# [Amended]
**AGENCY:**
Food and Nutrition Service (FNS), USDA.
**ACTION:**
Interim rule.
**SUMMARY:**
This rule increases the amount of cash value vouchers from $8.00 to $10.00 issued to pregnant, postpartum and partially breastfeeding women participants for the purchase of fruits and vegetables as part of the WIC food packages. In the “WIC Food Package” interim rule published December 6, 2007, the Department was not able to provide all women participants fruit and vegetable cash value vouchers at the level recommended by the National Academies' Institute of Medicine (IOM). To be cost neutral, only fully breastfeeding women were provided the IOM recommended amount of $10.00 per month fruit and vegetable cash value vouchers; all other women participants were provided $8.00 per month fruit and vegetable cash value vouchers. This rule amends the interim rule to provide all Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) women participants with $10.00 per month fruit and vegetable cash value vouchers, consistent with IOM's recommendations. The Fiscal Year 2010 Agriculture Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Pub. L. 111-80), enacted on October 21, 2009, provides the funding for this increase.
**DATES:**
*Effective Date:* This rule is effective on December 31, 2009. State agencies may begin applying the provisions set forth in this rule beginning October 21, 2009.
*Implementation Date:* State agencies must implement the provisions of this rule no later than April 30, 2010.
*Comment Date:* To be considered, comments on this interim rule must be postmarked on or before February 1, 2010.
**ADDRESSES:**
The Food and Nutrition Service, USDA, invites interested persons to submit comments on this interim rule. Comments may be submitted by one of the following methods:
• *Federal e-Rulemaking Portal:* Go to *http://www.regulations.gov.* Preferred method; follow the online instructions for submitting comments on docket FNS-2006-0037.
• *Mail:* Comments should be addressed to Debra Whitford, Director, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 305-2746.
• *Hand Delivery or Courier:* Deliver comments to Debra Whitford, Director, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 305-2746. Hours of operation: 8:30 a.m.-5:30 p.m., Monday through Friday.
All comments submitted in response to this interim rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the comments publicly available on the Internet via *http://www.regulations.gov.*
**FOR FURTHER INFORMATION CONTACT:**
Sandy Clark, Chief, Policy and Program Development Branch, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 305-2746, or *[email protected].*
**SUPPLEMENTARY INFORMATION:**
**Background**
An interim rule revising the WIC food packages was published in the *Federal Register* on December 6, 2007 (72 FR 68966). The interim rule revisions largely reflected recommendations made by the IOM of the National Academies in its report, “WIC Food Packages: Time for a Change,” with certain cost containment and administrative modifications found necessary by the Department to ensure cost neutrality.
Based on cost constraints, the Department was not able to provide all women participants fruit and vegetable cash value vouchers at IOM's recommended amount. To be cost neutral, only fully breastfeeding women were provided the IOM recommended amount of $10.00 per month fruit and vegetable cash value vouchers; all other women participants were provided $8.00 per month fruit and vegetable cash value vouchers. This rule amends the interim rule to provide all WIC women participants with $10.00 per month fruit and vegetable cash value vouchers, consistent with IOM's recommendations. The funding for this increase is provided by the Fiscal Year 2010 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, Public Law 111-80, enacted on October 21, 2009.
**Executive Order 12866**
The Office of Management and Budget designated this rule as not significant under Executive Order 12866; therefore, no OMB review is required.
**Regulatory Flexibility Act**
The Food, Nutrition and Consumer Services has certified that this rule will not have a significant economic impact on a substantial number of small entities. The provisions of this rule are applicable to all State and local agencies, vendors and farmers and farmers' markets regardless of their size or the volume of WIC business they conduct.
**Regulatory Impact Analysis**
This rule has been designated as not significant by the Office of Management and Budget; therefore, a Regulatory Impact Analysis (RIA) is not necessary.
**Need for Action**
This action amends the interim rule to provide all women WIC participants with $10.00 per month in cash value vouchers for fruits and vegetables as recommended by the Institute of Medicine. IOM's intent was to move WIC participants toward increased fruit and vegetable consumption.
**Benefits**
The increase in the cash value vouchers for women participants will improve their ability to increase their consumption of fruits and vegetables. WIC authorized vendors will also realize increased sales by the implementation of this provision.
**Costs**
The provisions of this interim rule are not expected to increase significantly the administrative burden to the Department or to State agencies, nor will they affect overall program costs since the WIC Program is funded by an annual appropriation.
**Public Law 104-4**
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.
This interim rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
**Executive Order 12372**
The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) is listed in the Catalog of Federal Domestic Assistance under No. 10.557. For reasons set forth in the final rule at 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is included in the scope of Executive Order 12372, that requires intergovernmental consultation with State and local officials.
**Federalism Summary Impact Statement**
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.
**1. Prior Consultation With WIC State and Local Agency Officials**
Over the years FNS has received numerous requests from WIC State and local agencies to modify the current food packages to permit greater substitution of foods or introduction of additional foods. These requests have come from formal and informal discussions with State and local officials on an ongoing basis regarding program implementation and food package policy issues, and from written proposals and comments submitted to FNS by WIC State and local agencies to allow modifications and/or substitutions to the WIC food packages. Requests for revisions to the WIC food packages have also been received from Congress, participants, and organizations with interests in the welfare of WIC participants. FNS commissioned the National Academies' IOM to independently review the WIC Food Packages. IOM solicited public comment on revisions to the WIC food packages, via 3 public hearings, letters and e-mail, throughout its 22-month study period. IOM published its reports of these recommendations on April 27, 2005: “WIC Food Packages: Time for a Change.” Based largely on the recommendations from this report, with certain cost containment and administrative modifications found necessary by the Department to ensure cost neutrality, an interim rule revising the WIC food packages was published in the *Federal Register* on December 6, 2007 (72 FR 68966).
**2. Nature of Concerns and the Need To Issue This Rule**
Based on cost constraints, the Department was not able to provide all women participants fruit and vegetable cash value vouchers at IOM's recommended amount in the December 6, 2007 interim rule. To be cost neutral, only fully breastfeeding women were provided the IOM recommended amount of $10.00 per month fruit and vegetable cash value vouchers; all other women participants were provided $8.00 per month fruit and vegetable cash value vouchers.
**3. Extent to Which We Meet Those Concerns**
This rule amends the December 6, 2007 Interim Rule to provide all WIC women participants with $10.00 per month fruit and vegetable cash value vouchers, consistent with IOM's recommendations.
**Executive Order 12988**
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless specified in the *DATES* section of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.
**Civil Rights Impact Analysis**
FNS has reviewed this rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis”, and 1512-1, “Regulatory Decision Making Requirements.” FNS has determined that this interim rule's intent and provisions will not adversely affect access to WIC services by eligible persons. All data available to FNS indicate that protected individuals have the same opportunity to participate in WIC as non-protected individuals. FNS specifically prohibits State and local agencies operating the WIC Program from discrimination based on race, color, national origin, gender, age, and disability. Discrimination in any aspect of program administration is prohibited by Department of Agriculture regulations on non-discrimination (7 CFR Parts 15, 15a, and 15b), the Age Discrimination Act of 1975 (Pub. L. 94-135), the Rehabilitation Act of 1973 (Pub. L. 93-112, section 504), and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). Enforcement action may be brought under any applicable Federal law. Title VI complaints shall be processed in accordance with 7 CFR Part 15.
**Paperwork Reduction Act**
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.
**E-Government Act Compliance**
The Food and Nutrition Service is committed to complying with the E-Government Act, 2002 to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
**Good Cause Determination**
As discussed above, the Fiscal Year 2010 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Pub. L. 111-80), enacted on October 21, 2009, provided the funding for this increase. Therefore, women should be afforded the immediate opportunity to benefit from increased access to fruits and vegetables. As the funding increases fruit and vegetable cash value vouchers to the amount recommended by the IOM to improve the nutrition of women participants, the Department finds that delaying the effective date of this rule would be contrary to the public interest. As such, it has been determined, in accordance with 5 U.S.C. 553(b)(B), that prior notice and comment would be unnecessary, and that good cause exists for making this rule effective without first publishing a proposed rule. However, the Department will consider all comments submitted in response to this interim rule, in addition to the comments received on the interim WIC Food Package rule published on December 6, 2007 (72 FR 68966). The comment period for both rules will end on February 1, 2010.
**List of Subjects in 7 CFR Part 246**
Food assistance programs, Grant programs—Social programs, Indians, Infants and children, Maternal and child health, Nutrition education, Public assistance programs, WIC, Women.
**7 CFR Part 246**
Accordingly, for the reasons set forth in the preamble, 7 CFR Part 246 is amended to read as follows:
**PART 246—SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC)**
1. The authority citation for 7 CFR part 246 continues to read as follows:
**Authority:**
42 U.S.C. 1786.
**7 CFR Part 246**
2. Sections 246.10(e)(10) and (e)(11) are revised to read as follows:
§ 246.10
(e) * * *
(10) *Maximum monthly allowances of supplemental foods in Food Packages IV through VII.* The maximum monthly allowances, options and substitution rates of supplemental foods for children and women in Food Package IV through VII are stated in Table 2 as follows:
| Foods | Children | Food Package IV | Women | Food Package V: Pregnant and partially breastfeeding (up to 1 year postpartum) | Food Package VI: Postpartum (up to 6 months postpartum) | Food Package VII: Fully breastfeeding (up to 1 year |
| --- | --- | --- | --- | --- | --- | --- |
| Juice, single strength | 128 fl oz | 144 fl oz | 96 fl oz | 144 fl oz. | | |
| Milk, fluid | 16 qt | 22 qt | 16 qt | 24 qt
. | | |
| Breakfast cereal | 36 oz | 36 oz | 36 oz | 36 oz. | | |
| Cheese | N/A | N/A | N/A | 1 lb. | | |
| Eggs | 1 dozen | 1 dozen | 1 dozen | 2 dozen. | | |
| Fruits and vegetables | $6.00 in cash value vouchers | $10.00 in cash value vouchers | $10.00 in cash value vouchers | $10.00 in cash value vouchers. | | |
| Whole wheat bread or other whole grains | 2 lb | 1 lb | N/A | 1 lb. | | |
| Fish (canned) | N/A | N/A | N/A | 30 oz. | | |
| Legumes, dry | 1 lb | 1 lb | 1 lb | 1 lb. | | |
| And/or | Or | And | Or | And | | |
| Peanut butter | 18 oz | 18 oz | 18 oz | 18 oz. | | |
(11) *Maximum monthly allowances of supplemental foods for children and women with qualifying conditions in Food Package III.* The maximum monthly allowances, options and substitution rates of supplemental foods for participants with qualifying conditions in Food Package III are stated in Table 3 as follows:
| Foods | Children | 1 through 4 years | Women | Pregnant and partially breastfeeding (up to 1 year postpartum) | Postpartum (up to 6 months postpartum) | Fully breastfeeding (up to 1 year postpartum) |
| --- | --- | --- | --- | --- | --- | --- |
| Juice, single strength | 128 fl oz | 144 fl oz | 96 fl oz | 144 fl oz. | | |
| WIC Formula | 455 fl oz liquid concentrate | 455 fl oz liquid concentrate | 455 fl oz liquid concentrate | 455 fl oz liquid concentrate. | | |
| Milk | 16 qt | 22 qt | 16 qt | 24 qt
. | | |
| Breakfast cereal | 36 oz | 36 oz | 36 oz | 36 oz. | | |
| Cheese | N/A | N/A | N/A | 1 lb. | | |
| Eggs | 1 dozen | 1 dozen | 1 dozen | 2 dozen. | | |
| Fruits and vegetables | $6.00 in cash value vouchers | $10.00 in cash value vouchers | $10.00 in cash value vouchers | $10.00 in cash value vouchers. | | |
| Whole wheat bread | 2 lb | 1 lb | N/A | 1 lb. | | |
| Fish (canned) | N/A | N/A | N/A | 30 oz. | | |
| Legumes, dry | 1 lb | 1 lb | 1 lb | 1 lb. | | |
| And/or | Or | And | Or | And | | |
| Peanut butter | 18 oz | 18 oz | 18 oz | 18 oz. | | |
**7 CFR Part 246**
§ 246.16
3. Paragraph 246.16(j) (2) (ii) is amended by revising “$8” to read “$10”
Dated: December 24, 2009.
Julia Paradis,
Administrator, Food and Nutrition Service.