FMNP Waiver Authority under the Families First Coronavirus Response Act

Section 2204(a)(1) of the Families First Coronavirus Response Act (PL 116-127) provides WIC Farmers’ Market Nutrition Program (FMNP) state agencies, including participating Indian Tribal Organizations and U.S. Territories, the opportunity to request a waiver of WIC regulatory requirements from the U.S. Department of Agriculture (USDA), Food and Nutrition Service (FNS). Such requests may only be granted if the state agency: (1) cannot meet program regulatory requirements due to COVID-19, and (2) the waiver is necessary to provide assistance to participants. This waiver authority solely applies to requirements in FMNP regulations at 7 CFR Part 248, not requirements contained in Section 17(m) of the Child Nutrition Act of 1966 (CNA, PL 89-642). If a provision is contained in the CNA, FNS cannot waive the requirement.

Many program flexibilities exist which do not require a regulatory waiver. Attachment A lists questions that FNS has received from FMNP state agencies with corresponding answers. These answers highlight existing program flexibilities, and where waiver authority exists. For programmatic changes which do not require a waiver, the state agency must submit a state plan amendment for approval by the appropriate FNS regional office. See 7 CFR 248.4(b).

Before submitting a waiver request or state plan amendment pursuant to 7CFR 248.4, FMNP state agencies should consult with the questions and answers in Attachment A, state and local public health and safety laws, and legal counsel.

USDA FNS has the authority to provide waivers through Sept. 30, 2020. State agency reporting requirements apply. An FMNP state agency may submit waiver requests to the FNS regional office for review.

The Food and Nutrition Service is responding rapidly to the COVID19 pandemic with multiple waivers and flexibilities in its programs. The Families First Coronavirus Response Act requires the Food and Nutrition Service to collect specific data elements from states. The CARES Act provides funding, for which FNS will collect information in order to distribute funding. Please prepare the necessary data elements to collect and submit this data as described in this document. The public will be given the opportunity to comment on this data collection, including legislatively-mandated data collection through a future information collection process being submitted to the Office of Management and Budget.

If you have further questions, please refer them to the appropriate FNS regional office.

Sarah Widor
Director
Supplemental Food Programs Division

Resources - Q&As on Program Flexibilities

• Existing flexibilities allowable within current regulations

May a state agency skip the FMNP application form WIC participants typically sign and only record who receives coupons?

Yes. Although FMNP regulations do not require either an application form or a recipient signature to receive coupons, they do require issuance records that coupons were issued to valid recipients, which may be maintained electronically. See 7 CFR 248.10(h).

May the state agency mail FMNP coupons to eligible recipients?

Yes. The state agency may mail FMNP coupons to eligible recipients. However, the state agency may not charge the cost of mailing coupons to its federal FMNP food grant. Federal FMNP administrative funds or other non-federal funds must be used to cover the cost of mailing FMNP coupons to recipients. See 7 CFR 248.12(a)(1)(i) and (b).

May the nutrition education requirement for FMNP recipients be administered remotely or by mail?

Yes. Nutrition education to satisfy FMNP requirements may be conducted by any remote means necessary, including but not limited to telephone, mail, or online education. See 7 CFR 248.9(b).

May the state agency provide instructions on the use of FMNP coupons to recipients in an electronic format only?

Yes. FMNP regulations at 7 CFR 248.10(i) do not prohibit the state agency from providing instructions to recipients electronically, including via email, online, etc.

Is the state agency or another qualified individual, such as a county extension agent, required to visit a farmer’s farm before approving the farmer as an authorized FMNP outlet?

No. FMNP regulations at 7 CFR 248.10 do not require a pre-authorization visit before a state agency approves a farmer as an authorized FMNP outlet.

May the state agency implement social distancing practices in its FMNP operations?

Yes. The state agency has the discretion to implement a variety of acceptable social distancing practices in its FMNP operations, including limiting the number of people permitted inside a farmers’ market at one time and using curbside pickup of eligible foods. FMNP farmers, farmers’ markets, or roadside stands may not charge participants for extra services rendered. See 7 CFR 248.6(c) and 246.10(b)(1)(iii).

Will there be special consideration to the FY 2021 funding formula if there are large amounts of FMNP funds returned at the end of FY 2020?

The FMNP funding formula does not take into account expenditures of prior year grant funds when allocating base grants. Provided that sufficient FMNP funds are available, each state agency that participated in the FMNP in any prior year, will receive not less than the amount of funds the state agency received in the most recent fiscal year in which it received funding. See 7 CFR 248.14(b).

• Regulatory requirements that may be waived by request

Can FNS waive the regulatory requirement for face-to-face training to permit FMNP state agencies to conduct remote training for all new farmers and farmers' market managers?

Yes. The state agency may submit a request to waive the requirement at 7 CFR 248.10(a)(4) and (d) to conduct face-to-face training for farmers and farmers’ market managers who have never previously participated in the FMNP. The FMNP state agency may propose to conduct the initial training of farmers and farmers’ market managers by remote means, including but not limited to telephone conference calls, video conferences, and web-based training. USDA FNS will expedite review of the request.

Can FNS waive the regulatory requirement that FMNP authorized farmer agreements not exceed three years to permit the state agency to extend currently expiring farmer agreements by one year?

Yes. The state agency may submit a request to waive the requirement at 7 CFR 248.10(b)(7) that FMNP authorized farmer agreements may not exceed three years, specifying the duration by which the state agency wishes to maintain active agreements. USDA FNS will expedite review of the request.

• Statutory requirements that cannot be waived

May the state agency implement the bulk purchase option or community supported agriculture (CSA) program option similar to the Senior Farmers’ Market Nutrition Program (SFMNP)?

No. Section 17(m)(1) of the CNA requires recipients to exchange coupons for fresh, nutritious, unprepared foods at farmers’ markets and/or roadside stands. Since the bulk purchase and CSA program options administered by SFMNP state agencies do not use coupons or farmers’ markets, they cannot be implemented for the FMNP.

May FMNP coupons be used online to purchase eligible foods?

No. Section 17(m)(1) of the CNA requires recipients to exchange coupons for eligible foods at farmers’ markets and/or roadside stands.

May the state agency increase the amount of the FMNP season benefit above $30?

No. Section 17(m)(5)(C) of the CNA specifies the value of the federal share of the FMNP benefits received by any recipient may not be less than $10 per year or more than $30 per year.

May the state agency extend the FMNP coupon issuance date from September 30, 2020 to October 31, 2020?

No. Section 17(m)(9)(B)(i)(I) of the CNA prohibits FMNP state agencies from entering into new obligations of FY 2020 grant funds after Sept. 30, 2020.

May the state agency disregard the regulatory requirement in 7 CFR 248.10(b)(1)(v) that requires one-to-one reconciliation of FMNP coupons?

No. Section 17(m)(1) of the CNA requires recipients to exchange coupons for eligible foods at farmers’ markets and/or roadside stands. Section 17(m)(5)(E) states: “The coupon redemption process under the program shall be designed to ensure that the coupons may be—(i) redeemed only by producers authorized by the state to participate in the program; and (ii) redeemed only to purchase fresh nutritious unprepared food for human consumption.” And, Section 17(m)(10)(A) of the CNA defines “coupon” as “a coupon, voucher, or other negotiable financial instrument by which benefits under this section are transferred.” FMNP coupons should match valid issuance records, and redeemed coupons should bear identification of the authorized farmers paid for providing eligible foods to recipients.

May the state agency carryover unused FY 2020 FMNP funds into FY 2021?

No. Section 17(m)(9)(B)(i)(I) of the CNA requires state agencies to return all unspent FY 2020 FMNP funds to FNS by Feb. 1, 2021, for reallocation during FY 2021. For a state agency that does not operate the FMNP during FY 2020, FNS will recover unspent grant funds during August 2020 as carryover funds for FY 2021 pursuant to 7 CFR 248.14(k).

¹ Pursuant to the Congressional Review Act (5 USC 801 et seq.), the Office of Information and Regulatory Affairs designated this waiver as not major, as defined by 5 USC 804(2).