Notice2021-16479
Request for Information: Buy American in the National School Lunch Program and School Breakfast Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 4, 2021
Issuing agencies
Agriculture DepartmentFood and Nutrition Service
Abstract
This is a Request for Information from stakeholders, including local operators, State administrators, industry and producers, about the Buy American provision in the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). The NSLP and SBP, which are administered by the United States Department of Agriculture (USDA) Food and Nutrition Service (FNS), play a critical role in ensuring that America's children have access to nutritious food they need to learn and succeed in the classroom, in addition to supporting American agriculture, and small, minority, and women's businesses and agricultural producers. In order to claim Federal reimbursement for meals served, school food authorities (SFAs) must follow Federal procurement and program regulations. These include the Buy American provision. The purpose of this Request for Information is to help FNS gather feedback from a wide variety of stakeholders on how the Buy American provision and guidance are currently implemented, changes FNS should make to current regulations and guidance and feedback on how FNS can better support local operators as they strive to purchase domestic foods and food products.
Full Text
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<title>Federal Register, Volume 86 Issue 147 (Wednesday, August 4, 2021)</title>
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[Federal Register Volume 86, Number 147 (Wednesday, August 4, 2021)]
[Notices]
[Pages 41943-41945]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16479]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
Request for Information: Buy American in the National School
Lunch Program and School Breakfast Program
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Notice: Request for information.
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SUMMARY: This is a Request for Information from stakeholders, including
local operators, State administrators, industry and producers, about
the Buy American provision in the National School Lunch Program (NSLP)
and the School Breakfast Program (SBP). The NSLP and SBP, which are
administered by the United States Department of Agriculture (USDA) Food
and Nutrition Service (FNS), play a critical role in ensuring that
America's children have access to nutritious food they need to learn
and succeed in the classroom, in addition to supporting American
agriculture, and small, minority, and women's businesses and
agricultural producers. In order to claim Federal reimbursement for
meals served, school food authorities (SFAs) must follow Federal
procurement and program regulations. These include the Buy American
provision. The purpose of this Request for Information is to help FNS
gather feedback from a wide variety of stakeholders on how the Buy
American provision and guidance are currently implemented, changes FNS
should make to current regulations and guidance and feedback on how FNS
can better support local operators as they strive to purchase domestic
foods and food products.
DATES: Written comments must be received on or before November 2, 2021.
ADDRESSES: USDA invites the submission of the requested information
through one of the following methods:
<bullet> Federal eRulemaking Portal (preferred method): Go to
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online instructions for
submitting comments.
<bullet> Mail: Send written comments to the School Meals Monitoring
Branch, Program Monitoring and Operational Support Division, Child
Nutrition Programs, USDA Food and Nutrition Service, Braddock Metro
Center II, 1320 Braddock Place, Alexandria, VA 22314.
All comments submitted in response to this Request for Information will
be included in the record and will be made available to the public.
Please be advised that the substance of the comments and the identity
of the individuals or entities submitting the comments will be subject
to public disclosure. USDA will make the comments publicly available
via <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Jessica Saracino, School Meals
Monitoring Branch, Program Monitoring and Operational Support Division,
Child Nutrition Programs, USDA Food and Nutrition Service, 703-605-
3223.
SUPPLEMENTARY INFORMATION: On January 25, 2021, President Biden signed
the Executive Order on Ensuring the Future is Made in All of America by
All of America's Workers (referred to as the Buy American Executive
order hereafter) supporting the American economy by requiring terms and
conditions of Federal financial assistance awards and Federal
procurements to maximize the use of goods, products, and materials
produced in, and services offered in, the United States. FNS is issuing
this RFI in response to this Executive Order.
Section 104(d) of the William F. Goodling Child Nutrition
Reauthorization Act of 1998 (Pub. L. 105-336) added a provision,
Section 12(n) to the National School Lunch Act (NSLA) (42 U.S.C.
1760(n)), requiring school food authorities (SFAs) to purchase, to the
maximum extent practicable, domestic commodities or products. This Buy
American provision supports the mission of the Child Nutrition
Programs, which is to serve children nutritious meals and support
American agriculture. The existing regulatory provision stems directly
from the statutory requirement.
The Buy American provision applies to SFAs located in the 48
contiguous United States and is one of the procurement standards these
SFAs must comply with when purchasing commercial food and food products
served in NSLP and SBP. Although Alaska, Hawaii, and the U.S.
territories are exempt from the Buy American provision, SFAs in Hawaii
are required to purchase food and food products produced in Hawaii in
sufficient quantities, as determined by the SFA, to meet NSLP and SBP
needs per 7 CFR 210.21(d)(3) and 7 CFR 220.16(d)(3). Likewise, SFAs in
Puerto Rico are required to purchase food and food products produced in
Puerto Rico in sufficient quantities, under 42 U.S.C. 1760(n)(4).
Section 12(n) of the NSLA defines ``domestic commodity or product''
as an agricultural commodity that is produced in the United States and
a food product that is processed in the United States substantially
using agricultural commodities produced in the United States. Report
language accompanying the legislation noted that ``substantially means
over 51% from American products.'' Accordingly, FNS has established in
guidance that over 51% of the final processed product must consist of
agricultural commodities that were grown domestically. Thus, for foods
that are unprocessed, agricultural commodities must be domestic, and
for foods that are processed, they must be processed domestically using
domestic agricultural food components that are comprised of over 51%
domestically grown items, as determined by the SFA. Any processed
product used must contain over 51% of the product's food component from
United States origin. This definition of domestic product serves both
the needs of schools and American agriculture. Foods and food products
from Guam, American Samoa, Virgin Islands, Puerto Rico, and the
Northern Mariana Islands are considered domestic products under this
provision as these products are from the territories of the United
States.
FNS has provided through guidance limited exceptions to the Buy
American provision which allow for the purchase of foods not meeting
the ``domestic'' standard as described above (i.e., ``non-domestic'')
in circumstances when use of domestic foods is truly not practicable.
These exceptions, as determined by the SFA, are:
<bullet> The product is not produced or manufactured in the United
States in sufficient and reasonably available quantities of a
satisfactory quality; or
<bullet> Competitive bids reveal the costs of a United States
product are significantly higher than the non-domestic product.
It should be noted that FNS has not defined a dollar amount or
percentage triggering possible use of an exception. It is each
individual SFA's responsibility to determine what dollar amount or
percentage constitutes a significantly higher price thus permitting the
use of the exception. If an SFA is using one of the above exceptions,
there is no requirement at this time to request a waiver from the State
agency or FNS in order to purchase a non-domestic product. SFAs must,
however, keep documentation justifying their use of exception(s). State
agencies must ensure SFA compliance with the Buy American provision
when conducting oversight processes.
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FNS has already received feedback that stakeholders face
difficulties in implementing and monitoring the Buy American provision
and guidance. Additionally, stakeholders have reached out for
assistance with interpreting and following the Buy American provision
and have also requested help with understanding the exceptions.
Feedback provided in response to this Request for Information will help
inform future rulemaking and guidance around the Buy American
provision.
Maximizing the Value of Public Feedback
This notice contains a list of questions, the answers to which will
assist FNS in identifying those regulations, and/or policies that may
benefit from modification, streamlining, expansion, or repeal in light
of the Buy American Executive order. FNS encourages public comment on
these questions and seeks any other data commenters believe are
relevant to FNS's review efforts. The type of feedback that is most
useful to the agency includes feedback that identifies specific
regulations and/or policies that could benefit from reform; feedback
that refers to specific barriers to participation; feedback that offers
actionable data; and feedback that specifies viable alternatives to
existing approaches that meet statutory obligations. For example,
feedback that simply states that a stakeholder feels strongly that FNS
should change a regulation or policy but does not contain specific
information on how the proposed change would impact the costs and
benefits of the regulation, is much less useful to FNS. FNS is looking
for new information and new data to support any proposed changes.
Highlighted below are a few of those points, noting comments that are
most useful to FNS. Commenters should consider these principles as they
answer and respond to the questions in this notice.
<bullet> Commenters should identify, with specificity, the program
regulation and/or policy at issue, providing the Code of Federal
Regulation (CFR) citation where appropriate.
<bullet> Commenters should identify, with specificity,
administrative burdens, program requirements, or unnecessary complexity
that may impose unjustified barriers in general, or that may have
adverse effects on equity for all, including individuals who belong to
underserved communities that have been denied equitable treatment, such
as Black, Latino, and Indigenous and Native American persons, Asian
Americans and Pacific Islanders and other persons of color; members of
religious minorities; lesbian, gay, bisexual, transgender, and queer
(LGBTQ+) persons; persons with disabilities, including learning
disabilities; persons who live in rural areas; and persons otherwise
adversely affected by persistent poverty or inequality.
<bullet> Commenters should provide, in as much detail as possible,
an explanation why a program regulation and/or policy should be
modified, streamlined, expanded, or repealed, as well as specific
suggestions of ways the agency can better achieve its statutory and
regulatory objectives in light of the Buy American Executive order.
<bullet> Commenters should provide specific data that document the
costs, burdens, and benefits of existing requirements to the extent
they are available.
List of Questions for Commenters
This Request for Information reflects the commitment of FNS to work
with our stakeholders, including local operators, State administrators,
industry and producers, to ensure that the Program-specific Buy
American provision support the Administration's priorities, is
practicable and that FNS provides adequate guidance.
The below non-exhaustive list of questions is meant to assist
members of the public in the formulation of comments and is not
intended to restrict the issues that commenters may address.
General
1. What changes, if any, to the Buy American provision and guidance
would you recommend to FNS to support the Buy American executive order?
Please describe in detail.
2. Please describe what works well for your organization when
implementing and/or meeting the Buy American provision.
3. Please describe any challenges or impediments identified in
meeting or monitoring the Buy American provision.
4. Do you have State-specific requirements to ensure SFAs comply
with the Buy American provision (e.g., recording every exception used,
listing alternatives considered, etc.)? If so, please describe in
detail.
5. Does your SFA use geographic preference when soliciting for
unprocessed locally grown or locally raised agricultural products?
a. If not, what are the reason(s) your SFA does not use geographic
preference to purchase locally grown or locally raised agricultural
products?
6. Does your SFA use small, minority, and/or women's businesses,
including Tribal businesses, and labor surplus firms to purchase or
process foods from local producers such as farmers, ranchers, and other
producers, or to process unprocessed, locally grown agricultural
commodities into usable food products, needed to operate the NSLP and
SBP? If yes, which of the above does your SFA use and how often? Please
describe whether your SFA has experienced any additional benefits
(other than obtaining affordable foods) by using local producers.
7. Please provide suggestions on how FNS can support stakeholders
in meeting the Buy American provision or in connecting U.S. food
producers to local schools.
Exceptions
8. FNS allows two limited exceptions to the Buy American provision:
Costs of a United States product that are significantly higher than the
non-domestic product, and insufficient domestic quality or quantity.
List the foods and/or food products that most often require an
exception.
(a.) Exceptions due to quantity or quality
(b.) Exceptions due to a significantly higher cost
9. If these currently available exceptions were more or less
available, what impacts would this have?
10. Do you think FNS should establish additional detail in the
regulations for the Buy American provision?
11. Do you think FNS should define what is considered a
significantly higher cost? If so, how should FNS define
``significant''? Please be as specific as possible.
12. What methodology do you use to determine a significantly higher
cost to your SFA that will require the purchase of non-domestic foods
or food products? Do you use a dollar value or percentage in your
determination? If yes, list the dollar value or percentage you use.
13. Should FNS consider a defined list of Buy American ``excepted''
items for food or food products that have been determined as not
produced in the United States in sufficient and reasonably available
commercial quantities of a satisfactory quality? If so, what criteria
would you use to include items on this list, and which items would
currently be included?
Collection of Information Requirements: This document does not
impose information collection requirements, that is, reporting,
recordkeeping or third-party disclosure
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requirements. However, this document does contain a general
solicitation of comments in the form of a request for information. In
accordance with implementing regulations of the Paperwork Reduction Act
of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general
solicitation is exempt from the PRA. Facts or opinions submitted in
response to general solicitations of comments from the public,
published in the Federal Register or other publications, regardless of
the form or format thereof, provided that no person is required to
supply specific information pertaining to the commenter other than that
necessary for self-identification, as a condition of the agency's full
consideration, are not generally considered information collections and
therefore not subject to the PRA.
Timothy English,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 2021-16479 Filed 8-3-21; 8:45 am]
BILLING CODE 3410-30-P
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</html>Indexed from Federal Register on August 4, 2021.
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