[Federal Register Volume 76, Number 116 (Thursday, June 16, 2011)]
[Rules and Regulations]
[Pages 35095-35097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14904]



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  Federal Register / Vol. 76, No. 116 / Thursday, June 16, 2011 / Rules 
and Regulations  

[[Page 35095]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AE04


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Exclusion of Combat Pay From WIC Income Eligibility 
Determinations

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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

SUMMARY: This final rule incorporates into the regulations governing 
the Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC) a statutory provision set forth in Section 734(b) of the 
Agriculture, Rural Development, Food and Drug Administration, and 
Related Agencies Appropriations Act of 2010 (Pub. L. 111-80). The 
provision excludes combat pay from inclusion in the WIC income 
eligibility determination for deployed service members. It also makes 
conforming nomenclature changes throughout part 246 of WIC regulations 
to include the name change for what was formerly known as the Food 
Stamp Program to its new name--the Supplemental Nutrition Assistance 
Program (SNAP), as set forth in the Food, Conservation and Energy Act 
of 2008 (Pub. L. 110-246).

DATES: Effective Date: This rule is effective July 18, 2011.

FOR FURTHER INFORMATION CONTACT: Debra R. Whitford, Director, 
Supplemental Food Programs Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, Room 520, Alexandria, Virginia 22302; (703) 
305-2746; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

Combat Pay Exclusion

    Section 734(b) of Public Law 111-80, the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act of 2010 (the Act), enacted on October 21, 2009, 
amended Section 17(d)(2) of the Child Nutrition Act of 1966 (42 U.S.C. 
1786(d)(2)) to exclude from the WIC income eligibility determination, 
combat pay that is received by or from a member of the United States 
(U.S.) Armed Services that is received in addition to basic pay as a 
result of the service member's deployment or service in a designated 
combat zone. In addition, the pay must not have been received prior to 
serving in a combat zone. Combat pay includes any additional pay 
received pursuant to Chapter 5 of Title 37 of the United States Code, 
or otherwise designated by the Secretary to be appropriate for 
exclusion as combat pay.
    This provision was effective on October 21, 2009. On November 5, 
2009, the Food and Nutrition Service directed WIC State and local 
agencies to implement this income exclusion immediately. This final 
rule amends 7 CFR 246.7, Certification of Participants, to reflect that 
combat pay is excluded from the WIC income eligibility determination 
process.

Food Stamp Program Name Change

    Section 4001 of Public Law 110-246, the Food, Conservation, and 
Energy Act of 2008 (FCEA), which was enacted on June 18, 2008, amended 
and renamed the Food Stamp Act of 1977, 7 U.S.C. 2011, et seq., as the 
Food and Nutrition Act of 2008. FCEA changed the name of the program 
from the ``Food Stamp Program'' to the ``Supplemental Nutrition 
Assistance Program'' or ``SNAP''. This change in name reflects the fact 
that participants no longer receive stamps or coupons to make food 
purchases.
    Additionally, the new name reflects a focus on the nutritional 
aspect of the program. SNAP not only provides food assistance to low-
income people, but also promotes nutrition to improve their health and 
well-being.
    Accordingly, this rule makes the following name changes in 7 CFR 
part 246 to make the Federal WIC regulations consistent with the name 
changes set forth in the FCEA:

------------------------------------------------------------------------
               Previous name                          New name
------------------------------------------------------------------------
``Food Stamp Program''....................  ``Supplemental Nutrition
                                             Assistance Program
                                             (SNAP).''
``Food Stamp Act of 1977''................  ``Food and Nutrition Act of
                                             2008.''
``food stamp''............................  ``SNAP.''
``food coupons''..........................  ``SNAP benefits'' or
                                             ``benefits.''
``Food stamps''...........................  ``SNAP benefits'' or
                                             ``benefits.''
------------------------------------------------------------------------

Notice and Comment

    In accordance with the Secretary's Statement of Policy (36 FR 
13804), it is found and determined with good cause that it is 
unnecessary to engage in the Notice and Comment provisions of 5 U.S.C. 
553 normally required before the adoption of final regulations in an 
FNS-sponsored program. The exclusion of combat pay from consideration 
as income under the WIC Program is implemented in this final rule in 
accordance with Section 734(b) of the Act. The nondiscretionary nature 
of Section 734(b) means that notice and comment would serve no useful 
purpose in the promulgation of these regulations. The name changes 
related to SNAP are technical amendments designed to make the WIC 
portion of 7 CFR consistent with its SNAP counterparts.

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This final rule has been designated a ``significant regulatory 
action,'' under section 3(f) of Executive Order 12866. Accordingly, the 
rule has been reviewed by the Office of Management and Budget.

Regulatory Impact Analysis

    This rule has been designated as significant by the Office of 
Management and Budget; therefore, a Regulatory

[[Page 35096]]

Impact Analysis (RIA) is required, as summarized below. The complete 
RIA is available upon request from the Food and Nutrition Service by 
contacting Debra R. Whitford, Director, Supplemental Food Programs 
Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, 
Room 520, Alexandria, Virginia 22302; (703) 305-2746; e-mail 
[email protected].

Need for Action

    The final rule amends the WIC regulations to implement the 
exclusion of combat pay from income eligibility determination as 
mandated in Public Law 111-80, the Agriculture, Rural Development, Food 
and Drug Administration, and Related Agencies Appropriations Act, 2010, 
and changes references to the Food Stamp Program to its new name--the 
Supplemental Nutrition Assistance Program.

Benefits

    The benefit of this provision will extend eligibility to deployed 
service members who might otherwise not be eligible due to the 
inclusion of combat pay when determining income eligibility to receive 
WIC benefits.

Costs

    The provisions of this final rule will have an insignificant effect 
upon the administrative burden to the Department or to State agencies. 
Applicants who were previously found ineligible due to being over the 
WIC income eligibility limits may now be found eligible when combat pay 
is excluded from the income eligibility determination. This, in turn, 
may increase the number of persons served, resulting in a small cost 
increase to the WIC Program. We estimate that the rule will increase 
WIC costs by less than $1 million per year, or about $4 million from FY 
2010 when State agencies began implementing the combat pay exclusion 
through FY 2014.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review, it is 
certified that this rule would not have a significant impact on small 
entities.
    The provisions of this rulemaking are applicable to all State and 
local agencies that administer the WIC Program.

Unfunded Mandates Reform Act

    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, 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 by 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 final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local or Tribal 
governments or the private sector of $100 million or more in any one 
year. Thus, the rule is not subject to the requirements of Sections 202 
and 205 of the UMRA.

Executive Order 12372

    WIC is listed in the Catalog of Federal Domestic Assistance under 
No. 10.557. For the reasons set forth in the final rule at 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 that requires 
intergovernmental consultation with State and local officials.

Federalism Summary Impact Statement

    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. FNS has 
considered the impact of this rule on State and local governments and 
has determined that this rule does not have federalism implications. 
Therefore, under Section 6(b) of the Executive Order, a federalism 
summary impact statement is not required.

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 that 
conflict with its provisions or that would otherwise impede its full 
implementation. This rule is not intended to have retroactive effect 
unless so specified in the Dates paragraph of the preamble to the final 
rule. Prior to any judicial challenge to the application of the 
provisions of this rule, all applicable administrative procedures must 
be exhausted.
    In WIC, the administrative procedures are as follows: (1) State and 
local agencies, farmers, farmers' markets, and roadside stands--State 
agency hearing procedures issued pursuant to 7 CFR 246.18; (2) 
Applicants and participants--State agency hearing procedures pursuant 
to 7 CFR 246.18; (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 246.16, and (4) 
procurement by State or local agencies--administrative appeal to the 
extent required by 7 CFR 3016.36.

Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with Departmental 
Regulations 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1, 
``Regulatory Decision Making Requirements.'' After a careful review of 
the rule's intent and provisions, FNS has determined that this rule is 
not intended to limit or reduce in any way the ability of protected 
classes of individuals to receive benefits in the WIC Program. Federal 
WIC regulations specifically prohibit State agencies that administer 
the WIC Program, and their cooperators, from engaging in actions that 
discriminate against any individual in any of the protected classes 
(see 7 CFR 246.8 for the nondiscrimination policy in the WIC Program). 
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 WIC Program regulations set forth at Sec.  246.8. 
This rule simply excludes combat pay given to United States Armed 
Service members that is received in addition to basic pay as a result 
of the service member's deployment or service in a designated combat 
zone from income eligibility determination for WIC, and codifies the 
name change for what was formerly known as the Food Stamp Program to 
its new name--SNAP.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13175 requires Federal agencies to consult and coordinate with 
Tribes

[[Page 35097]]

on a government-to-government basis on policies that have Tribal 
implications, including regulations, legislative comments or proposed 
legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. In late 2010 and early 2011, USDA engaged 
in a series of consultative sessions to obtain input by Tribal 
officials or their designees concerning the impact of this rule on the 
Tribe or Indian Tribal governments, or whether this rule may preempt 
Tribal law. Reports from these consultations will be made part of the 
USDA annual reporting on Tribal Consultation and Collaboration. USDA 
will respond in a timely and meaningful manner to all Tribal government 
requests for consultation concerning this rule and will provide 
additional venues, such as webinars and teleconferences, to 
periodically host collaborative conversations with Tribal officials or 
their designees concerning ways to improve this rule in Indian country.
    The policies contained in this rule would not have Tribal 
implications that preempt Tribal law.

Paperwork Reduction Act

    This rule does not constitute a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

E-Government Act Compliance

    FNS is committed to complying with the E-Government Act of 2002 to 
promote the use of the Internet and other information technologies to 
provide increased opportunities to provide for citizen access to 
government information and services, and for other purposes. State plan 
amendments regarding the implementation of the provision contained in 
this rule, as is the case with the entire State Plan, may be 
transmitted electronically by the State agency to FNS. Also, State 
agencies may provide WIC Program information, as well as their 
financial reports, to FNS electronically.

List of Subjects in 7 CFR Part 246

    Food assistance programs, Food donations, Grant programs--Social 
programs, Indians, Nutrition education, Public assistance programs, 
WIC.
    For reasons discussed above, 7 CFR part 246 is amended as follows:

PART 246--SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS 
AND CHILDREN (WIC)

0
1. The authority citation for part 246 continues to read as follows:

    Authority: 7 U.S.C. 1786.

0
2. Part 246 of this chapter is amended as follows:
0
a. Remove the words ``Food Stamp Program'' and ``the Food Stamp 
Program'' and add in their place, the word ``SNAP'' each time they 
appear in this part;
0
b. Remove the words ``Food Stamp Act of 1977'' and add in their place, 
the words ``Food and Nutrition Act of 2008'' each time they appear in 
this part;
0
c. Remove the words ``food stamp'' and add in their place, the word 
``SNAP'' each time it appears in this part; and
0
d. Remove the words ``food stamps'' wherever they appear and add in 
their place, the words ``SNAP benefits''.

0
3. In Sec.  246.2, a definition of Supplemental Nutrition Assistance 
Program (SNAP) is added, to read as follows:


Sec.  246.2  Definitions.

* * * * *
    Supplemental Nutrition Assistance Program (SNAP), formerly known as 
the Food Stamp Program, is the program authorized by the Food and 
Nutrition Act of 2008 (7 U.S.C. 2011, et. seq.), in which eligible 
households receive benefits that can be used to purchase food items 
from authorized retail stores and farmers' markets.
* * * * *

0
4. In Sec.  246.7, a new paragraph (d)(2)(iv)(D)(35) is added, to read 
as follows:


Sec.  246.7  Certification of participants.

* * * * *
    (d) * * *
    (2) * * *
    (iv) * * *
    (D) * * *
    (35) Combat pay received by the household member under Chapter 5 of 
Title 37 or as otherwise designated by the Secretary.
* * * * *

    Dated: June 8, 2011.
Kevin Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2011-14904 Filed 6-15-11; 8:45 am]
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