[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80280-80281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32613]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AC51


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Clarification 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: Final rule.

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SUMMARY: This final rule amends the regulations governing the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC) to 
clarify one of the provisions required by the Personal Responsibility 
and Work Opportunity Reconciliation Act of 1996, enacted on August 22, 
1996. The nondiscretionary provisions of that act were incorporated in 
the WIC Program regulations in an interim rule published September 5, 
2000.

EFFECTIVE DATE: This rulemaking becomes effective January 22, 2001.

FOR FURTHER INFORMATION CONTACT: Debra R. Whitford at (703) 305-2746.

SUPPLEMENTARY INFORMATON:

Background

    On September 5, 2000, we published an interim rule (65 FR 53523) 
that amended the WIC Program regulations to incorporate certain 
nondiscretionary requirements of the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996 (Pub. L. 104-103). We received 
ten comments on the interim rule.
    Nine of the comments concerned the provision in Sec. 246.7(c)(2) 
providing WIC State agencies the option to limit WIC participation to 
U.S. citizens, nationals, and qualified aliens contained in section 742 
of Pub. L. 104-193 (8 U.S.C. 1615). In particular, the commenters 
suggested that we incorporate into the regulations our statement in the 
preamble concerning the effect of a provision to implement this option 
on the State agency's WIC-eligible population. In the preamble (65 FR 
53524-25) we said:

    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 
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.

    We use the estimated WIC-eligible population for each State agency 
to determine the State agency's fair share allocation of food funds. We 
believe that adjusting the State agency's WIC-eligible population to 
reflect the more limited population eligible for that State agency's 
WIC Program is a logical result under the current regulations. As such, 
we have adopted the commenters' suggestion. Accordingly, this final 
rule amends Sec. 246.16(c)(3)(i)(A) to provide that if a State agency 
chooses to exercise the option in Sec. 246.7(c)(2), FNS will reduce the 
State agency's population of income eligible persons to reflect the 
number of aliens the State agency declares no longer eligible.
    Another commenter raised two concerns. First, the commenter 
objected to the change in Sec. 246.7(b)(3) that makes food assistance 
referrals optional. We had no discretion on this point as the change 
was required by Pub. L. 104-193. Second, the commenter encouraged FNS 
to provide State and local agencies with two years' advance notice when 
making changes to the data required for the participant characteristic 
reports. Traditionally, we have worked closely with our State, tribal, 
and local government partners on any changes to the reporting on 
participant characteristics. We recognize that

[[Page 80281]]

system changes are often needed in order to collect different data and 
typically provide at least two years notice of any changes. We plan to 
continue this approach.

Executive Order 12866

    This final rule has been determined to be not significant and, 
therefore, was not reviewed by the Office of Management and Budget 
(OMB) under Executive Order 12866.

Regulatory Flexibility Act

    This final 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 relates to a provision 
providing WIC State agencies with increased flexibility in determining 
which individuals to serve. Although some WIC local agencies are small 
entities, the effect of this flexibility on local agencies will not be 
significant.

Paperwork Reduction Act

    This final 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 final 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 EFFECTIVE DATE paragraph of this final 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.

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

    Accordingly, the interim rule amending 7 CFR part 246, which was 
published at 65 FR 53523 on September 5, 2000, is adopted as final with 
the following change:

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. Amend Sec. 246.16(c)(3)(i)(A) by adding a new sentence at the 
end of the paragraph to read as follows:


Sec. 246.16  Distribution of funds.

* * * * *
    (c) * * *
    (3) * * *
    (i) * * *
    (A) * * * If the State agency chooses to exercise the option in 
Sec. 246.7(c)(2) to limit program participation to U.S. citizens, 
nationals, and qualified aliens, FNS will reduce the State agency's 
population of income eligible persons to reflect the number of aliens 
the State agency declares no longer eligible.
* * * * *

George A. Braley,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 00-32613 Filed 12-20-00; 8:45 am]
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