[Federal Register Volume 69, Number 59 (Friday, March 26, 2004)]
[Rules and Regulations]
[Pages 15676-15680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6388]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

RIN 0720-AA75


TRICARE; Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS); Special Supplemental Food Program for Women, 
Infants, and Children Overseas

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Final rule.

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SUMMARY: This final rule implements section 674 of the National Defense 
Authorization Act for Fiscal Year 2000. Section 674 directed the 
Department of Defense to establish a program to provide supplemental 
food and nutrition education services to members of the armed forces on 
duty at stations outside the United States (and its territories and 
possessions) and to eligible civilians serving with, employed by, or 
accompanying the armed forces to these locations. Congress directed 
that the Department implement the special supplemental nutrition 
program for Women, Infants, and Children (WIC) in a manner that 
provides a benefit that is ``similar'' to the benefit provided to 
participants in the Special Supplemental Nutrition Program for Women, 
Infants and Children administered by the U.S. Department of Agriculture 
(USDA). Receipt of benefits under both the domestic WIC and the DoD 
programs is conditioned on applicants meeting specified eligibility 
criteria, i.e., categorical (pregnant, postpartum, breastfeeding women, 
infants or children up to age 5), residency, income and nutritional 
risk. The Department was directed to use the USDA eligibility

[[Page 15677]]

criteria to the extent practicable. This final rule specifies 
eligibility requirements, describes the benefits available under the 
program, and provides administrative guidance on program operation. The 
Department is publishing this rule as a final rule in order to meet the 
statutory directive that the Secretary of Defense prescribes 
regulations to administer the program.

FOR FURTHER INFORMATION CONTACT: Danita F. Hunter, Operations 
Directorate, TRICARE Management Activity, 5111 Leesburg Pike, Suite 
810, Falls Church, VA, 22041, telephone (703) 681-0039.

EFFECTIVE DATE: This rule is effective March 16, 2004.

SUPPLEMENTARY INFORMATION: Public Comments: We published the interim 
final rule on July 22, 2003 (68 FR 43299), and provided a 60 day 
comment period. We received no public comments.

A. Introduction

    In the National Defense Authorization Act for Fiscal Year 2000, 
Congress mandated that the Department establish and fund a program to 
provide a special supplemental food and nutrition education program to 
eligible low-income families overseas whose members have been 
determined to be at nutritional risk. This program is known as the 
Women, Infants, and Children Overseas (WIC Overseas) program. This 
final rule implements section 674 of this Act.

B. Eligibility

    To be eligible for the DoD special supplemental food program, a 
person must be a member of the armed forces on duty at stations outside 
the U.S. (and its territories and possessions) or an eligible civilian 
serving with, employed by, or accompanying the armed forces outside the 
U.S. (and its territories and possessions). Additionally, the person 
must be found to be at nutritional risk. Specifically, to be certified 
as eligible to receive benefits under the program, a person must:
     Meet specified program income guidelines 
published by the Secretary of Health and Human Services, and
     Meet one of the criteria listed in this 
regulation as indicative of nutritional risk. Determinations of income 
eligibility and nutritional risk will be made to the extent practicable 
using applicable standards used by the USDA in determining eligibility 
for the domestic Women, Infants, and Children (WIC) program. In 
determining income eligibility, the Department will use the Department 
of Health and Human Services income poverty table for the State of 
Alaska.

C. Scope of Benefit

    The purpose of the program is to provide supplemental foods and 
nutrition education to serve as an adjunct to good health care during 
critical times of growth and development, in order to prevent the 
occurrence of health problems, including drug and other substance 
abuse, and to improve the health status of program participants. The 
benefit is similar to the benefit provided under the domestic WIC 
program.
    Under the program, eligible participants are provided with drafts 
(paper food instruments, similar to vouchers) that may be redeemed at 
specified intervals for food packages. Participants access the food 
benefit by redeeming drafts at designated commissaries and NEXMARTS 
overseas. Food packages are prescribed by program staff who choose from 
a range of available food packages to tailor the benefit to the needs 
of program participants.
    The program also provides nutrition education and counseling 
services to all participants at specified intervals. Nutrition 
education sessions are designed to stress the relationship between 
proper nutrition and good health with special emphasis on the 
nutritional needs of pregnant, postpartum, and breastfeeding women, 
infants, and children less than five years of age and to achieve a 
positive change in food habits, resulting in improved nutrition status 
and the prevention of nutrition-related health problems. Nutrition 
education promotes breastfeeding as the optimal method of infant 
nutrition. Nutritional education includes educating women participating 
in the program about the harmful effects of substance abuse. Nutrition 
education is an integral element of the WIC Overseas program; however, 
a participant may not be denied supplemental food benefits for failure 
to attend or participate in nutrition education activities. Nutrition 
education sessions are conducted in the context of the ethnic, 
cultural, and geographical preferences of participants.

D. Financial and Administrative Requirements

    The Secretary of Defense will establish a system for verifying 
appropriate use of the WIC Overseas Program funds. This will include 
procedures to verify that draft redemption complies with applicable 
date-to-use, dollar amount, and other relevant criteria.
    To leverage available funding to make the WIC Overseas program 
available to the maximum number of participants, the Secretary of 
Defense may enter into agreement up to three years in length to procure 
a particular brand of a food item to provide to Program participants. 
The agreement would specify the procurement of the competitively 
selected brand exclusive of other brands of the same or similar food. 
Competitive selection of the contract brand would conform to 
competitive contracting procedures specified in title 10, chapter 137, 
U.S. Code. The agreement would provide for the manufacturer of the 
contract brand to rebate to the Secretary an amount that is an agreed 
ratio of the amounts paid by the Secretary for the procurement of the 
contract brand. Rebates collected under the agreements will be credited 
to the appropriation available for carrying out the WIC Overseas 
program and will be available for the program in the same period as the 
other sums in the appropriation.
    The Secretary will provide for an appeals process that will allow 
individuals who are denied certification or recertification to appeal 
those decisions. The process will include a requirement that 
individuals denied certification or recertification be advised of their 
right of appeal, the relevant time limits, and the procedures to effect 
an appeal and will further provide a second level of review to 
individuals adversely impacted by an appeals decision.

E. Regulatory Procedures

    This rule will impose additional information collection 
requirements to the public under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3511). Individuals will be required to apply for 
certification and periodic recertification to receive benefits.
    This rule is being issued as a final rule. The interim final rule 
was published July 22, 2003, there were no comments received from the 
public.
    Executive Order 12866 requires certain regulatory assessments for 
any ``significant regulatory action'' which is defined in part as one 
that raises novel policy issues arising out of legal mandates. The 
Regulatory Flexibility Act (RFA) requires that each federal agency 
prepare, and make available for public comment, a regulatory 
flexibility analysis when the agency issues a regulation which would 
have a significant impact on a substantial number of small entities. 
This final rule is a significant regulatory action and has been 
reviewed by the Office of Management and Budget under Executive Order 
12866. The annual cost

[[Page 15678]]

of this program is estimated to be about $24 million per year, 
beginning in Fiscal Year 2002. This rule is not economically 
significant and will not significantly affect a substantial number of 
small entities. The information collection notice was published on 
March 21, 2003 (68 FR 13906).

List of Subjects in 32 CFR Part 199

    Department of Defense; Food assistance programs; Women, infants and 
children.


0
Accordingly, 32 CFR Part 199 is amended as follows:

PART 199--[AMENDED]

0
1. The authority citation for Part 199 continues to read as follows:

    Authority: 5 U.S.C. 301 and 10 U.S.C. Chapters 53 and 55.


0
2. Title 32, CFR Part 199 is amended by revising Sec.  199.23 to read 
as follows:


Sec.  199.23  Special Supplemental Food Program.

    (a) General provisions. This section prescribes guidelines and 
policies for the delivery and administration of the Special 
Supplemental Food Program for Women, Infants, and Children Overseas 
(WIC Overseas Program). The purpose of the WIC Overseas Program is to 
provide supplemental foods and nutrition education, at no cost, to 
eligible persons and to serve as an adjunct to good health care during 
critical times of growth and development, in order to prevent the 
occurrence of health problems, including drug and other substance 
abuse, and to improve the health status of program participants. The 
benefit is similar to the benefit provided under the U.S. Department of 
Agriculture (USDA) administered Women, Infants, and Children (WIC) 
Program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to sec. 199.2. The following definitions apply 
only to this section:
    (1) Applicant. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are applying to receive WIC Overseas 
benefits, and the breastfed infants of applicant breastfeeding women. 
This term also includes individuals who are currently participating in 
the Program but are re-applying because their certification is about to 
expire.
    (2) Breastfeeding women. Women up to 1-year postpartum who are 
breastfeeding their infants. Their eligibility will end on the last day 
of the month of their infant's first birthday.
    (3) Certification. The implementation of criteria and procedures to 
assess and document each applicant's eligibility for the Program.
    (4) Children. Persons who have had their first birthday but have 
not yet attained their fifth birthday. Their eligibility will end on 
the last day of the month of their fifth birthday.
    (5) Competent Professional Authority (CPA). An individual on the 
staff of the WIC Overseas office authorized to determine nutritional 
risk, prescribe supplemental foods, and design nutrition education 
programs. The following are authorized to serve as a competent 
professional authority: physicians, nutritionists, registered nurses, 
and dieticians may serve as a competent professional authority. 
Additionally, a CPA may be other persons designated by the regional 
program manager who meet the definition of CPA prescribed by the USDA 
as being professionally competent to evaluate nutritional risk. The 
definition also applies to an individual who is not on the staff of the 
WIC Overseas office but who is qualified to provide data upon which 
nutritional risk determinations are made by a competent professional 
authority on the staff of the local WIC Overseas office.
    (6) Contract brand. The brand of a particular food item that has 
been competitively selected by the DoD to be the exclusive supplier of 
that type of food item to the program.
    (7) Date-to-use. The date by which the drafts must be used to 
purchase food items.
    (8) Department. The Department of Defense (DoD), unless otherwise 
noted.
    (9) Dependent. (i) A spouse, or (ii) An unmarried child who is:
    (A) Under 21 years of age; or
    (B) Incapable of self-support because of mental or physical 
incapacity and is in fact dependent on the member for more than \1/2\ 
of the child's support; or
    (C) Is under 23 years of age, is enrolled in a full-time course of 
study in an institution of higher education and is in fact dependent on 
the member for more than one-half of the child's support.
    (10) Drafts. Paper food instruments, similar to vouchers, issued in 
the WIC Overseas offices to program participants. Participants may 
redeem their drafts at participating commissaries and NEXMARTs for the 
types and quantities of foods specified on the face of the draft.
    (11) Economic unit. All individuals contributing to or subsidizing 
the income of a household, whether they physically reside in that 
household or not.
    (12) Eligible civilian. An eligible civilian is a person who is not 
a member of the armed forces and who is:
    (i) A dependent of a member of the armed forces residing with the 
member outside the United States, whether or not that dependent is 
command sponsored, or
    (ii) An employee of a military department who is a national of the 
United States and is residing outside the United States in connection 
with such individual's employment or a dependent of such individual 
residing with the employee outside the United States; or
    (iii) An employee of a Department of Defense contractor who is a 
national of the United States and is residing outside the United States 
in connection with such individual's employment or a dependent of such 
individual residing with the employee outside the United States.
    (13) Family. A group of related or non-related individuals who are 
one economic unit.
    (14) Hematological test. A test of an applicant's or participant's 
blood as described in 7 CFR part 246.7(e).
    (15) Income guidelines. Income poverty guidelines published by the 
U.S. DHHS. These guidelines are adjusted annually by the Department of 
Health and Human Services (DHHS), with each annual adjustment effective 
July 1 of each year. For purposes of WIC Overseas Program income 
eligibility determinations, income guidelines shall mean the income 
guidelines published by the DHHS pertaining to the State of Alaska.
    (16) Infants. Persons under 1 year of age.
    (17) National of the U.S. A person who:
    (i) Is a citizen of the U.S.; or
    (ii) Is not a citizen of the United States, but who owes permanent 
allegiance to the United States, as determined in accordance with the 
Immigration and Nationality Act.
    (18) NEXMART. Navy Exchange Market.
    (19) Nutrition education. Individual or group sessions and the 
provision of materials designed to improve health status, achieve 
positive change in dietary habits, and emphasize relationships between 
nutrition and health, all in keeping with the individual's personal, 
cultural, and socioeconomic preferences.
    (20) Nutritional risk.
    (i) The presence of detrimental or abnormal nutritional conditions 
detectable by biochemical, physical,

[[Page 15679]]

developmental or anthropometric data, or
    (ii) Other documented nutritionally related medical conditions, or
    (iii) Documented evidence of dietary deficiencies that impair or 
endanger health, or
    (iv) Conditions that directly affect the nutritional health of a 
person, such as alcoholism or drug abuse, or
    (v) Conditions that predispose persons to inadequate nutritional 
patterns, habits of poor nutritional choices or nutritionally related 
medical conditions.
    (21) Participants. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are receiving supplemental foods or 
food instruments under the WIC Overseas Program, and the breastfed 
infants of participant breastfeeding women.
    (22) Postpartum Women. Women up to 6 months after the end of their 
pregnancy. Their eligibility will end on the last day of the sixth 
month after their delivery.
    (23) Pregnant Women. Women determined to have one or more embryos 
or fetuses in utero. Pregnant women are eligible to receive WIC 
benefits through 6 weeks postpartum, at which time they reapply for the 
program as postpartum or breastfeeding women.
    (24) Rebate. The amount of money refunded under cost containment 
procedures to the Department from the manufacturer of a contract brand 
food item.
    (25) Regional Lead Agent. The designated major military medical 
center that acts as the regional lead agent, having tri-service 
responsibility for the development and execution of a single, 
integrated health care network.
    (26) Supplemental foods. Foods containing nutrients determined by 
nutritional research to be lacking in the diets of certain pregnant, 
breastfeeding, and postpartum women, infants, and children. WIC 
Overseas may substitute different foods providing the nutritional 
equivalent of foods prescribed by Domestic WIC programs, as required by 
10 U.S.C. 1060a(c)(1)(B).
    (27) Verification. Verification of drafts is a review before 
payment out of Defense Health Program funds to determine whether the 
commissary or NEXMART complied with applicable date-to-use, food 
specification, and other redemption criteria.
    (c) Certification of eligibility. (1) to the extent practicable, 
participants shall be certified as eligible to receive Program benefits 
according to income and nutritional risk certification guidelines 
contained in regulations published by the USDA pertaining to the Women, 
Infants, and Children program required under 7 CFR 246.7(d)(2)(iv)(B). 
Applicants must meet the following eligibility criteria:
    (i) Meet one of the participant type requirements: be a member of 
the armed forces on duty overseas; a family member/dependent of a 
member of the armed forces on duty overseas; a U.S. national employee 
of a military department serving overseas; a family member of a U.S. 
national employee of a DoD contractor serving overseas; a family member 
of a U.S. national employee of a DoD contractor serving overseas;
    (ii) Reside in the geographic area served by the WIC Overseas 
office;
    (iii) Meet the income criteria specified in this section; and
    (iv) Meet the nutrition risk criteria specified in this section.
    (2) In terms of income eligibility, the following apply:
    (i) The Department of Defense shall use the Alaska income poverty 
guidelines published by the DHHS for making determinations regarding 
income eligibility for the Program.
    (ii) Program income eligibility guidelines shall be adjusted 
annually to conform to annual adjustments made by the DHHS.
    (iii) For income eligibility, the Program may consider the income 
of the family during the past 12 months and the family's current rate 
of income to determine which indicator accurately reflects the family's 
status.
    (iv) A pregnant woman who is ineligible for participation in the 
Program because she does not meet income criteria shall be deemed 
eligible if the criteria would be met by increasing the number of 
individuals in her family (economic unit) by the number of children in 
utero.
    (v) The Program shall define income according to USDA regulations 
with regard to the USDA-administered WIC Program. In particular--
    (A) A basic allowance for housing is excluded from income as 
required by section 674 of the National Defense Authorization Act for 
Fiscal Year 2000.
    (B) The value of in-kind housing benefits is excluded from income 
as required under USDA regulations.
    (C) Cost of living allowances for duty outside the continental U.S. 
(OCONUS) is excluded from income as required under 7 CFR 
246.7(d)(2)(iv)(A)(2).
    (D) Public assistance and welfare payments are included in income.
    (3) Participants must be found to be at nutritional risk to be 
eligible for program benefits.
    (i) A Competent Professional Authority (CPA) shall determine if an 
applicant is at nutritional risk.
    (ii) At the request of the program, applicants shall provide, 
according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed 
impracticable), nutritional risk data as a condition of certification 
in the Program. Such data includes:
    (A) Anthropometric measurements,
    (B) The results of hematological tests,
    (C) Physical examination,
    (D) Dietary information, or
    (E) Developmental testing
    (iii) A pregnant woman who meets all other eligibility criteria and 
for whom a nutritional risk assessment cannot immediately be completed 
will be considered presumptively eligible to participate in the Program 
for a period up to 60 days.
    (iv) Infants under 6 months of age may be deemed to be at 
nutritional risk if the infant's mother was a Program participant 
during pregnancy or if medical records document that the mother was at 
nutritional risk during pregnancy.
    (v) Unless otherwise specified herein or in 7 CFR 246.7(e), 
required nutritional risk data shall be provided to, or obtained by, 
the WIC Overseas Program office within 90 days of enrollment.
    (4) In the event that it is impracticable for the WIC Overseas 
Program to adhere to the income and nutritional risk eligibility 
guidelines contained in USDA regulations, the Director, TRICARE 
Management Activity (TMA) may waive the Department's use of USDA WIC 
Program eligibility criteria by determining that it is impracticable to 
use these standards to certify participants in the WIC Overseas 
Program.
    (i) Such determination shall consider relevant practical, 
administrative, national security, financial factors and existing 
Department policies and their application to the population served by 
the WIC Overseas Program.
    (ii) Absent a written finding of impracticability described in 
section 199.23(c)(4), the eligibility criteria for the WIC program, 
contained in USDA regulations shall apply.
    (5) An applicant for the WIC Overseas Program who presents a valid 
WIC Program Verification of Certification card, which is issued to 
participants in the domestic WIC Program when they intend to move, 
shall be considered eligible for participation in the WIC Overseas 
Program for the duration of the individual's current domestic WIC 
certification period, as long as he/she is an eligible service/family 
member or eligible civilian/family member.
    (d) Program benefits. (1) Drafts. WIC participants shall be issued 
drafts that

[[Page 15680]]

may be redeemed for supplemental food prescribed under the program.
    (i) Drafts shall at a minimum list the food items to be redeemed 
and the date-to-use.
    (ii) Food items listed on the draft must be approved for use under 
the Program.
    (iii) Drafts generally shall allow for a three-month supply of food 
items for each participant, unless the participant's nutritional status 
necessitates more frequent contacts with the WIC Overseas office.
    (iv) Participating commissaries and NEXMARTS shall accept the 
drafts in exchange for approved food items.
    (v) Commissary and NEXMART personnel shall be trained on 
verification and processing of drafts.
    (vi) Program guidelines shall provide for training of new 
participants in how to redeem drafts.
    (2) Supplemental Food. Participants shall redeem drafts for 
appropriate food packages at intervals determined in accordance with 
the USDA regulations.
    (i) The Director, TMA shall identify to the Defense Commissary 
Agency (DeCA) and NEXCOM a list of food items approved for the WIC 
Overseas Program. This list shall be developed in consultation with the 
USDA and shall include information regarding the appropriate package 
and/or container sizes and quantities available for participants, as 
well as the frequency with which food items can be acquired. Additions 
and/or deletions of food items from this list shall be communicated to 
the commissaries and NEXMARTS on an ongoing basis.
    (ii) A CPA shall prescribe appropriate foods from among the 
approved list to be included in food packages.
    (iii) A CPA shall coordinate documentation of medical need when 
such documentation is a prerequisite for prescribing certain food 
items.
    (iv) The Director, TMA may authorize changes regarding the 
supplemental foods to be made available in the WIC Overseas Program 
when local conditions preclude strict compliance or when such 
compliance is impracticable.
    (3) Nutrition Education. Nutrition education shall be provided to 
all participants at intervals prescribed in USDA regulations at 7 CFR 
Part 246.11.
    (i) The WIC Overseas nutrition education program shall be locally 
overseen by a CPA based on guidance and materials provided by TMA.
    (ii) Nutrition education and its means of delivery be tailored to 
the greatest extent practicable to the specific nutritional, cultural, 
practical, and other needs of the participant. Participant profiles 
created during certification may be used in designing appropriate 
nutrition education. A CPA may develop individual care plans, as 
necessary, consistent with USDA regulations.
    (iii) Nutrition education shall consist of sessions wherein 
individual participants or groups of participants meet with a CPA in an 
interactive setting such that participants can ask, and the CPA can 
answer, questions related to nutrition practices. In addition, 
nutrition education shall utilize prepared educational materials and/or 
Internet sites. Both the sessions and the information materials shall 
be designed to improve health status, achieve positive change in 
dietary habits, and emphasize relationships between nutrition and 
health. Individual and group sessions can be accomplished through, 
among other things, face-to-face meetings, remote tele-
videoconferencing, real-time computer-based distance learning, or other 
means.
    (iv) Nutrition education services shall generally be provided to 
participants twice during each 6-month certification period, unless a 
different schedule is specified in USDA regulations.
    (v) The nutrition education program shall promote breastfeeding as 
the optimal method of infant nutrition, encourage pregnant participants 
to breastfeed unless contraindicated for health reasons, and educate 
all participating women about the harmful effects of substance abuse.
    (vi) Individual participants shall not be denied supplemental food 
due to the failure to attend scheduled nutrition education sessions.
    (e) Financial management. The Department shall establish procedures 
to provide for the verification of drafts prior to payment.
    (i) Verification may utilize sampling techniques.
    (ii) Payment of drafts shall be made out of Defense Health Program 
funds.
    (f) Rebate agreements. (1) DoD is authorized to enter into an 
agreement with a manufacturer of a particular brand of a food item that 
provides for the exclusive supply to the program of the same or similar 
types of food items by that manufacturer.
    (i) The agreement shall identify a contract brand of food item.
    (ii) Under the agreement, the manufacturer shall rebate to the 
Department an agreed portion of the amounts paid by DoD for the 
procurement of the contract brand.
    (2) The DoD shall use competitive procedures under title 10, 
chapter 137 to select the contract brand.
    (3) Amounts rebated shall be credited to the appropriation 
available for carrying out the program and shall be applied against 
expenditures for the program in the same period as the other sums in 
the appropriation.
    (g) Administrative appeals and civil rights. (1) Applicants who are 
denied certification or participants that are denied recertification 
shall be provided with a notice of ineligibility. The notice shall 
include information on the applicant's right to appeal the 
determination and instructions on doing so.
    (2) Benefits shall not be provided while an appeal is pending when 
an applicant is denied benefits, a participant's certification has 
expired or a participant becomes categorically ineligible.
    (3) A request for appeal shall be submitted in writing within five 
working days. If the decision is an adverse one it shall include notice 
to the applicant of his further appeal rights as reflected in (iii) 
below, and that he/she has five working days to effect any such appeal.
    (4) Appeal reviews shall be conducted in the first instance by the 
CPA or team leader in charge of the local WIC Overseas office.
    (i) Written notice of a decision shall be provided to the applicant 
within five working days.
    (ii) If the appeal is upheld, retroactive benefits shall not be 
provided.
    (iii) At an applicant's request a denied appeal may be forwarded to 
the regional program manager for review, who will provide a decision on 
the appeal within 5 working days.
    (iv) If the regional program manager denies the appeal, there shall 
be no further right of appeal.
    (5) Complaints about discriminatory treatment shall be handled in 
accordance with procedures established at each local WIC Overseas site.
    (h) Operations and Administration. (1) Information collected about 
WIC Overseas applicants and participants shall be collected, 
maintained, and disclosed in accordance with applicable laws and 
regulations.
    (2) Information and personnel security requirements shall be 
consistent with applicable laws and regulations.

    Dated: March 17, 2004.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-6388 Filed 3-25-04; 8:45 am]
BILLING CODE 5001-06-M