Afterschool Snacks in the Child and Adult Care Food Program, 41591-41611 [E7-14642]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 72, Number 146 (Tuesday, July 31, 2007)]
[Rules and Regulations]
[Pages 41591-41611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14642]



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Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Rules 
and Regulations

[[Page 41591]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 226

[FNS-2007-0004]
RIN 0584-AD27


Afterschool Snacks in the Child and Adult Care Food Program

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule incorporates into the Child and Adult Care 
Food Program (CACFP) regulations the provisions of the William F. 
Goodling Child Nutrition Reauthorization Act of 1998, which authorized 
afterschool care centers meeting certain criteria to be reimbursed for 
snacks served to at-risk children 18 years of age and younger. This 
rule establishes the eligibility of at-risk afterschool care centers to 
serve free snacks to children who participate in afterschool programs. 
The centers, which must be located in low-income areas, are reimbursed 
at the free rate for snacks. The intended effect of this rule is to 
support afterschool care programs through the provision of snacks that 
meet CACFP meal pattern requirements. The additional benefits provided 
by the 1998 reauthorization act and codified by this final rule were 
extended to institutions and children immediately after enactment. 
These changes were originally proposed by the Department in a 
rulemaking published on October 11, 2000.

DATES: This final rule is effective August 30, 2007.

FOR FURTHER INFORMATION CONTACT: Keith Churchill, Policy and Program 
Development Branch, Child Nutrition Division, Food and Nutrition 
Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302, phone 
(703) 305-2590.

SUPPLEMENTARY INFORMATION: The preamble is organized into two main 
parts. Part I, Background, describes the provisions in this final rule, 
including a discussion of the comments received on the proposed rule. A 
question and answer format is used to guide this discussion. The 
Background concludes with a description of other changes made in the 
final rule that were not part of the proposed rule. Part II, Procedural 
Matters, contains information required to be included in publishing 
Federal rules.

I. Background

What changes did the law make about afterschool snacks?

    The William F. Goodling Child Nutrition Reauthorization Act of 1998 
(Pub. L. 105-336) provided for the nationwide availability of snacks in 
the National School Lunch Program (NSLP), and it expanded the 
availability of snacks to children ages 13 through 18 in the Child and 
Adult Care Food Program (CACFP) through at-risk afterschool care 
centers (at-risk centers). CACFP at-risk centers must be located in the 
attendance area of a school where 50 percent or more of the enrolled 
children are certified as eligible to receive free or reduced price 
school meals.

How did USDA propose to implement these changes?

    The proposed rule to implement the statutory provisions for 
afterschool snacks in the NSLP and CACFP was published on October 11, 
2000 (65 FR 60502). Although we included proposed changes for both 
programs in the same rulemaking, the proposed changes were not 
identical in both programs. Rather, we proposed to implement 
afterschool snacks within each program in a way that fit the unique 
characteristics of each program.
    The proposal had a 90-day comment period. A total of 33 comment 
letters were received, 26 letters were from State and local agencies 
administering the NSLP and/or the CACFP, five letters came from 
advocacy groups, and two comment letters were received from individuals 
not representing any group.

Why is USDA publishing two final rules on afterschool snacks?

    There were a number of reasons why we decided to publish separate 
final rules. Perhaps the strongest reason was that many of the proposed 
procedures for administering afterschool snacks were specific to each 
program. Most commenters provided program-specific comments. In 
addition, not all commenters addressed both programs, reflecting the 
fact that the NSLP and the CACFP are administered by different agencies 
or offices in 15 States.
    Another reason we chose to publish separate afterschool snack final 
rules is the need to explain changes made to the CACFP regulations, 7 
CFR part 226, by previously published final or interim CACFP 
rulemakings.

Which recently published CACFP rules impact the afterschool provisions?

    Published CACFP rules that impact this final rulemaking include:
    1. Implementing Legislative Reforms to Strengthen Program Integrity 
(67 FR 43448) (first integrity rule), an interim rule published in the 
Federal Register on June 27, 2002, which implemented provisions of the 
Agricultural Risk Protection Act of 2000 (Pub. L. 106-224) designed to 
strengthen the integrity of the program;
    2. Improving Management and Program Integrity (69 FR 53502) (second 
integrity rule), an interim rule published in the Federal Register on 
September 1, 2004, which implemented additional provisions of a 
proposed rule by the same name, published on September 10, 2000, to 
improve program integrity through State agency management;
    3. Increasing the Duration of Tiering Determinations for Day Care 
Homes (70 FR 8501) (duration of tiering rule), a final rule published 
in the Federal Register on February 22, 2005, which implemented a 
provision of the Child Nutrition and WIC Reauthorization Act of 2004 
(Pub. L. 108-265) to increase the length of certain tier I 
determinations from three years to five years;
    4. Child and Adult Care Food Program: Age Limits for Children 
Receiving Meals in Emergency Shelters, (71 FR 1), an interim rule 
published on January 3, 2006 (emergency shelter rule), which 
implemented a provision of Public Law 108-265 that raised the age of 
children receiving CACFP meals in emergency shelters from 12 to 18; and

[[Page 41592]]

    5. For-Profit Center Participation in the Child and Adult Care Food 
Program (71 FR 62057) (for-profit center rule), a final rule published 
in the Federal Register on October 23, 2006, which implemented a 
provision of Public Law 108-265 that permanently authorized for-profit 
centers to participate in the program based on the income eligibility 
of children for free or reduced price meals.
    The two integrity rules, published in 2002 and 2004, made 
significant changes to the Program affecting all participating and 
applicant institutions, including at-risk afterschool care centers. In 
doing so, these interim rules revised and reorganized sections of the 
CACFP regulations that are additionally amended by this final rule, 
especially Sec. Sec.  226.6, 226.10, 226.11, 226.15, and 226.19. The 
other three rules, published in 2005 and 2006, impact the afterschool 
snack provisions in specific areas of program operations. We will 
discuss the effect that all five rules have had on the final 
afterschool snack provisions throughout this preamble.

How are comments on the proposed rule addressed in this preamble?

    We organized and analyzed the comments on the proposed rule under 
the following topics:
    1. General comments supporting/opposing the proposed rule.
    2. At-risk afterschool care centers.
    3. Eligible afterschool care programs.
    4. Eligible children.
    5. Area eligibility:

--Definition (eligible area).
--Data used.
--Procedures for determining.

    6. Licensing and approval provisions.
    7. Application processing.
    8. For-profit center provisions.
    9. Meal requirements.
    10. Monitoring:

--By State agencies.
--By sponsors.

    11. Reimbursement provisions.
    12. Reporting and Recordkeeping provisions.
    13. Other provisions.
    Following is a discussion of the comments and our responses to the 
comments received on these topics.
1. Did commenters provide any comments that addressed the general 
design or scope of the proposed CACFP afterschool snack component?
    Yes. We received three comments that generally supported the 
proposed rule. One supportive comment was from a sponsoring 
organization that stated it had been operating under FNS guidance 
issued after the at-risk snack component was authorized, most of which 
was incorporated into the proposed rule, and had experienced few 
problems following the requirements.
    We also received three comments that opposed our general objective 
of ensuring that the snack component made sense within each respective 
child nutrition program. In achieving this objective, we were obliged 
to incorporate some afterschool snack policies that recognize 
differences between the programs, resulting in two similar afterschool 
snack components with some variation in operating provisions. These 
commenters encouraged the Department to make the snack components in 
the CACFP and NSLP as similar as possible. One commenter urged us to 
create a ``seamless'' afterschool snack component that would include 
three child nutrition programs, the NSLP, CACFP, and Summer Food 
Service Program.
    Although we support seamless child nutrition programs, statutory 
requirements vary among the child nutrition programs, and we must draft 
the respective program rules accordingly.
2. What is an at-risk afterschool care center?
    We proposed to define an at-risk afterschool care center as a 
public or private nonprofit organization or a for-profit center that is 
eligible to participate in the CACFP, which provides nonresidential 
child care to children after school through an approved afterschool 
care program in an eligible area, and which participates either as an 
independent center or as a sponsored center.
    We received no comments on our proposed definition of an at-risk 
afterschool care center at Sec.  226.2 or on the proposed requirement 
at Sec.  226.17a(a)(1)(i) that organizations must meet this definition 
in order to receive reimbursement for at-risk afterschool snacks.
    Since the October 2000 publication of the proposed rule, we have 
had to address an issue that was not included in the proposed rule 
concerning eligibility of emergency shelters. Questions were raised 
about the eligibility of homeless children to receive afterschool 
snacks under the at-risk provisions when the emergency shelter where 
they reside is not located in an eligible area. To ensure that homeless 
children receive benefits under the at-risk snack component, we 
provided written guidance in June 2002 that emergency shelters may 
participate in the at-risk afterschool snack component regardless of 
location. This policy on emergency shelters is incorporated in this 
final rule in Sec. Sec.  226.2 (definition of at-risk afterschool care 
centers), 226.17a(b)(1)(iv), and 226.17a(i).
    The Department proposed to add ``at-risk afterschool care center'' 
to the definitions of child care facility, independent center, and 
institution. We received no comments on these proposals. Therefore, the 
proposed revisions are retained in the final rule. For consistency, we 
have also added the term ``at-risk afterschool care center'' to the 
definition of ``Center'' in this final rule.
3. What did commenters say about proposed criteria for eligible 
afterschool programs?
    We proposed that organizations that want to participate in the at-
risk afterschool snack component must have a program that meets the 
following four criteria: (1) is organized primarily to provide care for 
children after school and on weekends, holidays, or school vacations 
during the school year (but not during summer vacation); (2) has 
regularly scheduled activities (i.e., in a structured and supervised 
environment); (3) includes education or enrichment activities; and (4) 
is located in an eligible area. In addition, we proposed to exclude 
organized athletic sports programs that compete interscholastically or 
at the community level. These criteria resemble those proposed for 
afterschool programs serving snacks in the NSLP, except that an 
afterschool snack service under the NSLP may not operate on weekends or 
holidays and does not have to be located in an eligible area.
    We received eight comments on these provisions.
    Commenters asked the Department to clarify the term ``care for 
children''. The Richard B. Russell National School Lunch Act (NSLA) at 
section 17(r)(2)(A), 42 U.S.C. 1766(r)(2)(A), requires that at-risk 
afterschool care centers must be organized primarily to provide care to 
at-risk school children during after school hours, weekends, or 
holidays during the regular school year. Care for children in at-risk 
centers would reasonably encompass:
    1. Adult supervision,
    2. A facility that provides a safe environment, and
    3. An organization that assumes responsibility for the children or 
youth while they are present.
    Care for children should be given in a context that is appropriate 
for the age of the participants. Preschool children, for example, 
require close adult

[[Page 41593]]

supervision in a structured environment; adolescents need adult 
supervision, which may be provided in a more informal, less structured 
environment.
    Commenters also asked us to clarify ``education or enrichment 
activity'' and the State agency's responsibility for reviewing 
organized activities/educational components. Examples of educational or 
enrichment activity would include homework help, tutoring, supervised 
drop-in athletic or other activity programs. A State agency must review 
the activities/educational components to the extent needed in order to 
approve or deny the application for the at-risk center. State agencies 
should instruct applicant organizations to describe the planned 
activities or educational components in enough detail so that it is 
possible for State agencies to determine the adequacy of the program 
based on the information provided in the application.
    Commenters stated that at-risk snack programs should be able to 
operate during the summer. Section 17(r)(2)(A) of the NSLA (42 U.S.C. 
1766(r)(2)(A)) limits reimbursement to snacks served during the regular 
school year. However, afterschool snacks can be served year-round 
through the CACFP if an at-risk center is located in the attendance 
area of a school operating on a year-round schedule. We have clarified 
the restriction on summer service at Sec.  226.17a(b)(1)(i) and 
226.17a(m). At-risk centers that are affected by this restriction 
(i.e., are located in the attendance area of a school that is on a 
traditional school calendar) may be able to participate in the Summer 
Food Service Program.
    Several commenters opposed other restrictions on eligible programs 
that were in the proposed rule, including limiting at-risk programs to 
low-income areas and excluding organized sports from participating in 
the snack service. The NSLA restricts the CACFP afterschool snack 
component to low-income areas, specifically defined at section 
17(r)(1)(B) (42 U.S.C. 1766(r)(1)(B)) as programs that are located in 
the attendance area of a school in which at least 50 percent of the 
enrolled children are certified eligible for free or reduced-price 
school meals. Since this restriction is a statutory requirement, we 
must include it in the regulations.
    Concerning the proposed exclusion of organized sports, some 
commenters stressed the important role of sports in providing 
afterschool activity for youth. However, as we explained in the 
preamble to the proposed rule, House and Senate conferees declared in 
the Conference Report accompanying Public Law 108-265 (House Report 
105-786) that they did not intend for afterschool snacks to be provided 
to members of athletic teams. Rather, the conferees intended that 
children receiving afterschool snacks would be participating in the 
types of programs that provide education or enrichment activities, 
which are known to help reduce or prevent involvement in juvenile 
crime. This statement provides a clear indication of Congressional 
intent, and thus we have retained the restriction on interscholastic or 
community level sports teams in the final rule. This same exclusion 
applies to the NSLP afterschool snack component as proposed, as well.
    We would, however, like to clarify participation by student 
athletes in afterschool snacks. One commenter suggested that even 
though organized athletic teams would be excluded, individual student 
athletes participating in center activities should be allowed to 
receive a snack or a meal from an at-risk afterschool care center that 
is operating to serve children in the eligible area where the athletes 
live or attend school. We agree. This situation would not violate the 
intent of Congress as expressed by the House and Senate conferees, 
which addressed the ineligibility of athletic teams as an afterschool 
activity to qualify as at-risk snack programs.
    We would also like to clarify, as stated in the proposed rule, that 
programs could include supervised athletic activity along with 
education or enrichment activities, such as those typically sponsored 
by the Police Athletic League, Boys and Girls Clubs, and the YWCA. The 
key requirement for afterschool programs that include sports would be 
that they are ``open to all'' and would not limit membership for 
reasons of athletic ability, or would not exist principally for the 
pursuit of competitive athletics.
    Accordingly, the proposed limitation on eligible afterschool care 
programs, proposed at Sec.  226.17a(b)(2), is retained in this final 
rule.
4. Who is eligible for afterschool snacks?
    One of the hallmarks of the afterschool snack provisions for CACFP 
as mandated by section 107(h) of Public Law 105-336 was to extend 
benefits to youth through age 18. Accordingly, we proposed at Sec.  
226.17a(c) and in the definition of ``Children'' at Sec.  226.2 that 
children are eligible for at-risk afterschool snack programs if they 
participate in an approved afterschool care program and are 18 and 
under at the start of the school year or meet the definition of 
``Person with disabilities'', as proposed at Sec.  226.2.
    We received three comments on this proposed provision.
    Two State agencies encouraged the Department to set a minimum age 
limit for participation in the at-risk afterschool snack component. 
They questioned whether this program is really appropriate for infants 
and preschoolers. The statute did not set a minimum age for 
participation in at-risk afterschool snacks. We are concerned that a 
lower age limit might discourage otherwise eligible child care centers 
from offering afterschool programs to the at-risk population if they 
could not be reimbursed for snacks served to pre-school children. 
Furthermore, if centers provided afterschool activities suitable only 
for school-age children, older siblings might not attend the 
afterschool program if care was not extended to their younger brothers 
or sisters.
    One commenter encouraged the Department to expand the age limit to 
18 also for outside-school-hours care centers. We are unable to adopt 
this suggestion because the age limitation for outside-school-hours 
centers remains at age 12 (age 15 for children of migrant workers) as 
mandated at section 17(a)(3) of the NSLA (42 U.S.C. 1766(a)(3)). As 
discussed in the preamble to the proposed rule, both at-risk centers 
and outside-school-hours care centers are reimbursed for snacks served 
to children in afterschool care, but they are intended to serve 
different populations and consequently have different provisions. The 
following chart highlights some of the similarities and differences 
between at-risk centers and outside-school-hours care centers.

[[Page 41594]]



                Comparison Between At-Risk Centers and Outside-School-Hours Care Centers (OSHCCs)
----------------------------------------------------------------------------------------------------------------
                                            At-risk centers                               OSHCCS
                               ---------------------------------------------------------------------------------
           Provision               Regulatory                               Regulatory
                                    citation           Description           citation           Description
----------------------------------------------------------------------------------------------------------------
Eligible institutions.........  Sec.  Sec.        Public, private        Sec.   226.2      Public, private
                                 226.17a(a) and    nonprofit, and for-    definition of     nonprofit, and for-
                                 226.6(b).         profit organizations   ``Outside-        profit organizations
                                                   that operate an        school-hours      that are licensed or
                                                   eligible afterschool   care center''     approved (if
                                                   care program, are      and Sec.          required) to provide
                                                   licensed or approved   226.6(b).         organized
                                                   (if required). In                        nonresidential child
                                                   addition, centers                        care services to
                                                   must meet other                          children during
                                                   CACFP requirements,                      hours outside of
                                                   as applicable.                           school. In addition,
                                                                                            centers must meet
                                                                                            other CACFP
                                                                                            requirements, as
                                                                                            applicable.
Eligible afterschool care       Sec.              Must be organized      N/A.............  N/A.
 program.                        226.17a(b).       primarily to provide
                                                   care for children
                                                   after school or on
                                                   weekend, holidays,
                                                   or school vacations
                                                   during the regular
                                                   school year, have
                                                   organized, regularly
                                                   scheduled
                                                   activities, include
                                                   education or
                                                   enrichment
                                                   activities, and be
                                                   located in a low-
                                                   income area (see
                                                   Eligible area below).
Licensing.....................  Sec.              If there is no         Sec.              If there is no
                                 226.6(d)(1).      Federal, State, or     226.6(d)(1).      Federal, State, or
                                                   local licensing                          local licensing
                                                   requirement, must                        requirement, must
                                                   only meet State or                       only meet State or
                                                   local health and                         local health and
                                                   safety standards                         safety standards
                                                   (see also sec.                           (see also sec.
                                                   17(a)(5) of the                          17(a)(5) of the
                                                   NSLA.).                                  NSLA).
Eligible area.................  Sec.   226.2      Attendance area of an  N/A.............  May operate in any
                                 definition of     elementary, middle,                      area.
                                 ``Eligible        or high school with
                                 area'',           50% or more free/
                                 paragraph (a).    reduced-price
                                                   eligible children.
Reimbursement.................  Sec.              All afterschool        Sec.   226.12(c)  Reimbursement is at
                                 226.17a(n).       snacks are                               the free/reduced
                                                   reimbursed at the                        price/paid rates
                                                   free rate.                               based on individual
                                                                                            income eligibility
                                                                                            of children.
Eligible children.............  Sec.   226.2,     Persons age 18 and     Sec.   226.2,     Children who are age
                                 definition of     under at the start     definition of     12 and under,
                                 ``Children'',     of the school year     ``Children'',     children age 15 and
                                 paragraphs (c)    and persons of any     paragraphs (a),   under who are
                                 and (e).          age who meet the       (b), (c).         children of migrant
                                                   definition of                            workers, and persons
                                                   ``Persons with                           of any age who meet
                                                   disabilities''.                          the definition of
                                                                                            ``Persons with
                                                                                            disabilities''.
Types of meals eligible for     Sec.              Snacks...............  Sec.              Breakfast, snack, and
 reimbursement.                  226.17a(l).                              226.19(b)(4).     supper (lunch may
                                                                                            also be served under
                                                                                            certain conditions).
Number of reimbursable meals..  Sec.              One snack per day....  Sec.              Two meals and one
                                 226.17a(k).                              226.19(b)(5).     snack per child per
                                                                                            day (or two snacks
                                                                                            and one meal).
Meal patterns.................  Sec.  Sec.        Requirements for at-   Sec.  Sec.        Requirements for
                                 226.17a(l) and    risk snacks are the    226.19(b)(6),     meals served by
                                 226.20(b)(6)      same as CACFP snack    226.20(b) and     OSHCCs are the same
                                 and (c)(4).       pattern requirements   (c).              as CACFP meal
                                                   for infants and                          patterns for infants
                                                   children.                                and children.
Days of operation.............  Sec.              School days,           Sec.              School days, school
                                 226.17a(m).       weekends, holidays,    226.19(b)(4).     vacation, including
                                                   and school vacations                     weekends and
                                                   during the school                        holidays; no weekend-
                                                   year; not in the                         only programs.
                                                   summer except in
                                                   areas served by year-
                                                   round schools.
Time restrictions on meal       Sec.   226.20(k)  States may establish   Same............  Same.
 service periods.                                  requirements
                                                   concerning time
                                                   restrictions for
                                                   CACFP institutions.
Monitoring....................  Sec.   226.6(m)   The State agency must  Same............  Same.
                                 for State         review \1/3\ of all
                                 agency review     institutions each
                                 of independent    year; percentages of
                                 centers and       sponsored facilities
                                 sponsoring        sponsored by the
                                 organizations;    institution vary
                                 Sec.              depending on the
                                 226.16(d)(4)(iv   size of the
                                 ) for             institution. Large
                                 sponsoring        sponsoring
                                 organizations     organizations <100
                                 review of their   must be reviewed
                                 facilities.       every two years. New
                                                   institutions with
                                                   five or more
                                                   facilities must be
                                                   reviewed within the
                                                   first 90 days of
                                                   operation.
                                                  Sponsoring
                                                   organizations must
                                                   review their
                                                   facilities three
                                                   times each year. At
                                                   least one review
                                                   must occur during
                                                   the first six weeks
                                                   of program
                                                   operations; reviews
                                                   cannot be spaced
                                                   more than six months
                                                   apart. Two reviews
                                                   must be unannounced.
----------------------------------------------------------------------------------------------------------------


[[Page 41595]]

    Readers should note that Public Law 108-265 raised the age for 
participation in CACFP meals in emergency shelters to 18. FNS notified 
CACFP State agencies of this statutory change, which was effective on 
October 1, 2004, and the emergency shelter rule, published on January 
3, 2006 (71 FR 1) codified the increase to age 18 in the CACFP 
regulations. There are now two types of centers that may serve CACFP 
meals or snacks to children through age 18: at-risk afterschool care 
centers and emergency shelters.
    The provision describing the eligibility of children for receiving 
afterschool snacks as proposed at Sec.  226.17a(c) remains unchanged in 
this final rule. We have made some minor changes, however, to the 
definition of ``Children'', revising proposed text of children's 
eligibility for afterschool snacks and current text of children's 
eligibility for meals at emergency shelters, which was revised by the 
emergency shelter rule. We have removed the references to persons with 
disabilities specific to either at-risk centers or emergency shelters; 
these references are unnecessary because the definition of ``Children'' 
includes persons with disabilities as a category of eligible children. 
This final rule adopts the proposed definition for participation by 
disabled persons with minor changes. Longstanding CACFP policy has 
recognized that disabled persons meeting the regulatory definition are 
eligible to participate in any CACFP component serving children, 
including not only at-risk afterschool care centers or emergency 
shelters, but also child care centers, outside-school-hours care 
centers, and family or group day care homes. This rule codifies the 
policy by providing a separate definition for ``Persons with 
disabilities''.
5. Area Eligibility
    Because of the number of the issues involved in area eligibility, 
the next seven questions address the proposed provisions, comments 
received, and changes made to area eligibility requirements.

How did the Department propose to define area eligibility and did 
anyone comment on the definition?

    We proposed to define an eligible area for the at-risk afterschool 
snack component as the attendance area of an elementary, middle, or 
high school in which at least 50 percent of the enrolled children are 
certified eligible for free or reduced-price school meals. As 
previously mentioned, we also proposed to use area eligibility as one 
of four key criteria that an afterschool program must meet in order to 
be eligible for participation in the CACFP at-risk component. We have 
provided guidance on questions of area eligibility of schools involved 
in busing. This policy permits area eligibility to be extended to sites 
if the majority of children at the site come from schools where at 
least 50 percent of the enrolled children are eligible for free or 
reduced-priced school meals.
    We received comments from two State agencies that opposed the 
inclusion of data for middle and high schools; they stated that it 
would be a reporting burden for NSLP State agencies. Although we 
acknowledge that the addition of middle and high schools may require 
more work for NSLP State agencies, we believe it is important to 
identify as many area eligible locations as possible to reach the 
population of needy children and youth targeted by the at-risk snack 
provisions in the NSLA, especially now that the statute expands 
afterschool snacks to teenagers through age 18.
    In this final rule, we have revised the definition for eligible 
area to provide a two-part definition that distinguishes between two 
different uses of the term in CACFP. Although the term is more 
frequently associated with the at-risk snack component, it is also used 
to describe the geographic area of tier I day care homes. Therefore, to 
avoid possible confusion, we have provided both definitions of eligible 
area.
    Eligible area as it applies to the at-risk snack component, which 
is unchanged from the proposed rule, includes the attendance area of an 
elementary, middle, or high school in which at least 50 percent of the 
enrolled children are certified eligible for free or reduced-price 
school meals. Eligible area for tiering purposes, which is taken from 
the definition of tier I day care home in section 
17(f)(3)(A)(ii)(I)(aa) and (bb) of the NSLA (42 U.S.C. 
1766(f)(3)(A)(ii)(I)(aa) and (bb)), includes the attendance areas of 
elementary schools in which at least 50 percent of the total number of 
children are certified eligible to receive free or reduced-price meals, 
or neighborhoods that meet the 50 percent threshold of income 
eligibility for free or reduced-price meals based on census data. 
Eligible areas for at-risk snacks include middle and high school 
attendance areas as well as the attendance areas of elementary schools; 
eligible areas for tiering purposes do not include middle or high 
school attendance areas but do include neighborhood areas defined by 
census data that meet the 50 percent threshold of households eligible 
for free or reduced-price meals. The inclusion of a definition of 
eligible area for tiering purposes is not intended to change any aspect 
of current requirements for determining tier I status for day care 
homes.
    Accordingly, the definition of ``Eligible area'' as proposed in 
Sec.  226.2 is revised, and reference to this definition is added at 
new Sec.  226.17a(i)(1).

What data did the Department propose to require for determining area 
eligibility?

    We proposed that the data used to determine area eligibility must 
be based on the school's total number of children approved for free and 
reduced-price school meals for the preceding October. However, we 
stipulated that the NSLP State agency, which provides the data, may 
designate another month. If the NSLP State agency chooses to designate 
a month other than October, it must do so for the entire State. The 
other critical data element in determining the area eligibility of an 
at-risk center is documentation that the center is located in the 
school's attendance area. If not available from the NSLP State agency, 
information on a school's geographical boundaries would be provided by 
the individual school or by the school district. We did not propose to 
require the NSLP State agency to provide attendance area data.

What did commenters say about data for determining area eligibility?

    One State agency commented that the regulations should restrict the 
use of private school data in establishing area eligibility because 
private schools often have very large attendance areas. This commenter 
stated that Federal regulations should specify that only public school 
data could be used to establish area eligibility.
    We agree that private school data may often be an inappropriate 
source to establish area eligibility for at-risk centers, but we 
recognize that there may be exceptions, making the use of private 
school data reasonable to establish area eligibility in some 
situations. Thus, we conclude that State agencies should have the 
flexibility to approve the use of private school data for establishing 
area eligibility when necessary.
    One commenter suggested that eligibility determinations made for 
open sites in the Summer Food Service Program (SFSP) should be allowed 
to establish area eligibility for at-risk care centers also.
    We are bound by the specific requirement of section 17(r)(1)(B) of 
the NSLA, 42 U.S.C. 1766(r)(1)(B), that area eligibility must be based 
on eligibility for free or reduced-price school meals.

[[Page 41596]]

For this reason, the SFSP open site eligibility may be used only if it 
is based on the same criteria required for determining area eligibility 
for at-risk centers.
    Accordingly, the data required to document the area eligibility of 
an at-risk afterschool care center, proposed at Sec. Sec.  
226.6(f)(9)(i) and 226.17a(h)(2) are retained but redesignated at 
Sec. Sec.  226.6(f)(1)(ix) and 226.17a(i)(2).

What did the Department propose about the process of determining area 
eligibility?

    We proposed a process of determining area eligibility that is 
similar to the process of determining the tiering status of day care 
homes. Like the tiering process, which is redesignated in this final 
rule at Sec.  226.6(f)(1)(viii), the process of determining area 
eligibility starts with the receipt of free and reduced-price school 
data from the NSLP State agency. As with tiering, we charged the CACFP 
State agency with the task of coordinating with the NSLP State agency 
to receive the school data (i.e., the list of elementary, middle, and 
high schools that meet the definition of eligible area) on an annual 
basis. Unlike the tiering process, however, the CACFP State agency is 
not required to provide the school data to sponsoring organizations of 
at-risk centers or to independent at-risk centers by a certain date 
each year. Instead, we proposed that the CACFP State agency must only 
provide the list upon request by sponsoring organizations or 
independent at-risk centers.
    We proposed that CACFP State agencies must determine the area 
eligibility for all independent at-risk centers, using the most recent 
free and reduced-price school data and attendance area data obtained or 
verified from school officials within the last school year. However, we 
proposed that a sponsoring organization must provide information 
required by the State agency that would enable the State to determine 
the area eligibility of each sponsored at-risk center. This information 
may include current free and reduced-price school data from the list 
and related attendance area data. As proposed, area eligibility 
determinations would be valid for three years to match the tiering 
determination provisions for tier I status based on school data, which 
were in effect at the time the proposed rule was published.
    We also proposed two provisions for redetermining area eligibility 
that were consistent with those for tiering determinations based on 
school data. One of these provisions would allow the sponsoring 
organization, the State agency, or FNS to redetermine area eligibility 
if the attendance area data received annually from the NSLP State 
agency indicates that an at-risk center is no longer eligible. The 
second provision would limit this flexibility by prohibiting routine 
redeterminations of area eligibility based on annual data. Both 
provisions duplicate current regulatory language for tiering 
redeterminations found at Sec.  226.6(f)(3)(i) in this final rule.
    The annual collection of area eligibility data provides the State 
agency current and accurate information to approve new applications as 
well as for use in redeterminations at the end of a center's 
eligibility cycle. This annual information can also be used if the 
sponsoring organization, the State agency, or FNS has identified a 
particular area that has had a dramatic change in economic status and 
wants to use this information in redetermining a center's area 
eligibility.

What has changed about area eligibility determinations in the final 
rule?

    We received six comments from State agencies that addressed the 
frequency or timing of the determination or redetermination. Three 
commenters weighed in on the proposal to allow area eligibility to be 
valid for three years; two supported and one opposed.
    Since the October 11, 2000 publication of the proposed rule, 
Congress authorized the increase in the duration of tier I status 
determinations based on school data to five years. The provision of 
Public Law 108-265 was effective on July 1, 2004, and the change was 
codified in the CACFP regulations by the duration of tiering rule.
    This final rule reflects an increase in longevity of area 
eligibility determinations from the proposed three years to five years. 
Please note that those centers that were deemed not eligible to 
participate in the CACFP as at-risk afterschool centers would not have 
to wait for five years before they could apply again to participate in 
the CACFP as an at-risk afterschool center.
    We increased the duration of area eligibility determinations in 
order to achieve the coordinated use of school data for 
redeterminations of tiering and area eligibility that we had sought in 
the proposed rule. The Department wants to point out that because 
applications are approved on a three-year cycle, for administrative 
efficiency State agencies may choose to make area eligibility 
determinations on that three-year cycle. However, we encourage State 
agencies wherever possible to adopt the five-year cycle for area 
eligibility determinations.
    Two commenters addressed the proposal to allow sponsoring 
organizations, State agencies, or FNS the option of changing a 
determination of area eligibility based on updated school data. One 
commenter opposed the option entirely, and the other commenter noted 
what seemed to be conflicting language between proposed Sec.  
226.6(b)(11)(iii), which stated that State agencies must document area 
eligibility at least once every three years, and proposed Sec.  
226.6(f)(9)(v), which stated that State agencies may not routinely 
redetermine area eligibility during the three-year period. In this 
final rule, State agency responsibilities for area eligibility 
redeterminations are clarified and addressed in Sec.  226.6(f)(3)(ii).
    We want to clarify the issue of what was received as conflicting 
language. Although sponsoring organizations, State agencies, or FNS may 
redetermine area eligibility if the attendance area data received 
annually from the NSLP State agency indicates that an at-risk center is 
no longer eligible, they would not be permitted to do so routinely 
based on annual data. The intention is that existing at-risk 
afterschool centers would remain area eligible for the entire period of 
time (i.e. five years), and annual data would not be used to respond to 
minor variations in eligibility (for example, centers that are located 
in the attendance areas of schools where the percentage of students 
eligible for free or reduce-priced meals drops negligibly below the 50 
percent level in any given year during the five-year period). The 
intention is to give sponsoring organizations, State agencies, or FNS 
the flexibility to make redeterminations in those situations where this 
percentage drops markedly due to underlying demographic changes.
    In this final rule, State agency responsibilities for area 
eligibility redeterminations are clarified and addressed in Sec.  
226.6(f)(3)(ii).
    Finally, one State agency commented that eligibility periods should 
begin with the fiscal year or school year, not in the month in which 
the first determination is made; this is too much work for State 
agencies to track.
    We agree that State agencies should have the flexibility to 
determine within the last year of area eligibility when the next cycle 
should begin. This would allow State agencies the option of 
synchronizing all area eligibility redeterminations so that at-risk 
centers could begin the next cycle on a particular date, such as the 
first day of the fiscal year or school year. Note that this flexibility 
to set the date extends

[[Page 41597]]

only with redeterminations, not with the initial determination and 
approval to begin program operations. State agencies that opt to 
synchronize area eligibility redeterminations should notify all newly 
participating at-risk centers of the date in the last year when current 
area eligibility will expire and new area eligibility data must be 
submitted.
    Accordingly, proposed Sec. Sec.  226.6(f)(9)(v) and 226.17a(h)(2) 
are revised and redesignated as Sec. Sec.  226.6(f)(3)(ii) and 
226.17a(i)(3) to increase the duration of area eligibility 
determinations to five years and to specify that State agencies may 
determine the date in the fifth year by which the next five-year cycle 
of area eligibility will begin.

What other changes have been made to the regulations affecting the area 
eligibility determination process?

    The second integrity rule substantially revised Sec.  226.6(f) by 
sorting provisions into annual, triennial or other time periods when 
data are due or actions are required. These changes compelled us to 
sort the proposed afterschool snack provisions in current Sec.  
226.6(f) into the appropriate time periods. The result is that these 
provisions are reorganized and in some instances, revised to clarify 
the process of determining area eligibility; the substance of the 
proposed provisions has not changed, with one exception. That 
exception, as previously described, permits State agencies to determine 
the date during the fifth year of area eligibility when the next cycle 
of area eligibility will begin. We have also included the tiering 
determination process for day care homes in the reorganization of Sec.  
226.6(f); the tiering provisions previously located at Sec.  
226.6(f)(1)(iii) have been revised and redesignated at Sec.  
226.6(f)(1)(viii) and (f)(3)(i).
6. What licensing and approval requirements did the Department propose 
for at-risk centers?
    Public Law 105-336 eased licensing and approval requirements for 
afterschool care programs by allowing institutions to meet State or 
local health and safety standards if Federal, State, or local licensing 
or approval is not required. Accordingly, we proposed to require that 
at-risk and outside-school-hours care centers must only meet State or 
local health and safety standards if Federal, State, or local licensing 
or approval is not otherwise required.

What did commenters say about this proposed change in licensing/
approval standards?

    This proposed provision generated 11 comments from State agencies, 
advocates and associations, and sponsoring organizations. Commenters 
focused on difficulties that exist due to State and local variations in 
establishing health and safety standards appropriate for at-risk 
centers and in maintaining those standards through inspection of 
facilities. At-risk programs in some areas have been prevented from 
operating because of non-existent or inappropriate health and safety 
standards or backlogs in obtaining inspection and approval.
    One State agency opposed the reduced licensing requirements for 
outside-school-hours centers in the proposed rule.
    The statutory language, found at section 17(a)(5)(C) in the NSLA 
(42 U.S.C. 1766(a)(5)(C)), does not distinguish between the types of 
CACFP afterschool centers that may operate based on compliance with 
health and safety standards in the absence of licensing requirements. 
Broadly stated, this provision applies to both types of afterschool 
centers operating in the CACFP, at-risk centers and outside-school-
hours centers. We would like to emphasize that this provision applies 
only in those localities where Federal, State, or local licensing is 
not required for afterschool care programs.
    One commenter asked the Department to clarify whether CACFP State 
agencies could require licensing of at-risk and outside-school-hours 
centers.
    Since the authority to establish standards resides with the 
licensing agency at the Federal, State, or local level, the CACFP State 
agency may establish or change licensing requirements for outside-
school-hours and at-risk centers only if it is also the licensing 
authority for the State.
    Commenters asked what are appropriate health and safety standards 
for at-risk and outside-school-hours centers. State agencies have 
informed us that in some localities these centers must meet stringent 
requirements that apply to restaurants because health authorities are 
unfamiliar with CACFP meal services. In other instances, minimal or no 
standards exist.
    We encourage CACFP State agencies to work closely with State and 
local health and safety authorities to determine the specific 
requirements for each type of facility. This will help ensure that 
appropriate requirements are being applied to organizations seeking to 
participate in the CACFP.
    Some commenters encouraged the Department to specify not only the 
types of standards that are appropriate but also a reasonable time 
interval between inspections. In some localities, an occupancy permit 
may be issued only once, such as prior to initial occupancy of a newly 
constructed building.
    The Department lacks the statutory authority to regulate either 
standards or time intervals for health and safety certification of 
facilities. Because of the variations that exist among communities, the 
CACFP State agency should work with State and/or local health and 
safety officials to promote reasonable standards with appropriate time 
intervals established between inspections and/or certifications.
    Commenters asked what information should be provided to document 
that health and safety standards are met before a State agency approves 
the at-risk or outside-school-hours center for CACFP participation.
    Documentation requirements will vary by State or locality. An 
application for participation as an at-risk center or outside-school-
hours center should include a copy of the documentation that is 
provided by the health or safety inspection agency. Ideally, this would 
include a copy of the permit and/or a copy of the inspection report 
with the date, name, and signature of the inspecting official. In some 
jurisdictions, however, occupancy permits may serve as the only 
evidence that a facility is in compliance with State or local health or 
safety standards. In situations where an at-risk center or outside-
school-hours center is located in a school building where school lunch 
or breakfast is served and food safety inspections have occurred (as 
required by section 9(h) of the NSLA, 42 U.S.C. 1758(h)), the center 
may not need to meet any additional health and safety requirements. The 
school's participation in the National School Lunch Program or the 
School Breakfast Program would be proof of meeting applicable 
standards. In all cases, the State agency should ensure that the 
documentation provided is appropriate and current (i.e., not revoked or 
expired).
    Some commenters suggested that at-risk centers and outside-school-
hours centers be allowed to simply notify the State or local health 
department prior to starting operations, in the same way that sponsors 
of Summer Food Service Program (SFSP) sites are required to do, as 
described at 7 CFR 225.16(a).
    In localities where health and safety standards exist for 
afterschool programs and the health inspection requirements are the 
same for meals served under CACFP afterschool programs and SFSP,

[[Page 41598]]

State agencies may accept documentation of a current health inspection 
of a facility that was previously obtained for the SFSP. CACFP may do 
this as long as the current SFSP inspection has not been revoked or 
expired. However, the notification letter to the health department, 
which serves simply as a notice of intent to begin meal services, must 
not be considered documentation for meeting health and safety standards 
for at-risk or outside-school-hours centers. An inspection of the 
facilities must have occurred.
    Some commenters asked what requirements should apply if there are 
no State or local health and safety standards for at-risk and outside-
school-hours centers.
    The NSLA did not establish any form of ``alternate approval'' for 
centers providing afterschool care, as it did for other types of child 
care facilities (see section 17(a)(5)(B) of the NSLA 42 U.S.C. 
1766(a)(5)(B)). The Department concludes, therefore, that CACFP State 
agencies are not required to develop health and safety standards for 
these facilities.
    To eliminate possible confusion about actions that State agencies 
must take in the absence of licensing or approval standards for 
outside-school-hours care centers, we made the following changes. 
First, we revised the definition of ``CACFP child care standard'' by 
removing the words ``outside-school-hours care centers''. Second, in 
the definition of ``Outside-school-hours care center'', we added a 
reference to Sec.  226.6(d)(1)(v), which provides the specific 
licensing and approval requirements for this type of center. Third, we 
removed Sec.  226.6(d)(3)(ii) because it referred to alternate child 
care standards that may be used as approval standards for outside-
school-hours care centers when no other licensing/approval standards 
are available. This change required a revision to the structure of 
Sec.  226.6(d)(3), which we have set out in this rule.
    The Department wants to make clear that in the absence of licensing 
or approval standards, at-risk centers and outside-school-hours care 
centers must meet State or local health and safety standards. When 
State or local health and safety standards have not been established, 
State agencies are encouraged to work with appropriate State and local 
officials to create such standards. Meeting these standards will remain 
a precondition for any afterschool center's eligibility for CACFP 
nutrition benefits. Therefore, at-risk afterschool care centers and 
outside-school-hours care centers will not be eligible for CACFP in 
areas where State or local health and safety standards have not been 
established. However, as described at Sec.  226.6(d)(1)(iv), an at-risk 
afterschool care center or an outside-school-hours care center in an 
area where State or local health and safety standards have not been 
established will still have the option to demonstrate, to the State 
agency, compliance with CACFP child care standards, as described at 
Sec.  226.6(d)(3).
    This final rule retains the requirement, proposed at Sec.  
226.6(d)(1)(v), which requires at-risk centers and outside-school-hours 
centers to meet State or local health and safety standards in the 
absence of Federal, State, or local licensing requirements. This 
requirement is also restated at Sec.  226.17a(d) for at-risk centers 
and at Sec.  226.19(b)(1) for outside-school-hours centers.
7. What were the features of the Department's proposal for processing 
at-risk center applications?
    We did not propose an extensive application process. An official of 
the applicant organization must apply in writing. The organization must 
meet the general application requirements for CACFP located at 
Sec. Sec.  226.6(b), and 226.15(b) or 226.16(b). Sponsoring 
organizations that are applying on behalf of sponsored at-risk centers 
must provide information, including documentation of area eligibility, 
to enable the State agency to determine each center's eligibility as an 
at-risk center. State agencies must determine the eligibility of 
independent centers that are applying to participate.
    We proposed that once the application is approved, the organization 
must enter into an agreement with the State agency; the agreement or 
amendment to an existing agreement must meet all general requirements 
located at Sec.  226.6(b)(4). We also proposed to allow State agencies 
to require sponsoring organizations of at-risk centers to enter into 
separate agreements for the administration of separate types of CACFP 
facilities. In subsequent years, renewing independent at-risk centers 
or sponsoring organizations must inform the State agency of any 
substantive changes to their afterschool care programs.
    One State agency questioned the proposed inclusion of at-risk 
centers in the provision allowing State agencies to require separate 
agreements for each type of center operated by a sponsoring 
organization. This commenter thought that the provision allowing State 
agencies to require separate agreements conflicted with the movement 
toward single agreements.
    Single agreement requirements mandated by Public Law 105-336 apply 
only to School Food Authorities (SFAs) operating more than one child 
nutrition program under the same State agency. Other CACFP institutions 
are not included in the single agreement requirements. To avoid 
confusion about the type of agreement an SFA must sign to operate an 
at-risk afterschool care center, we have clarified Sec. Sec.  226.16(f) 
and 226.17a(f)(2) in this final rule to specify that SFAs must continue 
to operate under single, permanent agreements in accordance with Sec.  
226.6(b)(4)(ii)(A).

Are there any changes to application processing procedures in the final 
rule?

    There are no new application requirements specific to at-risk 
afterschool care centers. However, applying to participate in the CACFP 
is a more comprehensive process than at the time the proposed rule was 
published. The first integrity rule strengthened application and 
participation requirements for all CACFP institutions. Because the 
application process is the initial opportunity to address an 
institution's fitness in operating the program, applicant institutions 
must provide documentation that demonstrates financial viability, 
demonstrates administrative capability to operate the program, and 
establishes internal controls that ensure program accountability.
    Although at-risk centers must meet all CACFP application 
requirements, which are described at Sec.  226.6(b), we recognize that 
some of the smaller afterschool care organizations that are applying to 
participate in CACFP for the first time may find the application 
process to be complex and demanding. In order to foster their 
participation, we encourage State agencies to offer technical 
assistance whenever possible to independent institutions that want to 
participate in the at-risk afterschool snack component.
    To clarify the process of application renewal for at-risk centers, 
we added language at Sec.  226.17a(g) on the responsibilities of 
renewing independent at-risk centers and sponsoring organizations of 
at-risk centers. We have also clarified in Sec. Sec.  226.17a(h) and 
226.6(f)(3)(iii) how changes are handled between application periods. 
Finally, we updated citations of general application processing 
requirements to reflect

[[Page 41599]]

changes made by the second integrity rule.
    Accordingly, the provisions on application processing for at-risk 
centers are revised and redesignated at Sec.  226.6(f)(2)(ii) and 
(f)(3)(ii); these provisions are also described in Sec.  226.17a(f), 
(g), and (h).
8. For-Profit Center Participation
    The following questions address the issue of for-profit center 
participation in the CACFP and the at-risk snack component.

What did the Department propose regarding for-profit organizations 
participating in at-risk afterschool snacks?

    We proposed that children who only participate in the at-risk 
afterschool snack component at a for-profit center must not be included 
in the count that qualifies the center for program participation each 
month. At the time the proposed rule was published, participating for-
profit centers could be reimbursed for CACFP meals and snacks only 
during the months in which 25 percent of enrolled children or 25 
percent of licensed capacity, whichever is less, were title XX 
beneficiaries.
    We had also proposed to define at Sec.  226.2, the criteria for 
participation in the Iowa/Kentucky demonstration project, which had 
been permanently authorized under Public Law 105-336. The proposed 
definition described the criteria for participation by for-profit 
centers in these two States as: providing nonresidential child care and 
having at least 25 percent of the children, based on the enrollment or 
licensed capacity of the center (whichever is less), eligible to 
receive free or reduced-price meals.

What did commenters say about the proposed provisions about for-profit 
centers?

    Three State agencies commented on the proposed provisions affecting 
for-profit centers; one supported, one opposed, and a third State 
agency encouraged us to allow for-profit organizations to count all 
Federal and State funding sources, not just the title XX funding, 
toward meeting the 25 percent eligibility criteria. The commenter who 
opposed the provision thought it would be confusing because children 
who are enrolled in for-profit centers for part-time care (not 
necessarily as part of the at-risk component) are currently counted 
toward the 25 percent participation qualifying