Rule2023-28488
Establishing the Summer EBT Program and Rural Non-Congregate Option in the Summer Meal Programs
Primary source
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Published
December 29, 2023
Effective
December 29, 2023
Issuing agencies
Agriculture DepartmentFood and Nutrition Service
Abstract
The Consolidated Appropriations Act, 2023 requires the Secretary of Agriculture to make available an option to States to provide summer meals for non-congregate meal service in rural areas with no congregate meal service and to establish a permanent summer electronic benefits transfer for children program (Summer EBT) for the purpose of ensuring continued access to food when school is not in session for the summer. This interim final rule amends the Summer Food Service Program (SFSP) and the National School Lunch Program's Seamless Summer Option (SSO) regulations to codify the flexibility for rural program operators to provide non-congregate meal service in the SFSP and SSO, collectively referred to as the summer meal programs. This rule also establishes regulations and codifies the Summer EBT Program in the Code of Federal Regulations.
Full Text
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<title>Federal Register, Volume 88 Issue 249 (Friday, December 29, 2023)</title>
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[Federal Register Volume 88, Number 249 (Friday, December 29, 2023)]
[Rules and Regulations]
[Pages 90230-90402]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28488]
[[Page 90229]]
Vol. 88
Friday,
No. 249
December 29, 2023
Part II
Department of Agriculture
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Food and Nutrition Service
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7 CFR Parts 210, 220, 225, et al.
Establishing the Summer EBT Program and Rural Non-Congregate Option in
the Summer Meal Programs; Interim Final Rule
Federal Register / Vol. 88 , No. 249 / Friday, December 29, 2023 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 220, 225, and 292
[FNS-2023-0029]
RIN 0584-AE96
Establishing the Summer EBT Program and Rural Non-Congregate
Option in the Summer Meal Programs
AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).
ACTION: Interim final rule.
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SUMMARY: The Consolidated Appropriations Act, 2023 requires the
Secretary of Agriculture to make available an option to States to
provide summer meals for non-congregate meal service in rural areas
with no congregate meal service and to establish a permanent summer
electronic benefits transfer for children program (Summer EBT) for the
purpose of ensuring continued access to food when school is not in
session for the summer. This interim final rule amends the Summer Food
Service Program (SFSP) and the National School Lunch Program's Seamless
Summer Option (SSO) regulations to codify the flexibility for rural
program operators to provide non-congregate meal service in the SFSP
and SSO, collectively referred to as the summer meal programs. This
rule also establishes regulations and codifies the Summer EBT Program
in the Code of Federal Regulations.
DATES:
Effective date: This rule is effective December 29, 2023.
Comment date: To be considered, written comments on this interim
final rule must be received on or before April 29, 2024.
ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on this interim final rule. Comments
may be submitted in writing by one of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments.
<bullet> Mail: Send comments to Community Meals Policy Division,
USDA Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA
22314.
<bullet> All written comments submitted in response to this interim
final 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. USDA will make the written
comments publicly available on the internet via <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: J. Kevin Maskornick, Division
Director, Community Meals Policy Division, USDA Food and Nutrition
Service, 1320 Braddock Place, Alexandria, VA 22314, telephone: 703-305-
2537.
SUPPLEMENTARY INFORMATION:
I. Background
a. USDA's Vision for Complementary Summer Nutrition Programs
b. Non-Congregate Meal Service
c. Summer EBT
II. Discussion of the Interim Final Rule--SFSP and SSO Non-
Congregate Option
a. Subpart A--Definitions
i. Site, Congregate Meal Service, and Non-Congregate Meal
Service
ii. Rural
iii. Conditional Non-Congregate Site
iv. New Site
v. Site Supervisor and Operating Costs
vi. Good Standing
b. Subpart B--State Agencies Responsibilities
i. Department Notification
ii. Program Management and Administration Plan
iii. Priorities and Outreach Mandate
iv. Application Requirements--Content of Sponsor Applications
and Site Information Sheets
v. Approval of Sites and Determining No Congregate Meal Service
vi. Duration of Rural Designation
vii. Clarifications to Existing Requirements: Free Meal Policy
Statement, State-Sponsor Agreement, and Corrective Action Procedures
c. Subpart C--Requirements for Sponsor Participation
i. Sponsor Eligibility
ii. Clarifications to Existing Requirements: General
Requirements at 7 CFR 225.14(c)
d. Subpart D--Responsibilities of Sponsors
i. Identification and Determination of Eligible Children
ii. Meal Ordering and Second Meals
iii. Requirements Specific to Sponsors That Operate Conditional
Non-Congregate Sites
1. Certification To Collect Information on Participant
Eligibility
2. Notification to the Community
e. Subpart E--Non-Congregate Meal Service
i. Non-Congregate Meal Service Requirements
ii. Non-Congregate Meal Service Options
1. Multi-Day Meal Issuance
2. Parent or Guardian Meal Pick-Up
3. Bulk Meal Items
iii. Offer Versus Serve
iv. Clarifications to Existing Meal Service Requirements--Meal
Service Times and Offsite Consumption of Foods
f. Subpart F--Monitoring
i. State Agency Responsibilities
1. Pre-Approval Visits
2. Sponsor and Site Reviews
ii. Sponsor Responsibilities
1. Training
2. Site Reviews
g. Subpart G--Miscellaneous
i. Collection of Summer Meal Site Location Data
ii. Reimbursements
iii. SSO Non-Congregate Provisions
iv. Annual Update To Approved Rural Data Sources
h. Subpart H--Technical Amendments
i. Subpart I--Severability
III. Discussion of the Interim Final Rule--Summer EBT
a. Subpart A--General
i. General Purpose and Scope
ii. Definitions
1. Existing Definitions
2. Modified Definitions
3. New Definitions
iii. Administration
1. Delegation of Responsibilities
2. Authority To Waive Statute and Regulations
b. Subpart B--Eligibility Standards and Criteria
i. General Purpose and Scope
ii. Eligibility
iii. Period To Establish Eligibility
c. Subpart C--Requirements of Summer EBT Agencies
i. Plan for Operations and Management
ii. Coordination Between State-Administered and ITO-Administered
Summer EBT Programs
iii. Advance Planning Document (APD) Processes
iv. Enrolling Eligible Children
1. Streamlined Certification
2. Application Requirements
3. Verification Requirements
4. Notification of Eligibility, Denial, Appeal Rights, and the
Ability To Opt-Out
d. Subpart D--Issuance and Use of Program Benefits
i. General Standards
1. Benefit Issuance
2. Dual Participation
3. Benefit Amount
4. Participant Support
5. Expungement
ii. Issuance and Adjustment Requirements Specific to States,
Including Territories That Administer SNAP
iii. Retailer Integrity Requirements Specific to States,
Including Territories That Administer SNAP
iv. Requirements Specific to Territories That Administer
Nutrition Assistance Programs (NAP) Programs
v. Requirements Specific to ITOs Administering Summer EBT
e. Subpart E--General Administrative Requirements
i. Payments to Summer EBT Agencies and Use of Administrative
Program Funds
1. Benefit Funds
2. State Administrative Funds
ii. Methods of Payment
iii. Standards for Financial Management Systems
iv. Performance Criteria
v. Records and Reports
vi. Audits and Management Control Evaluations
[[Page 90231]]
1. Audits
2. Management Control Evaluations
vii. Investigations
viii. Hearing Procedures for Families and Summer EBT Agencies
ix. Claims
x. Procurement Standards
1. General
2. Contractual Responsibilities
3. Procedures
xi. Miscellaneous Administrative Provisions
1. Civil Rights
2. Program Evaluations
3. General Responsibilities
xii. Information Collection/Recordkeeping--OMB Assigned Control
Numbers
f. Subpart F--Severability
IV. Coordinated Services Plan
V. Procedural Matters
I. Background
Summer is frequently the most challenging time of the year for
children at risk of food insecurity when they no longer have access to
daily school meals. The Summer Food Service Program (SFSP), authorized
under section 13 of the Richard B. Russell National School Lunch Act
(NSLA), 42 U.S.C. 1761, has been the primary source of nutritional
support for vulnerable children during the summer since its formal
inception in 1975. The purpose of the SFSP is to provide nutritious
meals to children in low-income areas when schools are not in session
during the summer months, as well as during long school breaks in
communities with year-round school calendars. Schools can also offer
meals through the Seamless Summer Option (SSO) of the National School
Lunch Program (NSLP), which allows school food authorities to provide
meals to children during the summer months, school breaks, and
unanticipated school closures using the procedures of the school lunch
and breakfast programs. The SFSP and SSO are collectively referred to
as USDA summer meal programs. Through the summer meal programs, program
operators provide meals and snacks to children at meal sites in their
communities; these meals are served at no cost to children and were
historically required to be consumed in a congregate setting on the
meal site premises.
Among the USDA Child Nutrition Programs (CNPs), the summer meal
programs are unique in many ways, including the seasonal nature of
their operations, the diversity of organizations that operate the
programs, and the range of sites at which meals are offered. Many sites
offer summer programming in addition to meals. Meals served as part of
the summer meal programs are served at a wide variety of sites,
including schools, recreation centers, parks, camps, and places of
worship. In July 2022, the summer meal programs served an average of
4.1 million children daily at more than 36,000 sites nationwide.
Although the summer meal programs are an important source of
nutrition for many children, program access remains inconsistent or out
of reach for some communities and families that cannot reliably access
summer meals. Children who may have difficulty accessing summer meals
include those:
<bullet> living in rural areas who would have to travel long
distances to receive a meal,
<bullet> living in communities without summer meal sites,
<bullet> living in areas with limited safe and reliable
transportation options, and in families whose schedules do not allow
them to travel to a site daily.
USDA, State administering agencies, program operators, and other
nutrition security champions have worked hard to expand the reach of
summer meal programs over the years. Despite these efforts, only 1 in 6
children \1\ who eat free or reduced price school meals participate in
the summer meal programs in a typical year, leaving a large gap between
children in need of summer meals and those who receive them. This
ongoing summer nutrition gap indicates that the nutritional needs of
children throughout the U.S. during the summer months cannot be met
with a one-size-fits-all approach.
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\1\ Calculated from 2022 FNS administrative data.
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In December 2022, Congress took action to address the summer
nutrition gap by providing new tools to serve low-income children
during the summer months. On December 29, 2022, President Biden signed
the Consolidated Appropriations Act, 2023 (the Act) (Pub. L. 117-328),
which amended section 13 of the NSLA to allow children in rural areas
to take their meals off-site beginning in 2023, and established a
permanent, nationwide Summer Electronic Benefits Transfer for Children
Program (Summer EBT) beginning in 2024. Regulations to amend the summer
meal programs and establish Summer EBT are being promulgated through
this interim final rule (IFR), as required by the Act.\2\
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\2\ 42 U.S.C. 1761(a)(13)(F) (``Not later than 1 year after
December 29, 2022, the Secretary shall promulgate regulations (which
shall include interim final regulations) to carry out this section.
. . .'').
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As mentioned above and pursuant to the requirements of the NSLA,
which authorizes the summer meal programs, summer meal program rules
previously required that children remain at a meal service site while
they consumed their meal or snack. This approach to program
implementation, known as congregate meal service, has many benefits
including providing the opportunity for children to socialize and
engage in supervised activities offered at the site. However, as
previously noted, some communities lack the resources or infrastructure
to operate meal sites and supervise a meal service, and some families
face significant barriers traveling to a site for each meal. The Act
addresses these challenges by providing flexibility for sites in rural
areas to provide a non-congregate meal service, which means allowing
children to take meals off-site, for example, to their homes.
The Act also authorized a new permanent method for offering
additional summer nutrition assistance for children. The new Summer EBT
program will provide benefits on EBT cards so that families can
purchase food for their children. Together, these changes will
revolutionize how our nation supports the nutritional needs of children
during the summer months, when school is not in session.
These two alternatives to connecting children to nutrition during
the summer may be new as permanent options, but both have been tested
extensively in recent years. Non-congregate meal service in the summer
meal programs has been tested through demonstration projects, program
waivers during the COVID-19 pandemic, and operational guidance in
summer 2023; Summer EBT has been piloted through demonstration projects
since 2011 and the Pandemic EBT program offered in response to COVID-19
was similar to Summer EBT in many ways.
A. USDA's Vision for Complementary Summer Nutrition Programs
USDA's goal across all summer nutrition programs is simple: to
connect children with nutritious food during the summer months. While
traditional congregate summer meal service remains a vital tool for
providing low-income children with nutritious meals at no cost, USDA
recognizes that not all children who would benefit from summer
nutrition assistance are currently being reached through existing
Programs. Due to numerous barriers to access that have already been
highlighted, including time, distance, and transportation, many
children who are eligible for free and reduced price school meals are
not well served by traditional congregate summer meal sites. In
particular, these challenges have been historically difficult to
overcome in rural areas. USDA's goal is
[[Page 90232]]
to leverage the provisions codified through this IFR, working
aggressively to close access gaps and ensure that children receive
critical nutrition assistance during the summer months.
The Consolidated Appropriations Act, 2023, as implemented by this
rulemaking, expands the reach of USDA's summer nutrition programs by
establishing three distinct and essential pillars of summer nutrition
assistance that will work in tandem and in a complementary fashion. In
addition to the traditional congregate summer meal option provided
through the SFSP and the SSO, State agencies and Program operators can
now utilize two new methods of providing children with summer nutrition
assistance. Non-congregate meal service will address critical access
challenges in rural areas by allowing SFSP and SSO Program operators to
provide meals available for pick up or delivery that children can eat
at the time and place that is convenient for them. Summer EBT is a
nationwide, permanently authorized program that provides EBT benefits
to eligible children that can be used to buy groceries. Taken together,
these three pathways for providing summer nutrition assistance will
help to better support rural, suburban, and urban communities alike.
The complementary nature of these nutrition assistance options is
the foundation of their great potential to benefit children across the
nation. They are intended to be used simultaneously for the purposes of
delivering a more complete summer nutrition safety net. To illustrate,
SFSP and SSO meal sites have provided nutritious summer meals, as well
as recreational, educational, and other enrichment opportunities to
generations of children. However, in rural areas, where there may be a
lack of transportation, sites, funds, and staff to support traditional
congregate meal service, non-congregate meal service can be used to
help provide children in these areas with equitable access to
nutritious food. Significantly, the provisions established by the Act
and implemented under this rulemaking also allow for program operators
to use the non-congregate option to complement congregate meals at the
times when congregate meal service is not offered; for example, a rural
site serving congregate meals during the week may also offer
``wraparound'' service, providing take-home meals for the weekend. The
Summer EBT Program's addition of EBT benefits for children introduces a
new layer of nutrition assistance that is flexible and allows families
to supplement summer meals with foods of their choice that are
available anytime, including when meal sites are not open. The
combination of these three approaches for providing nutrition during
the summer months will help to ensure both equitable and more
comprehensive access for children, and USDA looks forward to continued
partnership with States, Tribes, and local stakeholders to use all the
tools that are now available to meet their communities' needs.
B. Non-Congregate Meal Service
Demonstration Projects
The Act instructed USDA to incorporate best practices and lessons
learned from demonstration projects carried out under section 749(g) of
the Agriculture, Rural Development, Food and Administration, and
Related Agencies Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat.
2132), which provided $85 million to USDA beginning in 2010 to initiate
and implement the Summer Food for Children demonstration projects.\3\
One demonstration project was the Enhanced Summer Food Service Program
(eSFSP), which tested changes to the existing structure and delivery
mechanism of SFSP for the purpose of determining effects on program
participation. The eSFSP included the Meal Delivery demonstration which
offered breakfast and lunch delivery to homes of eligible children in
rural areas, as well as the Food Backpack demonstration which provided
weekend and holiday meals to SFSP participants for consumption when
SFSP sites were not open. In 2013, the demonstration project for Non-
Congregate Feeding for Outdoor Summer Feeding Sites Experiencing Excess
Heat was first implemented. Under this demonstration project, SFSP and
SSO sponsors who were operating approved outdoor meal sites without
temperature-controlled alternative sites could operate as non-
congregate sites on days when the area was experiencing excessive heat.
In addition to excessive heat, USDA approved four States to participate
in the demonstration due to smoke and air-quality concerns in summer
2019. In more recent years, USDA implemented Meals-to-You (MTY) under
the demonstration authority. MTY was developed in response to
stakeholder feedback about the challenges and difficulties of serving
summer meals in sparsely populated communities and remote areas.
Through MTY, food boxes were mailed directly to families of children
who were eligible for free or reduced price school meals. Each eligible
child received a weekly box, which contained five breakfast meals, five
snacks, and five lunch/supper meals.
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\3\ Information and supporting materials on each of the Summer
Food for Children demonstration projects are available at: <a href="https://www.fns.usda.gov/ops/summer-food-children-demonstrations">https://www.fns.usda.gov/ops/summer-food-children-demonstrations</a>.
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Historically, non-congregate meals were operated on a small scale
through the above mentioned demonstration projects. However, during the
COVID-19 public health emergency (PHE), non-congregate meals became
more widely available as an important part of USDA's response to the
pandemic. In March 2020, Federal, State, and local level efforts to
reduce the spread of COVID-19 resulted in the abrupt closure of schools
across the country, disrupting access to school meals for millions of
children. In response, State agencies and program operators requested
individual waivers under the authority of section 12(l) of the NSLA and
implemented program flexibilities, such as the flexibility to allow
non-congregate meal service through SFSP and SSO. To better address the
urgent need for resources and operational flexibilities required to
serve children throughout the pandemic, Congress provided USDA with
temporary authority to waive statute and regulations on a nationwide
basis for Child Nutrition Programs through the Families First
Coronavirus Response Act of 2020 (FFRCA) (Pub. L. 116-127), and later
through subsequent statutory extensions to help USDA continue to
respond to changing needs throughout the pandemic. Such efforts
included USDA issuing the Nationwide Waiver to Allow Non-Congregate
Feeding and other complementary non-congregate waivers under section
2202(a) of the FFCRA. These waivers ensured that children continued to
receive nutritious meals and helped to mitigate the impacts of the
COVID-19 PHE.
For summer 2023, USDA provided guidance on non-congregate meal
service operations in rural areas as required by the Act. Many of the
non-congregate flexibilities allowed for summer 2023 operations were
allowed through previous demonstrations, waivers, and guidance on non-
congregate meal service operations during the COVID-19 PHE. Through
this IFR, USDA is promulgating regulations for the summer meal programs
rural non-congregate option for program year 2024 and beyond. These
regulations are based on a combination of best practices from
demonstration projects, non-congregate flexibilities offered during the
COVID-19 pandemic, and prior guidance that was issued for operating
rural non-
[[Page 90233]]
congregate meal service in summer 2023.
Stakeholder Feedback
Between April 5, 2023, and June 15, 2023, USDA hosted 21 listening
sessions with external stakeholders on the topic of non-congregate
summer meals. Input was gathered from State agency program
administrators,\4\ school food authorities (SFAs) and other program
operators, advocacy groups, and program participants. Listening session
participants were asked a series of questions related to
implementation, service models, program integrity, challenges,
benefits, and definitions; each session also included open time where
participants could share additional thoughts of interest to them. USDA
also held consultations with Tribal leaders from Indian Tribal
Organizations (ITOs) to obtain their input on the topic of non-
congregate summer meals, as well as rural experts at Federal agencies
to obtain their input on defining and identifying rural areas. USDA
recorded and analyzed all comments shared during the listening sessions
and has taken all comments into careful consideration when developing
this rule.
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\4\ USDA invited all State agencies to provide input, and the
vast majority (47) of States actively participated in the listening
sessions.
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Stakeholders were generally positive about non-congregate summer
meals, citing enhanced program access as the primary benefit. However,
14 State agencies voiced concerns with program integrity and five State
agencies expressed concern about nutritional quality and/or food safety
of meals served. Fifteen additional stakeholders voiced concern about
inadequate staff support to manage non-congregate meal service.
Stakeholders said that the existing (long-standing) definition of
``rural'' did not sufficiently encompass rural areas and offered ideas
for how the definition of ``rural'' could be expanded (see section II.
A. ii. for rural definition discussion). Finally, stakeholders
requested clear and timely guidance from USDA on a wide range of
topics, including best practices, eligibility, and program integrity
efforts; State agencies requested that guidance be issued anywhere from
6 to 18 months in advance of summer program operations.
C. Summer EBT
Section 13A of the Richard B. Russell National School Lunch Act, 42
U.S.C. 1762, authorizes the Secretary to establish a program under
which States, and Indian Tribal Organizations (ITOs) that administer
the Special Supplemental Nutrition Program for Women, Infants, and
Children (WIC), electing to participate in the Summer EBT Program may,
beginning in Summer 2024 and annually thereafter, issue to each
eligible household Summer EBT benefits. For 2024, the value of the
benefit will be $40 per child for each month of the summer with amounts
adjusted for Alaska, Hawaii, and the U.S. Territories.
Summer EBT Demonstration Projects
Although Summer EBT is the newest, permanent Federal food
assistance entitlement program, it is not a new approach to addressing
food insecurity during the summer months. In fact, Summer EBT has been
tested through more than a decade of demonstration projects
administered by USDA in collaboration with States and Indian Tribal
Organizations. Prior to the publication of this interim final
rulemaking, and under the same authority as the SFSP demonstration
projects provided in 2010 (section 749(g) of the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies
Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 2132)), the Summer
Electronic Benefits Transfer for Children (SEBTC) demonstration project
was implemented to help reduce summer food insecurity among children.
Starting in 2011, the SEBTC demonstration distributed a monthly food
benefit during the summer months to children eligible for free or
reduced price school meals. Most States operating the demonstration
projects utilized a debit card (or Supplemental Nutrition Assistance
Program (SNAP)) model whereby eligible participants received benefits
on a debit card, which could be redeemed at any SNAP-authorized
retailer. Some States and several ITOs operated the Summer EBT program
using a WIC-like model whereby eligible participants could purchase
only foods prescribed in a defined food package at WIC-authorized
retailers using their Summer EBT cards.
Through rigorous evaluation, the SEBTC demonstration projects have
proven successful at mitigating food insecurity and improving diet
quality and variety. SEBTC benefits reduced the most severe category of
food insecurity among children during the summer by one-third when
compared to those receiving no benefits.\5\ Evaluations of USDA's
previous experience with SEBTC demonstration projects indicated that
this model could be effectively implemented in a wide variety of
communities. The SEBTC demonstration projects were an innovative
approach to meeting the nutritional needs of children during the summer
months as the model provides families with flexibility to purchase food
for their children at times and places that are convenient for them.
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\5\ Food and Nutrition Service. (2013). SEBTC Demonstration:
Evaluation Findings for the Full Implementation Year 2012 Final
Report. U.S. Department of Agriculture, Food and Nutrition Service.
<a href="https://fns-prod.azureedge.us/sites/default/files/SEBTC2012.pdf">https://fns-prod.azureedge.us/sites/default/files/SEBTC2012.pdf</a>.
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Pandemic Electronic Benefit Transfer
The effectiveness of the SEBTC demonstration projects facilitated
the implementation of Pandemic Electronic Benefit Transfer (P-EBT).
From 2020 to 2023, P-EBT was part of the COVID-19 pandemic response to
prevent food insecurity among children while they did not have access
to school meals. The Families First Coronavirus Response Act, (Pub. L.
116-127), as amended by the Continuing Appropriations Act, 2021 and
Other Extensions Act (Pub. L. 116-159), the Consolidated Appropriations
Act, 2021 (Pub. L. 116-260), the American Rescue Plan Act of 2021 (Pub.
L. 117-2), and the Consolidated Appropriations Act, 2023 (Pub. L. 117-
328) provided the Secretary authority to approve State agency plans to
administer P-EBT. Children were eligible to receive P-EBT benefits if
they would have received free or reduced price meals under the NSLA but
missed those meals due to COVID-19. For example, the child's school was
closed or operating at reduced hours or attendance due to COVID-19, or
the child did not attend school because they were sick with COVID-19.
Through P-EBT, eligible school children received temporary emergency
nutrition benefits through EBT cards that families could use to
purchase food at local retailers, allowing families with eligible
children to purchase healthy food more easily during the pandemic.
The American Rescue Plan Act (Pub. L. 117-2) specifically
authorized the extension of P-EBT for the covered summer period after
any school year in which there was a public health emergency
designation for all children who met P-EBT income eligibility
requirements under the schools component of P-EBT. In December 2023,
the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) authorized
USDA to allow State agencies to implement P-EBT for summer 2023 without
the need for an approved P-EBT plan for the preceding school year,
limited P-EBT eligibility for school children to only those children
who attended NSLP-participating schools at the end of the preceding
school year,
[[Page 90234]]
and redefined the P-EBT benefit amount for summer 2023 to $120 for the
entire covered period, with amounts adjusted for Alaska, Hawaii, and
the U.S. Territories.
With the end of the COVID-19 PHE on May 11, 2023, FY 2023 was the
final fiscal year that children were eligible for P-EBT benefits. The
permanent Summer EBT program for school-aged children will begin in
summer 2024 ensuring eligible school-aged children will continue to
receive critical nutrition assistance.
Summer EBT as a Permanent Program
Beginning in summer 2024, the NSLA permanently establishes Summer
EBT benefits at $40 per month per eligible child and indexes the
benefit to the SNAP Thrifty Food Plan to account for inflation. Summer
EBT will provide EBT benefits to children from low-income households
during the summer months to ensure continued access to nutrition when
school is not in session. USDA anticipates that Summer EBT will help to
close the summer nutrition gap for more than 29 million children once
implemented nationwide. As amended, the NSLA allows States that
participate in SNAP and Territories participating in NAP (including
Puerto Rico, American Samoa and the Commonwealth of the Northern
Mariana Islands) to issue benefits which are usable at SNAP or NAP
retailers. The NSLA also provides that ITOs administering WIC may
deliver Summer EBT benefits to be used at WIC authorized retailers.
Benefit redemptions are made through EBT cards or `other electronic
methods.' The permanent Summer EBT Program is separate and distinct
from the earlier SEBTC demonstration projects, which were limited in
scope and conducted for the purpose of gaining insight into the
effectiveness of the model. The permanent Summer EBT Program is also
separate and distinct from P-EBT, which was a specific Federal
Government response to COVID-19.
USDA published the following initial guidance for 2024 Summer EBT
implementation prior to publication of this rulemaking to assist States
with preparations:
1. SEBT 01-2023, Initial Guidance for State Implementation of
Summer EBT in 2024, June 7, 2023;
2. SEBT 02-2023, Initial Guidance for Implementation of Summer EBT
in 2024 by Indian Tribal Organizations Administering WIC, June 13,
2023;
3. SEBT 03-2023, Summer EBT Eligibility, Certification, and
Verification, July 31, 2023;
4. SEBT 01-2024, Summer EBT Administrative Funding Process for
FY2024, October 18, 2023.
Through this rulemaking, the Summer EBT Program will be codified in
a new part 292 of Title 7 of the Code of Federal Regulations, which
will supersede the memos listed above.
Summary of Stakeholder Feedback
Between April and June 2023, USDA hosted 24 listening sessions to
solicit input about Summer EBT from State agencies administering SNAP
and Child Nutrition Programs, school food authorities (SFAs) and other
program operators, advocacy groups, local elected officials, and
families. USDA also consulted with Tribal leaders on Summer EBT in May
2023, attended two conferences to meet with and gather feedback
directly from ITOs administering WIC, and met with Tribal WIC
administrators virtually. Listening session participants were asked for
input about approaches to program implementation, program integrity,
program costs, customer service, and technical aspects of Summer EBT
operations. Participants were offered the opportunity to raise other
issues of interest to them as well. USDA carefully considered this
input when developing this rule.
Across listening sessions, State agencies, school food authorities,
program participants and external organizations consistently expressed
a desire for the Summer EBT program to run seamlessly and
automatically, particularly around eligibility determinations and
enrollment. State agencies, SFAs, and advocates expressed that data
sharing and collection between State agencies [and between State
agencies and local education agencies (LEAs)] must be streamlined and
automated, and noted that centralized databases could help simplify the
data-sharing process. Relatedly, many State agencies, school food
authorities, and external organizations identified the need for States
to provide Statewide applications for children who must apply using a
Summer EBT application to avoid placing the responsibility of
collecting and processing applications on LEAs, especially those
participating in the Community Eligibility Provision (CEP) who do not
collect school meals applications. Some State agency staff asked that
USDA provide and maintain a nationwide Summer EBT application. There
was universal concern about the impacts for both LEAs and households of
requiring students at special provision schools (e.g., CEP schools) who
are not ``identified'' to apply for Summer EBT. Households with
children enrolled in provision schools are not accustomed to completing
annual income applications for school meal benefits and may not know if
their child is ``identified'' through participation in other means
tested programs or if an income application must be completed. Without
effective processes to communicate with families and to collect
applications, this could cause confusion and negatively impact program
participation. Likewise, many CEP schools do not collect income
applications even on a periodic basis as eligibility because the level
of Federal reimbursement for the NSLP/SBP is solely based on the number
of identified students. These schools do not currently have resources
and staffing to support this effort. Additionally, a number of external
organizations and States urged USDA to allow the use of ``alternative''
income applications to confer Summer EBT eligibility.
Additionally, FNS received numerous inquiries from States regarding
which State Agency should lead the Summer EBT Program. Although SNAP
and Child Nutrition Programs are generally administered by separate
agencies at the State level, these agencies have historically teamed up
to improve children's nutrition. For example, SNAP and Child Nutrition
agencies successfully stood up and implemented direct certification, a
process that streamlines enrollment and reduces burden for millions of
children every year, and they jointly provided P-EBT benefits at a time
when many children were vulnerable to food insecurity. Similarly, State
agencies should work together in a collaborative way to determine how
they can best use their resources and expertise to support Summer EBT,
and jointly decide the appropriate roles and responsibilities of each
agency.
State agencies, ITOs, and external organizations expressed
significant concerns about the 50 percent match funding required for
Summer EBT administrative costs, particularly given the fact that, in
many States, the window to request or allocate State funding for Summer
EBT through the regular budgetary process was closing or had already
closed. Some States shared that this may prevent them from standing up
the program in Summer 2024. ITOs similarly expressed concerns about the
required match, and specifically asked for a ``planning year'' in which
benefits are not issued, but administrative funding can be received to
set up the program. States and ITOs also requested clearer guidance
from
[[Page 90235]]
USDA related to administrative funding and financial management.
States, school food authorities, and advocates also discussed
lessons learned from operating P-EBT, and ways to improve operations
when delivering the Summer EBT Program. Specifically, USDA heard the
importance of delivering benefits timely, developing clear lines of
communication on customer service (e.g., clear points of contact for
households), and increased participant education, such as better
messaging to households. States and advocates also noted the need to
improve data quality, primarily ensuring that addresses for
participants are accurate and current at the time benefits are issued.
Finally, ITOs shared robust feedback on three specific topics: the
benefit delivery model for ITOs, enrolling eligible children, and de-
duplication of benefits.
ITOs shared that they would appreciate flexibility in the benefit
delivery model, meaning the ability to operate using a cash value
benefit (CVB), a food package, a combination of the two, or an
alternative approach. ITOs also shared concerns about communicating
with families about the option to participate in the ITO-administered
program and coordinating with States to ensure that children do not
receive benefits from both State and ITO-operated Summer EBT programs.
ITOs thus asked USDA to issue strong regulatory language requiring
States to cooperate with ITOs on general program operations and data
sharing. Additionally, ITOs recommended that ITOs administering the
Program serve their entire jurisdictions to streamline program
implementation and minimize de-duplication.
II. Discussion of the Interim Final Rule--SFSP and SSO Non-Congregate
Option
This section of the preamble discusses the actions USDA is taking
to implement the statutory provisions for non-congregate meal service
in the SFSP in 7 CFR part 225 and the SSO in 7 CFR parts 210 and 220.
All Program regulations and guidance, instructions, and handbooks
issued by the USDA Food and Nutrition Service (FNS) apply to both
congregate and non-congregate operations except as otherwise specified
through this rulemaking.
A. Definitions
i. Site, Congregate Meal Service, and Non-Congregate Meal Service
SFSP regulations under 7 CFR part 225 have historically been framed
in the context of the long-standing congregate meal service model under
the NSLA. Prior to amendments made in the Act, provisions under the
NSLA at 42 U.S.C. 1753(b)(1)(A), 42 U.S.C. 1761(a)(1)(D) and Program
regulations at Sec. 225.6(i)(15) required Program meals to be served
in a congregate setting and consumed by participants on site in order
to be eligible for reimbursement. Therefore, under current regulations
at Sec. 225.2, ``site'' means a physical location at which a sponsor
provides a food service for children and at which children consume
meals in a supervised setting. Currently, there is no separate
statutory or regulatory definition of congregate meal service. However,
the establishment of the non-congregate meal service option underscores
the need to explicitly define and distinguish congregate and non-
congregate meal service for Program purposes.
For Summer 2023, the NSLA was amended to allow Program operators to
operate a non-congregate meal service in rural areas consistent with
implementation models previously used in USDA summer demonstration
projects, as discussed in section I. B. of this IFR. The two models
available for both SFSP and SSO during summer 2023 were home delivery
and meal pick-up. Under the home delivery model, meals are delivered
directly to homes in eligible areas with eligible children. In the
context of this model, FNS advised State agencies and sponsors through
summer 2023 guidance to consider the non-congregate meal service
operation overall as the site (for example, a delivery route or courier
distribution process), instead of the individual residences to which
the meals were delivered. Therefore, the inclusion of the phrases
``physical location'' and ``supervised setting'' in the definition of
site at 7 CFR 225.2 is inconsistent with providing different models of
non-congregate meal service, as non-congregate meals can be consumed
anywhere, and do not have to be consumed under supervision.
Therefore, this rulemaking revises the existing definition of
``site'' and adds new definitions of ``congregate meal service'' and
``non-congregate meal service'' to provide clarity and applicability to
new and existing Program requirements. USDA is codifying these working
definitions as established in summer 2023 guidance into part 225.
Accordingly, this IFR makes the following amendments in Sec.
225.2:
<bullet> Amends the definition of ``site'' to mean the place where
a child receives a Program meal. A site may be the indoor or outdoor
location where congregate meals are served, a stop on a delivery route
of a mobile congregate meal service, or the distribution location or
route for a non-congregate meal service. However, a child's residence
is not considered a non-congregate meal site for Program monitoring
purposes.
<bullet> Adds a definition of ``congregate meal service'' to mean a
food service at which meals that are provided to children are consumed
on site in a supervised setting; and
<bullet> Adds a definition of ``non-congregate meal service'' to
mean a food service at which meals are provided for children to consume
all the components off-site. The definition further clarifies that non-
congregate meal service must only be operated at sites designated as
``rural'' and with no ``congregate meal service,'' as determined in
Sec. 225.6(h)(3) and (4).
ii. Rural
Newly added section 13(a)(13)(A) of the NSLA makes available to
States the option to provide Program meals for non-congregate
consumption in a rural area with no congregate meal service. This
expansion of summer meal service prompted renewed interest in
reviewing, revising, and modernizing the SFSP's long-standing
definition of ``rural.''
In 1978, the Department proposed a definition of ``rural'' (44 FR
8) in response to the provisions of the NSLA and Child Nutrition
Amendments of 1977 (Pub. L. 95-166), which amended section 13(a)(4) of
the NSLA, 42 U.S.C. 1761(a)(4), to include a rural outreach mandate.
Public Law 95-166 also instructed USDA to conduct a study of the food
service operations to include: (i) an evaluation of meal quality as
related to costs; and (ii) a determination whether adjustments in the
maximum reimbursement levels for food service operation costs
prescribed in the NSLA should be made, including whether different
reimbursement levels should be established for self-prepared meals and
vended meals and which site-related costs, if any, should be considered
administrative costs. Through this study, USDA confirmed sponsors that
prepare their own meals and sponsors that operate in rural areas may
incur higher costs than other types of sponsors [44 FR 36365, January
2, 1979]. As a result, USDA provided additional reimbursement to rural
sites and self-preparation sites in the final rulemaking, which still
stands today under regulations at Sec. 225.9(d)(7). Because of the
fiscal implications under that final rulemaking, USDA also codified the
definition of ``rural'' as proposed (Rural means any county
[[Page 90236]]
which is not a part of a Standard Metropolitan Statistical Area as
defined by the Office of Management and Budget). USDA had considered
revising the definition of rural to include ``pockets'' of rurality
within Metropolitan Statistical Areas (MSAs); however, USDA was not
able to develop a universally applicable definition based on the varied
data collected at the time of the rulemaking and said it would re-
consider the definition after evaluating implementation of the
provisions in the 1979 program year. In 1980, based on experience
gained during the 1979 Program year, the Department revised the
definition of ``rural'' to include an option for States, with
concurrence from USDA, to establish ``pockets'' of rurality within MSAs
(45 FR 1844). The rural definition has not been further updated since
1980.
SFSP regulations at Sec. 225.2 define ``rural'' as: (a) any area
in a county which is not a part of a MSA or (b) any ``pocket'' within a
MSA which, at the option of the State agency and with Food and
Nutrition Service Regional Office (FNSRO) concurrence, is determined to
be geographically isolated from urban areas. The current definition is
based on the Office of Management and Budget's (OMB) Standards for
delineating core-based statistical areas (CBSA), specifically MSAs.
Delineations are the result of the application of published standards
to Census Bureau data on population estimates and commuting ties. USDA
has released guidance over the years to provide technical assistance to
States in this area. On April 21, 2015, USDA published memorandum SFSP
17-2015, Rural Designations in the Summer Food Service Program--
Revised, available at: Rural Designations in the Summer Food Service
Program--Revised [bond] Food and Nutrition Service (<a href="http://usda.gov">usda.gov</a>), to
clarify rural designations in SFSP and to promote the use of FNS' Rural
Designation Map, which was designed to help State agencies and sponsors
more easily identify rural areas according to paragraph (a) of the
regulatory definition.
After the release of initial summer 2023 rural non-congregate
guidance, USDA heard concerns from stakeholders that the current
definition of ``rural'' was too generalized geographically to identify
rural areas and pockets effectively. MSAs are comprised of a central
county or counties containing the core area (i.e., the central urban
area with a population of 50,000 or more) plus adjacent outlying
counties having a high degree of social and economic integration with
that core as measured through commuting. Because MSAs can include a
cluster of counties surrounding one county with an urban center and
because counties can be geographically expansive, MSAs often encompass
areas that are considered rural based on additional information such as
data at the census tract level. For example, a census tract within an
outlying county may be sparsely populated and could be considered
rural, but the county contains other census tracts or areas that have a
high degree of social and economic integration with the population
core, which results in the county being classified as part of the MSA.
Therefore, after consultation with Federal partners, USDA provided
further guidance allowing States to use the following classification
schemes to designate rural areas and pockets in summer 2023: (1) USDA
Economic Research Service's (USDA-ERS) Rural Urban Commuting Area
(RUCA) codes 4-10, and in some isolated cases, RUCA codes 2-3; (2)
USDA-ERS' Rural-Urban Continuum Codes (RUCC) 4-9; (3) USDA-ERS' Urban
Influence Codes (UIC) 3-12; and (4) the National Center for Education
Statistics (NCES) Locale Classifications and Criteria, codes 41-43. The
guidance also allowed for the use of other data sources on a case-by-
case basis with FNS approval.
In the listening sessions held to inform this rule, stakeholders
confirmed that the current definition of rural in Sec. 225.2 does not
adequately capture all rural areas. Stakeholders shared that the
limitations of the existing definition were largely addressed by the
addition of the classification schemes allowed in summer 2023 and noted
that the use of these schemes seemed to satisfy most site location
requests. However, some stakeholders still encouraged USDA to consider
other factors in the definition of rural such as: access to public
transportation, food deserts, physical barriers, and characteristics of
rurality. One stakeholder encouraged USDA avoid overly rigid criteria
or reliance on physical characteristics as many of these elements are
influenced by community and State resources and priorities rather than
inherent qualities, and that defining features of rural communities may
vary by region. State agencies also reported a need for a streamlined
process for identifying and approving rural areas and pockets, and
requested one comprehensive mapping tool to determine rural
designation. Therefore, based on feedback received from stakeholders
and Federal partners, USDA is revising the current definition of
``rural'' to include the classification systems allowed for summer 2023
implementation. These classification schemes were used in summer 2023
to identify rural ``pockets,'' but now will be incorporated into the
regulatory definition to define what rural is under the Program. In
addition, this IFR will amend the current definition to provide
discretion for the Department to accommodate updates to these
classification schemes and to consider other classification schemes
that were not identified through summer 2023 operations. Finally, USDA
agrees with comments that potential community characteristics such as
the presence of food deserts and physical barriers are not inherently
rural or objective measures of rurality, nor may they be necessarily
applied consistently across States and communities. However, to
accommodate possible alternative standards that may be developed or
identified, the revised definition will allow State agencies and USDA
to consider requests to designate areas that may be rural in character
based on other data sources on a case-by-case basis. Under this
rulemaking, the definition of rural will mean:
<bullet> Any area in a county not a part of an MSA based on the
OMB's delineation of MSAs. This criterion will allow for non-MSA
counties to be designated as rural under the Program.
<bullet> Any area in a county classified as a non-metropolitan area
based on RUCC and UIC. This criterion will allow for counties
classified as rural according to USDA-ERS' RUCC and UIC codes to be
designated as rural under the Program.
<bullet> Any census tract classified as a non-metropolitan area
based on RUCA codes. This criterion will allow census tract areas
classified as rural according to USDA-ERS' RUCA codes to be designated
as rural under the Program.
<bullet> Any area of an MSA not part of a Census Bureau-defined
urban area. This criterion will allow for areas located within MSAs
that are classified as rural according to NCES' Locale Classifications
and Criteria, which is based on the Census Bureau's urban and rural
areas, to be designated as rural under the Program.
<bullet> Any area of a State, which is not part of an urban area as
determined by the Secretary; or,
<bullet> Any ``pocket'' within an MSA which, at the option of the
State agency and with FNSRO approval, is determined to be rural in
character based on other data sources. These last two criteria provide
discretion for the Department and the State agency to consider other
areas that may not be identified through this new definition.
<bullet> Any subsequent substitution or update of the
aforementioned
[[Page 90237]]
classification schemes that Federal governing bodies create. This
criterion is intended to accommodate updates or substitutions to the
classification schemes that will be incorporated into the definition
under this rule.
This framework more accurately represents rural populations and
territories and is responsive to stakeholder feedback, while upholding
established standard measures of rurality. Expanding the definition to
allow the use of multiple recognized Federal classification schemes to
designate areas as rural (without having to seek prior USDA approval)
will also ease administrative burden and streamline the site
identification and approval process for State agencies and Program
operators. It also acknowledges the frequent stakeholder concern that
any one objective measure cannot capture all rural pockets, and
therefore, allows discretion for State agencies to identify rural
pockets based on other data sources if needed with approval from USDA.
Accordingly, this rule expands the definition of ``rural'' in Sec.
225.2 to include rural populations and territories within MSAs based on
the summer 2023 approved sources, and to provide flexibility for
``pockets'' based on other data sources on a case-by-case basis. The
amended definition of ``rural'' in Sec. 225.2 will also provide
discretion to USDA for any potential updates or changes to
classification schemes at a future date. Following the publication of
this rule, USDA will also release an updated FNS Rural Designation Map
to reflect the new, comprehensive framework, which will provide one
comprehensive mapping tool to assist State agencies in determining
rural designations. In addition, this rule adds a new provision to
establish an annual effective date by which USDA will issue updates to
the approved rural data sources to be used for rural designations in
that program year. The IFR also adds an effective period to the rural
designation to establish the frequency at which sponsors must re-
establish rural designation for non-congregate meal service sites. See
section II. G. iv. and section II. B. vi., respectively, for a
discussion of those provisions.
iii. Conditional Non-Congregate Site
Prior to the Act, sites were required to be located in areas which
meet the definition of ``areas in which poor economic conditions
exist'' or qualify as camps. Specific to non-congregate meals, the Act
amended the NSLA to allow meal service in rural areas that are not
areas in which poor economic conditions exist for children who are
determined to be eligible for free or reduced price school meals. The
current regulations under Sec. 225.2 do not include a definition for a
site which qualifies for Program participation on the basis that the
site conducts a non-congregate meal service for eligible children in an
area that does not meet the definitions of ``areas in which poor
economic conditions exist,'' and which does not qualify as a camp.
Under statutory and regulatory requirements, for Program purposes
``areas in which poor economic conditions exist'' is defined as: (1)
The attendance area of a school in which at least 50 percent of the
enrolled children have been determined eligible for free or reduced
price school meals under the NSLP and the School Breakfast Program
(SBP); (2) A geographic area where, based on the most recent census
data available or information provided from a department of welfare or
zoning commission, at least 50 percent of the children residing in that
area are eligible for free or reduced price school meals under the NSLP
and the SBP; (3) A geographic area where a site demonstrates, based on
other approved sources, that at least 50 percent of the children
enrolled at the site are eligible for free or reduced price school
meals under the NSLP and the SBP; or (4) A closed enrolled site in
which at least 50 percent of the enrolled children at the site are
eligible for free or reduced price school meals under the NSLP and the
SBP, as determined by approval of applications in accordance with Sec.
225.15(f). See, 42 U.S.C. 1761(a)(1)(A) and Sec. 225.2. The definition
of ``camps'' included in Sec. 225.2 ``means residential summer camps
and nonresidential day camps which offer a regularly scheduled food
service as part of an organized program for enrolled children.
Nonresidential camp sites shall offer a continuous schedule of
organized cultural or recreational programs for enrolled children
between meal services.''
FNS clarified in its implementation guidance for summer 2023 that
sponsors may claim meals served to children who are eligible for free
or reduced price school meals even if the rural area does not meet the
definition of ``areas in which poor economic conditions exist.'' Non-
congregate meals may be served to children who are not eligible for
free or reduced price meals in rural areas, but they may not be claimed
for reimbursement. Therefore, this rule adds a definition for
``conditional non-congregate site'' to codify this new site type and
clarify applicable Program requirements.
Accordingly, this rule adds the following definition in Sec. 225.2
for ``conditional non-congregate site'' as a site which qualifies for
Program participation because it conducts a non-congregate meal service
for children eligible for free or reduced price meals in an area that
does not meet the definition of ``areas in which poor economic
conditions exist'' and is not a ``Camp'' as defined in Sec. 225.2.
iv. New Site
FNS provides administrative and operational flexibilities for
experienced sponsors and sites that have already operated the SFSP
without significant operational problems. For example, when applying to
participate in the Program, experienced sponsors are not required to
submit the same level of detail regarding organizational and
operational information required of new sponsors and those with
previous operational problems. For new sponsors, and sponsors that
experienced significant operational problems in the previous year,
detailed information is required including, but not limited to, site
information, arrangements for meeting health and safety standards, and
budgets. This information is necessary for State agencies to determine
if new sponsors and sites, or those with previous operational problems,
are capable of administering the SFSP efficiently and effectively, and
complying with all program requirements. Likewise, new sponsors and
sites, and sponsors and sites that have experienced significant
operational problems in the previous year, may be held to more rigorous
levels of training and monitoring, at the State's discretion. To help
clarify requirements for sponsors and sites with varying degrees of
experience and/or success in operating the Program, Sec. 225.2
contains definitions of ``new sponsor'', ``new site'', ``experienced
sponsor'', and ``experienced site''.
For summer 2023, USDA determined and communicated through guidance
that experienced sites which proposed to operate non-congregate meal
service for the first time, including those sites switching from a
congregate meal service model to a non-congregate model or to operating
a hybrid of both congregate and non-congregate models, were ``new''
sites. These sites were required to follow monitoring procedures for
new sites. Through this rulemaking, USDA is codifying the summer 2023
guidance, and requiring that all sites proposing to operate non-
congregate meal service for the first time to use procedures for new
sites (see sections II. B. and F. for application and
[[Page 90238]]
monitoring procedures). Therefore, this rule revises the current
definition of ``new site'' to reflect these changes. This rulemaking
does not affect the experience determination for sponsors.
Accordingly, this rule amends the definition of ``new site'' in
Sec. 225.2 to clarify that experienced sites operating a non-
congregate meal service for the first time are considered new under the
Program.
v. Site Supervisor and Operating Costs
Under this rulemaking, USDA is also modifying existing definitions
of ``site supervisor'' and ``operating costs'' in Sec. 225.2 to
reflect the provision of non-congregate meal service under the Program.
USDA published the final rule, Streamlining Program Requirements
and Improving Integrity in the Summer Food Service Program (87 FR
79213), on September 19, 2022, which added a definition in Sec. 225.2
for ``site supervisor'' stating that the individual on site for the
duration of the meal service, who has been trained by the sponsor, and
is responsible for all administrative and management activities at a
site including but not limited to: ordering meals, maintaining
documentation of meal deliveries, ensuring that all meals served are
safe, and maintaining accurate point of service meal counts.
Therefore, with the new requirements established by the Act for
non-congregate meal service, this rule amends the definition for ``site
supervisor'' to mean the individual who has been trained by the sponsor
and is responsible for all administrative and management activities at
the site, including, but not limited to: maintaining documentation of
meal deliveries, ensuring that all meals served are safe, and
maintaining accurate point of service meal counts. Except for non-
congregate meal service sites using delivery services, the individual
is on site for the duration of the food service.
Program regulations in Sec. 225.2 define the term ``operating
costs'' to mean the cost of operating a food service under the Program,
including the: cost of obtaining food, labor directly involved in the
preparation and service of food, cost of nonfood supplies, rental and
use allowances for equipment and space, and cost of transporting
children in rural areas to meal service sites in rural areas. This rule
amends the definition for ``operating costs'' to include the costs to
deliver non-congregate meals in rural areas under the Program as an
allowable cost.
Accordingly, this rule revises the definition of ``site
supervisor'' and ``operating costs'' in Sec. 225.2 to reflect the
provision of non-congregate meal service under the Program.
vi. Good Standing
Under current Program regulations, there is no definition for good
standing. The final rule, Streamlining Program Requirements and
Improving Integrity in the Summer Food Service Program, 87 FR 57304,
September 19, 2022, reflected on the qualities that contribute to a
Program operator's successful performance. USDA indicated that an SFSP
Program operator would be considered in ``good standing'' if it was
reviewed by the State agency with no major Program findings or it had
completed and implemented all corrective actions from the last
compliance review. In addition, FNS intends to publish the proposed
rule, Serious Deficiency Process in the Child and Adult Care Food
Program (CACFP) and the Summer Food Service Program (SFSP), RIN # 0584-
AE83, which will propose changes to the existing serious deficiency
process in the CACFP for unaffiliated centers and establishes a serious
deficiency process for the SFSP. As part of the rule, USDA will propose
a new definition of ``good standing'' for SFSP. USDA recognizes that
providing further clarification to determine what good standing means
will benefit State agencies and program operators.
USDA has determined that many of the requirements and allowable
options codified at Sec. 225.16(i) for non-congregate meal service
will only be allowed for sponsors in good standing, as discussed in
section II. E. of this rule. However, good standing is not currently
defined under Program regulations at Sec. 225.2. Therefore, in order
to support State agency ability to determine if a sponsor is in good
standing, this rule will codify ``good standing'' to mean the status of
a program operator that meets its Program responsibilities, is current
with its financial obligations, and, if applicable, has fully
implemented all corrective actions within the required period of time.
This definition mirrors the definition that will be proposed in Serious
Deficiency Process in the Child and Adult Care Food Program (CACFP) and
the Summer Food Service Program (SFSP), RIN # 0584-AE83. USDA will
review comments received on this definition both through the proposed
rule, as well as through this rulemaking, and may further revise this
definition as needed in future rulemaking.
Accordingly, this rule adds a definition of ``good standing'' at
Sec. 225.2.
B. State Agency Responsibilities
i. Department Notification
Consistent with provisions under the NSLA at 42 U.S.C.
1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at Sec.
225.3(b), by November 1 each fiscal year each State agency must notify
USDA regarding the State's intention to administer the Program in that
fiscal year. Each State agency desiring to take part in the Program
must enter into a written agreement with FNS for the administration of
the Program. The Act amended section 13(n)(1) of the NSLA to require,
for summer 2023 only, that each State desiring to participate in the
Program must notify the USDA of its intent to administer the Program
and must submit a management and administration plan (MAP) for the
Program by April 1, 2023. In addition, the Act amended section 13(n)(2)
of the NSLA to include that beginning in 2024, each State agency
desiring to participate in the Program must notify the Department by
January 1 of each year.
Accordingly, this rule amends the regulatory deadline at Sec.
225.3(b) for a State to notify the Department of its intent to
administer the SFSP from November 1 to January 1 of each fiscal year.
This rule also makes changes to the MAP requirements in Sec. 225.4,
which are described in this section of the preamble. Finally, this rule
establishes a requirement at Sec. 225.3(e) for State agencies
administering the summer meal programs and Summer EBT Program to
develop and implement a coordinated services plan for the programs in
their State. This plan is a separate requirement from the MAP and is
meant to coordinate the statewide availability of services offered
through the Summer Food Service Program. See section IV. for discussion
of those requirements.
ii. Program Management and Administration Plan
Prior to the Act, provisions under the NSLA at 42 U.S.C.
1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at Sec. 225.4
required State agencies to submit a MAP for approval by February 15 for
the current fiscal year (i.e., a plan that will cover program
operations during the following summer). The State agency must include
the State's administrative budget, an estimate of need for monies to
pay for the cost of conducting health inspections, and the State's
plans for use of Program funds (including providing technical
assistance, monitoring, corrective action, fiscal integrity, and to
ensure compliance with food service
[[Page 90239]]
management company procurement monitoring) in the MAP.
The Act amended section 13(n)(1) of the NSLA to require that, for
summer 2023, each State agency will have until April 1, 2023, to submit
their MAP, which must include the State's plan for using non-congregate
meal service, if applicable, including plans to provide a reasonable
opportunity to access meals across all areas of the State, in addition
to the MAP requirements previously required under the NSLA (i.e., the
State's administrative budget for the fiscal year, an estimate of need
for monies to pay for the cost of conducting health inspections, and
the State's plan for the use of program funds, providing technical
assistance, monitoring, taking timely action against program violators,
certifying fiscal integrity, and to ensuring compliance with food
service management company procurement monitoring). The summer 2023
Program guidance provided State agencies additional information
detailing the plans for implementation of non-congregate meal service
in their MAP. This information included participation projections,
sponsor information, plans for targeting and outreach, how State
Administrative Funds (SAF) would be used to support non-congregate meal
service for summer 2023, and strategies for providing technical
assistance to ensure integrity requirements are met. Guidance also
allowed State agency discretion to establish statewide policies
regarding aspects of rural non-congregate meal service, based on past
experiences gained during the COVID-19 pandemic. State agencies were
required to include statewide details related to the non-congregate
meal service option in the MAP. Summer 2023 MAP submissions indicated
that two State agencies used statewide discretion to prohibit the use
of the non-congregate meal service for summer 2023 operations to allow
them to evaluate non-congregate processes in order to safeguard Program
integrity.
This rule codifies the amendments made to section 13(n)(2) of the
NSLA, which provides that the MAP must include all provisions
previously required under the NSLA, the new additional requirement
under section 13(n)(1), and the State agency's plan for Program
delivery in areas that could benefit the most from the provision of
non-congregate meals. This includes the State's plan to identify rural
areas with no congregate meal service, and plan to target priority
areas for non-congregate meal service. A discussion of the provisions
and an ``area with no congregate meal service'' is described further
below. USDA understands that State agencies are best positioned to
determine how non-congregate meal service may be conducted through
sponsors to provide Program access to eligible children while
maintaining Program accountability. Apart from the case-by-case
determinations outlined in section II. E. of this rulemaking, State
agencies should include any additional proposed statewide requirements
or restrictions and operational safeguards as part of the State's plan
to use non-congregate meal service in their MAP.
Accordingly, this rule codifies non-congregate meal service
requirements in the MAP by adding a new Sec. 225.4(d)(9) and (10). SAF
as outlined in Sec. 225.5, may be requested based on projected program
growth with the additional meals that will be served as a part of both
congregate and non-congregate meal service. The SAF can be used to
support outreach to service institutions and encourage participation in
both congregate and non-congregate meal service, as well as
implementation of program accountability and integrity efforts.
iii. Priorities and Outreach Mandate
Program regulations at Sec. 225.6(a)(2) require that, by February
1 of each fiscal year, each State agency must announce the purpose,
eligibility criteria, and availability of the Program throughout the
State, through appropriate means of communication. As a part of this
effort, each State agency must identify rural areas, Indian Tribal
territories, and areas with a concentration of migrant farm workers
which qualify for the Program and actively seek eligible applicant
sponsors to serve such areas. State agencies must identify priority
outreach areas in accordance with USDA guidance and prioritize outreach
efforts in these areas.
The Act amended section 13(a)(13)(D) of the NSLA to require State
agencies to identify areas with no congregate meal service that could
benefit the most from the provision of non-congregate meals and
encourage participating service institutions in those areas to provide
non-congregate meals as appropriate. Accordingly, this rule amends
program requirements at Sec. 225.6(a)(2) to reflect this new priority
area for State agencies as required by statute. In addition, the rule
revises the paragraph structure at Sec. 225.6(a)(2) to improve the
clarity of the regulations.
iv. Application Requirements--Content of Sponsor Applications and Site
Information Sheets
Annually, each State agency must inform all the previous year's
sponsors which meet current eligibility requirements, as well as all
other potential sponsors, of the application deadline for Program
participation. Program regulations at Sec. 225.6 outline State agency
responsibilities when approving Program sponsors and sites. When
reviewing applications, the State agency should consider the resources
and capabilities of each applicant to sufficiently operate all proposed
sites. This rule clarifies the State agency review requirements for the
content of sponsor application and site application approval, which are
discussed in this section.
Program regulations at Sec. 225.6(g)(1) and (2) require that State
agencies develop site information sheets for new or experienced sites
where a food service is proposed. The site information sheets provide
State agencies with the documentation needed to determine if the site
can demonstrate administrative capability and financial viability to
effectively operate a meal service. The site information sheet
completed by the sponsor must demonstrate or describe the estimated
number and types of meals to be served and times of service;
documentation of eligibility; and, if the site qualifies as a camp,
documentation of the number of children enrolled in the Program who
meet the Program's income standards. New sites are also required to
demonstrate or describe an organized and supervised system for serving
meals to children; arrangements for delivery and holding of meals and
storing leftovers for next day meal service to ensure food safety;
arrangements for food service during periods of inclement weather;
access to means of communication for making necessary adjustments for
number of meals to be served at each site; whether the site is rural or
non-rural; and whether the site's food service will be self-prepared or
vended.
Program regulations do not include site information specific to
non-congregate meal service. Therefore, this rule modifies the minimum
information that must be demonstrated or described on the site
information sheets to reflect the provision of non-congregate meal
service under the Program. This information provided in the site
information sheet for new sponsors must describe an organized and
supervised system for serving meals to children; whether the site is
rural and the documentation supporting the rural designation as
discussed later in this section; whether the meal service is congregate
or non-congregate; and, if the site qualifies as a conditional non-
congregate site, documentation of the number of children enrolled in
the
[[Page 90240]]
Program who meet the Program's income standards. For experienced sites,
the site information sheets must include whether the meal service to be
provided is congregate or non-congregate; whether the site is rural and
documentation supporting the rural designation which is discussed later
in this section; and, if the site qualifies as a conditional non-
congregate site, documentation of the number of children enrolled in
the Program who meet the Program's income standards.
As noted above, this rule is adding a documentation requirement for
experienced sites to demonstrate that they are rural. Current
regulations do not require that the site information sheet demonstrate
or describe whether the site is rural for experienced sites, as
required for new sites or sites with operational problems. This
application requirement was removed for experienced sites under the
Final Rule, Summer Food Service Program: Program Meal Service During
the School Year, Paperwork Reduction, and Targeted State Monitoring (64
FR 72889), to eliminate duplicative and unnecessary requirements for
experienced sponsors, with the intent of reducing the paperwork
associated with the application process for these sponsors. However,
USDA has concluded that determining rurality is necessary for all
Program sponsors due to the effect of a rural designation and non-
congregate participation. This rule also adds an effective period to
the rural designation to establish the frequency at which sponsors must
re-establish rural designation for non-congregate meal service sites,
which is discussed in later in this section of the rule.
In addition, USDA is codifying non-congregate meal service options
under this IFR, as discussed in section II. E. ii. As part of those
options, USDA will require integrity safeguards to prevent unallowable
or duplicate meal distribution. Under this rule, sponsors opting to
distribute multiple days' worth of meals must have procedures in place
that document, to a reasonable extent, that the proper number of meals
are distributed to each eligible child. In addition, sponsors opting to
distribute meals to parents or guardians on behalf of children must
have procedures in place to document that meals are only distributed to
parents or guardians of eligible children and that duplicate meals are
not distributed to any child. Therefore, this rule will require this
information to be included in the applications for new sponsors,
sponsors that have experienced significant operational problems in the
prior year, and experienced sponsors.
Accordingly, this rule adds a new Sec. 225.6(c)(2)(xi) and
(3)(viii) to require that the application for new sponsors, sponsors
that have experienced significant operational problems in the prior
year, and experienced sponsors include procedures to document that
meals are only distributed, to a reasonable extent, to eligible
children and that duplicate meals are not distributed to any child, if
the applicant sponsor is electing to use the non-congregate meal
service options of multi-day meal issuance and parent or guardian meal
pick-up. In addition, this rule amends Program regulations at Sec.
225.6(g)(1)(iv) and(g)(2)(iii) to require sponsors to identify whether
each meal service will be congregate or non-congregate. This rule also
adds new Sec. 225.6(g)(1)(xiv) and (g)(2)(viii) to require Program
sponsors who are operating conditional non-congregate sites to specify
the number of children enrolled who meet the Program's income
standards. In addition, this rule amends requirements at Sec.
225.6(g)(1)(iii) and 225.6(g)(2)(ii) to establish whether a site is
rural, and that documentation supporting the rural designation is
required. This rule also establishes the frequency at which the site
must re-establish rural designation, which is described later in this
section of this rule. Due to the addition of the new requirements, the
rule revises the subordinate paragraph numbering at Sec. 225.6(g)(1)
and (2). Furthermore, this rule amends Sec. 225.6(b)(6) to include
State agency requirements for sponsor application approval related to
site reviews, as discussed in section II. F. of this rulemaking.
Lastly, this rule clarifies the requirement at Sec. 225.6(g)(1)(v)
with terms consistent with those defined in Sec. 225.2.
v. Approval of Sites and Determining No Congregate Meal Service
Program regulations at Sec. 225.6(h) provide the site requirements
that must be evaluated by the State agency before site approval is
granted. Program regulations at Sec. 225.6(h)(1) require State
agencies to ensure the proposed food service site is located in an
``area in which poor economic conditions exist,'' or will serve
specific groups of eligible children; the area which the site proposes
to serve will not be served in whole or in part by another site, unless
it can be demonstrated to the satisfaction of the State agency that
each site will serve children not served by any other site in the same
area for the same meal; the site is approved to serve no more than the
number of children for which its facilities are adequate and; if it is
a site proposed to operate during any unanticipated school closure, it
is a non-school site. Regulations at Sec. 225.6(h)(2)(i), (ii), (iii),
and (v) are specific to congregate meal service operations and require
that each vended site must have an approved level for the maximum
number of children's meals which may be served under the Program, which
is commonly known as a ``site cap.''
Summer 2023 Program guidance provided specific requirements that
the State agency must follow when approving Program sites to operate
non-congregate meal service. Those requirements included:
<bullet> The proposed non-congregate meal service site must be in a
rural area;
<bullet> The area proposing to be served will not be served by a
congregate meal service; and
<bullet> Safeguards must be implemented to ensure children will not
receive more than the maximum allowance of summer meals per day.
All existing application and approval requirements, including the
priority system when approving applicants to operate sites that propose
to serve the same area or the same enrolled children (7 CFR
225.6(b)(5)) and site cap requirements, continued to apply for both
congregate and non-congregate meal service. In addition, summer 2023
guidance also included considerations when determining if an area was
already being served by a congregate site. This guidance allowed for
State agency discretion when approving sites for non-congregate meal
service, if they ensured adherence to the requirements provided above,
but with the caveat that State agencies may not deny a site based
solely on the sponsor's intent to provide a non-congregate meal
service. Sites that served the same children on different days,
different weeks, or for different meals on the same day could provide a
combination of congregate and non-congregate meal service if the State
agency could ensure that the congregate and non-congregate sites would
not serve the same population of children for the same meal service on
the same day. Summer 2023 guidance also allowed congregate sites that
existed prior to that time to switch from congregate to non-congregate
meal service. However, the Department encouraged State agencies and
sponsors to work to identify and prioritize those rural areas that the
congregate Program cannot reliably reach.
USDA received mixed feedback from stakeholders related to defining
an area with no congregate meal service. Some stakeholders suggested
setting parameters for an ``area with no congregate meal service,''
such as a
[[Page 90241]]
specified distance from congregate sites. Other stakeholders suggested
that an ``area with no congregate meal service'' should be left to
State agency discretion, since Program operations vary across States.
One stakeholder suggested requiring sponsors to provide an integrity
plan prior to site approval to avoid meal duplication.
This final rule incorporates new statutory requirements and summer
2023 Program guidance with additional regulatory clarifications as to
how to determine areas with no congregate meal service.
First, in accordance with summer 2023 guidance which stated that
State agencies may not deny a site based solely on the sponsor's intent
to provide a non-congregate meal service, USDA is adding a new Sec.
225.6(b)(12) to require that the State agency must not deny a sponsor's
application based solely on the sponsor's intent to provide a non-
congregate meal service.
Second, this rule amends Program regulations at Sec.
225.6(h)(1)(i) to require that the proposed site will serve an ``area
in which poor economic conditions exist,'' unless it is a conditional
non-congregate site, as discussed in this rulemaking. This rule also
amends Sec. 225.6(h)(2) to clarify that each vended site must have an
approved level for the maximum number of children's meals which may be
served under the Program as they relate to congregate and non-
congregate meal service.
Third, this rule adds a new Sec. 225.6(h)(3) to address the
elements of the proposed site operations that the State agency must
ensure when approving the application of sites to provide non-
congregate meal service. Under this rulemaking, the State agency must
ensure that the proposed site: is rural; will only distribute the
allowable number of reimbursable meals that would be provided over a
10-calendar day period, although the State agency may establish a
shorter calendar day period on a case-by-case basis and without regard
to sponsor type (as described in section II. E.); serves an area in
which poor economic conditions exist or is approved for reimbursement
only for meals served free to enrolled children who meet the Program's
income standards; and will not serve an area where children would
receive the same meal at an approved congregate meal site, unless it
can be demonstrated to the satisfaction of the State agency that the
site will serve a different group of children who may not be otherwise
served. Also, as discussed in sections II. A. and F., this rule
clarifies that all sites proposing to operate non-congregate meal
service for the first time must use procedures for new sites. The rule
reflects this regulatory change by adding a requirement that the State
agency must ensure that the sponsor follows the site information sheet
requirements at Sec. 225.6(g)(1) for new sites, where a non-congregate
food service operation is proposed for the first time.
Fourth, this rule adds a new Sec. 225.6(h)(4) to address the
elements of the proposed site operations that the State agency must
ensure when approving the application of a site which will provide both
a congregate meal service and a non-congregate meal service,
effectively allowing State agencies to approve sites which will operate
both meal services, with some restrictions to ensure the non-congregate
meal service does not compete with or duplicate the congregate meal
service. This includes regulations to require the State agency to
ensure that the proposed site will only conduct a non-congregate meal
service when the site is not providing a congregate meal service, and
that the sponsor has a system in place to prevent meal service overlap
when providing a congregate and non-congregate meal service at the same
site to reasonably ensure children are not receiving more than the
daily maximum allowance of meals. Note that for sites that operate both
congregate and non-congregate service, it is not considered a meal
service overlap if the site provides a congregate breakfast and then a
non-congregate lunch intended to be consumed at a later time offsite
(for example). Finally, the new requirements for approving sites
operating a non-congregate meal service are in addition to the existing
program requirements at Sec. 225.6(h)(1) and (2).
Some stakeholders requested that USDA establish more specific
criteria or standards to define ``an area with no congregate meal
service.'' However, USDA agrees with the majority of stakeholders who
suggested that USDA allow some discretion for State agencies to
consider operational and environmental factors, which may vary by
location. USDA also determined that providing discretion would avoid
introducing complexity into the regulations and allow necessary
flexibility to support successful implementation. USDA intends to
provide additional guidance and technical assistance to support
implementation of this provision.
Accordingly, this IFR adds a new Sec. 225.6(b)(12) to require that
the State agency must not deny a sponsor's application based solely on
the sponsor's intent to provide a non-congregate meal service. The IFR
also makes the following amendments to Sec. 225.6(h):
<bullet> Amends Program regulations at Sec. 225.6(h)(1)(i) to
include conditional non-congregate sites.
<bullet> Adds a new Sec. 225.6(h)(3) and (4) to include site
application approval requirements that State agencies must ensure when
evaluating the proposed site which will provide a non-congregate meal
service and determining an ``area with no congregate meal service.''
<bullet> Revises terminology used in Sec. 225.6(h)(2) to clarify
the applicability of regulations to both congregate and non-congregate
meal services.
vi. Duration of Rural Designation
The Act authorized non-congregate meal service in ``rural areas
where no congregate meal service is available.'' Currently, no
effective period is established in statute, regulations, or guidance
for rural designations. As discussed in section II. B. iv. of this
rule, current Federal regulations do not require an experienced site to
demonstrate it is rural as part of the site information sheets.
However, USDA concluded that determining rurality is a necessary
documentation submission, regardless of the level of site or sponsor
experience, due to the significant effect of a rural designation under
the non-congregate provision added by the Act. Therefore, this rule
adds a new documentation requirement for experienced sites (discussed
at section II. B. iv.) and establishes the frequency at which the site
must re-establish its rural designation.
This rule codifies the requirement that Program sponsors re-
determine their sites' rural designations every 5 years. Once a site is
established as rural based on the rural definition in Program
regulations at Sec. 225.2, the rural status is effective for a period
of 5 years from the date of determination. At the discretion of the
State agency, redetermination prior to the 5-year period may be
required, if the State agency determines that an area's rural status
has changed significantly since the previous determination.
USDA evaluated the effective period for similar application
documentation requirements (such as area eligibility) as well as the
frequency in which the allowable rural data sources are updated. Using
this information, USDA determined a streamlined approach to minimize
administrative burden. Standards, classifications, and delineations of
rural data sources allowed under summer 2023 and moving forward (see
section II.A.ii.) are updated with each decennial census
[[Page 90242]]
and periodically based on annual census surveys. Although more frequent
redeterminations may more accurately and timely capture changes to an
area's rural status, particularly during periods that overlap with
census years, USDA concludes that shorter effective periods for rural
designation may be too burdensome and are unnecessary for State
agencies and Program operators.
Accordingly, this rule adds language at Sec. 225.6(g)(1)(iii) and
(g)(2)(ii) to require new documentation of rural designation every 5
years, or earlier, if the State agency believes that an area's rural
status has changed significantly since the previous determination.
vii. Clarifications to Existing Requirements: Free Meal Policy
Statement, State-Sponsor Agreement, and Corrective Action Procedures
This rule clarifies existing requirements in Sec. Sec. 225.6 and
225.11, which fall under the purview of the State agency. These
clarifications reflect the provision of non-congregate meal service
under the Program, specifically in response to the addition of the new
site type, conditional non-congregate site, as defined under this
rulemaking.
Program regulations at Sec. 225.6 require that State agencies
provide and obtain specific information regarding a sponsor's meal
service sites. Regulations at Sec. 225.6(f) require that as part of
the free meal policy statement, sponsors must submit a
nondiscrimination statement of their policy for serving meals to
children. This rule clarifies that sponsors operating conditional non-
congregate sites are exempt from including a statement that meals
served are free at all sites. In addition, the rule clarifies that
sponsors operating conditional non-congregate sites that charge
separately for meals must also include specific eligibility information
in the policy statement, and that each sponsor of a conditional non-
congregate site must submit a copy of its hearing procedures with its
application.
Furthermore, Program regulations at Sec. 225.6(i) require that a
sponsor approved for Program participation must enter into a written
agreement with the State agency. Under the requirements in which all
sponsors must agree to in writing, the rule clarifies that a sponsor of
sites operating as conditional non-congregate sites are excepted from
serving meals without cost to all children and may charge for meals
served to children who do not meet the Program's income standards.
These sponsors may claim reimbursement only for meals served to
children who meet the Program's income standards. In addition, the rule
clarifies that the requirement to maintain children on site while meals
are consumed only applies for sponsors providing a congregate meal
service. Finally, this rule revises the language at Sec. 225.6(i) to
reflect the definition of ``termination for convenience'' that will be
proposed in Serious Deficiency Process in the Child and Adult Care Food
Program (CACFP) and the Summer Food Service Program (SFSP), RIN # 0584-
AE83. Program regulations at Sec. 225.6(i) allow the State agency or
sponsor to terminate the agreement at its convenience, for
considerations unrelated to the sponsor's performance of Program
responsibilities under the agreement. USDA is revising this language to
clarify that the State agency or sponsor may terminate the agreement at
its convenience, upon mutual agreement, due to considerations unrelated
to either party's performance of Program responsibilities under the
agreement. USDA will review comments received on this definition both
through the proposed rule, as well as through this rulemaking, and may
further revise this terminology as needed in future rulemaking.
Program regulations at Sec. 225.11 require the State agency to use
corrective action procedures to improve Program performance, such as
investigations, denial of applications and termination of sponsors,
meal service restrictions, meal disallowances, corrective action and
termination of sites, and technical assistance for improved meal
service. This rule clarifies that the serious deficiencies of the
simultaneous service of more than one meal to any child and excessive
instances of off-site meal consumption outlined in Program regulations
at Sec. 225.11 (c)(4)(iv) and (viii), respectively, are specific to
congregate meal service operations. Also, as discussed in section II.
B. v. and section II. E. i. of this rule, non-congregate meals must be
served according to the number and type of meals allowed for the site
type at 7 CFR 225.16(b)(3), and sponsors must implement an organized
and supervised system which prevents overlap between meal services to
reasonably ensure children are not receiving more than the daily
maximum allowance of meals. Therefore, USDA is adding a new Program
violation that is specific to non-congregate meal service to the list
outlined at Sec. 225.11(c)(4). Under this IFR, for non-congregate meal
service operations, distributing more than the daily meal limit when
multi-day service is used is considered a serious deficiency which is
grounds for disapproval of applications and for termination when the
violation is recorded at a significant proportion of the sponsor's
sites.
In addition, Program regulations at Sec. 225.11(d) require that,
with the exception of residential camps, the State agency must restrict
to one meal service per day any site determined to be in violation of
the time restrictions for meal service set forth at Sec. 225.16(c)
when corrective action is not taken within a reasonable time, and all
sites under a sponsor if more than 20 percent of the sponsor's sites
are determined to be in violation of the time restrictions set. The
regulations also require the State agency to make a reasonable effort
to locate another source of meal service for these children if this
action results in children not receiving meals under the Program. Given
the exceptions to the meal service time requirements for non-congregate
meal service provided through this rulemaking (see section II. E.), and
that restricting non-congregate sites to one meal service per day could
impact children served by that site, this rule clarifies that non-
congregate meal service sites are also excepted from the meal service
restrictions at Sec. 225.11(d).
Accordingly, this rule amends Sec. 225.6(f) to clarify
nondiscrimination and hearing procedures statement requirements for
non-congregate meal service. Additionally, this rule amends Sec.
225.6(i) introductory text, (i)(4), (i)(7)(i) and (ii), and (i)(15) to
clarify State-sponsor agreement requirements for sites that provide
non-congregate meal service. Lastly, this rule amends Sec.
225.11(c)(4) and (d) to clarify corrective action procedures as they
relate to congregate and non-congregate meal service.
C. Requirements for Sponsor Participation
i. Sponsor Eligibility
Program regulations at Sec. 225.14 outline requirements for
sponsor participation. The requirements include application procedures,
sponsor eligibility, and demonstration of administrative and financial
ability to manage a food service effectively. Sponsor eligibility is
limited to public or private nonprofit SFAs; public or private
nonprofit residential summer camps; units of local, municipal, county,
Tribal, or State governments; public or private nonprofit colleges or
universities which are currently participating in the National Youth
Sports Program; and private nonprofit organizations as defined in Sec.
225.2 and outlined at Sec. 225.14(b). Additionally, Program
regulations at Sec. 225.14(d) provide requirements that are specific
to
[[Page 90243]]
sponsor types, such as camps. The Act requires State agencies to
encourage participating service institutions in rural areas with no
congregate meal service to provide non-congregate meals as appropriate.
Summer 2023 guidance allowed any service institution that met the
definition of sponsor in Program regulations at Sec. 225.2 to
participate in the non-congregate meal service option with State agency
approval, including sponsors new to the Program. Camps were also
allowed to participate, though guidance acknowledged that regulations
require camps to provide a regularly scheduled food service as part of
an organized program for enrolled children, and such programming is
generally understood to be congregate in nature. Furthermore, Summer
2023 guidance instructed that to participate, experienced sponsors must
be considered in ``good standing.'' However, sponsors that have
experienced serious deficiencies in prior years may be approved to
operate non-congregate meal service if, to the satisfaction of the
State agency, all appropriate corrective actions to prevent recurrence
of the deficiencies were taken as outlined in Program regulations at
Sec. 225.6(b)(9).
USDA received stakeholder feedback that expressed integrity
concerns related to non-congregate meal service provided by community
sponsors in recent years, most notably during non-congregate meal
service operations provided during the COVID-19 pandemic. Several State
agencies expressed more confidence in SFAs' ability to operate non-
congregate meal service as compared to other program sponsors due to
their familiarity with NSLP and SBP meal service operations, as well as
potential greater logistical capacity. One stakeholder commented that
in their State only SFA sponsors were allowed to operate non-congregate
meal service. However, three State agencies and four additional
stakeholders emphasized the need to maintain access when considering
important integrity measures. Finally, USDA did not receive direct
feedback on camp (as defined at Sec. 225.2) participation from
stakeholders. A limited number of State agencies reported that they did
not include camps in non-congregate service this summer due to their
interpretation that such sites are inherently congregate in nature.
Program sponsors who provide year-round meal service have
consistent program operations and thus are more readily able to
demonstrate administrative capabilities than sponsors who only operate
during the summer period. Although several stakeholders expressed
concern for certain sponsor types operating a non-congregate meal
service, USDA concludes that all service institutions listed under
requirements at Sec. 225.14(b) are eligible to sponsor the Program,
including providing congregate and non-congregate meal services, and
thus, this rulemaking establishes no restrictions on providing non-
congregate meal service based on sponsor type. This decision is based
on the need to maintain program access and support the stipulation that
all sponsors considered in good standing and who meet all other program
requirements should have the opportunity to provide non-congregate meal
service. This decision also pertains to public or nonprofit private
residential summer camps. As defined in 7 CFR 225.2, camps must provide
a regularly scheduled food service as part of an organized program for
enrolled children, and as mentioned above, such programming is
generally understood to be congregate in nature. However, USDA
recognizes that there may be situations where it makes sense to allow a
camp to operate a non-congregate meal service for their enrolled
children, such as service of the third meal if a congregate meal
service is not provided, or meals provided to be consumed over the
weekend while an enrolled child is in an active camp session, but
during which there are no congregate meals provided. USDA encourages
State agencies to work with potential sponsors of all types to
determine how their proposed site(s) and operations can best serve
communities in identified rural areas that could benefit the most from
the provision of non-congregate meals and fill in gaps in service.
Accordingly, this rule makes no regulatory changes to existing
sponsor eligibility requirements Sec. 225.14(b), effectively allowing
all service institutions listed under requirements at Sec. 225.14(b)
to be eligible to sponsor the Program, including operating both
congregate and non-congregate meal services. Although USDA is not
making changes to sponsor eligibility, this rule limits some meal
service options to sponsors in good standing and retains the meal
service option of offer versus serve to SFAs, as discussed in section
II. E. of this rule.
i. Clarifications to Existing Requirements: General Requirements at
Sec. 225.14(c)
Program regulations at Sec. 225.14(c)(3) require that, to be
eligible to participate in the SFSP, applicant sponsors must conduct a
regularly scheduled food service for children in areas in which poor
economic conditions exist or must qualify as a camp. With the
establishment of the non-congregate option in eligible rural areas,
conditional non-congregate sites, as defined under this rulemaking, can
also provide a regularly scheduled food service for children in non-
area eligible locations.
Accordingly, this rule amends Sec. 225.14(c)(3) to clarify this
qualification for applicant sponsors which will operate a conditional
non-congregate site.
D. Responsibilities of Sponsors
i. Identification and Determination of Eligible Children
As discussed in the background section of this rule, for summer
2023 non-congregate meal service operations, the Act allowed State
agencies to use service models developed for demonstration projects
carried out under section 749(g) of the Agriculture, Rural Development,
Food and Drug Administration, and Related Agencies Appropriations Act,
2010 (Pub. L. 111-80; 123 Stat. 2132). Summer 2023 guidance allowed
home delivery and meal pick-up options as provided in past
demonstrations. The home delivery model allowed for non-congregate
meals to be delivered directly to homes of participants. Program
guidance required that sponsors approved to provide non-congregate meal
service through home delivery must be able to identify and invite
households of eligible children to participate in the meal delivery
service. The guidance also required that sponsors obtain written
consent from the eligible child's parent or guardian that the household
wants to receive delivered meals. Written consent could include hard
copy, email, or other electronic means of communication. Furthermore,
sponsors were required to confirm the household's current contact
information and the number of eligible children in the household to
ensure the correct number of meals were delivered to the correct
location.
In addition, Summer 2023 Program guidance required non-SFA sponsors
that planned to obtain individual children's program eligibility
information through free and reduced price school meal eligibility data
to enter into a written agreement or Memorandum of Understanding (MOU)
with an SFA. However, non-SFA sponsors could also use the household
application procedures outlined in Program regulations at Sec.
225.15(f) to identify eligible children in non-area eligible areas
instead of entering into a
[[Page 90244]]
written agreement or MOU with the local SFA. Lastly, sponsors were
required to protect the confidentiality of participants and their
households throughout the process in accordance with confidentiality
and disclosure provisions in the NSLA and Program regulations at Sec.
225.15(f) through (l). These home delivery requirements were also
implemented during non-congregate meal service during COVID-19
operations.
In the listening sessions held to inform this rule, stakeholders
shared challenges with the home delivery model when providing non-
congregate meal service, particularly, concerns with delivering Program
meals when participants are not home. USDA heard from stakeholders that
communication with participating families was imperative to home
delivery operations. Several stakeholders explained that obtaining
delivery signatures or asking parents to provide delivery instructions
worked well in their State. Another stakeholder suggested text
notifications or reminders to participating families about meal
deliveries would be helpful to confirm someone was home to receive the
meals, and thus ensure a smoother delivery and reduced food waste. In
addition, several stakeholders reported the importance of protecting
student data by requiring a MOU to receive student eligibility data
from a local SFA. One stakeholder requested USDA allow non-profit
sponsors to provide home delivery without requiring an MOU with an SFA,
and that limiting home delivery to students identified through an MOU
with an SFA excludes students who are homeschooled or in virtual school
as well as families with children not yet in school. Finally,
stakeholders also reported concerns with overt identification of those
children who are eligible to receive free and reduced price meals when
providing home delivered meals in non-area eligible areas.
USDA agrees with stakeholders that communication with participating
families and protecting participants' right to confidentiality is
imperative to Program integrity and operations. Therefore, through this
rulemaking, USDA is codifying summer 2023 guidance for obtaining
written parental consent for home delivery. This rule requires sponsors
that provide meals directly to children's homes to obtain written
parental consent prior to providing home delivered meals to children.
While USDA sought to minimize burden on program operators and
participants wherever feasible, the Agency determined that obtaining
written consent prior to delivering meals to private residences is the
only reasonable approach for setting up delivery service with basic
integrity safeguards. Establishing both the presence of children in
each household as well as the household's consent to receive meals is
critical to ensuring Program integrity, and preventing any unnecessary
financial burden, time burden, and potential for food waste, as well as
possible convenience for households. However, USDA appreciates that up-
front time and resource investment associated with obtaining consent
and up-to-date information from households, and seeks comments on
effective strategies to streamline this process and ensure validity of
household information.
USDA is also codifying the requirement that non-SFA sponsors must
enter into a written agreement or MOU with the State agency or local
SFA to receive student data for identification and eligibility
determinations. Program regulations at Sec. 225.15(k) require that the
State agency or sponsor, as appropriate, should have a written
agreement or MOU with programs or individuals receiving eligibility
information, prior to disclosing children's free and reduced price meal
eligibility information. The agreement or MOU should include
information like that required for disclosures to Medicaid and the
Children's Health Insurance Program (CHIP) specified in Program
regulations at Sec. 225.15(k)(2). Sponsors are responsible for the
proper handling and storage of student data with applicable SFAs in
accordance with confidentiality and disclosure provisions in the NSLA
and SFSP regulations (Sec. 225.15(f) through (l)). Program sponsors
should consider safeguards to protect participant confidentiality prior
to implementation of the non-congregate meal service option. USDA
reiterates that sponsors are not limited to using school data or
providing meals to students identified through school data. Both
congregate and non-congregate Program sponsors may use household
applications or other means, such as household's receipt of SNAP,
TANIF, and FDPIR benefits (as described in 7 CFR 225.15(f)(3)) to
identify and notify children in the area of the option to receive meal
deliveries, including students who are homeschooled or in virtual
school as well as families with children not yet in school.
Requirements regarding applications for free Program meals outlined at
Sec. 225.15(f) must be followed when using household applications to
determine the eligibility of children.
Accordingly, this rule adds new Sec. Sec. 225.14(d)(6) and
225.16(b)(5)(i) to require sponsors operating a non-congregate meal
service which delivers meals directly to children's homes to obtain
written parental consent prior to providing meals to the children. In
addition, this rule adds a new Sec. 225.14(d)(8) to establish the
requirement that non-SFA sponsors must enter into a written agreement
or MOU with the State agency or local SFA if they wish to receive
student data for identification and eligibility determination purposes.
i. Meal Ordering and Second Meals
Program regulations at Sec. 225.15(b)(4) allow sponsors to claim
reimbursement for several second meals which does not exceed 2 percent
of the number of first meals served to children for each meal type
(i.e., breakfasts, lunches, snacks, or suppers) during the claiming
period. This option is provided in recognition of the fluctuation in
participation during summer operations which makes forecasting
difficult. The State agency must disallow all claims for second meals
if it determines that the sponsor failed to plan and prepare or order
meals with the objective of providing only one meal per child at each
meal service. Second meals must be served only after all participating
children at the site's meal service have been served a meal. Summer
2023 Program policy only allowed second meals to be claimed at
congregate meal sites. In this rule, USDA maintains its determination
that the purpose and design of the non-congregate meal service option
does not support the basis for claiming second meals at non-congregate
meal service sites.
Accordingly, this rule amends Program regulations at Sec.
225.15(b)(4) to limit reimbursement of second meals to congregate meal
service. State agencies must disallow claims if it determines sponsors
served second meals as part of a non-congregate meal service.
i. Requirements Specific to Sponsors Operating Conditional Non-
Congregate Sites
As stated in the section II. A. of this rule, USDA is defining
conditional non-congregate sites under this rulemaking and clarifying
applicable program requirements. This section describes the changes and
clarifications USDA is making for this new site type as it relates to
Sponsor responsibilities.
[[Page 90245]]
1. Certification To Collect Information on Participant Eligibility
As is discussed throughout this section of the rule, sponsors of
conditional non-congregate sites may only claim meals served to
children who meet the Program's income standards. Program regulations
at Sec. 225.14(d) provide requirements for specific sponsor types,
such as sponsors that operate camp sites, and States that those sponsor
types must certify that they will collect information on children's
Program eligibility to support their claim for reimbursement.
Accordingly, this IFR adds a new Sec. 225.14(d)(7) to clarify that if
the sponsor operates a conditional non-congregate site, it must certify
that it will collect information on participants' eligibility to
support its claim for reimbursement.
2. Notification to the Community
Summer 2023 guidance required sponsors of non-congregate meal
service sites to announce the availability of free meals in the local
media as outlined in Program regulations at Sec. 225.15(e). Program
regulations at Sec. 225.15(e) require sponsors operating the SFSP,
including sponsors of open sites, camps, and closed enrolled sites, to
annually announce the availability of free meals in the media serving
the area from which the sponsor draws its attendance. Sponsors of camps
and closed enrolled sites must notify participants of the availability
of free meals and if a free meal application is needed. The regulations
specify that for sites that use free meal applications to determine
individual eligibility, the notification to the community must include
the Program's income eligibility standards, a statement explaining that
certain children (such as children in households that receive SNAP) are
automatically eligible to receive free meal benefits at eligible
Program sites, and a statement that meals are available without regard
to race, color, national origin, sex, age, or disability. USDA reminds
State agencies and program operators that, despite the introduction of
new SFSP regulations in this IFR, the requirement to provide reasonable
modifications to accommodate participants with disabilities remains
unchanged. With the addition of the new conditional non-congregate site
type to Program regulations, USDA is amending Program requirements at
Sec. 225.15(e) to clarify that sponsors of conditional non-congregate
sites must notify participants of the availability of free meals and if
a free meal application is needed, as with sponsors of camps and closed
enrolled sites. Program regulations at Sec. 225.15(e) continue to
apply to sponsors regardless of the meal service type provided.
Accordingly, this rule amends Sec. 225.15(e) to clarify
notification requirements for sponsors of conditional non-congregate
sites. This IFR also revises the language at Sec. 225.15(e) to reflect
the current federally protected bases for the CNPs, as discussed in
section II. H. of this rule.
E. Non-Congregate Meal Service
i. Non-Congregate Meal Service Requirements
Under the SFSP, meals which may be served to children are
breakfast, lunch, supper, and snacks. A sponsor may claim reimbursement
only for the types of meals the sponsor is approved to serve under its
agreement with the State agency. Sponsors' food service sites may be
approved to serve any combination of two meals or one meal and one
snack during each day of operation, except that lunch and supper cannot
be served on the same day. In addition, sites that serve meals
primarily to migrant children (commonly referred to as ``migrant
sites'' under the Program) or camps may serve up to three meals
(breakfast, lunch, and supper), or two meals and one snack, during each
day of operation. A sponsor may only be reimbursed for meals that meet
the meal pattern requirements, adhere to State and local health,
safety, and sanitation requirements, and which are served during the
approved meal service times, among other meal service requirements at
Sec. 225.16. The Act added additional provisions specific to non-
congregate feeding, which USDA is codifying into regulations through
this rulemaking.
The NSLA was amended to allow States to provide program meals under
the SFSP for non-congregate consumption in a rural area with no
congregate meal service, as determined by the Secretary. In addition,
under the new non-congregate provision, meals may only be claimed when
served to children in an area in which poor economic conditions exist,
or, in an area that is not an area in which poor economic conditions
exist, if the child is determined to be eligible for free or reduced
price school meals under the NSLP or the SBP. Finally, as with any meal
served for congregate consumption, non-congregate meals must be served
according to the number and type of meals allowed for the site type,
and must meet all applicable State, Tribal, and local health, safety,
and sanitation standards, and the nutritional standards prescribed
under the Program meal pattern.
Accordingly, this rule adds a new Sec. 225.16(b)(5) to codify the
additional meal service requirements for non-congregate meals, in
accordance with the statute. In addition, the rule reiterates pertinent
existing requirements that continue to apply to non-congregate meal
service, including restrictions on the number and type of meals served
per operational day, and provisions that sponsors must only be approved
to operate if they have the administrative and operational capability
to do so. This rule makes further changes to the meal service
requirements in Sec. 225.16, which are described in this section of
the preamble.
ii. Non-Congregate Meal Service Options
Under summer 2023 guidance, USDA allowed meal service options
specific to non-congregate feeding including, but not limited to:
multi-day meal issuance; parent or guardian meal pick-up; and bulk meal
components. Based on stakeholder feedback, experience gained under
COVID-19 operations, and summer 2023 implementation, USDA is codifying
the use of these three specified options. The rule also includes
several integrity safeguards, as well as parameters around State agency
approval to use these options through this rulemaking. First, these
meal service options may only be used by sponsors in good standing
(good standing is discussed in section II. A. vi. of this rule), as
determined by the State agency. Furthermore, a State agency may
prohibit sponsors from using these options only on a case-by-case basis
and without regard to sponsor type if the State agency determines that
a sponsor does not have the capability to operate or oversee non-
congregate meal services at their sites. Finally, a State agency's
decision to prohibit a sponsor from using an option is not an
appealable action.
This flexible approach promotes integrity while ensuring that
sponsors who have demonstrated the administrative capability to carry
out these options, are able to use these options as part of a non-
congregate meal service to meet the needs of the children in their
area. Maintaining such access is critical for rural areas which may
benefit from the use of these options where children would otherwise
have to travel long distances to receive a meal.
USDA understands that State agencies are best positioned to
determine how sponsors may conduct non-congregate meal service to
provide Program access
[[Page 90246]]
for eligible children while maintaining Program accountability. USDA
encourages State agencies and sponsors to implement safeguards to
ensure food safety and Program integrity. State agencies should include
any additional statewide requirements and operational safeguards as
part of the State's plan to use non-congregate meal service, as
required for MAPs under this rulemaking (see section II. B. ii. of this
rule).
Accordingly, this IFR adds a new Sec. 225.16(i) to establish the
use of these options for non-congregate meal service. A discussion of
each of the provisions, stakeholder feedback, and USDA's actions and
rationale for each of these options is included below.
1. Multi-Day Meal Issuance
Program regulations under part 225 reflect the long-standing
congregate meal service requirements of the NSLA. Provisions of the
NSLA at 42 U.S.C. 1753(b)(1)(A) and 1761(a)(1)(D) and Program
regulations at Sec. 225.6(i)(15) require Program meals to be served in
a congregate setting and consumed by participants on site in order to
be eligible for reimbursement. The NSLA further requires at 42 U.S.C.
1761(b)(2) that a service institution may only serve up to two meals
(or one snack and one meal) per day, per child (except for camps and
migrant sites which may serve up to three meals (or two meals and one
snack) per day, per child). However, the Act added section 13(a)(13)(E)
[42 U.S.C. 1761(a)(13)(E)] to the NSLA which provides the option to
provide multi-day meal distribution at rural non-congregate sites.
Specifically, it allows that over a 10-calendar day period, the number
of reimbursable non-congregate meals provided to a child does not
exceed the number of meals that could be provided over a 10-calendar
day period under congregate feeding. Under summer 2023 guidance, USDA
did not establish further Federal limitations and allowed State
agencies, at their discretion, to approve sponsors for multi-day
distribution of meals that could be provided over a 10-calendar day
period, consistent with the statute.
During COVID-19 operations, about 30 percent of State agencies
reported that more than half of Program sponsors provided 2 to 3 days'
worth of meals at one time. In addition, about one fourth of State
agencies reported that more than half of these local Program sponsors
provided a full week of meals at one time.\6\ Through the listening
sessions, USDA received varied feedback from stakeholders regarding the
multi-day meal issuance option when used for non-congregate meal
service during the COVID-19 pandemic. Many of the comments focused on
the difficulty of balancing Program integrity with Program access. Some
stakeholders, including a few State agencies, stated that multi-day
meal issuance is an essential method of providing non-congregate meals
in rural areas and praised the benefits to the community, such as the
ability to provide children meals for the weekend. Though, stakeholders
expressed concerns about food safety or food quality when multiple days
of meals are provided at one time, as well as providers' and
households' storage capabilities. Many State agencies reported limiting
multi-day meal issuance to no more than 5- or 7-days during summer
2023, while other State agencies reported prohibiting multi-day meal
issuance for all sponsors due to operational challenges experienced
during the COVID-19 pandemic. Some State agencies noted that they
permitted the maximum number of days' worth of meals allowed (i.e., 10
calendar days) when sponsors provided a valid rationale or a food
safety plan. Acknowledging some State agencies' concerns with multi-day
meal issuance, one stakeholder suggested USDA provide State agencies a
tiered system based on a risk assessment to determine the number of
days' worth of meals that a sponsor or site can distribute at one time.
This tiered system could include years of operation (total and
utilizing non-congregate service), prior review findings, degree of
remoteness of the service area, and presence of other sites in the
vicinity.
---------------------------------------------------------------------------
\6\ Severn, Veronica, Liana Washburn, Rachel Frisk, and Kevin
Conway. (2023). Child Nutrition Program Operations During the COVID-
19 Pandemic, March through September 2020: School Meals Operations
Study (SMO) Year 1 Report. Prepared by Mathematica, Contract No.
12319819A0009/12319819F0162. Alexandria, VA: U.S. Department of
Agriculture, Food and Nutrition Service, Office of Policy Support.
---------------------------------------------------------------------------
This rule codifies into regulations the provision at section
13(a)(13)(E) of the NSLA, as amended by the Act, which requires that
the number of reimbursable meals provided to a child does not exceed
the number of meals that could be provided over a 10-calendar day
period. However, the State agency may establish a shorter calendar day
period on a case-by-case basis for an individual sponsor, considering
possible concerns regarding a sponsor's ability to ensure Program
integrity, food safety, and meal quality. For State agency approval to
operate sites that provide multi-day meal service, sponsors opting to
distribute multi-day meals must have procedures in place that document,
to a reasonable extent, that the proper number of meals are distributed
to each eligible child, these procedures must be included in the
sponsor's application to participate in the Program (as discussed in
section II.B.iv.) and may also impose additional requirements, at the
State's discretion. As noted above, this rule further requires that
multi-day meal issuance may only be used by Program sponsors in good
standing, and that State agencies may only prohibit sponsors from using
these options on a case-by-case basis without regard to sponsor type,
if the State agency determines that a sponsor does not have the
capability to effectively operate or oversee non-congregate meal
services at their sites. USDA encourages State agencies, when
considering the imposition of additional multi-day meal issuance
requirements, to also consider the potential challenges for
participants to access sites (which could include the effort required
for families who reside in remote areas to travel to pick-up sites more
than once per week).
Accordingly, this rule codifies the option for multi-day meal
issuance by adding a new Sec. 225.16(i)(1) to allow State agency
approved sponsors to operate multi-day meal service. Sponsors opting to
distribute multi-day meals must ensure through documented procedures,
approved by their State agency, that the proper number of meals are
distributed to each eligible child.
2. Parent or Guardian Meal Pick-Up
Prior to the Act, provisions under the NSLA at 42 U.S.C. 1761(f)(3)
and Program regulations at Sec. 225.9(d)(7) required that meals must
be served to eligible children. These requirements ensured that Program
sponsors provided meals directly to children who participate in the
SFSP. As previously mentioned, the Act authorized USDA to issue
guidance for summer 2023 rural non-congregate meal service. Through
that guidance, USDA allowed the option for Program meals to be
distributed to parents or guardians to take home to children and for
non-congregate meals to be delivered to participants' homes. During the
COVID-19 PHE, USDA used temporary legislative authority to grant a
nationwide waiver, allowing sponsors to set up meal service in which
parents or guardians could pick up meals for their children, without
requiring the child to be present. This option proved to be a useful
tool for ensuring children's access to Program meals in a non-
congregate setting. USDA established guidance that required Program
sponsors opting to distribute
[[Page 90247]]
meals to parents or guardians to maintain accountability and Program
integrity through processes that ensured meals were only distributed to
parents or guardians of eligible children and that duplicate meals were
not provided.
During COVID-19 meal service operations, Program sponsors that used
the parent and guardian pick-up waiver were required to ensure that
duplicate meals were not provided to any child and that meals were
distributed only to parents and guardians of children. To ensure this
requirement was met, Program sponsors requested that parents and
guardians provide their children's names or other identifying
information when picking up meals.\2\ Similar to multi-day meal
issuance, during the listening sessions, stakeholders provided mixed
feedback on this aspect of operations. While some stakeholders raised
integrity concerns with the possibility of serving meals to non-
participants and cited operational challenges during the pandemic,
others expressed strong support for the option to allow a parent or
guardian to pick up meals without children present. These respondents
in support of the provision stated that the flexibility to provide or
deliver a meal when children are not present is essential to both the
purpose and efficacy of non-congregate service and found that this
option was successfully implemented during the COVID-19 PHE. For
example, multiple stakeholders reported the difficulty that many
families in rural communities experience when required to commute long
distances between work and home, noting that it is often more
convenient for parents to pick up meals on their commute. On the other
hand, some stakeholders reported concerns with oversight of unallowable
or duplicate meal distribution to individuals on behalf of children.
However, 13 non-State agency stakeholders suggested that sponsors know
their rural communities (e.g., who has children and who does not) well
enough to prevent individuals with the intent to defraud from receiving
Program meals. USDA appreciates the attention paid by Program operators
to this aspect of operations during the implementation of non-
congregate meal service and recognizes the importance of ensuring
Program integrity while providing Program access to children who reside
in rural areas.
This rule codifies the option for sponsors in good standing to
allow parents or guardians to pick up Program meals on behalf of
eligible children. As noted above, State agencies have the discretion
on a case-by-case basis to prohibit sponsors, regardless of sponsor
type, from using this option if the State agency determines that the
sponsor cannot adequately ensure these requirements are met. Program
integrity is vital to the success of non-congregate meal service;
therefore, for State agency approval to operate sites that provide meal
pick-up, sponsors opting to distribute meals to parents or guardians
must have procedures in place that document, to a reasonable extent,
that meals are only distributed to parents or guardians of eligible
children, and that duplicate meals are not distributed to any child.
These procedures must be included in the sponsor's application to
participate in the Program. Examples of documented procedures may
include, but are not limited to, using sign-in sheets (including the
use of technology-based solutions which may streamline program
participation and monitoring), or with State agency approval, other
methods which result in accurate recording completed by Program
sponsors that want to implement parent or guardian meal pick-up for
children. State agencies may establish specific criteria or standards
for what should be included in these procedures.
Although State agencies reported the prior use of these integrity
measures among some sponsors during COVID-19 operations, USDA
acknowledges that this type of meal duplication prevention effort may
be new to some Program operators with the addition of the permanent
non-congregate meal service option. USDA seeks to ensure that non-
congregate meals are accessible to all eligible children while
maintaining Program accountability and integrity. Permanent non-
congregate meal service is a distinct approach to providing summer
meals to children compared to the congregate meal service model, and
thus, presents its own set of risks that Program sponsors must take
reasonable steps to mitigate in order to maintain Program
accountability and integrity.
USDA seeks public comments on effective approaches for balancing
integrity and access priorities, while offering parent or guardian meal
pick-up flexibility during summer non-congregate service. Commenters
are specifically encouraged to provide input on:
<bullet> Successful and recommended procedures (ideally those
informed by pandemic or summer 2023 implementation experience), for
ensuring to a reasonable extent that meals are only distributed to
parents or guardians of eligible children;
<bullet> Criteria, standards, or other requirements that may be
established by State agencies to ensure consistency in the approval of
documented procedures to be implemented by sponsors;
<bullet> Minimizing burden on States, sponsors, and families while
maintaining the integrity standards of the Program;
<bullet> The frequency and type of program integrity incidents
witnessed during unannounced reviews, technical assistance visits, and
scheduled reviews; and
<bullet> The desirability or appropriateness of USDA to establish
further integrity controls in relation to parent or guardian meal pick-
up through future guidance and/or rulemaking (including but not limited
to restrictions based on sponsor experience, sponsor type, or site
type).
Accordingly, this rule adds Sec. 225.16(i)(2) to allow State
agency approved sponsors to distribute meals to parents or guardians to
provide to their children. Sponsors opting to distribute meals to
parents or guardians must ensure through documented procedures,
approved by their State agency, that meals are only distributed to
parents or guardians of eligible children, and that duplicate meals are
not distributed to any child.
3. Bulk Meal Items
Summer 2023 implementation guidance permitted State agencies to
approve self-preparation sites to distribute bulk foods to eligible
children to provide multiple days' worth of meals for multi-day meal
issuance, if the foods provided met the component and quantity
requirements for each meal service type (i.e., breakfast, lunch/supper,
snack). Additionally, the guidance required:
<bullet> Foods to be in the proper amounts for each reimbursable
meal being served;
<bullet> Foods to be clearly identifiable as making up reimbursable
meals;
<bullet> Menus to be provided with directions indicating which
items are to be used for each meal as well as the correct portion
sizes; and
<bullet> Minimal preparation is needed, including a prohibition on
foods provided as ingredients for recipes that require chopping,
mixing, or baking.
Through additional guidance, USDA also encouraged sponsors to
consider several factors such as food safety risks, access to kitchen
appliances and cooking tools, and availability of the parent or
guardian to assist with meal preparation. USDA received varied feedback
from stakeholders regarding bulk meal item issuance during the
listening sessions. Similar to multi-day meal issuance, many comments
focused on the difficulty of balancing Program
[[Page 90248]]
integrity with Program access. Stakeholders also expressed concerns
about food safety or food quality, providers' and households' storage
capabilities, the usability of bulk food items, and the challenges
families experience putting the items together to make the meal. Many
State agencies reported limiting the use of bulk meal items, while some
State agencies reported prohibiting bulk foods entirely due to
operational challenges experienced during the COVID-19 pandemic, such
as the difficulty of food usage before spoilage when multiple days'
worth of meals were provided at one time. Some State agencies noted
that they allowed bulk meal item distribution only when provided with a
food safety plan. Though several stakeholders expressed support for
this flexibility, citing reasons including that it gives parents an
opportunity to prepare and serve meals directly to their children,
reduces packing waste, and potentially supports local economies and
farmers.
This rule codifies the option for self-preparation sponsors
approved to operate non-congregate meal service to provide bulk foods
that meet the meal pattern requirements for each meal service type with
added safeguards to ensure Program integrity and the health and safety
of children while promoting access for rural areas. As discussed in
section II. E. ii. 1. of this rulemaking, about 30 percent of State
agencies reported that more than half of Program sponsors provided 2 to
3 days' worth of meals at one time. In addition, about one fourth of
State agencies reported that more than half of these local Program
sponsors provided a full week of meals at a time during COVID-19
operations. Since multi-day meal issuance and bulk food distribution
flexibilities work collectively additional restrictions around this
pairing will be codified through this rulemaking. State agencies must
determine whether a sponsor's proposed distribution of bulk food items
meets State and local health, safety, and sanitation standards. In
addition, when a sponsor is approved to use this option, the sponsor
must ensure that:
<bullet> Required food components for each reimbursable meal served
meet the meal pattern requirements at Sec. 225.16(d);
<bullet> All food items that contribute to a reimbursable meal are
clearly identifiable;
<bullet> Menus are provided and clearly indicate the food items and
portion sizes for each reimbursable meal;
<bullet> Food preparation, such as heating or warming, is minimal.
With State agency and FNSRO approval, sponsors may offer food items
that would require further preparation in circumstances where
distribution of such food items is justified and appropriate; and
<bullet> The maximum number of reimbursable meals provided to a
child does not exceed the number of meals that could be provided over a
5-calendar day period (or less if the State agency established a
shorter calendar day period on a case-by-case basis). However, a State
agency can approve sponsors to provide up to 10 days' worth of bulk
meals, also on a case-by-case basis, in appropriate circumstances such
as extremely remote areas where more frequent distribution is
impracticable. The approved time period may not exceed the time period
for which the sponsor is approved for multi-day meal issuance.
As noted above, under this rule, USDA further codifies that bulk
meal service may only be used by sponsors in good standing. State
agencies have the discretion to limit bulk meal service for Program
sponsors on a case-by-case basis. Additionally, State agencies can
prohibit Program sponsors from using this flexibility, on a case-by-
case basis without regard to sponsor type, if the State agency
determines that a sponsor does not have the capability to operate or
oversee non-congregate meal services at their sites, such as if the
State agency determines that the Program sponsor cannot adequately
ensure the proper number of meals are distributed to each eligible
child.
USDA encourages State agencies to place reasonable limits on the
food items provided or types of food items provided as part of bulk
meal service, dependent on sponsor experience. For this reason, USDA is
seeking comments on best practices for providing bulk food menu items
to inform future rulemaking.
Accordingly, this rule codifies the option to provide bulk meal
items by adding a new Sec. 225.16(i)(3).
iii. Offer Versus Serve
The NSLA in section 13(f)(7) [42 U.S.C. 1761(f)(7)] and Program
regulations at Sec. 225.16(f)(1)(ii) provide that an SFA participating
as a service institution may permit a child to refuse one or more items
of a meal that the child does not intend to eat, under rules that the
school uses for school meals under Program regulations in parts 210 and
220 (7 CFR 210.10(e) and 220.8(e), respectively). Since section
13(f)(7) of the NSLA only authorizes SFAs to use OVS, non-SFA
sponsoring organizations are not permitted to use OVS.
For summer 2023, USDA issued guidance that allowed SFA sponsors
operating non-congregate meal service to utilize OVS with State agency
approval, as long as all meal components or food items were offered,
and all participants had the opportunity to select a complete
reimbursable meal. While OVS is potentially a useful tool for reducing
food waste, many stakeholders expressed concerns about program
integrity and meal quality associated with OVS when meals were mostly
pre-packaged. Several State agencies reported observing improper
implementation of OVS during COVID, stating that some Program sponsors
used OVS exclusively for the milk component instead of offering any
meal components or items as required in SFSP regulations Sec.
225.16(f)(1)(ii). However, the goals of OVS are to simplify Program
administration and reduce food waste and costs while maintaining the
nutritional integrity of the SFSP meal that is served. Therefore, USDA
reminds State agencies and SFA sponsors that when implementing OVS, a
child or parent must be able to decline to accept any component
offered.
Therefore, under this rulemaking, State agencies may only permit
SFAs to operate OVS for non-congregate meal service as outlined in
section 13(f)(7) of the NSLA and at Program regulations Sec.
225.16(f)(1(ii). USDA continues to limit OVS to SFA sponsors, who are
experienced with OVS in the NSLP, to remain consistent with the
statutory requirements of the NSLA and to promote Program integrity.
USDA encourages SFAs that intend to use OVS to carefully consider how
to best implement this flexibility while ensuring that all meal service
requirements are met as outlined in Sec. 225.16(f)(1)(2), and under
parts 210 and 220 at Sec. Sec. 210.10(e) and 220.8(e), respectively.
Some possible strategies for ensuring Program integrity include
providing a buffet style meal pick-up service or utilizing an online
ordering system where children can choose their SFSP meal items prior
to meal pick-up or delivery.
Accordingly, this rule does not make further changes to existing
regulations Sec. 225.16(f)(1)(ii), effectively allowing SFAs to use
OVS when providing non-congregate meal service.
iv. Clarifications To Existing Meal Service Requirements--Meal Service
Times and Offsite Consumption of Food Items
Meal Service Times
Program regulations at Sec. 225.16(c) require meals served in the
SFSP to
[[Page 90249]]
follow specific time requirements. Meal service times must be
established by sponsors for each site, included in the sponsor's
application, and approved by the State agency. Meal service time
requirements also specify that breakfast meals be served at or close to
the beginning of a child's day; all sites except residential camps must
start the next meal service at least one hour after the end of the
previous meal or snack; and meals served outside of the approved meal
service times are not eligible for reimbursement. In addition, meal
service requirements at Sec. 225.16(c) provide instructions for meals
not prepared on site. Specifically, meal deliveries must arrive before
the approved meal service time and meals must be delivered within one
hour of the start of the meal service if the site does not have
adequate storage to hold hot or cold meals at the temperatures required
by State or local health regulations.
USDA determined that some meal service time requirements continued
to apply under the summer 2023 guidance. The guidance instructed that
meal service times must be:
<bullet> Established for each site;
<bullet> Included in the sponsor's application and approved by the
State agency; and
<bullet> Supported through State agency approved pick-up schedules
or delivery plans with designated times for distribution.
The guidance also required that the State agency must approve any
changes in meal service times. Finally, sponsors offering a non-
congregate meal service were not required to serve breakfast in the
morning or provide one hour between the end of one meal service and the
start of the next.
Stakeholders did not provide feedback on meal service time
requirements during listening sessions. However, USDA maintains that
some meal service time requirements are necessary to provide sufficient
control at the State agency and sponsor levels to allow for planned
meal services that meet the needs of the community, consistent with the
summer 2023 guidance. Therefore, through this rulemaking, USDA is
codifying the summer 2023 guidance on meal service time restrictions
for non-congregate meal service.
Accordingly, this rule adds a new Sec. 225.16(b)(5)(iii) to
establish that non-congregate meal service is subject to the time
restrictions for meal service at Sec. 225.16(c)(1), (4), and (5). This
rule also amends Sec. 225.16(c)(2), (3) and (6) to clarify that non-
congregate meal service is exempt from requiring that breakfast must be
served at or close to the beginning of the child's day, that one hour
must elapse between meal services, and that meals not prepared on site
must be delivered within one hour of the approved meal service time for
congregate meal service. Lastly, the rule makes further changes to the
requirements under meal service times in accordance with monitoring
requirements, as discussed in section II.F.i.b. of this rulemaking.
Offsite Consumption of Food Items
Program regulations at Sec. 225.16(h) allow sponsors to permit a
child to take one fruit, vegetable, or grain item off-site for later
consumption without prior State agency approval if all applicable State
and local health, safety, and sanitation standards are met. Sponsors
should only allow an item to be taken off-site if the site has adequate
staffing to properly administer and monitor the site. A State agency
may prohibit individual sponsors on a case-by-case basis from using
this option if the State agency determines that the sponsor's ability
to provide adequate oversight is in question. The State agency's
decision to prohibit a sponsor from utilizing this option is not an
appealable action. With the establishment of the non-congregate option
in eligible rural areas and for meals served to eligible children in
non-rural areas, this option only applies for congregate meal service.
Accordingly, this rule amends Sec. 225.16(h) to clarify that the
provisional flexibility to allow children to take specific food items
for off-site consumption only applies to congregate meal service.
F. Monitoring
Under the Act, the authorization of rural non-congregate meal
service in SFSP expanded meal service options for participating
sponsors and sites. This action changes meal service operations at
sites that will provide non-congregate meals and thus requires
compliance with new regulatory requirements. By conducting reviews of
sponsors and sites, State agencies maintain oversight of Program
compliance; sponsors are also responsible for ensuring that their sites
correctly adhere to Program requirements.
Summer 2023 guidance provided that all existing monitoring
requirements for State agencies and sponsors apply to non-congregate
sponsors and sites. This included pre-approval visits, sponsor and site
reviews, follow-up reviews, meal preparation facility review by State
agencies as required in Program regulations at Sec. 225.7, and site
visits and reviews conducted by sponsors as required in Program
regulations at Sec. 225.15.
USDA received significant feedback from stakeholders regarding
monitoring and general Program integrity related to non-congregate meal
service operations. Stakeholders reported isolated incidents of
improper benefit distribution that occurred during the COVID-19
pandemic at non-congregate meal service operations, which were in place
under temporary waiver authority. States reported incidents of meal
duplication and inaccurate use of meal service flexibilities that
resulted in improper benefit distribution during the pandemic.
Additionally, a few stakeholders noted the delicate balance between
ensuring Program integrity and ensuring Program access.
USDA understands that State agencies are best positioned to
evaluate applicant sponsors and sites for non-congregate meal service
operations. Under this rule, with two exceptions discussed below in
section i. 2., the basic monitoring requirements for type, number, and
frequency of reviews will not change. However, to ensure all Program
operations, both congregate and non-congregate, are properly adhering
to Program requirements, USDA is amending the regulations to
incorporate operational changes concerning pre-approval visits and
sponsor and site review that reflect the introduction of non-congregate
meal service.
USDA seeks to improve Program integrity by assessing how State
agencies, sponsors and sites can use data analysis to detect potential
Program mismanagement in the SFSP. USDA will create guidance materials
and technical assistance tools to leverage Program data to detect
potential Program mismanagement. USDA is seeking comments on best
practices for utilizing data analysis and trends to ascertain Program
irregularities which may be indicative of potential Program
mismanagement to inform future rulemaking.
i. State Agency Responsibilities
1. Pre-Approval Visits
Program regulations at Sec. 225.7(d) require State agencies to
conduct pre-approval visits of sponsors and sites to assess the
applicant sponsor's or site's potential for successful Program
operations. That includes all applicant sponsors that did not
participate in the Program in the prior year, those that had
operational problems noted in the prior year, and any sites that the
State agency has determined need a pre-approval visit. Current
regulations allow pre-
[[Page 90250]]
approval visits of SFA sponsors that had a review with no significant
deficiencies in the preceding 12 months to be conducted at the
discretion of the State agency. Under this rule, that regulation will
be amended to include CACFP institutions. The addition of this
flexibility will ease administrative burden at the State agency while
allowing the State to provide oversight on sponsors with operational
problems and those needing additional technical assistance.
Additionally, this rule will add a requirement that State agencies
must establish a process to determine which sites need pre-approval
visits. This process must consider characteristics of sites including
sites that did not participate in the Program in the prior year,
existing sites that are new to non-congregate meal service, and
existing sites that exhibited operational problems. This requirement
will ensure that applicant sites have the capacity to operate the
Program, including existing sites new to non-congregate meal service
and existing sites that exhibited operational problems in the prior
year. The importance of pre-approval visits was highlighted in the USDA
Summer Food Service Program Integrity Study, which found that a
majority of State directors believed the pre-approval visits were
effective in spotting potential problems.\7\
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\7\ Giesen, L., Gola, A.A, Gearing, M., Gabay, M., Baier, K.,
Bozzolo, C., and Mwombela, B. (2023). Summer Food Service Program
Integrity Study Final Report. Prepared by Westat, Contract No.
12319818A0021; Order No. 12319818F0134. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service, Office of
Policy Support, Project Officer: Chan Chanhatasilpa. Available
online at: <a href="http://www.fns.usda.gov/research-and-analysis">www.fns.usda.gov/research-and-analysis</a>.
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Accordingly, this rule amends Sec. 225.7(d) to allow pre-approval
visits of sponsors which are a CACFP institution that had a review
within the preceding 12 months and had no significant deficiencies to
be conducted by the State agency at their discretion at paragraph
(d)(2). Furthermore, this rule amends the State agency pre-approval
site visit requirement at Sec. 225.7(d) to include that State agencies
must develop a site selection process that considers site
characteristics, including whether an existing site is new to non-
congregate meal service operations, by adding a new regulation at Sec.
225.7(d)(4) and listing site characteristics at paragraph (d)(4)(i),
(d)(4)(ii), and (d)(4)(iii). Lastly, the rule revises the paragraph
structure at Sec. 225.7(d) to improve the clarity of the regulations.
2. Sponsor and Site Reviews
Program regulations at Sec. 225.7(e) require State agencies to
review SFSP sponsors and sites to ensure compliance with Program
regulations by determining an appropriate sample selection of sponsors
and sites to review. In determining which sponsors and sites to review,
the State agency must, at a minimum, consider the sponsors' and sites'
previous participation in the Program, their current and previous
Program performance, and the results of previous reviews. Additionally,
Program regulations at Sec. 210.18(e)(3)(ii) require State agencies
during a school meals administrative review to review a minimum of one
site if the SFA selected for review operates the SSO. Under this rule,
USDA is requiring State agencies to include in the sample selection
SFSP sponsors who operate either congregate or non-congregate sites, or
both, per Sec. 225.7(e)(2). This is to ensure that all meal service
options are included in the sample selection. USDA is also requiring
State agencies to review a minimum of one congregate and one non-
congregate site during a school meals administrative review if the SFA
operates both meal service models. If the SFA has one site that
operates both congregate and non-congregate meal services, the State
agency may review a minimum of one site and must observe both a
congregate and non-congregate meal service at that one site.
Furthermore, regulations at Sec. 225.7(e)(4) require State
agencies to conduct a review of every new sponsor at least once during
the first year of operations, annually review every sponsor that
experienced operational problems in the prior year, review each sponsor
at least once every 3 years, and conduct reviews of at least 10 percent
of each reviewed sponsor's sites. This rule does not change any of
these requirements, which require State agencies to provide adequate
oversight of all SFSP sponsors, including those that are new or exhibit
problems, and conduct site level reviews.
In addition to the above requirements, per current Sec.
225.7(e)(4)(ii), State agencies must also ensure that they annually
review several sponsors whose Program reimbursements, in the aggregate,
account for at least one half of the total Program meal reimbursements
in the State in the prior year. This provision requires States to
review larger sponsors to meet the total reimbursement threshold. These
sponsors are solely selected based on size, which means, in many
States, that larger sponsors must be reviewed every year to meet this
requirement. These large sponsors, such as SFAs who operate CNPs on a
year-round basis, are typically more familiar with Program
requirements. Focusing critical oversight resources on these
experienced sponsors limits the number of reviews that State agencies
can conduct of sponsors who are small to mid-size and may be at risk
for more serious operational challenges.
To provide State agencies the ability to target their resources on
sponsors of all sizes and operational capacity, this IFR removes the
requirement at Sec. 225.7(e)(4)(ii). This will allow State agencies to
adjust to any potential changes in the number of meals served due to
new and existing sponsors operating the non-congregate meal service
option. It will also facilitate the timely identification of issues
that pose a risk to Program integrity. The elimination of this
requirement provides State agencies the ability to review sponsors of
various operational capacities who are not currently being reviewed
with the same frequency as larger sponsors. This will allow State
agencies to target resources on sponsors of all sizes who may pose a
greater risk to Program integrity or need additional monitoring and
technical assistance, by identifying a wider variety of issues based on
criteria such as spikes and anomalies in meal claiming. This will
ensure Program integrity across all SFSP Program operators.
In addition to providing State agencies the ability to focus
resources on sponsor reviews that are not just related to the amount of
Program reimbursements, USDA is also adding under Sec. 225.7(e)(4) a
provision that allows State agencies to more frequently review sponsors
who require additional technical assistance. The addition of this
provision at Sec. 225.7(e)(4)(iv) further ensures integrity in the
Program by allowing State agencies to review sponsors of all sizes more
frequently than the current 3-year review cycle, if the State agency
determines the sponsor needs additional oversight and technical
assistance.
Additionally, USDA is including meal service models, both
congregate and non-congregate, and meal distribution methods in the
review sample under Sec. 225.7(e)(4). The addition of this provision
at Sec. 225.7(e)(4)(v) ensures all types of meal service models and
meal distribution methods are included in the 10 percent of sponsor's
sites required to be reviewed. In terms of the number of sites each
sponsor can be approved to operate, the State agency, per Sec.
225.6(b)(6), must not approve any sponsor to operate more than 200
sites
[[Page 90251]]
or to serve more than an average of 50,000 children per day. However,
if the sponsor can demonstrate that it has the capacity to manage and
operate the Program larger than these limits, the State agency may
approve exceptions. Regardless of the size of the sponsor's operation,
the State agency must have the capacity to conduct reviews of at least
10 percent of the sponsor's sites per Sec. 225.6(b)(6).
Accordingly, this rule amends Sec. 225.7(e)(4) to remove Sec.
225.7(e)(4)(ii), the one-half aggregate review requirement. The rule
will also add a new Sec. 225.7(e)(4)(iv) to include review of
additional sponsors at the State agencies discretion and amend Sec.
225.7(e)(4)(v) for the inclusion of all meal types in the 10 percent
review sample. Additionally, this rule amends Sec. 225.6(b)(6) to
include the requirement that the State agency must have the capacity to
conduct reviews of at least 10 percent of the sponsor's sites when the
State agency approves a sponsor to operate more than 200 sites or to
serve more than an average of 50,000 children per day. The rule also
revises the paragraph structure at Sec. 225.6(b)(6) to improve the
readability of the regulations. Lastly, this rule amends Sec.
210.18(e)(3)(ii) to include the review of a non-congregate site for
SFAs operating non-congregate meal service in the SSO.
Program regulations at Sec. 225.7(e)(5) direct State agencies to
develop criteria for site selection when selecting sites to meet the
minimum number of sites required under paragraph (e)(4)(v). This rule
will include at Sec. 225.7(e)(5)(i)(G) and (H) the type of meal
service (e.g., congregate or non-congregate); if non-congregate, the
type of meal distribution method, in the characteristics used to
determine sites selected as part of the sponsor's review. This
provision will ensure the new meal service model type and meal
distribution method is considered when selecting sites for review.
Accordingly, this rule amends Sec. 225.7(e)(5) to include new non-
congregate meal services at paragraph (e)(5)(i)(G) and (H).
Program regulations at Sec. 225.7(j) require State agencies to
develop and provide monitor review forms to all approved sponsors. The
monitor review form must include, at a minimum, the time of the
reviewer's arrival and departure, the site supervisor's printed name
and signature, a certification statement to be signed by the monitor,
the number of meals prepared or delivered, the number of meals served
to children, the deficiencies noted, the corrective actions taken by
the sponsor, and the date of such actions. This rule will include
whether the meal service is congregate or non-congregate on the monitor
review form, which must be completed by sponsor monitors per Sec.
225.7(j). This ensures that there is a differentiation between the
congregate and non-congregate meal service at each site for each
review.
Accordingly, this rule amends Sec. 225.7(j) to include whether the
meal service is congregate or non-congregate on the monitoring review
form.
Program regulations at Sec. 225.16(c)(1)(iii) require meal service
times to be approved by the State agency. Under this rule, all meal
service times approved by the State agency must be in accordance with
the State agency or sponsor's capacity to monitor the full meal service
during a review. This provision will ensure that the sponsor and State
agency have enough resources and the capacity to review the full meal
service.
Accordingly, this rule amends Sec. 225.16(c)(1)(iii) to clarify
that the approval of meal service times must be in accordance with the
State agency or sponsor's capacity to monitor the full meal service
during a review.
i. Sponsor Responsibilities
1. Training
Program regulations at Sec. 225.15(d)(1) require sponsors to hold
Program training sessions for its administrative and site personnel.
These trainings must, at a minimum, include: the purpose of the
Program, site eligibility, recordkeeping, site operations, meal pattern
requirements, and the duties of a monitor. This rule will include both
congregate and non-congregate meal service in the required training
conducted by the sponsor. This is to ensure that the proper meal
service is operated and monitored by the sponsor's administrative and
site personnel at each site.
Accordingly, this rule amends Sec. 225.15(d)(1) to include the
addition of congregate and non-congregate meal service in the sponsor
Program training sessions for its administrative and site personnel
prior to the operation of a site's first meal service.
2. Site Reviews
Through guidance, sponsors were required to conduct pre-operational
visits for new sites and those that experienced operational problems in
the previous year before a site operates the SFSP. This rule codifies
the requirement for sponsors to conduct pre-operational visits for new
sites and those that experienced operational problems in the previous
year before a site operates the Program per Sec. 225.15(d). Similar to
pre-approval visits conducted by the State agency, pre-operational
visits conducted by the sponsor assist the sponsor in detecting
potential operational issues prior to operation of the Program. USDA
also supports the use of virtual monitoring as a tool to supplement the
required on-site monitoring reviews. Providing technical assistance and
training through virtual technologies may also allow them to be offered
more frequently and increase access to trainings, thereby supporting
Program integrity. In addition, this rule will codify that existing
sites that are new to non-congregate meal service are considered new
sites; and as such are also required to have a pre-operational visit.
This is to ensure that a site has the facilities to provide meal
service for the anticipated number of children that will receive non-
congregate meals and the capability to conduct the proposed meal
service.
Accordingly, this rule amends Sec. 225.15(d) to include pre-
operational site visits for new sites and those that experienced
operational problems in the previous year, including existing sites
switching to non-congregate meal service, to be conducted by the
sponsor prior to a site operating the Program at paragraph (d)(2).
In this rule, current regulations at Sec. 225.15(d)(2), which
require sponsors to visit each of their sites at least once during the
first two weeks of Program operations for all new sites and sites
determined by the sponsor to need a visit based on criteria established
by the State agency, is now moved to paragraph (d)(3); additionally,
paragraph (d)(3) will include the requirement for sponsors to conduct
site visits for all existing sites that are new to non-congregate meal
service within the first two weeks of operation. This ensures that the
food service operation is operating smoothly and to verify information
such as the site address, storage, holding and preparation facilities,
meal distribution method, and service capacity of non-congregate meal
services.
Accordingly, this rule amends Sec. 225.15(d) to include all
existing sites that are new to non-congregate meal service as sites
needing a site visit conducted by the sponsor within the first two
weeks of Program operations at paragraph (d)(3).
Current regulations at Sec. 225.15(d)(3) require sponsors must
conduct a full review of food service operations at each site at least
once during the first four weeks of Program operations. This rule will
move this provision from
[[Page 90252]]
paragraph (d)(3) to paragraph (d)(4). There are no changes to this
provision; however, a full review of food service operations at each
site includes non-congregate rural meal services.
Accordingly, this rule amends the requirement at Sec. 225.15(d)
that sponsors must conduct a full review of food service operations at
each site at least once during the first four weeks of Program
operations and will be located at paragraph (d)(4).
G. Miscellaneous
i. Collection of Summer Meal Site Location Data
Section 26(d) of the NSLA (42 U.S.C. 1769g(d)) mandates that the
USDA enter into a contract with a non-governmental organization to
establish and maintain an information clearinghouse (named ``USDA
National Hunger Clearinghouse'' or ``Clearinghouse'') of groups that
assist low-income individuals or communities regarding nutrition
assistance programs or other assistance. The Clearinghouse includes a
database of non-governmental, grassroots organizations in the areas of
hunger and nutrition, along with a mailing list to communicate with
these organizations. The Clearinghouse also operates the USDA National
Hunger Hotline, through which assistance is provided via phone or text
message. Local level antihunger organizations enter their information
into the database, and Clearinghouse staff use that information to
provide the public with information about where they can get food
assistance. SFSP and SSO meal sites are a component of this assistance.
USDA works closely with State agencies to ensure that children who
receive free or reduced price school meals continue to receive the
nutrition they need when schools are closed--whether during summer
break or unexpected closures during the school year. Through USDA's
summer meal programs, approved sites in communities across the country
can serve meals to children up to age 18 at no cost. During the summer
operational period (May through September), USDA collects summer meal
site information from State agencies via the Summer Food Site Locator
form (FNS-905). Unlike other resources in the Clearinghouse, this form
is specific to the summer meals programs and may only be completed by
State agencies. The data collected populates the Clearinghouse database
with summer meals site information and locations. Data are also
integrated into public-facing web tools. One such tool is the Summer
Meals Site Finder (Site Finder). This mapping tool was developed by
USDA to help children, parents, and others quickly and easily find
summer meal sites near them. The Site Finder, available for use at no
charge, is a web-based application that also works on tablets,
smartphones, and other mobile devices without the need to download
software or other data. The mapping tool allows users to enter an
address, city, State, or zip code to find up to 50 nearby site
locations, along with their addresses, hours of operation, and contact
information, and directions. State agencies provide data to FNS to be
mapped on the tool and update the data throughout the summer to include
operational changes and new site locations.
The form FNS-905, which may only be completed by State agencies,
collects details about each site such as times, days, and dates of
operation, location, types of meals served, contact information, and if
the site is open to the public. Sponsors provide this information to
their State agencies during the sponsor and site application process as
required by Program regulations at Sec. 225.6. Currently, completing
the FNS-905 is voluntary, though USDA requests those State agencies
that choose to participate to complete the form at least once per the
summer operational period, and submit weekly updates, as needed, during
summer operations. As of summer 2022, most State agencies submitted
FNS-905 forms at least once per summer.
Other interested parties have used the data collected on the FNS-
905 in the creation of mobile applications and texting services. The
data has also been used by State agencies to plan summer site visits,
by Program sponsors to strategically plan for future years' summer
feeding operations, and by researchers in academic institutions. In
addition to members of the general public, other interested parties may
include nutrition or health education professionals, State or local
government health officials, nutrition councils, public interest
advocates, private foundations, and corporate officials.
USDA has also used these data collected from the FNS-905 to improve
integrity and to analyze policy proposals, as well as to report to
executive agency officials and Congress real-time results that cannot
be ascertained through other reporting methods. The Clearinghouse also
supports the USDA National Hunger Hotline and texting service, which
refers people in need anywhere in the U.S. to food pantries, soup
kitchens, grassroots organizations and, in this case specifically,
approved open summer meal sites. The data collected using the FNS-905
is updated by USDA once per week during the summer meal programs'
operating period and posted on an open data platform that is always
accessible to the public.
The introduction of the rural non-congregate meal service option
provides USDA and Program operators with a new opportunity to expand
access to the summer meal programs. The value and far-ranging use of
summer meal site data demonstrates the need for timely, accurate, and
complete data to be available for the public. In addition, this is the
only public resource that provides detailed meal site information
across all States and territories, which emphasizes the need to collect
this data and share it with families searching for summer meal sites in
their area. In line with these changes, USDA will require State
agencies to submit summer meal site data to FNS via the FNS-905.
As stated previously, nearly all States and territories already
provide this data to USDA on a voluntary basis during the summer
season, though USDA recognizes the potential administrative burden and
systems changes associated with introducing a new, mandatory reporting
requirement for State agencies. Further, USDA understands the need to
provide sufficient time to update current systems to accommodate this
change. Therefore, USDA will delay implementation of the reporting
requirement until one year after the publication of this IFR. USDA is
also seeking to modernize data submission and processing, and the Site
Finder tool. As such, USDA seeks comments from State agencies on the
implementation of mandatory reporting requirements, including form and
procedural changes:
<bullet> When is the earliest that your State submits the initial
site information to USDA? Are there factors that impact when you are
ready to submit this information to USDA, such as application deadline
and processing?
<bullet> How frequently does your State submit to USDA updates on
summer meal sites during the Site Finder operational period?
<bullet> How often do operations (e.g., hours/locations, type of
site) of existing sites change, or how often during the summer are new
sites added?
<bullet> What would be the optimal reporting schedule for summer
meal site data submissions?
<bullet> How does your State agency assess the accuracy of summer
meal site data at the State level, and ensure accuracy of site
information at the sponsor and site level?
<bullet> What are best practices to solicit from sponsors timely
and accurate
[[Page 90253]]
updates to site information such as meal service type, times, days, and
meal types, and to ensure operational changes are reflected in the
State's system and the site data that is reported to FNS?
USDA also welcomes comments from stakeholders and the general
public on how summer meal site data and USDA's Site Finder mapping tool
can be made more usable and useful.
Accordingly, this rule adds a new Sec. 225.8(e) to require States
agencies submit to FNS a list of open site locations and their
operational details via the Summer Food Site Locator form (FNS-905) by
June 30 of each year, or a later date approved by the FNSRO, and
provide a minimum of two updates during the summer operational period.
However, State agencies are encouraged to submit weekly updates if
there are any changes to the State agency's data, to ensure families
have the most up-to-date site information. These amendments are
effective December 30, 2024.
ii. Reimbursements
The NSLA was amended to establish the non-congregate meal service
option for rural areas with no congregate meal service for sites that
are located in areas in which poor economic conditions exist. It also
establishes an option for meals served to children certified as being
eligible for free or reduced price meals under the NSLP and the SBP who
reside in rural areas that are not documented as areas in which poor
economic conditions exist, which is codified as a ``conditional non-
congregate site'' under this rule at Sec. 225.2. For this reason, all
meals served at an approved rural site implementing non-congregate
service are eligible for SFSP or SSO reimbursement. SFSP sponsors are
eligible to receive the rural or self-preparation site reimbursement
rate for each meal served to participating children at rural sites (7
CFR 225.9(d)(7)). However, as previously discussed in this rulemaking,
sponsors of conditional non-congregate sites may only claim meals
served to children who meet the Program's income standards. Section
II.D.iii. (Responsibilities of Sponsors) of this IFR also discusses a
change to Sec. 225.14(d)(7) clarifying that if the sponsor operates a
conditional non-congregate site, it must certify that it will collect
information to determine children's Program eligibility to support its
claim for reimbursement. Furthermore, section II.D.ii.
(Responsibilities of Sponsors) of this IFR discusses the change at
Sec. 225.15(b)(4) to limit reimbursement of second meals to congregate
meal service. Therefore, this rule also makes changes in Sec. 225.9
regarding Program assistance to sponsors reflecting these
clarifications.
Accordingly, this rule adds a new Sec. 225.9(d)(11) to require
that sponsors of conditional non-congregate sites are reimbursed only
for meals served to children whose eligibility for Program meals is
documented. In addition, this rule amends Sec. 225.9(f) to clarify the
State agency must ensure that reimbursements for second meals are
limited to the percentage tolerance established when reviewing a
sponsor's claim for congregate meals served.
iii. SSO Non-Congregate Provisions
The Act amends the NSLA and instructs USDA to promulgate
regulations to carry out the new provisions under section 13 of the
NSLA, establishing an option to provide non-congregate summer meal
service in rural areas with no congregate meal service. Consistent with
long-standing summer meal service program administration, USDA
interpreted this statutory authority as extending to the SSO, which is
similarly authorized under section 13 of the NSLA. Therefore, through
this IFR, USDA is codifying the availability of rural non-congregate
meal service through the SSO. Under this rulemaking, an SSO site in a
rural area may be approved to offer a non-congregate meal service
consistent with the requirements under part 225. SFAs approved to offer
a non-congregate meal service must comply with the non-congregate meal
service provisions set forth at Sec. 225.16(b)(5)(i) and (iv) by this
IFR (section II.E.i.) and may use the non-congregate meal service
options described in Sec. 225.16(i) under this IFR (section II.E.ii.).
In addition, this rule defines the SSO under parts 210 and 220 to mean
that the meal service alternative authorized by section 13(a)(8) of the
Richard B. Russell National School Lunch Act, 42 U.S.C. 1761(a)(8),
under which public or nonprofit school food authorities participating
in the National School Lunch Program or School Breakfast Program offer
meals at no cost to children during the traditional summer vacation
periods and, for year-round schools, vacation periods longer than 10
school days.
As part of this IFR, USDA invites public comments on these new
provisions affecting SSO, specifically whether additional requirements
should be codified to facilitate and provide clarity on the provision
of rural non-congregate service through the SSO.
Accordingly, this IFR adds a new definition of the SSO in
Sec. Sec. 210.2 and 220.2 and adds new Sec. Sec. 210.34 and 220.23
which will set forth the rural non-congregate provisions for the SSO.
iv. Annual Update To Approved Rural Data Sources
As discussed in section II. A. ii., under this IFR, USDA is
expanding the definition of ``rural'' in Sec. 225.2 to allow the use
of multiple recognized Federal classification schemes to designate
areas as rural. The amended definition of ``rural'' will also provide
discretion to USDA for any potential updates or changes to
classification schemes at a future date. Although these recognized
Federal classification schemes are updated with each decennial census
and periodically based on annual census surveys, though this
rulemaking, USDA is making a commitment to issue updates by January 1
of each year, or as soon as is practicable, in order to have an
established effective date for new data or updates to be used by State
agencies and program operators for rural designations in that Program
year. USDA will also make this data available and update the FNS Rural
Designation Map to provide this information in a simplified format.
Accordingly, this IFR adds a new Sec. 225.18(l) to establish an annual
effective date by which USDA will issue updates to the approved rural
data sources to be used for designations in that program year. USDA
will make this information available and referenceable in a simplified
format.
H. Technical Amendments
USDA is removing obsolete provisions from the Code of Federal
Regulations (CFR) in 7 CFR part 225. Section 225.14(d)(4) references
requirements specific to sponsors that administer homeless feeding
sites. The Child Nutrition Reauthorization Act of 1998 eliminated
homeless sites in SFSP. Accordingly, these requirements are removed
from the regulations.
This rule also includes amendments to correct several technical
errors found in 7 CFR part 225. USDA will make technical changes to the
designation of paragraphs to comply with current paragraph structure
requirements for the CFR, where errors appear in the subsections of
part 225 that are amended by this rule. This rule also makes several
additional technical changes to fix a small number of obsolete terms of
usage and punctuation. Finally, the Department will also make non-
substantive technical changes to existing language to provide
consistency and improve readability of regulations in subsections of
part 225 that are amended by this rule. None of the technical changes
will effect a substantive change in the Program.
[[Page 90254]]
Accordingly, this rule amends Program regulations to:
<bullet> Replace the term ``handicapped'' with the term
``disabled'' in the definition of ``children'' at Sec. 225.2;
<bullet> Correct the numbering of the subordinate paragraphs in the
definitions of ``Children,'' ``Operating Costs,'' and ``Rural,'' and in
paragraphs (d) and (j) in Sec. 225.7, and paragraph (d) in Sec.
225.11;
<bullet> Correct the punctuation in Sec. Sec. 225.6(i) and
225.7(j);
<bullet> Replace reference to the Food Stamp benefit, renamed the
Supplemental Nutrition Assistance Program (SNAP) benefit, that appears
under Sec. 225.15(f)(3);
<bullet> Improve the readability of regulations at Sec. Sec.
225.6(a)(2), (b)(6), 225.9(d)(9), and 225.15(b)(3);
<bullet> Replace the word ``believes'' with the word ``determines''
in Sec. Sec. 225.6(g)(1)(vii)(C), (g)(1)(ix)(C), (g)(2)(iv)(C),
(g)(2)(v)(C), and 225.16(e)(4);
<bullet> Replace the term ``shall'' with the term ``must'' where it
appears in the subsections of part 225 that are amended by this rule;
and
<bullet> Revise the language that appears under Sec. Sec.
225.6(f)(1)(iii)(F), 225.7(n)(1), and 225.15(e) to reflect the current
federally protected bases for the CNPs.
I. Severability
The statutory enhancement of the USDA SFSP and SSO to include the
option for rural operators to use alternate service models, including
the non-congregate rural option, that are tailored to the needs of the
communities they serve is essential for ensuring that all children
receive nutritious meals during the summer months when school is not in
session. As directed by statute, USDA implemented the SFSP and SSO
rural non-congregate option in Summer 2023, with careful attention to
meeting the needs of rural communities, while protecting program
integrity. Based on the statutory requirement to expand the SFSP and
SSO for Summer 2024, USDA has determined that its authority to
implement the regulation through this interim final rule is well-
supported in law and practice and should be upheld in any legal
challenge. Further, USDA has determined that its exercise of its
authority reflects sound policy. However, in the event that any portion
of the rule is declared invalid, USDA intends that the various aspects
of the use of alternate service models be severable. For example, if a
court were to find any provision unlawful, such as (1) the definition
of ``rural'' for program purposes, (2) the State agency's authority to
approve a sponsor's request for a rural designation, (3) the provision
of both congregate and non-congregate meals at a single site, or (4)
some other aspect of this rule, USDA intends that all other provisions
in the rule will remain in effect to ensure effective implementation of
the rural non-congregate option. USDA has concluded that it is in the
interests of both rural communities and the children who reside in them
for nutritious meals to be provided using alternate service models
during the summer months when school is not in session. Furthermore, in
the event any part or the entirety of the non-congregate rural option
established by this rulemaking were declared invalid, such option is
severable and does not prevent the Summer EBT program, discussed below,
from proceeding since the non-congregate rural option and Summer EBT
program function independently.
III. Discussion of the Interim Final Rule--Summer EBT
Subpart A--General
i. General Purpose and Scope
This rulemaking establishes the regulations through which the
Secretary of Agriculture will administer the Summer EBT Program.
Section 13A of the Richard B. Russell National School Lunch Act (NSLA),
42 U.S.C. 1762, authorizes the Secretary to establish a program under
which States, as well as Indian Tribal Organizations that administer
the Special Supplemental Nutrition Program for Women, Infants, and
Children (WIC), electing to participate in the Summer EBT Program must,
beginning in Summer 2024 and annually thereafter, issue to each
eligible household Summer EBT benefits. As provided for in section
13A(a), the Summer EBT Program was established ``for the purpose of
providing nutrition assistance. . .during the summer months for each
eligible child, to ensure continued access to food when school is not
in session for the summer.''
Accordingly, this program's purpose and scope are codified in a new
7 CFR 292.1.
i. Definitions
Implementation of the Summer EBT Program will necessitate new
systems and processes, and with them, new definitions. Some of the
definitions in this rulemaking are identical to, or adapted from,
definitions in Child Nutrition Program, SNAP, or WIC regulations. Other
definitions have been created in this rulemaking to clarify specific
functions and terms essential to the Summer EBT Program and are
entirely new.
1. Existing Definitions
The following existing definitions from elsewhere in USDA
regulations are codified in this rule without change:
Act; Acquisition; Advance Planning Document for project planning or
Planning APD (APD or PAPD) Advance Planning Document Update (APDU);
Commercial Off-the-Shelf (COTS); Continuous school calendar; Current
income; Department; Electronic Benefit Transfer (EBT) account;
Electronic Benefit Transfer (EBT) card; Electronic Benefit Transfer
(EBT) contractor or vendor; Electronic Benefit Transfer (EBT) system;
Enhancement; FNS; FNSRO; Firm; Information System (IS); LEA;OIG;
Project; Request for Proposal (RFP); SNAP; Secretary; State;
Territories; and WIC.
2. Modified Definitions
The following definitions from elsewhere in USDA regulations were
adapted to reflect the unique needs of the Summer EBT Program.
2 CFR part 200. Minor modification from 7 CFR part 210, which
includes the following: (NOTE: Pre-Federal Award Requirements and
Contents of Federal Awards (subpart C) does not apply to the NSLP).
Administrative costs. This definition was modified from 7 CFR 225.2
to refer to the Summer EBT program instead of the Summer Food Service
Program.
Adult. Modified from 7 CFR 245.2 to clarify that the need for the
definition itself is for application purposes, and to change from 21 to
18.
Categorically eligible. Modified from 7 CFR 245.2 to refer to
Summer EBT rather than free meals or milk.
Disclosure. Modified from 7 CFR 245.2 to refer to Summer EBT
eligibility rather than free and reduced price meal eligibility.
Enrolled students. Modified from 7 CFR 245.9 to refer to students
who are enrolled in and attending NSLP/SBP schools who have access to a
meal service (breakfast or lunch) on a regular basis.
Household. At 7 CFR 245.2 ``Household'' means ``family.'' And at 7
CFR 245.2 ``Family'' means a group of related or nonrelated
individuals, who are not residents of an institution or boarding house,
but who are living as one economic unit.'' Summer EBT does not use the
term family, so household is defined and used throughout.
Implementation Advance Planning Document or Implementation APD
(IAPD). Modified from 7 CFR 277.18 to
[[Page 90255]]
conform with Summer EBT requirements and processes.
Income eligibility guidelines. Modified to specify the programs for
which the Income Eligibility Guidelines apply.
Indian Tribal Organization (ITO). Adapted from other definitions of
ITO used by USDA programs and modified to reflect that only ITOs that
administer WIC are eligible to administer Summer EBT.
SNAP Eligible foods. This definition is the same as the definition
of ``Eligible foods'' at 7 CFR 271.2. It is modified here to specify
that these are SNAP eligible foods.
SNAP Retail food store. This definition is the same as the
definition of ``Retail food store'' at 7 CFR 271.2. It is modified here
to specify that these are SNAP retail food stores.
Vendor. Modified from 7 CFR 271.2 to reference Summer EBT instead
of SNAP.
Verification. Modified from 7 CFR 245.2 to reference Summer EBT
instead of NSLP/SBP and to state that direct verification is required
rather than optional.
Verification for cause. Modified from 7 CFR 245.6a(c)(7) to
reference Summer EBT agencies.
3. New Definitions
The following new definitions were developed specifically for the
Summer EBT Program.
Cash-Value Benefit (CVB) this term relates to the type of benefit
that is a fixed-dollar amount used to obtain supplemental foods by
participants served by an ITO for purposes of the Summer EBT program.
It is an option for ITO benefit delivery.
Dual participation. This term was developed to describe a
prohibited situation in which a child is receiving multiple Summer EBT
benefits simultaneously.
Eligible child. This definition was developed to describe the
unique population of children who are eligible for the newly created
Summer EBT Program.
Eligible household. This definition was created in the Consolidated
Appropriations Act, 2023 (Pub. L. 117-328) for the purposes of Summer
EBT.
Expungement. This term describes removal of Summer-EBT benefits and
was not previously defined in regulations at 7 CFR 274.2 or other USDA
regulations.
Direct verification. Direct verification is conducted in the NSLP/
SBP; however, this term was not previously defined in regulations at 7
CFR 245.6a.
Food instrument. This term is applicable to ITOs administering the
Summer EBT program, with the same meaning as the definition set forth
in regulations at 7 CFR 246.2.
Instructional year. This definition is included to reflect language
introduced in the Consolidated Appropriations Act, 2023 (Pub. L. 117-
328).
ITO Service Area. This definition was developed to describe the
geographic area served by an ITO Summer EBT agency.
NSLP/SBP. This term was not previously defined in 7 CFR 245.2 or
other USDA regulations.
NSLP/SBP application. Distinct from the definition at 7 CFR 245.2
for ``Household application,'' this term specifically refers to NSLP/
SBP household income applications.
Period of eligibility. This definition was created to describe the
time period in which a child may be deemed eligible for Summer EBT
benefits.
Program. This definition was created to reference the new Summer
EBT program that is codified in 7 CFR part 292.
Rolling verification. This definition was created to describe the
process by which verification may be conducted for Summer EBT
applications on a rolling basis.
School aged. This definition was created to describe a subset of
the population which is the appropriate age to be in school in a State
or ITO.
Special Provision school. This definition was created to
efficiently describe a school that elects Provision 1, Provision 2,
Provision 3, or the Community Eligibility Provision to operate the
National School Lunch and/or School Breakfast Programs and that does
not conduct annual, individual eligibility determinations for all
students.
Streamlined certification. This definition describes a process
specific to the Summer EBT program where eligible children may be
issued benefits without needing to submit a Summer EBT application, and
benefits may be issued without confirmation of school enrollment data.
Summer EBT application. This definition describes an application
that can be used to establish eligibility for Summer EBT benefits.
Summer EBT agency. This definition describes the entities which
enter into a written agreement with FNS to administer Summer EBT
including State agencies and ITOs.
Summer operational period. This definition was created to describe
the period for which Summer EBT benefits will be issued.
Supplemental foods. This definition was created in section
13A(h)(4) of the NSLA. The definition is applicable to ITOs
administering the Summer EBT program.
Accordingly, these definitions are codified in a new 7 CFR 292.2.
i. Administration
1. Delegation of Responsibilities
Since 2010, USDA, States, and ITOs have worked together to
implement and evaluate the provision of EBT benefits in the summer to
ensure kids can get the nutrition they need when school is not in
session, including through SEBTC demonstration projects and, more
recently, P-EBT. Thanks to the dedication and perseverance of our State
and ITO partners, USDA has been able to overcome many obstacles and
challenges to standing up these programs and have also learned valuable
lessons about successful Program implementation. In establishing P-EBT,
Child Nutrition and SNAP State agencies collaborated and committed to
helping children and their families in times of need. This same level
of commitment and collaboration will be critical to the success of the
Summer EBT Program as well. It is important for State agencies
administering SNAP and/or Child Nutrition Programs to work together in
a collaborative way to determine the appropriate roles and
responsibilities of each to ensure successful program implementation
and a positive customer experience. While USDA expects that most ITOs
administering WIC will administer Summer EBT through just the WIC
agency, ITOs might also find that an agency partnership is appropriate.
USDA also urges States and ITOs to work with their legislatures and/or
Tribal leadership to determine any changes in State or Tribal law
needed to support effective Program implementation, and to identify
State or Tribal funds to cover the State or ITO portion of Summer EBT
administrative costs.
USDA has delegated administration of the Summer EBT Program to FNS
and FNS will act on behalf of the Department to administer the Program.
See 7 CFR part 2, subpart I (Delegations of Authority by the Under
Secretary for Food, Nutrition, and Consumer Services). In turn, FNS
will delegate administration of Summer EBT to States and ITOs approved
to operate the Program pursuant to a written agreement. The Governor or
other appropriate executive or legislative authority of each State or
ITO will designate one or more Summer EBT agencies to be responsible
for the administration of the Summer EBT
[[Page 90256]]
program within the State or ITO. Each administering agency will enter
into a written Federal-State agreement with USDA for the administration
of the Program and will be known as a ``Summer EBT agency.'' If more
than one Summer EBT agency is named within a State or ITO, a
coordinating Summer EBT agency must also be named and all other
agencies with an agreement with USDA will be partnering Summer EBT
agencies. Although USDA expects that agencies within a State or ITO
will partner effectively in the administration of the Program, USDA has
determined that it will be beneficial for each State or ITO with more
than one Summer EBT agency to designate a coordinating agency. If only
one agency within the State or ITO will be responsible for
administering the Program, designation of partnering agencies is not
applicable. USDA will work with States to ensure it is appropriate to
designate only one agency while still meeting all Summer EBT
regulations and requirements. Each State or ITO will decide how Summer
EBT responsibilities will be delegated across their administering
agencies. To ensure clear roles and responsibilities, the Summer EBT
agencies within a State or ITO must enter into an inter-agency written
agreement that defines the roles and responsibilities of each, as well
as the administrative structure and lines of authority. USDA suggests
that States and ITOs evaluate their resources and capabilities, and
consider administrative and cost efficiency, the customer experience,
program integrity, and their previous Summer EBT and/or P-EBT
experiences when determining how to structure their program's
administration. For the purpose of this interim final rule and Summer
EBT regulations codified at 7 CFR part 292, the term `Summer EBT
agency' refers to all agencies within the State or ITO that have an
agreement with USDA to administer the program unless the coordinating
or partnering agency is specified. For example, Sec. 292.13(a)
requires the Summer EBT agency to make a Summer EBT application
available to households with children enrolled in NSLP or SBP-
participating schools. The regulations require that this activity is
completed, a
[…truncated; see source link]Indexed from Federal Register on December 29, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.