PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend section 60-1.13 of Title 10 NYCRR.
Statutory authority:
Public Health Law, section 2500
Subject:
WIC Vendor Minimum Stocking Requirements.
Purpose:
Amends vendor applicant enrollment criteria relative to stocking minimum quantities of WIC acceptable foods.
Text of proposed rule:
Pursuant to the authority vested in the Commissioner of Health by Section 2500(1) of Title 1 of Article 25 of the Public Health Law, Section 60-1.13 of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York is hereby amended, to be effective upon publication of a Notice of Adoption in the New York State Register to read as follows:
60-1.13 Vendor applicant enrollment criteria.
(a) Any food store (excluding pharmacies) which applies for participation in the WIC program shall be enrolled via a State Health Department approved one-year expirable contract if all of the following criteria are met. If all the criteria are not met, the vendor may not be enrolled.
(4) The applicant vendor shall stock [and maintain] WIC-acceptable foods, as determined by the New York State Department of Health, in the [following] minimum quantities[:] prescribed in the vendor application document at the time of enrollment.
[Item Minimum Quantity
Milk 35 qts.-fluid and 9 quarts-dry (each unit 3 quarts or larger) and, if required by the WIC local agency, 4 units of lactose-reduced milk
Cereal 3 boxes of each of three varieties of adult cold cereals (total of 9 boxes) and 3 boxes of adult hot cereal and 3 boxes of infant cereal
Eggs 5 dozen eggs (medium and/or large and/or extra large)
Juice 8 units of fluid juice (can, bottle, or carton - 1 quart or larger) (3 varieties) or 90 oz. of frozen juice (each unit 6 oz. or larger) (3 varieties)
Infant juice 20 - 4.2 oz. jars
Cheese 5 - 1 lb. units (3 or more varieties)
Peanut butter 5 - 18 oz. jars
Formula-iron fortified 1 case each of 2 brands of milk-based formula; and
Formula 1 case of soy-based formula]
(b) Any pharmacy which applies for participation in the WIC program shall be enrolled if all the following criteria are met. Any vendor who meets these criteria should be enrolled via a State Health Department approved one-year expirable contract.
(2) The applicant pharmacy shall stock[s a minimum of three cases of iron-fortified] formula [(one case soy for every three cases milk-based). A minimum of two brands of milk-based formula are available.] in the minimum quantities prescribed in the vendor application document at the time of enrollment.
Text of proposed rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
Statutory Authority:
Public Health Law § 2500 provides the commissioner with authority relative to maternal and child health and mandates that the commissioner "shall administer such services bearing on the health of mothers and children for which funds are or shall hereafter be made available." This includes the federal Women, Infant and Children's (WIC) program funding.
Basis:
As it relates to the consensus rule definition, the proposal will:
• eliminate requirements no longer applicable. Obsolete requirements currently in the regulation will not be carried over to the vendor application document listing minimum stock quantity requirements.
• apply the same mandatory provisions, as they relate to minimum stock requirements, currently required of vendors participating in the WIC program.
• effect a technical, noncontroversial change by combining minimum stock requirement language in the regulations with that in the vendor application packet into the application document only. The rule will identify the vendor application as the lawful source of minimum stock requirement text.
The Department of Health does not anticipate any opposition to the proposal and expects vendors to favor it for several reasons:
• It simply merges minimum stock requirements, currently specified in State regulations and in the vendor application packet, into a single document within the application. The actual foods required to be stocked (currently and in the future), and their minimum amounts, are not affected.
• Obsolete and contradictory stocking requirements in the regulations will be removed.
• There are no costs associated with the proposal since it will not change that which is currently required. New foods will be added to the required stock list as a result of the USDA WIC food package changes specified in federal regulations, but this will occur whether or not the State regulations are changed.
• This change will result in the WIC program being more responsive to feedback from the vendor community since the amendments permit changes in the marketplace to be recognized, such as with preferences in baby formula.
• The WIC program will have the flexibility to establish different minimums for different vendor groups, commensurate with participant volume or store size.
• The rule change has been discussed with major vendor organizations within New York State and they have responded encouragingly. Both the Food Industry Alliance of New York State Inc. and the National Supermarket Association have expressed their support for the proposal.
Job Impact Statement
A Job Impact Statement is not required. The objective of the rule change is to remove obsolete minimum stock quantity requirements in Title 10 Section 60-1.13 and replace it with language stating that minimum quantity requirements for WIC vendor applicants will be found in the application document. This will ensure there is one source for all minimum quantity requirements. It is apparent from the nature and purpose of this rule that it will have no impact on jobs or employment opportunities.
