[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Rules and Regulations]
[Pages 49739-49748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23950]
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Rules and Regulations
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Federal Register / Vol. 60, No. 187 / Wednesday, September 27, 1995 /
Rules and Regulations
[[Page 49739]]
DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Part 248
RIN 0584-AB43
WIC Farmers' Market Nutrition Program
AGENCY: Food and Consumer Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends and finalizes an interim rule that was
published on March 11, 1994 establishing requirements for the operation
and management of the WIC Farmers' Market Nutrition Program (FMNP). The
purposes of the FMNP are to provide resources to women, infants, and
children who are nutritionally at risk, in the form of fresh,
nutritious, unprepared foods (such as fruits and vegetables) from
farmers' markets; to expand the awareness and use of farmers' markets;
and to increase sales at such markets.
This rule also implements the nondiscretionary FMNP mandates of the
Healthy Meals for Healthy Americans Act of 1994, signed November 2,
1994.
EFFECTIVE DATE: This final rule is effective on October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Barbara Hallman or Debra Whitford,
Supplemental Food Programs Division, Food and Consumer Service, USDA,
3101 Park Center Drive, Room 540, Alexandria, Virginia 22302, (703)
305-2730.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be not significant for purposes of
Executive Order 12866 and therefore has not been reviewed by the Office
of Management and Budget.
Executive Order 12372
This program is subject to Executive Order 12372, which requires
intergovernmental consultation with State and local officials (7 CFR
part 3015, subpart V, and final rule-related notice published June 24,
1983 (48 FR 29114)).
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the ``Effective Date'' paragraph of this
preamble. Prior to any judicial challenge to the provisions of this
rule or the application of its provisions, all applicable
administrative procedures must be exhausted.
Regulatory Flexibility Act
The Department has also reviewed this rule in relation to the
requirements of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354,
94 Stat. 1164, September 19, 1980). The Administrator of the Food and
Consumer Service has certified that this final rule does not have a
significant economic impact on a substantial number of small entities.
Participating farmers and farmers' markets will be affected by the FMNP
requirements and increased sales generated by FMNP recipients. In
addition, participating State and local agencies will be affected by
FMNP administration requirements. Participating State and local
agencies receive Federal food and administrative funds to meet the
requirements established in this rule. In addition, State agencies must
contribute at least 30 percent of the cost of the program, except
Indian Tribal Organizations which may receive a negotiated match
contribution that is less than 30 percent but not less than 10 percent.
Finally, there are no costs to farmers or farmers' markets for applying
for the FMNP.
Paperwork Reduction Act
The reporting requirements established by this rulemaking have been
reviewed and approved under Office of Management and Budget control
number 0584-0477, in accordance with the Paperwork Reduction Act of
1980 (44 U.S.C. 3507).
Estimated Annual Reporting and Recordkeeping Burden
------------------------------------------------------------------------
Annual Average Annual
Section of number of Annual burden per burden
regulations respondents frequency response hours
------------------------------------------------------------------------
Reporting
------------------------------------------------------------------------
248.4............... 26 1 50 1,300
248.10(b)........... 550 1 2 1,100
248.17(b)(2)(ii).... 4 1 10 40
248.18(b)........... 26 1 15 390
248.23(b)........... 26 2 4.5 234
---------------------------------------------------
Total......... 576 ........... ........... 3,064
------------------------------------------------------------------------
Recordkeeping
------------------------------------------------------------------------
248.9............... 26 1 1 26
[[Page 49740]]
248.10(a) (2) (3)... 1,100 1 2 2,200
248.10(e)........... 110 1 2 220
248.10(f)........... 26 1 5 130
248.11.............. 26 1 12 312
---------------------------------------------------
Total......... 1,126 1 ........... 2,888
===================================================
Total
Reporting and
Recordkeeping
Burden....... ........... ........... ........... 5,952
------------------------------------------------------------------------
Good Cause Determinations
This final rule incorporates several new statutory requirements
from the Healthy Meals for Healthy Americans Act of 1994 (Pub. L. 103-
448) enacted on November 2, 1994 which became effective October 1,
1994. These provisions were not contained in the prior interim rule of
March 11, 1994 and pertain primarily to funding issues. The provisions
include the following: A 17 percent administrative cost reimbursement
rate for all State agencies, authority to negotiate the matching
requirement for Indian Tribal Organizations, expansion of the
definition of State agency, change in the division of funds remaining
after base grants have been allocated to 75 percent for current States
for expansion and 25 percent to initiate new States, availability of up
to 2 percent of total grant for market development, and elimination of
carry forward authority. These resulting regulatory changes are non-
discretionary, and accordingly, good cause exists for waiving prior
notice and comment.
Background
Section 501 of the Hunger Prevention Act of 1988 (Pub. L. 100-435),
enacted on September 19, 1988, amended the Child Nutrition Act of 1966
(CNA), 42 U.S.C. 1771 et seq., to add a new subsection 17(m) which
authorized up to 10 Farmers' Market Coupon Demonstration Projects
(demonstration projects) for a 3-year period.
Although authorization for the demonstration projects expired at
the end of Fiscal Year 1991, as part of the Rural Development,
Agriculture, and Related Agency Appropriations Act for Fiscal Year 1992
(Pub. L. 102-142), Congress appropriated up to $3 million to carry on
the projects. As a result, the demonstration projects operated another
year, through Fiscal Year 1992.
Based largely on the success of the demonstration projects, on July
2, 1992, the President signed the WIC Farmers' Market Nutrition Act of
1992 (Pub. L. 102-314). This Act amended section 17(m) of the CNA (42
U.S.C. 1786(m)) to authorize the FMNP as a permanent program.
Therefore, on March 11, 1994, the Department published an interim rule
(59 FR 11508) addressing the mandates of Pub. L. 102-314. Also included
in the interim rule were references to requirements in Department-wide
rules which apply to Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments (7 CFR part
3016), Governmentwide Debarment and Suspension (Non-Procurement)
Requirements (7 CFR part 3017), Governmentwide Requirements for Drug-
Free Workplace (7 CFR part 3017), Governmentwide Restrictions on
Lobbying (7 CFR part 3018), Departmental regulations on
nondiscrimination (7 CFR part 15, 15a, and 15b), Title VI of the Civil
Rights Act of 1964, Title IX of the Education Amendments of 1972,
section 504 of the Rehabilitation Act of 1973, the Age Discrimination
Act of 1975, and independent audit requirements in accordance with 7
CFR part 3015, 3016.26 or part 3051.
Summary of Comments Received on the Interim Rule
The March 11, 1994 interim rule provided for a 120-day comment
period, which ended on July 11, 1994. Fifteen comment letters were
received from a variety of sources, including FMNP State agencies, WIC
State agencies, a public interest group, a governor's office, a
Congressional office, and an orchard.
The Department has given all comments careful consideration in the
development of this final rule and would like to thank all commenters
who responded. Following is a discussion of each provision that
received comments, and an explanation of the changes made in this final
rule. Provisions on which no comments were received or no changes were
made as a result of Public Law 103-448, are not addressed in the
preamble and remain as published in the interim rule.
Conceptual Framework for FMNP Policy Making (Outlined in Preamble
Section of the Interim Rule Under WIC Farmers' Market Nutrition
Program, States With Demonstration Projects)
The interim rule stated in the preamble section that because the
FMNP will operate as an adjunct to WIC, the preamble would only discuss
in detail individual provisions that are unique to the FMNP. Three
commenters remarked that it was inappropriate for FCS to make the
statement outlined above. These commenters suggested that the final
rule reflect the distinctive differences between WIC and FMNP. This
statement in the interim rule was merely intended to highlight the fact
that since FMNP eligibility is limited to WIC participants or persons
on the WIC waiting list, the programs are intended to operate in a
complementary fashion. The focus of the interim rule and this final
rule, however, are the distinct rules for operation of the FMNP. WIC
Program regulations are not affected by this rule.
1. Definitions (Sec. 248.2)
In the interim rule, ``Eligible foods'' were defined as fresh,
nutritious, unprepared, domestically grown fruits, vegetables and herbs
for human consumption. Eligible foods may not be processed or prepared
beyond their natural state except for usual harvesting and cleaning
processes. Honey, maple syrup, cider, nuts, seeds, eggs, meat, cheese
and seafood are examples of foods not eligible under the FMNP.
Several commenters addressing this provision opposed or supported
with modifications, the definition. Three commenters wanted apple cider
included in the list of eligible foods because, as they indicated,
``cider is not processed''. Two commenters wanted herbs excluded from
the definition because they believed herbs were not nutritious and were
not specified in the law. Other commenters approved the
[[Page 49741]]
definition as long as ``locally grown'' replaced ``domestically
grown''. These commenters expressed the view that this would preserve
the unique identity and significance of the FMNP. They further stated
that the Department should require that produce be locally grown.
According to these same commenters, State agencies could then further
clarify how they define locally grown.
In view of the concerns raised by commenters that ``locally grown''
be included in the definition of eligible foods and the Department's
interpretation of the intent of Congress, we have replaced
``domestically grown'' with ``locally grown'' in the definition of
eligible foods in the final rule, provided that in no instance can the
State agency define ``locally grown'' to include foods grown outside of
the United States and its territories. States shall generally consider
locally grown to mean produce grown only within State borders but may
define it to include areas in neighboring States adjacent to its
borders.
After thorough consideration, we have determined that apple cider
should remain excluded from the list of eligible food items. This
conclusion was based on the Department's view that any food that has
been altered from its naturally occurring state, except for usual
harvesting and cleaning processes, is considered to be ``processed''
for purposes of the FMNP. The primary purpose of preventing FMNP coupon
sales of processed foods is to prevent the value of the coupons from
being expended on processing costs. Regarding the comments concerning
``herbs'', the Department has retained them in the definition of
eligible foods. The Department would like to point out, however, that
State agencies have the ability to develop their own list of eligible
foods within the regulatory definition, so a State agency may choose to
exclude herbs if they wish to do so.
``Farmer'' was defined as an individual authorized to sell produce
at participating farmers' markets. Individuals who exclusively sell
produce grown by someone else, such as wholesale distributors, cannot
be authorized to participate in the FMNP. State agencies have the
option to authorize individual farmers or farmers' markets.
About half of the commenters responding to this definition opposed
the definition. Of those opposed, some stated that the Department
should set a standard that a participating farmer must grow at least
half of the produce that he/she sells at the market. Another commenter
suggested that the Food and Consumer Service (FCS) consult with the
Agricultural Marketing Service and convene a taskforce of State FMNP
directors to develop a definition of ``farmer''.
Of the commenters who supported this definition, they did so as
long as ``who locally grows fresh fruits and/or vegetables'' is
included in the definition.
The Department believes that the definition of ``farmer''
established in the interim rule provides each State agency with the
broadest flexibility in authorizing farmers to meet the specific needs
of its program. The definition allows State agencies, if they so
desire, to set a standard for the amount of produce a participating
farmer must grow. Therefore, the Department is retaining the definition
of ``farmer'' as it was set forth in the interim rule. Because the
Department has included ``locally grown'' in the definition of eligible
foods, it has not been repeated in the definition of ``farmer''.
``Farmers' market'' was defined as an association of local farmers
who assemble for the purpose of selling their produce directly to
consumers. In cases where recipient access to farmers' markets is an
issue, and with prior FCS approval, the definition of farmers' market
may be expanded to include farmstands at which authorized farmers sell
their produce.
The majority of commenters supported the definition as long as some
of the issues regarding ``farmstands'' are modified. Some of these
commenters suggested that FCS should not have to grant prior approval
for every farmstand. Other commenters disagreed with the Department's
discussion in the preamble which stated that farmstands are not as
stable as markets. One other commenter suggested inserting ``at a
defined location'' into the definition.
Two commenters opposed the definition. One of these commenters
stated that farmstands should not be generally precluded from the FMNP.
The commenter indicated that this is an example of the WIC Program
focusing solely on the interests of the WIC population while ignoring
the interests of the farmers' markets.
Based on the comments received, the Department has revised the
definition of farmers' market by inserting ``at a defined location''
after the words ``who assemble for the purpose of selling their produce
directly to consumers''. We have also clarified that prior FCS approval
for farmstands may be obtained through the State Plan process.
``In-kind contributions'' has been added in Sec. 248.2 to
accommodate its inclusion as an alternative for meeting the match
requirement. For purposes of the FMNP, in-kind contributions means
property or services which benefit the FMNP and which are contributed
by non-Federal sources without charge to the FMNP.
``Matching requirement'' was defined in the interim rule as non-
Federal cash outlays in an amount equal to not less than 30 percent of
the total FMNP costs for the fiscal year. This match may be satisfied
through non-Federal cash expenditures for the FMNP or for similar
farmers' market programs which operate during the same period as the
FMNP.
One commenter approved of the provision as stated and another
commenter opposed it stating that the match should be reduced from 30
percent to 25 percent of the total cost of the Program.
As later explained in the definition of ``similar programs'', some
commenters suggested that low-income be included when referencing other
groups served by similar programs that are used to meet the matching
requirement. Based on these comments, we have made this revision in the
definition of ``matching requirement'' in the final rule.
The match requirement is set by statute. Section 204(v)(1) of
Public Law 103-448 (November 2, 1994) amended section 17(m)(3) of the
CNA (42 U.S.C. 1786(m)(3)) to allow the Secretary to negotiate a lower
percentage of matching funds for Indian Tribal Organizations, but not
lower than 10 percent of the total cost of the program. The negotiated
match is authorized if the Indian State agency demonstrates to the
Secretary financial hardship for the affected Indian tribe, band,
group, or council. The final rule has been revised to reflect this new
authority. The lower negotiated rate is only available to Indian Tribal
Organizations.
The Department has further revised the definition in the final rule
by removing the word ``cash'' from the definition. This adjustment was
made in order to accommodate in-kind contributions which may be used to
meet the match requirement. Finally, the wording in the first sentence
of the definition has been slightly modified for clarity.
``Recipient'' was defined as a person chosen by the State agency to
receive FMNP benefits. Such a person must be a woman, infant over four
months of age, or child, who receives benefits under the WIC Program or
is on the waiting list to receive benefits under the WIC Program.
Infants under four months of age are excluded from eligibility in the
FMNP based on the recommendation of the American
[[Page 49742]]
Academy of Pediatrics (AAP) that such infants not consume solids due to
the level of development of their gastrointestinal tract.
One commenter suggested omitting the clause which excludes infants
four months of age or younger since this is understood and since it
conflicts with the legislation that allows for the serving of
households.
The Department believes the definition serves as a cautionary
reminder of the AAP recommendation to participants and, accordingly,
has decided to retain the definition as it was stated in the interim
rule.
``Similar Programs'' was defined as other farmers' market projects
or programs which serve women, infants and children, or other
categories of recipients, such as, but not limited to, elderly persons.
The majority of commenters supported this definition as long as it
was modified to state that these similar programs must serve low-income
people. One commenter suggested that a maximum income guideline should
be established for non-WIC households, equal to that which is used in
WIC, for those States utilizing the similar programs provision to meet
the matching requirement.
In view of the comments received, the Department has inserted the
words ``low-income'' before ``women, infants and children'' to clarify
the types of similar programs that can be used to meet the matching
requirement. A corresponding adjustment has also been made to the
definition of ``matching requirement.''
``State'' has been added in Sec. 248.2 since it is referred to in
the text of the regulation. ``State'' means any of the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Northern Marianas Islands.
``State agency.'' The interim rule defined ``State agency'' to be
the agriculture, health or comparable department of each State. Section
204(v)(11) of Pub. L. 103-448 amended Section 17(m)(11)(D) of the CNA
(42 U.S.C. 1786(m)(11)(D)), to expand the definition of State agency to
include any other agency approved by the chief executive officer of the
State. The Department wishes to clarify that, for purposes of this
rule, when reference is made to, ``State agencies that have not
participated in the FMNP'' or to ``State agencies that are
participating for the first time'', this does not refer to a FMNP that
has previously been administered by a different entity within the
State. This final rule incorporates these revisions.
2. State Plan Requirements (Sec. 248.4(a))
a. Farmstand Locations. The interim regulations required that
States wishing to authorize farmstands may do so only when recipient
access to farmers' markets is an issue and with prior approval from
FCS. Because the State Plan process is the vehicle States have for
submitting their program plans for approval, we have clarified in
Sec. 248.4(a)(10)(ii) of this rule that State agencies desiring to
authorize farmstands justify doing so through the State Plan process.
For further clarification, the State Plan submission requirements in
Sec. 248.4(a)(8)(i) have been revised to include the number and
location of farmstands and their proximity to clinics. The Department
believes this will permit evaluation of whether recipient access to
farmers' markets is at issue.
b. Requests for Market Development/Technical Assistance Funds. As
set forth in section 204(v)(2)(B) of Pub. L. 103-448 and clarified in
Sec. 248.14(h) of this rulemaking, States may use up to 2 percent of
total program funds for market development or technical assistance if
the Secretary determines that the State intends to promote the
development of farmers' markets in socially or economically
disadvantaged areas, or remote rural areas, where individuals eligible
for participation in the program have limited access to locally grown
fruits and vegetables. The Department believes that the State Plan
process is the most efficient method for handling requests to direct
program funding to market development or technical assistance.
Accordingly, a new Sec. 248.4(a)(20) is added to require State agencies
desiring to fund such activities to request and to justify the need for
such activities in the State Plan.
3. Data Collection (Secs. 248.4 (a)(16) and (17))
The interim regulations required that State agencies submit, as an
addendum to the State Plan, information on the change in consumption of
fresh fruits and vegetables by recipients; and information on the
effects of the FMNP on the use of farmers' markets, the marketing of
agricultural products, and recipients' awareness regarding farmers'
markets.
One commenter stated that the data collection requirement which
assesses the effects of the FMNP on recipients and farmers is
appropriate if it is cost effective and generates reliable information.
Section 204(v)(7) of Pub. L. 103-448 amended the information
collection requirements as they pertain to the collection of
information on the change in consumption of fresh fruits and vegetables
by recipients and the effects of the program on farmers' markets. The
CNA now requires that such information shall only be collected if it is
available. Sections 248.4(a) (15) and (16) of this final rule have been
modified accordingly. In any data collection effort for the FMNP, the
Department encourages the use of the most cost-efficient method that
yields reliable information.
4. Recipient or Household Allocation of Benefits (Sec. 248.6(c))
This provision of the interim rule allows State agencies to
allocate the quantity of benefits on an individual basis or a household
basis. In situations where benefits are issued on a household basis,
the household could receive fewer benefits as a unit than it otherwise
would if benefits were allocated to individual household members. Under
either allocation methodology, foods provided are intended for the sole
benefit of FMNP recipients and are not intended to be shared with other
non-participating household members.
One commenter approved of the provision as long as the statement
that foods be approved for the sole use of WIC participants in the FMNP
household be omitted. Other commenters indicated that since the CNA
permits benefits to be issued on a household basis, it clearly suggests
that the exclusion of any household member is not the intent of the
FMNP.
One other commenter objected to the inclusion of a household
benefit allocation option because, as was indicated, ``it is not an
equitable way to allocate benefits to participants''.
The Department has decided to retain the definition as it was
stated in the interim rule. As explained in the preamble to the interim
rule, the Department believes State agencies should retain the option
of reaching a greater number of households by allocating benefits on a
household basis. The statement that the foods should be solely for use
by FMNP participants is consistent with the FMNP's eligibility
requirements.
5. Coupon and Market Management--Authorization/Training Visits
(Sec. 248.10(a)(4))
The interim rule required that a State agency conduct a documented
on-site training visit prior to, or at the time of, authorization of a
farmer or farmers' market. The on-site visit shall include, at a
minimum, provision of information
[[Page 49743]]
concerning eligible foods and proper FMNP coupon redemption procedures.
All commenters responding to this provision opposed the timeframe
of the provision. These commenters stated that markets are not open
prior to, or at the time of authorization, so it would be impossible to
conduct on-site visits.
The primary reason for requiring the documented on-site training
visit prior to, or at the time of, authorization was to ensure that
farmers/farmers' markets were advised of critical program information
concerning, at a minimum, eligible foods and proper FMNP coupon
redemption procedures before they began accepting FMNP coupons. The
Department is sensitive to the concerns raised by the commenters
regarding the practical application of this provision. Therefore, based
on the comments, the Department has revised the provision to read,
``the State agency shall conduct face-to-face training for all newly
authorized farmers and farmers' markets prior to their commencing
participation in the FMNP.'' ``Newly authorized'' refers to those
farmers/farmers' markets in their first year of participation in the
FMNP. In addition, during their first year of participation, new
farmers/farmers' markets must be considered ``high-risk'' and must be
placed in the pool from which other high-risk farmers/farmers' markets
are placed for selection of farmers/farmers' markets to monitor.
Monitoring requirements are outlined in Sec. 248.10(e).
The face-to-face training must include the minimum training
requirements outlined in Sec. 248.10(d). Face-to-face training prior to
participation in the program provides safeguards to ensure that new
farmers/farmers' markets are properly informed of program requirements
prior to initiation of the program.
6. Farmers' Markets Agreements (Sec. 248.10(a))
The introductory paragraph of Sec. 248.10(a) of the interim rule
stated that the State agency is responsible for the fiscal management
of, and accountability for, farmers/farmers' markets. Two of the
commenters responding to this provision believed it created the
impression that the State agency's FMNP oversight responsibilities are
not just limited to FMNP-related activities. Accordingly, the
introductory language in Sec. 248.10(a) is amended by this final rule
to clarify that in operating the FMNP, the State agency is only
responsible for FMNP-related activities of the farmer/farmers' market,
not their actions or activities in general.
The Department also wishes to clarify the face-to-face training
requirements in Sec. 248.10(d). In those State agencies that enter into
authorization agreements with farmers' markets, the market managers may
receive the face-to-face training and then, in turn, may provide such
training to their participating farmers. This would fulfill the face-
to-face training requirements of Sec. 248.10(d). Alternatively, State
agencies may meet this requirement by assuming responsibility for face-
to-face training both for market managers and for participating
farmers.
7. Monitoring and Review of Farmers/Farmers' Markets and Local Agencies
and Sanctions--(Secs. 248.10(e) (2) and (4))
The interim regulations required that State agencies rank
participating farmers and farmers' markets by risk factors, and that
they conduct annual, on-site monitoring of at least 10 percent of
farmers and 10 percent of farmers' markets beginning with those farmers
and markets identified as being the highest risk. Mandatory high-risk
indicators are a proportionately high volume of FMNP coupons redeemed
by a farmer as compared to other farmers within the farmers' market and
within the State, and recipient complaints. The interim rule also
required that at least every 2 years, State agencies conduct a review
of all local agencies within their jurisdiction.
Several commenters opposed these provisions. One commenter said
that the transitory nature of farmers makes monitoring and sanctioning
requirements not enforceable. Another commenter suggested eliminating
the comparison of farmers for determination of which are high-risk,
since as this commenter indicated, farmers' markets may be very small
with only a low volume of coupons redeemed, and therefore, not inclined
to abuse the Program.
Two commenters approved of the provisions as long as some
adjustments to the provisions are made. One of these commenters
suggested that it is impractical for administrative efficiency reasons,
to conduct on-site monitoring of markets and farmers in strict rank
order of risk.
Another commenter said that it is impractical to conduct WIC local
agency reviews at the same time as the FMNP reviews, given the short
amount of time (summer months) that the FMNP is being administered. The
commenter suggested clarifying this section to accommodate the seasonal
nature of the FMNP. One commenter stated that the 10 percent standard
used for farmers and farmers' markets should also be applied to local
agencies, which the interim regulations also require to be reviewed
every two years. This commenter went on to say that the requirement to
review all local agencies every two years is unrealistic given staffing
and budget constraints, plus the limited time FMNP coupons are actually
being distributed at the local agency.
Based on some of the comments received, the Department has revised
the provisions. First, we wish to clarify that even in farmers' markets
where farmers are very small with a low volume of coupons redeemed,
significant differences in redemption rates may indicate program abuse.
Accordingly, the Department believes comparing redemption rates among
farmers in each market and within the State represents a valid high-
risk indicator. Although the final rule still requires State agencies
to consider comparison of redemption rates among farmers in each
market, the Department points out that State agencies are free to
accord this factor whatever weight they deem appropriate in
establishing the high-risk rankings.
The Department is further modifying the final rule to clarify that
high-risk farmers and farmers' markets are not required to be visited
in strict rank order of their risk. Rather, once State agencies have
identified the highest risk farmers and farmers' markets to be
monitored, the State agency can determine the schedule or order in
which they will be visited based on location, staff resources and other
factors. Accordingly, the phrase ``beginning with'' has been deleted
from Sec. 248.10(e)(2).
With regard to the monitoring requirements for farmers and farmers'
markets contained at Sec. 248.17(e)(1)(i), a State agency commenter
suggested that the 10 percent minimum requirement targeted at farmers
and markets determined to be ``high-risk'' was inadequate, and that it
should be modified to include a monitoring visit for farmers and
farmers' markets that have never previously participated in the FMNP.
The Department has considered this comment and has determined that a
monitoring visit to all farmers that have never previously participated
in the FMNP may be excessive for some States during one FMNP season.
The Department has however taken the comment into consideration and has
modified Sec. 248.10(e)(2) to require State agencies to include lack of
previous participation in the FMNP, as a high-risk indicator along with
the other high-risk indicators in Sec. 248.10(e)(2). Accordingly,
farmers in their first year of participation may
[[Page 49744]]
now be subject to monitoring visits. The final rule identifies three
mandatory high-risk indicators: 1. a proportionately high volume of
FMNP coupons redeemed by a farmer as compared to other farmers within
the farmers' market and within the State; 2. recipient complaints; and
3. farmers and farmers' markets in their first year of FMNP operation.
The Department would like to clarify that the intent behind
defining a farmer/farmers' market as high-risk in the FMNP is for
purposes of identifying those farmers/farmers' markets that may be
subject to a monitoring visit. It is in no way intended to stigmatize
them with a label. Farmers participating in the FMNP for the first time
are considered high-risk (and thus subject to monitoring) because they
have not previously participated and so may not be as familiar with
program operations.
If after application of the high-risk indicators, a State agency
identifies fewer than 10 percent of its farmers and farmers' markets as
high-risk, the State agency shall randomly select additional farmers
and farmers' markets to monitor in order to meet the 10 percent
minimum.
The high-risk indicators listed above generally apply to a State
agency already participating in the FMNP. A State agency participating
in the FMNP for the first time shall, in lieu of applying the high-risk
criteria, randomly select 10 percent of its participating farmers and
10 percent of its participating farmers' markets for monitoring visits.
The Department also wishes to clarify that 10 percent of farmers
and 10 percent of farmers' markets must be monitored, not 10 percent of
farmers within a market selected for review. For example, if there are
five farmers' markets in a participating State and 40 farmers, the
State shall monitor at a minimum, one farmers' market and four farmers.
These four farmers may or may not be participating within the one
farmers' market being monitored.
With regard to local agency reviews, the Department encourages
State agencies to conduct reviews of FMNP practices at WIC local
agencies during the FMNP season. We have clarified that, when this is
not practical, reviews of FMNP practices at the WIC local agency may be
conducted any time during the year. Reviews conducted outside of the
FMNP season would include a review of documents and procedural plans or
practices of those items listed in Sec. 248.17(c)(1)(ii). The final
regulatory language at Sec. 248.17(c)(1)(ii) has also been clarified to
read as follows: ``WIC State agency reviews of WIC local agencies
conducted for the WIC Program may contribute to meeting the FMNP
requirement that all local agencies be reviewed once every two years if
the reviews include reviews of FMNP practices.''
8. FMNP Costs--Composition of Allowable Costs and Specified Allowable
Administrative Costs (Sec. 248.12(a))
In Sec. 248.12(a)(1)(ii) of the interim rule, the reference to ``7
CFR part 3015'' was in error. It has been changed to read ``7 CFR part
3016'' in the final rule.
Certain administrative costs associated with the first year of
operating the FMNP were listed in Sec. 248.14(g)(1) of the interim rule
which concerns administrative funding. These items were previously
listed as allowable start up costs eligible for the 2 percent
additional administrative allowance for a State's first year of
operation. Because Pub. L. 103-448 increased the general administrative
allowance from 15 to 17 percent and removed the 2 percent allowance for
start up expenses, these items have been consolidated with the list of
general allowable administrative costs found at Sec. 248.12(b)(8)-(13).
9. Matching Amount (Sec. 248.14(a)(1)(i)
Section 204(v)(1) of the Pub. L. 103-448 amended section 17(m)(3)
of the Act to permit the Secretary to negotiate with an Indian State
agency a lower percentage of matching funds than the 30 percent
requirement, but not lower than 10 percent of the total cost of the
program, if the Indian State agency demonstrates to the Secretary
financial hardship for the affected Indian tribe, band group, or
council. The final rule has been amended to reflect this change in the
Law.
The Department has also provided for the allowance of in-kind
contributions to be used to meet the state match requirement by
revising Sec. 248.14(a)(1)(ii) to read: ``A State agency may count any
form of contribution authorized by 7 CFR 3016.24 toward the State
matching requirement, including in-kind contributions.''
10. Distribution of Funds to Previously Participating State Agencies
(Sec. 248.14(b))
The interim rule stated that provided sufficient FMNP funds are
available, each State agency that participated in the FMNP in the prior
fiscal year shall receive not less than the amount of funds the State
agency received in the most recent year in which it received funding,
if it otherwise complies with program requirements.
One commenter opposed the provision stating that, because of the
stability clause for participating States, the FMNP could be perceived
as perpetuating inequities among States which have been participating
in the program longer.
This provision was derived from Section 17(m)(6)(B)(i) of the CNA
which states that as long as the appropriation is sufficient and the
State agency provides the required matching funds, the State agency
shall receive not less than the amount of funds it received in the most
recent fiscal year in which it received funds. As such, Sec. 248.14(b)
is retained in this final rule, with minor editorial changes.
11. Ratable Reduction (Sec. 248.14(c))
The interim rule stated that if amounts appropriated for any fiscal
year for grants under the FMNP are not sufficient to pay to each
previously participating State agency at the level they received in the
most recent fiscal year, each State agency's grant shall be ratably
reduced, except that, if sufficient funds are available, each State
agency shall receive at least $50,000 or the amount that the State
agency received for the prior fiscal year if that amount is less than
$50,000.
As one commenter emphasized, it is not the intent of the Law that
the $50,000 minimum funding level apply to all States wishing to
participate in the FMNP. Rather, this funding level is intended to
serve as the minimum funding level a State agency will receive if
ratable funding reductions are necessary due to insufficient
appropriations.
Pursuant to section 204(v)(4) of the Pub. L. 103-448, the
insufficient funding reduction floor has been raised from $50,000 to
$75,000. In addition, the analysis accompanying the bill clarifies that
the $75,000 threshold is not meant to serve as a minimum grant level
for first-year requests from States. Section 248.14(c) has been revised
to reflect the new level of $75,000.
12. Expansion of Participating State Agencies (Sec. 248.14(d))
As required by section 17(m)(6)(G) of CNA, the interim rule
provided that 45 to 55 percent of any funds that remained after funding
States at the level they received in the most recent fiscal year of
operation shall be allocated to current State agencies to fund new
participants, with the remaining 45 to 55 percent made available to
State agencies which have not previously participated. Any funds
recovered will be reallocated in
[[Page 49745]]
accordance with the appropriate method determined by FCS.
Section 204(v)(6) of Pub. L. 103-448 amended section 17(m)(6)(G) of
the CNA to change this ratio so that funds remaining after funding
States at the level they received in the most recent fiscal year of
operation shall be allocated on a ratio of 75 percent for existing
States to expand their FMNP and to 25 percent for States to start new
programs. Section 248.14(d) of the final regulation has been modified
to reflect this change.
13. Administrative Funding and Market Development/Technical Assistance
(Sec. 248.14(g))
Under the interim regulations, a State agency was limited to not
more than 15 percent of the total FMNP funds for administration except
that: (1) Up to an additional 2 percent of total FMNP funds could be
used for the first year of operation to cover certain start-up costs
and (2) after the first year of operation, with the Secretary's
permission, up to an additional 2 percent of total FMNP funds could be
used toward FMNP administrative expenses.
Most of the commenters opposed the provision because of the 15
percent limit, suggesting instead a 17 percent rate for all States.
Section 204(v)(2) of Pub. L. 103-448 amended section 17(m)(5)(F) to
permit FMNP State agencies to use up to 17 percent of the total amount
of the Federal grant and the required State agency match for
administrative expenses. The amendment eliminated the 2 percent add-ons
for new State agencies or for existing State agencies which
demonstrated ``financial need.'' Section 204(v)(2)(B)(ii) of Pub. L.
103-448 also amended the CNA to now permit State agencies to use not
more than 2 percent of total program funds for market development or
technical assistance to farmers' markets if the Secretary determines
that the State intends to promote the development of farmers' markets
in socially or economically disadvantaged areas, or remote rural areas,
where individuals eligible for participation in the program have
limited access to locally grown fruits and vegetables. Section
248.14(g) has been revised to reflect these changes in the
administrative funding level and the availability of funds for market
development or technical assistance.
14. Carry Forward/Backspend (Sec. 248.14(i))
Section 204(v)(9) of Pub. L. 103-448 amended the CNA to eliminate
the ability of FMNP State agencies to carry forward up to 5 percent of
their Federal grant. The CNA continues to permit FMNP State agencies to
``backspend'' up to 5 percent of their Federal grant. Accordingly, this
change is reflected in Sec. 248.14(i) of this final rule.
15. Appeals Procedures for Farmers (Sec. 248.17)
For purposes of clarification, Sec. 248.17(f) is modified by this
final rule. The change is made to clarify that, where a State agency
does not authorize individual farmers, it shall specify the appropriate
appeals procedure to be used by a farmer who is denied authorization,
disqualified or sanctioned by the farmers' market or farmers'
association.
16. Records and Reports (Sec. 248.23)
Under the interim rule, State agencies were required to submit to
FCS, financial and FMNP performance data on a yearly basis as specified
by FCS and required by section 17(m)(8) of the CNA. Program performance
data include recipient data by category.
One commenter opposed the provision requiring the collection of
recipient data by category when benefits are allocated by household,
unless additional funds are made available to enable States to develop
and design computer systems to accurately compile and report the data.
The Department is retaining the definition as set forth in the
interim rule since such information collection is required by section
17(m)(8)(A) of the CNA.
List of Subjects in 7 CFR Part 248
Food assistance programs, Food donations, Grant programs, Social
programs, Infants and children, Maternal and child health, Nutrition
education, Public assistance programs, WIC, Women.
Accordingly, the interim rule adding 7 CFR part 248 which was
published at 59 FR 11517-11529 on March 11, 1994, is adopted as a final
rule with the following changes.
PART 248--WIC FARMERS' MARKET NUTRITION PROGRAM (FMNP)
1. The authority citation for part 248 continues to read as
follows:
Authority: 42 U.S.C. 1786.
2. In Sec. 248.2:
a. Definitions of ``In-kind contributions'' and ``State'' are added
in alphabetical order.
b. The first sentence in the definition of ``Eligible foods'' is
revised and two new sentences are added at the end of the definition.
c. The first sentence in the definition of ``Farmers' market'' is
revised.
d. The third sentence in the definition of ``Farmstand'' is
revised.
e. The definition of ``Matching requirement'' is revised.
f. The definition of ``Program or FMNP'' is revised.
g. The definition of ``Similar programs'' is revised.
h. The definition of ``State agency'' is revised.
The revisions and additions read as follows:
Sec. 248.2 Definitions.
* * * * *
Eligible foods means fresh, nutritious, unprepared, locally grown
fruits, vegetables and herbs for human consumption. * * * State
agencies shall consider locally grown to mean produce grown only within
State borders but may also define it to include areas in neighboring
States adjacent to its borders. Under no circumstances can produce
grown outside of the United States and its territories be considered
eligible foods.
* * * * *
Farmers' market means an association of local farmers who assemble
at a defined location for the purpose of selling their produce directly
to consumers. * * *
Farmstand * * * With prior FCS approval, through the State Plan
process, a State agency may authorize a farmstand or a nonprofit
organization operating a farmstand to participate in the FMNP where
necessary to ensure adequate recipient access to farmers' markets.
* * * * *
In-kind contributions mean property or services which benefit the
FMNP and which are contributed by non-Federal parties without charge to
the FMNP.
* * * * *
Matching requirement means non-Federal outlays in an amount equal
to not less than 30 percent of the total FMNP costs for the fiscal
year. The Secretary may negotiate with an Indian State agency a lower
percentage of matching funds, but not lower than 10 percent of the
total cost of the program, if the Indian State agency demonstrates to
the Secretary financial hardship for the affected Indian tribe, band,
group, or council. The match may be satisfied through non-Federal
expenditures for the FMNP or for similar farmers' market programs which
operate during the same period as the FMNP. Similar programs include
other farmers' market programs which serve low-income women, infants
and children (who may
[[Page 49746]]
or may not be WIC participants or on the waiting list for WIC
services), as well as other categories of low-income recipients, such
as, but not limited to, low-income elderly persons.
* * * * *
Program or FMNP * * * The Special Supplemental Nutrition Program
for Women, Infants and Children (WIC) is authorized by section 17 of
the Child Nutrition Act of 1966, as amended. Within section 17, section
17(m) authorizes the FMNP.
* * * * *
Similar programs means other farmers' market projects or programs
which serve low-income women, infants and children, or other categories
of recipients, such as, but not limited to, elderly persons.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
and the Northern Marianas Islands.
State agency means the agriculture department, the health
department or any other agency approved by the chief executive officer
of the State; an Indian tribe, band or group recognized by the
Department of the Interior; an intertribal council or group which is an
authorized representative of Indian tribes, bands or groups recognized
by the Department of the Interior and which has an ongoing relationship
with such tribes, bands or groups for other purposes and has contracted
with them to administer the Program; or the appropriate area office of
the Indian Health Service (IHS), an agency of the Department of Health
and Human Services.
* * * * *
3. In Sec. 248.4:
a. Paragraph (a)(8)(i) is revised.
b. Paragraphs (a)(10)(ii) through (a)(10)(viii) are redesignated as
paragraphs (a)(10)(iii) through (a)(10)(ix), respectively.
c. A new paragraph (a)(10)(ii) is added.
d. Paragraph (a)(15) is revised.
e. Paragraph (a)(16) is removed.
f. Paragraph (a)(17) is redesignated as paragraph (a)(16) and is
revised.
g. Paragraphs (a)(18), (a)(19), and (a)(20) are redesignated as
paragraphs (a)(17), (a)(18), and (a)(19), respectively.
h. A new paragraph (a)(20) is added.
The additions and revisions read as follows:
Sec. 248.4 State Plan.
(a) * * *
(8) * * *
(i) The number and addresses of participating markets, farmstands
and area WIC clinics including a map outlining the service area and
proximity of markets/farmstands to clinics; and
* * * * *
(10) * * *
(ii) For those State agencies desiring to authorize farmstands,
justification for doing so.
* * * * *
(15) If available, information on the change in consumption of
fresh fruits and vegetables by recipients. This information shall be
submitted as an addendum to the State Plan and shall be submitted at
such a date specified by the Secretary.
(16) If available, information on the effects of the program on
farmers' markets. This information shall be submitted as an addendum to
the State Plan and shall be submitted at such a date specified by the
Secretary.
* * * * *
(20) For those State agencies requesting the extra 2 percent
administrative rate for market development or technical assistance to
promote such development in disadvantaged areas or remote rural areas,
an explanation of their justification and plans for the use of such
funds.
* * * * *
4. In Sec. 248.8 paragraph (a) is revised to read as follows:
Sec. 248.8 Level of benefits and eligible foods.
(a) General. State agencies shall identify in the State Plan the
fresh, nutritious, unprepared, locally grown fruits, vegetables and
herbs which are eligible for purchase under the FMNP. Ineligible foods
for the purpose of the FMNP include, but are not limited to: honey,
maple syrup, cider, nuts and seeds, eggs, cheese, meat and seafood.
Locally grown shall mean produce grown only within a State's borders
but may be defined to include border areas in adjacent States. Under no
circumstances can produce grown outside of the United States and its
territories be considered eligible foods.
* * * * *
5. In Sec. 248.10:
a. The second sentence of paragraph (a) introductory text is
revised.
b. Paragraph (a)(4) is revised.
c. The introductory text of paragraph (d) is revised.
d. The first and second sentences of paragraph (e)(2) are revised.
e. Two new sentences are added at the end of paragraph (e)(2).
f. The last sentence of paragraph (e)(4) is revised.
The revisions and additions read as follows:
Sec. 248.10 Coupon and market management.
(a) General. * * * The State agency is responsible for the fiscal
management of, and accountability for FMNP-related activities for
farmers/farmers' markets. * * *
* * * * *
(4) The State agency shall ensure that face-to-face training is
conducted prior to start up of the first year of FMNP participation of
a farmers' market and individual farmer. The face-to-face training
shall include at a minimum those items listed in paragraph (d) of this
section.
* * * * *
(d) Annual training for farmers/farmers' market managers. State
agencies shall conduct annual training for farmers/farmers' market
managers participating in the FMNP. The State agency shall conduct a
face-to-face training for all farmers and farmers' market managers who
have never previously participated in the program prior to their
commencing participation in the FMNP. After a farmer/farmers' market
manager's first year of FMNP operation, State agencies have discretion
in determining the method used for annual training purposes. At a
minimum, annual training shall include instruction emphasizing:
* * * * *
(e) Monitoring and review of farmers/farmers' markets and local
agencies. * * *
(2) Each State agency shall rank participating farmers and farmers'
markets by risk factors, and shall conduct annual, on-site monitoring
of at least 10 percent of farmers and 10 percent of farmers' markets
which shall include those farmers and markets identified as being the
highest-risk. Mandatory high-risk indicators are a proportionately high
volume of FMNP coupons redeemed by a farmer as compared to other
farmers within the farmers' market and within the State, recipient
complaints, and farmers and farmers' markets in their first year of
FMNP operation. * * * If application of the high-risk indicators
results in fewer than 10 percent of farmers and farmers' markets as
high-risk, the State agency shall randomly select additional farmers
and farmers' markets to be monitored in order to meet the 10 percent
minimum. The high-risk indicators listed above generally apply to a
State agency already participating in the FMNP. A State agency
participating in the FMNP for the first time shall, in lieu of applying
the high-risk indicators, randomly select 10 percent of its
participating farmers and 10 percent of
[[Page 49747]]
its participating farmers' markets for monitoring visits.
* * * * *
(4) * * * WIC State agency reviews of WIC local agencies, which
include reviews of FMNP practices, may contribute to meeting the
requirement that all local agencies be reviewed once every 2 years.
* * * * *
Sec. 248.11 [Amended]
6. In Sec. 248.11, paragraph (g) is amended by removing the
reference to ``Sec. 248.10(f)'' and adding, in its place, a reference
to ``Sec. 248.10(h)''.
7. In Sec. 248.12:
a. The fourth sentence of paragraph (a)(1)(i) is revised.
b. Paragraph (a)(1)(ii) is redesignated as paragraph (a)(1)(iii)
and the third sentence is amended by removing the reference to ``7 CFR
part 3015'' and adding in its place, a reference to ``7 CFR part
3016''.
c. A new paragraph (a)(1)(ii) is added.
d. New paragraphs (b)(8), (b)(9), (b)(10), (b)(11), (b)(12),
(b)(13) and (b)(14) are added.
The additions and revisions read as follows:
Sec. 248.12 FMNP costs.
(a) General.--(1) Composition of allowable costs.* * *
(i) Food Costs and administrative costs. * * * Except as provided
in Sec. 248.14(g) of this part, a State agency's administrative costs
under the FMNP may not exceed 17 percent of its total FMNP costs.* * *
(ii) Market development or technical assistance costs. Market
development or technical assistance costs are those costs under
Sec. 248.14(h) incurred to promote the development of farmers' markets
in socially or economically disadvantaged areas, or remote rural areas,
where individuals eligible for participation in the program have
limited access to locally grown fruits and vegetables. Subject to a
determination by the Secretary under Sec. 248.14(h), a State agency
may, during any fiscal year, use not more than 2 percent of total
program funds for such market development or technical assistance.
* * * * *
(b) Specified allowable administrative costs.* * *
(8) The cost of determining which local WIC sites will be utilized.
(9) The cost of recruiting and authorizing farmers/farmers' markets
to participate in the FMNP.
(10) The cost of preparing contracts for farmers/farmers' markets
and local WIC providers.
(11) The cost of developing a data processing system for redemption
and reconciliation of FMNP coupons.
(12) The cost of designing program training and informational
materials.
(13) The cost of coordinating FMNP implementation responsibilities
between designated administering agencies.
8. In Sec. 248.14:
a. A new sentence is added before the second sentence of paragraph
(a)(1)(i).
b. Paragraph (a)(1)(ii) is revised.
c. A new sentence is added at the end of paragraph (a)(1)(iii).
d. Paragraph (b) is revised.
e. Paragraph (c) is revised.
f. The first sentence of paragraphs (d)(1) and (d)(2) are revised
and paragraph (d)(3) is revised.
g. Paragraph (e)(1) is amended by removing the words ``(exclusive
of the 5 percent carry forward)'' from the first and second sentences
of that paragraph.
h. Paragraph (g) is revised.
i. Paragraphs (h), (i) and (j) are redesignated as paragraphs (i),
(j) and (k) respectively.
j. A new paragraph (h) is added.
k. Newly redesignated paragraph (i) is revised.
l. Newly redesignated paragraph (j) is revised.
m. Newly redesignated paragraph (k) is revised.
The revisions and additions are as follows:
Sec. 248.14 Distribution of funds.
(a) Conditions for receipt of Federal funds.--(1) Matching of
funds.
(i) Match amount. * * * The Secretary may negotiate a lower
percentage of matching funds, but not lower than 10 percent of the
total cost of the program, in the case of an Indian State agency that
demonstrates to the Secretary financial hardship for the affected
Indian tribe, band, group, or council.* * *
(ii) Sources of matching contributions. A State agency may count
any form of contribution authorized by 7 CFR 3016.24 toward the State
matching requirement including in-kind contributions.
(iii) Failure to match. * * * This match amount may be lower for
those Indian State agencies that have demonstrated to the Secretary
financial hardship as set forth in paragraph (a)(1)(i) of this section.
* * * * *
(b) Distribution of FMNP funds to previously participating State
agencies. Provided that sufficient FMNP funds are available, each State
agency that participated in the FMNP in any prior fiscal year, shall
receive not less than the amount of funds the State agency received in
the most recent fiscal year in which it received funding, if it
otherwise complies with the requirements established in this part.
(c) Ratable reduction. If amounts appropriated for any fiscal year
for grants under the FMNP are not sufficient to pay to each previously
participating State agency at least an amount as identified in
paragraph (b) of this section, each State agency's grant shall be
ratably reduced, except that, to the extent permitted by available
funds, each State agency shall receive at least $75,000 or the amount
that the State agency received for the most recent prior fiscal year in
which the State participated, if that amount is less than $75,000.
(d) Expansion of participating State agencies and establishment of
new State agencies.* * *
(1) Of the remaining funds, 75 percent shall be made available to
State agencies already participating in the FMNP that wish to serve
additional recipients.* * *
(2) Of the remaining funds, 25 percent shall be made available to
State agencies that have not participated in the FMNP in any prior
fiscal year. * * *
(3) In any fiscal year, any FMNP funds that remain unallocated
after satisfying the requirements of paragraphs (d)(1) and (d)(2) of
this section, shall be reallocated in accordance with paragraph (k) of
this section.
* * * * *
(g) Administrative funding. A State agency shall have available for
administrative costs an amount not greater than 17 percent of total
FMNP funds. The 17 percent administrative cost limitation shall not
apply to any funds that a State agency may contribute in excess of its
minimum matching requirement. A State agency may use any non-Federal
contributions in excess of the 30 percent (or the negotiated percentage
for those Indian State agencies that received a lower amount) matching
requirement for food and/or administrative costs.
(h) Market development. A State agency shall be permitted to use
not more than 2 percent of total program funds for market development
or technical assistance to farmers' markets if the Secretary determines
that the State intends to promote the development of farmers' markets
in socially or economically disadvantaged areas, or remote rural areas,
where individuals eligible for participation in the program have
limited access to locally grown fruits and vegetables.
(i) Transfer of funds. A State agency may use not more than 5
percent of the
[[Page 49748]]
Federal FMNP funds made available for the fiscal year to reimburse
expenses incurred by the FMNP during a preceding fiscal year. The State
agency shall provide such justification for its request to spend back
funds under this paragraph as FNS may require.
(j) Recovery of unused funds. State agencies shall return to FCS
any unexpended funds made available for a fiscal year by February 1 of
the following fiscal year.
(k) Reallocation of funds. Any funds recovered under paragraphs
(d)(3) and (j) of this section will be reallocated in accordance with
the appropriate method determined by FCS.
9. In Sec. 248.16 the second sentence in paragraph (f) is revised
to read as follows:
Sec. 248.16 Administrative appeal of State agency decisions.
* * * * *
(f) Additional appeals procedures for State agencies which
authorize farmers' markets and not individual farmers. * * * A State
agency which authorizes farmers' markets and not individual farmers
shall ensure that procedures are in place to be used when a farmer
seeks to appeal an action of a farmers' market or association denying
the farmer's application to participate, or sanctioning or
disqualifying the farmer.
10. In Sec. 248.17:
a. The third sentence of the introductory text of paragraph (b) is
revised.
b. The first sentence of paragraph (c)(1)(i) is revised.
c. Two new sentences are added at the end of paragraph (c)(1)(ii).
The revisions and additions read as follows:
Sec. 248.17 Management evaluations and reviews.
* * * * *
(b) Responsibilities of FCS. * * * These evaluations shall also
include reviews of selected local agencies, and on-site reviews of
selected farmers/farmers' markets. * * *
* * * * *
(c) Responsibilities of State agencies. * * *
(1) * * *
(i) Annual monitoring reviews of participating farmers/farmers'
markets, including on-site reviews of a minimum of 10 percent of
farmers and 10 percent of farmers' markets, which includes those
farmers and markets identified as being the highest risk. First year of
operation in the FMNP shall be considered a high-risk indicator. * * *
(ii) * * * WIC State agency reviews of local agencies conducted for
the WIC Program may contribute to meeting the FMNP requirement that all
local agencies be reviewed once every two years if the reviews include
reviews of FMNP practices. When the WIC State agency conducts a review
of the local agency outside of the FMNP season, a review of documents
and procedural plans of the FMNP, rather than actual FMNP activities,
is acceptable.
* * * * *
11. In Sec. 248.25, paragraph (a) is revised to read as follows:
Sec. 248.25 FMNP information.
* * * * *
(a) Connecticut, Maine, Massachusetts, New Hampshire, New York,
Rhode Island, Vermont: U.S. Department of Agriculture, FNS, Northeast
Region, 10 Causeway Street, Room 501, Boston, Massachusetts 02222-1066.
* * * * *
12. Section 248.26 is revised to read as follows:
Sec. 248.26 OMB control number.
The collecting of information requirements for Part 248 have been
approved by the Office of Management and Budget and assigned OMB
control number 0584-0477.
Dated: September 20, 1995.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 95-23950 Filed 9-26-95; 8:45 am]
BILLING CODE 3410-34-U
