[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR246.4]

[Page 343-347]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 246_SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND 
 
              Subpart B_State and Local Agency Eligibility
 
Sec. 246.4  State plan.


    (a) Requirements. By August 15 of each year, each State agency shall 
submit to FNS for approval a State Plan for the following fiscal year as 
a prerequisite to receiving funds under this section. The State agency 
may submit the State Plan in the format provided by FNS guidance. 
Alternatively, the State agency may submit the Plan in combination with 
other federally required planning documents or develop its own format, 
provided that the information required below is included. FNS requests 
advance notification that a State agency intends to use an alternative 
format. The State Plan shall be signed by the State designated official 
responsible for ensuring that the Program is operated in accordance with 
the State Plan. FNS will provide written approval or denial of a 
completed State Plan or amendment within 30 days of receipt. Within 15 
days after FNS receives an incomplete Plan, FNS will notify the State 
agency that additional information is needed to complete the Plan. Any 
disapproval will be accompanied by a statement of the reasons for the 
disapproval. After receiving approval of the State Plan, each State 
agency shall only submit to FNS for approval substantive changes in the 
State Plan. A complete and approved Plan shall include:
    (1) An outline of the State agency's goals and objectives for 
improving Program operations.

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    (2) A budget for nutrition services and administration funds, and an 
estimate of food expenditures.
    (3) An estimate of Statewide participation for the coming fiscal 
year by category of women, infants and children.
    (4) The State agency staffing pattern.
    (5) An Affirmative Action Plan which includes--
    (i) A list of all areas and special populations, in priority order 
based on relative need, within the jurisdiction of the State agency, the 
State agency's plans to initiate or expand operations under the Program 
in areas most in need of supplemental foods, including plans to inform 
nonparticipating local agencies of the availability and benefits of the 
Program and the availability of technical assistance in implementing the 
Program, and a description of how the State agency will take all 
reasonable actions to identify potential local agencies and encourage 
agencies to implement or expand operations under the Program within the 
following year in the neediest one-third of all areas unserved or 
partially served;
    (ii) An estimate of the number of potentially eligible persons in 
each area and a list of the areas in the Affirmative Action Plan which 
are currently operating the Program and their current participation, 
which participant priority levels as specified in Sec. 246.7 are being 
reached in each of these areas, and which areas in the Affirmative 
Action Plan are currently operating CSFP and their current 
participation; and
    (iii) A list of the names and addresses of all local agencies.
    (6) Plans to provide program benefits to eligible migrant 
farmworkers and their families, to Indians, and to homeless individuals.
    (7) The State agency's plans, to be conducted in cooperation with 
local agencies, for informing eligible persons of the availability of 
Program benefits, including the eligibility criteria for participation, 
the location of local agencies operating the Program, and the 
institutional conditions of Sec. 246.7(n)(1)(i) of this part, with 
emphasis on reaching and enrolling eligible women in the early months of 
pregnancy and migrants. Such information shall be publicly announced by 
the State agency and by local agencies at least annually. Such 
information shall also be distributed to offices and organizations that 
deal with significant numbers of potentially eligible persons, including 
health and medical organizations, hospitals and clinics, welfare and 
unemployment offices, social service agencies, farmworker organizations, 
Indian tribal organizations, organizations and agencies serving homeless 
individuals, and religious and community organizations in low-income 
areas.
    (8) A description of how the State agency plans to coordinate 
program operations with other services or programs that may benefit 
participants in, or applicants for, the program.
    (9) The State agency's nutrition education goals and action plans, 
including a description of the methods that will be used to provide drug 
and other harmful substance abuse information, promote breastfeeding, 
and to meet the special nutrition education needs of migrant farmworkers 
and their families, Indians, and homeless persons.
    (10) For Indian State or local agencies that wish to apply for the 
alternate income determination procedure in accordance with Sec. 
246.7(d)(2)(vii), documentation that the majority of Indian household 
members have incomes below eligibility criteria.
    (11) A copy of the procedure manual developed by the State agency 
for guidance to local agencies in operating the Program. The manual 
shall include--
    (i) Certification procedures, including:
    (A) A list of the specific nutritional risk criteria by priority 
level which explains how a person's nutritional risk is determined;
    (B) Hematological data requirements including timeframes for the 
collection of such data;
    (C) The procedures for requiring proof of pregnancy, consistent with 
Sec. 246.7(c)(2)(ii), if the State agency chooses to require such 
proof;
    (D) The State agency's income guidelines for Program eligibility;
    (E) Adjustments to the participant priority system (see Sec. 
246.7(e)(4)) to accommodate high-risk postpartum

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women or the addition of Priority VII; and,
    (F) Alternate language for the statement of rights and 
responsibilities which is provided to applicants, parents, or caretakers 
when applying for benefits as outlined in Sec. 246.7(i)(10) and 
(j)(2)(i) through (j)(2)(iii). This alternate language must be approved 
by FNS before it can be used in the required statement.
    (ii) Methods for providing nutrition education to participants. 
Nutrition education will include information on drug abuse and other 
harmful substances. Participants will include homeless individuals.
    (iii) Instructions concerning all food delivery operations performed 
at the local level;
    (iv) Instructions for providing all records and reports which the 
State agency requires local agencies to maintain and submit; and
    (v) Instructions on coordinating operations under the program with 
drug and other harmful substance abuse counseling and treatment 
services.
    (12) A description of the State agency's financial management 
system.
    (13) A description of how the State agency will distribute nutrition 
services and administration funds, including start-up funds, to local 
agencies operating under the Program.
    (14) A description of the food delivery system as it operates at the 
State agency level, including--
    (i) Type of system. All food delivery systems in use within the 
State agency's jurisdiction;
    (ii) Vendor limiting and selection criteria. Vendor limiting 
criteria, if used by the State agency, and the vendor selection criteria 
established by the State agency consistent with the requirements in 
Sec. 246.12(g)(3) and (g)(4);
    (iii) Vendor agreement. A sample vendor agreement, including the 
sanction schedule, which may be incorporated as an attachment or, if the 
sanction schedule is in the State agency's regulations, through citation 
to the regulations. State agencies that intend to delegate signing of 
vendor agreements to local agencies must describe the State agency 
supervision and instruction that will be provided to ensure the 
uniformity and quality of local agency activities;
    (iv) Vendor monitoring. The system for monitoring vendors to ensure 
compliance and prevent fraud, waste, and program noncompliance, and the 
State agency's plans for improvement in the coming year in accordance 
with Sec. 246.12(j). The State agency must also include the criteria it 
will use to determine which vendors will receive routine monitoring 
visits. State agencies that intend to delegate any aspect of vendor 
monitoring responsibilities to a local agency or contractor must 
describe the State agency supervision and instruction that will be 
provided to ensure the uniformity and quality of vendor monitoring;
    (v) Options regarding trafficking convictions. The option exercised 
by the State agency to sanction vendors pursuant to Sec. 
246.12(k)(1)(i).
    (vi) Food instruments. A facsimile of the food instrument, if used, 
and a description of the system the State agency will use to account for 
the disposition of food instruments in accordance with Sec. 246.12(q);
    (vii) Names of contractors. The names of companies, excluding 
authorized vendors, with whom the State agency has contracted to 
participate in the operation of the food delivery system;
    (viii) Nutrition services and administration funds conversion For 
State agencies applying for authority to convert food funds to nutrition 
services and administration funds under Sec. 246.16(g), a full 
description of their proposed cost-cutting system or system 
modification;
    (ix) Homeless participants. If the State agency plans to adapt its 
food delivery system to accommodate the needs of homeless individuals, a 
description of such adaptations;
    (x) Infant formula cost containment. A description of any infant 
formula cost containment system. A State agency must submit a State Plan 
or Plan amendment if it is attempting to structure and justify a system 
that is not a single-supplier competitive bidding system for infant 
formula in accordance with Sec. 246.16a(d); is requesting a waiver for 
an infant formula cost containment system under Sec. 246.16a(e); or, is 
planning to change or modify its current system or implement a system 
for

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the first time. The amendment must be submitted at least 90 days before 
the proposed effective date of the system change. The plan amendment 
must include documentation for requests for waivers based on 
interference with efficient or effective program operations; a cost 
comparison analysis conducted under Sec. 246.16a(d)(2); and a 
description of the proposed cost containment system. If FNS disputes 
supporting plan amendment documentation, it will deem the Plan amendment 
incomplete under this paragraph (a), and will provide the State agency 
with a statement outlining disputed issues within 15 days of receipt of 
the Plan amendment. The State agency may not enter into any infant 
formula cost containment contract until the disputed issues are resolved 
and FNS has given its consent. If necessary, FNS may grant a 
postponement of implementation of an infant formula cost containment 
system under Sec. 246.16a(f). If at the end of the postponement period 
issues remain unresolved the State agency must proceed with a cost 
containment system judged by FNS to comply with the provisions of this 
part. If the State agency does not comply, it will be subject to the 
penalties set forth in Sec. 246.16a(i);
    (xi) Vendor training. The procedures the State agency will use to 
train vendors in accordance with Sec. 246.12(i). State agencies that 
intend to delegate any aspect of training to a local agency, contractor, 
or vendor representative must describe the State agency supervision and 
instruction that will be provided to ensure the uniformity and quality 
of vendor training;
    (xii) Food instrument security. A description of the State agency's 
system for ensuring food instrument security in accordance with Sec. 
246.12(p);
    (xiii) Participant access determination criteria. A description of 
the State agency's participant access determination criteria consistent 
with Sec. 246.12(l); and
    (xiv) Mobile stores. The special needs necessitating the 
authorization of mobile stores, if the State agency chooses to authorize 
such stores.
    (xv) Vendor cost containment. A description of the State agency's 
vendor peer group system, competitive price criteria, and allowable 
reimbursement levels that demonstrates that the State agency is in 
compliance with the cost containment provisions in Sec. 246.12(g)(4); 
information on non-profit above-50-percent vendors that the State agency 
has exempted from competitive price criteria and allowable reimbursement 
levels in Sec. 246.12(g)(4)(iv); a justification and documentation 
supporting the State agency's request for an exemption from the vendor 
peer group requirement in Sec. 246.12(g)(4), if applicable; and, if the 
State agency authorizes any above-50-percent vendors, information 
required by FNS to determine whether the State agency's vendor cost 
containment system meets the requirements in Sec. 246.12(g)(4)(i).
    (xvi) Other cost containment systems. A description of any other 
food cost containment systems (such as juice and cereal rebates and food 
item restrictions).
    (15) The State agency's plans to prevent and identify dual 
participation in accordance with Sec. 246.7(l)(1)(i) and (l)(1)(ii). In 
States where the Program and the CSFP operate in the same area, or where 
an Indian State agency operates a Program in the same area as a 
geographic State agency, a copy of the written agreement between the 
State agencies for the detection and prevention of dual participation 
shall be submitted.
    (16) A description of the procedures the State will use to comply 
with the civil rights requirements described in Sec. 246.8, including 
the processing of discrimination complaints.
    (17) A copy of the State agency's fair hearing procedures for 
participants and the administrative appeal procedures for local agencies 
and food vendors.
    (18) The State agency's plan to reach and enroll migrants, and 
eligible women in the early months of pregnancy.
    (19) The State agency's plan to establish, to the extent 
practicable, that homeless facilities, and institutions if it chooses to 
make the Program available to them, meet the conditions established in 
Sec. 246.7(n)(1)(i) of this part, if residents of such accommodations 
are to be eligible to receive WIC Program benefits.
    (20) A plan to provide program benefits to unserved infants and 
children

[[Page 347]]

under the care of foster parents, protective services, or child welfare 
authorities, including infants exposed to drugs perinatally.
    (21) A plan to improve access to the Program for participants and 
prospective applicants who are employed or who reside in rural areas, by 
addressing their special needs through the adoption or revision of 
procedures and practices to minimize the time participants and 
applicants must spend away from work and the distances participants and 
applicants must travel. The State agency shall also describe any plans 
for issuance of food instruments to employed or rural participants, or 
to any other segment of the participant population, through means other 
than direct participant pick-up, pursuant to Sec. 246.12(r)(4). Such 
description shall also include measures to ensure the integrity of 
Program services and fiscal accountability. The State agency will also 
describe its policy for approving transportation of participants to and 
from WIC clinics.
    (22) Assurance that each local agency and any subgrantees of the 
State agency and/or local agencies are in compliance with the 
requirements of 7 CFR part 3017 regarding nonprocurement debarment/
suspension.
    (23) A description of the State agency's plans to provide and 
maintain a drug-free workplace in compliance with requirements in 7 CFR 
part 3021.
    (24) A list of all organizations with which the State agency or its 
local agencies has executed or intends to execute a written agreement 
pursuant to Sec. 246.26(h) authorizing the use and disclosure of 
confidential applicant and participant information for non-WIC purposes.
    (25) The State agency's policies and procedures for preventing 
conflicts of interest at the local agency or clinic level in a 
reasonable manner. At a minimum, this plan must prohibit the following 
WIC certification practices by local agency or clinic employees, or 
provide effective alternative policies and procedures when such 
prohibition is not possible:
    (i) Certifying oneself;
    (ii) Certifying relatives or close friends; or,
    (iii) One employee determining eligibility for all certification 
criteria and issuing food instruments or supplemental food for the same 
participant.
    (26) The State agency's plan for collecting and maintaining 
information on cases of participant and employee fraud and abuse. Such 
information should include the nature of the fraud detected and the 
associated dollar losses.
    (27) The State agency's Universal Identifier number.
    (b) Public comment. The State agency shall establish a procedure 
under which members of the general public are provided an opportunity to 
comment on the development of the State agency plan.
    (c) Amendments. At any time after approval, the State agency may 
amend the State Plan to reflect changes. The State agency shall submit 
the amendments to FNS for approval. The amendments shall be signed by 
the State designated official responsible for ensuring that the Program 
is operated in accordance with the State Plan.
    (d) Retention of copy. A copy of the approved State Plan or the WIC 
portion of the State's composite plan of operations shall be kept on 
file at the State agency for public inspection.

[50 FR 6121, Feb. 13, 1985, as amended at 52 FR 21236, June 4, 1987; 53 
FR 25314, July 6, 1988; 54 FR 51294, Dec. 14, 1989; 55 FR 9717, Mar. 15, 
1990; 57 FR 34506, Aug. 5, 1992; 58 FR 11506, Feb. 26, 1993; 59 FR 
11499, Mar. 11, 1994; 63 FR 63973, Nov. 18, 1998; 64 FR 13322, Mar. 18, 
1999; 64 FR 70177, Dec. 16, 1999; 65 FR 51223, Aug. 23, 2000; 65 FR 
53527, Sept. 5, 2000; 65 FR 83278, Dec. 29, 2000; 70 FR 71722, Nov. 29, 
2005; 71 FR 56728, Sept. 27, 2006]

    Effective Date Note: At 72 FR 68984, Dec. 6, 2007, Sec. 246.4 was 
amended by revising paragraphs (a)(11)(iii), (14)(vi), and (14)(xi), and 
by amending paragraph (a)(14)(iii) by revising the heading and the first 
sentence, mend, paragraph (a)(14)(xii) by removing the words ``food 
instrument'' wherever they appear and adding in their place the words 
``food instrument and cash-value voucher'', paragraph (a)(21) by 
removing the words ``food instruments'' and adding in their place the 
words ``food instruments and cash-value vouchers'', and paragraph 
(a)(25)(iii) by removing the words ``food instruments'' and adding in 
their place the words ``food instruments, cash-value vouchers'', 
effective February 4, 2008. For the convenience of the user, the revised 
text is set forth as follows:

[[Page 348]]



                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 246_SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND 
 
              Subpart B_State and Local Agency Eligibility
 
Sec. 246.4  State plan.

    (a) * * *
    (11) * * *
    (iii) Instructions concerning all food delivery operations performed 
at the local level, including the list of acceptable foods and their 
maximum monthly quantities as required by Sec. 246.10(b)(1).

                                * * * * *

    (14) * * *
    (iii) Vendor and farmer agreement. A sample vendor and farmer, if 
applicable, agreement, including the sanction schedule, which may be 
incorporated as an attachment or, if the sanction schedule is in the 
State agency's regulations, through citation to the regulations. * * *

                                * * * * *

    (vi) Food instruments and cash-value vouchers. A facsimile of the 
food instrument and cash-value voucher, if used, and a description of 
the system the State agency will use to account for the disposition of 
food instruments and cash value vouchers in accordance with Sec. 
246.12(q);

                                * * * * *

    (xi) Vendor and farmer training. The procedures the State agency 
will use to train vendors in accordance with Sec. 246.12(i) and 
farmers. State agencies that intend to delegate any aspect of training 
to a local agency, contractor, or vendor representative must describe 
the State agency supervision and instructions that will be provided to 
ensure the uniformity and quality of vendor training.

                                * * * * *