[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Rules and Regulations]
[Pages 76129-76133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24427]



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  Federal Register / Vol. 70, No. 246 / Friday, December 23, 2005 / 
Rules and Regulations  

[[Page 76129]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 170

[Docket No. TM-04-09]
RIN 0581-AC39


USDA Farmers Market Operating Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Agricultural Marketing Service (AMS) is publishing 
procedures to administer the U.S. Department of Agriculture (USDA) 
Farmers Market at 12th Street & Independence Avenue, SW., Washington, 
DC. These procedures allow AMS the means to demonstrate and experiment 
with direct marketing techniques (operate a farmers market), while at 
the same time educating consumers on the significance of small farms, 
the nutritional benefits of fresh fruits and vegetables, and the merits 
of food recovery. This final rule includes guidelines for the 
establishment of vendor criteria, selection procedures, and guidelines 
for governing the operation of the USDA Farmers Market. Also 
established is a one-time yearly submission information collection in a 
required application form.

DATES: Effective December 23, 2005.

FOR FURTHER INFORMATION CONTACT: 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; 202/720-8317, fax 
202/690-0031; or e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Prior published document in this proceeding: 
Proposed Rule and invitation for comments on proposed USDA Farmers 
Market guidelines and information collection, Published February 17, 
2005 [70 FR 8040].

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.

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.

Background

    The Agricultural Marketing Act of 1946 authorizes this final rule. 
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.
    On February 17, 2005, AMS published a proposed rule in the Federal 
Register [70 FR 8040] inviting comments on a proposal of guidelines to 
establish (a) Procedures to administer the USDA Farmers Market at 12th 
Street & Independence Avenue, SW., Washington, DC; (b) rules for the 
establishment of vendor criteria, selection procedures, and guidelines 
for governing the operation of the USDA Farmers Market; and (c) a one-
time yearly submission information collection in the form of a required 
application form.
    Interested parties were provided 60 days to comment on the proposed 
guidelines that applied only to the USDA Farmers Market at headquarters 
on the corner of 12th Street and Independence Avenue, SW., Washington, 
DC.

Summary of Comments

    Six (6) comments were received from the public; two by mail, the 
remaining by e-mail. Of the six comments received, three (3) were from 
students from Tufts University, one (1) was from an individual, and the 
remaining two (2) provided no comments on the proposed rule.
    Three of the four significant comments were supportive of AMS's 
efforts and the proposed guidelines and procedures. The commenters also 
indicated that the information collection was necessary and ensured the 
Agency's performance of its responsibility to properly maintain a 
functioning market.
    The comments received fall largely into a broad category that 
involves administrative and procedural issues. One issue addresses the 
USDA Farmers Market hours of operation, the second involves the data 
collection estimated time requirement, and the third addresses where 
products sold at the market come or are produced from.

USDA Farmers Market Hours of Operation

    Two commenters thought that the hours of operation, 10 a.m.-2 p.m., 
were too short or inconvenient for those in the immediate vicinity of 
the market.
    This rule applies only to the USDA Farmers Market at USDA 
headquarters just outside of the USDA complex buildings in Washington, 
DC. There are four USDA complex buildings: the USDA Whitten and South 
buildings, located on either side of the Independence Avenue, SW., 
between 14th and 12th Streets; the third, USDA Cotton Annex, located at 
the corner of 12th and C Streets; and the fourth, the USDA Forestry 
building, is located on the corner of 14th and Independence. The USDA 
Farmers Market, operating June-October annually, is located in a 
parking area at the corner of 12th Street and Independence Avenue, SW., 
Washington, DC.
    There is a ``mall'' area on the other side of the USDA Whitten 
building, which is a large grassy area which extends between the 
Washington Monument and the U.S. Capital building. Buildings on the 
opposite side

[[Page 76130]]

of this mall area are Smithsonian museums.
    The remaining closest buildings in the vicinity of the USDA Farmers 
Market and USDA complex are office buildings and museums: The Holocaust 
Museum, a Smithsonian museum, the Department of Energy, and two U.S. 
Treasury buildings.
    The majority of shopping customers at the USDA Farmers Market are 
Federal employees working in this immediate vicinity and tourists 
visiting various museums in the area.
    Beginning with the first market in 1996, the USDA Farmers Market 
operation hours of 10 a.m.-2 p.m. were mutually agreed upon by 
participating farmers and AMS. Federal employees generally ventured 
from work to the market just before, during, and after lunch hours from 
11 a.m.-1:30 p.m. This shopping pattern remains unchanged.
    Farmers participating in the market drive in from Virginia, 
Maryland, and Pennsylvania. Generally speaking, traffic into and out of 
Washington, DC is much lighter just after 9 a.m. and before 3 p.m. The 
one hour window, from 2-3 p.m. in the afternoon, allows participating 
farmers and other vendors an opportunity to break-down their tents, 
pack-up or glean any remaining food items, clean-up their assigned 
selling market spaces, and leave before traffic begins to increase.
    With this information in mind, the 10 a.m.-2 p.m. hours of 
operation was and is the logical choice for farmers and visiting 
employee customers in the vicinity. AMS plans no changes to the 
market's hours of operation from 10 a.m.-2 p.m.

Estimated Time Required for Data Collection

    One commenter was concerned that the new information collection, 
the required USDA Farmers Market Application form, would take longer 
than an average of 0.08 hours or 4.8 minutes to complete.
    Specifically, the information requested on the application form 
includes contact information including the farmer and farm names, other 
farm employees, and the farm mailing address, phone, and e-mail. This 
information is critical for AMS to provide timely information to each 
farmer about the market's operating guidelines. Additionally, an 
unexpected condition such as weather related storms or other security 
issues could require AMS to close the market. Should this ever happen 
in the future, AMS will be able to contact each farmer prior to the 
date of the closure.
    Although not required for participation, AMS also requests the 
number of farm acreage (numeric response), whether the farm is 
certified organic (yes/no response), and whether liability insurance 
coverage (name of company) is maintained on the product and farm (yes/
no responses).
    The farm acreage information is gathered to ensure that vendors can 
and are producing the products provided on the application. AMS also 
visits farm locations to verify compliance with market criteria and 
guidelines. Information regarding certified organic farms is gathered 
to assist market managers in determining a diverse mix of products 
offered. The insurance liability coverage information, which includes 
off-farm liability insurance and product liability insurance, is asked 
to protect USDA from lawsuits and customers from financial harm caused 
by accidents. This information is gathered only for AMS's records.
    Lastly a list of over 45 fruits, vegetables, and other products has 
been provided on each form. Farmers are asked to provide the month the 
corresponding products will be available for sale at the market. This 
information provides AMS with information about the type, variety, and 
availability of products during the months of June-October.
    AMS began the voluntary use of this form in 1998 and rarely does 
the information requested require farmers and vendors to look-up their 
responses. AMS plans to make no changes to the estimated time burden 
for participants to complete the application form. The questions are 
general in nature and each farmer should already know his or her 
responses.

Products Sold at the USDA Farmers Market

    One commenter expressed concern regarding whether the products 
produced from China would make their way into this market.
    AMS recruits farmers and vendors through local farm organizations 
in the Washington DC metropolitan area and State Departments of 
Agriculture in the mid-Atlantic region 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, is mailed to each potential participant 
identified by the contacts.
    AMS utilizes selection criteria designed to ensure a consistently 
high level of quality and diverse products are available at the market, 
while operating in the constraints of space available at the market 
site as defined in section 170.12. The criteria include:
    (a) The participant must be a producer-only farmer or producer, 
seller of value-added products, or specialized non-produce vendor, as 
defined in section 170.4.
    (b) AMS selects participants to ensure that a balanced mix of wide 
range of fresh farm fresh fruits and vegetables will be maintained 
throughout the season.
    (c) 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.
    (d) Participants must commit to the entire market season and be 
willing to participate on a regular basis.
    (e) AMS reserves the right to select several farmers or vendors 
based on previous participation in the program (grandfather provision), 
consistency in providing quality products, and compliance with 
operating guidelines.
    AMS also provides the USDA Farmers Market operating guidelines 
(section 170.13) to each participant, and visits farms/businesses as 
necessary.
    Because AMS is involved in the farmer/vendor selection and visits 
these local farm operations, we do not agree that products brought to 
the market will be produced from China.

Paperwork Reduction Act

    In accordance with Office of Management and Budget (OMB) 
regulations [5 CFR 1320], which implement the Paperwork Reduction Act 
of 1995 (44 U.S.C. Chapter 35), the information collection and 
recordkeeping requirements that are imposed by this rule were submitted 
and approved by OMB under 0581-0229. An Agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number.
    Form TM-28, USDA Farmers Market Application, was described in the 
proposed rule as requiring a one-time yearly submission of the 
information on the application with information on contacts, farm 
location, type of farming operation, types of products grown, and 
business practices, including insurance coverage. This signed 
application also provides a list of over 45 fruits, vegetables, and 
other products produced by farmers and the months the corresponding 
products, as requested

[[Page 76131]]

for AMS to know when products will be available for sale at the market.
    As a result of the comments received, the USDA Farmers Market 
Application has been revised to clarify two existing requests for 
information.
    First, the application will be revised to request the names of 
other farmers or employees that will be participating at the market 
with the farm contact person, instead of a list of other farmers and/or 
employees who work at the applicant farm. This information is required 
for USDA security personnel to assist in providing security about who 
will have access to the USDA property.
    Second, the application will be revised to request the estimated 
months the corresponding products will be available for sale at the 
market. This information will provide AMS with an estimate not only as 
to when, but how long each of the products may be available for sale at 
the market.
    These revisions and clarifications have no effect on the burden or 
description of the form. The information collection will be used only 
by AMS staff to (a) communicate efficiently and effectively with, and 
(b) provide operating guidelines and procedures to farmers and vendors 
participating in the USDA Farmers Market.

Government Paperwork Elimination Act Compliance

    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.

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 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 reviewed the 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.

List of Subjects in 7 CFR Part 170

    Agricultural commodities, Farmers.


0
For the reasons set forth in the preamble, Title 7, chapter 1 of the 
Code of Federal Regulations is amended as follows:
0
1. Add a new subchapter G, consisting of part 170 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?
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.


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 non-produce 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 non-produce vendors may 
be selected by 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 AMS market 
management through local farm organizations in the

[[Page 76132]]

Washington DC metropolitan area State Departments of Agriculture from 
the mid-Atlantic region 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 are available at the market, 
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 non-
produce 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.
    (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 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 
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.

[[Page 76133]]

    (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: December 19, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-24427 Filed 12-22-05; 8:45 am]
BILLING CODE 3410-02-P