Best Practices for Tribes Navigating the USDA FDPIR and CSFP Food Delivery Crisis

After the U.S. Department of Agriculture (USDA) consolidated its warehouses serving the Food Distribution Program on Indian Reservations (FDPIR) and Commodity Supplemental Food Program (CSFP) in April 2024, Tribes across the country have been experiencing severe delays in shipments of food that have in some cases resulted in empty shelves. To address this crisis, the USDA has offered four short-term solutions. Though Tribal FDPIR and CSFP sites are eager to use these resources, it is critical that Tribes ensure the utilization of these short-term solutions does not negatively impact their operations moving forward. For this reason, Holland & Knight has summarized seven best practices Tribes should employ during this challenging time.

1. Document Delivery Delays, Missing Foods and Other Critical Information. To guard against recurrence of this problem, Tribal FDPIR and CSFP operations should keep detailed records. Documentation should note when food provided by USDA is late, missing, damaged or expired. FDPIR and CSFP sites should closely monitor and check the quality, quantity and types of food delivered. Errors should be documented and reported back to the USDA and the Tribe's congressional delegation.
2. Document Emergency Food Purchases Procured Using Local Food Purchasing Agreement (LFPA) Funds in Order to Increase Pressure for USDA Reimbursement. LFPA was established as part of the American Rescue Plan (ARP) to address supply chain challenges caused by the COVID-19 pandemic. LFPA authorizes Tribal governments who have entered into agreements with USDA to purchase foods produced within the state or within 400 miles of the delivery destination. In light of the current crisis, USDA has authorized Tribes who have LFPA agreements in place to use these funds to purchase emergency food. However, USDA has stated that it will not reimburse Tribes for the use of their LFPA funds. In response to pushback from Tribal leaders who contend that LFPA funds should not be used to resolve USDA's FDPIR and CSFP crisis, USDA has encouraged Tribes to keep track of any purchases of emergency foods using LFPA dollars in the event funds are made available to reimburse them. USDA has stated that tracking can be done as part of quarterly LFPA reporting. This information should also be shared with the Tribe's congressional delegation.
3. Keep Receipts for Purchases of Emergency Food Using Commodity Credit Corporation (CCC) Funds in Case of an Audit. USDA has made available at least $11 million in CCC funds for Tribes to directly purchase foods that are domestically grown and purchased and to cover costs associated with shipping and distribution. Examples of some allowable foods include dairy foods such as cheese and yogurt, fruits and vegetables (including 100 percent juices), grain products such as pastas and rice, meats (whole, pieces or food items such as ground meats), and meat alternatives such as beans or legumes. Foods in a wide variety of minimal processing states (e.g., whole, cut, pureed, etc.) and forms (e.g., fresh, frozen, canned, dried, etc.) are allowable, including any items such as those currently listed on the FDPIR Foods Available List. Though Tribes do not need to track foods purchased using CCC funds as part of their FDPIR and CSFP inventory systems, USDA has stated that Tribes should maintain receipts of foods purchased in case of any future audits.
4. Track Additional Funds Used to Purchase Emergency Food. Due to USDA errors, some Tribal governments have been forced to use their own funds intended for other purposes to ensure their people do not go without food. Tribes should keep track of any funds used from other programs, the Tribe's general fund or dollars received by grant or donation. This will help Congress assess the true cost of the crisis.
5. Contact an Assigned USDA Crisis Team Member. USDA has reported that close to 40 agency employees are actively working to resolve the crisis. According to USDA, each team member will be assigned a small group of Tribal FDPIR sites in order to provide individualized assistance and serve as a point of contact for questions. U.S. Food and Nutrition Service (FNS) regional office contacts will also remain available for support.
6. Participate in Weekly USDA Calls and Continue to Monitor Evolving USDA Guidance. USDA is currently holding weekly meetings to address the crisis. Tribal leaders should join the meetings to receive the latest guidance from USDA. Tribal leaders should also regularly check the USDA's FDPIR and CSFP Supply Chain Disruptions page to ensure they have the latest information. View the latest guidance issued by USDA for FDPIR on Aug. 21, 2024. USDA guidance for CSFP sites also was issued on Aug. 21, 2024.
7. Testify During USDA's Sept. 12, 2024, Tribal Consultation on a Long-Term Solution. On Sept. 12, 2024, USDA will hold an in-person and virtual Tribal consultation on the supply chain disruptions impacting inventory levels at CSFP and FDPIR sites. Tribes should register for the Tribal consultation to ensure USDA takes meaningful steps to fulfill its trust obligations by not only listening to Tribes, but incorporating and acting upon their requests to enter into multiple contracts when the current contract serving the FDPIR and CSFP warehouses is renewed in February 2025 instead of awarding a sole source contract to Paris Brothers Inc. Written comments must be submitted to USDA's Office of Tribal Relations by Oct. 12, 2024.

If you have any questions about the USDA FDPIR and CSFP warehouse crisis or need help preparing for the forthcoming Tribal consultation, contact the authors or any member of Holland & Knight's Native American Law Team.