CHAPTER He-P 3300 FARMERS’ MARKET NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN

Statutory Authority: NH RSA 132:12-f; NH RSA 541-A; and 7 CFR 248

PART He-P 3301 PURPOSE AND SCOPE.

He-P 3301.01 Purpose. These rules set forth the standards and requirements for the distribution of eligible foods from farmers to eligible recipients participating in the farmers’ market nutrition program (FMNP) as authorized by RSA 132:12-f, and in compliance with 7 CFR 248.

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He-P 3301.02 Scope. These rules shall apply to eligible recipients seeking to obtain, and those farmers seeking to distribute, locally grown fresh fruits, vegetables, and cut herbs at designated New Hampshire farmers’ markets.

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PART He-P 3302 DEFINITIONS

He-P 3302.01 Definitions.

(a) “Change in ownership” means any time a controlling interest in a sole proprietorship, joint venture, partnership, corporation, limited liability company, or any other kind of entity is transferred to or merged with another sole proprietor, joint venture, partnership, corporation, limited liability company, or any other kind of entity.

(b) “Corrective action plan” means a plan developed and written by the farmer, which specifies the actions that will be taken to correct identified deficiencies.

(d) “Eligible foods” means fresh, nutritious, unprepared, locally grown fruits, vegetables, and herbs for human consumption that are not processed or prepared beyond their natural state except for usual harvesting and cleaning processes.

(e) “Face-to-face training” means an education session(s) held at a physical location with farmers physically present. This term includes “in person training”.

(f) “Farmer” means an individual authorized to sell produce at participating farmers' markets or roadside stands. This term includes “producer”.

(g) “Farmer designee” means a farm co-owner, manager, or supervisor authorized to attend department training in order to train other employees on the requirements of the farmers’ market nutrition program.

(h) “Farmers' market” means one or more local farmers who assemble at a defined and authorized location for the purpose of selling their produce directly to consumers.

(i) “Farmers’ market nutrition program season” means the time during which FMNP benefits can be redeemed.

(j) “Food and Nutrition Service (FNS) of the U.S. Department of Agriculture” means the federal agency that authorizes state nutrition programs.

(k) “Good cause” means any circumstance beyond a person’s control that prevents that person from complying with these rules, including:

(1) A death in the person’s immediate family;

(2) Personal injury or serious illness of the person or an immediate family member; or

(3) Another compelling reason or justification.

(l) “Household” means the same as that of “family” defined in 7 CFR 246.2.

(m) “Local agency” means any nonprofit entity or local government agency which issues FMNP benefits, and provides nutrition education or information on operational aspects of the FMNP to recipients.

(n) “Nutrition education” means individual or group education sessions and the provision of information and educational materials designed to improve health status, achieve positive change in dietary habits, and emphasize relationships between nutrition and health, all in keeping with the individual's personal, cultural, and socioeconomic preferences.

(o) “Recipient” means a WIC participant or person chosen by the department to receive FMNP benefits.

(p) “Roadside stand” means a location at which an individual farmer sells their produce directly to consumers.

(q) “Special Supplemental Nutrition Program for Women, Infants and Children (WIC)” means the federal program authorized by section 17 of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1771 et. seq.) that provides federal grants to states for supplemental foods, health care referrals, and nutrition education for low-income pregnant, breastfeeding, and non-breastfeeding postpartum women, and to infants and children up to age 5 who are found to be at nutritional risk.

(r) “WIC Farmers' Market Nutrition Program” means the program authorized by section 17(m) of the Child Nutrition Act of 1966 (CNA), 42 U.S.C. 1786(m), as amended, to allow WIC benefits at state farmers’ markets.

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PART He-P 3303 RECIPIENT ELIGIBILITY AND BENEFITS

He-P 3303.01 Recipient Eligibility.

(a) An individual who is currently receiving WIC benefits or who is on the waiting list to receive WIC benefits pursuant to He-P 3202, excluding infants younger than 6 months of age, shall be eligible to receive FMNP benefits.

(b) Recipient benefits shall be provided to recipients based upon approved categories as specified in He-P 3202.03.

(c) The department shall limit recipient certifications, as necessary, by imposing additional eligibility requirements in accordance with 7 CFR 248.6(b), due to funding restrictions that impact the state of New Hampshire’s ability to fund all eligible FMNP recipients.

(d) In accordance with 7 CFR 248.8(b), the value of the federal FMNP benefit received by each recipient shall not be less than $10 per year and not more than $30 per year.

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He-P 3303.02 Eligible Foods.

(a) Eligible foods shall comply with 7 CFR 248.8(a).

(b) Eligible foods shall:

(1) Be grown within the state of New Hampshire; and

(2) Include fresh, unprepared, locally grown fruits, vegetables, and cut herbs.

(1) Honey:

(2) Maple syrup:

(3) Cider;

(4) Nuts and seeds;

(5) Eggs;

(6) Cheese;

(7) Meats;

(8) Seafood;

(9) Dried herbs;

(10) Herb plants;

(11) Pickled vegetables;

(12) Those foods grown outside the state of New Hampshire, the United States and its territories; and

(13) Other foods identified as not eligible by the FNS.

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PART He-P 3304 LOCAL WIC AGENCY PARTICIPATION

He-P 3304.01 Local Agency Requirements. A local health or human service agency shall:

(a) Identify FMNP recipients and provide them with FMNP benefits, nutrition education, and related benefits under state-approved agreements between the local WIC agency and the department in accordance with 7 CFR 248.9; and

(b) Adhere to monitoring of FMNP policies and procedures once every 2 years in accordance with 7 CFR 248.10(e)(4).

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PART He-P 3305 FARMER PARTICIPATION

He-P 3305.01 Selection of Farmers.

(a) The following procedures shall apply to the selection of farmers for FMNP:

(1) Farmers eligible to be authorized shall complete and submit the application form, “New Hampshire FMNP Farmer Application” (February 2025), to the department, certifying the following:

“I understand that this is only a request to participate in the New Hampshire FMNP and does not constitute a contract. All information on this application is true, accurate, and correct to the best of my knowledge. I understand that any false information on this application or attached supporting documentation may lead to rejection of this application”; and

(2) The department shall review each new applicant farmer for participation in the FMNP as follows:

a. Department employees who hold dual employment with any FMNP-authorized or applicant farmer, regardless of capacity, shall not be involved in the review of farmer applications for authorization;

b. If the department receives an incomplete application, the department shall notify the applicant in writing within 30 days of receipt of any errors or omissions, request any additional information that the agency is permitted by law to require, and notify the applicant of the name, official title, address, and telephone number of an agency official or employee who may be contacted regarding the application;

c. The applicant shall have up to 30 days from the date of the department’s request to respond to the request for additional information;

d. The department shall assess the applicant farmer’s qualifications using the selection criteria in accordance with (b)(1)-(12) below; and

e. The assessment shall include a review of the list of fresh fruits, vegetables, and cut herbs offered by the farmer in order to determine whether or not the applicant farmer meets the eligibility criteria in accordance with 7 CFR 248.

(b) The department shall deny authorization of an applicant farmer, or terminate an authorized farmer, if any of the following criteria are true at any time:

(1) The farm’s location is not within NH borders;

(2) The applicant farmer or authorized farmer does not provide information regarding eligible foods sold at the farmers’ market;

(3) The department determines that the applicant farmer or authorized farmer is not able to meet application program requirements or existing selection criteria as evidenced by:

a. Sanction points obtained under He-P 3307.02;

b. Failure to meet monitoring requirements in accordance with He-P 3306;

c. Failure to attend face-to-face training upon initial application as set forth in 7 CFR 248.10(d); and

d. Failure to attend training as required by the department in accordance with He-P 3305.04;

(4) The authorized farmer has failed to provide eligible foods at the current price or less than the current price charged to other customers;

(5) A conflict of interest exists in that a farm employee is dually employed by the WIC program;

(6) The farmer does not grow at least one eligible fruit, vegetable, or cut herb that is fresh, locally grown, and unprepared during the FMNP season in accordance with 7 CFR 248.8;

(7) T he applicant farmer or authorized farmer does not accept, at a minimum, cash for food purchases from the general public as well as the FMNP recipient;

(8) The applicant farmer or authorized farmer does not maintain a smart phone or tablet with the ability to scan a quick response (QR) code or bar code with an internet or data connection to accept and process the FMNP electronic benefit;

(9) The applicant farmer or authorized farmer does not attend the market(s) on the dates, and times identified on the application;

(10) The applicant farmer or authorized famer has prior, pending, or under appeal sanctions;

(11) The department determines that the farm was sold or had a change in ownership to circumvent a FMNP sanction in accordance with 7 CFR 248;

(12) The applicant farmer provides false or misleading information on the farmer application or other required program documentation; or

(13) The applicant farmer was asked to provide additional information to the department and failed to do so within 30 days.

(c) A farmer that has been denied authorization initially or terminated during the course of a current authorization period shall not reapply for authorization until:

(1) The FMNP season following the date of the farmer’s receipt of the department’s notice; or

(2) The FMNP season following the date of an appeal decision upholding the department’s decision to deny authorization or terminate.

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He-P 3305.02 Written Agreement.

(a) Written agreements shall include the requirements of 7 CFR 248.10(b) and the following:

(1) The farmer shall provide at least one of the eligible foods pursuant to He-P 3302.01(a) and (b);

(2) The farmer shall attend the markets on the dates as identified in the application; and

(3) The farmer shall:

a. Provide eligible foods at the current price or less than the current price charged to customers;

b. Accept cash for food purchases from the general public as well as the FMNP recipient;

c. Maintain a smart phone or tablet with the ability to scan a QR code or bar code;

d. Use an active email account capable of receiving the FMNP agreement and program information;

e. Use a smart device for the purpose of processing benefits;

f. Provide the department information on inventory records for eligible foods and sales for the authorized FMNP season;

g. Display the FMNP authorized poster at the farmers’ market;

h. Label and price the eligible food available for sale at the farmers’ market;

i. Comply with the following:

1. Title VI of the Civil Rights Act of 1964 (42 U.S.C 2000d et seq.);

2. Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)

3. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C 794);

4. Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.);

5. Department of Agriculture regulations on non-discrimination (7 CFR parts 15, 15a, and 15b); and

6. FNS directives and guidelines to the effect that no person shall, on the grounds of race, color, national origin, age, sex, or handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity for which the department received federal assistance from FNS;

j. Provide FMNP customers the same courtesies provide to non-FMNP customers;

k. Attend training on FMNP procedures as scheduled by the department ;

l. Ensure that cashiers and all other staff are fully trained and understand the FMNP requirements;

m. Ensure that only FMNP eligible foods are sold to recipients;

n. Provide FMNP eligible goods at prices that are fair and competitive in comparison with farmers in their peer group;

o. Be monitored by the department for compliance with FMNP program rules;

p. Provide ready access to FMNP redemption information at the request of the department;

q. Not charge the department for non-eligible foods;

r. Not charge the department for foods not received by recipient;

s. Not provide cash, change, non-eligible foods, or other items in lieu of eligible foods to recipients;

t. Notify the department in writing within 15 days of the farmer ceasing operations or a change in ownership, name of farm, or location, thereby permitting the department to terminate the vendor agreement in accordance with He-P 3305.01(b)(11);

u. Maintain a copy of the current NH FMNP approved goods at each cash register or check out line; and

v. Not offer incentive items solely to FMNP recipients and not to other customers in an effort to obtain FMNP business.

(b) Pursuant to changes in federal or state statutes, rules, or other requirements, the department shall revise all current agreements, and the amended agreements shall include the original expiration date without prejudice.

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He-P 3305.03 Periodic Review of Farmer Participation. The department shall conduct reviews at least once during a current farmer’s participation period using the selection criteria as described in He-P 3305.01(b).

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He-P 3305.04 Farmer Training. The department shall provide training to farmers pursuant to 7 CFR 248.10(d) by implementing the following:

(a) The department shall provide farmers with initial face-to-face training for all farmers who have never previously participated in the program prior to their commencing participation in the FMNP;

(b) At least one representative of the farmer shall participate in FMNP training annually as described in (d) below;

(c) Annual training by the department shall communicate changes in pertinent regulations, rules, and procedures and keep farmers informed of problems and suggestions to improve eligible food availability, such as:

(1) Eligible foods;

(2) Proper FMNP benefit redemptions procedures;

(3) Equitable treatment of FMNP recipients, including the availability of produce to FMNP recipients that is of the same quality and cost as that sold to other customers;

(4) Civil rights compliance and guidelines; and

(5) Other training topics that relate to compliance with the requirements of the FMNP;

(d) Annual training shall be provided by the department in a variety of formats such as:

(1) Face-to-face training;

(2) Live webinar;

(3) Self-paced learning module;

(4) Newsletter; or

(5) Other formats as developed by the department;

(e) At least one alternative date on which to attend face-to-face training shall be provided to farmers;

(f) The department shall be available for further farmer training and education that is:

(1) Requested by the farmer; or

(2) Deemed necessary as a result of farmer monitoring activities;

(g) The farmer shall notify the department and request additional training at any time during the participation period if, in the opinion of the farmer, farmer staff does not adequately understand FMNP procedures; and

(h) Mandatory training shall be deemed necessary by the department as a result of repeated farmer violations or as a result of farmer monitoring activities.

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PART He-P 3306 FARMER MONITORING

He-P 3306.01 Types of Farmer Monitoring.

(a) Food benefits presented for payment from a farmer participating in the FMNP shall be audited by the department for the following:

(1) The food benefit redemption costs in relation to the farmer’s posted prices;

(2) The foods received by the FMNP recipient;

(3) The farmer’s adherence to state and federal regulations in accordance with 7 CFR 248.10(e), and 7 CFR 248.17(c); and

(4) Other such factors as determined by individual circumstances including risk factors as described in (d) below.

(b) Department staff shall annually monitor 10 percent of the authorized farmers and take corrective action as needed in accordance with 7 CFR 248.10(e).

(c) Farmers that meet one or more of the risk factors identified in (d) below shall be reviewed during the FMNP season for:

(1) Continued authorization; or

(2) Sanctioning in accordance with He-P 3307.

(d) Risk factors shall include one or more of the following:

(1) Recurring written or verbal complaints by recipient(s) or local agency representatives;

(2) Sanctions received during the previous FMNP season;

(3) High volume of FMNP redemptions by a farmer or farmers’ market in comparison to other farms and farmers’ markets across the state;

(4) Farmers in their first year of FMNP operation;

(5) A recurring incidence of non-compliance with program rules and federal regulations; and

(6) Other concerns brought to the department for review such as but not limited to, recurring written or verbal complaints by market managers or community members and transactions being completed after business hours reported on the application.

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He-P 3306.02 Monitoring Procedures. The department shall establish monitoring procedures for each farmer’s compliance history by including one or more of the following in accordance with past violations to ensure current compliance with 7 CFR 248.10(e):

(a) Review of farmer participation, transaction history, and related correspondence;

(b) Overt or covert observation of farmer compliance with program requirements;

(d) Review of farmer pricing; and

(e) FMNP recipient contact to verify purchases.

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PART He-P 3307 SANCTIONS

He-P 3307.01 Recipients.

(a) Recipient sanctions shall be as follows:

(1) The actions of a recipient, a parent, or caretaker of an infant or child recipient, a proxy, or an FMNP benefit holder shall be binding on the recipient in the determination of violations and imposition of sanctions;

(2) Sanctions shall only be imposed on those recipients for whom the evidence supports the sanction and not to all participating family members, even though the violations might have been committed with food benefits issued to one member; and

(3) When more than one violation is involved, the sanction shall be based on the highest category violation.

(b) Category I violations shall include actions related to misuse of program benefits or disruptive recipient behavior such as:

(1) Failure to follow proper redemption procedures such as attempting to purchase or purchasing non-eligible FMNP foods; and

(2) Behavior within a farmers’ market that is disruptive but not abusive or threatening.

(1) Written warning for the first occurrence of violation within the FMNP season, unless a violation of Category II pursuant to (d)(1) below for abusive behavior has been issued within the same FMNP season, then (e)(2) below shall be implemented; or

(2) Disqualification of the remaining FMNP season for the second occurrence of any violation within the same FMNP season as the warning letter in (c)(1).

(d) Category II violations shall include actions related to more serious misuse of program benefits or abusive recipient behavior such as:

(1) Abusive or threatening behavior that includes, for example, swearing, hitting, or threatening at a farmers’ market, that is directed towards WIC staff, the farmer, or other FMNP recipients;

(2) Misrepresentation of eligibility for FMNP benefits;

(3) Exchange of FMNP benefits for cash or credit from farmers; and

(4) Sale, attempted sale, or exchange of FMNP eligible foods for cash, goods, or services.

(e) Category II violations shall be subject to the following sanctions:

(1) Written warning for the first actual or attempted occurrence of violation; or

(2) Disqualification for the remainder of the current FMNP season and the following FMNP season for the second occurrence of any violation within the same FMNP season as the warning letter (e)(1).

(f) The department shall collect reimbursement for improperly obtained items as follows:

(1) In accordance with 7 CFR 248.20, the department shall demand repayment, in writing, from the recipient or parent or caretaker of an infant or child recipient equal to the full value of these benefits;

(2) The department shall issue a second demand for repayment if full restitution is not made, or a repayment schedule is not agreed upon within 30 days of receipt of the demand for repayment as described in (f)(1) above; and

(3) If no written or oral response has been received from the recipient, parent, or caretaker of an infant or child recipient after the second demand for repayment as described in (f)(2) above, the department shall refer the matter to the New Hampshire department of justice for enforcement.

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He-P 3307.02 Farmer Sanctions.

(a) Farmer sanctions shall be as follows:

(1) Failure to allow monitoring;

(2) Failure to clearly identify pricing of fruits, vegetables, and cut herbs;

(3) Failure to identify fruits, vegetables, and cut herbs grown out of state that are not eligible for FMNP benefits;

(4) Selling fruits, vegetables, and cut herbs to a FMNP recipient that are not grown in New Hampshire;

(5) Selling anything that is not an eligible food to a FMNP recipient;

(6) Failure to follow proper redemption procedures;

(7) Asking an FMNP recipient for identification or to share their PIN to complete a FMNP transaction;

(8) Failure to attend farmers’ markets, on the dates identified on the FMNP application without good cause;

(9) Failure to remain open during reported business hours at farmers’ markets without good cause;

(10) Charging sales tax on FMNP approved foods;

(11) Contacting recipients in an attempt to have them return to fix a farmer error or to seek reimbursement for a FMNP food cost not paid by the department;

(12) Failure to keep all FMNP recipients’ information confidential; or

(13) Failure to treat FMNP recipients like any other customers.

(b) The department shall:

(1) Issue sanctions in accordance with violations listed in He-P 3307.02(a) above; and

(2) Notify the farmer in writing of the imposition of sanctions and the specific violation(s) for which they were assigned.

(1) Written notice of the sanction; and

(2) Requirement to receive additional training related to the sanction.

(d) When a farmer has been assessed for a second sanction within the same season as the first sanction, the department shall issue a:

(1) Written notice of the sanction; and

(2) Requirement to provide a corrective action plan within 30 days to be approved by the department to include the steps that the farmer will be taking in order to correct the sanction and how they will conduct business moving forward to achieve compliance with the farmer agreement.

(e) The farmer’s failure to provide a corrective action plan pursuant to (d) above shall result in disqualification for the remainder of the current season.

(f) When a farmer has been assessed a third identical sanction within the same season, the farmer shall be disqualified for:

(1) The remainder of the current season; and

(2) The following season.

(g) A farmer committing fraud or abuse of FMNP shall be liable to prosecution under applicable federal, state, or local laws. Farmers who have willfully misapplied, stolen, or fraudulently obtained program funds shall automatically:

(1) Receive a third sanction; and

(2) Be disqualified for:

a. The remainder of the current season; and

b. The following season.

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PART He-P 3308 NOTICES AND APPEAL

He-P 3308.01 Recipients.

(a) Administrative appeal procedures shall comply with 7 CFR 248.16 and the administrative appeal process as described in RSA 541-A and He-C 200.

(b) If a recipient appeals the termination of benefits, the recipient shall continue to receive FMNP benefits until the hearing officer reaches a decision or the expiration of the current FMNP season, whichever occurs first.

(c) Written notification of the adverse action, the cause(s) for the action, and the effective date of the action shall be mailed to the most recent address provided by the recipient. The notice shall contain the option to appeal the decision.

(d) Recipients shall have 10 days from receipt of the notice of an enforcement action to request an administrative appeal in writing.

(e) The adverse action shall become final after the 10 days in (d) above, if the recipient fails to request an appeal.

(f) Advanced notice of the time and place of the hearing shall be provided to all parties involved to give them sufficient time to prepare for the hearing.

(g) In accordance with 7 CFR 248.16(c)(4), recipients shall have at least one opportunity to reschedule a previously scheduled hearing. In doing so, the recipient shall waive the right to a decision pursuant to the timeline in (h) below.

(h) Written notification of the decision in the appeal shall be provided to the recipient within 60 days from the date of receipt of the request for a hearing.

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He-P 3308.02 Farmers.

(a) Administrative appeal procedures shall comply with 7 CFR 248.16 and the administrative appeal process as described in RSA 541-A and He-C 200.

(b) If an appeal is requested, agency action shall not be finalized until the hearing officer reaches a decision or the expiration of the current FMNP season, whichever occurs first.

(c) All notices of enforcement action from the department to the farmer and listed in (i) below shall be in writing and contain the option to appeal.

(d) The farmer shall have 10 days from receipt of the notice of an enforcement action to submit an appeal, in writing, to the department.

(e) The adverse action shall become final after the 10 days in (d) above, if the farmer fails to request an appeal.

(f) In accordance with 7 CFR 248.16 (c)(4), farmers shall have at least one opportunity to reschedule a previously scheduled hearing. In doing so, the farmer shall waive the right to a decision pursuant to the timeline in (g) below.

(g) Within 60 days of receiving the farmer’s request for an administrative appeal, the department shall provide the farmer with a written notification of the appeal decision.

(h) The department shall not be responsible for losses incurred by the farmer as a result of adverse action taken by the department.

(i) A full administrative appeal shall be provided for the following, if an appeal is requested:

(1) Imposing a sanction as described in He-P 3307.02;

(2) Termination of an agreement for noncompliance or cause;

(3) Denial of authorization based on failure to meet federal, or department established vendor selection criteria as described in He-P 3305.01; or

(4) Any disqualification of a farmer by the department.

(j) Expiration of an authorized agreement and the validity or appropriateness of the department’s vendor selection criteria listed in He-P 3305.01, shall not be subject to appeal in accordance with 7 CFR 248.16(a).

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APPENDIX

RULE	STATE STATUTE OR FEDERAL REGULATION IMPLEMENTED
He-P 3301	RSA 132:12-f
He-P 3302	RSA 132:12-f; RSA 541-A; 42 USC 1771; 7 CFR 248
He-P 3303	RSA 132:12-f; 7 CFR 248.6; 42 CFR 248.8
He-P 3304	RSA 132:12-f; 7 CFR 246.5; 7 CFR 246.6
He-P 3305	RSA 132:12-f; 7 CFR 248.7; 7 CFR 248.9; 7 CFR 248.10
He-P 3306	RSA 132:12-f; 7 CFR 248.10; 7 CFR 248.17
He-P 3307	RSA 132:12-f; 7 CFR 248.18; 7 CFR 248.20
He-P 3308	RSA 132:12-f; 7 CFR 248.19; 7 CFR 248.16