[Federal Register Volume 74, Number 250 (Thursday, December 31, 2009)]
[Rules and Regulations]
[Pages 69243-69247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30991]



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  Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / 
Rules and Regulations  

[[Page 69243]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

[FNS-2006-0037]
RIN 0584-AD77


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC) Revisions in the WIC Food Packages Rule To Increase Cash 
Value Vouchers for Women

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

[[Page 69244]]

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

[[Page 69245]]

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.

0
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)

0
1. The authority citation for 7 CFR part 246 continues to read as 
follows:

    Authority:  42 U.S.C. 1786.


0
2. Sections 246.10(e)(10) and (e)(11) are revised to read as follows:


Sec.  246.10  Supplemental foods.

* * * * *
    (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:

 Table 2--Maximum Monthly Allowances of Supplemental Foods for Children and Women in Food Packages IV, V, VI and
                                                       VII
----------------------------------------------------------------------------------------------------------------
                                       Children                                  Women
                                --------------------------------------------------------------------------------
                                                        Food Package V:
                                                         Pregnant and      Food Package VI:    Food Package VII:
           Foods \1\              Food Package IV 1        partially       Postpartum (up to         Fully
                                   through 4 years     breastfeeding (up       6 months        breastfeeding (up
                                                           to 1 year        postpartum) \3\    to 1 year  post-
                                                        postpartum) \2\                           partum)4 5
----------------------------------------------------------------------------------------------------------------
Juice, single strength \6\.....  128 fl oz..........  144 fl oz.........  96 fl oz..........  144 fl oz.
Milk, fluid....................  16 qt 7 8 9 10.....  22 qt 7 8 11 12...  16 qt 7 8 11 12...  24 qt 7 8 11 12.
Breakfast cereal \13\..........  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 14 15....  $6.00 in cash value  $10.00 in cash      $10.00 in cash      $10.00 in cash
                                  vouchers.            value vouchers.     value vouchers.     value vouchers.
Whole wheat bread or other       2 lb...............  1 lb..............  N/A...............  1 lb.
 whole grains \16\.
Fish (canned)..................  N/A................  N/A...............  N/A...............  30 oz.
Legumes, dry \17\..............  1 lb...............  1 lb..............  1 lb..............  1 lb.
And/or                           Or                   And                 Or                  And
Peanut butter..................  18 oz..............  18 oz.............  18 oz.............  18 oz.
----------------------------------------------------------------------------------------------------------------
Table 2 Footnotes: N/A = the supplemental food is not authorized in the corresponding food package.
\1\ Table 4 of paragraph (e)(12) of this section describes the minimum requirements and specifications for the
  supplemental foods.
\2\ Food Package V is issued to two categories of WIC participants: Women participants with singleton
  pregnancies and breastfeeding women whose partially breastfed infants receive formula from the WIC Program in
  amounts that do not exceed the maximum formula allowances for Food Packages I-BF/FF-A, I-BF/FF-B, I-BF/FF-C,
  or II-BF/FF, as appropriate for the age of the infant as described in Table 1 of paragraph (e)(9) of this
  section.
\3\ Food Package VI is issued to two categories of WIC participants: Non-breastfeeding postpartum women and
  breastfeeding postpartum women whose partially breastfed infants receive more than the maximum infant formula
  allowances for Food Packages I-BF/FF-A, I-BF/FF-B, I-BF/FF-C, or II-BF/FF, as appropriate for the age of the
  infant as described in Table 1 of paragraph (e)(9) of this section.
\4\ Food Package VII is issued to three categories of WIC participants: Fully breastfeeding women whose infants
  do not receive formula from the WIC Program; women pregnant with two or more fetuses; and women fully or
  partially breastfeeding multiple infants.
\5\ Women fully breastfeeding multiple infants are prescribed 1.5 times the maximum allowances.
\6\ Combinations of single-strength and concentrated juices may be issued provided that the total volume does
  not exceed the maximum monthly allowance for single-strength juice.
\7\ Whole milk, as specified in FDA standards, is the only type of milk allowed for 1-year-old children (12
  through 23 months). Reduced fat milks, as specified in FDA standards, i.e., 2% milk fat, are the only types of
  milk allowed for children >= 24 months of age and women.
\8\ Evaporated milk may be substituted at the rate of 16 fluid ounces of evaporated milk per 32 fluid ounces of
  fluid milk or a 1:2 fluid ounce substitution ratio. Dry milk may be substituted at an equal reconstituted rate
  to fluid milk. When a combination of different milk forms is provided, the full maximum monthly fluid milk
  allowance must be provided.

[[Page 69246]]

 
\9\ For children, cheese may be substituted for milk at the rate of 1 pound of cheese per 3 quarts of milk. No
  more than 1 lb. of cheese may be substituted for milk. With medical documentation, additional amounts of
  cheese may be substituted in cases of lactose intolerance or other qualifying conditions, up to the maximum
  allowance for fluid milk.
\10\ For children, soy-based beverage and calcium-set tofu may be substituted for milk only with medical
  documentation for qualifying conditions. Soy-based beverage may be substituted for milk, with medical
  documentation, for children in Food Package IV on a quart for quart basis up to the total maximum allowance of
  milk. Tofu may be substituted for milk, with medical documentation, for children in Food Package IV at the
  rate of 1 pound of tofu per 1 quart of milk up to the total maximum allowance of milk.
\11\ For women, cheese or calcium-set tofu may be substituted for milk at the rate of 1 pound of cheese per 3
  quarts of milk or 1 pound of tofu per 1 quart of milk. A maximum of 4 quarts of milk can be substituted in
  this manner in Food Packages V and VI; however, no more than 1 pound of cheese may be substituted for milk. A
  maximum of 6 quarts of milk can be substituted in this manner in Food Package VII; therefore, no more than 2
  lbs. of cheese may be substituted for milk. With medical documentation, additional amounts of cheese or tofu
  may be substituted, up to the maximum allowances for fluid milk, in cases of lactose intolerance or other
  qualifying conditions.
\12\ For women, soy-based beverage may be substituted for milk at the rate of 1 quart of soy-based beverage for
  1 quart of milk up to the total maximum monthly allowance of milk.
\13\ At least one-half of the total number of breakfast cereals on the State agency's authorized food list must
  have whole grain as the primary ingredient and meet labeling requirements for making a health claim as a
  ``whole grain food with moderate fat content'' as defined in Table 4 of paragraph (e)(12) of this section.
\14\ Processed (canned, frozen, dried) fruits and vegetables may be substituted for fresh fruits and vegetables.
  Dried fruit and dried vegetables are not authorized for children in Food Package IV.
\15\ The monthly value of the fruit/vegetable cash-value vouchers will be adjusted annually for inflation as
  described in Sec.   246.16(j).
\16\ Brown rice, bulgur (cracked wheat), oatmeal, whole-grain barley, soft corn or whole wheat tortillas may be
  substituted for whole wheat bread on an equal weight basis.
\17\ Canned legumes may be substituted for dried legumes at the rate of 64 oz. of canned beans for 1 lb. dried
  beans. Under Food Packages V and VII, two additional combinations of dry or canned beans/peas are authorized:
  1 lb. Dry and 64 oz. Canned beans/peas (and no peanut butter); or 2 lb. Dry or 128 oz. Canned beans/peas (and
  no peanut butter) or 36 oz. peanut butter (and no beans).

    (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:

      Table 3--Maximum Monthly Allowances of Supplemental Foods for Children and Women in Food Package III
----------------------------------------------------------------------------------------------------------------
                                       Children                                  Women
                                 -------------------------------------------------------------------------------
                                                         Pregnant and
            Foods \1\                                      partially       Postpartum (up to         Fully
                                   1 through 4 years   breastfeeding (up       6 months        breastfeeding (up
                                                           to 1 year        postpartum) \3\        to 1 year
                                                        postpartum) \2\                         postpartum) 4 5
----------------------------------------------------------------------------------------------------------------
Juice, single strength \6\......  128 fl oz.........  144 fl oz.........  96 fl oz..........  144 fl oz.
WIC Formula 7 8.................  455 fl oz liquid    455 fl oz liquid    455 fl oz liquid    455 fl oz liquid
                                   concentrate.        concentrate.        concentrate.        concentrate.
Milk............................  16 qt \9 10 11 12\  22 qt \9 10 13 14\  16 qt \9 10 13 14\  24 qt \9 10 13
                                                                                               14\.
Breakfast cereal 15 16..........  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 17 18.....  $6.00 in cash       $10.00 in cash      $10.00 in cash      $10.00 in cash
                                   value vouchers.     value vouchers.     value vouchers.     value vouchers.
Whole wheat bread \19\..........  2 lb..............  1 lb..............  N/A...............  1 lb.
Fish (canned)...................  N/A...............  N/A...............  N/A...............  30 oz.
Legumes, dry \20\...............  1 lb..............  1 lb..............  1 lb..............  1 lb.
And/or                            Or                  And                 Or                  And
Peanut butter...................  18 oz.............  18 oz.............  18 oz.............  18 oz.
----------------------------------------------------------------------------------------------------------------
Table 3 Footnotes: N/A = the supplemental food is not authorized in the corresponding food package.
\1\ Table 4 of paragraph (e)(12) of this section describes the minimum requirements and specifications for the
  supplemental foods.
\2\ Food Package V is issued to two categories of WIC participants--women participants with singleton
  pregnancies and breastfeeding women whose partially breastfed infants receive formula from the WIC Program in
  amounts that do not exceed the maximum formula allowances for Food Packages I-BF/FF-A, I-BF/FF-B, I-BF/FF-C,
  or II-BF/FF, as appropriate for the age of the infant as described in Table 1 of paragraph (e)(9) of this
  section.
\3\ Food Package VI is issued to two categories of WIC participants--non-breastfeeding postpartum women and
  breastfeeding postpartum women whose partially breastfed infants receive more than the maximum formula
  allowances for Food Packages I-BF/FF-A, I-BF/FF-B, I-BF/FF-C or II-BF/FF, as appropriate for the age of the
  infant as described in Table 1 of paragraph (e)(9) of this section.
\4\ Food Package VII is issued to three categories of WIC participants--fully breastfeeding women whose infants
  do not receive formula from the WIC Program; women pregnant with two or more fetuses; and women fully or
  partially breastfeeding multiple infants.
\5\ Women fully breastfeeding multiple infants are prescribed 1.5 times the maximum allowances.
\6\ Combinations of single-strength and concentrated juices may be issued provided that the total volume does
  not exceed the maximum monthly allowance for single-strength juice.
\7\ WIC formula means infant formula, exempt infant formula, or WIC-eligible medical food.
\8\ Powder and Ready-to-Feed may be substituted at rates that provide comparable nutritive value.
\9\ Whole milk, as specified in FDA standards, is the only type of milk allowed for 1-year-old children (12
  through 23 months). Reduced fat milks, as specified in FDA standards, i.e., 2% milk fat, are the only types of
  milk allowed for children > 24 months of age and women. With medical documentation, whole milk may be
  substituted for reduced fat milk for children > 24 months of age and women.
\10\ Evaporated milk may be substituted at the rate of 16 fluid ounces of evaporated milk per 32 fluid ounces of
  fluid milk or a 1:2 fluid ounce substitution ratio. Dry milk may be substituted at an equal reconstituted rate
  to fluid milk. When a combination of different milk forms is provided, the full maximum monthly fluid milk
  allowance must be provided.

[[Page 69247]]

 
\11\ For children, cheese may be substituted for milk at the rate of 1 pound of cheese per 3 quarts of milk. No
  more than 1 lb. of cheese may be substituted for milk. With medical documentation, additional amounts of
  cheese may be substituted in cases of lactose intolerance or other qualifying conditions, up to the maximum
  allowance for fluid milk.
\12\ For children, soy-based beverage and tofu may be substituted for milk only with medical documentation for
  qualifying conditions. Soy-based beverage may be substituted for milk, with medical documentation, for
  children in Food Package IV on a quart for quart basis up to the total maximum allowance of milk. Tofu may be
  substituted for milk, with medical documentation, for children in Food Package IV at the rate of 1 pound of
  tofu per 1 quart of milk up to the total maximum allowance of milk.
\13\ For women, cheese or calcium-set tofu may be substituted for milk at the rate of 1 pound of cheese per 3
  quarts of milk or 1 pound of tofu per 1 quart of milk. A maximum of 4 quarts of milk can be substituted in
  this manner in Food Packages V and VI; however, no more than 1 pound of cheese may be substituted for milk. A
  maximum of 6 quarts of milk can be substituted in this manner in Food Package VII; therefore, no more than 2
  lbs. of cheese may be substituted for milk. With medical documentation, additional amounts of cheese or tofu
  may be substituted, up to the maximum allowances for fluid milk, in cases of lactose intolerance or other
  qualifying conditions.
\14\ For women, soy-based beverage may be substituted for milk at the rate of 1 quart of soy-based beverage for
  1 quart of milk up to the total maximum monthly allowance of milk.
\15\ 32 dry ounces of infant cereal may be substituted for 36 ounces of breakfast cereal.
\16\ At least one half of the total number of breakfast cereals on the State agency's authorized food list must
  have whole grain as the primary ingredient and meet labeling requirements for making a health claim as a
  ``whole grain food with moderate fat content'' as defined in Table 4 of paragraph (e)(12) of this section.
\17\ Processed (canned, frozen, dried) fruits and vegetables may be substituted for fresh fruits and vegetables.
  Dried fruit and dried vegetables are not authorized for children.
\18\ The monthly value of the fruit/vegetable cash-value vouchers will be adjusted annually for inflation as
  described in Sec.   246.16(j).
\19\ Brown rice, bulgur (cracked wheat), oatmeal, whole-grain barley, soft corn or whole wheat tortillas may be
  substituted for whole wheat bread on an equal weight basis.
\20\ Canned legumes may be substituted for dried legumes at the rate of 64 oz of canned beans for 1 lb dried
  beans. Issuance of two additional combinations of dry or canned beans/peas is authorized for the Pregnant and
  Partially Breastfeeding (up to 1 year postpartum) category and Fully Breastfeeding (Enhanced) (up to 1 year
  postpartum) category: 1 lb. Dry and 64 oz. Canned beans/peas (and no peanut butter); or 2 lb. Dry or 128 oz.
  Canned beans/peas (and no peanut butter) or 36 oz. peanut butter (and no beans).

* * * * *


Sec.  246.16  [Amended]

0
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.
[FR Doc. E9-30991 Filed 12-30-09; 8:45 am]
BILLING CODE 3410-30-P