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Proposed Rule2023-05624

Child Nutrition Programs: Community Eligibility Provision-Increasing Options for Schools

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Published

March 23, 2023

Issuing agencies

Agriculture DepartmentFood and Nutrition Service

Abstract

This rulemaking proposes to expand access to the Community Eligibility Provision by lowering the minimum identified student percentage participation threshold from 40 percent to 25 percent, which would give States and schools greater flexibility to choose to invest non-Federal funds to offer no-cost meals to all enrolled students. As a result, more students, families, and schools would have an opportunity to experience the benefits of the Community Eligibility Provision, including access to meals at no cost, eliminating unpaid meal charges, minimizing stigma, reducing paperwork for school nutrition staff and families, and streamlining meal service operations. When all students have access to healthy school meals, meal participation tends to increase, and more children can experience nutritional benefits that fuel their learning, growth, and development. This proposed rule would also support State and local choices to expand the availability of free school meals for all through programs supported by State or local funding. Lowering the eligibility threshold would allow States and local educational agencies to optimize use of the Community Eligibility Provision, helping them to support school meals in a more streamlined manner.

Full Text

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<title>Federal Register, Volume 88 Issue 56 (Thursday, March 23, 2023)</title>
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[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17406-17419]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05624]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 /
Proposed Rules

[[Page 17406]]

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 245

[FNS-2022-0044]
RIN 0584-AE93

Child Nutrition Programs: Community Eligibility Provision--
Increasing Options for Schools

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This rulemaking proposes to expand access to the Community
Eligibility Provision by lowering the minimum identified student
percentage participation threshold from 40 percent to 25 percent, which
would give States and schools greater flexibility to choose to invest
non-Federal funds to offer no-cost meals to all enrolled students. As a
result, more students, families, and schools would have an opportunity
to experience the benefits of the Community Eligibility Provision,
including access to meals at no cost, eliminating unpaid meal charges,
minimizing stigma, reducing paperwork for school nutrition staff and
families, and streamlining meal service operations. When all students
have access to healthy school meals, meal participation tends to
increase, and more children can experience nutritional benefits that
fuel their learning, growth, and development. This proposed rule would
also support State and local choices to expand the availability of free
school meals for all through programs supported by State or local
funding. Lowering the eligibility threshold would allow States and
local educational agencies to optimize use of the Community Eligibility
Provision, helping them to support school meals in a more streamlined
manner.

DATES: Written comments on this proposed rule should be received on or
before May 8, 2023 to receive consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on this proposed rule. Comments may
be submitted in writing by one of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online instructions for submitting
comments.
<bullet> Mail: Send comments to School Meals Policy Division, Food
and Nutrition Service, P.O. Box 9233, Reston, VA 20195. All written
comments submitted in response to this proposed rule 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. FNS will make the written comments publicly
available on the internet via <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Michelle Frey, Branch Chief, Policy
Design Branch, School Meals Policy Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314,
telephone: 703-305-2590.

SUPPLEMENTARY INFORMATION:

Background

The Community Eligibility Provision (CEP) is an option for eligible
schools to offer no-cost meals to all enrolled students without
collecting household applications. Authorized by the Healthy, Hunger-
Free Kids Act of 2010 (HHFKA), CEP is a reimbursement alternative for
eligible local educational agencies (LEAs) and schools participating in
both the National School Lunch Program (NSLP) and School Breakfast
Program (SBP). CEP aims to combat child hunger in high poverty areas,
while reducing administrative burden and increasing program efficiency
by using current, readily available data to offer school meals to all
students at no cost. CEP eliminates the need for schools to collect
household income applications by sharing eligibility data between
specific Federal assistance programs; thus, reducing administrative
burden for schools and families while intending to ensure that hunger
is not a barrier to students' academic success.

Eligibility for CEP

To be eligible for CEP, an individual school, group of schools, or
school district must meet or exceed the established identified student
percentage (ISP) threshold in the school year prior to implementing
CEP. The ISP is the percentage of enrolled students who are certified
for free school meals without submitting a household application, such
as those directly certified through Federal benefits programs like the
Supplemental Nutrition Assistance Program (SNAP). For CEP, students who
are certified for free meals without a household application are
``identified students'' (42 U.S.C. 1759a(a)(1)(F)(i); 7 CFR
245.9(f)(1)(ii)).\1\ The ISP is calculated by dividing the total number
of identified students by the total number of enrolled students:
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\1\ Identified students include students living in households
participating in SNAP, Temporary Assistance for Needy Families, and
Food Distribution Program on Indian Reservations. Identified
students also include those who are homeless, migrant, runaway, in
foster care, or enrolled in Head Start. In some States, students are
directly certified through Medicaid direct certification
demonstration projects. Students in States participating in the
Medicaid direct certification demonstration projects are only
included in the ISP if they are certified for free meals (not
reduced price meals).
[GRAPHIC] [TIFF OMITTED] TP23MR23.000

[[Page 17407]]

Under current regulations, the minimum ISP is 40 percent;
therefore, to be eligible for CEP, an individual school, group of
schools, or school district must have an ISP greater than, or equal to,
40 percent (ISP >=40 percent) as of April 1 of the school year prior to
implementing CEP (7 CFR 245.9(f)(3)(i)).

Current Requirements

The ISP determines eligibility to participate in CEP and is also
the basis of Federal reimbursements for meals served to students in CEP
schools. A 1.6 ``multiplier'' is established by statute. The ISP is
multiplied by 1.6 to calculate the percentage of meals reimbursed at
the Federal free rate (7 CFR 245.9(f)(4)(vi)). Any remaining meals, up
to 100 percent, are reimbursed at the Federal paid rate.\2\
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\2\ CEP schools only claim meals at the free and paid
reimbursement rates. CEP schools do not claim reduced price meals.

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% Meals reimbursed at Federal free rate = ISP x 1.6

% Meals reimbursed at Federal paid rate = 100--% meals reimbursed at
Federal free rate CEP requires that LEAs must pay, with non-Federal
funds, any costs of offering free meals to all students that exceed the
Federal assistance provided. Examples of non-Federal funding sources
include, but are not limited to, funds provided by the State agency
that exceed revenue matching requirements outlined in section 7 of the
National School Lunch Act (NSLA) and at 7 CFR 210.17, profits from
[agrave] la carte sales, and cash donations. If all operating costs are
covered by the Federal assistance provided, then LEAs are not required
to contribute non-Federal funds (7 CFR 245.9(f)(4)(vii)).

Statutory Requirements Regarding the ISP Threshold and CEP Multiplier

Pursuant to 42 U.S.C. 1759a(a)(1)(F)(ix), the U.S. Department of
Agriculture (USDA) gradually phased in CEP from school year (SY) 2011-
2012 to SY 2013-2014, before it was nationally implemented in SY 2014-
2015. During this phase-in period, USDA was required by statute to set
the CEP multiplier at 1.6 (42 U.S.C. 1759a(a)(1)(F)(vii)(I)) and the
ISP threshold for eligibility at 40 percent (42 U.S.C.
1759a(a)(1)(F)(viii)(I)). Starting July 1, 2014, when CEP was fully
implemented, Congress gave the Secretary discretion to use a multiplier
between 1.3 and 1.6 (42 U.S.C. 1759a(a)(1)(F)(vii)(II)) and an ISP
threshold that is less than 40 percent (42 U.S.C.
1759a(a)(1)(F)(viii)(II)).

Regulatory History & National Implementation

On November 4, 2013, USDA published a proposed rule in the Federal
Register seeking to add CEP to regulations governing the determination
of eligibility for free and reduced price meals and free milk in
schools, consistent with amendments made to the NSLA by the HHFKA (78
FR 65890). USDA drew on a range of information to develop the proposed
rule, including the statutory language in the NSLA and knowledge gained
through the phased-in implementation of CEP in SYs 2011-2012 through
2013-2014.
Beginning July 1, 2014, pursuant to 42 U.S.C. 1759a(a)(1)(F)(x)(I),
CEP became available nationwide to all eligible schools at the
discretion of their LEAs. Many State and local officials throughout the
country enthusiastically embraced the new provision, resulting in
significant CEP expansion. In SY 2014-2015, almost 14,000 schools in
2,190 LEAs elected CEP, resulting in about 6.4 million students with
access to free meals each school day.\3\ About two-thirds of the 75
largest highly eligible school districts identified by USDA elected CEP
for at least some of their schools in SY 2014-2015, while about half of
electing LEAs had enrollments of 500 or fewer students.\4\
Significantly, these data indicated that a broad range of LEAs chose to
elect CEP. During this time, USDA continued to provide extensive
guidance and technical assistance through conference calls, public
speaking engagements, webinars, guidance publications, in-person
visits, collaboration with partner organizations, and focused contact
with States and LEAs.
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\3\ Center on Budget and Policy Priorities. (2015). Take Up of
Community Eligibility This School Year. Available at <a href="https://www.cbpp.org/research/take-up-of-community-eligibility-this-school-year">https://www.cbpp.org/research/take-up-of-community-eligibility-this-school-year</a>.
\4\ Ibid. The term ``highly eligible'' refers to schools and
districts with an ISP greater than or equal to 60 percent.
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On July 29, 2016, USDA published the final rule, National School
Lunch Program and School Breakfast Program: Eliminating Applications
through Community Eligibility as Required by the Healthy, Hunger-Free
Kids Act of 2010 [81 FR 50194, July 29, 2016], which codified CEP
requirements that were implemented through statute and policy guidance,
at 7 CFR 245.6 and 245.9(f). The final rule codified CEP requirements
in Federal regulation, including the following:
<bullet> Eliminated the collection of school meal applications in
CEP schools;
<bullet> Allowed eligible LEAs/schools to offer all students no-
cost lunches and breakfasts for four successive school years;
<bullet> Limited CEP participation to LEAs and schools that have an
ISP of at least 40 percent;
<bullet> Established 1.6 as the multiplier to be used to determine
CEP claiming percentages for an entire 4-year CEP cycle;
<bullet> Required LEAs to pay, with non-Federal funds, the
difference (if any) between the cost of serving meals at no cost to all
students and the Federal assistance provided; and,
<bullet> Established procedures to determine the percentage of
meals to be claimed at the Federal free and paid rates at CEP schools.
By codifying the CEP eligibility threshold and multiplier in the
final rule, USDA committed to pursue any subsequent changes to the
eligibility threshold or multiplier through the Federal regulatory
process, including an opportunity for public comment. This gives
stakeholders, including school districts and schools, an opportunity to
consider changes and related impacts to the costs and benefits of
electing CEP.

Benefits of CEP

Since its inception, CEP has been a consistent tool to address
childhood hunger. Requiring schools to offer both breakfast and lunch
to participate in CEP has increased the number of LEAs implementing or
expanding the SBP, thereby giving children greater access to
breakfast.\5\ Studies have also shown that CEP schools experienced
significant student participation growth in their school meal programs.
USDA published a CEP Characteristics Study in March 2022, which
highlighted, in depth, the benefits of CEP.\6\ This first comprehensive
study since CEP became available nationwide compared the impact of CEP
participation in school districts that elected CEP to similar non-
participating school districts. Overall, the study found that CEP
participation resulted in sustained increases in student participation
in both the NSLP and SBP.\7\ Notably, the study indicated

[[Page 17408]]

that student participation in NSLP is about 7 percent higher in CEP
school districts compared to similar, eligible LEAs that chose not to
adopt CEP. It also found that student participation in SBP is about 12
percent higher in LEAs that participate in CEP.
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\5\ Among the 347 participating LEAs that responded to the CEP
Evaluation Implementation Web Survey, 9 percent reported
implementing or expanding their school breakfast program due to CEP.
U.S. Department of Agriculture. (2014). Community Eligibility
Provision Evaluation Final Report. Available at: <a href="http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf">http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf</a> (p. 112).
\6\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a>.
\7\ Among the Year 2 sample, the impact on the NSLP
participation rates was statistically significant at five percentage
points in the first year of CEP and six percentage points in the
second year of CEP. This suggests that the impact of CEP lasted
beyond the first year of implementation and actually grew by one
percentage point from the first to second year of implementation.
USDA Community Eligibility Provision Characteristics Study,
Available at <a href="https://fns-prod.azureedge.us/sites/default/files/resource-files/CEPSY2016-2017.pdf">https://fns-prod.azureedge.us/sites/default/files/resource-files/CEPSY2016-2017.pdf</a>.
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While these participation increases are important because they show
more children took advantage of SBP's and NSLP's nutritional benefits,
increases in student participation also confer several other benefits.
USDA's CEP Characteristics Study found that increases in student
participation positively impacted LEAs' finances. Student participation
increases contributed to CEP schools being significantly more likely to
report that it was easier to balance nonprofit school nutrition
financial accounts (i.e., break even), compared to respondents from
non-participating schools. As a result of higher participation, schools
may also take advantage of economies of scale both in administrative
costs and in meal production, reducing the cost per meal. Increases in
student participation were also associated with increased non-Federal
revenues among study respondents: almost two-thirds of participating
LEAs said that CEP was a factor in the increase in non-Federal revenues
because State subsidies tied to meal counts also increased, providing
LEAs with more non-Federal funds that can be used to support CEP.\8\
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\8\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a> (p.
68).
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A systematic review of research around free school meals for all
students also found that free school meals, paired with strong
nutrition standards (especially standards that promote vegetables,
fruits, and whole grains), are positively associated with students'
diet quality and academic performance, such as standardized math test
scores.\9\ Furthermore, the review suggested that free school meals for
all may resolve the issues of social stigma, a lack of information
(e.g., households not knowing they need to apply or re-apply each
year), challenges with applying (e.g., language or literacy barriers),
or food insecurity of students who are not eligible for free or reduced
price meals.\10\ Participation increases in CEP schools result in more
students receiving the nutrition necessary to support learning.
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\9\ Cohen JFW, Hecht AA, McLoughlin GM, Turner L, Schwartz MB.
Universal School Meals and Associations with Student Participation,
Attendance, Academic Performance, Diet Quality, Food Security, and
Body Mass Index: A Systematic Review. Nutrients. 2021 Mar
11;13(3):911. Diet quality (pp. 6-9); Academic performance (p. 10).
\10\ Ibid, p. 33.
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Participation in CEP is also associated with a positive impact on
household finances. A study conducted by the National Bureau of
Economic Research indicated households with children receiving free
school meals through CEP saved between 5 percent and 19 percent on
their monthly grocery bills.\11\ Researchers also observed that CEP
exposure is associated with an almost 5 percent decline in households
classified as food insecure.\12\
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\11\ National Bureau of Economics. (2022). The Effect of Free
School Meals on Household Food Purchases: Evidence from the
Community Eligibility Provision. Available at: <a href="https://www.nber.org/papers/w29395">https://www.nber.org/papers/w29395</a>.
\12\ Ibid. The term ``CEP exposure'' refers to the probability
that a household has a child attending a CEP school.
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Another benefit of CEP is reduced administrative burden and
increased program efficiency. CEP schools eliminate costs associated
with school meal applications, including staff time and other resources
dedicated to printing, distributing, collecting, processing, and
verifying school meal applications. USDA's initial CEP study of the
phase-in States demonstrated that CEP consistently saved time for LEA
food service administrative staff, school nutrition professionals, and
school administrators.\13\ The 2022 CEP Characteristics Study resulted
in similar findings: 74 percent of participating LEAs reported a
decreased burden on families, and 65 percent reported decreased LEA
administrative burden.\14\ Of those reporting a decreased
administrative burden, food service staff spent more time conducting
other administrative tasks (73 percent), overseeing food program
operations (69 percent), and planning meal services (56 percent).\15\
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\13\ U.S. Department of Agriculture. (2014). Community
Eligibility Provision Evaluation Final Report. Available at: <a href="http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf">http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf</a>.
\14\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a> (p.
43).
\15\ Ibid, p. 44-45.
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CEP also eliminates the problem of unpaid meal debt--debt that
accumulates when students who pay for school meals, at either full or
reduced price, do not have money to pay at the point of sale. In their
School Nutrition Trends Summary Report (2019), the School Nutrition
Association found that approximately 75% of school districts have
outstanding school meal debt.\16\ USDA's Child Nutrition Programs
Operations Study found that the median school food authority was owed
approximately $1,500 total in unpaid meal charges.\17\ The 2022 CEP
Characteristics Study showed that about 70 percent of LEAs reported the
elimination of unpaid meal charges as a benefit of CEP.\18\
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\16\ School Nutrition Association. (2019). School Nutrition
Trends Report. This report is available to the public for purchase
at <a href="http://schoolnutrition.org/2019-school-nutrition-trends-summary-report/">http://schoolnutrition.org/2019-school-nutrition-trends-summary-report/</a>.
\17\ Beyler, N., Murdoch, J., & Cabili, C. (2021). Child
Nutrition Program Operations Study II: SY 2017-18. Prepared by 2M
Research. Contract No. AG-3198-C-15-0008. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service, Office of
Policy Support, Project Officer: Holly Figueroa. Available online
at: Child Nutrition Program Operations Study, School Year 2017-18
[bond] Food and Nutrition Service (<a href="http://usda.gov">usda.gov</a>).
\18\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a> (p.
43).
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Another related benefit is that CEP has been found to improve
program integrity by simplifying Program administration.\19\ Program
integrity is essential to the effectiveness of school nutrition
programs, and responsible stewardship of Federal taxpayer dollars.
Schools that participate in CEP do not rely on annual household
applications that are typically used to determine students' eligibility
for free and reduced price meals. Instead, schools directly certify
students through electronic data matching at the State or local level
to establish ISPs. USDA's third Access, Participation, Eligibility, and
Certification Study found that LEAs had a much lower error rate in
directly certifying students--such as the ``identified students'' in
CEP schools--than in certifying students by applications.\20\ Since the
nationwide expansion of CEP in SY 2014-2015, many States have enhanced
their data

[[Page 17409]]

matching systems to improve accuracy and reliability.\21\
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\19\ U.S. Department of Agriculture. (2014). Community
Eligibility Provision Evaluation Final Report. Available at: <a href="http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf">http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf</a> (p. 127).
\20\ Milfort et al. (2021). Third Access, Participation,
Eligibility, and Certification Study. Prepared by Westat, Inc.,
Contract No. AG-3198-K-15-0054. Alexandria, VA: U.S. Department of
Agriculture, Food and Nutrition Service, Office of Policy Support,
Project Officer: Conor McGovern. Available online at: <a href="https://fns-prod.azureedge.us/sites/default/files/resource-files/APECIII-Vol1.pdf">https://fns-prod.azureedge.us/sites/default/files/resource-files/APECIII-Vol1.pdf</a> (p. 8-14 through 9-3).
\21\ The calculated national percentage of SNAP-participant
children directly certified for free school meals was 98 percent in
both SY 2017-18 and SY 2018-19. This is an improvement of 6
percentage points from the direct certification performance rate in
SY 2016-17, which was 92 percent, and an 11-percentage point
increase since SY 2013-14. Data from Ranalli, Dennis, Templin, Joe,
& Applebaum, Maggie (2021). Direct Certification in the National
School Lunch Program: State Implementation Progress Research
Summary, School Year 2017-18 and School Year 2018-19. Prepared by
the U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support and Child Nutrition Programs, Alexandria,
VA. Available at: <a href="https://fns-prod.azureedge.us/sites/default/files/resource-files/NSLPDirectCertification2017-1.pdf">https://fns-prod.azureedge.us/sites/default/files/resource-files/NSLPDirectCertification2017-1.pdf</a>.
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Study results show that throughout its phase-in and national
implementation, CEP accomplishes two goals: feeding schoolchildren and
streamlining Program administration and operations. Participating LEAs
have been highly satisfied with CEP and are likely to continue their
participation: USDA's 2022 CEP Characteristics Study found that most
participating LEAs (97 percent) intended to participate in CEP the
following school year, as did 23 percent of eligible, but non-
participating LEAs.\22\
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\22\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a>. p. 5.
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Discussion

As of SY 2021-2022, 74.3 percent of eligible school districts were
participating in CEP, reaching a total of 16.2 million school children
in 33,300 schools.\23\ Participating schools are located in all 50
States, the District of Columbia, and Guam, ensuring that students in
high-poverty communities throughout the country can enter their
classrooms well-nourished and ready to learn. Through this rulemaking,
USDA intends to provide more LEAs and schools with the option to
participate in CEP by lowering the minimum ISP participation threshold
from 40 percent to 25 percent.
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\23\ Food Research & Action Center. (2022). Community
Eligibility: The Key to Hunger-Free Schools, School Year 2021-2022.
Available at <a href="https://frac.org/wp-content/uploads/cep-report-2022.pdf">https://frac.org/wp-content/uploads/cep-report-2022.pdf</a>
(p. 4).
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Rationale for Expanding CEP

As described above, school meals have the potential to positively
impact children's health and academic outcomes. Providing meals at no
cost can increase student participation and improve household finances
and household food security. Electing CEP reduces administrative burden
for schools, providing more time to focus on meal quality and other
aspects of administering the Programs. To date, only LEAs, groups of
schools and schools with ISPs of at least 40 percent have been able to
experience the benefits of CEP.
During the CEP phase-in period, USDA was required to set the ISP
threshold at 40 percent (42 U.S.C. 1759a(a)(1)(F)(viii)(I)). In the
early years of nationwide CEP availability, State agencies and LEAs
were concerned about the impact of CEP on NSLP and SBP participation
and school finances. As a practical response to support financial
viability, USDA established the CEP participation threshold at 40
percent.\24\ In response to the 2013 rule that proposed establishing
the 40 percent threshold, USDA received public comments that supported
making CEP available to all schools, instead of limiting CEP to schools
with ISPs of at least 40 percent. Despite supportive comments, USDA
maintained the 40 percent threshold in the final rule to support the
financial health of nonprofit school nutrition accounts. Now that CEP
has been available for almost a decade, States and schools are
generally more familiar and comfortable with how CEP works, mitigating
some of the concerns that may have prevented earlier CEP elections.
USDA has also published guidance and tools to help LEAs decide if CEP
is a viable option, including guidance developed collaboratively with
the U.S. Department of Education and the Federal Communications
Commission around Title I and E-Rate funding, respectively.\25\ To
assist LEAs with making sound financial decisions related to CEP
participation, the USDA created an online resource, the CEP Resource
Center, which provides extensive guidance and technical assistance to
State agencies and LEAs, including practical tools and best practices
to help LEAs estimate the Federal reimbursement under CEP.\26\ In
addition, USDA worked in cooperation with State agencies and anti-
hunger partners to share resources, success stories and best practices
for making CEP work at all ISP levels. These collective efforts have
positioned LEAs to make informed decisions about CEP participation.
Therefore, the concerns that contributed to USDA's decision to
establish the ISP threshold at 40 percent have been alleviated. LEAs
should now be well-situated to understand the implications of electing
CEP and, if they are able to manage CEP financially, should be able to
experience the benefits of CEP for their schools, students, and
families.
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\24\ As described earlier, LEAs with lower ISPs may need
reliable sources of non-Federal funding to support their nonprofit
school nutrition accounts, and to make the account whole if
operational costs exceed the Federal assistance provided.
\25\ Title I Guidance for CEP schools is available at: <a href="https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility">https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility</a>. E-Rate guidance for CEP schools is available
at: <a href="https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility">https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility</a>.
\26\ U.S. Department of Agriculture. Community Eligibility
Resource Center. Available at <a href="https://www.fns.usda.gov/cn/community-eligibility-provision">https://www.fns.usda.gov/cn/community-eligibility-provision</a>.
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In addition to giving eligible LEAs the choice to decide what is
best for their schools, many States, schools, and communities
experienced the benefits of healthy school meals for all during SYs
2020-2021 and 2021-2022 due to the COVID-19 pandemic. For these two
school years during the COVID-19 pandemic, USDA provided waivers
authorized under the Families First Coronavirus Response Act and the
Continuing Appropriations Act, 2021 and Other Extensions Act that
allowed schools across the country to offer free meals to all
students.\27\ By offering meals to all students at no cost during the
pandemic, many schools experienced the benefits associated with free
school meals for all, including increased student participation and
positive impacts on student health, well-being, and food and nutrition
security. Nationwide waivers permitting schools to offer free school
meals to all students via the Summer Food Service Program (SFSP) and
Seamless Summer Option (SSO) demonstrated the benefits of offering all
students free meals and, as a result, there is renewed interest in
CEP.\28\
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\27\ On March 18, 2020, H.R. 6201--Families First Coronavirus
Response Act, became Public Law Number 116-127. The bill gave USDA
authority to issue nationwide child nutrition waivers to ensure
access to meals through the Child Nutrition Programs as communities
responded to the COVID-19 pandemic. The bill also gave USDA
authority to waive school meal pattern requirements for the child
nutrition programs in response to a disruption to the food supply as
a result of the COVID-19 pandemic. More information on the bill is
available at: <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text/eh">https://www.congress.gov/bill/116th-congress/house-bill/6201/text/eh</a>.
\28\ States could opt-in to waivers that allowed schools to
offer no-cost meals to all students via the SFSP or SSO in SY 2020-
21, and via the SSO in SY 2021-22. For additional information, see
COVID-19 Child Nutrition Responses #56: Nationwide Waiver to Allow
Summer Food Service Program and Seamless Summer Option Operations
through December 2020 (available at: <a href="https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-56">https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-56</a>), COVID-19 Child Nutrition
Response #59: Nationwide Waiver to Allow Summer Food Service Program
and Seamless Summer Option Operations through School Year 2020-
2021--Extension (available at: <a href="https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-59">https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-59</a>), and COVID-19 Child Nutrition Response
#85: Nationwide Waiver to Allow the Seamless Summer Option through
School Year 2021-22 (available at: <a href="https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-85">https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-85</a>). A complete list of COVID-19-
related waivers issued by State is available at: <a href="https://www.fns.usda.gov/disaster/pandemic/covid-19/cn-waivers-flexibilities">https://www.fns.usda.gov/disaster/pandemic/covid-19/cn-waivers-flexibilities</a>.

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[[Page 17410]]

Census Bureau data show food insecurity surged during the COVID-19
pandemic.\29\ However, in 2021, food insecurity among households with
children dropped, likely due--at least in part--to the widespread
availability of no-cost meals available to children via schools
authorized by Congress during the COVID-19 pandemic. Despite this
decrease, five million children lived in food insecure households,
which have been shown to rely on meals served via schools for their
primary source of nutrition.<SUP>30 31</SUP> The COVID-19 pandemic
provided an unintended experiment that highlighted the critical role
that schools play in providing food and nutrition security to millions
of children.
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\29\ Brynne Keith-Jennings, Catlin Nchako, and Joseph Llobrera,
``Number of Families Struggling to Afford Food Rose Steeply in
Pandemic and Remains High, Especially Among Children and Households
of Color,'' CBPP, April 27, 2021, <a href="https://www.cbpp.org/research/food-assistance/number-of-families-struggling-to-afford-food-rose-steeply-in-pandemic-and">https://www.cbpp.org/research/food-assistance/number-of-families-struggling-to-afford-food-rose-steeply-in-pandemic-and</a>.
\30\ Food insecurity may have improved for households with
children in 2021 because of the expansion of Federal nutrition
assistance programs, such as widespread availability of no-cost
meals and other forms of assistance targeting households with
children, such as the expanded Child Tax Credit or Pandemic
Electronic Benefits Transfer (P-EBT) program. Household Food
Security in the United States in 2021, by Alisha Coleman-Jensen,
Matthew P. Rabbitt, Christian A. Gregory, and Anita Singh, ERS,
September 2022 (p. 9).
\31\ Smith, T.A. Do School Food Programs Improve Child Dietary
Quality? Am. J. Agric. Econ. 2016, 99, 339-356. Available at:
<a href="https://onlinelibrary.wiley.com/doi/full/10.1093/ajae/aaw091">https://onlinelibrary.wiley.com/doi/full/10.1093/ajae/aaw091</a>.
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During SY 2022-2023, schools returned to operating standard school
meals programs as the flexibilities that Congress provided to offer
free meals expired. This means that schools that were not participating
in a special provision, like CEP, were required to claim meals by
eligibility category (i.e., free, reduced price and paid) and charge
students for meals. However, a growing number of States are investing
in healthy school meals for all: most are maximizing LEAs' use of CEP
as a mechanism to offer no-cost meals to all students, and are pairing
CEP with State initiatives to expand access to free meals to all
students.\32\ Many States offering healthy school meals for all are
easing LEAs' financial concerns by ensuring that funding is available
to cover any gaps between operational costs and Federal assistance.\33\
This additional funding helps make CEP financially viable for schools.
Lowering the CEP minimum eligibility threshold would provide States and
LEAs with greater flexibility to combine CEP with State initiatives to
simplify Program administration, reduce burden, and offer meals to all
students at no charge.
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\32\ National Conference of State Legislatures. (2022). States
Step in as End of Free School Meal Waivers Looms. Available at
<a href="https://www.ncsl.org/research/human-services/states-step-in-as-end-of-free-school-meal-waivers-looms-magazine2022.aspx">https://www.ncsl.org/research/human-services/states-step-in-as-end-of-free-school-meal-waivers-looms-magazine2022.aspx</a>.
\33\ Schools must use non-Federal funding to cover food service
costs that exceed the Federal assistance provided. As an example, if
an LEA's ISP is 40, the LEA would claim 64 percent of meals at the
free rate (40 x 1.6 = 64) and 36 percent of meals at the paid rate.
If the cost of providing all meals at no cost is greater than the
Federal assistance provided, the LEA must contribute non-federal
funding to make up the difference.
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Why USDA Is Proposing a 25 Percent ISP Threshold

As previously discussed, USDA has the discretion to establish an
ISP threshold that is lower than 40 percent. USDA is proposing to
establish a 25 percent ISP threshold for LEAs, schools, or groups of
schools to elect CEP. This threshold would provide the opportunity for
more LEAs located in high poverty areas to elect CEP. The lower
threshold will allow these LEAs, especially those with non-Federal
funds available to support school meals, to consider CEP and its
numerous benefits.
To determine an appropriate threshold, USDA considered operational
factors, including characteristics of LEAs currently eligible and near
eligible to elect CEP, and analyzed the composition of the ISP and the
proportion of free and reduced price students at varying ISP levels.
Based on these analyses, at a 25 percent ISP, USDA estimates that at
least 45 percent of students would be eligible for free or reduced
price meals, if household income applications were collected. This 45
percent reflects both directly certified students and students eligible
via household income applications and could be higher if LEAs certify
more students for free or reduced price benefits via applications
versus direct certification.
A 25 percent CEP eligibility threshold also aligns operationally
with the minimum threshold for which severe need payments are provided
under the Child Nutrition Act to incentivize schools to participate in
the SBP. Severe need payments are provided to help schools that serve
high proportions of children from low-income households to start and
maintain school breakfast programs. Under CEP, a minimum ISP of 25
percent results in 40 percent of meals reimbursed at the free rate (25
x 1.6 = 40). Schools where at least 40 percent of the lunches served to
students in the second preceding school year were are free or reduced
price qualify as severe need schools and receive this additional
reimbursement (42 U.S.C. 1773(d); 7 CFR 220.9(d)). CEP and severe need
payments strive to benefit schools that serve high poverty areas. Under
the current ISP threshold of 40 percent, individually eligible CEP
schools receive qualify for the additional severe need payments.\34\
This would continue under the proposed 25 percent ISP threshold. These
schools with an ISP of 25 percent are already likely receiving severe
need payments based on USDA's analysis that schools with an ISP of 25
percent are estimated to have a free and reduced price percentage of at
least 45 percent. Aligning the CEP threshold with the severe need
payments threshold simplifies this determination and further supports
the SBP through CEP.\35\
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\34\ ``Individually eligible'' means a school's individual ISP
is 40 percent or higher.
\35\ More than 80 percent of total School Breakfast Program
breakfasts served receive severe need payments, based on FNS
Administrative data from the National Data Bank.
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In addition, under current statutory requirements, LEAs and schools
that are nearly eligible to elect CEP (i.e., schools with ISPs of at
least 30 percent, but less than 40 percent) must be annually notified
of their near eligibility (42 U.S.C. 1759a(a)(1)(F)(x)(II); 7 CFR
245.9(f)(5) and (f)(6)). This annual notification intends to prompt
nearly eligible LEAs and schools to consider CEP and whether it is
beneficial to take actions (e.g., increase direct certification
matching) to gain eligibility to elect CEP. A 25 percent threshold
increases options for LEAs and schools that are currently near
eligible, so they have more opportunity to consider electing CEP.
A 25 percent threshold allows CEP to benefit communities with high
proportions of children eligible for free or reduced price meals. For
schools with similar identified student populations, especially those
with non-Federal funds available to support school meals, CEP may be
financially viable and offer significant student health, operational,
and administrative benefits. Non-CEP schools that serve high
proportions of low-income children are expending already-constrained
resources to collect and process school meal applications to ensure
low-income students have access to free or reduced price meals.
Lowering the CEP threshold to 25 percent provides an opportunity for
more LEAs with high proportions of low-income students to capitalize on
CEP's

[[Page 17411]]

administrative and operational benefits, while maintaining CEP's intent
to provide all students in high poverty areas with healthy, free meals.

What does a lower CEP threshold mean for schools? Considerations for
Electing CEP

Participating in CEP is a voluntary decision made by LEAs based on
their unique student populations. LEA decisionmakers must consider
student health, educational, administrative, and financial factors when
deciding to elect CEP. USDA's CEP studies found that financial concerns
were the most significant barrier to CEP participation for LEAs with
lower ISPs.\36\
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\36\ USDA's Community Eligibility Provision Characteristics
Study, School Year 2016-2017 available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a> defined LEAs with
``lower ISPs'' as LEAs with ISPs at the lower end of CEP
eligibility: between 40 and 50 percent. USDA assumes that, if the
eligibility threshold was lowered to 25 percent, eligible LEAs with
lower ISPs (i.e., between 25 and 40 percent) would have similar
financial concerns.
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Making CEP work at a lower ISP requires careful consideration. A
school participating with a 25 percent ISP would receive the Federal
free reimbursement for 40 percent of student meals served (25 x 1.6 =
40); the remaining 60 percent of student meals served would be
reimbursed at the lower, paid rate. Eligible schools must assess their
ability to cover operating costs with Federal assistance and, if
necessary, other non-Federal funds. Schools with lower ISPs are
strongly encouraged to explore CEP with prudence: for example, conduct
a financial analysis to determine if meals can be offered at no charge
to all students while, considering the loss of student payments as a
revenue stream, maintaining the financial health of the school
nutrition department's budget. In addition, conducting robust data
matching is critical to support CEP implementation. To optimize CEP's
reach and impact, States and school districts must work together to
ensure that data matching systems find all identified students, so a
school's ISP accurately reflects its student population. Lastly, LEAs
and schools should consider how any data loss from school meal
applications may impact other funding levels outside of the school meal
programs. As previously stated, USDA has worked closely with the U.S.
Department of Education and the Federal Communications Commission
around Title I and E-Rate funding, respectively.\37\ However, there may
be additional impacts that LEAs and schools need to consider.
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\37\ Title I Guidance for CEP schools is available at: <a href="https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility">https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility</a>. E-Rate guidance for CEP schools is available
at: <a href="https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility">https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility</a>.
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If CEP is financially viable, LEAs with lower ISPs should strongly
consider electing CEP to experience the administrative, operational,
and health benefits it confers to students, families, schools, and
school nutrition departments.

Conclusion

This rulemaking proposes to lower the CEP eligibility threshold
from 40 percent to 25 percent, and make related, conforming changes to
the CEP regulatory text at 7 CFR 245.9(f). Electing CEP is a LEA-level
decision, not a requirement, so local schools and communities have
discretion to decide if electing CEP is beneficial. Through this
proposed action, USDA aims to expand CEP's nutritional, operational,
and administrative benefits to more schools serving low-income students
in high poverty areas, which has the potential to positively impact
students, low-income families, schools, and school nutrition
departments. In addition, a lower threshold would support the growing
number of States that are choosing to invest their own funds to provide
free school meals to all students, through maximizing LEAs' use of CEP
in combination with State-specific initiatives.

Proposed Regulatory Changes

Minimum ISP

Current Requirement
Participating in CEP is a voluntary decision made by LEAs based on
their unique student populations. To be eligible for CEP under current
regulations at 7 CFR 245.9(f), an LEA, group of schools, or school
must:
<bullet> Ensure that at least 40 percent of enrolled students are
identified students;
<bullet> Participate in both the NSLP and SBP; and
<bullet> Offer lunches and breakfasts to all enrolled students at
no charge.
Section 11(a)(1)(F)(iii) of the NSLA and program regulations at 7
CFR 245.9(f)(3)(i) require the ISP to be established using the number
of identified students and the number of total enrolled students as of
April 1 of the prior school year. Through CEP's grouping mechanism,\38\
LEAs have discretion to elect CEP at schools with an ISP lower than 40
percent as long as the group's aggregate ISP meets the 40 percent
threshold. The claiming percentage established for an LEA, group of
schools, or an individual school is valid for a period of up to four
school years. If the ISP increases during the 4-year cycle, a new cycle
can be started using a new ISP at any time.
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\38\ LEAs may ``group'' schools within an LEA to participate in
CEP as a single entity with a shared ISP. The ISP for a group of
schools is calculated by dividing the sum of the identified students
for the entire group of schools by the sum of the total student
enrollment for the entire group of schools.
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Proposed Change
This proposed rule would amend 7 CFR 245.9(f)(3)(i) to require a
LEA, group of schools, or school to have an ISP of at least 25 percent,
as of April 1 of the school year prior to participating in CEP.
Individual schools participating in CEP as part of a group would be
permitted to have an ISP lower than 25 percent, provided that the
group's aggregate ISP is at least 25 percent.

Grace Year

Current Requirement
Section 11(a)(1)(F)(v)(I) of the NSLA requires schools and LEAs in
the fourth year of a 4-year CEP cycle interested in continuing
participation in CEP to calculate a new ISP reflective of April 1 of
the cycle's fourth year to: (1) elect a new 4-year CEP cycle with a new
ISP; and (2) meet the following school year's publication and
notification requirements as outlined at 7 CFR 245.9(f)(5). If an LEA
determines that a new 4-year cycle may not be immediately elected
because its ISP is less than the required threshold, but no more than
10 percentage points lower, then the LEA may elect to participate in
CEP for an additional (fifth) year, or ``grace year'' (Section
11(a)(1)(F)(v) of the NSLA and 7 CFR 245.9(f)(4)(ix)). This additional
year gives CEP LEAs an opportunity to increase their ISPs (e.g., via
improved direct certification) to begin a new 4-year CEP cycle. If the
ISP as of April 1 of the grace year does not meet the minimum ISP
requirement, the LEA must return to standard counting and claiming, or
enroll in another special provision option for the following school
year. The Federal reimbursement in the grace year is based on the ISP
as of April 1 in the fourth year of the CEP cycle multiplied by 1.6.
Proposed Change
This proposed rule would amend 7 CFR 245.9(f)(4)(ix), the
regulations governing grace years, to conform with the proposed 25
percent ISP threshold in 7 CFR 245.9(f)(3), allowing an LEA, group of
schools, or school with an ISP of less than 25 percent but equal to or
greater than 15 percent (as of April 1 of

[[Page 17412]]

the fourth year of a CEP cycle) to continue using CEP for a grace year.
This rulemaking proposes only to change the numbers (e.g., 40 percent
to 25 percent, 30 percent to 15 percent) consistent with the proposed
lower threshold; no additional substantive changes are proposed by this
rulemaking.

Identification and Notification of Potential CEP LEAs and Schools

Current Requirement
Section 11(a)(1)(F)(x)(II) of the NSLA, as implemented by 7 CFR
245.9(f)(5) and (6), requires that States publish, annually by May 1,
lists of LEAs and schools eligible and nearly eligible to elect CEP for
the next school year. Eligible schools have an ISP that meets the
required minimum threshold--currently 40 percent--and nearly eligible
schools have an ISP no more than 10 percentage points lower than the
minimum required threshold.
To meet this requirement, States must notify LEAs of district wide
eligibility, and LEAs must notify State agencies of school-level
eligibility by April 15 each year. Requiring this exchange of
information by April 15 allows States to meet the May 1 deadline, by
which States have to publish the lists of eligible and nearly eligible
schools on their public websites. States and LEAs may share the
required information prior to the April 15 deadline.
Proposed Change
This rulemaking proposes the following changes to the
identification requirements to conform with the proposed 25 percent ISP
threshold in 7 CFR 245.9(f)(3):
<bullet> At 7 CFR 245.9(f)(5)(i), which requires LEAs to submit to
the State agency no later than April 15 of each school year a list of
schools that are eligible to elect CEP, the eligibility threshold of
``at least 40 percent'' would change to a threshold of ``at least 25
percent'';
<bullet> At 7 CFR 245.9(f)(5)(ii), which requires LEAs to submit to
the State agency no later than April 15 of each school year a list of
schools that are nearly eligible to elect CEP, the eligibility
threshold of ``less than 40 percent but greater than or equal to 30
percent'' would change to a threshold of ``less than 25 percent but
greater than or equal to 15 percent''; and
<bullet> At 7 CFR 245.9(f)(5)(iii), which requires LEAs to submit
to the State agency no later than April 15 of each school year a list
of schools currently in year 4 of the CEP cycle and eligible for a
grace year, the eligibility threshold of ``less than 40 percent but
greater than or equal to 30 percent'' would change to a threshold of
``less than 25 percent but greater than or equal to 15 percent.''
Similarly, this rulemaking proposes the following conforming
changes to the State agency notification requirements:
<bullet> At 7 CFR 245.9(f)(6)(i), which requires the State agency
to notify LEAs that are eligible to participate in CEP district wide of
their eligibility to elect CEP in the subsequent school year, the
estimated cash assistance the LEA would receive, and the State-specific
procedures to participate in CEP, the eligibility threshold of ``at
least 40 percent'' would change to a threshold of ``at least 25
percent.''
<bullet> At 7 CFR 245.9(f)(6)(ii), which requires the State agency
to notify LEAs that they may be eligible to participate in CEP in the
subsequent year if they increase their ISP to meet the eligibility
requirements as of April 1, the eligibility threshold of ``less than 40
percent district wide but greater than or equal to 30 percent'' would
change to a threshold of ``less than 25 percent district wide but
greater than or equal to 15 percent''; and
<bullet> At 7 CFR 245.9(f)(6)(iv), which requires the State agency
to notify LEAs currently in year 4 of their grace year eligibility, the
eligibility threshold of ``less than 40 percent but greater than or
equal to 30 percent'' would change to a threshold of ``less than 25
percent but greater than or equal to 15 percent.''
This rulemaking proposes only to change the numbers (e.g., 40
percent to 25 percent, 30 percent to 15 percent) consistent with the
proposed lower threshold; no additional substantive changes are
proposed by this rulemaking.

Public Notification Requirements

Current Requirement
Section 11(a)(1)(F)(x)(III) of the NSLA, as implemented by 7 CFR
245.9(f)(7), requires, annually by May 1, State agencies to submit to
USDA lists of LEAs and schools eligible to elect CEP. State agencies
are required to publish lists of eligible and nearly eligible LEAs and
schools on their websites in a readily accessible format. Eligible
schools have an ISP that meets the minimum required threshold, and
nearly eligible schools have an ISP no more than 10 percentage points
lower than the minimum required threshold.
Proposed Change
This proposed rule would amend the following public notification
requirements to conform with the proposed 25 percent ISP threshold in 7
CFR 245.9(f)(3):
<bullet> At 7 CFR 245.9(f)(7)(i), which requires the State agency
to make readily accessible on its website eligible and near eligible
schools and schools currently in year 4 of the CEP cycle, the
eligibility threshold of ``at least 40 percent'' would change to ``at
least 25 percent.'' In the same paragraph, ``less than 40 percent but
greater than or equal to 30 percent'' would change to a threshold of
``less than 25 percent but greater than or equal to 15 percent.''
<bullet> At 7 CFR 245.9(f)(7)(ii), which requires the State agency
to make readily accessible on its website eligible and near eligible
LEAs and LEAs currently in year 4, the eligibility threshold of ``at
least 40 percent district wide'' would change to a threshold of ``at
least 25 percent district wide,'' and the eligibility threshold of
``less than 40 percent district wide but greater than or equal to 30
percent'' would change to a threshold of ``less than 25 percent
district wide but greater than or equal to 15 percent.''
This rulemaking proposes only to change the numbers (e.g., 40
percent to 25 percent, 30 percent to 15 percent) consistent with the
proposed lower threshold; no additional substantive changes are
proposed by this rulemaking.

Public Comments Requested

USDA solicits public comments on the proposed change to lower the
CEP minimum ISP participation threshold to 25 percent. USDA also seeks
public comments on the following questions:
(1) To what extent are LEAs that would be newly eligible under this
proposed rule expected to elect CEP?
(2) What sources of non-Federal funds are available to support LEAs
electing CEP at lower ISPs?
(3) In a typical year, how much time do LEAs spend on
administrative duties that may be eliminated by electing CEP (e.g.,
processing applications, managing unpaid meal charges, conducting
verification)? What administrative activities are included in that
estimate?
(4) To what extent are administrative cost savings a factor in
determining whether to elect CEP?
(5) How do State policies related to offering free school meals for
all students influence the likelihood of CEP election among newly
eligible LEAs?

Procedural Matters

Executive Orders 12866 and 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

[[Page 17413]]

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 proposed rule has been
determined to be not significant and was not reviewed by the Office of
Management and Budget (OMB) in conformance with Executive Order 12866.

Regulatory Impact Analysis

This proposed rule has been designated as not significant by the
Office of Management and Budget. Therefore, no Regulatory Impact
Analysis is required.

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 has
been certified that this proposed rule would not have a significant
impact on a substantial number of small entities. The provisions of
this proposed rule are intended to reflect the operational needs of
LEAs of all sizes. No specific additional burdens are placed on small
LEAs seeking to operate CEP. USDA's 2022 CEP Characteristics Study
found that 36 percent of LEAs participating in CEP in SY 2016-17 were
single-school LEAs; 32 percent of participating LEAs were in rural
areas; and 83 percent served fewer than 5,000 students.\39\ For smaller
LEAs, the decision to elect CEP may be a simpler process and/or involve
gaining approvals from fewer governing bodies. Additionally, CEP is an
optional provision, and there is no requirement for LEAs to
participate.
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\39\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at <a href="https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17">https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17</a>.
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Currently, many small LEAs participate in CEP; in SY 2016-17, 1,939
of the 4,263 school districts (45 percent) electing CEP had enrollments
of 999 or less.\40\
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\40\ Ibid.
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Unfunded Mandates Reform Act

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA)
established 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 UMRA, USDA 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 $146 million or more (when adjusted for
inflation; GDP deflator source: Table 1.1.9 at <a href="https://www.bea.gov/iTable">https://www.bea.gov/iTable</a>) in any one year. When such a statement is needed for a rule,
section 205 of UMRA generally requires USDA 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 proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of URMA) for State, local and Tribal
governments, or the private sector, of $146 million or more in any one
year. Therefore, this proposed rule is not subject to the requirements
of sections 202 and 205 of UMRA.

Executive Order 12372

The NSLP and SBP are assigned Assistance Listing Numbers--NSLP
(10.555) and SBP (10.553)--and are subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials (see 2 CFR chapter IV).\41\ Since the child nutrition
programs are State-administered, USDA's FNS Regional Offices have
formal and informal discussions with State and local officials,
including representatives of Indian Tribal Organizations, on an ongoing
basis regarding program requirements and operations. This provides USDA
with the opportunity to receive regular input from program
administrators and contributes to the development of feasible program
requirements.
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\41\ Assistance listings are detailed public descriptions of
federal programs that provide grants, loans, scholarships,
insurance, and other types of assistance awards. More information is
available at: <a href="https://sam.gov/content/home">https://sam.gov/content/home</a>.
---------------------------------------------------------------------------

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.
The Department has determined that this proposed rule does not have
federalism implications. Electing CEP is a local decision, not a
Federal mandate, and lowering the CEP eligibility threshold from 40
percent to 25 percent does not limit State or local policymaking
discretion. Furthermore, this proposed rule does not impose substantial
or direct compliance costs on State and local governments. Therefore,
under section 6(b) of the Executive Order, a Federalism summary impact
statement is not required.

Executive Order 12988, Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed 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. However, FNS does not expect significant
inconsistencies between this proposed rule and existing State or local
regulations regarding the provision of school food service operations
under CEP. This proposed rule would permit schools to elect CEP if
their ISP is greater than or equal to 25 percent. Per statutory
requirements outlined in the NSLA, State agencies operating the Federal
school meal programs are unable to bar an eligible LEA from CEP
participation. Additionally, States may not set an eligibility
threshold lower than an ISP of 25 percent for participation in CEP.
This proposed rule is not intended to have retroactive effect. Prior to
any judicial challenge to the provisions of this proposed rule or the
application of its provisions, all applicable administrative procedures
must be exhausted.

Civil Rights Impact Analysis

FNS has reviewed the proposed rule, in accordance with Departmental
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify and
address any major civil rights impacts the proposed rule might have on
participants on the basis of age, race, color, national origin, sex,
and disability. The FNS Civil Rights Division finds that the current
mitigation and outreach strategies outlined in the regulations and this
Civil Rights Impact Analysis provide ample consideration to
participants' ability to participate in the NSLP and SBP. The
promulgation of this proposed rule would expand access to no-cost meals
for all enrolled students at participating CEP schools by lowering

[[Page 17414]]

the minimum participation threshold. As previously outlined, the
proposed rule is likely to impact the growing number of minority
students and families attending public schools that face a greater risk
of food insecurity and health disparities by providing sustained
nutritious food and reducing families' paperwork burdens.\42\ \43\ The
changes implemented by this proposed rule is likely to impact
participating LEAs and SFAs by providing greater flexibility to offer
no-cost meals to students which would further support eliminating
unpaid meal debt, minimizing stigma, streamlining meal service
operations, and reducing paperwork for school nutrition staff.
---------------------------------------------------------------------------

\42\ U.S. Department of Education's National Center for
Education Statistics. (2022). Racial/Ethnic Enrollment in Public
Schools. Available at: <a href="https://nces.ed.gov/programs/coe/indicator/cge/racial-ethnic-enrollment">https://nces.ed.gov/programs/coe/indicator/cge/racial-ethnic-enrollment</a>.
\43\ Leveraging the White House Conference to Promote and
Elevate Nutrition Security: The Role of the USDA Food and Nutrition
Service (2022). Available at: <a href="https://www.usda.gov/sites/default/files/documents/wh-2022-nutrition-conference-fns-role.pdf">https://www.usda.gov/sites/default/files/documents/wh-2022-nutrition-conference-fns-role.pdf</a>. (p. 7).
---------------------------------------------------------------------------

Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments

Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes 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. FNS provides regularly
scheduled consultation sessions as a venue for collaborative
conversations with Tribal officials or their designees. This proposed
rule will be discussed during the next consultation session, planned
for Spring 2023. FNS is unaware of any current Tribal laws that could
be in conflict with the final rule.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; 5 CFR
1320) requires that the Office of Management and Budget (OMB) approve
all collection of information requirements by a Federal agency before
they can be implemented. Respondents are not required to respond to any
collection of information unless it displays a current, valid OMB
Control Number. This rulemaking proposes to expand access to the
Community Eligibility Provision (CEP) by lowering the minimum ISP
participation threshold from 40 percent to 25 percent, which would give
States and schools greater flexibility to choose to invest non-Federal
funds to offer no-cost meals to all enrolled students. As a result,
more students, families, and schools would have an opportunity to
experience the benefits of CEP, including access to meals at no cost,
eliminating unpaid meal charges, minimizing stigma, reducing paperwork
for school nutrition staff and families, and streamlining meal service
operations.
In accordance with the Paperwork Reduction Act of 1995, this
proposed rule would revise existing information collection
requirements, which are subject to review and approval by OMB. These
existing requirements are currently approved under OMB Control Number
0584-0026, 7 CFR part 245--Determining Eligibility for Free & Reduced
Price Meals and Free Milk in Schools, expiration date July 31, 2023.
Revisions to the currently approved information collection requirements
will result in a decrease in burden on State and local program
operators as well as participating households. FNS is submitting for
public comment the changes in the information collection burden that
would result from this proposed rule. Because the approval for OMB
Control Number 0584-0026 expires on July 31, 2023, to ensure that the
review of this proposed rule does not interfere with this renewal, FNS
is requesting a new OMB Control Number for the existing information
requirements which are impacted by this proposed rule. The proposals
outlined in this rulemaking will therefore initially be shown as
increases to the information collection inventory. After OMB has
approved the information collection requirements submitted in
conjunction with the final rule and after the renewal is completed, FNS
will merge these requirements and their burden into OMB Control Number
0584-0026. At this point, the decrease in burden noted above will be
fully captured in the burden for the collection.
Comments on this proposed rule and changes in the information
collection burden must be received by May 8, 2023.
Comments may be sent to: School Meals Policy Division, Food and
Nutrition Service, P.O. Box 9233, Reston, VA 20195. Comments will also
be accepted through the Federal eRulemaking Portal. Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and follow the online instructions for submitting
comments electronically.
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on those who
are to respond, including use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
All responses to this document will be summarized and included in
the request for OMB approval. All comments will also become a matter of
public record.
Title: Community Eligibility Provision: Increasing Options for
Schools.
Form Number: None.
OMB Control Number: 0584-NEW.
Expiration Date: Not Yet Determined.
Type of Request: New Collection.
Abstract: This is a new information collection that revises the
existing information collection request approved under OMB Control
Number 0584-0026. Below is a summary of the changes in the rule and the
accompanying reporting and recordkeeping requirements that will impact
the burden that program requirements have on State administering
agencies, local education agencies (LEAs), and participating
households.
Participating in the CEP is a voluntary decision made by local
school districts. To be eligible for CEP under current program
regulations, an LEA, group of schools, or school must ensure that at
least 40 percent of enrolled students are identified students,
participate in both the National School Lunch Program and the School
Breakfast Program, and serve lunches and breakfasts to all enrolled
students at no charge.
Identified students are certified for free school meals without
submitting a household application, such as those directly certified
through the Supplemental Nutrition Assistance Program (SNAP). This
proposed rule will expand access to CEP by lowering the ISP. This will
provide more schools with an additional option for offering no-cost
meals to students without requiring households to submit applications
for free or reduced price meals.
This proposed rule would amend 7 CFR 245.9(f)(3)(i) to require a
LEA,

[[Page 17415]]

group of schools, or school to have an ISP of at least 25 percent, as
of April 1 of the school year prior to participating in CEP. Individual
schools participating in CEP as part of a group would be permitted to
have an ISP lower than 25 percent, provided that the group's aggregate
ISP is at least 25 percent.

Reporting

State Agencies

The changes proposed in this rulemaking will impact the existing
reporting requirement currently approved under OMB Control Number 0584-
0026 and found at 7 CFR 245.9(f)(6) that State agencies must notify
LEAs of their CEP status. USDA expects that the number of LEAs that
must be notified will increase by 4,628 based on the proposed changes.
USDA estimates the 54 State agency respondents will be required to
notify approximately 86 additional LEAs each year, and that it takes
approximately three minutes (.050 hours) to complete this reporting
requirement for each record. The proposed reporting requirement adds a
total of 231 annual burden hours and 4,628 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that an additional 231 hours
and 4,628 responses will be added to the collection.

LEAs

The changes proposed in this rulemaking will impact the existing
reporting requirements currently approved under OMB Control Number
0584-0026 for LEAs.
USDA estimates that 337 additional LEAs will elect CEP and will be
required to fulfill the reporting requirement at 7 CFR 245.9(f)(4)(i)
that LEAs submit to the State agency documentation of an acceptable ISP
of the LEA/school electing the provision currently approved under OMB
Control Number 0584-0026. USDA estimates that the 337 LEA respondents
will be required to submit ISP data when electing CEP each year and
that it takes approximately 15 minutes (.25 hours) to complete this
reporting requirement for each record. The proposed reporting
requirement adds a total of 84 annual burden hours and 337 responses
into the new information collection request. Once this new collection
is merged into OMB Control Number 0584-0026, USDA expects that an
additional 84 hours and 337 responses will be added to the collection.
USDA expects that as a result of the proposed changes, more LEAs
electing CEP will be electing CEP for all schools in the LEA, or
district wide. This will result in a decrease in the number of LEAs
required to process free and reduced price meal applications and
conduct verification. USDA estimates 337 fewer LEAs than currently
approved under OMB Control Number 0584-0026 will be required to fulfill
the requirement at 7 CFR 245.6(c)(6)(i) that LEAs notify households of
approval of meal benefit applications. USDA estimates that 15,003 LEA
respondents will be required to notify 219 households of approval of
meal benefit applications each year and that it takes approximately one
minute (.02 hours) to complete this reporting requirement for each
record. The proposed reporting requirement adds a total of 65,713
annual burden hours and 3,285,657 responses into the new information
collection request. Once this new collection is merged into OMB Control
Number 0584-0026, USDA expects that there will be an approximate
decrease of 1,700 hours and 85,018 responses.
USDA estimates 337 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6(c)(6)(ii) that LEAs notify households in writing that
children are eligible for free meals based on direct certification and
that no application is required. USDA estimates that 15,003 LEA
respondents will be required to notify 332 households in writing that
children are eligible for free meals based on direct certification and
that no application is required each year and that it takes
approximately one minute (.02 hours) to complete this reporting
requirement for each record. The proposed reporting requirement adds a
total of 99,620 annual burden hours and 4,980,996 responses into the
new information collection request. Once this new collection is merged
into OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 2,296 hours and 114,780 responses.
USDA estimates 337 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6 (c)(7) that LEAs provide written notice to each household
of denied free or reduced price benefits. USDA estimates that 15,003
LEA respondents will be required to provide written notice to
approximately 12 households denied free or reduced price benefits each
year and that it takes approximately one minute (.02 hours) to complete
this reporting requirement for each record. The proposed reporting
requirement adds a total of 3,469 annual burden hours and 173,435
responses into the new information collection request. Once this new
collection is merged into OMB Control Number 0584-0026, USDA expects
that there will be an approximate decrease of 79 hours and 3,969
responses.
USDA estimates 337 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6a(f) that LEAs notify households of selection for
verification. USDA estimates that 15,003 LEA respondents will be
required to notify approximately seven households of selection for
verification and that it takes approximately 15 minutes (.25 hours) to
complete this reporting requirement for each record. The proposed
reporting requirement adds a total of 24,380 annual burden hours and
97,520 responses into the new information collection request. Once this
new collection is merged into OMB Control Number 0584-0026, USDA
expects that there will be an approximate decrease of 712 hours and
2,849 responses.
USDA estimates 337 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6a(j) that LEAs provide households that failed to confirm
eligibility with 10 days' notice for receiving a reduction or
termination of free or reduced price meal benefit. USDA estimates that
15,003 LEA respondents will be required to provide approximately three
households that failed to confirm eligibility with 10 days' notice for
receiving a reduction or termination of free or reduced price meal
benefits and that it takes approximately six minutes (0.1 hours) to
complete this reporting requirement for each record. The proposed
reporting requirement adds a total of 3,976 annual burden hours and
39,798 responses into the new information collection request. Once this
new collection is merged into OMB Control Number 0584-0026, USDA
expects that there will be an approximate decrease of 95 hours and 949
responses.
USDA estimates that 4,628 more LEAs than currently approved under
OMB Control Number 0584-0026 will fulfill the requirement at 7 CFR
245.9(f)(5) that LEAs must submit to the State agency for publication a
list of eligible and potentially eligible schools and their eligibility
status; unless otherwise exempted by State agency. USDA estimates that
4,628 LEA respondents will be required to submit to the State agency
for publication a list of eligible and potentially eligible schools and
their eligibility status each year and that

[[Page 17416]]

it takes approximately five minutes (.08 hours) to complete this
reporting requirement for each record. The proposed reporting
requirement adds a total of 370 annual burden hours and 4,628 responses
into the new information collection request. Once this new collection
is merged into OMB Control Number 0584-0026, USDA expects that 370
hours and 4,628 responses will be added to the collection. USDA
estimates that 337 more LEAs than currently approved under OMB Control
Number 0584-0026 will fulfill the requirement at 7 CFR 245.9(g) that
LEAs amend free and reduced policy statements and certify that schools
meet the eligibility criteria when electing CEP and that it takes
approximately six minutes (.1 hours) to complete this reporting
requirement for each record. The proposed reporting requirement adds a
total of 34 annual burden hours and 337 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that an additional 34 hours
and 337 responses will be added to the collection.

Households

Since households attending schools participating in CEP are not
required to submit applications, USDA estimates that, with the proposed
changes, 77,947 fewer households than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
245.6(a)(1) that households complete an application form for free or
reduced price meal benefits. USDA estimates that 3,470,131 household
respondents will be required to submit applications and that it takes
approximately seven minutes (.110 hours) to complete this reporting
requirement for each record. The proposed reporting requirement adds a
total of 381,714 annual burden hours and 3,470,131 responses into the
new information collection request. Once this new collection is merged
into OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 8,574 hours and 77,947 responses.
Households attending schools participating in CEP are also not
required to assemble written evidence for verification of eligibility
for free and reduced price meals and send to LEA. USDA estimates that
2,205 fewer households than currently approved under OMB Control Number
0584-0026 will be required to fulfill the requirement at 245.6a
(a)(7)(i) that households assemble written evidence for verification of
eligibility for free and reduced price meals and send to LEA. USDA
estimates that 98,164 household respondents will be required to
assemble written evidence for verification of eligibility for free and
reduced price meals and that it takes approximately 30 minutes (.5
hours) to complete this reporting requirement for each record. The
proposed reporting requirement adds a total of 49,082 annual burden
hours and 98,164 responses into the new information collection request.
Once this new collection is merged into OMB Control Number 0584-0026,
USDA expects that there will be an approximate decrease of 1,103 hours
and 2,205 responses.

Recordkeeping

State Agencies

The changes proposed in this rulemaking will impact the existing
recordkeeping requirement currently approved under OMB Control Number
0584-0026 and found at 7 CFR 245.9(f)(4)(ii) that State agencies must
review and confirm LEAs' eligibility to participate in CEP. USDA
expects that State agencies will need to review an additional 337 LEAs
with schools newly electing CEP based on the changes proposed in this
rulemaking. USDA estimates that 54 State Agency respondents will be
required to review and confirm LEAs' eligibility to participate in
Provisions 1, 2, or 3 or the CEP for approximately 337 LEAs electing
CEP each year and that it takes approximately five minutes (.08 hours)
to complete this recordkeeping requirement for each record. The
proposed recordkeeping requirement adds a total of 27 annual burden
hours and 337 responses into the new information collection request.
Once this new collection is merged into OMB Control Number 0584-0026,
USDA expects that an additional 27 hours and 337 responses will be
added to the collection.

LEAs

The changes proposed in this rulemaking will impact the existing
reporting requirements currently approved under OMB Control Number
0584-0026 for LEAs. USDA expects that as a result of the proposed
changes, more LEAs electing CEP will be electing CEP for all schools in
the LEA, or district wide. This will result in a decrease in the number
of LEAs required to maintain documentation substantiating eligibility
determinations. USDA estimates 337 fewer LEAs than currently approved
under OMB Control Number 0584-0026 will be required to fulfill the
requirement at 7 CFR 245.6(e) to maintain documentation substantiating
eligibility determinations for three years after the end of the fiscal
year to which they pertain. USDA estimates that 15,003 LEA respondents
will be required to maintain documentation related to substantiating
eligibility determinations for three years after the end of the fiscal
year to which they pertain and that it takes approximately 5 minutes
(.08 hours) to complete this recordkeeping requirement for each record.
The proposed recordkeeping requirement adds a total of 1,200 annual
burden hours and 15,003 responses into the new information collection
request. Once this new collection is merged into OMB Control Number
0584-0026, USDA expects that there will be an approximate decrease of
27 hours and 337 responses.
USDA expects that as a result of the proposed changes, 337 more
LEAs than currently approved under OMB Control Number 0584-0026 will
elect CEP and be required to fulfill the recordkeeping requirement at 7
CFR 245.9(h)(3) that LEAs maintain documentation related to the
methodology used to calculate the ISP and determine eligibility for the
CEP. USDA estimates that 337 LEA respondents will be required to
maintain documentation related to methodology used to calculate the ISP
and determine eligibility and that it takes approximately 55 minutes
(.910 hours) to complete this recordkeeping requirement for each
record. The proposed recordkeeping requirement adds a total of 307
annual burden hours and 337 responses into the new information
collection request. Once this new collection is merged into OMB Control
Number 0584-0026, USDA expects that an additional 307 hours and 337
responses will be added to the collection.
USDA does not expect lowering the threshold to participate in CEP
to an ISP of 25% to impact the approved public notification
requirements at 7 CFR 245.9(f)(7). While this proposed rule will
increase the number of schools eligible for the CEP, the burden for
States to notify LEAs of their community eligibility status due to the
increased number of eligible schools is already captured above in the
reporting requirements at 7 CFR 245.9(f)(6). Making these lists
publicly available will not take any additional time than is currently
approved under OMB Control Number 0584-0026 and accordingly is not
addressed in this information collection.
As a result of the proposals outlined in this rulemaking, FNS
estimates that this new information collection will

[[Page 17417]]

have 3,485,188 respondents, 12,171,267 responses, and 630,207 burden
hours. The average burden per response and the annual burden hours are
explained below and summarized in the charts which follow. Once the
information collection request for the final rule is approved and the
requirements and associated burden for this new information collection
are merged into the existing collection, FNS estimates that the burden
for OMB Control Number 0584-0026 will decrease by 277,450 responses and
13,534 burden hours.
Reporting
Respondents (Affected Public): Individual/Households; and State,
Local and Tribal Government. The respondent groups identified include
households, State Agencies and LEAs.
Estimated Number of Respondents: 3,485,188.
Estimated Number of Responses per Respondent: 3.49.
Estimated Total Annual Responses: 12,155,590.
Estimated Time per Response: 0.052 (approximately 3 minutes).
Estimate Total Annual Burden on Respondents: 628,673 hours.
Recordkeeping
Respondents (Affected Public): State, Local and Tribal Government.
The respondent groups identified include State Agencies and LEAs.
Estimated Number of Respondents: 15,057.
Estimated Number of Responses per Respondent: 1.04.
Estimated Total Annual Responses: 15,677.
Estimated Time per Response: .098 (approximately 6 minutes).
Estimate Total Annual Burden on Respondents: 1,534 hours.

Reporting
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
total future Estimated
annual burden future
burden Hours hours for change in
Estimated Frequency of Total Average burden hours for currently OMB #0584- burden
Description of activities Regulation citation number of response annual hours per OMB #0584- approved 0026 after hours for
respondents responses response 00xx due to under OMB the merge OMB #0584-
proposed #0584-0026 with OMB 0026 due to
rulemaking #0584-00xx rulemaking

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
State agency to notify LEAs of their 245.9(f)(6)........................ 54 85.70 4,628 0.050 231 436 667 231
community eligibility status as applicable.
-------------------------------------------------------------------------------------------------------------
Total State Agency Reporting............. ................................... 54 ............ 4,628 .............. 231 436 667 231
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LEAs submit to State agency documentation of 245.9(f)(4)(i)..................... 337 1.00 337 0.250 84 125 209 84
acceptable ISP of LEA/school electing the
provision.
LEAs notify households of approval of meal 245.6(c)(6)(i)..................... 15,003 219.00 3,285,657 0.020 65,713 67,414 65,713 -1,701
benefit applications.
LEAs must notify households in writing that 245.6(c)(6)(ii).................... 15,003 332.00 4,980,996 0.020 99,620 101,916 99,620 -2,296
children are eligible for free meals based
on direct certification and that no
application is required.
LEAs provide written notice to each household 245.6(c)(7)........................ 15,003 11.56 173,435 0.020 3,469 3,548 3,469 -79
of denied free or reduced price benefits.
LEAs notify households of selection for 245.6a(f).......................... 15,003 6.50 97,520 0.250 24,380 25,092 24,380 -712
verification.
LEAs must provide households that failed to 245.6a(j).......................... 15,003 2.65 39,758 0.100 3,976 4,071 3,976 -95
confirm eligibility with 10 days' notice for
receiving a reduction or termination of free
or reduced price meal benefits.

[[Page 17418]]

LEA to submit to the State agency for 245.9(f)(5)........................ 4,628 1.00 4,628 0.080 370 698 1,068 370
publication a list of eligible and
potentially eligible schools and their
eligibility status; unless otherwise
exempted by State agency.
LEAs to amend free and reduced policy 245.9(g)........................... 337 1.00 337 0.100 34 50 84 34
statement and certify that schools meet
eligibility criteria.
-------------------------------------------------------------------------------------------------------------
Total Local Education Agency Reporting... ................................... 15,003 ............ 8,582,667 .............. 197,646 202,914 198,519 -4,396
-------------------------------------------------------------------------------------------------------------
Total State and Local Agency Level Total. ................................... 15,057 ............ 8,587,295 .............. 197,877 203,350 199,186 -4,165
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Households complete application form for free 245.6(a)(1)........................ 3,470,131 1.00 3,470,131 0.110 381,714 390,289 381,714 -8,575
or reduced price meal benefits.
Households assemble written evidence for 245.6(a)(7)(i)..................... 98,164 1.00 98,164 0.500 49,082 50,185 49,082 -1,103
verification of eligibility for free and
reduced price meals and send to LEA.
-------------------------------------------------------------------------------------------------------------
Total Household Reporting................ ................................... 3,470,131 ............ 3,568,295 .............. 430,796 440,474 430,796 -9,678
-------------------------------------------------------------------------------------------------------------
Total Reporting.......................... ................................... 3,485,188 3.49 12,155,590 .052 628,673 628,673 629,982 -13,842
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 17419]]

LEA must maintain documentation 245.6(e)........................... 15,003 1 15,003 0.080 1,200 1,227 1,200 -27
substantiating eligibility determinations
for 3 years after the end of the fiscal year.
LEA to maintain documentation related to 245.9(h)(3)........................ 337 1 337 .910 307 455 762 307
methodology used to calculate the ISP and
determine eligibility.
-------------------------------------------------------------------------------------------------------------
Total Local Education Agency ................................... 15,003 ............ 15,340 .............. 1,507 1,682 1,962 280
Recordkeeping.
-------------------------------------------------------------------------------------------------------------
Total Recordkeeping...................... ................................... 15,057 1.04 15,677 .098 1,534 1,722 2,029 307
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OMB #0584-00xx due to proposed rule
OMB #0584-0026 once merged with OMB #0584-00xx
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total No. Respondents............................................................. 3,485,188
3,493,364
Average No. Responses per Respondent.............................................. 3.492
3.513
Total Annual Responses............................................................ 12,171,267
12,272,745
Average Hours per Response........................................................ 0.052
.053
Total Burden Hours................................................................ 630,207
651,192
Current OMB Inventory............................................................. 0
664,726
Tentative Difference Due to Rulemaking............................................ 630,207
-13,534
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

E-Government Act Compliance

The Department is committed to complying with the E-Government Act,
to promote the use of the internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.

List of Subjects in 7 CFR Part 245

Civil rights, Food assistance programs, Grant programs--education,
Grant programs--health, Infants and children, Milk, Reporting and
recordkeeping requirements, School breakfast and lunch programs.

For the reasons stated in the preamble, FNS proposes to amend 7 CFR
part 245 as follows:

PART 245--DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS
AND FREE MILK IN SCHOOLS

0
1. The authority citation for 7 CFR Part 245 continues to read as
follows:

Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.

Sec. 245.9 [Amended]

0
2. In Sec. 245.9, in paragraph (f), wherever it appears, remove ``40
percent'' and add, in its place ``25 percent'', and wherever it
appears, remove ``30 percent'' and add, in its place ``15 percent''.

Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023-05624 Filed 3-22-23; 8:45 am]
BILLING CODE 3410-30-P

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