Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Miscellaneous Provisions, 56708-56741 [06-7875]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 71, Number 187 (Wednesday, September 27, 2006)]
[Rules and Regulations]
[Pages 56708-56741]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7875]



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Part IV





 Department of Agriculture





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Food and Nutrition Service



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7 CFR Part 246



 Special Supplemental Nutrition Program for Women, Infants and Children 
(WIC): Miscellaneous Provisions; Final Rule

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

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AB10


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Miscellaneous Provisions

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends a number of existing provisions in the 
WIC Program regulations to address issues raised by WIC State agencies, 
other members of the WIC community, and the United States Government 
Accountability Office (GAO). This final rule also incorporates recent 
legislation and certain longstanding program policies and State agency 
practices into the regulations. Further, the final rule also 
streamlines certain requirements in the regulations.
    In particular, this rulemaking streamlines the Federal requirements 
for financial and participation reporting by State agencies, and 
clarifies the requirements pertaining to the confidentiality of WIC 
information in order to strengthen coordination with public 
organizations and private physicians. It also incorporates recent 
legislation which provided the WIC State agencies with the option to 
extend the certification period for breastfeeding women. Further, it 
incorporates longstanding program policies and State agency practices 
into the regulations regarding State agency responses to subpoenas and 
other court-ordered requests for confidential information. Other 
provisions in this final rule are designed to improve eligibility 
determinations, incorporating program policies and State agency 
practices that have been in effect for some time.
    These changes are intended to reinforce program policies and State 
agency practices that strengthen services to WIC participants, improve 
Program administration, and increase State agency flexibility in 
managing the Program. Many of these provisions are options the State 
agency may choose to implement in operating the program.

DATES: Effective Date: This rule is effective November 27, 2006.
    Implementation Date: State agencies must implement the provisions 
of this rule no later than March 27, 2007.

FOR FURTHER INFORMATION CONTACT: Debra R. Whitford, Chief, Policy and 
Program Development Branch, Supplemental Food Programs Division, Food 
and Nutrition Service, 3101 Park Center Drive, Room 522, Alexandria, 
Virginia 22302, (703) 305-2746.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been determined to be significant and was reviewed by 
the Office of Management and Budget under Executive Order 12866.

Regulatory Impact Analysis

    As required for all rules that have been designated as Significant 
by the Office of Management and Budget, a Regulatory Economic Impact 
Analysis was developed for this final rule. A complete copy of the 
Impact Analysis appears in the appendix to this rule. The conclusions 
of this analysis are summarized below.

Need for Action

    This action is needed to address issues raised by WIC State 
agencies and other members of the WIC community; address issues raised 
by the GAO; incorporate recent legislation; incorporate certain 
longstanding program policies and State agency practices into the 
regulations; and, streamline certain requirements in the regulations.
    Two provisions in this final rule may have a notable financial 
impact. One of these provisions prohibits the use of possibility of 
regression to a previous nutrition risk as the basis for determining 
nutrition risk eligibility in consecutive certifications when this 
nutrition risk is not actually present.
    The second provision which may have a notable financial impact 
provides WIC States agencies with the option to extend the 
certification period for all participant categories until the end of 
the last month of the certification period, and also provides the 
option to extend a breastfeeding woman's certification period up to her 
infant's first birthday or until the woman ceases to breastfeed. This 
provision incorporates recent legislation. Section 203(b)(1) of the 
Child Nutrition and WIC Reauthorization Act of 2004, Public Law 108-
265, amended section 17(d)(3) of the Child Nutrition Act of 1966, 42 
U.S.C. 1786, to allow WIC State agencies the option to certify a 
breastfeeding woman for up to one year postpartum, or until the woman 
stops breastfeeding, whichever occurs first. This option became 
effective on October 1, 2004, pursuant to Section 502(b)(2) of Public 
Law 108-265.

Benefits

    This rule serves to streamline program administration and clarify 
program requirements, while minimizing economic and administrative 
burdens. As previously noted, one of this rule's provisions which may 
have a notable financial impact prohibits the use of the possibility of 
regression to a previous nutrition risk as the basis for determining 
nutrition risk eligibility in consecutive certifications when this 
nutrition risk is not actually present.
    For example, this provision would permit use of the possibility of 
regression to anemia as the nutrition risk for a certification 
following a certification when anemia was actually present, but not for 
any subsequent certification. If all of the participants certified 
based on the possibility of regression as a nutrition risk criterion in 
2004 were subsequently certified on this basis for one six-month 
certification period, then prohibiting use of this nutrition risk for 
consecutive certifications could save over $20 million and reduce 
participation by over 70,000 in that six-month period. However, given 
that possibility of regression is rarely used as the sole basis for 
determining nutrition risk, and that participants who had actually 
regressed to the previous nutrition risk would presumably be certified 
again, significant savings are unlikely.

Costs

    Most of the provisions in this final rule are generally 
economically insignificant to the costs and overall operations of the 
WIC Program. Some of the provisions reflect the current practice of 
many WIC State agencies, while others are optional at the discretion of 
WIC State agencies.
    As previously noted, one of this rule's provisions which may have a 
notable financial impact provides WIC State agencies with the option to 
extend the certification period for all participant categories until 
the end of the last month of the certification period, and also 
provides the option to extend a breastfeeding woman's certification 
period up to her infant's first birthday or until the woman ceases to 
breastfeed.
    Since this provision is optional, the number of WIC State agencies 
which may choose to extend these certification periods is unknown. 
Also, most women who continue to breastfeed longer than six months are 
presumably certified for a second six-month period. Therefore, 
implementation of the option to extend the certification period of 
breastfeeding women is not likely to have a major impact on either 
program participation

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among breastfeeding women or on program costs.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Kate Coler, 
Deputy Under Secretary, Food, Nutrition, and Consumer Services, has 
certified that this rule will not have a significant impact on a 
substantial number of small entities. State and local WIC agencies 
would be most affected because there are several additional program 
administration requirements. However, this rule also reduces 
considerably more program administration requirements. The net effect 
on State and local agencies is expected to result in reduced and 
streamlined administrative procedures. Participants and applicants 
would also be affected by changes in application processing, 
certification, and the disclosure of information.

Unfunded Mandates Reform Act

    Title II of the 1995 (UMRA), Public Law 104-4, establishes 
requirements for Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments and the 
private sector. Under section 202 of the UMRA, the Department generally 
must prepare a written statement, including a cost/benefit analysis, 
for proposed and final rules with ``Federal mandates'' that may result 
in expenditures to State, local, or tribal governments in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. When such a statement is needed for a rule, section 205 of the 
UMRA generally requires the Department to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, more cost-effective or least burdensome alternative that 
achieves the objectives of the rule.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) that impose costs on State, local, 
or tribal governments or to the private sector of $100 million or more 
in any one year. This rule is, therefore, not subject to the 
requirements of sections 202 and 205 of the UMRA.

Executive Order 12372

    The Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC) is listed in the Catalog of Federal Domestic Assistance 
Programs under No. 10.557. For reasons set forth in the final rule in 7 
CFR Part 3015, Subpart V, and related Notice (48 FR 29115, June 24, 
1983), this program is included in the scope of Executive Order 12372 
that requires intergovernmental consultation with State and local 
officials.

Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under section (6)(b)(2)(B) of Executive Order 13121. The 
Food and Nutrition Service (FNS) has considered the impact of this rule 
on State and local governments and has determined that this rule does 
not impose substantial or direct compliance costs on State and local 
governments, but that it does have Federalism implications because this 
rule preempts State law. Therefore, under section 6(b) of the Executive 
Order, a federalism summary impact statement is required.

Prior Consultation With State Officials

    Prior to drafting the final rule, a comment period was provided to 
permit State and local agencies and the general public the opportunity 
to comment on the proposed changes. In addition, some of the proposed 
changes were as a result of input from State and local agencies such as 
changing certification periods and greater flexibility in sharing 
confidential WIC information. Further, because the WIC Program is a 
State-administered, Federally funded program, FNS regional offices have 
formal and informal discussions with State and local officials on an 
ongoing basis regarding program and policy issues. This arrangement 
allows State and local agencies to provide comments that form the basis 
for many discretionary decisions in this and other WIC Program rules. 
Comments on the proposed rule and other comments, concerns and 
recommendations by State and local agencies through other forums have 
been beneficial in ensuring this final rule reflects concerns raised by 
these entities.

Nature of Concerns and the Need To Issue This Rule

    State agencies generally want greater flexibility in their 
implementation of program policy. As stated previously, this final rule 
provides State and local agencies greater flexibility in some areas 
such as certification periods and sharing WIC information. However, it 
was necessary in some areas to strengthen program accountability and 
integrity. Comments made by State and local agencies through the 
proposed rule process and through other forums assisted us in 
identifying areas of the regulations where greater flexibility can be 
afforded State and local agencies.

Extent to Which We Meet Those Concerns

    FNS has considered the impact of the final rule on State and local 
agencies. This rule makes changes to improve the accountability and 
effectiveness of the WIC Program, and to provide State and local 
agencies with greater flexibility in how they operate the program. The 
effects on State agencies are minimal since some requirements such as 
obtaining proof of pregnancy are optional requirements, and other 
requirements are codifying existing policy that the majority of State 
agencies have already implemented.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is intended to have preemptive effect with 
respect to any State or local laws, regulations or policies which 
conflict with its provisions or which would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect. 
Prior to any judicial challenge to the provisions of this rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.
    In the Special Supplemental Nutrition Program for Women, Infants 
and Children (WIC), the administrative procedures which must be 
exhausted are as follows. First, State agency hearing procedures 
pursuant to 7 CFR 246.9 must be exhausted for participants concerning 
denial of participation, disqualification, and claims. Second, State 
agency hearing procedures pursuant to 7 CFR 246.18(a)(1) must be 
exhausted for vendors concerning denial of authorization, termination 
of agreement, disqualification, civil money penalty or fine. Third, the 
State agency process for providing the vendor an opportunity to justify 
or correct the food instrument pursuant to 7 CFR 246.12(k)(3) must be 
exhausted for vendors concerning delaying payment for a food instrument 
or a claim. Fourth, State agency hearing procedures pursuant to 7 CFR 
246.18(a)(3) must be exhausted for local agencies concerning denial of 
application, disqualification, or any other adverse action affecting 
participation. Fifth, FNS hearing procedures pursuant to 7 CFR 246.22 
must be exhausted for State agencies concerning sanctions imposed by 
FNS. Sixth, administrative appeal to the

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extent required by 7 CFR 3016.36 must be exhausted for vendors and 
local agencies concerning procurement decisions of State agencies.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. After a careful 
review of the rule's intent and provisions, and the characteristics of 
WIC Program applicants and participants, FNS has determined that there 
is no way to soften their effect on any of the protected classes. All 
data available to FNS indicate that protected individuals have the same 
opportunity to participate in the WIC Program as non-protected 
individuals. FNS specifically prohibits State and local agencies 
operating the WIC Program from engaging in actions that discriminate 
against any individual in any of the protected classes; see 7 CFR 
246.8(a) for the non-discrimination policy of the WIC Program. Where 
State agencies have options, and they choose to implement a certain 
provision, they must implement it in such a way that it complies with 
the regulations at 7 CFR 246.8.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320) requires that the Office of Management and Budget (OMB) 
approve all collections of information by a Federal agency from the 
public before they can be implemented. Respondents are not required to 
respond to any collection of information unless it displays a current 
valid OMB control number. Information collections in this final rule 
have been previously approved under OMB 0584-0043, and no 
changes are needed as a result of this final rule.

E-Government Act Compliance

    FNS is committed to compliance with the E-Government Act, to 
promote the use of the Internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes. The new definitions 
of ``electronic signature'' and ``sign or signature'' are intended to 
facilitate paperless systems in all administrative activities of the 
program. The new State Plan requirements, as is the case with the 
entire State Plan, may be transmitted electronically by the State 
agency to FNS. Also, State agencies may share participant information 
electronically pursuant to a written agreement and consistent with 
Federal policy, including such information sharing based on the new 
non-WIC purposes provided in this final rule as well as the previously 
allowed non-WIC purposes.

Background

    On December 2, 2002, the Department published a proposed rule at 67 
FR 71774 concerning revisions of miscellaneous provisions of the WIC 
regulations. The comment period ended on April 1, 2003. Thirty-five 
letters were submitted to the Department to provide comments on the 
proposed revisions. We greatly appreciate these comments, all of which 
were carefully considered in the development of this final rule. 
Following is a discussion of each provision as proposed, the comments 
received, and an explanation of the provisions set forth in this final 
rule.

1. Definitions (Sec.  246.2)

    The proposed rule included new definitions for ``sign or 
signature'' and ``electronic signature,'' to provide State agencies the 
option of using electronic signatures in their administration of the 
WIC Program. This definition of ``electronic signature'' was derived 
from the Electronic Signatures in Global and National Commerce Act 
(Pub. L. 106-229, signed June 30, 2000), also known as ESIGN. The 
Department sought to introduce these definitions to clarify that use of 
the terms ``sign'' or ``signature'' throughout 7 CFR Part 246 is not 
intended to exclude the use of electronic signatures. At the same time, 
we also wanted to make clear that electronic signatures may be used 
only if the State agency ensures the reliability and integrity of the 
technology used and the security and confidentiality of electronic 
signatures collected in accordance with sound management practices, WIC 
Program regulations, and applicable Office of Management and Budget 
Circulars, including A-130, concerning confidentiality.
    All of the commenters supported the new definitions. However, 
several commenters sought clarifications. One commenter questioned 
whether the new definitions constituted an endorsement of the 
``paperless office'' concept, e.g., electronic certification forms. 
Similarly, another commenter asked whether the new definitions applied 
to vendor agreements. Finally, one commenter pointed to the need for 
protecting access to benefits in the event of a technology failure.
    The Department did not intend to confine the use of electronic 
signatures to one part of WIC Program administration, such as 
certification, so that electronic signatures could not be used in other 
administrative activities of the program, such as vendor management. 
Indeed, as indicated in the preamble of the proposed rule, the new 
definitions were intended to facilitate paperless systems. We recognize 
the efficiencies and advantages of paperless systems, and encourage 
State agencies to implement such systems in all administrative 
activities of the program. Of course, as previously noted, the 
reliability and integrity of such systems is paramount; this would 
include safeguarding benefits in the event of a technology failure or 
disaster.
    In addition, even though the Department supports the paperless 
office concept, this concept would not be mandated. This would be a 
State option, including the specific kind of technology adopted, as 
discussed in the preamble of the proposed rule. State agencies need to 
consider the costs, the views of participants, and the legal aspects of 
implementing this option. In this latter regard, State agencies should 
consult legal counsel on whether State law permits electronic 
signatures for certain kinds of documents, such as vendor agreements or 
contracts with local agencies. Accordingly, as set forth in the 
proposed rule, the definitions of ``sign or signature'' and 
``electronic signature,'' as proposed, are retained in this final rule.
    Recently, the Governmentwide Requirements for Drug-Free Workplace 
have been moved from 7 CFR part 3017 to 7 CFR part 3021 of the 
Departmental regulations. Therefore, this final rule includes a new 
definition of 7 CFR part 3021 to reference these requirements, and 
removes the reference to the drug-free requirements in the definition 
of 7 CFR part 3017. In addition, all other references to the drug-free 
workplace requirements in 7 CFR part 246 have been changed to reference 
Departmental regulations at 7 CFR part 3021. Further, unlike 7 CFR part 
3017, 7 CFR part 3021 does not require a certification regarding a 
drug-free workplace; accordingly, this certification requirement has 
been deleted from Sec.  246.3(c)(2). These changes are 
nondiscretionary, and do not require that the public be given an 
opportunity to comment.
    In addition, in this final rule, the definition of ``State'' has 
been revised to reflect a change in the definition of ``State'' in 
section 15 of the Child Nutrition Act of 1966 (CNA), 42 U.S.C. 1786, 
which applies to all programs under the CNA, including the WIC Program. 
The CNA no longer refers to the Trust Territory of the Pacific Islands

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since the Trust Territory no longer exists.
    Therefore, the revision to the definition of ``State'' is included 
in this final rule.
    Finally, we have added a definition of ``Employee fraud and 
abuse,'' as discussed in section 4 of this preamble.

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

    We proposed a number of new State Plan provisions which would be 
required under Sec.  246.4(a) of the WIC regulations. The comments on 
some of these State Plan provisions require more discussion than the 
comments on other proposed State Plan provisions. Therefore, these 
provisions are addressed in other sections of the preamble. Section 2 
of this preamble addresses provisions and comments which do not require 
extensive discussion.
    First, one commenter pointed out that we had not included a State 
Plan provision to provide State agencies the option to require 
applicants to provide proof of pregnancy in Sec.  246.4(a) of the 
proposed rule. As indicated elsewhere in the proposed rule and its 
preamble, we had intended that a new State Plan provision would be 
added to Sec.  246.4(a). However, this new provision was inadvertently 
omitted from the Proposed Rule. Accordingly, we have added it to this 
final rule.
    Second, several commenters objected to the proposed State Plan 
requirement for listing all of the organizations with which the State 
agency or its local agencies had written agreements on the sharing of 
confidential participant information. One of these commenters pointed 
out that this provision could delay implementation of an information-
sharing agreement if this agreement was executed after the annual 
submission of the State Plan. Another commenter stated that such a list 
in the State Plan would not constitute adequate notice to the 
applicant.
    As noted under section 22-C of this preamble, the proposed State 
Plan provision for listing all programs that have information-sharing 
agreements with the State agency and its local agencies, and the uses 
of such information, are only intended for informational purposes. As 
proposed, FNS did not intend to approve State agencies' decisions in 
this matter as long as the reasons for sharing information were 
consistent with the authorized uses in the proposed rule. Therefore, 
State and local agencies can execute such agreements prior to 
submission in State Plans. The process of providing a list to FNS is 
not intended to create a barrier to entering into information sharing 
agreements. Further, such lists are not intended to serve as notice to 
WIC applicants and participants. As proposed, and as required in this 
final rule, State agencies are required to provide applicants and 
participants with notification at certification of public organizations 
that WIC intends to share confidential WIC information and the purposes 
for sharing such information.
    Third, we have not included a revision to Sec.  246.4(a)(11)(ii) in 
this final rule. The proposed revision in this paragraph referred to 
describing the criteria for deciding who will be offered individual 
care plans. This proposed change has not been included in this final 
rule since it was an inadvertent error; we did not intend to propose a 
change in this paragraph.
    Finally, we have added a new sentence to Sec.  246.4(a) to require 
the use of a Universal Identifier as part of State Plans. The Office of 
Management and Budget (OMB) requires entities applying for Federal 
grants to provide government agencies with a Universal Identifier. This 
requirement is set forth in an OMB Policy Directive, ``Use of a 
Universal Identifier by Grant Applicants,'' which was published in the 
Federal Register on June 27, 2003, at 68 FR 38402. The annual WIC 
Program State Plan submission is considered an application for a 
federal grant, and thus covered by this requirement. Currently, the 
Universal Identifier system in use is the Data Universal Numbering 
System (DUNS) identification number. FNS has issued guidance on how to 
obtain a DUNS number. FNS will address the submission of DUNS numbers 
as part of the WIC State Plan Guidance. It is not necessary for FNS to 
issue a proposed rule on this revision to the WIC Program regulations 
since the OMB Policy Directive is nondiscretionary and is already in 
effect. Also, as explained in the preamble of the OMB Policy Directive, 
OMB has determined that use of a DUNS number is not a significant 
burden under the Paperwork Reduction Act.

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

    The Department proposed a new State Plan requirement for addressing 
employee conflicts of interest at the local agency level, as 
recommended by an August 1999 Report by the Government Accountability 
Office (GAO), FOOD ASSISTANCE: Efforts to Control Fraud and Abuse in 
the WIC Program Can Be Strengthened. We proposed a new paragraph in 
Sec.  246.4(a) to require that State agencies develop and implement 
policies and procedures to prevent conflicts of interest within the 
local agency staffs. Specifically, we wanted State agencies to develop 
policies and procedures concerning local agency employees certifying 
themselves, relatives or friends, and also concerning an employee both 
certifying and issuing food benefits to a participant, i.e., lack of 
separation of duties.
    At the same time, we recognized in the preamble of the proposed 
rule that there may be practical circumstances, such as the 
availability of only one employee to conduct a clinic, which would 
preclude a strict prohibition on some practices. For such situations, 
we pointed out, an effective alternative policy or procedure would be 
needed, such as supervisory review of the records of the certifications 
and benefits issuance performed by such employees. As noted below in 
this section, we have added language to the proposed paragraph to 
recognize that effective alternative policies and procedures will be 
needed when strict prohibition is not possible.
    Most of the commenters supported the proposed provision. (The 1999 
GAO study found that most of the WIC State agencies had policies on 
conflicts of interest and separation of duties.) Commenters opposing 
the proposed provision based their position on the practical 
difficulties precluding a strict prohibition on conflicts of interest, 
arguing that sometimes no effective alternative policy or procedure 
would be possible. In this regard, one of the supporting commenters 
requested that the proposed provision itself require reasonable 
policies and procedures when actual separation of duties is not 
possible, instead of stating this only in the preamble. Also, one of 
the commenters opposing the provision stated that separation of duties 
is not violated when one staff member conducts part of the 
certification and also issues food instruments; for example, if one 
staff member determines income eligibility and issues food instruments, 
this should be deemed acceptable if another staff member determines 
nutrition risk.
    As previously noted, we have added language to the proposed 
paragraph to permit effective alternative policies and procedures when 
strict prohibition is not possible. This additional language provides 
more explicit guidance than merely inserting the term ``reasonable.'' 
Also, we do not support the comment that there may be circumstances 
where no effective alternative policy or procedure is possible. State 
agencies should consult with the appropriate FNS Regional office and 
with legal

[[Page 56712]]

counsel for advice on alternative approaches to deal with difficult 
circumstances complicating strict compliance with the requirements 
regarding conflicts of interest and separation of duties.
    We agree with the comment indicating that separation of duties is 
not violated if at least two WIC personnel are integral to the 
certification of a participant. The reason for the separation of duties 
concept is to ensure that one employee cannot both certify and issue 
benefits. The commenter opposing the provision correctly pointed out 
that this requirement is satisfied if two WIC employees are required to 
perform certification determinations even though one of them also 
issues food instruments, since the person issuing food instruments 
could not complete the certification process alone. Therefore, we have 
revised the proposed paragraph to require the State agency to prohibit 
one employee from being solely responsible for determining the 
eligibility of an applicant for all certification requirements and for 
issuing food instruments to that participant, or to provide effective 
alternative policies and procedures for situations when such 
prohibition is not possible. Moreover, this revision also applies to 
circumstances when an employee might be certifying herself or friends 
and relatives because no other staff is available.
    Accordingly, in this final rule, the proposed paragraph has been 
added to Sec.  246.4(a), revised as noted above.

4. Participant and Employee Fraud and Abuse (Sec.  246.4(a))

    Also in response to the GAO study on WIC fraud and abuse, the 
Department proposed to require a description in the State Plan of the 
State agency's plans for collecting and maintaining information on 
cases of participant and employee fraud and abuse, including the nature 
of the fraud detected and the associated dollar losses. As proposed, 
this requirement would be added to Sec.  246.4(a).
    Most of the commenters supported the proposed provision. In fact, 
the GAO study reflected that 30 of the 51 WIC State agencies responding 
to the GAO survey collected information on the number and 
characteristics of participants who engage in fraud and abuse. 
Commenters opposing the proposed provision stated that it was 
unnecessary because participant and employee fraud is minimal; one 
commenter stated that participant fraud and abuse should have declined 
as a result of the WIC Certification Integrity Rule (65 FR 77245, 
December 11, 2000), which requires applicants to provide proof of 
income, residency and identity.
    We do not support these positions. It is not possible to determine 
the extent of potential fraud and abuse in the program when some State 
agencies may not be collecting data on this matter. Moreover, the 
documentation requirements of the Certification Integrity Rule are only 
one part of our efforts to detect and prevent fraud and abuse. Such 
requirements cannot be relied upon to prevent all fraud and abuse. 
Further, the Certification Integrity Rule did not address employee 
fraud and abuse.
    Some commenters opposing the proposed provision also stated that 
collecting information on participant and employee fraud and abuse 
would be administratively burdensome. We recognize that such activity 
will involve some administrative burden, but we do not believe that 
collecting information on the nature and costs of participant and 
employee fraud and abuse is unduly burdensome. As previously noted, a 
majority of WIC State agencies are already collecting this data. 
Moreover, as indicated by GAO, failure to collect such information may 
send an unintentional message to agency officials and other 
stakeholders that preventing and detecting participant/employee fraud 
and abuse is a low priority, thus damaging the public's trust in the 
WIC Program.
    Some of the supportive commenters requested clarification on the 
meaning of several terms, including ``participant fraud and abuse,'' 
``employee fraud and abuse,'' and ``dollar losses.'' Two of these terms 
have already been defined in the regulations and further clarified in a 
policy memorandum. Section 246.2 sets forth the definition of 
``participant violation,'' which is the equivalent of ``participant 
fraud and abuse.'' Regarding dollar losses, Sec.  246.23(c)(1)(i) 
requires a claim for the full value of benefits that have been obtained 
or disposed of improperly as the result of a participant violation. The 
full value of such benefits would be either the total purchase price of 
the food instruments involved or the total post-rebate food cost of the 
benefits involved, and would not include the nutrition services and 
administration (NSA) costs expended for the participant; see WIC Policy 
Memorandum 2002-1, Revision 1, Clarification of WIC Food 
Delivery Systems Final Rule Questions and Answers, June 10, 2003, page 
M-1, Question 1. Finally, we agree that ``employee fraud and abuse'' 
should be defined in the regulations. Accordingly, in this final rule, 
in Sec.  246.2, we have added a definition of this term, based on the 
definition used in the GAO study.
    Several supportive commenters raised other issues. Several 
commenters indicated that the State agency should collect the 
information on participant and employee fraud and abuse, instead of 
making local agencies responsible for collecting and maintaining the 
information. The preamble of the proposed rule indicated that this 
provision would require only a description of the State agency's plans 
for collecting this information.
    Therefore, as set forth in the proposed rule, State agencies should 
track this information in order to detect trends and to allocate its 
investigative, audit, and technical assistance resources accordingly. 
Also, such information does not always originate at the local agency 
level, as when a State agency initiates an investigation based on an 
anonymous tip provided to the State agency indicating fraudulent 
activity involving a local agency. Therefore, a revision to the 
provision, as suggested, is not necessary.
    Finally, we note that several comments expressed concern that the 
requirement for collecting information on participant and employee 
fraud and abuse would ultimately become a requirement for State 
agencies to report this information to FNS. The proposed rule did not 
include a requirement to report such information to FNS, and neither 
does this final rule. However, the aforementioned GAO study clearly 
pointed towards such a reporting requirement, finding that the absence 
of this data adversely impacts FNS' and State agencies' ability to 
manage the program. As explained in the study, GAO decided not to 
recommend such a reporting requirement because FNS had indicated that 
it would work with State agencies and the National WIC Association 
(NWA) to develop cost-effective strategies for reporting the data to 
FNS. FNS and NWA are currently working to identify such a strategy.

5. Selection of Local Agencies (Sec.  246.5)

    The Department proposed to remove the requirement in the current 
Sec.  246.5(c)(1) and (d)(2) of the regulations for WIC State agencies 
to fund new local agencies in areas based on the sequential order of 
neediest areas listed in the Affirmative Action Plans that are part of 
each State agency's Plan of Operation. This change was intended to 
provide State agencies with the flexibility to select a local agency in 
the neediest unserved area where practical circumstances permit, so 
that, for example, a local agency may be selected in an unserved needy 
area where a

[[Page 56713]]

health care infrastructure exists instead of a local agency in an area 
with greater need but without a health care infrastructure.
    The majority of the commenters supported the proposed provision. 
However, a few commenters either opposed the proposed revision or 
expressed reservations. The opposing commenters stated that areas with 
the greatest need should continue to be the highest priority for 
selection of new local agencies. One of the commenters recommended that 
the provision specify that the selection of local agencies is 
contingent on the availability of funds, and another commenter 
recommended that the Affirmative Action Plan should be required until 
WIC services have been made available equally throughout all areas of 
the State.
    It was not the intent of the proposed provision that State agencies 
ignore the Affirmative Action Plan. The proposed rule would have 
required the State agency to consider the Affirmative Action Plan, but 
not be bound by it. The Department believes that the State agency is in 
the best position to judge whether the practical circumstances should 
supersede the Affirmative Action Plan when selecting a new local 
agency. Also, it is not necessary to state in the regulations that 
selection of a new local agency is subject to the availability of 
funds. It is understood that the State agency is responsible for 
ensuring the availability of funds and applying this factor in the 
selection of local agencies.
    Accordingly, as proposed, this final rule removes the requirement 
in Sec.  246.5(c)(1) and (d)(2) of the regulations for WIC State 
agencies to fund new local agencies in areas based on the sequential 
order of neediest areas listed in the Affirmative Action Plans that are 
part of each State agency's Plan of Operation.

6. Requesting Proof of Pregnancy, Checking Identification and Other 
Basic Certification Procedures (Sec.  246.7(c))

    The Department proposed to expand Sec.  246.7(c) to address several 
basic certification procedures, along with the delineation of 
eligibility criteria, in an effort to highlight the importance of 
certain procedures, such as providing proof of residency and proof of 
identity, and ensuring that applicants are not charged for 
certification. To accomplish this, we proposed to move several 
provisions and to add a provision. We proposed to move the provision 
addressing proof of residency/proof of identity from Sec.  246.7(l)(2) 
to Sec.  246.7(c)(2)(i), and to move the provision requiring program 
certification without charge to the applicant from Sec.  246.7(m) to 
Sec.  246.7(c)(4). We also proposed a new provision addressing 
pregnancy tests.
Proof of Pregnancy
    The Department proposed basic guidelines that State and local 
agencies must observe if the State agency chose to require 
documentation of pregnancy as part of the certification process. For 
these reasons, we proposed to add a new paragraph (c)(2)(ii) stating 
that State agencies may issue benefits to applicants who claim to be 
pregnant (assuming that all other eligibility criteria are met) but 
whose conditions (as pregnant) are not visibly noticeable and do not 
have documented proof of pregnancy at the time of the certification 
interview and determination. The State agency would then be allowed a 
reasonable period of time, not to exceed 60 days, for the applicant to 
provide the requested documentation. If such documentation was not 
provided as requested, the local agency would then be justified in 
terminating the woman's WIC participation during the certification 
period.
    The majority of commenters supported the proposed provision, 
although some of these comments sought clarification on whether this 
provision would be optional. Some of the supportive commenters also 
recommended the provision apply only when fraud was suspected. Other 
supportive commenters recommended visual observation by a professional 
to confirm pregnancy instead of self-testing or testing by WIC. Also, 
one commenter recommended 90 days for the participant to provide proof, 
consistent with current WIC policy. Commenters opposing the proposed 
provisions stated that requiring proof of pregnancy would be a barrier 
to participation, potentially eroding prenatal care and leading to 
lower birth weights.
    As indicated in the preamble of the proposed rule, the Department 
intends for proof of pregnancy to be a State option. Therefore, in 
response to commenters' concerns, we have revised the proposed 
paragraph to clarify this issue. State agencies concerned about proof 
of pregnancy becoming a barrier to participation could choose not to 
implement this option. Further, a State agency could choose to continue 
to use visual observation of pregnancy, and require proof only when the 
information is questionable and/or fraud is suspected.
    The Department agrees with commenters who expressed concern about 
the cost of pregnancy tests. Proof of pregnancy is not a mandatory 
condition of eligibility for the WIC Program. As a result, the costs 
associated with obtaining such documentation are not allowable WIC 
nutrition services and administrative expenditures. Also, such costs 
cannot be borne by the participant since Sec.  246.7(m) requires that 
the certification procedure shall be performed at no cost to the 
participant.
    As noted above, some commenters recommended a 90-day timeframe for 
the participant to provide documentation of pregnancy, consistent with 
current WIC policy. This policy was issued in 1992. However, this 
policy was superseded by legislation. Section 17(d)(3)(B) of the CNA 
was added in 1994. The legislation specifies that an income-eligible 
pregnant woman may be considered presumptively eligible to participate 
in the WIC Program and may be certified immediately without an 
evaluation of nutritional risk for a period up to 60 days. Since the 
determination of nutrition risk requires knowledge of the participant's 
categorical status, i.e., her pregnancy, proof of pregnancy must be 
provided within 60 days after certification, assuming that the State 
agency has opted to require such proof.
    Therefore, the provisions as proposed pertaining to proof of 
pregnancy remain unchanged in this final rule.

7. Determining Income Eligibility (Sec.  246.7(d))

    The Department proposed several changes to this section of the 
regulations, as discussed below.
A. Use of State or Local Income Health Care Guidelines to Determine 
Income Eligibility for WIC
    The first proposed revision, at paragraph (d)(2)(iii), would 
require State agencies using State or local income guidelines for free 
or reduced-price health care to base the income eligibility 
determinations of WIC applicants on the income and family definition 
and exclusions set forth in Sec. Sec.  246.7(d)(2)(ii), 246.2, and 
246.7(d)(2)(iv), respectively. This change would continue to allow 
variation among the State agencies only with regard to the actual 
income guidelines used (i.e., the percent of gross income above the 
Federal poverty income guidelines, up to a maximum of 185 percent), but 
not with the definition of income, family, or exclusions from income. 
This proposed revision would continue the WIC Program's current policy 
of excluding from these requirements persons who are determined 
adjunctively or automatically income eligible.

[[Page 56714]]

    We proposed this change for two reasons. First, although Sec.  
246.7(d)(1) permits use of State or local free or reduced-price health 
care income guidelines, these guidelines cannot exceed 185 percent of 
the Federal poverty income guidelines; in fact, all WIC State agencies 
currently use 185 percent of the Federal poverty income guidelines. 
Second, procedurally it would be simpler for local agencies to apply 
the WIC income definition and exclusions outlined in the regulations to 
all applicants rather than apply two sets of income guidelines and 
family definitions and exclusions to ensure WIC eligibility 
requirements are met.
    The majority of commenters supported this revision, although one 
supportive commenter suggested that the Department consider adopting 
the definition of ``family'' used by the Federal Department of Health 
and Human Services (HHS) to promote one-stop shopping. Similarly, one 
of the few opposing commenters stated that the revision would force the 
cessation of integrated applications for multiple programs because WIC 
income determinations would no longer be able to use the income 
definitions of other programs.
    Use of the HHS definition of ``family'' could result in the 
exclusion of income potentially being shared by household members such 
as unrelated individuals who are living together. Such action would not 
represent actual household circumstances with regard to income 
eligibility. Further, by law, WIC income eligibility guidelines (185 
percent of poverty) are those guidelines used for the National School 
Lunch Program (NSLP). Therefore, the rules and policies used for the 
NSLP are used for the WIC Program with regard to normal income 
screening procedures, including definition of family. As a result, the 
Department does not support this commenter's recommendation.
    Accordingly, this final rule, in Sec.  246.7(d)(2)(iii) retains the 
provisions as proposed.
B. Consideration of Loans as Income
    The Department proposed to exclude short-term, unsecured loans from 
the WIC income determination process. Program regulations have not 
specifically addressed this issue; however, FNS Instruction 803-3, Rev. 
1, WIC Program--Certification: Income Eligibility, dated April 1, 1988, 
clarifies that funds from loans are not to be counted as income because 
they are only temporarily available and must be repaid.
    All of the commenters supported the revision. However, several 
commenters requested guidance on the meaning of the term ``short-term, 
unsecured,'' and guidance on the types of loans that would be excluded.
    Accordingly, in Sec.  246.7(d)(2)(iv)(C) of this final rule, the 
Department has decided to delete the term ``short-term, unsecured,'' 
and to delete the reference to the expectation that the loan will be 
repaid in a reasonably short period of time since these phrases are 
unnecessary. By definition, loans are only temporarily available and 
must be repaid, so that inclusion of loans as income would be 
inappropriate in the WIC income determination process. We have retained 
the term ``constant and unlimited access,'' since this explains why a 
loan would not constitute income. This is consistent with the term 
``other cash income'' at Sec.  246.7(d)(2)(ii)(L), which refers to 
resources which are easily accessible to the family.

8. Limitation on the Use of Possibility of Regression as a Nutrition 
Risk Criterion (Sec.  246.7(e)(1)(vi))

    As explained in the proposed rule, historically, program 
regulations have permitted WIC participants to remain on the program 
due to the possibility of regression, i.e., previously certified 
participants who might regress in nutritional status if they are not 
allowed to continue to receive WIC benefits. This has been allowed as a 
nutrition risk criterion in order to prevent the revolving door 
situation whereby the nutrition risk status of individuals improves as 
a result of participation in the WIC Program and they are removed at 
the conclusion of a certification period, only to deteriorate in 
nutrition status at a later date, necessitating re-entry into the 
program.
    It has always been the Department's position that the possibility 
of regression as a nutrition risk criterion should not be used 
excessively because it could result in situations where individuals 
with no current nutrition risk condition are served while eligible 
applicants who have current, documented risks go unserved. Therefore, 
in regulations, the Department confirmed the State agency's authority 
to limit the number of times and circumstances under which a 
participant may be certified for possible regression. Many State 
agencies have adopted limitations.
    In an effort to ensure that all State agencies target benefits to 
those at greatest nutrition risk, the Department proposed to limit the 
use of regression as a nutrition risk criterion to only one time 
following a certification period. In other words, consecutive 
certification periods based on regression would not be allowable. In 
addition, as proposed, individuals who are certified based on the 
possibility of regression would be placed in either the same priority 
for which they were initially certified, or in Priority VII (for all 
participants certified based on regression), if the State agency is 
using that priority level.
    The majority of commenters supported the proposed provisions. Those 
commenters opposing the limitation on the use of regression stated that 
WIC serves a vulnerable population that is food insecure, often 
spending scarce dollars on food last, after other expenses. Therefore, 
applicants denied certification due to lack of a nutrition risk would 
be certified shortly thereafter with a nutrition risk that may not have 
occurred had they remained on the program. Such commenters stated that 
this result would conflict with WIC's preventive role. However, the 
Department continues to believe that the repeated use of regression in 
consecutive certification periods undermines the Department's efforts 
to target benefits to those persons in greatest need and at greatest 
nutrition risk.
    Further, some commenters cited the Institute of Medicine (IOM) 
report ``Dietary Risk Assessment in the WIC Program,'' March 2002, as 
supporting their position that the proposed provision would conflict 
with WIC's preventive role since some nutrition risks may require more 
than one regression certification period to be resolved. One commenter 
stated that the use of regression should not be limited since the IOM 
findings indicate that the tools to assess dietary adequacy are not 
valid.
    The IOM report found that 96 percent of all individuals in the 
United States and a higher percentage of low-income individuals fail to 
consume the recommended number of daily servings specified by the 
Dietary Guidelines for Americans, and that there is no scientifically 
valid method to assess an individual's usual dietary intake. Concerning 
WIC eligibility, the report recommended a presumption of nutrition risk 
for all otherwise eligible women, and children 2 to 5 years old, based 
on failure to meet dietary guidelines. The IOM report did not include 
findings or recommendations specific to regression. The Department 
believes that prohibiting consecutive certification periods based on 
regression will not result in denying benefits to WIC applicants who 
are at nutrition risk based on dietary inadequacy.
    Several supporting commenters recommended certain revisions to the

[[Page 56715]]

proposal. One commenter stated that the provision should allow an 
applicant to be certified for regression to a different priority, such 
as children to Priority V who had previously been certified at Priority 
III, consistent with Sec.  246.7(e)(4). Another commenter sought 
clarification of the rule so that regression only applies to children 
and breastfeeding women. Finally, one commenter requested that the 
final rule clarify whether the provision to certify only once based on 
regression can actually be used more than once for the same participant 
as long as the occurrences are not consecutive.
    The Department agrees with the suggestion that WIC agencies should 
be permitted to assign an applicant to a different priority level for 
regression other than the one used in the previous certification, or 
Priority VII, as long as it is a lower priority than the priority level 
assigned at the previous certification, consistent with Sec.  
246.7(e)(4). It is important to recognize that a participant certified 
for regression, without any currently-existing nutrition risk 
condition, could be placed in a higher priority level than a 
participant who has, for example, a dietary condition. In the event of 
funding limitations, this could result in the certification of one 
applicant based on regression while another applicant with an existing 
nutrition risk condition is denied benefits. To avoid this consequence, 
as we pointed out in the preamble of the proposed rule, the State 
agency should consider assigning a lower priority level for 
participants certified based on regression.
    Accordingly, in Sec.  246.7(e)(1)(vi) of this final rule, in 
addition to placing applicants certified based on regression in the 
same priority category used at initial certification, or in Priority 
VII, State agencies may also use another priority level lower than the 
priority level for which they were assigned at the previous 
certification, consistent with Sec.  246.7(e)(4).
    We have also clarified in this final rule that applicants shall not 
be certified for regression for consecutive certification periods. 
Therefore, participants could be certified for regression more than 
once during the time they actually participate in the program, as long 
as they are not certified based on regression for consecutive 
certification periods.
    Based on commenters' concerns, the final rule also clarifies that 
when certifying participants for regression and assigning a priority 
category, the nutrition risk criterion of the participant during the 
previous certification period must be appropriate for the category of 
the participant for the subsequent certification. For instance, as 
pointed out in the preamble of the proposed rule, a postpartum woman 
should not be certified based on the possibility of regression to 
hyperemesis gravidum (morning sickness), since this condition is unique 
to pregnancy and cannot occur postpartum. As previously noted, a 
supporting commenter requested a prohibition on the use of regression 
as a nutrition risk criterion for pregnant women, infants and 
postpartum non-breastfeeding women since only one certification period 
is permitted for these categories. Actually, under the current Sec.  
246.7(g), a State agency may provide a six-month certification period 
for infants, but the commenter correctly indicates that certain 
nutrition risk conditions cannot cross over from one category to 
another.

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

    In response to concerns cited by Congress, State agencies, and the 
NWA, the Department proposed to modify the timeframes for certification 
periods in order to make them more consistent across participant 
categories. Section 246.7(g)(1) of the current regulations establishes 
the following timeframes for certification:

------------------------------------------------------------------------
               A/an:                       Is currently certified:
------------------------------------------------------------------------
Pregnant woman....................  For the duration of her pregnancy,
                                     and up to six weeks after the
                                     infant is born or the pregnancy is
                                     ended.
Postpartum woman..................  Up to 6 months after the baby is
                                     born or the pregnancy is ended
                                     (postpartum).
Breastfeeding woman...............  Every six months ending with the
                                     infant's first birthday.
Infant............................  Approximately every six months. The
                                     State agency may permit its local
                                     agencies to certify infants under
                                     six months of age for a period
                                     extending up to the first birthday,
                                     provided the quality and
                                     accessibility of health care
                                     services are not diminished.
Child.............................  Approximately every six months
                                     ending with the last day of the
                                     month in which a child reaches his/
                                     her fifth birthday.
------------------------------------------------------------------------

    Some State agencies expressed concern that the current timeframes 
for establishing certification periods are complicated and 
administratively burdensome, requiring the frequent proration of 
monthly food benefits and special data processing capabilities to 
accommodate specific cut-off dates. Also, NWA expressed concern about 
the lack of consistency in current certification period timeframes. In 
response, the Department proposed to allow certification periods for 
all participant categories to be extended to the end of the month. 
Specifically, the following maximum certification periods were proposed 
in Sec.  246.7(g)(1):

------------------------------------------------------------------------
               A/an:                         Will be certified:
------------------------------------------------------------------------
Pregnant woman....................  For the duration of her pregnancy,
                                     and up to the last day of the month
                                     in which the infant becomes six
                                     weeks old. (For example, if the
                                     infant is born June 4, six weeks
                                     after birth would be July 16, and
                                     certification would end July 31).
Postpartum woman..................  Up to the last day of the sixth
                                     month after the baby is born or the
                                     pregnancy ends (postpartum).
Breastfeeding woman...............  Approximately every six months
                                     ending with the last day of the
                                     month in which the infant turns 1
                                     year old.
Infant............................  Approximately every six months. The
                                     State agency may permit its local
                                     agencies to certify infants under
                                     six months of age up to the last
                                     day of the month in which the
                                     infant turns 1 year old, provided
                                     the quality and accessibility of
                                     health care services are not
                                     diminished.
Child.............................  Approximately every six months
                                     ending with the last day of the
                                     month in which a child reaches his/
                                     her fifth birthday. (No change from
                                     current regulations).
------------------------------------------------------------------------


[[Page 56716]]

    Commenters overwhelmingly supported the proposed changes to the 
certification period. However, many of the supporters requested further 
revision of the certification period requirements to extend the current 
six-month certification periods for breastfeeding women to coincide 
with the option to certify breastfed infants up to the infant's 1st 
birthday, or until the women cease breastfeeding, whichever occurs 
first, and to establish 12-month certification periods for children.
    Subsequent to publication of the proposed rule and receipt of 
comments, the certification period for breastfeeding women was 
addressed in Congress in Public Law 108-265, the Child Nutrition and 
WIC Reauthorization Act of 2004, enacted on June 30, 2004. Section 
203(b)(1) of that Act amended section 17(d)(3) of the CNA to allow 
State agencies the option to certify a breastfeeding woman for up to 
one year postpartum, or until the woman stops breastfeeding, whichever 
occurs first. This provision became effective on October 1, 2004. FNS 
notified State agencies of the effective date of this provision on 
August 5, 2004. Consequently, there is no need to address the comments 
on the proposed rule concerning the certification period for 
breastfeeding women. Instead, we are using this final rule to revise 
Sec.  246.7(g)(1)(iii) to codify the option set forth in legislation on 
the certification period for breastfeeding women.
    However, we do not support the recommendation of some commenters to 
change the certification period for children from every 6 months to 
every 12 months. The current six-month certification period increases 
the likelihood that the child will receive a health assessment and that 
nutrition education or other nutrition intervention will be provided to 
the parent/caretaker. Assessing a child's nutritional and health status 
at six-month intervals is also consistent with the WIC Program's 
emphasis on preventing childhood obesity.
    One commenter who opposed the proposed changes to the certification 
periods indicated that costly changes would be needed to an automated 
system that defaults to the 30th day even if a month ends on the 31st 
day. Another commenter who opposed the changes expressed concern about 
the need for partial food packages if the proposed rule would require 
that food packages could only be issued to the end of the month. 
Likewise, one commenter who supported the changes requested 
clarification on the implications of the proposed rule if the 
certification period ends on the first day of a month.
    As noted in the preamble of the proposed rule and intended by this 
final rule, these new provisions would not remove the authority of 
State agencies to maintain current certification period lengths or to 
permit local agencies to shorten certification periods on a case-by-
case basis. For example, some State agencies that certify all infants 
every six months, may choose to continue certifying breastfeeding women 
every six months and not implement the option to extend certification 
periods up to the end of the month in which infants turn one year old. 
Further, proration of program benefits continues to be an effective 
means of targeting benefits and managing program costs. Also, the final 
rule does not abridge the discretion of State agencies to maintain 
current certification periods or to prorate benefits in order to 
accommodate automated systems, although enhancement of such systems may 
be a more effective strategy to address certification periods. As 
indicated previously, State agencies are encouraged to contact the 
appropriate FNS regional office to identify potential sources of funds 
for this purpose in addition to the administrative funds provided as 
part of the WIC grant.
    Accordingly, this final rule provides for the following 
certification periods in Sec.  246.7(g)(1):

--------------