[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] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== Federal Register / Vol. 64, No. 170 / Thursday, September 2, 1999 / Rules and Regulations [[Page 48075]] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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