[Federal Register Volume 65, Number 238 (Monday, December 11, 2000)]
[Rules and Regulations]
[Pages 77245-77250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31452]



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Rules and Regulations
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Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / 
Rules and Regulations

[[Page 77245]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AC76


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Certification Integrity

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule adopts an interim rule amending 7 CFR part 246 
which was published on January 21, 2000, at 65 FR 3375 for the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC). 
The interim rule and this final rule implement three legislative 
requirements that affect the application and certification process for 
the WIC Program. These legislative requirements can be found in the 
William F. Goodling Child Nutrition Reauthorization Act of 1998. In 
addition, this final rule implements several nondiscretionary 
legislative requirements in the Agricultural Risk Protection Act of 
2000 that also affect the WIC application and certification process. 
One of these provisions was subsequently amended by the Grain Standards 
and Warehouse Improvement Act of 2000, Public Law 106-472, enacted 
November 9, 2000. Therefore, this final rule adopts requirements that 
WIC applicants, except in limited circumstances, present documentation 
of family income at certification for those individuals who are not 
certified based on adjunctive income eligibility procedures; present 
proof of residency as part of a State agency's system to prevent dual 
participation; and, physically present themselves at certification. In 
addition, this final rule allows individuals residing in a remote 
Indian or Native village or served by an Indian tribal organization and 
residing on a reservation or pueblo, to provide the name of the village 
and mailing address as proof of residency, and defines ``remote Indian 
or Native village.'' Further, this final rule provides State agencies, 
in determining an applicant's eligibility for WIC, the option to 
exclude from consideration as income any cost-of-living allowance 
provided to military personnel who are on duty outside the contiguous 
United States. The intent of these provisions is to strengthen the 
integrity of the WIC certification process and to consider the needs of 
special populations in determining eligibility for the WIC Program.

EFFECTIVE DATE: This rule is effective January 10, 2001.

FOR FURTHER INFORMATION CONTACT: Debbie Whitford at (703) 305-2746 
during regular business hours (8:30 a.m. to 5 p.m.) Monday through 
Friday.

SUPPLEMENTARY INFORMATION:

1. Why is This Regulation Necessary?

    On January 21, 2000, the Department published an interim rule at 65 
FR 3375 to implement three legislative requirements in the William F. 
Goodling Child Nutrition Reauthorization Act of 1998, Public Law 105-
336, 112 Stat. 3143, enacted October 31, 1998, which affect the 
application and certification process. These provisions include, with 
limited exceptions, that WIC agencies require WIC applicants and 
participants to: (1) Provide proof or documentation of family income in 
cases where an individual is not determined adjunctively or 
automatically income eligible; (2) provide proof or documentation of an 
applicant's residency; and (3) physically present themselves at the WIC 
clinic at certification. Comments were requested by the Department on 
the interim rule. Comments received on the interim rule are discussed 
below.
    Subsequently, legislation was enacted on June 20, 2000, the 
Agricultural Risk Protection Act of 2000, Public Law 106-224, 114 Stat. 
224, which includes several nondiscretionary provisions that also 
affect the WIC application and certification process. One of these 
provisions was subsequently amended by the Grain Standards and 
Warehouse Improvement Act of 2000, Public Law 106-472, 114 Stat. 2058, 
enacted on November 9, 2000. The Agricultural Risk Protection Act of 
2000 allows individuals residing in a remote Indian or Native village 
or served by an Indian tribal organization and residing on a 
reservation or pueblo, to provide their mailing address and name of the 
remote Indian or Native village as proof of residency. This legislation 
defines ``remote Indian or Native village.'' The Agricultural Risk 
Protection Act of 2000, subsequently amended by the Grain Standards and 
Warehouse Improvement Act of 2000, also provides State agencies, in 
determining an applicant's eligibility for WIC, the option to exclude 
from consideration as income any cost-of-living allowance provided to 
military personnel who are on duty outside the contiguous United 
States. These requirements, as set forth in this final rule, are 
reproduced verbatim from the legislation. Thus, they are considered 
nondiscretionary provisions.
    Section 263 of the Agricultural Risk Protection Act of 2000 
requires that FNS promulgate regulations to implement the provisions as 
soon as practicable after the date of enactment without regard to the 
Administrative Procedure Act's notice and comment provisions (5 U.S.C. 
553); the State of Policy of the Secretary of Agriculture relating to 
notices of proposed rulemaking and public participation in rulemaking 
effective July 24, 1971 (36 FR 13804); and the Paperwork Reduction Act 
(44 U.S.C., chapter 35). In addition, section 172 of Public Law 106-224 
requires us to promulgate regulations to carry out the Act and its 
amendments not later than 120 days after the date of enactment, June 
20, 2000. For these reasons, and because we are obligated by law and 
have exercised no discretion in making the amendments set forth by 
Public Law 106-224, we are not taking public comment prior to 
promulgation of this final rule.

2. What Comments Were Received on the Interim Rule and What 
Provisions Have Been Added as a Result of New Legislation?

    A total of 24 comment letters, faxes and emails were received on 
the interim rule published on January 21, 1999, at 65 FR 3375. 
Commenters were primarily WIC State and local agencies and staff. Other 
commenters represented industry, a professional health or nutrition-
related group, and the general public. In

[[Page 77246]]

general, some commenters supported the legislative measures to improve 
the integrity of the WIC Program. However, the majority of commenters 
opposed various aspects of the requirements in the interim rule, 
primarily the requirements mandated by law. In addition, some 
commenters recommended changes to WIC eligibility, and certification 
requirements that were not addressed in the interim rule such as what 
is counted as income for WIC eligibility purposes.
    The Department has carefully considered all comments in the 
development of this final rule and would like to thank all agencies, 
organizations and individuals that responded to the request for 
comments on the interim rule. The Department does not have the 
authority to eliminate or revise legislative requirements, or change 
other WIC requirements not addressed in the interim rule without first 
issuing proposed regulations and affording the public the opportunity 
to comment on the proposal. There are, however, several issues that 
need clarification, given the comments received. The following is a 
discussion of each provision, clarifications needed as a result of 
comments received, an explanation of the three nondiscretionary 
certification provisions contained in Public Law 106-224, with one 
provision subsequently amended by Pub. L. 106-472, and an explanation 
of the provisions in this final rule.

a. Definitions--Sec. 246.2

    In the interim rule, the Department added new definitions for 
``Applicants,'' ``Documentation'' and ``Individual with disabilities.'' 
One commenter recommended that the definition of ``documentation'' 
include cases where the local agency assists in obtaining the 
documentation such as contacting the Medicaid Program to establish 
eligibility for WIC adjunct income eligibility purposes. It is the 
Department's intention that the definition of ``documentation'' include 
situations where the applicant may bring in written information to 
confirm verbal statements or include, where feasible, the WIC clinic 
assisting the client in obtaining the required written documents. For 
example, WIC staff could contact the Medicaid Program or access 
Medicaid eligibility information to confirm that the applicant is 
adjunctively or automatically income eligible for WIC. No comments were 
received on the definitions of ``Applicants'' and ``Individual with 
disabilities.'' As such, the three definitions included in the interim 
rule are not changed in this final rule.
    Further, a new definition of ``remote Indian or Native village'' 
has been added as a result of the Agricultural Risk Protection Act of 
2000, Public Law 106-224, 114 Stat. 224, Section 244(a). As noted 
below, this law adds an additional exception to the proof of residency 
requirement for individuals residing in a remote Indian or Native 
village. Therefore, as defined in the Act, ``remote Indian or Native 
village'' means an Indian or Native village that: (1) Is located in a 
rural area; (2) has a population of less than 5,000 inhabitants; and, 
(3) is not accessible year-around by means of a public road, as defined 
in section 101 of title 23 of the United States Code (U.S.C.). Section 
101 of title 23 of the U.S.C. defines public road as ``* * * any road 
or street under the jurisdiction of and maintained by a public 
authority and open to public travel.'' Accordingly, Sec. 246.2 adds a 
new definition of ``remote Indian or Native village.''

b. Documentation of Family Income--Sec. 246.7(d)(2)(v)

    The interim rule established, in accordance with legislation, that 
applicants, except those deemed adjunctively income eligible, must 
provide documentation of family income with limited exceptions. The 
limited exceptions include: (1) An individual for whom the necessary 
documentation is not available; or, (2) an individual, such as a 
homeless woman or child, for whom the agency determines the requirement 
would present an unreasonable barrier to participation. The Department 
also clarified in the interim rule that certain instream migrant 
farmworkers and their family members with expired Verification of 
Certification cards shall satisfy the State agency's income standard 
and income documentation requirements. The interim rule also addressed 
the Department's intent to continue to include a provision which 
affords State and local agencies the authority to verify an applicant's 
income, that is validating information provided by the applicant 
through an external source other than the applicant.
    One commenter recommended the exceptions to the provision of 
documentation include individuals that have lost everything due to 
theft, fire, flood or other disaster. This example clearly falls within 
the parameters of one of the exceptions set forth in the legislation, 
that is an individual for whom the necessary documentation is not 
available.
    One commenter recommended that all sources of family income be 
documented, not just income of one family member. It has been the 
Department's and State and local agencies' longstanding policy that all 
sources and amounts of family income are identified in determining WIC 
income eligibility.
    Given the comments received and clarifications noted above, the 
interim requirements pertaining to the documentation of income are 
unchanged in this final rule.

c. Exclusion From Income--Sec. 246.7(d)(2)

    Section 244(b) of Public Law 106-224 amended section 17(d)(2)(B) of 
the Child Nutrition Act (CNA) to make a technical correction. The 
technical correction is made to a provision which permits State 
agencies to exclude from income, in determining WIC eligibility, any 
basic allowance for quarters received by military personnel residing 
off military installations. First, Section 244(b) changes the reference 
from ``basic allowance for quarters'' to ``basic allowance for 
housing.'' This change is necessary and consistent with a revision in 
the terminology used in referring to this military allowance. Second, 
Section 244(b) of Public Law 106-224, subsequently amended by Section 
307(b)(1) of Public Law 106-472, adds at the end of section 17(d)(2)(B) 
of the CNA a new provision. Under this provision, State agencies may 
choose to exclude, in determining WIC income eligibility, any cost-of-
living allowance (COLA) provided under section 405 of title 37 of the 
United State Code, to a member of a uniformed service who is on duty 
outside the contiguous states of the United States. This allowance is 
referred to as the overseas continental United States (OCONUS) COLA.
    The OCONUS COLA is provided to active duty uniformed service 
members in designated overseas high-cost areas including Hawaii, Alaska 
and Guam. Ultimately, the decision to choose whether to exclude the 
OCONUS COLA in determining WIC income eligibility affects all WIC State 
agencies. This is the case because some members of a military family 
may remain stateside and apply and/or participate in WIC while a family 
member on duty overseas receives the OCONUS COLA. In areas outside the 
contiguous U.S., such as Hawaii, Alaska and Guam, only one COLA is 
provided to active duty military personnel stationed in these 
locations, that is the OCONUS COLA. Therefore, each WIC State agency in 
which applying members of a military family reside within its borders 
must determine whether it will include or

[[Page 77247]]

exclude the OCONUS COLA provided to the family member who is stationed 
in a designated overseas high-cost area in determining WIC income 
eligibility. The determination to include or exclude the OCONUS COLA 
needs to be addressed in each State agency's policy and procedures 
manual.
    While State agencies may choose to exclude the OCONUS COLA in 
determining WIC income eligibility, the amendments made by Public Laws 
106-224 and 106-472 do not authorize or permit State agencies to choose 
whether to exclude the COLA provided to military personnel in 
designated high-cost areas within the continental United States. This 
allowance is referred to as the Continental United States (CONUS) COLA. 
Therefore, in all cases where a military family receives the CONUS 
COLA, the amount must be counted as income in determining WIC 
eligibility.
    In reviewing military pay stubs, while some variation may exist to 
reflect the COLA, generally, the military pay stubs will identify 
whether a COLA is provided to a military person, either as an OCONUS 
OCOLA or a CONUS COLA. All Marines' pay stubs, whether they receive or 
do not receive a CONUS COLA, will reflect in the remarks section of the 
pay stub that the Marine is entitled to CONUS COLA; computed amount is 
reflected as ``O'' or a specific dollar amount. As indicated above, if 
a military family member applies for WIC and a household member 
receives a CONUS COLA, the amount received must be counted in 
determining WIC income eligibility.
    Accordingly, Sec. 246.7(d)(2)(iv)(A) is revised to change the 
reference from ``basic allowance for quarters'' to ``basic allowance 
for housing.'' This section also adds the option that State agencies 
may choose to exclude any cost-of-living allowance provided to military 
personnel on duty outside the contiguous United States.

d. Dual Participation Prevention--Proof of Residency--Sec. 246.7(l)(2)

    Public Law 105-336 addresses a renewed emphasis on State and local 
agencies' systems for detecting dual participation. Therefore, the 
interim rule, at Sec. 246.7(l)(2), added a requirement, in addition to 
checking identity at certification, that State and local agencies must 
require each applicant at certification to present proof of residency, 
that is the location or address where the applicant routinely lives or 
spends the night. As noted, for an infant or child applicant, 
documentation of residency must be provided for the person with whom 
the infant or child resides. Further, the requirement to provide 
documentation of residency also applies to a person who transfers from 
another area or State and presents a valid Verification of 
Certification (VOC) card at a new WIC site. As indicated in the interim 
rule, a post office box does not constitute sufficient documentation of 
residency.
    Some commenters opposed the requirement for various reasons. For 
example, WIC commenters indicated that WIC applicants may forget to 
bring in documentation or bills may not be in the name of the 
applicant. However, a greater, overriding factor is the need to detect 
and prevent dual participation. The collection of such information is 
an important data element in identifying dual participation and 
necessary to improve the integrity of the WIC Program. Further, 
sufficient flexibility exists for State agencies in developing 
procedures in this area. For example, we support a commenter's 
suggestion that ``location'' should also mean, for example, directions 
on a map where the applicant routinely lives or spends the night. Such 
procedures may be necessary, for example, in areas/towns where only 
post office boxes exist or in rural areas where there are no street 
names.
    Some commenters expressed concern that some applicants may view and 
misinterpret the requirement as requiring proof of citizenship or alien 
status. We strongly encourage State and local agencies to ensure any 
program eligibility information to WIC applicants and participants 
reflects the true intent of this requirement. While for WIC regulatory 
and policy purposes, the Department refers to this requirement as proof 
of residency, WIC applicants need to understand they are being asked to 
provide documentation of where they routinely live or spend the night. 
Such clarification is extremely important to ensure misunderstanding or 
miscommunication of the requirement does not create a barrier to WIC 
participation.
    The residency requirement, i.e., the location or address where the 
applicant routinely lives or spends the night, has no durational 
aspect. That is, there is no requirement on the length of time an 
applicant must reside at the location or address where he/she routinely 
lives or spends the night.
    Accordingly, the general requirements pertaining to documentation 
of residency, as set forth in the interim rule, are retained in this 
final rule.
(1) Special Residency Procedures
    As specified in the preamble to the interim rule, current WIC 
regulations at section 246.7(c)(1) require all State agencies, except 
Indian State agencies to require applicants to reside within the 
jurisdiction of the State. WIC regulations authorize Indian/Native 
American State agencies to establish a requirement for applicants to 
reside within their area or legal jurisdiction.
    Further, State agencies may also establish a local service area 
residency requirement. The residency requirement has no durational or 
formal legal aspect and need to represent a legal residence. Also, 
length of residency cannot be a prerequisite to receiving WIC benefits.
    No comments were received on these current WIC residency 
requirements. Therefore, these requirements are retained in WIC 
regulations and policy.
(2) Exceptions to the Identity and Residency Documentation Requirements
    As set forth in the interim rule in Sec. 246.7(l)(2), State 
agencies are permitted, when no proof of residency or identity exists, 
to exempt an applicant from the residency and/or identity documentation 
requirements. In such cases, at a minimum, State or local agencies must 
require the applicant to confirm in writing his/her residency or 
identity. As noted in the interim rule, applicants to whom an exemption 
may apply include a victim of theft, loss, or disaster; a homeless 
individual; or, a migrant farm worker. No comments were received on 
this portion of the interim rule. Therefore, this final rule retains 
these requirements.
    However, sections 244(a) and (c) of Public Law 106-224 have 
included an additional nondiscretionary exemption from the residency 
requirement. Section 244(c) of the law permits an individual residing 
in a remote Indian or Native village, or an individual served by an 
Indian tribal organization and residing on a reservation or pueblo, to 
establish proof of residency by providing to the State agency the 
mailing address of the individual and the name of the remote Indian or 
Native village. The Department has determined that no additional 
requirements or standards, as authorized by the Public Law 106-224, are 
necessary to implement this requirement. Accordingly, at the end of 
Sec. 246.7(l)(2), a new sentence has been added to reflect this 
legislative provision.

e. Physical Presence--Sec. 246.7(p)

    Many commenters opposed the general requirement set forth in Public 
Law 105-335 that individuals seeking participation in the WIC Program 
must be physically present at the initial WIC certification and 
subsequent recertifications, except in certain limited circumstances. 
Some

[[Page 77248]]

commenters recommended additional exemptions beyond those permitted by 
the legislation, such as permitting a non-WIC entity/individual such as 
any health professional, to confirm or verify an individual's physical 
presence. As indicated previously, the Department does not have the 
authority to change or expand legislative requirements. Further, the 
legislative mandate reinforces the Department's long-standing position 
that the physical presence of an individual at certification is basic 
to WIC Program effectiveness.
    The Department wishes to emphasize, as set forth in the preamble to 
the interim rule, that although an applicant may be exempt from the 
physical presence requirement, State and local agencies must ensure 
that all necessary information and documentation, including income, 
residency, identity, and nutrition risk, are provided in order to make 
a WIC eligibility determination in the absence of the applicant. The 
applicant's parent, caretaker or proxy can bring in the documents 
necessary to determine eligibility for WIC.
    Therefore, the general requirement that individuals must be 
physically present at the initial WIC certification and subsequent 
recertifications, except in certain limited circumstances as discussed 
below, has been retained in this final rule.
(1) Mandatory Exception to the Physical Presence Requirement Due to a 
Disability
    As set forth in Public Law 105-336 and the interim rule, State and 
local agencies are required to exempt from the physical presence 
requirement applicants who are qualified individuals with disabilities 
and are unable to be physically present at the WIC clinic because of 
their disabilities. The interim rule further clarified that this 
requirement also applies to applicants whose parents or caretakers are 
individuals with disabilities that meet this standard. The interim rule 
set forth examples of situations that would warrant an exception to the 
physical presence requirement due to a disability. Those examples 
included: (1) A medical condition that necessitates the use of medical 
equipment that is not easily transportable; (2) a medical condition 
that requires confinement to bed rest; and (3) a serious illness that 
may be exacerbated by coming in to the WIC clinic.
    One commenter supported the exceptions for disability and indicated 
the exceptions were reasonable and represented current State agency 
practices. Another commenter recommended that the regulatory text be 
revised to include an example of a highly contagious illness that may 
be readily communicated to others. The interim rule and regulatory text 
set forth examples of situations that warranted an exception due to a 
disability. Therefore, some State agency flexibility exists to identify 
other potential conditions similar to those cited in the interim rule. 
Certainly, an individual with a highly contagious illness most likely 
would require confinement to bed rest and/or the condition may be 
exacerbated by coming in to the WIC clinic. Therefore, such a situation 
may fall under one or more of the examples set forth in the interim 
rule.
    Further, another commenter recommended that if a person meets the 
conditions and is unable to be physically present, that the State or 
local agency should permit a caregiver or representative to present 
documentation of income, residency, and bloodwork data. This is the 
Department's intent with regard to implementation of this exception. 
While the applicant may be determined to be exempt from the physical 
presence requirement, State and local agencies would need to schedule 
an appointment for another family member, caregiver or representative 
to bring in all documents and information necessary to determine the 
applicant's eligibility for the WIC Program.
    As indicated in the interim rulemaking, all persons with 
disabilities are not automatically exempt from the physical presence 
requirement. Only those disabilities that create a current barrier to 
the physical presence requirement may serve as a basis for an exception 
from the requirement.
    Accordingly, as set forth in the interim rule, section 
246.7(p)(2)(i) is retained in this final rule.
(2) State Agency Option To Exempt Certain Infants and Children From the 
Physical Presence Requirement
    Public Law 105-336, and the interim rule, provide State agencies 
the option, if physical presence would present an unreasonable barrier 
to participation, to exempt certain infants or children from the 
physical presence requirement in the following situations:
    An infant or child:
    <bullet> Who was present at his/her initial WIC certification; and,
    <bullet> Has documented ongoing health care from a provider other 
than the local agency; or
    An infant or child:
    <bullet> Who was present at his/her initial WIC certification; and
    <bullet> Was present at a WIC certification or recertification 
determination within the 1-year period ending on the date of the most 
recent certification or recertification determination; and,
    <bullet> Is under the care of one or more working parents or one or 
more primary working caretakers whose working status presents a barrier 
to bringing the infant or child in to the WIC clinic.
    Several comments were received on the option to exempt an infant or 
child with ongoing health care. One commenter recommended this option 
be extended to children in foster or shelter care. Others opposed the 
provision because the provider of the health care must be an entity 
other than the WIC local agency. However, as indicated previously, the 
Department does not have the authority to expand the option or exclude 
one or more aspects of the requirement because they are specified in 
law. One commenter expressed concern that under this option, an infant 
could present soon after birth and never have to physically present 
again at a WIC certification. We support the concern raised by the 
commenter and would encourage WIC State agencies to consider this issue 
in the development of policy. A limit on the number of consecutive 
times this option could be used may be appropriate, as in the case 
identified by the commenter. This option, as set forth in the interim 
rule, is retained in this final rule.
    Several commenters also opposed the option to exempt an infant or 
child of working parents. Reasons cited by commenters for opposing the 
provision include that it will confuse working parents, it will be 
difficult for parents to meet the initial physical presence 
requirement, and the option fails to address an essential requirement 
that the infant or child have ongoing health care. Because the option, 
as noted above, is reproduced in the regulations verbatim from the 
legislation, the Department does not have the authority to change or 
revise the option.
    However, given comments received on this provision, several 
clarifications are necessary with regard to this option. First, as a 
commenter noted, the requirement that the infant or child must have 
been present within a 1-year period does mean that an infant or child 
must have been physically present at a WIC certification at least once 
in the previous 12 months. Second, the report language which 
accompanies Public Law 105-336 specifies that the exemption for working 
parents means that in families where there are two parents or 
caretakers, both individuals must be working in order for the option to 
apply. The exception for one working parent in the legislation and the 
interim

[[Page 77249]]

rule refers to households where there is only one parent or caretaker.
    As indicated above, commenters expressed concerns with both options 
for exempting an infant or child. However, the Department would 
emphasize that these are options that the State agency can determine 
whether or not to implement. State agencies are not required to 
implement these provisions. Therefore, for the reasons stated above, 
the option to exclude an infant or child in the case of working parents 
or caretakers is retained in this final rule, as set forth in the 
interim rule.

f. Certification Forms--Sec. 246.7(i)

    Section 246.7(i)(3)-(i)(5) of the interim rule specifies that the 
certification form, which may be either paper or electronic, must 
reflect the type of document(s) used to determine or confirm income 
eligibility, residency and identity or include a copy of the 
document(s) in the file. Further, in those cases where there is no 
proof of income, the file must include a copy of the written statement 
by the applicant indicating why he/she cannot provide documentation of 
income, and in applicable cases, specify if the applicant has no 
income. Further, this section also requires an indication of whether 
the applicant is physically present at certification. Such an 
indication may consist of simply checking off an appropriate annotated 
box on a paper or electronic form. If that applicant is not physically 
present, the form must indicate the reason why an exception was granted 
or a copy of a document(s) must be placed in the file that explains the 
reason for the exception.
    Several commenters opposed the requirements for State and local 
agencies to reflect the types of documents used to confirm income and 
residency. However, the Department believes these requirements are 
necessary to ensure the integrity of the WIC certification process. 
State agencies have been encouraged to adopt procedures to meet this 
requirement in a manner that imposes the least administrative burden on 
WIC clinic staff.

3. Procedural Matters

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that review, 
Samuel Chambers, Jr., Administrator, Food and Nutrition Service, has 
certified that this rule would not have a significant impact on a 
substantial number of small entities. This rule would modify WIC 
certification procedures. Therefore, the effect of these changes would 
be primarily on State and local WIC agencies, some of which are small 
entities. However, the impact on small entities is not expected to be 
significant.

Executive Order 12372

    The WIC Program is listed in the Catalog of Federal Domestic 
Assistance Programs under 10.557. For the reasons set forth in the 
final rule in 7 CFR part 3015, Subpart V, and related Notice (48 FR 
29115), this program is included in the scope of Executive Order 12372 
which requires intergovernmental consultation with State and local 
officials.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 unless so specified in the EFFECTIVE DATE section of the 
preamble of this final rule. Prior to any judicial challenge to the 
application of the provisions of the final rule, all applicable 
administrative procedures must be exhausted.

Public Law 104-4

    Title II of the Unfunded Mandates Reform Act of 1995 ((UMRA) (2 
U.S.C. 1531-38)) 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 Food and Nutrition Service (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 
to State, local or tribal governments, in the aggregate, or the private 
sector, of $100 million or more in any one year. When such a statement 
is needed for a rule, section 204 of the UMRA generally requires FNS to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the most cost effective or least burdensome alternative that 
achieves the objectives of the rule.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local and 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.

Paperwork Reduction Act of 1995

    This regulation contains information collection that is subject to 
review and approval by the Office of Management and Budget. The 
information collection contained in Section 246.7 (i)(3)--(i)(5) of 
this regulation is approved under OMB No. 0584-0043.

List of Subjects in 7 CFR Part 246

    Food assistance programs, Food donations, Grant programs--Social 
programs, Indians, Infants and children, Maternal and child health, 
Nutrition education, Public assistance programs, WIC, Women.

    Accordingly, the interim rule amending 7 CFR Part 246 which was 
published at 65 FR 3375 on January 21, 2000, is adopted as a final rule 
with the following changes:

PART 246--SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS 
AND CHILDREN

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

    Authority: 42 U.S.C. 1786.

    2. In Sec. 246.2, add a new definition of Remote Indian or Native 
village in alphabetical order to read as follows:


Sec. 246.2  Definitions.

* * * * *
    Remote Indian or Native village means an Indian or Native village 
that is located in a rural area, has a population of less than 5,000 
inhabitants, and is not accessible year-round by means of a public road 
(as defined in 23 U.S.C. 101).
* * * * *

    3. In Sec. 246.7, revise paragraphs (d)(2)(iv)(A) and (l)(2) to 
read as follows:


Sec. 246.7  Certification of participants.

* * * * *
    (d) * * *
    (2) * * *
    (iv) * * *
    (A) In determining income eligibility, the State agency may exclude 
from consideration as income any:
    (1) Basic allowance for housing received by military services 
personnel residing off military installations; and
    (2) Cost-of-living allowance provided under 37 U.S.C. 405, to a 
member of a

[[Page 77250]]

uniformed service who is on duty outside the contiguous states of the 
United States.
* * * * *
    (l) * * *
    (2) At certification, the State or local agency must require each 
applicant to present proof of residency (i.e., location or address 
where the applicant routinely lives or spends the night) and proof of 
identity. The State or local agency must also check the identity of 
participants, or in the case of infants or children, the identity of 
the parent or guardian, or proxies when issuing food or food 
instruments. The State agency may authorize the certification of 
applicants when no proof of residency or identity exists (such as when 
an applicant or an applicant's parent is a victim of theft, loss, or 
disaster, a homeless individual, or a migrant farmworker). In these 
cases, the State or local agency must require the applicant to confirm 
in writing his/her residency or identity. Further, an individual 
residing in a remote Indian or Native village or an individual served 
by an Indian tribal organization and residing on a reservation or 
pueblo may establish proof of residency by providing the State agency 
their mailing address and the name of the remote Indian or Native 
village.
* * * * *

    Dated: November 30, 2000.
George A. Braley,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 00-31452 Filed 12-8-00; 8:45 am]
BILLING CODE 3410-30-U