
0
c. In paragraphs (e)(1)(i) and (iii) by removing the term 
``commodities'' and adding in its place the term ``USDA Foods''.

0
39. Amend Sec.  253.5:
0
a. By removing the term ``commodities'' wherever it appears and adding 
in its place the term ``USDA Foods'';
0
b. In paragraph (a)(2)(i) by removing the term ``the Food Stamp 
Program'' and adding in its place the term ``SNAP'';
0
c. By revising paragraph (e); and
0
d. In paragraphs (f)(1) and (i)(2) by removing the term ``commodity'' 
and adding in its place the term ``USDA Foods''.


Sec.  253.4  State agency requirements.

* * * * *
    (e) Outreach and referral. The State agency shall inform 
potentially eligible households of the availability of the Food 
Distribution Program. The State agency shall develop and distribute 
printed information in the appropriate languages about the program and 
eligibility requirements. Outreach material shall contain information 
about a household's right to file an application on the same date it 
contacts the certification office. The State agency shall be 
sufficiently familiar with general eligibility requirements for the 
Supplemental Food Program for Women, Infants and Children (WIC), the 
Commodity Supplemental Food Program (if available to reservation 
residents), the Supplemental Security Income Program (SSI), and 
appropriate public and general assistance programs, to identify those 
applicants whose households contain persons who may be eligible for 
these programs, to inform the applicants of their potential 
eligibility, and to provide the applicants with the addresses and 
telephone numbers for these programs. For example, the State agency 
should provide information on the WIC program to applicants whose 
households contain pregnant women, nursing or postpartum women, or 
children up to the fifth birthday.
* * * * *

0
40. Amend Sec.  253.6 by:
0
a. Revising paragraph (a);
0
b. Revising the second sentence in paragraph (b)(1) and removing the 
term ``the Food Stamp Program'' in the seventh sentence;
0
c. Revising paragraphs (c) heading, (c)(1), and (d)(1)(i);
0
d. Removing the term ``the Food Stamp Program'' in paragraph (d)(1)(ii) 
and adding in its place the term ``SNAP''; and
0
e. Revising paragraph (d)(2)(ii)(D);
0
f. Removing the term ``the Food Stamp Program'' in paragraph 
(d)(2)(ii)(G) and adding in its place the term ``SNAP'';
0
g. Revising paragraphs (d)(3)(vii), (d)(3)(x)(C), and (e).
    The revisions and addition read as follows:


Sec.  253.6  Eligibility of households.

    (a) Household concept. (1) The State agency shall determine 
eligibility for the Food Distribution Program on a household basis. 
Household means any of the following individuals or groups of 
individuals, provided that such individuals or groups are not boarders 
or residents of an institution.
    (i) An individual living alone.
    (ii) An individual living with others, but customarily purchasing 
food and preparing meals for home consumption separate and apart from 
the others.
    (iii) A group of individuals living together for whom food is 
customarily purchased in common and for whom meals are prepared 
together for home consumption.
    (iv) Spouses living separately. For purposes of this part, spouses 
living separately and apart are considered separate households.
    (2) Nonhousehold members. The following individuals residing with a 
household shall not be considered household members in determining the 
household's eligibility. Nonhousehold members specified in paragraphs 
(a)(2) (i) and (v) who are otherwise eligible may participate in the 
Program as separate households.
    (i) Roomers. Individuals to whom a household furnishes lodging, but 
not meals, for compensation.
    (ii) Disqualified individuals. Individuals disqualified from the 
Food Distribution Program per 253.7(f)(1) and SNAP for fraud, as set 
forth in Sec.  273.16.
    (iii) Illegal residents. Individuals who are not legal residents of 
the United States. While U.S. citizenship is not required for 
participation in the Food Distribution Program, persons receiving food 
distribution benefits must be lawfully living in the United States.
    (iv) Others. Other individuals who share living quarters with the 
household but who do not customarily purchase food and prepare meals 
with the household. For example, if the applicant household shares 
living quarters with another family to save on rent, but does not 
purchase and prepare food together with that family, the members of the 
other family are not members of the applicant household.
    (3) Authorized representatives. The head of the household, spouse, 
or any other responsible member of the household may designate an 
authorized representative to act on behalf of the household in making 
application for USDA Foods and/or obtaining USDA Foods as provided in 
Sec.  253.7(a)(10)(i) and Sec.  253.7(a)(10)(ii) respectively.
    (4) Children. A child (other than a foster child) under 18 years of 
age who lives with and is under the parental control of a household 
member must be considered a member of the household. A child must be 
considered under parental control for purposes of this provision if 
they are financially or otherwise dependent on a member of the 
household, unless State law defines such a person as an adult.
    (b) * * *
    (1) * * * All Indian tribal households as defined in Sec.  253.2 of 
this part which reside in near areas established under Sec.  253.4(d) 
of this part shall be eligible to apply for program benefits. * * *
* * * * *
    (c) Income eligibility standards of public assistance, supplemental 
security income (SSI), and certain general assistance households. (1) 
Households in which all members are included in a federally aided 
public assistance or SSI grant shall, if otherwise eligible under this 
part, be determined to be eligible to participate in the Food 
Distribution Program while receiving such grants without regard to the 
income of the household members.
* * * * *
    (d) * * *
    (1) * * *
    (i) The State agency shall apply uniform national income 
eligibility standards for the Food Distribution Program except for 
households in which all members are recipients of public assistance, 
SSI, paragraph (c) of this section, or certain general assistance 
program payments as provided in Sec.  283.6(c). The income eligibility 
standards shall be the applicable SNAP net monthly income eligibility 
standards for the appropriate area, increased by the amount of the 
applicable SNAP standard deduction for that area.
* * * * *
    (2) * * *
    (ii) * * *
    (D) Scholarships, education grants, fellowships, deferred payment 
loans for education, veteran's education benefit and the like in excess 
of amounts excluded under paragraph (d)(3)(iii) of this section.

[[Page 87256]]

    (3) * * *
    (vii) The earned income (as defined in paragraph (e)(2)(i) of this 
section) of children who are members of the household, who are students 
at least half time and who have not attained their eighteenth birthday. 
The exclusion shall continue to apply during temporary interruptions in 
school attendance due to semester or vacation breaks, provided the 
child's enrollment will resume following the break. Individuals are 
considered children for purposes of this provision if they are under 
the parental control of another household member.
* * * * *
    (x) * * *
    (C) Any payment to volunteers under Title II (RSVP, foster 
grandparents, and others) and title III (SCORE and ACE) of the Domestic 
Volunteer Services Act of 1973 (Pub. L. 93-113), as amended. Payments 
under title I (VISTA) to volunteers shall be excluded for those 
individuals receiving federally donated USDA Foods, SNAP, or public 
assistance at the time they joined the title I program, except that 
households which are receiving an income exclusion for a VISTA or other 
title I subsistence allowance at the time of implementation of these 
rules shall continue to receive an income exclusion for VISTA for the 
length of their volunteer contract in effect at the time of 
implementation of these rules. Temporary interruptions in food 
distribution shall not alter the exclusion once an initial 
determination has been made. New applicants who are not receiving 
federally donated USDA Foods, SNAP benefits or public assistance at the 
time they joined VISTA shall have these volunteer payments included as 
earned income.
* * * * *
    (e) Income deductions--(1) Earned income deduction. Households with 
earned income, as defined in paragraph (d)(2)(i) of this section, shall 
be allowed a deduction of twenty percent of their gross earned income. 
Earned income excluded under paragraph (e)(3) of this section shall not 
be considered earned income for the purpose of computing this 
deduction.
    (2) Dependent care deduction. Households shall also receive a 
deduction for the actual costs for the care of a child or other 
dependent when necessary for a household member to accept or continue 
employment or attend training or pursue education which is preparatory 
to employment.
    (3) Child support deduction. Households will receive a deduction 
for legally required child support payments paid by a household member 
to or for a nonhousehold member, including payments made to a third 
party on behalf of the nonhousehold member (vendor payments). The State 
agency must allow a deduction for amounts paid towards overdue child 
support (arrearages). Alimony payments made to or for a nonhousehold 
member cannot be included in the child support deduction.
    (4) Excess medical deduction. Households must receive a medical 
deduction for that portion of medical expenses in excess of $35 per 
month, excluding special diets, incurred by any household member who is 
elderly or disabled as defined in Sec.  253.2. Spouses or other persons 
receiving benefits as a dependent of a Supplemental Security Income 
(SSI), or disability and blindness recipient are not eligible to 
receive this deduction; however, persons receiving emergency SSI 
benefits based on presumptive eligibility are eligible for this 
deduction. The allowable medical costs are those permitted at Sec.  
273.9(d)(3) of this chapter for the Supplemental Nutrition Assistance 
Program (SNAP).
    (5) Shelter/utility deduction. Households that incur monthly 
shelter and utility expenses will receive a shelter/utility deduction. 
The household may choose to receive a standard deduction or to provide 
actual expenses, subject to the provisions below.
    (i) The household must incur, on a monthly basis, at least one 
allowable shelter/utility expense. The allowable shelter/utility 
expenses are those permitted at Sec.  273.9(d)(6)(ii) of this chapter 
for SNAP.
    (ii) The shelter/utility standard deduction amounts are set by FNS. 
The standard deductions are adjusted annually to reflect changes to 
SNAP maximum monthly excess shelter expense limits per Sec.  
273.9(d)(6)(ii) of this chapter. FNS will advise the State agencies of 
the updates prior to October 1 of each year.
    (iii) Households that select actual expenses, may claim expenses up 
to the amount that does not exceed 50 percent of their net monthly 
income.

0
41. Amend Sec.  253.7 by:
0
a. Revising the paragraph (a)(6)(i)(C) heading and paragraphs 
(a)(6)(i)(D), (a)(6)(v), and (b)(3)(iii)(A);
0
b. Removing the term ``USDA commodities'' in paragraph (b)(3)(iii)(E) 
and the term ``commodity'' in paragraph (d)(2) and adding in their 
place the term ``USDA Foods'';
0
c. Revising paragraphs (e) and (f)(1)(ii);
0
d. Removing the term ``food stamp'' wherever it appears in paragraph 
(e)(1) and adding in its place the term ``SNAP'';
0
e. Removing the term ``the Food Stamp Program'' wherever it appears in 
paragraph (f)(1)(ii) and adding in its place the term ``SNAP''; and
0
f. Removing the term ``commodities'' wherever it appears in the section 
and adding in its place the term ``USDA Foods''.
    The revisions read as follows:


Sec.  253.7  Certification of households.

    (a) * * *
    (6) * * *
    (i) * * *
    (C) Medical expense deduction. * * *
    (D) Shelter/utility deduction. A household must incur, on a monthly 
basis, at least one allowable shelter/utility expense in accordance 
with Sec.  253.6(e)(5)(i) of this chapter to qualify for the shelter/
utility deduction. The State agency must verify that the household 
incurs the expense. If the household chooses to provide actual 
expenses, then the State agency must obtain verification for each 
shelter/utility deduction that the household wishes to deduct.
* * * * *
    (v) Verification for recertification. At recertification, the State 
agency shall verify a change in gross income if the source has changed 
or the amount has changed by more than $100 per month since the last 
time the gross income was verified. State agencies may verify income 
which is unchanged or has changed by $100 per month or less, provided 
verification is, at a minimum, required when information is 
questionable as defined in paragraph (a)(6)(ii) of this section. All 
other changes reported at the time of recertification shall be subject 
to the same verification procedures as apply at initial certification. 
Unchanged information, other than income, shall not be verified at 
recertification unless the information is questionable as defined in 
paragraph (a)(6)(ii) of this section.
* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (A) Prior to any action to reduce or terminate a household's 
benefits within the certification period, except for households 
voluntarily switching program participation from the Food Distribution 
Program to SNAP, State agencies shall provide the household timely and 
adequate advance notice before the adverse action is taken. The

[[Page 87257]]

notice must be issued within 10 days of determining that an adverse 
action is warranted. The adverse action must take effect with the next 
scheduled distribution of USDA Foods that follows the expiration of the 
advance notice period unless the household requests a fair hearing.
* * * * *
    (e) Controls for dual participation--(1) Prohibition on dual 
participation. No household shall be allowed to participate 
simultaneously in SNAP and the Food Distribution Program. The State 
agency shall inform each applicant household of this prohibition and 
shall develop a method to detect dual participation. The method 
developed by the State agency shall, at a minimum, employ lists of 
currently certified households provided by and provided to the 
appropriate SNAP agency on a monthly basis. The State agency may also 
employ computer checks, address checks and telephone calls to prevent 
dual participation. The State agency shall coordinate with the 
appropriate SNAP agency or agencies in developing controls for dual 
participation.
    (2) Choice of programs. Households eligible for either SNAP or the 
Food Distribution Program on reservations on which both programs are 
available may elect to participate in either program. Such households 
may elect to participate in one program, and subsequently elect the 
other at the end of the certification period. Households may also elect 
to switch from one program to the other program within a certification 
period only by terminating their participation and notifying the State 
agency of their intention to switch programs. Households certified in 
either the Food Distribution Program or SNAP on the first day of the 
month can only receive benefits in the program for which they are 
currently certified during that month. At the point the household 
elects to change programs, the household should notify the State agency 
of its intent to switch programs and should file an application for the 
program in which it wishes to participate. Households voluntarily 
withdrawing from one program with the intent of switching to the other 
shall have their eligibility terminated for the program in which they 
are currently certified on the last day of the month in which the 
household notifies the State agency of its intent to change programs. 
Entitlement in the program for which a household is now filing an 
application, if all eligibility criteria are met, would begin in the 
month following the month of termination in the previous program.
    (f) * * *
    (1) * * *
    (ii) Household members disqualified from SNAP for an intentional 
program violation under Sec.  273.16 of this chapter. These household 
members may participate, if otherwise eligible, in the Food 
Distribution Program once the period of disqualification under SNAP has 
ended. The State agency must, in cooperation with the appropriate SNAP 
agency, develop a procedure that ensures that these household members 
are identified.
* * * * *


Sec.  253.8  [Amended]

0
42. Amend Sec.  253.8 by removing the term ``commodities'' wherever it 
appears and adding in its place the term ``USDA Foods''.


Sec.  253.9  [Amended]

0
43. Amend Sec.  253.9 in paragraph (a)(1) by removing the term 
``commodities'' and adding in its place the term ``USDA Foods''.

0
44. Revise Sec.  253.10 to read as follows:


Sec.  253.10  USDA Foods inventory management, storage, and 
distribution.

    (a) Control and accountability. The State agency shall be 
responsible for the issuance of USDA Foods to households and the 
control of and accountability for the USDA Foods upon its acceptance of 
the USDA Foods at time and place of delivery.
    (b) USDA Foods inventories. The State agency shall, in cooperation 
with the FNS Regional office, develop an appropriate procedure for 
determining and monitoring the level of USDA Foods inventories at 
storage facilities and at each local distribution point. The State 
agency shall maintain the inventories at proper levels taking into 
consideration, among other factors, household preferences and the 
historical and projected volume of distribution at each site. The 
procedures shall provide that USDA Foods inventories at each storage 
facility and each local distribution point are not in excess, but are 
adequate for, an uninterrupted distribution of USDA Foods.
    (c) Inventory management and control. The State agency shall as a 
minimum ensure that: all USDA Foods are stored and inventory is 
maintained per Sec. Sec.  250.12 and 250.14 of this chapter.
    (d) Distribution. The State agency shall distribute USDA Foods only 
to households eligible to receive them under this part. If the State 
agency uses any other agency, administration, bureau, service, or 
similar organization to effect or assist in the certification of 
households or distribution of USDA Foods, the State agency shall impose 
upon such organization responsibility for determining that households 
to whom USDA Foods are distributed are eligible under this part. The 
State agency shall not delegate to any such organization its 
responsibilities to the Department for overall management and control 
of the Food Distribution Program. The State agency shall as a minimum 
ensure that:
    (1) Notification is provided to certified households of the 
location of distribution sites and days and hours of distribution.
    (2) An adequate supply of USDA Foods which are available from the 
Department is on hand at all distribution sites.
    (3) Sufficient distribution sites, either stationary or mobile, are 
geographically located or routed in relation to population density of 
eligible households.
    (4) Days and hours of distribution are sufficient for caseload size 
and convenience.
    (5) Households are advised they may refuse any USDA Foods not 
desired, even if the USDA Foods are prepackaged by household size.
    (6) Emergency issuance of USDA Foods will be made to households 
certified for expedited service in accordance with the provisions of 
Sec.  253.7(a)(9).
    (7) Eligible households or authorized representatives are 
identified prior to the issuance of USDA Foods.
    (8) Authorized signatures are obtained for USDA Foods issued and 
the issue date recorded.
    (9) Posters are conspicuously displayed advising program 
participants to accept only those USDA Foods, and in such quantities, 
as will be consumed by them.
    (10) Complete and current records are kept of all USDA Foods 
received, issued, transferred, and on hand and of any inventory 
overages, shortages, and losses.
    (11) A list of USDA Foods offered by the Department is displayed at 
distribution sites so that households may indicate preferences for 
future orders.
    (e) Improper distribution or loss of or damage of USDA Foods. State 
agencies shall take action to obtain restitution in connection with 
claims arising in their favor for improper distribution, use or loss, 
or damage of USDA Foods in accordance with Sec. Sec.  250.16 and 250.17 
of this chapter.
    (f) Damaged or out-of-condition USDA Foods. The State agency shall 
immediately notify the appropriate FNS Regional Office if any USDA 
Foods are

[[Page 87258]]

found to be damaged or out- of-condition at the time of arrival, or at 
any subsequent time, whether due to latent defects or any other reason. 
The FNS Regional Office shall advise the State agency of the 
appropriate action to be taken with regard to such USDA Foods. If the 
USDA Foods are declared unfit for human consumption in accordance with 
Sec.  250.15 of this chapter, they shall be disposed of as provided for 
under that section. When out-of-condition USDA Foods do not create a 
hazard to other food at the same location, they shall not be disposed 
of until the FNS Regional Office or the responsible contractor 
approves. When circumstances require prior disposal of USDA Foods, the 
quantity and manner of disposition shall be reported to the appropriate 
FNS Regional Office. If any damaged or out-of-condition USDA Foods are 
inadvertently issued to a household and are rejected or returned by the 
household because the USDA Foods were unsound at the time of issuance 
and not because the household failed to provide proper storage, care or 
handling, the State agency shall replace the damaged or out-of-
condition USDA Foods with the same or similar kind of USDA Foods which 
are sound and in good condition. The State agency shall account for 
such replacements on its monthly inventory report.

0
45. Add Sec.  253.12 to read as follows:


Sec.  253.12  Administrative waivers.

    (a) The Administrator of the Food and Nutrition Service may waive 
or modify specific regulatory provisions contained in this part for one 
or more State agencies. Waivers may be issued only in the following 
situations:
    (1) The specific regulatory provision cannot be implemented due to 
extraordinary temporary situations;
    (2) FNS determines that the waiver would result in a more effective 
and efficient administration of the program; or
    (3) Unique geographic conditions within the geographic area served 
by the administering agency preclude effective implementation of the 
specific regulatory provision and require an alternate procedure.
    (b) FNS shall not approve waivers when:
    (1) The waiver would be inconsistent with the provisions of the 
Food and Nutrition Act of 2008; or
    (2) The waiver would result in material impairment of any statutory 
or regulatory rights of participants or potential participants.
    (c) FNS shall approve waivers for a period not to exceed one year 
unless the waiver is for an on-going situation. If the waiver is 
requested for longer than a year, appropriate justification shall be 
required and FNS will determine if a longer period is warranted and if 
so, the duration of the waiver. Extensions may be granted provided that 
State agencies submit appropriate justification to FNS.
    (d) When submitting requests for waivers, State agencies shall 
provide compelling justification for the waiver in terms of how the 
waiver will meet the conditions of paragraphs (a)(1), (2), and/or (3) 
of this section. At a minimum, requests for waivers shall include but 
not necessarily be limited to:
    (1) Reasons why the waiver is needed;
    (2) Anticipated impact on service to participants or potential 
participants who would be affected;
    (3) Anticipated time period for which the waiver is needed; and
    (4) Thorough explanation of the proposed alternative provision to 
be used in lieu of the waived or modified regulatory provision.

PART 254--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR 
INDIAN HOUSEHOLDS IN OKLAHOMA

0
46. The authority citation for part 254 continues to read as follows:

    Authority:  Pub. L. 97-98, sec. 1338; Pub. L. 95-113.


Sec.  254.1   [Amended]

0
47. Amend Sec.  254.1 by removing the term ``commodities'' and adding 
in its place the term ``USDA Foods''.

0
48. Amend Sec.  254.2 by revising paragraphs (b), (d), (f), and (g) and 
removing paragraph (h).
    The revisions read as follows:


Sec.  254.2  Definitions.

* * * * *
    (b) FNS service area means the areas over which FNS has approved 
the food distribution program in Oklahoma.
* * * * *
    (d) Indian tribal household means a household in which at least one 
household member is recognized as a tribal member by any Indian tribe, 
as defined in Sec.  253.2 of this chapter.
* * * * *
    (f) Overissuance means the dollar value of USDA Foods issued to a 
household that exceeds the dollar value of USDA Foods it was eligible 
to receive.
    (g) State agency means the ITO of an Indian tribe, determined by 
the Department to be capable of effectively administering a Food 
Distribution Program, or an agency of State government, which enters 
into an agreement with FNS for the distribution of USDA Foods on an 
Indian reservation.


Sec.  254.4   [Amended]

0
49. Amend Sec.  254.4 in paragraphs (b)(1)(i) and (iii) by removing the 
term ``commodities'' and adding in its place the term ``USDA Foods''.


Sec.  254.5   [Amended]

0
50. Amend Sec.  254.5 by removing paragraph (b) and redesignating 
paragraph (c) as paragraph (b).

Tameka Owens,
Acting Administrator and Assistant Administrator, Food and Nutrition 
Service.
[FR Doc. 2024-24966 Filed 10-30-24; 8:45 am]
BILLING CODE 3410-30-P