Child Nutrition Programs: Nondiscretionary Amendments Related to the Healthy, Hunger-Free Kids Act of 2010, 13443-13454 [2013-04116]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13443-13454]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04116]



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Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / 
Rules and Regulations

[[Page 13443]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, 225, 226, and 245

RIN 0584-AE14


Child Nutrition Programs: Nondiscretionary Amendments Related to 
the Healthy, Hunger-Free Kids Act of 2010

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements several nondiscretionary provisions 
of the Healthy, Hunger-Free Kids Act of 2010, including those related 
to categorical eligibility for foster children, removal of limits on 
private nonprofit sponsors, outreach to eligible families, 
simplification of area eligibility for day care homes, application of 
school food safety requirements, and permanent agreements for 
institutions and sponsors. These provisions will make it easier for 
children to get nutritious meals when they are away from home, while 
requiring State and local agencies to make relatively minor changes in 
the procedures they use to operate the National School Lunch Program, 
Special Milk Program, School Breakfast Program, Child and Adult Care 
Food Program, and Summer Food Service Program.

DATES: This rule is effective April 1, 2013.

FOR FURTHER INFORMATION CONTACT: Julie Brewer, Chief, Policy and 
Program Development Branch, Child Nutrition Division, Food and 
Nutrition Service, Department of Agriculture, 3101 Park Center Drive, 
Suite 640, Alexandria, VA 22302-1594, or telephone 703-305-2590.

SUPPLEMENTARY INFORMATION:

I. Background

    The Healthy, Hunger-Free Kids Act of 2010 (HHFKA), Public Law 111-
296, makes important improvements to the Child Nutrition Programs that 
serve the nation's children. It provides for improved access to 
nutrition assistance through program expansion, outreach, and 
modifications in administration of the National School Lunch Program, 
Special Milk Program, School Breakfast Program, Child and Adult Care 
Food Program (CACFP), and Summer Food Service Program (SFSP).
    This rulemaking codifies the following nondiscretionary amendments 
into Title 7 of the Code of Federal Regulations, as they apply to parts 
210, 215, 220, 225, 226, and 245:
     Confer categorical eligibility for free meals and free 
milk to foster children whose care and placement is the responsibility 
of a State foster care agency or a court.
     Eliminate an existing limitation on the number of sites 
that private nonprofit sponsors may be approved to operate in SFSP.
     Require each State agency administering the National 
School Lunch Program to ensure that school food authorities cooperate 
with SFSP sponsors to distribute materials to inform families of the 
availability of free and reduced-price breakfast during the school year 
and of free meals when the school year ends.
     Expand the allowable sources of income information to 
include data from any school to determine area eligibility for day care 
homes in CACFP.
     Specify that, as a condition of eligibility, applications 
for free or reduced-price meals and free milk include only the last 
four digits of the social security number of the adult who signs the 
application, in lieu of the complete social security number.
     Eliminate collection of social security numbers for 
verification of free and reduced-price meal eligibility.
     Specify that the school food safety program established 
for meals served through the school meal programs applies to any 
facility, or part of a facility, in which foods are stored, prepared, 
or served.
     Require State agencies and SFSP sponsors to enter into 
permanent agreements.
     Require State agencies and CACFP institutions to enter 
into permanent agreements.
     Clarify the definition of ``areas in which poor economic 
conditions exist'' in SFSP.
     Clarify revenue and accrual requirements from foods sold 
in schools outside of the reimbursable meals programs.

II. Implementation

Categorical Eligibility of Foster Child

    Section 102 of HHFKA amends sections 9(b)(12)(A) and 9(d)(2)(F) of 
the Richard B. Russell National School Lunch Act, (NSLA), 42 U.S.C. 
1758(b)(12)(A) and (d)(2)(F), to provide categorical eligibility for 
free meals, without further application or eligibility determination, 
to any foster child whose care and placement is the responsibility of 
the State or who is placed by a court with a caretaker household. 
Section 102 also amends section 9(b)(5) of NSLA to allow the local 
educational agency, to certify any foster child as eligible for free 
meals, without application, by directly communicating with the 
appropriate State or local child welfare agency to obtain documentation 
of a child's status. In accordance with section 17(c)(4), of NSLA, 42 
U.S.C. 1766(c)(4), and section 13(a) of the Child Nutrition Act of 1966 
(CNA), 42 U.S.C. 1773(e)(1)(A),child care institutions and sponsors may 
similarly certify any foster child as categorically eligibility for 
free meals without further application.
    These provisions require changes in the way free and reduced-price 
meals applications are handled. Previously, the application process 
outlined in the regulations considered a foster child as a household of 
one. A guardian was required to complete a separate application on 
behalf of each foster child. The application required provision of 
information, including the foster child's name and any personal income 
received by the child.
    Under the amendments to section 9(b)(12)(A) of NSLA, effective 
retroactively on October 1, 2010, a child who is formally placed by a 
court or an agency that administers a State plan under parts B or E of 
title IV of the Social Security Act (42 U.S.C. 621 et seq.), or a child 
who is placed with a caretaker household by a court becomes 
automatically eligible for free meals. In

[[Page 13444]]

accordance with section 3(a)(4) of CNA, 42 U.S.C. 1772(a)(4), a child 
would also be automatically eligible for free milk. The Food and 
Nutrition Service (FNS) encourages local education agencies, 
institutions, and sponsors in the Child Nutrition Programs to 
communicate with State and local child welfare agencies and establish 
formal procedures so they can receive information directly from the 
foster care agencies to facilitate certification for free meals or free 
milk for children in foster care. If the appropriate foster care agency 
does not initially provide documentation for a categorically eligible 
foster child, an application identifying the child as a foster child 
must be completed. Documentation or direct contact with a State or 
local child welfare agency or a court where the child received 
placement is not required unless the household's application is 
selected for verification.
    FNS issued a memorandum, SP 17-2011, CACFP 08-2011, SFSP 05-2011: 
Child Nutrition Reauthorization 2010: Categorical Eligibility of Foster 
Children, on January 31, 2011, and additional guidance on March 16, 
2011, to help State agencies begin implementing this Program 
modification. FNS also revised the prototype free and reduced-price 
school meals application and the CACFP meal benefit income eligibility 
form and supporting materials. To facilitate access and communication 
among Program operators and households, FNS has also revised and 
translated the prototype application materials into 33 languages. They 
are available on the FNS Web site at https://www.fns.usda.gov/cnd/frp/frp.process.htm and https://www.fns.usda.gov/cnd/care/Benefit_Forms/Translations.htm.
    Accordingly, this final rule amends Program regulations to add 
categorical eligibility for free meals and free milk for a child whose 
care and placement is the responsibility of a State foster care agency 
or a court. This rule makes corresponding changes to 7 CFR 210.9(b), 
220.7(e), 225.2 (definition of Foster child), 225.15(e), 225.15(f), 
226.2 (definitions of Foster child and Free meal), 226.23(c), 
226.23(d), 226.23(e), 245.2 (definitions of Categorically eligible, 
Direct certification, Documentation, and Foster child), 245.5(a), 
245.6(a) 245.6(b), 245.6(c), 245.6a(a), 245.6a(c), and 245.6a(f).

Alignment of Eligibility Rules for Public and Private Sponsors

    The Summer Food Service Program (SFSP) is authorized under section 
13 of NSLA, 42 U.S.C. 1761. Its primary purpose is to provide 
nutritious meals to children from low-income areas during periods when 
schools are closed for vacation.
    Section 111 of HHFKA amends section 13(a) of NSLA, 42 U.S.C. 
1761(a), to clarify the definition of ``private nonprofit'' in SFSP and 
expand the limits on the number of sites and children that private 
nonprofit organization sponsors may serve. Section 111 of HHFKA also 
specifies that private nonprofit organizations must have private 
nonprofit status under section 501(c) of the Internal Revenue Code of 
1986, 26 U.S.C. 1.501(c)(3)-1, and be exempt from taxation under 
section 501(a) of that Code, 26 U.S.C. 1.501(a)-1. Section 441 of HHFKA 
further amends section 13(a) of NSLA to clarify how the geographic area 
that determines the location and eligibility of sites is defined.
    Previously, statutory and regulatory limitations permitted private 
nonprofit sponsors to operate no more than 25 sites, with no more than 
300 children served at any one site unless granted a waiver by the 
State agency. Private nonprofit sponsors could only operate in areas 
where school food authorities were not intending to participate. The 
new amendments to section 13(a)(7) of NSLA removed the statutory 
restrictions and aligned the eligibility criteria for schools, public 
agencies, and private nonprofit organizations, establishing the same 
opportunities for all types of sponsors.
    Effective retroactively on October 1, 2010, private nonprofit 
sponsors are eligible to participate in SFSP under the same terms as 
other service institutions. All sponsors may now be approved to operate 
a maximum of 200 sites and serve a maximum total average daily 
attendance of 50,000 children. Exceptions to these limits may be 
approved by State agencies, if the sponsor can demonstrate that its 
organization has the ability to manage a larger program.
    FNS issued a memorandum, SFSP 02-2011: Child Nutrition 
Reauthorization 2010: Eligibility Requirements and Site Limits for 
Private Nonprofit Organizations in the Summer Food Service Program, on 
January 14, 2011, to help State agencies begin implementing this 
Program modification. Accordingly, this final rule amends Program 
regulations to eliminate an existing limitation on the number of sites 
that private nonprofit sponsors may be approved to operate, and 
identify the applicable sections of the Internal Revenue Code for 
private nonprofit organizations to certify tax exemption and Program 
eligibility. This rule makes corresponding changes to 7 CFR 225.2 
(Private nonprofit, and Private nonprofit organization), 225.6(b)(6), 
and 225.14(d)(6).

Outreach to Eligible Families

    Section 112 of HHFKA establishes requirements for conducting 
outreach in SFSP and the School Breakfast Program. It adds section 
13(a)(11) to NSLA, 42 U.S.C. 1761(a)(11), to coordinate outreach to 
families, in an effort to help more children benefit from the 
nutritious meals served in the School Breakfast Program during the 
school year, and in SFSP when the school year ends.
    This new provision requires school food authorities to cooperate 
with SFSP sponsors, to the maximum extent practicable, to distribute 
materials informing families of the availability and location of free 
SFSP meals when school is not in session. School food authorities must 
also inform families of the availability of reimbursable breakfasts at 
school during the school year. State agencies that administer the 
National School Lunch Program must ensure that school food authorities 
implement activities to inform families. If the State agency 
administering SFSP is not the same State agency that administers the 
National School Lunch Program, then both agencies must work together to 
ensure that these requirements are met.
    To help State agencies begin implementing this provision, FNS 
issued a memorandum, SP 15-2011, SFSP 04-2011: Child Nutrition 
Reauthorization 2010: Outreach to Households on the Availability of 
Summer Food Service Program Meals, on January 25, 2011. FNS issued 
additional guidance, SP 40-2011: Child Nutrition Reauthorization 2010: 
Outreach to Households on the Availability of the School Breakfast 
Program on June 15, 2011.
    Accordingly, this final rule amends Program regulations to require 
each State agency administering the National School Lunch Program to 
ensure cooperation among school food authorities, SFSP sponsors, and if 
applicable, alternate State agencies, to inform families of the 
availability of free and reduced-price breakfast during the school year 
and of free meals through SFSP when school is not in session. This rule 
makes corresponding changes by adding new paragraphs at 7 CFR 210.12(d) 
and 210.19(g).

Simplifying Area Eligibility Determinations

    The Child and Adult Care Food Program (CACFP) is authorized under

[[Page 13445]]

section 17 of NSLA, 42 U.S.C. 1766, to provide the nutrition that 
contributes to the wellness, healthy growth, and development of young 
children in family and group day care homes. CACFP targets higher 
levels of reimbursement to day care homes in low-income areas.
    Section 121 of HHFKA amends section 17(f)(3)(A)(ii)(I)(bb) of NSLA, 
42 U.S.C. 1766(f)(3)(A)(ii)(I)(bb), to allow family and group day care 
homes to be classified as tier I, for purposes of higher reimbursement, 
if the home is located in an attendance area of a school in which at 
least 50 percent of the enrolled children are certified eligible for 
free and reduced-price school meals. Each year, the National School 
Lunch Program State agency is responsible for compiling data into a 
list of area-eligible schools, and transmitting this list to the CACFP 
State agency. The CACFP sponsoring organization is responsible for 
determining day care home classifications for tier I reimbursement. 
Determination of a day care home's eligibility for tier I reimbursement 
is valid for five years.
    Previously, only the enrollment of the local elementary school 
could be used to determine tier I eligibility. Effective retroactively 
on October 1, 2010, the day care home's eligibility may be determined 
by the enrollment of any local school, as long as the home is located 
within the selected school's attendance area. FNS issued a memorandum, 
CACFP 05-2011: Child Nutrition Reauthorization 2010: Area Eligibility 
for Family Day Care Homes, on December 22, 2010, and a subsequent 
revision on January 10, 2011, to advise States that any elementary, 
middle, or high school in which at least 50 percent of the enrolled 
children are certified eligible for free and reduced-price school meals 
may be used to make tier I determinations for homes in the local area.
    Accordingly, this final rule amends Program regulations to 
establish CACFP area eligibility for family day care homes located in 
the attendance area of any school where at least 50 percent of the 
enrolled children are certified eligible for free and reduced-price 
meals. This rule makes corresponding changes to 7 CFR 210.9(b)(21), 
210.19(f), 226.2 (definitions of Eligible area and Tier I day care 
home) 226.6(f), 226.15(e), 226.15(f), and 226.17a(1)(i).

Privacy Protection

    Section 301 of HHFKA amends section 9(d)(1) of NSLA, 42 U.S.C. 
1758(d)(1), by removing the requirement that the adult household member 
who signs a household application for free and reduced-price lunches 
must also provide his or her complete nine-digit social security 
number, as a condition of eligibility. In accordance with section 
4(e)(1) of CNA, 42 U.S.C. 1773(e)(1), the provision of a social 
security number is required for applications for free and reduced-price 
breakfast, as well. This amendment also removes the requirement that 
the social security number of each household member be collected to 
verify applications. However, no change was made to any of the 
confidentiality requirements of NSLA regarding the use and disclosure 
of information obtained from an application for free and reduced-price 
meals.
    The new amendments to section 9(d)(1) of NSLA, effective 
retroactively on October 1, 2010, require that the adult household 
member signing the free and reduced-price application provide only the 
last four digits of the social security number. USDA expects this 
change to increase privacy protections for households applying for free 
and reduced-price meals and free milk in the Child Nutrition Programs.
    Collection of a partial social security number does not require 
protection under section 7(b) of the Privacy Act of 1974, 5 U.S.C. 552a 
note. Therefore, the Privacy Act statement, currently found at 7 CFR 
245.6(a)(8), addressing the use of the social security number in 
determining individual eligibility for free meals and free milk 
benefits is no longer required.
    These statutorily-driven amendments do not change how applications 
for free and reduced-price meals or free milk are evaluated. An 
application that does not include the last four digits of the social 
security number of the adult household member, or an indication that 
the adult does not have a social security number, will be considered 
incomplete for purposes of determining eligibility for benefits in the 
Child Nutrition Programs.
    FNS issued a memorandum, SP 19-2011, CACFP 09-2011, SFSP 06-2011: 
Child Nutrition Reauthorization 2010: Privacy Protection and the Use of 
Social Security Numbers in Child Nutrition Programs, on February 15, 
2011. FNS has revised the prototype free and reduced-price school meals 
application and the CACFP meal benefit income eligibility form and 
supporting materials. They are available on the FNS Web site at https://www.fns.usda.gov/cnd/frp/frp.process.htm and https://www.fns.usda.gov/cnd/care/Benefit_Forms/Translations.htm.
    FNS has also revised the Eligibility Manual for School Meals to 
give practical guidance to help State and local operators achieve the 
goals of these provisions. This manual contains information on Federal 
requirements for schools, institutions, and sponsors that must 
establish individual eligibility for free and reduced-price meals or 
free milk. It is found on the FNS Web site at https://www.fns.usda.gov/cnd/guidance/default.htm.
    Accordingly, this final rule amends Program regulations to specify 
that, as a condition of eligibility, applications for free and reduced-
price meals and free milk must include the last four digits of the 
social security number of the adult household member who signs the 
application. This rule modifies the application verification process by 
eliminating the collection of social security numbers. It also 
eliminates specific references to section 7(b) of the Privacy Act of 
1974, 5 U.S.C. 552a note, regarding the collection of social security 
numbers. As noted above, this rule does not change the confidentiality 
requirements regarding the use and disclosure of information that 
appear elsewhere in NSLA. Additionally, this rule does not change the 
current regulatory provision that allows the adult household member who 
signs the application to indicate that the adult does not have a social 
security number. This rule makes corresponding changes to 7 CFR 
215.13a(f), 215.13a(i), 225.2 (definitions of Adult and Documentation), 
225.15(f), 226.2 (definitions of Adult and Documentation), 226.23(e), 
226.23(h), 245.2 (definition of Documentation), 245.6(a), 245.6(h), and 
245.6a(f).

Applicability of Food Safety Programs for the Entire School Campus

    Section 302 of HHFKA amends section 9(h)(5) of NSLA, 42 U.S.C. 
1758(h)(5), to strengthen food safety requirements in the National 
School Lunch Program, School Breakfast Program, and all other Child 
Nutrition Programs operated in a school. NSLA now requires that Hazard 
Analysis and Critical Control Point (HACCP) principles for safe food 
handling be applied to any facility, or part of a facility in which 
food for any Child Nutrition Program is stored, prepared, or served.
    Section 402 of HHFKA further amends section 9(h) of NSLA to extend 
State food safety audit and reporting requirements through fiscal year 
2015. Therefore, State agencies must continue to report to FNS, by 
November 15 of each year, the number of food safety inspections 
received by schools in their States during the prior school year.
    The school food safety program has been statutorily required in 
school

[[Page 13446]]

cafeterias since 2004. It requires school food authorities to apply 
HACCP principles to address food safety in all aspects of school meal 
preparation and meal service.
    To comply with the requirements of section 9(h)(5) of NSLA, FNS 
anticipates that only minor modifications to existing Child Nutrition 
Program operations will be needed. For example, school food authorities 
may apply their current procedures for safe food handling in the 
cafeteria to other locations, including school buses, hallways, school 
courtyards, kiosks, and classrooms, where food is stored, prepared, or 
served. As a result, State agencies will need to review the schools' 
food safety programs to ensure that standard operating procedures for 
safe food handling are updated to include locations outside of the 
cafeteria.
    FNS issued a memorandum, SP 37-2011: Child Nutrition 
Reauthorization 2010: Enhancing the School Food Safety Program, on May 
18, 2011, advising State agencies of the new food safety provisions. 
FNS will also provide additional food safety guidance, as needed, to 
help State and local operators comply with the requirements of this 
provision.
    Accordingly, this final rule amends Program regulations to specify 
that the school food safety program established for meals served 
through the school meal programs applies to any facility, or part of a 
facility, in which foods are stored, prepared, or served. This rule 
makes corresponding changes to 7 CFR 210.13(c) and 220.7(a)(3). This 
rule also makes corresponding changes to 7 CFR 210.20(a)(8), 
210.20(b)(12), and 220.13(b)(3) to extend State food safety audit and 
reporting requirements through fiscal year 2015.

Permanent Operating Agreements

    Section 321 of HHFKA amends section 13(b) of NSLA, 42 U.S.C. 
1761(b), to require permanent operating agreements between State 
agencies and all sponsors that are approved to participate in SFSP. 
Similarly, section 331(a) of HHFKA amends section 17(d)(1) of NSLA, 42 
U.S.C. 1766(d)(1), to require permanent operating agreements between 
State agencies and child or adult care institutions in CACFP.
    The use of permanent agreements is not new to State agencies 
administering SFSP and CACFP. Section 9(i) of NSLA, 42 U.S.C. 1758(i), 
has required States which administer any combination of Child Nutrition 
Programs within the same State administering agency, to use a single 
permanent agreement for all programs operated by a school food 
authority under that State agency. Section 9(i) of NSLA also requires 
that multiple programs operated by an alternate State agency would use 
a single permanent agreement.
    CACFP regulations at 7 CFR 226.6(b)(4)(ii) give State agencies the 
authority to enter into permanent agreements with any institution. SFSP 
regulations at 7 CFR 225.6(e) instruct State agencies to enter into 
permanent agreements with school food authority sponsors, and the 
memorandum SFSP 03-2007: Permanent Agreements for All Summer Food 
Service Program Sponsors, issued by FNS on February 23, 2007, extends 
to State agencies the authority to establish permanent agreements with 
any type of SFSP sponsor.
    Effective retroactively on October 1, 2010, the new provisions 
under sections 13(b)(3) and 17(d)(1)(E) of NSLA now require State 
agencies to establish permanent operating agreements with all approved 
sponsors and child or adult care institutions. FNS issued a memorandum, 
CACFP 07-2011, SFSP 03-2011: Child Nutrition Reauthorization 2010: 
Permanent Agreements in the Summer Food Service Program and the Child 
and Adult Care Food Program, on January 14, 2011, to implement these 
provisions.
    Accordingly, this final rule amends Program regulations to require 
State agencies to enter into permanent agreements with approved 
sponsors in SFSP and with approved child or adult care institutions in 
CACFP. This rule makes corresponding changes to 7 CFR 225.6(e), 
226.6(b), 226.6(c), 226.16(f), and 226.17a(f). Additional provisions of 
sections 331(b) and (c) of HHFKA make a number of modifications to 
CACFP applications, reviews, and agreements between sponsoring 
organizations and their facilities. FNS intends to address 
implementation of those discretionary provisions in a separate 
rulemaking.

Technical Amendments

    Section 441 of HHFKA includes a technical amendment that clarifies 
the definition of ``area in which poor economic conditions exist'' that 
appears under section 13 of NSLA, 42 USC 1761. The definition now 
specifically states that SFSP sites must be located in the attendance 
area of a school to qualify as area eligible. This clarification is 
consistent with how FNS and States have always interpreted area 
eligibility on the basis of free and reduced-price school meal data. 
Accordingly, this rule makes a corresponding change to 7 CFR 225.2 
(definition of Areas in which poor economic conditions exist).
    Section 206 of HHFKA includes an amendment to section 10 of the 
Child Nutrition Act of 1966 (42 U.S.C. 1779) regarding revenue from 
foods sold in schools outside of the reimbursable meals programs. FNS 
published an interim rule, National School Lunch Program: School Food 
Service Account Revenue Amendments Related to the Healthy, Hunger-Free 
Kids Act of 2010, 76 FR 35301, on June 17, 2011, to clarify that 
revenue from these non-program foods must accrue to the nonprofit 
school food service. The interim rule addressed these revenue and 
accrual requirements only under 7 CFR 210.14, without amending 7 CFR 
210.11. Accordingly, this rule makes a corresponding change to 7 CFR 
210.11(b) to address these requirements.
    This rule also includes amendments to correct technical errors that 
appeared in the final rule, Nutrition Standards in the National School 
Lunch and School Breakfast Programs, 77 FR 4088, published on January 
26, 2012. That rule updated school meal patterns to align them with the 
Dietary Guidelines for Americans. However, the published rule misstated 
the required percentage of whole grains and the number of food 
components to offer to children. Accordingly, this rule makes a 
corresponding change to 7 CFR 210.10(c)(2)(iv)(A) to specify that 
creditable whole grain-rich foods contain at least 50 percent whole 
grains and the remaining grain content of the product must be enriched. 
This rule also makes corresponding changes to 7 CFR 210.2 (definitions 
of Food component and Food item) and 210.10(e) to remove errors 
regarding the number of food components.
    This rule makes several additional technical changes to 7 CFR parts 
210, 225, 226, and 245. We are using this opportunity to fix a small 
number of outdated regulatory citations, obsolete terms of usage, 
typographical errors, and misspelled words. None of the technical 
changes will effect a substantive change in the Programs. Accordingly, 
this rule amends Program regulations to:
     Replace references to the Food Stamp Program, renamed the 
Supplemental Nutrition Assistance Program (SNAP), that now appear under 
7 CFR 226.23(e)(1)(iv)(A), 226.23(e)(2)(vi)(A), 226.23(e)(2)(vi)(B), 
226.23(h)(2)(v)(A), and 245.6a(f)(3).
     Correct the citation that references school selection 
criteria at 7 CFR 210.18(e).
     Remove two obsolete citations that reference the free meal 
policy statement in 7 CFR 225.6(c)(4).
     Correct citations that reference invitation for bid 
requirements in

[[Page 13447]]

paragraphs 7 CFR 225.6(c)(2)(ii)(C) and 225.6(c)(3)(ii)(C) and late 
submission of claims at 7 CFR 225.13(a).
     Replace the term ``handicap'' with the term ``disability'' 
in 7 CFR 225.6(c)(4)(ii)(F).
     Correct the typographical error in 7 CFR 225.18(g) which 
misstates the $25,000 fraud limit penalty as $100,000.
     Correct the citation that references tax-exempt 
requirements in 7 CFR 226.6(f)(3)(iv)(C).
     Remove an incorrect citation of appeal rights for day care 
homes at 7 CFR 226.6(b)(3) and extra punctuation at 7 CFR 226.17(b)(4).
     Correct the spellings of ``eligibility'' in 7 CFR 
226.4(b), ``institution's'' in 7 CFR 226.6(c)(2)(iii)(A)(6), ``ranges'' 
in 7 CFR 226.6(d)(3)(iv)(C), and ``member'' in 7 CFR 226.23(e)(1)(iv).

III. Procedural Matters

Notice and Comment

    In accordance with the Secretary of Agriculture's Statement of 
Policy (36 FR 13804), this rule is exempt from the notice and comment 
provisions of the Administrative Procedures Act, 5 U.S.C. 553, normally 
required before the adoption of final rulemaking, As this preamble 
explains, all of the HHFKA amendments adopted as final in this rule are 
nondiscretionary. USDA has not exercised any authority in interpreting 
the statutory provisions beyond the language that is specifically 
provided in the law. Therefore, notice and comment would serve no 
useful purpose in the promulgation of these regulations.

Executive Order 12866

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

Regulatory Flexibility Act

    This rule has not been reviewed with regard to the requirements of 
the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612. FNS certifies 
that this final rule will not have a significant economic impact on a 
substantial number of small entities. This final rule incorporates into 
the regulations governing Child Nutrition Programs authorized under 
NSLA and the Child Nutrition Act of 1966, as amended, nondiscretionary 
statutory provisions set forth in HHFKA.
    Although the provisions may be applicable to State agencies, local 
educational agencies, school food authorities, child care institutions, 
adult care institutions, and sponsors that administer or operate these 
programs, they will not have significant economic impact on any of 
those entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and on the private sector. Under section 202 of UMRA, FNS 
must generally prepare a written statement, including a cost benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, or tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. When this statement is needed, section 205 of UMRA generally 
requires FNS to identify and consider a reasonable number of regulatory 
alternatives, and adopt the most cost effective or least burdensome 
alternative that achieves the objectives of the rule.
    This final rule does not contain Federal mandates of $100 million 
or more in any one year under the regulatory provisions of Title II of 
UMRA for State, local, or tribal governments, or for the private 
sector. Therefore, this rule is not subject to the requirements of 
sections 202 or 205 of UMRA.

Executive Order 12372

    The nutrition assistance programs affected by this rulemaking are 
listed in the Catalog of Federal Domestic Assistance as follows:
     National School Lunch Program, No. 10.555
     School Breakfast Program, No. 10.553
     Special Milk Program, No. 10.556
     Child and Adult Care Food Program, No. 10.558
     Summer Food Service Program, No. 10.559
    For the reasons set forth in the final rule at 7 CFR part 3015, 
subpart V and related notice (48 FR 29115, June 24, 1983), these 
programs are included in the scope of Executive Order 12372 that 
requires intergovernmental consultation with State and local officials.

Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where these 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 13121. FNS has 
considered the impact of this final rule on State and local governments 
and has determined that it does not have federalism implications. 
Therefore, under section 6(b) of this Executive Order, a federalism 
summary impact statement is not required.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have preemptive 
effect with respect to any State or local laws, regulations, or 
policies which conflict with its provisions or which would otherwise 
impede its full and timely implementation. This rule is intended to 
have retroactive effect, as authorized under HHFKA. Prior to any 
judicial challenge to the provisions of the final rule, all applicable 
administrative procedures must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with USDA 
regulations, 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1, 
``Regulatory Decision Making Requirements.'' After a careful review of 
the rule's intent and provisions, FNS has determined that this rule is 
not intended to limit or reduce in any way the ability of protected 
classes of individuals to receive benefits on the basis of their race, 
color, national origin, sex, age, or disability, nor is it intended to 
have a differential impact on minority-owned or operated business 
establishments, and woman-owned or operated business establishments 
that participate in the programs affected by this rulemaking.

Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the federal government and Indian Tribes.
    In Spring 2011, FNS offered opportunities for consultation with 
Tribal officials or their designees to discuss the impact of HHFKA on 
tribes or Indian Tribal governments. FNS coordinated five consultation 
sessions that provided the opportunity to address Tribal concerns and 
gain input from elected Tribal officials or their designees

[[Page 13448]]

concerning the impact of this rule on Tribal governments, communities, 
and individuals.
    Reports from these consultations are part of the USDA annual 
reporting on Tribal consultation and collaboration. FNS will respond in 
a timely and meaningful manner to Tribal government requests for 
consultation concerning this rule. Currently, FNS provides regularly 
scheduled quarterly consultation sessions through the end of Fiscal 
Year 2012 as an opportunity for collaborative conversations with Tribal 
officials and their designees.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35; see 5 
CFR part 1320, requires OMB to approve all collections of information 
by a Federal agency before they can be implemented. Respondents are not 
required to respond to any collection of information unless it displays 
a current valid OMB control number. This rule does not contain 
information collection requirements subject to approval by OMB under 
the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    FNS is committed to complying with the E-Government Act of 2002 to 
promote the use of the Internet and other information technologies to 
provide increased opportunities to provide for citizen access to 
government information and services, and for other purposes.

List of Subjects

7 CFR Part 210

    Children, Commodity School Program, Food assistance programs, 
Grants programs--social programs, National School Lunch Program, 
Nutrition, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

7 CFR Part 215

    Food assistance programs, Grant programs--education, Grant 
programs--health, Infants and children, Milk, Reporting and 
recordkeeping requirements.

7 CFR Part 220

    Grant programs--education, Grant programs--health, Infants and 
children, Nutrition, Reporting and recordkeeping requirements, School 
breakfast and lunch programs.

7 CFR Part 225

    Food assistance programs, Grant programs--health, Infants and 
children, Labeling, Reporting and recordkeeping requirements.

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.

7 CFR Part 245

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

    Accordingly, 7 CFR parts 210, 215, 220, 225, 226 and 245 are 
amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for part 210 continues to read as follows:

    Authority:  42 U.S.C. 1751-1760, 1779.


0
2. In Sec.  210.2, revise the definitions of Food component and Food 
item to read as follows:


Sec.  210.2  Definitions.

* * * * *
    Food component means one of the food groups which comprise 
reimbursable meals. The food components are: Meats/meat alternates, 
grains, vegetables, fruits, and fluid milk. Meals offered to 
preschoolers must consist of: Meats/meat alternates, grains, 
vegetables/fruits, and fluid milk.
    Food item means a specific food offered within a food component.
* * * * *

0
3. In Sec.  210.9:
0
a. Remove the word ``or'' at the end of paragraph (b)(19)(iv).
0
b. In paragraph (b)(19)(v), remove the period at the end of the 
sentence and add, in its place, the term ``; or''.
0
c. Add new paragraph (b)(19)(vi).
0
d. In paragraph (b)(21), remove the word ``elementary'' each time it 
appears.
    The addition reads as follows:


Sec.  210.9  Agreement with State agency.

* * * * *
    (b) * * *
    (19) * * *
    (vi) The child is a foster child as defined in Sec.  245.2 of this 
chapter.
* * * * *


Sec.  210.10  [Amended]

0
4. In Sec.  210.10:
0
a. In paragraph (c)(2)(iv)(A), remove the number ``51'' and add, in its 
place, the number ``50''.
0
b. In paragraph (e), remove the word ``items'' and add, in its place, 
the word ``components''.


Sec.  210.11  [Amended]

0
5. In Sec.  210.11, remove the words ``or the school or student 
organizations approved by the school'' at the end of the third sentence 
of paragraph (b).

0
6. In Sec.  210.12, add new paragraph (d) to read as follows:


Sec.  210.12  Student, parent and community involvement.

* * * * *
    (d) Outreach activities. (1) To the maximum extent practicable, 
school food authorities must inform families about the availability 
breakfasts for students. Information about the School Breakfast Program 
must be distributed just prior to or at the beginning of the school 
year. In addition, schools are encouraged to send reminders regarding 
the availability of the School Breakfast Program multiple times 
throughout the school year.
    (2) School food authorities must cooperate with Summer Food Service 
Program sponsors to distribute materials to inform families of the 
availability and location of free Summer Food Service Program meals for 
students when school is not in session.

0
7. In Sec.  210.13, revise the introductory text of paragraph (c) to 
read as follows:


Sec.  210.13  Facilities management.

* * * * *
    (c) Food safety program. The school food authority must develop a 
written food safety program that covers any facility or part of a 
facility where food is stored, prepared, or served. The food safety 
program must meet the requirements in paragraph (c)(1) or paragraph 
(c)(2) of this section, and the requirements in Sec.  210.15(b)(5).
* * * * *


Sec.  210.18  [Amended]

0
8. In Sec.  210.18, remove the term ``(e)(1)'' in the introductory text 
of paragraph (e), and add, in its place, the term ``(e)(2)''.

0
9. In Sec.  210.19:
0
a. In paragraph (f), remove the word ``elementary''.
0
b. Add new paragraph (g).
    The addition reads as follows:


Sec.  210.19  Additional responsibilities.

* * * * *
    (g) Program outreach. State agencies must ensure that school food 
authorities conduct the outreach activities required under Sec.  
210.12(d). If the State agency administering the Summer Food Service 
Program is not the same State agency

[[Page 13449]]

that administers the National School Lunch Program, then the two State 
agencies must work together to implement outreach measures.

0
10. In Sec.  210.20:
0
a. In paragraph (a)(8), remove the words ``2008-2009'' and add, in 
their place, the words ``2014-2015''.
0
b. Revise paragraph (b)(12).
    The revision reads as follows:


Sec.  210.20  Reporting and recordkeeping.

* * * * *
    (b) * * *
    (12) Records supplied by the school food authorities showing the 
number of food safety inspections obtained by schools for the current 
and three most recent school years.
* * * * *

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
11. The authority citation for part 215 continues to read as follows:

    Authority:  42 U.S.C. 1772 and 1779.


0
12. In Sec.  215.13a:
0
a. Revise paragraph (f).
0
b. In paragraphs (i)(1) and (i)(2), remove the term ``Privacy Act 
notice/''.
    The revision reads as follows:


Sec.  215.13a  Determining eligibility for free milk in child-care 
institutions.

* * * * *
    (f) Statement requirements. The free milk application provided to 
households must include a statement informing households of how 
information provided on the application will be used. Each application 
must include substantially the following statement: ``The Richard B. 
Russell National School Lunch Act requires the information on this 
application. You do not have to give the information, but if you do 
not, we cannot approve your child for free milk. You must include the 
last four digits of the social security number of the adult household 
member who signs the application. The last four digits of the social 
security number are not required when you list a Supplemental Nutrition 
Assistance Program (SNAP), Temporary Assistance for Needy Families 
(TANF) Program or Food Distribution Program on Indian Reservations 
(FDPIR) case number for your child or other FDPIR identifier or when 
you indicate that the adult household member signing the application 
does not have a social security number. We will use your information to 
determine if your child is eligible for free milk, and for 
administration and enforcement of the Program.'' When the State agency 
or child care institution, as appropriate, plans to use or disclose 
children's eligibility information for non-program purposes, additional 
information, as specified in paragraph (i) of this section must be 
added to this statement. State agencies and child care institutions are 
responsible for drafting the appropriate statement.
* * * * *

PART 220--SCHOOL BREAKFAST PROGRAM

0
13. The authority for part 220 continues to read as follows:

    Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.


0
14. In Sec.  220.7:
0
a. Revise paragraph (a)(3).
0
b. At the end of paragraph (e)(14)(ii)(D), remove the word ``or''.
0
c. At the end of paragraph (e)(14)(ii)(E), remove the period and add, 
in its place, the term ``; or''.
0
d. Add new paragraph (e)(14)(ii)(F).
    The revision and addition read as follows:


Sec.  220.7  Requirements for participation.

    (a) * * *
    (3) The school food authority must implement a food safety program 
meeting the requirements of Sec. Sec.  210.13(c) and 210.15(b)(5) of 
this chapter at each facility or part of a facility where food is 
stored, prepared, or served.
* * * * *
    (e) * * *
    (14) * * *
    (ii) * * *
    (F) The child is a foster child as defined in Sec.  245.2 of this 
chapter.
* * * * *

0
15. In Sec.  220.13, revise paragraph (b)(3) to read as follows:


Sec.  220.13  Special responsibilities of State agencies.

* * * * *
    (b) * * *
    (3) For each of school years 2005-2006 through 2014-2015, each 
State agency shall monitor school food authority compliance with the 
food safety inspection requirement in Sec.  220.7(a)(2) and submit an 
annual report to FNS documenting school compliance based on data 
supplied by the school food authorities. The report must be filed by 
November 15 following each of school years 2005-2006 through 2014-2015, 
beginning November 15, 2006. The State agency shall keep the records 
supplied by the school food authorities showing the number of food 
safety inspections obtained by schools for the current and three most 
recent school years.
* * * * *

PART 225--SUMMER FOOD SERVICE PROGRAM

0
16. The authority citation for part 225 continues to read as follows:

    Authority: Secs. 9, 13 and 14, Richard B. Russell National 
School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a)


0
17. In Sec.  225.2:
0
a. In the definition of Adult, after the word ``collection'', add the 
words ``of the last four digits''.
0
b. In the definition of Documentation, revise paragraph (a)(4).
0
c. Revise the definitions of Areas in which poor economic conditions 
exist, Private nonprofit, and Private nonprofit organization.
0
d. Add a new definition of Foster child in alphabetical order.
    The revisions and addition read as follows:


Sec.  225.2  Definitions.

* * * * *
    Areas in which poor economic conditions exist means:
    (a) The attendance area of a school in which at least 50 percent of 
the enrolled children have been determined eligible for free or 
reduced-price school meals under the National School Lunch Program and 
the School Breakfast Program;
    (b) A geographic area where, based on the most recent census data 
available or information provided from a department of welfare or 
zoning commission, at least 50 percent of the children residing in that 
area are eligible for free or reduced-price school meals under the 
National School Lunch Program and the School Breakfast Program;
    (c) A geographic area where a site demonstrates, based on other 
approved sources, that at least 50 percent of the children enrolled at 
the site are eligible for free or reduced-price meals under the 
National School Lunch Program and the School Breakfast Program; or
    (d) A closed enrolled site.
* * * * *
    Documentation means:
    (a) * * *
    (4) The last four digits of the social security number of the adult 
household member who signs the application, or an indication that the 
adult does not possess a social security number; or
* * * * *
    Foster child means a child who is formally placed by a court or a 
State child welfare agency, as defined in Sec.  245.2 of this chapter.
* * * * *

[[Page 13450]]

    Private nonprofit means tax exempt under section 501(a) of the 
Internal Revenue Code of 1986, as amended.
    Private nonprofit organization means an organization (other than 
private nonprofit residential camps, school food authorities, or 
colleges or universities participating in the NYSP) that:
    (a) Exercises full control and authority over the operation of the 
Program at all sites under the sponsorship of the organization;
    (b) Provides ongoing year-round activities for children or 
families;
    (c) Demonstrates that the organization has adequate management and 
the fiscal capacity to operate the Program;
    (d) Is an organization described in section 501(c) of the Internal 
Revenue Code of 1986 and exempt from taxation under 501(a) of that 
Code; and
    (e) Meets applicable State and local health, safety, and sanitation 
standards.
* * * * *

0
18. In Sec.  225.6:
0
a. Revise paragraph (b)(6).
0
b. In paragraph (c)(2)(ii)(C), remove the term ``225.15(h)'' and add, 
in its place, the term ``225.15(m)''.
0
c. In paragraph (c)(3)(ii)(C), remove the term ``225.15(g)'' and add, 
in its place, the term ``225.15(m)''.
0
d. In paragraphs (c)(4)(i) and (c)(4)(ii), remove the words ``paragraph 
(c)(3) of'' both times they appear.
0
e. In paragraph (c)(4)(ii)(F), remove the word ``handicap'' and add, in 
its place, the word ``disability''.
0
f. Revise the introductory text in paragraph (e).
    The revisions read as follows:


Sec.  225.6  State agency responsibilities.

* * * * *
    (b) * * *
    (6) The State agency must not approve any sponsor to operate more 
than 200 sites or to serve more than an average of 50,000 children per 
day. However, the State agency may approve exceptions if the applicant 
can demonstrate that it has the capability of managing a program larger 
than these limits.
* * * * *
    (e) State-Sponsor Agreement. A sponsor approved for participation 
in the Program must enter into a permanent written agreement with the 
State agency. All sponsors must agree in writing to:
* * * * *


Sec.  225.13  [Amended]

0
19. In Sec.  225.13, remove the term ``Sec.  225.9(d)(5)'' both times 
it appears in paragraph (a) and add, in its place, the term ``Sec.  
225.9(d)(6)''.

0
20. In Sec.  225.14, revise paragraph (d)(6) to read as follows:


Sec.  225.14  Requirements for sponsor participation.

* * * * *
    (d) * * *
    (6) If the sponsor is a private nonprofit organization, it must 
certify that it:
    (i) Exercises full control and authority over the operation of the 
Program at all sites under the sponsorship of the organization;
    (ii) Provides ongoing year-round activities for children or 
families;
    (iii) Demonstrates that the organization has adequate management 
and the fiscal capacity to operate the Program;
    (iv) Is an organization described in section 501(c) of the Internal 
Revenue Code of 1986 and exempt from taxation under 501(a) of that 
Code; and
    (v) Meets applicable State and local health, safety, and sanitation 
standards.

0
21. In Sec.  225.15:
0
a. Remove the words ``children who are members of households'' in the 
last sentence of paragraph (e) and add, in their place, the words ``a 
foster child and children who are members of households''.
0
b. In paragraph (f)(2)(iii), after the first word ``The'', add the 
words ``last four digits of the''.
0
c. In paragraph (f)(4)(ii), before the word ``child,'' add the word 
``foster''.
0
d. Remove paragraph (f)(4)(iii).
0
e. Redesignate paragraphs (f)(4)(iv) through (viii) as paragraphs 
(f)(4)(iii) through (vii) respectively.
0
f. Revise redesignated paragraph (f)(4)(iii).
0
g. Revise paragraph (f)(5).
0
h. In paragraphs (i)(1) and (i)(2), remove the term ``Privacy Act 
notice/''.
    The revisions read as follows:


Sec.  225.15  Management responsibilities of sponsors.

* * * * *
    (f) * * *
    (4) * * *
    (iii) A statement informing households of how information provided 
on the application will be used. Each application for free meals must 
include substantially the following statement:
    (A) ``The Richard B. Russell National School Lunch Act requires the 
information on this application. You do not have to give the 
information, but if you do not, we cannot approve your child for free 
or reduced-price meals. You must include the last four digits of the 
social security number of the adult household member who signs the 
application. The last four digits of the social security number are not 
required when you apply on behalf of a foster child or you list a 
Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance 
for Needy Families (TANF) Program or Food Distribution Program on 
Indian Reservations (FDPIR) case number or other FDPIR identifier for 
your child or when you indicate that the adult household member signing 
the application does not have a social security number. We MAY share 
your eligibility information with education, health, and nutrition 
programs to help them evaluate, fund, or determine benefits for their 
programs, and with auditors for program reviews and law enforcement 
officials to help them look into violations of program rules.''
    (B) When the State agency or sponsor, as appropriate, plans to use 
or disclose children's eligibility information for non-program 
purposes, additional information, as specified in paragraph (i) of this 
section, must be added to the statement. State agencies and sponsors 
are responsible for drafting the appropriate notice.
* * * * *
    (5) Verifying information on Program applications. Households 
selected to verify information on their Program applications must be 
notified in writing that:
    (i) They will lose Program benefits or be terminated from 
participation if they do not cooperate with the verification process;
    (ii) They will be given the name and phone number of an official 
who can assist in the verification process;
    (iii) Verification may occur during program reviews, audits, and 
investigations;
    (iv) Verification may include contacting employers, SNAP or welfare 
offices, or State employment offices to determine the accuracy of 
statements on the application about income, receipt of SNAP, FDPIR, 
TANF, or unemployment benefits; and
    (v) They may lose benefits or face claims or legal action if 
incorrect information is reported on the application.
* * * * *


Sec.  225.18  [Amended]

0
22. In Sec.  225.18, remove the term ``$100,000'' in paragraph (g) and 
add, in its place, the term ``$25,000''.

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
23. The authority citation for part 226 continues to read as follows:


[[Page 13451]]


    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).


0
24. In Sec.  226.2:
0
a. In the definition of Adult, after the word ``collection'', add the 
words ``of the last four digits''.
0
b. In the definition of Documentation, revise paragraph (a)(4).
0
c. Revise the definition of Eligible area.
0
d. Add a new definition of Foster child in alphabetical order.
0
e. Revise the definition of Free meal.
0
f. In the definition of Tier I day care home, remove the word 
``elementary'' in paragraph (b).
    The revisions and addition read as follows:


Sec.  226.2  Definitions.

* * * * *
    Documentation means:
    (a)* * *
    (4) The last four digits of the social security number of the adult 
household member who signs the application, or an indication that the 
adult does not possess a social security number; or
* * * * *
    Eligible area means:
    (a) For the purpose of determining the eligibility of at-risk 
afterschool care centers, 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; or
    (b) For the purpose of determining the tiering status of day care 
homes, the attendance area of a school in which at least 50 percent of 
the enrolled children are certified eligible for free or reduced-price 
meals, or the area based on the most recent census data in which at 
least 50 percent of the children residing in the area are members of 
households that meet the income standards for free or reduced-price 
meals.
* * * * *
    Foster child means a child who is formally placed by a court or a 
State child welfare agency, as defined in Sec.  245.2 of this chapter.
    Free meal means a meal served under the Program to:
    (a) A participant from a family which meets the income standards 
for free school meals, or
    (b) A foster child, or
    (c) A child who is automatically eligible for free meals by virtue 
of SNAP, FDPIR, or TANF benefits, or
    (d) A child who is a Head Start participant, or
    (e) A child who is receiving temporary housing and meal services 
from an approved emergency shelter, or
    (f) A child participating in an approved at-risk afterschool care 
program, or
    (g) An adult participant who is automatically eligible for free 
meals by virtue of SNAP or FDPIR benefits, or
    (h) An adult who is an SSI or Medicaid participant.
* * * * *


Sec.  226.4  [Amended]

0
25. In Sec.  226.4, remove the word ``eligibilty'' each time it appears 
in paragraph (b) and add, in its place, the word ``eligibility''.

0
26. In Sec.  226.6:
0
a. Revise paragraph (b)(4)(i).
0
b. Remove paragraphs (b)(4)(ii) and (b)(4)(iii).
0
c. Redesignate paragraphs (b)(4)(iv) and (b)(4)(v) as paragraphs 
(b)(4)(ii) and (b)(4)(iii) respectively.
0
d. In paragraph (c)(2)(iii)(A)(5), remove the parenthetical phrase 
``(if the State agency has temporarily extended the agreement pursuant 
to paragraph (c)(2)(iii)(D) of this section)''.
0
e. In paragraph (c)(2)(iii)(A)(6), remove the word ``instituion's'' and 
add in its place the word ``institution's''.
0
f. In paragraph (c)(2)(iii)(C)(1), remove the words ``temporarily-
extended''.
0
g. Remove paragraph (c)(2)(iii)(D).
0
h. Redesignate paragraph (c)(2)(iii)(E) as paragraph (c)(2)(iii)(D).
0
i. In redesignated paragraph (c)(2)(iii)(D)(1), remove the words 
``temporarily-extended''.
0
j. In paragraph (d)(3)(iv)(C), remove the word ``range'' and add, in 
its place the word ``ranges''.
0
k. In paragraph (f)(1)(viii)(A), remove the word ``elementary'' each 
time it appears.
0
l. In paragraph (f)(1)(ix)(A), remove the words ``elementary, middle, 
and high'' each time they appear.
0
m. In paragraph (f)(3)(i), remove the word ``elementary''.
0
n. In paragraph (f)(3)(iv)(C), remove the term ``Sec.  226.16(a)'' and 
add, in its place, the term ``Sec.  226.15(a)''.
    The revision reads as follows:


Sec.  226.6  State agency administrative responsibilities.

* * * * *
    (b) * * *
    (4) * * *
    (i) The State agency must require each institution that has been 
approved for participation in the Program to enter into a permanent 
agreement governing the rights and responsibilities of each party. The 
existence of a valid permanent agreement, however, does not eliminate 
the need for an institution to comply with the reapplication and 
related provisions at paragraphs (b) and (f) of this section; nor does 
it limit the State agency's ability to terminate the agreement as 
provided under paragraph (c) of this section.
* * * * *


Sec.  226.15  [Amended]

0
27. In Sec.  226.15:
0
a. In paragraph (e)(3), remove the word ``elementary''.
0
b. In paragraph (f), remove the word ``elementary'' each time it 
appears, and then, before the word ``school's'' in the fifth sentence, 
remove the word ``an'' and add, in its place, the word ``a''.


Sec.  226.16  [Amended]

0
28. In Sec.  226.16, remove the second sentence in paragraph (f).


Sec.  226.17  [Amended]

0
29. In Sec.  226.17(b)(4), remove the second period at the end of the 
third sentence.


Sec.  226.17a  [Amended]

0
30. In Sec.  226.17a:
0
a. In paragraph (f)(2), remove the words ``an agreement or amend an 
existing'' and add, in their place, the words ``a permanent'', and 
then, remove the last sentence.
0
b. In paragraph (i)(1), remove the words ``an elementary, middle, or 
high school'' and add, in their place, the words ``a school''.

0
31. In Sec.  226.23:
0
a. Revise the second sentence of paragraph (c)(2).
0
b. Revise the fifth sentence of paragraph (d).
0
c. Revise the last sentence of paragraph (e)(1)(i).
0
d. Revise paragraph (e)(1)(ii)(C).
0
e. Remove paragraph (e)(1)(ii)(E).
0
f. Redesignate paragraphs (e)(1)(ii)(F) and (e)(1)(ii)(G) as paragraphs 
(e)(1)(ii)(E) and (e)(1)(ii)(F) respectively.
0
g. Revise redesignated paragraph (e)(1)(ii)(E).
0
h. Revise paragraph (e)(1)(iii)(C).
0
i. Revise paragraph (e)(1)(iii)(E).
0
j. In the introductory text of paragraph (e)(1)(iv), remove the word 
``0members '' in the third sentence and add, in its place, the word 
''members''.
0
k. In paragraph (e)(1)(iv)(A), remove the words '' food stamp'' and 
add, in their place, the term ``SNAP''.
0
l. Remove paragraph (e)(2)(vi).
0
m. Redesignate paragraph (e)(2)(vii) as paragraph (e)(2)(vi).
0
n. In redesignated paragraphs (e)(2)(vi)(A) and (B), remove the words 
``Food Stamp'' each time they appear and add, in their place, the term 
``SNAP''.
0
o. Remove the last two sentences of paragraph (h)(2)(iii).

[[Page 13452]]

0
p. Remove paragraphs (h)(2)(iii)(A) through (h)(2)(iii)(E).
0
q. In paragraph (h)(2)(v)(A), remove the words ``Food Stamp'' each time 
they appear and add, in their place, the term ``SNAP''.
0
r. In paragraphs (k)(1) and (k)(2), remove the term ``Privacy Act 
notice/''.
    The revisions read as follows:


Sec.  226.23  Free and reduced-price meals.

* * * * *
    (c) * * *
    (2) * * * These methods will ensure that applications are accepted 
from households on behalf of a foster child and children who receive 
SNAP, FDPIR, or TANF assistance, or for adult participants who receive 
SNAP, FDPIR, SSI, or Medicaid assistance;
* * * * *
    (d) * * * The release issued by child care institutions shall also 
announce that a foster child, or a child who is a member of a household 
receiving SNAP, FDPIR, or TANF assistance, or a Head Start participant 
is automatically eligible to receive free meal benefits. * * *
    (e) * * *
    (1) * * *
    (i) * * * Furthermore, such forms and materials distributed by 
child care institutions shall state that a foster child is 
automatically eligible to receive free Program meal benefits, and a 
child who is a Head Start participant is automatically eligible to 
receive free Program meal benefits, subject to submission by Head Start 
officials of a Head Start statement of income eligibility or income 
eligibility documentation.
    (ii) * * *
    (C) The last four digits of the social security number of the adult 
household member who signs the application, or an indication that the 
adult does not possess a social security number.
* * * * *
    (E) A statement which includes substantially the following 
information:
    (1) ``The Richard B. Russell National School Lunch Act requires the 
information on this application. You do not have to give the 
information, but if you do not, we cannot approve the participant for 
free or reduced-price meals. You must include the last four digits of 
the Social Security Number of the adult household member who signs the 
application. The last four digits of the Social Security Number are not 
required when you apply on behalf of a foster child or you list a 
Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance 
for Needy Families (TANF) Program or Food Distribution Program on 
Indian Reservations (FDPIR) case number for the participant or other 
(FDPIR) identifier or when you indicate that the adult household member 
signing the application does not have a Social Security Number. We will 
use your information to determine if the participant is eligible for 
free or reduced-price meals, and for administration and enforcement of 
the Program.''
    (2) When either the State agency or the child care institution 
plans to use or disclose children's eligibility information for non-
program purposes, additional information, as specified in paragraph (k) 
of this section, must be added to this statement; and
* * * * *
    (iii) * * *
    (C) The last four digits of the social security number of the adult 
household member who signs the application, or an indication that the 
adult does not possess a social security number.
* * * * *
    (E) A statement which includes substantially the following 
information: ``The Richard B. Russell National School Lunch Act 
requires the information on this meal benefit form. You do not have to 
give the information, but if you do not, we cannot approve the 
participant for free or reduced-price meals. You must include the last 
four digits of the social security number of all adult household 
members, including the adult day care participant. The last four digits 
of the social security number are not required when you list a 
Supplemental Nutrition Assistance Program (SNAP), Food Distribution 
Program on Indian Reservations (FDPIR) or other FDPIR identifier, SSI 
or Medicaid case number for the participant receiving meal benefits or 
when you indicate that the adult household member signing the 
application does not have a social security number. We will use your 
information to determine if the participant is eligible for free or 
reduced-price meals, and for administration and enforcement of the 
CACFP;'' and
* * * * *

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

0
31. The authority citation for part 245 continues to read as follows:

    Authority: 42 U.S.C. 1751-1760, 1779.


0
32. In Sec.  245.2:
0
a. In the definitions of Categorically eligible and Direct 
certification, add the words ``Foster child, a'' before the word 
``Homeless''.
0
b. In the definition of Documentation, revise paragraphs (1)(i) and 
(2)(ii) and the first and third sentences of paragraph (2)(iv).
0
c. Add a new definition of Foster child in alphabetical order.
    The addition and revisions read as follows:


Sec.  245.2  Definitions.

* * * * *
    Documentation means:
    (1) * * *
    (i) For households applying on the basis of income and household 
size, names of all household members; income received by each household 
member, identified by source of the income (such as earnings, wages, 
welfare, pensions, support payments, unemployment compensation, and 
social security and other cash income); the signature of an adult 
household member; and the last four digits of the social security 
number of the adult household member who signs the application or an 
indication that the adult does not possess a social security number; or
* * * * *
    (2) * * *
    (ii) A letter or other document provided to the household by the 
agency administering FDPIR or the TANF program, as defined in this 
section or by the court, entity, or official authorized to administer 
an eligible program for a Foster child, a Homeless child, a Migrant 
child, a Head Start child, or a Runaway child as defined in this 
section.
* * * * *
    (iv) Information obtained from an official responsible for 
determining if a child is a Foster child, a Homeless child, a Migrant 
child, a Head Start child, or a Runaway child, as defined in the 
section. * * * Documentation may also be a list of children, a computer 
match, or a court document that includes this information.
* * * * *
    Foster child means a child who is formally placed by a court or an 
agency that administers a State plan under parts B or E of title IV of 
the Social Security Act (42 U.S.C. 621 et seq.). It does not include a 
child in an informal arrangement that may exist outside of State or 
court based systems.
* * * * *

0
33. In Sec.  245.5:
0
a. Remove paragraph (a)(1)(viii).
0
b. Redesignate paragraphs (a)(1)(ix) through (a)(1)(xii) as paragraphs

[[Page 13453]]

(a)(1)(viii) through (a)(1)(xi) respectively.
0
c. In redesignated paragraph (a)(1)(viii), remove ``and'' from the end 
of the sentence.
0
d. In redesignated paragraph (a)(1)(ix), remove the period and add, in 
its place, a semicolon.
0
e. Revise redesignated paragraph (a)(1)(ix).
    The revision reads as follows:


Sec.  245.5  Public announcement of the eligibility criteria.

    (a) * * *
    (1) * * *
    (ix) An explanation that Head Start enrollees and foster, homeless, 
migrant, and runaway children, as defined in Sec.  245.2, are 
categorically eligible for free meals and free milk and their families 
should contact the school for more information;
* * * * *

0
34. In Sec.  245.6:
0
a. Remove the last sentence in paragraph (a)(1).
0
b. In paragraph (a)(6), in the second sentence, after the words ``In 
addition,'' add the words ``the last four digits of''.
0
c. Revise paragraph (a)(8).
0
d. In paragraph (b)(2), remove the words ``Migrant child, a homeless'' 
and add, in their place, the words ``Foster child, a Homeless child, a 
Migrant''.
0
e. In paragraph (b)(4), remove the words ``homeless, migrant,'' and 
add, in their place the words ``foster, homeless, migrant, or''.
0
f. Revise paragraph (b)(5)(iii).
0
g. In paragraph (b)(6)(ii), add a new sentence at the beginning of the 
paragraph.
0
h. Revise paragraph (b)(8).
0
i. In the heading of paragraph (c)(5)(ii), remove the words ``Homeless, 
migrant,'' and add in their place the words ``Foster, homeless, 
migrant, and''.
0
j. In paragraphs (h)(1) and (h)(2), remove the term ``Privacy Act 
notice/''.
    The revisions and addition read as follows:


Sec.  245.6  Application, eligibility and certification of children for 
free and reduced-price meals and free milk.

    (a) * * *
    (8) Required statements for the application. (i) The application 
and descriptive materials must include substantially the following 
statements:
    (A) ``The Richard B. Russell National School Lunch Act requires the 
information on this application. You do not have to give the 
information, but if you do not, we cannot approve your child for free 
or reduced-price meals. You must include the last four digits of the 
social security number of the adult household member who signs the 
application. The last four digits of the social security number are not 
required when you list a Supplemental Nutrition Assistance Program 
(SNAP), Temporary Assistance for Needy Families (TANF) Program or Food 
Distribution Program on Indian Reservations (FDPIR) case number or 
other FDPIR identifier for your child or when you indicate that the 
adult household member signing the application does not have a social 
security number. We will use your information to determine if your 
child is eligible for free or reduced-price meals, and for 
administration and enforcement of the lunch and breakfast programs. We 
MAY share your eligibility information with education, health, and 
nutrition programs to help them evaluate, fund, or determine benefits 
for their programs, auditors for program reviews, and law enforcement 
officials to help them look into violations of program rules.''
    (B) ``Foster, migrant, homeless, and runaway children, and children 
enrolled in a Head Start program are categorically eligible for free 
meals and free milk. If you are completing an application for these 
children, contact the school for more information.''
    (ii) When either the State agency or the local educational agency 
plans to use or disclose children's eligibility information for non-
program purposes, additional information, as specified in paragraph (h) 
of this section, must be added to this statement. State agencies and 
local educational agencies are responsible for drafting the appropriate 
statement.
* * * * *
    (b) * * *
    (5) * * *
    (iii) Individual notices from officials of eligible programs for a 
Foster child, a Homeless child, a Migrant child, a Runaway child, or a 
Head Start child, as defined in Sec.  245.2, may continue to be used. 
These notices are provided to school officials who must certify these 
children as eligible for free meals or free milk, as applicable, 
without further application, upon receipt of such notice.
    (6) * * *
    (ii) For a Foster child, as defined in Sec.  245.2, an official 
document indicating the status of the child as a foster child from an 
appropriate State or local agency or a court where the foster child 
received placement may provide appropriate documentation. * * *
* * * * *
    (8) Foster, Homeless, Migrant, Runaway, or Head Start Children. To 
be categorically eligible as a Foster child, a Homeless child, a 
Migrant child, a Runaway child, or a Head Start child, the child's 
individual eligibility or participation for these programs shall be 
established. Categorical eligibility based on these programs shall not 
be extended to other children in the household.
* * * * *

0
35. In Sec.  245.6a:
0
a. Revise paragraph (a)(7)(iii).
0
b. In paragraph (c)(2), revise the third sentence.
0
c. Revise paragraph (f)(1).
0
d. In paragraph (f)(3), remove the words ``Food Stamp'' and ``Food 
Stamp Program'' wherever they appear, and add, in their place, the term 
``SNAP''.
    The revisions read as follows:


Sec.  245.6a  Verification requirements.

    (a) * * *
    (7) * * *
    (iii) Agency records to which the State agency or local educational 
agency may have access are not considered collateral contacts. 
Information concerning income, household size, or SNAP, FDPIR, or TANF 
eligibility, maintained by other government agencies to which the State 
agency, the local educational agency, or school can legally gain 
access, may be used to confirm a household's income, size, or receipt 
of benefits. Information may also be obtained from individuals or 
agencies serving foster, homeless, migrant, or runaway children, as 
defined in Sec.  245.2. Agency records may be used for verification 
conducted after the household has been notified of its selection for 
verification or for the direct verification procedures in paragraph (g) 
of this section.
* * * * *
    (c) * * *
    (2) * * * Verification of eligibility is not required of households 
if all children in the household are determined eligible based on 
documentation provided by the State or local agency responsible for the 
administration of the SNAP, FDPIR or TANF or if all children in the 
household are determined to be foster, homeless, migrant, or runaway, 
as defined in Sec.  245.2.* * *
* * * * *
    (f) Verification procedures and assistance for households--(1) 
Notification of selection. Other than households verified through the 
direct verification process in paragraph (g) of this section, 
households selected for verification must be notified in writing that 
their applications were selected for verification. The written 
statement must include a telephone number for assistance as required in 
paragraph (f)(5) of this section. Any communications with households 
concerning verification

[[Page 13454]]

must be in an understandable and uniform format and, to the maximum 
extent practicable, in a language that parents and guardians can 
understand. These households must be advised of the type of information 
or documents the school accepts. Households selected for verification 
must be informed that:
    (i) They are required to submit the requested information to verify 
eligibility for free or reduced-price meals, by the date determined by 
the local educational agency.
    (ii) They may, instead, submit proof that the children receive 
SNAP, FDPIR, or TANF assistance, as explained in paragraph (f)(3) of 
this section.
    (iii) They may, instead, request that the local educational agency 
contact the appropriate officials to confirm that their children are 
foster, homeless, migrant, or runaway, as defined in Sec.  245.2.
    (iv) Failure to cooperate with verification efforts will result in 
the termination of benefits.
* * * * *

    Dated: February 4, 2013.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2013-04116 Filed 2-27-13; 8:45 am]
BILLING CODE 3410-30-P