IN THE SENATE OF THE UNITED STATES
April 25, 2013
Mrs. Gillibrand (for herself, Mr. Brown, Mr. Cowan, Mr. Casey, Mr. Sanders, Mr. Schumer, Mr. Harkin, and Mr. Franken) introduced the following bill; which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry
To amend the Department of Agriculture Reorganization Act of 1994 to establish in the Department of Agriculture a Healthy Food Financing Initiative.
This Act may be cited as
Healthy Food Financing
Congress finds that—
developing high-quality fresh food retail outlets creates jobs, expands markets for agricultural producers in the United States, advances health, and supports economic vitality in underserved communities;
model programs in several States and cities (including the States of California, Illinois, New York, and Pennsylvania and the city of New Orleans) have shown success in creating public/private partnerships that leverage millions in private capital and grant funds to establish successful retail outlets in low-income underserved communities;
as a result of those programs, thousands of jobs have been developed, hundreds of thousands of people are gaining access to healthy food, and sustainable businesses have been developed;
despite those successes, more than 25,000,000 people in the United States live in low-income communities with very limited access to supermarkets, grocery stores, and healthy food;
with an increasing demand for fresh local foods, regional food hubs are rapidly expanding, with well over 200 food hubs operating in the United States as of the date of enactment of this Act;
regional food hubs are part of a growing local food system that strengthens rural economies by lowering entry barriers and improving infrastructure to establish, as well as expand, regional food markets; and
many food hubs are designed to move locally produced food into underserved communities;
supermarkets and grocery stores often face barriers to opening stores in communities with very limited access to healthy food, also known as food deserts;
the supermarket industry operates on a historically thin profit margin;
according to the 2011 National Grocers Association Independent Grocers Survey, the average net profit margin before taxes for independent grocers in 2010 was 1.08 percent;
urban operators face barriers, including—
increased real estate costs or limited availability of suitable commercial real estate in the community;
increased employee training needs and costs;
elevated security expenses; and
often zoning restrictions; and
supermarkets and grocery stores in rural food deserts also face barriers, including increased food delivery costs due to distance from distributers, dispersed customer base, and low volume;
the United States faces an obesity epidemic in which 30.5 percent of children ages 10 through 17 are overweight or obese;
the obesity epidemic contributes to increasing rates of chronic illness, including diabetes, heart disease, and cancer; and
the obesity epidemic cost the United States $147,000,000 in medical expenses in 2008, and this cost is expected to rise in the future;
more than 170 studies show that—
access to healthy food is particularly a problem in hundreds of low-income, rural, and urban communities, as well as communities of color in the United States; and
the opportunity to access healthy food is linked to lower levels of obesity, diabetes, and other food-related chronic illnesses, leading to better health outcomes;
children from low-income families are twice as likely to be overweight as children from higher income families; and
African-American and Hispanic children are more likely than Caucasian children to be obese;
studies show that when healthy foods are available, people will increase consumption of fruits and vegetables;
leading public health experts, including the Centers for Disease Control and Prevention, the American Heart Association, the Institute of Medicine, and the American Public Health Association, agree that providing improved access to supermarkets and grocery stores is needed to improve public health and prevent obesity;
access to affordable capital is a significant problem for rural and urban supermarkets, grocery stores, regional food hubs, farmers markets, and healthy food retail business enterprises;
by providing seed capital and technical assistance, the Federal Government, through time-limited investments, can—
attract private sector investment to create and retain much-needed jobs; and
provide long-term, sustainable solutions to the decades-old problem of limited access to healthy food in underserved, low-income urban and rural communities; and
legislation establishing a national fund modeled on successful programs in Pennsylvania and other States and localities will help create much-needed jobs and economic revitalization, address an important part of the obesity epidemic, and solve the healthy food access problem in hundreds of communities across the United States.
Healthy food financing initiative
Subtitle D of the Department of Agriculture Reorganization Act of 1994 ( 7 U.S.C. 6951 ) is amended by adding at the end the following:
Healthy food financing initiative
The purpose of this section is to establish a program to improve access to healthy foods in underserved areas, to create and preserve quality jobs, and to revitalize low-income communities by providing loans and grants to eligible healthy food retailers to overcome the higher costs and initial barriers to entry in underserved, urban, suburban, and rural areas.
In this section:
Community development financial institution
The term community development financial institution has the meaning given the term in section 103 of the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4702 ).
The term farmers market means a common facility or area where several agricultural producers gather on a regular, recurring basis to sell a variety of fresh fruits and vegetables and other locally grown farm products directly to consumers.
Food access organization
The term food access organization means a nonprofit organization with expertise in improving access to healthy food in underserved communities.
Healthy food retailer
The term healthy food retailer means a commercial, cooperative, and nonprofit seller of fresh or healthy food, including a grocery store, mobile healthy food retailer, farmers market, cooperative, corner store, bodega, or other store that sells other food and non-food options along with a full range of fresh or healthy foods.
The term Initiative means the Healthy Food Financing Initiative established in the Department by subsection (c)(1).
The term local funds means the allocation of national funds and any other forms of financial assistance (including grants, loans, and equity investments) that are raised by partnerships to carry out the purposes of this section.
The term national funds means any Federal appropriation made to carry out this section and any other forms of financial assistance (including grants, loans, and equity investments) that are raised by the national fund manager to carry out the purposes of this section.
National fund manager
The term national fund manager means a community development financial institution in existence as of the date of enactment of this section and certified by the Community Development Financial Institutions Fund of the Department of the Treasury that is designated by the Secretary to manage the Initiative for purposes of—
raising private capital;
providing financial and technical assistance to partnerships; and
funding eligible projects directly at the request of partnerships to attract healthy food retailers to underserved urban, suburban, and rural areas, in accordance with this section.
The term partnership means a regional, State, or local public and private partnership that is organized to improve access to fresh, healthy foods by providing financial and technical assistance to eligible projects.
The term partnership includes—
an unit of State, local, or tribal government or a quasi-public State or local government agency;
a food access or community health organization committed to improving access to healthy foods;
a community development financial institution or other organization that is capable of administering a loan and grant program in accordance with this section; and
other organizations interested in improving access to healthy foods in underserved areas.
Regional food hub
The term regional food hub means a business or organization that actively manages the aggregation, distribution, and marketing of source-identified food products primarily from local and regional producers to strengthen the ability of the producers to satisfy wholesale, retail, and institutional demand.
There is established in the Department a Healthy Food Financing Initiative.
Not later than 1 year after the date of enactment of this section, the Secretary shall select and enter into a grant agreement with a national fund manager who shall be responsible for the management of the Initiative nationally.
Subject to the requirements of this paragraph, the national fund manager shall establish the eligibility criteria for projects to be assisted by the Initiative.
To be eligible to receive assistance through the Initiative, a project shall—
include a supermarket, grocery store, regional food hub, farmers market, or other healthy food retailer;
consist of a for-profit business enterprise, a member- or worker-owned cooperative, or a nonprofit organization;
meet the eligibility criteria established under this section;
continue to be a viable business enterprise with a financial viability plan;
require an investment of public funding to move forward and be competitive;
operate on a self-service basis;
in accordance with subparagraph (C), expand or preserve the availability of healthy, fresh, high quality unprepared foods, particularly fresh fruits and vegetables, in underserved areas; and
in the case of a regional food hub, serve those retailers that accept supplemental nutrition assistance program benefits.
In this subparagraph:
The term perishable food means food that is fresh, refrigerated, or frozen.
The term perishable food does not include canned goods.
The term staple food means food that is a basic dietary item, including bread, flour, fruits, vegetables, and meat.
The term staple food does not include snack or accessory food (such as chips, soda, coffee, condiments, and spices) or ready-to-eat, prepared food.
The term variety means an assortment of different types of food items.
Availability of fresh fruits and vegetables
For purposes of subparagraph (B)(vii), to expand or preserve the availability of fresh fruits and vegetables in underserved areas shall mean that the project—
carries a variety of fresh produce, as defined by the national fund manager to reflect differences in project size and type;
sells food for home preparation and consumption; and
at a minimum—
offers for sale at least 3 different varieties of food in each of the 4 staple food groups (bread and grains, dairy, fruits and vegetables, and meat, poultry, and fish), with perishable food in at least 2 categories, on a daily basis; or
has a store at which at least 50 percent of the total sales of the store (including food and nonfood items or services) are from the sale of eligible staple food.
Regional food hubs
For purposes of subparagraph (B)(vii), to expand or preserve the availability of fresh fruits and vegetables in underserved areas shall mean that the project supplies a variety of fresh produce to a healthy food retailer that is—
located in an underserved, low and moderate income area; and
Each eligible project shall be located in or, in the case of a regional food hub, serve—
a low- or moderate-income census tract, as determined by the Bureau of the Census of the Department of Commerce;
a population census tract that is treated as a low-income community under section 45D(e) of the Internal Revenue Code of 1986; or
an area that significantly serves an adjacent area that meets the criteria described in clause (i) or (ii), as approved by the national fund manager.
Each eligible project shall be located in or, in the case of a regional food hub, serve an underserved area, as determined by the partnerships according to criteria established by the national fund manager.
In determining whether an area is an underserved area, the following factors shall be taken into consideration:
Below average supermarket density or sales.
Geographical or physical barriers, such as highways, mountains, major parks, or bodies of water.
On an annual basis, the national fund manager shall collect data and publish maps that show the location of underserved areas.
Serving an underserved area
For the purposes of subparagraphs (D) and (E), to serve an underserved area shall mean that the project to which the regional food hub supplies fresh produce or other healthy foods includes—
healthy food retailers that are located in low and moderate income areas described in subparagraph (D); and
institutions such as hospitals, schools, and food banks that largely serve low and moderate income areas as so described.
Priority shall be given to projects that—
are located in severely distressed low-income communities, as defined by the Community Development Financial Institutions Fund of the Department of the Treasury; and
include 1 or more of the following characteristics:
The project will create or retain quality jobs in the community, as determined in accordance with subparagraph (B).
The project has community support in terms of store quality, affordability, site location, and coordination with local community plans or other programs promoting community and economic development.
The project supports regional food systems and locally grown foods, to the extent available.
In major metropolitan areas, the project is associated with a transit-oriented development project.
In areas with public transit, the project is accessible by public transit.
The project involves the reuse of a building that is listed in or eligible for the National Register of Historic Places.
The project involves a brownfield or grayfield (as those terms are used in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.)).
The estimated energy consumption of the project, calculated using building energy software approved by the Department of Energy, will qualify the project for designation under the Energy Star program established by section 324A of the Energy Policy and Conservation Act ( 42 U.S.C. 6294a ).
The project involves women- and minority-owned businesses.
For purposes of subparagraph (A)(ii)(I), a quality job is a job that—
provides wages that are comparable to or better than similar positions in existing businesses of similar size in similar local economies;
offers benefits that are comparable to or better than what is offered for similar positions in existing local businesses of similar size in similar local economies; and
is targeted for residents of neighborhoods with a high proportion of persons of low income (as that term is defined in section 102(a) of the Housing and Community Development Act of 1974 ( 42 U.S.C. 5302(a) )) through local targeted hiring programs.
Duties of the Secretary
The Secretary shall—
designate a national fund manager to manage national funds;
oversee the Initiative nationally;
work closely with the designated national fund manager—
to ensure that funds are used appropriately and in the most effective manner practicable; and
to develop the program strategy into a detailed work plan, program, and operating budget;
review and approve the operating budget for the national fund manager to ensure that the administrative costs are—
reasonable (not more than 5 percent of the total budget);
connected to the costs of operations; and
reflect efficient operations by the national fund manager; and
make available to the public an annual report, using data obtained from the Department of Agriculture, the Department of Health and Human Services, and the community development financial institutions, that describes the impacts of the Initiative, including tracking health and economic development indicators at the local, State, and national levels to determine the impacts of individual projects and the collective impact in local areas and statewide of funded projects and the Initiative overall.
National fund manager
The Secretary shall—
select the national fund manager through a competitive process from among community development financial institutions that have a proven and recent track record of success and effectiveness in—
attracting private capital;
developing and managing programs that provide grants and loans to support supermarkets and other healthy food retailer business enterprises in low- and moderate-income communities, including the development of grocery stores, farmers markets, and other healthy food retailer models;
making and servicing loans that are similar to loans proposed in the Initiative or having a record of otherwise successfully investing in healthy food retailer development projects;
effectively managing multiple contracts and subcontractors;
effectively managing large capital pools, of at least $100,000,000; and
providing or contracting for the provision of technical assistance; and
administer the Initiative by approving the disbursement of funds to the national fund manager in a manner that facilitates the implementation of the overall Initiative.
Not later than 45 days after the date of receipt of an award, the national fund manager shall develop, with guidance from and in consultation with the Secretary, and submit to the Secretary, a detailed work plan.
The Secretary shall review and approve the work plan, program budget, and administrative costs under subsection (e)(4)(C) prior to entering into an agreement with the national fund manager to administer the Initiative.
The Secretary shall conduct financial audits of, and establish performance targets for, the national fund manager, which shall include, at a minimum, the requirements described in this paragraph.
Partnerships funded by the Initiative shall be geographically diverse and representative of the underserved areas across the United States.
Focus on low-income communities
A substantial portion of the projects funded by partnerships shall serve very low- and low-income communities, as defined by the Bureau of the Census of the Department of Commerce.
Financial effectiveness of the national fund manager
The national fund manager and any local financial institution involved in a partnership shall demonstrate on-going capacity and timeliness in raising private capital and disbursing funds as required under the Initiative.
Technical assistance effectiveness of the national fund manager
The provision of technical assistance by the national fund manager shall be evaluated based on—
the responsiveness of the national fund manager to requests for assistance; and
the ability of the national fund manager to craft programs that develop needed new capacities in partnerships.
Performance targets shall address the allocation of funds by the national fund manager to partnerships and the tracking and reporting of the impacts of the funds in improving access to fresh, healthy foods and in achieving other related impacts.
Duties of the national fund manager
Allocation of funds
The national fund manager shall—
allocate at least 70 percent of any Federal appropriation made to carry out this section to partnerships that are selected based on the criteria described in paragraph (3);
retain not more than 30 percent of any Federal appropriation made to carry out this section to undertake financing activities described in subparagraph (C), including a reasonable amount for administrative costs (not to exceed 5 percent) approved by the Secretary in accordance with paragraph (4)(C);
use not more than 25 percent of any Federal appropriation made to carry out this section to establish regional food hubs.
Use of the national funds by partnership programs
As a condition on the receipt of funds, each partnership shall use—
the national funds received from the national fund manager under subparagraph (A)(i) to create 1 or more revolving loan programs or other revolving pools of capital or other products to facilitate financing of local projects as determined by the agreement between the partnership and the national fund manager; and
any remaining funds for grants, or, as approved, for innovative financing mechanisms.
Use of funds for administrative costs and other purposes shall be—
limited in accordance with the terms of the agreement negotiated between the national fund manager and partnerships;
based on whether administrative costs are reasonable, connected to the costs of operation, and reflect efficient operations by the partnership; and
determined using criteria including geographic coverage, program duration, and total funding amount.
The goal of this clause to limit administrative costs to the maximum extent practicable, but in no case may the amount used for administrative costs exceed 10 percent of the Federal funds allocated.
Use of the national funds by the national fund manager
The national fund manager shall use national funds described in subparagraph (A)(ii) to undertake financing and other activities to enhance and maximize the effectiveness of the Initiative, as determined by the agreement with the Secretary, including—
attracting other forms of financial assistance to match or leverage the national funds;
awarding national funds to partnerships in accordance with paragraph (3);
creating and managing pools of grant or loan capital that blend or leverage national funds with other forms of financial assistance, including capital in the form of tax credits under section 45D of the Internal Revenue Code of 1986, for the benefit of partnerships;
creating and managing pools of grant or loan capital that blend or leverage the national funds with other forms of financial assistance, including capital in the form of tax credits under section 45D of the Internal Revenue Code of 1986, to finance eligible local projects identified by partnerships or the national fund manager that have special or unique characteristics;
providing loans or grants directly to eligible local projects as matching funds if requested by a partnership;
providing credit enhancement or other financial products and instruments for the benefit of partnerships or eligible local projects;
providing technical assistance; and
funding reasonable administrative costs approved by the Secretary in accordance with paragraph (4)(C).
Responsibilities of the national fund manager
The designated national fund manager shall—
raise other forms of financial assistance to match or leverage the national funds;
use administrative funds to develop appropriate training programs and offer technical assistance services to—
State, local, and tribal governments;
the food retail industry; and
food access and health advocacy organizations to augment local capacities;
develop financial products such as loans, grants, and credit enhancement tools that can be used by partnerships to incentivize and support the development and retention of supermarkets and other healthy food retailers in underserved areas;
award Initiative funds to eligible partnerships through an annual competitive process in accordance with paragraph (3);
contract with a national food access organization to assist in the review of applications from partnerships and to provide technical assistance to local food access organizations in the proposed partnerships;
award and disburse funds to partnerships or eligible local projects in a timely manner;
create and meet performance benchmarks and reporting guidelines, as approved by the Secretary, including for—
the amount of capital raised and leveraged from financial institutions, partnerships, and other resources;
the geographic diversity of partnerships; and
the proportion of projects funded by the partnership that are in severely distressed low-income communities;
develop program guidelines and operating procedures for the Initiative, including—
maximum grant and loan amounts for projects;
eligible uses of funds;
prudent underwriting criteria;
limits on administrative costs; and
monitor the performance of partnerships; and
collect data, compile information, and conduct such research studies as the national fund manager determines to be relevant to the successful implementation of the Initiative, including—
to assess national and local market conditions;
to determine barriers to market entry; and
to identify opportunities for the development or retention of supermarkets and other healthy food retailers in underserved communities.
Criteria for awarding national funds to partnerships
The national fund manager shall award national funds to partnerships through a competitive process on an annual basis.
First round priority
In the first round of funding, the national fund manager shall give priority to a limited number of existing partnerships that have demonstrable capacity to implement fresh food financing programs in underserved areas quickly, and for which there is demonstrable, significant need for improved access to healthy food.
Additional rounds shall be designed to promote geographic diversity.
In awarding national funds to partnerships, the national fund manager shall consider—
the amount of funds and other resources pledged by a partnership to match or leverage national funds;
the degree of State, local, or tribal government support of the partnership as evidenced by matching grant and loan funds or other types of support, such as allocation of tax-exempt bonds, loan guarantees, and coordination of resources from other State or local economic development programs;
the capacity of the partnership to successfully develop and manage loan and grant programs;
the lack of supermarkets and other healthy food retailers in low- and moderate-income areas that would be served by the partnership;
the experience of the food access or community health organization of the partnership in outreach about access to healthy foods and local healthy food access issues;
the degree of community engagement and support in the development and retention of supermarkets and other healthy food retailers; and
the contribution of the program of the partnership to the overall geographic diversity of the Initiative.
Not later than 45 days after the date of receipt of an award, the national fund manager shall submit to the Secretary for approval a 3-year program and operating budget and detailed work plan that shall include—
costs for research and evaluation, technical assistance, and training; and
program and operating costs.
Earned revenues from loan fees and interest may be expended on program and operating costs in accordance with the budget approved by the Secretary.
Basis of review
The Secretary shall base the review under subparagraph (A) on—
the likelihood of the plan and expenditures to further the purposes of this section; and
whether the administrative costs are reasonable, connected to the costs of operation, and reflect efficient operations by the national fund manager.
Each partnership that receives assistance through the Initiative shall provide financial and technical assistance to eligible healthy food retailer projects in underserved areas within the defined communities of the partnership.
Each partnership shall designate a community development financial institution or other organization that is capable of administering a loan and grant program—
to execute grant agreements with the national fund manager; and
to serve as the manager of local funds.
Responsibilities of partnerships
A partnership shall—
raise other forms of financial assistance to match the national funds received by the partnership;
provide marketing and outreach to communities, the supermarket industry, other healthy food retailers, State and local government officials, and civic and public interest organizations—
to solicit applications from underserved areas from across the State or locality to be served by the partnership; and
to inform the communities and other persons about the availability of grants, loans, training, and technical assistance;
review and underwrite projects to determine whether—
a proposed project meets the criteria for eligible projects under subsection (c)(3); and
a proposed project meets the criteria for priority projects under subsection (c)(4);
provide technical assistance services to eligible healthy food retail operators and developers;
track and report outcomes, including—
the number of jobs created or retained;
the quantity of healthy food retail space created or retained and regional food hub capacity developed; and
such other health and economic indicators as are required by the national fund manager;
monitor and audit funded projects to ensure compliance with the Initiative, the national fund manager, and partnership program requirements for a period of at least 3 years;
submit an annual report to the national fund manager that describes—
the activities of the partnership;
the expenditure of local funds; and
success in meeting performance targets and satisfying such other terms and conditions as are specified in the agreement between the partnership and the national fund manager; and
coordinate with the national fund manager for the smooth operation of the Initiative.
As a condition on the receipt of assistance under this section, each partnership shall submit to the national fund manager for approval a 3-year budget and plan for all program and operating costs, including—
costs for research and evaluation, technical assistance, and training; and
administrative and operating costs.
Earned revenues from loan fees and interest may be expended on program and operating costs in accordance with the budget approved by the national fund manager.
Basis of review
The national fund manager shall base the review under subparagraph (A) on the likelihood of the budget and plan to further the purposes of this section.
Evaluation and monitoring
Program evaluation and financial audits shall occur at all levels of the Initiative to ensure that—
national and local funds are used properly; and
the objectives of the Initiative are met.
Program evaluation and financial audits
The Secretary shall—
conduct periodic program evaluations and financial audits of the national fund manager, partnerships, and projects funded by the Initiative; and
share with the national fund manager the results of the evaluations and audits.
The Secretary or the national fund manager shall evaluate partnerships to assess the health and economic impacts of projects funded by the Initiative.
Secretary of health and human services
The Secretary of Health and Human Services shall conduct research studies and evaluate the health impacts of the Initiative.
Community development financial institutions
Representatives of the Community Development Financial Institutions shall conduct research studies and evaluate the economic impacts of the Initiative.
Each partnership shall—
conduct periodic administrative and financial audits of projects funded by the Initiative; and
share with the national fund manager the results of the audits.
Failure of partnership
In a case in which a partnership fails, the national fund manager shall take over the portfolio of the failed partnership.
Not later than 180 days after the date of enactment of this section, the Secretary shall promulgate regulations—
for the conduct of a rigorous performance evaluation to determine the impact of the Initiative at the end of the initial 5-year period, which the Secretary shall submit to Congress;
to establish metrics for evaluating the effectiveness of the Initiative; and
under which the Secretary shall assess whether the Initiative should be extended at the end of the initial 5-year period.
Termination of contracts for cause
The Secretary may promulgate regulations under which the Secretary may terminate contracts for cause if the Secretary determines that to be necessary.
Authorization of appropriations
There is authorized to be appropriated to the Secretary to carry out this section $125,000,000, to remain available until expended.
(6)(C), by striking
or at the end;
in paragraph (7),
by striking the period at the end and inserting
; or; and
by adding at the end the following:
the authority of the Secretary to establish in the Department the Healthy Food Financing Initiative in accordance with section 242.