Current through Register Vol. XLI, No. 50, December 13, 2024
Section 61-10-6 - Waiver Applications6.1. The Commissioner shall have the sole authority to grant waivers to institutions in certain circumstances. Two types of waivers are recognized: 6.1.a. Phase-in waivers, which will authorize a state-funded institution to gradually increase its purchase of West Virginia food, as provided in section 5.3 of this rule; and6.1.b. Waivers from the annual purchase requirements, which will authorize a state-funded institution to obtain a retroactive waiver from the requirements of the Fresh Food Act.6.2. A state-funded institution shall be eligible for a phase-in waiver if the following requirements are met: 6.2.a. A primary liaison is identified, and regularly updated, as required by section 3.1;6.2.b. All information is submitted as required by sections 4.1 and 4.2; and6.2.c. Annual reports required by section 5.2 are submitted timely.6.3. A state-funded institution shall be eligible for a waiver from the annual purchase requirements for a particular year.6.3.a. The following circumstances may qualify a state-funded institution for a waiver: 6.3.a.1. The state-funded institution has made a good faith effort to increase the percentage of West Virginia Food it purchases;6.3.a.2. The state-funded institution cannot secure an adequate supply of food from West Virginia producers after making diligent efforts to do so; or6.3.a.3. Other extenuating circumstances, as determined by the Commissioner, prevent the state-funded institution from meeting the local purchasing requirements.6.3.b. To be eligible for a waiver, the state-funded institution must submit the following information, on or before July 31 following the fiscal year for which the waiver is sought: 6.3.b.1. The purchasing report form required by section 5.2 of this rule;6.3.b.2. A description of the circumstances that give rise to the request for a waiver;6.3.b.3. An explanation of the efforts taken by the state-funded institution to comply with the requirements of the Fresh Food Act;6.3.b.4. A plan to increase the percentage of West Virginia food purchased in the next fiscal year;6.3.b.5. Documentation supporting the waiver application; and6.3.b.6. Any additional information requested by the Commissioner.6.3.c. No state-funded institution shall be eligible for a fiscal year waiver if it has not satisfied all the requirements set forth in section 6.2 of this rule for the phase-in waiver. 6.4. A state-funded institution seeking a waiver pursuant to this section shall petition the Commissioner, on a form provided by the Department, submit information necessary to demonstrate its eligibility, along with any additional information or documentation required by the Commissioner. 6.4.a. Upon receipt of a petition from a state-funded institution, the Commissioner shall review the request and provide a written response within sixty (60) days of receipt.6.4.b. A state-funded institution that receives an adverse determination from the Commissioner shall have the right to request a second review of its application, either in writing or via a hearing before the Commissioner or his or her designee, to reconsider the decision. Such request must be received within fifteen (15) days of the adverse determination.6.4.c. The decision of the Commissioner, either after the expiration of the time to petition for a second review or following the final decision following a second review, shall be considered final. State-funded institutions are not eligible for administrative appeals as set forth in W. Va. Code § 29A-5-1et seq.6.5. A state-funded institution that has qualified for a waiver pursuant to section 6.3 of this rule shall be required, during the next fiscal year immediately following the year for which the waiver was granted, to cooperate and collaborate with the Department in an effort to improve the state-funded institution's ability to increase its purchase of West Virginia food. Application for, and granting of, a waiver is expressly conditioned upon agreement to this requirement.