This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

77245

Vol. 65, No. 238

Monday, December 11, 2000

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 costof-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

77246 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

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—§ 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,

§ 246.2 adds a new definition of ‘‘remote

Indian or Native village.’’

b. Documentation of Family Income—

§ 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—§ 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

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 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 highcost 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, § 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-ofliving allowance provided to military

personnel on duty outside the

contiguous United States.

d. Dual Participation Prevention—Proof

of Residency—§ 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 § 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

§ 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

§ 246.7(l)(2), a new sentence has been

added to reflect this legislative

provision.

e. Physical Presence—§ 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

77248 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

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 longstanding 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:

• Who was present at his/her initial

WIC certification; and,

• Has documented ongoing health

care from a provider other than the local

agency; or

An infant or child:

• Who was present at his/her initial

WIC certification; and

• 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,

• 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

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 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—§ 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 § 246.2, add a new definition of

Remote Indian or Native village in

alphabetical order to read as follows:

§ 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 yearround by means of a public road (as

defined in 23 U.S.C. 101).

* * * * *

3. In § 246.7, revise paragraphs

(d)(2)(iv)(A) and (l)(2) to read as follows:

§ 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

77250 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

1 28 U.S.C. 2461 note.

2See 62 FR 3199, January 22, 1997.

3See 28 U.S.C. 2461 note.

4See id. The statute’s rounding rules require that

an increase be rounded to the nearest multiple of:

$10 in the case of penalties less than or equal to

$100; $100 in the case of penalties greater than $100

but less than or equal to $1,000; $1,000 in the case

of penalties greater than $1,000 but less than or

equal to $10,000; $5,000 in the case of penalties

greater than $10,000 but less than or equal to

$100,000; $10,000 in the case of penalties greater

than $100,000 but less than or equal to $200,000;

and $25,000 in the case of penalties greater than

$200,000.

5The Department of Labor (DOL) computes the

CPI–U using two different base time periods, 1967

and 1982–1984, and the Inflation Adjustment Act

does not specify which of these base periods should

be used to calculate the inflation adjustment. The

OCC has used the DOL’s CPI–U with 1982–84 as the

base period because it reflects the most current

method of computing the CPI–U.

6According to the statute, the inflation

adjustment is computed by comparing the CPI–U

for June of the year in which the CMPs were ‘‘last

set or adjusted’’ with CPI–U for June ‘‘of the

calendar year preceding [sic] the adjustment.’’ 28

U.S.C. 2461 note. Therefore, a different formula is

required for three CMPs that did not increase when

the OCC made its initial inflation adjustment in

1997. These CMPs—the $2,000 penalties under 12

U.S.C. 164 and 12 U.S.C. 3110(c) and the 4350

[penalty under 42 U.S.C. 4012a(f)(5)—did not

increase as a result to application of the rounding

rules. For those penalties that were not adjusted in

1997, we have used the year in which the CMP was

last set by enactment. See footnotes a and b to the

table.

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

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the

Currency

12 CFR Part 19

[Docket No. 00–33]

RIN 1557–AB88

Rules of Practice and Procedure; Civil

Money Penalty Inflation Adjustments

AGENCY: Office of the Comptroller of the

Currency, Treasury.

ACTION: Final rule.

SUMMARY: The Office of the Comptroller

of the Currency (OCC) is amending its

rules of practice and procedure to adjust

the maximum amount, as set by statute,

of each civil money penalty (CMP)

within its jurisdiction to account for

inflation. This action is required under

the Federal Civil Penalties Inflation

Adjustment Act of 1990 (Inflation

Adjustment Act), as amended by the

Debt Collection Improvement Act of

1996.

DATES: This rule is effective December

11, 2000.

FOR FURTHER INFORMATION CONTACT: Jean

Campbell, Attorney, or Mark

Tenhundfeld, Assistant Director,

Legislative and Regulatory Activities

Division, (202) 874–5090, Office of the

Comptroller of the Currency, 250 E

Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

Background

The Inflation Adjustment Act 1

requires the OCC, as well as other

Federal agencies with CMP authority, to

publish regulations to adjust each CMP

authorized by a law that the agency has

jurisdiction to administer. The purpose

of these adjustments is to maintain the

deterrent effect of CMPs and to promote

compliance with the law. The Inflation

Adjustment Act requires adjustments to

be made at least once every four years

following the initial adjustment. The

OCC’s prior adjustment to each CMP

was published in the Federal Register

on January 22, 1997, 2 and became

effective that same day.

The Inflation Adjustment Act requires

that the adjustment reflect the

percentage increase in the Consumer

Price Index between June of the

calendar year preceding the adjustment

and June of the calendar year in which

the amount was last set or adjusted. The

Inflation Adjustment Act defines the

Consumer Price Index as the Consumer

Price Index for all urban consumers

published by the Department of Labor

(‘‘CPI–U’’).3 In addition, the Inflation

Adjustment Act provides rules for

rounding off increases,4 and provides

that any increase in a CMP applies only

to violations that occur after the date of

the adjustment.

Description of the Rule

This final rule adjusts the amount for

each type of CMP that the OCC has

jurisdiction to impose in accordance

with these statutory requirements. It

does so by revising the table contained

in section 19.240 of our regulations. The

table identifies the statutes that provide

the OCC with CMP authority, describes

the different tiers of penalties provided

in each statute (as applicable), and sets

out the inflation-adjusted maximum

penalty that the OCC may impose

pursuant to each statutory provision.

The inflation adjustment for the CMPs

was calculated by comparing the CPI–U

for June 1996 (156.7) with the CPI–U for

June 1999 (166.2),5 resulting in an

inflation adjustment of 6.1 percent.6 The

amount of each CMP was multiplied by

the appropriate percentage and the

resulting dollar amount was rounded up

or down according to the rounding

requirements of the statute. In some

cases, rounding resulted in no

adjustment to the CMP. The table below

shows both the present CMPs and

inflation adjusted CMPs. The table as

published in the rule includes only the

CMPs as of the effective date of this

rule.