[Federal Register Volume 64, Number 249 (Wednesday, December 29, 1999)]
[Rules and Regulations]
[Pages 72889-72898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33504]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 225
RIN 0584-AC06
Summer Food Service Program: Program Meal Service During the
School Year, Paperwork Reduction, and Targeted State Monitoring
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule contains changes to the Summer Food Service
Program as a result of a provision in the Healthy Meals for Healthy
Americans Act of 1994 which allows Program meal service to be provided
during periods of unanticipated school closures such as teacher
strikes. Additionally, this rule makes discretionary changes to
simplify sponsor and site applications and State agency monitoring
requirements. Except for the State agency monitoring requirements,
which were changed substantially, the final rule makes only minor
modifications to the provisions of the proposed rule. These changes are
intended to reduce unnecessary and duplicative administrative burdens
for Summer Food Service Program sponsors and State agencies.
EFFECTIVE DATE: January 28, 2000.
FOR FURTHER INFORMATION CONTACT: Melissa Rothstein (Summer Food Service
Program) at the following address: Policy and Program Development
Branch, Child Nutrition Division, Room 1006, Food and Nutrition
Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302-1500,
or by telephone at: (703) 305-2620.
SUPPLEMENTARY INFORMATION:
Background
The Summer Food Service Program (SFSP) provides free meals to
children at approved feeding sites in areas with significant
concentrations of low-income children during school vacations. SFSP
meals are intended to take the place of the meals that children
normally receive through the National School Lunch and Breakfast
Programs during the school year.
Generally, Program benefits are limited to times when school is not
in
[[Page 72890]]
session during the months of May through September. Section 13(c)(1) of
the National School Lunch Act (NSLA) (42 U.S.C. 1761(c)(1)) provides an
exception to these timeframes for areas that operate on a year-round,
or continuous school calendar basis. In these areas, Program benefits
may be provided at any time of the year that children are on school
vacation. An additional exception was authorized by the Healthy Meals
for Healthy Americans Act of 1994 (Pub. L. 103-448), which permits the
SFSP to operate in areas with unanticipated school closures during
October through April.
On October 13, 1998, we published a proposed rule for the SFSP in
the Federal Register (63 FR 54617). The rule proposed changes to the
Program in the following three areas:
Unanticipated school closures. The proposed rule set forth
criteria for participation of sponsors and sites in the SFSP during
periods of unanticipated (i.e., emergency) school closures during the
months of October through April, and included language from Pub. L.
103-448 on the types of situations that qualify;
Paperwork reduction. The proposed rule removed unnecessary
and duplicative sponsor and site application requirements for
experienced sponsors and sites; and,
Targeted State agency monitoring. The proposed rule
revised State agency monitoring requirements to better target efforts
to new and large sponsors, and those sponsors who have operational
deficiencies or experience significant staff turnover from one year to
the next.
The proposed rule had a sixty day public comment period which ended
on December 14, 1998. During this time, we received a total of 17
comments. Of these, 13 were from State agencies, 2 were from SFSP
sponsors (both of which were local school districts), and 2 were from
community organizations. In general, commenters were supportive of the
proposed rule. Every commenter addressed the area of ``paperwork
reduction'' in some capacity, and primarily viewed the changes as
positive with only minor modifications needed. The final rule is being
published based on these comments.
A. Unanticipated School Closures
General Discussion
Since the beginning of the SFSP, there have been times when a
single school or an entire school system did not open as scheduled at
the end of the summer (e.g., in the case of a teacher strike). Prior to
1994, the NSLA prohibited the SFSP to operate during the months of
October through April unless the school was in session on a year-round
or continuous school calendar basis. Since the National School Lunch
and Breakfast Programs may only operate when school is in session, many
children were denied a nutritious meal when the schools were closed in
these emergency situations.
In response to these circumstances, the President signed into law
the Healthy Meals for Healthy Americans Act of 1994. Section 114(c) of
this law amended section 13(c)(1) of the NSLA to allow SFSP meals to be
served at ``non-school sites to children who are not in school for a
period during the months of October through April due to a natural
disaster, building repair, court order or similar cause''.
Proposed Rule Provisions
In addition to setting forth the circumstances warranting
implementation, the October 13, 1998, proposed rule detailed how
existing requirements for SFSP participation would be applied when the
Program operates during unanticipated school closures. Specifically,
the proposed rule:
Listed circumstances under which SFSP sponsors and sites
are eligible to participate in the Program during unanticipated school
closures. These circumstances included natural disaster, major building
repairs, court orders relating to school safety or other issues, labor-
management disputes, and similar causes as approved by the State
agency;
In accordance with the explicit language of the law,
permitted only non-school sites to be eligible feeding sites in these
situations, although school food authorities would be eligible as
sponsors;
Waived eligibility documentation for sites that had
previously participated in the SFSP in the current year or prior two
calendar years; documentation of site eligibility was still required
for all other sites;
Streamlined the application process for sponsors which had
successfully participated in the Program in the current year or either
of the two prior calendar years;
Required that all sponsors participating during
unanticipated school closures enter into agreements with the State
agency to operate the Program; and
Provided State agencies discretion in conducting pre-
approval visits of sponsors operating the Program during unanticipated
school closures, but maintained the requirement that sponsors visit all
of their feeding sites prior to Program operations.
Comments Received and Final Rule Provisions
Non-School Sites
Six commenters expressed concern that the proposed rule did not
allow school sites to participate in the SFSP during unanticipated
school closures. In general, respondents believe that schools are
accessible to the community at large and, a uniform prohibition on
using those sites as feeding sites during all emergency situations
might deny eligible children SFSP meals when they most need them.
Although we agree that school buildings are sometimes the most
capable and logical feeding sites (e.g., during a natural disaster),
Pub. L. 103-448 explicitly excludes school sites from participating in
these situations. Therefore, this final rule retains the provision as
set forth in the proposed rule. We recommend that local areas that
encounter unanticipated school closures in which a school feeding site
is the only viable option, should contact their State agency to find
acceptable alternatives, or to explore the possibility of requesting a
waiver of this provision from the Department under section 12(l) of the
NSLA (42 U.S.C. 1760(l)). We will consider these requests on a case-by-
case basis. We do not anticipate granting waivers in situations of
unanticipated school closures involving labor-management disputes at
school sites unless the safety of the children being fed at the site
can be insured. Under this rule, school food authorities that meet the
sponsor eligibility requirements may serve as sponsors during
unanticipated school closures.
Sponsor Applications
We received one comment expressing concern about allowing
experienced sponsors to participate in the Program without a current
year application. The commenter indicated that sponsor information can
change significantly from year to year, and recommended that we retain
the application requirements found in the current regulations. State
agencies that have concerns about the accuracy of the information they
already have on file can choose to require that sponsors complete a new
application in these circumstances. However, we believe the need to
begin program operations quickly in these situations usually outweighs
the need for collecting new application information from sponsors who
have participated in the Program within the last three years.
Accordingly, this final rule retains the streamlined application
provision for experienced sponsors seeking to operate the Program
[[Page 72891]]
during unanticipated school closures. This provision is set forth in
Sec. Sec. 225.6(c)(1) and 225.14(a) of this final rule.
Year-Round Sites
One commenter expressed concern that the provisions for
unanticipated school closures do not include year-round, or continuous
school calendar, SFSP sponsors. The commenter was concerned that the
type of unanticipated school closures discussed in Pub. L. 103-448 and
the proposed rule could occur at any time of the year, not just during
October through April. We agree with the commenter, and do not believe
the law intended to exclude sponsors in year-round school communities
from being able to provide SFSP meal service during unanticipated
school closures.
Accordingly, this final rule adds language clarifying that the
unanticipated school closure provisions of the regulations apply to
areas operating under a continuous school calendar system. In these
areas, this authority is not restricted to closures that occur during
the months of October through April, but rather is available at any
time of the year. These revisions appear in this final rule in
Sec. Sec. 225.6(b)(1); 225.6(b)(4); 225.6(c)(1); 225.6(c)(2)(i)(G);
225.6(c)(3)(i)(B); 225.7(a); 225.7(d)(1)(i); 225.14(a); and
225.15(d)(1).
Other Provisions/Clarifying Language
We received a few comments pertaining to the meaning of ``current
year or prior two calendar years'' in describing those sponsors who are
exempt from application and other requirements during unanticipated
school closures. One commenter suggested an editorial change to be more
specific with our intent of prior participation in the Program at any
time within three years. Therefore, we are amending the language of the
final rule to read ``current year or in either of the prior two
calendar years.'' These changes are contained in Secs. 225.6(b)(4);
225.6(c)(1); 225.6(c)(2)(i)(G); 225.6(c)(3)(i)(B); and 225.14(a) of
this final rule.
We received no comments on the remaining provisions of the proposed
rule on operation of the SFSP during unanticipated school closures.
Accordingly, this final rule retains these provisions as set forth in
the proposed rule. These provisions are contained in this final rule at
Secs. 225.6(c)(2)(i)(G) and 225.6(c)(3)(i)(B) (documentation of site
eligibility); Sec. 225.7(d)(1)(i) (pre-approval visits by State
agencies); and Sec. Sec. 225.7(a) and 225.15(d) (training by State
agencies and sponsors).
B. Paperwork Reduction
Proposed Rule Provisions
The proposed rule took the minimum application requirements for
SFSP sponsors and sites found in current Sec. 225.6(c)(2) and
reorganized and substantially revised them. The proposed rule
established separate minimum requirements for: (1) New sponsors and
sites, and those with significant operational problems in the prior
year; and (2) experienced sponsors and sites. In the proposed rule,
paragraph (c)(2) contained the requirements for new sponsors/sites and
sponsors/sites with significant operational problems, and paragraph
(c)(3) contained the requirements for experienced sponsors/sites. The
application requirements were grouped and discussed in the preamble to
the proposed rule as general requirements that apply to all types of
sponsors and sites and requirements that are specific to certain types
of sites, such as open sites, enrolled sites, migrant sites, and
homeless sites.
In light of this new structure, and to help clarify application
requirements for sponsors and sites with varying degrees of experience
and/or success in operating the Program, new definitions were included
in the proposed rule in Sec. 225.2 for ``new sponsor,'' ``new site,''
``experienced sponsor,'' and ``experienced site.'' The proposed rule
eliminated duplicative and unnecessary requirements for experienced
sponsors, with the intent of reducing the paperwork associated with the
application process for these sponsors.
The proposed rule also contained new definitions of ``open site,''
``closed enrolled site,'' and ``open enrolled site.'' These definitions
were used in setting forth the application requirements, and included
in the rule to clarify how each type of Program site demonstrates
eligibility.
Comments Received and Final Rule Provisions
We received a total of 17 comments in the area of Paperwork
Reduction. In general, commenters were supportive of the changes to the
Program outlined in the proposed rule with only minor modifications
needed. The concerns of commenters and a discussion of these concerns
are provided below.
General Comments
A few commenters expressed concern that paperwork is not reduced
under the proposed rule, but rather increased as State agencies will
need to keep separate records for experienced and new sponsors. In
addition, several commenters expressed concern that the integrity of
SFSP may be compromised if we do not require all information currently
required of SFSP sponsors on an annual basis, as information can change
significantly from year to year for experienced sponsors.
In response to these comments, we do not anticipate an increase in
administrative burden once the changes are implemented. As with any new
system, it may take additional time to create a system that
appropriately determines and tracks new sponsors, sponsors with
significant operational problems, and experienced sponsors. However,
there is flexibility in how a State agency implements these provisions.
As we indicated in the preamble to the proposed rule, the requirements
set forth in the regulations are minimum requirements. State agencies
may include other provisions in their applications as long as they do
not establish additional requirements for SFSP participation.
State Agency Classification of Sponsors
We also received several comments in the area of State agency
classification of sponsors. Commenters suggested that we provide State
agencies with guidelines for categorizing sponsors as having
significant staff turnover or significant operational problems. We do
not believe it is necessary nor prudent to include specific guidelines
for making sponsor classifications in the final rule. We prefer to
leave this discretion to State agencies to make assessments on a case-
by-case basis. In making these classifications, State agencies should
consider the deficiencies, if any, noted in monitoring visits, reports
that have been received about the sponsor or any of its sites, and
whether staff in key positions have changed.
Commenters also indicated that sponsors who experience significant
operational problems should be required to attend more training or
should be monitored more frequently by the State agency, not merely be
required to submit more paperwork or information to the State agency.
We believe providing additional training and monitoring for sponsors
with operational problems is important, and encourage State agencies to
do so. However, we also believe there is value in having these sponsors
fully document their plans for administering the Program through the
application process. This documentation helps ensure that they have a
thorough understanding of Program requirements and responsibilities.
[[Page 72892]]
Definitions
One commenter recommended including in the definition of
experienced sponsor, a requirement that the sponsor had to have
successfully completed an application to participate in the Program in
the prior year. We do not believe this change is necessary. We believe
the fact that a sponsor is experienced clearly implies that the
organization must have successfully completed an application.
Therefore, we are not including the commenter's recommendation in the
final rule.
Another commenter proposed eliminating the word ``successful'' from
``successful participation'' as a criterion to be classified as an
experienced sponsor. We agree that the term ``successful'' is a
subjective term. However, we believe it conveys the appropriate
meaning. Therefore, we are retaining it in the definition of
experienced sponsor in Sec. 225.2 of the final rule.
We received one comment requesting that the reference to using data
``from other appropriate sources'' found in paragraph (a)(3) of the
definition of ``areas in which poor economic conditions exist'' in
Sec. 225.2 needs to be better defined. As mentioned in the proposed
rule, to determine if a site is located in a low-income area, State
agencies should first consult school data to determine if the site
meets the criteria that 50 percent or more of children are eligible for
free or reduced-price meals. Census data may be used to determine site
eligibility in certain circumstances where it is more representative of
an area's socioeconomic status than school data. If neither school nor
census data indicates that a site is area eligible but ``other'' data
sources do, State agencies must consult with FNS to assess the
appropriateness of that data as an indicator of an area's socioeconomic
status. Though it is used rarely, for these unique situations, we
believe it is important to retain the language ``from other appropriate
sources'' in the final rule as it provides some flexibility in
determining if a source provides substantial evidence of being a low-
income area.
We received several comments on the proposed rule's definitions of
``open site,'' ``closed enrolled site,'' and ``open enrolled site.''
Commenters were concerned that the terminology would lead to confusion
regarding the required documentation of eligibility for the different
types of sites, especially in the case of the term ``open enrolled
site.''
The proposed rule defined an ``open site'' as ``a site at which
meals are made available to all children in the area and which is
located in an area in which at least 50 percent of the children are
from households that would be eligible for free or reduced price school
meals under the National School Lunch Program and the School Breakfast
Program, as determined in accordance with paragraph (a) of the
definition of Areas in which poor economic conditions exist.'' Open
sites document their eligibility on the basis of area data showing that
at least 50 percent of the children from the area are from households
with incomes at or below 185 percent of poverty.
An ``open enrolled site'' was defined as ``an enrolled site which
is initially open to broad community participation, but at which the
sponsor limits attendance for reasons of security, safety, or control.
Site eligibility for an open enrolled site shall be documented in
accordance with paragraph (a) of the definition of Areas in which poor
economic conditions exist.'' For an open enrolled site, site
eligibility is documented using area eligibility information, the same
way that eligibility is documented for an open site.
The proposed rule defined a closed enrolled site as ``a site which
is open only to enrolled children, as opposed to the community at
large, and in which at least 50 percent of the enrolled children at the
site are eligible for free or reduced-price school meals under the
National School Lunch Program and the School Breakfast Program, as
determined by approval of applications in accordance with
Sec. 225.15(f) of this part.'' Thus, in contrast to open and open
enrolled sites, a closed enrolled site documents its eligibility on the
basis of applications from individual children that are enrolled at the
site.
We agree with commenters that the term ``open enrolled site'' could
lead a reader to believe that the site's eligibility is linked to the
income eligibility of individual children rather than the overall
socioeconomic status of the area. Based on comments, we are changing
the term ``open enrolled site'' in this final rule to ``restricted open
site.'' (The wording of the definition remains the same.) We believe
``restricted open site'' more accurately conveys the way that these
sites must document eligibility. The definitions of ``open site,''
``closed enrolled site,'' and ``restricted open site'' are in
Sec. 225.2 of this final rule.
Site Eligibility Documentation
One commenter recommended allowing eligibility documentation for
open and open enrolled (now ``restricted open'') sites to be collected
every five years, instead of the three years set forth in the proposed
rule, because a site's economic status does not change significantly in
a five year time period. We agree that, in most cases, an area's
overall economic status does not change rapidly. However, we are
retaining the three year cycle for determining a site as area eligible
when school data is used in Sec. 225.6(c)(3)(i)(B), as we believe this
timeframe provides the appropriate balance between paperwork reduction
and Program accountability.
Homeless Feeding Sites
The requirements for new sponsors and sponsors with significant
operational problems applying to participate in the Program at homeless
feeding sites were contained in Sec. 225.6(c)(2)(i)(L) of the proposed
rule. We did not receive any comments on the provisions relating to
homeless feeding sites. However, minor changes have been made to the
requirements for homeless feeding sites, since these sites are no
longer eligible to participate in SFSP solely on the basis of being
homeless sites. Section 107(j)(2)(A) of the Child Nutrition
Reauthorization Act of 1998 (Pub. L. 105-336) amended Section
13(a)(3)(C) of the NSLA (42 U.S.C. 1761 (a)(3)(C)) to remove the
special eligibility provisions for homeless feeding sites in SFSP, and
authorized their participation in the Child and Adult Care Food
Program, effective July 1, 1999. To continue to participate in SFSP,
homeless sites must qualify as open or enrolled sites. Therefore, this
final rule removes the requirement in proposed Sec. 225.6(c)(2)(i)(L)
that site information sheets for homeless sites contain certification
that the site's primary purpose is to provide shelter and one or more
meal services per day to homeless families, since this information is
no longer necessary in determining a homeless site's eligibility to
participate in SFSP.
Budgets
One commenter stated that experienced sponsors should not be
required to continue to submit administrative budgets to the State
agency, as these budgets are not an accurate indicator of what a
sponsor needs to financially administer the Program because sponsors
tend to add and drop sites during the course of the year. The commenter
also stated that experienced sponsors usually have a good understanding
of the ``lesser of cost versus rate'' concept and can effectively use
this to project their finances for the Program. According to
[[Page 72893]]
the April 14, 1994, FNS instruction, 796-4, Revision 4, the ``lesser of
cost versus rate'' concept means payments made to SFSP sponsors for
their operating costs should equal the lesser of: (1) the actual
operating costs incurred by the sponsor, or (2) the sum of the amounts
derived by multiplying the number of meals, by type, that are served to
participating children at the current reimbursement rates. This concept
is also outlined in Sec. 225.9(d)(6)(i) and (ii) of the SFSP
regulations.
As mentioned in the proposed rule, updating and submitting
administrative and operating budgets to the State agency is an
important process as it ensures that Federal funds are properly spent.
Additionally, this process helps sponsors determine whether their
planned expenditures will be adequately funded under the SFSP's
``lesser of costs versus rates'' funding formula. We continue to
believe this is important information to be submitted on an annual
basis to the State agency. Therefore, we are retaining the requirement
for experienced sponsors in Sec. 225.6(c)(3)(ii)(B). (The requirement
is found in Sec. 225.6(c)(2)(ii)(B) of this final rule for new sponsors
and sponsors with significant operational problems.)
Other Comments/Summary of Provisions
We did not receive any comments on the remaining provisions of the
proposed rule on sponsor and site application requirements. The
following chart outlines the sponsor and site application requirements
for new sponsors/sponsors with significant operational problems, and
for experienced sponsors. Changes based on public comments received, as
discussed above, have been incorporated in the final rule.
------------------------------------------------------------------------
New sponsors/
sites and
sponsors/sites Experienced sponsors/
Requirement with significant sites
operational
problems
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Site Information Sheet:
Organized and supervised Sec. 225.6(c)(2) N/A.
system for serving meals (i)(A).
to children.
Estimated number and types Sec. 225.6(c)(2) Sec. 225.6(c)(3)(i)(
of meals to be served and (i)(B). A).
times of service.
Arrangements for delivery Sec. 225.6(c)(2) N/A.
and holding of meals and (i)(C).
storing leftovers for
next day meal service.
Arrangements for food Sec. 225.6(c)(2) N/A.
service during periods of (i)(D).
inclement weather.
Access to means of Sec. 225.6(c)(2) N/A.
communication for making (i)(E).
necessary adjustments for
number of meals to be
served at each site.
Whether the site is rural Sec. 225.6(c)(2) N/A.
or non-rural and whether (i)(F).
the site's food service
will be self-prepared or
vended.
Open sites and restricted open Sec. 225.6(c)(2) Sec. 225.6(c)(3)(i)(
sites: documentation (i)(G). B). Documentation
supporting area eligibility must be submitted
determination. every three years if
school data is used,
or earlier if
requested by the
State agency. If
census data is used,
documentation must
be submitted when
new census data
becomes available.
Closed enrolled sites: the Sec. 225.6(c)(2) Sec. 225.6(c)(3)(i)(
projected number of children (i)(H). C).
enrolled and projected number
of children eligible for f/rp
meals for each site.
NYSP sites: certification from Sec. 225.6(c)(2) N/A.
sponsor that all children who (i)(I).
will receive SFSP meals are
enrolled participants in NYSP.
Camps: number of children Sec. 225.6(c)(2) Sec. 225.6(c)(3)(i)(
enrolled in each session who (i)(J). D).
meet Program income standards.
Migrant sites: certification Sec. 225.6(c)(2) N/A.
from migrant organization (i)(K).
that site serves children of
migrant worker families. If
site also serves non-migrant
children, sponsor must
certify that the site
primarily serves migrant
children.
Homeless feeding sites: Sec. 225.6(c)(2) N/A.
information that demonstrates (i)(L).
that site is not a
residential child care
institution; description of
method used to ensure that no
cash payments or other in-
kind services are used for
meal service; certification
that site only claims meals
served to children.
Other Application
Requirements:
Information that Sec. 225.6(c)(2) Sec. 225.6(c)(3)(ii)
demonstrates that (ii)(A). (A).
applicant meets
requirements in Sec.
225.14; extent of Program
payments needed including
advance and start-up
payments (if applicable);
staffing and monitoring
plan.
Complete administrative Sec. 225.6(c)(2) Sec. 225.6(c)(3)(ii)
and operating budget (ii)(B). (B).
which includes projected
administrative expenses
and information of how
sponsor will operate the
Program within estimated
reimbursement.
[[Page 72894]]
Summary of how meals will Sec. 225.6(c)(2) Sec. 225.6(c)(3)(ii)
be obtained; if (ii)(C). (C). If IFB is
invitation for bid is required, sponsors
required, sponsors must must submit schedule
submit a schedule for bid for bid dates and
dates and a copy of their copy of IFB if a
IFB. change has occurred
from previous year.
If method for
procuring meals has
changed from
previous year,
sponsors must submit
a summary of how
meals will be
obtained.
For sponsors seeking Sec. 225.6(c)(2) N/A.
approval as unit of (ii)(D).
local, municipal, county
or State government,
certification that it
will directly operate the
Program in accordance
with Sec. 225.14(d)(3).
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C. Targeted State Monitoring
General Discussion
State agency monitoring of SFSP sponsors and sites is critically
important as it serves as a tool for effective Program management and
ensures that quality meals are being served to eligible children.
However, we believe that the current State agency monitoring
requirements do not always allow State agencies enough flexibility to
determine where to focus their monitoring resources. Provisions in the
proposed rule allowed State agencies to target their review efforts to
new sponsors and those sponsors determined by the State agency to need
follow-up monitoring. In response to public comments, this final rule
revises some of the monitoring requirements contained in the proposed
rule to allow State agencies to more effectively focus their monitoring
efforts on those sponsors/sites which are new, operationally deficient,
or demonstrate the greatest potential to be deficient in their
operations.
Proposed Rule Provisions
Pre-approval Visits
The proposed rule retained the current provisions, found in
Sec. 225.7(d)(1)(i) and (ii), for State agencies to conduct pre-
approval visits of sponsors. These provisions require State agencies
to:
Conduct pre-approval visits for all applicant sponsors
which did not participate in the Program in the prior year;
Conduct optional pre-approval visits for new applicant
school food authority sponsors which have been reviewed by the State
agency under the NSLP during the preceding 12 months and had no
significant deficiencies; and
Conduct pre-approval visits for sponsors identified by the
State agency as needing pre-operational visits as a result of
operational problems in the prior year.
The proposed rule removed the specific requirements for State
agencies to conduct pre-approval visits for certain large sites and
sites operated by private nonprofit sponsors, and made all State agency
pre-approval visits to sites discretionary. This provision was
contained in Sec. 225.7(d)(1)(iii) of the proposed rule.
Sponsor and Site Reviews
The proposed rule required that, at any time during the Program
year, State agencies were required to conduct annual reviews of sponsor
operations and review at least 10 percent of the sponsor's sites or one
site, whichever number was greater, for:
Every new sponsor at least once during its first year of
operation;
Every sponsor which, in the determination of the State
agency, experienced significant problems in the prior year; and
Every sponsor with 20 or more sites.
Under the proposed rule, all sponsors were to be reviewed at least
once every 3 years. In addition, sponsors with large sites, larger
numbers of sites, or significant operational problems in the prior year
were required to be reviewed earlier. The recommendation was also made
that State agencies prioritize their review efforts to target all other
sponsors which increase their total number of sites by five or more, or
whose participation increased substantially, from one year to the next.
Finally, the proposed rule eliminated the special requirements for
State agency review of private nonprofit organizations found in
Sec. 225.7(d)(2)(i)(A), and removed the review requirement for
academic-year NYSP sites, since the NSLA no longer authorizes these
sites to participate in SFSP.
As indicated in the preamble of the proposed rule, the proposed
changes were not intended to result in a reduction in a State agency's
monitoring efforts. Rather, it was intended that the State agency's
monitoring resources would become more targeted to reviews of new
sponsors and sponsors of over 20 sites, and other sponsors that the
State agency identifies, and that a correspondingly greater amount of
State agency time and effort could be spent in conducting such reviews.
We expected each State's level of resources devoted to SFSP monitoring
to remain the same.
Comments Received and Final Rule Provisions
We received 3 comments pertaining to sponsor and site reviews. One
commenter suggested removing the reference to having State agencies
target sponsors that have increased their sites by 5 or more,
indicating that recommendations such as this are better placed in
guidance material. Two commenters expressed concern that the net result
of the proposed monitoring requirements could result in significant
reductions in the monitoring efforts put forth by State agencies.
As a result of these comments, we are revising the State agency
monitoring requirements in this final rule. We are removing the
proposed requirements that the State agency annually review every
sponsor with 20 or more sites, and that State agencies prioritize their
review efforts to target all other sponsors which increase their total
number of sites by five or more, or whose participation increases
substantially, from one year to the next.
Instead, State agencies will be required to annually review a
number of sponsors whose Program reimbursements, in the aggregate,
accounted for at least one-half of the total Program meal
reimbursements in the State in the prior year. We believe that the
three-year review cycle, coupled with the elimination of the current
detailed and prescriptive review requirements, will provide State
agencies the flexibility they need to properly oversee Program
operations. The requirement to annually review sponsors with claims
totaling one-half of Program reimbursements in the prior year ensure
that State agencies focus on the largest sponsors. To improve Program
management, we are
[[Page 72895]]
considering similar changes in the State agency monitoring requirements
for the Child and Adult Care Food Program.
Accordingly, under this final rule, State agencies are required to
conduct annual reviews of sponsor operations and review at least 10
percent of the sponsor's sites or one site, whichever number is
greater, for:
Every new sponsor at least once during its first year of
operation;
Every sponsor which, in the determination of the State
agency, experienced significant problems in the prior year; and
A number of sponsors whose Program reimbursements, in the
aggregate, accounted for at least one-half of the total Program meal
reimbursements in the State in the prior year.
In addition, State agencies must review every sponsor at least once
every 3 years. Sponsors with large numbers of sites, or a site(s) with
a large number of children attending, should be reviewed earlier. These
provisions are contained in Sec. 225.7(d)(2) of this final rule.
D. Procedural Matters
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866, and therefore has not been reviewed
by the Office of Management and Budget.
Public Law 104-4
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, requires 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 Food and Nutrition
Service 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 the Food and Nutrition Service 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.
Executive Order 12372
The Summer Food Service Program is listed in the Catalog of Federal
Domestic Assistance under No. 10.559. For the reasons set forth in the
final rule in 7 CFR part 3015, subpart V, and related notices (48 FR
29114 and 49 FR 2276), this program is included in the scope of
Executive Order 12372, which requires intergovernmental consultation
with State and local officials.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Samuel
Chambers, Jr., Administrator of the Food and Nutrition Service (FNS),
has certified that this rule will not have a significant economic
impact on a substantial number of small entities. Simplifying and
streamlining the administration of the SFSP is the intended effect of
this rule when implemented.
Executive Order 12988
This final 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 ``Dates'' section of the preamble of the
rule. Prior to any judicial challenge to the provisions of this rule or
the applications of its provisions, all applicable administrative
procedures must be exhausted. This includes any administrative
procedures available through State or local governments. SFSP
administrative procedures are set forth at: (1) 7 CFR 225.13, which
outlines appeals procedures for use by a sponsor or a food service
management company; and (2) 7 CFR 225.17 and 7 CFR part 3015, which
address administrative appeal procedures for disputes involving
procurement by State agencies and sponsors.
Paperwork Reduction Act
This final rule seeks to reduce the reporting and recordkeeping
requirements for State agencies administering the SFSP. In accordance
with the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the reporting
requirements included in this final rule were reviewed by the Office of
Management and Budget (OMB). OMB approved these requirements for 7 CFR
Part 225 under OMB number 0584-0280.
List of Subjects in 7 CFR Part 225
Food and Nutrition Service, Food assistance programs, Grant
programs-health, Infants and children, Labeling, Reporting and
recordkeeping requirements.
Accordingly, 7 CFR part 225 is amended as follows:
PART 225--SUMMER FOOD SERVICE PROGRAM
1. The authority citation for part 225 continues to read as
follows:
Authority: Secs. 9, 13 and 14, National School Lunch Act, as
amended (42 U.S.C. 1758, 1761, and 1762a).
2. In Sec. 225.2:
a. New definitions of Closed enrolled site, Experienced site,
Experienced sponsor, New site, New sponsor, Open site, and Restricted
open site are added in alphabetical order; and
b. The definition of Areas in which poor economic conditions exist
is revised. The additions and revision read as follows:
Sec. 225.2 Definitions.
* * * * *
Areas in which poor economic conditions exist means:
(a) The local areas from which an open site and restricted open
site draw their attendance in which at least 50 percent of the children
are eligible for free or reduced-price school meals under the National
School Lunch Program and the School Breakfast Program, as determined:
(1) By information provided from departments of welfare and
education, zoning commissions, census tracts, and organizations
determined by the State agency to be migrant organizations;
(2) By the number of free and reduced-price lunches or breakfasts
served to children attending public and nonprofit private schools
located in the areas of Program sites; or
(3) From other appropriate sources; or
(b) A closed enrolled site.
* * * * *
Closed enrolled site means a site which is open only to enrolled
children, as opposed to the community at large, and in which at least
50 percent of the enrolled children at the site are eligible for free
or reduced price school meals under the National School Lunch Program
and the School Breakfast Program, as determined by approval of
applications in accordance with Sec. 225.15(f).
* * * * *
[[Page 72896]]
Experienced site means a site which, as determined by the State
agency, has successfully participated in the Program in the prior year.
Experienced sponsor means a sponsor which, as determined by the
State agency, has successfully participated in the Program in the prior
year.
* * * * *
New site means a site which did not participate in the Program in
the prior year, or, as determined by the State agency, a site which has
experienced significant staff turnover from the prior year.
New sponsor means a sponsor which did not participate in the
Program in the prior year, or, as determined by the State agency, a
sponsor which has experienced significant staff turnover from the prior
year.
* * * * *
Open site means a site at which meals are made available to all
children in the area and which is located in an area in which at least
50 percent of the children are from households that would be eligible
for free or reduced price school meals under the National School Lunch
Program and the School Breakfast Program, as determined in accordance
with paragraph (a) of the definition of Areas in which poor economic
conditions exist.
* * * * *
Restricted open site means a site which is initially open to broad
community participation, but at which the sponsor restricts or limits
attendance for reasons of security, safety or control. Site eligibility
for a restricted open site shall be documented in accordance with
paragraph (a) of the definition of Areas in which poor economic
conditions exist.
* * * * *
3. In Sec. 225.6:
a. Paragraph (b)(1) is amended by adding a new sentence at the end;
b. Paragraph (b)(4) is revised;
c. Paragraph (c)(1) is revised;
d. Paragraph (c)(2) is revised;
e. Paragraphs (c)(3) and (c)(4) are redesignated as paragraphs
(c)(4) and (c)(5), respectively, and a new paragraph (c)(3) is added;
f. Newly redesignated paragraph (c)(4) is amended by adding a
heading and by removing paragraph (c)(4) introductory text and adding
it as the first sentence in newly redesignated paragraph (c)(4)(i); the
paragraph is further amended by removing the reference to ``(c)(4)'' in
paragraph (c)(4)(ii)(D) and adding in its place a reference to
``(c)(5)''.
g. Newly redesignated paragraph (c)(5) is amended by adding a
heading;
h. Paragraph (d)(1)(ii) is amended by removing the word ``and'' at
the end of the paragraph;
i. Paragraph (d)(1)(iii) is amended by removing the period at the
end of the paragraph and adding in its place the word ``; and'';
j. A new paragraph (d)(1)(iv) is added; and
k. Paragraph (e)(1) is revised.
The additions and revisions read as follows:
Sec. 225.6 State agency responsibilities.
* * * * *
(b) * * *
(1) * * * Sponsors applying for participation in the Program due to
an unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) shall be exempt from the application submission deadline.
* * * * *
(4) The State agency shall determine the eligibility of sponsors
applying for participation in the Program in accordance with the
applicant sponsor eligibility criteria outlined in Sec. 225.14.
However, State agencies may approve the application of an otherwise
eligible applicant sponsor which does not provide a year-round service
to the community which it proposes to serve under the Program only if
it meets one or more of the following criteria: It is a residential
camp; it proposes to provide a food service for the children of migrant
workers; a failure to do so would deny the Program to an area in which
poor economic conditions exist; a significant number of needy children
will not otherwise have reasonable access to the Program; or it
proposes to serve an area affected by an unanticipated school closure
during the period from October through April (or at any time of the
year in an area with a continuous school calendar). In addition, the
State agency may approve a sponsor for participation during an
unanticipated school closure without a prior application if the sponsor
participated in the program at any time during the current year or in
either of the prior two calendar years.
* * * * *
(c) * * *
(1) Application forms. The applicant shall submit a written
application to the State agency for participation in the Program as a
sponsor. Sponsors proposing to serve an area affected by an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) may be exempt, at the discretion of the State agency, from
submitting a new application if they have participated in the program
at any time during the current year or in either of the prior two
calendar years. The State agency may use the application form developed
by FNS, or it may develop an application form, for use in the Program.
Application shall be made on a timely basis in accordance with the
deadline date established under Sec. 225.6(b)(1).
(2) Requirements for new sponsors, new sites, and, as determined by
the State agency, sponsors and sites which have experienced significant
operational problems in the prior year.--(i) Site information sheets.
At a minimum, the application submitted by new sponsors and by sponsors
which, in the determination of the State agency, have experienced
significant operational problems in the prior year shall include a site
information sheet, as developed by the State agency, for each site
where a food service operation is proposed. The site information sheet
for new sponsors and new sites, and for sponsors and sites which, in
the determination of the State agency, have experienced significant
operational problems in the current year must demonstrate or describe
the following:
(A) An organized and supervised system for serving meals to
attending children;
(B) The estimated number and types of meals to be served and the
times of service;
(C) Arrangements, within standards prescribed by the State or local
health authorities, for delivery and holding of meals until time of
service, and arrangements for storing and refrigerating any leftover
meals until the next day;
(D) Arrangements for food service during periods of inclement
weather;
(E) Access to a means of communication for making necessary
adjustments in the number of meals delivered in accordance with the
number of children attending daily at each site;
(F) Whether the site is rural, as defined in Sec. 225.2, or non-
rural, and whether the site's food service will be self-prepared or
vended;
(G) For open sites and restricted open sites, documentation
supporting the eligibility of each site as serving an area in which
poor economic conditions exist. However, for sites that a sponsor
proposes to serve during an unanticipated school closure during the
period from October through April (or at any time of the year in an
area with a continuous school calendar), any site which has
participated in the Program
[[Page 72897]]
at any time during the current year or in either of the prior two
calendar years shall be considered eligible without new documentation;
(H) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price meals for each of these sites;
(I) For NYSP sites, certification from the sponsor that all of the
children who will receive Program meals are enrolled participants in
the NYSP;
(J) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session;
(K) For those sites at which applicants will serve children of
migrant workers, certification from a migrant organization which
attests that the site serves children of migrant worker families. If
the site also serves non-migrant children, the sponsor shall certify
that the site predominantly serves migrant children; and
(L) For a site that serves homeless children, information
sufficient to demonstrate that the site is not a residential child care
institution, as defined in paragraph (c) of the definition of school in
Sec. 210.2 of this chapter. If cash payments, food stamps, or any in-
kind service are required of any meal recipient at these sites,
sponsors must describe the method(s) used to ensure that no such
payments or services are received for any Program meal served to
children. In addition, sponsors must certify that such sites employ
meal counting methods which ensure that reimbursement is claimed only
for meals served to children.
(ii) Other application requirements. New sponsors and sponsors
which in the determination of the State agency have experienced
significant operational problems in the prior year shall also include
in their applications:
(A) Information in sufficient detail to enable the State agency to
determine whether the applicant meets the criteria for participation in
the Program as set forth in Sec. 225.14; the extent of Program payments
needed, including a request for advance payments and start-up payments,
if applicable; and a staffing and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs;
(C) A summary of how meals will be obtained (e.g., self-prepared at
each site, self-prepared and distributed from a central kitchen,
purchased from a school food authority, competitively procured from a
food service management company, etc.). If an invitation for bid is
required under Sec. 225.15(g), sponsors shall also submit a schedule
for bid dates, and a copy of their invitation for bid; and
(D) For each applicant which seeks approval under Sec. 225.14(b)(3)
as a unit of local, municipal, county or State government, or under
Sec. 225.14(b)(5) as a private nonprofit organization, certification
that it will directly operate the Program in accordance with
Sec. 225.14(d)(3).
(3) Requirements for experienced sponsors and experienced sites.--
(i) Site information sheets. At a minimum, the application submitted by
experienced sponsors shall include a site information sheet, as
developed by the State agency, for each site where a food service
operation is proposed. The site information sheet for experienced
sponsors and experienced sites must demonstrate or describe the
information below. The State agency also may require experienced
sponsors and experienced sites to provide any of the information
required in paragraph (c)(2) of this section.
(A) The estimated number and types of meals to be served and the
times of service;
(B) For open sites and restricted open sites, new documentation
supporting the eligibility of each site as serving an area in which
poor economic conditions exist shall be submitted. Such documentation
shall be submitted every three years when school data are used. When
census data are used, such documentation shall be submitted when new
census data are available, or earlier if the State agency believes that
an area's socioeconomic status has changed significantly since the last
census. For sites that a sponsor proposes to serve during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar), any site which has participated in the Program at any time
during the current year or in either of the prior two calendar years
shall be considered eligible without new documentation of serving an
area in which poor economic conditions exist;
(C) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price school meals for each of these sites; and
(D) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session.
(ii) Other application requirements. Experienced sponsors shall
also include on their applications:
(A) The extent of Program payments needed, including a request for
advance payments and start-up payments, if applicable, and a staffing
and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs; and
(C) If an invitation for bid is required under Sec. 225.15(g), a
schedule for bid dates. Sponsors shall also submit a copy of the
invitation for bid if it is changed from the previous year. If the
method of procuring meals is changed, sponsors shall submit a summary
of how meals will be obtained (e.g., self-prepared at each site, self-
prepared and distributed from a central kitchen, purchased from a
school food authority, competitively procured from a food service
management company, etc.).
(4) Free meal policy statement. * * *
* * * * *
(5) Hearing procedures statement. * * *
* * * * *
(d) * * *
(1) * * *
(iv) If it is a site proposed to operate during an unanticipated
school closure, it is a non-school site.
* * * * *
(e) * * *
(1) Operate a nonprofit food service during the period specified,
as follows:
[[Page 72898]]
(i) From May through September for children on school vacation;
(ii) At any time of the year, in the case of sponsors administering
the Program under a continuous school calendar system; or
(iii) During the period from October through April, if it serves an
area affected by an unanticipated school closure due to a natural
disaster, major building repairs, court orders relating to school
safety or other issues, labor-management disputes, or, when approved by
the State agency, a similar cause.
* * * * *
4. In Sec. 225.7:
a. Paragraph (a) is amended by adding a new sentence at the end;
b. Paragraph (d)(1)(i) is amended by removing the semicolon at the
end of the paragraph, by adding a period in its place, and by adding a
new sentence at the end of the paragraph;
c. Paragraph (d)(1)(iii) is revised;
d. Paragraph (d)(1)(iv) is removed; and
e. Paragraph (d)(2) is revised.
The additions and revisions read as follows:
Sec. 225.7 Program monitoring and assistance.
(a) * * * State agencies are not required to conduct this training
for sponsors operating the Program during unanticipated school closures
during the period from October through April (or at any time of the
year in an area with a continuous school calendar).
* * * * *
(d) * * *
(1) * * *
(i) * * * In addition, pre-approval visits of sponsors proposing to
operate the Program during unanticipated school closures during the
period from October through April (or at any time of the year in an
area with a continuous school calendar) may be conducted at the
discretion of the State agency;
* * * * *
(iii) All sites which the State agency has determined need a pre-
approval visit.
(2) Sponsor and site reviews--(i) General. The State agency must
review sponsors and sites to ensure compliance with Program
regulations, the Department's non-discrimination regulations (7 CFR
part 15) and any other applicable instructions issued by the
Department. In determining which sponsors and sites to review, the
State agency must, at a minimum, consider the sponsors' and sites'
previous participation in the Program, their current and previous
Program performance, and the results of previous reviews of the sponsor
and sites. When the same school food authority personnel administer
this Program as well as the National School Lunch Program (7 CFR part
210), the State agency is not required to conduct a review of the
Program in the same year in which the National School Lunch Program
operations have been reviewed and determined to be satisfactory.
Reviews shall be conducted as follows:
(ii) Frequency and number of required reviews. State agencies
shall:
(A) Conduct a review of every new sponsor at least once during the
first year of operation;
(B) Annually review a number of sponsors whose program
reimbursements, in the aggregate, accounted for at least one-half of
the total program meal reimbursements in the State in the prior year;
(C) Annually review every sponsor which experienced significant
operational problems in the prior year;
(D) Review each sponsor at least once every three years; and
(E) As part of each sponsor review, conduct reviews of at least 10
percent of each sponsor's sites, or one site, whichever number is
greater.
* * * * *
5. In Sec. 225.14:
a. Paragraph (a) is amended by adding a new sentence at the end;
b. Paragraph (d)(1) is removed; and
c. Paragraphs (d)(2) through (d)(6) are redesignated as paragraphs
(d)(1) through (d)(5), respectively.
The addition reads as follows:
Sec. 225.14 Requirements for sponsor participation.
(a) * * * Sponsors proposing to operate a site during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) may be exempt, at the discretion of the State agency, from
submitting a new application if they have participated in the program
at any time during the current year or in either of the prior two
calendar years.
* * * * *
6. In Sec. 225.15, paragraph (d)(1) is amended by adding a new
sentence after the first sentence to read as follows:
Sec. 225.15 Management responsibilities of sponsors.
* * * * *
(d) * * *
(1) * * * The State agency may waive these training requirements
for operation of the Program during unanticipated school closures
during the period from October through April (or at any time of the
year in an area with a continuous school calendar). * * *
* * * * *
Dated: December 15, 1999.
Samuel Chambers, Jr.,
Administrator.
[FR Doc. 99-33504 Filed 12-28-99; 8:45 am]
BILLING CODE 3410-30-U
