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

19487

Vol. 60, No. 75

Wednesday, April 19, 1995

DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Chapter II

RIN 0584–AB53

Special Supplemental Nutrition

Program for Women, Infants and

Children (WIC): Homelessness/

Migrancy as Nutritional Risk

Conditions

AGENCY: Food and Consumer Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule amends

regulations governing the Special

Supplemental Nutrition Program for

Women, Infants and Children (WIC) to

comply with the mandate of section 204

of the Child Nutrition Amendments of

1992, enacted on August 14, 1992.

Consistent with that legislation, and as

proposed on April 6, 1994, this

rulemaking adds homelessness and

migrancy to the predisposing nutritional

risk conditions for the WIC Program.

For purposes of the WIC Program’s

nutritional risk priority system, this rule

allows State agencies to place

individuals certified for WIC solely due

to homelessness or migrancy in

Priorities IV, V, VI, or, at their option,

Priority VII. The use of Priority VII for

service to certified participants who

might regress in nutritional status

without continued provision of

supplemental foods would remain a

State agency option.

The intended effect of this rule is to

allow categorical and income-eligible

homeless or migrant individuals, who

lack any other documented nutritional

or medical condition, to receive WIC

Program assistance.

This final rule also responds to two

provisions of section 204 of the Healthy

Meals for Healthy Americans Act of

1994 by making technical changes in the

WIC Program rules without prior notice

and comment. The name of the Program

is changed from the Special

Supplemental Food Program for

Women, Infants, and Children to the

Special Supplemental Nutrition

Program for Women, Infants, and

Children. Also, in light of modifications

in the statutory definition of

‘‘nutritional risk’’, the Department has

reclassified as ‘‘direct’’ nutritional risk

factors certain medical and health

conditions previously identified as

‘‘predisposing’’ nutritional risk factors.

DATES: This rule is effective on April 19,

1995. This rule must be implemented

not later than April 19, 1996.

FOR FURTHER INFORMATION CONTACT:

Contact Barbara Hallman, Supplemental

Food Programs Division, Food and

Consumer Service, USDA, 3101 Park

Center Drive, Room 542, Alexandria,

Virginia 22302, (703) 305–2730.

SUPPLEMENTARY INFORMATION:

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,

William E. Ludwig, Administrator of the

Food and Consumer Service has

certified that this rule will not have a

significant impact on a substantial

number of small entities. WIC local

agency participant caseloads may

potentially increase and thereby

increase local food vendor business. The

net effect on State and local agencies is

expected to be minimal.

Paperwork Reduction Act

This final rule imposes no new

reporting or recordkeeping provisions

that are subject to OMB review in

accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3507).

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 10.557 and is subject to

Executive Order 12372, which requires

intergovernmental consultation with

State and local officials (7 CFR part

3015, subpart V, and 48 FR 29114 June

24, 1983).

Executive Order 12778

This final rule has been reviewed

under Executive Order 12778, 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 unless so specified in the DATES

paragraph of this preamble. Prior to any

judicial challenge to the application of

the provisions of this rule, all applicable

administrative procedures must be

exhausted.

In the WIC Program, the

administrative procedures are as

follows: (1) Local agencies and

vendors—State agency hearing

procedures issued pursuant to 7 CFR

246.18; (2) applicants and participants—

State agency hearing procedures issued

pursuant to 7 CFR 246.9; and (3)

sanctions against State agencies (but not

claims for repayment assessed against a

State agency) pursuant to 7 CFR

246.19—administrative appeal in

accordance with 7 CFR 246.22; and (4)

procurement by State and local

agencies—administrative appeal to the

extent required by 7 CFR 3016.36.

References and Notice Provisions

1. Chavin, Kristal, Seabron, and

Guigli; The Reproductive Experience of

Women Living in Hotels for the

Homeless in New York City; New York

State Journal of Medicine, 1987.

2. The Homeless Families Program

newsletter, Home Again, February

edition, 1994.

3. National Advisory Council on

Maternal, Infant, and Fetal Nutrition,

1992 Biennial Report on the Special

Supplemental Food Program for

Women, Infants, and Children (WIC)

and on the Commodity Supplemental

Food Program (CSFP).

4. 1992 Recommendations of the

National Advisory Council on Migrant

Health; Farmworkers Health for the

Year 2000.

5. Technical Paper No. 12 prepared

for USDA/FNS by Awal Dad Khan;

Homeless Mothers and Children: What

is the Evidence for Nutritional Risk?,

1991.
19488 Federal Register / Vol. 60, No. 75 / Wednesday, April 19, 1995 / Rules and Regulations

6. United States Conference of Mayors

survey, A Status Report on Hunger and

Homelessness in America’s Cities, 1993.

The Department adopts as final, two

technical Program changes in response

to provisions of Pub. L. 103–448, the

Healthy Meals for Healthy Americans

Act of 1994. Section 204(w)(1)(A) of

Pub. L. 103–448 changed the name of

the Special Supplemental Food Program

for Women, Infants, and Children to the

Special Supplemental Nutrition

Program for Women, Infants, and

Children.

Secondly, in section 204(a) of Pub. L.

103–448, Congress redefined the

Program term ‘‘nutritional risk’’. Before

the amendment, alcoholism, drug

addiction, homelessness and migrancy

were identified as conditions that

predisposed persons to ‘‘inadequate

nutritional patterns or nutritionally

related medical conditions, * * *’’ 42

U.S.C. § 1758(b)(8). Section 204(a) of

Pub. L. 103–448 amended this

definition to indicate that alcoholism

and drug abuse will henceforth be

considered conditions that directly

affect nutritional health. Homelessness

and migrancy are still considered

predisposing conditions. In light of this

change, the Department, at 7 CFR

246.7(e)(2)(iv), is reclassifying those

medical and health conditions

identified in the regulation as similar to

alcoholism and drug abuse as ‘‘direct’’

risk factors.

Pursuant to 5 U.S.C. 553(b)(3)(A),

‘‘notice and public procedure thereon’’

are not required prior to the

implementation of a final rule if those

procedures are ‘‘unnecessary’’. We view

the term unnecessary in this context as

meaning that if a statutory provision

requires a particular regulatory result or

if a regulatory change only clarifies an

already existing regulation and the

change will have no real effect on the

public, notice and comment are

unnecessary. Both of the regulatory

changes made herein as final rules in

response to section 204 of Pub. L. 103–

448 qualify for exemption from notice

and comment procedures because those

procedures are ‘‘unnecessary’’, as that

term is used in 5 U.S.C. 553(b)(3)(A).

Background

Homelessness is not a new issue, but

the plight of the homeless has captured

much public attention in the last several

years as the nature and number of

homeless have changed. Homelessness

is variably defined as a housing

problem, an employment problem, a

problem brought on by the

deinstitutionalization of mentally ill

persons, a symptom of the breakdown of

family traditions and/or of an

inadequate social welfare system, or any

combination of these factors (Rossi and

Wright, 1987). According to a 1993

Status Report on Hunger and

Homelessness in America’s Cities,

released by the United States

Conference of Mayors, it is suggested

that as many as seven million people

were homeless during some part of the

1980s, and the problem is more than ten

times as widespread as previously

acknowledged. City officials

participating in the Mayors’ Conference

identified unemployment and/or

underemployment, poverty, and the

high cost of housing as the major causes

of hunger and homelessness.

The homeless of today defy the

traditional definitions and notions of

shiftless, skid row vagrants for whom

alcoholism was their nemesis. Today’s

homeless population contains a sizeable

number of women and children—over

one-third of the total homeless

population in America (Wright, 1988;

Breakey, 1989; Bassuk and Rosenberg,

1990). Studies show forty-three percent

of today’s homeless are families, and an

increasing number of the ‘‘new

homeless’’ include economically

displaced individuals who have lost

their jobs, exhausted their resources,

and recently entered into the ranks of

the homeless and consider their

condition to be temporary. It is clear

that the homeless population is

heterogeneous and includes many

subgroups. The Homeless Families

Program (HFP), a joint initiative of the

Robert Wood Johnson Foundation and

the Department of Housing and Urban

Development, urges that informed

public policy resist the temptation to

simplify the complex issue of

homelessness and distinguish homeless

families from single unattached adults.

HFP asserts that the demographics,

causes of homelessness, length of time

homeless, and health issues differ

significantly between these subgroups.

There is very little data on the health

and/or nutritional status of migrants.

However, that which does exist reveals

an extremely bleak and disturbing

picture, e.g., infant mortality rates are

considerably higher than the general

U.S. population; incidence of

malnutrition is higher than among any

subpopulation in the nation; and rates

of parasitic disease among migrant

children are many times higher than

among the general population. Public

hearings before the National Advisory

Council on Migrant Health, of the

Department of Health and Human

Services (DHHS), have indicated that

housing is the number one need of this

subpopulation. As stated in the

preamble of this rule’s proposed version

dated April 6, 1994, studies suggest that

migrants suffer many of the

circumstances and conditions afflicting

the homeless.

The changing nature of the homeless

and the chronic conditions of migrants

have necessitated a re-examination of

the causes, circumstances, and

approaches to addressing the needs of

both these vulnerable groups. Because

of the increased nutritional risks

associated with homelessness and

migrancy, the National Advisory

Council on Maternal, Infant, and Fetal

Nutrition recommended in its 1992

Report to the President and Congress

that Section 17(b)(8) of the Child

Nutrition Act of 1966 (CNA), 42 U.S.C.

1786(b)(8), be amended to include

homelessness and migrancy as

predisposing nutritional risk conditions

for the WIC Program. Congress and the

President accepted this

recommendation and, in section 204 of

the Child Nutrition Amendments of

1992, Public Law 102–342, specifically

identified homelessness and migrancy

as predisposing nutritional risk

conditions for purposes of WIC Program

eligibility.

The Homelessness/Migrancy as

Nutritional Risk Conditions Proposed

Rule

A proposed rule on homelessness/

migrancy as predisposing nutritional

risk conditions was published for

comment on April 6, 1994 at 59 FR

16146. The rule proposed to place

individuals certified for WIC due solely

to homelessness or migrancy in Priority

VII, along with previously certified

participants who might regress in

nutritional status without continued

provision of supplemental foods. While

the use of Priority VII for this latter

group of individuals would have

remained a State agency option, State

agencies would have been required to

use Priority VII for homeless or migrant

individuals who are certified solely due

to their homelessness or migrancy.

Because income-eligible homeless and

migrant individuals with documentable

nutritional deficiencies or medical

conditions would already be certified

for WIC Program assistance, the

intended effect of the proposed rule was

to appropriately place income-eligible

homeless or migrant individuals,

without a documented nutritional or

medical condition, in a lower priority

than individuals, including the

homeless and migrants, with

documented risk conditions.

Comments on the Proposed Rule

In the April 1994 proposed version of

this rule, the Department cited various
Federal Register / Vol. 60, No. 75 / Wednesday, April 19, 1995 / Rules and Regulations 19489

studies which support including

homelessness and migrancy as

predisposing nutritional risk conditions.

Such studies suggest there is a high

likelihood of various health-related

problems associated with homelessness

and migrancy. However, despite a

decade of active advocacy of homeless

issues, there is very little systematic and

reliable information available on the

health and nutritional status of the

homeless or any of its subgroups.

Nevertheless, WIC State agencies have

gained an impressive amount of

practical knowledge and experience

from which the Department benefits in

planning its outreach efforts. This

practical knowledge, as demonstrated in

the comments received from both public

and private homeless advocacy groups

on the proposed rule, was instrumental

in formulating the final rule.

A total of 43 comment letters were

received from both public and private

individuals, groups, and State and local

agencies. All except one commenter

agreed that homelessness and migrancy

should be considered predisposing

nutritional risk conditions for the WIC

Program. However, most commenters

opposed the proposed placement in

Priority VII of individuals certified for

WIC based solely on their migrancy or

homelessness. Those who objected to

this provision suggested that the many

risk conditions associated with

homelessness and migrancy, as cited in

the proposed rule, warrant a higher

placement of homeless and migrant

persons in WIC’s nutritional risk

priority system, even though they may

not show signs of such risks at the time

of certification. The common suggestion

of commenters was that State agencies

should be allowed to determine which

priority best suits the needs of its

homeless and migrant community.

Second, many commenters claimed that,

in times of limited funding, States could

not serve participants certified for

Priority VII and therefore, the intended

beneficiaries of this rule—homeless and

migrant individuals who are at

nutritional risk solely due to their

homelessness or migrancy—would not

receive WIC services. Third, several

commenters mentioned the difficulty of

contacting homeless or migrant

individuals placed on waiting lists

during times of funding shortages, who

frequently do not have mailing

addresses or telephones, to inform them

of caseload availability. In fear of losing

the opportunity to serve this vulnerable

and mobile population, commenters

suggested that homeless and migrant

individuals be provided benefits at the

earliest opportunity. The

aforementioned three reasons comprised

the major objections or opposition to the

proposed rule. In addition to these

comments, one commenter suggested

that WIC’s nutritional risk definition be

amended to include homelessness and

migrancy among the listed conditions

that predispose persons to inadequate

nutritional patterns or nutritionally

related medical conditions.

The Department appreciates the

comments of all those who responded to

the proposed rule, and values their

commitment to providing the best

possible WIC service to the homeless

and migrant community. The

Department has carefully and

thoughtfully considered all of the

comments submitted in response to the

proposed rule. We believe the revisions

that have been made in the final rule, in

response to the comments received,

improve both the acceptability and

quality of the rule.

Priority Placement of Individuals

Certified Solely Due to Homelessness/

Migrancy

In response to the many commenters

who objected to the required placement

in Priority VII of homeless and migrant

individuals certified at nutritional risk

solely due to their homelessness/

migrancy, and who preferred that State

agencies be granted the discretion to

place such individuals in a higher

priority, the Department has made a

partial concession to this preference.

Pregnant, breastfeeding, or postpartum

women, infants, and children who are

certified for WIC solely due to their

homelessness/migrancy may be placed

in Priority IV, V, and VI, based on their

respective category. Alternatively,

Priority VII may be used to serve any of

the above mentioned categorically

eligible homeless or migrant

individuals, at the discretion of the

State agency. For instance, a homeless

or migrant pregnant or breastfeeding

woman may be placed either in Priority

IV, or she could be placed in Priority VII

if the State agency chose to use Priority

VII to serve all homeless or migrant

individuals whose only nutritional risk

condition was homelessness or

migrancy.

WIC’s nutritional risk priority system

was developed to prioritize service

according to the seriousness of

demonstrated nutritional risk

conditions. As stated in the proposed

rule, given the facts revealed through

studies on the homeless and migrants,

there is a high likelihood that these

groups are already being served by the

WIC Program by virtue of other

documented nutritional risk(s). The

Department strongly stands by the logic

and fairness of the WIC priority system,

which advocates serving individuals

with documented nutritionally related

medical risk conditions before persons

with dietary risk only or persons likely

to regress to a former risk. To serve

applicants with no documentable

medical or nutritional risk condition,

even when their lifestyle may

predispose them to risk conditions,

before someone with verifiable

nutritionally-related risk conditions,

would be contrary to the purpose and

intent of WIC’s service priority system.

Finally, the Department recognizes the

limitations of the services it can provide

to address the many needs of homeless

and migrant individuals. Although it is

clear that WIC services can contribute to

improving the nutrition and health of

these vulnerable groups, such services

cannot change their homeless or migrant

circumstances. Homelessness and

migrancy are socio-economic conditions

which require more than the provision

of supplemental foods and nutrition

services to change the individual’s

circumstances. In addition, as stated

earlier, the homeless are a

heterogeneous group with a wide range

of characteristics, circumstances, and

needs. The definition of a homeless

individual, as specified in section

17(b)(15) of the CNA, 42 U.S.C.

1786(b)(15), covers a wide range of

circumstances and includes persons

who are temporarily living with

relatives or friends, individuals housed

in a shelter which serves meals and can

offer nutrition education, or individuals

whose nighttime residence is not

designed or ordinarily used as a regular

sleeping accommodation. These

examples or conditions reflect the

diversity in the homeless population as

defined by WIC legislation.

The Department reminds those

commenters who stressed the

importance of seizing the opportunity to

provide services to homeless and

migrant applicants, that section

246.7(e)(2)(iii)(A) of the WIC regulations

already requires State agencies to

establish criteria for identifying

categories of persons at special

nutritional risk who require expedited

services. In addition, this provision of

the Program regulations requires that

migrant farmworkers and their family

members who soon plan to leave the

jurisdiction of the local agency be

considered as special nutritional risk

applicants. Added to these provisions

by this final rule is the allowance for

States, at 246.7(d)(4), to include

homeless individuals in their criteria for

expedited services, along with migrant

farmworkers and their family members.
19490 Federal Register / Vol. 60, No. 75 / Wednesday, April 19, 1995 / Rules and Regulations

In response to those commenters who

suggested that WIC add homelessness

and migrancy to the list of predisposing

nutritional risk conditions at section

246.7(e)(2)(iv), the following changes

are made. This final rule designates

homelessness and migrancy as

predisposing nutritional risk conditions,

and redesignates conditions currently

listed at section 246.7(e)(2)(iv) as direct

nutritional risks (chronic infections,

alcohol or drug abuse, mental

retardation in women, lead poisoning,

history of high-risk pregnancies or

factors associated with high-risk

pregnancies such as smoking;

conception before 16 months

postpartum; history of low birth weight,

premature births, or neonatal loss;

adolescent pregnancy; or current

multiple pregnancies in pregnant

women, or congenital malformations in

infants or children, or infants born of

women with alcohol or drug abuse

histories or mental retardation). The

redesignation of these currently listed

predisposing conditions to a new status

as direct risks is a technical change the

impact of which will only affect

recordkeeping. It was done to reflect

two realities. First, section 204(a) of

Pub. L. 103–448 revised the legislative

definition of ‘‘nutritional risk’’ by

adding a new subparagraph that

includes conditions that directly affect

the nutritional health of a person, such

as alcoholism or drug abuse. Therefore,

consistent with the legislation, this final

rule removes the aforementioned

conditions, along with alcoholism and

drug abuse, from the predisposing

category and more appropriately groups

them as conditions that directly affect a

person’s nutritional health. The revision

of the definition of nutritional risk in

Pub. L. 103–448 further delineates

nutritional risk conditions by retaining

homelessness and migrancy as examples

of conditions that predispose persons to

inadequate dietary patterns or

nutritionally related medical conditions.

Homelessness and migrancy are now the

only examples of conditions that

predispose persons to inadequate

nutritional patterns or nutritionally

related medical conditions that remain

in the CNA. Second, in addition to the

legislative directive, the change was

made to reflect current practices, which

in the Department’s estimation, is

appropriate. Most if not all State

agencies classify the aforementioned

conditions as direct nutritionally related

medical risk conditions.

Definition of Homelessness/Migrancy

In the April 1994 proposed version of

this rule the Department proposed that

it keep the current definitions of both a

‘‘homeless individual’’ and ‘‘migrant

farmworker’’ outlined in section 246.2,

and asserted that both should

accommodate all individuals Congress

intended to include in their references

to homelessness and migrancy in

section 204 of the Child Nutrition

Amendments of 1992, Public Law 102–

342. No commenters opposed this.

Therefore, these definitions will remain

as currently stated in section 246.2 for

purposes of this final rule.

WIC Priority System

The current WIC nutritional risk

priority system was designed to ensure

that persons at greatest health and

nutritional risk are served first with

available program funds. The priority

system therefore follows a logical order

of progression to determine priority for

service. Applicants with documented

nutritionally related medical conditions

are served first, followed by those at

nutritional risk due to inadequate

dietary patterns. Finally, and as a State

agency option, previously certified

participants whose nutritional status

might regress without continued

provision of supplemental foods are

certified in Priority VII.

This final rule requires State agencies

to include pregnant, breastfeeding or

postpartum women, infants, and

children who are certified at nutritional

risk solely because of their

homelessness or migrancy in one of the

respective priorities (Priority IV through

VI, or VII) of the WIC nutritional risk

priority system. State agencies must

indicate in their State Plans which

Priority(ies) they will use to certify

pregnant, breastfeeding or postpartum

women, infants, and children at

nutritional risk solely because of their

homelessness or migrancy. State

agencies may also continue to use

Priority VII to identify certified

participants who might regress in

nutritional status without continued

provision of supplemental foods. State

agencies must implement the provisions

of this rule by no later than October 1,

1995.

The Department does not intend for

State agencies to use administrative

shortcuts in certifying homeless and

migrant individuals. The Department

fully expects that homeless and migrant

applicants will receive all the normal

and necessary health assessments that

are routinely performed to determine

the presence of a medical or nutritional

risk which would determine their

proper priority placement, and assist in

identifying other health and social

services to which such individuals may

be referred.

Change in Name of Program

Section 204(w)(1) of Pub. L. 103–448,

changed the name of the WIC Program

from the ‘‘Special Supplemental Food

Program for Women, Infants, and

Children’’ to the ‘‘Special Supplemental

Nutrition Program for Women, Infants,

and Children’’. This final rule

implements that statutory change.

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,

Nutrition education, Public assistance

programs, WIC, Women.

Accordingly, 7 CFR Chapter II and

Part 246 are amended as follows:

1. In 7 CFR Chapter II (consisting of

Parts 210–299) all references to ‘‘the

Special Supplemental Food Program for

Women, Infants, and Children ‘‘ are

revised to read ‘‘the Special

Supplemental Nutrition Program for

Women, Infants, and Children’’.

PART 246—SPECIAL SUPPLEMENTAL

NUTRITION PROGRAM FOR WOMEN,

INFANTS AND CHILDREN

2. The authority citation for Part 246

continues to read as follows:

Authority: 42 U.S.C. 1786.

4. In § 246.7, paragraphs (e)(2)(ii),

(e)(2)(iv), the introductory text of

paragraph (e)(4) and paragraph

(e)(4)(vii) are revised to read as follows:

§ 246.7 Certification of participants.

* * * * *

(e) * * *

(2) * * *

(ii) Other documented nutritionally

related medical conditions, such as

clinical signs of nutritional deficiencies,

metabolic disorders, pre-eclampsia in

pregnant women, failure to thrive in an

infant, chronic infections in any person,

alcohol or drug abuse or mental

retardation in women, lead poisoning,

history of high risk pregnancies or

factors associated with high risk

pregnancies (such as smoking;

conception before 16 months

postpartum; history of low birth weight,

premature births, or neonatal loss;

adolescent pregnancy; or current

multiple pregnancy) in pregnant

women, or congenital malformations in

infants or children, or infants born of

women with alcohol or drug abuse

histories or mental retardation.

* * * * *

(iv) Conditions that predispose

persons to inadequate nutritional

patterns or nutritionally related medical
Federal Register / Vol. 60, No. 75 / Wednesday, April 19, 1995 / Rules and Regulations 19491

conditions, such as homelessness or

migrancy.

* * * * *

(4) Nutritional risk priority system.

The competent professional authority

shall fill vacancies which occur after a

local agency has reached its maximum

participation level by applying the

following participant priority system to

persons on the local agency’s waiting

list. Priorities I through VI shall be

utilized in all States. The State agency

may, at its discretion, expand the

priority system to include Priority VII.

The State agency may set income or

other sub-priority levels within any of

these seven priority levels. The State

agency may expand Priority III, IV, or V

to include high-risk postpartum women.

The State agency may place pregnant or

breastfeeding women and infants who

are at nutritional risk solely because of

homelessness or migrancy in Priority IV;

children who are at nutritional risk

solely because of homelessness or

migrancy in Priority V; and postpartum

women who are at nutritional risk solely

because of homelessness or migrancy in

Priority VI, OR, the State agency may

place pregnant, breastfeeding or

postpartum women, infants, and

children who are at nutritional risk

solely because of homelessness or

migrancy in Priority VII.

* * * * *

(vii) Priority VII. Individuals certified

for WIC solely due to homelessness or

migrancy and, at State agency option,

and in accordance with the provisions

of paragraph (e)(1)(iii) of this section,

previously certified participants who

might regress in nutritional status

without continued provision of

supplemental foods.

* * * * *

Dated: April 11, 1995.

William E. Ludwig,

Administrator, Food and Consumer Service.

[FR Doc. 95–9657 Filed 4–18–95; 8:45 am]

BILLING CODE 3410–30–U

Food Safety and Inspection Service

9 CFR PARTS 318, 381 and 391

[Docket No. 94–033F]

RIN 0583–AB87

Reduction of Accreditation Fees for

FSIS Accredited Laboratories

AGENCY: Food Safety and Inspection

Service, USDA.

ACTION: Confirmation of interim rule.

SUMMARY: The Food Safety and

Inspection Service (FSIS) is confirming

the interim regulations amending

provisions of the Federal meat and

poultry products inspection regulations

to reduce the fees charged participants

in the Agency’s voluntary Accredited

Laboratory Program (ALP). Non-Federal

analytical laboratories are qualified

under the ALP to conduct analyses of

official meat and poultry samples. The

payment by laboratories of annual

accreditation fees that cover the costs of

the ALP is mandated by the Food,

Agriculture, Conservation, and Trade

Act of 1990 (the 1990 Farm Bill), as

amended. FSIS determined late last year

that reduced ALP administrative

expenditures for fiscal year 1995 would

enable the Agency to charge a smaller

accreditation fee than it did last year.

Since the amount of the laboratory

accreditation fee is set forth in the

regulations, the regulations had to be

changed before the Agency could charge

a different fee. To meet fee billing

deadlines, FSIS found it necessary to

publish the fee reduction rule on an

interim basis.

The Agency also took the opportunity

to make some editorial corrections to

the regulations.

EFFECTIVE DATE: April 19, 1995.

FOR FURTHER INFORMATION CONTACT: Dr.

Jess Rajan, Food Safety and Inspection

Service, U.S. Department of Agriculture,

Room 516A, Annex Building, 300 12th

Street SW., Washington DC 20250–3700,

(202) 205–0679.

SUPPLEMENTARY INFORMATION:

Background

Section 1327 (7 USC 138f) of the

Food, Agriculture, Conservation, and

Trade Act of 1990 (PL 101–624), as

amended, known as the 1990 Farm Bill,

requires USDA to charge a

nonrefundable accreditation fee for

laboratories seeking accreditation by the

Secretary under the authority of the

FMIA or PPIA. The fee is required to be

in an amount that offsets the cost of the

ALP administered by FSIS under the

authority of the FMIA and PPIA.

Fees are billed annually on a peraccreditation basis at a rate that is

established by regulation (9 CFR 391.5).

The ALP regulations define an

accreditation to be a determination by

FSIS that a laboratory is qualified to

analyze official samples of meat and

poultry products for the presence and

amount of four food chemistry analytes

or a determination that a laboratory is

qualified to analyze official samples of

product for the presence and amount of

one of several classes of chemical

residue. The per-accreditation fee for

fiscal year 1994 was $3,500.

FSIS projected late last year that the

expenses of administering the ALP

during fiscal year 1995 would be less

than the expenses for fiscal year 1994.

The reduction came about because of

management savings and, to a lesser

extent, a smaller enrollment in the ALP

than anticipated. The Agency

determined that the smaller overall cost

of running the program meant that it

could reduce the fee per accreditation.

The Agency determined that, for fiscal

year 1995, the fee for original

accreditations and renewals would be

$2,500.

In order to meet billing deadlines for

accreditation renewals, avoid rebates for

renewals paid for at the old rate, and

avoid unnecessary administrative

burdens on the Government and

industry, the Agency found it necessary

to promulgate an interim rule with

request for comments on December 27,

1994 (59 FR 66446), effective the same

date. The interim rule amended the

administrative provisions of the Federal

meat and poultry inspection regulations

to change the fee. Also, some editorial

corrections were made to the ALP

regulations.

The interim rule provided a 30-day

comment period ending January 26,

1995. During this period one comment

was received from a trade association

favoring the fee reduction.

Executive Order 12866

This final rule has been determined to

be significant and was reviewed by the

Office of Management and Budget under

Executive Order 12866.

Executive Order 12778

This final rule has been reviewed

under Executive Order 12778, Civil

Justice Reform. This rule reduces the

accreditation fees for non-Federal

analytical chemistry laboratories

accredited under the Federal Meat and

Poultry Products Inspection Acts and

regulations promulgated thereunder.

States and local jurisdictions are

preempted under the Federal Meat

Inspection Act (FMIA) and the Poultry

Products Inspection Act (PPIA) from

imposing any requirements with respect

to federally inspected premises and

facilities, and operations of such

establishments, that are in addition to,

or different than, those imposed under

the FMIA or PPIA. States and local

jurisdictions are also preempted under

the FMIA and PPIA from imposing any

marking, labeling, packaging, or

ingredient requirements on federally

inspected meat or poultry products that

are in addition to, or different than,