[Federal Register Volume 65, Number 172 (Tuesday, September 5, 2000)]
[Rules and Regulations]
[Pages 53523-53528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22638]



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  Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / 
Rules and Regulations  

[[Page 53523]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AC51


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Implementation of WIC Mandates of Public Law 104-193, 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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

SUMMARY: This interim rule amends regulations governing the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC) to 
implement the nondiscretionary WIC provisions of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996, enacted 
on August 22, 1996. The provisions in this interim rule include 
elimination of the following provisions: required provision of written 
information on certain other assistance programs; State agency 
timeframes for action on local agency applications for participation in 
the WIC Program; annual evaluation of nutrition education and 
breastfeeding promotion efforts; and annual submission of a State Plan.
    In addition, this rule implements the option which allows State 
agencies to limit WIC services to citizens and qualified aliens. This 
rulemaking is intended to simplify the State Plan submission and 
approval process by eliminating unnecessary duplication, and to 
increase State agency flexibility in the administration and operation 
of the WIC Program.

DATES: This rulemaking becomes effective October 5, 2000. To be assured 
of consideration, written comments on this rule must be postmarked by 
November 6, 2000.

ADDRESSES: Comments may be mailed to Patricia N. Daniels, Director, 
Supplemental Food Programs Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, Room 540, Alexandria, Virginia 22302, (703) 
305-2746. All written comments will be available for public inspection 
at this address during regular business hours (8:30 a.m. to 5:00 p.m.) 
Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Debra R. Whitford at (703) 305-2730.

SUPPLEMENTARY INFORMATiON:

Background

    Section 729 of Public Law 104-193, the Personal Responsibility and 
Work Opportunity Reconciliation Act of 1996, enacted on August 22, 
1996, amended a wide range of WIC Program provisions in such areas as 
program outreach; referral and access; coordination; nutrition 
education and breastfeeding promotion and support. Congress eliminated 
many WIC provisions to decrease the burden on State agencies and to 
give State agencies more flexibility in administering the program. WIC 
requirements that were eliminated include the annual evaluation of 
nutrition education and breastfeeding promotion and support efforts; 
provision of written information on Child Support, Temporary Assistance 
for Needy Families (TANF) (formerly known as AFDC), and the Food Stamp 
Program; the nutrition education ``master file'' documentation method; 
and timeframes for State agency action on local agency applications for 
participation in the program. In addition, several State Plan 
requirements were modified or eliminated. All of these provisions are 
mandatory, and have been incorporated into this interim rule exactly as 
they appear in the law itself. As such, they are considered to be 
nondiscretionary provisions, and cannot be modified based on any 
comments that may be submitted regarding them.
    Section 742 of Public Law 104-193 also grants State agencies the 
option to prohibit service to persons other than citizens and qualified 
aliens. Comments are welcome regarding the Department's treatment of 
this provision, found at 7 CFR part 246.7(c)(2), and its anticipated 
effect(s) upon the administration of the WIC Program.
    The following is a discussion of each provision addressed in 
section 729 of Public Law 104-193 that is incorporated in this interim 
rule. The provision of Public Law 104-193 requiring the Secretary to 
establish criteria for the disqualification of WIC vendors who have 
been disqualified from the Food Stamp Program has been addressed in a 
separate rulemaking published on March 18, 1999, at 64 FR 13311.

1. Definition of Homeless Individual--Sec. 246.2

    The previous definition of ``homeless individual'' included an 
individual whose primary nighttime residence is a temporary 
accommodation in the residence of another individual. Section 729(a)(1) 
of Public Law 104-193 amended section 17(b)(15)(B)(iii) of the Child 
Nutrition Act of 1966 (CNA) by revising the definition of homeless 
individual to state that a temporary accommodation in the residence of 
another individual cannot exceed 365 days. The definition of homeless 
individual in Sec. 246.2 has been revised to reflect this change.

2. State Plan--Sec. Sec. 246.4(a), 246.4(a)(14)(ix), 246.4(a)(18), 
246.4(a)(19), and 246.4(a)(21)

    Previous WIC regulations required that by August 15 of each year, 
each State agency would submit to the Food and Nutrition Service (FNS) 
for approval a State plan for the following year as a prerequisite to 
receiving funds. Section 729(e)(1)(A)(i) of Public Law 104-193 amended 
section 17(f)(1)(A) of the CNA by modifying the State plan submission 
requirement. The State agency is now only required to submit an initial 
plan of operation and administration. Once approved, the State agency 
is only required to submit for approval substantive changes in the 
plan, as defined in WIC Policy Memorandum 97-4, issued by FNS July 16, 
1997. Section 246.4(a) has been amended to reflect this change.
    In addition to the annual submission change, there were several 
State plan requirements that were eliminated or modified. State 
agencies should keep in mind that while the required content of the 
State Plan has been reduced, the actual activities and operations that 
were previously described in the State Plan are still required or, if 
they are

[[Page 53524]]

conducted at the State agency's option, permitted. The only change is 
that FNS no longer requires a detailed explanation of these activities, 
as discussed below, as a condition of the State Plan's final approval.
    Section 729(e)(1)(B)(iv) of Public Law 104-193 deleted, among other 
provisions, section 17(f)(1)(C)(xii), thus eliminating the State plan 
requirement for an estimate of increased participation when funds 
conversion authority is requested by the State agency. As such, 
Sec. 246.4(a)(14)(ix) has been revised to eliminate the participation 
estimate.
    Also, section 729(e)(1)(B)(iii) of Public Law 104-193 amended 
section 17(f)(1)(C)(vii) of the CNA by removing the requirement for a 
plan to provide program benefits to eligible individuals most in need 
of the benefits and to provide eligible individuals not participating 
in the program with information on the program, the eligibility 
criteria for the program, and how to apply for the program. Section 
246.4(a)(18) has been amended to reflect this legislative change. 
Please note, however, that the statutory requirement that the State 
plan include a plan for reaching and enrolling women in the early 
months of pregnancy, including provisions to reach and enroll eligible 
migrant farmworkers, Indians and homeless individuals, is retained both 
in the CNA and in program regulations.
    The requirement to include a plan addressing how incarcerated 
persons or juveniles in detention facilities will be provided WIC 
benefits was also eliminated. The Department would like to clarify that 
under the CNA, State agencies may continue to serve these individuals. 
Congress merely eliminated the requirement that State agencies include 
in their State plans their procedures for addressing the special needs 
of these individuals.
    In addition, section 729(e)(1)(B)(iv) of Public Law 104-193 
deleted, among other provisions, section 17(f)(1)(C)(x) of the CNA, 
thus eliminating the requirement that a State agency use statutorily 
specified techniques in its plan to improve access to the program for 
participants and prospective applicants who are employed, or who reside 
in rural areas. The statutory requirements for specific use of 
appointment scheduling, adjustment of clinic hours, clinic locations, 
and mailing of multiple vouchers were deleted. At the same time, an 
amendment was made to section 17(f)(1)(C)(vi) of the CNA to add a 
requirement for a plan to provide benefits to unserved and underserved 
areas in the State, including a plan to improve access to the program 
for those participants and prospective applicants who are employed, or 
who reside in rural areas if sufficient funds are available to serve 
additional persons. The net result of these two amendments is that 
Congress eliminated only the specific methods or procedures to be used 
to address the special needs of employed participants as well as 
applicants and individuals who reside in rural areas. While the 
Department of Agriculture (Department) still encourages the scheduling 
of appointments and adjustment of clinic hours and locations, State 
agencies now determine the specific practices they will use to 
accommodate working and rural applicants and participants. Section 
246.4(a)(21) is amended to reflect these changes.

3. Selection of Local Agencies--Sec. 246.5(b)

    Prior to the enactment of Public Law 104-193, Sec. 246.5(b) 
required that the State agency act on local agency applications for 
participation in the program within specific timeframes. Upon the 
receipt of a completed application from a local agency for 
participation in the program, State agencies were required to notify 
the applicant agency in writing within 30 days of the approval or 
disapproval of its application. When an application was disapproved, 
the State agency was required to advise the applicant agency of the 
reasons for such disapproval. In addition, within 15 days after the 
receipt of an incomplete application the State agency was required to 
notify the applicant agency of additional information needed to 
complete the application. Section 729(e)(2) of Public Law 104-193 
deleted, among other provisions, section 17(f)(6) of the CNA, thus 
eliminating all timeframes for State agency action on local agency 
applications to participate in the program. State agencies now 
determine the timeframes for such action. Section 246.5(b) has been 
amended to reflect this change. While timeframes for action are now 
left to State agency discretion, the Department encourages State 
agencies to continue to use the 30 and 15-day timeframes.

4. Certification of Participants--Sec. Sec. 246.7(b)(1), 246.7(b)(4), 
246.7(c), 246.7(d)(2)(vi)(1), 246.7(d)(2)(vi)(2), 246.7(h)(1), 
246.7(j)(9), and 246.7(p)

Program Referral and Access
    Section 729(d)(2) of Public Law 104-193 deleted section 17(e)(4)(A) 
of the CNA, thus eliminating the requirement that applicants be 
provided with written information concerning the receipt of food 
stamps, TANF (formerly known as AFDC), and the child support 
enforcement program under part D of title IV of the Social Security 
Act, on at least one occasion, by each adult participant in and each 
applicant for the WIC Program. In addition, section 729(d)(2) also 
added new statutory authority allowing State agencies to provide local 
agencies with materials describing other programs for which a 
participant may be eligible. Section 246.7(b) has been amended to 
reflect these changes.
    Section 729(e)(9) of Public Law 104-193 amended redesignated 
section 17(f)(18) (formerly section 17(f)(19)) of the CNA by making 
optional the requirement for a local agency to provide information 
about other potential sources of food assistance in the local area to 
individuals who apply in person to participate in the WIC Program, but 
who cannot be served because the WIC Program is operating at capacity 
in the local area. Section 246.7(b)(3) has been amended to reflect this 
change.
State Option To Limit WIC Participation to United States Citizens, 
Nationals, and Qualified Aliens
    Section 742 of Public Law 104-193 specifies that States are neither 
required nor prohibited from providing program benefits to individuals 
who are not United States (U.S.) citizens, nationals, or qualified 
aliens. The use of the term ``State'' in the legislation conveys this 
authority to WIC State agencies and to Indian Tribal Organizations 
(ITOs) operating as WIC State agencies. Section 431(b) of Public Law 
104-193 defines ``qualified alien.'' Qualified aliens include: (1) 
Lawful permanent residents; (2) asylees; (3) refugees; (4) parolees 
admitted for at least one year; (5) certain aliens whose deportations 
are being withheld; (6) certain conditional entrants; (7) certain Cuban 
and Haitian entrants; and (8) certain battered aliens, alien parents of 
battered children, and alien children whose parents are battered. 
Therefore, under Public Law 104-193, States and WIC State agencies have 
the option to limit WIC participation to U.S. citizens, nationals, and 
qualified aliens. Section 246.7(c)(2) has been added to reflect this 
option.
    Because a State agency's decision to implement this option will 
effectively reduce the State agency's eligible WIC population, FNS, by 
regulatory authority, will make a downward adjustment of that State 
agency's estimated WIC-eligible population to reflect the number of 
aliens the State agency declares no longer eligible. If a

[[Page 53525]]

State agency's participation decreases and food funds are not expended, 
for whatever reason, including the exclusion of certain categories of 
aliens, FNS may execute its regulatory authority to recover funds 
during the year from the State agency in question. FNS apprised State 
agencies on January 13, 1997, of these potential consequences of 
implementing the option to limit participation to U.S. citizens, 
nationals, and qualified aliens.
    States/WIC State agencies choosing to implement the option have 
flexibility in the development of specific policies and procedures for 
implementation. States/WIC State agencies assume full liability for 
implementation of this option and are responsible for ensuring their 
procedures are not discriminatory or capriciously applied. Given the 
wide latitude under which State agencies may implement this option, 
State agencies are strongly encouraged to consult with their legal 
counsel regarding the development and implementation of procedures.
    Section 432 of Public Law 104-193 requires the U.S. Attorney 
General to issue regulations requiring verification of eligibility for 
certain Federal public benefits.
    Further, section 504 of the Illegal Immigration Reform and 
Immigrant Responsibility Act, Public Law 104-208, requires the U.S. 
Attorney General to establish procedures whereby persons applying for 
certain Federal public benefits would provide proof of citizenship. 
States or WIC State agencies that choose to implement the option to 
limit WIC participation to U.S. citizens, nationals, and qualified 
aliens are encouraged to review the guidance and regulations issued by 
the U.S. Attorney General when developing their specific policies and 
procedures to implement the option. The guidance (Interim Guidance on 
Verification of Citizenship, Qualified Alien Status and Eligibility 
Under Title IV of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996) was published at 62 FR 61344, Nov. 17, 
1997. The proposed rule (Verification of Eligibility for Public 
Benefits) was published at 63 FR 41662, August 4, 1998. The final 
regulation on verifying alien eligibility for public benefits is 
forthcoming. However, States and State agencies who do elect to limit 
WIC participation to U.S. citizens, nationals, and qualified aliens are 
not required to implement the guidance and regulations issued by the 
Attorney General on these matters, even after the final rule has been 
published.
    If a State/State agency, including an ITO serving as a WIC State 
agency, chooses to implement this option, it must inform FNS of its 
intentions and provide written copies of the procedures it will 
establish. This documentation and notification are for informational 
purposes only. Neither the State agency's decision nor its procedures 
will be subject to FNS approval. To date, no State has chosen to 
implement this option.
Certification of Qualified Aliens
    Three provisions in Public Law 104-193 address the certification of 
aliens but do not apply to WIC. This portion of the preamble is 
provided to clarify those provisions and their inapplicability to WIC. 
First, the law specifies in section 421 that in determining the 
eligibility and benefits of an alien for any Federal means-tested 
public benefit programs as provided in section 403 of the law, the 
income and resources of an alien shall include the income and resources 
of the person who sponsors the alien, i.e., signs an affidavit of 
support, including the income of the sponsor's spouse. This provision, 
however, does not apply to the WIC Program. The WIC Program is 
specifically exempted from the application of the term ``Federal means-
tested public benefit'' under section 403. In addition, FNS published a 
Notice in the Federal Register on July 7, 1998 at 63 FR 36653 which 
clarifies that the WIC Program is not a Federal means-tested public 
benefit program as that term is used in Public Law 104-193 and is 
exempt from the application of the term.
    Second, section 551 of Public Law 104-208, codified at 8 U.S.C. 
1183a (which replaced sections 423(a) through 423(c) of Public Law 104-
193), provides that if a sponsored alien receives any means-tested 
public benefit, the appropriate official at the Federal, State, or 
local level shall request reimbursement by the sponsor in the amount of 
the assistance. However, section 423(d)(4) of Public Law 104-193, 
codified at 8 U.S.C. 1183a note, exempts benefits under the CNA, 
including the WIC Program, from the reimbursement requirement.
    Third, section 403(a) of Public Law 104-193 imposes a five-year 
waiting period after a qualified alien enters the country before he or 
she is eligible for any Federal means-tested public benefit. Section 
403(c), however, exempts benefits under the CNA, including the WIC 
Program, from this requirement. Therefore, qualified aliens are 
eligible for the WIC Program without regard to the length of time in 
the qualifying immigration status.
    Section 246.7(q) has been added to clarify in regulations the 
requirements associated with the certification of qualified aliens.

Adjunct or Automatic Income Eligibility

    Section 109(h) of Public Law 104-193 amended section 
17(d)(2)(A)(ii)(II), and section 729(d)(2) deleted preexisting section 
17(e)(4)(A) of the CNA to conform the CNA's adjunct or automatic income 
eligibility provisions with the redesignation of the Aid to Families 
with Dependent Children program as the Temporary Assistance for Needy 
Families program. Sections 246.7(d)(2)(vi)(1), 246.7(d)(2)(vi)(2), and 
246.7(h)(1) are amended to reflect this name change.

Notification of Participant Rights and Responsibilities--
Sec. 246.7(j)(9)

    Section 729(e)(4) of Public Law 104-193 amended preexisting section 
17(f)(9)(B) (redesignated as section 17(f)(8)(B)) by eliminating the 
requirement to include specific information on the categories of 
participants whose benefits are being suspended or terminated because 
of funding shortages in the notice provided to affected participants. 
State agencies must still provide notice to participants whose benefits 
are suspended or terminated because of funding shortages before taking 
action to suspend or terminate benefits. However, such notice no longer 
must include the categories of persons whose benefits are being 
suspended or terminated. Section 246.7(j)(9) has been amended to 
reflect this change.

5. Nutrition Education--Sec. 246.11(c)(5) and Sec. 246.11(e)(4)

State Agency Responsibilities
    Section 729(d)(1) of Public Law 104-193 amended section 17(e)(2) of 
the CNA by eliminating the requirement that State agencies annually 
evaluate nutrition education and breastfeeding promotion and support 
activities. However, because State agencies must still spend a targeted 
amount of Nutrition Services and Administration funds on nutrition 
education and breastfeeding promotion and support activities, this is 
considered an important function. As such, State agencies are strongly 
encouraged to maintain a system to evaluate the effectiveness of their 
activities in these areas. Section 246.11(c)(5) has been deleted to 
reflect the elimination of the annual evaluation requirement.

[[Page 53526]]

Participant Contacts--Sec. 246.11(e)(4)
    Section 729(d)(4) of Public Law 104-193 deleted preexisting section 
17(e)(6) of the CNA, thus eliminating the requirement that local 
agencies use master files to document and monitor the provision of 
nutrition education. The Department wishes to point out that even 
though this provision was eliminated legislatively, local agencies may 
continue using a ``master file'' to document nutrition education 
contacts, rather than documenting them in individual participant case 
files. Recognizing that master file documentation was intended to 
minimize administrative burden at the local level, State agencies may 
continue to permit local agencies to use a ``master file'' to document 
second or any subsequent nutrition education contacts during a 
certification period that are provided to a participant, so long as the 
system also allows a local agency to retrieve the information by 
participant, so as to review the nutrition education provided to an 
individual.

6. Distribution of Funds--Secs. 246.16(a)(6), 246.16(j)

    Section 729(f)(1) of Public Law 104-193 amended section 17(g)(5) of 
the CNA by making a technical change to replace biennial participation 
report with reports on program participant characteristics. Section 
246.16(a)(6) has been revised to reflect this technical change.
    Section 729(g)(1)(B) further amended section 17(h)(8)(G) of the CNA 
by changing from ``shall'' to ``may'' the authority for FNS to promote 
the joint purchase of infant formula and other foods. The Department 
has always encouraged this practice as a cost containment measure and 
will, for the foreseeable future, continue to do so.

7. Records and Reports--Sec. 246.25(b)(3)

Program Participant Characteristic Reports
    Prior to the enactment of Public Law 104-193, section 17(h)(4)(E) 
of the CNA required that each State agency collect data regarding the 
incidence and duration of breastfeeding for inclusion in a Department-
compiled biennial report to Congress on participant characteristics. 
Section 729(g)(1)(A) of Public Law 104-193 amended section 17(h)(4)(E) 
of the CNA by making a technical correction to reflect the elimination 
of the biennial report to Congress that was to include data on the 
incidence and duration of breastfeeding. Although the Department is no 
longer required to send a biennial report to Congress, State agencies 
must continue to collect the data for inclusion in the report on 
program participant characteristics that will replace the biennial 
report. This new report will continue to require the collection of data 
on breastfeeding incidence and duration. Section 246.25(b)(3) has been 
revised to reflect this technical change.
Executive Order 12866
    This interim rule has been determined to be significant and was 
reviewed by the Office of Management and Budget (OMB) under Executive 
Order 12866.
Regulatory Flexibility Act
    This interim rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601-612). Shirley R. 
Watkins, Under Secretary for Food, Nutrition and Consumer Services, has 
certified that this rule will not have a significant impact on a 
substantial number of small entities. This rule provides WIC State and 
local agencies with increased flexibility in providing program benefits 
to participants. Several program administration requirements have been 
reduced or eliminated by this rule.
Paperwork Reduction Act
    This interim rule imposes no new reporting or recordkeeping 
requirements that are subject to OMB review in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20).
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. For reasons set forth in the final rule in 7 CFR 
part 3015, subpart V, and related notice (48 FR 29115, June 24, 1983), 
this program is included in the scope of Executive Order 12372 which 
requires intergovernmental consultation with State and local officials.
Executive Order 12988
    This interim rule has been reviewed under Executive Order 12998, 
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 interim rule. Prior 
to any judicial challenge to the application of provisions of this 
rule, all applicable administrative procedures must be exhausted.
Executive Order 13132
    FNS has analyzed this final rule in accordance with the principles 
set forth in Executive Order 13132. As such, FNS has determined that 
the rule does not contain policies that have federalism implications as 
defined in the order and, consequently, a federalism summary impact 
statement is not required.
Public Law 104-4
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
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 205 of the UMRA generally requires FNS to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, more cost-effective or least burdensome alternative that 
achieves the objectives of the rule.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, and tribal 
governments or the private sector of $100 million or more in any one 
year. Thus, this rule is not subject to the requirements of sections 
202 and 205 of the UMRA.
Good Cause Determination
    As discussed above, Section 729 of the Personal Responsibility and 
Work Opportunity Reconciliation Act of 1996 contained provisions 
affecting a wide range of WIC Program provisions, with the stated 
intention of decreasing the burden on State agencies and giving State 
agencies more flexibility in administering the program. These 
provisions of law are mandatory. Therefore, Under Secretary Shirley R. 
Watkins has determined in accordance with 5 U.S.C. 553(b) that prior 
notice and comment would be unnecessary, and that good cause exists for 
making this rule effective without first publishing a proposed rule.

List of Subjects in 7 CFR Part 246

    Administrative practice and procedure, Civil rights, Food 
assistance programs, Food and Nutrition Service, Food donations, Grant 
programs--health, Grant programs--social

[[Page 53527]]

programs, Indians, Infants and children, Maternal and child health, 
Nutrition, Nutrition education, Penalties, Reporting and recordkeeping 
requirements, WIC, Women.

    For reasons set forth in the preamble, 7 CFR part 246 is amended as 
follows:

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, the definition of ``Homeless individual'' is 
revised to read as follows:


Sec. 246.2  Definitions.

* * * * *
    Homeless individual means a woman, infant or child:
    (a) Who lacks a fixed and regular nighttime residence; or
    (b) Whose primary nighttime residence is:
    (1) A supervised publicly or privately operated shelter (including 
a welfare hotel, a congregate shelter, or a shelter for victims of 
domestic violence) designated to provide temporary living 
accommodation;
    (2) An institution that provides a temporary residence for 
individuals intended to be institutionalized;
    (3) A temporary accommodation of not more than 365 days in the 
residence of another individual; or
    (4) A public or private place not designed for, or ordinarily used 
as, a regular sleeping accommodation for human beings.
* * * * *

    3. In Sec. 246.4:
    a. The ninth and tenth sentences of paragraph (a) introductory text 
are removed;
    b. A new ninth sentence is added to paragraph (a) introductory 
text;
    c. The last clause of paragraph (a) introductory text is revised; 
and
    d. Paragraphs (a)(14)(ix), (a)(18) and (a)(21) are revised.
    The revisions read as follows:


Sec. 246.4  State plan.

    (a) Requirements. * * * After receiving approval of the State Plan, 
each State agency shall only submit to FNS for approval substantive 
changes in the State Plan. A complete and approved Plan shall include:
* * * * *
    (14) * * *
    (ix) For State agencies applying for authority to convert food 
funds to nutrition services and administration funds under 
Sec. 246.16(g), a full description of their proposed cost-cutting 
system or system modification;
* * * * *
    (18) The State agency's plan to reach and enroll migrants, and 
eligible women in the early months of pregnancy.
* * * * *
    (21) A plan to improve access to the Program for participants and 
prospective applicants who are employed or who reside in rural areas, 
by addressing their special needs through the adoption or revision of 
procedures and practices to minimize the time participants and 
applicants must spend away from work and the distances participants and 
applicants must travel. The State agency shall also describe any plans 
for issuance of food instruments to employed or rural participants, or 
to any other segment of the participant population, through means other 
than direct participant pick-up, pursuant to Sec. 246.12(r)(8). Such 
description shall also include measures to ensure the integrity of 
Program services and fiscal accountability.
* * * * *

    4. In Sec. 246.5, paragraph (b) is revised to read as follows:


Sec. 246.5  Selection of local agencies.

* * * * *
    (b) Application of local agencies. The State agency shall require 
each agency, including subdivisions of the State agency, which desires 
approval as a local agency, to submit a written local agency 
application. After the receipt of an incomplete application, the State 
agency shall provide written notification to the applicant agency of 
the additional information needed. After the receipt of a complete 
application, the State agency shall notify the applicant agency in 
writing of the approval or disapproval of its application. When an 
application is disapproved, the State agency shall advise the applicant 
agency of the reasons for disapproval and of the right to appeal as set 
forth in Sec. 246.18. When an agency submits an application and there 
are no funds to serve the area, the applicant agency shall be notified 
that there are currently no funds available for Program initiation or 
expansion. The applicant agency shall be notified by the State agency 
when funds become available.
* * * * *

    5. In Sec. 246.7:
    a. Paragraph (b)(1) is removed, and paragraphs (b)(2), (b)(3), 
(b)(4), (b)(5), and (b)(6) are redesignated as paragraphs (b)(1), 
(b)(2), (b)(3), (b)(4), and (b)(5), respectively;
    b. Newly redesignated paragraph (b)(3) is revised;
    c. Paragraphs (c)(1), (c)(2), and (c)(3) are redesignated as 
(c)(1)(i), (c)(1)(ii), (c)(1)(iii), respectively;
    d. The introductory text of paragraph (c) is redesignated as 
paragraph (c)(1);
    e. A new paragraph (c)(2) is added;
    f. Paragraph (d)(2)(vi)(A)(1) is amended by removing the words 
``Aid to Families with Dependent Children (AFDC)'' and adding in their 
place the words ``Temporary Assistance for Need Families (TANF)'';
    g. Paragraph (d)(2)(vi)(A)(2) is amended by removing the word 
``AFDC'' and adding in its place the word ``TANF'';
    h. Paragraph (h)(1) is amended by removing the word ``AFDC'' 
wherever it appears and adding, in its place, the word ``TANF'';
    i. Paragraph (j)(9) is revised; and
    j. A new paragraph (q) is added.
    The revisions and additions read as follows:


Sec. 246.7  Certification of participants.

* * * * *
    (b) * * *
    (3) Local agencies may provide information about other potential 
sources of food assistance in the local area to adult individuals 
applying or reapplying in person for the WIC Program for themselves or 
on behalf of others, when such applicants cannot be served because the 
Program is operating at capacity in the local area.
* * * * *
    (c) * * *
    (2) A State, a State agency, and an Indian Tribal Organization 
(including, an Indian tribe, band, or group recognized by the 
Department of the Interior; or an intertribal council or group which is 
an authorized representative of Indian tribes, bands or groups 
recognized by the Department of the Interior and which has an ongoing 
relationship with such tribes, bands or groups for other purposes and 
has contracted with them to administer the Program) serving as a State 
agency, may limit WIC participation to United States citizens, 
nationals, and qualified aliens as these terms are defined in the 
Immigration and Nationality Laws (8 U.S.C. 1101 et seq.). State 
agencies that implement this option shall inform FNS of their 
intentions and provide copies of the procedures they will establish 
regarding the limitation of WIC services to United States citizens, 
nationals, and qualified aliens.
* * * * *
    (j) * * *
    (9) If a State agency must suspend or terminate benefits to any 
participant

[[Page 53528]]

during the participant's certification period due to a shortage of 
funds for the Program, it shall issue a notice to such participant in 
advance, as stipulated in paragraph (j)(6) of this section.
* * * * *
    (q) Certification of qualified aliens. In those cases where a 
person sponsors a qualified alien, (as the term is defined in the 
Immigration and Nationality Laws (8 U.S.C.1101 et seq.)), i.e., signs 
an affidavit of support, the sponsor's income, including the income of 
the sponsor's spouse, shall not be counted in determining the income 
eligibility of the qualified alien except when the alien is a member of 
the sponsor's family or economic unit. Sponsors of qualified aliens are 
not required to reimburse the State or local agency or the Federal 
government for WIC Program benefits provided to sponsored aliens. 
Further, qualified aliens are eligible for the WIC Program without 
regard to the length of time in the qualifying status.


Sec. 246.11  [Amended]

    6. In Sec. 246.11:
    a. Paragraph (c)(5) is removed; and
    b. Paragraphs(c)(6), (c)(7), and(c)(8) are redesignated as 
paragraphs (c)(5), (c)(6), and (c)(7), respectively.

    7. In Sec. 246.16, paragraph (a)(6) is revised to read as follows:


Sec. 246.16  Distribution of funds.

    (a) * * *
    (6) Up to one-half of one percent of the sums appropriated for each 
fiscal year, not to exceed $5,000,000, shall be available to the 
Secretary for the purpose of evaluating Program performance, evaluating 
health benefits, providing technical assistance to improve State agency 
administrative systems, preparing reports on program participant 
characteristics, and administering pilot projects, including projects 
designed to meet the special needs of migrants, Indians, rural 
populations, and to carry out technical assistance and research 
evaluation projects for the WIC Farmers' Market Nutrition Program.
* * * * *

    8. In Sec. 246.25, paragraph (b)(3) is revised to read as follows:


Sec. 246.25  Records and reports.

* * * * *
    (b) * * *
    (3) Program Participant Characteristic reports. State and local 
agencies shall provide such information as may be required by FNS to 
prepare reports on participant characteristics which includes, at a 
minimum, information on breastfeeding incidence and duration, income 
and nutritional risk characteristics of participants, and participation 
in the Program by members of families of migrant farmworkers.
* * * * *

    Dated: August 23, 2000.
Shirley R. Watkins,
Under Secretary, Food, Nutrition and Consumer Services.
[FR Doc. 00-22638 Filed 9-1-00; 8:45 am]
BILLING CODE 3410-30-U