[Federal Register Volume 64, Number 170 (Thursday, September 2, 1999)]
[Rules and Regulations]
[Pages 48075-48077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22903]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 170 / Thursday, September 2, 1999 / 
Rules and Regulations  

[[Page 48075]]


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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]
BILLING CODE 3410-30-P