56708 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 246 

RIN 0584–AB10 

Special Supplemental Nutrition 

Program for Women, Infants and 

Children (WIC): Miscellaneous 

Provisions 

AGENCY: Food and Nutrition Service 

(FNS), USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends a 

number of existing provisions in the 

WIC Program regulations to address 

issues raised by WIC State agencies, 

other members of the WIC community, 

and the United States Government 

Accountability Office (GAO). This final 

rule also incorporates recent legislation 

and certain longstanding program 

policies and State agency practices into 

the regulations. Further, the final rule 

also streamlines certain requirements in 

the regulations. 

In particular, this rulemaking 

streamlines the Federal requirements for 

financial and participation reporting by 

State agencies, and clarifies the 

requirements pertaining to the 

confidentiality of WIC information in 

order to strengthen coordination with 

public organizations and private 

physicians. It also incorporates recent 

legislation which provided the WIC 

State agencies with the option to extend 

the certification period for breastfeeding 

women. Further, it incorporates 

longstanding program policies and State 

agency practices into the regulations 

regarding State agency responses to 

subpoenas and other court-ordered 

requests for confidential information. 

Other provisions in this final rule are 

designed to improve eligibility 

determinations, incorporating program 

policies and State agency practices that 

have been in effect for some time. 

These changes are intended to 

reinforce program policies and State 

agency practices that strengthen services 

to WIC participants, improve Program 

administration, and increase State 

agency flexibility in managing the 

Program. Many of these provisions are 

options the State agency may choose to 

implement in operating the program. 

DATES: Effective Date: This rule is 

effective November 27, 2006. 

Implementation Date: State agencies 

must implement the provisions of this 

rule no later than March 27, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Debra R. Whitford, Chief, Policy and 

Program Development Branch, 

Supplemental Food Programs Division, 

Food and Nutrition Service, 3101 Park 

Center Drive, Room 522, Alexandria, 

Virginia 22302, (703) 305–2746. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

This rule has been determined to be 

significant and was reviewed by the 

Office of Management and Budget under 

Executive Order 12866. 

Regulatory Impact Analysis 

As required for all rules that have 

been designated as Significant by the 

Office of Management and Budget, a 

Regulatory Economic Impact Analysis 

was developed for this final rule. A 

complete copy of the Impact Analysis 

appears in the appendix to this rule. 

The conclusions of this analysis are 

summarized below. 

Need for Action 

This action is needed to address 

issues raised by WIC State agencies and 

other members of the WIC community; 

address issues raised by the GAO; 

incorporate recent legislation; 

incorporate certain longstanding 

program policies and State agency 

practices into the regulations; and, 

streamline certain requirements in the 

regulations. 

Two provisions in this final rule may 

have a notable financial impact. One of 

these provisions prohibits the use of 

possibility of regression to a previous 

nutrition risk as the basis for 

determining nutrition risk eligibility in 

consecutive certifications when this 

nutrition risk is not actually present. 

The second provision which may 

have a notable financial impact provides 

WIC States agencies with the option to 

extend the certification period for all 

participant categories until the end of 

the last month of the certification 

period, and also provides the option to 

extend a breastfeeding woman’s 

certification period up to her infant’s 

first birthday or until the woman ceases 

to breastfeed. This provision 

incorporates recent legislation. Section 

203(b)(1) of the Child Nutrition and WIC 

Reauthorization Act of 2004, Public Law 

108–265, amended section 17(d)(3) of 

the Child Nutrition Act of 1966, 42 

U.S.C. 1786, to allow WIC State agencies 

the option to certify a breastfeeding 

woman for up to one year postpartum, 

or until the woman stops breastfeeding, 

whichever occurs first. This option 

became effective on October 1, 2004, 

pursuant to Section 502(b)(2) of Public 

Law 108–265. 

Benefits 

This rule serves to streamline program 

administration and clarify program 

requirements, while minimizing 

economic and administrative burdens. 

As previously noted, one of this rule’s 

provisions which may have a notable 

financial impact prohibits the use of the 

possibility of regression to a previous 

nutrition risk as the basis for 

determining nutrition risk eligibility in 

consecutive certifications when this 

nutrition risk is not actually present. 

For example, this provision would 

permit use of the possibility of 

regression to anemia as the nutrition 

risk for a certification following a 

certification when anemia was actually 

present, but not for any subsequent 

certification. If all of the participants 

certified based on the possibility of 

regression as a nutrition risk criterion in 

2004 were subsequently certified on this 

basis for one six-month certification 

period, then prohibiting use of this 

nutrition risk for consecutive 

certifications could save over $20 

million and reduce participation by over 

70,000 in that six-month period. 

However, given that possibility of 

regression is rarely used as the sole 

basis for determining nutrition risk, and 

that participants who had actually 

regressed to the previous nutrition risk 

would presumably be certified again, 

significant savings are unlikely. 

Costs 

Most of the provisions in this final 

rule are generally economically 

insignificant to the costs and overall 

operations of the WIC Program. Some of 

the provisions reflect the current 

practice of many WIC State agencies, 

while others are optional at the 

discretion of WIC State agencies. 

As previously noted, one of this rule’s 

provisions which may have a notable 

financial impact provides WIC State 

agencies with the option to extend the 

certification period for all participant 

categories until the end of the last 

month of the certification period, and 

also provides the option to extend a 

breastfeeding woman’s certification 

period up to her infant’s first birthday 

or until the woman ceases to breastfeed. 

Since this provision is optional, the 

number of WIC State agencies which 

may choose to extend these certification 

periods is unknown. Also, most women 

who continue to breastfeed longer than 

six months are presumably certified for 

a second six-month period. Therefore, 

implementation of the option to extend 

the certification period of breastfeeding 

women is not likely to have a major 

impact on either program participation 


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Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56709 

among breastfeeding women or on 

program costs. 

Regulatory Flexibility Act 

This rule has been reviewed with 

regard to the requirements of the 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 601–612). Kate Coler, Deputy 

Under Secretary, Food, Nutrition, and 

Consumer Services, has certified that 

this rule will not have a significant 

impact on a substantial number of small 

entities. State and local WIC agencies 

would be most affected because there 

are several additional program 

administration requirements. However, 

this rule also reduces considerably more 

program administration requirements. 

The net effect on State and local 

agencies is expected to result in reduced 

and streamlined administrative 

procedures. Participants and applicants 

would also be affected by changes in 

application processing, certification, 

and the disclosure of information. 

Unfunded Mandates Reform Act 

Title II of the 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

the Department generally must prepare 

a written statement, including a cost/ 

benefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, or 

tribal governments in the aggregate, or 

to the private sector, of $100 million or 

more in any one year. When such a 

statement is needed for a rule, section 

205 of the UMRA generally requires the 

Department to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

more cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) that 

impose costs on State, local, or tribal 

governments or to the private sector of 

$100 million or more in any one year. 

This rule is, therefore, not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

Executive Order 12372 

The Special Supplemental Nutrition 

Program for Women, Infants and 

Children (WIC) is listed in the Catalog 

of Federal Domestic Assistance 

Programs under No. 10.557. For reasons 

set forth in the final rule in 7 CFR Part 

3015, Subpart V, and related Notice (48 

FR 29115, June 24, 1983), this program 

is included in the scope of Executive 

Order 12372 that requires 

intergovernmental consultation with 

State and local officials. 

Federalism Summary Impact Statement 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have federalism implications, agencies 

are directed to provide a statement for 

inclusion in the preamble to the 

regulations describing the agency’s 

considerations in terms of the three 

categories called for under section 

(6)(b)(2)(B) of Executive Order 13121. 

The Food and Nutrition Service (FNS) 

has considered the impact of this rule 

on State and local governments and has 

determined that this rule does not 

impose substantial or direct compliance 

costs on State and local governments, 

but that it does have Federalism 

implications because this rule preempts 

State law. Therefore, under section 6(b) 

of the Executive Order, a federalism 

summary impact statement is required. 

Prior Consultation With State Officials 

Prior to drafting the final rule, a 

comment period was provided to permit 

State and local agencies and the general 

public the opportunity to comment on 

the proposed changes. In addition, some 

of the proposed changes were as a result 

of input from State and local agencies 

such as changing certification periods 

and greater flexibility in sharing 

confidential WIC information. Further, 

because the WIC Program is a Stateadministered, Federally funded 

program, FNS regional offices have 

formal and informal discussions with 

State and local officials on an ongoing 

basis regarding program and policy 

issues. This arrangement allows State 

and local agencies to provide comments 

that form the basis for many 

discretionary decisions in this and other 

WIC Program rules. Comments on the 

proposed rule and other comments, 

concerns and recommendations by State 

and local agencies through other forums 

have been beneficial in ensuring this 

final rule reflects concerns raised by 

these entities. 

Nature of Concerns and the Need To 

Issue This Rule 

State agencies generally want greater 

flexibility in their implementation of 

program policy. As stated previously, 

this final rule provides State and local 

agencies greater flexibility in some areas 

such as certification periods and sharing 

WIC information. However, it was 

necessary in some areas to strengthen 

program accountability and integrity. 

Comments made by State and local 

agencies through the proposed rule 

process and through other forums 

assisted us in identifying areas of the 

regulations where greater flexibility can 

be afforded State and local agencies. 

Extent to Which We Meet Those 

Concerns 

FNS has considered the impact of the 

final rule on State and local agencies. 

This rule makes changes to improve the 

accountability and effectiveness of the 

WIC Program, and to provide State and 

local agencies with greater flexibility in 

how they operate the program. The 

effects on State agencies are minimal 

since some requirements such as 

obtaining proof of pregnancy are 

optional requirements, and other 

requirements are codifying existing 

policy that the majority of State agencies 

have already implemented. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is intended to have 

preemptive effect with respect to any 

State or local laws, regulations or 

policies which conflict with its 

provisions or which would otherwise 

impede its full implementation. This 

rule is not intended to have retroactive 

effect. Prior to any judicial challenge to 

the provisions of this rule or the 

application of its provisions, all 

applicable administrative procedures 

must be exhausted. 

In the Special Supplemental Nutrition 

Program for Women, Infants and 

Children (WIC), the administrative 

procedures which must be exhausted 

are as follows. First, State agency 

hearing procedures pursuant to 7 CFR 

246.9 must be exhausted for participants 

concerning denial of participation, 

disqualification, and claims. Second, 

State agency hearing procedures 

pursuant to 7 CFR 246.18(a)(1) must be 

exhausted for vendors concerning 

denial of authorization, termination of 

agreement, disqualification, civil money 

penalty or fine. Third, the State agency 

process for providing the vendor an 

opportunity to justify or correct the food 

instrument pursuant to 7 CFR 

246.12(k)(3) must be exhausted for 

vendors concerning delaying payment 

for a food instrument or a claim. Fourth, 

State agency hearing procedures 

pursuant to 7 CFR 246.18(a)(3) must be 

exhausted for local agencies concerning 

denial of application, disqualification, 

or any other adverse action affecting 

participation. Fifth, FNS hearing 

procedures pursuant to 7 CFR 246.22 

must be exhausted for State agencies 

concerning sanctions imposed by FNS. 

Sixth, administrative appeal to the 


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extent required by 7 CFR 3016.36 must 

be exhausted for vendors and local 

agencies concerning procurement 

decisions of State agencies. 

Civil Rights Impact Analysis 

FNS has reviewed this final rule in 

accordance with the Department 

Regulation 4300–4, ‘‘Civil Rights Impact 

Analysis,’’ to identify and address any 

major civil rights impacts the rule might 

have on minorities, women, and persons 

with disabilities. After a careful review 

of the rule’s intent and provisions, and 

the characteristics of WIC Program 

applicants and participants, FNS has 

determined that there is no way to 

soften their effect on any of the 

protected classes. All data available to 

FNS indicate that protected individuals 

have the same opportunity to participate 

in the WIC Program as non-protected 

individuals. FNS specifically prohibits 

State and local agencies operating the 

WIC Program from engaging in actions 

that discriminate against any individual 

in any of the protected classes; see 7 

CFR 246.8(a) for the non-discrimination 

policy of the WIC Program. Where State 

agencies have options, and they choose 

to implement a certain provision, they 

must implement it in such a way that it 

complies with the regulations at 7 CFR 

246.8. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. Chap. 35; see 5 CFR part 

1320) requires that the Office of 

Management and Budget (OMB) 

approve all collections of information 

by a Federal agency from the public 

before they can be implemented. 

Respondents are not required to respond 

to any collection of information unless 

it displays a current valid OMB control 

number. Information collections in this 

final rule have been previously 

approved under OMB #0584–0043, and 

no changes are needed as a result of this 

final rule. 

E-Government Act Compliance 

FNS is committed to compliance with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. The 

new definitions of ‘‘electronic 

signature’’ and ‘‘sign or signature’’ are 

intended to facilitate paperless systems 

in all administrative activities of the 

program. The new State Plan 

requirements, as is the case with the 

entire State Plan, may be transmitted 

electronically by the State agency to 

FNS. Also, State agencies may share 

participant information electronically 

pursuant to a written agreement and 

consistent with Federal policy, 

including such information sharing 

based on the new non-WIC purposes 

provided in this final rule as well as the 

previously allowed non-WIC purposes. 

Background 

On December 2, 2002, the Department 

published a proposed rule at 67 FR 

71774 concerning revisions of 

miscellaneous provisions of the WIC 

regulations. The comment period ended 

on April 1, 2003. Thirty-five letters were 

submitted to the Department to provide 

comments on the proposed revisions. 

We greatly appreciate these comments, 

all of which were carefully considered 

in the development of this final rule. 

Following is a discussion of each 

provision as proposed, the comments 

received, and an explanation of the 

provisions set forth in this final rule. 

1. Definitions (§ 246.2) 

The proposed rule included new 

definitions for ‘‘sign or signature’’ and 

‘‘electronic signature,’’ to provide State 

agencies the option of using electronic 

signatures in their administration of the 

WIC Program. This definition of 

‘‘electronic signature’’ was derived from 

the Electronic Signatures in Global and 

National Commerce Act (Pub. L. 106–

229, signed June 30, 2000), also known 

as ESIGN. The Department sought to 

introduce these definitions to clarify 

that use of the terms ‘‘sign’’ or 

‘‘signature’’ throughout 7 CFR Part 246 

is not intended to exclude the use of 

electronic signatures. At the same time, 

we also wanted to make clear that 

electronic signatures may be used only 

if the State agency ensures the reliability 

and integrity of the technology used and 

the security and confidentiality of 

electronic signatures collected in 

accordance with sound management 

practices, WIC Program regulations, and 

applicable Office of Management and 

Budget Circulars, including A–130, 

concerning confidentiality. 

All of the commenters supported the 

new definitions. However, several 

commenters sought clarifications. One 

commenter questioned whether the new 

definitions constituted an endorsement 

of the ‘‘paperless office’’ concept, e.g., 

electronic certification forms. Similarly, 

another commenter asked whether the 

new definitions applied to vendor 

agreements. Finally, one commenter 

pointed to the need for protecting access 

to benefits in the event of a technology 

failure. 

The Department did not intend to 

confine the use of electronic signatures 

to one part of WIC Program 

administration, such as certification, so 

that electronic signatures could not be 

used in other administrative activities of 

the program, such as vendor 

management. Indeed, as indicated in the 

preamble of the proposed rule, the new 

definitions were intended to facilitate 

paperless systems. We recognize the 

efficiencies and advantages of paperless 

systems, and encourage State agencies 

to implement such systems in all 

administrative activities of the program. 

Of course, as previously noted, the 

reliability and integrity of such systems 

is paramount; this would include 

safeguarding benefits in the event of a 

technology failure or disaster. 

In addition, even though the 

Department supports the paperless 

office concept, this concept would not 

be mandated. This would be a State 

option, including the specific kind of 

technology adopted, as discussed in the 

preamble of the proposed rule. State 

agencies need to consider the costs, the 

views of participants, and the legal 

aspects of implementing this option. In 

this latter regard, State agencies should 

consult legal counsel on whether State 

law permits electronic signatures for 

certain kinds of documents, such as 

vendor agreements or contracts with 

local agencies. Accordingly, as set forth 

in the proposed rule, the definitions of 

‘‘sign or signature’’ and ‘‘electronic 

signature,’’ as proposed, are retained in 

this final rule. 

Recently, the Governmentwide 

Requirements for Drug-Free Workplace 

have been moved from 7 CFR part 3017 

to 7 CFR part 3021 of the Departmental 

regulations. Therefore, this final rule 

includes a new definition of 7 CFR part 

3021 to reference these requirements, 

and removes the reference to the drugfree requirements in the definition of 7 

CFR part 3017. In addition, all other 

references to the drug-free workplace 

requirements in 7 CFR part 246 have 

been changed to reference Departmental 

regulations at 7 CFR part 3021. Further, 

unlike 7 CFR part 3017, 7 CFR part 3021 

does not require a certification regarding 

a drug-free workplace; accordingly, this 

certification requirement has been 

deleted from § 246.3(c)(2). These 

changes are nondiscretionary, and do 

not require that the public be given an 

opportunity to comment. 

In addition, in this final rule, the 

definition of ‘‘State’’ has been revised to 

reflect a change in the definition of 

‘‘State’’ in section 15 of the Child 

Nutrition Act of 1966 (CNA), 42 U.S.C. 

1786, which applies to all programs 

under the CNA, including the WIC 

Program. The CNA no longer refers to 

the Trust Territory of the Pacific Islands 


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since the Trust Territory no longer 

exists. 

Therefore, the revision to the 

definition of ‘‘State’’ is included in this 

final rule. 

Finally, we have added a definition of 

‘‘Employee fraud and abuse,’’ as 

discussed in section 4 of this preamble. 

2. State Plan Requirements (§ 246.4(a)) 

We proposed a number of new State 

Plan provisions which would be 

required under § 246.4(a) of the WIC 

regulations. The comments on some of 

these State Plan provisions require more 

discussion than the comments on other 

proposed State Plan provisions. 

Therefore, these provisions are 

addressed in other sections of the 

preamble. Section 2 of this preamble 

addresses provisions and comments 

which do not require extensive 

discussion. 

First, one commenter pointed out that 

we had not included a State Plan 

provision to provide State agencies the 

option to require applicants to provide 

proof of pregnancy in § 246.4(a) of the 

proposed rule. As indicated elsewhere 

in the proposed rule and its preamble, 

we had intended that a new State Plan 

provision would be added to § 246.4(a). 

However, this new provision was 

inadvertently omitted from the 

Proposed Rule. Accordingly, we have 

added it to this final rule. 

Second, several commenters objected 

to the proposed State Plan requirement 

for listing all of the organizations with 

which the State agency or its local 

agencies had written agreements on the 

sharing of confidential participant 

information. One of these commenters 

pointed out that this provision could 

delay implementation of an 

information-sharing agreement if this 

agreement was executed after the annual 

submission of the State Plan. Another 

commenter stated that such a list in the 

State Plan would not constitute 

adequate notice to the applicant. 

As noted under section 22–C of this 

preamble, the proposed State Plan 

provision for listing all programs that 

have information-sharing agreements 

with the State agency and its local 

agencies, and the uses of such 

information, are only intended for 

informational purposes. As proposed, 

FNS did not intend to approve State 

agencies’ decisions in this matter as 

long as the reasons for sharing 

information were consistent with the 

authorized uses in the proposed rule. 

Therefore, State and local agencies can 

execute such agreements prior to 

submission in State Plans. The process 

of providing a list to FNS is not 

intended to create a barrier to entering 

into information sharing agreements. 

Further, such lists are not intended to 

serve as notice to WIC applicants and 

participants. As proposed, and as 

required in this final rule, State agencies 

are required to provide applicants and 

participants with notification at 

certification of public organizations that 

WIC intends to share confidential WIC 

information and the purposes for 

sharing such information. 

Third, we have not included a 

revision to § 246.4(a)(11)(ii) in this final 

rule. The proposed revision in this 

paragraph referred to describing the 

criteria for deciding who will be offered 

individual care plans. This proposed 

change has not been included in this 

final rule since it was an inadvertent 

error; we did not intend to propose a 

change in this paragraph. 

Finally, we have added a new 

sentence to § 246.4(a) to require the use 

of a Universal Identifier as part of State 

Plans. The Office of Management and 

Budget (OMB) requires entities applying 

for Federal grants to provide 

government agencies with a Universal 

Identifier. This requirement is set forth 

in an OMB Policy Directive, ‘‘Use of a 

Universal Identifier by Grant 

Applicants,’’ which was published in 

the Federal Register on June 27, 2003, 

at 68 FR 38402. The annual WIC 

Program State Plan submission is 

considered an application for a federal 

grant, and thus covered by this 

requirement. Currently, the Universal 

Identifier system in use is the Data 

Universal Numbering System (DUNS) 

identification number. FNS has issued 

guidance on how to obtain a DUNS 

number. FNS will address the 

submission of DUNS numbers as part of 

the WIC State Plan Guidance. It is not 

necessary for FNS to issue a proposed 

rule on this revision to the WIC Program 

regulations since the OMB Policy 

Directive is nondiscretionary and is 

already in effect. Also, as explained in 

the preamble of the OMB Policy 

Directive, OMB has determined that use 

of a DUNS number is not a significant 

burden under the Paperwork Reduction 

Act. 

3. Conflict of Interest (§ 246.4(a)) 

The Department proposed a new State 

Plan requirement for addressing 

employee conflicts of interest at the 

local agency level, as recommended by 

an August 1999 Report by the 

Government Accountability Office 

(GAO), FOOD ASSISTANCE: Efforts to 

Control Fraud and Abuse in the WIC 

Program Can Be Strengthened. We 

proposed a new paragraph in § 246.4(a) 

to require that State agencies develop 

and implement policies and procedures 

to prevent conflicts of interest within 

the local agency staffs. Specifically, we 

wanted State agencies to develop 

policies and procedures concerning 

local agency employees certifying 

themselves, relatives or friends, and also 

concerning an employee both certifying 

and issuing food benefits to a 

participant, i.e., lack of separation of 

duties. 

At the same time, we recognized in 

the preamble of the proposed rule that 

there may be practical circumstances, 

such as the availability of only one 

employee to conduct a clinic, which 

would preclude a strict prohibition on 

some practices. For such situations, we 

pointed out, an effective alternative 

policy or procedure would be needed, 

such as supervisory review of the 

records of the certifications and benefits 

issuance performed by such employees. 

As noted below in this section, we have 

added language to the proposed 

paragraph to recognize that effective 

alternative policies and procedures will 

be needed when strict prohibition is not 

possible. 

Most of the commenters supported 

the proposed provision. (The 1999 GAO 

study found that most of the WIC State 

agencies had policies on conflicts of 

interest and separation of duties.) 

Commenters opposing the proposed 

provision based their position on the 

practical difficulties precluding a strict 

prohibition on conflicts of interest, 

arguing that sometimes no effective 

alternative policy or procedure would 

be possible. In this regard, one of the 

supporting commenters requested that 

the proposed provision itself require 

reasonable policies and procedures 

when actual separation of duties is not 

possible, instead of stating this only in 

the preamble. Also, one of the 

commenters opposing the provision 

stated that separation of duties is not 

violated when one staff member 

conducts part of the certification and 

also issues food instruments; for 

example, if one staff member determines 

income eligibility and issues food 

instruments, this should be deemed 

acceptable if another staff member 

determines nutrition risk. 

As previously noted, we have added 

language to the proposed paragraph to 

permit effective alternative policies and 

procedures when strict prohibition is 

not possible. This additional language 

provides more explicit guidance than 

merely inserting the term ‘‘reasonable.’’

Also, we do not support the comment 

that there may be circumstances where 

no effective alternative policy or 

procedure is possible. State agencies 

should consult with the appropriate 

FNS Regional office and with legal 


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counsel for advice on alternative 

approaches to deal with difficult 

circumstances complicating strict 

compliance with the requirements 

regarding conflicts of interest and 

separation of duties. 

We agree with the comment 

indicating that separation of duties is 

not violated if at least two WIC 

personnel are integral to the 

certification of a participant. The reason 

for the separation of duties concept is to 

ensure that one employee cannot both 

certify and issue benefits. The 

commenter opposing the provision 

correctly pointed out that this 

requirement is satisfied if two WIC 

employees are required to perform 

certification determinations even 

though one of them also issues food 

instruments, since the person issuing 

food instruments could not complete 

the certification process alone. 

Therefore, we have revised the proposed 

paragraph to require the State agency to 

prohibit one employee from being solely 

responsible for determining the 

eligibility of an applicant for all 

certification requirements and for 

issuing food instruments to that 

participant, or to provide effective 

alternative policies and procedures for 

situations when such prohibition is not 

possible. Moreover, this revision also 

applies to circumstances when an 

employee might be certifying herself or 

friends and relatives because no other 

staff is available. 

Accordingly, in this final rule, the 

proposed paragraph has been added to 

§ 246.4(a), revised as noted above. 

4. Participant and Employee Fraud and 

Abuse (§ 246.4(a)) 

Also in response to the GAO study on 

WIC fraud and abuse, the Department 

proposed to require a description in the 

State Plan of the State agency’s plans for 

collecting and maintaining information 

on cases of participant and employee 

fraud and abuse, including the nature of 

the fraud detected and the associated 

dollar losses. As proposed, this 

requirement would be added to 

§ 246.4(a). 

Most of the commenters supported 

the proposed provision. In fact, the GAO 

study reflected that 30 of the 51 WIC 

State agencies responding to the GAO 

survey collected information on the 

number and characteristics of 

participants who engage in fraud and 

abuse. Commenters opposing the 

proposed provision stated that it was 

unnecessary because participant and 

employee fraud is minimal; one 

commenter stated that participant fraud 

and abuse should have declined as a 

result of the WIC Certification Integrity 

Rule (65 FR 77245, December 11, 2000), 

which requires applicants to provide 

proof of income, residency and identity. 

We do not support these positions. It 

is not possible to determine the extent 

of potential fraud and abuse in the 

program when some State agencies may 

not be collecting data on this matter. 

Moreover, the documentation 

requirements of the Certification 

Integrity Rule are only one part of our 

efforts to detect and prevent fraud and 

abuse. Such requirements cannot be 

relied upon to prevent all fraud and 

abuse. Further, the Certification 

Integrity Rule did not address employee 

fraud and abuse. 

Some commenters opposing the 

proposed provision also stated that 

collecting information on participant 

and employee fraud and abuse would be 

administratively burdensome. We 

recognize that such activity will involve 

some administrative burden, but we do 

not believe that collecting information 

on the nature and costs of participant 

and employee fraud and abuse is 

unduly burdensome. As previously 

noted, a majority of WIC State agencies 

are already collecting this data. 

Moreover, as indicated by GAO, failure 

to collect such information may send an 

unintentional message to agency 

officials and other stakeholders that 

preventing and detecting participant/ 

employee fraud and abuse is a low 

priority, thus damaging the public’s 

trust in the WIC Program. 

Some of the supportive commenters 

requested clarification on the meaning 

of several terms, including ‘‘participant 

fraud and abuse,’’ ‘‘employee fraud and 

abuse,’’ and ‘‘dollar losses.’’ Two of 

these terms have already been defined 

in the regulations and further clarified 

in a policy memorandum. Section 246.2 

sets forth the definition of ‘‘participant 

violation,’’ which is the equivalent of 

‘‘participant fraud and abuse.’’

Regarding dollar losses, § 246.23(c)(1)(i) 

requires a claim for the full value of 

benefits that have been obtained or 

disposed of improperly as the result of 

a participant violation. The full value of 

such benefits would be either the total 

purchase price of the food instruments 

involved or the total post-rebate food 

cost of the benefits involved, and would 

not include the nutrition services and 

administration (NSA) costs expended 

for the participant; see WIC Policy 

Memorandum #2002–1, Revision 1, 

Clarification of WIC Food Delivery 

Systems Final Rule Questions and 

Answers, June 10, 2003, page M–1, 

Question 1. Finally, we agree that 

‘‘employee fraud and abuse’’ should be 

defined in the regulations. Accordingly, 

in this final rule, in § 246.2, we have 

added a definition of this term, based on 

the definition used in the GAO study. 

Several supportive commenters raised 

other issues. Several commenters 

indicated that the State agency should 

collect the information on participant 

and employee fraud and abuse, instead 

of making local agencies responsible for 

collecting and maintaining the 

information. The preamble of the 

proposed rule indicated that this 

provision would require only a 

description of the State agency’s plans 

for collecting this information. 

Therefore, as set forth in the proposed 

rule, State agencies should track this 

information in order to detect trends 

and to allocate its investigative, audit, 

and technical assistance resources 

accordingly. Also, such information 

does not always originate at the local 

agency level, as when a State agency 

initiates an investigation based on an 

anonymous tip provided to the State 

agency indicating fraudulent activity 

involving a local agency. Therefore, a 

revision to the provision, as suggested, 

is not necessary. 

Finally, we note that several 

comments expressed concern that the 

requirement for collecting information 

on participant and employee fraud and 

abuse would ultimately become a 

requirement for State agencies to report 

this information to FNS. The proposed 

rule did not include a requirement to 

report such information to FNS, and 

neither does this final rule. However, 

the aforementioned GAO study clearly 

pointed towards such a reporting 

requirement, finding that the absence of 

this data adversely impacts FNS’ and 

State agencies’ ability to manage the 

program. As explained in the study, 

GAO decided not to recommend such a 

reporting requirement because FNS had 

indicated that it would work with State 

agencies and the National WIC 

Association (NWA) to develop costeffective strategies for reporting the data 

to FNS. FNS and NWA are currently 

working to identify such a strategy. 

5. Selection of Local Agencies (§ 246.5) 

The Department proposed to remove 

the requirement in the current 

§ 246.5(c)(1) and (d)(2) of the regulations 

for WIC State agencies to fund new local 

agencies in areas based on the 

sequential order of neediest areas listed 

in the Affirmative Action Plans that are 

part of each State agency’s Plan of 

Operation. This change was intended to 

provide State agencies with the 

flexibility to select a local agency in the 

neediest unserved area where practical 

circumstances permit, so that, for 

example, a local agency may be selected 

in an unserved needy area where a 


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health care infrastructure exists instead 

of a local agency in an area with greater 

need but without a health care 

infrastructure. 

The majority of the commenters 

supported the proposed provision. 

However, a few commenters either 

opposed the proposed revision or 

expressed reservations. The opposing 

commenters stated that areas with the 

greatest need should continue to be the 

highest priority for selection of new 

local agencies. One of the commenters 

recommended that the provision specify 

that the selection of local agencies is 

contingent on the availability of funds, 

and another commenter recommended 

that the Affirmative Action Plan should 

be required until WIC services have 

been made available equally throughout 

all areas of the State. 

It was not the intent of the proposed 

provision that State agencies ignore the 

Affirmative Action Plan. The proposed 

rule would have required the State 

agency to consider the Affirmative 

Action Plan, but not be bound by it. The 

Department believes that the State 

agency is in the best position to judge 

whether the practical circumstances 

should supersede the Affirmative 

Action Plan when selecting a new local 

agency. Also, it is not necessary to state 

in the regulations that selection of a new 

local agency is subject to the availability 

of funds. It is understood that the State 

agency is responsible for ensuring the 

availability of funds and applying this 

factor in the selection of local agencies. 

Accordingly, as proposed, this final 

rule removes the requirement in 

§ 246.5(c)(1) and (d)(2) of the regulations 

for WIC State agencies to fund new local 

agencies in areas based on the 

sequential order of neediest areas listed 

in the Affirmative Action Plans that are 

part of each State agency’s Plan of 

Operation. 

6. Requesting Proof of Pregnancy, 

Checking Identification and Other Basic 

Certification Procedures (§ 246.7(c)) 

The Department proposed to expand 

§ 246.7(c) to address several basic 

certification procedures, along with the 

delineation of eligibility criteria, in an 

effort to highlight the importance of 

certain procedures, such as providing 

proof of residency and proof of identity, 

and ensuring that applicants are not 

charged for certification. To accomplish 

this, we proposed to move several 

provisions and to add a provision. We 

proposed to move the provision 

addressing proof of residency/proof of 

identity from § 246.7(l)(2) to 

§ 246.7(c)(2)(i), and to move the 

provision requiring program 

certification without charge to the 

applicant from § 246.7(m) to 

§ 246.7(c)(4). We also proposed a new 

provision addressing pregnancy tests. 

Proof of Pregnancy 

The Department proposed basic 

guidelines that State and local agencies 

must observe if the State agency chose 

to require documentation of pregnancy 

as part of the certification process. For 

these reasons, we proposed to add a 

new paragraph (c)(2)(ii) stating that 

State agencies may issue benefits to 

applicants who claim to be pregnant 

(assuming that all other eligibility 

criteria are met) but whose conditions 

(as pregnant) are not visibly noticeable 

and do not have documented proof of 

pregnancy at the time of the certification 

interview and determination. The State 

agency would then be allowed a 

reasonable period of time, not to exceed 

60 days, for the applicant to provide the 

requested documentation. If such 

documentation was not provided as 

requested, the local agency would then 

be justified in terminating the woman’s 

WIC participation during the 

certification period. 

The majority of commenters 

supported the proposed provision, 

although some of these comments 

sought clarification on whether this 

provision would be optional. Some of 

the supportive commenters also 

recommended the provision apply only 

when fraud was suspected. Other 

supportive commenters recommended 

visual observation by a professional to 

confirm pregnancy instead of selftesting or testing by WIC. Also, one 

commenter recommended 90 days for 

the participant to provide proof, 

consistent with current WIC policy. 

Commenters opposing the proposed 

provisions stated that requiring proof of 

pregnancy would be a barrier to 

participation, potentially eroding 

prenatal care and leading to lower birth 

weights. 

As indicated in the preamble of the 

proposed rule, the Department intends 

for proof of pregnancy to be a State 

option. Therefore, in response to 

commenters’ concerns, we have revised 

the proposed paragraph to clarify this 

issue. State agencies concerned about 

proof of pregnancy becoming a barrier to 

participation could choose not to 

implement this option. Further, a State 

agency could choose to continue to use 

visual observation of pregnancy, and 

require proof only when the information 

is questionable and/or fraud is 

suspected. 

The Department agrees with 

commenters who expressed concern 

about the cost of pregnancy tests. Proof 

of pregnancy is not a mandatory 

condition of eligibility for the WIC 

Program. As a result, the costs 

associated with obtaining such 

documentation are not allowable WIC 

nutrition services and administrative 

expenditures. Also, such costs cannot be 

borne by the participant since 

§ 246.7(m) requires that the certification 

procedure shall be performed at no cost 

to the participant. 

As noted above, some commenters 

recommended a 90-day timeframe for 

the participant to provide 

documentation of pregnancy, consistent 

with current WIC policy. This policy 

was issued in 1992. However, this 

policy was superseded by legislation. 

Section 17(d)(3)(B) of the CNA was 

added in 1994. The legislation specifies 

that an income-eligible pregnant woman 

may be considered presumptively 

eligible to participate in the WIC 

Program and may be certified 

immediately without an evaluation of 

nutritional risk for a period up to 60 

days. Since the determination of 

nutrition risk requires knowledge of the 

participant’s categorical status, i.e., her 

pregnancy, proof of pregnancy must be 

provided within 60 days after 

certification, assuming that the State 

agency has opted to require such proof. 

Therefore, the provisions as proposed 

pertaining to proof of pregnancy remain 

unchanged in this final rule. 

7. Determining Income Eligibility 

(§ 246.7(d)) 

The Department proposed several 

changes to this section of the 

regulations, as discussed below. 

A. Use of State or Local Income Health 

Care Guidelines to Determine Income 

Eligibility for WIC 

The first proposed revision, at 

paragraph (d)(2)(iii), would require State 

agencies using State or local income 

guidelines for free or reduced-price 

health care to base the income eligibility 

determinations of WIC applicants on the 

income and family definition and 

exclusions set forth in §§ 246.7(d)(2)(ii), 

246.2, and 246.7(d)(2)(iv), respectively. 

This change would continue to allow 

variation among the State agencies only 

with regard to the actual income 

guidelines used (i.e., the percent of 

gross income above the Federal poverty 

income guidelines, up to a maximum of 

185 percent), but not with the definition 

of income, family, or exclusions from 

income. This proposed revision would 

continue the WIC Program’s current 

policy of excluding from these 

requirements persons who are 

determined adjunctively or 

automatically income eligible. 


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We proposed this change for two 

reasons. First, although § 246.7(d)(1) 

permits use of State or local free or 

reduced-price health care income 

guidelines, these guidelines cannot 

exceed 185 percent of the Federal 

poverty income guidelines; in fact, all 

WIC State agencies currently use 185 

percent of the Federal poverty income 

guidelines. Second, procedurally it 

would be simpler for local agencies to 

apply the WIC income definition and 

exclusions outlined in the regulations to 

all applicants rather than apply two sets 

of income guidelines and family 

definitions and exclusions to ensure 

WIC eligibility requirements are met. 

The majority of commenters 

supported this revision, although one 

supportive commenter suggested that 

the Department consider adopting the 

definition of ‘‘family’’ used by the 

Federal Department of Health and 

Human Services (HHS) to promote onestop shopping. Similarly, one of the few 

opposing commenters stated that the 

revision would force the cessation of 

integrated applications for multiple 

programs because WIC income 

determinations would no longer be able 

to use the income definitions of other 

programs. 

Use of the HHS definition of ‘‘family’’

could result in the exclusion of income 

potentially being shared by household 

members such as unrelated individuals 

who are living together. Such action 

would not represent actual household 

circumstances with regard to income 

eligibility. Further, by law, WIC income 

eligibility guidelines (185 percent of 

poverty) are those guidelines used for 

the National School Lunch Program 

(NSLP). Therefore, the rules and 

policies used for the NSLP are used for 

the WIC Program with regard to normal 

income screening procedures, including 

definition of family. As a result, the 

Department does not support this 

commenter’s recommendation. 

Accordingly, this final rule, in 

§ 246.7(d)(2)(iii) retains the provisions 

as proposed. 

B. Consideration of Loans as Income 

The Department proposed to exclude 

short-term, unsecured loans from the 

WIC income determination process. 

Program regulations have not 

specifically addressed this issue; 

however, FNS Instruction 803–3, Rev. 1, 

WIC Program—Certification: Income 

Eligibility, dated April 1, 1988, clarifies 

that funds from loans are not to be 

counted as income because they are 

only temporarily available and must be 

repaid. 

All of the commenters supported the 

revision. However, several commenters 

requested guidance on the meaning of 

the term ‘‘short-term, unsecured,’’ and 

guidance on the types of loans that 

would be excluded. 

Accordingly, in § 246.7(d)(2)(iv)(C) of 

this final rule, the Department has 

decided to delete the term ‘‘short-term, 

unsecured,’’ and to delete the reference 

to the expectation that the loan will be 

repaid in a reasonably short period of 

time since these phrases are 

unnecessary. By definition, loans are 

only temporarily available and must be 

repaid, so that inclusion of loans as 

income would be inappropriate in the 

WIC income determination process. We 

have retained the term ‘‘constant and 

unlimited access,’’ since this explains 

why a loan would not constitute 

income. This is consistent with the term 

‘‘other cash income’’ at 

§ 246.7(d)(2)(ii)(L), which refers to 

resources which are easily accessible to 

the family. 

8. Limitation on the Use of Possibility of 

Regression as a Nutrition Risk Criterion 

(§ 246.7(e)(1)(vi)) 

As explained in the proposed rule, 

historically, program regulations have 

permitted WIC participants to remain on 

the program due to the possibility of 

regression, i.e., previously certified 

participants who might regress in 

nutritional status if they are not allowed 

to continue to receive WIC benefits. 

This has been allowed as a nutrition risk 

criterion in order to prevent the 

revolving door situation whereby the 

nutrition risk status of individuals 

improves as a result of participation in 

the WIC Program and they are removed 

at the conclusion of a certification 

period, only to deteriorate in nutrition 

status at a later date, necessitating reentry into the program. 

It has always been the Department’s 

position that the possibility of 

regression as a nutrition risk criterion 

should not be used excessively because 

it could result in situations where 

individuals with no current nutrition 

risk condition are served while eligible 

applicants who have current, 

documented risks go unserved. 

Therefore, in regulations, the 

Department confirmed the State 

agency’s authority to limit the number 

of times and circumstances under which 

a participant may be certified for 

possible regression. Many State agencies 

have adopted limitations. 

In an effort to ensure that all State 

agencies target benefits to those at 

greatest nutrition risk, the Department 

proposed to limit the use of regression 

as a nutrition risk criterion to only one 

time following a certification period. In 

other words, consecutive certification 

periods based on regression would not 

be allowable. In addition, as proposed, 

individuals who are certified based on 

the possibility of regression would be 

placed in either the same priority for 

which they were initially certified, or in 

Priority VII (for all participants certified 

based on regression), if the State agency 

is using that priority level. 

The majority of commenters 

supported the proposed provisions. 

Those commenters opposing the 

limitation on the use of regression stated 

that WIC serves a vulnerable population 

that is food insecure, often spending 

scarce dollars on food last, after other 

expenses. Therefore, applicants denied 

certification due to lack of a nutrition 

risk would be certified shortly thereafter 

with a nutrition risk that may not have 

occurred had they remained on the 

program. Such commenters stated that 

this result would conflict with WIC’s 

preventive role. However, the 

Department continues to believe that the 

repeated use of regression in 

consecutive certification periods 

undermines the Department’s efforts to 

target benefits to those persons in 

greatest need and at greatest nutrition 

risk. 

Further, some commenters cited the 

Institute of Medicine (IOM) report 

‘‘Dietary Risk Assessment in the WIC 

Program,’’ March 2002, as supporting 

their position that the proposed 

provision would conflict with WIC’s 

preventive role since some nutrition 

risks may require more than one 

regression certification period to be 

resolved. One commenter stated that the 

use of regression should not be limited 

since the IOM findings indicate that the 

tools to assess dietary adequacy are not 

valid. 

The IOM report found that 96 percent 

of all individuals in the United States 

and a higher percentage of low-income 

individuals fail to consume the 

recommended number of daily servings 

specified by the Dietary Guidelines for 

Americans, and that there is no 

scientifically valid method to assess an 

individual’s usual dietary intake. 

Concerning WIC eligibility, the report 

recommended a presumption of 

nutrition risk for all otherwise eligible 

women, and children 2 to 5 years old, 

based on failure to meet dietary 

guidelines. The IOM report did not 

include findings or recommendations 

specific to regression. The Department 

believes that prohibiting consecutive 

certification periods based on regression 

will not result in denying benefits to 

WIC applicants who are at nutrition risk 

based on dietary inadequacy. 

Several supporting commenters 

recommended certain revisions to the 


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proposal. One commenter stated that the 

provision should allow an applicant to 

be certified for regression to a different 

priority, such as children to Priority V 

who had previously been certified at 

Priority III, consistent with § 246.7(e)(4). 

Another commenter sought clarification 

of the rule so that regression only 

applies to children and breastfeeding 

women. Finally, one commenter 

requested that the final rule clarify 

whether the provision to certify only 

once based on regression can actually be 

used more than once for the same 

participant as long as the occurrences 

are not consecutive. 

The Department agrees with the 

suggestion that WIC agencies should be 

permitted to assign an applicant to a 

different priority level for regression 

other than the one used in the previous 

certification, or Priority VII, as long as 

it is a lower priority than the priority 

level assigned at the previous 

certification, consistent with 

§ 246.7(e)(4). It is important to recognize 

that a participant certified for 

regression, without any currentlyexisting nutrition risk condition, could 

be placed in a higher priority level than 

a participant who has, for example, a 

dietary condition. In the event of 

funding limitations, this could result in 

the certification of one applicant based 

on regression while another applicant 

with an existing nutrition risk condition 

is denied benefits. To avoid this 

consequence, as we pointed out in the 

preamble of the proposed rule, the State 

agency should consider assigning a 

lower priority level for participants 

certified based on regression. 

Accordingly, in § 246.7(e)(1)(vi) of 

this final rule, in addition to placing 

applicants certified based on regression 

in the same priority category used at 

initial certification, or in Priority VII, 

State agencies may also use another 

priority level lower than the priority 

level for which they were assigned at 

the previous certification, consistent 

with § 246.7(e)(4). 

We have also clarified in this final 

rule that applicants shall not be certified 

for regression for consecutive 

certification periods. Therefore, 

participants could be certified for 

regression more than once during the 

time they actually participate in the 

program, as long as they are not certified 

based on regression for consecutive 

certification periods. 

Based on commenters’ concerns, the 

final rule also clarifies that when 

certifying participants for regression and 

assigning a priority category, the 

nutrition risk criterion of the participant 

during the previous certification period 

must be appropriate for the category of 

the participant for the subsequent 

certification. For instance, as pointed 

out in the preamble of the proposed 

rule, a postpartum woman should not be 

certified based on the possibility of 

regression to hyperemesis gravidum 

(morning sickness), since this condition 

is unique to pregnancy and cannot 

occur postpartum. As previously noted, 

a supporting commenter requested a 

prohibition on the use of regression as 

a nutrition risk criterion for pregnant 

women, infants and postpartum nonbreastfeeding women since only one 

certification period is permitted for 

these categories. Actually, under the 

current § 246.7(g), a State agency may 

provide a six-month certification period 

for infants, but the commenter correctly 

indicates that certain nutrition risk 

conditions cannot cross over from one 

category to another. 

9. Certification Periods (§ 246.7(g)(1)) 

In response to concerns cited by 

Congress, State agencies, and the NWA, 

the Department proposed to modify the 

timeframes for certification periods in 

order to make them more consistent 

across participant categories. Section 

246.7(g)(1) of the current regulations 

establishes the following timeframes for 

certification: 

A/an: Is currently certified: 

Pregnant woman ................................................. For the duration of her pregnancy, and up to six weeks after the infant is born or the pregnancy is ended. 

Postpartum woman ............................................. Up to 6 months after the baby is born or the pregnancy is ended (postpartum). 

Breastfeeding woman ......................................... Every six months ending with the infant’s first birthday. 

Infant ................................................................... Approximately every six months. The State agency may permit its local agencies to certify infants under six months of age for a period extending up to the first birthday, provided the 

quality and accessibility of health care services are not diminished. 

Child .................................................................... Approximately every six months ending with the last day of the month in which a child reaches 

his/her fifth birthday. 

Some State agencies expressed 

concern that the current timeframes for 

establishing certification periods are 

complicated and administratively 

burdensome, requiring the frequent 

proration of monthly food benefits and 

special data processing capabilities to 

accommodate specific cut-off dates. 

Also, NWA expressed concern about the 

lack of consistency in current 

certification period timeframes. In 

response, the Department proposed to 

allow certification periods for all 

participant categories to be extended to 

the end of the month. Specifically, the 

following maximum certification 

periods were proposed in § 246.7(g)(1): 

A/an: Will be certified: 

Pregnant woman ................................................. For the duration of her pregnancy, and up to the last day of the month in which the infant becomes six weeks old. (For example, if the infant is born June 4, six weeks after birth would 

be July 16, and certification would end July 31). 

Postpartum woman ............................................. Up to the last day of the sixth month after the baby is born or the pregnancy ends 

(postpartum). 

Breastfeeding woman ......................................... Approximately every six months ending with the last day of the month in which the infant turns 

1 year old. 

Infant ................................................................... Approximately every six months. The State agency may permit its local agencies to certify infants under six months of age up to the last day of the month in which the infant turns 1 

year old, provided the quality and accessibility of health care services are not diminished. 

Child .................................................................... Approximately every six months ending with the last day of the month in which a child reaches 

his/her fifth birthday. (No change from current regulations). 


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Commenters overwhelmingly 

supported the proposed changes to the 

certification period. However, many of 

the supporters requested further 

revision of the certification period 

requirements to extend the current sixmonth certification periods for 

breastfeeding women to coincide with 

the option to certify breastfed infants up 

to the infant’s 1st birthday, or until the 

women cease breastfeeding, whichever 

occurs first, and to establish 12-month 

certification periods for children. 

Subsequent to publication of the 

proposed rule and receipt of comments, 

the certification period for breastfeeding 

women was addressed in Congress in 

Public Law 108–265, the Child 

Nutrition and WIC Reauthorization Act 

of 2004, enacted on June 30, 2004. 

Section 203(b)(1) of that Act amended 

section 17(d)(3) of the CNA to allow 

State agencies the option to certify a 

breastfeeding woman for up to one year 

postpartum, or until the woman stops 

breastfeeding, whichever occurs first. 

This provision became effective on 

October 1, 2004. FNS notified State 

agencies of the effective date of this 

provision on August 5, 2004. 

Consequently, there is no need to 

address the comments on the proposed 

rule concerning the certification period 

for breastfeeding women. Instead, we 

are using this final rule to revise 

§ 246.7(g)(1)(iii) to codify the option set 

forth in legislation on the certification 

period for breastfeeding women. 

However, we do not support the 

recommendation of some commenters to 

change the certification period for 

children from every 6 months to every 

12 months. The current six-month 

certification period increases the 

likelihood that the child will receive a 

health assessment and that nutrition 

education or other nutrition 

intervention will be provided to the 

parent/caretaker. Assessing a child’s 

nutritional and health status at sixmonth intervals is also consistent with 

the WIC Program’s emphasis on 

preventing childhood obesity. 

One commenter who opposed the 

proposed changes to the certification 

periods indicated that costly changes 

would be needed to an automated 

system that defaults to the 30th day 

even if a month ends on the 31st day. 

Another commenter who opposed the 

changes expressed concern about the 

need for partial food packages if the 

proposed rule would require that food 

packages could only be issued to the 

end of the month. Likewise, one 

commenter who supported the changes 

requested clarification on the 

implications of the proposed rule if the 

certification period ends on the first day 

of a month. 

As noted in the preamble of the 

proposed rule and intended by this final 

rule, these new provisions would not 

remove the authority of State agencies to 

maintain current certification period 

lengths or to permit local agencies to 

shorten certification periods on a caseby-case basis. For example, some State 

agencies that certify all infants every six 

months, may choose to continue 

certifying breastfeeding women every 

six months and not implement the 

option to extend certification periods up 

to the end of the month in which infants 

turn one year old. Further, proration of 

program benefits continues to be an 

effective means of targeting benefits and 

managing program costs. Also, the final 

rule does not abridge the discretion of 

State agencies to maintain current 

certification periods or to prorate 

benefits in order to accommodate 

automated systems, although 

enhancement of such systems may be a 

more effective strategy to address 

certification periods. As indicated 

previously, State agencies are 

encouraged to contact the appropriate 

FNS regional office to identify potential 

sources of funds for this purpose in 

addition to the administrative funds 

provided as part of the WIC grant. 

Accordingly, this final rule provides 

for the following certification periods in 

§ 246.7(g)(1): 

A/an: Will be certified: 

Pregnant woman ................................................. For the duration of her pregnancy, and up to the last day of the month in which the infant becomes six weeks old. (For example, if the infant is born June 4, six weeks after birth would 

be July 16, and certification would end July 31). 

Postpartum woman ............................................. Up to the last day of the sixth month after the baby is born or the pregnancy ends 

(postpartum). 

Breastfeeding woman ......................................... Approximately every six months. The State agency may permit its local agencies to certify a 

breastfeeding woman up to the last day of the month in which her infant turns 1 year old, or 

until the woman ceases breastfeeding, whichever occurs first. 

Infant ................................................................... Approximately every six months. The State agency may permit its local agencies to certify an 

infant under six months of age up to the last day of the month in which the infant turns 1 

year old, provided the quality and accessibility of health care services are not diminished. 

Child .................................................................... Approximately every six months, ending with the last day of the month in which a child 

reaches his/her fifth birthday. (No change from current regulations.) 

10. Mid-Certification Actions 

(§ 246.7(h)) 

The Department proposed several 

revisions to this section, the most 

significant of which would require local 

agencies to reassess a participant’s 

income eligibility (including household 

composition) during the certification 

period when information is received 

about a change in circumstances, 

indicating possible income ineligibility. 

Many State agencies require 

reassessment of income eligibility based 

on receipt of information indicating a 

change in circumstances. However, 

current regulations do not mandate such 

assessments. 

The Department proposed that 

reassessment of Program eligibility 

would apply only to income eligibility, 

not to the participant’s nutrition risk 

status. In addition, the Department 

specified mandatory versus optional 

mid-certification actions. As proposed, 

mandatory mid-certification actions 

included reassessment of income 

eligibility based on information received 

and disqualification of participants, 

including family members, if found to 

be over-income. Optional midcertification disqualification actions 

included those necessitated by funding 

shortages or the failure of a participant 

to pick up food instruments or 

supplemental foods for a number of 

consecutive months as established by 

the State agency. 

The proposed change would require 

local agencies to reassess income 

eligibility when information is received 

indicating that a change in income 

eligibility has occurred. Local agencies 

would not be required to seek out 

information. However, if information 

comes to their attention, either from the 

participant or from other sources, which 

suggests ineligibility, this would trigger 


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the regulatory requirement to reassess 

WIC income eligibility. For an 

adjunctively or automatically incomeeligible participant, an income 

reassessment would be generated within 

a certification period if the local agency 

obtained/received confirmation that the 

individual or other eligible family 

member is no longer participating in 

any of the programs which are 

authorized/permitted to be used to 

deem an individual as income eligible 

for the WIC Program. Further, the 

Department proposed to require that the 

reassessment of income ineligibility also 

applies to other household members 

currently receiving WIC benefits. When 

one household member is reassessed for 

income eligibility and determined 

ineligible based on household size and 

income, in effect all participating 

household members have been 

reassessed and are ineligible. 

The majority of commenters generally 

supported the proposed midcertification income reassessment 

process. Several State agencies 

indicated that they already require such 

assessments. However, some 

commenters opposed the proposed 

requirement. One commenter indicated 

that enrollment entails a commitment to 

a full certification period. Another 

commenter stated that the core purpose 

of the WIC Program is to provide 

supplemental foods and nutrition 

education over a period of time. Further, 

as noted in the preamble to the 

proposed rule, a commitment to an 

entire certification period is implied 

because the entire certification period 

may be needed to improve the nutrition 

status of participants. 

In the preamble of the proposed rule, 

the Department emphasized that the 

CNA does not permit WIC benefits for 

persons who no longer meet the basic 

income eligibility requirements set forth 

in the CNA. If information comes to the 

attention of the local agency suggesting 

that a participant may be income 

ineligible, an income reassessment is 

the only way to determine whether the 

participant meets the income eligibility 

requirements of the CNA. Moreover, in 

response to one commenter, there is no 

provision in the CNA permitting the 

continued receipt of WIC benefits for 

someone who is income ineligible on 

the basis that this continued receipt of 

benefits would be viewed as transitional 

assistance. 

As previously noted, the proposed 

revision of § 246.7(h) would distinguish 

between mandatory mid-certification 

disqualifications of participants and 

those that are optional. At the same 

time, we also proposed to remove the 

reference to disqualification based on 

participant violations from § 246.7(h) 

because the process for sanctions and 

claims based on participant violations 

was set forth in § 246.12(u). However, in 

this final rule, we are retaining the 

reference to sanctions for participant 

violations in § 246.7(h) to ensure that 

such sanctions for participant violations 

are clearly understood to be mandatory, 

except as otherwise provided in 

§ 246.12(u). 

Several commenters indicated that 

disqualifying a participant based on 

unsolicited information is unfair since 

other potential income ineligible 

participants may not be disqualified 

because changes in income are not 

known or reported to the local agency. 

The Department recognizes the 

commenter’s concern. However, all 

participants are potentially subject to 

reassessment of income during their 

certification periods, based on new 

information that may come from any 

source. Therefore, as noted in the 

preamble of the proposed rule, the 

proposed provision is a reasonable 

balance between responsible action and 

unnecessary paperwork. 

Several commenters felt that the 

proposed mid-certification income 

reassessment would be unfair because 

the information triggering the 

reassessment would often originate from 

an unreliable or biased source. The 

Department recognizes that information 

may come from persons who are not 

aware of all of the facts, and that such 

persons may be providing the 

information because of personal 

animosity towards the participant. 

However, this does not necessarily 

mean that the information is false or 

without consequence. The only way to 

determine the validity of the 

information is to conduct an income 

reassessment. 

Several commenters indicated that the 

proposed provision would conflict with 

other requirements, including the 

Verification of Certification (VOC) 

process and the State option to 

determine income eligibility based on 

assessing annual income as opposed to 

current income. The Department does 

not agree with this position. The VOC 

process at § 246.7(k) provides 

continuation of certification and 

benefits for a participant transferring 

from one local agency to another, 

without requiring reapplication at the 

new local agency; the VOC process does 

not prevent a reassessment of income if 

new information is made known to the 

new local agency after the transfer. Also, 

the State agency option to calculate 

income based on the past 12 months, at 

§ 246.7(d), instead of using current 

income, applies at any time an income 

determination is made, including midcertification; this provision does not 

conflict with reassessment of income 

mid-certification. 

Several commenters asserted that 

reassessment of income midcertification would result in frequent 

disqualifications followed by 

subsequent certifications, due to income 

fluctuations, as well as other 

administrative burdens such as an 

increased number of disqualification 

letters and appeals. Several commenters 

also asserted that information 

technology systems would need costly 

modifications, e.g., to be able to change 

income information in the system midcertification. 

The Department does not anticipate a 

significant increase in administrative 

activities as a result of mid-certification 

income reassessments. Over 56 percent 

of WIC participants are adjunctively 

income eligible for WIC based on their 

eligibility to receive Food Stamps, 

Medicaid, or Temporary Assistance for 

Needy Families (TANF). (See WIC 

Participant and Program Characteristics 

2002, USDA Food and Nutrition 

Service, Report No. WIC–03–PC, 

September 2003.) Under § 246.7(d), 

adjunct or automatic WIC income 

eligibility is determined based on 

documentation of an individual’s, or 

certain family members’, eligibility to 

receive benefits in other programs such 

as Food Stamps, Medicaid and TANF. 

These programs screen for income 

eligibility and use maximum income 

limits at or below WIC income 

guidelines (185 percent of poverty). 

Therefore, the normal WIC income 

eligibility screening process is not used 

for a large majority of participants. 

Further, § 246.7(d) permits State 

agencies to designate other programs as 

establishing automatic income 

eligibility for WIC in a manner similar 

to adjunctive income eligibility. Thus, 

most mid-certification income 

reassessments may likely involve little 

more than reconfirming adjunctive or 

automatic WIC income eligibility. 

In this regard, one commenter 

expressed concern about the 

administrative burden imposed on local 

agency staff and participants by income 

reassessments for postpartum WIC 

participants whose Medicaid eligibility 

ceases 60 days following birth. 

However, under § 246.7(d), adjunctive 

income eligibility extends not only to 

the WIC applicant who is certified for 

Medicaid, but also to a WIC applicant 

who is a member of a family in which 

a pregnant woman or infant is certified 

for Medicaid (or is a member of a family 

certified for TANF). Thus, assuming that 

the reassessment of the postpartum 


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woman is triggered only by her loss of 

Medicaid eligibility and that her infant 

is also a WIC participant, her 

reassessment would likely involve no 

more than confirming the infant’s 

Medicaid eligibility, which would have 

already been done when the infant was 

determined eligible for the WIC 

Program. In fact, the reassessment of 

WIC income eligibility could be 

eliminated if the postpartum woman is 

determined to be income eligible at 

certification based on the eligibility of 

her infant for the Medicaid Program. 

We recognize that some State 

agencies’ management information 

systems may need enhancements in 

order for income reassessments to be 

processed mid-certification. Therefore, 

for this reason and others, we are 

providing an extended implementation 

period to accommodate, for example, 

any system revisions or enhancements 

that may be necessary. WIC State 

agencies that need to enhance their 

information systems to accommodate 

mid-certification income reassessments, 

or for other reasons, are encouraged to 

contact the appropriate FNS regional 

office to identify potential sources of 

funds for this purpose in addition to the 

administrative funds provided as part of 

the WIC grant. 

Finally, the Department finds 

considerable merit in two other 

comments received regarding 

reassessment of income midcertification. One of these comments 

pointed out that a participant, parent or 

guardian would have no incentive to 

cooperate with the reassessment process 

after receiving the last set of food 

instruments for the certification period. 

The other comment asserted that the 

participant, parent or guardian would 

need a reasonable amount of time to 

provide income documentation to the 

local agency. 

The Department agrees that, if the 

food instruments for the last month of 

certification have already been provided 

to the participant, action to reassess 

income eligibility and all necessary 

follow-up action may be pointless. In 

addition, a sufficient period of time 

would be needed to contact the 

participant, reassess income eligibility, 

process any necessary disqualification 

action and allow sufficient time for 

potential appeal of the action by the 

participant, parent or guardian, as set 

forth in § 246.9(e), and to provide for 

continuation of benefits if an appeal is 

submitted within the 15-day advance 

notice period required by § 246.7(j). In 

addition, in some State agencies, two or 

three months of benefits are issued at 

one time (i.e., bi-monthly or tri-monthly 

issuance). 

Therefore, § 246.7(h)(1) in this final 

rule remains as proposed, except as 

follows, based on commenters’

concerns. The Department has provided 

an exception in this final rule to the 

requirement that local agencies reassess 

a participant’s income eligibility during 

the certification period if new 

information indicates that the 

participant’s household income may 

have changed. In this final rule, 

reassessment of income eligibility is not 

required in cases where sufficient time 

does not exist to effect the change. 

Recognizing the necessary action 

required ultimately to disqualify an 

individual, if necessary, ‘‘sufficient 

time’’ means 90 days or less before the 

expiration of the certification period. 

11. Certification Forms (§§ 246.4(a) and 

246.7(i)) 

The Department proposed to allow 

State agencies the option of substituting 

simpler language for the statements on 

rights and responsibilities required by 

§ 246.7(i)(10) and § 246.7(j)(2)(i) through 

(j)(2)(iii), which must be provided in 

writing or read to the applicant (or 

parent/caregiver of a participating infant 

or child) at the time of certification. As 

proposed, such modified language 

would be subject to FNS approval 

during the State Plan approval process, 

contingent upon whether the language 

substitutions convey the same meaning 

and intent as the existing regulatory 

text. A new State Plan provision was 

proposed for this purpose. 

All of the commenters supported the 

proposed revisions, although one 

commenter sought assurance that FNS 

would use its approval authority to 

ensure consistent language substitutions 

throughout the States. We will not. The 

purpose of this proposed provision is to 

provide each State agency with the 

flexibility to use language appropriate to 

its needs in order to convey the meaning 

of the statements required by the 

regulations. 

Also, one commenter requested 

clarification on whether this language 

substitution process would also apply to 

joint application forms involving WIC 

and other programs. The same process 

would apply to joint application forms, 

if the regulatory language is not used. 

However, the State agency would be 

responsible for ensuring the language 

used also has the approval of other 

programs involved in the joint 

application form. The provision in the 

final rule is optional, so that a State 

agency could decide not to develop and 

submit substitute language. 

Accordingly, the final rule remains as 

proposed. One technical amendment 

has been made, however, to paragraph 

(i)(11) of this section. In the first 

sentence, the reference to paragraph 

(i)(8) of this section has been changed to 

the correct reference, paragraph (i)(10) 

of this section. 

12. Continuation of Benefits During Fair 

Hearings (§ 246.9(g)) 

The Department proposed to revise 

§ 246.9(g) to prevent the continuation of 

benefits for a participant who has 

become categorically ineligible while 

awaiting a hearing decision on an 

appeal of an adverse action, such as a 

breastfeeding participant who continues 

to receive WIC benefits while awaiting 

the decision even though she had 

discontinued breastfeeding and was 

more than six months postpartum. The 

current language of paragraph (g) of this 

section technically permits the 

continuation of benefits in such cases. 

Commenters overwhelmingly 

supported the proposed provision. 

However, one commenter recommended 

that benefits should be reinstated if the 

participant prevails on appeal. We do 

not support the commenter’s 

recommendation. The reinstatement of 

benefits for a categorically ineligible 

person would mean that retroactive 

benefits would be provided. 

Historically, we have not permitted 

retroactive benefits in the WIC Program, 

as discussed below in section 16 of this 

preamble. 

Another commenter stated that a 

participant should be immediately 

terminated based on documented fraud, 

subject to resumption should the 

participant prevail on appeal, but not 

retroactively. We do not support the 

commenter’s recommendation. 

Although the participant may prevail on 

appeal, the individual would not be 

eligible for benefits based on a different 

categorical status, without 

reapplication, nor for retroactive 

benefits. Such benefits have historically 

not been permitted in the WIC Program, 

as discussed below in section 16 of this 

preamble. Further, prior to disqualifying 

any participant, the individual has the 

right to due process and a right to a fair 

hearing, as required by WIC regulations. 

We believe that the proper balance is to 

permit the continuation of benefits until 

a hearing decision is rendered, until the 

current certification period expires, or 

until categorical eligibility expires, 

whichever occurs first. Should the 

appeal be denied, a participant would 

be subject to a disqualification for up to 

one year, as well as a claim for the value 

of all benefits based on fraud, consistent 

with § 246.12(u). Therefore, the 

continuation of benefits prior to the 

appeal decision would not protect the 


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participant from the consequences of 

the fraudulent conduct. 

Therefore, in § 246.9(g) in this final 

rule, the provision remains as proposed. 

13. Technical Amendment 

(§ 246.11(c)(5)) 

This final rule makes a technical 

amendment to § 246.11(c)(5). In 

§ 246.11(c)(5), we have changed the 

cross references to several paragraphs. 

References to paragraphs (c)(8), (d), and 

(e) have been changed to paragraphs 

(c)(7), (d), and (e). 

14. Closeout Procedures 

(§§ 246.12(f)(2)(iv), 246.12(q), and 

246.17(b)(2)) 

In response to a Congressional 

directive contained in a report 

accompanying the Fiscal Year 1999 

appropriations, (H. Rept. 825, 105th 

Cong., 2nd sess. (1998)), the Department 

proposed to reduce the timeframe for 

reporting closeout data for each 

reporting month from 150 to 120 days. 

The Department proposed to achieve the 

120-day closeout cycle by reducing the 

time allowed for vendors to bill State 

agencies from 90 to 60 days from the 

first valid date of the food instrument. 

Efforts to get State agencies to 

voluntarily reduce the time used to 

report closeout data to 120 days have 

been underway for more than a decade. 

Currently, about 55 percent of State 

agencies voluntarily report closeout data 

at 120 days or less. 

Of the 20 comments received, 12 

supported and 8 opposed the proposed 

reduction to a 120-day closeout cycle. 

Concerns raised by two supporters as 

well as those opposing were that State 

agencies not already reporting closeout 

data within 120 days would need to 

reduce the time allowed for vendors to 

redeem food instruments, reprogram 

automated systems, and renegotiate the 

terms and cycles of support from 

centralized State and local accounting 

departments. 

About 84 percent of State agencies 

have already reduced the redemption 

period for vendors from 90 to 60 days. 

Therefore, a provision requiring this 

reduction would impose a burden on 

vendors or State agencies. Over 65 

percent of State agencies that require 

their vendors to redeem food 

instruments in 60 days have, in turn, 

used the reduced redemption period to 

achieve a 120-day closeout cycle. A 60- 

day redemption period benefits vendors 

with timely payments as well as 

provides State agencies with the 

opportunity to achieve a timely 

closeout. 

Regarding the other issues raised, 

voluntary compliance with a 120-day 

closeout cycle by approximately 55 

percent of State agencies demonstrates 

that all State agencies should be able to 

close out within 120 days without great 

difficulty. The Department maintains 

that advances in automated systems 

technology should readily provide 

timely data needed to improve the 

budgeting and funding process. 

However, the Department agrees State 

agencies will need time to take the 

necessary actions. The proposed 

reduction to a 120-day closeout cycle 

remains, but with an implementation 

date of October 1, 2006 (Federal Fiscal 

Year 2007). 

15. Penalties for Misuse or Illegal Use of 

Program Funds, Assets, or Property 

(§§ 246.12(h)(3)(xx) and 246.23(d)) 

Section 104(b) of Public Law 105–336, 

the William F. Goodling Child Nutrition 

Reauthorization Act of 1998, enacted 

October 31, 1998, amended section 12(g) 

of the Richard B. Russell National 

School Lunch Act (NSLA), 42 U.S.C. 

1760(g), by increasing the maximum 

penalty for misuse or illegal use of 

funds, assets or property of a grant or 

other assistance under the NSLA, with 

a value of $100 or more, from $10,000 

to $25,000. As set forth in section 12(g) 

of the NSLA, the maximum penalty also 

applies to programs under the CNA. 

This change is nondiscretionary, and 

does not require that the public have an 

opportunity to comment. Therefore, in 

accordance with section 12(g) of the 

NSLA, the Department is amending 

§§ 246.12(h)(3)(xx) and 246.23(d) of the 

WIC regulations to reflect the increase 

in the maximum fine from $10,000 to 

$25,000, for misuse or illegal use of 

funds, assets or property of a grant or 

other assistance under the CNA, with a 

value of $100 or more. 

16. Prohibition Against the Use of 

Program Funds To Provide Retroactive 

Benefits (§ 246.14(a)) 

The Department proposed to specify 

in regulations that WIC Program funds 

may not be used to provide retroactive 

benefits to participants. This has been 

long-standing policy in the WIC 

Program, but the regulations have not 

previously addressed this policy. The 

WIC food package is designed to be 

consumed during specified periods 

when participants are undergoing 

critical growth and development. 

Providing retroactive benefits is not an 

effective use of program benefits. 

Commenters overwhelmingly 

supported this provision. The few 

commenters opposing the provision 

stated that providing retroactive benefits 

is the only fair way to remedy wrongful 

denial of benefits. We do not support 

this position. As noted previously, a 

participant may protect current benefits 

by requesting a hearing within 15 days 

of the advance notice of 

disqualification, which will guarantee 

the continuation of benefits until a 

hearing decision is rendered, expiration 

of the current certification period, or 

loss of categorical eligibility, whichever 

occurs first. Further, WIC benefits are 

intended to improve health status based 

on existing nutrition risk conditions at 

the time of application. Providing WIC 

foods to persons after they have passed 

through such periods is not consistent 

with the nutritional goals of the WIC 

Program, nor is it appropriate to give 

participants more food than they can 

reasonable consume within a given 

period of time. 

If a hearing decision is rendered 

which supports the participant, then he/ 

she will be provided benefits 

prospectively, assuming the certification 

period has not expired or the individual 

is no longer categorically eligible. We 

recognize that this process may 

occasionally result in a successful 

appellant having gone without benefits 

during the appeal process. However, the 

WIC Program is a supplemental 

nutrition program. Providing retroactive 

benefits in such cases is not an effective 

use of program benefits. 

Another commenter indicated support 

for the proposed provision only if it 

would not prohibit providing a full 

month’s benefits, instead of pro-rating 

benefits, for a participant who misses an 

appointment but subsequently visits the 

local agency before the expiration of the 

30-day period. The commenter 

expressed concern about the cost of 

enhancing an automated system, which 

does not currently provide for pro-rating 

benefits. FNS encourages the pro-ration 

of benefits for participants whose 

eligibility is effective late in the 

monthly issuance cycle or who are late 

picking up food instruments. Also, as 

with similar concerns discussed in 

previous sections of this preamble, we 

believe that enhancements to automated 

systems are an effective solution for 

such issues. However, we do not intend 

to mandate pro-ration of the current 

month’s benefits. We do not view the 

provision of WIC benefits late in the 

same month as constituting retroactive 

benefits. However, providing WIC 

benefits in a subsequent month, which 

are intended for a previous month, 

constitutes retroactive benefits. 

Accordingly, in this final rule, the 

provision remains as proposed. 


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17. Transportation as Allowable Costs 

(§ 246.14(c)(7)) 

The Department proposed to amend 

§ 246.14(c)(7) by removing the limiting 

term ‘‘rural’’ from the allowability of 

costs in transporting applicants and 

participants to clinics, so that the 

existing State agency option for funding 

transportation in rural areas could also 

be applied to urban and suburban areas. 

Also, the Department proposed revising 

§ 246.4(a)(21) to require that a State 

agency which elects to allow the 

provision of transportation to 

participants must include its policy for 

approving such costs in the portion of 

the State Plan that describes the State 

agency’s plans to provide program 

benefits to eligible persons most in need 

of such benefits. 

Most of the commenters supported 

these proposed provisions. Some 

commenters stated that the proposed 

revisions would drain WIC nutrition 

services and administration funds 

(NSA), making WIC the source of funds 

for transportation of participants instead 

of Medicaid; create a welfare image for 

WIC; burden WIC with safety and 

liability issues; and, result in the 

transportation of non-WIC participants. 

The Department proposed the 

aforementioned revisions because State 

agencies had been seeking approval to 

purchase vans for transporting 

participants to and from inner city and 

suburban clinics. Because State agencies 

could purchase vans with WIC NSA 

funds to bring WIC services to rural 

participants, it is reasonable to allow the 

use of WIC NSA funds for transportation 

of WIC participants to WIC clinic sites 

in any situation, rural or non-rural, 

where access is a barrier. At the same 

time, as noted in the preamble of the 

proposed rule, we were concerned with 

some of the same issues raised by 

commenters. As a result, we wanted to 

ensure that State agencies developed 

carefully structured rationales for use of 

NSA funds to transport participants. For 

this reason, we proposed revising the 

State Plan requirements of the 

regulations; a State agency would need 

to gain FNS approval for a State Plan 

amendment setting forth this rationale 

in order to use NSA funds for 

transporting participants. These 

safeguards are sufficient. Further, State 

agencies are not required to use NSA 

funds for transporting participants, 

urban or rural. Therefore, in this final 

rule, the provision remains as proposed. 

18. Capital Expenditures Which Require 

Agency Approval (§ 246.14(d)) 

The Department proposed revisions to 

this section to reflect current rather than 

dated prior approval requirements for 

capital expenditures. In advance of the 

proposed rulemaking, changes in OMB 

Circular A–87 allowed FNS to establish 

and implement policy and guidance 

reducing the paperwork burden 

associated with obtaining prior approval 

of capital expenditures. FNS policy and 

guidance is the current source for 

specific dollar thresholds above which 

State agencies must obtain prior 

approval from FNS for capital 

expenditures, including automated 

information systems, and was 

referenced as such. FNS policy that 

deleted the requirement to obtain prior 

approval of management studies was 

also reflected in the proposal. 

All but one commenter supported the 

proposed revisions. Considering the 

reference to FNS policy and guidance 

vague, the opponent recommended 

setting a dollar threshold of $10,000. An 

across-the-board threshold of $10,000 is 

more restrictive than that found in 

current FNS policy and guidance for all 

capital expenditures but those for 

automation, would increase the current 

paperwork burden, and may become 

dated by future revisions in 

government-wide rules. For these 

reasons, we did not accept the 

commenter’s suggestion. The revisions 

remain as proposed. 

19. Other Program Income (§ 246.15(b)) 

All comments supported using the 

addition method of applying program 

income, as proposed. The provision 

remains unchanged from the proposed 

rule. 

20. State Audit Responsibilities (or 

Monetary Amount of the Food Not 

Received (§ 246.20(b)(1) and (b)(2)) 

The majority of comments fully 

supported the proposed revisions to this 

section. None opposed. However, a few 

supporters either did not fully 

understand the proposed revisions or 

expressed concern that the proposed 

revisions would result in changes to 

local agency audit requirements. 

Existing audit requirements remain 

unchanged by the proposed revisions. 

The revisions simply update this section 

to refer to government-wide audit 

requirements to which State and local 

agencies are already subject. State and 

local agencies are simply informed of 

their responsibility to obtain audits in 

accordance with Departmental 

regulations at 7 CFR 3052, which 

codifies the Office of Management and 

Budget (OMB) Circular A–133, Audits of 

States, Local Governments and NonProfit Organizations. 

A few comments expressed concern 

that local agencies might obtain 

program-specific audits. OMB Circular 

A–133 provides that a non-Federal 

entity, such as a local agency, operating 

only one Federal program may elect a 

program-specific instead of an 

organization-wide audit. However, most 

local agencies operate more than one 

Federal program and will, therefore, be 

required by OMB Circular A–133 to 

satisfy their audit requirement with an 

organization-wide audit. The revisions 

remain as proposed. 

21. State Agency Reporting 

Requirements (§ 246.25(b) and (c)) 

Participation Reporting 

The Department proposed revisions to 

this section to reflect data collections 

currently approved by OMB. Revisions 

to this section will not change current 

State agency reporting requirements. 

The majority of commenters 

supported the proposed revisions. 

Seven commenters opposed the 

revisions in whole or part. All but one 

of the seven expressed concern that the 

proposed revision would require State 

agencies to report State appropriated 

funds. The proposed revision does not 

require reporting of State appropriated 

funds. There is no data element for State 

funds on Program reports and the data 

element for participation supported by 

State appropriated funds was removed 

beginning with fiscal year 2001. 

However, we believe that State agencies 

should voluntarily continue to inform 

FNS each year of their appropriations, 

i.e., provide the amount, period of 

availability, and purpose (food or 

nutrition services and administration 

(NSA)). The availability of State 

appropriated funds impacts and helps to 

explain Federal funding spending 

patterns. 

Other items causing concern or 

opposed by at least one of the 

commenters included reporting and 

defining cash allowances and excess 

balances; whether monthly NSA 

expenditures include unliquidated NSA 

obligations; the meaning of itemized 

annual NSA expenditure reports; 

reporting a food cost/outreach NSA 

funds ratio; reporting available food and 

NSA by source year; and, suggesting the 

reporting of migrants each year rather 

than every other year. 

Only two modifications were made to 

the proposed revisions. The remainder 

of the revisions remain as proposed. 

First, the reference to a requirement to 

report cash allowances and excess 

balances was deleted. An old 

requirement to report cash allowances 

and excess balances has long since been 

eliminated. Second, unliquidated 

obligations were added to the monthly 


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Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56721 

1HHS’ HIPAA regulations establish standards to 

protect the privacy of individually identifiable 

health information and those standards apply to 

information maintained by health plans, health care 

clearinghouses and certain health care providers. In 

the preamble to the initial final rule published in 

the Federal Register by HHS on December 28, 2000, 

at 65 FR 82462, and in subsequent questions and 

answers issued by HHS on the HIPAA rules, 

respectively, HHS clarified that WIC agencies are 

not considered ‘‘health plans’’ for HIPAA purposes 

and that the HIPAA standards do not extend to WIC 

agencies. 

reporting of NSA expenditures. Data 

collections currently approved by OMB 

require State agencies to report NSA 

unliquidated obligations as well as 

expenditures. 

Clarification is provided regarding the 

following reporting requirements. 

Annual reporting of itemized NSA 

expenditures refers to an existing 

requirement to report NSA expenditures 

by functional category on the FNS–

798A. There is no requirement to report 

a food cost/outreach funds ratio and no 

such requirement was proposed. 

Federal funds are currently reported 

by source year on line 29 (report year 

formula grant) and on lines 30a and 38b 

(funds spent forward from prior year or 

back spent from following year) and 30b 

and 38a (funds back spent to prior year 

and funds spent forward to following 

year) of the FNS–798. Such data is 

readily available. 

The annual reporting of migrant data 

is required to meet the requirement of 

section 17(g)(4) of the Child Nutrition 

Act of 1966, 42 U.S.C. 1786(g)(4), to 

make at least 9⁄10 of 1 percent available 

first for eligible members of migrant 

populations each year. Therefore, the 

existing annual migrant reporting 

requirement cannot be reduced to a 

biennial reporting requirement as it 

would be insufficient for monitoring 

compliance with the Act. 

Racial/Ethnic Group and Local Agency 

Reporting 

Most commenters supported the 

proposed revisions. Several commenters 

opposed reporting local agency changes 

as they occur. However, the current data 

collection for the local agency directory 

(FNS–648), which was initially 

approved by OMB in 1992, requires 

local agency address changes to be 

reported as they occur. 

Current technology only provides for 

an annual publication of the directory. 

However, future automated systems 

upgrades will make it possible for State 

agencies to directly enter and access 

local agency address changes via an online Web-based local agency directory. 

The new technology will be very userfriendly, making updates easy. 

Currently, many State agencies are not 

providing local agency updates until 

FNS pursues them as part of the annual 

local agency directory publication 

activities. However, the final rule 

should reflect the terms of the OMB 

approved data collection and the 

capabilities of future technology 

upgrades. 

22. Confidentiality of Participant 

Information (§ 246.26(d) Through(i)) 

The Department proposed to revise 

§ 246.26(d) and (g) of the current WIC 

regulations, and to add paragraphs (h) 

and (i) to § 246.26, to address the use 

and disclosure of confidential 

information. The Department proposed 

these changes in order to remove 

barriers to coordination among 

programs caused by restrictions on 

sharing participant information, and to 

provide regulatory clarification and 

guidance on legal issues pertaining to 

the release of confidential applicant and 

participant information in connection 

with court proceedings, criminal 

investigations, or instances of known or 

suspected child abuse or neglect. WIC 

agencies continue to be accountable to 

all applicable requirements pertaining 

to the confidentiality of information. 

As clarified in the preamble to the 

proposed rule, confidential applicant 

and participant information could only 

be used or disclosed to the extent 

permitted by these proposed provisions. 

Any other use or disclosure would not 

be permitted. Additionally, information 

obtained from WIC applicants or 

participants would be protected, in 

accordance with WIC regulations, 

regardless of the manner in which the 

information is recorded or stored, with 

access limited to those that have a need 

to know and shared only as permitted 

under these regulations. 

The additional flexibility in the 

proposed rule was intended to maintain 

a balance between sharing information 

in the interest of enhanced services and 

safeguarding information so that barriers 

to Program participation are not created. 

We are fully committed to the principle 

that the integration of health care and 

social service programs must proceed 

with careful regard for an individual’s 

right to privacy. 

A. Treatment of Confidential Applicant 

and Participant Information 

The Department proposed in 

246.26(d)(1) to expand the concept of 

confidential applicant and participant 

information to include all information 

about applicants and participants, 

including information obtained from 

other sources, as well as information 

generated as a result of WIC application, 

certification, or participation. The 

majority of commenters overwhelmingly 

supported this proposed clarification. 

One supporting commenter, however, 

recommended that in order to avoid 

confusion, the regulations should 

specify that in protecting the 

confidentiality of applicant and 

participant information in WIC files, 

WIC local agencies must comply with 

WIC regulations and applicable federal 

statutes, not the U.S. Department of 

Health and Human Services’ (HHS) 

regulations implementing the Health 

Insurance Portability and 

Accountability Act (HIPAA). We agree 

with the commenter and have clarified 

this point in the final regulatory 

provision 246.26(d)(1). 

As set forth in WIC regulations, WIC 

State and local agencies are required to 

comply with the regulations, 

instructions and other guidelines issued 

by the Department, including those 

focused on the protection of applicant 

and participant confidentiality. 

Applicant or participant information 

contained in WIC files may include 

information that originated in other 

federal, state or local program’s files, 

which was subject to those respective 

programs’ confidentiality provisions. 

However, once information is included 

in WIC’s files, WIC confidentiality 

protections attach to the information, 

regardless of the original source and 

exclusive of previously applicable 

confidentiality provisions. Thus, WIC 

confidentiality protections, rather than 

HIPAA requirements or any other 

Federal, State or local programs’ 

confidentiality provisions, attach to and 

take precedence in protecting applicant 

and participant information.1

Health departments, which operate 

many WIC local agencies, are affected 

by HIPAA requirements. In those 

instances and pursuant to HIPAA 

regulations, health departments may 

declare themselves ‘‘hybrid entities’’. 

Covered entities within a health 

department would then comply with 

HIPAA regulations, while the WIC local 

agency, as a non-covered entity, would 

continue to follow existing, applicable 

confidentiality requirements. 

Coordination of programs and services 

can continue, even when program 

confidentiality requirements differ. 

We encourage State and local agencies 

to consult first with their legal counsel 

on issues regarding confidentiality, 

including issues pertaining to HIPAA. 

State agencies are encouraged to contact 

appropriate FNS Regional offices for 


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assistance should unresolved issues 

remain after consultation. 

Therefore, the final rule remains as 

proposed, with the addition of 

clarification that WIC confidentiality 

protections in relevant Federal and State 

authorities attach to applicant and 

participant information, regardless of 

the original source of that information 

and exclusive of previously applicable 

Federal, State or local confidentiality 

provisions. 

B. Use in the Administration and 

Enforcement of the WIC Program 

The proposed provision sought to 

clarify in regulations those entities 

involved in the administration and 

enforcement of the WIC Program, by 

identifying the persons to whom 

confidential applicant/participant 

information may be disclosed based on 

their direct connection with the 

administration and enforcement of the 

WIC Program. The proposed provision 

clarified that such persons must have a 

need to know the confidential 

information for WIC Program purposes 

as determined by the State agency. Also, 

the provision clarified that such persons 

may include the staff of the State 

agency’s local agencies, the staff of other 

State agencies and their local agencies, 

persons under contract with the State 

agency to conduct research concerning 

WIC, and persons investigating and 

prosecuting WIC Program violations 

under Federal, State, or local law. 

All of the commenters were 

supportive of this proposed provision, 

although additional clarification was 

requested concerning the types of staff 

encompassed by the provision, and also 

concerning the meaning of the term 

‘‘need to know.’’

The preamble of the proposed rule 

pointed out that all employees of a State 

or local agency do not need access to 

confidential participant information. In 

using the term ‘‘need to know,’’ we did 

not intend to introduce a new 

requirement, but rather to reinforce the 

requirement in the current regulations 

restricting access to staff directly 

connected with the administration or 

enforcement of the WIC program. 

Moreover, the listing in the provision of 

functions demonstrating a need to know 

was not intended to be all-inclusive, but 

rather to be illustrative. It is not possible 

to anticipate and list all of the staff 

positions or functions involved with 

administration and enforcement of the 

WIC Program. We agree, however, that 

the regulations should clearly indicate 

that the list of persons that have a need 

to know is not limited to those 

referenced in the regulations. 

This specific listing is not necessary 

in the regulations. Instead, State 

agencies must apply the general 

principles provided by the regulatory 

language, in consultation with legal 

counsel. For instance, one commenter 

sought the specific inclusion of 

information technology staff. We 

recognize that such staff may be directly 

involved in the administration and 

enforcement of the program and have a 

need to know confidential participant 

information, but not necessarily all such 

staff. For example, it might be necessary 

for some technology staff to see 

confidential information when they are 

conducting data runs on WIC 

information or to assist WIC staff with 

computer equipment problems. 

However, it is unlikely that technology 

staff assigned to provide support and 

assistance only to other specified 

programs, and not WIC, would need 

such access. As indicated above, each 

State agency must define who is 

authorized access in accordance with 

general principles set forth in WIC 

regulations, in consultation with legal 

counsel. 

We also did not intend to exclude 

State contract staff who are conducting 

audits of the WIC Program pursuant to 

7 CFR part 3052, the Department’s 

regulations implementing the Single 

Audit Act. Such staff would be 

considered as involved in the 

administration or enforcement of the 

program, and would need access to 

confidential information if, for instance, 

they want to sample certification 

records to ensure that income eligibility 

determinations have been correctly 

calculated during certifications. 

Likewise, staff of a bank under contract 

with a WIC State agency for food 

instrument processing will see the 

names of participants on WIC checks, 

and have a justifiable need to know. 

Contract terms and conditions should 

address the confidentiality of WIC 

information and the penalties for 

unauthorized sharing or access. Such 

contract entities perform programmatic 

functions on behalf of the WIC agencies 

and have a need to access confidential 

WIC information under the terms and 

conditions of the contract. 

Another commenter suggested that 

the provision specifically allow for the 

disclosure of confidential participant 

information, without consent, to prevent 

multiple enrollments. Such a general 

statement is not needed since the term 

‘‘administration and enforcement of the 

WIC Program’’ clearly encompasses the 

prevention of dual participation or 

multiple enrollments. The proposed 

rule clarified that individuals who have 

a need to know include personnel from 

local agencies and other WIC State or 

local agencies. As pointed out in the 

preamble of the proposed rule, this 

clarification was needed to facilitate the 

transfer of participants from one State 

agency or local agency to another and 

for program oversight; clearly, the term 

‘‘program oversight’’ includes the 

prevention of dual participation. Thus 

applicant or participant consent is not 

needed for sharing confidential 

applicant or participant information 

between State or local agencies 

regarding the prevention or detection of 

multiple WIC enrollments as well as 

regarding the transfer of participants 

between State or local agencies. Such 

consent is not needed for sharing 

confidential information for any 

purpose properly within the meaning of 

the term ‘‘administration and 

enforcement of the WIC Program,’’ when 

the information is provided to staff with 

a need to know. With regard to sharing 

information with the Commodity 

Supplemental Food Program (CSFP) to 

detect or prevent dual participation, 

and/or for other coordination reasons, 

WIC and CSFP are required to enter into 

a written agreement. 

Finally, as set forth in §§ 246.25(a)(4) 

and 246.26(g), the State agency must 

provide the Department and the 

Comptroller General with access to all 

records. The use of the term 

‘‘Department’’ includes the 

Department’s Office of Inspector 

General (OIG) and other USDA agencies 

or offices involved in the program such 

as FNS, and the Economic Research 

Service which is involved in conducting 

studies of the WIC Program. The 

Comptroller General is the head of the 

Government Accountability Office 

(GAO), which is an arm of Congress. 

The reference to the Comptroller 

General also includes other GAO staff 

such as those who conducted the 

previously mentioned survey on 

participant and employee fraud and 

abuse. 

In general, confidential participant 

information may be used in connection 

with the appeal of adverse action taken 

against State or local WIC personnel. 

However, prior to such release, legal 

counsel should be consulted to provide 

advice on ways to share information 

with those that have a need to know 

while also protecting the confidentiality 

of information to those who do not have 

a need to know, e.g., the judge could see 

the information but not the general 

public attending the hearing. 

Accordingly, these provisions remain 

as proposed, except we have clarified in 

the final rule that the list of persons that 

have a need to know is not limited to 

those referenced. 


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C. Use and Disclosure for Non-WIC 

Purposes 

The Department proposed to allow 

State agencies greater flexibility in 

determining organizations to which they 

may disclose confidential applicant/ 

participant information pursuant to 

written agreements as well as the 

permissible uses of such information. 

Specifically, the Department proposed 

in § 246.26(d)(2) to remove the reference 

to sharing confidential WIC information 

only with public organizations that 

administer ‘‘health or welfare’’ programs 

that serve WIC participants. As 

proposed, this change would provide 

State agencies with greater latitude in 

choosing appropriate programs with 

which to coordinate and share 

information. Additionally, proposed 

§ 246.26(h)(3)(i) would expand the 

permitted uses of confidential 

applicant/participant information to add 

three new categories. As proposed, the 

three new categories of permissible uses 

were: 

• Enhancing the health, education, or 

well-being of WIC applicants or 

participants; 

• Streamlining administrative 

procedures in order to minimize 

burdens on staff and applicants or 

participants; and 

• Assessing and evaluating a State’s 

health system in terms of 

responsiveness to participants’ health 

care needs and health care outcomes. 

Currently, State agencies choosing to 

disclose applicant/participant 

information to public organizations 

designated by the chief State health 

officer must execute a written agreement 

with each agency. The agreement must 

limit the use of the information by the 

receiving agency to establishing 

eligibility for their own programs and 

conducting outreach for such programs. 

Further, the organizations must assure 

that WIC applicant/participant 

information will not be disclosed to a 

third party. Also, § 246.7(i)(9) in current 

regulations requires State agencies to 

inform WIC applicants on the WIC 

certification form that information they 

provide may be disclosed to public 

organizations that administer other 

health or welfare programs for purposes 

of determining eligibility and 

conducting outreach. 

However, as a balance to the proposed 

expansion, the Department also 

proposed a new § 246.4(a)(24) that 

would require State agencies to include 

in their State Plan a list of the programs 

with which the State agency or its local 

agency has or intends to execute written 

agreements for the disclosure and use of 

confidential applicant/participant 

information and planned use of the 

information, consistent with the uses 

authorized in proposed § 246.26(d). In 

addition, the proposed rule included a 

cross-reference to the State plan 

requirement in proposed § 246.26(h)(3). 

These changes were proposed as a 

result of State agency comments and 

concerns that they needed greater 

flexibility to share confidential 

information for administrative purposes 

and to benefit applicants and 

participants. Additional flexibility 

would eliminate, for example, barriers 

to coordination, enhance one-stop 

shopping by applicants who could 

apply for multiple programs, and 

improve access to other programs and 

services available to the population 

served by the WIC Program. 

The proposed rule also clarified in 

§ 246.26(d)(2) and (h)(3) that the 

conditions for disclosing confidential 

applicant/participant information 

would extend to non-WIC uses of the 

information by the State agency and its 

local agencies. In these cases, the 

written agreement would be between 

the WIC State agency or local agency 

and the unit of the WIC State agency or 

local agency that would be using the 

information for non-WIC purposes. 

Further, the rule proposed to require a 

written agreement in these instances 

because the State or local agency 

personnel who would be using the 

information for non-WIC purposes 

might be unfamiliar with the limits on 

the use of the information. Requiring a 

written agreement in these cases would 

provide an additional safeguard for 

sensitive information. 

As noted above, the proposed 

regulations continued the existing 

requirement that State agencies notify 

applicants and participants at the time 

of application or through a subsequent 

notice that information about their 

participation in the WIC Program may 

be used by State and local WIC agencies 

and public organizations in the 

administration of their programs that 

serve persons eligible for the WIC 

Program. Such notification would also 

be required when information is shared 

through written agreements for non-WIC 

purposes under §§ 246.7(i)(11) and 

246.26(h)(2) of the proposed rule. 

The majority of commenters 

supported the proposed provisions. 

Many commenters that supported the 

proposed provisions requested 

clarification or changes to certain 

portions of the proposal. Several 

commenters suggested a requirement for 

State agency oversight of local agency 

agreements. However, such a provision 

is unnecessary. Current regulations at 

§ 246.26(h)(1) specify that the chief 

State health officer (or in the case of an 

Indian State agency, the governing 

authority) is required to designate the 

public organizations with which WIC 

agencies can enter into written 

agreements. The proposed rule reflects 

our intent to continue this requirement 

by further refining the provision. It 

would require the chief State health 

officer to designate in writing the 

permitted non-WIC uses of confidential 

WIC information and the names of the 

organizations with which such 

information will be shared. Therefore, 

State agency oversight of local agency 

agreements currently exists and is 

intended in the proposed rule. 

Several commenters that supported 

the rule suggested that the term ‘‘public 

organizations’’ be defined to include 

Federal, State and local agencies and 

other government/tribal authorities. In 

general, this is the intended meaning of 

the term. It has never been the intent of 

the Department for State agencies to 

interpret this term so narrowly as to 

consider only State agency entities. 

However, as discussed below, this term 

is not intended to be interpreted 

broadly, for example, to include State or 

local law enforcement agencies. We do 

not believe, however, that the 

regulations should specifically define 

the term. Such action could potentially 

exclude or restrict State agency 

flexibility for the chief State health 

officer to identify and designate public 

organizations that may be appropriate to 

share WIC information. State agencies 

are encouraged to consult with legal 

counsel as they attempt to identify 

public organizations that they consider 

sharing confidential WIC information. 

Several commenters that supported 

the provisions, as proposed, requested 

clarification on the extent to which 

independent researchers conducting 

general scientific research would be 

authorized to have access to 

confidentiality WIC information. This 

rule maintains the Department’s 

longstanding position that independent 

researchers would not be considered 

public organizations. Therefore, 

confidential WIC information could not 

be shared with such entities through 

information-sharing agreements. The 

options for sharing WIC information 

with such researchers would be either 

through signed release forms from 

applicants and participants, or 

providing aggregate data, with no 

confidential identifiers. 

A number of supportive commenters 

requested clarification on the 

permissibility of a public organization 

that receives WIC information through 

an information-sharing agreement to redisclose such information to its 


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outreach contractors. We do not view 

such action as a re-disclosure of WIC 

information, but rather using the 

information in the administration and 

operation of its program, via the use of 

contractors, to identify potential 

individuals eligible for services 

provided by the organization. Therefore, 

such uses of WIC information would be 

permissible and not viewed as 

disclosing the information to a third 

party. 

Other clarifications and suggestions 

by commenters supporting the proposed 

provisions covered a broad array of 

issues. Therefore, the following 

statements are intended to respond to 

most of these issues with respect to this 

final rule. WIC agencies are not required 

to enter into information-sharing 

agreements with public organizations 

and take on any added burden by this 

process. This is only one of several 

options for possible sharing of 

confidential WIC information. However, 

there are ways to limit the amount of 

paperwork involved in written 

agreements in some situations. For 

example, FNS Instruction 800–1 states 

that separate agreements do not have to 

be executed for each program. Instead, 

the chief State health officer (or his 

equivalent) may list in one agreement 

all of the programs with which 

information is to be disclosed. 

Responsible officials for each of the 

programs listed would then sign the 

written agreement. 

Another option for sharing 

confidential WIC information is 

obtaining signed release forms from 

applicants and participants, or sharing 

information in aggregate, with no 

identifiers. If signed release forms are 

used, applicants and participants must 

be given the right to refuse to the 

sharing of information. FNS Instruction 

800–1 provides guidance on this issue. 

WIC agencies are in the best position 

to determine which option(s) are best 

suited to their needs. Therefore, it 

would be inappropriate to mandate only 

one approach to sharing WIC 

information with other entities. Further, 

State agencies have the authority to 

decide what WIC information will be 

shared with other public organizations. 

It is not our intent for State/local 

agencies to share all WIC information 

about applicants and participants with 

other organizations, but rather only 

those data elements necessary for the 

receiving organization to, for example, 

contact the individual regarding 

potential services. Therefore, WIC 

agencies already have the authority to 

protect and not disclose highly sensitive 

WIC information such as that relative to 

AIDS/HIV and substance abuse. 

The provisions pertaining to 

information-sharing agreements were 

not designed to permit an applicant or 

participant to refuse such sharing. It was 

designed to be a part of the WIC 

application process. By signing the 

rights and responsibilities statement and 

agreeing to participate in WIC, the 

individual agrees to the sharing of 

information with other public 

organizations that may provide needed 

services. Therefore, no additional 

applicant or participant consent is 

necessary for such information sharing. 

The proposed State Plan provision for 

listing all programs that have 

information-sharing agreements with 

the State agency and its local agencies, 

and the uses of such information, are 

only intended for informational 

purposes. As proposed, FNS did not 

intend to approve State agencies’

decisions in this matter as long as the 

reasons for sharing information were 

consistent with the authorized uses in 

the proposed rule. Therefore, State and 

local agencies can execute such 

agreements prior to submission of the 

information in State Plans. Any 

questions or issues about the 

appropriateness of sharing information 

should be directed to the respective FNS 

Regional office prior to execution of the 

agreement. 

The process of providing a list to FNS 

is not intended to create a barrier to 

entering into information-sharing 

agreements. Further, such lists are not 

intended to serve as notice to WIC 

applicants and participants. State 

agencies are required to provide 

applicants and participants with 

notification at certification of public 

organizations that WIC intends to share 

confidential WIC information. 

Several supportive commenters also 

requested clarification on the proposed 

provision that permits WIC agencies to 

enter into information-sharing 

agreements with Child Protective 

Services (CPS) to report known or 

suspected child abuse or neglect not 

otherwise required by State law. One 

commenter questioned whether WIC 

agencies can also share information 

based on inquiries from CPS to follow 

up on information received from other 

sources. Under this final rule, an 

information-sharing agreement between 

WIC and CPS, if a WIC agency is 

contacted by CPS to check its records 

for possible abuse and neglect, it may 

respond to CPS’ inquiry. 

A few commenters opposed the 

proposed provisions. One reason for 

opposition included an objection to the 

prohibition on the public organization 

receiving confidential WIC information 

to disclose it to a third party. The 

commenter stated that this precludes 

sharing with immunization registries, 

and recommended such sharing be 

permitted. However, we are committed 

to maintaining the confidentiality of 

applicant/participant information as 

programs coordinate services and share 

information, although the task becomes 

more challenging. One way to control 

the access of confidential information 

while promoting coordination is 

through the use of a written agreement 

between programs, specifying what data 

will be shared, how it will be shared, 

whether data may be subsequently 

disclosed, and the proposed use(s) of 

such information. With regard to most 

immunization registries, WIC agencies 

currently have the authority to share 

information with organizations 

administering immunization registries. 

WIC agencies may share confidential 

WIC information by obtaining written 

release forms from applicants and 

participants, and individuals can be 

informed about potential subsequent 

release of their information. 

One commenter recommended 

deleting the proposed reference to 

executing written agreements for the 

purpose of streamlining administrative 

procedures in either the receiving 

program or WIC. Coordination among 

programs and ‘‘one-stop shopping’’ for 

applicants to access multiple programs’

benefits has increased. This provision is 

intended to facilitate coordination of 

services among programs and minimize 

or eliminate duplication of efforts; thus, 

the reference to streamlining 

administrative procedures. 

One commenter opposed the 

permissible use of sharing information 

to enhance the health, education or 

well-being of WIC applicants or 

participants, as set forth in the proposed 

rule. The commenter felt this provision 

was too broad. However, the intent of 

this provision was to provide State 

agencies with the flexibility to identify 

and designate programs with which to 

share information in order to truly 

benefit the WIC population. For 

example, State or local agencies could 

elect to enter into one written agreement 

with programs in the health department, 

including their Communicable Disease 

Program, to share confidential WIC 

information. In consultation with its 

legal counsel, we believe State agencies 

are in the best position to make these 

determinations. The purposes for 

sharing were expanded to accommodate 

State agencies’ concerns that current 

purposes were too restrictive. 

As indicated in the proposed rule, the 

Department is committed to maintaining 

the confidentiality of the financial and 

health information of WIC applicants 


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and participants. The Department 

understands that individuals may refuse 

to apply or participate in the WIC 

Program if they fear that their privacy 

will not be safeguarded. 

Therefore, the provisions set forth in 

§ 246.26(h) of the proposed rule 

pertaining to sharing of WIC 

information for non-WIC purposes and 

entering into information-sharing 

agreements remain as proposed. 

D. Child Abuse and Neglect Reporting 

Encouraged by the Child Abuse 

Prevention and Treatment Act (42 

U.S.C. 5106a), many States have enacted 

statutes requiring the reporting of 

known or suspected child abuse or 

neglect. Under current WIC policy, if a 

State statute requires known or 

suspected child abuse or neglect to be 

reported, then WIC staff must report or 

release applicant/participant 

information to State or local officials, as 

required by State law. In the proposed 

rule, we sought to codify current policy, 

as set forth in FNS Instruction 800–1. 

Currently, if State law does not require 

the reporting of known or suspected 

child abuse and neglect by public 

programs, such as WIC, the guidance in 

FNS Instruction 800–1 encourages WIC 

State agencies to consult with State legal 

counsel to determine the 

appropriateness of reporting such 

information. In the proposed rule at 

§ 246.26(h)(3)(i)(C), State agencies are 

provided the option to report known or 

suspected child abuse or neglect when 

not mandated by State statute if a 

written agreement has been executed 

between the WIC State or local agency 

and the appropriate child protective 

service organization. 

All of the comments supported these 

proposed provisions, although some 

revisions or clarifications were 

requested. Several commenters 

requested that we clarify in the 

regulatory language that the 

participant’s consent is not needed by 

the local agency in order to provide 

such information to the appropriate 

child protective authority. We agree that 

a participant’s written consent to share 

such information is not required. WIC 

agencies are reminded that FNS 

Instruction 800–1 provides specific 

guidance on the use of informationsharing agreements and addresses this 

issue. 

One commenter requested that we 

address the impact of the Indian Child 

Welfare Act (25 U.S.C. 1902), stating 

that it addresses abuse and neglect and 

takes precedence over State law. Based 

on consultation with HHS, the Indian 

Child Welfare Act does not include 

requirements for reporting child abuse 

and neglect. This law deals with 

custody proceedings and the placement 

of Indian children in foster care. 

One other commenter suggested that 

the term ‘‘best interests of the program,’’

introduced in the proposed rule 

regarding subpoenas and search 

warrants, may be applicable to the 

disclosure of confidential participant 

information for substantiating child 

abuse allegations made by a third party. 

We do not support this position. As 

indicated in the proposed rule, State 

law governs such disclosures. 

Accordingly, in this final rule, the 

provisions pertaining to reporting 

known or suspected child abuse and 

neglect in § 246.26(d)(3) and (h)(3)(C) 

remain as proposed. 

E. Release Forms 

State agencies have requested latitude 

to allow medical information to be 

disclosed to private physicians and 

other health care providers treating WIC 

applicants and participants. The 

Department recognizes that increased 

flexibility by WIC agencies to share such 

information can be beneficial to the 

applicant or participant, as well as the 

requesting health care providers. As a 

result, the Department proposed in 

§ 246.26(d)(4) to permit the use of 

release forms authorizing disclosure to 

the applicant or participant’s 

physician(s) or other health care 

provider(s) at the time of application or 

certification for the WIC Program. 

However, as proposed, to underscore 

the voluntary nature of the release form, 

all other requests of the applicant to 

sign release forms to share WIC 

information would continue to be 

required to take place after the 

application and certification process is 

completed. In using release forms, WIC 

agencies should be aware that such 

policies must include the right of the 

applicant/participant to refuse to sign 

the consent without affecting eligibility 

for Program participation. Current 

policy and guidance on the use of 

release forms is in FNS Instruction 800–

1. 

Most of the commenters supported 

the proposed provision. Several 

commenters asserted that releases to 

parties other than health care providers 

should also be allowed at certification. 

One of these commenters recommended 

such release forms be a part of the 

certification form to eliminate the need 

for a second form; the commenter stated 

that the participant’s use of the release 

form would in fact be voluntary. We do 

not support this recommendation. The 

presentation and execution of such 

releases are required after the WIC 

certification process is complete, i.e., 

the applicant is determined eligible for 

WIC benefits, because to do otherwise 

may create a barrier to WIC 

participation. The participant may 

perceive that signing the release is a 

condition of WIC program participation. 

Presenting a release form to WIC 

applicants for signature for all purposes, 

except to share information with 

physicians or other health care 

providers, can occur during the 

certification visit but must occur after 

the determination of WIC eligibility. 

The release form to share information 

with physicians or other health care 

providers may be a part of or attached 

to the WIC certification form. However, 

release forms for all other purposes 

must be separate from the WIC 

certification form. 

Therefore, the provisions pertaining 

to participant release forms in 

§ 246.26(d)(4) in this final rule remain 

as proposed. 

F. Access by Applicants and 

Participants 

The proposed rule sought to codify in 

§ 246.26(d)(5) the current policy 

requiring State and local agencies to 

provide applicants and participants 

access to the information they provide. 

In the case of an applicant or participant 

who is an infant or child, the State or 

local agency would be required to 

provide access to the parent or guardian 

of the infant or child, assuming that any 

issues regarding custody or 

guardianship are resolved. Further, as 

proposed, State and local agencies 

would not be required to provide access 

to any other information concerning an 

applicant or participant, such as 

documentation of income provided by 

third parties and staff assessments of the 

participant’s condition or behavior, 

unless required by Federal, State, or 

local law or policy or unless the 

information supports a State or local 

agency decision that is being appealed 

by the applicant or participant pursuant 

to § 246.9. 

All commenters supported the 

provisions as proposed. However, 

several of these commenters requested 

clarification such as the provision of 

guidelines for proof of custody, the 

provision of access by the parent or 

guardian of an infant or child who 

signed at certification, or whose 

signature is on file. All issues regarding 

custody and policy developed in this 

area must involve legal counsel since 

State law must be followed in handling 

such issues. Therefore, the provisions 

pertaining to applicant and participant 

access to WIC information at 

§ 246.26(d)(5) in this final rule remain 

as proposed. 


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G. Access by the USDA and the 

Comptroller General of the United 

States 

The proposed rule would have 

revised §§ 246.25(a)(4) and 246.26(g) to 

clarify that access to Program records by 

the Department and Comptroller 

General of the United States includes 

confidential applicant and participant 

information. However, the proposed 

rule prohibited any reports or other 

documents resulting from the 

examination of such records that are 

publicly released from including 

confidential applicant or participant 

information. 

All of the commenters supported 

these proposed provisions, although one 

commenter requested that GAO and the 

Department’s OIG be specifically 

referenced in the provision because both 

of these offices have become 

increasingly active in reviewing the 

program. This change is unnecessary 

since OIG is part of USDA and GAO is 

under the authority of the Comptroller 

General. Therefore, §§ 246.25(a)(4) and 

246.26(g) in this final rule remain as 

proposed. 

H. Subpoenas and Search Warrants 

The Department proposed to add a 

new paragraph (i) to § 246.26 that would 

specify the procedures State and local 

agencies must follow in responding to 

requests from courts for confidential 

information pertaining to WIC 

applicants, participants, and vendors. 

The Department proposed to add these 

procedures to the WIC regulations in 

response to an increase in instances in 

which State and local agencies are 

presented with subpoenas or search 

warrants seeking confidential applicant 

and participant information. The 

Department proposed step-by-step 

procedures that State and local agencies, 

in consultation with legal counsel, 

would be required to follow in handling 

these requests. The proposed 

procedures were intended to create a 

basic, standard approach that 

emphasizes the importance of 

preserving confidentiality within the 

scope of the Federal regulations 

governing the WIC Program. At the same 

time, these procedures would protect 

WIC staff from adverse legal action for 

refusals to release confidential 

information. 

Further, in § 246.6(i), the Department 

proposed to identify the situations in 

which State or local agencies must 

release information, for example, when 

served with a search warrant. As 

explained in the preamble to the 

proposed rule, if the State or local 

agency fails to comply in these 

situations, WIC staff may face adverse 

legal action, including imprisonment. 

The proposed rule set forth different 

procedures for responding to subpoenas 

as opposed to search warrants in 

recognition of the differences between 

these legal documents. A subpoena is a 

written directive for information to be 

provided by an individual or entity. 

Generally, a subpoena directs an 

individual or entity to appear at a stated 

time and place and give information on 

a topic about which the individual or 

entity is knowledgeable. One type of 

subpoena is a subpoena duces tecum. A 

subpoena duces tecum is a written 

directive that orders the production and 

delivery of documents. Documents may 

be requested by type, e.g. all records for 

participants of a certain age and gender, 

or by topic, e.g., all documents which 

deal with immunization. The deadline 

for delivery, as well as the site for 

delivery, is generally specified. Search 

warrants are issued by the courts and 

are used by law enforcement officers to 

obtain information, and sometimes 

objects, from specific premises. 

Compliance with a search warrant is 

required at the time the search warrant 

is served. 

The majority of commenters 

supported the provisions as proposed. 

However, some of these commenters 

also requested various clarifications or 

changes to some of the provisions. Some 

commenters felt that the provision was 

not clear that WIC agencies should 

protect participant confidentiality when 

served with a subpoena. The intent of 

the process set forth in the proposed 

rule is in fact to protect confidential 

WIC information. Therefore, consulting 

with legal counsel is set forth as one of 

the first steps. In general, subpoenas are 

merely requests for information and do 

not require the immediate surrender of 

information. On the other hand, failing 

to immediately comply with a search 

warrant could result in imprisonment of 

WIC State and local agency staff. 

Therefore, no change to the proposed 

process is necessary. 

Several commenters requested 

clarification on whether State agencies 

would have sole or concurrent 

jurisdiction with local agencies to 

comply with subpoenas and search 

warrants. We believe that concurrent 

jurisdiction is warranted given that WIC 

State agencies are ultimately responsible 

for the administration and operation of 

the program within the State agency, 

including by its local agencies. Local 

agencies are under contract with the 

State agency to operate the program in 

accordance with Federal regulations. 

Therefore, State agencies should 

provide oversight authority for its local 

agencies in responding to subpoenas, 

search warrants and court orders. 

As required in the proposed rule and 

this final rule, a local agency is required 

to notify its State agency when it is 

served with subpoenas and search 

warrants. This same policy should 

apply to court orders received by local 

agencies. In addition, copies of 

subpoenas, search warrants and court 

orders are considered records pertaining 

to WIC operations, and as such, must be 

retained on file by WIC agencies for a 

minimum of three years, as required by 

§ 246.25(a)(2) of the regulations. In 

addition, such information provides 

documentation of action taken and 

supports the action to release 

confidential WIC information, if 

subsequent legal issues arise. 

Several commenters requested that 

the regulations clarify access to WIC 

information by law enforcement 

officials. It would not be appropriate or 

necessary to include in the regulations 

an exhaustive list of all individuals that 

can or cannot access confidential WIC 

information. We can provide guidance 

in this preamble and through further 

guidance that FNS will issue to address 

a number of confidentiality issues raised 

by commenters on the proposed rule. 

As set forth in current and proposed 

regulations, confidential WIC 

information can only be shared with 

individuals involved in the 

administration and enforcement of the 

WIC Program; through written 

agreement with public health 

organizations, and, as stated previously 

in this preamble, State agencies should 

not interpret this category to include 

law enforcement officials; through 

written consent from applicants/ 

participants; and, in aggregate form. 

None of these options permit the 

sharing of confidential WIC information 

with law enforcement officials, except 

those involved in enforcing the WIC 

Program. Therefore, the avenue set forth 

in the proposed rule, which reflects 

current policy, is that such law 

enforcement officials must seek a court’s 

decision to issue a subpoena or search 

warrant in order to access/attempt to 

access confidentiality WIC information. 

We believe the courts are in a better 

position to make determinations on 

whether such requests for information 

have merit and are warranted. As 

reflected in the proposed rule, even if a 

subpoena is issued by a court for WIC 

information, WIC agencies, or their 

representatives, have the right to argue 

their case before the courts and to 

clarify that WIC information must be 

kept confidential pursuant to Federal 

regulations. Ultimately, it is up to the 

courts to determine whether a specific 


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enunciated need to access such 

information overrides Federal 

requirements. 

A number of commenters expressed 

concerns regarding quashing subpoenas, 

that is, appearing before a court to argue 

why confidential WIC information 

requested in a subpoena should not be 

released. Several commenters indicated 

that WIC agencies do not need to move 

to quash a subpoena if they informally 

convince the requesting party to 

withdraw the subpoena. We agree with 

commenters that in such a situation, 

moving to quash the subpoena would be 

mooted by its withdrawal. It would still 

be necessary for the State or local 

agency, in consultation with legal 

counsel for State or local agency 

counsel, to provide an appropriate 

response to the respective court in the 

matter. The language of the final rule is 

unchanged. 

Other commenters were concerned 

with disclosing confidential information 

based on the best interest of the 

program. One commenter felt that this 

provision was too broad. Other 

commenters recommended that this 

standard be replaced to explicitly allow 

the disclosure of confidential 

information when participants verbally 

or physically abuse WIC staff or 

undertake any criminal activity on WIC 

premises. Again, when a subpoena is 

issued, we believe that WIC State 

agencies, in consultation with legal 

counsel, should have the flexibility to 

decide on a case-by-case basis whether 

the circumstances warrant release of the 

information, given the circumstances; 

that it is in the best interest of the 

program. As indicated in the preamble 

of the proposed rule, there may be rare 

instances in which a State or local 

agency in consultation with legal 

counsel could decide that disclosing 

confidential applicant or participant 

information would be in the best 

interest of the Program. Because 

requests arising from investigations of 

this caliber and seriousness are rare, we 

expect State and local agencies to 

conclude only infrequently that such 

disclosure is necessary. Therefore, this 

regulation cannot attempt to address all 

cases in which State agencies, or their 

representatives, should move to quash 

subpoenas or decide to disclose 

confidential information. State agencies 

and legal counsel should ultimately 

make these decisions on a case-by-case 

basis in conformance with State and 

Federal privacy requirements. 

Beyond responding to subpoenas, 

WIC confidentiality rules do not 

prohibit WIC agencies from contacting 

law enforcement if applicants or 

participants become verbally or 

physically abusive to WIC staff or are 

suspected of stealing either WIC 

Program property or personal items 

from employees or other individuals. 

Legal counsel can assist State agencies 

in developing policies to follow in 

handling such cases, without breaching 

confidentiality. For example, a WIC 

employee could report to law 

enforcement what she/he knows about 

who may have taken a purse or WIC 

Program property, without providing 

information from the WIC record. 

Several commenters requested that 

the regulations address the procedures 

to follow for responding to court orders 

to which they are not parties, and that 

along with subpoenas and search 

warrants, the same or similar steps 

should be followed. We agree with the 

commenter that the proposed 

procedures for responding to subpoenas 

and search warrants apply to those in 

which WIC is a direct or indirect party. 

As proposed, the regulations are general 

in their direction and intent on how to 

respond to subpoenas and search 

warrants, and do not specify that the 

procedures apply only when WIC is a 

direct party. Further, with regard to 

responding to court orders, State and 

local agencies should consult with its 

legal counsel on such matters. We 

anticipate that in most cases, State 

agencies will need to respond to court 

orders in a manner similar to the 

procedures for responding to search 

warrants. 

The requirements in proposed 

Program regulations pertaining to 

subpoenas and search warrants are 

intended to clarify the primacy of 

Federal authority to limit disclosure of 

information in the interest of preserving 

the confidentiality of WIC applicant/ 

participant information. In addition, the 

Department sought to communicate a 

national, uniform approach to 

disclosure of WIC records that will 

assist the courts in handling matters 

related to the confidentiality of Program 

information. Again, because of variation 

in State law, the Department sought to 

enunciate a regulatory framework that is 

sufficiently flexible to accommodate 

State laws in this area. 

Accordingly, § 246.26(i) in this final 

rule remains as proposed, except that 

the entire section has been renumbered 

for clarity to include an introductory 

statement and two paragraphs. 

23. Corrections to Program Information 

(§ 246.27) 

This final rule makes technical 

revisions to § 246.27 to reflect address 

changes or corrections for the Southeast 

Regional Office and the Western 

Regional Office of the Food and 

Nutrition Service. 

List of Subjects in 7 CFR Part 246 

Food assistance programs, Food 

donations, Grant programs-social 

programs, Indians, Infants and children, 

Maternal and child health, Nutrition, 

Nutrition education, Public assistance 

programs, WIC, Women. 

■ For the reasons set forth in the 

preamble, 7 CFR part 246 is amended as 

follows: 

PART 246—SPECIAL SUPPLEMENTAL 

NUTRITION PROGRAM FOR WOMEN, 

INFANTS AND CHILDREN 

■ 1. The authority citation for part 246 

continues to read as follows: 

Authority: 42 U.S.C. 1786. 

■ 2. In § 246.2: 

■ a. Add new definitions of ‘‘Electronic 

signature’’, ‘‘Employee fraud and 

abuse’’, ‘‘7 CFR part 3021’’ and ‘‘Sign or 

signature’’, in alphabetical order; 

■ b. Revise the definition of ‘‘7 CFR part 

3017’’; and 

■ c. Revise the definition of ‘‘State’’. 

The revisions and additions read as 

follows: 

§ 246.2 Definitions. 

* * * * * 

Electronic signature means an 

electronic sound, symbol, or process, 

attached to or associated with an 

application or other record and 

executed and or adopted by a person 

with the intent to sign the record. 

Employee fraud and abuse means the 

intentional conduct of a State, local 

agency or clinic employee which 

violates program regulations, policies, 

or procedures, including, but not 

limited to, misappropriating or altering 

food instruments, entering false or 

misleading information in case records, 

or creating case records for fictitious 

participants. 

* * * * * 

7 CFR part 3017 means the 

Department’s Common Rule regarding 

Governmentwide Debarment and 

Suspension (Non-procurement). Part 

3017 implements the requirements 

established by Executive Order 12549 

(February 18, 1986). 

* * * * * 

7 CFR part 3021 means the 

Department’s Common Rule regarding 

Governmentwide Requirements for 

Drug-Free Workplace. Part 3021 

implements the requirements 

established in section 5151–5160 of the 

Drug-Free Workplace Act of 1988 (Pub. 

L. 100–690). 


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Sign or signature means a 

handwritten signature on paper or an 

electronic signature. If the State agency 

chooses to use electronic signatures, the 

State agency must ensure the reliability 

and integrity of the technology used and 

the security and confidentiality of 

electronic signatures collected in 

accordance with sound management 

practices, and applicable Federal law 

and policy, and the confidentiality 

requirements in § 246.26. 

State means any of the fifty States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, 

or the Commonwealth of the Northern 

Mariana Islands. 

* * * * * 

■ 3. In § 246.3, revise paragraphs (b) and 

(c)(2) to read as follows: 

§ 246.3 Administration. 

* * * * * 

(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 (7 CFR part 3016); governing 

nonprocurement debarment/suspension 

(7 CFR part 3017); governing restrictions 

on lobbying (7 CFR part 3018); and 

governing the drug-free workplace 

requirements (7 CFR 3021); 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) * * * 

(2) The written agreement shall 

include a certification regarding 

lobbying and, if applicable, a disclosure 

of lobbying activities, as required by 7 

CFR part 3018. 

* * * * * 

■ 4. In § 246.4: 

■ a. Revise paragraphs (a)(11)(i) and 

(a)(11)(ii); 

■ b. Add a sentence to the end of 

paragraph (a)(21); 

■ c. Amend paragraph (a)(23) by adding 

the words ‘‘in compliance with 

requirements in 7 CFR part 3021’’ at the 

end of the sentence; and 

■ d. Add new paragraphs (a)(24) 

through (a)(27). 

The revisions and additions read as 

follows: 

§ 246.4 State plan. 

(a) * * * 

(11) * * * 

(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 

§ 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 § 246.7(e)(4)) to 

accommodate high-risk postpartum 

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 § 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. 

* * * * * 

(21) * * * The State agency will also 

describe its policy for approving 

transportation of participants to and 

from WIC clinics. 

* * * * * 

(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 

§ 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. 

* * * * * 

■ 4. In § 246.5: 

■ a. Revise the first sentence of 

paragraph (c)(1) and remove the last 

sentence; and 

■ b. Revise paragraph (d)(2). 

The revisions read as follows: 

§ 246.5 Selection of local agencies. 

* * * * * 

(c) * * * 

(1) The State agency will consider the 

Affirmative Action Plan (see 

§ 246.4(a)(5)) when funding local 

agencies and expanding existing 

operations, and may consider how 

much of the current need is being met 

at each priority level. * * * 

* * * * * 

(d) * * * 

(2) The State agency must, when 

seeking new local agencies, publish a 

notice in the local media (unless it has 

received an application from a local 

public or nonprofit private health 

agency that can provide adequate 

services). The notice will include a brief 

explanation of the Program, a 

description of the local agency priority 

system (outlined in this paragraph (d)), 

and a request that potential local 

agencies notify the State agency of their 

interest. In addition, the State agency 

will contact all potential local agencies 

to make sure they are aware of the 

opportunity to apply. If an application 

is not submitted within 30 days, the 

State agency may then select a local 

agency in another area. If sufficient 

funds are available, a State agency will 

give notice and consider applications 

outside the local area at the same time. 

* * * * * 

■ 5. In § 246.7: 

■ a. Revise the heading of paragraph (c) 

and revise paragraph (c)(1); 

■ b. Redesignate paragraph (c)(2) as 

paragraph (c)(3) and add new 

paragraphs (c)(2) and (c)(4); 

■ c. Revise paragraph (d)(2)(iii); 

■ d. Redesignate paragraph (d)(2)(iv)(C) 

as paragraph (d)(2)(iv)(D) and add a new 

paragraph (d)(2)(iv)(C); 

■ e. Revise paragraph (e)(1)(vi); 

■ f. In paragraph (e)(4)(vii), remove the 

second ‘‘and,’’ and remove the reference 

to ‘‘paragraph (e)(1)(iii)’’ and add in its 

place ‘‘paragraph (e)(1)(vi).’’

■ g. Revise paragraph (g)(1); 

■ h. Revise paragraph (h); 

■ i. Revise paragraph (i)(10) 

introductory text; 


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■ j. Revise paragraph (i)(11); 

■ k. Revise paragraph (j)(2) introductory 

text; 

■ l. Revise paragraph (l); and, 

■ m. Remove paragraph (m), and 

redesignate paragraphs (n), (o), (p), and 

(q) as paragraphs (m), (n), (o), and (p), 

respectively. 

The revisions and additions read as 

follows: 

§ 246.7 Certification of participants. 

* * * * * 

(c) Eligibility criteria and basic 

certification procedures. 

(1) To qualify for the Program, infants, 

children, and pregnant, postpartum, and 

breastfeeding women must: 

(i) Reside within the jurisdiction of 

the State (except for Indian State 

agencies). Indian State agencies may 

establish a similar requirement. All 

State agencies may determine a service 

area for any local agency, and may 

require that an applicant reside within 

the service area. However, the State 

agency may not use length of residency 

as an eligibility requirement. 

(ii) Meet the income criteria specified 

in paragraph (d) of this section. 

(iii) Meet the nutritional risk criteria 

specified in paragraph (e) of this 

section. 

(2)(i) At certification, the State or 

local agency must require each 

applicant to present proof of residency 

(i.e., location or address where the 

applicant routinely lives or spends the 

night) and proof of identity. The State 

or local agency must also check the 

identity of participants, or in the case of 

infants or children, the identity of the 

parent or guardian, or proxies when 

issuing food or food instruments. The 

State agency may authorize the 

certification of applicants when no 

proof of residency or identity exists 

(such as when an applicant or an 

applicant’s parent is a victim of theft, 

loss, or disaster; a homeless individual; 

or a migrant farmworker). In these cases, 

the State or local agency must require 

the applicant to confirm in writing his/ 

her residency or identity. Further, an 

individual residing in a remote Indian 

or Native village or an individual served 

by an Indian tribal organization and 

residing on a reservation or pueblo may 

establish proof of residency by 

providing the State agency their mailing 

address and the name of the remote 

Indian or Native village. 

(ii) For a State agency opting to 

require proof of pregnancy, the State 

agency may issue benefits to applicants 

who claim to be pregnant (assuming that 

all other eligibility criteria are met) but 

whose conditions (as pregnant) are not 

visibly noticeable and do not have 

documented proof of pregnancy at the 

time of the certification interview and 

determination. The State agency should 

then allow a reasonable period of time, 

not to exceed 60 days, for the applicant 

to provide the requested documentation. 

If such documentation is not provided 

as requested, the woman can no longer 

be considered categorically eligible, and 

the local agency would then be justified 

in terminating the woman’s WIC 

participation in the middle of a 

certification period. 

* * * * * 

(4) The certification procedure shall 

be performed at no cost to the applicant. 

(d) * * * 

(2) * * * 

(iii) Use of a State or local health care 

definition of ‘‘Income’’. If the State 

agency uses State or local free or 

reduced-price health care income 

guidelines, it will ensure that the 

definitions of income (see paragraph 

(d)(2)(ii) of this section), family (see 

§ 246.2) and allowable exclusions from 

income (see paragraph (d)(2)(iv) of this 

section) are used uniformly to 

determine an applicant’s income 

eligibility. This ensures that households 

with a gross income in excess of 185 

percent of the Federal income 

guidelines (see paragraph (d)(1) of this 

section) are not eligible for Program 

benefits. The exception to this 

requirement is persons who are also 

income eligible under other programs 

(see paragraph (d)(2)(vi) of this section). 

(iv) * * * 

(C) Loans, not including amounts to 

which the applicant has constant or 

unlimited access. 

* * * * * 

(e) * * * 

(1) * * * 

(vi) Regression. A WIC participant 

who is reapplying for WIC benefits may 

be considered to be at nutritional risk in 

the next certification period if the 

competent professional authority 

determines that the applicant’s 

nutritional status may regress to the 

nutritional risk condition(s) certified for 

in the previous certification period 

without supplemental foods and/or WIC 

nutrition services, and if the nutritional 

risk condition(s) certified for in the 

previous certification period is/are 

appropriate to the category of the 

participant in the subsequent 

certification based on regression. 

However, such applicants shall not be 

considered at nutritional risk based on 

the possibility of regression for 

consecutive certification periods. 

Applicants who are certified based on 

the possibility of regression should be 

placed either in the same priority for 

which they were certified in the 

previous certification period; a priority 

level lower than the priority level 

assigned in the previous certification 

period, consistent with § 246.7(e)(4); or 

in Priority VII, if the State agency is 

using that priority level. 

* * * * * 

(g) * * * 

(1) Program benefits will be based 

upon certifications established in 

accordance with the following 

timeframes: 

A/an: Will be certified: 

(i) Pregnant woman ............................................. For the duration of her pregnancy, and up to the last day of the month in which the infant becomes six weeks old or the pregnancy ends (for example, if the infant is born June 4, six 

weeks after birth would be July 16, and certification would end July 31). 

(ii) Postpartum woman ........................................ Up to the last day of the sixth month after the baby is born or the pregnancy ends 

(postpartum). 

(iii) Breastfeeding woman .................................... Approximately every six months. The State agency may permit its local agencies to certify a 

breastfeeding woman up to the last day of the month in which her infant turns 1 year old, or 

until the woman ceases breastfeeding, whichever occurs first. 

(iv) Infant ............................................................. Approximately every six months. The State agency may permit its local agencies to certify an 

infant under six months of age up to the last day of the month in which the infant turns 1 

year old, provided the quality and accessibility of health care services are not diminished. 

(v) Child ............................................................... Approximately every six months ending with the last day of the month in which a child reaches 

his/her fifth birthday. 


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* * * * * 

(h) Mandatory and optional midcertification actions. Mid-certification 

actions are either mandatory or optional 

as follows: 

(1) Mandatory reassessment of income 

eligibility mid-certification. (i) The local 

agency must reassess a participant’s 

income eligibility during the current 

certification period if the local agency 

receives information indicating that the 

participant’s household income has 

changed. However, such assessments 

are not required in cases where 

sufficient time does not exist to effect 

the change. Sufficient time means 90 

days or less before the expiration of the 

certification period. 

(ii) Mandatory disqualification midcertification for income ineligibility. The 

local agency must disqualify a 

participant and any other household 

members currently receiving WIC 

benefits who are determined ineligible 

based on the mid-certification income 

reassessment. However, adjunctivelyeligible WIC participants (as defined in 

paragraphs (d)(2)(vi)(A) or (d)(2)(vi)(B) 

of this section) may not be disqualified 

from the WIC Program solely because 

they, or certain family members, no 

longer participate in one of the other 

specified programs. The State agency 

will ensure that such participants and 

other household members currently 

receiving WIC benefits are disqualified 

during a certification period only after 

their income eligibility has been 

reassessed based on the income 

screening procedures used for 

applicants who are not adjunctively 

eligible. 

(2) Mandatory sanctions or other 

actions for participant violations. The 

local agency must impose 

disqualifications, or take other actions 

in accordance with the procedures set 

forth in § 246.12(u), in response to 

participant violations including, but not 

limited to, the violations listed in the 

definition of Participant violation in 

§ 246.2. 

(3) Optional mid-certification actions. 

A participant may be disqualified 

during a certification period for the 

following reasons: 

(i) A State agency may allow local 

agencies to disqualify a participant for 

failure to obtain food instruments or 

supplemental foods for several 

consecutive months. As specified by the 

State agency, proof of such failure 

includes failure to pick up 

supplemental foods or food instruments, 

nonreceipt of food instruments (when 

mailed instruments are returned), or 

failure to have an electronic benefit 

transfer card revalidated for purchase of 

supplemental foods; or 

(ii) If a State agency experiences 

funding shortages, it may be necessary 

to discontinue Program benefits to some 

certified participants. The State agency 

must explore alternatives (such as 

elimination of new certifications) before 

taking such action. In discontinuing 

benefits, the State agency will affect the 

least possible number of participants 

and those whose nutritional and health 

status would be least impaired by the 

action. When a State agency elects to 

discontinue benefits due to insufficient 

funds, it will not enroll new 

participants during that period. The 

State may discontinue benefits by: 

(A) Disqualifying a group of 

participants; and/or, 

(B) Withholding benefits from a group 

with the expectation of providing 

benefits again when funds are available. 

(i) * * * 

(10) A statement of the rights and 

obligations under the Program. The 

statement must contain a signature 

space, and must be read by or to the 

applicant, parent, or caretaker. It must 

contain the following language or 

alternate language as approved by FNS 

(see § 246.4(a)(11)(i)), and be signed by 

the applicant, parent, or caretaker after 

the statement is read: 

* * * * * 

(11) If the State agency exercises the 

authority to use and disclose 

confidential applicant and participant 

information for non-WIC purposes 

pursuant to § 246.26(d)(2), a statement 

that: 

(i) Notifies applicants that the chief 

State health officer (or the governing 

authority, in the case of an Indian State 

agency) may authorize the use and 

disclosure of information about their 

participation in the WIC Program for 

non-WIC purposes; 

(ii) Must indicate that such 

information will be used by State and 

local WIC agencies and public 

organizations only in the administration 

of their programs that serve persons 

eligible for the WIC Program; and, 

(iii) Will be added to the statement 

required under paragraph (i)(10) of this 

section. This statement must also 

indicate that such information can be 

used by the recipient organizations only 

for the following: 

(A) To determine the eligibility of 

WIC applicants and participants for 

programs administered by such 

organizations; 

(B) To conduct outreach for such 

programs; 

(C) To enhance the health, education, 

or well-being of WIC applicants and 

participants currently enrolled in those 

programs; 

(D) To streamline administrative 

procedures in order to minimize 

burdens on participants and staff; and, 

(E) To assess and evaluate a State’s 

health system in terms of 

responsiveness to participants’ health 

care needs and health care outcomes. 

(j) * * * 

(2) At the time of certification, each 

Program participant, parent or caretaker 

must read, or have read to him or her, 

the statement provided in paragraph 

(i)(10) of this section (or an alternate 

statement as approved by FNS). In 

addition, the following sentences (or 

alternate sentences as approved by FNS) 

must be read: 

* * * * * 

(l) Dual participation. The State 

agency is responsible for the following: 

(1) In conjunction with WIC local 

agencies, the prevention and 

identification of dual participation 

within each local agency and between 

local agencies under the State agency’s 

jurisdiction, including actions to 

identify suspected instances of dual 

participation at least semiannually. The 

State or local agency must take followup action within 120 days of detecting 

instances of suspected dual 

participation; 

(2) In areas where a local agency 

serves the same population as an Indian 

State agency or a CSFP agency, and in 

areas where geographical or other 

factors make it likely that participants 

travel regularly between contiguous 

local service areas located across State 

agency borders, entering into an 

agreement with the other agency for the 

detection and prevention of dual 

participation. The agreement must be 

made in writing and included in the 

State Plan; 

(3) Immediate termination from 

participation in one of the programs or 

clinics for participants found in 

violation due to dual participation; and 

(4) In cases of dual participation 

resulting from intentional 

misrepresentation, the collection of 

improperly issued benefits in 

accordance with § 246.23(c)(1) and 

disqualification from both programs in 

accordance with § 246.12(u)(2). 

* * * * * 

■ 6. In § 246.9, revise paragraph (g) to 

read as follows: 

§ 246.9 Fair hearing procedures for 

participants. 

* * * * * 

(g) Continuation of benefits. 

Participants who appeal the termination 

of benefits within the period of time 

provided under paragraph (e) of this 

section must continue to receive 


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Program benefits until the hearing 

official reaches a decision or the 

certification period expires, whichever 

occurs first. This does not apply to 

applicants denied benefits at initial 

certification, participants whose 

certification period has expired or 

participants who become categorically 

ineligible for benefits. Applicants who 

are denied benefits at initial 

certification, or participants who 

become categorically ineligible during a 

certification period (or whose 

certification period expires), may appeal 

the denial or termination, but must not 

receive benefits while awaiting the 

hearing. 

* * * * * 

§ 246.11 [Amended] 

■ 7. In § 246.11(c)(5), remove the words 

‘‘paragraphs (c)(8), (d), and (e)’’, and add 

in their place the words ‘‘(c)(7), (d), and 

(e)’’. 

§ 246.12 [Amended] 

■ 8. In § 246.12: 

■ a. Amend paragraph (f)(2)(iv) by 

removing the words ‘‘90 days’’ wherever 

they appear and by adding in their place 

the words ‘‘60 days’’; 

■ b. Amend paragraph (h)(3)(xx) by 

removing the reference to ‘‘$10,000’’

and by adding in its place a reference to 

‘‘$25,000’’; and 

■ c. Amend paragraph (q) by removing 

the words ‘‘150 days’’ and by adding in 

their place the words ‘‘120 days’’. 

■ 9. In § 246.14: 

■ a. Add a new sentence at the 

beginning of paragraph (a)(2); 

■ b. Amend the first sentence of 

paragraph (c)(7) by removing the word 

‘‘rural’’; and, 

■ c. Revise paragraph (d). 

The addition and revision read as 

follows: 

§ 246.14 Program costs. 

(a) * * * 

(2) Program funds may not be used to 

pay for retroactive benefits. * * * 

* * * * * 

(d) Costs allowable with approval. 

The costs of capital expenditures 

exceeding the dollar threshold 

established in Agency policy and 

guidance are allowable only with the 

approval of FNS prior to the capital 

investment. These expenditures include 

the costs of facilities, equipment 

(including medical equipment), 

automated data processing (ADP) 

projects, other capital assets, and any 

repairs that materially increase the 

value or useful life of such assets. 

* * * * * 

■ 10. In § 246.15, revise the first 

sentence of paragraph (b) to read as 

follows: 

§ 246.15 Program income other than 

grants. 

* * * * * 

(b) * * * The State agency may use 

current program income (applied in 

accordance with the addition method 

described in § 3016.25(g)(2) of this title) 

for costs incurred in the current fiscal 

year and, with the approval of FNS, for 

costs incurred in previous years or 

subsequent fiscal years. * * * 

§ 246.17 [Amended] 

■ 11. In § 246.17, remove the words 

‘‘150 days’’ in paragraph (b)(2), and add 

in their place the words ‘‘120 days’’. 

■ 12. In § 246.20: 

■ a. Revise paragraph (b)(1); and, 

■ b. Remove paragraph (b)(2), and 

redesignate paragraph (b)(3) as 

paragraph (b)(2). 

The revision reads as follows: 

§ 246.20 Audits. 

* * * * * 

(b) * * * 

(1) State agencies must obtain annual 

audits in accordance with part 3052 of 

this title. In addition, States must 

require local agencies under their 

jurisdiction to obtain audits in 

accordance with part 3052 of this title. 

* * * * * 

§ 246.23 [Amended] 

■ 13. In § 246.23, amend paragraph (d) 

by removing the reference to ‘‘$10,000,’’

and by adding in its place a reference to 

‘‘$25,000.’’

■ 14. In § 246.25, revise paragraphs 

(a)(4), (b) and (c) to read as follows: 

§ 246.25 Records and reports. 

(a) * * * 

(4) All records shall be available 

during normal business hours for 

representatives of the Department and 

the Comptroller General of the United 

States to inspect, audit, and copy. Any 

reports or other documents resulting 

from the examination of such records 

that are publicly released may not 

include confidential applicant or 

participant information. 

(b) Financial and participation 

reports. 

(1) Monthly reports. (i) State agencies 

must submit financial and program 

performance data on a monthly basis, as 

specified by FNS, to support program 

management and funding decisions. 

Such information must include, but may 

not be limited to: 

(A) Actual and projected 

participation; 

(B) Actual and projected food funds 

expenditures; 

(C) A listing by source year of food 

and NSA funds available for 

expenditure; and, 

(D) NSA expenditures and 

unliquidated obligations. 

(ii) State agencies must require local 

agencies to report such financial and 

participation information as is necessary 

for the efficient management of food and 

NSA funds expenditures. 

(2) Annual reports. (i) Every year, 

State agencies must report to FNS the 

average number of migrant farmworker 

household members participating in the 

Program during a 12-month period of 

time specified by FNS. 

(ii) State agencies must submit 

itemized NSA expenditure reports 

annually as an addendum to their WIC 

Program closeout reports, as required by 

§ 246.17(b)(2). 

(3) Biennial reports. (i) Participant 

characteristics report. State and local 

agencies must provide such information 

as may be required by FNS to provide 

a biennial participant characteristics 

report. This includes, at a minimum, 

information on income and nutritional 

risk characteristics of participants, 

information on breastfeeding incidence 

and duration, and participation in the 

Program by category (i.e., pregnant, 

breastfeeding and postpartum women, 

infants and children) within each 

priority level (as established in 

§ 246.7(e)(4)) and by migrant 

farmworker households. 

(ii) Civil rights report. Racial and 

ethnic participation data contained in 

the biennial participant characteristics 

report will also be used to fulfill civil 

rights reporting requirements. 

(c) Other reports. State agencies must 

submit reports to reflect additions and 

deletions of local agencies 

administering the WIC Program and 

local agency address changes as these 

events occur. 

* * * * * 

■ 15. In § 246.26, revise paragraphs (d) 

and (g) and add new paragraphs (h) and 

(i) to read as follows: 

§ 246.26 Other provisions. 

* * * * * 

(d) Confidentiality of applicant and 

participant information. 

(1) WIC purposes. 

(i) Confidential applicant and 

participant information is any 

information about an applicant or 

participant, whether it is obtained from 

the applicant or participant, another 

source, or generated as a result of WIC 

application, certification, or 

participation, that individually 


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identifies an applicant or participant 

and/or family member(s). Applicant or 

participant information is confidential, 

regardless of the original source and 

exclusive of previously applicable 

confidentiality provided in accordance 

with other Federal, State or local law. 

(ii) Except as otherwise permitted by 

this section, the State agency must 

restrict the use and disclosure of 

confidential applicant and participant 

information to persons directly 

connected with the administration or 

enforcement of the WIC Program whom 

the State agency determine have a need 

to know the information for WIC 

Program purposes. These persons may 

include, but are not limited to: 

personnel from its local agencies and 

other WIC State or local agencies; 

persons under contract with the State 

agency to perform research regarding 

the WIC Program, and persons 

investigating or prosecuting WIC 

Program violations under Federal, State 

or local law. 

(2) Non-WIC purposes. (i) Use by WIC 

State and local agencies. Any WIC State 

or local agency may use confidential 

applicant and participant information in 

the administration of its other programs 

that serve persons eligible for the WIC 

Program in accordance with paragraph 

(h) of this section. 

(ii) Disclosure to public organizations. 

The State agency and its local agencies 

may disclose confidential applicant and 

participant information to public 

organizations for use in the 

administration of their programs that 

serve persons eligible for the WIC 

Program in accordance with paragraph 

(h) of this section. 

(3) Child abuse and neglect reporting. 

Staff of the State agency and its local 

agencies who are required by State law 

to report known or suspected child 

abuse or neglect may disclose 

confidential applicant and participant 

information without the consent of the 

participant or applicant to the extent 

necessary to comply with such law. 

(4) Release forms. Except in the case 

of subpoenas or search warrants (see 

paragraph (i) of this section), the State 

agency and its local agencies may 

disclose confidential applicant and 

participant information to individuals 

or entities not listed in this section only 

if the affected applicant or participant 

signs a release form authorizing the 

disclosure and specifying the parties to 

which the information may be 

disclosed. The State or local agency 

must permit applicants and participants 

to refuse to sign the release form and 

must notify the applicants and 

participants that signing the form is not 

a condition of eligibility and refusing to 

sign the form will not affect the 

applicant’s or participant’s application 

or participation in the WIC Program. 

Release forms authorizing disclosure to 

private physicians or other health care 

providers may be included as part of the 

WIC application or certification process. 

All other requests for applicants or 

participants to sign voluntary release 

forms must occur after the application 

and certification process is completed. 

(5) Access to information by 

applicants and participants. The State 

or local agency must provide applicants 

and participants access to all 

information they have provided to the 

WIC Program. In the case of an 

applicant or participant who is an infant 

or child, the access may be provided to 

the parent or guardian of the infant or 

child, assuming that any issues 

regarding custody or guardianship have 

been settled. However, the State or local 

agency need not provide the applicant 

or participant (or the parent or guardian 

of an infant or child) access to any other 

information in the file or record such as 

documentation of income provided by 

third parties and staff assessments of the 

participant’s condition or behavior, 

unless required by Federal, State, or 

local law or policy or unless the 

information supports a State or local 

agency decision being appealed 

pursuant to § 246.9. 

* * * * * 

(g) USDA and the Comptroller 

General. The State agency must provide 

the Department and the Comptroller 

General of the United States access to all 

WIC Program records, including 

confidential vendor, applicant and 

participant information, pursuant to 

§ 246.25(a)(4). 

(h) Requirements for use and 

disclosure of confidential applicant and 

participant information for non-WIC 

purposes. The State or local agency 

must take the following steps before 

using or disclosing confidential 

applicant or participant information for 

non-WIC purposes pursuant to 

paragraph (d)(2) of this section. 

(1) Designation by chief State health 

officer. The chief State health officer (or, 

in the case of an Indian State agency, 

the governing authority) must designate 

in writing the permitted non-WIC uses 

of the information and the names of the 

organizations to which such information 

may be disclosed. 

(2) Notice to applicants and 

participants. The applicant or 

participant must be notified either at the 

time of application (in accordance with 

§ 246.7(i)(11)) or through a subsequent 

notice that the chief State health officer 

(or, in the case of an Indian State 

agency, the governing authority) may 

authorize the use and disclosure of 

information about their participation in 

the WIC Program for non-WIC purposes. 

This statement must also indicate that 

such information will be used by State 

and local WIC agencies and public 

organizations only in the administration 

of their programs that serve persons 

eligible for the WIC Program. 

(3) Written agreement and State plan. 

The State or local agency disclosing the 

information must enter into a written 

agreement with the other public 

organization or, in the case of a nonWIC use by a State or local WIC agency, 

the unit of the State or local agency that 

will be using the information. The State 

agency must also include in its State 

plan, as specified in § 246.4(a)(24), a list 

of all organizations (including units of 

the State agency or local agencies) with 

which the State agency or its local 

agencies has executed or intends to 

execute a written agreement. The 

written agreement must: 

(i) Specify that the receiving 

organization may use the confidential 

applicant and participant information 

only for: 

(A) Establishing the eligibility of WIC 

applicants or participants for the 

programs that the organization 

administers; 

(B) Conducting outreach to WIC 

applicants and participants for such 

programs; 

(C) Enhancing the health, education, 

or well-being of WIC applicants or 

participants who are currently enrolled 

in such programs, including the 

reporting of known or suspected child 

abuse or neglect that is not otherwise 

required by State law; 

(D) Streamlining administrative 

procedures in order to minimize 

burdens on staff, applicants, or 

participants in either the receiving 

program or the WIC Program; and/or 

(E) Assessing and evaluating the 

responsiveness of a State’s health 

system to participants’ health care needs 

and health care outcomes; and 

(ii) Contain the receiving 

organization’s assurance that it will not 

use the information for any other 

purpose or disclose the information to a 

third party. 

(i) Subpoenas and search warrants. 

The State agency may disclose 

confidential applicant, participant, or 

vendor information pursuant to a valid 

subpoena or search warrant in 

accordance with the following 

procedures: 

(1) Subpoena procedures. In 

determining how to respond to a 

subpoena duces tecum (i.e., a subpoena 

for documents) or other subpoena for 


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confidential information, the State or 

local agency must use the following 

procedures: 

(i) Upon receiving the subpoena, 

immediately notify its State agency; 

(ii) Consult with legal counsel for the 

State or local agency and determine 

whether the information requested is in 

fact confidential and prohibited by this 

section from being used or disclosed as 

stated in the subpoena; 

(iii) If the State or local agency 

determines that the information is 

confidential and prohibited from being 

used or disclosed as stated in the 

subpoena, attempt to quash the 

subpoena unless the State or local 

agency determines that disclosing the 

confidential information is in the best 

interest of the Program. The 

determination to disclose confidential 

information without attempting to 

quash the subpoena should be made 

only infrequently; and, 

(iv) If the State or local agency seeks 

to quash the subpoena or decides that 

disclosing the confidential information 

is in the best interest of the Program, 

inform the court or the receiving party 

that this information is confidential and 

seek to limit the disclosure by: 

(A) Providing only the specific 

information requested in the subpoena 

and no other information; and, 

(B) Limiting to the greatest extent 

possible the public access to the 

confidential information disclosed. 

(2) Search warrant procedures. In 

responding to a search warrant for 

confidential information, the State or 

local agency must use the following 

procedures: 

(i) Upon receiving the search warrant, 

immediately notify its State agency; 

(ii) Immediately notify legal counsel 

for the State or local agency; 

(iii) Comply with the search warrant; 

and, 

(iv) Inform the individual(s) serving 

the search warrant that the information 

being sought is confidential and seek to 

limit the disclosure by: 

(A) Providing only the specific 

information requested in the search 

warrant and no other information; and 

(B) Limiting to the greatest extent 

possible the public access to the 

confidential information disclosed. 

■ 16. In § 246.27, revise paragraphs (c) 

and (g) to read as follows: 

§ 246.27 Program information. 

* * * * * 

(c) Alabama, Florida, Georgia, 

Kentucky, Mississippi, North Carolina, 

South Carolina, Tennessee: U.S. 

Department of Agriculture, FNS, 

Southeast Region, 61 Forsyth Street, 

SW., room 8T36, Atlanta, Georgia 

30303. 

* * * * * 

(g) Alaska, American Samoa, Arizona, 

California, the Commonwealth of the 

Northern Mariana Islands, Guam, 

Hawaii, Idaho, Nevada, Oregon, 

Washington: U.S. Department of 

Agriculture, FNS, Western Region, 550 

Kearny Street, room 400, San Francisco, 

California 94108. 

Dated: August 30, 2006. 

Kate Coler, 

Deputy Under Secretary, Food, Nutrition, and 

Consumer Services. 

Note: This appendix will not be published 

in the Code of Federal Regulations. 

Appendix: 

Regulatory Impact Analysis 

Title: 7 CFR 246: Special Supplemental 

Nutrition Program for Women, Infants and 

Children (WIC): Miscellaneous Provisions 

a. Nature: Final Rule. 

b. Need: This final rule amends a number 

of existing provisions in the WIC program 

regulations to (1) address issues raised by 

WIC State agencies and other members of the 

WIC community; (2) address 

recommendations made by the United States 

Government Accountability Office (GAO); (3) 

incorporate certain longstanding program 

policies and State agency practices into the 

regulations; and (4) streamline certain 

requirements in the regulations. 

In particular, this rulemaking streamlines 

the Federal requirements for financial and 

participation reporting by State agencies, and 

clarifies the requirements pertaining to the 

confidentiality of WIC information in order 

to strengthen coordination with public 

organizations and private physicians. It also 

incorporates longstanding program policies 

and State agency practices into the 

regulations regarding State agency responses 

to subpoenas and other court-ordered 

requests for confidential information. Other 

provisions in this final rule are designed to 

improve eligibility determinations, 

incorporating program policies and State 

agency practices that have been in effect for 

some time. 

These changes are intended to reinforce 

program policies and State agency practices 

that strengthen services to WIC participants, 

improve program administration, and 

increase State agency flexibility in managing 

the program. Many of these provisions are 

options the State agency may choose to 

implement in operating the program. 

c. Affected Parties: The parties affected by 

this regulation are the USDA–FNS, State and 

local WIC agencies, WIC participants, and 

potentially eligible applicants. 

Cost-Benefit Assessment: Most of the 

provisions in this rule are generally 

economically insignificant to the costs or 

overall operations of the WIC program. Some 

of the provisions are already current practice 

in many states, while others are presented as 

optional changes at the State level. The 

potential effects of these provisions are 

highlighted in the accompanying table. As a 

whole, this rule serves to streamline program 

administration and clarify program 

requirements while minimizing economic 

and administrative burdens. 

Two provisions in this final rule may have 

a notable financial impact; both are found 

within § 246.7 Basic Certification 

Procedures: 

(1) Prohibits the use of ‘‘possibility of 

regression’’ for consecutive certifications and 

clarifies priority level requirements based on 

regression: 

Currently, State agencies are not required 

to limit the number of certifications per 

participant based on regression, although 

some States do have limits in place. 

According to data from the 2002 WIC 

Program and Participant Characteristics (PC) 

report, a maximum of 0.9% of all WIC 

participants are certified based on regression 

as their sole nutritional risk. Assuming that 

this is a relatively constant proportion of 

participants over time, approximately 74,000 

WIC participants were certified based on 

regression in 2004. According to PC data, 

children comprise a majority of the 

participants who are certified with regression 

as the sole nutritional risk. We do not have 

any data to indicate how many participants 

are recertified on this basis. 

If each of those 74,000 participants was 

certified with regression as the only 

nutritional risk factor for more than one 

consecutive certification period, the food and 

administrative costs to the WIC program 

could reach as high as $3.8 million for one 

month. Assuming that all of these 

participants would be recertified for a sixmonth period, the proposed rule could save 

over $20 million and reduce participation by 

over 70,000 in the six-month period. 

However, given that ‘‘possibility of 

regression’’ is rarely used as a sole basis of 

nutrition risk, and that if they do regress, 

participants would become certified again, 

significant savings are unlikely. 

(2) Provides states with the option to 

extend certification periods for all participant 

categories until the end of the last month; 

also provides option to extend breastfeeding 

woman’s certification period up to the 

infant’s first birthday or until the woman 

ceases to breastfeed: 

Currently, states may extend a child’s 

certification period through the last day of 

the month in which the six-month 

certification ends. Certification periods for all 

other participant categories must end on 

various dates throughout the month, 

depending on the initial certification date. 

This provision will give states the option to 

extend certification periods for all participant 

categories through the last day of the month 

in which the certifications end. 

This extension is offered in order to 

streamline administrative procedures and 

make certification periods for the various 

participant categories more consistent. States 

may incur an initial expense if their MIS 

systems are not compatible with this change; 

reliable data is not currently available on 

how many states may choose this option and/ 

or how many states may need MIS upgrades 

as a result. 

As certification periods are extended, food 

costs naturally increase. According to 2002 


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56734 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 

1Based on PC data and FNS administrative data 

from 1996–2002, approximately 31% of WIC infants 

do not recertify as children. 

WIC PC data, this extension would add an 

average of 15 days worth of food benefits for 

each woman or infant participant. For this 

analysis, the assumption was made that this 

increased cost would be realized only when 

participants exit the program. The 

nonchildren categories most likely not to 

recertify (thus exiting the program) include: 

breastfeeding women; postpartum, nonbreastfeeding women; and about 31% of 

infants 1. Therefore, the extra food package 

costs for breastfeeding women, postpartum/ 

non-breastfeeding women, and 31% of 

infants (i.e.) the infants who do not recertify 

as children) were calculated based on PC 

2002 participation data and current food 

package cost estimates. The annual cost for 

the additional supplemental food benefits 

(approximately 15 days per participant) to 

the three categories of participants 

mentioned above totals over $25 million. The 

actual cost will likely be much lower, as this 

total assumes that all State agencies will 

adopt this optional provision. 

Currently, states may certify breastfeeding 

women for intervals of six months, until the 

breastfed infant’s first birthday. This 

provision would give State agencies the 

option to extend the certification period for 

one full year. Since this provision is entirely 

optional, the number of states who would 

change their certification procedures is 

unknown. It is assumed that most women 

who continue to breastfeed longer than six 

months are already being recertified for the 

second six-month period; therefore this 

extended certification period is not likely to 

have a major impact on either program 

participation among breastfeeding women or 

on program costs. 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

Sec. 246.2 Definitions.Sec. 246.2 Definitions.Sec. 246.2 Definitions.

No current provision 

on electronic signatures.

Adds new definitions of ‘‘sign or 

signature’’ and 

‘‘electronic signature’’; State 

agencies may 

use electronic 

signatures if reliability and integrity assured.

Adds new definitions of ‘‘sign or 

signature’’ and 

‘‘electronic signature’’ as proposed, but also 

adds ‘‘employee 

fraud and 

abuse’’ and ‘‘7 

CFR part 3017’’

and ‘‘State.’’.

No effect .............. If electronic signatures are adopted, may assist 

with streamlining program 

operations and 

ease future 

transition to 

EBT. Several 

State agencies 

are already utilizing electronic 

signatures.

If electronic signatures are adopted, may reduce 

the burden of 

paper file storage in Local 

agency offices.

No effect. 

Sec. 246.4(a) State 

Plan Requirements.

Sec. 246.4(a) 

State Plan Requirements.

Sec. 246.4(a) 

State Plan Requirements.

No current provisions requiring 

State Plan 

amendments reflecting requirements of the new 

rule.

Technical requirements associated with 

changes described below.

Same as proposed and additional provisions 

on proof of 

pregnancy and 

universal identifiers; also 

added is language revising 

the proposed 

State Plan provisions on conflict of interest 

and separation 

of duties.

No effect .............. This provision will 

lead to a minimal increase in 

time necessary 

to revise the 

State plan. The 

increase will 

likely be a onetime event as 

state officials 

add the new 

provisions to 

the current 

State plan.

No effect .............. No effect. 

Conflict of Interest .. Sec. 246.4(a)(25) 

Conflict of Interest/Separation 

of Duties.

Sec. 246.4(a)(25) 

Conflict of Interest/Separation 

of Duties.

No current provision, but 8/99 

GAO report recommends policy 

on local agency 

staff conflict of interest.

Requires State 

agencies to implement policies 

and procedures 

to prevent conflicts of interest 

within local 

agency staffs, 

and to implement separation 

of duties.

Same as proposed and separation of duties 

clarified to permit a local 

agency employee to take 

part in the certification process and issue 

benefits if at 

least one other 

employee is involved in the 

process.

No effect .............. This provision 

may lead to an 

initial need for 

State officials to 

ensure that new 

rules are understood and are 

being implemented at the 

local level. 

Many State 

agencies already have a 

similar provision 

in place.

Compliance with 

this provision 

may require 

minor administrative/staffing 

changes at the 

local level. 

Many lcal agencies already 

have a plan for 

separation of 

duties and will 

not be affected.

No effect. 


rwilkins on PROD1PC63 with RULES_3
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56735 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

Participant/Employee Fraud/ 

Abuse.

Sec. 246.4(a)(26) 

Participant or 

Employee 

Fraud and 

Abuse.

Sec. 246.4(a)(26) 

Participant or 

Employee 

Fraud and 

Abuse.

No current provision, but 8/99 

GAO report recommends data 

collection on participant and staff 

fraud/abuse.

Requires the 

State agency 

assurance of a 

system(s) in 

place at the 

local level to 

collect information on fraud/ 

abuse by employees and 

participants.

Same as proposed; also, 

definition of 

‘‘employee 

fraud and 

abuse’’ added, 

as noted above.

No effect .............. This provision 

may lead to a 

minor increase 

in administrative 

effort on the 

State level to 

incorporate the 

tracking of 

fraud/abuse into 

current data 

collection mechanisms. This increased effort 

may be 

counterbalanced by more efficient handling 

of fraud/abuse 

cases and ultimately streamline program 

administration.

This provision 

may lead to a 

negligible increase in administrative effort at the local 

agency, due to 

formal reporting 

requirements to 

the State. In 

most cases, 

local agencies 

are already reporting cases of 

fraud/abuse to 

the State agency.

No effect. 

Sec. 246.5 Selection of New Local 

Agency.

Sec. 246.5 Selection of New 

Local Agency.

Sec. 246.5 Selection of New 

Local Agency.

Requires States to 

fund new local 

agencies only in 

the order of need.

Deletes requirement for states 

to fund new 

local agencies 

only in the 

order of need.

Same as proposed.No effect .............. The provision will 

enhance State 

agency flexibility in funding 

new agencies.

This provision 

may allow new 

local agencies 

to be authorized 

more readily.

This provision 

may expedite 

the availability 

of services to 

populations in 

areas where 

need exists, but 

not at the highest level. 

Sec. 246.7 Basic 

Certification Procedures.

Sec. 246.7 Basic 

Certification 

Procedures.

Sec. 246.7 Basic 

Certification 

Procedures.

State agencies may 

use State or local 

income guidelines 

instead of the 

Federal guidelines.

State agencies 

must use the 

WIC regulatory 

income and 

family definitions and exclusions.

Same as proposed.This provision will 

assist in 

streamlining 

WIC funding 

paperwork at 

the Federal 

level, particularly in USDA–

FNS Regional 

Offices.

This provision 

may initially increase administrative burden in 

State agencies 

that are not currently following 

these guidelines. Any initial 

burden is expected to be 

short-lived. 

Many State 

agencies are already following 

these guidelines 

and will experience no effect.

This provision 

may necessitate 

that a few local 

agencies adopt/ 

learn new 

standards for 

income certification. Most 

local agencies 

are in states 

where these 

guidelines are 

already in effect; thus no effect is expected 

in those agencies.

This provision will 

promote equal 

consideration of 

applicant eligibility nationwide. 

No current provision 

in regulations on 

short-term, nonsecured loans.

Short-term, nonsecured loans 

are added to 

the list of income exclusions.

Excludes loans to 

which the applicant does not 

have constant 

or unlimited access.

No effect .............. No effect .............. No effect .............. This provision 

may allow a 

minor increase 

in participant 

eligibility for 

program benefits. 


rwilkins on PROD1PC63 with RULES_3
56736 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

No current provision 

on proof of pregnancy.

Provides State 

agencies the 

option to require proof of 

pregnancy.

Same as proposed except 

that proof may 

be required 

when the pregnancy is not 

visibly noticeable and no 

documentation 

of proof is available at certification.

No effect .............. This provision is 

optional for 

State agencies; 

thus some 

State agencies 

will experience 

no effect. For 

those State 

agencies 

choosing to 

adopt the provision, a minimal 

increase in effort may be 

necessary in 

providing guidance and monitoring the Local 

agencies.

Many Local agencies will experience no effect, 

since the provision is optional. 

If the provision 

is adopted at 

the state level, 

Local agencies 

may experience 

a minimal increase in time 

spent certifying 

pregnant applicants.

This provision will 

require pregnant applicants 

to the WIC program to provide 

proof of pregnancy, but only 

in States choosing to adopt this 

optional provision. 

State agency not 

required to limit 

the number of 

certifications 

based on regression.

Prohibits the use 

of ‘‘possibility of 

regression’’ for 

consecutive 

certifications.

Same as proposed and priority levels clarified for certifications based 

on regression.

This provision 

could result in 

an estimated 

maximum decline of 0.9% of 

participation, 

equaling about 

74,000 people. 

Given the 2004 

average food 

and administrative cuts, this 

decline in participation could 

result in savings 

of approximately $20 million per year. 

Savings of this 

magnitude are 

highly unlikely, 

given the nearly 

impossible circumstances 

that must be 

met.

This provision will 

allow State WIC 

agency resources (funding, staff time) 

to be directed 

toward higherrisk participants. 

Many State 

agencies will 

experience no 

effect, since 

they already 

have this provision in place. 

Only about 

0.9% (max.) of 

WIC participants are certified on regression, so an 

overall impact is 

relatively small.

This provision will 

allow Local WIC 

agency resources (funding, staff time) 

to be directed 

toward higherrisk participants. 

Many Local 

agencies will 

experience no 

effect since 

they already 

have this provision in place. 

Only about 

0.9% (max.) of 

WIC participants are certified on regression alone, so 

an overall impact is relatively 

small.

This provision will 

limit benefits for 

WIC participants who do 

not maintain 

any nutrition 

risk factors beyond ‘‘possibility 

of regression.’’

Certification periods 

for some categories of participants—

breastfeeding 

women and children—end at the 

end of a month; 

the certification 

periods for all 

other categories 

of participants 

may end at any 

time during a 

month, which 

may result in prorated benefits.

Certification periods for all participant categories are extended to the 

end of the last 

month.

Same as proposed and certification for 

breastfeeding 

women may be 

extended up to 

the infant’s first 

birthday, or until 

the woman 

ceases to 

breastfeed, 

whichever occurs first.

These provisions 

will potentially 

increase annual 

program costs 

by over $25 million if every 

state chooses 

to extend benefits until the last 

day of the last 

month. These 

provisions are 

optional at the 

state level; thus 

the total financial impact may 

be limited.

These provisions 

will assist in 

streamlining 

program administration at the 

state level by 

providing State 

agencies the 

option to align 

certification periods for ease 

of tracking. 

States choosing 

to extend certification periods 

will experience 

increased food 

and administrative costs according to their 

caseloads.

If State agencies 

adopt these options, Local 

agencies will 

experience 

more streamlined certification procedures, due to 

the consistency 

of certification 

periods ending 

on the last day 

of the month. 

Local agencies 

will also not 

have to complete the paperwork necessary 

to recertify 

breastfeeding 

women at sixmonth intervals.

This provision relieves 

breastfeeding 

women of one 

recertification 

visit to the local 

WIC clinic. In 

addition, all participants may 

receive extra 

benefits, according to the 

proximity of 

their certification dates to 

the end of the 

month. 


rwilkins on PROD1PC63 with RULES_3
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56737 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

Requires disqualification if reassessment of program eligibility is 

conducted midcertification.

Requires reassessment of income eligibility 

mid-certification 

based on new 

information, and 

disqualification 

if over-income.

Same as proposed, except 

that the reassessment is not 

required if sufficient time does 

not exist to effect the change; 

‘‘sufficient time’’

means 90 days 

prior to the expiration of the 

certification period.

This provision has 

the potential to 

reduce total 

program costs 

nationally by 

not providing 

benefits to ineligible participants. However, 

the dollar 

amount saved 

is likely to be 

minimal, given 

the limited number of people 

affected.

This provision 

may assist 

State agencies 

with directing 

resources toward participants with a 

higher need, 

rather than providing benefits 

to participants 

who are ineligible. This provision may also 

lead to a minimal increase in 

administrative 

burden at the 

state level.

This provision 

may assist 

Local agencies 

with directing 

resources toward participants with a 

higher need, 

rather than providing benefits 

to participants 

who are ineligible.

This provision will 

reduce benefits 

for those participants who become ineligible 

based on an increased income; however, 

information regarding 

changes in income level 

would have to 

be brought to 

the attention of 

WIC staff. 

State agency may 

not deviate from 

the mandated 

Participant Rights 

and Responsibilities language.

State agencies 

are permitted to 

use simpler language.

Same as proposed.No effect .............. This provision is 

optional; many 

State agencies 

will experience 

no effect. For 

those states 

choosing to use 

more simple 

language, a 

small amount of 

time will be 

necessary initially to develop, 

test, and disseminate the 

language.

This provision will 

enable Local 

agencies to 

have flexibility 

in communicating Rights 

and Responsibilities to participants. Since 

the provision is 

optional, many 

Local agencies 

will experience 

no effect.

This provision increases the 

likelihood that 

more participants will have 

a full understanding of their 

Rights and Responsibilities. 

246.9(g) Continuation of Benefits.Sec. 246.9(g) 

Continuation of 

Benefits.

Sec. 246.9(g) 

Continuation of 

Benefits.

Does not prohibit 

the continuation 

of benefits when 

a participant becomes ineligible 

while awaiting a 

hearing decision 

on other matters.

Prohibits participants who become categorically ineligible 

from continuing 

to receive program benefits 

while awaiting a 

hearing decision.

Same as proposed.This provision 

may result in 

very minimal 

food cost savings at the national level. Reliable estimates 

of these savings are not 

available because of limited 

information on 

the number of 

participants affected.

This provision allows State 

agencies to direct resources 

to eligible participants, rather 

than participants who may 

not be actually 

be eligible to receive benefits.

This provision allows Local 

agencies to direct resources 

to eligible participants, rather 

than participants who may 

not be actually 

be eligible to receive benefits.

Participants who 

become ineligible while 

awaiting a hearing decision will 

no longer receive benefits. 

Sec. 

246.12(h)(3)(xx) 

& 246.23(d) 

Claims/Penalties.

Sec. 

246.12(h)(3)(xx) 

& 246.23(d) 

Claims/Penalties.

Sec. 

246.12(h)(3)(xx) 

& 246.23(d) 

Claims/Penalties.

Maximum fine for 

criminal fraud is 

$10,000.

No revision proposed.Maximum fine for 

criminal fraud 

raised to 

$25,000 per 

non-discretionary requirement of an 

amendment to 

the National 

School Lunch 

Act.

No effect .............. No effect .............. No effect .............. No effect. 


rwilkins on PROD1PC63 with RULES_3
56738 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

Sec. 246.14 Use of 

Program Funds.

Sec. 246.14 Use 

of Program 

Funds.

Sec. 246.14 Use 

of Program 

Funds.

No current provision 

on retroactive 

benefits.

Prohibits use of 

program funds 

to provide retroactive benefits 

to participants.

Same as proposed.No effect .............. No effect is expected since it 

is not current 

practice to provide retroactive 

WIC benefits.

No effect .............. No effect. 

Only allows use of 

program funds for 

transportation in 

rural area.

Allows use of program funds to 

provide transportation to and 

from WIC offices in nonrural as well as 

rural areas.

Same as proposed.No effect .............. State agencies 

will need to balance Local 

agency requests for approval with the 

need for funds 

in other areas 

of program administration.

This provision will 

give Local 

agencies the 

flexibility to provide transportation to both 

urban and rural 

WIC clients, 

subject to prior 

approval of the 

State agency 

based on documentation that 

such service 

would be essential for program access.

This provision 

may allow 

greater access 

to WIC benefits 

for eligible persons in urban 

areas. 

Sec. 246.14, 15, 17 

Funding Issues.

Sec. 246.14, 15, 

17 Funding 

Issues.

Sec. 246.14, 15, 

17 Funding 

Issues.

Sec. 246.14(d) requires prior approval for the 

costs of ADP systems and management studies.

Sec. 246.14(d) 

codifies the actual practice of 

deleting prior 

approval for 

costs of management studies. Continues 

the actual practice of requiring 

prior approval 

of capital expenditures exceeding the dollar threshold established in 

agency policy, 

including ADP.

Same as proposed.This provision 

may decrease 

administrative 

burden by reducing time/paperwork involved in granting approval for 

the stated costs.

This provision 

may decrease 

administrative 

burden by reducing time/paperwork involved in requesting approval for the 

stated costs.

No effect .............. No effect. 

Sec. 246.14(d) requires prior approval for capital 

expenditures over 

$2,500.

Dollar threshold 

for prior approval of capital 

expenditures is 

deleted from 

Sec. 246.14, 

designing FNS 

policy and guidance as the 

new reference 

for this, as per 

actual practice.

Same as proposed.No effect, as FNS 

policy and guidance is current 

practice.

No effect, as FNS 

policy and guidance is current 

practice.

No effect .............. No effect. 

Sec. 246.15(b) is 

currently silent on 

the addition method of applying 

program income, 

although 7 CFR 

3016 allows this if 

stated in program 

regulations.

Sec. 246.15(b) 

codifies actual 

practice of 

using the addition method of 

applying program income.

Same as proposed.No effect, as the 

addition method 

is current practice.

No effect, as the 

addition method 

is current practice.

No effect .............. No effect. 


rwilkins on PROD1PC63 with RULES_3
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56739 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

Sec 246.17 provides for a 150- 

day reporting 

cycle.

Sec. 246.17(b)(2) 

reduces food instrument closeout cycle from 

150 to 120 days.

Same as proposed.This provision will 

provide greater 

efficiency in financial administrative at the regional and national level.

This provision will 

provide greater 

efficiency in financial administration at the 

state level.

No effect .............. No effect. 

Sec. 246.20, 246.25 

Audits/Reporting.

Sec. 246.20, 

246.25 Audits/ 

Reporting.

Sec. 246.20, 

246.25 Audits/ 

Reporting.

Sec. 246.20(b)(1) 

refers to a dated 

citation.

Sec. 246.20(b)(1) 

refers to the 

current citation.

Same as proposed.No effect .............. No effect .............. No effect .............. No effect. 

Sec. 246.25(b)(1) 

requiems monthly 

reporting of certain information 

on participation, 

administrative 

funds, and local 

agencies.

Sec. 246.25(b)(1) 

no longer requires itemized 

NSA expenditures or the 

number of persons on wait 

lists to be reported on a 

monthly basis.

Same as proposed, except 

deletes proposed requirement for reporting on cash allowances exceeding three 

days.

This provision 

may streamline 

the process of 

information collection at the 

regional level.

This provision 

may reduce administrative burden by reducing 

the amount of 

information that 

must be formally submitted 

monthly.

This provision 

may reduce administrative burden by reducing 

the amount of 

information that 

must be formally submitted 

monthly.

No effect. 

Under Sec. 

246.25(b)(3) and 

(c), FNS required 

certain participation, Civil Rights, 

and local agency 

data on a quarterly basis.

Sec. 246.25(b)(2) 

codifies annual 

or biennial reporting of this 

data, but requires change 

of local agency 

information 

whenever such 

change occurs, 

as per actual 

practice.

Same as proposed.No effects; the 

annual of biennial data reporting is current 

practice.

No effect; the annual or biennial 

data reporting is 

current practice.

No effect; the annual or biennial 

data reporting is 

current practice.

No effect. 

Sec. 246.26 Confidentiality.Sec. 246.26(d)–(i) 

Confidentiality.

Sec. 246.26(d)–(i) 

Confidentiality.

Pertains only to information obtained from participants and applicants.Clarifies that all 

information 

about a participant or applicant is protected.

Same as proposed.No effect .............. No effect .............. No effect .............. No effect. 

Information may be 

shared with persons directly administering or enforcing WIC, 

health and welfare programs, 

and the Comptroller General.

Clarifies that another State or 

local agency 

has access to 

confidential applicant or participant information.

Same as proposed; preamble clarifies 

that persons 

administering or 

enforcing WIC 

includes WIC IT 

staff, contract 

Single Audit 

staff, and WIC 

contractor bank 

staff.

No effect .............. This provision 

may enhance 

collaboration 

between programs at the 

state level.

This provision 

may enhance 

collaboration 

between programs at the 

local level.

This provision 

may allow participants to receive enhanced 

services 

through program collaboration. 


rwilkins on PROD1PC63 with RULES_3
56740 Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

State option for information-sharing 

agreements with 

‘‘health or welfare’’ programs; 

shared information may only be 

used for eligibility 

and outreach.

Allows information 

sharing with 

public organizations other than 

health and welfare, and for 

purposes other 

than eligibility in 

other programs 

and outreach; 

the additional 

allowed purposes include 

(1) enhancing 

the health, education and wellbeing of participants and applicants, (2) 

streamlining administrative procedures, and 

(3) evaluating 

the State’s 

health system.

Same as proposed; preamble clarifies 

that MOU may 

permit information sharing 

with Child Protective Services 

upon request if 

WIC suspects 

abuse, and 

public organization includes 

non-WIC public 

agencies, but 

not law enforcement or researchers.

No effect .............. This provision 

may enhance 

collaboration 

between programs as the 

state level.

This provision 

may enhance 

collaboration 

between programs at the 

local level.

This provision 

may allow participants to receive enhanced 

services 

through program collaboration, while remaining assured that confidential information is not 

being misused. 

Allows the sharing 

of WIC information through 

agreements with 

other programs 

administered by 

the State/local 

agency.

Allows a WIC 

State/local 

agency to share 

information 

through written 

agreements 

with its other 

programs.

Same as proposed.No effect .............. No effect .............. No effect .............. No effect. 

No current provision 

in regulations. 

FNS Instruction 

800–1 requires 

that information to 

private parties 

such as physicians must be 

through written 

consent obtained 

after certification.

Allows the use of 

signed release 

forms from applicants and 

participants as 

part of the WIC 

application and 

certification 

process in order 

to share information with private doctors.

Same as proposed.No effect .............. This provision 

may streamline 

and provide 

consistency to 

the consent 

process. This 

provision is optional at the 

state level.

This provision 

may streamline 

and provide 

consistency to 

the consent 

process.

No effect. 

No current provision 

in regulations. 

FNS Instruction 

800–1 permits reporting on child 

abuse.

Clarifies that State 

and local agency staffs are 

permitted to 

share information to comply 

with required 

reporting of 

known or suspected child.

Same as proposed; additional clarification added regarding information-sharing 

with Child Protective Authorities as noted 

above with respect to public 

organizations.

No effect .............. No effect; a current FNS instruction allows 

reporting of 

child abuse.

No effect; a current FNS instruction allows 

reporting of 

child abuse.

No effect; a current FNS instruction allows 

reporting of 

child abuse. 

Required notification to participant/ 

applicant at certification on how 

confidential information will be 

shared.

Requires notification to participant or applicant at certification or later 

on how confidential information will be 

shared for nonWIC purposes.

Same as proposed.No effect .............. No effect .............. No effect .............. No effect. 


rwilkins on PROD1PC63 with RULES_3
Federal Register / Vol. 71, No. 187 / Wednesday, September 27, 2006 / Rules and Regulations 56741 

Current rule Proposed rule Final rule 

Final rule effects 

on: State agencies Local agencies Participants 

USDA–FNS 

No current provision 

in the regulations. 

Policy Memorandum 94–3 addresses subpoenas and 

search warrants.

Requires State/ 

local agency to 

consult with 

legal counsel 

on subpoenas 

and comply with 

search warrants.

Same as proposed and clarifies in the final 

rule that no attempt is needed 

to quash a subpoena if it is 

withdrawn 

through the 

courts.

No effect .............. No effect .............. No effect .............. No effect. 

[FR Doc. 06–7875 Filed 9–26–06; 8:45 am] 

BILLING CODE 3410–30–P 


rwilkins on PROD1PC63 with RULES_3