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Code · REGISTER · 2007-03-12 · PROPOSED RULES · Agricultural Agricultural Marketing Service NOTICES Meetings: National Organic Standards Board, 10971-10973 07-1156 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and · Unknown

Unknown. Final rule

30,595 words·~139 min read·/register/2007/03/12/07-1106

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2007-03-12.xml --- 72 47 Monday, March 12, 2007 Contents Agricultural Agricultural Marketing Service NOTICES Meetings: National Organic Standards Board, 10971-10973 07-1156 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Federal Crop Insurance Corporation See Food and Nutrition Service See Forest Service See Rural Housing Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10971 E7-4299 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, foreign:
Mangoes from India; importation, 10902-10907 E7-4444 Army Army Department See Engineers Corps Broadcasting Broadcasting Board of Governors PROPOSED RULES Legal proceedings; testimony by employees, production of official records, and disclosure of official information, 10954-10958 E7-4329 NOTICES Meetings; Sunshine Act, 10979-10980 07-1170 07-1171 Census Census Bureau NOTICES Meetings: Census Advisory Committees, 10980 E7-4298 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 11026-11027 E7-4368 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 11027-11028 07-1144 Coast Guard Coast Guard PROPOSED RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:
Jamestown Island, VA, 10958-10960 E7-4303 Commerce Commerce Department See Census Bureau See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10987 E7-4365 Defense Defense Department See Engineers Corps PROPOSED RULES Federal Acquisition Regulation (FAR): Synopses; numbered notes, 10964-10967 07-1102 NOTICES Meetings:
Threat Reduction Advisory Committee, 10987 07-1139 Women in Services Advisory Committee, 10987-10988 07-1141 Meetings; Sunshine Act, 10988 07-1164 Drug Drug Enforcement Administration RULES Records and reports of listed chemicals and certain machines: Chemical mixtures containing List II solvent chemicals acetone, etc.; exemption, 10925-10928 E7-4314 NOTICES *Applications, hearings, determinations, etc.:* United Wholesale Distributors, Inc., 11055-11058 07-1103 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 10988-10990 E7-4425 E7-4426 Grants and cooperative agreements; availability, etc.:
Elementary and secondary education— Waivers granted to various States, 10990-10996 07-1149 Special education and rehabilitative services— Rehabilitation Short-Term Training Program, 10996-10999 E7-4437 Meetings: Institutional Quality and Integrity Advisory Committee, 10999-11002 E7-4448 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Electricity export and import authorizations, permits, etc.: Emera Inc., 11002-11003 E7-4323 Meetings: Environmental Management Site-Specific Advisory Board— Hanford Site, 11003 E7-4332 Idaho National Laboratory, 11003-11004 E7-4370 Savannah River Site, 11004 E7-4374 Engineers Engineers Corps NOTICES Environmental statements; notice of intent:
Lorain Harbor, OH; dredged material management plan; correction, 11089 C7-1007 Nationwide permits; reissuance and modification, 11092-11198 E7-3960 EPA Environmental Protection Agency RULES Water supply: National primary and secondary drinking water regulations— Analysis and sampling procedures, 11200-11249 07-1073 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: Nevada, 10960-10964 E7-4428 Executive Executive Office of the President See Management and Budget Office See Presidential Documents Farm Farm Credit Administration PROPOSED RULES Farm credit system:
Conservators, receivers, and voluntary liquidations— Joint and several liability; claims priority, 10939-10941 E7-4427 FAA Federal Aviation Administration RULES Airworthiness directives: Microturbo Saphir, 10920-10922 E7-4140 Raytheon, 10909-10918 07-1106 Teledyne Continental Motors, 10918-10920 E7-3832 PROPOSED RULES Airworthiness directives: Empresa Brasileira de Aeronautica S.A. (EMBRAER), 10947-10949 E7-4373 Fokker, 10951-10953 E7-4379 Raytheon, 10949-10951 E7-4404 Airworthiness standards:
Special conditions— Boeing Model 787-8 airplane, 10941-10947 E7-4306 Class E airspace, 10953-10954 07-1127 NOTICES Airport noise compatibility program: Danbury Municipal Airport, CT, 11077-11078 07-1128 Exemption petitions; summary and disposition, 11078 E7-4305 Passenger facility charges; applications, etc.: South Jersey Transportation Authority et al., 11079-11082 07-1129 Federal Crop Federal Crop Insurance Corporation RULES Crop insurance regulations: Almond and walnut crop provisions, 10908-10909 E7-4333 NOTICES Grants and cooperative agreements; availability, etc.:
Community Outreach and Assistance Partnership Program, 10973-10978 E7-4334 Federal Emergency Federal Emergency Management Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, 11030-11031 E7-4430 Disaster and emergency areas: Alabama, 11031 E7-4431 E7-4432 Georgia, 11032 E7-4433 E7-4434 Missouri, 11033 E7-4436 Oklahoma, 11032-11033 E7-4435 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed: CAlifornians for Renewable Energy, Inc., 11019-11020 E7-4337 Electric rate and corporate regulation combined filings, 11020-11022 E7-4331 E7-4403 Environmental statements; availability, etc.:
Trunkline Gas Co., LLC, 11022 E7-4335 Hydroelectric applications, 11023-11025 E7-4342 E7-4343 Meetings: Midwest Independent Transmission System Operator, Inc., 11025-11026 E7-4341 *Applications, hearings, determinations, etc.:* BTEC New Albany LLC, 11004-11005 E7-4338 Cogen Technologies Linden Venture, L.P., et al., 11005 E7-4385 Colorado Interstate Gas Co., 11005 E7-4354 Columbia Gas Transmission Corp., 11005-11006 E7-4396 E7-4397 E7-4398 Columbia Gulf Transmission Co., 11006-11007 E7-4399 Dominion Cove Point LNG, LP, 11007 E7-4348 E7-4349 Domtar Corp., 11007-11008 E7-4340 Egan Hub Storage, LLC, 11008-11009 E7-4336 Equitrans, L.P., 11009 E7-4387 Fenton Power Partners I, LLC, 11009 E7-4339 Florida Gas Transmission Co., LLC, 11009-11010 E7-4386 E7-4393 Guardian Pipeline, L.L.C., 11010-11011 E7-4351 High Island Offshore System L.L.C., 11011 E7-4345 E7-4395 Kern River Gas Transmission Co., 11011-11012 E7-4388 Longview Fibre Paper & Packaging, Inc., 11012 E7-4384 Midwestern Gas Transmission Co., 11012 E7-4352 National Fuel Gas Supply Corp., 11012-11013 E7-4347 Natural Gas Pipeline Co. of America, 11013-11014 E7-4360 E7-4361 Northern Natural Gas Co., 11014 E7-4359 E7-4392 Panhandle Eastern Pipe Line Co., LP, 11014-11015 E7-4391 Saltville Gas Storage Co.
L.L.C., 11015 E7-4344 Southwest Gas Storage Co., 11015-11016 E7-4394 E7-4402 Texas Gas Transmission, LLC, 11016 E7-4401 TransColorado Gas Transmission Co., 11016 E7-4389 Transcontinental Gas Pipe Line Corp., 11016-11017 E7-4346 E7-4390 E7-4400 Trunkline Gas Co., LLC, 11018 E7-4357 Viking Gas Transmission Co., 11018-11019 E7-4350 E7-4353 Williston Basin Interstate Pipeline Co., 11019 E7-4355 E7-4356 Federal Highway Federal Highway Administration RULES Planning assistance and standards:
Statewide and metropolitan transportation planning Correction, 11089 C7-493 NOTICES Highway planning and construction; licenses, permits, approvals, etc.: Guilford County, NC, 11082-11083 07-1143 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings; Sunshine Act, 11026 07-1176 Federal Transit Federal Transit Administration RULES Planning assistance and standards: Statewide and metropolitan transportation planning Correction, 11089 C7-493 Fish Fish and Wildlife Service NOTICES Comprehensive conservation plans; availability, etc.:
Buck Island, Green Cay, and Sandy Point National Wildlife Refuges, VI, 11046-11047 E7-4369 Cabo Rojo National Wildlife Refuge, PR, 11047-11048 E7-4371 Watercress Darter National Wildlife Refuge, AL, 11048-11049 E7-4372 Endangered and threatened species: Eggert's sunflower; delisting, 11046 E7-4367 Food Food and Drug Administration RULES Biological products: Blood vessels recovered with organs and intended for use in organ transplantation, 10922-10925 07-1131 NOTICES Meetings:
Immune Globulins for Primary Immune Deficiency Diseases: Antibody Specificity, Potency, and Testing; workshop, 11028 E7-4313 Food Food and Nutrition Service RULES Child nutrition programs: National school lunch, school breakfast, special milk, summer food service, and child and adult care food programs— Children's free and reduced price and free milk eligibility information; disclosure, 10885-10902 E7-4268 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* Tennessee, 10980-10981 07-1133 Forest Forest Service NOTICES Meetings:
New Mexico Collaborative Forest Restoration Program Technical Advisory Panel, 10979 07-1136 GSA General Services Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Synopses; numbered notes, 10964-10967 07-1102 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration Health Health Resources and Services Administration RULES Biological products:
Blood vessels recovered with organs and intended for use in organ transplantation, 10922-10925 07-1131 NOTICES Agency information collection activities; proposals, submissions, and approvals, 11028-11030 E7-4411 E7-4412 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 11033-11035 E7-4307 E7-4308 E7-4309 Environmental statements; availability, etc.:
Westpark Master Plan Redevelopment Project, Bremerton, WA, 11035-11036 E7-4447 Indian Indian Affairs Bureau NOTICES Liquor and tobacco sale or distribution ordinance: Three Affiliated Tribes of Fort Berthold Indian Reservation of North Dakota, 11049-11050 E7-4366 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service See Reclamation Bureau See Surface Mining Reclamation and Enforcement Office NOTICES Privacy Act; systems of records, 11036-11046 E7-4407 E7-4408 E7-4413 E7-4414 International International Trade Administration NOTICES Antidumping:
Frozen fish fillets from— Vietnam, 10981-10984 07-1134 Justice Justice Department See Drug Enforcement Administration Labor Labor Department See Labor Statistics Bureau MISSING FOR: Labor Statistics Bureau Labor Statistics Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 11058-11059 E7-4330 Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Utah, 11050 E7-4418 Realty actions; sales, leases, etc.: Alaska; correction, 11050 07-1142 California, 11050-11052 E7-4420 Nevada, 11052-11053 E7-4417 Management Management and Budget Office NOTICES Reports and guidance documents; availability, etc.:
Costs and benefits of Federal regulations; report to Congress, 11061-11062 E7-4375 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Synopses; numbered notes, 10964-10967 07-1102 National Credit National Credit Union Administration NOTICES Meetings; Sunshine Act, 11059-11060 07-1175 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards; exemption petitions, etc.: Pacific Coast Retreaders, 11083-11084 E7-4301 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management:
Alaska; fisheries of Exclusive Economic Zone— Pacific cod, 10937-10938 07-1147 Northeastern United States fisheries— Atlantic herring, 11252-11281 E7-4163 Northwestern United States fisheries— Atlantic bluefish, 10934-10935 07-1148 West Coast States and Western Pacific fisheries— Highly migratory species, 10935-10937 E7-4429 International fisheries regulations: Bowhead whales subsistence harvest by Alaska natives; annual quota establishment, 10934 E7-4443 PROPOSED RULES Fishery conservation and management:
Northeastern United States fisheries— Georges Bank cod, haddock, and yellowtail flounder, 10967-10970 E7-4442 NOTICES Endangered and threatened species: Anadromous fish take— Northwest Indian Fisheries Commission; salmon, 10984 E7-4441 Grants and cooperative agreements; availability, etc.: California Bay Watershed Education and Training Program, 10984 07-1155 Marine mammal permit applications, determinations, etc.:, 10986-10987 E7-4445 Meetings: Marine Protected Areas Federal Advisory Committee, 10984-10985 07-1151 Reports and guidance documents; availability, etc.:
National Centers for Coastal Ocean Science Human Dimensions Strategic Plan (2008-2013 FYs), 10985-10986 07-1153 National Park National Park Service NOTICES National Register of Historic Places; pending nominations, 11053-11054 E7-4317 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.: Covance Clinical Research Unit, Inc., HI, 11060-11061 E7-4415 Office Office of Management and Budget See Management and Budget Office Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous materials:
Special permit applications delayed; list, 11084-11085 07-1130 Presidential Presidential Documents ADMINISTRATIVE ORDERS Iran; continuation of national emergency (Notice of March 8, 2007), 10883 07-1174 Reclamation Reclamation Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 11054-11055 E7-4406 Rural Rural Housing Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10979 E7-4419 SEC Securities and Exchange Commission NOTICES Securities:
Intermarket Trading System Plan; amendment filing and immediate effectiveness, 11066-11067 E7-4326 Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 11067-11068 E7-4292 Chicago Stock Exchange, Inc., 11068-11069 E7-4325 NASDAQ Stock Market LLC, 11069-11071 E7-4328 National Association of Securities Dealers, Inc., et al., 11071-11072 E7-4293 New York Stock Exchange LLC, 11072-11075 E7-4327 *Applications, hearings, determinations, etc.:* SA Investment Partners LLC, et al., 11062-11066 E7-4291 SBA Small Business Administration NOTICES Disaster loan areas:
Alabama, 11075 E7-4364 Georgia, 11075 E7-4363 Meetings: District and regional advisory councils— Maine, 11075-11076 E7-4377 Regulatory Fairness Boards— Region III; hearing, 11076 E7-4378 Region IV; hearing, 11076 E7-4376 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions: Missouri, 10928-10934 E7-4416 Surface Surface Transportation Board NOTICES Meetings: Rail capacity and infrastructure requirements; hearing, 11085-11086 E7-4421 Railroad operation, acquisition, construction, etc.:
BNSF Railway Co., 11086 E7-4423 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board RULES Americans with Disabilities Act; implementation: Accessibility guidelines; conforming amendments; correction, 11089 Z6-16680 NOTICES Agency information collection activities; proposals, submissions, and approvals, 11076 E7-4409 Committees; establishment, renewal, termination, etc.:
National Surface Transportation Infrastructure Financing Commission, 11076-11077 E7-4410 Treasury Treasury Department See United States Mint NOTICES Agency information collection activities; proposals, submissions, and approvals, 11086-11087 E7-4358 07-1135 U.S. Mint United States Mint NOTICES Meetings: Citizens Coinage Advisory Committee, 11087-11088 E7-4311 Separate Parts In This Issue Part II Army Department, Engineers Corps, 11092-11198 E7-3960 Part III Environmental Protection Agency, 11200-11249 07-1073 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 11252-11281 E7-4163 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 47 Monday, March 12, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210, 215, 220, 225, 226, and 245 RIN 0584-AC95 Disclosure of Children's Free and Reduced Price Meals and Free Milk Eligibility Information in the Child Nutrition Programs AGENCY:
Food and Nutrition Service, USDA. ACTION: Final rule. SUMMARY: This final rule establishes requirements for the disclosure of children's free and reduced price meals or free milk eligibility information under the Child Nutrition Programs. The Child Nutrition Programs include the National School Lunch Program, School Breakfast Program, Special Milk Program, Summer Food Service Program, and Child and Adult Care Food Program. Within certain limitations, children's free and reduced price meal or free milk eligibility information may be disclosed, without parental/guardian consent, to persons directly connected to certain education programs, health programs, means-tested nutrition programs, the Comptroller General of the United States, and some law enforcement officials.
Additionally, officials also may disclose children's free and reduced price meal or free milk eligibility information to persons directly connected with State Medicaid (Medicaid) and the State Children's Health Insurance Program (SCHIP) when parents/guardians do not decline to have their information disclosed. These regulations affect State agencies and local program operators that administer the Child Nutrition Programs and households which apply for and/or are approved for free and reduced price meals or free milk.
The final rule reflects the disclosure provisions of the Healthy Meals for Healthy Americans Act of 1994 and comments received on the proposed rule published in anticipation of implementing those provisions. Additionally, this final rule includes the regulatory disclosure provisions implementing the Agricultural Risk Protection Act of 2000 and comments received on the interim rule issued to implement those provisions. This final rule also implements nondiscretionary provisions of the Child Nutrition and WIC Reauthorization Act of 2004, allowing certain third party contractors access to children's eligibility status and will allow school officials to communicate with Medicaid and SCHIP officials to verify that children are eligible for free and reduced price school meals or free milk.
The disclosure provisions are intended to reduce paperwork for administrators of certain programs that target low-income households and for low-income households which may benefit from those programs by allowing some sharing of household's free and reduced price meal eligibility information. This rule also includes several technical amendments. DATES: This rule is effective April 11, 2007. FOR FURTHER INFORMATION CONTACT: Address any questions to Robert Eadie, Branch Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302 or by telephone at 703-305-2590.
SUPPLEMENTARY INFORMATION: Background Chronological History of Legislation and Regulations Concerning the Confidentiality of Children's Free and Reduced Price Eligibility Information November 2, 1994—Public Law 103-448, the Healthy Meals for Healthy Americans Act of 1994, amended Section 9 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1758, to statutorily provide for the first time, some disclosure of children's eligibility information, without parental consent, to specified programs, such as Federal and State education programs and to certain individuals.
The provisions of Public Law 103-448 specifically exclude disclosures of children's eligibility information to Medicaid but did not address disclosures to the State Children's Health Insurance Program (SCHIP), which was nonexistent at that time. June 20, 2000—Public Law 106-224, the Agricultural Risk Protection Act of 2000, amended the NSLA to allow disclosure of children's eligibility information to Medicaid and SCHIP, provided that parents/guardians not decline to have their information disclosed to those health insurance programs.
Congress directed the Secretary to promulgate regulations without regard to the provisions of Administrative Procedure Act, the Statement of Policy of the Secretary of Agriculture, effective July 24, 1971 (36 FR 13804) and the Paperwork Reduction Act. July 25, 2000—A proposed rule, with a request for comments, was published in the **Federal Register** (65 FR 45725). January 11, 2001—An interim rule, with a request for comments, amended a number of program regulations to implement the Medicaid and SCHIP disclosure provisions of Public Law 106-224.
The regulatory provisions were effective October 1, 2000, in accordance with Public Law 106-224. June 30, 2004—Public Law 108-265, Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-265) further amended the NSLA to specify that Medicaid and SCHIP officials may request that determining officials for the Child Nutrition Programs verify children's eligibility for free and reduced price meal and free milk benefits. This final rule—Finalizes the current regulations codified by the interim rule, which only addressed disclosures to Medicaid and SCHIP, and amends the current regulations to add the provisions from the July 25, 2000 proposed rule and the confidentiality provision from Public Law 108-265.
A detailed discussion of the confidentiality provisions of the public laws and the actions taken to address the provisions follows. Public Law 103-448 The Healthy Meals for Healthy Americans Act of 1994, Public Law 103-448, enacted on November 2, 1994, amended section 9(b)(2)(C) of the Richard B. Russell National School Lunch Act
(NSLA)(42 U.S.C. 1758(b)(2)(C)) to allow limited access to children's free and reduced price meal information, without parental/guardian consent. In general, the statute included the following provisions: 1. Authorized disclosure of children's eligibility status only (whether children are eligible for free meals or reduced price meals) to: • Persons who are directly connected with the administration or enforcement of programs under the NSLA or the Child Nutrition Act of 1966
(CNA)(42 U.S.C. 1771 *et seq.* ) or a regulation issued under either of those Acts; • Persons who are directly connected with the administration or enforcement of a Federal education program; • Persons who are directly connected with the administration or enforcement of a State health or education program (other than Medicaid) administered by the State or local education agency; and • Persons who are directly connected with the administration or enforcement of a Federal, State or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program (NSLP). 2. Authorized disclosure of all eligibility information for children that is obtained through the free and reduced price meal application process or through the direct certification process (determining children eligible based on information obtained from certain other agencies) to: • The Comptroller General of the United States for audit and examination; and • Certain law enforcement officials investigating alleged program violations. 3. Specified penalties for unauthorized disclosure or misuse of children's eligibility information of a fine of not more than $1000 or imprisonment of not more than 1 year, or both. Public Law 103-448 specifically excluded disclosure of children's eligibility information, without consent, to a program under title XIX of the Social Security Act, *i.e.* , Medicaid (42 U.S.C. 1396 *et seq* .), and did not address disclosure of children's eligibility information to SCHIP, which was established in later Federal legislation. The Department issued a proposed rule, which would have extended the provisions to all the Child Nutrition Programs, (65 FR 45725, July 25, 2000) with a 90-day public comment period to implement the disclosure provisions of Public Law 103-448. Public Law 106-224 The Agricultural Risk Protection Act of 2000, Public Law 106-224, enacted on June 20, 2000, further amended the disclosure provisions in section 9(b)(2)(C) of the NSLA (42 U.S.C. 1758(b)(2)(C)). In general, Public Law 106-224 included the following provisions: 1. Authorized disclosure of children's eligibility information to Medicaid and SCHIP provided that the following conditions are met: • Both the State agency and school food authority must elect to disclose eligibility information to these health insurance programs; • School and health insurance program officials must have a written agreement that requires the health insurance program to use the information to seek to enroll children in Medicaid and SCHIP; and • Parents/guardians must be notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed. 2. Directed the Department to promptly promulgate regulations to implement the disclosure provisions of Public Law 106-224 without regard to the Administrative Procedure Act's notice and comment provisions, the Statement of Policy of the Secretary of Agriculture effective July 24, 1971 (36 FR 13804) or the Paperwork Reduction Act facilitated making health insurance benefits available to low-income children as quickly as possible. In implementing the provisions of Public Law 106-224, the Department issued an interim rule with a request for comments (66 FR 2195, January 11, 2001). The Department sought comments on the disclosure of eligibility information to Medicaid and SCHIP due to the sensitivity of household privacy issues and also to gain insights on operational experience prior to issuing a final regulation. Additionally, at the time, the Department was reviewing comments received on its proposed rule to implement the disclosure provisions of Public Law 103-448 (discussed above) which would allow the disclosure of eligibility information to education and several other programs and individuals. The interim rule became effective on October 1, 2000, and amended 7 CFR Parts 215, 225, 226, and 245 to allow determining agencies (agencies responsible for the determination of free and reduced price meals or free milk) to disclose children's eligibility information to Medicaid and SCHIP under the conditions mandated by Public Law 106-224, as listed above. Issuance of an interim rule allowed the Department to comply with the Congressional mandate to promulgate regulations regarding disclosures to Medicaid and SCHIP, and to collect public comment on these important requirements. As stated in the Preamble to the interim rule, it was our clear intent to then publish a final rule, incorporating the comments received. Public Law 108-265 The Child Nutrition and WIC Reauthorization Act of 2004, enacted June 30, 2004, (Pub. L. 108-265) amended the Richard B. Russell National School Lunch Act in a number of ways. First, it redesignated section 9(b)(2)(C)(iii), which contains the disclosure provisions, to section 9(b)(6) and second, titled the section “Use or Disclosure of Information.” Third, Public Law 108-265 added a provision allowing school officials to provide third party contractors access to children's free and reduced price meal eligibility status when the contractors are assisting school food authorities with contacting households which do not respond to the school's verification efforts. The amendments were nondiscretionary and are codified in this final rule at 7 CFR 215.13a(g)(1), 225.15(g)(1), 226.23(i)(1) and 245.6(k)(1). Finally, the NSLA now allows Medicaid and SCHIP officials to use the eligibility information to verify children's eligibility for programs under the NSLA or CNA. Previously, determining officials could disclose children's eligibility information to Medicaid and SCHIP solely for the purpose of identifying and enrolling eligible children in a health insurance program. These statutory provisions were also non-discretionary and are codified in this final rule at 7 CFR 215.13a (h)(2), 225.15(h)(2), 226.23(j)(2), and 245.6(g)(2). Summary of Current Disclosure Regulations Regulations for the Child Nutrition Programs, as amended by the interim rule to implement Public Law 106-224, in general allow the disclosure of children's free and reduced price meal eligibility information to Medicaid and SCHIP officials when both the State agency and school food authority elect to disclose eligibility information to these health insurance programs; when determining agencies and health insurance program officials have a written agreement that requires the health insurance program agency to use the information to seek to enroll eligible children in Medicaid and SCHIP; and when parents/guardians are given an opportunity to decline to have their children's eligibility information disclosed. Sections 215.2, 225.2, 226.2 and 245.2 include definitions for the terms “Disclosure,” “Medicaid” and “SCHIP.” Current 7 CFR Part 215, as amended by the interim rule, requires that the free milk application used in child care centers include a Privacy Act notice/statement. Note that schools that participate in the SMP follow the provisions contained in 7 CFR Part 245, which includes requirements for a Privacy Act notice/statement. Section 215.13a provides a prototype Privacy Act notice/statement for the milk application and the prototype Privacy Act notices/statements provided in 7 CFR Parts 225, 226 and 245 were revised to be consistent with the simplified notice/statement added to 7 CFR Part 215. Summary of Disclosure Provisions Implemented Through Guidance Guidance was issued December 1998, to explain the disclosure provisions of Public Law 103-448 contained in the proposed rule. The proposed rule was published in 2000. Determining agencies are operating under that guidance for disclosures to education and certain other programs and activities specified in Public Law 103-448. Additionally, the Department issued guidance on disclosing eligibility information in cases when parents/guardians authorize the disclosure. Parents/guardians may provide consent for the disclosure of information that goes beyond that authorized by the statute. General Comments on the Proposed and Interim Rules We received twelve comments on the proposed rule and eight comments on the interim rule. Commenters generally were supportive of the proposed and interim rules in that they believe that the provisions are in accordance with the statute. Several commenters view the sharing of free and reduced price eligibility information as helpful in streamlining the enrollment process for other programs that also serve low-income individuals. Other commenters oppose any sharing of households' free and reduced price meal or free milk eligibility information. They cite privacy concerns, the potential for deterring participation in the Child Nutrition Programs and additional burdens on school food service staff due to requests for children's free and reduced price eligibility information. This preamble discusses the specific provisions and comments received. Changes Being Made to Current Regulations in This Final Rule In general, no major changes are being made to the current regulations relating to the disclosure of children's eligibility information to Medicaid and SCHIP. However, Section 104 (b)(i) of Public Law 108-265 amended the disclosure provisions contained in the NSLA. As a result, Medicaid and SCHIP officials are now allowed to verify children's eligibility for a program under the NSLA or Child Nutrition Act of 1966. An amendment to current regulations to accommodate this nondiscretionary provision is included in this rule. Additionally, because this rule adds the disclosure provisions of Public Law 103-448 and Public Law 108-265 to the current disclosure provisions, the section numbers for many of the provisions are changed from the current or proposed designations and obsolete references are deleted. Further, several commenters did not like the section headings in question format. Because of their concerns, the section headings are revised to a statement format consistent with most of the sections headings currently in the regulations. For a detailed explanation of the provisions, the reader may refer to the interim and proposed rules published at 65 FR 45725 and 66 FR 2195, respectively. A discussion of the major provisions follows. Discussion of the Proposed Current Regulations and How the Major Provisions Are Being Addressed 1. Applicability to all the Child Nutrition Programs—Although the NSLA addresses the disclosure of children's free and reduced price school lunch eligibility information, the interim rule extended the provisions to all the Child Nutrition Programs to provide consistency among the programs. This was consistent with Food and Nutrition Service's
(FNS)practices and policies as discussed in the interim rule. The proposed rule also would have extended the disclosure provisions to all the Child Nutrition Programs. Commenters did not address this issue. Final rule—The disclosure provisions continue to apply to all the Child Nutrition Programs. 2. Definitions—The interim rule added the terms, “disclosure,” “Medicaid” and “State Children's Health Insurance Program (SCHIP)” to current §§ 215.2, 225.2, 226.2, and 245.2 in the alphabetical lists of definitions. One commenter addressed the definitions and that commenter concurred with the meanings ascribed to the terms. The proposed rule did not include any definitions. Final Rule— In §§ 215.2, 225.2, 226.2, and 245.2, the definitions “Medicaid” and “State Children's Health Insurance Program (SCHIP)” are adopted without change. The definition “Disclosure” is revised in this final rule to improve readability. No substantial changes are made to the definition. 3. Prototype Privacy Act Notice/Statement—The interim rule revised the programs' previous regulatory prototype Privacy Act notice/statement to make the notice/statement more understandable by simplifying the wording. The Privacy Act notice/statement must inform households whether the information being requested is mandatory or voluntary; the authority for the request; how the information may be used; and the consequence of not providing the information. Sections 215.13a(f), 225.15(f)(4)(iv), 226.23(e)(1)(ii)(F) and 245.6(a)(1) currently provide a prototype statement. Additionally, §§ 215.13a(g)(6), 225.15(g)(6), 226.23(i)(6), and 245.6(f )(6) require schools and institutions intending to disclose social security numbers to include additional information in their Privacy Act notices/statements that inform households of the potential disclosures and the planned uses of the numbers. The NSLA permits the disclosure of all eligibility information to some entities. This disclosure may include the social security number of the adult household member who signs the application. Social security numbers also may be disclosed with prior notice and parental/guardian consent. One commenter addressed the Privacy Act notice/statement and expressed agreement with the Department that households should be made aware of potential uses of the information. The Department reminds readers that State agencies and school food authorities are responsible for ensuring that the Privacy Act notice/statement included on their applications comply with section 7(b) of the Privacy Act. Final Rule—Sections 215.13a(f), 215.13a(i), 225.15(f)(4)(iv), 225.15(i)(1), 226.23(e)(1)(ii)(F), 226.23(k), and 245.6(a)(1) and 245.6(h) provide a prototype Privacy Act notice/statement and require that households be given adequate notice regarding the request for free and reduced price eligibility information and how the information, including social security numbers, will be used. 4. Responsibility for deciding whether to disclose eligibility information—Currently, §§ 215.13a(g)(1), 225.15(g)(1), 226.23(i)(1), and 245.6(f)(1) require that both the State agency and local agency that determines free and reduced price meal or free milk eligibility must agree on whether to disclose eligibility information to Medicaid and SCHIP officials. This shared responsibility for determining whether to disclose information to Medicaid and SCHIP is mandated by the NSLA as amended by Public Law 106-224 and was included in the interim regulations. Unlike with disclosures to Medicaid and SCHIP, the NSLA does not address who has the responsibility for deciding whether to disclose eligibility information to education and other programs authorized to receive eligibility information under Public Law 103-448. The proposed rule and this final rule place this responsibility on the determining agency. As noted in the preamble to the interim rule, the determining agency may be the State agency, when that agency makes the eligibility determination, or it may be a school within the school food authority, a child care institution, or a Summer Food Service Program sponsor who makes the free and reduced price meal or free milk eligibility determinations. No comments were received on this provision. Two individuals commenting on the proposed rule expressed concern that it would be difficult to refuse requests for eligibility information. We agree that there often is pressure to disclose eligibility information. Determining agencies must evaluate each request for information to ensure that, at a minimum, the disclosure is in accordance with statutory and regulatory provisions. Additionally, determining agencies should consider, along with the agency requesting the information, whether aggregate data is sufficient. Although currently the National School Lunch Program (NSLP), School Breakfast Program (SBP), Special Milk Program (SMP), Child and Adult Care Food Program (CACFP), and Summer Food Service Program
(SFSP)regulations do not address the disclosure of aggregate information, the disclosure of aggregate data is allowed because individuals cannot be personally identified. This is consistent with longstanding FNS policy and practices. As proposed at §§ 215.13a(g)(2), 225.15(g)(2), 226.23(i)(2), and 245.6(f)(2), we would codify this policy. A commenter stated that the disclosure of aggregate information could result in the disclosure of personal information. The Department acknowledges that it might be possible for a determining agency to improperly disclose information making a person's identity recognizable. Determining officials should be aware of the possibility of inadvertently disclosing personally identifiable information when releasing aggregate information, carefully reviewing the data to ensure that the identities of children or their households are masked or cannot be identified by the combining of information or by deduction. This is essential in every disclosure. Final Rule—Sections 215.13a(g), 225.15(g), 226.23(i), and 245.6(f) specify that determining agencies may release aggregate data, without parental/guardian consent, provided children cannot be identified through disclosure of the data or by deduction and that determining agencies are responsible for deciding whether to disclose eligibility information; and that, for disclosures to individuals and programs other than to Medicaid and SCHIP, determining agencies are responsible for deciding whether or not to disclose individual children's eligibility. Readers are reminded that State agencies may prohibit the disclosure of free and reduced price eligibility information in schools and institutions under their jurisdiction at their discretion. For disclosures to Medicaid and SCHIP, §§ 215.13a(h), 225.15(h), 226.23(j) and 245.6(g) of this final rule continue to require that both the State agency and local determining agency must agree to disclose eligibility information to Medicaid and SCHIP. 5. Notice to parents about potential disclosures—Currently, once the joint decision is made by State agencies and local determining agencies to release information to Medicaid and SCHIP, the regulations at §§ 215.13a(g)(5), 225.15(g)(5), 226.23(i)(5), and 245.6(f)(5) require that parents are notified of the upcoming disclosure and given opportunity to decline the disclosure, as mandated by the NSLA. For disclosures to education and other programs and individuals permitted access to eligibility information by the NSLA permits the disclosure without parental/guardian consent and does not include a requirement for parental/guardian notification prior to the disclosure. The proposed rule would not have required notification to parents/guardians of potential disclosures to education and other programs and individuals, as long as the disclosure was in accordance with the NSLA, *i.e.* , disclosure of names and eligibility status. However, the preamble to the proposed rule suggested that officials notify parents of how their information will be used. It was suggested that officials include the notification in the letter/notice to parents that accompanies the free and reduced price meal and free milk application; on the application; or in the case of direct certification, on the document informing households of their eligibility. One commenter addressed this provision. The commenter believes that parents should be informed of all disclosures. The Department agrees. Final Rule—Sections 215.13a(i), 225.15(i), 226.23(k) and 245.6(h) require determining agencies to notify parents/guardians of potential disclosure of their eligibility information at the time of application or when the household is directly certified. 6. Parental consent/declination to the disclosure of the household's eligibility information—As mentioned above, prior to any disclosure to Medicaid or SCHIP, parents/guardians must be given the opportunity to decline to have their information disclosed to those health insurance agencies; *i.e.* , opt out. This opt out provision was mandated by a provision in Public Law 106-224 amending the NSLA and is currently codified at §§ 215.13a(g)(5), 225.15(g)(5), 226.23(i)(5), and 245.6(f)(5). No specific timeframe for households to respond was specified in the NSLA or the rule. Rather the regulations require that households be informed that their information may be disclosed to Medicaid and SCHIP unless they notify the determining agency by a date, chosen by the determining agency, if they do not want their information disclosed to those health insurance agencies. No response from the parent/guardian by the date specified is considered consent, ( *i.e.* , passive consent) and allows the determining agency to disclose children's eligibility information to Medicaid and SCHIP. Previously, amendments to the NSLA by Public Law 103-448 authorized determining agencies to disclose certain limited information to educational and certain other programs and individuals without parental/guardian consent. Therefore, §§ 215.13a(g)(8) and (g)(9), 225.15(g)(8) and(g)(9), 226.23(i)(8) and (g)(9), and 245.6(f)(8) and (f)(9) of the proposed rule would have, without requiring parental/guardian consent, permitted determining agencies to make disclosure consistent with the NSLA. An indication of parental/guardian consent, however, would be required when the disclosure would go beyond the scope of the statute, such as a disclosure to a program or individual not authorized by the statute to receive eligibility information or the disclosure of information goes beyond the information allowed by the statute to be disclosed to a particular entity. For example, a Federal education program is authorized to have information regarding a student's eligibility status but no other information on the application. If an education program wanted names of household members, the determining agency must obtain parental/guardian consent prior to disclosing that information. Additionally, some determining agencies include on the free and reduced price meal application a list of other benefits, such as programs or services for which a household may be eligible; *i.e.* , free or reduced cost bus transportation, text books, eye exams, or other school related fees. In those cases, to obtain a listed benefit, the parent/guardian must take action, ( *i.e.* , check a box to indicate consent (opt in)), before their information may be disclosed. One individual commenting on the interim rule suggested that the parents be given, by regulation, a specified length of time to respond before consent to disclose information to Medicaid or SCHIP is assumed. Currently, §§ 215.13a(g)(5), 245.6(f)(5), 225.15(g)(5) and 226.23(i)(5) require that parents must be given adequate time to respond before information is disclosed, but leaves it to local agencies to determine how much time is adequate. The Department has determined that local officials are in a better position to assess what constitutes adequate time to respond. Additionally, a commenter took the position that requiring the parent to actively provide consent is preferable to passive consent; *i.e.* , assuming consent when the parent/guardian does not notify/indicate that they do not want their information disclosed. The former is the case with disclosures to Medicaid and SCHIP. The commenter stated that most other disclosures require the parents to take action by providing a check mark, for example, to indicate that their information may be disclosed. The commenter believes that consistency would be less confusing for parents/guardians. Public Law 106-224 mandates that disclosures to Medicaid and SCHIP be allowed to occur unless parents/guardians decline to have their information disclosed to the health insurance programs, ( *i.e.* , opt out). Also, it has been the Department's long-standing policy and practice to require that determining agencies provide parents/guardians the opportunity to opt in when the determining agency provides parents/guardians a choice on whether they want their free and reduced price eligibility information used for other purposes. Providing parents/guardians with the opportunity to agree to have their information used for purposes other than for the purpose for which the information was originally provided, ( *i.e.* , for determining eligibility for free and reduced price meals), gives parents/guardians greater control over their personal information than the opt out approach. Final rule—For the reasons cited above, §§ 215.13a(i)(2), 225.15(i)(2), 226.23(k)(2) and 245.6(h)(2) continue to require that determining agencies which have decided to disclose information to Medicaid and SCHIP provide parents/guardians the opportunity to decline to have their information disclosed to those health insurance agencies (opt out). Sections 215.13a(j), 225.15(j), 226.23(l) and 245.6(i) require that determining agencies that want to use free and reduced price meal eligibility information for other purposes or that want to disclose the information to programs and individuals who are not authorized to have access to household information by the statute must provide parents/guardians with the opportunity to consent to having their information disclosed. Additionally, no consent is required for disclosure to education and other programs permitted access to children's eligibility status as provided in the statute. 7. Disclosure of information obtained through the verification of eligibility process—The proposed rule included a provision to allow, without parental/guardian consent, the disclosure of household information obtained from sources other than the free and reduced price application or through direct certification, such as information obtained through the verification process. The interim rule did not include a similar provision and, therefore, it is not included in current regulations. Five commenters to the proposed rule opposed the disclosure of information obtained through the verification process stating that this went beyond the disclosure provisions in the NSLA. The Department agrees that the disclosure of eligibility information should be limited to information provided by households on the application or obtained through direct certification, as specified in the statute and should not include information obtained through the verification process. Final rule: For the reasons cited above, this final rule does not include authority for determining agencies to disclose information obtained through the verification of eligibility process. 8. Persons authorized to receive children's eligibility information and how the information must be used—The NSLA specifies that individuals authorized access to children's eligibility information for health insurance purposes must be directly connected with the administration of the Medicaid Program or SCHIP. Additionally, the NSLA requires that, for education and the other specified programs or activities listed, the individuals must be either directly connected with administration of the specified program or activity or directly connected to its enforcement. The Department has also specified in guidance that these authorized individuals also must have a need to know children's eligibility information to carry out their duties, since the information must be used for program purposes. As mandated by the statute, current regulations specify that persons directly connected to the administration of Medicaid or SCHIP are permitted access to children's eligibility information to identify children eligible for enrollment in Medicaid or SCHIP, provided that parents/guardians have not declined to have their information disclosed to those health insurance programs. Public Law 108-265 further allows determining agencies to communicate with Medicaid and SCHIP officials to verify children's eligibility for a Child Nutrition Program. This provision is nondiscretionary and is being added to this final rule. Currently, §§ 215.13a(g)(3), 225.15(g)(3), 226.23(i)(3), and 245.6(f)(3) define a person directly connected with Medicaid and SCHIP as State employees and persons authorized under Federal requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations. Please refer to the interim rule for a detailed discussion. Persons directly connected with the administration or enforcement of Federal and State education programs and several of the other programs authorized access to children's eligibility information under Public Law 103-448 are not as clearly defined. Also, whereas Public Law 106-224 had mandated that children's free and reduced price meal information must be used specifically to identify and enroll eligible children in Medicaid or SCHIP, Public Law 103-448 did not include a clear directive that the information must be used for a specific purpose. The Department has specified the information must be used for a legitimate program purpose of the receiving program. In 2002 and 2003, joint memoranda were issued by the Department of Education and the Department of Agriculture
(USDA)regarding the use of free and reduced price meal eligibility in implementing the No Child Left Behind provisions. The memorandum, Guidance on Implementing the No Child Left Behind Act (NCLB), December 17, 2002, can be found on the USDA Food and Nutrition Service Web site at *http://www.fns.usda.gov/cnd/lunch/* and then click on “Policy.” A follow-up memorandum on implementing NCLB in Provision 2 and 3 schools was later issued on February 20, 2003. However, there remains some confusion regarding the Department of Education's requirements under the No Child Left Behind Act of 2001
(NCLB)and the relationship to children's free and reduced price eligibility information. (NCLB reauthorized Title I, Part A of the Elementary and Secondary Education Act.) Title I, Part A, as amended by NCLB, requires schools to disaggregate information about children, such as by limited English proficiency, gender, socio-economic status, etc. Certain educational services, such as priority in school choice and remedial programs, are required under NCLB to be provided to disadvantaged students. Schools tend to use certification for free and reduced price school meals to determine that children are economically disadvantaged. The question has arisen whether each teacher in a school, because they are providing educational services under NCLB, is considered directly connected to NCLB administration, a Federal education program. The disclosure of meal eligibility information must be limited to as few individuals as possible to protect the confidential nature of the information. All teachers in the school do not need to know the names of all children eligible for free and reduced price meals. Rather, most teachers only need to know which children need the additional services. A list of children needing services, without identifying the children as eligible for free or reduced price meals, may be provided to the teachers by someone who was associated with the free and reduced price meal eligibility process, such as a determining official. Several commenters to the proposed rule requested that the final rule clearly define who are persons directly connected with program administration or enforcement. Additionally several other commenters believe that the need to know criteria are too broad. We acknowledge commenters concerns that often it is difficult to determine who are the persons directly connected with a program and whether they have a legitimate need to know. With that in mind, determining agencies will need to make careful and well informed judgments. Public Law 108-265 added certain third party contractors as eligible recipients of children's free or reduced price eligibility status only. These contractors must be assisting in contacting households who have not responded to the schools' verification of eligibility efforts. Contracts providing for such assistance services must include confidentiality assurances, binding contractors to follow the provisions of the NSLA and program regulations. Final rule—The description of persons directly connected to the administration of Medicaid and SCHIP remains as stated in current regulations. The description and how the information may be used are included in §§ 215.13a(h), 225.15(h), 226.23(j) and 245.6(g). For persons directly connected to education and other programs and activities authorized by Public Law 103-448, the proposed rule is adopted in this final rule. These descriptions and how children's eligibility information may be used are included at §§ 215.13a(g), 225.15(g), 226.23(i) and 245.6(f). 9. Agreement/Memorandum of Understanding—Sections 215.13a(g)(7), 225.15(g)(7), 226.23(i)(7), and 245.6(f)(7) currently require determining agencies that choose to disclose children's eligibility information to Medicaid and SCHIP to have an agreement or Memorandum of Understanding
(MOU)with the receiving agency. In the case of disclosures to Medicaid or SCHIP, an agreement/MOU is mandated by the NSLA and is, therefore, nondiscretionary. The agreement/MOU would include such provisions as who will receive the information, how the information will be used, how it will be protected from unauthorized uses and third party disclosures, and acknowledgement of the penalties for misuse of the information. The NSLA does not require or address an agreement or MOU between the determining agency and other individuals or agencies to which children's eligibility status or other information is disclosed. However, in the preamble to the proposed rule, we strongly recommended that determining agencies consider using an agreement. Two commenters advised that an agreement/MOU should be required for all disclosures of confidential information. The Department agrees and expects that the determining agency should have a written record of individuals and programs that are provided children's eligibility status and/or all eligibility information. An agreement/MOU or other type of written record would serve to advise recipients of their responsibilities to maintain the confidential nature of the information, guard against its misuse, and put the recipient on notice of the penalties for misuse of the information. The Department will let determining agencies decide whether a formal or other type of agreement is necessary, such as a list of persons and programs granted access to eligibility information. Except for disclosure to Medicaid and SCHIP, the regulations will continue to recommend, rather than require, that determining agencies use an agreement/MOU when disclosing children's eligibility information to other individuals or agencies. Final rule—Sections 215.13a(k), 225.15(k), 226.23(m), and 245.6
(j)require that determining agencies have an agreement/MOU for disclosures to Medicaid and SCHIP and recommend that the determining agency and other recipient agencies enter into an agreement/MOU prior to the disclosure of children's free and reduced price eligibility information for other purposes. 10. Penalties—The NSLA specifies a fine of not more than $1000 and imprisonment for up to 1 year for unauthorized disclosures and misuse of children's eligibility information. This provision is nondiscretionary. The provision was included in both the proposed and interim rules. Final rule—This final rule retains the penalties stated above at §§ 215.13a(l), 225.15(l), 226.23(n) and 245.6(k). 11. Technical Amendments—This rule also makes several technical amendments to correct or remove obsolete references or provisions. Section 210.19(c)(6)(ii) is revised to replace the acronym AFDC (Aid to Families with Dependent Children) with the acronym TANF (Temporary Assistance for Needy Families), the acronym for the program that replaced AFDC, and adding the words “other FDPIR identifier” in §§ 210.19(c)(6)(ii) and 245.2(a-4)(ii) to clarify that in some cases households participating in FDPIR do not have a case number, but instead are issued another type of identifier. Additionally, corrections are made to the definitions “School” in § 215.2 and “Children” in §§ 210.2 and 220.2 to remove incorrect citations or references. Procedural Matters Executive Order 12866 This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866. Regulatory Impact Analysis Need for Action This final rule provides for the statutory limitations under which children's free and reduced price meal or free milk eligibility information may be disclosed, without parental/guardian consent. This final rule provides State agencies and local program operators that administer the Child Nutrition Programs, as well as households which apply for and/or are approved for free and reduced price meals or free milk the specifics on how and when information may be disclosed. This final rule reflects the disclosure provisions of the Healthy Meals for Healthy Americans Act of 1994 as well as the disclosure provisions of the Agricultural Risk Protection Act of 2000. Additionally, in accordance with the mandates of the Child Nutrition and WIC Reauthorization Act of 2004, this final rule will allow certain third party contractors access to children's eligibility status and will allow school officials to communicate with Medicaid and SCHIP officials to verify that children are eligible for free and reduced price school meals or free milk. Benefits Potential benefits from the sharing of meal benefit eligibility data include reducing redundant means testing, increasing the number of needy families being reached by assistance programs, improving targeting of U.S. Department of Education's programs for needy children, and increasing the integrity of certain assistance programs. The disclosure provisions are intended to reduce paperwork for administrators of certain programs that target low-income households and for low-income households who may benefit from those programs by allowing some sharing of household's free and reduced price meal eligibility information. Costs Potential costs include an additional administrative burden imposed on school food authorities, privacy infringement on some families, and an increase in program costs for programs that acquire meal benefit eligibility data through this rule. These costs are not expected to be significant. Based on the regulatory impact analysis as well as comments received on the proposed rule, the potential benefits of the final rule are expected to outweigh the potential costs. Regulatory Flexibility Act This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Nancy Montanez Johner, Under Secretary for Food, Nutrition and Consumer Services, has certified that this rule will not have a significant economic impact on a substantial number of small entities. While a regulatory impact analysis was conducted to determine the costs and benefits of the rule, the potential costs and benefits are too diverse and too uncertain to be quantified. The parents and guardians of children applying for free or reduced price meal benefits or free milk will be impacted by the disclosure provisions as well as school districts required to maintain confidentiality. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes a requirement 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, FNS generally prepares a written statement, including a cost-benefit analysis. This is done for proposed and final rules that have “Federal mandates” which may result in expenditures of $100 million or more in any one year by State, local, or tribal governments, in the aggregate, or by the private sector. When this statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives. It must then adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. This final rule contains no Federal mandates of $100 million or more in any one year (under regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. Executive Order 12372 The School Breakfast Program, National School Lunch Program, Special Milk Program, the Summer Food Service Program, and the Child and Adult Care Food Program are listed in the Catalog of Federal Domestic Assistance under Nos. 10.553, 10.555, 10.556, 10.559, and 10.558 respectively. These programs are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials (7 CFR Part 3015, Subpart V, and final rule related notice at 48 FR 29115, June 24, 1983). 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 regulation describing the agency's considerations in terms of the three categories called for under section (6)(a)(B) of Executive Order 13132: Prior Consultation With State Officials Prior to drafting this final rule, we received input from State and local agencies at various times. The Child Nutrition Programs
(CNP)are State administered, federally funded programs. Food and Nutrition Service headquarters and regional staff have informal and formal discussions with State and local officials on an ongoing basis regarding program implementation and performance. This arrangement allows State and local agencies to provide feedback that forms the basis for any discretionary decisions in this and other CNP rules. The provisions in this rule are primarily non-discretionary in response to Public Law 103-448, Public Law 106-224 and Public Law 108-265. However, we received comments to the proposed and interim rules from State agencies and school food authorities which were taken into consideration in developing this final rule. Nature of Concerns and the Need To Issue This Rule State and local agencies are generally concerned about protecting the confidentiality of children's eligibility information. They are also concerned about the paperwork and financial burdens placed on food service to provide eligibility information to Medicaid and SCHIP officials and the numerous Federal and State education and other programs that request the information throughout the year. The issuance of this regulation is required by amendments made to the Richard B. Russell National School Lunch Act by Public Law 103-448, Public Law 106-224 and Public Law 108-265. Prior to those amendments, program official could only disclose children's eligibility information with parental consent. This rule establishes and codifies the requirements for any disclosure of children's eligibility information. Extent to Which We Meet These Concerns We believe that we adequately address the issue of State and local flexibility. We clarify (consistent with the requirements of this rule) that the disclosures of children's eligibility information for use other than to determine and verify eligibility for free and reduced price meals or free milk is a State and local decision. Officials are not required to disclose children's eligibility information. When an exchange of information is agreed upon, we encourage State and local agencies to work with the receiving agency officials to make the exchange of eligibility information as streamlined as possible. Additionally, we have issued prototype materials, such as a prototype agreement between program operators and an agency receiving eligibility information and a prototype notification to parents/guardians a school may use to explain to parents that their children's eligibility information may be disclosed. Additionally, we have clarified through guidance that the school food service may require reimbursement for administrative costs of providing free and reduced price eligibility information to other programs. Federal and State education programs are the most frequent users of children's free and reduced price meal eligibility information. We encourage food service and the education community to work together to minimize the burdens on food service to limit requests for free and reduced price meal eligibility information to the extent possible. In this regard, Department of Education and Food and Nutrition Service officials have issued joint memoranda on the issue of disclosure of children's free and reduced price eligibility information. These memoranda may be viewed at *http://www.fns.usda.gov/cnd/lunch/* and then click on “Policy.” Executive Order 12988 This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It 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 impede its full implementation. This rule is not intended to have retroactive effect unless that is specified in the Effective Date section of the preamble of the final rule. Before any judicial challenge to the provisions of this rule or the application of its provisions, all administrative procedures that apply must be followed. The only administrative appeal procedures relevant to this rule are the hearings that FNS must provide for decisions relating to eligibility for free and reduced price meals and free milk (§ 245.7 for the NSLP, SBP, and SMP in schools; § 225.13 for the SFSP, and § 226.23(e)(5) for the CACFP). Civil Rights Impact Analysis FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on children on the basis of race, color, national origin, sex, age or disability. After a careful review of the rule's intent and provisions, FNS has determined that it does not affect the participation of protected individuals in the Child Nutrition Programs. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires that the Office of Management and Budget
(OMB)approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Information collections in this final rule have been approved by OMB under OMB control numbers 0584-0005, 0584-0280, 0584-0055, and 0584-0026. E-Government Act Compliance FNS is committed to compliance 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 210 Children, Commodity School Program, Food assistance programs, Grants programs-social programs, National School Lunch Program, Nutrition, Reporting and recordkeeping requirements, Surplus agricultural commodities. 7 CFR Part 215 Food assistance programs, Grant programs-education, Grant programs-health, Infants and children, Milk, Reporting and recordkeeping requirements. 7 CFR Part 220 Children, Food assistance programs, Grants programs-social programs, Nutrition, Reporting and recordkeeping requirements, School Breakfast Program. 7 CFR Part 225 Food assistance programs, Grant programs-health, Infants and children, Labeling, Reporting and recordkeeping requirements. 7 CFR Part 226 Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs-health, American Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities. 7 CFR Part 245 Civil rights, Food assistance programs, Grant programs-education, Grant programs-health, Infants and children, Milk, Reporting and recordkeeping requirements, School breakfast and lunch programs. Accordingly, 7 CFR Parts 210, 215, 220, 225, 226, and 245 are amended as follows: PART 210—NATIONAL SCHOOL LUNCH PROGRAM 1. The authority citation for Part 210 continues to read as follows: Authority: 42 U.S.C. 1751—1760, 1779. § 210.2 [Amended] 2. In § 210.2, remove the phrase “and (d)” in paragraph
(b)of the definition Child in the alphabetical listing. 3. In § 210.19, revise paragraph (c)(6)(ii) to read as follows: § 210.19 Additional responsibilities.
(c)* * *
(6)* * *
(ii)When any review or audit reveals that a school food authority is approving applications which indicate that the households' incomes are within the Income Eligibility Guidelines issued by the Department or the applications contain food stamp or TANF case numbers or FDPIR case numbers or other FDPIR identifiers but the applications are missing the documentation specified under § 245.2(a-4)(1)(ii); or PART 215—SPECIAL MILK PROGRAM FOR CHILDREN 1. The authority citation for part 215 continues to read as follows: Authority: 42 U.S.C. 1772 and 1779. 2. In § 215.2, amend paragraph (e-1) by removing the phrase “and 4” and revise paragraph (i-1) to read as follows: § 215.2 Definitions. (i-1) *Disclosure* means reveal or use individual children's program eligibility information obtained through the free milk eligibility process for a purpose other than for the purpose for which the information was obtained. The term refers to access, release, or transfer of personal data about children by means of print, tape, microfilm, microfiche, electronic communication or any other means. 3. In § 215.13a, revise paragraphs
(f)and
(g)and add new paragraphs
(h)through
(l)to read as follows: § 215.13a Determining eligibility for free milk in child-care institutions.
(f)*Privacy Act notice requirements.* The free milk application provided to households must include a Privacy Act notice/statement informing households of how the social security number and other information provided on the application will be used. Each free milk application must include substantially the following statement, “The Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free milk. You must include the social security number of the adult household member who signs the application. The social security number is not required when you apply on behalf of a foster child or you list a Food Stamp, Temporary Assistance for Needy Families
(TANF)Program or Food Distribution Program on Indian Reservations (FDPIR) case number for your child or other FDPIR identifier or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free milk, and for administration and enforcement of the Program.” When the State agency or child care institution, as appropriate, plans to use or disclose children's eligibility information for non-program purposes, additional information, as specified in paragraph
(i)of this section must be added to the Privacy Act notice/statement. State agencies and child care institutions are responsible for drafting the appropriate notice and ensuring that the notice complies with section 7(b) of the Privacy Act of 1974 (5 U.S.C. 552a note (Disclosure of Social Security Number)).
(g)*Disclosure of children's free milk eligibility information to certain programs and individuals without parental consent.* The State agency or child care institution, as appropriate, may disclose aggregate information about children eligible for free milk to any party without parental notification and consent when children cannot be identified through release of the aggregate data or by means of deduction. Additionally, the State agency or child care institution may disclose information that identifies children eligible for free milk to the programs and the individuals specified in this paragraph
(g)without parent/guardian consent. The State agency or child care institution that makes the free milk eligibility determination is responsible for deciding whether to disclose program eligibility information.
(1)*Persons authorized to receive eligibility information.* Only persons directly connected with the administration or enforcement of a program or activity listed in paragraphs (g)(2) or (g)(3) of this section may have access to children's free milk eligibility information, without parental consent. Persons considered directly connected with administration or enforcement of a program or activity listed in paragraphs (g)(2) or (g)(3) of this section are Federal, State, or local program operators responsible for the ongoing operation of the program or activity or persons responsible for program compliance. Program operators may include persons responsible for carrying out program requirements and monitoring, reviewing, auditing, or investigating the program. Program operators may include contractors, to the extent those persons have a need to know the information for program administration or enforcement. Contractors may include evaluators, auditors, and others with whom Federal or State agencies and program operators contract with to assist in the administration or enforcement of their program on their behalf.
(2)*Disclosure of children's names and free milk eligibility status.* The State agency or child care institution, as appropriate, may disclose, without parental consent, only children's names and eligibility status (whether they are eligible for free milk) to persons directly connected with the administration or enforcement of:
(i)A Federal education program;
(ii)A State health program or State education program administered by the State or local education agency;
(iii)A Federal, State, or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program (i.e., food assistance programs for households with incomes at or below 185 percent of the Federal poverty level); or
(iv)A third party contractor assisting in verification of eligibility efforts by contacting households who fail to respond to requests for verification of their eligibility.
(3)*Disclosure of all eligibility information.* In addition to children's names and eligibility status, the State agency or child care institution, as appropriate, may disclose, without parental consent, all eligibility information obtained through the free milk eligibility process (including all information on the application or obtained through direct certification) to:
(i)Persons directly connected with the administration or enforcement of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966. This means that all eligibility information obtained for the Special Milk Program may be disclosed to persons directly connected with administering or enforcing regulations under the National School Lunch Program, School Breakfast Program, Child and Adult Care Food Program, Summer Food Service Program and the Special Supplemental Nutrition Program for Women, Infants and Children
(WIC)(Parts 210, 220, 226, 225, and 246, respectively, of this chapter);
(ii)The Comptroller General of the United States for purposes of audit and examination; and
(iii)Federal, State, and local law enforcement officials for the purpose of investigating any alleged violation of the programs listed in paragraphs (g)(2) and (g)(3) of this section.
(4)*Use of free milk eligibility information by programs other than Medicaid or the State Children's Health Insurance Program (SCHIP).* State agencies and child care institutions may use children's free milk eligibility information for administering or enforcing the Special Milk Program. Additionally, any other Federal, State, or local agency charged with administering or enforcing the Special Milk Program may use the information for that purpose. Individuals and programs to which children's free milk eligibility information has been disclosed under this section may use the information only in the administration or enforcement of the receiving program. No further disclosure of the information may be made.
(h)*Disclosure of children's free milk eligibility information to Medicaid and/or SCHIP, unless parents decline.* Children's free milk eligibility information only may be disclosed to Medicaid or SCHIP when both the State agency and the child care institution so elect, the parent/guardian does not decline to have their eligibility information disclosed and the other provisions described in paragraph (h)(1) of this section are met. The State agency or child care institution, as appropriate, may disclose children's names, eligibility status (whether they are eligible for free milk), and any other eligibility information obtained through the free milk application or obtained through direct certification to persons directly connected with the administration of Medicaid or SCHIP. Persons directly connected to the administration of Medicaid and SCHIP are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations for Medicaid or SCHIP.
(1)The State agency must ensure that:
(i)The child care institution and health insurance program officials have a written agreement that requires the health insurance program agency to use the eligibility information to seek to enroll children in Medicaid and SCHIP; and
(ii)Parents/guardians are notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed, prior to any disclosure.
(2)*Use of children's free milk eligibility information by Medicaid/SCHIP.* Medicaid and SCHIP agencies and health insurance program operators receiving children's free milk eligibility information must use the information to identify eligible children and enroll them in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include targeting and identifying children from low-income households who are potentially eligible for Medicaid or SCHIP for the purpose of seeking to enroll them in Medicaid or SCHIP. No further disclosure of the information may be made. Medicaid and SCHIP agencies and health insurance program operators also may verify children's eligibility in a program under the Child Nutrition Act of 1966 or the Richard B. Russell National School Lunch Act.
(i)*Notifying households of potential uses and disclosures of children's free milk eligibility information.* Households must be informed that the information they provide on the free milk application will be used to determine eligibility for free milk and that their eligibility information may be disclosed to other programs.
(1)For disclosures to programs, other than Medicaid or SCHIP, that are permitted access to children's eligibility information without parent/guardian consent, the State agency or child care institution, as appropriate, must notify parents/guardians at the time of application that their children's free milk eligibility information may be disclosed. The State agency or child care institution, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph
(f)of this section, “We may share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs; auditors for program reviews; and law enforcement officials to help them look into violations of program rules.” For children determined eligible for free milk through direct certification, the notice of potential disclosure may be included in the document informing parents/guardians of their children's eligibility for free milk through direct certification process.
(2)For disclosure to Medicaid or SCHIP, the State agency or child care institution, as appropriate, must notify parents/guardians that their children's free milk eligibility information will be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not to have their information disclosed and notifies the State agency or child care institution, as appropriate, by a date specified by the State agency or child care institution, as appropriate. Only the parent or guardian who is a member of the household or family for purposes of the free milk application may decline the disclosure of eligibility information to Medicaid or SCHIP. The notification must inform parents/guardians that they are not required to consent to the disclosure, that the information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP, and that their decision will not affect their children's eligibility for free milk. The notification may be included in the letter/notice to parents/guardians that accompanies the free milk application, on the application itself or in a separate notice provided to parents/guardians. The notice must give parents/guardians adequate time to respond if they do not want their information disclosed. The State agency or child care institution, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph
(f)of this section, “We may share your information with Medicaid or the State Children's Health Insurance Program, unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP.” For children determined eligible for free milk through direct certification, the notice of potential disclosure and opportunity to decline the disclosure may be included in the document informing parents/guardians of their children's eligibility for free milk through direct certification.
(j)*Other disclosures.* State agencies and child care institutions that plan to use or disclose identifying information about children eligible for free milk to programs or individuals not specified in this section must obtain written consent from children's parents or guardians prior to the use or disclosure.
(1)The consent must identify the information that will be shared and how the information will be used.
(2)There must be a statement informing parents and guardians that failing to sign the consent will not affect the child's eligibility for free milk and that the individuals or programs receiving the information will not share the information with any other entity or program.
(3)Parents/guardians must be permitted to limit the consent only to those programs with which they wish to share information.
(4)The consent statement must be signed and dated by the child's parent or guardian who is a member of the household for purposes of the free milk application.
(k)*Agreements with programs/individuals receiving children's free milk eligibility information.* Agreements or Memoranda of Understanding
(MOU)are recommended or required as follows:
(1)The State agency or child care institution, as appropriate, should have a written agreement or MOU with programs or individuals receiving eligibility information, prior to disclosing children's free milk eligibility information. The agreement or MOU should include information similar to that required for disclosures to Medicaid and SCHIP specified in paragraph (k)(2) of this section.
(2)For disclosures to Medicaid or SCHIP, the State agency or child care institution, as appropriate, must have a written agreement with the State or local agency or agencies administering Medicaid or SCHIP prior to disclosing children's free milk eligibility information to those agencies. At a minimum, the agreement must:
(i)Identify the health insurance program or health agency receiving children's eligibility information;
(ii)Describe the information that will be disclosed;
(iii)Require that the Medicaid or SCHIP agency use the information obtained and specify that the information must be used to seek to enroll children in Medicaid or SCHIP;
(iv)Require that the Medicaid or SCHIP agency describe how they will use the information obtained;
(v)Describe how the information will be protected from unauthorized uses and disclosures;
(vi)Describe the penalties for unauthorized disclosure; and
(vii)Be signed by both the Medicaid or SCHIP program or agency and the State agency or child care institution, as appropriate.
(l)*Penalties for unauthorized disclosure or misuse of children's free milk eligibility information.* In accordance with section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses or makes known in any manner, or to any extent not authorized by statute or this section, any information obtained under this section will be fined not more than $1,000 or imprisoned for up to 1 year, or both. PART 220—SCHOOL BREAKFAST PROGRAM 1. The authority citation for Part 220 continues to read as follows: Authority: 42 U.S.C. 1773, 1779, unless otherwise noted. § 220.2 [Amended] 2. In § 220.2, amend paragraph
(c)by removing phrase “and (4)”. PART 225—SUMMER FOOD SERVICE PROGRAM 1. The authority citation for Part 225 is amended to read as follows: Authority: Secs. 9, 13, and 14, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a). 2. In § 225.2, revise the definition Disclosure in the alphabetical list to read as follows: § 225.2 Definitions. *Disclosure* means reveal or use individual children's program eligibility information obtained through the free and reduced price meal eligibility process for a purpose other than for the purpose for which the information was obtained. The term refers to access, release, or transfer of personal data about children by means of print, tape, microfilm, microfiche, electronic communication or any other means. § 225.6 [Amended] 3. In § 225.6: a. Amend paragraph (c)(2)(ii)(C) by removing the reference “§ 225.15(g)” and adding the reference “§ 225.15(h)” in its place; b. Amend paragraph (h)(1) by removing the references “§§ 225.15(g) and 225.17” and adding the references “§§ 225.15(h) and 225.17” in their place; c. Amend paragraph (h)(2)
(xvi)by removing the reference “§ 225.15(g)(6)—(8)” and adding the reference “§ 225.15 (h)(6) through (h)(8)” in its place; and d. Amend paragraph (h)(7) by removing the reference “§ 225.15(g)(1)” and adding the reference “§ 225.15(h)(1)” in its place. 4. In § 225.15: a. Revise paragraphs (f)(4)(iv) and (g); and b. Redesignate paragraphs
(h)and
(i)as paragraphs
(m)and (n), respectively, and add new paragraphs
(h)through (l). The revisions and additions read as follows: § 225.15 Management responsibilities of sponsors.
(f)* * *
(4)* * *
(iv)A Privacy Act notice informing households of how the social security number and other information provided on the application will be used. Each free and reduced price meal application must include substantially the following statement, “The Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free or reduced price meals. You must include the social security number of the adult household member who signs the application. The social security number is not required when you apply on behalf of a foster child or you list a Food Stamp, Temporary Assistance for Needy Families
(TANF)Program or Food Distribution Program on Indian Reservations (FDPIR) case number for your child or other (FDPIR) identifier or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free or reduced price meals, and for administration and enforcement of the Program.” When the State agency or sponsor, as appropriate, plans to use or disclose children's eligibility information for non-program purposes, additional information, as specified in paragraph
(i)of this section, must be added to the Privacy Act notice/statement. State agencies and sponsors are responsible for drafting the appropriate notice and ensuring that the notice complies with section 7(b) of the Privacy Act of 1974 (5 U.S.C. 552a note (Disclosure of Social Security Number)).
(g)*Disclosure of children's free and reduced price meal eligibility information to certain programs and individuals without parental consent.* The State agency or sponsor, as appropriate, may disclose aggregate information about children eligible for free and reduced price meals to any party without parental notification and consent when children cannot be identified through release of the aggregate data or by means of deduction. Additionally, the State agency or sponsor may disclose information that identifies children eligible for free and reduced price meals to the programs and the individuals specified in this paragraph
(g)without parent/guardian consent. The State agency or sponsor that makes the free and reduced price meal eligibility determination is responsible for deciding whether to disclose program eligibility information.
(1)*Persons authorized to receive eligibility information.* Only persons directly connected with the administration or enforcement of a program or activity listed in paragraphs (g)(2) or (g)(3) of this section may have access to children's free and reduced price meal eligibility information, without parental consent. Persons considered directly connected with administration or enforcement of a program or activity listed in paragraphs (g)(2) or (g)(3) of this section are Federal, State, or local program operators responsible for the ongoing operation of the program or activity or persons responsible for program compliance. Program operators may include persons responsible for carrying out program requirements and monitoring, reviewing, auditing, or investigating the program. Program operators may include contractors, to the extent those persons have a need to know the information for program administration or enforcement. Contractors may include evaluators, auditors, and others with whom Federal or State agencies and program operators contract with to assist in the administration or enforcement of their program in their behalf.
(2)*Disclosure of children's names and free or reduced price meal eligibility status.* The State agency or sponsor, as appropriate, may disclose, without parental consent, only children's names and eligibility status (whether they are eligible for free meals or reduced price meals) to persons directly connected with the administration or enforcement of:
(i)A Federal education program;
(ii)A State health program or State education program administered by the State or local education agency;
(iii)A Federal, State, or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program (i.e., food assistance programs for households with incomes at or below 185 percent of the Federal poverty level); or
(3)*Disclosure of all eligibility information.* In addition to children's names and eligibility status, the State agency or sponsor, as appropriate, may disclose, without parental consent, all eligibility information obtained through the free and reduced price meal eligibility process (including all information on the application or obtained through direct certification) to:
(i)Persons directly connected with the administration or enforcement of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966. This means that all eligibility information obtained for the Summer Food Service Program may be disclosed to persons directly connected with administering or enforcing regulations under the National School Lunch Program, Special Milk Program, School Breakfast Program, Child and Adult Care Food Program, and the Special Supplemental Nutrition Program for Women, Infants and Children
(WIC)(parts 210, 215, 220, 226 and 246, respectively, of this chapter);
(ii)The Comptroller General of the United States for purposes of audit and examination; and
(iii)Federal, State, and local law enforcement officials for the purpose of investigating any alleged violation of the programs listed in paragraphs (g)(2) and (g)(3) of this section.
(4)*Use of free and reduced price meals eligibility information by programs other than Medicaid or the State Children's Health Insurance Program (SCHIP).* State agencies and sponsors may use children's free and reduced price meal eligibility information for administering or enforcing the Summer Food Service Program. Additionally, any other Federal, State, or local agency charged with administering or enforcing the Summer Food Service Program may use the information for that purpose. Individuals and programs to which children's free or reduced price meal eligibility information has been disclosed under this section may use the information only in the administration or enforcement of the receiving program. No further disclosure of the information may be made.
(h)*Disclosure of children's free or reduced price meal eligibility information to Medicaid and/or SCHIP, unless parents decline.* Children's free or reduced price meal eligibility information only may be disclosed to Medicaid or SCHIP when both the State agency and the sponsor so elect, the parental/guardian does not decline to have their eligibility information disclosed and the other provisions described in paragraph (h)(1) of this section are met. The State agency or sponsor, as appropriate, may disclose children's names, eligibility status (whether they are eligible for free or reduced price meals), and any other eligibility information obtained through the free and reduced price meal applications or obtained through direct certification to persons directly connected with the administration of Medicaid or SCHIP. Persons directly connected to the administration of Medicaid and SCHIP are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations for Medicaid or SCHIP.
(1)The State agency must ensure that:
(i)The sponsors and health insurance program officials have a written agreement that requires the health insurance program agency to use the eligibility information to seek to enroll children in Medicaid and SCHIP; and
(ii)Parents/guardians are notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed, prior to any disclosure.
(2)*Use of children's free and reduced price meal eligibility information by Medicaid/SCHIP.* Medicaid and SCHIP agencies and health insurance program operators receiving children's free and reduced price meal eligibility information must use the information to seek to enroll children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include targeting and identifying children from low-income households who are potentially eligible for Medicaid or SCHIP for the purpose of seeking to enroll them in Medicaid or SCHIP. No further disclosure of the information may be made. Medicaid and SCHIP agencies and health insurance program operators also may verify children's eligibility in a program under the Child Nutrition Act of 1966 or the Richard B. Russell National School Lunch Act.
(i)*Notifying households of potential uses and disclosures of children's free and reduced price meal eligibility information.* Households must be informed that the information they provide on the free and reduced price meal application will be used to determine eligibility for free or reduced price meals and that their eligibility information may be disclosed to other programs.
(1)For disclosures to programs, other than Medicaid or the State Children's Health Insurance Program (SCHIP), that are permitted access to children's eligibility information, without parental/guardian consent, the State agency or sponsor, as appropriate, must notify parents/guardians at the time of application that their children's free or reduced price meal eligibility information may be disclosed. The State agency or sponsor, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph (f)(4)(iv) of this section, “We may share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs; auditors for program reviews; and law enforcement officials to help them look into violations of program rules.” For children determined eligible for free meals through the direct certification, the notice of potential disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals through direct certification.
(2)For disclosure to Medicaid or SCHIP, the State agency or sponsor, as appropriate, must notify parents/guardians that their children's free or reduced price meal eligibility information will be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not to have their information disclosed and notifies the State agency or sponsor, as appropriate, by a date specified by the State agency or sponsor, as appropriate. Only the parent or guardian who is a member of the household or family for purposes of the free and reduced price meal application may decline the disclosure of eligibility information to Medicaid or SCHIP. The notification must inform parents/guardians that they are not required to consent to the disclosure, that the information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP, and that their decision will not affect their children's eligibility for free or reduced price meals. The notification may be included in the letter/notice to parents/guardians that accompanies the free and reduced price meal application, on the application itself or in a separate notice provided to parents/guardians. The notice must give parents/guardians adequate time to respond if they do not want their information disclosed. The State agency or sponsor, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph
(f)of this section, “We may share your information with Medicaid or the State Children's Health Insurance Program, unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP.” For children determined eligible for free meals through direct certification, the notice of potential disclosure and opportunity to decline the disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals through direct certification process.
(j)*Other disclosures.* State agencies and sponsors that plan to use or disclose information about children eligible for free and reduced price meals in ways not specified in this section must obtain written consent from children's parents or guardians prior to the use or disclosure.
(1)The consent must identify the information that will be shared and how the information will be used.
(2)There must be a statement informing parents and guardians that failing to sign the consent will not affect the child's eligibility for free meals and that the individuals or programs receiving the information will not share the information with any other entity or program.
(3)Parents/guardians must be permitted to limit the consent only to those programs with which they wish to share information.
(4)The consent statement must be signed and dated by the child's parent or guardian who is a member of the household for purposes of the free and reduced price meal application.
(k)*Agreements with programs/individuals receiving children's free or reduced price meal eligibility information.* Agreements or Memoranda of Understanding
(MOU)are recommended or required as follows:
(1)The State agency or sponsor, as appropriate, should have a written agreement or MOU with programs or individuals receiving eligibility information, prior to disclosing children's free and reduced price meal eligibility information. The agreement or MOU should include information similar to that required for disclosures to Medicaid and SCHIP specified in paragraph (k)(2) of this section.
(2)For disclosures to Medicaid or SCHIP, the State agency or sponsor, as appropriate, must have a written agreement with the State or local agency or agencies administering Medicaid or SCHIP prior to disclosing children's free or reduced price meal eligibility information to those agencies. At a minimum, the agreement must:
(i)Identify the health insurance program or health agency receiving children's eligibility information;
(ii)Describe the information that will be disclosed;
(iii)Require that the Medicaid or SCHIP agency use the information obtained and specify that the information must be used to seek to enroll children in Medicaid or SCHIP;
(iv)Require that the Medicaid or SCHIP agency describe how they will use the information obtained;
(v)Describe how the information will be protected from unauthorized uses and disclosures;
(vi)Describe the penalties for unauthorized disclosure; and
(vii)Be signed by both the Medicaid or SCHIP program or agency and the State agency or sponsor, as appropriate.
(l)*Penalties for unauthorized disclosure or misuse of children's free and reduced price meal eligibility information.* In accordance with section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses or makes known in any manner, or to any extent not authorized by statute or this section, any information obtained under this section will be fined not more than $1,000 or imprisoned for up to 1 year, or both. PART 226—CHILD AND ADULT CARE FOOD PROGRAM 1. The authority citation for part 226 continues to read as follows: Authority: SECS. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766). 2. In § 226.2, revise the definition Disclosure in the alphabetical list to read as follows: § 226.2 Definitions. *Disclosure* means reveal or use individual children's program eligibility information obtained through the free and reduced price meal eligibility process for a purpose other than for the purpose for which the information was obtained. The term refers to access, release, or transfer of personal data about children by means of print, tape, microfilm, microfiche, electronic communication or any other means. 3. In § 226.23, revise paragraphs (e)(1)(ii)
(F)and
(i)and add new paragraphs
(j)through
(n)at the end to read as follows: § 226.23 Free and reduced-price meals. (e)(1) * * *
(ii)* * *
(F)A statement that includes substantially the following information, “The Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free or reduced price meals. You must include the social security number of the adult household member who signs the application. The social security number is not required when you apply on behalf of a foster child or you list a Food Stamp, Temporary Assistance for Needy Families
(TANF)Program or Food Distribution Program on Indian Reservations (FDPIR) case number for your child or other (FDPIR) identifier or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free or reduced price meals, and for administration and enforcement of the Program.” When the State agency or child care institution, as appropriate, plans to use or disclose children's eligibility information for non-program purposes, additional information, as specified in paragraph
(k)of this section, must be added to the Privacy Act notice/statement. State agencies and child care institutions are responsible for drafting the appropriate notice and ensuring that the notice complies with section 7(b) of the Privacy Act of 1974 (5 U.S.C. 552a note (Disclosure of Social Security Number)); and
(i)* Disclosure of children's free and reduced price meal eligibility information to certain programs and individuals without parental consent.* The State agency or child care institution, as appropriate, may disclose aggregate information about children eligible for free and reduced price meals to any party without parental notification and consent when children cannot be identified through release of the aggregate data or by means of deduction. Additionally, the State agency or institution may disclose information that identifies children eligible for free and reduced price meals to the programs and the individuals specified in this paragraph
(i)without parental/guardian consent. The State agency or child care institution that makes the free and reduced price meal eligibility determination is responsible for deciding whether to disclose program eligibility information.
(1)*Persons authorized to receive eligibility information.* Only persons directly connected with the administration or enforcement of a program or activity listed in paragraphs (i)(2) or (i)(3) of this section may have access to children's free milk eligibility information, without parental consent. Persons considered directly connected with administration or enforcement of a program or activity listed in paragraphs (i)(2) or (i)(3) of this section are Federal, State, or local program operators responsible for the ongoing operation of the program or activity or persons responsible for program compliance. Program operators may include persons responsible for carrying out program requirements and monitoring, reviewing, auditing, or investigating the program. Program operators may include contractors, to the extent those persons have a need to know the information for program administration or enforcement. Contractors may include evaluators, auditors, and others with whom Federal or State agencies and program operators contract with to assist in the administration or enforcement of their program in their behalf.
(2)*Disclosure of children's names and free or reduced price meal eligibility status.* The State agency or child care institution, as appropriate, may disclose, without parental consent, only children's names and eligibility status (whether they are eligible for free meals or reduced price meals) to persons directly connected with the administration or enforcement of:
(i)A Federal education program;
(ii)A State health program or State education program administered by the State or local education agency;
(iii)A Federal, State, or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program ( *i.e.* , food assistance programs for households with incomes at or below 185 percent of the Federal poverty level); or
(iv)A third party contractor assisting in verification of eligibility efforts by contacting households who fail to respond to requests for verification of their eligibility.
(3)*Disclosure of all eligibility information.* In addition to children's names and eligibility status, the State agency or child care institution, as appropriate, may disclose, without parental/guardian consent, all eligibility information obtained through the free and reduced price meal eligibility process (including all information on the application or obtained through direct certification) to:
(i)Persons directly connected with the administration or enforcement of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966. This means that all eligibility information obtained for the Child and Adult Care Food Program may be disclosed to persons directly connected with administering or enforcing regulations under the National School Lunch Program, Special Milk Program, School Breakfast Program, Summer Food Service Program, and the Special Supplemental Nutrition Program for Women, Infants and Children
(WIC)(Parts 210, 215, 220, 225 and 246, respectively, of this chapter);
(ii)The Comptroller General of the United States for purposes of audit and examination; and
(iii)Federal, State, and local law enforcement officials for the purpose of investigating any alleged violation of the programs listed in paragraphs (i)(2) and (i)(3) of this section.
(4)*Use of free and reduced price meals eligibility information by programs other than Medicaid or the State Children's Health Insurance Program (SCHIP).* State agencies and child care institutions may use children's free milk eligibility information for administering or enforcing the Child and Adult Care Food Program. Additionally, any other Federal, State, or local agency charged with administering or enforcing the Child and Adult Care Food Program may use the information for that purpose. Individuals and programs to which children's free or reduced price meal eligibility information has been disclosed under this section may use the information only in the administration or enforcement of the receiving program. No further disclosure of the information may be made.
(j)*Disclosure of children's free or reduced price meal eligibility information to Medicaid and/or SCHIP, unless parents decline.* Children's free or reduced price meal eligibility information only may be disclosed to Medicaid or SCHIP when both the State agency and the child care institution so elect, the parent/guardian does not decline to have their eligibility information disclosed and the other provisions described in paragraph (j)(1) of this section are met. The State agency or child care institution, as appropriate, may disclose children's names, eligibility status (whether they are eligible for free or reduced price meals), and any other eligibility information obtained through the free and reduced price meal application or obtained through direct certification to persons directly connected with the administration of Medicaid or SCHIP. Persons directly connected to the administration of Medicaid and SCHIP are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations for Medicaid or SCHIP.
(1)The State agency must ensure that:
(i)The child care institution and health insurance program officials have a written agreement that requires the health insurance program agency to use the eligibility information to seek to enroll children in Medicaid and SCHIP; and
(ii)Parents/guardians are notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed, prior to any disclosure.
(2)*Use of children's free and reduced price meal eligibility information by Medicaid/SCHIP.* Medicaid and SCHIP agencies and health insurance program operators receiving children's free and reduced price meal eligibility information must use the information to seek to enroll children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include targeting and identifying children from low-income households who are potentially eligible for Medicaid or SCHIP for the purpose of seeking to enroll them in Medicaid or SCHIP. No further disclosure of the information may be made. Medicaid and SCHIP agencies and health insurance program operators also may verify children's eligibility in a program under the Child Nutrition Act of 1966 or the Richard B. Russell National School Lunch Act.
(k)*Notifying households of potential uses and disclosures of children's free and reduced price meal eligibility information.* Households must be informed that the information they provide on the free and reduced price meal application will be used to determine eligibility for free or reduced price meals and that their eligibility information may be disclosed to other programs.
(1)For disclosures to programs, other than Medicaid or SCHIP, that are permitted access to children's eligibility information, without parent/guardian consent, the State agency or child care institution, as appropriate, must notify parents/guardians at the time of application that their children's free or reduced price meal eligibility information may be disclosed. The State agency or child care institution, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph (e)(1)(ii)(F) of this section, “We may share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs; auditors for program reviews; and law enforcement officials to help them look into violations of program rules.” For children determined eligible for free meals through direct certification, the notice of potential disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals through direct certification.
(2)For disclosure to Medicaid or SCHIP, the State agency or child care institution, as appropriate, must notify parents/guardians that their children's free or reduced price meal eligibility information will be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not to have their information disclosed and notifies the State agency or child care institution, as appropriate, by a date specified by the State agency or child care institution, as appropriate. Only the parent or guardian who is a member of the household or family for purposes of the free and reduced price meal application may decline the disclosure of eligibility information to Medicaid or SCHIP. The notification must inform parents/guardians that they are not required to consent to the disclosure, that the information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP, and that their decision will not affect their children's eligibility for free or reduced price meals. The notification may be included in the letter/notice to parents/guardians that accompanies the free and reduced price meal application, on the application itself or in a separate notice provided to parents/guardians. The notice must give parents/guardians adequate time to respond if they do not want their information disclosed. The State agency or child care institution, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph (e)(1)(ii)(F) of this section, “We may share your information with Medicaid or the State Children's Health Insurance Program, unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP.” For children determined eligible for free meals through direct certification, the notice of potential disclosure and opportunity to decline the disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals through direct certification process.
(l)*Other disclosures.* State agencies and child care institutions that plan to use or disclose information about children eligible for free and reduced price meals in ways not specified in this section must obtain written consent from children's parents or guardians prior to the use or disclosure.
(1)The consent must identify the information that will be shared and how the information will be used.
(2)There must be a statement informing parents and guardians that failing to sign the consent will not affect the child's eligibility for free or reduced price meals and that the individuals or programs receiving the information will not share the information with any other entity or program.
(3)Parents/guardians must be permitted to limit the consent only to those programs with which they wish to share information.
(4)The consent statement must be signed and dated by the child's parent or guardian who is a member of the household for purposes of the free and reduced price meal application.
(m)*Agreements with programs/individuals receiving children's free or reduced price meal eligibility information.* Agreements or Memoranda of Understanding
(MOU)are recommended or required as follows:
(1)The State agency or child care institution, as appropriate, should have a written agreement or MOU with programs or individuals receiving eligibility information, prior to disclosing children's free and reduced price meal eligibility information. The agreement or MOU should include information similar to that required for disclosures to Medicaid and SCHIP specified in paragraph (m)(2) of this section.
(2)For disclosures to Medicaid or SCHIP, the State agency or child care institution, as appropriate, must have a written agreement with the State or local agency or agencies administering Medicaid or SCHIP prior to disclosing children's free or reduced price meal eligibility information to those agencies. At a minimum, the agreement must:
(i)Identify the health insurance program or health agency receiving children's eligibility information;
(ii)Describe the information that will be disclosed;
(iii)Require that the Medicaid or SCHIP agency use the information obtained and specify that the information must be used to seek to enroll children in Medicaid or SCHIP;
(iv)Require that the Medicaid or SCHIP agency describe how they will use the information obtained;
(v)Describe how the information will be protected from unauthorized uses and disclosures;
(vi)Describe the penalties for unauthorized disclosure; and
(vii)Be signed by both the Medicaid or SCHIP program or agency and the State agency or child care institution, as appropriate.
(n)*Penalties for unauthorized disclosure or misuse of children's free and reduced price meal eligibility information.* In accordance with section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses or makes known in any manner, or to any extent not authorized by statute or this section, any information obtained under this section will be fined not more than $1,000 or imprisoned for up to 1 year, or both. PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS 1. The authority citation for Part 245 continues to read as follows: Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773 and 1779. 2. In § 245.2, revise paragraph (a-3) to read as follows and amend paragraph (a-4)(1)(ii) by adding the word “FDPIR” between the word “other” and the word “identifier”: § 245.2 Definitions. (a-3) *Disclosure* means reveal or use individual children's program eligibility information obtained through the free and reduced price meal or free milk eligibility process for a purpose other than for the purpose for which the information was obtained. The term refers to access, release, or transfer of personal data about children by means of print, tape, microfilm, microfiche, electronic communication or any other means. § 245.5 [Amended] 3. In § 245.5, amend paragraphs (a)(1)(iii) and (a)(1)(iv) by removing the references “§ 245.2(a-4)(1)(i)” and “§ 245.2(a-4)(1)(ii)”, respectively, and by adding in their place the reference “§ 245.2(a-4)”. 4. In § 245.6: a. Revise paragraph (a)(1); b. Revise paragraph
(f)and add new paragraphs
(g)through
(k)at the end. The revisions and additions read as follows: § 245.6 Certification of children for free and reduced price meals and free milk.
(a)* * *
(1)“The Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free or reduced price meals. You must include the social security number of the adult household member who signs the application. The social security number is not required when you apply on behalf of a foster child or you list a Food Stamp, Temporary Assistance for Needy Families
(TANF)Program or Food Distribution Program on Indian Reservations (FDPIR) case number for your child or other FDPIR identifier or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free or reduced price meals, and for administration and enforcement of the lunch and breakfast programs.” When the State agency or school food authority, as appropriate, plans to use or disclose children's eligibility information for non-program purposes, additional information, as specified in paragraph
(h)of this section, must be added to the Privacy Act notice/statement. State agencies and school food authorities are responsible for drafting the appropriate notice and ensuring that the notice complies with section 7(b) of the Privacy Act of 1974 (5 U.S.C. 552a note (Disclosure of Social Security Number)).
(f)*Disclosure of children's free and reduced price meal or free milk eligibility information to education and certain other programs and individuals without parental consent* . The State agency or school food authority, as appropriate, may disclose aggregate information about children eligible for free and reduced price meals or free milk to any party without parental notification and consent when children cannot be identified through release of the aggregate data or by means of deduction. Additionally, the State agency or school food authority also may disclose information that identifies children eligible for free and reduced price meals or free milk to persons directly connected with the administration or enforcement of the programs and the individuals specified in this paragraph
(f)without parent/guardian consent. The State agency or school food authority that makes the free and reduced price meal or free milk eligibility determination is responsible for deciding whether to disclose children's free and reduced price meal or free milk eligibility information.
(1)*Persons authorized to receive eligibility information* . Only persons directly connected with the administration or enforcement of a program or activity listed in paragraphs (f)(2) or (f)(3) of this section may have access to children's eligibility information, without parental consent. Persons considered directly connected with administration or enforcement of a program or activity listed in paragraphs (f)(2) or (f)(3) of this section are Federal, State, or local program operators responsible for the ongoing operation of the program or activity or responsible for program compliance. Program operators may include persons responsible for carrying out program requirements and monitoring, reviewing, auditing, or investigating the program. Program operators may include contractors, to the extent those persons have a need to know the information for program administration or enforcement. Contractors may include evaluators, auditors, and others with whom Federal or State agencies and program operators contract with to assist in the administration or enforcement of their program in their behalf.
(2)*Disclosure of children's names and eligibility status only* . The State agency or school food authority, as appropriate, may disclose, without parental consent, children's names and eligibility status (whether they are eligible for free or reduced price meals or free milk) to persons directly connected with the administration or enforcement of:
(i)A Federal education program;
(ii)A State health program or State education program administered by the State or local education agency;
(iii)A Federal, State, or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program (i.e., food assistance programs for households with incomes at or below 185 percent of the Federal poverty level); or
(iv)A third party contractor assisting in verification of eligibility efforts by contacting households who fail to respond to requests for verification of their eligibility.
(3)*Disclosure of all eligibility information in addition to eligibility status* . In addition to children's names and eligibility status, the State agency or school food authority, as appropriate, may disclose, without parental consent, all eligibility information obtained through the free and reduced price meals or free milk eligibility process (including all information on the application or obtained through direct certification) to:
(i)Persons directly connected with the administration or enforcement of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966. This means that all eligibility information obtained for the National School Lunch Program, School Breakfast Program or Special Milk Program may be disclosed to persons directly connected with administering or enforcing regulations under the National School Lunch or School Breakfast Programs (Parts 210 and 220, respectively, of this chapter), Child and Adult Care Food Program (Part 226 of this chapter), Summer Food Service Program (Part 225 of this chapter) and the Special Supplemental Nutrition Program for Women, Infants and Children
(WIC)(Part 246 of this chapter);
(ii)The Comptroller General of the United States for purposes of audit and examination; and
(iii)Federal, State, and local law enforcement officials for the purpose of investigating any alleged violation of the programs listed in paragraphs (g)(3) and (g)(4) of this section.
(4)*Use of free and reduced price meal or free milk eligibility information by other programs other than Medicaid or the State Children's Health Insurance Program (SCHIP)* . State agencies and school food authorities may use free and reduced price meal or free milk eligibility information for administering or enforcing the National School Lunch, Special Milk or School Breakfast Programs (Parts 210, 215 and 220, respectively, of this chapter). Additionally, any other Federal, State, or local agency charged with administering or enforcing these programs may use the information for that purpose. Individuals and programs to which children's free and reduced price meal eligibility information has been disclosed under this section may use the information only in the administration or enforcement of the receiving program. No further disclosure of the information may be made.
(g)*Disclosure of children's eligibility information to Medicaid and/or SCHIP, unless parents decline* . Children's free or reduced price meal or free milk eligibility information only may be disclosed to Medicaid or SCHIP when both the State agency and the school food authority so elect, the parent/guardian does not decline to have their eligibility information disclosed and the other provisions described in paragraph
(i)of this section are met. Provided that both the State agency and school food authority opt to allow the disclosure of eligibility information to Medicaid and/or SCHIP, the State agency or school food authority, as appropriate, may disclose children's names, eligibility status (whether they are eligible for free or reduced price meals or free milk), and any other eligibility information obtained through the free and reduced price meal or free milk application or obtained through direct certification to persons directly connected with the administration of Medicaid or SCHIP. Persons directly connected to the administration of Medicaid and SCHIP are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations for Medicaid or SCHIP.
(1)The State agency must ensure that:
(i)The child care institution and health insurance program officials have a written agreement that requires the health insurance program agency to use the eligibility information to seek to enroll children in Medicaid and SCHIP; and
(ii)Parents/guardians are notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed, prior to any disclosure.
(2)*Use of children's free and reduced price meal eligibility information by Medicaid/SCHIP* . Medicaid and SCHIP agencies and health insurance program operators receiving children's free and reduced price meal or free milk eligibility information may use the information to seek to enroll children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include targeting and identifying children from low-income households who are potentially eligible for Medicaid or SCHIP for the purpose of seeking to enroll them in Medicaid or SCHIP. No further disclosure of the information may be made. Medicaid and SCHIP agencies and health insurance program operators also may verify children's eligibility in a program under the Child Nutrition Act of 1966 or the Richard B. Russell National School Lunch Act.
(h)*Notifying households of potential uses and disclosures of children's eligibility information* . Households must be informed that the information they provide on the free and reduced price meal or free milk application will be used to determine eligibility for free and reduced price meals or free milk and that eligibility information may be disclosed to other programs.
(1)For disclosures to programs, other than Medicaid or SCHIP, that are permitted access to children's eligibility information, without parent/guardian consent, the State agency or school food authority, as appropriate, must notify parents/guardians at the time of application that their children's free and reduced price meal or free milk eligibility information may be disclosed. The State agency or school food authority, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph (a)(1) of this section, “We may share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs; auditors for program reviews; and law enforcement officials to help them look into violations of program rules.” For children determined eligible through direct certification, the notice of potential disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals or free milk through direct certification.
(2)For disclosure to Medicaid or SCHIP, the State agency or school food authority, as appropriate, must notify parents/guardians that their children's free and reduced price meal or free milk eligibility information will be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not to have their information disclosed. Additionally, the State agency or school food authority, as appropriate, must give parents/guardians an opportunity to elect not to have their information disclosed to Medicaid or SCHIP. Only the parent or guardian who is a member of the household or family for purposes of the free and reduced price meal or free milk application may decline the disclosure of eligibility information to Medicaid or SCHIP. The notification must inform parents/guardians that they are not required to consent to the disclosure, that the information, if disclosed, will be used to identify children eligible for and to seek to enroll children in a health insurance program, and that their decision will not affect their children's eligibility for free and reduced price meals or free milk. The notification may be included in the letter/notice to parents/guardians that accompanies the free and reduced price meal or free milk application, on the application itself or in a separate notice provided to parents/guardians. The notice must give parents/guardians adequate time to respond. The State agency or school food authority, as appropriate, must add substantially the following statement to the Privacy Act notice/statement required under paragraph (a)(1) of this section, “We may share your information with Medicaid or the State Children's Health Insurance Program, unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP.” For children determined eligible through direct certification, the notice of potential disclosure and opportunity to decline the disclosure may be included in the document informing parents/guardians of their children's eligibility for free meal or free milk through direct certification.
(i)*Other disclosures* . State agencies and school food authorities that plan to use or disclose information about children eligible for free or reduced price meals or free milk in ways not specified in this section must obtain written consent from the child's parent or guardian prior to the use or disclosure. Only a parent or guardian who is a member of the child's household for purposes of the free and reduced price meal or free milk application may give consent to the disclosure of free and reduced price meal eligibility information.
(1)The consent must identify the information that will be shared and how the information will be used.
(2)The consent statement must be signed and dated by the child's parent or guardian who is a member of the household for purposes of the free and reduced price meal or free milk application.
(3)There must be a statement informing parents and guardians that failing to sign the consent will not affect the child's eligibility for free or reduced price meals or free milk and that the individuals or programs receiving the information will not share the information with any other entity or program.
(4)Parents/guardians must be permitted to limit the consent only to those programs with which they wish to share information.
(j)*Agreements with programs/individuals receiving children's free and reduced price meal or free milk eligibility information* .
(1)An agreement with programs or individuals receiving free and reduced price meal or free milk eligibility information is recommended for programs other than Medicaid or SCHIP. The agreement or MOU should include information similar to that required for disclosures to Medicaid and SCHIP specified in paragraph (j)(2) of this section.
(2)The State agency or school food authorities, as appropriate, must have a written agreement with the State or local agency or agencies administering Medicaid or SCHIP prior to disclosing children's free and reduced price meal or free milk eligibility information. At a minimum, the agreement must:
(i)Identify the health insurance program or health agency receiving children's eligibility information;
(ii)Describe the information that will be disclosed;
(iii)Require that the Medicaid or SCHIP agency use the information obtained and specify that the information must be used to seek to enroll children in Medicaid or SCHIP;
(iv)Require that the Medicaid or SCHIP agency describe how they will use the information obtained;
(v)Describe how the information will be protected from unauthorized uses and disclosures;
(vi)Describe the penalties for unauthorized disclosure; and
(vii)Be signed by both the Medicaid or SCHIP program or agency and the State agency or child care institution, as appropriate.
(k)*Penalties for unauthorized disclosure or misuse of information* . In accordance with section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses or makes known in any manner, or to any extent not authorized by statute or this section, any information obtained under this section will be fined not more than $1,000 or imprisoned for up to 1 year, or both. Dated: March 1, 2007. Nancy Montanez Johner, Under Secretary, Food, Nutrition and Consumer Services. [FR Doc. E7-4268 Filed 3-9-07; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Parts 305 and 319 [Docket No. APHIS-2006-0121] RIN 0579-AC19 Importation of Mangoes From India AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are amending the fruits and vegetables regulations to allow the importation into the continental United States of mangoes from India under certain conditions. As a condition of entry, the mangoes must undergo irradiation treatment and be accompanied by a phytosanitary certificate with additional declarations providing specific information regarding the treatment and inspection of the mangoes and the orchards in which they were grown. In addition, the mangoes will be subject to inspection at the port of first arrival. This action allows for the importation of mangoes from India into the continental United States while continuing to provide protection against the introduction of quarantine pests. EFFECTIVE DATE: March 12, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;
(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56 through 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States. On November 17, 2006, we published in the **Federal Register** (71 FR 66881-66888, Docket No. APHIS-2006-0121) a proposal 1 to allow the importation into the continental United States of mangoes from India under certain conditions. As a condition of entry, we proposed that the mangoes would have to be treated with a minimum absorbed dose of 400 gray of irradiation and be accompanied by a phytosanitary certificate certifying that the fruit received the required irradiation treatment. In addition, because the required irradiation treatment would not mitigate the risks posed by the fungi *Cytosphaera mangiferae* and *Macrophoma mangiferae* or the bacterium *Xanthomonas campestris* pv. *mangiferaeindicae,* which we consider to be of medium risk of introduction and dissemination within the continental United States, we proposed additional safeguarding measures. For the two fungi; we proposed three options:
(1)The mangoes be treated with a broad-spectrum post-harvest fungicidal dip,
(2)the orchard of origin be inspected at a time prior to the beginning of harvest as determined by the mutual agreement between the Animal and Plant Health Inspection Service (APHIS) and the national plant protection organization
(NPPO)of India and be found free of *Cytosphaera mangiferae* and *Macrophoma mangiferae,* or
(3)the orchard of origin be treated with a broad-spectrum fungicidal application during the growing season, be inspected at a time prior to the beginning of harvest as determined by the mutual agreement between APHIS and the NPPO of India, and the fruit found free of *Cytosphaera mangiferae* and *Macrophoma mangiferae.* For the bacterium *X. campestris* pv. *mangiferaeindicae,* we proposed that the shipment be inspected during preclearance activities and found free of *X. campestris* pv. *mangiferaeindicae.* The required phytosanitary certificate would have to confirm that one of the three measures described above for the fungi and the inspection for the bacterium had been carried out. 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov,* click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0121, then click “Submit.” Clicking on the Docket ID link in the search results page will produce a list of all documents in the docket. We solicited comments concerning our proposal for 60 days, ending January 16, 2007. We received three comments by that date. The first comment was from a private citizen who requested that American businesses be allowed to import fruit from wherever they like without being subject to regulations. Such an approach would present an unacceptable level of risk. As The Plant Protection Act (PPA, 7 U.S.C. 7701 *et seq.* ) states, the unregulated movement of plant pests, noxious weeds, plants, certain biological control organisms, plant products, and articles capable of harboring plant pests or noxious weeds could present an unacceptable risk of introducing or spreading plant pests or noxious weeds, which is contrary to APHIS' mission to protect American agriculture. Therefore, the PPA authorizes the Secretary of Agriculture to prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction of a plant pest or noxious weed into the United States or the dissemination of a plant pest or noxious weed within the United States. The Secretary of Agriculture has delegated this authority to APHIS. The second comment was from an industry group that offered a correction to the statement in the proposed rule that India contains only one irradiation facility. The commenter stated that there are multiple food irradiation facilities in India, although the commenter did not know of the APHIS certification status of these additional facilities. To our knowledge, India is currently making the necessary adjustments to only one facility to meet the requirements outlined in 7 CFR part 305. Additional irradiation facilities can be evaluated for APHIS certification, if requested by the Government of India. The third comment was from a representative of the NPPO of India. The commenter asked that APHIS work with the NPPO of India to reduce the cost of the trust fund required by the regulations to pay for the cost of preclearance activities. APHIS acknowledges, and has considered, India's concerns about the cost of the preclearance program and we will work with the NPPO to explore ways to minimize costs. The commenter also asked that APHIS recognize a secondary government agency, The Agricultural and Processed Food Products Export Development Authority, working on behalf of the NPPO of India to implement the requirement for the registration of packinghouses and orchards within India. This request is consistent with the terms of the operational workplan, which allows the NPPO of an importing country or its designee to conduct inspections, registration, etc. The commenter also requested that APHIS forward guidelines for the labeling of mango shipments from other countries to the NPPO of India in order to develop its own guidelines. Due to the irradiation requirement for mangoes from India, labeling requirements for shipments of Indian mangoes will be different than mangoes imported from other countries. The use of irradiation on Indian mangoes also means that, in addition to APHIS labeling requirements, Indian mangoes must also meet Food and Drug Administration labeling requirements. Requirements for the labeling of shipments of mangoes from India will be provided in the operational workplan. The commenter also suggested limiting the additional declarations on the phytosanitary certificate to a statement regarding the broad spectrum fungicidal dip and pest freedom of shipments. The commenter stated that the additional declarations in the proposed rule were needless due to preclearance activities already requiring pre-export inspection by APHIS. Additional declarations are common on phytosanitary certificates for fruit and vegetable imports and serve to alert APHIS inspectors at the port of entry to specific pests of concern or specific operational procedures that were required to be met before import. While we do not agree with the statement that the additional declarations are needless, we agree that the text of the requirement could be simplified. Therefore, in this final rule, paragraph
(e)of § 319.56-2tt requires, with respect to the additional declaration, that the NPPO confirm that
(1)The mangoes were subjected to one of the pre- or post-harvest mitigation options described in § 319.56-2tt(b) and
(2)the mangoes were inspected during preclearance activities and found free of *Cytosphaera mangiferae, Macrophoma mangiferae,* and *Xanthomonas campestris* pv. *mangiferaeindicae.* The commenter indicated that producers in India may wish to export mango varieties other than, or in addition to, the three varieties mentioned in the proposed rule. We mentioned specific varieties in the proposed rule's economic analysis, but the regulatory text of the proposed rule and this final rule contains no limitations on the varieties of mangoes that will be eligible for importation into the continental United States from India. The economic analysis in the proposed rule stated that the mango harvest season in India usually begins in April or May and lasts about 2 months. The commenter stated that the harvest season stretches from March to July. The economic analysis in this final rule has been updated to reflect the timeframe provided by the commenter. That change does not affect the conclusions of our analysis. Finally, the commenter stated that the wrapping of pallet-loads of cartons with polyethylene prior to leaving the treatment facility will not be practical for shipments to the United States because the final palletization of air shipments would be conducted at the airport. As an alternative, the commenter suggested the use of individual, pest-proof boxes with less than 1.6 mm netting to protect against pests entering the boxes through ventilation holes. The regulations in § 305.31(g)(3)(i)(A) provide for the use of the individual pest-proof boxes suggested by the commenter as a means of protecting treated fruit from reinfestation. However, the wrapping or strapping of pallet-loads of cartons referred to by the commenter is required under regulations in § 305.31(g)(3)(ii) in order to preserve the identity of treated lots, which is something that the commenter's suggestion does not address. We are willing to work with the Indian NPPO to explore alternative ways to preserve the identity of treated lots in accordance with the applicable regulations. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document. Effective Date This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the **Federal Register** . Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. The harvest season for mangoes from India begins in March. Making this rule effective immediately will allow interested producers and others in the marketing chain to benefit during this year's shipping season. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the **Federal Register** . Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. We are amending the fruits and vegetables regulations to allow the importation into the continental United States of mangoes from India under certain conditions. As a condition of entry, the mangoes must undergo irradiation treatment and be accompanied by a phytosanitary certificate with additional declarations providing specific information regarding the treatment and inspection of the mangoes and the orchards in which they were grown. In addition, the mangoes will be subject to inspection at the port of first arrival. This action allows for the importation of mangoes from India into the continental United States while continuing to provide protection against the introduction of quarantine pests. Production of mangoes in the United States is limited to three States: Florida, California, and Hawaii. Due to climatic conditions and expanding urbanization in areas of production, mango-producing acreage is small and production minimal. We rely heavily on imports of fresh mangoes in order to meet consumer demand. The majority of mangoes produced in Florida, California, and Hawaii are destined for local markets, with very limited larger-scale commercial production. The Small Business Administration's
(SBA)size standard for mango farming is $750,000 or less in annual receipts. 2 According to the 2002 Census of Agriculture, there were a total of 623 farms (400 in Florida, 11 in California, and 212 in Hawaii) engaged in mango production. Census data did not include annual sale valuation statistics for mango-producing farms. The exact number of mango farms that would be considered small by SBA standards is unknown. However, based on the small bearing acreage, production principally for local markets, and our dependence on imports to meet domestic demand for mangoes, we would expect the majority of these operations to be classified as small. Below we examine recent production in the three mango-producing States, followed by a discussion of foreign supply. 2 Table of Size Standards based on NAICS 2002 [Other Noncitrus Fruit Farming: NAICS code 111339]. Washington, DC: U.S. Small Business Administration, effective July 31, 2006. Florida Over 80 percent of mango acreage in Florida is located in Miami-Dade County, and the remaining acreage is located in surrounding areas. Mango cultivars commonly grown in Florida, which also make up the majority of varieties currently exported to the United States, are ‘Tommy Atkins,' ‘Keitt,' ‘Haden,' and ‘Kent.' The 2002 Census of Agriculture states that Florida had 400 mango-producing farms with 1,373 acres. 3 By 2003, the most recent year for which statistics are available, the number of acres had dropped to 1,300, a 24 percent decline in 3 years. Recent estimates indicate that the acreage has decreased still further, to a modest 1,000 acres in 2005. 4 Only two new acres of mangoes have been planted in Florida since 2000. In a 1997 production report, the last year these statistics were gathered, a mango crop of 100,000 bushels (5.5 million pounds) was harvested, with a price of $14.50 per bushel, yielding a total value of $1.45 million. 5 Due to declining acreage, and consequently reduced harvest yield, production and value statistics are no longer maintained. The majority of mangoes produced in Florida are destined for local farmers' and specialty markets, or sold as green fruit for processing. We are unaware of any larger-scale commercial shipments of fresh mangoes by Florida producers. 3 USDA-NASS. 2002 Census of Agriculture, Table 31. Fruits and Nuts: 2002 and 1997. Washington, DC: National Agricultural Statistics Service, 2002. 4 Richard J. Campbell, Ph.D. Senior Curator of Tropical Fruit, “International Mango Festival 2005 Curator's Choice Cultivars.” Coral Gables, FL: Fairchild Tropical Botanic Garden, page updated May 31, 2005. ( *http://www.fairchildgarden.org/horticulture/mangocurators.html.* ) 5 USDA-NASS-FL. Tropical Fruit Acres and Trees. Orlando, FL: Florida Agricultural Statistics Service, December 11, 2002, and May 12, 2003. California According to the 2002 Census of Agriculture, there were 11 mango-producing farms in California, with an unknown amount of acreage. 6 Until recently, mangoes produced in California were thought to be sold only in local markets. However, recent news reports indicate that there are two commercial mango operations in the Coachella Valley of California that sell their fruit through the Corona College Heights Orange & Lemon Association in Corona, CA. 7 According to the article, the two operations have a combined total of 210 bearing acres, yielding about 275,000 cartons of mangoes (approximately 3.8 million pounds), with a little less than half being certified organic. 8 In addition, one of the growers expects to have an additional 48 acres bearing fruit in 2007. Commercial mango production in California is a relatively new venture, and is expected to grow only gradually. As the article points out, the availability of suitable land for mangoes is limited due to the fruits' susceptibility to frost. For those areas that are not prone to frost, producers are reluctant to switch to mango production from profitable crops such as grapes and citrus because of the heavy initial investments and the long period between first investment and return. The time period between first planting and first production is 5 years for mango trees, so it is not surprising that producers are reluctant to enter into this industry. 6 The production acreage was withheld to avoid disclosing confidential business information for individual farms. 7 “Organic Mangos Now Coming Out of California” by Tim Linden. Web site: *http://theproducenews.com/storydetail.cfm?ID=6216,* August 18, 2006. 8 **Note:** According to a source describing the harvesting and packing of Florida mangoes, a carton can hold 8 to 20 mangoes depending on the size of the fruit, and have a capacity of 14 lbs (6.35 kg) of fruit ( *http://www.hort.purdue.edu/newcrop/morton/mango_ars.html* ). Hawaii In 2002, the Census of Agriculture recorded 212 mango-producing farms in Hawaii, but withheld production acreage to avoid disclosing information for individual operations. In 2004, the Hawaiian field office of the National Agricultural Statistics Service
(NASS)reported there were 140 farms, with a total of 275 acres of crops, of which 200 acres yielded utilized production of 380,000 pounds, with a sales value of $350,000. Preliminary reports for 2005 indicate a decrease of 28.5 percent in the number of mango farms to 100, but an increase in total crop acreage to 295. The amount of harvested acres in 2005 was 190, which represents a slight decrease. However, there was a 39.4 percent increase in utilized production, which, combined with a higher farm price per pound, yielded a 40.2 percent increase in total sales value to $586,000. 9 The amount of commercial production of mangoes in Hawaii is unknown at this time; however, we believe the majority of production is funneled into local markets. 9 USDA-NASS-HI. Hawaii Tropical Specialty Fruits. Honolulu, Hawaii: National Agricultural Statistics Service USDA, Hawaii Field Office, 2004 and 2005 edition. **Note:** Utilized production may include fresh and processed utilization. As is evident, U.S. mango production is limited, with most of the fruit sold locally. In fact, official supply and utilization data maintained by USDA's Economic Research Service
(ERS)have not recorded domestic production figures since 1998. U.S. consumers are almost entirely dependent on imports to meet domestic demand. Table 1 presents ERS data on the supply and utilization of fresh mangoes, 2002-2005. 10 10 USDA-ERS. Table F-8 Fresh Mangoes: Supply and Utilization, 1980 to date. Washington, DC: Economic Research Service, October 2006. Table 1.—Fresh Mangoes Supply and Utilization Year Utilization Imports Total supply Exports Consumption Total Per capita Million pounds Pounds 2002 580.6 580.6 11.8 568.8 1.97 2003 613.8 613.8 14.5 599.4 2.06 2004 609.2 609.2 17.1 592.1 2.01 2005 575.1 575.1 18.3 556.7 1.88 As is evident from the data, annual consumption of fresh mangoes in 2005 was 1.88 pounds per person, down slightly from a historic high of a little over 2 pounds per person reached in 2003. Industry experts correlate this decline with lower imports, and believe the downward trend in consumption will be reversed as preliminary data indicates imports were higher in 2006. 11 In 2005, 575.1 million pounds of fresh mangoes were imported into the United States, which was a decline from the previous year when imports totaled 609.2 million pounds. Table 2 highlights the volume of fresh mango imports for the calendar year 2005 from the top five countries. 11 USDA-ERS. Fruit and Tree Nuts Outlook. May 25, 2006. Table 2.—Fresh Mango Imports, Volume and Value, January-December 2005 Country Imports 9/1-5/31 Imports 6/1-8/31 Total yearly imports Value 9/1-5/31 Value 6/1-8/31 Total yearly value Million pounds 1,000 dollars Mexico 169.7 180.7 350.4 $51,707 $51,603 $103,310 Peru 65.8 65.8 21,522 21,522 Brazil 56.0 1.6 57.6 17,638 585 18,223 Ecuador 53.1 53.1 13,476 13,476 Haiti 11.4 9.2 20.7 3,886 3,457 7,343 World total 382.9 192.1 575.0 113,309 55,808 169,117 Data source: Department of Commerce, U.S. Census Bureau, Foreign Trade Statistics. Note: HS Codes used were 0804504040 (mangoes fresh, entered 9/1-5/31) and 0804506040 (mangoes fresh, entered 6/1-8/31). The 2005 trade statistics indicate fresh mangoes were imported from 13 countries, with the overwhelming majority originating from countries in Central and South America. Although the United States imports mangoes from many countries, Mexico is the major supplier, with a market share of more than 60 percent of the annual import volume, and therefore, essentially 60 percent of the U.S. supply of mangoes. Interestingly, though, Mexico is only the fourth leading producer of mangoes, trailing behind India, China, and Thailand. Its proximity to the United States and participation in the North American Free Trade Agreement (NAFTA) provide advantages over other exporting countries of lower transport costs and reduced or no tariffs. 12 12 USDA-ERS. Fruit and Tree Nuts Briefing Room. Updated: October 8, 2004. Although this final rule will allow imports of all mango varieties, according to comments received on the proposed rule, producers in India are currently interested in exporting six varieties of mangoes to the United States—‘Kesar,’ ‘Alfonse,’ 13 ‘Banganpalli,’ ‘Lagra,’ ‘Dussehry,’ and ‘Neelam’—from four States: Andhra Pradesh, Gujarat, Maharashtra, and Uttar Pradesh. Based on a site visit conducted by APHIS officials, we believe the majority of exports would originate from Gujarat and Maharashtra, where there are two and six production areas, respectively, producing ‘Kesar’ and ‘Alfonse’ varieties. Comments received on the proposed rule indicate that the harvest season in India stretches from March to July. According to the request from the Government of India, the quantity of mangoes exported to the United States would be about 100 sea containers per year. 14 With India being the world leader in mango production, and a typical export packinghouse having a shipping capacity of 40-50 metric tons (over 88,000 lbs.) per day for 45-50 days of the harvest season, the amount imported into the United States would likely only be limited by U.S. market forces. Entry of Indian mangoes into the domestic market would provide increased variety and greater selection for consumers in the continental United States. 13 This mango variety is also known as `Alfonso'. 14 Source: A Qualitative, Pathway-Initiated Pest Risk Assessment, prepared June 2006 (APHIS). **Note:** The average container used to ship mangoes from South America is a 44-foot container, having an average capacity of 22 pallets. Each pallet holds an average 200 boxes. The average weight of each box is 5.0 kilogram (kg). Thus, the total weight of each container is 200 boxes × 5.0 kg × 22 pallet = 22,000 kg (48,501.70 lbs.). Source: Adly Ibrahim (APHIS). The overwhelming majority of mangoes produced domestically are sold in local markets. Even though this final rule will result in an overall increase in fresh mango imports, and thus, an increase in domestic supply, we do not anticipate the price impacts on domestic mango producers to be large. Indian mangoes would primarily compete for market share against other imported mangoes. Based on the higher transportation costs alone, we would expect the price of Indian mangoes to be higher than mangoes coming from countries currently exporting to the United States. Statistics show that in 2004, the export price of Indian mangoes ($595.95/metric tonne) was 16 percent higher than the export price of mangoes from Mexico ($511.96/metric tonne), our primary supplier. 15 15 FAOSTAT-TradeSTAT. Food and Agriculture Organization of the United Nations Trade Databases. ( *http://faostat.fao.org.* ) In order to compete with other countries importing mangoes into the United States, India expects to first target niche and gourmet markets by promoting the mangoes as premium quality fruit. Producers indicated to the APHIS site visit team that initially, the mangoes are expected to be sold through premium catalog sales and/or in specialty and ethnic grocers, after which the mangoes would then be sold in the regular retail sector. Additionally, we expect that India would initially target those geographic areas and markets with high concentrations of Asian and South-Asian persons. According to the United States Census in 2000, 11.9 million people, or 4.2 percent of the population, identified themselves as Asian. The 10 states with the largest Asian demographic in 2000 were California, New York, Hawaii, Texas, New Jersey, Illinois, Washington, Florida, Virginia, and Massachusetts, which combined represent 75 percent of the Asian population in the United States. Regionally, the West and the Northeast have the largest concentrations of Asians. Asian Indians represented the third largest specified Asian group, with a total of 1.9 million people who reported Asian Indian alone or in combination with at least one other race or Asian group. 16 16 The Asian Population: 2000, Census 2000 Brief. Washington, DC: U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau, issued February 2002. Usually, economic theory dictates that an overall increase in supply of a particular commodity would trigger downward pressure on price and result in reduced market share for domestic producers of that commodity. However, we believe the effects on domestic producers of this final rule would be minimal, in light of the predominance of imports and the specialty markets that India is expected to target. Other industries that may be affected by this final rule, as categorized in the North American Industry Classification System (NAICS), are Fresh Fruit and Vegetable Merchant Wholesalers (NAICS 424480), Fruit and Vegetable Markets (NAICS 445230), and Mail-Order Houses (NAICS 454113). 17 All of these industries are primarily comprised of small entities. There were 4,644 fruit and vegetable merchant establishments that operated for the entire year, with 4,436 of them, or 95.5 percent, operating with fewer than 100 employees. Of the 2,257 fruit and vegetable market establishments that operated for the entire year, only 84 of them had sales of over $5 million, leaving over 96 percent of these establishments with sales less than $5 million. Lastly, there were 8,224 establishments classified under the NAICS code for mail-order houses, of which 7,319 of them, or about 89 percent, had annual sales of less than $10 million. 18 All of the above industries may benefit from this final rule by having access to Indian mangoes, which could bolster sales volume and annual revenue. Based on the research we have conducted and the lack of comments on the proposed rule that would suggest otherwise, we expect the benefits of opening the market to Indian mangoes would outweigh any expected costs to domestic producers. 17 SBA size standards are as follows: NAICS code 424480: 100 employees or less; NAICS code 445230: $6.5 million or less in annual receipts; NAICS code 454113 ( **Note:** includes those operations that engage in direct catalog sales): $23 million or less in annual receipts. 18 *Establishment and Firm Size based on 2002 Economic Census.* Washington, DC: U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau, issued December 2005 (wholesale trade) and November 2005 (retail trade). The final rule will only allow the importation of commercial shipments of fresh mangoes from India provided they meet specific phytosanitary requirements. The requirements in this final rule include treatment in India of mango fruit with irradiation using a minimum absorbed dose of 400 gray, and preclearance inspection for those pests not targeted by the irradiation treatment. The NPPO of India will enter into a trust fund agreement with APHIS to provide for all expenses incurred by APHIS while performing preclearance activities, including salaries and administrative, travel, and other incidental expenses. Costs, if any, not covered by the trust fund will be minimal. In addition to irradiation and other preclearance activities, current regulations set out a course of action if, on inspection at the port of arrival, any actionable pest or pathogen is identified. We believe these risk-mitigating phytosanitary measures are sufficient to protect against the introduction of quarantine plant pests into the continental United States associated with the importation of mangoes from India. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12988 This final rule allows mangoes to be imported into the United States from India. State and local laws and regulations regarding mangoes imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. National Environmental Policy Act An environmental assessment was prepared for, and made available for public comment through, the proposed rule for this rulemaking. No comments regarding the environmental assessment were received during the comment period for the proposed rule. The environmental assessment provides a basis for the conclusion that the importation of mangoes under the conditions specified in this rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared. The environmental assessment and finding of no significant impact were prepared in accordance with:
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. 19 Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on
(202)690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT . 19 Go to *http://www.regulations.gov,* click on the “Advanced Search” tab and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0121, click on “Submit,” then click on the Docket ID link in the search results page. The environmental assessment and finding of no significant impact will appear in the resulting list of documents. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget
(OMB)under OMB control number 0579-0312. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects 7 CFR Part 305 Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements. 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we are amending 7 CFR parts 305 and 319 as follows: PART 305—PHYTOSANITARY TREATMENTS 1. The authority citation for part 305 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. In § 305.2, the table in paragraph (h)(2)(i) is amended by adding, under India, an entry for mango to read as follows: § 305.2 Approved treatments.
(h)* * *
(2)* * *
(i)* * * Location Commodity Pest Treatment schedule * * * * * * * India * * * * * * * Mango Plant pests of the class Insecta except pupae and adults of the order Lepidoptera IR * * * * * * * PART 319—FOREIGN QUARANTINE NOTICES 3. The authority citation for part 319 continues to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 4. A new § 319.56-2tt is added to read as follows: § 319.56-2tt Conditions governing the entry of mangoes from India. Mangoes ( *Mangifera indica* ) may be imported into the continental United States from India only under the following conditions:
(a)The mangoes must be treated in India with irradiation by receiving a minimum absorbed dose of 400 Gy in accordance with § 305.31 of this chapter.
(b)The risks presented by *Cytosphaera mangiferae* and *Macrophoma mangiferae* must be addressed in one of the following ways:
(1)The mangoes are treated with a broad-spectrum post-harvest fungicidal dip; or
(2)The orchard of origin is inspected prior to the beginning of harvest as determined by the mutual agreement between APHIS and the national plant protection organization
(NPPO)of India and the orchard is found free of *Cytosphaera mangiferae* and *Macrophoma mangiferae;* or
(3)The orchard of origin is treated with a broad-spectrum fungicide during the growing season and is inspected prior to the beginning of harvest as determined by the mutual agreement between APHIS and the NPPO of India and the fruit found free of *Cytosphaera mangiferae* and *Macrophoma mangiferae. *
(c)Each consignment of mangoes must be inspected jointly by APHIS and the NPPO of India as part of the required preclearance inspection activities at a time and in a manner determined by mutual agreement between APHIS and the NPPO of India.
(d)The risks presented by *Cytosphaera mangiferae, Macrophoma mangiferae,* and *Xanthomonas campestris* pv. *mangiferaeindicae* must be addressed by inspection during preclearance activities.
(e)Each consignment of fruit must be inspected jointly by APHIS and the NPPO of India and accompanied by a phytosanitary certificate issued by the NPPO of India certifying that the fruit received the required irradiation treatment. The phytosanitary certificate must also bear two additional declarations confirming that:
(1)The mangoes were subjected to one of the pre- or post-harvest mitigation options described in § 319.56-2tt(b) and
(2)The mangoes were inspected during preclearance activities and found free of *Cytosphaera mangiferae, Macrophoma mangiferae,* and *Xanthomonas campestris* pv. *mangiferaeindicae.*
(f)The mangoes may be imported in commercial consignments only. Approved by the Office of Management and Budget under control number 0579-0312) Done in Washington, DC, this 7th day of March 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-4444 Filed 3-9-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 457 RIN 0563-AC08 Common Crop Insurance Regulations; Walnut Crop Insurance Provisions; Almond Crop Insurance Provisions AGENCY: Federal Crop Insurance Corporation, USDA. ACTION: Final rule. SUMMARY: The Federal Crop Insurance Corporation
(FCIC)finalizes the Common Crop Insurance Regulations; Walnut Crop Insurance Provisions and Almond Crop Insurance Provisions. The intended effect of this action is to change the insurable age requirements for almonds and walnuts. EFFECTIVE DATE: April 11, 2007. FOR FURTHER INFORMATION CONTACT: John McDonald, Risk Management Specialist, Deputy Administrator for Product Management, Product Administrator and Standards Division, Risk Management Agency, at the Kansas City, MO, address listed above; telephone
(816)926-7730. SUPPLEMENTARY INFORMATION: Executive Order 12866 The Office of Management and Budget
(OMB)has determined that this rule is non-significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by OMB. Paperwork Reduction Act of 1995 Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through November 30, 2007. Government Paperwork Elimination Act
(GPEA)Compliance FCIC is committed to compliance with the GPEA, which requires Government agencies, in general, to provide the public with the option of submitting information or transacting business electronically to the maximum extent possible. FCIC requires that all reinsured companies be in compliance with the Freedom to E-File Act and section 508 of the Rehabilitation Act. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Executive Order 13132 It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Regulatory Flexibility Act FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Written agreement requirements for the Federal crop insurance program are the same for all producers regardless of the size of their operations. For instance, all producers requesting this type of written agreement must submit actual yields for at least the most recent three crop years in which the crop was planted during the base period. Any producer who did not produce the crop for at least three years, for which the written agreement is requested, must submit actual yields for a similar crop, or a combination of actual yields for the crop and a similar crop in the county for which the written agreement is being requested. Whether a producer has 10 acres or 100 acres there is no difference in the kind of information required for requesting a written agreement. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this change helps ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). Federal Assistance Program This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983. Executive Order 12988 This proposed rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought. Environmental Evaluation This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed. Background On Tuesday, March 21, 2006, FCIC published a notice of proposed rulemaking in the **Federal Register** at 71 FR 6016-6021 to amend 7 CFR 457.122 Walnut crop insurance provisions and 7 CFR 457.123 Almond crop insurance provisions effective for the 2008 and succeeding crop years. The public was afforded 60 days to submit written comments and opinions. The commenters were an insurance services organization and an insurance provider. The comments received and FCIC's response is as follows: *Comment:* Two commenters recommended changing the language in section 6(d) of the Walnut Crop Provisions and section 6(e) of the Almond Crop Provisions from “unless otherwise provided in the Special Provisions or by written agreement” to read; “unless otherwise provided in the Special Provisions or we agree in writing”. The commenters concerns with issuing written agreements to insure production from underage trees would require approved insurance providers to submit all policies to the Regional Office for written agreement consideration. Currently, insureds have the ability to insure production from underage almond and walnut trees at all coverage levels by “we agree in writing” under the current Crop Provisions. The commenters state that approved insurance providers would be faced with a difficult and costly task to abide by all documentation requirements for written agreement submissions within the standard 15 business days after the sales closing date and thus result in the insured potentially not getting insurance coverage timely. As a result, the use of the written agreements as a means to provide coverage for production from underage almond and walnut trees would be burdensome to the producer. The commenters also state that producers now have the ability to insure production from underage almond and walnut trees at the catastrophic risk protection
(CAT)level. They claim the current proposal would make CAT policies ineligible for this insurance coverage under the written agreement criteria, since written agreements are not available under CAT coverage. The commenters state that the use of “we agree in writing” language allows the approved insurance providers and RO's to efficiently process the request to insure production from underage almond and walnut trees. Any deviation from this process would be resisted by the AIPs, Regional Office, agents and insureds. *Response:* FCIC realized that the proposed language would have needlessly imposed a heavy burden on producers, agents, AIPs and ROs. However, the preamble of the policy only allows deviation from the policy terms if allowed by written agreement. Therefore, use of the term “agree in writing” is not a viable solution. Instead, FCIC has amended the language to state coverage on production from under-aged trees is allowed if provided for in the Special Provisions. This change will provide insurance coverage for production from under-aged trees without the need to have a written agreement. This will also allow coverage to be available at all buy-up coverage levels and at the CAT level of coverage. List of Subjects in 7 CFR Part 457 Crop insurance, Walnut and Almond, Reporting and record keeping requirements. Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457, Common Crop Insurance Regulations, for the 2008 and succeeding crop years as follows: PART 457—COMMON CROP INSURANCE REGULATIONS 1. The authority citation for 7 CFR part 457 continues to read as follows: Authority: 7 U.S.C. 1506(l), 1506(p). 2. Amend § 457.122 as follows: A. Revise the first sentence of the introductory text. B. Revise paragraph 6(d). The revisions to § 457.122 read as follows: § 457.122 Walnut crop insurance provisions. The Walnut Crop Insurance Provisions for the 2008 and succeeding crop years are as follows: 6. Insured Crop
(d)On acreage where at least 90 percent of the trees have reached at least the seventh growing season after being set out, unless otherwise provided in the Special Provisions. 3. Amend § 457.123 as follows: A. Revise the first sentence of the introductory text. B. Revise paragraph 6(e). The revisions to § 457.123 read as follows: § 457.123 Almond crop insurance provisions. The Almond Crop Insurance Provisions for the 2008 and succeeding crop years are as follows: 6. Insured Crop
(e)On acreage where at least 90 percent of the trees have reached at least the sixth growing season after being set out, unless otherwise provided in the Special Provisions. Signed in Washington, DC, on March 6, 2007. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E7-4333 Filed 3-9-07; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25105; Directorate Identifier 2006-CE-33-AD; Amendment 39-14982; AD 2007-06-01] RIN 2120-AA64 Airworthiness Directives; Raytheon Aircraft Company Beech Models 45 (YT-34), A45 (T-34A, B-45), and D45 (T-34B) Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)that supersedes AD 62-24-01, which applies to all Raytheon Aircraft Company
(RAC)Beech Models 45 (YT-34), A45 (T-34A, B45), and D45 (T-34B) airplanes. AD 62-24-01 currently requires you to repetitively inspect, using the dye penetrant method, the front and rear horizontal stabilizer spars for cracks and replace any cracked stabilizer. Since we issued AD 62-24-01, we determined that using the dye penetrant inspection method may not detect cracks before the crack grows to a critical length and causes failure of the horizontal stabilizer spars. Therefore, we are requiring the surface eddy current inspection method to detect cracks in the horizontal stabilizer spars. Consequently, this AD retains the actions required in AD 62-24-01 and changes the required inspection method from dye penetrant to surface eddy current. We are issuing this AD to prevent failure of the front and/or rear horizontal stabilizer spars caused by fatigue cracks. This failure could result in stabilizer separation and loss of control of the airplane. DATES: This AD becomes effective on April 16, 2007. ADDRESSES: To view the AD docket, go to the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001 or on the Internet at *http://dms.dot.gov.* The docket number is FAA-2006-25105; Directorate Identifier 2006-CE-33-AD. FOR FURTHER INFORMATION CONTACT: T.N. Baktha, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone:
(316)946-4155; fax:
(316)946-4107. SUPPLEMENTARY INFORMATION: Discussion On July 24, 2006, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all RAC Beech Models 45 (YT-34), A45 (T-34A, B45), and D45 (T-34B) airplanes. That proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on July 31, 2006 (71 FR 43075). The NPRM proposed to supersede AD 62-24-01 with a new AD that would retain the actions required in AD 62-24-01 and only change the inspection procedure from the dye penetrant method to the surface eddy current method. Comments We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue No. 1: Change the Compliance Time for the Initial Inspection Larry Bierma, Joe Enzminger, John Aldous, Michael Vadeboncoeur, John Rippinger, William E. Mayher, Dan Thomas, and Victor Barrett state that the inspection compliance in the proposed AD is a duplication of the inspection for those who have done the eddy current inspection recently as part of compliance with an alternative method of compliance
(AMOC)to AD 2004-25-51. The commenters state that requiring another eddy current inspection within 6 months after the effective date of this AD would be unnecessary and economically burdensome for those who have already done it. The commenters request credit for the last inspection done in compliance with an AMOC to AD 2004-25-51 as compliance for the initial inspection required in the proposed AD. We have rewritten the compliance time to give full credit for previously accomplished eddy current inspections done in the area affected by this AD. Comment Issue No. 2: AD Is Not Necessary Michael Vadeboncoeur, John Aldous, Mike Talbot, Eric Evans, Earle Parks, Floyd Stilwell, Dan Thomas, Stephen Baksa, William Beitler, and Terrance Brennan state that, since the time AD 62-24-01 was issued, there have not been any accidents as a result of cracks in the horizontal stabilizer. The commenters request the proposed AD be withdrawn. The commenters also request that stabilizer spars modified by Parks Industries supplemental type certificate
(STC)either be exempt from the inspections or the inspection interval be increased to 1,000 hours TIS. We do not agree with the commenters. In 2005, 148 of the affected airplanes were eddy current inspected. Cracks in the stabilizer spars and/or spar webs were found on 6 of these airplanes, which required the spars to be replaced. If no eddy current inspections had been done, those cracks may have grown and reached critical crack lengths, which could have compromised the integrity of the spar structure. In order to increase the inspection interval or eliminate the spar inspections, we need supporting engineering analysis data regarding fatigue life, crack growth rate, etc. We have not received such data for the spars modified by the Parks Industries STC. If we receive engineering analysis data that supports increasing the inspection intervals or eliminating the inspections, we may take additional rulemaking action at that time. We are not changing the final rule AD action based on these comments. Comment Issue No. 3: Retain the Dye Penetrant Inspection From AD 62-24-01 Floyd Stilwell, Earle Parks, and Terrance Brennan state that the surface eddy current inspection is expensive and inconvenient. Qualified technicians to do the surface eddy current inspections have to be brought to the repair station from other parts of the country, which contributes to the expense of doing the eddy current inspection. The commenters request retaining the dye penetrant inspection. We do not agree with the commenters. AD 2001-13-18 R1 currently requires owners/operators of all Beech Models 45 (YT-34), A45 (T-34A, B-45), and D45 (T-34B) airplanes to do repetitive 80-hour TIS eddy current inspections of the wing spar assemblies and other components following Raytheon Aircraft Mandatory Service Bulletin No. SB 57-3329, Part II, Page 3/65, Issued: February, 2000. If the wing spar and stabilizer spar inspections are properly planned, these two inspections could be done at the same time. This planning would eliminate any extra expenses. We have reason to believe that damage tolerance analysis of the stabilizer spar is being conducted by some owners. This may result in additional rulemaking action that could eliminate the inspection or increase the inspection interval. Until that time, AMOCs for this AD may be approved, if requested using the procedures found in 14 CFR 39.19. We are not changing the final rule AD action based on these comments. Comment Issue No. 4: Surface Eddy Current Inspection Method Unwarranted Dan Thomas, William Beitler, Floyd Stilwell, William Mayher, and Mike Talbot state that the eddy current inspection method is no better than the dye penetrant method for detecting cracks. The level of safety will not be enhanced by changing the inspection methods. Further, the eddy current method could produce false positives and the frequent inspections could also incur damage to the stabilizer spar. The commenters request the method of inspection be at the owner's/operator's option. We do not agree with the commenters. The eddy current inspection method is a more sensitive inspection process. The dye penetrant inspection method at times could completely miss detecting the cracks. All inspection methods have some inherent drawbacks. Eddy current inspection methods detect small surface cracks better than dye penetrant methods, and eddy current inspection methods are also capable of detecting subsurface cracks. Detection of cracks early is a definite advantage. Eddy current inspection methods could occasionally produce false positives; however, this could be avoided if cracks are confirmed by repeatable flaw indications. If the inspections required by this AD are carefully done by qualified technicians, any damage to the spars could be prevented. The 500-hour TIS repetitive inspection interval is a long interval between inspections for this type of airplane, which normally will take place once in 5 years or longer in most cases; therefore, we do not consider this inspection requirement as frequent. We are not changing the final rule AD action based on this comment. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 475 airplanes in the U.S. registry. We estimate the following costs to accomplish each inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 8 work-hours × $80 per hour = $640 Not applicable $640 $304,000 We estimate the following costs to do any necessary horizontal stabilizer replacements that will be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 4 work-hours × $80 per hour = $320 $3,500 $3,820 Cost Difference Between This AD and AD 62-24-01 The only difference between this AD and AD 62-24-01 is the change of inspection method. There may be some minimal additional cost involved in doing the eddy current inspection because of possible equipment rentals necessary. No additional actions are being required. We have determined that this AD action does not increase the cost impact over that already required by AD 62-24-01. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify that this AD:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2006-25105; Directorate Identifier 2006-CE-33-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive
(AD)62-24-01, Amendment 39-508, and adding the following new AD: **2007-06-01 Raytheon Aircraft Company:** Amendment 39-14982; Docket No. FAA-2006-25105; Directorate Identifier 2006-CE-33-AD. Effective Date
(a)This AD becomes effective on April 16, 2007. Affected ADs
(b)This AD supersedes AD 62-24-01, Amendment 39-508. Applicability
(c)This AD affects the following airplane models and serial numbers that are certificated in any category: Model Serial numbers Beech 45 (YT-34) All Beech A45 (T34A, B-45) All Beech D45 (T-34B) All Unsafe Condition
(d)This AD results from our determination that the surface eddy current inspection method should be used in place of the dye penetrant inspection method currently required in AD 62-24-01. We are issuing this AD to prevent failure of the front and/or rear horizontal stabilizer spars caused by fatigue cracks. This failure could result in stabilizer separation and loss of control of the airplane. Compliance
(e)Using the surface eddy current inspection procedures outlined in the appendix of this AD, inspect the front and rear horizontal stabilizer spars between the butt rib and the inboard end for cracks, unless already done, as follows:
(1)* If the last inspection of the front and rear horizontal stabilizer spars was done using the surface eddy current method (or FAA-approved equivalent method) to show compliance with AD 62-24-01 and/or to show compliance with the alternative method of compliance
(AMOC)to AD 2004-25-51: * Repetitively inspect thereafter at intervals not to exceed 500 hours time-in-service (TIS).
(2)*If the last inspection of the front and rear horizontal stabilizer spars required by AD 62-24-01 was done using the dye penetrant method:* Inspect initially as presented in the table below and repetitively thereafter at intervals not to exceed 500 hours TIS: *If* *Then*
(i)Less than 200 hours TIS have passed since the last inspection required by AD 62-24-01: Inspect at whichever of the following occurs later:
(A)Upon accumulating 200 hours TIS since the last inspection required by AD 62-24-01; or
(B)Within the next 6 months after April 16, 2007. (the effective date of this AD).
(ii)If 200 hours TIS or more have passed since the last inspection required by AD-24-01: Inspect at whichever of the following occurs first, unless paragraph (e)(2)(iii) of this AD applies, as specified below:
(A)At the next repetitive inspection required by AD 62-24-01; or
(B)Within the next 6 months after April 16, 2007 (the effective date of this AD).
(iii)If paragraph (e)(2)(ii) results in the initial surface eddy current inspection becoming mandatory within 30 days after the effective date of this AD: Inspect within the next 30 days after April 16, 2007. (the effective date of this AD). Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita Aircraft Certification Office, FAA, ATTN: T.N. Baktha, Aerospace Engineer, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; *telephone:*
(316)946-4155; *fax:*
(316)946-4107, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(g)AMOCs approved for AD 62-24-01 are approved for this AD. Appendix to AD 2007-06-01 Surface Eddy Current Inspection Procedure Note: This surface eddy current inspection procedure is based on T-34 Spar Corporation TSC 3506, Rev C, dated May 10, 2005. The T-34 Spar Corporation is allowing the use of this procedure to be included in this Airworthiness Directive. Alternative methods of compliance procedures will be allowed, if approved by the Wichita Aircraft Certification Office and requested using the procedures found in 14 CFR 39.19. Purpose: This procedure is to be used to detect cracks in the inner and outer spars of the front and rear spar assemblies of Raytheon Aircraft Company Beech Models 45 (YT-34), A45 (T-34A, B-45), and D45 (T-34B) airplane stabilizers outside of the steel bushings in the attach holes. Area To Be Inspected: To access the area of inspection, remove the stabilizer from the airplane. The areas to be inspected include the forward and aft surfaces of the inner and outer front and rear spars of the horizontal stabilizers in the areas surrounding each of the attach holes. Preparing the Area for Inspection: Thoroughly clean area to be inspected with solvent (acetone or equivalent) as required until no signs of dirt, grime, or oil remain on the front and rear spars from the closeout former inboard on the forward and aft surfaces of the spars. Surfaces to be inspected should be smooth and corrosion-free. Any loss of thickness due to corrosion below material thickness tolerance is cause for rejection of the structure. An ultrasonic tester may be used to determine if material thickness has been compromised. Equipment Requirements: Nortec Stavely 2000D Eddy Current Tester or equivalent. *Probe:* 50-500 KHz, shielded, absolute, 0.071” diameter (0.090 max. diameter), right angle, pencil style, surface probe, 5 long, 1/2 ″ drop or equivalent. Use 0.025″ notch (beyond head) for calibration Personal Requirements: Technicians with Eddy Current, Level II or Level III per one of the following specifications: ATA specification 105, SNT-TC-1A, or NAS-410 (MIL-std 410E). Methods: Typical Set-up Parameters: Frequency-350 KHz, Gain Vertical-75 dB, Horizontal-69 dB, Drive-Mid, Filters- Lo Pass-30, Hi Pass-0, Lift off-Horizontal to the left, adjust as required. The most reliable indication (minimum of 1 1/2 to 2 graticules) of the smallest observable flaw in the coupon (see the attached Figures) occurs from the notch extending 0.025″ past the edge of the nominal fastener head (total notch length of 0.100″ from the edge of the nominal hole). Install appropriate aluminum guide pin into bushing such that the edge of the guide pin is flush with the edge of the bushing. Using the pin (see the attached Figures) as a guide, circle the area surrounding the steel bushing with the probe and adjacent area (approximately 1/4 ”) to inspect for cracks. Inspect forward and aft surfaces surrounding bushings of each spar. Note: T-34 Spar Corporation, 2800 Airport Road, Hanger A, Ada, Oklahoma, 74820 is a source for these coupons and pin. Accept/Reject Criteria: Any repeatable flaw indication is cause for rejection in accordance with the procedure. In the event that any crack is detected, describe the flaw in detail providing sketch as needed and send the information to the Wichita ACO. Documentation Requirements: Record inspection findings in the aircraft logbook. BILLING CODE 4910-13-P ER12mr07.003 ER12mr07.004 ER12mr07.005 ER12mr07.006 ER12mr07.007 Issued in Kansas City, Missouri, on March 5, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. 07-1106 Filed 3-9-07; 8:45 am]
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Traces to 22 documents
26 references not yet in our index
  • Pub. L. 103-448
  • Pub. L. 106-224
  • Pub. L. 108-265
  • 7 CFR 215.13
  • 7 CFR 215
  • 7 CFR 245
  • 5 USC 601-612
  • Pub. L. 104-4
  • 7 CFR 3015
  • 5 CFR 1320
  • 7 CFR 210
  • 7 CFR 220
  • 7 CFR 225
  • 7 CFR 226
  • 7 CFR 319.56
  • 7 CFR 305
  • 7 CFR 1
  • 7 CFR 372
  • 7 CFR 319
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • 7 CFR 457
  • 7 CFR 11
  • 7 CFR 457.122
  • 7 CFR 457.123
  • 14 CFR 39
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Fed. Reg.Notices
Fed. Reg.Notices
Fed. Reg.Proposed Rules
Fed. Reg.Notices
U.S.C.§ 1751
U.S.C.§ 1772
Pub. L.Pub. L. 103-448
Pub. L.Pub. L. 106-224
Pub. L.Pub. L. 108-265
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