Original Notice.

Preproposal statement of inquiry was filed as WSR 99-06-025.

Title of Rule: Chapter 365-140 WAC, State funding of local emergency food programs, these rules govern the emergency food assistant program (EFAP), outlining broad policies and procedures for participants.

Purpose: Update WACs to correspond to changes recommended by the Department of Community, Trade and Economic Development and its advisory group.

Statutory Authority for Adoption: RCW 43.330.040.

Statute Being Implemented: RCW 43.330.130.

Summary: Changes include: Update RCW reference for EFAP; tighten definition of an eligible food bank; eliminate some of the details of allocation formulas; changing from "Centennial Accord tribes" to "federally recognized tribes" the tribes eligible to apply directly as contractors; allow tribes flexibility in using their EFAP funds in either of the EFAP programs; remove food banks' option to be sponsored by another nonprofit; allowing food banks to match EFAP funds with more in-kind contributions and less cash.

Reasons Supporting Proposal: The changes were all recommended by the advisory group for the program. The changes help clarify rules for participation, allow for greater flexibility, and will aid in the administration of the program.

Name of Agency Personnel Responsible for Drafting and Implementation: Susan Eichrodt, Department of Community, Trade and Economic Development, (360) 586-4921; and Enforcement: Mina Apacible, Department of Community, Trade and Economic Development, (360) 753-4979.

Name of Proponent: Department of Community, Trade and Economic Development, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: (1) RCW citation updated to reflect the current statutory authority for implementing program. (2) Definition of food bank would be clarified to allow better service to hungry clients. May also eliminate a very few food banks (2-4) that may not meet the new criteria. (3) Eliminate the specific details of the allocation formula for tribes and food banks. Would allow for greater flexibility in changing the formula when circumstances warrant change. (4) Allow federally recognized tribes instead of only tribes that signed the Centennial Accord to apply directly as contractors in the program. Would allow a greater number of tribes to participate as contractors. (5) Allow tribes to participate in either the food bank or voucher program or both. Would allow tribes the flexibility to put their money where it would do the greatest good. (6) No longer allow a food bank to be "sponsored" by another 501(c)3 agency. Food bank must be a 501(c)3 or be merged into a 501(c)3 organization in order to be eligible. The IRS does not recognize the sponsor relationship. Would increase the fiscal reliability of all food banks and oblige them to meet IRS standards. Might eliminate a very small number (3-5) of food banks that refuse to or cannot comply. This recommendation was made by advisory group two years ago. (7) Allow food banks that cannot meet the required cash match of at least 50% of the EFAP funds to meet the requirements by matching EFAP with 200% of in-kind donations (donated labor, food, etc.). Would allow more food banks to participate in the program that did not have sufficient cash match. (8) Clarification that a lead agency that is also a distribution center may only take 15% of the total contract for administration costs. No impact as this is not a change in policy.

Proposal Changes the Following Existing Rules: See above changes and impacts.

No small business economic impact statement has been prepared under chapter 19.85 RCW. CTED has determined that there is no impact on small businesses through implementation of these changes, therefore a small business economic impact statement is not necessary.

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Spokane Neighborhouse Action Program, East 2116 First Street, Meeting Room, Spokane, WA 99202, on June 9, 1999, at 1:00 to 3:00 p.m.; and at the Department of Community, Trade and Economic Development, 906 Columbia Street S.W., Conference Room 5, Olympia, WA 98504, on June 10, 1999, at 10:00 a.m. to 12:00 p.m.

Assistance for Persons with Disabilities: Contact Susan Eichrodt by May 25, 1999, TDD (360) 753-2200, or (360) 586-4921.

Submit Written Comments to: Susan Eichrodt, Program Manager, Department of Community, Trade and Economic Development, 906 Columbia Street S.W., P.O. Box 48300, Olympia, WA 98504-8300.

Date of Intended Adoption: July 15, 1999.

May 5, 1999

Jean L. Ameluxen, Director

Intergovernmental Relations

OTS-3114.1

AMENDATORY SECTION(Amending Order 87-11, filed 9/18/87)

WAC 365-140-010
Authority.

These rules are adopted under the authority of RCW ((43.63A.060)) 43.330.040 (2)(g) which provides that the director shall ((make such rules and regulations and do all other things)) adopt rules necessary ((and proper)) to carry out the purposes of the chapter ((43.63A RCW)).  RCW ((43.63A.065(2))) 43.330.130 provides that among its functions and responsibilities the department shall ((administer state and federal grants and programs which are assigned to the department by the governor or the legislature)) coordinate services to communities that are directed to the poor and disadvantaged, including emergency food assistance.

[Statutory Authority: RCW 43.63A.060.  87-19-113 (Order 87-11), § 365-140-010, filed 9/18/87; 86-08-043 (Order 85-15), § 365-140-010, filed 3/27/86.]

(1) "Department" means the department of community, trade, and economic development.

(2) "Director" means the director of the department of community, trade, and economic development.

(3) "Food bank" means an emergency food program that distributes unprepared food ((on a regular basis without a charge)) without charge to its clients, is open a fixed number of hours and days each week or month, and such hours and days are publicly posted.

(4) "Food distributor" means a food distribution agency that collects, warehouses, and distributes food to emergency food programs and other charities on a county, regional, or state-wide basis.

(5) "Commodity program" means a program that primarily distributes USDA surplus commodities to clients (TEFAP).

(6) "Emergency food assistance program" means the state-wide activities of the department to assist local emergency food programs by allocating and awarding state funds.

(7) "Applicant" means a public or private nonprofit organization, tribe or tribal organization which applies for state emergency food assistance.

(8) "Contractor" means an applicant which has been awarded state funds under the emergency food assistance program, and which has entered into a contract with the department of community, trade, and economic development to provide emergency food assistance to individuals.

(9) "Lead agency contractor" means a contractor which may subcontract with one or more local food banks to provide emergency food assistance to individuals, and with food distributors to provide food to food banks.

(10) "Tribal food voucher program" means the state-wide activities of the department which allocate and award state funds to tribes and tribal organizations that issue food vouchers to clients.

(11) "Religious service" means any sectarian or nondenominational service, rite, or meeting that involves worship of a higher being.

(12) "Participating food bank" means a local public or private nonprofit food bank which enters into a subcontract with a lead agency contractor to provide emergency food assistance to individuals.

(13) "Emergency food" means food that is given to clients who do not have the means to acquire that food themselves, so that they will not go hungry.

(14) "Special dietary needs" mean funds to purchase food that meets the nutritional needs of special needs population.

(15) "In-kind" means the value of volunteer services or donated goods such as staff time, rent, food, supplies and transportation.

(16) "Administrative costs" mean management and general expenses, including membership dues, that cannot be readily identified with a particular program or direct services.

(17) "Operational expenses" mean those costs clearly identifiable with providing direct services to eligible clients, or distribution services to food banks such as staff time, transportation costs, and equipment rental.

[Statutory Authority: RCW 43.63A.060.  95-12-002, § 365-140-030, filed 5/24/95, effective 7/1/95.  Statutory Authority: RCW 43.63A.060 and 1992 c 232 § 222(5).  94-18-073, § 365-140-030, filed 9/2/94, effective 10/3/94; 93-18-021 (Order 93-06), § 365-140-030, filed 8/25/93, effective 9/25/93.  Statutory Authority: RCW 43.63A.060.  87-19-113 (Order 87-11), § 365-140-030, filed 9/18/87; 86-20-010 (Order 86-14), § 365-140-030, filed 9/22/86; 86-08-043 (Order 85-15), § 365-140-030, filed 3/27/86.]

At least seventy percent of the total allocation appropriated by the legislature shall be contracted to lead agency contractors.  These funds shall be for the purpose of funding the activities of food banks and food distributors, the purchase of special dietary needs foods, and providing special dietary needs training.  The specific appropriation for timber and salmon dependent communities shall be contracted to food banks in those communities.  Of the remainder of the total allocation, not including department administrative costs, allocations shall be contracted to a discretionary program if the department elects to award such contracts, the tribal food voucher program, and additional special dietary needs training.  Allocations for each county shall be contracted to lead agency contractors on the following basis:

(1) A formula for distributing the funds in proportion to need shall be established by the department in consultation with a committee appointed by the director or the director's designee.  ((The formula shall address the following:

(a) Poverty population in each county; and

(b) Unemployed population in each county.)) This formula may only be changed at the beginning of a biennial contract period.

(2) The department shall award the lead agency contract to an eligible contractor as defined by the department, that is supported by a least two-thirds of the participating food banks in a county.

(3) The department may award the combined allocation for two or more counties to a single applicant.

(4) The department shall award a contract to no more than one lead agency contractor in each county, with the exception of King County, where there may be three lead agency contractors, to administer subcontracts with one or more participating food banks and food distributors.

(5) Federally recognized tribes ((that have signed the Centennial Accord)) may apply to the department directly for the food bank program without having to subcontract with the lead agency.  They must meet all the same criteria and requirements as lead agencies.

(6) Within each lead agency service area, except for the additional funds specifically allocated for food banks in timber and salmon dependent communities, funds shall be allocated between food distributors, food banks, and special dietary needs foods and training based on a two-thirds vote of all participating food banks and the lead agency.

(7) The additional funds specifically allocated for food banks in timber and salmon dependent communities shall remain in the amounts identified by the legislature.

(8) If participating food banks designate funds for food distribution, they shall elect with a two-thirds vote of the participating food banks and the lead agency, an eligible distributor as defined by the department.  They may choose more than one distributor with which to subcontract.  The lead agency contractor shall be responsible for subcontracting with the food distributor(s).

(9) A formula for distributing the funds to each tribe and tribal organization participating in the ((tribal food voucher)) emergency food assistance program in proportion to need shall be established by the department in consultation with a committee ((appointed by the director or the director's designee.  The formula shall address the following:

(a) Poverty population in each tribe; and

(b) Unemployment population in each tribe)) consisting of representatives from all tribes participating in the program. This formula may only be changed at the beginning of a biennial contract period.

(10) The department shall pay for services provided under the emergency food assistance program after the contractor submits a monthly report of expenditures incurred and a request for reimbursement.

(11) Tribes may apply for ((either)) the food bank funds or ((tribal)) the food voucher funds((, but not for)) or both.  ((A tribe's allocation for either the tribal food voucher program or the food bank program shall be the amount that the tribe would receive as a participant in the tribal voucher program.  (E.g., should a tribe participate in the food bank program, its allocation will not be computed from the county's total food bank funds available, but from the tribal food voucher program's total funds available.))) Tribes will receive the same amount of funds whether they participate in one or both programs, computed as their share of the allocated EFAP tribal funds. It will be up to the discretion of each participating tribe how it allocates the EFAP funds.

(12) In the event that funds are not claimed by an eligible organization in a county or that a portion of the funds allocated to a county remains unspent, the lead agency contractor may request authorization from the department to reallocate funds, within its service area, to an area of unmet need.

(13) In the event that a portion of the funds allocated to a subcontracting tribe within a tribal contractor's contract remains unspent or unclaimed, the tribal contractor may request authorization from the department to reallocate funds to one of its other subcontracting tribes with unmet needs.

[Statutory Authority: RCW 43.63A.060.  95-12-002, § 365-140-040, filed 5/24/95, effective 7/1/95.  Statutory Authority: RCW 43.63A.060 and 1992 c 232 § 222(5).  93-18-021 (Order 93-06), § 365-140-040, filed 8/25/93, effective 9/25/93.  Statutory Authority: RCW 43.63A.060.  89-22-032, § 365-140-040, filed 10/27/89, effective 11/27/89; 87-19-113 (Order 87-11), § 365-140-040, filed 9/18/87; 86-20-010 (Order 86-14), § 365-140-040, filed 9/22/86; 86-08-043 (Order 85-15), § 365-140-040, filed 3/27/86.]

(1) The applicant must have a certified form from the IRS stating nonprofit status under section 501(c)3, or be a public nonprofit agency, be a recognized tribe, a tribal organization with 501(c)3 status, or an unrecognized tribe with 501(c)3 status.

(2) The applicant for funding as lead agency must have been operating as a public nonprofit or private nonprofit with 501(c)3 status for one year prior to the beginning date of the contract.

(3) The applicant for funding as a participating food bank must have been operating as a public nonprofit or private nonprofit with 501(c)3 status food bank for one year prior to the beginning date of the subcontract.  ((Participating private nonprofit food banks without 501(c)3 status may also be sponsored by a local public nonprofit agency or private nonprofit agency with 501(c)3 status.))

(4) The applicant for funding as a food distributor must have been operating as a public nonprofit or a private nonprofit with 501(c)3 status food distributor for one year prior to the beginning date of the contract.

(5) The applicant for lead agency or tribal contractor may or may not actually provide emergency food program services.

(6) The applicant must practice nondiscrimination in providing services and employment.

(7) The applicant must not require participation in a religious service as a condition of receiving emergency food or a food voucher.

(8) Applicants within a county or multicounty region, or tribes with established parameters for service, may define their service area boundaries for the purpose of equitably allocating resources.  The department encourages the provider to serve the client no matter what service areas the client resides in.  If appropriate, the provider may then refer the client to the agency servicing the area in which the client resides, or to the tribe which has established jurisdiction over the individual, for further assistance.  Providers must practice nondiscrimination when applying their service area policies.

(9) The applicant may not charge for food or food vouchers given to a client.

[Statutory Authority: RCW 43.63A.060.  95-12-002, § 365-140-050, filed 5/24/95, effective 7/1/95.  Statutory Authority: RCW 43.63A.060 and 1992 c 232 § 222(5).  94-18-073, § 365-140-050, filed 9/2/94, effective 10/3/94; 93-18-021 (Order 93-06), § 365-140-050, filed 8/25/93, effective 9/25/93.  Statutory Authority: RCW 43.63A.060.  87-19-113 (Order 87-11), § 365-140-050, filed 9/18/87; 86-20-010 (Order 86-14), § 365-140-050, filed 9/22/86; 86-08-043 (Order 85-15), § 365-140-050, filed 3/27/86.]

(1) Potential applicants will be notified by the department that in order to be considered for state emergency food financial assistance, an application must be submitted to the department.

(2) An applicant must make formal application using forms issued and procedures established by the department.  Such application shall be for the period indicated on the contract face sheet.  Failure of an applicant to make application in a timely manner, as specified by the department, may result in denial of the funding request.

(3) Department funds may not supplant other existing funding sources.

(4) Department funds may not be used to defray costs of distributing USDA commodities under the commodity program.

(5) The department shall notify successful applicants and shall provide to each of them a contract for signature.  This contract must be signed by an official with authority to bind the applicant and must be returned to the department prior to the award of any funds under this program.

(6) Applicants that receive food bank or food distribution funds are subject to the following fiscal requirements:

(a) The total funds from the department received by a nontribal lead agency contractor((, participating food bank)) or a food ((distributor)) distribution subcontractor ((for the emergency food assistance program)) must be equally matched by funds from other sources during the fiscal year.  No more than fifty percent of that match may be documented in-kind contributions. Nontribal participating food banks receiving funds from the department have two options for matching funds: They may equally match the EFAP funds, with no more than fifty percent being documented in-kind contributions; if they do not have at least one-half of their minimum match as cash, they may match their department funds by at least two hundred percent in in-kind contributions from other sources.

(b) Administrative costs for food bank and food distributor subcontractors under this program are limited to ten percent of their total contract award.  Administrative costs for a lead agency contractor((s)) who also provides direct emergency food assistance services as a participating food bank and/or services as a food distributor are limited to ten percent of the contractor's allocation for providing direct services ((as a participating food bank, and)), ten percent of the contractor’s allocation for providing direct services, ten percent of the contractor's allocation for providing food distributor services, and ten percent of the total contract award as food bank lead agency ((contractor)); total administrative costs, however, may not exceed fifteen percent of the total contract award.  Administrative costs for agencies who are lead agency contractors only are limited to ten percent of their total contract award.

(7) Tribal applicants ((that receive tribal food voucher funds)) are subject to the following fiscal requirements:

(a) Tribal contractors and subcontractors must match thirty-five percent of the funds received by the department for the emergency food assistance program.  No more than fifty percent of that match may be documented in-kind contributions.

(b) Of ((their total)) a contract award allocated to the tribal food voucher program, tribal contractors may not spend more than ten percent on administrative costs, and five percent on operational expenditures.  The balance of funds is to be used for food vouchers issued to clients. Of funds allocated to the food bank program, tribal contractors are subject to the same spending requirements as nontribal food bank contractors as per WAC 365-140-060 (6)(b).

[Statutory Authority: RCW 43.63A.060.  95-12-002, § 365-140-060, filed 5/24/95, effective 7/1/95.  Statutory Authority: RCW 43.63A.060 and 1992 c 232 § 222(5).  93-18-021 (Order 93-06), § 365-140-060, filed 8/25/93, effective 9/25/93.  Statutory Authority: RCW 43.63A.060.  87-19-113 (Order 87-11), § 365-140-060, filed 9/18/87; 86-20-010 (Order 86-14), § 365-140-060, filed 9/22/86; 86-08-043 (Order 85-15), § 365-140-060, filed 3/27/86.]

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