[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR248.16]



[Page 439-440]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 248_WIC FARMERS' MARKET NUTRITION PROGRAM (FMNP)--Table of Contents

 

                    Subpart E_State Agency Provisions

 

Sec. 248.16  Administrative appeal of State agency decisions.



    (a) Requirements. The State agency shall provide a hearing procedure 

whereby recipients, local agencies and farmers/farmers' markets 

adversely affected by certain actions of the State agency may appeal 

those actions. A recipient may appeal disqualification/suspension of 

FMNP benefits. A local agency may appeal an action of the State agency 

disqualifying it from participating in the FMNP. A farmer/farmers' 

market may appeal an action of the State agency denying its application 

to participate, imposing a sanction, or disqualifying it from 

participating in the FMNP. Expiration of a contract or agreement shall 

not be subject to appeal.

    (b) Postponement pending decision. An adverse action may, at the 

State agency's option, be postponed until a decision in the appeal is 

rendered.

    (1) In a case where an adverse action affects a local agency or 

farmer/farmers' market, a postponement is appropriate where the State 

agency finds that recipients would be unduly inconvenienced by the 

adverse action. In addition, the State agency may determine other 

relevant criteria to be considered in deciding whether or not to 

postpone an adverse action.

    (2) In a case where a recipient appeals the termination of benefits, 

that recipient shall continue to receive FMNP benefits until the hearing 

official reaches a decision or the expiration of the current FMNP 

season, whichever occurs first. Applicants who are denied benefits may 

appeal the denial, but shall not receive benefits while awaiting the 

decision.

    (c) Procedure. The State agency hearing procedure shall at a minimum 

provide the recipient, local agency or farmer/farmers' market with the 

following:

    (1) Written notification of the adverse action, the cause(s) for the 

action, and the effective date of the action, including the State 

agency's determination of whether the action shall be postponed under 

paragraph (b) of this section if it is appealed, and the opportunity for 

a hearing. Such notification shall be provided within a reasonable 

timeframe established by the State agency and in advance of the 

effective date of the action.

    (2) The opportunity to appeal the action within the time specified 

by the State agency in its notification of adverse action.

    (3) Adequate advance notice of the time and place of the hearing to 

provide all parties involved sufficient time to prepare for the hearing.

    (4) The opportunity to present its case and at least one opportunity 

to reschedule the hearing date upon specific request. The State agency 

may set standards on how many hearing dates can be scheduled, provided 

that a minimum of two hearing dates is allowed.

    (5) The opportunity to confront and cross-examine adverse witnesses.

    (6) The opportunity to be represented by counsel, or in the case of 

a recipient appeal, by a representative designated by the recipient, if 

desired.

    (7) The opportunity to review the case record prior to the hearing.

    (8) An impartial decision maker, whose decision as to the validity 

of the State agency's action shall rest solely



[[Page 440]]



on the evidence presented at the hearing and the statutory and 

regulatory provisions governing the FMNP. The basis for the decision 

shall be stated in writing, although it need not amount to a full 

opinion or contain formal findings of fact and conclusions of law.

    (9) Written notification of the decision in the appeal, within 60 

days from the date of receipt of the request for a hearing by the State 

agency.

    (d) Continuing responsibilities. Appealing an adverse action does 

not relieve a farmer/farmers' market or local agency permitted to 

continue in the FMNP while its appeal is pending, from responsibility 

for continued compliance with the terms of the written agreement or 

contract with the State agency.

    (e) Judicial review. If a State level decision is rendered against 

the recipient, local agency or farmer/farmers' market and the appellant 

expresses an interest in pursuing a further review of the decision, the 

State agency shall explain any further State level review of the 

decision and any available State level rehearing process. If neither is 

available or both have been exhausted, the State agency shall explain 

the right to pursue judicial review of the decision.

    (f) Additional appeals procedures for State agencies which authorize 

farmers' markets and not individual farmers. A State agency which 

authorizes farmers' markets and not individual farmers shall ensure that 

procedures are in place to be used when a farmer seeks to appeal an 

action of a farmers' market or association denying the farmer's 

application to participate, or sanctioning or disqualifying the farmer. 

The procedures shall be set forth in the State Plan and in the 

agreements entered by the State agency and the farmers' market and the 

farmers' market and the farmer.



[59 FR 11517, Mar. 11, 1994, as amended at 60 FR 49748, Sept. 27, 1995; 

60 FR 57148, Nov. 14, 1995]