[Federal Register: December 12, 2006 (Volume 71, Number 238)] [Rules and Regulations] [Page 74617-74654] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr12de06-13] [[Page 74617]] ----------------------------------------------------------------------- Part III Department of Agriculture ----------------------------------------------------------------------- Food and Nutrition Service ----------------------------------------------------------------------- 7 CFR Part 249 Senior Farmers' Market Nutrition Program Regulations; Final Rule [[Page 74618]] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 249 RIN 0584-AD35 Senior Farmers' Market Nutrition Program Regulations AGENCY: Food and Nutrition Service (FNS), USDA. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule implements the provision of the Farm Security and Rural Investment Act of 2002 that gives the Secretary of Agriculture the authority to promulgate regulations for the operation and administration of the Senior Farmers' Market Nutrition Program (SFMNP), thereby making it a permanent program rather than a competitive grant. The purposes of the SFMNP are to provide resources in the form of fresh, nutritious, unprepared, locally grown fruits, vegetables, and herbs from farmers' markets, roadside stands, and community supported agriculture programs to low-income seniors; to increase the domestic consumption of agricultural commodities by expanding or aiding in the expansion of domestic farmers' markets, roadside stands, and community supported agriculture programs; and to develop or aid in the development of new and additional farmers' markets, roadside stands, and community supported agriculture programs. DATES: This rule becomes effective on January 11, 2007. FOR FURTHER INFORMATION CONTACT: Debra Whitford or Donna Hines, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 305-2746, OR Debbie.Whitford@fns.usda.gov, or Donna.Hines@fns.usda.gov. SUPPLEMENTARY INFORMATION: Executive Order 12866 This rule has been determined to be Significant and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866. Regulatory Impact Analysis As required for all rules that have been designated as Significant by the Office of Management and Budget, a Regulatory Impact Analysis was developed for this rule. It is attached as an appendix to this final rule. Need for Action Congress established the SFMNP in Section 4402 of Public Law 107- 171 to provide resources in the form of fresh, nutritious, unprepared, locally grown fruits, vegetables, and herbs from farmers' markets, roadside stands, and community supported agriculture programs (CSAs) to low-income seniors; increase the domestic consumption of agricultural commodities by expanding or aiding in the expansion of domestic farmers' markets, roadside stands, and CSA programs; and develop or aid in the development of new and additional farmers' markets, roadside stands, and CSA programs. This final rule provides operating guidelines for the SFMNP, consistent with legislative intent. The requirements of the final USDA rule for the SFMNP are similar to two USDA interventions: The WIC Farmers' Market Nutrition Program (FMNP), for individuals participating in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) and those individuals on a waiting list for WIC benefits; and the Senior Farmers' Market Nutrition Pilot Program (SFMNPP), administered by USDA as a pilot program in 2001. The SFMNP has been administered by USDA as a competitive grant program since Fiscal Year (FY) 2001. Establishing rules for the SFMNP similar to the FMNP and SFMNP eases the administrative burden for USDA, State agencies, farmers, and program recipients. Benefits Benefits to Seniors Low-income seniors will be afforded nutrition education as well as a coupon benefit ranging in value from $20 to $50 per annum, which will be used to purchase fresh, unprepared fruits, vegetables, and herbs intended to improve seniors' diets. Seniors, and ultimately participating farmers, in each State agency will benefit from the total Federal grant to the State agencies minus the amount that State agencies spend on administration--up to 10 percent of the total grant. It is possible that seniors will not eat additional fresh fruits and vegetables, but rather will substitute the fruits and vegetables that they would have purchased with their own funds with fruits and vegetables purchased with SFMNP coupons. You, et al., ``Consumer Demand for Fresh Fruits and Vegetables in the United States'' (1998) found that the demand for fresh fruits and vegetables in the United States was responsive to price changes, but not changes in income. Benefits to Farmers Farmers will collect revenue from redeemed coupons up to the total Federal grants to State agencies for food costs (the total amount of revenue collected will depend also on the amount of the grant State agencies use to cover administrative costs). Additional revenue may be reaped as seniors might spend their own money (and in some States, food stamps) to purchase additional goods at the farmers' markets. Farmers will also benefit from the exposure of new populations to farmers' markets, roadside stands and CSAs, which could lead to increased revenues. In FY 2005, the SFMNP operated at 2,663 farmers' markets, 2,001 roadside stands and 237 CSAs. USDA's Economic Research Service (ERS) reported in 2001, that the SFMNP has not been as effective [as envisioned] in developing new farmers' markets, produce stands, and community supported agricultural programs or in expanding existing ones. Nevertheless, ERS suggests that given evidence from the WIC FMNP, the SFMNP could increase the number of farmers' markets, roadside stands, and CSAs in the long run. Costs The costs associated with the SFMNP are based on the following assumptions: Funding for FY 2007-FY 2011 is maintained at the current authorized level of $15 million annually (assumes no carryover funds are available in 2007-2011); State agencies use 10 percent of the Federal grant for administration in FY 2007-FY 2011; State agencies provide an average benefit level of $17.50 to recipients (as shown in Table 4 on page 25); and The poverty rate among seniors remains constant over the period of analysis. FNS also assumes for the purpose of this analysis that total funding and benefit levels will not be indexed for inflation; therefore, their value has been deflated using projections of the Consumer Price Index--Urban index for fresh fruits and vegetables (1989 baseline). Based on these assumptions, we estimate there will be little change in the percent of SFMNP eligibles served in the analysis period, due to the large number of eligibles nationally. Because the resources devoted to the SFMNP are likely to be small in comparison to the size of the eligible population, the permanent Program will not enable State agencies to reach the majority of those eligible. However, the minimum and maximum benefit levels [[Page 74619]] put forth in this final rule will help enable State agencies to serve as many eligible individuals as possible. The final rule allows for future growth, should additional funds be made available. Further, State agencies are allowed to contribute their own funds to enhance their Federal SFMNP grants. There were five State agency grantees that added State funds to their SFMNP food benefits in FY 2005. Regulatory Flexibility Act This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Nancy Montanez Johner, Under Secretary for Food, Nutrition, and Consumer Services, has certified that this rule will not have a significant economic impact on a substantial number of small entities. The provisions of this rulemaking are applicable to all State and local agencies, farmers, farmers' markets, roadside stands, and community supported agriculture programs, regardless of their size or of the volume of SFMNP business they conduct. Public Law 104-4, Unfunded Mandate Reform Act of 1995 (UMRA) Title II of the UMRA 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 to 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 final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of Sections 202 and 205 of the UMRA. Executive Order 12372 The Senior Farmers' Market Nutrition Program is listed in the Catalog of Federal Domestic Assistance under No. 10.576. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 that requires intergovernmental consultation with State and local officials. Executive Order 12988 This 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 that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the Dates paragraph of the preamble of the final rule. Prior to any judicial challenge to the application of the provisions of this rule, all applicable administrative procedures must be exhausted. In the Senior Farmers' Market Nutrition Program, the administrative procedures are as follows: Local agencies, farmers, farmers' markets, roadside stands, and community supported agriculture programs--State agency hearing procedures issued pursuant to 7 CFR 249.16; Applicants and participants--State agency hearing procedures pursuant to 7 CFR 249.16; Sanctions against State agencies (but not claims for repayment assessed against a State agency) pursuant to 7 CFR 249.17-- administrative appeal in accordance with 7 CFR 249.16; and Procurement by State or local agencies--administrative appeal to the extent required by 7 CFR 3016.36. Federalism Summary Impact Statement Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section 6(b)(2)(B) of Executive Order 13132. FNS has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required. Civil Rights Impact Analysis FNS has reviewed this rule in accordance with FNS Regulation 4300- 4, ``Civil Rights Impact Analysis,'' to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, and the characteristics of SFMNP participants, FNS has determined that none of the provisions in this rule have a discernible impact on minorities, women, or persons with disabilities that are likely to result in inequitable treatment. FNS specifically prohibits the State agencies, and their cooperators, that administer the SFMNP from engaging in actions that discriminate against any individual in any of the protected classes (see 7 CFR 249.7 for the nondiscrimination policy in the SFMNP). Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with the SFMNP regulations set forth at Sec. 249.7. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. The information collections in this rule are being reviewed by OMB and will not be effective until they have received OMB approval. Once they have received OMB approval, FNS will publish a notice in the Federal Register. E-Government Act Compliance FNS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Background History of the SFMNP--FY 2001 Through FY 2004 USDA's Commodity Credit Corporation (CCC) established the Senior Farmers' Market Nutrition Program (SFMNP) in November 2000 as a pilot program (65 FR 65825, Nov. 2, 2000). A brief history of the program from FY 2001-FY 2004 was included in the preamble to the proposed rule. A total of $15 million was made available for the pilot SFMNP, in which grant awards ranging from $9,000 to $1.2 million were made to 30 States, 5 Indian tribal governments, and the District of Columbia. Nearly 420,000 low-income seniors participated in the [[Page 74620]] SFMNP that first year. In FY 2002, Public Law 107-78 (the Agriculture, Rural Development, Food and Drug Administration and Related Agencies Appropriations Act) provided $10 million from FNS' Commodity Assistance Program account to continue the SFMNP for a second year. An additional $5 million was provided from CCC funds by Section 4402 of the Farm Security and Rural Investment Act of 2002 (the Farm Bill), Public Law 107-171 (7 U.S.C. 3007). The Farm Bill also authorized the SFMNP for FY 2003 through FY 2007, provided funding at $15 million for each of those years, and gave FNS the authority to develop regulations as deemed necessary for the SFMNP. The basic structure of the SFMNP has remained unchanged since its inception, with only slight modifications in the competitive grant process. By the end of FY 2004, 47 State agencies were participating in the program, and over 800,000 seniors had received SFMNP benefits during that year's market season. The information below brings the history of the SFMNP up to date since the proposed rule was published. SFMNP--FY 2005 Through FY 2006 Just prior to the beginning of FY 2005, OMB clarified to FNS that SFMNP funds that were not expended in the previous fiscal year could not be carried over for allocation in the current fiscal year, i.e., that only $15 million could be allocated to grantees. To accommodate this clarification, FNS reduced each participating SFMNP State agency's grant award for FY 2005 by 10.2 percent. No funds were available to support the expansion of any current grantee's existing program, or the addition of any new State agencies that might have been interested in initiating a new SFMNP. Additionally, one State agency discontinued its SFMNP operation due to the unavailability of State funds. The SFMNP funds that had been initially allocated to this grantee were then redistributed proportionally to the remaining 46 SFMNP State agencies. Despite the reduction in their grant awards, the 46 State agency grantees not only continued to operate the SFMNP, but many were also able to leverage State, local, or private funds to make up the difference. Public Law 108-447 (Rural Development, Food and Drug Administration and Related Agencies Appropriations Act 2005) included a provision that allows FNS to allocate any unspent funds from FY 2005, as well as the $15 million appropriated for FY 2006, to eligible SFMNP grantees. The availability of these unspent funds is expected to restore the grant awards for the 46 current SFMNP State agencies to levels approaching the grants that were awarded in FY 2004, but there will still be insufficient funds to solicit grant applications from new State agencies. Consistency With the WIC Farmers' Market Nutrition Program (FMNP) USDA's FNS has administered the FMNP since its inception as a pilot program in 1988, through its transition to an authorized independent program when the WIC Farmers' Market Nutrition Act of 1992 (Pub. L. 102-314) amended Section 17(m) of the Child Nutrition Act of 1966 (42 U.S.C. 1786(m)). The FMNP provides coupons to eligible WIC participants (or to individuals on WIC waiting lists) for the purchase of fresh, nutritious, unprepared fruits, vegetables and herbs at farmers' markets and, at the State agency's option, at roadside stands or farm stands. Many of the State agencies that have received SFMNP grant awards since FY 2001 were already established as administering agencies for the FMNP in that State. Based on the similar natures of the FMNP and the SFMNP, and in an effort to create consistency between the two programs, this final rule is constructed on the framework of the FMNP regulations, for which the final rule was published in the Federal Register on September 27, 1995 (60 FR 49739). General Summary of Comments Received on the SFMNP Proposed Rule The SFMNP Proposed Rule was published in the Federal Register on May 26, 2005 (70 FR 30558), with a 90-day comment period. A total of 415 comments were received on the Proposed Rule, over half of which were from program participants, and generally expressed support for the SFMNP's establishment as a permanent nutrition assistance program. One comment was opposed to the proposed rule in all of its provisions, and another commenter suggested that the SFMNP not be changed in any aspect beyond the addition of available funding. The remaining comments were submitted from a variety of sources, including current SFMNP State agency grantees, State agencies not currently participating in the Program but interested in doing so, local agencies, farmers, professional organizations and associations, Congressional delegations, advocacy groups, nutritionists, and private citizens. The major comments are addressed by topic in further detail throughout this preamble. What follows is a discussion of each section of the final SFMNP rule, including the major provisions set forth in each section; a brief summary of the comments received that addressed these issues; and FNS' rationale for either modifying each section in the final rule, or retaining its provisions as initially proposed. The section numbers referenced in the following discussion shall be sections of Title 7, Code of Federal Regulations, unless otherwise indicated. 1. General Purpose and Scope (Sec. 249.1) While the essential purpose of the SFMNP is very similar to that of the FMNP, it differs from the FMNP purpose in one significant aspect-- it includes community supported agriculture (CSA) programs (as defined in Sec. 249.2) as allowable outlets for accepting SFMNP coupons or funds. CSA programs, while fairly familiar to the small farmer and sustainable agriculture communities, have not previously been associated with FNS programs. A total of 220 comments were received in support of converting the SFMNP from a competitive grant program to permanent status, and of the stated purposes of the program. In fact, close to 200 form letters were sent in by participating seniors in a single county. The purposes and scope of the SFMNP are retained in this final rule unchanged from the proposal. As directed by the provisions of Public Law 107-171 (7 U.S.C. 3007), the purpose and scope of the SFMNP are to improve/enhance the diets of low-income seniors by enabling them to obtain fresh fruits and vegetables from farmers' markets, roadside stands, and CSA programs, and to develop or expand these outlets by broadening their customer bases. 2. Definitions (Sec. 249.2) Most of the definitions used in this rulemaking for the SFMNP are either the same as those used in the FMNP or are definitions used in the SFMNP competitive grant program. The majority of these definitions were either not addressed by commenters at all, or were supported by general comments to that effect. Therefore, with the exception of the definitions addressed below, all of the other definitions contained in Sec. 249.2 of this final rule are retained as proposed. ``Bulk purchase.'' A number of SFMNP grantees have used a modified CSA program model in which bulk quantities of certain produce items, such as apples or sweet potatoes, were purchased directly from authorized [[Page 74621]] farmers by the State agency. These items were then equitably divided among SFMNP participants, and distributed directly to them, either at a central distribution point (such as a local senior center) or through some type of home delivery network. Such a program model was found to be very successful, but was not addressed in the proposed rule. Three commenters argued that the bulk purchase option should be retained in the permanent SFMNP, and FNS concurs with this position, as long as it is carefully managed to ensure that all other program requirements are met, e.g, only eligible foods are purchased in bulk for distribution, farmers from whom the produce is purchased are authorized by the State agency, and the value of the produce provided to SFMNP participants does not exceed the allowable maximum of $50 per participant. Therefore, a definition for ``bulk purchase'' is added to the list of regulatory definitions at Sec. 249.2; additional information regarding the bulk purchase option is also provided in Section 10 of this preamble. ``Eligible foods.'' In the proposed rule, FNS defined ``eligible foods'' as fresh, nutritious, unprepared, locally grown fruits, vegetables, and herbs for human consumption. Three commenters suggested that the proposed definition of ``eligible foods'' be broadened to include fruits and vegetables that are not otherwise available through local production, as well as other nutritionally healthful items such as dried fruits and raw nuts. Another 6 commenters supported the addition of locally-produced honey to the list of eligible foods, and 2 comments supported allowing dried beans for purchase. One comment suggested the inclusion of any edible farm produce, with an emphasis on variety, while another proposed that State agencies be given the authority to determine what food items should be considered to be eligible for purchase under the SFMNP. Finally, one commenter suggested that FNS should provide a master list of eligible foods from which State agencies would select the items that could be purchased with SFMNP benefits or funds. While FNS understands the motivation behind the suggested addition of such items as honey, dried fruits or beans, and raw nuts to the list of eligible SFMNP foods, it has no legislative authority to make such additions. The Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171, also known as the Farm Bill) specifically stipulates that SFMNP funds are to be used for the purchase of fresh, unprepared fruits and vegetables. State agencies do have a considerable amount of latitude in determining which fruits and vegetables are allowed for purchase within the Federal definition of eligible foods. It is not realistic to expect FNS to provide a master list of eligible foods beyond what is included in the current definition; FNS believes that individual State agencies are in the best position to know which fruits and vegetables are appropriate for sale within that State. Further, horticultural advances are constantly being made, and FNS would not want to exclude a potentially eligible fruit or vegetable from inclusion by establishing an exhaustive--and possibly inaccurate--list of eligible foods for the SFMNP. Therefore, the definition of ``eligible foods'' for the SFMNP will be retained in this final rule as proposed. ``Locally grown.'' In the proposed rule, ``locally grown'' was defined as foods that are grown within the borders of the State that the project serves. State agencies also have the option to define ``locally grown'' to mean foods grown in areas of States adjacent to that State, as long as such areas are part of the United States, and/or to use a more stringent definition than the one established by FNS. Two comments were received that addressed the proposed definition of ``locally grown''. One commenter expressed concern that the definition as proposed is not sufficiently restrictive to ensure that the interests of local (i.e., within-State) farmers are protected, and suggested that the definition be strengthened to include a mandatory percentage of locally grown produce that must be offered for purchase through the SFMNP by authorized farmers, markets, and/or CSAs. The second commenter suggested that State agencies be allowed to define ``locally grown'' with no federally-imposed restrictions. While FNS encourages all participating State agencies to promote the sale of locally-grown eligible foods to the greatest extent possible, we also realize that circumstances beyond the local farmers' control may occur to make it impossible to meet the demands of SFMNP participants entirely, at any given point in the market season. Once SFMNP coupons have been issued, or CSA shares assigned, a commitment has been made by the State agency to the participant that sufficient produce will be available to him or her in exchange for the full amount of benefits provided, should the participant want to use them. Thus it becomes incumbent upon the authorized farmer(s) to find a way to meet that demand. FNS believes that each individual State agency is in the best position to determine how much of the produce offered must actually be grown by the farmer who accepts the SFMNP coupons in a transaction. Consistent with the FMNP, SFMNP State agencies will be responsible for defining the percentage of produce that must be grown by an authorized farmer. However, as clearly stated in the proposed rule, FNS believes that it is important for an authorized farmer to produce at least some portion of the fruits and vegetables that she/he offers for sale. This requirement is intended to support small farmers. Therefore, the definition of ``locally grown'' is retained in this final rule as set forth in the proposed rule. ``Participant.'' The term ``participant'' was suggested by a commenter as a replacement for the term ``recipient'' that was included in the proposed rule. As the commenter pointed out, ``participant'' is consistent with the term used in other FNS-administered nutrition assistance programs. FNS agrees; therefore, the definition of ``recipient'' that was initially set forth in the proposed rulemaking is now used to define ``participant'' for SFMNP purposes, the term ``recipient'' is removed from Sec. 249.2, and the term ``participant'' replaces ``recipient''throughout this final rule. 3. Administration (Sec. 249.3) This section of the rule delegates to FNS the responsibility within USDA for administering the SFMNP, and delegates the responsibility for direct administration of the program to State agencies. It also requires each State agency to submit an annual State Plan of Operations, and to execute written agreements between the administering (lead) State agency and any other State, local, or nonprofit agencies or entities involved in operating any aspect of the SFMNP. Finally, each State agency must ensure that sufficient staff is available to administer the SFMNP efficiently and effectively. Three comments were received that addressed this section of the proposed rulemaking, and most of them were essentially supportive of the administrative structure set forth in the proposed rule. One commenter proposed that the final rule include a formal delegation of authority to operate and/or administer the SFMNP at the local level, but this provision is already included as a State agency option at Sec. 249.3(d). Therefore, Sec. 249.3 is retained in this final rule as proposed. [[Page 74622]] 4. State Plan Provisions (Sec. 249.4) In establishing the SFMNP as a permanent program, Congress gave FNS the authority to set out basic standards and requirements for its operation. Consistent with other FNS nutrition assistance programs, as proposed, each State agency that desires to receive a SFMNP grant, including State agencies currently participating in the SFMNP, will need to submit a State Plan of Operation for approval by FNS. These State Plans will be due by November 15 of each year. Four commenters misunderstood this particular provision of the proposed rule, and wrote to suggest that submission of a SFMNP State Plan should not be required until the final SFMNP rule is published. It was never FNS' intent, nor was it suggested in the SFMNP proposed rule, that State Plans would be required prior to publication of the final rule. Therefore, the first SFMNP State Plans will be due to FNS Regional Offices by February 15, 2007, for the FY 2007 market season, and by November 15 of each year thereafter. The State plan process replaces the grant application process that was used for the SFMNP since its inception in FY 2001. One commenter suggested that the SFMNP continue to be administered as a competitive grant program. This is not a feasible option for future oversight of the SFMNP; once the status of the SFMNP as a permanent program has been established, its administration at the Federal level is expected to be consistent with other FNS nutrition assistance programs, i.e., State plans are submitted by and approved for each participating State agency, and the direct oversight and day-to-day management of the program is provided through the seven FNS Regional Offices. Therefore, this final rule sets out at Sec. 249.4(a) the specific elements that must be included in each State Plan submitted. A complete list of State Plan requirements is contained at Sec. 249.4. As indicated above, Sec. 249.4(a) sets out specific requirements for information that must be included in the State Plan of Operation. Many of the requirements included in the SFMNP proposed rule were new to SFMNP operators, and reflected administrative requirements that generated a considerable number of comments in opposition to the requirements. Listed below are discussions of most of the proposed information to be included in SFMNP State Plans, the comments received, and FNS' decision regarding each proposed provision. Some of the larger administrative issues, such as income eligibility determination for SFMNP applicants, are addressed in greater detail under their respective Sections. Number and addresses of authorized participating markets, roadside stands, and CSA programs (Sec. 249.4(a)(8)(i))--Two commenters pointed out that it is unreasonable to require the actual addresses of all authorized SFMNP outlets in November as part of the State Plan before the market season actually begins the following spring or summer. As noted, markets and roadside stands are not always permanent locations, and circumstances may change during the intervening months that cause these locations to change. Commenters noted that providing the number of outlets by type (market, roadside stand, CSA) that are expected to be authorized for the coming season, based on the prior year's authorizations and/or projected additions such as new markets that are being solicited for inclusion in the SFMNP, should be sufficient. FNS agrees with commenters that providing the addresses of market outlets for the prior year is sufficient. Therefore, this final is revised in Sec. 249.4(a)(8)(i) to require a State agency to provide in its State Plan the number and addresses of authorized market outlets that participated in the SFMNP during the prior year. A technical oversight in this paragraph of the proposed rule has also been corrected in this final rule by adding the number of individual farmers authorized to accept SFMNP coupons or CSA program funds to this requirement. Listing of all SFMNP certification/issuance sites, including a map outlining the service area and proximity of markets, roadside stands, and/or CSA programs to certification/issuance or distribution sites (Sec. 249.4(a)(8)(ii))--Similar to the requirement for the addresses of all authorized outlets, 4 commenters pointed out that this provision is burdensome and unrealistic, given that reasonable access to the authorized outlets where participants will be able to use their program benefits is essential to the fundamental success of the SFMNP. Again, FNS agrees that providing a list of SFMNP certification and issuance sites, including a map, for the upcoming market season is not reasonable. Therefore, this final is revised in Sec. 249.4(a)(8)(ii) to require a State agency to include in its State Plan the SFMNP certification and issuance sites, including a map outlining the service area and proximity of authorized market outlets that participated in the SFMNP during the prior year. Determination of areas to be served (Sec. 249.4(a)(9)(i))--In the proposed rule, FNS included a provision to require the State agency to describe in its State Plan how it intended to select the area(s) within the State where SFMNP services would be offered. One commenter suggested that FNS should allow State agencies to exercise their own discretion in making such decisions. The limited amount of funding that is available for the SFMNP currently forces State agencies to make such determinations very carefully, and it has become evident over the past 5 years of operation that the considerations most important to FNS (higher concentrations of eligible persons and greater access to farmers' markets, roadside stands, and/or CSA programs) are already in use by the State agencies that received SFMNP grant awards. While we agree that State agencies have discretion to decide how to select the areas within the State to offer SFMNP benefits, FNS would like this information and believes State agencies should provide it information as part of the State Plan. Therefore, this requirement is retained in this final rule. Method for preventing and identifying dual participation (Sec. 249.4(a)(9)(iv))--Six commenters opposed the dual participation requirement, pointing out that such a requirement is unnecessary in a program as small as the SFMNP. These commenters also stated that because the majority of SFMNP participants come into the program by virtue of their certification for or participation in another assistance program (such as Food Stamps or the Commodity Supplemental Food Program (CSFP)), the requirement designed to prevent dual participation in the SFMNP is redundant, because such programs already have mechanisms in place to detect and prevent dual participation. FNS believes that the commenters may have misunderstood the intention of this requirement, and would like to clarify that such mechanisms are not intended to prevent a senior from participating in two different programs for which she/he may be eligible, such as CSFP and SFMNP. State agencies are still required, however, to have in place a mechanism to assure that dual participation within the SFMNP, i.e., receipt of SFMNP benefits from more than one local agency or program model, can be detected and prevented. Such a mechanism does not have to be complicated or elaborate, and may be combined with a procedure already in place in a program for which participation or certification confers automatic SFMNP eligibility. Therefore, the requirement regarding dual [[Page 74623]] participation at Sec. 249.4(a)(9)(iv) is retained in this final rule as proposed. 5. Selection of New State Agencies (Sec. 249.5) This section of the proposed rule stated that only State agencies, as defined in Sec. 249.2, would be eligible to receive grants for and administer the SFMNP. It also set forth FNS' intention to grandfather in as State agencies in the permanent SFMNP those State agencies that participated in the SFMNP during the previous fiscal year (i.e., FY 2006) of the competitive grant program. In regard to the determination of entities that should be eligible to serve as SFMNP State agencies, one commenter expressed concern that local Area Agencies on Aging (AAA) would not be allowed to continue to administer the SFMNP. This is not the case. Since its inception, only a bona fide State agency or a federally recognized Indian Tribal Government has been eligible to receive funds as a SFMNP grantee. However, State agency grantees have also, since the inception of the SFMNP, had the option to allow local agencies such as AAAs to take on the day-to-day administrative and operational functions of the SFMNP. That option was expressly described in the proposed rule, and is retained in this final rule at Sec. 249.5. Three comments were received that opposed the proposal to grandfather in those State agencies currently participating in the SFMNP. These commenters argued that everyone should be given a fair opportunity to apply for the Program, and that the grandfathering clause is unfair to State agencies that have been unable to join the SFMNP. While funding limitations have made it impossible to accept applications from prospective SFMNP State agencies for the past 2 years, we disagree with the concern of overall unfairness. The grandfather clause is designed to facilitate the continuation of existing programs. Therefore, the clause is retained as proposed. Any new State agency interested in participating in the SFMNP is welcome to submit a State Plan of Operations to the appropriate FNS Regional Office by the regulatory deadline. Such prospective State agencies should keep in mind, however, that FNS approval of a SFMNP State Plan does not guarantee the availability of Federal funds to support the program. 6. Participant Eligibility (Sec. 249.6) a. Categorical Eligibility In Sec. Sec. 249.2 and 249.6(a)(1) of the proposed rule, FNS defined a person categorically eligible for the SFMNP (a ``senior'') as an individual 60 years of age or older. Indian tribal organizations administering the SFMNP could deem Native Americans who are 55 years of age or older as categorically eligible for SFMNP benefits. State agencies would have the option to establish a higher age limit, such as 62 or 65 years of age. Four commenters specifically stated their support for these minimum age requirements. One additional commenter opposed the requirement for proof of age as an eligibility determinant, but no such requirement was included in the proposed rulemaking, nor has one been added to this final rule. Although two comments were received opposing the option for State agencies to establish a higher age limit, FNS believes that this option is important to State agencies as a potential caseload management tool. At Sec. 249.6(a)(1), FNS also proposed to allow State agencies the option to deem disabled individuals under 60 years of age, who live in housing facilities occupied primarily by older individuals where congregate nutrition services are provided, as categorically eligible for SFMNP benefits. SFMNP State agencies opting to serve such disabled individuals would be responsible for weighing the relative benefits of serving those persons in certain housing facilities against serving additional elderly participants who are 60 years of age and older in the same, or possibly another, service delivery area. Four comments were received that addressed this provision, most of which were generally supportive. In fact, only one commenter opposed the ``mandate'' to serve persons less than 60 years old--a mandate that does not exist in either the proposed or this final rule. The provisions at Sec. 249.6(a)(1) regarding categorical eligibility for the SFMNP are therefore retained as set forth in the proposed rule. b. Residency Requirement Section 249.6(a)(2) of the proposed rule would have allowed State agencies to establish a residency requirement for SFMNP applicants, to determine a service area for any local agency, and to require an applicant to reside within that service area at the time of application. No durational or fixed residency requirement could be imposed. Only one comment was received related to the residency requirement for the SFMNP, and that comment reflected support for the provision. Therefore, this provision is retained as set forth in the proposed rule. c. Income Eligibility In developing the SFMNP proposed rule, FNS identified and considered three major aspects to the determination of income eligibility for the SFMNP: 1. What should be the maximum allowable household income? 2. Should FNS allow automatic income eligibility based on an individual's participation in other programs? If so, which programs should be included? 3. How much documentation or verification of income eligibility should be required for SFMNP applicants? Five comments were received that generally opposed any and all income eligibility requirements. FNS does not support this view, because of the need for responsible stewardship and fundamental program accountability. Income eligibility guidelines. As described in the preamble to the SFMNP proposed rule, most participating SFMNP State agencies use a maximum household income of 185 percent of the annual poverty income guidelines. In FY 2005, 36 of the 46 participating SFMNP State agencies used an income eligibility standard of 185 percent of the poverty guidelines, and another 7 State agencies linked SFMNP income eligibility to the maximum income limit used in the Commodity Supplemental Food Program (CSFP), i.e., 130 percent (7 CFR 247.7(a)(3)). A limited number of other variations existed, ranging from 150 to 200 percent of the poverty income guidelines. Therefore, in the proposed rule, FNS proposed a maximum household income of 185% of the poverty guidelines. Although over twice as many of the comments received pertaining to this provision suggested the option of using an income eligibility standard higher than 185 percent as supported the 185 percent limit (15 and 7, respectively), FNS does not support the option of a higher standard, even on a case-by-case basis, because a fundamental principle of the SFMNP is to serve as many low-income seniors as possible. Therefore, in Sec. 249.6(a)(3), FNS retains the maximum income limit of 185 percent for the SFMNP as set forth in the proposed rule. Automatic income eligibility based on participation in other programs. Under the competitive grant model of the SFMNP, many grantees use participation in other means-tested programs, such as the Food Stamp Program, the CSFP, and the Food Distribution Program on Indian Reservations (FDPIR), to determine eligibility for the SFMNP. All of these programs use an income eligibility limit [[Page 74624]] that is at or below 130 percent of poverty. FNS proposed to continue to allow State agencies to deem applicants automatically eligible for the SFMNP based on participation/certified eligibility to receive benefits in another means-tested assistance program, as determined by the State agency, as long as income eligibility is set at or below the SFMNP maximum income, i.e., 185 percent of the annual poverty income guidelines, and some form of documentation is required to establish income eligibility for that program. All 3 of the comments received addressing this provision were supportive. One commenter went on to suggest that persons eligible for the Pharmaceutical Assistance to the Aged and Disabled (PAAD) Program also be deemed income eligible for the SFMNP. As long as the process for establishing eligibility for the PAAD is consistent with the requirements described above, and the individual is otherwise (categorically and residentially) eligible to participate in the SFMNP, FNS has no objection should a State agency wish to include the PAAD among its group of programs that confer automatic income eligibility for the SFMNP. Documentation of income eligibility. Proposed Sec. 249.6(b) would have required SFMNP applicants who are not automatically income eligible for the program based on participation in or certified eligibility for another means-tested program to provide documentation of family income at certification. This requirement was strongly opposed in 123 comment letters, representing every commenter category. They expressed concern about imposing an administrative burden of this nature for such a relatively small annual benefit. One comment stated that the amount of time and effort anticipated to be necessary to obtain proof or documentation of income would be excessive given the value of the benefit offered--and the cost is unknown. This commenter went on to observe that the self- identification of need for food assistance, self-declaration of participation in another means-tested assistance program, or self- declaration of income should be the minimum requirement for accessing a $20 to $50 annual SFMNP benefit. FNS finds the arguments put forth in these comments to be compelling, and has not included in the final rule a requirement for income documentation from all SFMNP applicants who are not deemed otherwise income eligible. Instead, as set forth in this final rule, such applicants may be certified if they sign an affidavit affirming that their household income does not exceed the State agency's maximum income limit for their individual household size, except that State agencies offering a benefit greater than $50 per participant through a CSA program may not accept a signed affidavit of self-declared income eligibility, but must require documentation of household size and income for such participants. State and local agencies continue to have the option to verify reported income, in order to confirm an applicant's income eligibility for the SFMNP. d. Certification Periods FNS established in the proposed rule at Sec. 249.6(c) a certification period for SFMNP participants. As proposed, recipients could be certified only for the current fiscal year's SFMNP period of operation. One commenter suggested that multiple-year SFMNP certification periods should be allowed, but FNS disagrees with this suggestion. Funds for the SFMNP are generally too limited, and turnover in the pool of potentially eligible senior SFMNP participants is too great, to justify such an option. Therefore, the provisions related to certification periods in the SFMNP are retained in this final rule as proposed. e. Rights and Responsibilities In Sec. 249.6(d), FNS proposed to require State/local agencies to inform applicants or authorized representatives/proxies of their SFMNP rights and responsibilities. Several comments were received related to the Rights and Responsibilities notification--2 generally supported the provision, 3 specifically supported the provision of information on other services that may be available to SFMNP participants, and one suggested that a joint statement be allowed for seniors who are participating in both the SFMNP and the CSFP, when both programs are administered by the same State agency. FNS appreciates the principle behind such a suggestion, but does not agree. Even when one agency is responsible for administering multiple programs, such as the SFMNP and the CSFP, separate benefits are provided to participants under each program. Therefore, FNS believes that it is important to maintain separate statements of the participant's rights and responsibilities as they pertain to each individual program. This provision is retained in this final rule as proposed. This section as proposed also required State/local agencies to notify applicants in writing if they were ineligible for SFMNP benefits (including the reasons for the determination of ineligibility), and of their right to a fair hearing. A total of 18 comments were received opposing this written notification requirement, arguing that such a requirement is excessively burdensome in a program that has such a short duration each year. While FNS is sincere in its stated intention not to impose any administrative burden on participating State and local agencies that is not absolutely necessary, it cannot in good conscience eliminate this requirement. Once an individual has applied for Program benefits and has been found to be ineligible to receive them, that individual is entitled to a formal notification of such a determination and of his/her right to a fair hearing to challenge that decision. However, FNS also believes that there may be some confusion between an actual determination of an individual participant's program ineligibility and a State or local agency's inability to provide benefits because there simply are not enough funds (in the form of coupons or CSA shares) to serve everyone who is interested in receiving SFMNP benefits. This provision applies specifically to the former instance. The proposed rule did not intend to require that written notification be provided to all potentially eligible seniors in the State or local service delivery area when funds are not available to provide SFMNP benefits. The requirement for written notification of applicant ineligibility and the right to a fair hearing is therefore retained in this final rule as set forth in the proposed rule. However, State and local agencies are not expected to implement a complicated or time-consuming process in order to provide written notices of ineligibility and the right to a fair hearing; a form letter that has the pertinent information (date, name, basis of ineligibility, and signature of the certifying official) filled in as appropriate and handed to the applicant at the time of application is acceptable. f. Certification Without Charge The proposed provision at Sec. 249.6(e), stipulating that no applicant or authorized representative may be charged to apply or be certified for the SFMNP, was not addressed by commenters. Therefore, the provision is retained in the final rule as proposed. g. Use of Authorized Representatives/Proxies The SFMNP proposed rule included a provision requiring any State agency electing to allow proxies or authorized representatives to obtain a signed statement from the eligible senior designating another person as his/her [[Page 74625]] authorized representative. This provision was characterized by 4 commenters as a positive addition; in fact, the use of proxies in the SFMNP has been an option for grantees since the program first began. However, another 5 comments were received that suggested that the requirement for a signed designation of a proxy by the eligible senior is too burdensome and should be deleted. FNS strongly disagrees, and finds this requirement to be essential in order to assure that SFMNP benefits are actually received by the eligible senior for whom they are intended. Therefore, in Sec. 249.6(f) of this final rule, the provision is retained as proposed. g. Processing Standards/Waiting Lists SFMNP State agencies were required, at Sec. 249.6(g) in the proposed rule, to notify applicants of their eligibility or ineligibility for benefits, or placement on a waiting list, within 10 days from the date of application. This provision was proposed to take into account the relatively short duration of the SFMNP's actual period of operation. Unlike other ongoing nutrition assistance programs, such as Food Stamps, FDPIR, or the CSFP, the SFMNP does not usually operate year-round. Therefore, it is important that the certification process for the SFMNP be expedited to some extent. Reaction to this provision was mixed--4 comment letters supported the 10-day standard, while 9 maintained that it is entirely too short. While FNS cannot agree to the 30-day processing standard suggested by 3 commenters, we can see some benefit to allowing State agencies a slightly longer period of time to complete the certification process. Therefore, in this final rule the processing standard for the SFMNP is increased at Sec. 249.6(g) to 15 days. Although this is only 5 days longer than the 10 days initially proposed, the reduction of several significant administrative functions associated with the certification process (most notably the acceptance of a signed affidavit in the income eligibility determination process) makes the 15-day standard a reasonable one. State agencies would always have the option to establish a shorter processing standard for their local SFMNP agencies. Further, FNS proposed to require State agencies to keep a waiting list of individuals who apply for benefits but cannot be served. This information would enable State/local agencies to certify individuals if funding within the State is reallocated based on need. The waiting list would include the name of the applicant, the date he/she was placed on the waiting list, and an address or phone number in order to contact the applicant. These requirements are consistent with the FNS- administered CSFP, which also serves seniors. However, as pointed out by 18 commenters, it is not reasonable to maintain a waiting list when there is no realistic expectation of additional benefits becoming available at some later date. SFMNP benefits are often exhausted very quickly, sometimes within a matter of days or even hours. FNS concurs with the commenters' position that in such cases, having to maintain a waiting list of eligible seniors who are interested in benefits is a futile and burdensome requirement. Therefore, this provision has been modified in this final rule to require a State agency to maintain a waiting list only when there is some reasonable expectation of being able to provide benefits at a later date to those additional unserved individuals. 7. Nondiscrimination (Sec. 249.7) As indicated in Sec. 249.7(a) of the proposed rule, Title VI of the Civil Rights Act of 1964 requires that racial and ethnic participation data be collected from all SFMNP benefit participants. Eight commenters suggested that the racial/ethnic data collection requirement be deleted, and another commenter proposed that the data collection at least be delayed until the new racial/ethnic categories stipulated by OMB are in place for the CSFP as well. FNS recognizes that this data collection requirement may duplicate data collections that have been performed for SFMNP participants when they applied for other nutrition assistance programs such as Food Stamps, FDPIR, and/or CSFP. Therefore, to avoid duplicate collection of racial/ethnic data, a separate SFMNP collection would not be required for those participants who come into the SFMNP as automatically eligible based on their participation in another assistance program. Racial/ethnic data must be collected for all other SFMNP participants. State agencies must be able to provide racial/ethnic data upon request by FNS for all participants, whether obtained via another assistance program or collected by the SFMNP State agency. 8. Eligible Foods and Level of Benefits (Sec. 249.8) Note: In the interest of clarity, the heading for this section is modified from the proposed rule to reflect the order of the topics addressed. A comprehensive discussion regarding eligible foods in the SFMNP is included in the preamble to the proposed rule. No other comments in addition to those discussed in section 2 of this preamble, regarding the definition of ``eligible foods'' for the SFMNP were received. Therefore, the provisions related to eligible foods set forth at Sec. 249.8(a) are retained in this final rule as proposed. In Sec. 249.8(b), FNS proposed minimum and maximum annual benefit levels of $20 and $50, respectively, for all coupon issuance program models (farmers' markets, roadside stands and/or CSA programs). These levels were intended to accommodate the majority of State agencies that already use at least a $20 benefit level, and are consistent with the current average benefit level of SFMNP benefits issued nationwide. The proposed minimum and maximum benefit levels resulted in comments both for and against the provision. All 11 of the State agencies with benefit levels lower than $20, along with several other interested State and local SFMNP agencies, wrote to protest the necessity of reducing the number of eligible seniors they were currently serving in order to raise the benefit level to the $20 minimum. A relatively small number of commenters (6) supported the principle of a regulatory minimum and maximum benefit level, but half of those commenters went on to suggest that State agencies be allowed to issue a smaller benefit when Federal funds are decreased, such as in FY 2005 when all SFMNP grantees experienced an across-the-board reduction in their SFMNP grant awards. Anecdotal evidence over the past 6 years of SFMNP operation consistently indicates that certified participants are more likely to make use of their SFMNP benefits when the benefit level is high enough to justify one or more trips to a farmers' market, roadside stand, and/ or CSA program for the purchase of eligible fresh fruits and vegetables. FNS believes establishing a minimum SFMNP benefit of $20 is not only appropriate, but will also be conducive to higher expenditure and redemption rates in future years of SFMNP operation. However, FNS also recognizes the difficulties that would be encountered by the 11 State agencies currently offering a seasonal benefit of less than $20. The strongest objections to this provision were submitted in opposition to the $50 maximum benefit level. A variety of suggestions were put forth, including eliminating the benefit cap altogether, increasing the maximum benefit to $80 or to $100, and/or allowing State agencies the option of setting their own minimum and [[Page 74626]] maximum benefits, either for all program models or only for CSAs. Requests for a grandfather clause that would allow current State agencies to continue issuing the same level of SFMNP benefits came primarily from State agencies that expend the largest portion of their SFMNP grants on a CSA program model of operation. The basic structure of most CSAs is predicated upon shares of at least $100 each, and a total of 60 comments were received from State agencies, local agencies, participating farmers, and even participants to request that the maximum SFMNP benefit level be increased or at least allowed to remain at their FY 2004 levels. Nearly 30 farmers stated that if the maximum CSA benefit level were reduced to $50, they would no longer be willing or able to continue participating in the SFMNP. Therefore, FNS has reconsidered the matter of minimum and maximum benefit levels in the SFMNP in this final rule, and has revised the requirements as follows: The minimum benefit level of $20 is retained as proposed, except that SFMNP State agencies being grandfathered into the permanent program (i.e., that participated in the SFMNP in FY 2006) may continue to issue benefits at their FY 2006 levels. Current SFMNP State agencies that are grandfathering a CSA program model into the permanent program may continue to issue benefits to senior participants in the CSA programs at their current (FY 2006) levels, except that any State agency whose annual CSA participant benefit level is greater than $50 will not be eligible to receive expansion funds until the $50 benefit cap in the CSA program model is implemented. While FNS is sympathetic to the concerns expressed through the public comment process, we also believe in the principle of serving as many eligible senior participants as possible with the limited funds available to the SFMNP. New State agencies who begin operating the SFMNP after FY 2006 must comply with the $20 benefit minimum as well as the $50 benefit cap. SFMNP State agencies that do not use a CSA program model must comply with the $50 benefit cap as provided in the proposed rule. As one commenter suggested, State agencies will continue to have the option of providing a higher benefit level out of funding sources other than the Federal SFMNP grant. Finally, FNS disagrees with the commenter who stated that longer growing seasons justify higher benefit levels, because it can also be argued that shorter growing seasons, with commensurately higher prices for fresh produce because it is only available for a short time, can also justify higher benefit levels. In order to ensure equitable treatment in and access to the SFMNP, FNS proposed in Sec. 249.8(c) that all SFMNP participants served by the State agency must be offered the same level of SFMNP benefits. Reaction to this provision was almost evenly divided in support and opposition, but FNS is still convinced that a consistent statewide benefit level is important to the integrity of the SFMNP. Therefore, the requirement is retained in this final rule as proposed. Also as proposed, FNS has retained in this final rule the provision that the same statewide benefit level does not have to be applied for SFMNP participants who are receiving benefits through a CSA program. Such participants are eligible to receive $50 or more (if the State agency is exercising the grandfather clause set forth in Sec. 249.8(b)) in SFMNP benefits, even if SFMNP participants in that same State are issued only $10 (if the State agency has been grandfathered in at the lower minimum benefit level) or $20 (for all other State agencies) in coupons to use at farmers' markets or roadside stands. As proposed and as set forth in this final rule, SFMNP participants may also receive benefits through a bulk purchase program model, as described in Sec. 249.2, as long as each participant receives an equitable value of fruits and vegetables. In addition, the total benefit provided to each participant (whether s/he receives a combination of coupons and bulk-purchased foods during the course of the season, or only bulk-purchased foods) must fall within the minimum and maximum levels set forth in this final rule. Finally, Sec. 249.8(c) of the proposed rule offered SFMNP State agencies the continued option to issue program benefits on either an individual or a household basis, as long as State agencies continue to report participant information to FNS on an individual basis. The household option, if SFMNP State agencies choose to implement it, allows more participants to be served with limited funds. The provisions contained in this section are retained in this final rule as proposed. Section 249.8(c)(3) of the proposed rule prohibited sharing of food purchased through the SFMNP with non-participating household members. Seven commenters opposed this non-sharing provision, calling it unenforceable and therefore unnecessary. FNS recognizes the difficulty of enforcing such a provision, but maintains that it is nonetheless an extremely important one. SFMNP benefits are generally issued to individuals with particular nutritional needs with the intention of improving that individual's diet by increasing his/her consumption of fresh fruits and vegetables. Therefore, program administrators can discuss this issue when participants are certified and/or provided basic information about the SFMNP. It is critical that program administrators and participants alike understand the importance of the SFMNP benefits that are being provided to specific eligible individuals for specific dietary reasons. Therefore, this provision is retained in this final rule as proposed. 9. Nutrition Education (Sec. 249.9) As proposed, this section of the rule defined the goal of nutrition education in the SFMNP, required the State agency to integrate nutrition education into its SFMNP operations, and provided guidance on coordinating the delivery of nutrition education through other agencies within the State. Thirteen comments were received regarding the nutrition education provisions of the SFMNP proposed rule, more than half of which were generally supportive. Two commenters suggested that there should be some level of flexibility for nutrition education at the local level. Although the proposed rule did not specifically address such flexibility, FNS supports such discretion as long as the State agency is aware of the content and quality of the nutrition education that is being provided, and monitors it regularly as required. Additional suggestions related to the nutrition education provisions that were not incorporated into this final SFMNP rule included stipulating that all nutrition education should be provided or overseen by a Registered Dietician or other qualified nutrition professional (2 comments), and that each local agency should bear the costs associated with providing nutrition education to SFMNP participants. Conversely, it was suggested in another comment letter that the State agency should be responsible for providing all nutrition education materials to the local agencies, in all languages necessary. FNS' view is that issues related to nutrition education are matters best negotiated between the State and local agency, rather than addressed through Federal program regulations. FNS agrees that it is important to take into consideration those participants with limited English proficiency, but believes that this is sufficiently covered in the [[Page 74627]] Participant Rights and Responsibilities statement set forth at Sec. 249.6(g). FNS