[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66303-66304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27667]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 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.
 
 ========================================================================
 

  Federal Register / Vol. 67, No. 211 / Thursday, October 31, 2002 / 
Rules and Regulations  

[[Page 66303]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AD34


Special Supplemental Nutrition Program for Women, Infants and 
Children: Exclusion of Military Housing Payments

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule amends the regulations for the Special 
Supplemental Nutrition Program for Women, Infants and Children (WIC) to 
incorporate a non-discretionary provision in the Farm Security and 
Rural Investment Act of 2002, that affects the WIC application and 
certification process. In determining an applicant's income eligibility 
for WIC, this final rule provides WIC State agencies the option to 
exclude payments to military personnel for privatized housing, whether 
on or off military installations.

EFFECTIVE DATE: This rule is effective May 13, 2002.

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

SUPPLEMENTARY INFORMATION:

1. Why Is This Regulation Necessary?

    Section 4306 of the Farm Security and Rural Investment Act of 2002, 
(Pub. L. 107-171), enacted May 13, 2002, amends section 17(d)(2)(B)(i) 
of the Child Nutrition Act of 1966 (42 U.S.C. 1786), to allow WIC State 
agencies the option to exclude housing allowances paid to military 
personnel for privatized on-base or off-base housing in determining 
income eligibility for the WIC Program. In accordance with Pub. L. 107-
171, this provision became effective May 13, 2002.

2. Why Is This Regulation a Final Rule?

    This regulation is a final rule because the Department does not 
have discretion in how State agencies implement this provision. The 
provision, as set forth in this final rule, merely reflects the 
legislation. Thus, it is considered a non-discretionary provision.

3. What Does This Regulation Require of WIC Agencies?

    This regulation provides WIC State agencies the option to exclude 
payments to military personnel for privatized housing, whether on- or 
off-base. Therefore, in this final rule section 246.7(d)(2)(iv)(A)(1) 
of the WIC Program regulations is revised to include this State agency 
option. Previously, WIC legislation and regulations provided State 
agencies the option to exclude military housing allowances provided to 
military service personnel residing off military installations from 
consideration as income in determining WIC income eligibility. Since 
on-base housing has traditionally been provided to families without 
charge or indication of a cash allowance on their paychecks, WIC has 
considered this an in-kind benefit that has not been counted as income 
for WIC eligibility purposes. Therefore, the provision in Pub. L. 107-
171 provides State agencies the option to extend the income exclusion 
to include privatized on-base military housing allowances.
    The privatization of military housing is intended to provide 
improved, quality housing for military families living on base by 
contracting with private developers. An allowance is paid directly to 
military personnel that can be used only for rent. The household does 
not have the discretion to use this allowance for any other purpose, 
even though it is provided as a cash benefit and reflected as such on 
the employee's Leave and Earnings Statement (LES) as a Basic Allowance 
for Housing (BAH). Off-base military housing allowances are also 
reflected on the LES as BAH.
    Since payments for privatized housing are reflected as BAH on 
military pay stubs, WIC agencies cannot readily determine whether this 
is an off-base or on-base housing allowance. Further, it is clear based 
on enactment of this provision that Congress intends WIC State agencies 
to have the option to provide consistent treatment of military housing 
allowances in determining WIC income eligibility. Therefore, if a WIC 
State agency chooses to exclude BAH, in effect, it has chosen to 
exclude off-base housing allowances and payments for privatized on-base 
housing.

4. Procedural Matters

Executive Order 12866

    This rule has been determined to be not significant and was not 
reviewed by the Office of Management and Budget under Executive Order 
12866.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, 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 preamble. 
Prior to any judicial challenge to the provisions of this rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). Roberto Salazar, 
Administrator, Food and Nutrition Service, has certified that this rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule modifies WIC application and certification 
procedures. Therefore, the effect of this change will be primarily on 
WIC applicants and State and local WIC agencies, some of which are 
small entities. However, the impact on small entities is not expected 
to be significant.

Paperwork Reduction Act

    This final rule does not contain new reporting or record keeping 
requirements subject to approval by the Office of Management and Budget 
under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-20). The information collection burden associated with 
certification and eligibility of WIC participants is approved under OMB 
No. 0584-0043.

[[Page 66304]]

Executive Order 13132

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under section (6)(b)(2)(B) of Executive Order 13132. The 
Food and Nutrition Service has determined that this final rule does not 
have Federalism implications under Executive Order 13132. This rule 
makes changes that are required by Pub. L. 107-171, and became 
effective on May 13, 2002. The Department does not have discretion in 
how State agencies implement this provision. The provision, as set 
forth in this final rule, is reproduced verbatim from the legislation.

Executive Order 12372

    The Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC) Program is listed in the Catalog of Federal Domestic 
Assistance 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 from the scope of Executive Order 12372, which 
requires intergovernmental consultation with State and local officials.

Public Law 104-4

    Unfunded Mandate Reform Act of 1995 (UMRA) Title II of UMRA 
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, 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 to 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. This rule is, therefore, not subject to the requirements of 
sections 202 and 205 of the UMRA.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts this rule might have on 
minorities, women, and persons with disabilities. FNS has no discretion 
in implementing this change in income eligibility assessment. All data 
available to FNS indicate that protected individuals have the same 
opportunity to participate in the WIC Program as non-protected 
individuals. FNS specifically prohibits the State and local government 
agencies that administer the WIC Program from engaging in actions that 
discriminate based on race, color, national origin, sex, age or 
handicap. Regulations at 7 CFR 246.8 specifically state that 
``Department of Agriculture regulations on non-discrimination (7 CFR 
parts 15, 15a and 15b), and FNS instructions ensure that no person 
shall on the grounds of race, color, national origin, age, sex, or 
handicap, be excluded from participation in, be denied benefits of, or 
be otherwise subjected to discrimination under the Program.'' 
Discrimination in any aspect of program administration is prohibited by 
these regulations, Department of Agriculture regulations on non-
discrimination (7 CFR parts 15, 15a, and 15b), the Age Discrimination 
Act of 1975 (Pub. L. 94-135), the Rehabilitation Act of 1973 (Pub. L. 
93-112, section 504), and title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d). Enforcement action may be brought under any applicable 
Federal law. Title VI complaints shall be processed in accord with 7 
CFR part 15. Where State agencies have options, and they choose to 
implement a certain provision, they must implement it in such a way 
that it complies with the regulations at 7 CFR 246.8.

Public Participation

    This action is being finalized without prior notice or public 
comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). This final 
rule implements a non-discretionary legislative provision in the Farm 
Security and Rural Investment Act of 2002, Pub. L. 107-171, by 
providing WIC State agencies the option to exclude payments to military 
personnel for privatized housing, whether on- or off-base, when 
determining income eligibility for the WIC Program. Thus, the 
Department has determined in accordance with 5 U.S.C. 553(b) that 
notice of proposed rulemaking and opportunity for public comments is 
unnecessary and contrary to the public interest.
    The provisions became effective May 13, 2002. Therefore, we are 
making this rule effective retroactively to May 13, 2002.

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, 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.  246.7, revise paragraph (d)(2)(iv)(A)(1) to read as 
follows:


Sec.  246.7  Certification of participants.

* * * * *
    (d) * * *
    (2) * * *
    (iv) * * *
    (A) * * *
    (1) Basic allowance for housing received by military services 
personnel residing off military installations or in privatized housing, 
whether on- or off-base; and
* * * * *

    Dated: October 21, 2002.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. 02-27667 Filed 10-30-02; 8:45 am]
BILLING CODE 3410-30-P