Child Nutrition Act

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CHILD NUTRITION ACT OF 1966
[As Amended Through P.L. 111–80, Effective October 21, 2009]
TABLE OF CONTENTS

U.S.C.
42 U.S.C.
1771 note

Act Sec.

Page

1. Short title ........................................................

2–2

1771

2. Declaration of purpose ...................................

2–2

1772

3. Special milk program authorization .............

2–2

1773

4. School breakfast program authorization ......

2–3

1774

5. Disbursement to schools by the Secretary ...

2–6

1775

6. Payments to States .........................................

2–7

1776

7. State administrative expenses ......................

2–7

1777

8. Utilization of foods .........................................

2–12

1778

9. Nonprofit programs ........................................

2–12

1779

10. Regulations ...................................................

2–12

1780

11. Prohibitions ...................................................

2–13

1781

12. Preschool programs ......................................

2–13

1782

13. Centralization of administration .................

2–13

1783

14. Appropriations for administrative expense

2–13

1784

15. Miscellaneous provisions and definitions ...

2–14

1785

16. Accounts and records ...................................

2–14

1786

17. Special supplemental nutrition program
for women, infants, and children.

2–15

1788

19. Team nutrition network ...............................

2–48

1789

20. Department of Defense overseas dependents’ schools.

2–54

1790

21. Breastfeeding promotion program ..............

2–54

1791

22. Bill Emerson Good Samaritan Food Donation Act.

2–55

Table of contents, bracketed material, and footnotes did not appear
in Acts.

2–1
October 21, 2009

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Sec. 1

CHILD NUTRITION ACT OF 1966

2–2

AN ACT
To strengthen and expand food service programs for children.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, ø42 U.S.C. 1771
note¿ That this Act may be cited as the ‘‘Child Nutrition Act of
1966’’. 1–1
DECLARATION OF PURPOSE

SEC. 2. ø42 U.S.C. 1771¿ In recognition of the demonstrated relationship between food and good nutrition and the capacity of children to develop and learn, based on the years of cumulative successful experience under the national school lunch program with its
significant contributions in the field of applied nutrition research,
it is hereby declared to be the policy of Congress that these efforts
shall be extended, expanded, and strengthened under the authority
of the Secretary of Agriculture as a measure to safeguard the
health and well-being of the Nation’s children, and to encourage the
domestic consumption of agricultural and other foods, by assisting
States, through grants-in-aid and other means, to meet more effectively the nutritional needs of our children.
SPECIAL MILK PROGRAM AUTHORIZATION

SEC. 3. ø42 U.S.C. 1772¿ (a)(1) There is hereby authorized to
be appropriated for the fiscal year ending June 30, 1970, and for
each succeeding fiscal year such sums as may be necessary to enable the Secretary of Agriculture, under such rules and regulations
as the Secretary may deem in the public interest, to encourage consumption of fluid milk by children in the United States in (A) nonprofit schools of high school grade and under, except as provided in
paragraph (2), which do not participate in a meal service program
authorized under this Act or the Richard B. Russell National School
Lunch Act [(42 U.S.C. 1751 et seq.)], and (B) nonprofit nursery
schools, child-care centers, settlement houses, summer camps, and
similar nonprofit institutions devoted to the care and training of
children, which do not participate in a meal service program authorized under this Act or the Richard B. Russell National School
Lunch Act.
(2) The limitation imposed under paragraph (1)(A) for participation of nonprofit schools in the special milk program shall not
apply to split-session kindergarten programs conducted in schools
in which children do not have access to the meal service program
operating in schools the children attend as authorized under this
Act or the Richard B. Russell National School Lunch Act.
(3) For the purposes of this section ‘‘United States’’ means the
fifty States, Guam, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and the District of Columbia.
(4) The Secretary shall administer the special milk program
provided for by this section to the maximum extent practicable in
the same manner as the Secretary administered the special milk
program provided for by Public Law 89–642, as amended, [(80 Stat.
885)] during the fiscal year ending June 30, 1969.
1–1 P.L.

October 21, 2009

89–642, 80 Stat. 885, Oct. 11, 1966.

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CHILD NUTRITION ACT OF 1966

Sec. 4

(5) Any school or nonprofit child care institution which does not
participate in a meal service program authorized under this Act or
the Richard B. Russell National School Lunch Act shall receive the
special milk program upon its request.
(6) Children who qualify for free lunches under guidelines established by the Secretary shall, at the option of the school involved
(or of the local educational agency involved in the case of a public
school) be eligible for free milk upon their request.
(7) For the fiscal year ending June 30, 1975, and for subsequent school years, the minimum rate of reimbursement for a halfpint of milk served in schools and other eligible institutions shall
not be less than 5 cents per half-pint served to eligible children,
and such minimum rate of reimbursement shall be adjusted on an
annual basis each school year to reflect changes in the Producer
Price Index for Fresh Processed Milk published by the Bureau of
Labor Statistics of the Department of Labor.
(8) Such adjustment shall be computed to the nearest onefourth cent.
(9) Notwithstanding any other provision of this section, in no
event shall the minimum rate of reimbursement exceed the cost to
the school or institution of milk served to children.
(10) The State educational agency shall disburse funds paid to
the State during any fiscal year for purposes of carrying out the
program under this section in accordance with such agreements approved by the Secretary as may be entered into by such State agency and the schools in the State. The agreements described in the
preceding sentence shall be permanent agreements that may be
amended as necessary. Nothing in the preceding sentence shall be
construed to limit the ability of the State educational agency to suspend or terminate any such agreement in accordance with regulations prescribed by the Secretary.
(b) Commodity only schools shall not be eligible to participate
in the special milk program under this section. For the purposes of
the preceding sentence, the term ‘‘commodity only schools’’ means
schools that do not participate in the school lunch program under
the Richard B. Russell National School Lunch Act [(42 U.S.C. 1751
et seq.)], but which receive commodities made available by the Secretary for use by such schools in nonprofit lunch programs.
SCHOOL BREAKFAST PROGRAM AUTHORIZATION

SEC. 4. ø42 U.S.C. 1773¿ (a) There is hereby authorized to be
appropriated such sums as are necessary to enable the Secretary to
carry out a program to assist the States and the Department of Defense through grants-in-aid and other means to initiate, maintain,
or expand nonprofit breakfast programs in all schools which make
application for assistance and agree to carry out a nonprofit breakfast program in accordance with this Act. Appropriations and expenditures for this Act shall be considered Health and Human
Services functions for budget purposes rather than functions of Agriculture.
APPORTIONMENT TO STATES

(b)(1)(A)(i) The Secretary shall make breakfast assistance payments to each State educational agency each fiscal year, at such
times as the Secretary may determine, from the sums appropriated
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Sec. 4

CHILD NUTRITION ACT OF 1966

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for such purpose, in an amount equal to the product obtained by
multiplying—
(I) the number of breakfasts served during such fiscal year
to children in schools in such States which participate in the
school breakfast program under agreements with such State
educational agency; by
(II) the national average breakfast payment for free breakfasts, for reduced price breakfasts, or for breakfasts served to
children not eligible for free or reduced price meals, as appropriate, as prescribed in clause (B) of this paragraph.
(ii) The agreements described in clause (i)(I) shall be permanent agreements that may be amended as necessary. Nothing in the
preceding sentence shall be construed to limit the ability of the
State educational agency to suspend or terminate any such agreement in accordance with regulations prescribed by the Secretary.
(B) The national average payment for each free breakfast shall
be 57 cents (as adjusted pursuant to section 11(a) of the Richard
B. Russell National School Lunch Act [(42 U.S.C. 1759a(a))]. The
national average payment for each reduced price breakfast shall be
one-half of the national average payment for each free breakfast,
except that in no case shall the difference between the amount of
the national average payment for a free breakfast and the national
average payment for a reduced price breakfast exceed 30 cents. The
national average payment for each breakfast served to a child not
eligible for free or reduced price meals shall be 8.25 cents (as adjusted pursuant to section 11(a) of the Richard B. Russell National
School Lunch Act).
(C) No school which receives breakfast assistance payments
under this section may charge a price of more than 30 cents for a
reduced price breakfast.
(D) No breakfast assistance payment may be made under this
subsection for any breakfast served by a school unless such breakfast consists of a combination of foods which meet the minimum nutritional requirements prescribed by the Secretary under subsection
(e) of this section.
(E) FREE AND REDUCED PRICE POLICY STATEMENT.—
After the initial submission, a local educational agency
shall not be required to submit a free and reduced price
policy statement to a State educational agency under this
Act unless there is a substantive change in the free and reduced price policy of the local educational agency. A routine change in the policy of a local educational agency, such
as an annual adjustment of the income eligibility guidelines for free and reduced price meals, shall not be sufficient cause for requiring the local educational agency to
submit a policy statement.
(2)(A) The Secretary shall make additional payments for breakfasts served to children qualifying for a free or reduced price meal
at schools that are in severe need.
(B) The maximum payment for each such free breakfast shall
be the higher of—
(i) the national average payment established by the Secretary for free breakfasts plus 10 cents, or
(ii) 45 cents (as adjusted pursuant to section 11(a)(3)(B) of
the Richard B. Russell National School Lunch Act (42 U.S.C
1759a(a)(3)(B))).
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CHILD NUTRITION ACT OF 1966

Sec. 4

(C) The maximum payment for each such reduced price breakfast shall be thirty cents less than the maximum payment for each
free breakfast as determined under clause (B) of this paragraph.
(3) The Secretary shall increase by 6 cents the annually adjusted payment for each breakfast served under this Act and section 17 of the Richard B. Russell National School Lunch Act. These
funds shall be used to assist States, to the extent feasible, in improving the nutritional quality of the breakfasts.
(4) Notwithstanding any other provision of law, whenever
stocks of agricultural commodities are acquired by the Secretary or
the Commodity Credit Corporation and are not likely to be sold by
the Secretary or the Commodity Credit Corporation or otherwise
used in programs of commodity sale or distribution, the Secretary
shall make such commodities available to school food authorities
and eligible institutions serving breakfasts under this Act in a
quantity equal in value to not less than 3 cents for each breakfast
served under this Act and section 17 of the Richard B. Russell National School Lunch Act.
(5) Expenditures of funds from State and local sources for the
maintenance of the breakfast program shall not be diminished as
a result of funds or commodities received under paragraph (3) or
(4).
STATE DISBURSEMENT TO SCHOOLS

(c) Funds apportioned and paid to any State for the purpose of
this section shall be disbursed by the State educational agency to
schools selected by the State educational agency to assist such
schools in operating a breakfast program and for the purpose of
subsection (d). Disbursement to schools shall be made at such rates
per meal or on such other basis as the Secretary shall prescribe. In
selecting schools for participation, the State educational agency
shall, to the extent practicable, give first consideration to those
schools drawing attendance from areas in which poor economic conditions exist, to those schools in which a substantial proportion of
the children enrolled must travel long distances daily, and to those
schools in which there is a special need for improving the nutrition
and dietary practices of children of working mothers and children
from low-income families. Breakfast assistance disbursements to
schools under this section may be made in advance or by way of reimbursement in accordance with procedures prescribed by the Secretary.
(d) SEVERE NEED ASSISTANCE.—
(1) IN GENERAL.—Each State educational agency shall provide additional assistance to schools in severe need, which shall
include only those schools (having a breakfast program or desiring to initiate a breakfast program) in which—
(A) during the most recent second preceding school
year for which lunches were served, 40 percent or more of
the lunches served to students at the school were served
free or at a reduced price; or
(B) in the case of a school in which lunches were not
served during the most recent second preceding school
year, the Secretary otherwise determines that the requirements of subparagraph (A) would have been met.
(2) ADDITIONAL ASSISTANCE.—A school, on the submission
of appropriate documentation about the need circumstances in
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Sec. 5

CHILD NUTRITION ACT OF 1966

2–6

that school and the eligibility of the school for additional assistance, shall be entitled to receive the meal reimbursement rate
specified in subsection (b)(2).
NUTRITIONAL AND OTHER PROGRAM REQUIREMENTS

(e)(1)(A) Breakfasts served by schools participating in the
school breakfast program under this section shall consist of a combination of foods and shall meet minimum nutritional requirements
prescribed by the Secretary on the basis of tested nutritional research, except that the minimum nutritional requirements shall be
measured by not less than the weekly average of the nutrient content of school breakfasts. Such breakfasts shall be served free or at
a reduced price to children in school under the same terms and conditions as are set forth with respect to the service of lunches free
or at a reduced price in section 9 of the Richard B. Russell National
School Lunch Act [(42 U.S.C. 1758)].
(B) The Secretary shall provide through State educational
agencies technical assistance and training, including technical assistance and training in the preparation of foods high in complex
carbohydrates and lower-fat versions of foods commonly used in the
school breakfast program established under this section, to schools
participating in the school breakfast program to assist the schools
in complying with the nutritional requirements prescribed by the
Secretary pursuant to subparagraph (A) and in providing appropriate meals to children with medically certified special dietary
needs.
(2) At the option of a local school food authority, a student in
a school under the authority that participates in the school breakfast program under this Act may be allowed to refuse not more
than one item of a breakfast that the student does not intend to
consume. A refusal of an offered food item shall not affect the full
charge to the student for a breakfast meeting the requirements of
this section or the amount of payments made under this Act to a
school for the breakfast.
DISBURSEMENT TO SCHOOLS BY THE SECRETARY

SEC. 5. ø42 U.S.C. 1774¿ (a) The Secretary shall withhold
funds payable to a State under this Act and disburse the funds directly to schools or institutions within the State for the purposes
authorized by this Act to the extent that the Secretary has so withheld and disbursed such funds continuously since October 1, 1980,
but only to such extent (except as otherwise required by subsection
(b)). Any funds so withheld and disbursed by the Secretary shall be
used for the same purposes, and shall be subject to the same conditions, as applicable to a State disbursing funds made available
under this Act. If the Secretary is administering (in whole or in
part) any program authorized under this Act, the State in which
the Secretary is administering the program may, upon request to
the Secretary, assume administration of that program.
(b) If a State educational agency is not permitted by law to disburse the funds paid to it under this Act to any of the nonpublic
schools in the State, the Secretary shall disburse the funds directly
to such schools within the State for the same purposes and subject
to the same conditions as are authorized or required with respect
to the disbursements to public schools within the State by the State
educational agency.
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CHILD NUTRITION ACT OF 1966

Sec. 7

PAYMENTS TO STATES

SEC. 6. ø42 U.S.C. 1775¿ The Secretary shall certify to the Secretary of the Treasury from time to time the amounts to be paid
to any State under sections 3 through 7 of this Act and the time
or times such amounts are to be paid; and the Secretary of the
Treasury shall pay to the State at the time or times fixed by the
Secretary the amounts so certified.
SEC. 7. ø42 U.S.C. 1776¿ STATE ADMINISTRATIVE EXPENSES.

(a) AMOUNT AND ALLOCATION OF FUNDS.—
(1) AMOUNT AVAILABLE.—
(A) IN GENERAL.—Except as provided in subparagraph
(B), each fiscal year, the Secretary shall make available to
the States for their administrative costs an amount equal
to not less than 11⁄2 percent of the Federal funds expended
under sections 4, 11, and 17 of the Richard B. Russell National School Lunch Act [(42 U.S.C. 1753, 1759a, and
1766)] and sections 3 and 4 of this Act during the second
preceding fiscal year.
(B) MINIMUM AMOUNT.—In the case of each of fiscal
years 2005 through 2007, the Secretary shall make available to each State for administrative costs not less than the
initial allocation made to the State under this subsection
for fiscal year 2004.
(C) ALLOCATION.—The Secretary shall allocate the
funds so provided in accordance with paragraphs (2), (3),
and (4) of this subsection.
(2) EXPENSE GRANTS.—
(A) IN GENERAL.—Subject to subparagraph (B), the
Secretary shall allocate to each State for administrative
costs incurred in any fiscal year in connection with the programs authorized under the Richard B. Russell National
School Lunch Act [(42 U.S.C. 1751 et seq.)] or under this
Act, except for the programs authorized under section 13 or
17 of the Richard B. Russell National School Lunch Act
[(42 U.S.C. 1761 or 1766)] or under section 17 of this Act,
an amount equal to not less than 1 percent and not more
than 11⁄2 percent of the funds expended by each State
under sections 4 and 11 of the Richard B. Russell National
School Lunch Act [(42 U.S.C. 1753 and 1759a)] and sections 3 and 4 of this Act during the second preceding fiscal
year.
(B) MINIMUM AMOUNT.—
(i) IN GENERAL.—In no case shall the grant available to any State under this paragraph be less than
the amount such State was allocated in the fiscal year
ending September 30, 1981, or $200,000 (as adjusted
under clause (ii), 7–1 whichever is larger.
(ii) ADJUSTMENT.—On October 1, 2008, and each
October 1 thereafter, the minimum dollar amount for
a fiscal year specified in clause (i) shall be adjusted to
reflect the percentage change between—
7–1 Effective October 1, 2004, section 202(a)(2)(B)(ii)(III) of P.L. 108–265, 118 Stat. 769,
June 30, 2004, amended this subparagraph by striking ‘‘$100,000’’ and inserting ‘‘$200,000
(as adjusted under clause (ii)’’. So in original. Probably should be an additional closed parenthesis.

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Sec. 7

CHILD NUTRITION ACT OF 1966

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(I) the value of the index for State and local
government purchases, as published by the Bureau of Economic Analysis of the Department of
Commerce, for the 12-month period ending June
30 of the second preceding fiscal year; and
(II) the value of that index for the 12-month
period ending June 30 of the preceding fiscal year.
(3) The Secretary shall allocate to each State for its administrative costs incurred under the program authorized by section 17 of
the Richard B. Russell National School Lunch Act [(42 U.S.C.
1766)] in any fiscal year an amount, based upon funds expended
under that program in the second preceding fiscal year, equal to (A)
20 percent of the first $50,000, (B) 10 percent of the next $100,000,
(C) 5 percent of the next $250,000, and (D) 21⁄2 percent of any remaining funds. If an agency in the State other than the State educational agency administers such program, the State shall ensure
that an amount equal to no less than the funds due the State under
this paragraph is provided to such agency for costs incurred by such
agency in administering the program, except as provided in paragraph (5). The Secretary may adjust any State’s allocation to reflect
changes in the size of its program.
(4) The remaining funds appropriated under this section shall
be allocated among the States by the Secretary in amounts the Secretary determines necessary for the improvement in the States of
the administration of the programs authorized under the Richard
B. Russell National School Lunch Act [(42 U.S.C. 1751 et seq.)] and
this Act, except for section 17 of this Act, including, but not limited
to, improved program integrity and the quality of meals served to
children.
(5)(A) Not more than 25 percent of the amounts made available
to each State under this section for the fiscal year 1991 and 20 percent of the amounts made available to each State under this section
for the fiscal year 1992 and for each succeeding fiscal year may remain available for obligation or expenditure in the fiscal year succeeding the fiscal year for which such amounts were appropriated.
(B) REALLOCATION OF FUNDS.—
(i) RETURN TO SECRETARY.—For each fiscal year,
any amounts appropriated that are not obligated or expended during the fiscal year and are not carried over
for the succeeding fiscal year under subparagraph (A)
shall be returned to the Secretary.
(ii) REALLOCATION BY SECRETARY.—The Secretary
shall allocate, for purposes of administrative costs, any
remaining amounts among States that demonstrate a
need for the amounts.
(6) USE OF ADMINISTRATIVE FUNDS.—Funds available to a
State under this subsection and under section 13(k)(1) of the
Richard B. Russell National School Lunch Act (42 U.S.C.
1761(k)(1)) may be used by the State for the costs of administration of the programs authorized under this Act (except for
the programs authorized under sections 17 and 21) and the
Richard B. Russell National School Lunch Act (42 U.S.C. 1751
et seq.) without regard to the basis on which the funds were
earned and allocated.
(7) Where the Secretary is responsible for the administration of
programs under this Act or the Richard B. Russell National School
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CHILD NUTRITION ACT OF 1966

Sec. 7

Lunch Act [(42 U.S.C. 1751 et seq.)], the amount of funds that
would be allocated to the State agency under this section and under
section 13(k)(1) of the Richard B. Russell National School Lunch
Act [(42 U.S.C. 1761(k)(1))] shall be retained by the Secretary for
the Secretary’s use in the administration of such programs.
(8) In the fiscal year 1991 and each succeeding fiscal year, in
accordance with regulations issued by the Secretary, each State
shall ensure that the State agency administering the distribution of
commodities under programs authorized under this Act and under
the Richard B. Russell National School Lunch Act is provided, from
funds made available to the State under this subsection, an appropriate amount of funds for administrative costs incurred in distributing such commodities. In developing such regulations, the Secretary may consider the value of commodities provided to the State
under this Act and under the Richard B. Russell National School
Lunch Act.
(9)(A) If the Secretary determines that the administration of
any program by a State under this Act (other than section 17) or
under the Richard B. Russell National School Lunch Act (42 U.S.C.
1751 et seq.) (including any requirement to provide sufficient training, technical assistance, and monitoring of the child and adult care
food program under section 17 of that Act (42 U.S.C. 1766)), or compliance with a regulation issued pursuant to either of such Acts, is
seriously deficient, and the State fails to correct the deficiency within a specified period of time, the Secretary may withhold from the
State some or all of the funds allocated to the State under this section or under section 13(k)(1) or 17 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1761(k)(1) or 1766).
(B) On a subsequent determination by the Secretary that the
administration of any program referred to in subparagraph (A), or
compliance with the regulations issued to carry out the program, is
no longer seriously deficient and is operated in an acceptable manner, the Secretary may allocate some or all of the funds withheld
under such subparagraph.
(b) Funds paid to a State under subsection (a) of this section
may be used to pay salaries, including employee benefits and travel
expenses, for administrative and supervisory personnel; for support
services; for office equipment; and for staff development.
(c) If any State agency agrees to assume responsibility for the
administration of food service programs in nonprofit private schools
or child care institutions that were previously administered by the
Secretary, an appropriate adjustment shall be made in the administrative funds paid under this section to the State not later than the
succeeding fiscal year.
(d) Notwithstanding any other provision of law, funds made
available to each State under this section shall remain available for
obligation and expenditure by that State during the fiscal year immediately following the fiscal year for which such funds were made
available. For each fiscal year the Secretary shall establish a date
by which each State shall submit to the Secretary a plan for the
disbursement of funds provided under this section for each such
year, and the Secretary shall reallocate any unused funds, as evidenced by such plans, to other States as the Secretary considers appropriate.
(e) PLANS FOR USE OF ADMINISTRATIVE EXPENSE FUNDS.—
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CHILD NUTRITION ACT OF 1966

2–10

(1) IN GENERAL.—Each State shall submit to the Secretary
for approval by October 1 of the initial fiscal year a plan for
the use of State administrative expense funds, including a staff
formula for State personnel, system level supervisory and operating personnel, and school level personnel.
(2) UPDATES AND INFORMATION MANAGEMENT SYSTEMS.—
(A) IN GENERAL.—After submitting the initial plan, a
State shall be required to submit to the Secretary for approval only a substantive change in the plan.
(B) PLAN CONTENTS.—Each State plan shall, at a minimum, include a description of how technology and information management systems will be used to improve program integrity by—
(i) monitoring the nutrient content of meals
served;
(ii) training local educational agencies, school food
authorities, and schools in how to use technology and
information management systems (including verifying
eligibility for free or reduced price meals using program participation or income data gathered by State or
local agencies); and
(iii) using electronic data to establish benchmarks
to compare and monitor program integrity, program
participation, and financial data.
(3) TRAINING AND TECHNICAL ASSISTANCE.—Each State
shall submit to the Secretary for approval a plan describing the
manner in which the State intends to implement subsection (g)
and section 22(b)(3) of the Richard B. Russell National School
Lunch Act.
(f) Payments of funds under this section shall be made only to
States that agree to maintain a level of funding out of State revenues, for administrative costs in connection with programs under
this Act (except section 17 of this Act) and the Richard B. Russell
National School Lunch Act [(42 U.S.C. 1751 et seq.)] (except section
13 of that Act [(42 U.S.C. 1761)]), not less than the amount expended or obligated in fiscal year 1977, and that agree to participate fully in any studies authorized by the Secretary.
(g) STATE TRAINING.—
(1) IN GENERAL.—At least annually, each State shall provide training in administrative practices (including training in
application, certification, verification, meal counting, and meal
claiming procedures) to local educational agency and school
food authority administrative personnel and other appropriate
personnel, with emphasis on the requirements established by
the Child Nutrition and WIC Reauthorization Act of 2004 and
the amendments made by that Act.
(2) FEDERAL ROLE.—The Secretary shall—
(A) provide training and technical assistance to a
State; or
(B) at the option of the Secretary, directly provide
training and technical assistance described in paragraph
(1).
(3) REQUIRED PARTICIPATION.—In accordance with procedures established by the Secretary, each local educational agency or school food authority shall ensure that an individual conducting or overseeing administrative procedures described in
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CHILD NUTRITION ACT OF 1966

Sec. 7

paragraph (1) receives training at least annually, unless determined otherwise by the Secretary.
(h) FUNDING FOR TRAINING AND ADMINISTRATIVE REVIEWS.—
(1) FUNDING.—
(A) IN GENERAL.—On October 1, 2004, and on each October 1 thereafter, out of any funds in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall
transfer to the Secretary of Agriculture to carry out this
subsection $4,000,000, to remain available until expended.
(B) RECEIPT AND ACCEPTANCE.—The Secretary shall be
entitled to receive, shall accept, and shall use to carry out
this subsection the funds transferred under subparagraph
(A), without further appropriation.
(2) USE OF FUNDS.—
(A) IN GENERAL.—Except as provided in subparagraph
(B), the Secretary shall use funds provided under this subsection to assist States in carrying out subsection (g) and
administrative reviews of selected local educational agencies carried out under section 22 of the Richard B. Russell
National School Lunch Act (42 U.S.C. 1769c).
(B) EXCEPTION.—The Secretary may retain a portion of
the amount provided to cover costs of activities carried out
by the Secretary in lieu of the State.
(3) ALLOCATION.—The Secretary shall allocate funds provided under this subsection to States based on the number of
local educational agencies that have demonstrated a high level
of, or a high risk for, administrative error, as determined by
the Secretary, taking into account the requirements established
by the Child Nutrition and WIC Reauthorization Act of 2004
and the amendments made by that Act.
(4) REALLOCATION.—The Secretary may reallocate, to carry
out this section, any amounts made available to carry out this
subsection that are not obligated or expended, as determined
by the Secretary.
(i) TECHNOLOGY INFRASTRUCTURE IMPROVEMENT.—
(1) IN GENERAL.—Each State shall submit to the Secretary,
for approval by the Secretary, an amendment to the plan required by subsection (e) that describes the manner in which
funds provided under this section will be used for technology
and information management systems.
(2) REQUIREMENTS.—The amendment shall, at a minimum,
describe the manner in which the State will improve program
integrity by—
(A) monitoring the nutrient content of meals served;
(B) providing training to local educational agencies,
school food authorities, and schools on the use of technology and information management systems for activities
including—
(i) menu planning;
(ii) collection of point-of-sale data; and
(iii) the processing of applications for free and reduced price meals; and
(C) using electronic data to establish benchmarks to
compare and monitor program integrity, program participation, and financial data across schools and school food authorities.
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(3) TECHNOLOGY INFRASTRUCTURE GRANTS.—
(A) IN GENERAL.—Subject to the availability of funds
made available under paragraph (4) to carry out this paragraph, the Secretary shall, on a competitive basis, provide
funds to States to be used to provide grants to local educational agencies, school food authorities, and schools to defray the cost of purchasing or upgrading technology and information management systems for use in programs authorized by this Act (other than section 17) and the Richard B. Russell National School Lunch Act (42 U.S.C. 1751
et seq.).
(B) INFRASTRUCTURE DEVELOPMENT PLAN.—To be eligible to receive a grant under this paragraph, a school or
school food authority shall submit to the State a plan to
purchase or upgrade technology and information management systems that addresses potential cost savings and
methods to improve program integrity, including—
(i) processing and verification of applications for
free and reduced price meals;
(ii) integration of menu planning, production, and
serving data to monitor compliance with section 9(f)(1)
of the Richard B. Russell National School Lunch Act
(42 U.S.C. 1758(f)(1)); and
(iii) compatibility with statewide reporting systems.
(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this subsection such sums
as are necessary for each of fiscal years 2005 through 2009, to
remain available until expended.
(j) For the fiscal year beginning October 1, 1977, and each succeeding fiscal year ending before October 1, 2009, there are hereby
authorized to be appropriated such sums as may be necessary for
the purposes of this section.
UTILIZATION OF FOODS

SEC. 8. ø42 U.S.C. 1777¿ Each school participating under section 4 of this Act shall, insofar as practicable, utilize in its program
foods designated from time to time by the Secretary as being in
abundance, either nationally or in the school area, or foods donated
by the Secretary. Foods available under section 416 of the Agricultural Act of 1949 (63 Stat. 1058[; 7 U.S.C. 1431]), as amended, or
purchased under section 32 of the Act of August 24, 1935 (49 Stat.
774[; 7 U.S.C. 612c]), as amended, or section 709 of the Food and
Agriculture Act of 1965 (79 Stat. 1212[; 7 U.S.C. 1446a-1]), may be
donated by the Secretary to schools, in accordance with the needs
as determined by local school authorities, for utilization in their
feeding programs under this Act.
NONPROFIT PROGRAMS

SEC. 9. ø42 U.S.C. 1778¿ The food and milk service programs
in schools and nonprofit institutions receiving assistance under this
Act shall be conducted on a nonprofit basis.
REGULATIONS

SEC. 10. ø42 U.S.C. 1779¿ (a) The Secretary shall prescribe
such regulations as the Secretary may deem necessary to carry out
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this Act and the Richard B. Russell National School Lunch Act [(42
U.S.C. 1751 et seq.)], including regulations relating to the service
of food in participating schools and service institutions in competition with the programs authorized under this Act and the Richard
B. Russell National School Lunch Act.
(b) The regulations shall not prohibit the sale of competitive
foods approved by the Secretary in food service facilities or areas
during the time of service of food under this Act or the Richard B.
Russell National School Lunch Act if the proceeds from the sales
of such foods will inure to the benefit of the schools or of organizations of students approved by the schools.
(c) In such regulations the Secretary may provide for the transfer of funds by any State between the programs authorized under
this Act and the Richard B. Russell National School Lunch Act on
the basis of an approved State plan of operation for the use of the
funds and may provide for the reserve of up to 1 per centum of the
funds available for apportionment to any State to carry out special
developmental projects.
PROHIBITIONS

SEC. 11. ø42 U.S.C. 1780¿ (a) In carrying out the provisions of
sections 3 and 4 of this Act, the Secretary shall not impose any requirements with respect to teaching personnel, curriculum, instruction, methods of instruction, and materials of instruction.
(b) The value of assistance to children under this Act shall not
be considered to be income or resources for any purpose under any
Federal or State laws including, but not limited to, laws relating to
taxation, welfare, and public assistance programs. Expenditures of
funds from State and local sources for the maintenance of food programs for children shall not be diminished as a result of funds received under this Act.
PRESCHOOL PROGRAMS

SEC. 12. ø42 U.S.C. 1781¿ The Secretary may extend the benefits of all school feeding programs conducted and supervised by the
Department of Agriculture to include preschool programs operated
as part of the school system.
CENTRALIZATION OF ADMINISTRATION

SEC. 13. ø42 U.S.C. 1782¿ Authority for the conduct and supervision of Federal programs to assist schools in providing food service programs for children is assigned to the Department of Agriculture. To the extent practicable, other Federal agencies administering programs under which funds are to be provided to schools
for such assistance shall transfer such funds to the Department of
Agriculture for distribution through the administrative channels
and in accordance with the standards established under this Act
and the Richard B. Russell National School Lunch Act [(42 U.S.C.
1751 et seq.)].
APPROPRIATIONS FOR ADMINISTRATIVE EXPENSE

SEC. 14. ø42 U.S.C. 1783¿ There are hereby authorized to be
appropriated for any fiscal year such sums as may be necessary to
the Secretary for the Secretary’s administrative expense under this
Act.
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MISCELLANEOUS PROVISIONS AND DEFINITIONS

SEC. 15. ø42 U.S.C. 1784¿ For the purposes of this Act—
(1) ‘‘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.
(2) ‘‘State educational agency’’ means, as the State legislature may determine, (A) the chief State school officer (such as
the State superintendent of public instruction, commissioner of
education, or similar officer), or (B) a board of education controlling the State department of education.
(3) ‘‘School’’ means (A) any public or nonprofit private
school of high school grade or under, including kindergarten
and preschool programs operated by such school, and (B) any
public or licensed nonprofit private residential child care institution (including, but not limited to, orphanages and homes for
the mentally retarded, but excluding Job Corps Centers funded
by the Department of Labor). For purposes of clauses (A) and
(B) of this paragraph, the term ‘‘nonprofit’’, when applied to
any such private school or institution, means any such school
or institution which is exempt from tax under section 501(c)(3)
of the Internal Revenue Code of 1986.
(4) ‘‘Secretary’’ means the Secretary of Agriculture.
(5) ‘‘School year’’ means the annual period from July 1
through June 30.
(6) Except as used in section 17 of this Act, the terms
‘‘child’’ and ‘‘children’’ as used in this Act, shall be deemed to
include persons regardless of age who are determined by the
State educational agency, in accordance with regulations prescribed by the Secretary, to have 1 or more disabilities and who
are attending any nonresidential public or nonprofit private
school of high school grade or under for the purpose of participating in a school program established for individuals with disabilities.
(7) DISABILITY.—The term ‘‘disability’’ has the meaning
given the term in the Rehabilitation Act of 1973 for purposes
of title II of that Act (29 U.S.C 760 et seq.).
ACCOUNTS AND RECORDS

SEC. 16. ø42 U.S.C. 1785¿ (a) States, State educational agencies, schools, and nonprofit institutions participating in programs
under this Act shall keep such accounts and records as may be necessary to enable the Secretary to determine whether there has been
compliance with this Act and the regulations hereunder. Such accounts and records shall be available at any reasonable time for inspection and audit by representatives of the Secretary and shall be
preserved for such period of time, not in excess of three years, as
the Secretary determines is necessary.
(b) With regard to any claim arising under this Act or under
the Richard B. Russell National School Lunch Act [(42 U.S.C. 1751
et seq.)], the Secretary shall have the authority to determine the
amount of, to settle and to adjust any such claim, and to compromise or deny such claim or any part thereof. The Secretary shall
also have the authority to waive such claims if the Secretary determines that to do so would serve the purposes of either such Act.
Nothing contained in this subsection shall be construed to diminish
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the authority of the Attorney General of the United States under
section 516 of title 28, United States Code, to conduct litigation on
behalf of the United States.
SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS,
AND CHILDREN

SEC. 17. ø42 U.S.C. 1786¿ (a) Congress finds that substantial
numbers of pregnant, postpartum, and breastfeeding women, infants, and young children from families with inadequate income are
at special risk with respect to their physical and mental health by
reason of inadequate nutrition or health care, or both. It is, therefore, the purpose of the program authorized by this section to provide, up to the authorization levels set forth in subsection (g) of this
section, supplemental foods and nutrition education through any eligible local agency that applies for participation in the program.
The program shall serve as an adjunct to good health care, during
critical times of growth and development, to prevent the occurrence
of health problems, including drug abuse, and improve the health
status of these persons.
(b) As used in this section—
(1) ‘‘Breastfeeding women’’ means women up to one year
postpartum who are breastfeeding their infants.
(2) ‘‘Children’’ means persons who have had their first
birthday but have not yet attained their fifth birthday.
(3) ‘‘Competent professional authority’’ means physicians,
nutritionists, registered nurses, dietitians, or State or local
medically trained health officials, or persons designated by physicians or State or local medically trained health officials, in accordance with standards prescribed by the Secretary, as being
competent professionally to evaluate nutritional risk.
(4) ‘Costs of nutrition services and administration’ or ‘nutrition services and administration’ means costs that shall include, but not be limited to, costs for certification of eligibility
of persons for participation in the program (including centrifuges, measuring boards, spectrophotometers, and scales
used for the certification), food delivery, monitoring, nutrition
education, outreach, startup costs, and general administration
applicable to implementation of the program under this section,
such as the cost of staff, transportation, insurance, developing
and printing food instruments, and administration of State and
local agency offices.
(5) ‘‘Infants’’ means persons under one year of age.
(6) ‘‘Local agency’’ means a public health or welfare agency
or a private nonprofit health or welfare agency, which, directly
or through an agency or physician with which it has contracted,
provides health services. The term shall include an Indian
tribe, band, or group recognized by the Department of the Interior, the Indian Health Service of the Department of Health
and Human Services, or an intertribal council or group that is
an authorized representative of Indian tribes, bands, or groups
recognized by the Department of the Interior.
(7) NUTRITION EDUCATION.—The term ‘‘nutrition education’’
means individual and group sessions and the provision of material that are designed to improve health status and achieve
positive change in dietary and physical activity habits, and that
emphasize the relationship between nutrition, physical activity,
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and health, all in keeping with the personal and cultural preferences of the individual.
(8) ‘‘Nutritional risk’’ means (A) detrimental or abnormal
nutritional conditions detectable by biochemical or anthropometric measurements, (B) other documented nutritionally related medical conditions, (C) dietary deficiencies that impair or
endanger health, (D) conditions that directly affect the nutritional health of a person, such as alcoholism or drug abuse, or
(E) conditions that predispose persons to inadequate nutritional
patterns or nutritionally related medical conditions, including,
but not limited to, homelessness and migrancy.
(9) ‘‘Plan of operation and administration’’ means a document that describes the manner in which the State agency intends to implement and operate the program.
(10) ‘‘Postpartum women’’ means women up to six months
after termination of pregnancy.
(11) ‘‘Pregnant women’’ means women determined to have
one or more fetuses in utero.
(12) ‘‘Secretary’’ means the Secretary of Agriculture.
(13) ‘‘State agency’’ means the health department or comparable agency of each State; an Indian tribe, band, or group
recognized by the Department of the Interior; an intertribal
council or group that is the authorized representative of Indian
tribes, bands, or groups recognized by the Department of the
Interior; or the Indian Health Service of the Department of
Health and Human Services.
(14) ‘‘Supplemental foods’’ means those foods containing
nutrients determined by nutritional research to be lacking in
the diets of pregnant, breastfeeding, and postpartum women,
infants, and children and foods that promote the health of the
population served by the program authorized by this section, as
indicated by relevant nutrition science, public health concerns,
and cultural eating patterns, as prescribed by the Secretary.
State agencies may, with the approval of the Secretary, substitute different foods providing the nutritional equivalent of
foods prescribed by the Secretary, to allow for different cultural
eating patterns.
(15) ‘‘Homeless individual’’ means—
(A) an individual who lacks a fixed and regular nighttime residence; or
(B) an individual whose primary nighttime residence
is—
(i) a supervised publicly or privately operated shelter (including a welfare hotel or congregate shelter) designed to provide temporary living accommodations;
(ii) an institution that provides a temporary residence for individuals intended to be institutionalized;
(iii) a temporary accommodation of not more than
365 days in the residence of another individual; or
(iv) a public or private place not designed for, or
ordinarily used as, a regular sleeping accommodation
for human beings.
(16) ‘‘Drug abuse education’’ means—
(A) the provision of information concerning the dangers
of drug abuse; and
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(B) the referral of participants who are suspected drug
abusers to drug abuse clinics, treatment programs, counselors, or other drug abuse professionals.
(17) ‘‘Competitive bidding’’ means a procurement process
under which the Secretary or a State agency selects a single
source (a single infant formula manufacturer) offering the lowest price, as determined by the submission of sealed bids, for
a product for which bids are sought for use in the program authorized by this section.
(18) ‘‘Rebate’’ means the amount of money refunded under
cost containment procedures to any State agency from the manufacturer or other supplier of the particular food product as the
result of the purchase of the supplemental food with a voucher
or other purchase instrument by a participant in each such
agency’s program established under this section.
(19) ‘‘Discount’’ means, with respect to a State agency that
provides program foods to participants without the use of retail
grocery stores (such as a State that provides for the home delivery or direct distribution of supplemental food), the amount of
the price reduction or other price concession provided to any
State agency by the manufacturer or other supplier of the particular food product as the result of the purchase of program
food by each such State agency, or its representative, from the
supplier.
(20) ‘‘Net price’’ means the difference between the manufacturer’s wholesale price for infant formula and the rebate level
or the discount offered or provided by the manufacturer under
a cost containment contract entered into with the pertinent
State agency.
(21) REMOTE INDIAN OR NATIVE VILLAGE.—The term ‘‘remote Indian or Native village’’ means an Indian or Native village that—
(A) is located in a rural area;
(B) has a population of less than 5,000 inhabitants;
and
(C) is not accessible year-around by means of a public
road (as defined in section 101 of title 23, United States
Code).’’.
(22) PRIMARY CONTRACT INFANT FORMULA.—The term ‘primary contract infant formula’ means the specific infant formula
for which manufacturers submit a bid to a State agency in response to a rebate solicitation under this section and for which
a contract is awarded by the State agency as a result of that
bid.
(23) STATE ALLIANCE.—The term ‘State alliance’ means 2 or
more State agencies that join together for the purpose of procuring infant formula under the program by soliciting competitive bids for infant formula.
(c)(1) The Secretary may carry out a special supplemental nutrition program 17–1 to assist State agencies through grants-in-aid
and other means to provide, through local agencies, at no cost, supplemental foods and nutrition education to low-income pregnant,
17–1 Section 204(w)(3) of P.L. 103–448, 108 Stat. 4746, Nov. 2, 1994, provides that any
reference to the special supplemental food program established under this section in any
provision of law, regulation, document, record, or other paper of the United States shall
be considered to be a reference to the special supplemental nutrition program established
under this section.

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postpartum, and breastfeeding women, infants, and children who
satisfy the eligibility requirements specified in subsection (d) of this
section. The program shall be supplementary to—
(A) the supplemental nutrition assistance program;
(B) any program under which foods are distributed to
needy families in lieu of supplemental nutrition assistance program benefits; and
(C) receipt of food or meals from soup kitchens, or shelters,
or other forms of emergency food assistance.
(2) Subject to amounts appropriated to carry out this section
under subsection (g)—
(A) the Secretary shall make cash grants to State agencies
for the purpose of administering the program, and
(B) any State agency approved eligible local agency that
applies to participate in or expand the program under this section shall immediately be provided with the necessary funds to
carry out the program.
(3) Nothing in this subsection shall be construed to permit the
Secretary to reduce ratably the amount of foods that an eligible
local agency shall distribute under the program to participants. The
Secretary shall take affirmative action to ensure that the program
is instituted in areas most in need of supplemental foods. The existence of a commodity supplemental food program under section 4 of
the Agriculture and Consumer Protection Act of 1973 [(7 U.S.C.
612c note)] shall not preclude the approval of an application from
an eligible local agency to participate in the program under this
section nor the operation of such program within the same geographic area as that of the commodity supplemental food program,
but the Secretary shall issue such regulations as are necessary to
prevent dual receipt of benefits under the commodity supplemental
food program and the program under this section.
(4) A State shall be ineligible to participate in programs authorized under this section if the Secretary determines that State
or local sales taxes are collected within the State on purchases of
food made to carry out this section.
(d)(1) Participation in the program under this section shall be
limited to pregnant, postpartum, and breastfeeding women, infants,
and children from low-income families who are determined by a
competent professional authority to be at nutritional risk.
(2)(A) The Secretary shall establish income eligibility standards
to be used in conjunction with the nutritional risk criteria in determining eligibility of individuals for participation in the program.
Any individual at nutritional risk shall be eligible for the program
under this section only if such individual—
(i) is a member of a family with an income that is less than
the maximum income limit prescribed under section 9(b) of the
Richard B. Russell National School Lunch Act for free and reduced price meals;
(ii)(I) receives supplemental nutrition assistance program
benefits under the Food and Nutrition Act of 2008; or
(II) is a member of a family that receives assistance under
the State program funded established under part A of title IV
of the Social Security Act that the Secretary determines complies with standards established by the Secretary that ensure
that the standards under the State program are comparable to
or more restrictive than those in effect on June 1, 1995; or
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(iii)(I) receives medical assistance under title XIX of the Social Security Act; or
(II) is a member of a family in which a pregnant woman
or an infant receives such assistance.
(B) For the purpose of determining income eligibility under this
section, any State agency may choose to exclude from income—
(i) any basic allowance—
(I) for housing received by military service personnel
residing off military installations; or
(II) provided under section 403 of title 37, United
States Code, for housing that is acquired or constructed
under subchapter IV of chapter 169 of title 10, United
States Code, or any related provision of law; and
(ii) any cost-of-living allowance provided under section 405
of title 37, United States Code, to a member of a uniformed
service who is on duty outside the contiguous States of the
United States.
(C) COMBAT PAY.—For the purpose of determining income eligibility under this section, a State agency shall exclude from income any additional payment under chapter
5 of title 37, United States Code, or otherwise designated
by the Secretary to be appropriate for exclusion under this
subparagraph, that is received by or from a member of the
United States Armed Forces deployed to a designated combat zone, if the additional pay—
(i) is the result of deployment to or service in a
combat zone; and
(ii) was not received immediately prior to serving
in a combat zone.
(D) In the case of a pregnant woman who is otherwise ineligible
for participation in the program because the family of the woman
is of insufficient size to meet the income eligibility standards of the
program, the pregnant woman shall be considered to have satisfied
the income eligibility standards if, by increasing the number of individuals in the family of the woman by 1 individual, the income eligibility standards would be met.
(3) CERTIFICATION.—
(A) PROCEDURES.—
(i) IN GENERAL.—Subject to clause (ii), a person
shall be certified for participation in accordance with
general procedures prescribed by the Secretary.
(ii) BREASTFEEDING WOMEN.—A State may elect to
certify a breastfeeding woman for a period of 1 year
postpartum
or
until
a
woman
discontinues
breastfeeding, whichever is earlier.
(B) A State may consider pregnant women who meet the income eligibility standards to be presumptively eligible to participate
in the program and may certify the women for participation immediately, without delaying certification until an evaluation is made
concerning nutritional risk. A nutritional risk evaluation of such a
woman shall be completed not later than 60 days after the woman
is certified for participation. If it is subsequently determined that
the woman does not meet nutritional risk criteria, the certification
of the woman shall terminate on the date of the determination.
(C) PHYSICAL PRESENCE.—
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(i) IN GENERAL.—Except as provided in clause (ii)
and subject to the requirements of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and
section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), each individual seeking certification or recertification for participation in the program shall be physically present at each certification or recertification determination in order to determine eligibility under the
program.
(ii) WAIVERS.—If the agency determines that the
requirement of clause (i) would present an unreasonable barrier to participation, a local agency may waive
the requirement of clause (i) with respect to—
(I) an infant or child who—
(aa) was present at the initial certification
visit; and
(bb) is receiving ongoing health care;
(II) an infant or child who—
(aa) was present at the initial certification
visit;
(bb) was present at a certification or recertification determination within the 1-year
period ending on the date of the certification
or recertification determination described in
clause (i); and
(cc) has one or more parents who work;
and
(III) an infant under 8 weeks of age—
(aa) who cannot be present at certification
for a reason determined appropriate by the
local agency; and
(bb) for whom all necessary certification
information is provided.
(D) INCOME DOCUMENTATION.—
(i) IN GENERAL.—Except as provided in clause (ii),
in order to participate in the program pursuant to
clause (i) of paragraph (2)(A), an individual seeking
certification or recertification for participation in the
program shall provide documentation of family income.
(ii) WAIVERS.—A State agency may waive the documentation requirement of clause (i), in accordance
with criteria established by the Secretary, with respect
to—
(I) an individual for whom the necessary documentation is not available; or
(II) an individual, such as a homeless woman
or child, for whom the agency determines the requirement of clause (i) would present an unreasonable barrier to participation.
(E) ADJUNCT DOCUMENTATION.—In order to participate
in the program pursuant to clause (ii) or (iii) of paragraph
(2)(A), an individual seeking certification or recertification
for participation in the program shall provide documentation of receipt of assistance described in that clause.
(F) PROOF OF RESIDENCY.—An individual residing in a
remote Indian or Native village or an individual served by
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an Indian tribal organization and residing on a reservation
or pueblo may, under standards established by the Secretary, establish proof of residency under this section by
providing to the State agency the mailing address of the individual and the name of the remote Indian or Native village.
(e)(1) The State agency shall ensure that nutrition education
and drug abuse education is provided to all pregnant, postpartum,
and breastfeeding participants in the program and to parents or
caretakers of infant and child participants in the program. The
State agency may also provide nutrition education and drug abuse
education to pregnant, postpartum, and breastfeeding women and
to parents or caretakers of infants and children enrolled at local
agencies operating the program under this section who do not participate in the program. A local agency participating in the program
shall provide education or educational materials relating to the effects of drug and alcohol use by a pregnant, postpartum, or
breastfeeding woman on the developing child of the woman.
(2) The Secretary shall prescribe standards to ensure that adequate nutrition education services and breastfeeding promotion and
support are provided. The State agency shall provide training to
persons providing nutrition education under this section.
(3) NUTRITION EDUCATION MATERIALS.—
(A) IN GENERAL.—The Secretary shall, after submitting
proposed nutrition education materials to the Secretary of
Health and Human Services for comment, issue such materials for use in the program under this section.
(B) SHARING OF MATERIALS.—The Secretary may provide, in bulk quantity, nutrition education materials (including materials promoting breastfeeding) developed with
funds made available for the program authorized under
this section to State agencies administering the commodity
supplemental food program authorized under sections 4(a)
and 5 of the Agriculture and Consumer Protection Act of
1973 (7 U.S.C. 612c note; Public Law 93–86) at no cost to
that program.
(4) The State agency—
(A) shall provide each local agency with materials showing
the maximum income limits, according to family size, applicable to pregnant women, infants, and children up to age 5 under
the medical assistance program established under title XIX of
the Social Security Act (in this section referred to as the ‘medicaid program’);
(B) shall provide to individuals applying for the program
under this section, or reapplying at the end of their certification
period, written information about the medicaid program and referral to such program or to agencies authorized to determine
presumptive eligibility for such program, if such individuals are
not participating in such program and appear to have family
income below the applicable maximum income limits for such
program; and
(C) may provide a local agency with materials describing
other programs for which a participant in the program may be
eligible.
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(5) Each local agency shall maintain and make available for
distribution a list of local resources for substance abuse counseling
and treatment.
(f)(1)(A) Each State agency shall submit to the Secretary, by a
date specified by the Secretary, an initial date specified by the Secretary, a plan of operation and administration for a fiscal year.
After submitting the initial plan, a State shall be required to submit to the Secretary for approval only a substantive change in the
plan.
(B) To be eligible to receive funds under this section for a fiscal
year, a State agency must receive the approval of the Secretary for
the plan submitted for the fiscal year.
(C) The plan shall include—
(i) a description of the food delivery system of the State
agency and the method of enabling participants to receive supplemental foods under the program at any of the authorized retail stores under the program, to be administered in accordance
with standards developed by the Secretary, including a description of the State agency’s vendor peer group system, competitive price criteria, and allowable reimbursement levels that
demonstrate that the State is in compliance with the cost-containment provisions in subsection (h)(11);
(ii) procedures for accepting and processing vendor applications outside of the established timeframes if the State agency
determines there will be inadequate access to the program, including in a case in which a previously authorized vendor sells
a store under circumstances that do not permit timely notification to the State agency of the change in ownership;
(iii) a description of the financial management system of
the State agency;
(iv) a plan to coordinate operations under the program with
other services or programs that may benefit participants in,
and applicants for, the program;
(v) a plan to provide program benefits under this section to,
and to meet the special nutrition education needs of, eligible
migrants, homeless individuals, and Indians;
(vi) a plan to expend funds to carry out the program during
the relevant fiscal year;
(vii) a plan to provide program benefits under this section
to unserved and underserved areas in the State (including a
plan to improve access to the program for participants and prospective applicants who are employed, or who reside in rural
areas), if sufficient funds are available to carry out this clause;
(viii) a plan for reaching and enrolling eligible women in
the early months of pregnancy, including provisions to reach
and enroll eligible migrants;
(ix) a plan to provide program benefits under this section
to unserved infants and children under the care of foster parents, protective services, or child welfare authorities, including
infants exposed to drugs perinatally;
(x) a plan to provide nutrition education and promote
breastfeeding; and
(xi) such other information as the Secretary may reasonably require.
(D) The Secretary may not approve any plan that permits a
person to participate simultaneously in both the program authorOctober 21, 2009

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ized under this section and the commodity supplemental food program authorized under sections 4 and 5 of the Agriculture and Consumer Protection Act of 1973 (7 U.S.C. 612c note).
(2) A State agency shall establish a procedure under which
members of the general public are provided an opportunity to comment on the development of the State agency plan.
(3) The Secretary shall establish procedures under which eligible migrants may, to the maximum extent feasible, continue to participate in the program under this section when they are present
in States other than the State in which they were originally certified for participation in the program and shall ensure that local
programs provide priority consideration to serving migrant participants who are residing in the State for a limited period of time.
Each State agency shall be responsible for administering the program for migrant populations within its jurisdiction.
(4) State agencies shall submit monthly financial reports and
participation data to the Secretary.
(5) State and local agencies operating under the program shall
keep such accounts and records, including medical records, as may
be necessary to enable the Secretary to determine whether there
has been compliance with this section and to determine and evaluate the benefits of the nutritional assistance provided under this
section. Such accounts and records shall be available at any reasonable time for inspection and audit by representatives of the Secretary and shall be preserved for such period of time, not in excess
of five years, as the Secretary determines necessary.
(6)(A) Local agencies participating in the program under this
section shall notify persons of their eligibility or ineligibility for the
program within twenty days of the date that the household, during
office hours of a local agency, personally makes an oral or written
request to participate in the program. The Secretary shall establish
a shorter notification period for categories of persons who, due to
special nutritional risk conditions, must receive benefits more expeditiously.
(B) State agencies may provide for the delivery of vouchers to
any participant who is not scheduled for nutrition education counseling or a recertification interview through means, such as mailing, that do not require the participant to travel to the local agency
to obtain vouchers. The State agency shall describe any plans for
issuance of vouchers by mail in its plan submitted under paragraph
(1). The Secretary may disapprove a State plan with respect to the
issuance of vouchers by mail in any specified jurisdiction or part of
a jurisdiction within a State only if the Secretary finds that such
issuance would pose a significant threat to the integrity of the program under this section in such jurisdiction or part of a jurisdiction.
(7)(A) The State agency shall, in cooperation with participating
local agencies, publicly announce and distribute information on the
availability of program benefits (including the eligibility criteria for
participation and the location of local agencies operating the program) to offices and organizations that deal with significant numbers of potentially eligible individuals (including health and medical
organizations, hospitals and clinics, welfare and unemployment offices, social service agencies, farmworker organizations, Indian tribal organizations, organizations and agencies serving homeless individuals and shelters for victims of domestic violence, and religious
and community organizations in low income areas).
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(B) The information shall be publicly announced by the State
agency and by local agencies at least annually.
(C) The State agency and local agencies shall distribute the information in a manner designed to provide the information to potentially eligible individuals who are most in need of the benefits,
including pregnant women in the early months of pregnancy.
(D) Each local agency operating the program within a hospital
and each local agency operating the program that has a cooperative
arrangement with a hospital shall—
(i) advise potentially eligible individuals that receive inpatient or outpatient prenatal, maternity, or postpartum services,
or accompany a child under the age of 5 who receives well-child
services, of the availability of program benefits; and
(ii) to the extent feasible, provide an opportunity for individuals who may be eligible to be certified within the hospital
for participation in such program.
(8)(A) The State agency shall grant a fair hearing, and a
prompt determination thereafter, in accordance with regulations
issued by the Secretary, to any applicant, participant, or local agency aggrieved by the action of a State or local agency as it affects
participation.
(B) Any State agency that must suspend or terminate benefits
to any participant during the participant’s certification period due
to a shortage of funds for the program shall first issue a notice to
such participant.
(9) If an individual certified as eligible for participation in the
program under this section in one area moves to another area in
which the program is operating, that individual’s certification of eligibility shall remain valid for the period for which the individual
was originally certified.
(10) The Secretary shall establish standards for the proper, efficient, and effective administration of the program. If the Secretary
determines that a State agency has failed without good cause to administer the program in a manner consistent with this section or
to implement the approved plan of operation and administration
under this subsection, the Secretary may withhold such amounts of
the State agency’s funds for nutrition services and administration
as the Secretary deems appropriate. Upon correction of such failure
during a fiscal year by a State agency, any funds so withheld for
such fiscal year shall be provided the State agency.
(11) SUPPLEMENTAL FOODS.—
(A) IN GENERAL.—The Secretary shall prescribe by regulation the supplemental foods to be made available in the
program under this section.
(B) APPROPRIATE CONTENT.—To the degree possible,
the Secretary shall assure that the fat, sugar, and salt content of the prescribed foods is appropriate.
(C) ALLOWABLE USE OF FUNDS.—Subject to the availability of funds, the Secretary shall award grants to not
more than 10 local sites determined by the Secretary to be
geographically and culturally representative of State, local,
and Indian agencies, to evaluate the feasibility of including
fresh, frozen, or canned fruits and vegetables (to be made
available through private funds) as an addition to the supplemental foods prescribed under this section.
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(D) REVIEW OF AVAILABLE SUPPLEMENTAL FOODS.—As
frequently as determined by the Secretary to be necessary
to reflect the most recent scientific knowledge, the Secretary shall—
(i) conduct a scientific review of the supplemental
foods available under the program; and
(ii) amend the supplemental foods available, as
necessary, to reflect nutrition science, public health
concerns, and cultural eating patterns.
(12) A competent professional authority shall be responsible for
prescribing the appropriate supplemental foods, taking into account
medical and nutritional conditions and cultural eating patterns,
and, in the case of homeless individuals, the special needs and
problems of such individuals.
(13) The State agency may (A) provide nutrition education,
breastfeeding promotion, and drug abuse education materials and
instruction in languages other than English and (B) use appropriate
foreign language materials in the administration of the program, in
areas in which a substantial number of low-income households
speak a language other than English.
(14) If a State agency determines that a member of a family
has received an overissuance of food benefits under the program authorized by this section as the result of such member intentionally
making a false or misleading statement or intentionally misrepresenting, concealing, or withholding facts, the State agency shall recover, in cash, from such member an amount that the State agency
determines is equal to the value of the overissued food benefits, unless the State agency determines that the recovery of the benefits
would not be cost effective.
(15) To be eligible to participate in the program authorized by
this section, a manufacturer of infant formula that supplies formula
for the program shall—
(A) register with the Secretary of Health and Human Services under the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
321 et seq.); and
(B) before bidding for a State contract to supply infant formula for the program, certify with the State health department
that the formula complies with such Act and regulations issued
pursuant to such Act.
(16) The State agency may adopt methods of delivering benefits
to accommodate the special needs and problems of homeless individuals.
(17) Notwithstanding subsection (d)(2)(A)(i), not later than July
1 of each year, a State agency may implement income eligibility
guidelines under this section concurrently with the implementation
of income eligibility guidelines under the medicaid program established under title XIX of the Social Security Act (42 U.S.C. 1396 et
seq.).
(18) Each local agency participating in the program under this
section may provide information about other potential sources of
food assistance in the local area to individuals who apply in person
to participate in the program under this section, but who cannot be
served because the program is operating at capacity in the local
area.
(19) The State agency shall adopt policies that—
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(A) require each local agency to attempt to contact each
pregnant woman who misses an appointment to apply for participation in the program under this section, in order to reschedule the appointment, unless the phone number and the
address of the woman are unavailable to such local agency; and
(B) in the case of local agencies that do not routinely schedule appointments for individuals seeking to apply or be recertified for participation in the program under this section, require each such local agency to schedule appointments for each
employed individual seeking to apply or be recertified for participation in such program so as to minimize the time each
such individual is absent from the workplace due to such application or request for recertification.
(20) Each State agency shall conduct monitoring reviews of
each local agency at least biennially.
(21) USE OF CLAIMS FROM LOCAL AGENCIES, VENDORS, AND
PARTICIPANTS.—A State agency may use funds recovered from
local agencies, vendors, and participants, as a result of a claim
arising under the program, to carry out the program during—
(A) the fiscal year in which the claim arises;
(B) the fiscal year in which the funds are collected; and
(C) the fiscal year following the fiscal year in which the
funds are collected.
(22) The Secretary and the Secretary of Health and Human
Services shall carry out an initiative to assure that, in a case in
which a State medicaid program uses coordinated care providers
under a contract entered into under section 1903(m), or a waiver
granted under section 1915(b), of the Social Security Act (42 U.S.C.
1396b(m) or 1396n(b)), coordination between the program authorized by this section and the medicaid program is continued,
including—
(A) the referral of potentially eligible women, infants, and
children between the 2 programs; and
(B) the timely provision of medical information related to
the program authorized by this section to agencies carrying out
the program.
(23) INDIVIDUALS PARTICIPATING AT MORE THAN ONE SITE.—
Each State agency shall implement a system designed by the
State agency to identify individuals who are participating at
more than one site under the program.
(24) HIGH RISK VENDORS.—Each State agency shall—
(A) identify vendors that have a high probability of
program abuse; and
(B) conduct compliance investigations of the vendors.
(25) INFANT FORMULA BENEFITS.—A State agency may
round up to the next whole can of infant formula to allow all
participants under the program to receive the full-authorized
nutritional benefit specified by regulation.
(26) NOTIFICATION OF VIOLATIONS.—If a State agency finds
that a vendor has committed a violation that requires a pattern
of occurrences in order to impose a penalty or sanction, the
State agency shall notify the vendor of the initial violation in
writing prior to documentation of another violation, unless the
State agency determines that notifying the vendor would compromise an investigation.
(g) AUTHORIZATION OF APPROPRIATIONS.—
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(1) IN GENERAL.—
(A) AUTHORIZATION.—There are authorized to be appropriated to carry out this section such sums as are necessary for each of fiscal years 2004 through 2009.
(B) ADVANCE APPROPRIATIONS; AVAILABILITY.—As authorized by section 3 of the Richard B. Russell National
School Lunch Act, appropriations to carry out the provisions of this section may be made not more than 1 year in
advance of the beginning of the fiscal year in which the
funds will become available for disbursement to the States,
and shall remain available for the purposes for which appropriated until expended.
(2)(A) Notwithstanding any other provision of law, unless enacted in express limitation of this subparagraph, the Secretary—
(i) in the case of legislation providing funds through the
end of a fiscal year, shall issue—
(I) an initial allocation of funds provided by the enactment of such legislation not later than the expiration of the
15-day period beginning on the date of the enactment of
such legislation; and
(II) subsequent allocations of funds provided by the enactment of such legislation not later than the beginning of
each of the second, third, and fourth quarters of the fiscal
year; and
(ii) in the case of legislation providing funds for a period
that ends prior to the end of a fiscal year, shall issue an initial
allocation of funds provided by the enactment of such legislation not later than the expiration of the 10-day period beginning on the date of the enactment of such legislation.
(B) In any fiscal year—
(i) unused amounts from a prior fiscal year that are identified by the end of the first quarter of the fiscal year shall be
recovered and reallocated not later than the beginning of the
second quarter of the fiscal year; and
(ii) unused amounts from a prior fiscal year that are identified after the end of the first quarter of the fiscal year shall be
recovered and reallocated on a timely basis.
(3) Notwithstanding any other provision of law, unless enacted
in express limitation of this paragraph—
(A) the allocation of funds required by paragraph (2)(A)(i)(I)
shall include not less than 1⁄3 of the amounts appropriated by
the legislation described in such paragraph;
(B) the allocations of funds required by paragraph
(2)(A)(i)(II) to be made not later than the beginning of the second and third quarters of the fiscal year shall each include not
less than 1⁄4 of the amounts appropriated by the legislation described in such paragraph; and
(C) in the case of the enactment of legislation providing appropriations for a period of not more than 4 months, the allocation of funds required by paragraph (2)(A)(ii) shall include all
amounts appropriated by such legislation except amounts reserved by the Secretary for purposes of carrying out paragraph
(5).
(4) Of the sums appropriated for any fiscal year for programs
authorized under this section, not less than nine-tenths of 1 percent
shall be available first for services to eligible members of migrant
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populations. The migrant services shall be provided in a manner
consistent with the priority system of a State for program participation.
(5) Of the sums appropriated for any fiscal year for the program under this section, one-half of 1 percent, not to exceed
$5,000,000, shall be available to the Secretary for the purpose of
evaluating program performance, evaluating health benefits, preparing reports on program participant characteristics, providing
technical assistance to improve State agency administrative systems, administration of pilot projects, including projects designed to
meet the special needs of migrants, Indians, and rural populations,
and carrying out technical assistance and research evaluation
projects of the programs under this section.
(h)(1)(A) Each fiscal year, the Secretary shall make available,
from amounts appropriated for such fiscal year under subsection
(g)(1) and amounts remaining from amounts appropriated under
such subsection for the preceding fiscal year, an amount sufficient
to guarantee a national average per participant grant to be allocated among State agencies for costs of nutrition services and administration incurred by State and local agencies for such year.
(B)(i) The amount of the national average per participant grant
for nutrition services and administration for any fiscal year shall be
an amount equal to the amount of the national average per participant grant for nutrition services and administration issued the preceding fiscal year, as adjusted.
(ii) Such adjustment, for any fiscal year, shall be made by revising the national average per participant grant for nutrition services and administration for the preceding fiscal year to reflect the
percentage change between—
(I) the value of the index for State and local government
purchases, as published by the Bureau of Economic Analysis of
the Department of Commerce, for the 12-month period ending
June 30 of the second preceding fiscal year; and
(II) the best estimate that is available as of the start of the
fiscal year of the value of such index for the 12-month period
ending June 30 of the previous fiscal year.
(C) REMAINING AMOUNTS.—
(i) IN GENERAL.—Except as provided in clause (ii),
in any fiscal year, amounts remaining from amounts
appropriated for such fiscal year under subsection
(g)(1) and from amounts appropriated under such section for the preceding fiscal year, after carrying out
subparagraph (A), shall be made available for food
benefits under this section, except to the extent that
such amounts are needed to carry out the purposes of
subsections (g)(4) and (g)(5).
(ii) BREAST PUMPS.—A State agency may use
amounts made available under clause (i) for the purchase of breast pumps.
(2)(A) The Secretary shall allocate to each State agency from
the amount described in paragraph (1)(A) an amount for costs of
nutrition services and administration on the basis of a formula prescribed by the Secretary. Such formula—
(i) shall be designed to take into account—
(I) the varying needs of each State;
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(II) the number of individuals participating in each
State; and
(III) other factors which serve to promote the proper,
efficient, and effective administration of the program under
this section;
(ii) shall provide for each State agency—
(I) an estimate of the number of participants for the
fiscal year involved; and
(II) a per participant grant for nutrition services and
administration for such year;
(iii) shall provide for a minimum grant amount for State
agencies; and
(iv) may provide funds to help defray reasonable anticipated expenses associated with innovations in cost containment
or associated with procedures that tend to enhance competition.
(B)(i) Except as provided in clause (ii) and subparagraph (C),
in any fiscal year, the total amount allocated to a State agency for
costs of nutrition services and administration under the formula
prescribed by the Secretary under subparagraph (A) shall constitute
the State agency’s operational level for such costs for such year
even if the number of participants in the program at such agency
is lower than the estimate provided under subparagraph (A)(ii)(I).
(ii) If a State agency’s per participant expenditure for nutrition
services and administration is more than 10 percent (except that
the Secretary may establish a higher percentage for State agencies
that are small) higher than its per participant grant for nutrition
services and administration without good cause, the Secretary may
reduce such State agency’s operational level for costs of nutrition
services and administration.
(C) In any fiscal year, the Secretary may reallocate amounts
provided to State agencies under subparagraph (A) for such fiscal
year. When reallocating amounts under the preceding sentence, the
Secretary may provide additional amounts to, or recover amounts
from, any State agency.
(3)(A) Except as provided in subparagraphs (B) and (C), in each
fiscal year, each State agency shall expend—
(i) for nutrition education activities and breastfeeding promotion and support activities, an aggregate amount that is not
less than the sum of—
(I) 1⁄6 of the amounts expended by the State for costs
of nutrition services and administration; and
(II) except as otherwise provided in subparagraphs (F)
and (G), an amount equal to a proportionate share of the
national minimum breastfeeding promotion expenditure, as
described in subparagraph (E), with each State’s share determined on the basis of the number of pregnant women
and breastfeeding women in the program in the State as
a percentage of the number of pregnant women and
breastfeeding women in the program in all States; and
(ii) for breastfeeding promotion and support activities an
amount that is not less than the amount determined for such
State under clause (i)(II).
(B) The Secretary may authorize a State agency to expend an
amount less than the amount described in subparagraph (A)(ii) for
purposes of breastfeeding promotion and support activities if—
(i) the State agency so requests; and
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(ii) the request is accompanied by documentation that
other funds will be used to conduct nutrition education activities at a level commensurate with the level at which such activities would be conducted if the amount described in subparagraph (A)(ii) were expended for such activities.
(C) The Secretary may authorize a State agency to expend for
purposes of nutrition education an amount that is less than the difference between the aggregate amount described in subparagraph
(A) and the amount expended by the State for breastfeeding promotion and support programs if—
(i) the State agency so requests; and
(ii) the request is accompanied by documentation that
other funds will be used to conduct such activities.
(D) The Secretary shall limit to a minimal level any documentation required under this paragraph.
(E) For each fiscal year, the national minimum breastfeeding
promotion expenditure means an amount that is—
(i) equal to $21 multiplied by the number of pregnant
women and breastfeeding women participating in the program
nationwide, based on the average number of pregnant women
and breastfeeding women so participating during the last 3
months for which the Secretary has final data; and
(ii) adjusted for inflation on October 1, 1996, and each October 1 thereafter, in accordance with paragraph (1)(B)(ii).
(4) The Secretary shall—
(A) in consultation with the Secretary of Health and
Human Services, develop a definition of breastfeeding for the
purposes of the program under this section;
(B) authorize the purchase of breastfeeding aids by State
and local agencies as an allowable expense under nutrition
services and administration;
(C) require each State agency to designate an agency staff
member to coordinate breastfeeding promotion efforts identified
in the State plan of operation and administration;
(D) require the State agency to provide training on the promotion and management of breastfeeding to staff members of
local agencies who are responsible for counseling participants
in the program under this section concerning breastfeeding;
(E) not later than 1 year after the date of enactment of this
subparagraph, develop uniform requirements for the collection
of data regarding the incidence and duration of breastfeeding
among participants in the program; and
(F) partner with communities, State and local agencies,
employers, health care professionals, and other entities in
the private sector to build a supportive breastfeeding environment for women participating in the program under
this section to support the breastfeeding goals of the
Healthy People 2010 initiative.
(5)(A) Subject to subparagraph (B), in any fiscal year that a
State agency submits a plan to reduce average food costs per participant and to increase participation above the level estimated for the
State agency, the State agency may, with the approval of the Secretary, convert amounts allocated for food benefits for such fiscal
year for costs of nutrition services and administration to the extent
that such conversion is necessary—
(i) to cover allowable expenditures in such fiscal year; and
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(ii) to ensure that the State agency maintains the level established for the per participant grant for nutrition services
and administration for such fiscal year.
(B) If a State agency increases its participation level through
measures that are not in the nutritional interests of participants or
not otherwise allowable (such as reducing the quantities of foods
provided for reasons not related to nutritional need), the Secretary
may refuse to allow the State agency to convert amounts allocated
for food benefits to defray costs of nutrition services and administration.
(C) For the purposes of this paragraph, the term ‘‘acceptable
measures’’ includes use of cost containment measures, curtailment
of vendor abuse, and breastfeeding promotion activities.
(D) REMOTE INDIAN OR NATIVE VILLAGES.—For noncontiguous States containing a significant number of remote Indian or Native villages, a State agency may convert
amounts allocated for food benefits for a fiscal year to the
costs of nutrition services and administration to the extent
that the conversion is necessary to cover expenditures incurred in providing services (including the full cost of air
transportation and other transportation) to remote Indian
or Native villages and to provide breastfeeding support in
remote Indian or Native villages.
(6) In each fiscal year, each State agency shall provide, from
the amounts allocated to such agency for such year for costs of nutrition services and administration, an amount to each local agency
for its costs of nutrition services and administration. The amount
to be provided to each local agency under the preceding sentence
shall be determined under allocation standards developed by the
State agency in cooperation with the several local agencies, taking
into account factors deemed appropriate to further proper, efficient,
and effective administration of the program, such as—
(A) local agency staffing needs;
(B) density of population;
(C) number of individuals served; and
(D) availability of administrative support from other
sources.
(7) The State agency may provide in advance to any local agency any amounts for nutrition services and administration deemed
necessary for successful commencement or significant expansion of
program operations during a reasonable period following approval
of—
(A) a new local agency;
(B) a new cost containment measure; or
(C) a significant change in an existing cost containment
measure.
(8)(A)(i) Except as provided in subparagraphs (B) and (C)(iii),
any State that provides for the purchase of foods under the program at retail grocery stores shall, with respect to the procurement
of infant formula, use—
(I) a competitive bidding system; or
(II) any other cost containment measure that yields savings
equal to or greater than savings generated by a competitive
bidding system when such savings are determined by comparing the amounts of savings that would be provided over the
full term of contracts offered in response to a single invitation
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to submit both competitive bids and bids for other cost containment systems for the sale of infant formula.
(ii) In determining whether a cost containment measure other
than competitive bidding yields equal or greater savings, the State,
in accordance with regulations issued by the Secretary, may take
into account other cost factors (in addition to rebate levels and procedures for adjusting rebate levels when wholesale price levels
change), such as—
(I) the number of infants who would not be expected to receive the primary contract infant formula under a competitive
bidding system;
(II) the number of cans of infant formula for which no rebate would be provided under another rebate system; and
(III) differences in administrative costs relating to the implementation of the various cost containment systems (such as
costs of converting a computer system for the purpose of operating a cost containment system and costs of preparing participants for conversion to a new or alternate cost containment
system).
(iii) COMPETITIVE BIDDING SYSTEM.—A State agency using a competitive bidding system for infant formula shall award contracts to bidders offering the lowest net price for a specific infant formula for which
manufacturers submit a bid unless the State agency
demonstrates to the satisfaction of the Secretary that
the weighted average retail price for different brands
of infant formula in the State does not vary by more
than 5 percent.
(iv) SIZE OF STATE ALLIANCES.—
(I) IN GENERAL.—Except as provided in subclauses (II) through (IV), no State alliance may
exist among States if the total number of infants
served by States participating in the alliance as of
October 1, 2003, or such subsequent date determined by the Secretary for which data is available,
would exceed 100,000.
(II) ADDITION OF INFANT PARTICIPANTS.—In
the case of a State alliance that exists on the date
of enactment of this clause, the alliance may continue and may expand to serve more than 100,000
infants but, except as provided in subclause (III),
may not expand to include any additional State
agency.
(III) ADDITION OF SMALL STATE AGENCIES AND
INDIAN STATE AGENCIES.—Any State alliance may
expand to include any State agency that served
less than 5,000 infant participants as of October 1,
2003, or such subsequent date determined by the
Secretary for which data is available, or any Indian State agency, if the State agency or Indian
State agency requests to join the State alliance.
(IV) SECRETARIAL WAIVER.—The Secretary
may waive the requirements of this clause not earlier than 30 days after submitting to the Committee on Education and the Workforce of the
House of Representatives and the Committee on
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Agriculture, Nutrition, and Forestry of the Senate
a written report that describes the cost-containment and competitive benefits of the proposed
waiver.
(v) FIRST CHOICE OF ISSUANCE.—The State agency
shall use the primary contract infant formula as the
first choice of issuance (by formula type), with all other
infant formulas issued as an alternative to the primary
contract infant formula.
(vi) REBATE INVOICES.—Effective beginning October 1, 2004, each State agency shall have a system to
ensure that infant formula rebate invoices, under competitive bidding, provide a reasonable estimate or an
actual count of the number of units sold to participants
in the program under this section.
(vii) SEPARATE SOLICITATIONS.—In soliciting bids
for infant formula under a competitive bidding system,
any State agency, or State alliance, that served under
the program a monthly average of more than 100,000
infants during the preceding 12-month period shall solicit bids from infant formula manufacturers under
procedures that require that bids for rebates or discounts are solicited for milk-based and soy-based infant formula separately.
(viii) CENT-FOR-CENT ADJUSTMENTS.—A bid solicitation for infant formula under the program shall require the manufacturer to adjust for price changes subsequent to the opening of the bidding process in a
manner that requires—
(I) a cent-for-cent increase in the rebate
amounts if there is an increase in the lowest national wholesale price for a full truckload of the
particular infant formula; and
(II) a cent-for-cent decrease in the rebate
amounts if there is a decrease in the lowest national wholesale price for a full truckload of the
particular infant formula.
(ix) LIST OF INFANT FORMULA WHOLESALERS, DISTRIBUTORS, RETAILERS, AND MANUFACTURERS.—The
State agency shall maintain a list of—
(I) infant formula wholesalers, distributors,
and retailers licensed in the State in accordance
with State law (including regulations); and
(II) infant formula manufacturers registered
with the Food and Drug Administration that provide infant formula.
(x) PURCHASE REQUIREMENT.—A vendor authorized
to participate in the program under this section shall
only purchase infant formula from the list described in
clause (ix).
(B)(i) The Secretary shall waive the requirement of subparagraph (A) in the case of any State that demonstrates to the Secretary that—
(I) compliance with subparagraph (A) would be inconsistent
with efficient or effective operation of the program operated by
such State under this section; or
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(II) the amount by which the savings yielded by an alternative cost containment system would be less than the savings
yielded by a competitive bidding system is sufficiently minimal
that the difference is not significant.
(ii) The Secretary shall prescribe criteria under which a waiver
may be granted pursuant to clause (i).
(iii) The Secretary shall provide information on a timely basis
to the Committee on Education and Labor of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate on waivers that have been granted under clause
(i).
(C)(i) The Secretary shall provide technical assistance to small
Indian State agencies carrying out this paragraph in order to assist
such agencies to achieve the maximum cost containment savings
feasible.
(ii) The Secretary shall also provide technical assistance, on request, to State agencies that desire to consider a cost containment
system that covers more than 1 State agency.
(iii) The Secretary may waive the requirement of subparagraph
(A) in the case of any Indian State agency that has not more than
1,000 participants.
(D) No State may enter into a cost containment contract (in
this subparagraph referred to as the original contract’’) that prescribes conditions that would void, reduce the savings under, or otherwise limit the original contract if the State solicited or secured
bids for, or entered into, a subsequent cost containment contract to
take effect after the expiration of the original contract.
(E) The Secretary shall offer to solicit bids on behalf of State
agencies regarding cost-containment contracts to be entered into by
infant formula manufacturers and State agencies. The Secretary
shall make the offer to State agencies once every 12 months. Each
such bid solicitation shall only take place if two or more State agencies request the Secretary to perform the solicitation. For such
State agencies, the Secretary shall solicit bids and select the winning bidder for a cost containment contract to be entered into by
State agencies and infant formula manufacturers or suppliers.
(F) In soliciting bids for contracts for infant formula for the program authorized by this section, the Secretary shall solicit bids
from infant formula manufacturers under procedures in which bids
for rebates or discounts are solicited for milk-based and soy-based
infant formula, separately, except where the Secretary determines
that such solicitation procedures are not in the best interest of the
program.
(G) To reduce the costs of any supplemental foods, the Secretary may make available additional funds to State agencies out
of the funds otherwise available under paragraph (1)(A) for nutrition services and administration in an amount not exceeding one
half of 1 percent of the amounts to help defray reasonable anticipated expenses associated with innovations in cost containment or
associated with procedures that tend to enhance competition.
(H)(i) Any person, company, corporation, or other legal entity
that submits a bid to supply infant formula to carry out the program authorized by this section and announces or otherwise discloses the amount of the bid, or the rebate or discount practices of
such entities, in advance of the time the bids are opened by the Secretary or the State agency, or any person, company, corporation, or
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other legal entity that makes a statement (prior to the opening of
bids) relating to levels of rebates or discounts, for the purpose of influencing a bid submitted by any other person, shall be ineligible
to submit bids to supply infant formula to the program for the bidding in progress for up to 2 years from the date the bids are opened
and shall be subject to a civil penalty of up to $100,000,000, as determined by the Secretary to provide restitution to the program for
harm done to the program. The Secretary shall issue regulations
providing such person, company, corporation, or other legal entity
appropriate notice, and an opportunity to be heard and to respond
to charges.
(ii) The Secretary shall determine the length of the disqualification, and the amount of the civil penalty referred to in clause (i)
based on such factors as the Secretary by regulation determines appropriate.
(iii) Any person, company, corporation, or other legal entity disqualified under clause (i) shall remain obligated to perform any requirements under any contract to supply infant formula existing at
the time of the disqualification and until each such contract expires
by its terms.
(I) Not later than the expiration of the 180-day period beginning on the date of enactment of this subparagraph, the Secretary
shall prescribe regulations to carry out this paragraph.
(J) A State shall not incur any interest liability to the Federal
Government on rebate funds for infant formula and other foods if
all interest earned by the State on the funds is used for program
purposes.
(9) For purposes of this subsection, the term ‘‘cost containment
measure’’ means a competitive bidding, rebate, direct distribution,
or home delivery system implemented by a State agency as described in its approved plan of operation and administration.
(10) FUNDS FOR INFRASTRUCTURE, MANAGEMENT INFORMATION SYSTEMS, AND SPECIAL NUTRITION EDUCATION.—
(A) IN GENERAL.—For each of fiscal years 2006 through
2009, the Secretary shall use for the purposes specified in
subparagraph (B), $64,000,000 or the amount of nutrition
services and administration funds and supplemental food
funds for the prior fiscal year that have not been obligated,
whichever is less.
(B) PURPOSES.—Of the amount made available under
subparagraph (A) for a fiscal year, not more than—
(i) $14,000,000 shall be used for—
(I) infrastructure for the program under this
section;
(II) special projects to promote breastfeeding,
including projects to assess the effectiveness of
particular breastfeeding promotion strategies; and
(III) special State projects of regional or national significance to improve the services of the
program;
(ii) $30,000,000 shall be used to establish, improve,
or administer management information systems for the
program, including changes necessary to meet new legislative or regulatory requirements of the program; and
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(iii) $20,000,000 shall be used for special nutrition
education such as breast feeding peer counselors and
other related activities.
(C) PROPORTIONAL DISTRIBUTION.—In a case in which
less than $64,000,000 is available to carry out this paragraph, the Secretary shall make a proportional distribution
of funds allocated under subparagraph (B).
(11) VENDOR COST CONTAINMENT.—
(A) PEER GROUPS.—
(i) IN GENERAL.—The State agency shall—
(I) establish a vendor peer group system;
(II) in accordance with subparagraphs (B) and
(C), establish competitive price criteria and allowable reimbursement levels for each vendor peer
group; and
(III) if the State agency elects to authorize any
types of vendors described in subparagraph
(D)(ii)(I)—
(aa) distinguish between vendors described in subparagraph (D)(ii)(I) and other
vendors by establishing—
(AA) separate peer groups for vendors
described in subparagraph (D)(ii)(I);or
(BB) distinct competitive price criteria
and allowable reimbursement levels for
vendors
described
in
subparagraph
(D)(ii)(I) within a peer group that contains
both vendors described in subparagraph
(D)(ii)(I) and other vendors; and
(bb) establish competitive price criteria
and allowable reimbursement levels that comply with subparagraphs (B) and (C), respectively, and that do not result in higher food
costs if program participants redeem supplemental food vouchers at vendors described in
subparagraph (D)(ii)(I) rather than at vendors
other than vendors described in subparagraph
(D)(ii)(I).
Nothing in this paragraph shall be construed to compel a State
agency to achieve lower food costs if program participants redeem supplemental food vouchers at vendors described in subparagraph (D)(ii)(I) rather than at vendors other than vendors
described in subparagraph (D)(ii)(I).
(ii) EXEMPTIONS.—The Secretary may exempt from
the requirements of clause (i)—
(I) a State agency that elects not to authorize
any types of vendors described in subparagraph
(D)(ii)(I) and that demonstrates to the Secretary
that—
(aa) compliance with clause (i) would be
inconsistent with efficient and effective operation of the program administered by the
State under this section; or
(bb) an alternative cost-containment system would be as effective as a vendor peer
group system; or
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(II) a State agency—
(aa) in which the sale of supplemental
foods that are obtained with food instruments
from vendors described in subparagraph
(D)(ii)(I) constituted less than 5 percent of
total sales of supplemental foods that were obtained with food instruments in the State in
the year preceding a year in which the exemption is effective; and
(bb) that demonstrates to the Secretary
that an alternative cost-containment system
would be as effective as the vendor peer group
system and would not result in higher food
costs if program participants redeem supplemental food vouchers at vendors described in
subparagraph (D)(ii)(I) rather than at vendors
other than vendors described in subparagraph
(D)(ii)(I).
(B) COMPETITIVE PRICING.—
(i) IN GENERAL.—The State agency shall establish
competitive price criteria for each peer group for the
selection of vendors for participation in the program
that—
(I) ensure that the retail prices charged by
vendor applicants for the program are competitive
with the prices charged by other vendors; and
(II) consider—
(aa) the shelf prices of the vendor for all
buyers; or
(bb) the prices that the vendor bid for supplemental foods, which shall not exceed the
shelf prices of the vendor for all buyers.
(ii) PARTICIPANT ACCESS.—In establishing competitive price criteria, the State agency shall consider participant access by geographic area.
(iii) SUBSEQUENT PRICE INCREASES.—The State
agency shall establish procedures to ensure that a retail store selected for participation in the program does
not, subsequent to selection, increase prices to levels
that would make the store ineligible for selection to
participate in the program.
(C) ALLOWABLE REIMBURSEMENT LEVELS.—
(i) IN GENERAL.—The State agency shall establish
allowable reimbursement levels for supplemental foods
for each vendor peer group that ensure—
(I) that payments to vendors in the vendor
peer group reflect competitive retail prices; and
(II) that the State agency does not reimburse
a vendor for supplemental foods at a level that
would make the vendor ineligible for authorization
under the criteria established under subparagraph
(B).
(ii) PRICE FLUCTUATIONS.—The allowable reimbursement levels may include a factor to reflect fluctuations in wholesale prices.
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(iii) PARTICIPANT ACCESS.—In establishing allowable reimbursement levels, the State agency shall consider participant access in a geographic area.
(D) EXEMPTIONS.—The State agency may exempt from
competitive price criteria and allowable reimbursement levels established under this paragraph—
(i) pharmacy vendors that supply only exempt infant formula or medical foods that are eligible under
the program; and
(ii) vendors—
(I)(aa) for which more than 50 percent of the
annual revenue of the vendor from the sale of food
items consists of revenue from the sale of supplemental foods that are obtained with food instruments; or
(bb) who are new applicants likely to meet the
criteria of item (aa) under criteria approved by the
Secretary; and
(II) that are nonprofit.
(E) COST CONTAINMENT.—If a State agency elects to
authorize any types of vendors described in subparagraph
(D)(ii)(I), the State agency shall demonstrate to the Secretary, and the Secretary shall certify, that the competitive
price criteria and allowable reimbursement levels established under this paragraph for vendors described in subparagraph (D)(ii)(I) do not result in average payments per
voucher to vendors described in subparagraph (D)(ii)(I)
that are higher than average payments per voucher to comparable vendors other than vendors described in subparagraph (D)(ii)(I).
(F) LIMITATION ON PRIVATE RIGHTS OF ACTION.—Nothing in this paragraph may be construed as creating a private right of action.
(G) IMPLEMENTATION.—A State agency shall comply
with this paragraph not later than 18 months after the
date of enactment of this paragraph.
(12) IMPOSITION OF COSTS ON RETAIL STORES.—The Secretary may not impose, or allow a State agency to impose, the
costs of any equipment, system, or processing required for electronic benefit transfers on any retail store authorized to transact food instruments, as a condition for authorization or participation in the program.
(13) UNIVERSAL PRODUCT CODES DATABASE.—The Secretary
shall—
(A) establish a national universal product code database for use by all State agencies in carrying out the program; and
(B) make available from appropriated funds such sums
as are required for hosting, hardware and software configuration, and support of the database.
(14) INCENTIVE ITEMS.—A State agency shall not authorize
or make payments to a vendor described in paragraph
(11)(D)(ii)(I) that provides incentive items or other free merchandise, except food or merchandise of nominal value (as determined by the Secretary), to program participants unless the
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vendor provides to the State agency proof that the vendor obtained the incentive items or merchandise at no cost.
(i)(1) By the beginning of each fiscal year, the Secretary shall
divide, among the State agencies, the amounts made available for
food benefits under subsection (h)(1)(C) on the basis of a formula
determined by the Secretary.
(2) Each State agency’s allocation, as so determined, shall constitute the State agency’s authorized operational level for that year,
except that the Secretary shall reallocate funds periodically if the
Secretary determines that a State agency is unable to spend its allocation.
(3)(A) Notwithstanding paragraph (2) and subject to subparagraph (B)—
(i)(I) not more than 1 percent (except as provided in subparagraph (C)) of the amount of funds allocated to a State
agency under this section for supplemental foods for a fiscal
year may be expended by the State agency for allowable expenses incurred under this section for supplemental foods during the preceding fiscal year; and
(II) not more than 1 percent of the amount of funds allocated to a State agency under this section for nutrition services
and administration for a fiscal year may be expended by the
State agency for allowable expenses incurred under this section
for supplemental foods and nutrition services and administration during the preceding fiscal year; and
(ii)(I) for each fiscal year, of the amounts allocated to a
State agency for nutrition services and administration, an
amount equal to not more than 3 percent of the amount allocated to the State agency under this section for the fiscal year
may be expended by the State agency for allowable expenses
incurred under this section for nutrition services and administration during the subsequent fiscal year; and
(II) for each fiscal year, of the amounts allocated to a State
agency for nutrition services and administration, an amount
equal to not more than 1⁄2 of 1 percent of the amount allocated
to the State agency under this section for the fiscal year may
be expended by the State agency, with the prior approval of the
Secretary, for the development of a management information
system, including an electronic benefit transfer system, during
the subsequent fiscal year.
(B) Any funds made available to a State agency in accordance
with subparagraph (A)(ii) for a fiscal year shall not affect the
amount of funds allocated to the State agency for such year.
(C) The Secretary may authorize a State agency to expend not
more than 3 percent of the amount of funds allocated to a State
under this section for supplemental foods for a fiscal year for expenses incurred under this section for supplemental foods during
the preceding fiscal year, if the Secretary determines that there has
been a significant reduction in infant formula cost containment savings provided to the State agency that would affect the ability of
the State agency to at least maintain the level of participation by
eligible participants served by the State agency.
(4) For purposes of the formula, if Indians are served by the
health department of a State, the formula shall be based on the
State population inclusive of the Indians within the State boundaries.
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(5) If Indians residing in the State are served by a State agency
other than the health department of the State, the population of the
tribes within the jurisdiction of the State being so served shall not
be included in the formula for such State, and shall instead be included in the formula for the State agency serving the Indians.
(6) Notwithstanding any other provision of this section, the Secretary may use a portion of a State agency’s allocation to purchase
supplemental foods for donation to the State agency under this section.
(7) In addition to any amounts expended under paragraph
(3)(A)(i), any State agency using cost containment measures as defined in subsection (h)(9) may temporarily use amounts made available to such agency for the first quarter of a fiscal year to defray
expenses for costs incurred during the final quarter of the preceding
fiscal year. In any fiscal year, any State agency that uses amounts
made available for a succeeding fiscal year under the authority of
the preceding sentence shall restore or reimburse such amounts
when such agency receives payment as a result of its cost containment measures for such expenses.
(j)(1) The Secretary and the Secretary of Health and Human
Services (referred to in this subsection as the ‘‘Secretaries’’) shall
jointly establish and carry out an initiative for the purpose of providing both supplemental foods and nutrition education under the
special supplemental nutrition program and health care services to
low-income pregnant, postpartum, and breastfeeding women, infants, and children at substantially more community health centers
and migrant health centers.
(2) The initiative shall also include—
(A) activities to improve the coordination of the provision
of supplemental foods and nutrition education under the special
supplemental nutrition program and health care services at facilities funded by the Indian Health Service; and
(B) the development and implementation of strategies to
ensure that, to the maximum extent feasible, new community
health centers, migrant health centers, and other federally supported health care facilities established in medically underserved areas provide supplemental foods and nutrition education under the special supplemental nutrition program.
(3) The initiative may include—
(A) outreach and technical assistance for State and local
agencies and the facilities described in paragraph (2)(A) and
the health centers and facilities described in paragraph (2)(B);
(B) demonstration projects in selected State or local areas;
and
(C) such other activities as the Secretaries find are appropriate.
(4) As used in this subsection:
(A) The term ‘‘community health center’’ has the meaning
given the term in section 330(a) of the Public Health Service
Act (42 U.S.C. 254c(a)).
(B) The term ‘‘migrant health center’’ has the meaning
given the term in section 329(a)(1) of such Act (42 U.S.C.
254b(a)(1)).
(k)(1) There is hereby established a National Advisory Council
on Maternal, Infant, and Fetal Nutrition (referred to in this subsection as the ‘‘Council’’) composed of 24 members appointed by the
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Secretary. One member shall be a State director of a program
under this section; one member shall be a State official responsible
for a commodity supplemental food program under section 1304 of
the Food and Agriculture Act of 1977 [(7 U.S.C. 612c note)]; one
member shall be a State fiscal officer of a program under this section (or the equivalent thereof); one member shall be a State health
officer (or the equivalent thereof); one member shall be a local agency director of a program under this section in an urban area; one
member shall be a local agency director of a program under this
section in a rural area; one member shall be a project director of
a commodity supplemental food program; one member shall be a
State public health nutrition director (or the equivalent thereof);
one member shall be a representative of an organization serving
migrants; one member shall be an official from a State agency predominantly serving Indians; three members shall be parent participants of a program under this section or of a commodity supplemental food program; one member shall be a pediatrician; one
member shall be an obstetrician; one member shall be a representative of a nonprofit public interest organization that has experience
with and knowledge of the special supplemental nutrition program;
one member shall be a person involved at the retail sales level of
food in the special supplemental nutrition program; two members
shall be officials of the Department of Health and Human Services
appointed by the Secretary of Health and Human Services; two
members shall be officials of the Department of Agriculture appointed by the Secretary; 1 member shall be an expert in the promotion of breast feeding; one member shall be an expert in drug
abuse education and prevention; and one member shall be an expert in alcohol abuse education and prevention.
(2) Members of the Council appointed from outside the Department of Agriculture and the Department of Health and Human
Services shall be appointed for terms not exceeding three years.
State and local officials shall serve only during their official tenure,
and the tenure of parent participants shall not exceed two years.
Persons appointed to complete an unexpired term shall serve only
for the remainder of such term.
(3) The Council shall elect a Chairman and a Vice Chairman.
The Council shall meet at the call of the Chairman, but shall meet
at least once a year. Eleven members shall constitute a quorum.
(4) The Secretary shall provide the Council with such technical
and other assistance, including secretarial and clerical assistance,
as may be required to carry out its functions.
(5) Members of the Council shall serve without compensation
but shall be reimbursed for necessary travel and subsistence expenses incurred by them in the performance of the duties of the
Council. Parent participant members of the Council, in addition to
reimbursement for necessary travel and subsistence, shall, at the
discretion of the Secretary, be compensated in advance for other
personal expenses related to participation on the Council, such as
child care expenses and lost wages during scheduled Council meetings.
(l) Foods available under section 416 of the Agriculture Act of
1949 [(7 U.S.C. 1431)], including, but not limited to, dry milk, or
purchased under section 32 of the Act of August 24, 1935 [(7 U.S.C.
612c)] may be donated by the Secretary, at the request of a State
agency, for distribution to programs conducted under this section.
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The Secretary may purchase and distribute, at the request of a
State agency, supplemental foods for donation to programs conducted under this section, with appropriated funds, including funds
appropriated under this section.
(m)(1) Subject to the availability of funds appropriated for the
purposes of this subsection, and as specified in this subsection, the
Secretary shall award grants to States that submit State plans that
are approved for the establishment or maintenance of programs designed to provide recipients of assistance under subsection (c), or
those who are on the waiting list to receive the assistance, with
coupons that may be exchanged for fresh, nutritious, unprepared
foods at farmers’ markets and (at the option of a State) roadside
stands, as defined in the State plans submitted under this subsection.
(2) A grant provided to any State under this subsection shall
be provided to the chief executive officer of the State, who shall—
(A) designate the appropriate State agency or agencies to
administer the program in conjunction with the appropriate
nonprofit organizations; and
(B) ensure coordination of the program among the appropriate agencies and organizations.
(3) The Secretary shall not make a grant to any State under
this subsection unless the State agrees to provide State, local, or
private funds for the program in an amount that is equal to not less
than 30 percent of the administrative cost of the program, which
may be satisfied from program income or State contributions that
are made for similar programs. The Secretary may negotiate with
an Indian State agency a lower percentage of matching funds than
is required under the preceding sentence, but not lower than 10
percent of the administrative cost of the program, if the Indian
State agency demonstrates to the Secretary financial hardship for
the affected Indian tribe, band, group, or council.
(4) Subject to paragraph (6), the Secretary shall establish a formula for determining the amount of the grant to be awarded under
this subsection to each State for which a State plan is approved
under paragraph (6), according to the number of recipients proposed
to participate as specified in the State plan. In determining the
amount to be awarded to new States, the Secretary shall rank order
the State plans according to the criteria of operation set forth in
this subsection, and award grants accordingly. The Secretary shall
take into consideration the minimum amount needed to fund each
approved State plan, and need not award grants to each State that
submits a State plan.
(5) Each State that receives a grant under this subsection shall
ensure that the program for which the grant is received complies
with the following requirements:
(A) Individuals who are eligible to receive Federal benefits
under the program shall only be individuals who are receiving
assistance under subsection (c), or who are on the waiting list
to receive the assistance.
(B) Construction or operation of a farmers’ market may not
be carried out using funds—
(i) provided under the grant; or
(ii) required to be provided by the State under paragraph (3).
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(C) The value of the Federal share of the benefits received
by any recipient under the program may not be—
(i) less than $10 per year; or
(ii) more than $30 per year.
(D) The coupon issuance process under the program shall
be designed to ensure that coupons are targeted to areas with—
(i) the highest concentration of eligible individuals;
(ii) the greatest access to farmers’ markets; and
(iii) certain characteristics, in addition to those described in clauses (i) and (ii), that are determined to be relevant by the Secretary and that maximize the availability
of benefits to eligible individuals.
(E) The coupon redemption process under the program
shall be designed to ensure that the coupons may be—
(i) redeemed only by producers authorized by the State
to participate in the program; and
(ii) redeemed only to purchase fresh nutritious unprepared food for human consumption.
(F)(i) Except as provided in clauses (ii) and (iii), the State
may use for administration of the program in any fiscal year
not more than 17 percent of the total amount of program funds.
(ii) During any fiscal year for which a State receives assistance under this subsection, the Secretary shall permit the
State to use not more than 2 percent of total program funds for
market development or technical assistance to farmers’ markets if the Secretary determines that the State intends to promote the development of farmers’ markets in socially or economically disadvantaged areas, or remote rural areas, where
individuals eligible for participation in the program have limited access to locally grown fruits and vegetables.
(iii) The provisions of clauses (i) and (ii) with respect to the
use of program funds shall not apply to any funds that a State
may contribute in excess of the funds used by the State to meet
the requirements of paragraph (3).
(G) The State shall ensure that no State or local taxes are
collected within the State on purchases of food with coupons
distributed under the program.
(6)(A) The Secretary shall give the same preference for funding
under this subsection to eligible States that participated in the program under this subsection in a prior fiscal year as to States that
participated in the program in the most recent fiscal year. The Secretary shall inform each State of the award of funds as prescribed
by subparagraph (G) by February 15 of each year.
(B)(i) Subject to the availability of appropriations, if a State
provides the amount of matching funds required under paragraph
(3), the State shall receive assistance under this subsection in an
amount that is not less than the amount of such assistance that the
State received in the most recent fiscal year in which it received
such assistance.
(ii) If amounts appropriated for any fiscal year pursuant to the
authorization contained in paragraph (10) for grants under this
subsection are not sufficient to pay to each State for which a State
plan is approved under paragraph (6) the amount that the Secretary determines each such State is entitled to under this subsection, each State’s grant shall be ratably reduced, except that (if
sufficient funds are available) each State shall receive at least
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$75,000 or the amount that the State received for the prior fiscal
year if that amount is less than $75,000.
(C) In providing funds to a State that received assistance under
this subsection in the previous fiscal year, the Secretary shall
consider—
(i) the availability of any such assistance not spent by the
State during the program year for which the assistance was received;
(ii) documentation that demonstrates that—
(I) there is a need for an increase in funds; and
(II) the use of the increased funding will be consistent
with serving nutritionally at-risk persons and expanding
the awareness and use of farmers’ markets;
(iii) demonstrated ability to satisfactorily operate the existing program; and
(iv) whether, in the case of a State that intends to use any
funding provided under subparagraph (G)(i) 17–2 to increase the
value of the Federal share of the benefits received by a recipient, the funding provided under subparagraph (G)(i) 17–2 will increase the rate of coupon redemption.
(D)(i) A State that desires to receive a grant under this subsection shall submit, for each fiscal year, a State plan to the Secretary by November 15 of each year.
(ii) Each State plan submitted under this paragraph shall
contain—
(I) the estimated cost of the program and the estimated
number of individuals to be served by the program;
(II) a description of the State plan for complying with the
requirements established in paragraph (5); and
(III) criteria developed by the State with respect to authorization of producers to participate in the program.
(iii) The criteria developed by the State as required by clause
(ii)(III) shall require any authorized producer to sell fresh nutritious unprepared foods (such as fruits and vegetables) to recipients,
in exchange for coupons distributed under the program.
(E) The Secretary shall establish objective criteria for the approval and ranking of State plans submitted under this paragraph.
(F)(i) An amount equal to 75 percent of the funds available
after satisfying the requirements of subparagraph (B) shall be made
available to States participating in the program whose State plan
is approved by the Secretary. If this amount is greater than that
necessary to satisfy the approved State plans, the unallocated
amount shall be applied toward satisfying any unmet need of States
that have not participated in the program in the prior fiscal year,
and whose State plans have been approved.
(ii) An amount equal to 25 percent of the funds available after
satisfying the requirements of subparagraph (B) shall be made
available to States that have not participated in the program in the
prior fiscal year, and whose State plans have been approved by the
Secretary. If this amount is greater than that necessary to satisfy
the approved State plans for new States, the unallocated amount
shall be applied toward satisfying any unmet need of States whose
State plans have been approved.
(iii) In any fiscal year, any funds that remain unallocated after
satisfying the requirements of clauses (i) and (ii) shall be reallo17–2 So

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in original. Probably should refer to ‘‘subparagraph (F)(i)’’ in both places.

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cated in the following fiscal year according to procedures established pursuant to paragraph (10)(B)(ii).
(7)(A) The value of the benefit received by any recipient under
any program for which a grant is received under this subsection
may not affect the eligibility or benefit levels for assistance under
other Federal or State programs.
(B) Any programs for which a grant is received under this subsection shall be supplementary to the supplemental nutrition assistance program carried out under the Food and Nutrition Act of 2008
(7 U.S.C. 2011 et seq.) and to any other Federal or State program
under which foods are distributed to needy families in lieu of supplemental nutrition assistance program benefits.
(8) For each fiscal year, the Secretary shall collect from each
State that receives a grant under this subsection information relating to—
(A) the number and type of recipients served by both Federal and non-Federal benefits under the program for which the
grant is received;
(B) the rate of redemption of coupons distributed under the
program;
(C) the average amount distributed in coupons to each recipient;
(D) the change in consumption of fresh fruits and vegetables by recipients, if the information is available;
(E) the effects of the program on farmers’ markets, if the
information is available; and
(F) any other information determined to be necessary by
the Secretary.
(9) FUNDING.—
(A) IN GENERAL.—
(i) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to carry out this subsection such sums as are necessary for each of fiscal
years 2004 through 2009.
(ii) MANDATORY FUNDING.—Not later than 30 days
after the date of enactment of the Food Stamp Reauthorization Act of 2002, of the funds of the Commodity
Credit Corporation, the Secretary shall make available
to carry out this subsection $15,000,000, to remain
available until expended.
(B)(i)(I) Each State shall return to the Secretary any funds
made available to the State that are unobligated at the end of the
fiscal year for which the funds were originally allocated. The unexpended funds shall be returned to the Secretary by February 1st of
the following fiscal year.
(II) Notwithstanding any other provision of this subsection, a
total of not more than 5 percent of funds made available to a State
for any fiscal year may be expended by the State to reimburse expenses incurred for a program assisted under this subsection during
the preceding fiscal year.
(ii) The Secretary shall establish procedures to reallocate funds
that are returned under clause (i).
(10) For purposes of this subsection:
(A) The term ‘‘coupon’’ means a coupon, voucher, or other
negotiable financial instrument by which benefits under this
section are transferred.
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(B) The term ‘‘program’’ means—
(i) the State farmers’ market coupon nutrition program
authorized by this subsection (as it existed on September
30, 1991); or
(ii) the farmers’ market nutrition program authorized
by this subsection.
(C) The term ‘‘recipient’’ means a person or household, as
determined by the State, who is chosen by a State to receive
benefits under this subsection, or who is on a waiting list to receive such benefits.
(D) The term ‘‘State agency’’ has the meaning provided in
subsection (b)(13), except that the term also includes the agriculture department of each State and any other agency approved by the chief executive officer of the State.
(n) DISQUALIFICATION OF VENDORS WHO ARE DISQUALIFIED
UNDER THE SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM.—
(1) IN GENERAL.—The Secretary shall issue regulations providing criteria for the disqualification under this section of an
approved vendor that is disqualified from accepting benefits
under the supplemental nutrition assistance program established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011
et seq.).
(2) TERMS.—A disqualification under paragraph (1)—
(A) shall be for the same period as the disqualification
from the program referred to in paragraph (1);
(B) may begin at a later date than the disqualification
from the program referred to in paragraph (1); and
(C) shall not be subject to judicial or administrative review.
(o) DISQUALIFICATION OF VENDORS CONVICTED OF TRAFFICKING
OR ILLEGAL SALES.—
(1) IN GENERAL.—Except as provided in paragraph (4), a
State agency shall permanently disqualify from participation in
the program authorized under this section a vendor convicted
of—
(A) trafficking in food instruments (including any
voucher, draft, check, or access device (including an electronic benefit transfer card or personal identification number) issued in lieu of a food instrument under this section);
or
(B) selling firearms, ammunition, explosives, or controlled substances (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) in exchange for food
instruments (including any item described in subparagraph
(A) issued in lieu of a food instrument under this section).
(2) NOTICE OF DISQUALIFICATION.—The State agency
shall—
(A) provide the vendor with notification of the disqualification; and
(B) make the disqualification effective on the date of
receipt of the notice of disqualification.
(3) PROHIBITION OF RECEIPT OF LOST REVENUES.—A vendor
shall not be entitled to receive any compensation for revenues
lost as a result of disqualification under this subsection.
(4) EXCEPTIONS IN LIEU OF DISQUALIFICATION.—
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(A) IN GENERAL.—A State agency may permit a vendor
that, but for this paragraph, would be disqualified under
paragraph (1), to continue to participate in the program if
the State agency determines, in its sole discretion according to criteria established by the Secretary, that—
(i) disqualification of the vendor would cause hardship to participants in the program authorized under
this section; or
(ii)(I) the vendor had, at the time of the violation
under paragraph (1), an effective policy and program
in effect to prevent violations described in paragraph
(1); and
(II) the ownership of the vendor was not aware of,
did not approve of, and was not involved in the conduct
of the violation.
(B) CIVIL PENALTY.—If a State agency under subparagraph (A) permits a vendor to continue to participate in the
program in lieu of disqualification, the State agency shall
assess the vendor a civil penalty in an amount determined
by the State agency, in accordance with criteria established
by the Secretary, except that—
(i) the amount of the civil penalty shall not exceed
$10,000 for each violation; and
(ii) the amount of civil penalties imposed for violations investigated as part of a single investigation may
not exceed $40,000.
(p) CRIMINAL FORFEITURE.—
(1) IN GENERAL.—Notwithstanding any provision of State
law and in addition to any other penalty authorized by law, a
court may order a person that is convicted of a violation of a
provision of law described in paragraph (2), with respect to food
instruments (including any item described in subsection
(o)(1)(A) issued in lieu of a food instrument under this section),
funds, assets, or property that have a value of $100 or more
and that are the subject of a grant or other form of assistance
under this section, to forfeit to the United States all property
described in paragraph (3).
(2) APPLICABLE LAWS.—A provision of law described in this
paragraph is—
(A) section 12(g) of the Richard B. Russell National
School Lunch Act (42 U.S.C. 1760(g)); and
(B) any other Federal law imposing a penalty for embezzlement, willful misapplication, stealing, obtaining by
fraud, or trafficking in food instruments (including any
item described in subsection (o)(1)(A) issued in lieu of a
food instrument under this section), funds, assets, or property.
(3) PROPERTY SUBJECT TO FORFEITURE.—The following
property shall be subject to forfeiture under paragraph (1):
(A) All property, real and personal, used in a transaction or attempted transaction, to commit, or to facilitate
the commission of, a violation described in paragraph (1).
(B) All property, real and personal, constituting, derived from, or traceable to any proceeds a person obtained
directly or indirectly as a result of a violation described in
paragraph (1).
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(4) PROCEDURES; INTEREST OF OWNER.—Except as provided
in paragraph (5), all property subject to forfeiture under this
subsection, any seizure or disposition of the property, and any
proceeding relating to the forfeiture, seizure, or disposition
shall be subject to section 413 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section.
(5) PROCEEDS.—The proceeds from any sale of forfeited
property and any amounts forfeited under this subsection shall
be used—
(A) first, to reimburse the Department of Justice, the
Department of the Treasury, and the United States Postal
Service for the costs incurred by the Departments or Service to initiate and complete the forfeiture proceeding;
(B) second, to reimburse the Office of Inspector General of the Department of Agriculture for any costs incurred by the Office in the law enforcement effort resulting
in the forfeiture;
(C) third, to reimburse any Federal, State, or local law
enforcement agency for any costs incurred in the law enforcement effort resulting in the forfeiture; and
(D) fourth, by the State agency to carry out approval,
reauthorization, and compliance investigations of vendors.
(q) The Secretary of Agriculture shall provide technical assistance to the Secretary of Defense, if so requested by the Secretary
of Defense, for the purpose of carrying out the overseas special supplemental food program established under section 1060a(a) of title
10, United States Code.
[CASH GRANTS FOR NUTRITION EDUCATION]

[SEC. 18. 18–1 ø42 U.S.C. 1787¿]
SEC. 19. ø42 U.S.C. 1788¿ TEAM NUTRITION NETWORK.

(a) PURPOSES.—The purposes of the team nutrition network
are—
(1) to establish State systems to promote the nutritional
health of school children of the United States through nutrition
education and the use of team nutrition messages and material
developed by the Secretary, and to encourage regular physical
activity and other activities that support healthy lifestyles for
children, including those based on the most recent Dietary
Guidelines for Americans published under section 301 of the
National Nutrition Monitoring and Related Research Act of
1990 (7 U.S.C. 5341);
(2) to provide assistance to States for the development of
comprehensive and integrated nutrition education and active
living programs in schools and facilities that participate in
child nutrition programs;
(3) to provide training and technical assistance and disseminate team nutrition messages to States, school and community nutrition programs, and child nutrition food service
professionals;
(4) to coordinate and collaborate with other nutrition education and active living programs that share similar goals and
purposes; and
18–1 Section

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(5) to identify and share innovative programs with demonstrated effectiveness in helping children to maintain a
healthy weight by enhancing student understanding of healthful eating patterns and the importance of regular physical activity.
(b) DEFINITION OF TEAM NUTRITION NETWORK.—In this section,
the term ‘‘team nutrition network’’ means a statewide multidisciplinary program for children to promote healthy eating and physical activity based on scientifically valid information and sound educational, social, and marketing principles.
(c) GRANTS.—
(1) IN GENERAL.—Subject to the availability of funds for use
in carrying out this section, in addition to any other funds
made available to the Secretary for team nutrition purposes,
the Secretary, in consultation with the Secretary of Education,
may make grants to State agencies for each fiscal year, in accordance with this section, to establish team nutrition networks
to promote nutrition education through—
(A) the use of team nutrition network messages and
other scientifically based information; and
(B) the promotion of active lifestyles.
(2) FORM.—A portion of the grants provided under this subsection may be in the form of competitive grants.
(3) FUNDS FROM NONGOVERNMENTAL SOURCES.—In carrying
out this subsection, the Secretary may accept cash contributions from nongovernmental organizations made expressly to
further the purposes of this section, to be managed by the Food
and Nutrition Service, for use by the Secretary and the States
in carrying out this section.
(d) ALLOCATION.—Subject to the availability of funds for use in
carrying out this section, the total amount of funds made available
for a fiscal year for grants under this section shall equal not more
than the sum of—
(1) the product obtained by multiplying 1⁄2 cent by the
number of lunches reimbursed through food service programs
under the Richard B. Russell National School Lunch Act (42
U.S.C. 1751 et seq.) during the second preceding fiscal year in
schools, institutions, and service institutions that participate in
the food service programs; and
(2) the total value of funds received by the Secretary in
support of this section from nongovernmental sources.
(e) REQUIREMENTS FOR STATE PARTICIPATION.—To be eligible to
receive a grant under this section, a State agency shall submit to
the Secretary a plan that—
(1) is subject to approval by the Secretary; and
(2) is submitted at such time and in such manner, and that
contains such information, as the Secretary may require,
including—
(A) a description of the goals and proposed State plan
for addressing the health and other consequences of children who are at risk of becoming overweight or obese;
(B) an analysis of the means by which the State agency will use and disseminate the team nutrition messages
and material developed by the Secretary;
(C) an explanation of the ways in which the State
agency will use the funds from the grant to work toward
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the goals required under subparagraph (A), and to promote
healthy eating and physical activity and fitness in schools
throughout the State;
(D) a description of the ways in which the State team
nutrition network messages and activities will be coordinated at the State level with other health promotion and
education activities;
(E) a description of the consultative process that the
State agency employed in the development of the model nutrition and physical activity programs, including consultations with individuals and organizations with expertise in
promoting public health, nutrition, or physical activity;
(F) a description of how the State agency will evaluate
the effectiveness of each program developed by the State
agency;
(G) an annual summary of the team nutrition network
activities;
(H) a description of the ways in which the total school
environment will support healthy eating and physical activity; and
(I) a description of how all communications to parents
and legal guardians of students who are members of a
household receiving or applying for assistance under the
program shall be in an understandable and uniform format
and, to the maximum extent practicable, in a language
that parents and legal guardians can understand.
(f) STATE COORDINATOR.—Each State that receives a grant
under this section shall appoint a team nutrition network coordinator who shall—
(1) administer and coordinate the team nutrition network
within and across schools, school food authorities, and other
child nutrition program providers in the State; and
(2) coordinate activities of the Secretary, acting through
the Food and Nutrition Service, and State agencies responsible
for other children’s health, education, and wellness programs to
implement a comprehensive, coordinated team nutrition network program.
(g) AUTHORIZED ACTIVITIES.—A State agency that receives a
grant under this section may use funds from the grant—
(1)(A) to collect, analyze, and disseminate data regarding
the extent to which children and youths in the State are overweight, physically inactive, or otherwise suffering from nutrition-related deficiencies or disease conditions; and
(B) to identify the programs and services available to meet
those needs;
(2) to implement model elementary and secondary education curricula using team nutrition network messages and
material developed by the Secretary to create a comprehensive,
coordinated nutrition and physical fitness awareness and obesity prevention program;
(3) to implement pilot projects in schools to promote physical activity and to enhance the nutritional status of students;
(4) to improve access to local foods through farm-to-cafeteria activities that may include the acquisition of food and the
provision of training and education;
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(5) to implement State guidelines in health (including nutrition education and physical education guidelines) and to emphasize regular physical activity during school hours;
(6) to establish healthy eating and lifestyle policies in
schools;
(7) to provide training and technical assistance to teachers
and school food service professionals consistent with the purposes of this section;
(8) to collaborate with public and private organizations, including community-based organizations, State medical associations, and public health groups, to develop and implement nutrition and physical education programs targeting lower income
children, ethnic minorities, and youth at a greater risk for obesity.
(h) LOCAL NUTRITION AND PHYSICAL ACTIVITY GRANTS.—
(1) IN GENERAL.—Subject to the availability of funds to
carry out this subsection, the Secretary, in consultation with
the Secretary of Education, shall provide assistance to selected
local educational agencies to create healthy school nutrition environments, promote healthy eating habits, and increase physical activity, consistent with the Dietary Guidelines for Americans published under section 301 of the National Nutrition
Monitoring and Related Research Act of 1990 (7 U.S.C. 5341),
among elementary and secondary education students.
(2) SELECTION OF SCHOOLS.—In selecting local educational
agencies for grants under this subsection, the Secretary shall—
(A) provide for the equitable distribution of grants
among—
(i) urban, suburban, and rural schools; and
(ii) schools with varying family income levels;
(B) consider factors that affect need, including local
educational agencies with significant minority or low-income student populations; and
(C) establish a process that allows the Secretary to
conduct an evaluation of how funds were used.
(3) REQUIREMENT FOR PARTICIPATION.—To be eligible to receive assistance under this subsection, a local educational agency shall, in consultation with individuals who possess education
or experience appropriate for representing the general field of
public health, including nutrition and fitness professionals, submit to the Secretary an application that shall include—
(A) a description of the need of the local educational
agency for a nutrition and physical activity program, including an assessment of the nutritional environment of
the school;
(B) a description of how the proposed project will improve health and nutrition through education and increased access to physical activity;
(C) a description of how the proposed project will be
aligned with the local wellness policy required under section 204 of the Child Nutrition and WIC Reauthorization
Act of 2004;
(D) a description of how funds under this subsection
will be coordinated with other programs under this Act, the
Richard B. Russell National School Lunch Act (42 U.S.C.
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1751 et seq.), or other Acts, as appropriate, to improve student health and nutrition;
(E) a statement of the measurable goals of the local
educational agency for nutrition and physical education
programs and promotion;
(F) a description of the procedures the agency will use
to assess and publicly report progress toward meeting
those goals; and
(G) a description of how communications to parents
and guardians of participating students regarding the activities under this subsection shall be in an understandable
and uniform format, and, to the extent maximum practicable, in a language that parents can understand.
(4) DURATION.—Subject to the availability of funds made
available to carry out this subsection, a local educational agency receiving assistance under this subsection shall conduct the
project during a period of 3 successive school years beginning
with the initial fiscal year for which the local educational agency receives funds.
(5) AUTHORIZED ACTIVITIES.—An eligible applicant that receives assistance under this subsection—
(A) shall use funds provided to—
(i) promote healthy eating through the development and implementation of nutrition education programs and curricula based on the Dietary Guidelines
for Americans published under section 301 of the National Nutrition Monitoring and Related Research Act
of 1990 (7 U.S.C. 5341); and
(ii) increase opportunities for physical activity
through after school programs, athletics, intramural
activities, and recess; and
(B) may use funds provided to—
(i) educate parents and students about the relationship of a poor diet and inactivity to obesity and
other health problems;
(ii) develop and implement physical education programs that promote fitness and lifelong activity;
(iii) provide training and technical assistance to
food service professionals to develop more appealing,
nutritious menus and recipes;
(iv) incorporate nutrition education into physical
education, health education, and after school programs,
including athletics;
(v) involve parents, nutrition professionals, food
service staff, educators, community leaders, and other
interested parties in assessing the food options in the
school environment and developing and implementing
an action plan to promote a balanced and healthy diet;
(vi) provide nutrient content or nutrition information on meals served through the school lunch program
established under the Richard B. Russell National
School Lunch Act (42 U.S.C. 1751 et seq.) and the
school breakfast program established by section 4 of
this Act and items sold a la carte during meal times;
(vii) encourage the increased consumption of a variety of healthy foods, including fruits, vegetables,
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whole grains, and low-fat dairy products, through new
initiatives to creatively market healthful foods, such as
salad bars and fruit bars;
(viii) offer healthy food choices outside program
meals, including by making low-fat and nutrient dense
options available in vending machines, school stores,
and other venues; and
(ix) provide nutrition education, including sports
nutrition education, for teachers, coaches, food service
staff, athletic trainers, and school nurses.
(6) REPORT.—Not later than 18 months after completion of
the projects and evaluations under this subsection, the Secretary shall—
(A) submit to the Committee on Education and the
Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions and the
Committee on Agriculture, Nutrition and Forestry of the
Senate a report describing the results of the evaluation
under this subsection; and
(B) make the report available to the public, including
through the Internet.
(i) NUTRITION EDUCATION SUPPORT.—In carrying out the purpose of this section to support nutrition education, the Secretary
may provide for technical assistance and grants to improve the
quality of school meals and access to local foods in schools and institutions.
(j) LIMITATION.—Material prepared under this section regarding
agricultural commodities, food, or beverages, must be factual and
without bias.
(k) TEAM NUTRITION NETWORK INDEPENDENT EVALUATION.—
(1) IN GENERAL.—Subject to the availability of funds to
carry out this subsection, the Secretary shall offer to enter into
an agreement with an independent, nonpartisan, science-based
research organization—
(A) to conduct a comprehensive independent evaluation
of the effectiveness of the team nutrition initiative and the
team nutrition network under this section; and
(B) to identify best practices by schools in—
(i) improving student understanding of healthful
eating patterns;
(ii) engaging students in regular physical activity
and improving physical fitness;
(iii) reducing diabetes and obesity rates in school
children;
(iv) improving student nutrition behaviors on the
school campus, including by increasing healthier meal
choices by students, as evidenced by greater inclusion
of fruits, vegetables, whole grains, and lean dairy and
protein in meal and snack selections;
(v) providing training and technical assistance for
food service professionals resulting in the availability
of healthy meals that appeal to ethnic and cultural
taste preferences;
(vi) linking meals programs to nutrition education
activities;
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(vii) successfully involving parents, school administrators, the private sector, public health agencies, nonprofit organizations, and other community partners;
(viii) ensuring the adequacy of time to eat during
school meal periods; and
(ix) successfully generating revenue through the
sale of food items, while providing healthy options to
students through vending, student stores, and other
venues.
(2) REPORT.—Not later than 3 years after funds are made
available to carry out this subsection, the Secretary shall submit to the Committee on Education and the Workforce of the
House of Representatives, the Committee on Health, Education,
Labor, and Pensions and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing the findings of the independent evaluation.
(l) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated such sums as are necessary to carry out this section.
DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS’ SCHOOLS

SEC. 20. ø42 U.S.C. 1789¿ (a) For the purpose of obtaining Federal payments and commodities in conjunction with the provision of
breakfasts to students attending Department of Defense dependents’ schools which are located outside the United States, its territories or possessions, the Secretary of Agriculture shall make available to the Department of Defense, from funds appropriated for
such purpose, the same payments and commodities as are provided
to States for schools participating in the school breakfast program
in the United States.
(b) The Secretary of Defense shall administer breakfast programs authorized by this section and shall determine eligibility for
free and reduced-price breakfasts under the criteria published by
the Secretary of Agriculture, except that the Secretary of Defense
shall prescribe regulations governing computation of income eligibility standards for families of students participating in the school
breakfast program under this section.
(c) The Secretary of Defense shall be required to offer meals
meeting nutritional standards prescribed by the Secretary of Agriculture; however, the Secretary of Defense may authorize deviations
from Department of Agriculture prescribed meal patterns and fluid
milk requirements when local conditions preclude strict compliance
or when such compliance is highly impracticable.
(d) Funds are hereby authorized to be appropriated for any fiscal year in such amounts as may be necessary for the administrative expenses of the Department of Defense under this section.
(e) The Secretary of Agriculture shall provide the Secretary of
Defense with technical assistance in the administration of the
school breakfast programs authorized by this section.
SEC. 21. ø42 U.S.C. 1790¿ BREASTFEEDING PROMOTION PROGRAM.

(a) IN GENERAL.—The Secretary, from amounts received under
subsection (d), shall establish a breastfeeding promotion program to
promote breastfeeding as the best method of infant nutrition, foster
wider public acceptance of breastfeeding in the United States, and
assist in the distribution of breastfeeding equipment to
breastfeeding women.
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(b) CONDUCT OF PROGRAM.—In carrying out the program described in subsection (a), the Secretary may—
(1) develop or assist others to develop appropriate educational materials, including public service announcements,
promotional publications, and press kits for the purpose of promoting breastfeeding;
(2) distribute or assist others to distribute such materials
to appropriate public and private individuals and entities; and
(3) provide funds to public and private individuals and entities, including physicians, health professional organizations,
hospitals, community based health organizations, and employers, for the purpose of assisting such entities in the distribution
of breastpumps and similar equipment to breastfeeding women.
(c) COOPERATIVE AGREEMENTS.—The Secretary is authorized to
enter into cooperative agreements with Federal agencies, State and
local governments, and other entities to carry out the program described in subsection (a).
(d) GIFTS, BEQUESTS, AND DEVISES.—
(1) IN GENERAL.—The Secretary is authorized to solicit, accept, use, and dispose of gifts, bequests, or devises of services
or property, both real and personal, for the purpose of establishing and carrying out the program described in subsection
(a). Gifts, bequests, or devises of money and proceeds from the
sales of other property received as gifts, bequests, or devises
shall be deposited in the Treasury and shall be available for
disbursement upon order of the Secretary.
(2) CRITERIA FOR ACCEPTANCE.—The Secretary shall establish criteria for determining whether to solicit and accept gifts,
bequests, or devises under paragraph (1), including criteria
that ensure that the acceptance of any gifts, bequests, or devises would not—
(A) reflect unfavorably on the ability of the Secretary
to carry out the Secretary’s responsibilities in a fair and
objective manner; or
(B) compromise, or appear to compromise, the integrity
of any governmental program or any officer or employee involved in the program.
SEC. 22. [42 U.S.C. 1791] BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT.

(a) SHORT TITLE.—This section may be cited as the ‘‘Bill Emerson Good Samaritan Food Donation Act’’.
(b) DEFINITIONS.—As used in this section:
(1) APPARENTLY FIT GROCERY PRODUCT.—The term ‘‘apparently fit grocery product’’ means a grocery product that meets
all quality and labeling standards imposed by Federal, State,
and local laws and regulations even though the product may
not be readily marketable due to appearance, age, freshness,
grade, size, surplus, or other conditions.
(2) APPARENTLY WHOLESOME FOOD.—The term ‘‘apparently
wholesome food’’ means food that meets all quality and labeling
standards imposed by Federal, State, and local laws and regulations even though the food may not be readily marketable
due to appearance, age, freshness, grade, size, surplus, or other
conditions.
(3) DONATE.—The term ‘‘donate’’ means to give without requiring anything of monetary value from the recipient, except
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that the term shall include giving by a nonprofit organization
to another nonprofit organization, notwithstanding that the
donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required to
give anything of monetary value.
(4) FOOD.—The term ‘‘food’’ means any raw, cooked, processed, or prepared edible substance, ice, beverage, or ingredient
used or intended for use in whole or in part for human consumption.
(5) GLEANER.—The term ‘‘gleaner’’ means a person who
harvests for free distribution to the needy, or for donation to a
nonprofit organization for ultimate distribution to the needy,
an agricultural crop that has been donated by the owner.
(6) GROCERY PRODUCT.—The term ‘‘grocery product’’ means
a nonfood grocery product, including a disposable paper or plastic product, household cleaning product, laundry detergent,
cleaning product, or miscellaneous household item.
(7) GROSS NEGLIGENCE.—The term ‘‘gross negligence’’
means voluntary and conscious conduct (including a failure to
act) by a person who, at the time of the conduct, knew that the
conduct was likely to be harmful to the health or well-being of
another person.
(8) INTENTIONAL MISCONDUCT.—The term ‘‘intentional misconduct’’ means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the health
or well-being of another person.
(9) NONPROFIT ORGANIZATION.—The term ‘‘nonprofit organization’’ means an incorporated or unincorporated entity that—
(A) is operating for religious, charitable, or educational
purposes; and
(B) does not provide net earnings to, or operate in any
other manner that inures to the benefit of, any officer, employee, or shareholder of the entity.
(10) PERSON.—The term ‘‘person’’ means an individual, corporation, partnership, organization, association, or governmental entity, including a retail grocer, wholesaler, hotel,
motel, manufacturer, restaurant, caterer, farmer, and nonprofit
food distributor or hospital. In the case of a corporation, partnership, organization, association, or governmental entity, the
term includes an officer, director, partner, deacon, trustee,
council member, or other elected or appointed individual responsible for the governance of the entity.
(c) LIABILITY FOR DAMAGES FROM DONATED FOOD AND
GROCERY PRODUCTS.—
(1) LIABILITY OF PERSON OR GLEANER.—A person or gleaner
shall not be subject to civil or criminal liability arising from the
nature, age, packaging, or condition of apparently wholesome
food or an apparently fit grocery product that the person or
gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.
(2) LIABILITY OF NONPROFIT ORGANIZATION.—A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently
wholesome food or an apparently fit grocery product that the
nonprofit organization received as a donation in good faith from
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a person or gleaner for ultimate distribution to needy individuals.
(3) EXCEPTION.—Paragraphs (1) and (2) shall not apply to
an injury to or death of an ultimate user or recipient of the food
or grocery product that results from an act or omission of the
person, gleaner, or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct.
(d) COLLECTION OR GLEANING OF DONATIONS.—A person who
allows the collection or gleaning of donations on property owned or
occupied by the person by gleaners, or paid or unpaid representatives of a nonprofit organization, for ultimate distribution to needy
individuals shall not be subject to civil or criminal liability that
arises due to the injury or death of the gleaner or representative,
except that this paragraph shall not apply to an injury or death
that results from an act or omission of the person constituting gross
negligence or intentional misconduct.
(e) PARTIAL COMPLIANCE.—If some or all of the donated food
and grocery products do not meet all quality and labeling standards
imposed by Federal, State, and local laws and regulations, the person or gleaner who donates the food and grocery products shall not
be subject to civil or criminal liability in accordance with this section if the nonprofit organization that receives the donated food or
grocery products—
(1) is informed by the donor of the distressed or defective
condition of the donated food or grocery products;
(2) agrees to recondition the donated food or grocery products to comply with all the quality and labeling standards prior
to distribution; and
(3) is knowledgeable of the standards to properly recondition the donated food or grocery product.
(f) CONSTRUCTION.—This section shall not be construed to create any liability. Nothing in this section shall be construed to
supercede State or local health regulations.

October 21, 2009