WIC Farmers' Market Nutrition Program: Legislative Changes From the William F. Goodling Child Nutrition Reauthorization Act of 1998

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AC80

WIC Farmers' Market Nutrition Program: Legislative Changes From

the William F. Goodling Child Nutrition Reauthorization Act of 1998

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements three WIC Farmers' Market Nutrition

Program (FMNP) related nondiscretionary provisions mandated in the

William F. Goodling Child Nutrition Reauthorization Act of 1998. The

three provisions pertain to the use of program income as a State

matching fund source, elimination of specific State Plan ranking

criteria used to determine funding preferences, and use of expansion

funds to increase the value of benefits to recipients.

DATES: This regulation is effective October 1, 1998.

FOR FURTHER INFORMATION CONTACT: Debra Whitford, Supplemental Food

Programs Division, Food and Nutrition Service, USDA, 3101 Park Center

Drive, Room 542, Alexandria, Virginia 22302. (703) 305-2746.

SUPPLEMENTARY INFORMATION:

Background

On October 31, 1998, the President signed Pub. L. 105-336, the

William F. Goodling Child Nutrition Reauthorization Act of 1998 (the

Goodling Act), which included three non-discretionary provisions

regarding the FMNP. The three provisions address: program income as an

allowable State matching fund source, elimination of specific State

Plan ranking criteria used to determine funding preferences, and use of

expansion funds to increase the value of benefits to recipients. This

final rule implements those nondiscretionary FMNP provisions as

reflected in section 203(o) of the Goodling Act. These provisions serve

the interests of the President and Congress by providing greater

flexibility for FMNP State agencies in the operation of the program,

and expanding the allowable sources for meeting the State matching fund

requirement. Because of the nondiscretionary nature of these

legislative provisions, the Administrator of the Food and Nutrition

Service has determined that, in accordance with 5 U.S.C. 553, prior

notice and comment is unnecessary and contrary to the public interest,

and for the same reason, that good cause exists for the publication of

this rule less than 30 days prior to its effective date. The effective

date of this rule is October 1, 1998, the same date on which the

Goodling Act was signed.

Program Income

Section 203(o)(1) of the Goodling Act amended section 17(m)(3) of

the Child Nutrition Act of 1966 (CNA) (42 U.S.C. 1786(m)(3)) to allow

States to use program income as a source for meeting the FMNP State

matching fund requirement. The conference report accompanying the

Goodling Act [House Report No. 105-786, October 6, 1998] stated that

the term ``program income'' was to be defined as in the Uniform Federal

Assistance Regulations (7 CFR Part 3016.25), thereby permitting

donations by companies and vendor fines for violations in the WIC

Program to be used to meet the State matching fund requirement.

Sections 248.2 and 248.14(a)(1) of the FMNP regulations are hereby

amended to reflect this change. Current section 248.13 defines program

income for FMNP purposes.

Expansion Funds

Section 203(o)(2) of the Goodling Act amended Section 17(m)(6)(C)

of the CNA, (42 U.S.C. 1786(m)(6)(C)) by permitting use of Federal

expansion funds for increases in the value of benefits in lieu of, or

in addition to, the criterion that State agencies must serve additional

recipients in order to receive the expansion funds. It also replaced

the requirement for documentation that justifies the need for an

increase in participation when seeking expansion funds with language

requiring the Department of Agriculture (the Department) to consider

the State agency's need for an increase in funding, and whether the use

of the increased funding would be consistent with serving nutritionally

at-risk persons and expanding program awareness. The law also added a

requirement that the Department consider whether the rate of coupon

redemption will be increased in those State agencies that use expansion

funds to increase the value of benefits provided to individual

recipients. The Department wishes to point out that under section

17(m)(5)(C) 42 U.S.C. 1786(m)(5)(C), the maximum Federal FMNP benefit

level remains unchanged at $20 per recipient, per year. Sections

248.4(a)(19) and 248.14(e) are hereby amended to reflect these changes.

Selection of New State Agencies

Section 203(o)(3) of the Goodling Act eliminated section

17(m)(6)(F) of the CNA (42 U.S.C. 1786(m)(6)(F)) which outlined

specific criteria and preferences for consideration by the Department

in ranking State Plans from new FMNP State agencies for the purposes of

determining the amount of Federal funds to be allocated. Accordingly,

section 248.5 is hereby amended to reflect elimination of the criteria

and preferences.

Executive Order 12866

This final 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.

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). Samuel Chambers,

Jr., Administrator of the Food and Nutrition Service, has certified

that this rule will not have a significant impact on a substantial

number of small entities. This rule provides additional flexibility in

program initiation and operation for FMNP State agencies, some of whom

are small entities.

Paperwork Reduction Act

This final rule imposes no new reporting or recordkeeping

requirements that are subject to OMB review in accordance with the

Paperwork

[[Page 48076]]

Reduction Act of 1995 (44 U.S.C. 3501-20).

Executive Order 12372

The WIC Farmers Market Nutrition Program is listed in the Catalog

of Federal Domestic Assistance Programs under 10.572. For reasons set

forth in the final rule in 7 CFR part 3015, subpart V, and related

notice (48 FR 29115), this program is included in the scope of

Executive Order 12372, which requires intergovernmental consultation

with State and local officials.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,

Civil Justice Reform. This rule is intended to have preemptive effect

with respect to any State or local laws, regulations or policies which

conflict with its provisions or which would otherwise impede its full

implementation. This rule is not intended to have retroactive effect

unless so specified in the DATES paragraph of the final rule. Prior to

any judicial challenge to the application of provisions of this rule,

all applicable administrative procedures must be exhausted.

Public Law 104-4

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law (Pub. L.) 104-4, establishes requirements for Federal agencies to

assess the effects of their regulatory actions on State, local and

tribal governments and the private sector. Under section 202 of the

UMRA, FNS generally must prepare a written statement, including a cost-

benefit analysis, for proposed and final rules with ``Federal

mandates'' that may result in expenditures by State, local or tribal

governments, in the aggregate, or the private sector, of $100 million

or more in any one year. When such a statement is needed for a rule,

section 205 of the UMRA generally requires FNS to identify and consider

a reasonable number of regulatory alternatives and adopt the least

costly, more cost-effective or least burdensome alternative that

achieves the objectives of the rule. This rule contains no Federal

mandates (under the regulatory provisions of Title II of the UMRA) for

State, local and tribal governments or the private sector of $100

million or more in any one year. Thus, this rule is not subject to the

requirements of sections 202 and 205 of the UMRA.

List of Subjects in 7 CFR Part 248

Administrative practice and procedure, Civil rights, Food

assistance programs, Food donations, Grant programs--health, Grant

programs--social programs, Indians, Infants and children, Maternal and

child health, Nutrition, Nutrition education, Penalties, Public

assistance programs, Reporting and recordkeeping requirements, WIC,

Women.

For the reasons set forth in the preamble, 7 CFR part 248 is

amended as follows:

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 the definitions of ``FMNP funds'' and ``Matching

requirement'' are revised to read as follows:

Sec. 248.2 Definitions.

* * * * *

FMNP funds means Federal grant funds provided for the FMNP, plus

the required matching funds.

* * * * *

Matching requirement means State, local or private funds, or

program income 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 less 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 expenditures 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 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.

* * * * *

3. In Sec. 248.4, paragraph (a)(19) is revised to read as follows:

Sec. 248.4 State Plan.

(a) * * *

(19) For States making expansion requests, documentation which

demonstrates:

(i) The need for an increase in funding;

(ii) That the use of the increased funding will be consistent with

serving WIC participants, or persons on a waiting list for WIC

benefits, by expanding benefits to more persons, by enhancing current

benefits, or a combination of both, and expanding the awareness and use

of farmers' markets;

(iii) The ability to satisfactorily operate the existing FMNP;

(iv) The management capabilities of the State agency to expand; and

(v) Whether, in the case of a State agency that intends to use the

funding to increase the value of the Federal share of the benefits

received by a recipient, the funding provided will increase the rate of

coupon redemption.

* * * * *

4. Section 248.5 is revised to read as follows:

Sec. 248.5 Selection of new State agencies.

In selecting new State agencies, the Department will use objective

criteria to rank and approve State plans submitted in accordance with

Sec. 248.4. In making this ranking, the Department will consider the

amount of funds necessary to successfully operate the FMNP in the State

compared with other States and with the total amount of funds available

to the FMNP. Approval of a State Plan does not equate to an obligation

on the part of the Department to fund the FMNP within that State

agency.

5. In Sec. 248.14, paragraphs (a)(1)(i) and (e) are revised to read

as follows.

Sec. 248.14 Distribution of funds.

(a) * * *

(1) * * *

(i) Match amount. As a prerequisite to the receipt of Federal

funds, a State agency must agree to contribute State, local or private

funds, or program income, equal to not less than 30 percent of its

total FMNP cost. 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. The State agency may contribute more than this

minimum amount. State, local or private funds for similar programs as

defined in (248.2 may satisfy the State matching requirement.

* * * * *

(e) Expansion for current State agencies. In providing funds to

State agencies that participated in the FMNP in the previous fiscal

year, the Department shall consider on a case-by-case basis, the

following:

(1) Whether the State agency utilized at least 80 percent of its

prior year food grant. States that did not spend at least 80 percent of

their prior year food grant may still be eligible for expansion funding

if, in the judgment of the Department, good cause existed which

[[Page 48077]]

was beyond the management control of the State, such as severe weather

conditions, or unanticipated decreases in participant caseload in the

WIC Program.

(2) Documentation supporting the funds expansion request as

outlined in Sec. 248.4(a)(19).

* * * * *

Dated: August 23, 1999.

Samuel Chambers, Jr.,

Administrator.

[FR Doc. 99-22903 Filed 9-1-99; 8:45 am]

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