Child and Adult Care Food Program: At-Risk Afterschool Meals in Eligible States, 16213-16218 [E8-6235]
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Proposed Rules
Federal Register
Vol. 73, No. 60
Thursday, March 27, 2008
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 226
[FNS–2007–0022]
RIN 0584–AD15
Child and Adult Care Food Program:
At-Risk Afterschool Meals in Eligible
States
Food and Nutrition Service
(FNS), USDA.
ACTION: Proposed rule.
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AGENCY:
SUMMARY: This rule proposes to amend
the Child and Adult Care Food Program
(CACFP) regulations to implement
provisions from the Agriculture Risk
Protection Act of 2000, the Agriculture,
Rural Development, Food and Drug
Administration, and Related Agencies
Appropriations Act of 2002, and the
Consolidated Appropriations Act of
2008, that authorize reimbursement to
eligible States for a meal (normally a
supper) served by at-risk afterschool
care programs. The eligible States are
Delaware, Illinois, Michigan, Missouri,
New York, Oregon, Pennsylvania, and
West Virginia. The intent of this
proposed rule is to conform CACFP
regulations to statutory amendments
that provide an additional meal for atrisk children through age 18 who are
participating in afterschool programs in
the eligible States. The Food and
Nutrition Service (FNS) implemented
the statutory mandates through written
policy guidance upon enactment of the
statutory provisions.
DATES: To be assured of consideration,
written comments must be received or
postmarked on or before May 27, 2008.
ADDRESSES: FNS invites interested
persons to submit comments on this
proposed rule. Comments may be
submitted by any of the following
methods:
• Mail: Send comments to Robert M.
Eadie, Chief, Policy and Program
Development Branch, Child Nutrition
Division, Room 640, Food and Nutrition
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Service, USDA, 3101 Park Center Drive,
Alexandria, Virginia 22302.
• Fax: Submit comments by facsimile
transmission to: (703) 305–2879. Please
address your comments to Mr. Eadie
and identify your comments as ‘‘CACFP:
At-Risk Afterschool Meals’’.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
Comments submitted in response to
this rule will be included in the record
and will be available to the public.
Please be advised that the substance of
the comments and the identity of the
individuals or entities submitting the
comments will be subject to public
disclosure. FNS will make the
comments publicly available on the
Internet via https://www.regulations.gov.
All written submissions will be
available for public inspection at the
address above during regular business
hours (8:30 a.m. to 5:30 p.m.) Monday
through Friday, excluding Federal
holidays.
Julie
Brewer, 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:
FOR FURTHER INFORMATION CONTACT:
I. Background
1. What are at-risk afterschool meals?
Afterschool meals in the CACFP are
served to at-risk children participating
in eligible afterschool care programs in
selected States as authorized by law. Atrisk afterschool meals were authorized
by section 243(i) of the Agriculture Risk
Protection Act of 2000 (Pub. L. 106–
224), which amended section 17(r) of
the Richard B. Russell National School
Lunch Act (42 U.S.C. 1766(r)) (NSLA).
This provision followed an earlier
authorization for afterschool snack
reimbursements through the CACFP by
the William F. Goodling Child Nutrition
Reauthorization Act of 1998 (Pub. L.
105–336). Public Law 105–336
expanded the availability of snacks to
children ages 13 through 18 in the
CACFP through at-risk afterschool care
centers that are 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
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reduced price school meals. Public Law
105–336 also provided for the
nationwide availability of snacks in the
National School Lunch Program (NSLP).
A proposed rule to implement the
statutory provisions for afterschool
snacks in the NSLP and CACFP was
published on October 11, 2000 (65 FR
60502). The proposal had a 90-day
comment period; 33 comment letters
were received. A final rule, Afterschool
Snacks in the Child and Adult Care
Food Program, was published on July
31, 2007 (72 FR 41591). A final rule on
serving afterschool snacks in the NSLP
is expected to be published in 2008.
As stipulated by law, at-risk meals
and snacks are available to children
through age 18 (or any age if disabled)
who are participating in an afterschool
care program under the CACFP. The
afterschool care program must be
located in the geographical area of a
school in which at least 50 percent of
the children who are enrolled are
certified eligible for free or reduced
price meals. Although at-risk afterschool
snacks are available in all States, at-risk
afterschool meals are only available in
States authorized by section 17(r)(5) of
the NSLA—currently, Delaware, Illinois,
Michigan, Missouri, New York, Oregon,
Pennsylvania, and West Virginia. To be
eligible, afterschool care programs must
be organized primarily to provide care
to at-risk school children after school, or
on weekends, holidays, or school
vacations and must provide educational
or enrichment activities. At-risk meals
and snacks must be served free of charge
to the participants and are reimbursed at
the applicable free rates for meals and
snacks.
2. How were the States selected for atrisk afterschool meals?
Initially, only six States were
authorized to be reimbursed for meals
served in at-risk afterschool programs.
Four of the six States were named in the
law (Delaware, Michigan, Missouri, and
Pennsylvania); two remaining States
were to be selected by the Secretary
based upon competitive applications.
As described in the following
paragraph, the Department selected New
York and Oregon through the
competitive application process. The
seventh State, Illinois, was added by
section 771(3) of the Agriculture, Rural
Development, Food and Drug
Administration, and Related Agencies
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Appropriations Act, 2002 (Pub. L. 107–
76, 115 Stat. 745, November 28, 2001),
and the eighth State, West Virginia was
added by section 744, division A of the
Consolidated Appropriations Act, 2008
(Pub. L. 110–161, December 26, 2007).
Both laws amended section 17(r)(5) of
the NSLA (42 U.S.C.1766(r)).
3. How did USDA select the other two
States?
Acting on the statutory requirement to
select two States competitively, FNS
distributed applications to all CACFP
State agencies in August 2000. Eleven
State agencies submitted applications by
the October 2000 deadline. FNS rated
the submissions using the following
criteria: demonstration of need; State
support of afterschool care programs;
and status of at-risk afterschool care
programs in CACFP.
The applicants were notified in
December 2000 of the Department’s
selections.
4. When were these States authorized to
begin at-risk afterschool meal
operations?
The four States initially named in the
statute, Delaware, Michigan, Missouri,
and Pennsylvania, were eligible to
reimburse at-risk afterschool care
centers for meals beginning on June 20,
2000. The two additional States selected
by USDA, New York and Oregon, were
eligible to receive reimbursement for
afterschool meals in January 2001. The
seventh State, Illinois, was notified in
November 2001 of its eligibility. The
eighth State, West Virginia, was notified
in December 2007 of its eligibility.
5. How did USDA help the States
implement the at-risk afterschool meal
provision?
FNS convened a meeting of the
original six at-risk ‘‘supper’’ States
(Delaware, Michigan, Missouri, New
York, Oregon, and Pennsylvania) on
April 4, 2001, at FNS headquarters’
offices in Alexandria, Virginia. The
meeting focused on providing technical
assistance and exchanging
implementation strategies for at-risk
suppers. The exchange of information
revealed wide variations in the
implementation of the at-risk supper
component by the eligible State
agencies. For example, strict licensing
requirements in one State prevented
aging public school buildings from
being used as afterschool care centers
while other States had no licensing
requirements for afterschool care
centers. Some jurisdictions even lacked
health or safety requirements for
afterschool programs.
In 2002 and 2003, FNS continued to
provide technical assistance through
conference calls with administrators
from the eligible at-risk afterschool
‘‘supper’’ States.
Comments and suggestions made by
the participants of the April 2001
meeting and subsequent conference
calls in 2002 and 2003 provided FNS
with valuable insight into operational
issues that contributed to the
development of policy in the at-risk
afterschool care component of the
Program as reflected in policy and
guidance issued by FNS and in the
development of this proposed rule.
6. Why does the proposed rule use the
term ‘‘at-risk meals’’ instead of ‘‘at-risk
suppers’’?
To emphasize the eligibility for
reimbursement of any one meal served
to children attending at-risk afterschool
care centers in eligible States when they
are not in school, we have dropped the
use of the term ‘‘at-risk afterschool
suppers’’ in favor of the more accurate
term, ‘‘at-risk afterschool meals.’’
The issue was raised whether at-risk
afterschool centers in the eligible States
are limited to suppers or whether other
meals may be served and reimbursed at
the free rate under the at-risk
provisions. It was pointed out that the
statutory language specifies the
provision of at-risk meals, not suppers,
and that use of the term ‘‘at-risk
suppers’’ may inadvertently restrict
eligible at-risk programs that operate on
weekends and school holidays to seek
reimbursement for or serve only the
supper meal. However, the at-risk meal
reimbursement is not limited
exclusively to suppers when an eligible
at-risk afterschool center provides care
when school is closed, such as on the
weekends or vacations during the
regular school year.
7. What is USDA’s approach to
implementing at-risk afterschool meals
in the CACFP regulations?
We propose to track the provisions for
at-risk afterschool meals as closely as
possible to the regulatory requirements
already in place for at-risk afterschool
snacks; the CACFP at-risk afterschool
snack provisions were published in a
final rule on July 31, 2007 (72 FR
41591). This is consistent with the
treatment of at-risk meals in the statute;
both at-risk snacks and meals are
authorized under the same at-risk
provisions in the NSLA at section 17(r)
(42 U.S.C. 1766(r)). In addition, most of
the provisions contained in this rule
would propose the continuation of
requirements that FNS has previously
provided to the eligible States on the
implementation of at-risk afterschool
meals.
8. What proposed provisions are similar
to at-risk afterschool snack provisions?
This rule proposes to extend the atrisk snack provisions located in 7 CFR
226.17a and in other sections of the
CACFP regulations to include at-risk
meals. These requirements include
payments to at-risk afterschool care
centers, eligible organizations and
afterschool care programs, application
procedures, participant eligibility for atrisk meals, licensing requirements, State
agency approval, data requirements for
determining area eligibility, reporting
and recordkeeping requirements, and
monitoring. The following is a table that
provides a summary of the regulatory
provisions that we propose to extend to
at-risk afterschool meals in the eligible
States.
AT-RISK AFTERSCHOOL CARE PROVISIONS TO INCLUDE AFTERSCHOOL MEALS AND SNACKS
Provision
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Eligible organizations
226.17a(a).
7
Description
CFR
226.2
and
Restrictions on for-profit center participation 7
CFR
226.2,
226.10(c),
226.11(b)(3),
226.11(c)(4), 226.17(b)(4), 226.17a(a)(2).
Eligible afterschool care programs 7 CFR
226.17a(b).
Eligible children 7 CFR 226.2, 226.17a(c) .........
Eligible area 7 CFR 226.2, 226.17a(i) ................
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For snacks, at-risk afterschool centers must be located in eligible areas and provide afterschool care. For meals, at-risk afterschool centers must be located in eligible areas in one
of the eligible States and provide afterschool care.
For-profit centers may not count at-risk children toward meeting the monthly eligibility criteria
(25 percent of the children (enrolled or licensed capacity, whichever is less) must be eligible
for free or reduced price meals or Title XX benefits).
The primary purpose of the eligible afterschool care program is to provide afterschool care,
and it must provide education or enrichment activities.
Children must be 18 and under or meet the CACFP definition of ‘‘Persons with disabilities’’.
Eligible area is defined as the attendance area of a school in which at least 50 percent of enrolled children are eligible for free or reduced price school meals.
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AT-RISK AFTERSCHOOL CARE PROVISIONS TO INCLUDE AFTERSCHOOL MEALS AND SNACKS—Continued
Provision
Description
Licensing/approval
requirements
7
CFR
226.6(d)(1), 226.17a(d).
Application procedures 7 CFR 226.6(b)(1),
226.17a(e).
Handling renewals or changes 7 CFR
226.6(b)(2),
226.6(f)(2)(ii),
226.6(f)(3)(ii),
226.17a(g).
Cost of at-risk snacks and meals 7 CFR
226.17a(j).
Limit on daily reimbursements 7 CFR
226.17a(k).
The center must be licensed or approved if required by State or local licensing authority; otherwise, it must meet State, local, or Federal health and safety requirements.
The organization must submit written application to sponsoring organization or to the State
agency (if it is an independent center) and must provide documentation of area eligibility.
At-risk afterschool centers must submit changes to sponsor or State agency as appropriate
and reapply every 3 years. Area eligibility is valid for 5 years, unless the State agency
chooses to incorporate area eligibility decisions into the three-year application cycle.
Snacks and meals must be served free of charge.
Meal pattern requirements 7 CFR 226.17a(l),
226.20(b), 226.20(c).
Time periods for meals or snacks 7 CFR
226.17a(m).
Reimbursement rates 7 CFR 226.17a(n) ...........
Recordkeeping requirements 7 CFR 226.17a(o)
Reporting requirements 7 CFR 226.17a(p) ........
Monitoring requirements 7 CFR 226.17a(q),
226.6(m), 226.16(d)(4).
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9. What new provisions affecting at-risk
meals and/or snacks are proposed in
this rule?
This rule proposes to add definitions
at 7 CFR 226.2 for At-risk afterschool
meal and At-risk afterschool snack. We
propose these definitions to distinguish
the snacks and meals served under the
at-risk afterschool component of the
Program from the meals and snacks
served under the other components of
the Program, such as day care homes,
adult day care centers, outside-schoolhours care centers, and traditional child
care centers. At-risk afterschool meals
and snacks must meet the same meal
pattern requirements as all other meals
and snacks served under the CACFP (as
described at 7 CFR 226.20(a)(1) through
(a)(4)). However, the at-risk meal and/or
snack services differ from other meals
and snacks because they are served free
to all participants through age 18 and
are reimbursed at the applicable free
rate. At-risk afterschool meals are
further distinguished from at-risk
afterschool snacks by being limited to
the eligible States. These distinguishing
factors necessitate the need for separate
definitions of at-risk snacks and at-risk
meals.
In addition, we propose to clarify in
7 CFR 226.17a(m) the times when an atrisk snack or meal may be served. When
school is in session, at-risk afterschool
care centers must serve the snack or
meal after school hours. On each day of
a weekend or holiday program during
the regular school year, State agencies
may approve reimbursement of a snack
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Benefits under the at-risk provisions are one at-risk snack and one at-risk meal (in eligible
States) per child per day, which count toward the maximum benefit in CACFP of two meals
and one snack or one meal and two snacks per child per day.
At-risk afterschool snacks and meals must meet CACFP meal pattern requirements.
A snack and/or meal is served after a child’s school day. On weekends and holidays, with
State agency approval, one snack may be served anytime, and in the eligible States, any
one meal (breakfast, lunch, or supper) may be served.
Centers are reimbursed at the applicable free rate for snacks or meals.
In addition to other recordkeeping requirements for CACFP centers, at-risk afterschool centers
must take daily attendance and count the number of snacks and/or meals served.
In addition to other reporting requirements for CACFP centers, at-risk afterschool centers must
report the number of snacks and/or meals served each day.
Monitoring is the same as for other CACFP center-based programs.
served at any time of the day and, in the
eligible States, any one meal (breakfast,
lunch, or supper). The prohibition of atrisk afterschool snack or meal services
during summer vacation (except for
centers located in the attendance area of
a school operating on a year-round
schedule) is unchanged.
II. Procedural Matters
Executive Order 12866
This proposed rule has been
determined to be significant and was
reviewed by the Office of Management
and Budget (OMB) under Executive
Order 12866.
Regulatory Impact Analysis
The Regulatory Impact Analysis
completed for this proposed rule is
available from: Julie Brewer, Policy and
Program Development Branch, Child
Nutrition Division, Food and Nutrition
Service, USDA, 3101 Park Center Drive,
Alexandria, VA 22302, phone (703)
305–2590. The analysis is summarized
below.
Need for Action
The CACFP at-risk afterschool meal
component was authorized by the
Agriculture Risk Protection Act of 2000
(Pub. L. 106–224), and modified by the
Agriculture, Rural Development, Food
and Drug Administration, and Related
Agencies Appropriations Act, 2002
(Pub. L. 107–76), and the Consolidated
Appropriations Act, 2008 (Pub. L. 110–
161). The at-risk meal component has
been implemented through FNS
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guidelines since its creation. FNS
guidelines also govern the CACFP atrisk afterschool snack component; the
guidelines for the afterschool snack and
meals components of CACFP are largely
the same. A final rule for the afterschool
snack component was published on July
31, 2007 (72 FR 41591). Relatively
minor changes to the regulations as
amended by that rule are needed to
make the regulations fully applicable to
both the snack and meal components of
the at-risk afterschool care program.
This rule proposes those changes. This
rule also contains language that would,
when published as a final rule, codify
the elements of current guidelines
unique to the afterschool meal
component.
Benefits
Among the motivating factors to
establish the at-risk afterschool snack
program was a desire to support
educational and enriching afterschool
care programs for children up to 18
years of age in at-risk neighborhoods in
order to reduce juvenile crime and
educational underachievement. FNS
cannot quantify the impact of the at-risk
meals program on juvenile crime or
educational achievement. However,
participation in these programs is
growing and thus these outcomes are to
some extent fostered. In the first four
years of the program, growth in
afterschool meals served by the seven
at-risk States eligible at that time ranged
from 2 to 8 percent higher than
afterschool meals served by nonparticipating States. However, data
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reported since 2004 suggests that this
disparity in growth has ended, at least
temporarily, and it is too soon to credit
the program with a sustained long-term
impact on afterschool program
attendance.
Although some at-risk meals served
afterschool replaced meals served by
outside-school-hours care centers, there
is also considerable evidence that the
total number of children reached by
CACFP has increased, to date, as a result
of this program. The percentage of atrisk meals that would have been served
in traditional child care centers in the
absence of the at-risk program is, of
course, uncertain. However, it may be as
high as 70 percent. That figure suggests
that 30 percent of total at-risk
participants, or roughly 37,000 children
on an average school day during FY
2006, would not have received a
federally-reimbursable supper if not for
the at-risk program. The program
benefits those 37,000 children by
providing them with a meal that
conforms to USDA meal patterns. In
addition, all children served by the atrisk program, approximately 123,000
per day during FY 2006, benefit from
the program’s structured educational or
enrichment elements.
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Costs
This proposed rule would, when
published as a final rule, codify
guidelines governing an existing
program component that started in 2001
as mandated by statute. As a result,
there are no new reimbursement costs
associated with the rule. The at-risk
afterschool meals program cost the
Federal government a total of $139.8
million in FY 2002 to FY 2006, and is
projected to cost a total of $224.6
million from FY 2007 to FY 2011. Costs
include both the reimbursement rate
that the Federal government pays for
each meal, as well as the commodity
assistance given to the program. State
reporting data do not clearly detail how
many additional meals are being served
to new participants of the at-risk
afterschool meals program that would
not have participated in the outsideschool-hours care center program, thus
the incremental costs of the at-risk
meals program are likely small but
cannot be determined.
Regulatory Flexibility Act
This rule has been reviewed with
regard to the requirements of the
Regulatory Flexibility Act of 1980 (5
U.S.C. 601–612). Nancy Montanez
Johner, Under Secretary for Food,
Nutrition, and Consumer Services, has
certified that this rule will not have a
significant impact on a substantial
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number of small entities. At-risk
afterschool care centers in the eligible
States choose whether they wish to
participate in this additional meal
service. Most of these institutions that
will choose to add a meal service are
already providing snacks under the atrisk component of the CACFP. The
additional meal service will not have a
significant paperwork or reporting
burden because it is incorporated under
the existing agreement and Claim for
Reimbursement.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under Section 202 of the UMRA,
the Department generally must prepare
a written statement, including a cost/
benefit analysis, for proposed and final
rules with Federal mandates that may
result in expenditures to State, local, or
tribal governments, in the aggregate, or
to the private sector, of $100 million or
more in any one year. When such a
statement is needed for a rule, Section
205 of the UMRA generally requires the
Department to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
more cost-effective or least burdensome
alternative that achieves the objectives
of the rule.
This rule contains no Federal
mandates (under regulatory provisions
of Title II of the UMRA) that impose
costs on State, local, or tribal
governments or the private sector of
$100 million or more in any one year.
Therefore, this rule is not subject to the
requirements of Sections 202 and 205 of
the UMRA.
Executive Order 12372
The Child and Adult Care Food
Program is listed in the Catalog of
Federal Domestic Assistance under No.
10.558. For the reasons set forth in the
final rule in 7 CFR part 3015, Subpart
V and related Notice published at 48 FR
29114, June 24, 1983, this Program is
included in the scope of Executive
Order 12372, which requires
intergovernmental consultation with
State and local officials.
Executive Order 13132
Executive Order 13132 requires
Federal agencies to consider the impact
of their regulatory actions on State and
local governments. Where such actions
have federalism implications, agencies
are directed to provide a statement for
inclusion in the preamble to the
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regulations describing the agency’s
considerations in terms of the three
categories called for under Section
(6)(b)(2)(B) of Executive Order 13132.
FNS has considered the impact of this
rule on State and local governments and
has determined that this rule does not
have federalism implications. This rule
does not impose substantial or direct
compliance costs on State and local
governments. Therefore, under Section
6(b) of the Executive Order, a federalism
summary impact statement is not
required.
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule when published in
final is intended to have preemptive
effect with respect to any State or local
laws, regulations or policies which
conflict with its provisions or that
would otherwise impede its full
implementation. This rule is not
intended to have retroactive effect
unless so specified in the Dates
paragraph of the final rule. Prior to any
judicial challenge to the provisions of
this rule or the application of its
provisions, all applicable administrative
procedures must be exhausted. In the
CACFP, the administrative procedures
are set forth at 7 CFR 226.6(k), which
establishes appeal procedures, and at 7
CFR 226.22, 3016, and 3019, which
address administrative appeal
procedures for disputes involving
procurement by State agencies and
institutions.
Civil Rights Impact Analysis
FNS has reviewed this proposed rule
in accordance with the Department
Regulation 4300–4, ‘‘Civil Rights Impact
Analysis’’ to identify and address any
major civil rights impact the rule might
have on minorities, women, and persons
with disabilities. After a careful review
of the rule’s intent and provisions, FNS
has determined that there is no negative
effect on these groups. All data available
to FNS indicate that protected
individuals have the same opportunity
to participate in the CACFP as nonprotected individuals. The regulations
at 7 CFR 226.6(b)(4)(iv) require that
CACFP institutions agree to operate the
Program in compliance with applicable
Federal civil rights laws, including title
VI of the Civil Rights Act of 1964, title
IX of the Education amendments of
1972, Section 504 of the Rehabilitation
Act of 1973, the Age Discrimination Act
of 1975, and the Department’s
regulations concerning
nondiscrimination (7 CFR parts 15, 15a,
and 15b). At 7 CFR 226.6(m)(1), State
agencies are required to monitor CACFP
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institution compliance with these laws
and regulations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. Chap. 35; see 5 CFR part
1320) requires that the Office of
Management and Budget (OMB)
approve all collections of information
by a Federal agency from the public
before they can be implemented.
Respondents are not required to respond
to any collection of information unless
it displays a current valid OMB control
number. Information collections in this
proposed rule have been previously
approved under OMB #0584–0055.
There is no new burden associated with
this proposed rule.
E-Government Act Compliance
FNS is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
List of Subjects in 7 CFR Part 226
Accounting, Aged, Day care, Food
assistance programs, Grant programs,
Grant programs—health, American
Indians, Individuals with disabilities,
Infants and children, Intergovernmental
relations, Loan programs, Reporting and
recordkeeping requirements, Surplus
agricultural commodities.
Accordingly, 7 CFR part 226 is
proposed to be amended as follows:
PART 226—CHILD AND ADULT CARE
FOOD PROGRAM
1. The authority citation for part 226
continues to read as follows:
Authority: Secs. 9, 11, 14, 16, and 17,
Richard B. Russell National School Lunch
Act, as amended (42 U.S.C. 1758, 1759a,
1762a, 1765 and 1766).
2. In § 226.2:
a. Add new definitions of ‘‘At-risk
afterschool meal’’ and ‘‘At-risk
afterschool snack’’ in alphabetical order;
and
b. Amend the last sentence of the
introductory text of the definition of
‘‘For-profit center’’ by adding the words
‘‘and/or meal’’ after the words ‘‘at-risk
afterschool snack’’.
The additions read as follows:
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§ 226.2
Definitions.
*
*
*
*
*
At-risk afterschool meal means a meal
that meets the requirements described
in § 226.20(b)(6) and/or (c)(1), (c)(2), or
(c)(3), that is reimbursed at the
appropriate free rate and is served by an
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At-risk afterschool care center as
defined in this section, which is located
in a State designated by law or selected
by the Secretary as directed by law.
At-risk afterschool snack means a
snack that meets the requirements
described in § 226.20(b)(6) and/or (c)(4)
that is reimbursed at the free rate for
snacks and is served by an At-risk
afterschool care center as defined in this
section.
*
*
*
*
*
3. In § 226.4, paragraph (d) is
amended by adding a sentence at the
end of the paragraph to read as follows:
§ 226.4
funds.
Payments to States and use of
*
*
*
*
*
(d) * * * For at-risk afterschool meals
and at-risk afterschool snacks served to
children, funds will be made available
to each eligible State agency in an
amount equal to the total calculated by
multiplying the number of at-risk
afterschool meals and the number of atrisk afterschool snacks served in the
Program within the State by the national
average payment rate for free meals and
free snacks, respectively, under section
11 of the Richard B. Russell National
School Lunch Act.
*
*
*
*
*
§ 226.9
[Amended]
4. In § 226.9, amend paragraph (b)(2)
by removing the words ‘‘at-risk
afterschool snack component’’ and
adding in their place the words ‘‘at-risk
afterschool care component’’.
5. In § 226.10, revise the fourth
sentence of the introductory text of
paragraph (c) to read as follows:
§ 226.10
Program payment procedures.
*
*
*
*
*
(c) * * * However, children who only
receive at-risk afterschool snacks and/or
at-risk afterschool meals must not be
considered in determining this
eligibility. * * *
*
*
*
*
*
6. In § 226.11:
a. Revise the second sentence of
paragraph (b)(3);
b. Revise paragraph (c)(2); and
c. Revise the second sentence of
paragraph (c)(4).
The revisions read as follows:
§ 226.11
Program payments for centers.
*
*
*
*
*
(b) * * *
(3) * * * However, children who
only receive at-risk afterschool snacks
and/or at-risk afterschool meals must
not be considered in determining this
eligibility. * * *
(c) * * *
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Frm 00005
Fmt 4702
Sfmt 4702
16217
(2) At-risk afterschool care
institutions. Except as provided in
paragraph (c)(4) of this section, State
agencies must base reimbursement to
each at-risk afterschool care center on
the number of at-risk afterschool snacks
and/or at-risk afterschool meals that are
served to children.
*
*
*
*
*
(4) * * * However, children who
only receive at-risk afterschool snacks
and/or at-risk afterschool meals must
not be considered in determining this
eligibility. * * *
*
*
*
*
*
7. In § 226.17, revise the third
sentence of paragraph (b)(4) to read as
follows:
§ 226.17
Child care center provisions.
*
*
*
*
*
(b)* * *
(4) * * * However, children who
only receive at-risk afterschool snacks
and/or at-risk afterschool meals must
not be included in this percentage.
* * *
*
*
*
*
*
8. In § 226.17a:
a. Revise the heading of paragraph (a)
and revise paragraph (a)(1) introductory
text;
b. Add a new paragraph (a)(1)(v);
c. Revise paragraph (a)(2);
d. Revise paragraphs (c), (j), (k), (l),
(m), and (n);
e. Revise paragraphs (o)(2), (o)(3), and
(o)(4); and
f. Revise paragraph (p).
The addition and revisions read as
follows:
§ 226.17a At-risk afterschool care center
provisions.
(a) Organizations eligible to receive
reimbursement for at-risk afterschool
snacks and at-risk afterschool meals.
(1) Eligible organizations. To receive
reimbursement for at-risk afterschool
snacks, organizations must meet the
criteria in paragraphs (a)(1)(i) through
(a)(1)(iv) of this section. To receive
reimbursement for at-risk afterschool
meals, organizations must meet the
criteria in paragraphs (a)(1)(i) through
(a)(1)(v) of this section.
*
*
*
*
*
(v) Organizations eligible to be
reimbursed for at-risk afterschool meals
must be located in one of the eligible
States designated by law or selected by
the Secretary as directed by law.
(2) Limitations. (i) To be reimbursed
for at-risk afterschool snacks and/or atrisk afterschool meals, all organizations
must:
(A) Serve the at-risk afterschool
snacks and/or at-risk afterschool meals
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Federal Register / Vol. 73, No. 60 / Thursday, March 27, 2008 / Proposed Rules
to children who are participating in an
approved afterschool care program; and
(B) Not exceed the authorized
capacity of the at-risk afterschool care
center.
(ii) In any calendar month, a for-profit
center must be eligible to participate in
the Program as described in the
definition of For-profit center in § 226.2.
However, children who only receive atrisk afterschool snacks and/or at-risk
afterschool meals must not be
considered in determining this
eligibility.
*
*
*
*
*
(c) Eligibility requirements for
children. At-risk afterschool snacks and/
or at-risk afterschool meals are
reimbursable only if served to children
who are participating in an approved
afterschool care program and who either
are age 18 or under at the start of the
school year or meet the definition of
Persons with disabilities in § 226.2.
*
*
*
*
*
(j) Cost of at-risk afterschool snacks
and meals. All at-risk afterschool snacks
and at-risk afterschool meals served
under this section must be provided at
no charge to participating children.
(k) Limit on daily reimbursements.
Only one at-risk afterschool snack and
(in eligible States) one at-risk
afterschool meal per child per day may
be claimed for reimbursement. A center
that provides care to a child under
another component of the Program
during the same day may not claim
reimbursement for more than two meals
and one snack, or one meal and two
snacks, per child per day, including the
at-risk afterschool snack and the at-risk
afterschool meal. All meals and snacks
must be claimed in accordance with the
requirements for the applicable
component of the Program.
(l) Meal pattern requirements for atrisk afterschool snacks and at-risk
afterschool meals. At-risk afterschool
snacks must meet the meal pattern
requirements for snacks in § 226.20(b)(6)
and/or (c)(4); at-risk afterschool meals
must meet the meal pattern
requirements for meals in § 226.20(b)(6)
and/or (c)(1), (c)(2), or (c)(3).
(m) Time periods for snack and meal
services—(1) At-risk afterschool snacks.
When school is in session, the snack
must be served after the child’s school
day. With State agency approval, the
snack may be served at any time on
weekends and vacations during the
regular school year. Afterschool snacks
may not be claimed during summer
vacation, unless an at-risk afterschool
care center is located in the attendance
area of a school operating on a yearround calendar.
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Jkt 214001
(2) At-risk afterschool meals. When
school is in session, the meal must be
served after the child’s school day. With
State agency approval, any one meal
may be served (breakfast, lunch, or
supper) per day on weekends and
vacations during the regular school year.
Afterschool meals may not be claimed
during summer vacation, unless an atrisk afterschool care center is located in
the attendance area of a school
operating on a year-round calendar.
(n) Reimbursement rates. At-risk
afterschool snacks are reimbursed at the
free rate for snacks. At-risk afterschool
meals are reimbursed at the respective
free rates for breakfast, lunch, or supper.
(o) * * *
(2) The number of at-risk afterschool
snacks prepared or delivered for each
snack service and/or (in eligible States)
the number of at-risk afterschool meals
prepared or delivered for each meal
service;
(3) The number of at-risk afterschool
snacks served to participating children
for each snack service and/or (in eligible
States) the number of at-risk afterschool
meals served to participating children
for each meal service; and
(4) Menus for each at-risk afterschool
snack service and each at-risk
afterschool meal service.
(p) Reporting requirements. In
addition to other reporting requirements
under this part, at-risk afterschool care
centers must report the total number of
at-risk afterschool snacks and/or (in
eligible States) the total number of atrisk afterschool meals served to eligible
children based on daily attendance
rosters or sign-in sheets.
*
*
*
*
*
Dated: March 18, 2008.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and
Consumer Services.
[FR Doc. E8–6235 Filed 3–26–08; 8:45 am]
BILLING CODE 3410–30–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1230
[Docket No. AMS–LS–07–0143]
Pork Promotion, Research and
Consumer Information Program;
Section 610 Review
Agricultural Marketing Service,
USDA.
ACTION: Notice of review and request for
comments.
AGENCY:
SUMMARY: This action announces the
Agricultural Marketing Service’s (AMS)
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
review of the Pork Promotion, Research,
and Consumer Information Program
(Program), which is conducted under
the Pork Promotion, Research, and
Consumer Information Order (Order),
under the criteria contained in section
610 of the Regulatory Flexibility Act
(RFA).
Written comments on this notice
must be received by May 27, 2008.
ADDRESSES: Interested persons are
invited to submit written comments
concerning this notice of review.
Comments must be sent to Kenneth R.
Payne, Chief, Marketing Programs
Branch, Livestock and Seed Program,
AMS, USDA, Room 2628–S, STOP 0251,
1400 Independence Avenue, SW.,
Washington, DC 20250–0251; Fax: (202)
720–1125; or, online at
www.regulations.gov. All comments
should reference the docket number, the
date, and the page number of this issue
of the Federal Register. Comments will
be available for public inspection via
the internet at www.regulations.gov or
during regular business hours at the
address above.
FOR FURTHER INFORMATION CONTACT:
Kenneth R. Payne, Chief, Marketing
Programs Branch; Telephone: (202) 720–
1115; Fax: (202) 720–1125, or E-mail
Kenneth.Payne@usda.gov.
DATES:
The Order
(7 CFR part 1230) is authorized under
the Pork Promotion, Research, and
Consumer Information Act of 1985 (Act)
(7 U.S.C. 4801 et seq.). As part of a
comprehensive strategy to strengthen
the pork industry’s position in the
marketplace, this national pork program
maintains and expands existing
domestic and foreign markets and
develops new markets for pork and pork
products. The program is funded by a
mandatory assessment of $0.40 perhundred-dollars of market value. All
producers owning and marketing swine,
regardless of the size of their operation
or the value of their swine, must pay the
assessment. A comparable assessment is
collected on all imported swine, pork,
and pork products. Assessments
collected under this program are used
for promotion, research, consumer
information, and industry information.
The national program is administered
by the National Pork Board (Board),
which is composed of 15 producer
members. Board members serve 3-year
terms, but no individual may serve more
than two consecutive 3-year terms.
Producer members are selected by the
National Pork Producers Delegate Body,
a group of 163 producer and importer
members that represent all 50 States and
importers. The program became
SUPPLEMENTARY INFORMATION:
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[Federal Register Volume 73, Number 60 (Thursday, March 27, 2008)]
[Proposed Rules]
[Pages 16213-16218]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6235]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 73, No. 60 / Thursday, March 27, 2008 /
Proposed Rules
[[Page 16213]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 226
[FNS-2007-0022]
RIN 0584-AD15
Child and Adult Care Food Program: At-Risk Afterschool Meals in
Eligible States
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to amend the Child and Adult Care Food
Program (CACFP) regulations to implement provisions from the
Agriculture Risk Protection Act of 2000, the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies
Appropriations Act of 2002, and the Consolidated Appropriations Act of
2008, that authorize reimbursement to eligible States for a meal
(normally a supper) served by at-risk afterschool care programs. The
eligible States are Delaware, Illinois, Michigan, Missouri, New York,
Oregon, Pennsylvania, and West Virginia. The intent of this proposed
rule is to conform CACFP regulations to statutory amendments that
provide an additional meal for at-risk children through age 18 who are
participating in afterschool programs in the eligible States. The Food
and Nutrition Service (FNS) implemented the statutory mandates through
written policy guidance upon enactment of the statutory provisions.
DATES: To be assured of consideration, written comments must be
received or postmarked on or before May 27, 2008.
ADDRESSES: FNS invites interested persons to submit comments on this
proposed rule. Comments may be submitted by any of the following
methods:
Mail: Send comments to Robert M. Eadie, Chief, Policy and
Program Development Branch, Child Nutrition Division, Room 640, Food
and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria,
Virginia 22302.
Fax: Submit comments by facsimile transmission to: (703)
305-2879. Please address your comments to Mr. Eadie and identify your
comments as ``CACFP: At-Risk Afterschool Meals''.
Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting
comments.
Comments submitted in response to this rule will be included in the
record and will be available to the public. Please be advised that the
substance of the comments and the identity of the individuals or
entities submitting the comments will be subject to public disclosure.
FNS will make the comments publicly available on the Internet via
https://www.regulations.gov.
All written submissions will be available for public inspection at
the address above during regular business hours (8:30 a.m. to 5:30
p.m.) Monday through Friday, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Julie Brewer, 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:
I. Background
1. What are at-risk afterschool meals?
Afterschool meals in the CACFP are served to at-risk children
participating in eligible afterschool care programs in selected States
as authorized by law. At-risk afterschool meals were authorized by
section 243(i) of the Agriculture Risk Protection Act of 2000 (Pub. L.
106-224), which amended section 17(r) of the Richard B. Russell
National School Lunch Act (42 U.S.C. 1766(r)) (NSLA).
This provision followed an earlier authorization for afterschool
snack reimbursements through the CACFP by the William F. Goodling Child
Nutrition Reauthorization Act of 1998 (Pub. L. 105-336). Public Law
105-336 expanded the availability of snacks to children ages 13 through
18 in the CACFP through at-risk afterschool care centers that are
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. Public Law 105-336 also provided for the
nationwide availability of snacks in the National School Lunch Program
(NSLP). A proposed rule to implement the statutory provisions for
afterschool snacks in the NSLP and CACFP was published on October 11,
2000 (65 FR 60502). The proposal had a 90-day comment period; 33
comment letters were received. A final rule, Afterschool Snacks in the
Child and Adult Care Food Program, was published on July 31, 2007 (72
FR 41591). A final rule on serving afterschool snacks in the NSLP is
expected to be published in 2008.
As stipulated by law, at-risk meals and snacks are available to
children through age 18 (or any age if disabled) who are participating
in an afterschool care program under the CACFP. The afterschool care
program must be located in the geographical area of a school in which
at least 50 percent of the children who are enrolled are certified
eligible for free or reduced price meals. Although at-risk afterschool
snacks are available in all States, at-risk afterschool meals are only
available in States authorized by section 17(r)(5) of the NSLA--
currently, Delaware, Illinois, Michigan, Missouri, New York, Oregon,
Pennsylvania, and West Virginia. To be eligible, afterschool care
programs must be organized primarily to provide care to at-risk school
children after school, or on weekends, holidays, or school vacations
and must provide educational or enrichment activities. At-risk meals
and snacks must be served free of charge to the participants and are
reimbursed at the applicable free rates for meals and snacks.
2. How were the States selected for at-risk afterschool meals?
Initially, only six States were authorized to be reimbursed for
meals served in at-risk afterschool programs. Four of the six States
were named in the law (Delaware, Michigan, Missouri, and Pennsylvania);
two remaining States were to be selected by the Secretary based upon
competitive applications. As described in the following paragraph, the
Department selected New York and Oregon through the competitive
application process. The seventh State, Illinois, was added by section
771(3) of the Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies
[[Page 16214]]
Appropriations Act, 2002 (Pub. L. 107-76, 115 Stat. 745, November 28,
2001), and the eighth State, West Virginia was added by section 744,
division A of the Consolidated Appropriations Act, 2008 (Pub. L. 110-
161, December 26, 2007). Both laws amended section 17(r)(5) of the NSLA
(42 U.S.C.1766(r)).
3. How did USDA select the other two States?
Acting on the statutory requirement to select two States
competitively, FNS distributed applications to all CACFP State agencies
in August 2000. Eleven State agencies submitted applications by the
October 2000 deadline. FNS rated the submissions using the following
criteria: demonstration of need; State support of afterschool care
programs; and status of at-risk afterschool care programs in CACFP.
The applicants were notified in December 2000 of the Department's
selections.
4. When were these States authorized to begin at-risk afterschool meal
operations?
The four States initially named in the statute, Delaware, Michigan,
Missouri, and Pennsylvania, were eligible to reimburse at-risk
afterschool care centers for meals beginning on June 20, 2000. The two
additional States selected by USDA, New York and Oregon, were eligible
to receive reimbursement for afterschool meals in January 2001. The
seventh State, Illinois, was notified in November 2001 of its
eligibility. The eighth State, West Virginia, was notified in December
2007 of its eligibility.
5. How did USDA help the States implement the at-risk afterschool meal
provision?
FNS convened a meeting of the original six at-risk ``supper''
States (Delaware, Michigan, Missouri, New York, Oregon, and
Pennsylvania) on April 4, 2001, at FNS headquarters' offices in
Alexandria, Virginia. The meeting focused on providing technical
assistance and exchanging implementation strategies for at-risk
suppers. The exchange of information revealed wide variations in the
implementation of the at-risk supper component by the eligible State
agencies. For example, strict licensing requirements in one State
prevented aging public school buildings from being used as afterschool
care centers while other States had no licensing requirements for
afterschool care centers. Some jurisdictions even lacked health or
safety requirements for afterschool programs.
In 2002 and 2003, FNS continued to provide technical assistance
through conference calls with administrators from the eligible at-risk
afterschool ``supper'' States.
Comments and suggestions made by the participants of the April 2001
meeting and subsequent conference calls in 2002 and 2003 provided FNS
with valuable insight into operational issues that contributed to the
development of policy in the at-risk afterschool care component of the
Program as reflected in policy and guidance issued by FNS and in the
development of this proposed rule.
6. Why does the proposed rule use the term ``at-risk meals'' instead of
``at-risk suppers''?
To emphasize the eligibility for reimbursement of any one meal
served to children attending at-risk afterschool care centers in
eligible States when they are not in school, we have dropped the use of
the term ``at-risk afterschool suppers'' in favor of the more accurate
term, ``at-risk afterschool meals.''
The issue was raised whether at-risk afterschool centers in the
eligible States are limited to suppers or whether other meals may be
served and reimbursed at the free rate under the at-risk provisions. It
was pointed out that the statutory language specifies the provision of
at-risk meals, not suppers, and that use of the term ``at-risk
suppers'' may inadvertently restrict eligible at-risk programs that
operate on weekends and school holidays to seek reimbursement for or
serve only the supper meal. However, the at-risk meal reimbursement is
not limited exclusively to suppers when an eligible at-risk afterschool
center provides care when school is closed, such as on the weekends or
vacations during the regular school year.
7. What is USDA's approach to implementing at-risk afterschool meals in
the CACFP regulations?
We propose to track the provisions for at-risk afterschool meals as
closely as possible to the regulatory requirements already in place for
at-risk afterschool snacks; the CACFP at-risk afterschool snack
provisions were published in a final rule on July 31, 2007 (72 FR
41591). This is consistent with the treatment of at-risk meals in the
statute; both at-risk snacks and meals are authorized under the same
at-risk provisions in the NSLA at section 17(r) (42 U.S.C. 1766(r)). In
addition, most of the provisions contained in this rule would propose
the continuation of requirements that FNS has previously provided to
the eligible States on the implementation of at-risk afterschool meals.
8. What proposed provisions are similar to at-risk afterschool snack
provisions?
This rule proposes to extend the at-risk snack provisions located
in 7 CFR 226.17a and in other sections of the CACFP regulations to
include at-risk meals. These requirements include payments to at-risk
afterschool care centers, eligible organizations and afterschool care
programs, application procedures, participant eligibility for at-risk
meals, licensing requirements, State agency approval, data requirements
for determining area eligibility, reporting and recordkeeping
requirements, and monitoring. The following is a table that provides a
summary of the regulatory provisions that we propose to extend to at-
risk afterschool meals in the eligible States.
At-Risk Afterschool Care Provisions To Include Afterschool Meals and
Snacks
------------------------------------------------------------------------
Provision Description
------------------------------------------------------------------------
Eligible organizations 7 CFR For snacks, at-risk afterschool centers
226.2 and 226.17a(a). must be located in eligible areas and
provide afterschool care. For meals, at-
risk afterschool centers must be located
in eligible areas in one of the eligible
States and provide afterschool care.
Restrictions on for-profit For-profit centers may not count at-risk
center participation 7 CFR children toward meeting the monthly
226.2, 226.10(c), eligibility criteria (25 percent of the
226.11(b)(3), 226.11(c)(4), children (enrolled or licensed capacity,
226.17(b)(4), 226.17a(a)(2). whichever is less) must be eligible for
free or reduced price meals or Title XX
benefits).
Eligible afterschool care The primary purpose of the eligible
programs 7 CFR 226.17a(b). afterschool care program is to provide
afterschool care, and it must provide
education or enrichment activities.
Eligible children 7 CFR Children must be 18 and under or meet the
226.2, 226.17a(c). CACFP definition of ``Persons with
disabilities''.
Eligible area 7 CFR 226.2, Eligible area is defined as the
226.17a(i). attendance area of a school in which at
least 50 percent of enrolled children
are eligible for free or reduced price
school meals.
[[Page 16215]]
Licensing/approval The center must be licensed or approved
requirements 7 CFR if required by State or local licensing
226.6(d)(1), 226.17a(d). authority; otherwise, it must meet
State, local, or Federal health and
safety requirements.
Application procedures 7 CFR The organization must submit written
226.6(b)(1), 226.17a(e). application to sponsoring organization
or to the State agency (if it is an
independent center) and must provide
documentation of area eligibility.
Handling renewals or changes At-risk afterschool centers must submit
7 CFR 226.6(b)(2), changes to sponsor or State agency as
226.6(f)(2)(ii), appropriate and reapply every 3 years.
226.6(f)(3)(ii), 226.17a(g). Area eligibility is valid for 5 years,
unless the State agency chooses to
incorporate area eligibility decisions
into the three-year application cycle.
Cost of at-risk snacks and Snacks and meals must be served free of
meals 7 CFR 226.17a(j). charge.
Limit on daily reimbursements Benefits under the at-risk provisions are
7 CFR 226.17a(k). one at-risk snack and one at-risk meal
(in eligible States) per child per day,
which count toward the maximum benefit
in CACFP of two meals and one snack or
one meal and two snacks per child per
day.
Meal pattern requirements 7 At-risk afterschool snacks and meals must
CFR 226.17a(l), 226.20(b), meet CACFP meal pattern requirements.
226.20(c).
Time periods for meals or A snack and/or meal is served after a
snacks 7 CFR 226.17a(m). child's school day. On weekends and
holidays, with State agency approval,
one snack may be served anytime, and in
the eligible States, any one meal
(breakfast, lunch, or supper) may be
served.
Reimbursement rates 7 CFR Centers are reimbursed at the applicable
226.17a(n). free rate for snacks or meals.
Recordkeeping requirements 7 In addition to other recordkeeping
CFR 226.17a(o). requirements for CACFP centers, at-risk
afterschool centers must take daily
attendance and count the number of
snacks and/or meals served.
Reporting requirements 7 CFR In addition to other reporting
226.17a(p). requirements for CACFP centers, at-risk
afterschool centers must report the
number of snacks and/or meals served
each day.
Monitoring requirements 7 CFR Monitoring is the same as for other CACFP
226.17a(q), 226.6(m), center-based programs.
226.16(d)(4).
------------------------------------------------------------------------
9. What new provisions affecting at-risk meals and/or snacks are
proposed in this rule?
This rule proposes to add definitions at 7 CFR 226.2 for At-risk
afterschool meal and At-risk afterschool snack. We propose these
definitions to distinguish the snacks and meals served under the at-
risk afterschool component of the Program from the meals and snacks
served under the other components of the Program, such as day care
homes, adult day care centers, outside-school-hours care centers, and
traditional child care centers. At-risk afterschool meals and snacks
must meet the same meal pattern requirements as all other meals and
snacks served under the CACFP (as described at 7 CFR 226.20(a)(1)
through (a)(4)). However, the at-risk meal and/or snack services differ
from other meals and snacks because they are served free to all
participants through age 18 and are reimbursed at the applicable free
rate. At-risk afterschool meals are further distinguished from at-risk
afterschool snacks by being limited to the eligible States. These
distinguishing factors necessitate the need for separate definitions of
at-risk snacks and at-risk meals.
In addition, we propose to clarify in 7 CFR 226.17a(m) the times
when an at-risk snack or meal may be served. When school is in session,
at-risk afterschool care centers must serve the snack or meal after
school hours. On each day of a weekend or holiday program during the
regular school year, State agencies may approve reimbursement of a
snack served at any time of the day and, in the eligible States, any
one meal (breakfast, lunch, or supper). The prohibition of at-risk
afterschool snack or meal services during summer vacation (except for
centers located in the attendance area of a school operating on a year-
round schedule) is unchanged.
II. Procedural Matters
Executive Order 12866
This proposed rule has been determined to be significant and was
reviewed by the Office of Management and Budget (OMB) under Executive
Order 12866.
Regulatory Impact Analysis
The Regulatory Impact Analysis completed for this proposed rule is
available from: Julie Brewer, Policy and Program Development Branch,
Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park
Center Drive, Alexandria, VA 22302, phone (703) 305-2590. The analysis
is summarized below.
Need for Action
The CACFP at-risk afterschool meal component was authorized by the
Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), and modified
by the Agriculture, Rural Development, Food and Drug Administration,
and Related Agencies Appropriations Act, 2002 (Pub. L. 107-76), and the
Consolidated Appropriations Act, 2008 (Pub. L. 110-161). The at-risk
meal component has been implemented through FNS guidelines since its
creation. FNS guidelines also govern the CACFP at-risk afterschool
snack component; the guidelines for the afterschool snack and meals
components of CACFP are largely the same. A final rule for the
afterschool snack component was published on July 31, 2007 (72 FR
41591). Relatively minor changes to the regulations as amended by that
rule are needed to make the regulations fully applicable to both the
snack and meal components of the at-risk afterschool care program. This
rule proposes those changes. This rule also contains language that
would, when published as a final rule, codify the elements of current
guidelines unique to the afterschool meal component.
Benefits
Among the motivating factors to establish the at-risk afterschool
snack program was a desire to support educational and enriching
afterschool care programs for children up to 18 years of age in at-risk
neighborhoods in order to reduce juvenile crime and educational
underachievement. FNS cannot quantify the impact of the at-risk meals
program on juvenile crime or educational achievement. However,
participation in these programs is growing and thus these outcomes are
to some extent fostered. In the first four years of the program, growth
in afterschool meals served by the seven at-risk States eligible at
that time ranged from 2 to 8 percent higher than afterschool meals
served by non-participating States. However, data
[[Page 16216]]
reported since 2004 suggests that this disparity in growth has ended,
at least temporarily, and it is too soon to credit the program with a
sustained long-term impact on afterschool program attendance.
Although some at-risk meals served afterschool replaced meals
served by outside-school-hours care centers, there is also considerable
evidence that the total number of children reached by CACFP has
increased, to date, as a result of this program. The percentage of at-
risk meals that would have been served in traditional child care
centers in the absence of the at-risk program is, of course, uncertain.
However, it may be as high as 70 percent. That figure suggests that 30
percent of total at-risk participants, or roughly 37,000 children on an
average school day during FY 2006, would not have received a federally-
reimbursable supper if not for the at-risk program. The program
benefits those 37,000 children by providing them with a meal that
conforms to USDA meal patterns. In addition, all children served by the
at-risk program, approximately 123,000 per day during FY 2006, benefit
from the program's structured educational or enrichment elements.
Costs
This proposed rule would, when published as a final rule, codify
guidelines governing an existing program component that started in 2001
as mandated by statute. As a result, there are no new reimbursement
costs associated with the rule. The at-risk afterschool meals program
cost the Federal government a total of $139.8 million in FY 2002 to FY
2006, and is projected to cost a total of $224.6 million from FY 2007
to FY 2011. Costs include both the reimbursement rate that the Federal
government pays for each meal, as well as the commodity assistance
given to the program. State reporting data do not clearly detail how
many additional meals are being served to new participants of the at-
risk afterschool meals program that would not have participated in the
outside-school-hours care center program, thus the incremental costs of
the at-risk meals program are likely small but cannot be determined.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Nancy Montanez
Johner, Under Secretary for Food, Nutrition, and Consumer Services, has
certified that this rule will not have a significant impact on a
substantial number of small entities. At-risk afterschool care centers
in the eligible States choose whether they wish to participate in this
additional meal service. Most of these institutions that will choose to
add a meal service are already providing snacks under the at-risk
component of the CACFP. The additional meal service will not have a
significant paperwork or reporting burden because it is incorporated
under the existing agreement and Claim for Reimbursement.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
Department generally must prepare a written statement, including a
cost/benefit analysis, for proposed and final rules with Federal
mandates that may result in expenditures to State, local, or tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, Section 205 of the UMRA generally requires the Department to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, more cost-effective or least burdensome
alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under regulatory provisions
of Title II of the UMRA) that impose costs on State, local, or tribal
governments or the private sector of $100 million or more in any one
year. Therefore, this rule is not subject to the requirements of
Sections 202 and 205 of the UMRA.
Executive Order 12372
The Child and Adult Care Food Program is listed in the Catalog of
Federal Domestic Assistance under No. 10.558. For the reasons set forth
in the final rule in 7 CFR part 3015, Subpart V and related Notice
published at 48 FR 29114, June 24, 1983, this Program is included in
the scope of Executive Order 12372, which requires intergovernmental
consultation with State and local officials.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section (6)(b)(2)(B) of Executive Order 13132. FNS has
considered the impact of this rule on State and local governments and
has determined that this rule does not have federalism implications.
This rule does not impose substantial or direct compliance costs on
State and local governments. Therefore, under Section 6(b) of the
Executive Order, a federalism summary impact statement is not required.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule when published in final is intended to have
preemptive effect with respect to any State or local laws, regulations
or policies which conflict with its provisions or that would otherwise
impede its full implementation. This rule is not intended to have
retroactive effect unless so specified in the Dates paragraph of the
final rule. Prior to any judicial challenge to the provisions of this
rule or the application of its provisions, all applicable
administrative procedures must be exhausted. In the CACFP, the
administrative procedures are set forth at 7 CFR 226.6(k), which
establishes appeal procedures, and at 7 CFR 226.22, 3016, and 3019,
which address administrative appeal procedures for disputes involving
procurement by State agencies and institutions.
Civil Rights Impact Analysis
FNS has reviewed this proposed rule in accordance with the
Department Regulation 4300-4, ``Civil Rights Impact Analysis'' to
identify and address any major civil rights impact the rule might have
on minorities, women, and persons with disabilities. After a careful
review of the rule's intent and provisions, FNS has determined that
there is no negative effect on these groups. All data available to FNS
indicate that protected individuals have the same opportunity to
participate in the CACFP as non-protected individuals. The regulations
at 7 CFR 226.6(b)(4)(iv) require that CACFP institutions agree to
operate the Program in compliance with applicable Federal civil rights
laws, including title VI of the Civil Rights Act of 1964, title IX of
the Education amendments of 1972, Section 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (7 CFR parts 15, 15a, and
15b). At 7 CFR 226.6(m)(1), State agencies are required to monitor
CACFP
[[Page 16217]]
institution compliance with these laws and regulations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
part 1320) requires that the Office of Management and Budget (OMB)
approve all collections of information by a Federal agency from the
public before they can be implemented. Respondents are not required to
respond to any collection of information unless it displays a current
valid OMB control number. Information collections in this proposed rule
have been previously approved under OMB 0584-0055. There is no
new burden associated with this proposed rule.
E-Government Act Compliance
FNS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
List of Subjects in 7 CFR Part 226
Accounting, Aged, Day care, Food assistance programs, Grant
programs, Grant programs--health, American Indians, Individuals with
disabilities, Infants and children, Intergovernmental relations, Loan
programs, Reporting and recordkeeping requirements, Surplus
agricultural commodities.
Accordingly, 7 CFR part 226 is proposed to be amended as follows:
PART 226--CHILD AND ADULT CARE FOOD PROGRAM
1. The authority citation for part 226 continues to read as
follows:
Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell
National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a,
1765 and 1766).
2. In Sec. 226.2:
a. Add new definitions of ``At-risk afterschool meal'' and ``At-
risk afterschool snack'' in alphabetical order; and
b. Amend the last sentence of the introductory text of the
definition of ``For-profit center'' by adding the words ``and/or meal''
after the words ``at-risk afterschool snack''.
The additions read as follows:
Sec. 226.2 Definitions.
* * * * *
At-risk afterschool meal means a meal that meets the requirements
described in Sec. 226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3), that
is reimbursed at the appropriate free rate and is served by an At-risk
afterschool care center as defined in this section, which is located in
a State designated by law or selected by the Secretary as directed by
law.
At-risk afterschool snack means a snack that meets the requirements
described in Sec. 226.20(b)(6) and/or (c)(4) that is reimbursed at the
free rate for snacks and is served by an At-risk afterschool care
center as defined in this section.
* * * * *
3. In Sec. 226.4, paragraph (d) is amended by adding a sentence at
the end of the paragraph to read as follows:
Sec. 226.4 Payments to States and use of funds.
* * * * *
(d) * * * For at-risk afterschool meals and at-risk afterschool
snacks served to children, funds will be made available to each
eligible State agency in an amount equal to the total calculated by
multiplying the number of at-risk afterschool meals and the number of
at-risk afterschool snacks served in the Program within the State by
the national average payment rate for free meals and free snacks,
respectively, under section 11 of the Richard B. Russell National
School Lunch Act.
* * * * *
Sec. 226.9 [Amended]
4. In Sec. 226.9, amend paragraph (b)(2) by removing the words
``at-risk afterschool snack component'' and adding in their place the
words ``at-risk afterschool care component''.
5. In Sec. 226.10, revise the fourth sentence of the introductory
text of paragraph (c) to read as follows:
Sec. 226.10 Program payment procedures.
* * * * *
(c) * * * However, children who only receive at-risk afterschool
snacks and/or at-risk afterschool meals must not be considered in
determining this eligibility. * * *
* * * * *
6. In Sec. 226.11:
a. Revise the second sentence of paragraph (b)(3);
b. Revise paragraph (c)(2); and
c. Revise the second sentence of paragraph (c)(4).
The revisions read as follows:
Sec. 226.11 Program payments for centers.
* * * * *
(b) * * *
(3) * * * However, children who only receive at-risk afterschool
snacks and/or at-risk afterschool meals must not be considered in
determining this eligibility. * * *
(c) * * *
(2) At-risk afterschool care institutions. Except as provided in
paragraph (c)(4) of this section, State agencies must base
reimbursement to each at-risk afterschool care center on the number of
at-risk afterschool snacks and/or at-risk afterschool meals that are
served to children.
* * * * *
(4) * * * However, children who only receive at-risk afterschool
snacks and/or at-risk afterschool meals must not be considered in
determining this eligibility. * * *
* * * * *
7. In Sec. 226.17, revise the third sentence of paragraph (b)(4)
to read as follows:
Sec. 226.17 Child care center provisions.
* * * * *
(b)* * *
(4) * * * However, children who only receive at-risk afterschool
snacks and/or at-risk afterschool meals must not be included in this
percentage. * * *
* * * * *
8. In Sec. 226.17a:
a. Revise the heading of paragraph (a) and revise paragraph (a)(1)
introductory text;
b. Add a new paragraph (a)(1)(v);
c. Revise paragraph (a)(2);
d. Revise paragraphs (c), (j), (k), (l), (m), and (n);
e. Revise paragraphs (o)(2), (o)(3), and (o)(4); and
f. Revise paragraph (p).
The addition and revisions read as follows:
Sec. 226.17a At-risk afterschool care center provisions.
(a) Organizations eligible to receive reimbursement for at-risk
afterschool snacks and at-risk afterschool meals.
(1) Eligible organizations. To receive reimbursement for at-risk
afterschool snacks, organizations must meet the criteria in paragraphs
(a)(1)(i) through (a)(1)(iv) of this section. To receive reimbursement
for at-risk afterschool meals, organizations must meet the criteria in
paragraphs (a)(1)(i) through (a)(1)(v) of this section.
* * * * *
(v) Organizations eligible to be reimbursed for at-risk afterschool
meals must be located in one of the eligible States designated by law
or selected by the Secretary as directed by law.
(2) Limitations. (i) To be reimbursed for at-risk afterschool
snacks and/or at-risk afterschool meals, all organizations must:
(A) Serve the at-risk afterschool snacks and/or at-risk afterschool
meals
[[Page 16218]]
to children who are participating in an approved afterschool care
program; and
(B) Not exceed the authorized capacity of the at-risk afterschool
care center.
(ii) In any calendar month, a for-profit center must be eligible to
participate in the Program as described in the definition of For-profit
center in Sec. 226.2. However, children who only receive at-risk
afterschool snacks and/or at-risk afterschool meals must not be
considered in determining this eligibility.
* * * * *
(c) Eligibility requirements for children. At-risk afterschool
snacks and/or at-risk afterschool meals are reimbursable only if served
to children who are participating in an approved afterschool care
program and who either are age 18 or under at the start of the school
year or meet the definition of Persons with disabilities in Sec.
226.2.
* * * * *
(j) Cost of at-risk afterschool snacks and meals. All at-risk
afterschool snacks and at-risk afterschool meals served under this
section must be provided at no charge to participating children.
(k) Limit on daily reimbursements. Only one at-risk afterschool
snack and (in eligible States) one at-risk afterschool meal per child
per day may be claimed for reimbursement. A center that provides care
to a child under another component of the Program during the same day
may not claim reimbursement for more than two meals and one snack, or
one meal and two snacks, per child per day, including the at-risk
afterschool snack and the at-risk afterschool meal. All meals and
snacks must be claimed in accordance with the requirements for the
applicable component of the Program.
(l) Meal pattern requirements for at-risk afterschool snacks and
at-risk afterschool meals. At-risk afterschool snacks must meet the
meal pattern requirements for snacks in Sec. 226.20(b)(6) and/or
(c)(4); at-risk afterschool meals must meet the meal pattern
requirements for meals in Sec. 226.20(b)(6) and/or (c)(1), (c)(2), or
(c)(3).
(m) Time periods for snack and meal services--(1) At-risk
afterschool snacks. When school is in session, the snack must be served
after the child's school day. With State agency approval, the snack may
be served at any time on weekends and vacations during the regular
school year. Afterschool snacks may not be claimed during summer
vacation, unless an at-risk afterschool care center is located in the
attendance area of a school operating on a year-round calendar.
(2) At-risk afterschool meals. When school is in session, the meal
must be served after the child's school day. With State agency
approval, any one meal may be served (breakfast, lunch, or supper) per
day on weekends and vacations during the regular school year.
Afterschool meals may not be claimed during summer vacation, unless an
at-risk afterschool care center is located in the attendance area of a
school operating on a year-round calendar.
(n) Reimbursement rates. At-risk afterschool snacks are reimbursed
at the free rate for snacks. At-risk afterschool meals are reimbursed
at the respective free rates for breakfast, lunch, or supper.
(o) * * *
(2) The number of at-risk afterschool snacks prepared or delivered
for each snack service and/or (in eligible States) the number of at-
risk afterschool meals prepared or delivered for each meal service;
(3) The number of at-risk afterschool snacks served to
participating children for each snack service and/or (in eligible
States) the number of at-risk afterschool meals served to participating
children for each meal service; and
(4) Menus for each at-risk afterschool snack service and each at-
risk afterschool meal service.
(p) Reporting requirements. In addition to other reporting
requirements under this part, at-risk afterschool care centers must
report the total number of at-risk afterschool snacks and/or (in
eligible States) the total number of at-risk afterschool meals served
to eligible children based on daily attendance rosters or sign-in
sheets.
* * * * *
Dated: March 18, 2008.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. E8-6235 Filed 3-26-08; 8:45 am]
BILLING CODE 3410-30-P
