Effective Date of Rule: Thirty-one days after filing.

     Purpose: Farmers' market nutrition program (FMNP), the rule revisions add farm stores to the FMNP and apply plain talk principles to clarify existing language.

     Citation of Existing Rules Affected by this Order: Amending WAC 246-780-001 through 246-780-060.

     Statutory Authority for Adoption: RCW 43.70.700.

      Adopted under notice filed as WSR 10-13-172 on June 23, 2010.

     Changes Other than Editing from Proposed to Adopted Version: Minor changes were made to clarify the term clients throughout the chapter. Language was added to clarify that the FMNP provides checks for clients to purchase locally grown fruits and vegetables and does not provide the actual produce to clients. A duplicate definition of farmers market was removed, and plain talk principles were applied to language in a few additional areas.

     A final cost-benefit analysis is available by contacting Janice K. Boden, Department of Health, WIC Nutrition Program, P.O. Box 47886, Olympia, WA 98504-7886, phone (360) 236-3610, fax (360) 236-2345, e-mail janice.boden@doh.wa.gov.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 4, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 5, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 6, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 9, Repealed 0.

     Date Adopted: October 15, 2010.

B. White

for Mary C. Selecky

Secretary

OTS-3224.6

AMENDATORY SECTION(Amending WSR 00-07-129, filed 3/22/00, effective 4/22/00)

WAC 246-780-001   What is the ((WIC)) purpose of the farmers' market nutrition program?   (1) The purpose of the ((WIC)) farmers' market nutrition program (FMNP) is to:

     (a) Provide access to locally grown, fresh, nutritious, unprepared fruits and vegetables to women, infants over five months of age, and children, who participate in the special supplemental nutrition program for women, infants, and children (((WIC))); and

     (b) Expand the awareness and use of farmers' markets where consumers can buy directly from the grower.

     (2) The ((WIC farmers' market nutrition program)) FMNP is administered by the Washington state department((s)) of health ((and agriculture)).

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-001, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-001, filed 12/18/95, effective 1/18/96.]

     (1) "Authorized" or "authorization" means an ((eligible grower and/or farmers' market)) applicant has met the selection criteria and has been issued a signed ((an agreement/))contract with the department allowing participation in the ((WIC farmers' market nutrition program))FMNP.

     (2) "Authorized farm store" means a store or stand authorized by the department which is located at the site of agricultural production and is owned, leased, rented, or sharecropped and operated by an authorized grower where produce is sold directly to consumers.

     (3) "Authorized farmers' market" means a farmers' market authorized by the department that has a minimum of five or more authorized growers who assemble at a defined location for the purpose of selling their produce directly to consumers.

     (4) "Authorized grower" means an individual authorized by the department who grows a portion of the produce that they sell at a Washington state authorized farmers' market or authorized farm store.

     (5) "Broker" or "wholesale distributor" means an individual or business who exclusively sells produce grown by others. There is an exception for an individual employed by ((a)) an authorized grower ((who is qualified to participate in the WIC farmers' market nutrition program or is employed by a)) or nonprofit organization to sell produce on behalf of ((qualified)) authorized growers.

     (((3))) (6) "Check" means a negotiable financial instrument issued by the FMNP to clients to purchase eligible foods.

     (7) "Contract" ((or "agreement")) means a written legal document binding the contractor and the department to designated terms and conditions.

     (((4) "Contractor" means a farmers' market who has a signed contract with the department to participate in the WIC farmers' market nutrition program.

     (5))) (8) "Cut herbs" means fresh herbs with no medicinal value that are not potted ((or bagged)).

     (((6))) (9) "Department" means the Washington state department((s)) of health ((and agriculture)).

     (((7))) (10) "Disqualification" means ((the act of)) terminating the ((agreement and/or)) contract of an authorized farmers' market, authorized grower ((and/))or ((farmers' market from the WIC farmers' market nutrition program)) authorized farm store for noncompliance with ((program)) FMNP requirements.

     (((8))) (11) "Eligible foods" means locally grown, unprocessed (except for washing), fresh, nutritious fruits, vegetables, and cut herbs.

     (((9) "Eligible grower" means an individual or business who grows a portion of the produce that they sell at Washington state authorized farmers' markets.

     (10) "Farmers' market" means a membership of five or more growers who assemble at a defined location for the purpose of selling their produce directly to consumers.

     (11))) (12) "FMNP" ((or "program")) means the ((WIC)) farmers' market nutrition program.

     (((12) "Locally grown" means Washington grown or grown in an adjacent county of Idaho or Oregon.

     (13) "Local WIC agency" means the contracted agency or clinic where a client receives WIC services and WIC farmers' market checks.

     (14) "Program coordinator")) (13) "Local WIC agency" means the contracted agency or clinic where a client receives WIC services and farmers' market checks.

     (14) "Locally grown" means Washington grown or grown in an adjacent county of Idaho or Oregon.

     (15) "Market manager" means an individual designated by the farmers' market ((manager ()) management or ((market)) board member((s))) who is responsible for overseeing the market's participation in the ((WIC farmers' market nutrition program)) FMNP.

     (((15))) (16) "Trafficking" means the buying or exchanging of ((WIC)) farmers' market checks for cash, drugs, or alcohol.

     (((16) "Validating" means stamping the WIC farmers' market check in the designated box with appropriate market and grower identification numbers using the stamper provided by the department.))

     (17) "WIC" or "WIC nutrition program" means the federally funded special supplemental nutrition program for women, infants, and children administered in Washington state by the department of health.

     (18) "((WIC)) Client" ((or "client")) means a ((pregnant, breast feeding, or postpartum)) woman, infant, or child receiving ((WIC)) FMNP benefits.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-010, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-010, filed 12/18/95, effective 1/18/96.]

     (a) Apply ((for authorization,)) as a farmers' market on a form provided by the department;

     (b) Meet the selection criteria((,)) in subsection (2) of this section;

     (c) Complete training on FMNP requirements; and ((sign))

     (d) Receive a contract ((with)) from the department signed by both the department and the applicant.

     (2) Farmers' market selection ((is based on the following)) criteria. The applicant must:

     (a) ((The local WIC agency in the farmers' market service area must participate in the WIC farmers' market nutrition program.

     (b) The farmers' market must)) Have a designated market manager on-site during operating hours((.));

     (((c) The farmers' market must)) (b) Have been in operation ((a minimum of)) at least one year. ((If there is a market currently participating in the program in an area where a new market has applied to participate,)) The one-year requirement may be waived((.

     (d) The farmers' market must keep a current list of eligible growers, including the farmer's name, business address, telephone number, and crops to be sold July through October. The farmers' market must agree to provide this list to the state WIC office on request.

     (e) The farmers' market must)) by the department based on capacity and need;

     (c) Be located within twenty miles of the local WIC agency((.

     (f) A minimum of five eligible));

     (d) Have at least five authorized growers ((must participate)) participating in the farmers' market each year((.

     (g) The farmers' market must));

     (e) Agree to comply with training sessions and monitor visits((.

     (h) The farmers' market must)); and

     (f) Agree to comply with all terms and conditions specified in the contract.

     (3) ((The WIC farmers' market nutrition program is not required to authorize all applicants.)) The department is not required to authorize all applications. Selection is also based on community need.

     (4) An authorized farmers' market must reapply at the end of the current contract; however, neither the department nor the participant has an obligation to renew a contract.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-020, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-020, filed 12/18/95, effective 1/18/96.]

     (((a))) (1) Comply with the ((WIC farmers' market nutrition program)) FMNP requirements and the terms and conditions of ((the farmers' market)) their contract;

     (((b))) (2) Accept training and technical assistance on ((WIC farmers' market nutrition program)) FMNP requirements from department staff;

     (((c))) (3) Provide in person training to authorized growers, market employees and ((eligible growers in person on WIC farmers' market nutrition program)) volunteers on FMNP requirements including, but not limited to: Eligible foods, check redemption procedures, civil rights requirements and the complaint process;

     (((d))) (4) Be accountable for the actions of ((market)) employees ((involved in the WIC farmers' market nutrition program)) and volunteers;

     (((e) Obtain signed grower agreements from eligible growers before they accept WIC farmers' market checks;

     (f))) (5) Keep a current list of authorized growers, including the authorized grower's name, business address, telephone number, and crops to be sold during the farmers' market season. The authorized farmers' market must provide this list to the department on request;

     (6) Ensure that ((WIC farmers' market)) FMNP checks are ((redeemed)) accepted only by ((eligible)) authorized growers for locally grown eligible foods;

     (((g) Allow only growers selling locally grown produce to accept WIC farmers' market checks;

     (h) Ensure that WIC farmers' market checks are redeemed only for eligible foods;

     (i) Ensure eligible growers redeem WIC farmers' market checks within valid dates;

     (j) Ensure eligible growers have and display the "WIC Farmers' Market Checks Welcome Here" sign each market day when at authorized markets;

     (k))) (7) Report to the department anyone that accepts FMNP checks without authorization from the department;

     (8) Refuse to ((validate)) process any ((WIC farmers' market)) FMNP checks ((from ineligible growers;

     (l) Agree to designate a program coordinator to validate WIC farmers' market checks with the appropriate market and grower identification numbers;

     (m) Comply with federal and state nondiscrimination laws;

     (n) Ensure that WIC farmers' market nutrition program clients receive the same courtesies as other customers;

     (o) Agree to provide the department with any information it has available regarding its participation in the WIC farmers' market nutrition program;

     (p) Agree to keep WIC farmers' market client information confidential;

     (q) Agree to allow the department to monitor the farmers' market for compliance with program requirements;

     (r) Notify the department immediately if and when market operations cease; and

     (s) Report any suspected noncompliance with WIC farmers' market nutrition program requirements to the department.

     (2) Neither the department nor the contractor have an obligation to renew a contract.)) taken by unauthorized individuals;

     (9) Ensure FMNP checks are stamped with the appropriate market and authorized grower identification numbers;

     (10) Ensure authorized growers have and display the "WIC Farmers' Market Checks Welcome Here" sign each day;

     (11) Comply with federal and state nondiscrimination laws;

     (12) Ensure that clients receive the same courtesies as other customers;

     (13) Provide the department, upon request, with any information it has available regarding its participation in the FMNP;

     (14) Keep client information confidential;

     (15) Allow the department to monitor the authorized farmers' market for compliance with FMNP requirements;

     (16) Notify the department immediately if authorized farmers' market operations cease; and

     (17) Notify the department immediately of any authorized farmers' market, authorized grower or authorized farm store suspected of noncompliance with FMNP requirements.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-022, filed 3/22/00, effective 4/22/00.]

     (4) Sign the grower agreement and return it to the department for signature and to be assigned a grower identification number.)) (1) To become authorized to participate in the FMNP an applicant must:

     (a) Apply as a grower on a form provided by the department;

     (b) Meet the grower selection criteria in subsection (2) of this section;

     (c) Complete training on FMNP requirements provided by either an authorized farmers' market manager or the department; and

     (d) Receive a contract from the department signed by both the department and the applicant.

     (2) Grower selection criteria. The applicant must:

     (a) Grow a portion of the produce they have for sale;

     (b) Sell locally grown produce at either the authorized farmers' market or the authorized farm store, or both as identified on the completed application; and

     (c) Agree to follow the terms and conditions of the grower contract.

     (3) The department is not required to authorize all applications. Selection is also based on community need.

     (4) An authorized grower must reapply at the end of the current contract; however, neither the department nor the participant has an obligation to renew a contract.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-025, filed 3/22/00, effective 4/22/00.]

     (a) Apply as a farm store on a form provided by the department;

     (b) Meet the farm store selection criteria in subsection (2) of this section;

     (c) Complete training on FMNP requirements provided by either an authorized farmers' market manager or the FMNP; and

     (d) Receive a contract from the department signed by both the department and the applicant.

     (2) Farm store selection criteria. The applicant must:

     (a) Be located at the site of agricultural production and grow, at that location, a portion of the produce they have for sale;

     (b) Sell locally grown produce; and

     (c) Agree to follow the terms and conditions of the contract.

     (3) An authorized farm store must reapply at the end of the current contract; however, neither the department nor the participant has an obligation to renew a contract.

     (4) The department is not required to authorize all applicants. Priority for authorization will be given to applicants located in areas without an authorized farmers' market.

[]

     (1) Comply with the ((WIC farmers' market nutrition program)) FMNP requirements and the terms and conditions of the ((grower agreement)) contract;

     (2) Accept training ((on WIC farmers' market nutrition program)) and technical assistance on FMNP requirements and ((assure)) ensure that all persons working ((in the authorized grower's stall)) or volunteering with the authorized grower or at the authorized farm store at the location(s) specified in the contract are trained as well. Training may be provided by either a farmers' market manager or the department and includes, but is not limited to: Eligible foods, check processing and redemption procedures, civil rights requirements and the complaint process;

     (3) Be held accountable regarding FMNP purchases and requirements for the actions of all persons working ((in the authorized grower's stall regarding WIC farmers' market nutrition program purchases)) or volunteering with the authorized grower or at the authorized farm store at the location(s) specified in the contract;

     (4) Accept ((WIC farmers' market)) FMNP checks only for eligible foods;

     (5) Accept ((WIC farmers' market)) FMNP checks only at authorized farmers' markets or at authorized farm stores at the location(s) specified in the contract;

     (6) Accept ((WIC farmers' market checks within the valid dates of the program;

     (7) Redeem WIC farmers' market checks by the date imprinted on the check;

     (8))) FMNP checks within the valid dates of the FMNP and redeem checks by the date imprinted on the check;

     (7) Display the "WIC Farmers' Market Checks Welcome Here" sign ((each market day when at authorized markets)) when selling eligible foods at authorized farmers' markets and authorized farm stores;

     (((9))) (8) Provide ((the WIC farmers' market nutrition program)) clients with the full amount of product for the value of each ((WIC farmers' market)) FMNP check;

     (((10))) (9) Charge ((WIC farmers' market nutrition program)) clients the same prices as other customers;

     (((11) Have the WIC farmers' market checks validated by the program coordinator at the farmers' market where the checks were accepted before cashing or depositing them;

     (12))) (10) Make produce available to clients that is the same quality as that offered to other customers;

     (((13))) (11) Comply with federal and state nondiscrimination laws;

     (((14))) (12) Treat ((WIC farmers' market customers)) clients as courteously as other customers;

     (((15))) (13) Cooperate with department staff in monitoring for compliance with ((program)) FMNP requirements and provide information on request;

     (((16))) (14) Reimburse the department for ((WIC farmers' market)) mishandled FMNP checks ((taken improperly));

     (((17))) (15) Not collect sales tax on ((WIC farmers' market)) FMNP check purchases;

     (((18))) (16) Not seek ((payment)) reimbursement from ((WIC farmers' market nutrition program)) clients for checks not paid by the department;

     (((19))) (17) Not give cash back for purchases less than the value of the FMNP checks; and

     (((20))) (18) Not trade, barter or otherwise use ((WIC)) farmers' market checks to purchase foods from other growers or pay for market fees or other business costs.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-028, filed 3/22/00, effective 4/22/00.]

     (2) ((Ineligible items include, but are not limited to, baked goods, cheeses, cider, crafts, dairy products, dried fruits, dried herbs, dried vegetables, eggs, flowers, fruit juices, honey, jams, jellies, meats, nuts, potted herbs, seafood, seeds, and syrups.)) Federal regulations do not allow clients to buy the following items with FMNP checks:

     (a) Baked goods;

     (b) Cheeses;

     (c) Cider;

     (d) Crafts;

     (e) Dairy products;

     (f) Dried fruits;

     (g) Dried herbs;

     (h) Dried vegetables;

     (i) Eggs;

     (j) Flowers,

     (k) Fruit juices;

     (l) Honey;

     (m) Jams;

     (n) Jellies;

     (o) Meats;

     (p) Nuts;

     (q) Potted herbs;

     (r) Seafood;

     (s) Seeds; and

     (t) Syrups.

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-030, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-030, filed 12/18/95, effective 1/18/96.]

     (2) Noncompliance includes, but is not limited to:

     (a) Failing to display the "WIC Farmers' Market Checks Welcome Here" sign each ((market)) day when selling at authorized farmers' markets or authorized farm stores;

     (b) Providing unauthorized food((,)) or nonfood items((, or other items)) to ((WIC farmers' market nutrition program)) clients in ((lieu of, or in addition to, eligible foods)) exchange for the FMNP check;

     (c) Charging the ((program)) department for foods not received by the client;

     (d) Providing rain checks or credit to clients in ((a WIC farmers' market nutrition program)) an FMNP transaction;

     (e) Giving change to ((WIC farmers' market nutrition program)) clients if the purchase is less than the value of the ((WIC farmers' market)) FMNP check;

     (f) ((Validating WIC farmers' market checks without having authorization from the department;

     (g))) Accepting ((WIC farmers' market)) FMNP checks without having a signed ((agreement)) contract with the department;

     (((h))) (g) Accepting ((WIC farmers' market)) FMNP checks at unauthorized farmers' markets or unauthorized farm stores;

     (((i) Failing to get the WIC farmers' market checks validated with the market and grower identification numbers by the farmers' market program coordinator where the checks were accepted;

     (j))) (h) Collecting sales tax on ((WIC farmers' market)) FMNP purchases;

     (((k))) (i) Seeking ((restitution)) reimbursement from ((program)) clients for checks not paid by the department; and

     (((l) Accepting and/or validating checks outside of the program dates; and

     (m))) (j) Violating the rules of this chapter or the provisions of the contract ((and/or agreement)).

     (3) Authorized farmers' markets ((and)), authorized growers, and authorized farm stores found in noncompliance will be notified by the ((department and given the opportunity to correct the problem)) department in writing.

     (4) If ((a farmers' market or grower)) an authorized farmers' market, authorized grower or authorized farm store is subsequently found in noncompliance for the same or a similar reason, the department may impose sanctions, such as monetary penalties or disqualification, without giving the opportunity to correct the problem.

     (5) When the department notifies ((a)) an authorized farmers' market ((or)), authorized grower or authorized farm store of ((anything)) a pending adverse action that affects their ((participation)) authorization status in the ((program)) FMNP, the department ((shall give)) must mail written notice ((not less than)) at least fifteen days before the effective date of the action. The notice ((shall)) must state what action is being taken, the effective date of the action, and the procedure for requesting an appeal hearing.

     (6) The department may deny payment to ((a)) an authorized grower or an authorized farm store for mishandling ((WIC farmers' market)) FMNP checks.

     (7) The department may seek reimbursement from ((a)) an authorized grower or authorized farm store for payments made on ((improperly handled WIC farmers' market)) mishandled FMNP checks.

     (8) Monetary penalties ((shall)) must be paid to the department within the time period specified in the notice. The department ((shall)) may refer ((farmers' markets and/or growers)) an authorized grower or authorized farm store who fails to pay within the specified time period to a commercial collection agency. ((In addition, the department may disqualify a farmers' market or grower.))

     (9) ((A)) An authorized farmers' market ((or)), authorized grower or authorized farm store that has been disqualified from the ((WIC farmers' market nutrition program must)) FMNP may reapply at the end of the disqualification period ((to be considered for authorization)).

     (10) Any trafficking in ((WIC farmers' market)) FMNP checks (((exchanging checks for cash, drugs, or alcohol))) in any amount ((shall)) must result in disqualification.

     (11) ((Farmers' markets and growers)) An authorized farmers' market, authorized grower or authorized farm store who commits fraud or other unlawful activities are liable for prosecution according to ((program)) FMNP regulations. (7 C.F.R. 248.10(k).)

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-040, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-040, filed 12/18/95, effective 1/18/96.]

     (2) If the action being appealed is a disqualification of ((a)) an authorized farmers' market, the authorized farmers' market ((shall)) must cease ((validating WIC)) processing farmers' market checks for all authorized growers ((participating in the market)) effective the date specified in the sanction notice.

     (3) If the action being appealed is a disqualification of ((a)) an authorized grower or authorized farm store, the authorized grower ((shall)) or authorized farm store must cease accepting ((WIC farmers' market)) FMNP checks effective the date specified in the sanction notice. In addition, the authorized farmers' market ((shall)) must cease ((validating)) processing checks for the affected authorized grower. Payments ((shall)) must not be made for any ((WIC farmers' market)) FMNP checks submitted ((by a grower)) for payment during a period of disqualification.

     (4) The department may, at its discretion, permit the authorized farmers' market ((or)), authorized grower or authorized farm store to continue participating in the ((program)) FMNP pending the appeal hearing outcome. The authorized farmers' market, authorized grower or authorized farm store may be required to repay funds for FMNP checks redeemed while waiting for the outcome of the hearing, depending on the hearing outcome.

     (5) A request for an appeal hearing ((shall)) must be in writing and ((shall)) must:

     (a) State the issue raised;

     (b) Contain a summary of the authorized farmers' market's ((or)), authorized grower's, authorized farm store's or applicant's position on the issue, indicating whether each charge is admitted, denied, or not contested;

     (c) State the name and address of the authorized farmers' market ((or)), authorized grower, authorized farm store or applicant requesting an appeal hearing;

     (d) State the name and address of the attorney representing the authorized farmers' market ((or)), authorized grower, authorized farm store or applicant if any;

     (e) State the ((farmers' market or grower's)) need for an interpreter or other special accommodations, if necessary; and

     (f) Have a copy of the notice from the department attached.

     (6) A request for an appeal ((shall)) must be filed at the Department of Health, Adjudicative Clerk's Office, ((1107 Eastside,)) P.O. Box 47879, Olympia, WA 98504-7879. The request ((shall)) must be made within twenty-eight days of the date the authorized farmers' market ((or)), authorized grower, authorized farm store or applicant received the ((department)) department's notice.

     (7) The decision concerning the appeal ((shall)) must be made within sixty days from the date the request for an appeal hearing was received by the adjudicative clerk's office. The time ((shall be extended by as many days as)) may be extended if all parties agree ((to with good cause)).

[Statutory Authority: RCW 43.70.120 and 7 C.F.R. 248. 00-07-129, § 246-780-060, filed 3/22/00, effective 4/22/00. Statutory Authority: RCW 43.70.120. 96-01-085, § 246-780-060, filed 12/18/95, effective 1/18/96.]

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