[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR248.16]

[Page 444-445]
 
                          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 445]]

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]