[Code of Federal Regulations] [Title 7, Volume 4] [Revised as of January 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 7CFR249.16] [Page 512-513] TITLE 7--AGRICULTURE CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE PART 249_SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP)--Table of Contents Subpart E_State Agency Provisions Sec. 249.16 Administrative appeal of State agency decisions. (a) Requirements. The State agency shall provide a hearing procedure whereby applicants, participants, local agencies and farmers, farmers' markets, roadside stands, and/or CSA programs adversely affected by certain actions of the State agency may appeal those actions. (1) What may be appealed. (i) An applicant may appeal denial of certification of SFMNP benefits, except that no appeal is available if certification is denied solely because of the lack of sufficient funding to provide SFMNP benefits to all eligible applicants. (ii) A participant may appeal disqualification/suspension of SFMNP benefits. (iii) A local agency may appeal an action of the State agency disqualifying it from participating in the SFMNP. (iv) A farmer, farmers' market, roadside stand, and/or CSA program may appeal an action of the State agency denying its application to participate, imposing a sanction, or disqualifying it from participating in the SFMNP. (2) What may not be appealed. Expiration of a contract or agreement shall not be subject to appeal. (b) Time limit for request. The State or local agency must provide individuals, local agencies, farmers, farmers' markets, roadside stands, and/or CSA programs a reasonable period of time to request a fair hearing. Such time limit must not be less than 30 days from the date the agency mails or otherwise issues the notice of adverse action. (c) 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, roadside stand, and/or CSA program, a postponement is appropriate where the State agency finds that participants 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) Applicants who are denied benefits at initial certification may appeal the denial, but must not receive SFMNP benefits while awaiting the hearing. Participants who appeal the termination of benefits within the period of time provided under paragraph (b) of this section must continue to receive Program benefits until the hearing official reaches a decision or the certification period expires, whichever occurs first. This does not apply to participants whose certification period has already expired or who become otherwise ineligible for SFMNP benefits. Participants who become ineligible during a certification, or whose certification period expires, may appeal the termination, but must not receive benefits while awaiting the hearing. (d) Procedure. The State agency hearing procedure shall at a minimum provide the participant, local agency or farmer, farmers' market, roadside stand, and/or CSA program 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 (c) [[Page 513]] 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 participant appeal, by a representative designated by the participant, 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 on the evidence presented at the hearing and the statutory and regulatory provisions governing the SFMNP. 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. (e) Continuing responsibilities. When a farmer, farmers' market, roadside stand, CSA program, and/or local agency appeals an adverse action (and is permitted to continue in the SFMNP while its appeal is pending), it continues to be responsible for compliance with the terms of the written agreement or contract with the State agency. (f) Judicial review. If a State level decision is rendered against the participant, local agency, farmer, farmers' market, roadside stand, and/or CSA program 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. (g) Additional appeals procedures for State agencies that authorize farmers' markets and not individual farmers. A State agency that 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 into by the State agency and the farmers' market and the farmers' market and the farmer.