7 C.F.R. § 246.3

Administration

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(a) Delegation to FNS. Within the Department, FNS shall act on behalf of the Department in the administration of the Program. Within FNS, SFPD and the Regional Offices are responsible for Program administration. FNS shall provide assistance to State and local agencies and evaluate all levels of Program operations to ensure that the goals of the Program are achieved in the most effective and efficient manner possible.

(b) Delegation to the State agency. The State agency is responsible for the effective and efficient administration of the Program in accordance with the requirements of this part; the Department's regulations governing nondiscrimination (7 CFR parts 15, 15a, and 15b); governing administration of grants (2 CFR part 200, subparts A through F and USDA implementing regulations 2 CFR part 400 and part 415); governing non-procurement debarment/suspension (2 CFR part 180, OMB Guidelines to Agencies on Government-wide Debarment and Suspension and USDA implementing regulations 2 CFR part 417); governing restrictions on lobbying (2 CFR part 200, subpart E and USDA implementing regulations 2 CFR part 400, part 415, and part 418); and governing the drug-free workplace requirements (2 CFR part 182, Government-wide Requirements for Drug-Free Workplace); FNS guidelines; and, instructions issued under the FNS Directives Management System. The State agency shall provide guidance to local agencies on all aspects of Program operations.

(c) Agreement and State Plan. (1) Each State agency desiring to administer the Program shall annually submit a State Plan and enter into a written agreement with the Department for administration of the Program in the jurisdiction of the State agency in accordance with the provisions of this part.

(2) The written agreement shall include a certification regarding lobbying and, if applicable, a disclosure of lobbying activities, as required by 2 CFR part 200, subpart E and USDA implementing regulations 2 CFR part 400, part 415, and part 418.

(3) The written agreement must include a statement that supports full use of Federal funds provided to State agencies for the administration of the WIC Program, and excludes such funds from State budget restrictions or limitations including hiring freezes, work furloughs, and travel restrictions.

(d) State agency eligibility. A State agency shall be ineligible to participate in the WIC Program if State or local sales tax is collected on WIC food purchases in the area in which it administers the program, except that, if sales tax is collected on WIC food purchases by sovereign Indian entities which are not State agencies, the State agency shall remain eligible if any vendors collecting such tax are disqualified.

(e) State staffing standards. Each State agency shall ensure that sufficient staff is available to administer an efficient and effective Program including, but not limited to, the functions of nutrition education, breastfeeding promotion and support, certification, food delivery, fiscal reporting, monitoring, and training. Based on the June participation of the previous fiscal year, each State agency, as a minimum, shall employ the following staff:

(1) A full-time or equivalent administrator when the monthly participation level exceeds 1,500, or a half-time or equivalent administrator when the monthly participation exceeds 500.

(2) At least one full-time or equivalent Program specialist for each 10,000 participants above 1,500, but the State agency need not employ more than eight Program specialists unless the State agency considers it necessary. Program specialists should be utilized for providing fiscal management and technical assistance, monitoring vendors, reviewing local agencies, training, and nutritional services, or other Program duties as assigned by the State agency.

(3) For nutrition-related services, one full-time or equivalent nutritionist when the monthly participation is above 1,500, or a half-time or equivalent nutritionist when the monthly participation exceeds 500. The nutritionist shall be named State WIC Nutrition Coordinator and shall meet State personnel standards and qualifications in paragraphs (e)(3) (i), (ii), (iii), (iv), or (v) of this section and have the qualifications in paragraph (e)(3)(vi) of this section. Upon request, an exception to these qualifications may be granted by FNS. The State WIC Nutrition Coordinator shall—

(i) Hold a Master's degree with emphasis in food and nutrition, community nutrition, public health nutrition, nutrition education, human nutrition, nutrition science or equivalent and have at least two years responsible experience as a nutritionist in education, social service, maternal and child health, public health, nutrition, or dietetics; or

(ii) Be registered or eligible for registration with the American Dietetic Association and have at least two years experience; or

(iii) Have at least a Bachelor of Science or Bachelor of Arts degree, from an accredited four-year institution, with emphasis in food and nutrition, community nutrition, public health nutrition, nutrition education, human nutrition, nutrition science or equivalent and have at least three years of responsible experience as a nutritionist in education, social service, maternal and child health, public health nutrition, or dietetics; or

(iv) Be qualified as a Senior Public Health Nutritionist under the Department of Health and Human Services guidelines; or

(v) Meet the IHS standards for a Public Health Nutritionist; and

(vi) Have at least one of the following: Program development skills, education background and experience in the development of educational and training resource materials, community action experience, counseling skills or experience in participant advocacy.

(4) A designated breastfeeding promotion coordinator, to coordinate breastfeeding promotion efforts identified in the State plan in accordance with the requirement of § 246.4(a)(9) of this part. The person to whom the State agency assigns this responsibility may perform other duties as well.

(5) A staff person designated for food delivery system management. The person to whom the State agency assigns this responsibility may perform other duties as well.

(6) The State agency shall enforce hiring practices which comply with the nondiscrimination criteria set forth in § 246.8. The hiring of minority staff is encouraged.

(f) Delegation to local agency. The local agency shall provide Program benefits to participants in the most effective and efficient manner, and shall comply with this part, the Department's regulations governing nondiscrimination (7 CFR parts 15, 15a, 15b), the regulations governing the administration of grants (2 CFR part 200, subpart A-F and USDA implementing regulations 2 CFR part 400 and part 415), Office of Management and Budget Circular A-130, and State agency and FNS guidelines and instructions.

[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28, 1985, as amended at 52 FR 21236, June 4, 1987; 59 FR 11499, Mar. 11, 1994; 65 FR 83277, Dec. 29, 2000; 71 FR 56728, Sept. 27, 2006; 76 FR 37983, June 29, 2011; 76 FR 59888, Sept. 28, 2011; 81 FR 10449, Mar. 1, 2016; 81 FR 66494, 66495, Sept. 28, 2016]

Notes of Decisions

Cited in 14 cases (1 in the last 5 years), 1983–2022 · leading case: Nat'l Women, Infants, & Child. Grocers Ass'n v. Food & Nutrition Serv., 416 F. Supp. 2d 92 (D.D.C. 2006).

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Nat'l Women, Infants, & Child. Grocers Ass'n v. Food & Nutrition Serv., 416 F. Supp. 2d 92 (D.D.C. 2006). · cites it 2× “See Complaint ¶ 28; 7 C.F.R. §§ 246.3 (b) and 246.12. The women and children eligible to participate in the program receive “food instruments” or vouchers from state and local agencies which they can exchange for supplemental food packages that are tailored to meet their needs.”

Morningside Supermarket Corp. v. New York State Dep't of Health, 432 F. Supp. 2d 334 (S.D.N.Y. 2006). “See 7 C.F.R. § 246.3 (f) (explaining under “delegation to local agency” that “[t]he local agency shall provide Program benefits to participants”).”

Barakat v. Wisconsin Dep't of Health & Soc. Servs., 530 N.W.2d 392 (Wis. Ct. App. 1995). “The WIC program is funded by the federal government, but under 7 C.F.R. § 246.3 (b) (1991), the United States Department of Agriculture has delegated the administration of the WIC program to the individual states.”

Alexander v. Polk, 750 F.2d 250 (3rd Cir. 1984). · cites it 2× “” 7 C.F.R. § 246.3 (d) (1978). If fair-hearing determinations are not literally such “instructions,” this section evinces at the least the intent that state agencies be ultimately responsible for the Program’s administration.”

Guzman v. United States Dep't of Agric. Food & Nutrition Serv., 931 F. Supp. 2d 488 (S.D.N.Y. 2013). “§ 1786 (f); 7 C.F.R. §§ 246.3 , 246.4, 246.12Q; Kim v.”

Banco De Ponce v. Hinsdale Supermarket Corp., 663 F. Supp. 813 (E.D.N.Y 1987). “7 C.F.R. § 246.3 (b). The state must thus develop a plan that covers all operational aspects of the program, including procedures for the certification of program participants, the authori *819 zation of food vendors, and the appeal of state decisions.”

Alexander v. Polk, 572 F. Supp. 605 (E.D. Pa. 1983). “STATUTORY VIOLATION When the City Department of Health contracted with the Commonwealth to administer the WIC program, it expressly agreed to conform to the requirements of the WIC statute and the federal regulations, Exhibit D-2 at ¶ 32, but even without that agreement, the…”

Diamond Mini Mkt. v. Dep't of Health, 79 A.3d 759 (Pa. Commw. Ct. 2013). “See 7 C.F.R. § 246.3 . While the Department does not define an overcharge in terms of intent, it defines a store violation, which includes overcharges, as “[ijntentional or unintentional action by owners, officers, managers, agents or employees .”

Pontiac Food Ctr. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2008). “Under 7 CFR 246.3(c)(1), “[e]ach State agency desiring to administer the Program shall annually submit a state plan and enter into a written agreement with the Department for administration of the Program in the jurisdiction of the State agency in accordance with the provisions…”

PONTIAC FOOD CTR. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2009). “Under 7 CFR 246.3(c)(1), "[e]ach State agency desiring to administer the Program shall annually submit a State Plan and enter into a written agreement with the Department for administration of the Program in the jurisdiction of the State agency in accordance with the provisions…”

Matter of Se. Minn. Cit. Action Coun., 359 N.W.2d 60 (Minn. Ct. App. 1984). “7 C.F.R. § 246.3 (b) (1984). Since the Health Department must directly apply the federal rules as if they were its own, we will use the same deference in reviewing the Department's interpretation of them as we would use if the Department had promulgated them.”

In re Se. Minnesota Citizens' Action Council, Inc., 359 N.W.2d 60 (Minn. Ct. App. 1984). “7 C.F.R. § 246.3 (b) (1984). Since the Health Department must directly apply the federal rules as if they were its own, we will use the same deference in reviewing the Department’s interpretation of them as we would use if the Department had promulgated them.”

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— 7 C.F.R. § 246.3(a) — 1 case

Nat'l Women, Infants, & Child. Grocers Ass'n v. Food & Nutrition Serv., 416 F. Supp. 2d 92 (D.D.C. 2006). “See Complaint ¶ 28; 7 C.F.R. §§ 246.3 (b) and 246.12. The women and children eligible to participate in the program receive “food instruments” or vouchers from state and local agencies which they can exchange for supplemental food packages that are tailored to meet their needs.”

— 7 C.F.R. § 246.3(c)(1) — 2 cases

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