[Federal Register: December 23, 2005 (Volume 70, Number 246)]
[Rules and Regulations]
[Page 76129-76133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de05-1]
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Rules and Regulations
Federal Register
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[[Page 76129]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 170
[Docket No. TM-04-09]
RIN 0581-AC39
USDA Farmers Market Operating Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Agricultural Marketing Service (AMS) is publishing
procedures to administer the U.S. Department of Agriculture (USDA)
Farmers Market at 12th Street & Independence Avenue, SW., Washington,
DC. These procedures allow AMS the means to demonstrate and experiment
with direct marketing techniques (operate a farmers market), while at
the same time educating consumers on the significance of small farms,
the nutritional benefits of fresh fruits and vegetables, and the merits
of food recovery. This final rule includes guidelines for the
establishment of vendor criteria, selection procedures, and guidelines
for governing the operation of the USDA Farmers Market. Also
established is a one-time yearly submission information collection in a
required application form.
DATES: Effective December 23, 2005.
FOR FURTHER INFORMATION CONTACT: Errol R. Bragg, Associate Deputy
Administrator, Marketing Services Branch, Transportation and Marketing
Programs, Agricultural Marketing Service (AMS), USDA, Room 2646-South,
1400 Independence Avenue, SW., Washington, DC, 20250; 202/720-8317, fax
202/690-0031; or e-mail at USDAFMComments@usda.gov.
SUPPLEMENTARY INFORMATION: Prior published document in this proceeding:
Proposed Rule and invitation for comments on proposed USDA Farmers
Market guidelines and information collection, Published February 17,
2005 [70 FR 8040].
Executive Order 12866
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the office of Management and Budget.
Executive Order 13132
AMS has analyzed this rule under Executive Order 13132, Federalism,
and have determined that it does not have Federalism implications to
warrant the preparation of a Federalism assessment under that order.
Background
The Agricultural Marketing Act of 1946 authorizes this final rule.
The Act directs and authorizes the Secretary of Agriculture to conduct,
assist, and foster research, investigation, and experimentation to
determine the best methods of processing, preparation for market
packaging, handling, transporting, distributing, and marketing
agricultural products, 7 U.S.C. 1622(a). Moreover, 7 U.S.C. 1622(f)
directs and authorizes the Secretary to conduct and cooperate in
consumer education for more effective utilization and greater
consumption of agricultural products. In addition, 7 U.S.C. 1622(n)
authorizes the Secretary to conduct services and to perform activities
that will facilitate the marketing and utilization of agricultural
products through commercial channels. Pursuant to 7 CFR 2.79, the Under
Secretary for Marketing and Regulatory Programs has re-delegated these
authorities to the Administrator of AMS.
On February 17, 2005, AMS published a proposed rule in the Federal
Register [70 FR 8040] inviting comments on a proposal of guidelines to
establish (a) Procedures to administer the USDA Farmers Market at 12th
Street & Independence Avenue, SW., Washington, DC; (b) rules for the
establishment of vendor criteria, selection procedures, and guidelines
for governing the operation of the USDA Farmers Market; and (c) a one-
time yearly submission information collection in the form of a required
application form.
Interested parties were provided 60 days to comment on the proposed
guidelines that applied only to the USDA Farmers Market at headquarters
on the corner of 12th Street and Independence Avenue, SW., Washington,
DC.
Summary of Comments
Six (6) comments were received from the public; two by mail, the
remaining by e-mail. Of the six comments received, three (3) were from
students from Tufts University, one (1) was from an individual, and the
remaining two (2) provided no comments on the proposed rule.
Three of the four significant comments were supportive of AMS's
efforts and the proposed guidelines and procedures. The commenters also
indicated that the information collection was necessary and ensured the
Agency's performance of its responsibility to properly maintain a
functioning market.
The comments received fall largely into a broad category that
involves administrative and procedural issues. One issue addresses the
USDA Farmers Market hours of operation, the second involves the data
collection estimated time requirement, and the third addresses where
products sold at the market come or are produced from.
USDA Farmers Market Hours of Operation
Two commenters thought that the hours of operation, 10 a.m.-2 p.m.,
were too short or inconvenient for those in the immediate vicinity of
the market.
This rule applies only to the USDA Farmers Market at USDA
headquarters just outside of the USDA complex buildings in Washington,
DC. There are four USDA complex buildings: the USDA Whitten and South
buildings, located on either side of the Independence Avenue, SW.,
between 14th and 12th Streets; the third, USDA Cotton Annex, located at
the corner of 12th and C Streets; and the fourth, the USDA Forestry
building, is located on the corner of 14th and Independence. The USDA
Farmers Market, operating June-October annually, is located in a
parking area at the corner of 12th Street and Independence Avenue, SW.,
Washington, DC.
There is a ``mall'' area on the other side of the USDA Whitten
building, which is a large grassy area which extends between the
Washington Monument and the U.S. Capital building. Buildings on the
opposite side
[[Page 76130]]
of this mall area are Smithsonian museums.
The remaining closest buildings in the vicinity of the USDA Farmers
Market and USDA complex are office buildings and museums: The Holocaust
Museum, a Smithsonian museum, the Department of Energy, and two U.S.
Treasury buildings.
The majority of shopping customers at the USDA Farmers Market are
Federal employees working in this immediate vicinity and tourists
visiting various museums in the area.
Beginning with the first market in 1996, the USDA Farmers Market
operation hours of 10 a.m.-2 p.m. were mutually agreed upon by
participating farmers and AMS. Federal employees generally ventured
from work to the market just before, during, and after lunch hours from
11 a.m.-1:30 p.m. This shopping pattern remains unchanged.
Farmers participating in the market drive in from Virginia,
Maryland, and Pennsylvania. Generally speaking, traffic into and out of
Washington, DC is much lighter just after 9 a.m. and before 3 p.m. The
one hour window, from 2-3 p.m. in the afternoon, allows participating
farmers and other vendors an opportunity to break-down their tents,
pack-up or glean any remaining food items, clean-up their assigned
selling market spaces, and leave before traffic begins to increase.
With this information in mind, the 10 a.m.-2 p.m. hours of
operation was and is the logical choice for farmers and visiting
employee customers in the vicinity. AMS plans no changes to the
market's hours of operation from 10 a.m.-2 p.m.
Estimated Time Required for Data Collection
One commenter was concerned that the new information collection,
the required USDA Farmers Market Application form, would take longer
than an average of 0.08 hours or 4.8 minutes to complete.
Specifically, the information requested on the application form
includes contact information including the farmer and farm names, other
farm employees, and the farm mailing address, phone, and e-mail. This
information is critical for AMS to provide timely information to each
farmer about the market's operating guidelines. Additionally, an
unexpected condition such as weather related storms or other security
issues could require AMS to close the market. Should this ever happen
in the future, AMS will be able to contact each farmer prior to the
date of the closure.
Although not required for participation, AMS also requests the
number of farm acreage (numeric response), whether the farm is
certified organic (yes/no response), and whether liability insurance
coverage (name of company) is maintained on the product and farm (yes/
no responses).
The farm acreage information is gathered to ensure that vendors can
and are producing the products provided on the application. AMS also
visits farm locations to verify compliance with market criteria and
guidelines. Information regarding certified organic farms is gathered
to assist market managers in determining a diverse mix of products
offered. The insurance liability coverage information, which includes
off-farm liability insurance and product liability insurance, is asked
to protect USDA from lawsuits and customers from financial harm caused
by accidents. This information is gathered only for AMS's records.
Lastly a list of over 45 fruits, vegetables, and other products has
been provided on each form. Farmers are asked to provide the month the
corresponding products will be available for sale at the market. This
information provides AMS with information about the type, variety, and
availability of products during the months of June-October.
AMS began the voluntary use of this form in 1998 and rarely does
the information requested require farmers and vendors to look-up their
responses. AMS plans to make no changes to the estimated time burden
for participants to complete the application form. The questions are
general in nature and each farmer should already know his or her
responses.
Products Sold at the USDA Farmers Market
One commenter expressed concern regarding whether the products
produced from China would make their way into this market.
AMS recruits farmers and vendors through local farm organizations
in the Washington DC metropolitan area and State Departments of
Agriculture in the mid-Atlantic region including, Virginia, West
Virginia, Maryland, Delaware, and Pennsylvania. Upon receiving a list
of potential farmers and vendors from the organizations and the State
Departments of Agriculture, an information packet, which includes an
application and this rule, is mailed to each potential participant
identified by the contacts.
AMS utilizes selection criteria designed to ensure a consistently
high level of quality and diverse products are available at the market,
while operating in the constraints of space available at the market
site as defined in section 170.12. The criteria include:
(a) The participant must be a producer-only farmer or producer,
seller of value-added products, or specialized non-produce vendor, as
defined in section 170.4.
(b) AMS selects participants to ensure that a balanced mix of wide
range of fresh farm fresh fruits and vegetables will be maintained
throughout the season.
(c) Participants should commit to supporting the USDA food
gleaning/food recovery initiative. This commitment requires farmers and
vendors to donate surplus food and food products at the end of each
market day to a local nonprofit organization identified by USDA.
(d) Participants must commit to the entire market season and be
willing to participate on a regular basis.
(e) AMS reserves the right to select several farmers or vendors
based on previous participation in the program (grandfather provision),
consistency in providing quality products, and compliance with
operating guidelines.
AMS also provides the USDA Farmers Market operating guidelines
(section 170.13) to each participant, and visits farms/businesses as
necessary.
Because AMS is involved in the farmer/vendor selection and visits
these local farm operations, we do not agree that products brought to
the market will be produced from China.
Paperwork Reduction Act
In accordance with Office of Management and Budget (OMB)
regulations [5 CFR 1320], which implement the Paperwork Reduction Act
of 1995 (44 U.S.C. Chapter 35), the information collection and
recordkeeping requirements that are imposed by this rule were submitted
and approved by OMB under 0581-0229. An Agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number.
Form TM-28, USDA Farmers Market Application, was described in the
proposed rule as requiring a one-time yearly submission of the
information on the application with information on contacts, farm
location, type of farming operation, types of products grown, and
business practices, including insurance coverage. This signed
application also provides a list of over 45 fruits, vegetables, and
other products produced by farmers and the months the corresponding
products, as requested
[[Page 76131]]
for AMS to know when products will be available for sale at the market.
As a result of the comments received, the USDA Farmers Market
Application has been revised to clarify two existing requests for
information.
First, the application will be revised to request the names of
other farmers or employees that will be participating at the market
with the farm contact person, instead of a list of other farmers and/or
employees who work at the applicant farm. This information is required
for USDA security personnel to assist in providing security about who
will have access to the USDA property.
Second, the application will be revised to request the estimated
months the corresponding products will be available for sale at the
market. This information will provide AMS with an estimate not only as
to when, but how long each of the products may be available for sale at
the market.
These revisions and clarifications have no effect on the burden or
description of the form. The information collection will be used only
by AMS staff to (a) communicate efficiently and effectively with, and
(b) provide operating guidelines and procedures to farmers and vendors
participating in the USDA Farmers Market.
Government Paperwork Elimination Act Compliance
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their regulatory
actions not specifically required by law on state, local and tribal
governments. This rule contains no Federal mandates that would result
in the expenditure of $100 million or more for these groups or for the
private section. Therefore, no written statement or cost-benefit
analysis is required under this act.
Regulatory Flexibility Act
AMS reviewed the proposed rule under the Regulatory Flexibility
Act, 5 U.S.C. 601-612, and determined that it will not have a
significant economic impact on a substantial number of small entities.
This program does not impose requirements on small entities that are
not eligible to participate in the program, and imposes on small
entities applying for and participating in the program only minimum
requirements necessary for proper administration and oversight of this
program. Therefore, a regulatory flexibility analysis is not required
and was not performed.
List of Subjects in 7 CFR Part 170
Agricultural commodities, Farmers.
0
For the reasons set forth in the preamble, Title 7, chapter 1 of the
Code of Federal Regulations is amended as follows:
0
1. Add a new subchapter G, consisting of part 170 to read as follows:
Subchapter G--Miscellaneous Marketing Practices Under the Agricultural
Marketing Act of 1946
PART 170--USDA FARMERS MARKET
Sec.
170.1 To which farmers market does this rule apply?
170.2 Is the USDA Farmers Market a producer-only market?
170.3 What products may be sold at the USDA Farmers Market?
170.4 Who may participate in the USDA Farmers Market?
170.5 Is there a fee to participate in the USDA Farmers Market?
170.6 How are potential market participants identified for the USDA
Farmers Market?
170.7 Can I apply if I am not recruited?
170.8 What are the application procedures?
170.9 What type of information does the application require?
170.10 Must a participant in the market have insurance?
170.11 How are farmers and vendors selected for participation in the
USDA Farmers Market?
170.12 What are the selection criteria for participation in the USDA
Farmers Market?
170.13 What are the operating guidelines for the USDA Farmers
Market?
170.14 What circumstances will prevent participation in the USDA
Farmers Market?
Authority: 5 U.S.C. 301; 7 U.S.C. 1621-1627.
Sec. 170.1 To which farmers markets does this rule apply?
This rule applies only to the USDA Farmers Market at headquarters
on the corner of 12th Street & Independence Avenue, SW., Washington,
DC.
Sec. 170.2 Is the USDA Farmers Market a producer-only market?
Yes. A producer-only market is one that does not offer agricultural
products that are commercially made, created, or produced, and only
allows agricultural products that are grown by a principal farmer. A
producer-only market offers raw agricultural products such as fruits,
vegetables, flowers, bedding plants, and potted plants. The USDA
Farmers Market is a producer-only market since only farmers who may
sell products that they grow or produce will be selected for
participation. It also allows the sale of value-added products and
other specialized non-produce items.
Sec. 170.3 What products may be sold at the USDA Farmers Market?
Products that may be sold at the market include, but are not
limited to, fresh, high-quality fruits, vegetables, herbs, honey, jams
and jellies, cheese, vinegars, cider, maple syrup, fish, flowers,
bedding plants, and potted plants. USDA inspected meats and poultry
items also may be sold.
Sec. 170.4 Who may participate in the USDA Farmers Market?
Members of three groups may participate in the USDA Farmers
Markets:
(a) Principal farmers or producers who sell their own agricultural
products. The principal farmer must be in full control and supervision
of the individual steps of production of crops including tilling,
planting, cultivating, fertilizer and pesticide applications (if
applicable), harvesting and post-harvest handling on its own farm with
its own machinery and labor.
(b) Principal farmer or producers who sell their own value-added
agricultural products. Value-added products may include agricultural
products that have been enhanced through a modification of the product,
such as braiding, weaving, hulling, extracting, handcrafting, and the
like. It also may result from growing the product in a way that is
acknowledged as safer. Farmers and vendors selling these types of
products must prepare them predominately with material they have grown
or gathered.
(c) Nonproduce vendors. A limited number of non-produce vendors may
be selected by market management to sell specialized products that
enhance the market atmosphere and historically attract customers to a
farmers market. These specialized vendors, such as bakers, may be
exempted from the reselling restrictions that apply to the farmers and
vendors described in paragraphs (a) and (b) of this section.
Sec. 170.5 Is there a fee to participate in the USDA Farmers Market?
No, there are no fees charged to participate in the market.
Sec. 170.6 How are potential market participants identified for the
USDA Farmers Market?
Potential market participants are recruited by AMS market
management through local farm organizations in the
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Washington DC metropolitan area State Departments of Agriculture from
the mid-Atlantic region including, Virginia, West Virginia, Maryland,
Delaware, and Pennsylvania. Upon receiving a list of potential farmers
and vendors from the organizations and the State Departments of
Agriculture, an information packet, which includes an application and
this rule, will be mailed to each potential participant identified by
the contacts.
Sec. 170.7 Can I apply if I am not recruited?
Yes. Interested persons may call or write USDA to request an
information packet even if they are not recruited. Those interested may
write USDA/AMS/TM/MSB, Room 2646-South Building, 1400 Independence
Avenue, SW., Washington, DC, 20250, or call (202) 720-8317. They may
also call the USDA Farmers Market Hotline at 1-800-384-8704 to leave a
message to have a packet mailed or faxed. They may also visit the web
site at http://www.ams.usda.gov/farmersmarkets/ to review the selection
criteria, the operating rules, and to receive an application
electronically.
Sec. 170.8 What are the application procedures?
In January of each year, prospective and returning participants
must submit to USDA a completed application for participation in the
upcoming market season. Each application will include a copy of this
rule, which includes the selection criteria and operating guidelines.
Each applicant also will certify that each is the owner or
representative of the farm or business submitting the application.
Sec. 170.9 What type of information does the application require?
The application for participation in the USDA Farmers Market will
provide market management with information on contacts, farm location,
type of farming operation, types of products grown, and business
practices, including insurance coverage.
Sec. 170.10 Must a participant in the market have insurance?
There is no requirement for a participant to have insurance;
however, USDA asks that participants with insurance provide insurance
information for our records.
Sec. 170.11 How are farmers and vendors selected for participation in
the USDA Farmers Market?
USDA reviews all applications and selects participants based
primarily on the type of farmer or vendor (i.e., fruit, vegetable,
herb, baker) and secondly, on the specific types of products to be
sold. The selection of the participants is conducted by the market
management to ensure a balanced product mix of fruits, vegetables,
herbs, value-added products, and baked goods.
Sec. 170.12 What are the selection criteria for participation in the
USDA Farmers Market?
The selection criteria are designed to ensure a consistently high
level of quality and diverse products are available at the market,
while operating in the constraints of space available at the market
site. The criteria are:
(a) Member of one of the three participant groups specified in
Sec. 170.4 of this part. The participant must be a producer-only
farmer or producer, seller of value-added products, or specialized non-
produce vendor.
(b) Participant offers a product that adds to a product mix. Market
management will ensure that a balanced mix of fresh fruits and
vegetables will be maintained throughout the season. Final selection of
fruit and vegetable producers will be made based on their ability to
ensure a wide range of fresh farm products throughout the season.
(c) Willingness to Glean. Participants should commit to supporting
the USDA food gleaning/food recovery initiative. This commitment
requires farmers and vendors to donate surplus food and food products
at the end of each market day to a local nonprofit organization
identified by USDA. Questions about tax deductions for gleaning should
be referred to the Internal Revenue Service or a tax advisor. Receipts
for donated foods may be obtained from the receiving nonprofit
organization.
(d) Commitment to market. Participants must commit to the entire
market season and be willing to participate on a regular basis.
(e) Grandfather provision. Market management reserves the right to
select several farmers or vendors based on previous participation in
the program, consistency in providing quality products, and compliance
with operating guidelines.
Sec. 170.13 What are the operating guidelines for the USDA Farmers
Market?
(a) Market Operation. The Market will be held in parking court
9 of the USDA Headquarters Complex located on the corner of
12th Street and Independence Avenue, SW., Washington, DC. Selling will
not begin before 10 a.m. and will end promptly at 2 p.m. each market
day. All participants must be in place, setup and ready to sell by 10
a.m. Due to space restrictions at the site, late arrivals will be
located at market management's discretion. All vehicles must vacate the
market site no later than 3 p.m.
(b) Notification of Attendance. Each participant must call USDA
within 48 hours of a market day if they cannot attend. Failure to
provide proper and timely notification may result in termination of
participation in the market.
(c) Participant Space. One vehicle is permitted per space; all
other vehicles must be removed from the immediate market premises. One
space is 16w x 17d feet, and all trucks must fit within that area.
There is only room for 15 spaces.
(d) Signage. Participants must clearly display the name of their
farm/business and post prices for all items being sold.
(e) Clean-up. Participants are responsible for cleaning all trash
and waste within and around their allotted space. Garbage bins are
provided on the market site for this purpose.
(f) Cooperative Marketing. Participants are permitted to share
space with another participant or sell another's products if the
arrangement is deemed by market management as beneficial to the market.
A co-op must be pre-approved by market management and will not be
accepted if similar products are already sold by existing farmers or
vendors.
(g) Farm/Business Visits. Market management may visit farm/business
locations to verify compliance with market criteria and guidelines.
Participants should submit a map and directions to their farm/
businesses with their market applications.
(h) Conduct on Federal Property: Participants must comply with
Subpart 20.3 of the Federal Property Management Regulations, ``Conduct
on Federal Property,'' 41 CFR 20.3.
Sec. 170.14 What circumstances will prevent participation in the USDA
Farmers Market?
(a) Efforts will be made to accommodate all who apply to
participate in the market. However, market management may deny
participation in the market because of insufficient space or excess
supply of the products to sell, failure to meet the stated criteria, or
the participant's noncompliance with the operating guidelines or
regulations.
(b) Participants who sell before the 10 a.m. opening time will be
restricted from participating in the market following their second
violation. A written warning will be given to the participant for the
first violation of this guideline. After the second violation occurs, a
letter of reprimand will be given to the participant restricting their
participation for the next immediate market day.
[[Page 76133]]
(c) Participants who arrive after the 10 a.m. opening time may be
restricted from participating in the market following their second
violation. A written warning may be given to the participant for the
first violation of this guideline. After the second violation occurs, a
letter of reprimand may be given to the participant restricting their
participation for the next immediate market day.
Dated: December 19, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-24427 Filed 12-22-05; 8:45 am]
BILLING CODE 3410-02-P