[Federal Register Volume 70, Number 32 (Thursday, February 17, 2005)]
[Proposed Rules]
[Pages 8040-8043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3072]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 32 / Thursday, February 17, 2005 / 
Proposed Rules  

[[Page 8040]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 170

[Docket No. TM-04-09]


USDA Farmers Market Operating Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Agricultural Marketing Service (AMS) is seeking comments 
on procedures to administer the USDA Farmers Market at 12th Street & 
Independence Avenue, SW., Washington, DC. These procedures would allow 
AMS the means to demonstrate and experiment with direct marketing 
techniques (operate a farmers market), while at the same time educate 
consumers on the significance of small farms, the nutritional benefits 
of fresh fruits and vegetables, and the merits of food recovery. 
Included in this proposed rule is the establishment of vendor criteria, 
selection procedures, and guidelines for governing the operation of the 
USDA Farmers Market. Information collection requirements are also 
included to establish a one-time yearly submission on a required 
application form.

DATES: Comments on this proposed rule must be received by April 18, 
2005. Comments on the information collection requirements of this 
proposed rule must be received by April 18, 2005 to be considered.

ADDRESSES: Interested persons are invited to submit written comments 
concerning the proposed regulations and information collection 
requirements. All comments should be sent to Errol R. Bragg, Associate 
Deputy Administrator, Marketing Services Branch, Transportation and 
Marketing Programs, Agricultural Marketing Service (AMS), USDA, Room 
2646-South, 1400 Independence Avenue, SW., Washington, DC, 20250. 
Comments may also be sent by e-mail to [email protected] or by 
fax to 202/690-0031. State that your comments refer to Docket No. TM-
04-09 or Internet: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Errol R. Bragg, Associate Deputy 
Administrator, Marketing Services Branch on 202/720-8317, fax 202/690-
0031, or by e-mail [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is authorized under the 
Agricultural Marketing Act of 1946. The Act directs and authorizes the 
Secretary of Agriculture to conduct, assist, and foster research, 
investigation, and experimentation to determine the best methods of 
processing, preparation for market packaging, handling, transporting, 
distributing, and marketing agricultural products, 7 U.S.C. 1622(a). 
Moreover, 7 U.S.C. 1622(f) directs and authorizes the Secretary to 
conduct and cooperate in consumer education for more effective 
utilization and greater consumption of agricultural products. In 
addition, 7 U.S.C. 1622(n) authorizes the Secretary to conduct services 
and to perform activities that will facilitate the marketing and 
utilization of agricultural products through commercial channels. 
Pursuant to 7 CFR 2.79, the Under Secretary for Marketing and 
Regulatory Programs has re-delegated these authorities to the 
Administrator of AMS.

Executive Order 12866

    This rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the office of Management and Budget.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), this proposed rule also announces that AMS is seeking 
approval from the Office of Management and Budget (OMB) for a new 
information collection request.
    Title: USDA Farmers Market Operating Procedures.
    OMB Number: 0581-New.
    Expiration Date of Approval: 3 years from date of approval.
    Type of Request: New information collection.
    Abstract: AMS is seeking to establish procedures to administer the 
USDA Farmers Market at 12th & Independence Avenue, SW., Washington, DC, 
under the authority of the Agricultural Marketing Act of 1946 (Act). 
These procedures would allow AMS the means to demonstrate and 
experiment with direct marketing techniques (operate a farmers market), 
while at the same time educate consumers on the significance of small 
farms, the nutritional benefits of fresh fruits and vegetables, and the 
merits of food recovery. Included in this proposed rule would be the 
establishment of vendor criteria, selection procedures, and guidelines 
for governing the operation of the USDA Farmers Market.
    In this proposed rule, information collection requirements include 
a one-time yearly submission of the required information on the 
application form which is included in an Appendix at the end of this 
action.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.08 hours per response.
    Respondents: Farmers and/or vendors completing the application to 
participate in the USDA Farmers Market.
    Number of Responses per respondent: 1.
    Number of Respondents: 20.
    Estimated Total Annual Burden on Respondents: 1.66 hours.
    Comments are invited on: (1) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information would have practical 
utility; (2) the accuracy of the agency's estimate of the burden of the 
proposed collection of information including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Comments concerning the information collection requirements 
contained in this action should reference the Docket Number TM-04-

[[Page 8041]]

09, together with the date and page number of this issue of the Federal 
Register. Comments on this proposed collection of information may be 
sent to Errol R. Bragg at the address listed above or to the Desk 
Officer for Agriculture, Office of Information and Regulatory Affairs, 
OMB, Washington, DC 20503. Comments must be received by April 18, 2005. 
All comments received by AMS will be available for public inspection 
during regular business hours, 8 a.m. to 4:30 p.m. Eastern Time, Monday 
through Friday, at the same address.

Executive Order 13132

    AMS has analyzed this rule under Executive Order 13132, Federalism, 
and have determined that it does not have Federalism implications to 
warrant the preparation of a Federalism assessment under that order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, 
requires Federal agencies to assess the effects of their regulatory 
actions not specifically required by law on state, local and tribal 
governments. This proposed rule contains no Federal mandates that would 
result in the expenditure of $100 million or more for these groups or 
for the private section. Therefore, no written statement or cost-
benefit analysis is required under this act.

Regulatory Flexibility Act

    AMS has reviewed this proposed rule under the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, and determined that it will not have 
a significant economic impact on a substantial number of small 
entities. This program does not impose requirements on small entities 
that are not eligible to participate in the program, and imposes on 
small entities applying for and participating in the program only 
minimum requirements necessary for proper administration and oversight 
of this program. Therefore, a regulatory flexibility analysis is not 
required and was not performed.

Background

    Farmers markets are more than just a place to buy fruits and 
vegetables; they are intermediate social structures linking the urban 
and rural sectors of the economy. They provide consumers with locally-
grown, good-value farm products at a convenient location and provide 
farmers with a profitable, well-organized and operated retail 
marketplace. Farmers markets not only give members of the public direct 
contact with producers, but also provide alternatives to the uniform 
and standardized mass produced, mass marketed products that dominate 
the U.S. economy. Farmers markets are usually located within or near 
urban centers and may be owned and maintained by community development 
groups, farmers cooperative associations or by local, state or the 
federal governments. Generally open for a specific time period 
seasonally or throughout the year, farmers markets may range from an 
open outdoor lot where farmers park their vehicles and display 
products, to enclosed buildings with display counters, lights, heat, 
and refrigeration. The number of farmers markets operating in the 
United States has seen a steady growth in recent years, increasing from 
1,755 in 1994 to over 3,600 operating in 2004.
    AMS developed a Farmer Direct Marketing Action Plan to identify 
USDA's role in supporting marketing opportunities for small farmers and 
to enhance farmers' ability to thrive in their businesses by 
facilitating the marketing of agricultural products. Farmer direct 
marketing, or growers selling their products directly to consumers, has 
become increasingly popular in recent years with farmers markets being 
one of the leading methods for this type of marketing. Farmers markets 
also play a vital role in accomplishing USDA's mission of ensuring that 
all Americans have access to reasonably priced, high-quality, and 
nutritious foods.
    To further this mission, USDA began its own farmers market in 
August of 1996, which has continued to operate and grow progressively 
since that time. The USDA Farmers Market is a producers-only market 
which offers a wide range of farm products such as fruits, vegetables, 
herbs, honey, maple products, baked goods, cut flowers, meats and fresh 
fish. With spiraling interest among consumers and a steady supply of 
farmers products, the market's season increased from four market days 
in 1996 to five months in 2003. In addition to local farmers from 
Maryland, Virginia, and Pennsylvania selling at the market, outreach 
was expanded to include regional farmers from a wider geographical 
area, including the states of West Virginia, Delaware, and North 
Carolina.
    This rule applies only to the USDA Farmers Market at headquarters 
on the corner of 12th Street and Independence Avenue, SW, Washington, 
DC. When the farmers market program began in 1996, and for several 
years thereafter, USDA co-sponsored several farmers markets at 
neighboring Federal agencies in the DC metropolitan area, including the 
Departments of Transportation (DOT), Labor, Energy, State, and the USDA 
Carver Center. Since that time three markets have closed. The DOT and 
USDA Carver Center markets continue to operate, having acquired 
substantial startup and technical assistance from USDA and are now 
self-sustaining.
    In an effort to further educate market customers about the 
nutritional benefits of fresh fruits and vegetables, and the merits of 
food recovery, an informational booth displaying various literature and 
educational materials is set up on the market each week. Materials 
displayed in the informational booth include ``How-To-Buy'' produce 
guides, food pyramids, brochures about the Women, Infants, and Children 
(WIC) program and Food Stamp program and other program-related 
publications. This dissemination of information is joined by several 
USDA agencies, including the Food and Nutrition Service (FNS). One 
successful educational activity is the cooking demonstrations organized 
by FNS. During a cooking demonstration, chefs purchase fresh produce 
from the market and teach how to prepare the foods for a healthy meal. 
In addition, the USDA Employee Services and Recreation Association 
sponsors special activities and events at the market.
    The USDA Farmers Market contributes to other USDA-sponsored 
programs, such as the Food Recovery and Gleaning Initiative, the Women, 
Infants, and Children Farmers Market Nutrition Program, as well as 
other programs of FNS and the Food Safety and Inspection Service.

List of Subjects in 7 CFR Part 170

    Agricultural commodities, Farmers.

    For the reasons set forth in the preamble, it is proposed that 
title 7, chapter 1 of the Code of Federal Regulations be amended as 
follows:
    1. A new subchapter G, consisting of part 170 is added to read as 
follows:

SUBCHAPTER G--MISCELLANEOUS MARKETING PRACTICES UNDER THE AGRICULTURAL 
MARKETING ACT OF 1946

PART 170--USDA FARMERS MARKET

Sec.
170.1 To which farmers market does this rule apply?
170.2 Is the USDA Farmers Market a producer-only market?
170.3 What products may be sold at the USDA Farmers Market?
170.4 Who may participate in the USDA Farmers Market?
170.5 Is there a fee to participate in the USDA Farmers Market?
170.6 How are potential market participants identified for the USDA 
Farmers Market?
170.7 Can I apply if I am not recruited?
170.8 What are the application procedures?

[[Page 8042]]

170.9 What type of information does the application require?
170.10 Must a participant in the market have insurance?
170.11 How are farmers and vendors selected for participation in the 
USDA Farmers Market?
170.12 What are the selection criteria for participation in the USDA 
Farmers Market?
170.13 What are the operating guidelines for the USDA Farmers 
Market?
170.14 What circumstances will prevent participation in the USDA 
Farmers Market?

    Authority: 5 U.S.C. 301; 7 U.S.C. 1621-1627.

PART 170--USDA FARMERS MARKET


Sec.  170.1  To which farmers markets does this rule apply?

    This rule applies only to the USDA Farmers Market at headquarters 
on the corner of 12th Street & Independence Avenue, SW., Washington, 
DC.


Sec.  170.2  Is the USDA Farmers Market a producer-only market?

    Yes. A producer-only market is one that does not offer agricultural 
products that are commercially made, created, or produced, and only 
allows agricultural products that are grown by a principal farmer. A 
producer-only market offers raw agricultural products such as fruits, 
vegetables, flowers, bedding plants, and potted plants. The USDA 
Farmers Market is a producer-only market since only farmers who may 
sell products that they grow or produce will be selected for 
participation. It also allows the sale of value-added products and 
other specialized nonproduce items.


Sec.  170.3  What products may be sold at the USDA Farmers Market?

    Products that may be sold at the market include, but are not 
limited to, fresh, high-quality fruits, vegetables, herbs, honey, jams 
and jellies, cheese, vinegars, cider, maple syrup, fish, flowers, 
bedding plants, and potted plants. USDA inspected meats and poultry 
items also may be sold.


Sec.  170.4  Who may participate in the USDA Farmers Market?

    Members of three groups may participate in the USDA Farmers 
Markets:
    (a) Principal farmers or producers who sell their own agricultural 
products. The principal farmer must be in full control and supervision 
of the individual steps of production of crops including tilling, 
planting, cultivating, fertilizer and pesticide applications (if 
applicable), harvesting and post-harvest handling on its own farm with 
its own machinery and labor.
    (b) Principal farmer or producers who sell their own value-added 
agricultural products. Value-added products may include agricultural 
products that have been enhanced through a modification of the product, 
such as braiding, weaving, hulling, extracting, handcrafting, and the 
like. It also may result from growing the product in a way that is 
acknowledged as safer. Farmers and vendors selling these types of 
products must prepare them predominately with material they have grown 
or gathered.
    (c) Nonproduce vendors. A limited number of nonproduce vendors may 
be selected by the Market Management to sell specialized products that 
enhance the market atmosphere and historically attract customers to a 
farmers market. These specialized vendors, such as bakers, may be 
exempted from the reselling restrictions that apply to the farmers and 
vendors described in paragraphs (a) and (b) of this section.


Sec.  170.5  Is there a fee to participate in the USDA Farmers Market?

    No, there are no fees charged to participate in the market.


Sec.  170.6  How are potential market participants identified for the 
USDA Farmers Market?

    Potential market participants are recruited by the AMS Market 
Management through local farm organizations in the Washington D.C. 
metropolitan area and regional state departments of agriculture 
including, Virginia, West Virginia, Maryland, Delaware, and 
Pennsylvania. Upon receiving a list of potential farmers and vendors 
from the organizations and the state departments of agriculture, an 
information packet, which includes an application and this rule, will 
be mailed to each potential participant identified by the contacts.


Sec.  170.7  Can I apply if I am not recruited?

    Yes. Interested persons may call or write USDA to request an 
information packet even if they are not recruited. Those interested may 
write USDA/AMS/TM/MSB, Room 2646-South Building, 1400 Independence 
Avenue, SW., Washington, DC, 20250, or call (202) 720-8317. They may 
also call the USDA Farmers Market Hotline at 1-800-384-8704 to leave a 
message to have a packet mailed or faxed. They may also visit the Web 
site at http://www.ams.usda.gov/farmersmarkets/ to review the selection 
criteria, the operating rules, and to receive an application 
electronically.


Sec.  170.8  What are the application procedures?

    In January of each year, prospective and returning participants 
must submit to USDA a completed application for participation in the 
upcoming market season. Each application will include a copy of this 
rule, which includes the selection criteria and operating guidelines. 
Each applicant also will certify that each is the owner or 
representative of the farm or business submitting the application.


Sec.  170.9  What type of information does the application require?

    The application for participation in the USDA Farmers Market will 
provide Market Management with information on contacts, farm location, 
type of farming operation, types of products grown, and business 
practices, including insurance coverage.


Sec.  170.10  Must a participant in the market have insurance?

    There is no requirement for a participant to have insurance; 
however, USDA asks that participants with insurance provide insurance 
information for our records.


Sec.  170.11  How are farmers and vendors selected for participation in 
the USDA Farmers Market?

    USDA reviews all applications and selects participants based 
primarily on the type of farmer or vendor (i.e. fruit, vegetable, herb, 
baker) and secondly, on the specific types of products to be sold. The 
selection of the participants is conducted by the Market Management to 
ensure a balanced product mix of fruits, vegetables, herbs, value-added 
products, and baked goods.


Sec.  170.12  What are the selection criteria for participation in the 
USDA Farmers Market?

    The selection criteria are designed to ensure a consistently high 
level of quality and diverse products, while operating in the 
constraints of space available at the market site. The criteria are:
    (a) Member of one of the three participant groups specified in 
Sec.  170.4 of this part. The participant must be a producer-only 
farmer or producer, seller of value-added products, or specialized 
nonproduce vendor.
    (b) Participant offers a product that adds to a product mix. Market 
Management will ensure that a balanced mix of fresh fruits and 
vegetables will be maintained throughout the season. Final selection of 
fruit and vegetable producers will be made based on their ability to 
ensure a wide range of fresh farm products throughout the season.

[[Page 8043]]

    (c) Willingness to glean. Participants should commit to supporting 
the USDA food gleaning/food recovery initiative. This commitment 
requires farmers and vendors to donate surplus food and food products 
at the end of each market day to a local nonprofit organization 
identified by USDA. Questions about tax deductions for gleaning should 
be referred to the Internal Revenue Service or a tax advisor. Receipts 
for donated foods may be obtained from the receiving nonprofit 
organization.
    (d) Commitment to market. Participants must commit to the entire 
market season and be willing to participate on a regular basis.
    (e) Grandfather provision. Market Management reserves the right to 
select several farmers or vendors based on previous participation in 
the program, consistency in providing quality products, and compliance 
with operating guidelines.


Sec.  170.13  What are the operating guidelines for the USDA Farmers 
Market?

    (a) Market operation. The Market will be held in parking court 
9 of the USDA Headquarters Complex located on the corner of 
12th Street and Independence Avenue, SW., Washington, DC. Selling will 
not begin before 10 a.m. and will end promptly at 2 p.m. each market 
day. All participants must be in place, setup and ready to sell by 10 
a.m. Due to space restrictions at the site, late arrivals will be 
located at Market Management's discretion. All vehicles must vacate the 
market site no later than 3:00 p.m.
    (b) Notification of attendance. Each participant must call USDA 
within 48 hours of a market day if they cannot attend. Failure to 
provide proper and timely notification may result in termination of the 
participation in the market.
    (c) Participant space. One vehicle is permitted per space; all 
other vehicles must be removed from the immediate market premises. One 
space is 16w x 17d feet, and all trucks must fit within that area. 
There is only room for 15 spaces.
    (d) Signage. Participants must clearly display the name of their 
farm/business and post prices for all items being sold.
    (e) Clean-up. Participants are responsible for cleaning all trash 
and waste within and around their allotted space. Garbage bins are 
provided on the market site for this purpose.
    (f) Cooperative marketing. Participants are permitted to share 
space with another participant or sell another's products if the 
arrangement is deemed by Market Management as beneficial to the market. 
A co-op must be pre-approved by Market Management and will not be 
accepted if similar products are already sold by existing farmers or 
vendors.
    (g) Farm/business visits. Market Management may visit farm/business 
locations to verify compliance with market criteria and guidelines. 
Participants should submit a map and directions to their farm/
businesses with their market applications.
    (h) Conduct on Federal property. Participants must comply with 
Subpart 20.3 of the Federal Property Management Regulations, ``Conduct 
on Federal Property,'' 41 CFR 20.3.


Sec.  170.14  What circumstances will prevent participation in the USDA 
Farmers Market?

    (a) Efforts will be made to accommodate all who apply to 
participate in the market. However, Market Management may deny 
participation in the market because of insufficient space or excess 
supply of the products to sell, failure to meet the stated criteria, or 
the participant's noncompliance with the operating guidelines or 
regulations.
    (b) Participants who sell before the 10 a.m. opening time will be 
restricted from participating in the market following their second 
violation. A written warning will be given to the participant for the 
first violation of this guideline. After the second violation occurs, a 
letter of reprimand will be given to the participant restricting their 
participation for the next immediate market day.
    (c) Participants who arrive after the 10 a.m. opening time may be 
restricted from participating in the market following their second 
violation. A written warning may be given to the participant for the 
first violation of this guideline. After the second violation occurs, a 
letter of reprimand may be given to the participant restricting their 
participation for the next immediate market day.

    Dated: February 14, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-3072 Filed 2-16-05; 8:45 am]
BILLING CODE 3410-02-P