Child Nutrition Programs: Community Eligibility Provision-Increasing Options for Schools, 65778-65794 [2023-20294]
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Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Rules and Regulations
■ Accordingly, the interim final rule
published in the Federal Register on
July 10, 2023, at 88 FR 43425—and
corrected on July 12, 2023, at 88 FR
44191—is adopted as a final rule
without change.
Approved: September 21, 2023.
Rebecca J. Osborne,
Federal Register Liaison, Federal Labor
Relations Authority.
[FR Doc. 2023–20892 Filed 9–25–23; 8:45 am]
BILLING CODE 7627–01–P
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 245
[FNS–2022–0044]
RIN 0584–AE93
Child Nutrition Programs: Community
Eligibility Provision—Increasing
Options for Schools
alternative for eligible local educational
agencies (LEAs) and schools
participating in both the National
School Lunch Program (NSLP) and
School Breakfast Program (SBP).1 CEP
eliminates the need for schools to
collect household income applications
by sharing eligibility data between
specific Federal assistance programs,
which can reduce administrative burden
for both schools and families.
To be eligible for CEP, an individual
school, group of schools, or LEA must
meet or exceed the established,
minimum identified student percentage
(ISP) in the school year prior to
implementing CEP. The ISP is the
percentage of enrolled students who are
certified for free school meals without
submitting a household application,
such as those directly certified through
specific Federal benefits programs (e.g.,
the Supplemental Nutrition Assistance
Program (SNAP) and the Food
Distribution Program on Indian
Reservations (FDPIR)). For CEP,
students who are certified for free meals
without a household application are
‘‘identified students’’ (42 U.S.C.
1759a(a)(1)(F)(i); 7 CFR 245.9(f)(1)(ii)) 2
The ISP is calculated by dividing the
total number of identified students by
the total number of enrolled students:
This final rule amends the
Community Eligibility Provision (CEP)
regulations by lowering the minimum
I. Background
The Community Eligibility Provision
(CEP) is an option for eligible schools to
offer meals at no cost to all enrolled
students without collecting household
applications. Authorized by the
Healthy, Hunger-Free Kids Act of 2010
(HHFKA) and codified in regulations at
7 CFR 245.9(f), CEP is a reimbursement
Under current regulations, the
minimum ISP is 40 percent; therefore, to
be eligible for CEP, an individual
school, group of schools, or LEA must
have an ISP greater than, or equal to, 40
percent (ISP ≥40 percent) as of April 1
of the school year prior to implementing
CEP (7 CFR 245.9(f)(3)(i)).
The ISP determines eligibility to
participate in CEP and is also the basis
of Federal reimbursements for meals
served to students in CEP schools. The
National School Lunch Act (NSLA)
gives the Secretary discretion to
establish a CEP ‘‘multiplier’’ between
1.3 and 1.6 that is used to determine the
percentage of meals that CEP schools
claim at the free and paid
reimbursement rate levels (42 U.S.C.
1759a(a)(1)(F)(vii)(II)(aa)). To promote
CEP financial viability, USDA codified
a multiplier of 1.6 (7 CFR
245.9(f)(4)(vi)). The ISP is multiplied by
1.6 to calculate the percentage of meals
reimbursed at the Federal free rate. Any
remaining meals, up to 100 percent, are
reimbursed at the Federal paid rate.3
% Meals reimbursed at Federal free rate
= ISP × 1.6
% Meals reimbursed at Federal paid rate
= 100¥% meals reimbursed at
Federal free rate
CEP requires that LEAs must pay,
with non-Federal funds, any costs of
offering free meals to all students that
exceed the Federal assistance provided.
If all operating costs are covered by the
Federal assistance provided, then LEAs
are not required to contribute nonFederal funds (7 CFR 245.9(f)(4)(vii)).
On March 23, 2023, USDA published
a proposed rule in the Federal Register
(88 FR 17406), seeking to lower the
minimum ISP to 25 percent, and make
related, conforming changes to CEP
regulatory text at 7 CFR 245.9(f).
1 On July 29, 2016, the U.S. Department of
Agriculture (USDA) published the final rule,
National School Lunch Program and School
Breakfast Program: Eliminating Applications
through Community Eligibility as Required by the
Healthy, Hunger-Free Kids Act of 2010 [81 FR
50194, July 29, 2016], which codified CEP
requirements that were implemented through
statute and policy guidance, at § 245.9(f).
2 Identified students include students living in
households participating in SNAP, Temporary
Assistance for Needy Families, and FDPIR.
Identified students also include those who are
homeless, migrant, runaway, in foster care, or
enrolled in Head Start. In some States, students are
directly certified through Medicaid direct
certification demonstration projects. Students in
States participating in the Medicaid direct
certification demonstration projects are only
included in the ISP if they are certified for free
meals (not reduced price meals).
3 CEP schools only claim meals at the free and
paid reimbursement rates. CEP schools do not claim
reduced price meals.
Food and Nutrition Service
(FNS), Department of Agriculture
(USDA).
ACTION: Final rule.
AGENCY:
SUMMARY:
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identified student percentage (ISP) from
40 percent to 25 percent. Lowering the
minimum ISP will give States and
schools greater flexibility to offer meals
to all enrolled students at no cost when
financially viable. As a result of this
rule, more schools are eligible to
participate in CEP and experience the
associated benefits, such as increasing
students’ access to healthy, no-cost
school meals; eliminating unpaid meal
charges; reducing stigma; and
streamlining Program administration
and meal service operations.
DATES: This rule is effective October 26,
2023.
FOR FURTHER INFORMATION CONTACT:
Michelle Frey, Branch Chief, Policy
Design Branch, School Meals Policy
Division—4th Floor, Food and Nutrition
Service, 1320 Braddock Place,
Alexandria, VA 22314, telephone: 703–
305–2590.
SUPPLEMENTARY INFORMATION:
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As described in detail in the proposed
rule, CEP benefits children, families,
schools, and communities. Schools
participating in CEP often experience an
increase in the number of students
accessing the SBP and NSLP, resulting
in more children benefiting from the
advantages these Programs offer.4
Research demonstrates that access to
school meals at no cost improves
students’ diet quality and academic
performance and can reduce social
stigma and food insecurity.5 Researchers
have observed that ‘‘CEP exposure is
associated with an almost five percent
decline in households classified as food
insecure.’’ 6 LEAs have also reported
that CEP reduces administrative burden
and eliminates unpaid meal debt in
schools.7 Lastly, CEP improves Program
integrity by simplifying administration
and lowering error rates in certifying
students.8 9
This final rule lowers the minimum
ISP from 40 percent to 25 percent and
makes conforming changes to ISP4 USDA’s first comprehensive study since CEP
became available nationwide compared the impact
of CEP participation in school districts that elected
CEP to similar non-participating school districts.
The study showed about 7% and 12% higher
student participation in NSLP and SBP,
respectively, in schools under CEP compared to
eligible but non-participating schools. U.S.
Department of Agriculture. (2022). USDA
Community Eligibility Provision Characteristics
Study, School Year 2016–2017. OMB #0584–0612,
expiration 9/30/2019. Available at: https://
www.fns.usda.gov/cn/usda-cep-characteristicsstudy-sy-2016-17.
5 Cohen JFW, Hecht AA, McLoughlin GM, Turner
L, Schwartz MB. Universal School Meals and
Associations with Student Participation,
Attendance, Academic Performance, Diet Quality,
Food Security, and Body Mass Index: A Systematic
Review. Nutrients. 2021 Mar 11;13(3):911. Diet
quality and food security (pp. 6–9); Academic
performance (p. 10). Available at: https://
pubmed.ncbi.nlm.nih.gov/33799780/.
6 National Bureau of Economics. (2022). The
Effect of Free School Meals on Household Food
Purchases: Evidence from the Community
Eligibility Provision. Available at: https://
www.nber.org/papers/w29395. ‘‘CEP exposure’’ is
the probability that a household has a child
enrolled at a CEP school, based on schools’ CEP
participation, household zip codes, and school
attendance areas.
7 U.S. Department of Agriculture. (2022). USDA
Community Eligibility Provision Characteristics
Study, School Year 2016–2017. OMB #0584–0612,
expiration 9/30/2019. Available at https://
www.fns.usda.gov/cn/usda-cep-characteristicsstudy-sy-2016-17 (p. 43).
8 U.S. Department of Agriculture. (2014).
Community Eligibility Provision Evaluation Final
Report. Available at: https://www.fns.usda.gov/sites/
default/files/CEPEvaluation.pdf (p. 127–135).
9 Milfort et al. (2021). Third Access, Participation,
Eligibility, and Certification Study. Prepared by
Westat, Inc., Contract No. AG–3198–K–15–0054.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service, Office of Policy
Support, Project Officer: Conor McGovern.
Available online at: https://fns-prod.azureedge.us/
sites/default/files/resource-files/APECIII-Vol1.pdf
(p. 8–14 through 9–3).
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related requirements (i.e., grace year
eligibility and identification/
notification/publication requirements).
Electing CEP is a voluntary decision
made by LEAs based on their unique
student populations. Prior to
participating in CEP, LEA
decisionmakers should consider student
nutrition, educational, administrative,
and financial factors. This rule does not
impose any new requirements on LEAs
or schools. Through this final rule an
increased number of LEAs, schools, and
groups of schools will be eligible to offer
all students lunches and breakfasts at
no-cost when it is financially viable.
This final rule supports State and local
choices to expand the availability of nocost school meals for all students
through programs supported by State or
local funding.
USDA solicited public comments on
the proposed change to lower the
minimum ISP to 25 percent. In addition,
USDA requested public comments on
the following questions:
(1) To what extent are LEAs that
would be newly eligible under this
proposed rule expected to elect CEP?
(2) What sources of non-Federal funds
are available to support LEAs electing
CEP at lower ISPs?
(3) In a typical year, how much time
do LEAs spend on administrative duties
that may be eliminated by electing CEP
(e.g., processing applications, managing
unpaid meal charges, conducting
verification)? What administrative
activities are included in that estimate?
(4) To what extent are administrative
cost savings a factor in determining
whether to elect CEP?
(5) How do State policies related to
offering free school meals for all
students influence the likelihood of CEP
election among newly eligible LEAs?
Public comments received in response
to the proposed rule helped inform the
development of this final rule.
II. Public Comments and USDA
Response
During the 45-day comment period
(March 23-May 8, 2023), USDA received
a total of 10,625 comments, including
849 unique submissions and four form
letters representing 8,689 submissions.
Of the 10,625 comments, 1,087 were
duplicate or non-germane submissions,
resulting in 9,538 relevant comments.
All comments, except non-germane
comments, are posted online at
www.regulations.gov (see docket FNS–
2022–0044, Child Nutrition Programs:
Community Eligibility ProvisionIncreasing Options for Schools).
Relevant comments were submitted by
Members of Congress, State and local
government entities and elected
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officials, school districts and school
staff, advocacy organizations,
nongovernmental organizations, and
other stakeholders, including food
banks, healthcare and health insurance
organizations and healthcare
professionals, professional and trade
associations, the research community,
faith-based organizations, and
individual commenters and members of
the public. USDA greatly appreciates
the thoughtful comments provided.
These comments were essential to the
development of this final rule.
Overall, including the form letters,
almost 97 percent of comments
supported the proposed rule (9,220 of
9,538) and less than 1 percent opposed
it (14 of 9,538); the remaining comments
were mixed, offered conditional
support, or were neutral, in that they
were generally supportive of lowering
the minimum ISP to 25 percent, but also
discussed additional considerations for
school meals and school nutrition
departments.
Comments in favor of lowering the
minimum ISP to 25 percent cited
benefits to children, families, schools,
communities, and Program operators.
Supporters noted that lowering the
minimum ISP would increase student
access to school meals and improve
children’s food security, health, and
academic performance. Many comments
also supported the proposal for its
administrative benefits to school
districts and schools.
Comments opposed to lowering the
minimum ISP primarily focused on
concerns about school finances and
funding to support CEP or argued that
the proposed 25 percent threshold was
chosen arbitrarily and could expand
CEP to schools serving communities
that do not need assistance.
Comments offering mixed or
conditional support generally agreed
with lowering the threshold, but also
urged USDA to take additional measures
to support and expand CEP (e.g.,
increase the CEP multiplier or make
school meals available at no cost to
students nationwide). The following
discussion is a detailed summary of
public comments by topic.
Minimum ISP
Proposed Change
Under current regulations, the
minimum ISP required to elect CEP is
40 percent; therefore, to be eligible for
CEP, an LEA, group of schools, or
school must have an ISP greater than, or
equal to, 40 percent (ISP ≥40 percent) as
of April 1 of the school year prior to
implementing CEP (7 CFR 245.9(f)(3)(i)).
USDA proposed to amend 7 CFR
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245.9(f)(3)(i) to require an LEA, group of
schools, or school to have an ISP of at
least 25 percent, as of April 1 of the
prior school year, to participate in CEP.
Individual schools participating in CEP
as part of a group would be permitted
to have an ISP lower than 25 percent,
provided that the group’s aggregate ISP
is at least 25 percent.
Public Comments
USDA received 9,220 comments that
were generally supportive of lowering
the minimum ISP threshold to 25
percent. Commenters supporting the
lower threshold included: Members of
Congress; State and local agencies;
school districts and school staff;
advocacy groups, trade associations, and
individuals. Many commenters
reasoned that the proposed change
would expand CEP, allowing more
students access to free, nourishing
school meals. Further, commenters
highlighted that expanding CEP could
benefit numerous stakeholders by
reducing hunger and food insecurity,
improving students’ academic
performance, increasing equity,
reducing families’ financial burdens,
and streamlining school meal
operations.
Many commenters who supported the
rule discussed the importance of feeding
schoolchildren equitably and
supporting families. Numerous
commenters, including advocacy
groups, a food bank, trade associations,
and individuals, noted that access to
nutritious school meals is important to
ensure educational equity, improve
learning outcomes, and advance
children’s intellectual and physical
development. Some individual
commenters asserted that student
hunger has a significant impact on
academic performance and outcomes. A
form letter campaign emphasized that
hungry schoolchildren cannot learn
effectively, and that CEP helps to
alleviate the negative impact of hunger
on learning. Several commenters,
including an advocacy group and
individuals, expressed support for the
proposed rule because, for many
children, school meals are the only
nutritious meals they have access to
each day. Similarly, an advocacy group
commented that CEP helps feed
schoolchildren, while also increasing
attendance and improving academic
outcomes. Another advocacy group
asserted that, without CEP, thousands of
students would go hungry at school.
One advocacy group cited research
which found that universal school
meals improved academic performance,
reduced suspension among students,
reduced household spending on
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groceries, and improved dietary quality
at home. Similarly, some commenters,
including a trade association and
individuals, stated that lowering the
minimum ISP would decrease
children’s and families’ food insecurity.
School staff and a few individual
commenters said that lowering the
minimum ISP to 25 percent would
benefit their school districts because
they are unable to participate in CEP at
the 40 percent threshold, but they know
students in their communities
experience widespread food insecurity.
A school district reported that 69
percent of their students receive free
and reduced price meals, but only three
of 18 schools in the district qualify for
CEP (two of which barely meet the 40
percent threshold). Further,
commenters, including a school board,
suggested that lowering the minimum
ISP would improve communities’
attitudes toward school meals and
school nutrition programs.
A couple of commenters, including a
State and a local agency, noted that
reducing the minimum ISP increases
access and makes school meals more
equitable among rural, Tribal, and
underserved communities. Many
commenters discussed the historical
disadvantages, particularly food
insecurity, faced by rural and
underserved communities. For example,
an advocacy group emphasized that
‘‘Black and Brown communities
experience food insecurity at higher
rates’’ than their White counterparts due
to systemic racial injustice. Some
commenters reasoned that CEP has been
useful in minimizing these
disadvantages through access to free
meals, especially among Latino and
Black children. Additionally, a few
commenters with first-hand CEP
experience, including a school and an
advocacy group, stated that when meals
were available at no cost to all students,
significantly more students opted to
participate in school meals and the
school culture improved. Notably, a
form letter campaign said that
expanding access to CEP is a ‘‘great step
forward’’ to improve equity,
accessibility, and nutrition in school
meals.
Many commenters, including a State
agency, an advocacy group, a
professional association, and
individuals, stated that CEP helps
reduce the prevalence of unpaid meal
debt, and some commenters, including
a school and individual commenters,
cited the elimination of unpaid meal
charges and student meal debt as a
primary reason they support lowering
the minimum ISP. Many commenters,
including a local government, school
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districts, a trade association,
individuals, and a form letter campaign,
expressed support for decreasing the
minimum ISP, as it would provide
‘‘peace of mind’’ to parents and children
by eliminating the cost of school meals.
Commenters also support lowering
the minimum ISP because it reduces
administrative burden and gives school
districts more options for operating
school meal programs to best serve their
communities. Several commenters,
including a State agency and local
agency, school districts and schools, a
trade association and an individual,
supported lowering the minimum ISP
because it would significantly reduce
administrative burden. A couple of State
agencies said that the proposed change
would help their States’ small and rural
schools, which serve many critical roles
for isolated, rural communities and
often struggle with higher per-meal
administrative costs because of their
small size. Commenters also recognized
that expanding CEP would help schools
and school nutrition staff operate the
SBP and NSLP more efficiently and
would allow them to focus more on
local purchasing, farm-to-school
initiatives, and scratch cooking.
Additionally, many commenters,
including a local agency, schools and
school staff, advocacy groups, a trade
association, and individuals, expressed
support for the proposal because
lowering the minimum ISP would give
schools greater flexibility in operational
decisions, in addition to providing more
enrolled students with no-cost meals.
While still supportive, commenters
discussed how funding to operate
school meal programs via CEP at the
proposed 25 percent minimum ISP
would be challenging. Several
commenters asserted that the proposed
lower minimum ISP will not be
financially viable for many school
districts without a concurrent increase
in the CEP multiplier. A few
commenters suggested that to offset the
burden of costs, USDA should allow
statewide CEP participation so that CEP
administration and any costs can be
shared among school districts within a
State and are not placed on individual
school districts.
In addition, several supportive
commenters expressed concerns about
the loss of free and reduced price
eligibility data—frequently used for
education funding—that occurs in CEP
schools when applications are
eliminated. For example, an advocacy
group commented that schools that do
not process school meal applications
will need to navigate how to adjust
policies that previously relied on
household application data but
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reasoned that this is true at any ISP
level. Other commenters recommended
that USDA work with other Federal
partners to assess alternative poverty
measures.
Despite overwhelming support for
lowering the minimum ISP to 25
percent, approximately 300
commenters, including a State agency,
advocacy groups, and individuals,
provided mixed feedback or conditional
support. Many noted that successful
implementation of CEP in schools with
lower ISPs requires additional funding.
A school staff commenter expressed
concern that the proposed change to
CEP would lead communities and
school boards to believe it is financially
viable for districts with a 25 percent ISP
to elect CEP. Some commenters
suggested increasing the CEP multiplier,
while others thought the rule did not go
far enough, suggesting further lowering
the minimum ISP, eliminating the
minimum ISP completely in States
where there is identified State funding
to support CEP, and providing universal
school meals at no cost to all students
nationwide.
Though most commenters supported
lowering the minimum ISP to 25
percent, 14 commenters expressed
opposition to the proposed change.
Many commenters opposed to lowering
the minimum ISP expressed concern
that expanding CEP might financially
burden schools and school nutrition
programs in cases where Federal
reimbursements fall short of Program
operating costs. Of these, about half
expressed that the proposed lower
minimum ISP would not be financially
viable without increasing the CEP
multiplier. Opposing commenters,
including a school district and
individual commenters, remarked that
the proposed change would not
encourage more schools to implement
CEP because of its economic
infeasibility. Similar to commenters
with mixed feedback on the rule, a
school district asserted that the CEP
multiplier needs to be increased from
1.6 to at least 2.0 or higher. The district
added that lowering the minimum ISP,
without increasing the multiplier,
would only assist schools that have the
financial means to help pay the
‘‘nutrition bills.’’ An individual
commenter expressed concern that the
lower minimum ISP would not simplify
determinations for severe need
payments in the SBP or allow more
schools to participate in CEP. The
commenter concluded by expressing
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concern that the 25 percent minimum
ISP was chosen arbitrarily. One
commenter expressed concern about
government overreach and suggested
that State and local agencies are better
suited to address free meals. Another
individual stated that the proposed rule
promotes socialism, adding that social
services should be involved to provide
meals while simultaneously assessing
students’ home environments. Finally, a
school nutrition director stated that
expanding CEP to a student population
that does not have an economic need is
not an efficient use of funds, and an
advocacy group asserted that lowering
the minimum ISP significantly expands
CEP in a way that is inconsistent with
the intent of the Federal meal programs
because it could result in more middleand upper-income students receiving
taxpayer-funded meals.
Thirty commenters responded to the
question, ‘‘to what extent are LEAs that
would be newly eligible under this
proposed rule expected to elect CEP?’’
Of these, the majority provided
estimates of the number of schools
expected to be newly eligible. Some
commenters shared that, although more
schools would be eligible, they would
likely not elect CEP without an increase
to the CEP multiplier. Other
commenters responded that newly
eligible schools in their States would
elect CEP due to the availability of State
funding to cover any costs that exceed
Federal assistance. One State agency did
not indicate how many more schools
would participate in CEP, but expressed
concern that many newly eligible
schools may not initially understand the
financial impacts of electing CEP at a
lower ISP threshold.
Additionally, approximately 15
commenters responded to the question,
‘‘what sources of non-Federal funds are
available to support LEAs electing CEP
at lower ISPs?’’ The majority of
commenters responding to this question
indicated there is State or local funding
available to help cover costs. A State
agency said that non-Federal sources in
their State include angel funds (local or
community donations). Another State
reported there are no State funds
available to pay for the cost of meals not
covered by Federal assistance. Finally,
an advocacy group emphasized that, for
their area, the availability of State and
local funds varies greatly based on
school-level factors, such as enrollment
and student participation in school meal
programs.
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USDA Response
USDA concurs with commenters who
stated that lowering the minimum ISP is
expected to significantly benefit
students, families, schools, and
communities. USDA’s CEP
Characteristics Study found that LEAs
participating in CEP reported multiple
perceived benefits, including increased
student participation, decreased
financial burden on families,
elimination of unpaid meal debt,
reduced administrative burden, and
decreased stigma for students in need.10
USDA also understands that lowering
the minimum ISP to 25 percent is
expected to result in more schools being
eligible for CEP; yet, without additional
State or local funding, electing CEP at
lower ISPs may not be financially viable
for many schools.
Non-CEP LEAs and schools that serve
high proportions of low-income
children are expending alreadyconstrained resources to collect and
process school meal applications to
ensure low-income students have access
to free or reduced price meals. Lowering
the minimum ISP to 25 percent provides
an opportunity for more LEAs with high
proportions of low-income students—
especially those with non-Federal funds
available to support school meals—to
capitalize on CEP’s administrative and
operational benefits, while maintaining
CEP’s intent to provide schools serving
high poverty areas with opportunity to
offer healthy, no-cost school meals to all
students. This is particularly applicable
to LEAs and schools in States with
healthy school meals for all initiatives;
in these States, students already have
access to meals at no cost and now the
lower minimum ISP will allow more
schools to experience the administrative
and operational benefits of CEP.
Healthy school meals for all
initiatives, supported by State funding,
are gaining momentum across the
nation. Currently, eight States have
permanent policies in place, more than
20 States are actively pursuing healthy
school meals for all legislation, and 63
percent of voters nationwide support
legislation that would make school
meals permanently available to all
10 U.S. Department of Agriculture. (2022). USDA
Community Eligibility Provision Characteristics
Study, School Year 2016–2017. OMB #0584–0612,
expiration 9/30/2019. Available at https://
www.fns.usda.gov/cn/usda-cep-characteristicsstudy-sy-2016-17.
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students at no cost.11 These initiatives
align with USDA’s priority to tackle
food and nutrition insecurity: USDA is
leveraging all resources to ensure
consistent and equitable access to
healthy, safe, affordable foods essential
to optimal health and well-being.12
Expanding schools’ access to CEP—and
providing students access to a
nourishing breakfast and lunch each
school day—is an important action
USDA can take to support those efforts.
USDA acknowledges that lowering
the minimum ISP is not accompanied
by additional funding and that, for the
most part, school districts and schools
that are newly eligible under the 25
percent threshold may need additional
non-Federal funds for CEP to be
financially viable. However, USDA
supports CEP expansion in States and
localities where non-Federal funding is
available to support healthy school
meals at no charge for all students.
As detailed earlier, the CEP multiplier
is used to calculate the percentage of
breakfasts and lunches to be claimed
and reimbursed at the Federal free rate
at CEP schools. Section
11(a)(1)(F)(vii)(II) of the NSLA provides
the Secretary the option to establish the
CEP multiplier between 1.3 and 1.6.
Accordingly, USDA established 1.6 as
the multiplier to be used to determine
CEP claiming percentages for an entire
4-year CEP cycle (7 CFR 245.9(f)(4)(vi)).
Increasing the multiplier to provide
more funding to CEP schools (in the
form of a higher free claiming
percentage) would require
Congressional action; USDA does not
have statutory authority to increase the
multiplier any further. Similarly, USDA
does not have the authority to allow a
statewide CEP option. Section
11(a)(1)(F)(x) of the NSLA requires CEP
to be elected at the LEA-level.
Electing CEP is a local decision, not
a Federal mandate; as a result, the
financial viability of participating in
CEP must be evaluated based on the
unique circumstances of each
individual school district. If the total
amount of Federal assistance available
does not fully cover the cost of offering
all students meals at no charge, LEAs
must contribute non-Federal funds (7
CFR 245.9(f)(4)(vii)). The use of nonFederal funds is not required if all
operating costs are covered by the
Federal reimbursement and other
11 Food
Research and Action Center, Healthy
School Meals for All website. Available at: https://
frac.org/healthy-school-meals-for-all.
12 U.S. Department of Agriculture, Priorities
website. Available at: https://www.usda.gov/
priorities#:∼:text=Tackling%20Food%20and
%20Nutrition%20Insecurity,-At%20USDA%2C
%20we.
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assistance provided under the NSLA
and the Child Nutrition Act of 1966 (42
U.S.C. 1759a (a)(1)(F)(ii)(I)(bb)).
Additionally, school food authorities
(SFAs) may use excess funds in the nonprofit school food service account to
support CEP (7 CFR 210.14(a)).
When deciding whether to elect CEP,
eligible schools must consider their
ability to provide meals at no cost and
cover their operating costs with Federal
assistance and any other available
funds, including State and/or local
funds. USDA has an updated estimator
tool to help LEAs determine if CEP is
financially viable, and to help assess
LEA groupings to optimize Federal
reimbursements. The estimator tool is
available at the CEP Resource Center
(https://www.fns.usda.gov/cn/
community-eligibility-provisionresource-center).
With respect to concerns regarding
the loss of free and reduced price
eligibility data, USDA understands that
many entities have historically relied on
data from free and reduced price school
meal applications as a school- or school
district-based poverty measure and/or
means of allocating education funding.
Since CEP’s inception in 2011, USDA
has worked extensively to ensure that
State agencies and eligible LEAs are
aware of alternative means of assessing
socioeconomic status. USDA has
coordinated meetings and webinars to
share best practices related to assessing
socioeconomic status in the absence of
household applications.13 In addition,
USDA worked with the National Forum
on Education Statistics to develop a
guide on alternative measures of
socioeconomic status for use in
education data systems.14 USDA
continues to work with the U.S.
Department of Education’s National
Center for Education Statistics, on an
ongoing basis, to discuss and identify
school-based poverty measures that
have potential to serve as alternatives to
free and reduced price application data.
USDA encourages stakeholders at the
State and local levels to pursue similar
conversations to ensure that electing
CEP, and the loss of application data,
does not result in reduced education
funding or benefits to CEP school
districts, schools, or students.
13 Visit the CEP Resource Center for more
information: Community Eligibility Provision
Resource Center | Food and Nutrition Service
(usda.gov).
14 National Forum on Education Statistics (2015).
Forum Guide to Alternative Measures of
Socioeconomic Status in Education Data Systems
(NFES 2015–158). U.S. Department of Education.
Washington, DC: National Center for Education
Statistics. Available at: https://nces.ed.gov/
pubs2015/2015158.pdf.
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USDA has discretion to establish a
minimum ISP that is lower than 40
percent (42 U.S.C.
1759a(a)(1)(F)(viii)(II)). In addition to
public comments, to determine an
appropriate threshold, USDA
considered operational factors,
including characteristics of LEAs
currently eligible and near eligible to
elect CEP, and analyzed the
composition of the ISP and the
proportion of free and reduced price
students at varying ISP levels. Based on
these analyses, a minimum ISP of 25
percent results in at least 40 percent of
meals reimbursed at the free rate (25
percent × 1.6 = 40 percent). Schools
where at least 40 percent of the lunches
served to students in the second
preceding school year were free or
reduced price qualify as severe need
schools and receive an additional
reimbursement (42 U.S.C. 1773(d)(1)(A);
7 CFR 220.9(d)(2)). Aligning the CEP
threshold with the severe need
payments threshold provides
consistency because all CEP-eligible
schools will qualify for severe need
reimbursements. In addition, CEP’s
positive impact on school breakfast
participation further supports the
SBP.15
Given the broad stakeholder support
for lowering the minimum ISP to 25
percent—and the potential benefit to
children, families, schools, and
communities—USDA is adopting the
lower, 25 percent minimum ISP in this
final rule. Accordingly, this final rule
amends the CEP provisions at 7 CFR
245.9(f)(3)(i) to reflect a 25 percent
minimum ISP.
Conforming Amendments to Grace Year
and Identification/Notification
Requirements
Proposed Change
To conform with the proposed 25
percent ISP threshold in 7 CFR
245.9(f)(3), USDA proposed to amend 7
CFR 245.9(f)(4)(ix), the regulations
governing grace years, to allow an LEA,
group of schools, or school in the fourth
year of the 4-year CEP cycle with an ISP
of less than 25 percent but equal to or
greater than 15 percent (as of April 1 of
the fourth year of a CEP cycle) to
continue using CEP for an additional
‘‘fifth year’’ or a ‘‘grace year’’ beyond the
4-year CEP cycle. In addition, USDA
15 USDA’s CEP Characteristics Study found that
SBP participation increased by about 12 percent in
LEAs operating CEP (compared to similar, eligible
LEAs that did not elect CEP). U.S. Department of
Agriculture (2022). USDA Community Eligibility
Provision Characteristics Study, School Year 2016–
2017. OMB #0584–0612, expiration 9/30/2019.
Available at https://www.fns.usda.gov/cn/usda-cepcharacteristics-study-sy-2016-17.
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proposed to amend 7 CFR 245.9(f)(5)
and (6), the regulations governing LEA
and State agency identification and
notification requirements, and 7 CFR
245.9(f)(7)(i) and (ii), the regulations
governing State agency public
notification requirements. USDA only
proposed changes to the numbers (i.e.,
40 percent to 25 percent, 30 percent to
15 percent) consistent with the
proposed lower threshold and statutory
requirements (42 U.S.C.
1759a(a)(1)(F)(v)(I), (a)(1)(F)(x)); no
additional substantive changes were
proposed.
Public Comments
USDA received eight comments
pertaining to these conforming changes
and all comments were supportive. A
State agency noted that the grace year
flexibility would allow schools an extra
year to attempt to meet the 25 percent
ISP threshold to remain on CEP. In
addition, an advocacy group suggested
that USDA should require States to use
the actual counts of identified students
as opposed to proxy data to ensure more
accurate lists and notifications.
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USDA Response
USDA appreciates one commenter’s
suggestion to change requirements
related to the data that States use for
notification purposes. However, this
rulemaking only changes the numbers
(e.g., 40 percent to 25 percent, 30
percent to 15 percent) consistent with
the lower ISP threshold and statutory
requirements (42 U.S.C.
1759a(a)(1)(F)(v)(I), (a)(1)(F)(x)); no
additional substantive changes are made
by this rulemaking. Therefore, under
this final rule, USDA will continue to
allow States to use proxy data for CEP
notification purposes. Consistent with
current requirements, actual counts of
identified students must be used for
CEP elections.
Given the support for these changes
and the statutory requirement that these
provisions conform to the final
threshold, this final rule modifies the
following regulations to align with the
25 percent ISP threshold in 7 CFR
245.9(f)(3):
• 7 CFR 245.9(f)(4)(ix), the
regulations governing the use of CEP for
a grace year;
• 7 CFR 245.9(f)(5) and (6), the
regulations governing LEA and State
agency identification and notification
requirements; and
• 7 CFR 245.9(f)(7)(i) and (ii), the
regulations governing State agency
public notification requirements.
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Comments on Other CEP-Related Items
Healthy School Meals for All
Public Comments
Approximately 330 commenters
discussed healthy school meals for all
initiatives; many of those commenters,
including a professional association and
individuals, expressed general support
for providing all students with no-cost,
healthy school meals. Several
commenters, including a trade
association and a form letter campaign,
stated that the proposed rule is an
improvement on existing CEP
requirements and represents a positive
step toward universal, no-cost meals for
all students. A form letter campaign
applauded the proposed CEP expansion
and its potential to enable more schools
and districts across the country to
provide school meals at no charge to all
students, closing a gap in healthy food
access for many children and families,
especially those in need. However, some
commenters, including school staff,
advocacy groups, and individuals, noted
that a nationwide program making
school meals available at no charge for
all students would be preferable over
lowering the minimum ISP.
Several commenters highlighted that
the proposed change to CEP would
support the growing number of States
choosing to invest funding to provide
no-cost school meals to all children. A
few commenters, including a school
district and individuals, commented
that lowering the minimum ISP to 25
percent would give States and schools
greater flexibility to choose to invest
non-Federal funds to offer no-cost meals
to all enrolled students. An individual
representing a non-profit organization
stated that the proposed change creates
an ‘‘easier entry point’’ for States to
adopt their own universal, no-cost
meals policies in a more balanced and
sustainable way. The commenter
continued, declaring that a lower
minimum ISP would support the
growing number of States that are
choosing to invest their own funds to
provide free school meals to all
students, through maximizing LEA use
of CEP in combination with Statespecific initiatives. Conversely, one
State agency shared that, in their State,
State funding is not available to
encourage lower ISP schools to adopt
CEP, and concerns exist regarding
whether some schools have sufficient
financial support to be able to
implement CEP at lower ISPs.
Approximately 15 commenters
responded to the question, ‘‘how do
State policies related to offering free
school meals for all students influence
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65783
the likelihood of CEP election among
newly eligible LEAs?’’ A couple of
commenters stated that the proposed
rule provides more options to LEAs and
State agencies in those States that
incentivize CEP adoption through State
legislation. Some commenters,
including State agencies and advocacy
groups, asserted that LEAs in States
with existing healthy school meals for
all legislation, or significant non-Federal
funding sources, will see an increase in
CEP participation because they do not
have to reconcile significant budgetary
gaps. One State agency commented that
the State’s policies neither require nor
discourage districts to participate in
CEP, and another State agency noted
that LEAs will need to assess how
current application-based
reimbursements compare to CEP’s direct
certification-based reimbursements
because eliminating applications may
affect school districts and States
differently, depending on their policies.
Additionally, one State agency asserted
that without State funding to support
free school meal programs, newly
eligible LEAs would not be likely to
participate in CEP because it would not
be financially viable.
USDA Response
USDA anticipates that LEAs most
likely to elect CEP at the 25 percent ISP
are those in States that have committed
to offering healthy school meals for all
through State funding. Numerous public
comments submitted by States support
this assumption. The Colorado
Department of Education confirmed
that, to opt-in to the State’s Healthy
School Meals for All Program and
receive additional State funding,
qualifying schools are required to elect
CEP. In its comment, the Minnesota
Department of Education noted that,
while the State will not require school
districts to participate in CEP under the
recently passed Minnesota Free School
Meals Program, it anticipates ‘‘schools
will be interested in adopting CEP at a
lower threshold to have the option to
streamline meal counting and
claiming.’’ A recent publication from
the Food Research and Action Center
has also found that States offering free
meals to all students in school year (SY)
2022–23 experienced significant
increases in CEP uptake.16
USDA estimates that as many as 2,090
schools in 471 LEAs across California,
Colorado, Maine, Minnesota, and New
Mexico, all of which have implemented
16 Food Research & Action Center. Community
Eligibility: The Key to Hunger-Free Schools, School
Year 2022–23 (May 2023). Available at: https://
frac.org/wp-content/uploads/cep-report-2023.pdf.
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healthy school meals for all policies for
SY 2023–24, would elect to participate
in CEP under the 25 percent ISP.17
Estimates are based on the School Food
Authority Verification Collection
Report, found at: https://
www.fns.usda.gov/form/school-foodauthority-sfa-verification-collectionreport. Specifically, the analysis used
2023 data related to student enrollment,
direct certification, free and reduced
price claiming percentages, and CEP
participation status.18
A recent report on CEP uptake
showed that the number of students in
schools participating in CEP has
increased annually since 2014, with the
greatest increases occurring more
recently.19 In SY 2021–22, there were
16.2 million students in CEP schools; in
SY 2022–23, there were 19.9 million.
California was the greatest contributor,
adding more than 1.3 million students
to the total enrolled in CEP schools. The
percentage of eligible schools adopting
CEP also increased from 75.3 percent to
99.5 percent in California during this
time. In all but one of the seven States
offering free meals to all students during
SY 2022–23 through State funding
(California, Connecticut, Maine,
Nevada, New Mexico, Vermont), the
percentage of eligible schools
participating in CEP was 92 percent or
higher. The percentage of participating
eligible CEP schools in Massachusetts,
the remaining State, was 87 percent.
High CEP participation rates in States
providing free school meals to all
students is consistent with the feedback
submitted in public comments and
supports USDA’s assumption that
school districts in these States are most
likely to benefit from, and take
advantage of, the 25 percent ISP.
USDA is fully committed to ensuring
all children have access to healthy
school meals. Lowering the minimum
ISP provides States and LEAs greater
flexibility to combine CEP with State
initiatives to simplify Program
administration, reduce burden, and offer
meals to all students at no charge.
Costs & Cost Savings
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Public Comments
LEAs assume significant
responsibility to administer school meal
programs and, in response to the
17 USDA only included States with permanent
legislation at the time of the analysis.
18 Data from FNS–742: School Food Authority
Verification Collection Report, available at: https://
www.fns.usda.gov/form/school-food-authority-sfaverification-collection-report.
19 Community Eligibility: The Key to Hunger-Free
Schools (School Year 2022–2023). May 2023. Food
Research and Action Center. Available at: https://
frac.org/cep-report-2023.
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proposed rule, respondents submitted
several comments and questions related
to costs and cost savings. One advocacy
group stated that reducing the minimum
ISP—even to zero—will not appreciably
drive up Federal costs because
reimbursements are tied to the ISP, and
that schools or districts with lower ISPs
will receive lower Federal
reimbursements and will have to cover
remaining costs with non-Federal funds.
Another advocacy group commented
that the lower minimum ISP would
result in additional government
spending annually.
Numerous commenters stated that, in
general, CEP helps reduce
administrative costs. Many commenters,
including Members of Congress, a State
agency, a local government, school
districts, advocacy groups, and form
letter campaigns, said that CEP helps
reduce administrative and paperwork
costs, and streamlines Program
operations for LEAs and schools. Some
commenters, including advocacy groups
and a form letter campaign, added that
administrative cost savings allow school
officials to focus resources on core SBP
and NSLP mission-oriented tasks, such
as planning and preparing healthy
meals for students. Similarly, some
commenters, including State and local
agencies, advocacy groups, and a trade
association, remarked that the reduced
administrative burden from CEP helps
schools focus on investing in operations
and meal program improvements, such
as scratch cooking or farm-to-school
programs. One staff member of a public
charter school noted that if the school
were eligible for CEP, the school would
save a minimum of $50,000 per year in
administrative staff costs. Commenters
remarked that CEP reduces costs for
schools because, as a result of increased
student participation, it leverages
economies of scale in food purchasing
and preparation. An advocacy group
and a trade association concluded that
administrative savings resulting from
CEP help schools combat rising food
prices, focus on serving quality meals,
and invest in school nutrition programs.
Furthermore, a State explained that by
reducing administrative costs, CEP
helps ensure a greater share of each
meal reimbursement is spent directly on
food and food preparation. Some
commenters, including an advocacy
group and a trade association, asserted
that lowering the minimum ISP would
reduce State costs associated with
expanding school meal access and
would help sustain recently enacted
healthy school meals for all programs, if
State fiscal conditions change.
An advocacy group suggested that
schools with higher ISPs can adopt CEP
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Sfmt 4700
without relying on non-Federal funds
because administrative savings often
offset the loss of revenue from student
payments but recognized that may not
be the case for districts with lower ISPs.
Another advocacy group stated that
expansion of CEP will pay for itself by
reducing administrative burden and
increasing Program efficiency. A school
district warned that access to CEP may
not reduce paperwork as much as
expected because paperwork will still
be required for other Federal programs.
Six commenters responded to the
question: ‘‘In a typical year, how much
time do LEAs spend on administrative
duties that may be eliminated by
electing CEP (e.g., processing
applications, managing unpaid meal
charges, conducting verification)? What
administrative activities are included in
that estimate?’’ Two State agencies
commented generally that CEP would
reduce LEAs’ time spent on processing
applications and verification activities.
In addition, two State agencies
acknowledged that the time spent on
applications varies by school district
size, with one estimating the number of
hours would vary from as few as 12
hours per school year to almost 50
percent of a full-time equivalent. One
school district reported that hundreds of
hours of work are spent each year
processing free and reduced price
applications, including dealing with
unpaid meal debt and other activities.
Similarly, another school district
estimated that 490 hours per year are
dedicated to the application process.
One school district reported that, after
adopting CEP at several (but not all)
schools, time spent on processing
applications was cut ‘‘nearly in half.’’
Six commenters responded to the
question, ‘‘to what extent are
administrative cost savings a factor in
determining whether to elect CEP?’’
Some of the commenters stated that
administrative cost savings were a
determining factor, while others
depended more on cafeteria operations
or the capacity to serve no-cost meals as
a primary factor in deciding to elect
CEP.
USDA Response
USDA analyzed administrative data
and relied on information from public
comments and stakeholder engagement,
to examine the economic impacts (i.e.,
costs) of lowering the minimum ISP to
25 percent. Historically, CEP has not
been a significant driver of Federal
costs. CEP became available nationwide
in SY 2014–15; during that school year
and in subsequent school years, the
number of schools electing CEP—and,
as a result, students in CEP schools—
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lotter on DSK11XQN23PROD with RULES1
grew significantly. However, since the
CEP multiplier is designed to, on
average, mirror the free and reduced
price percentage, claiming meals merely
shifted from free and reduced pricebased claiming to ISP-based claiming
with no significant impact on Federal
costs.
The number of students in CEP
schools more than doubled, from 6.5
million in SY 2014–2015 to 13.7 million
in SY 2018–2019. During this same time
period, the annual growth rate in school
meal earnings (i.e., costs) was about 3
percent.20 Most of the annual growth
was due to an annual inflation rate of
2.2 to 3 percent during this period.
USDA anticipates that CEP uptake as a
result of the 25 percent minimum ISP
will be significantly smaller than
typical, historical year-over-year CEP
increases due to the financial
considerations LEAs must weigh when
deciding to elect CEP at lower ISPs.
Therefore, based on these analyses,
USDA does not agree with the
commenter that indicated there would
be large increases in Federal
Government spending from this CEP
expansion.
The decision to elect CEP is the result
of a cost-benefit analysis specific to
eligible LEAs. State initiatives, such as
healthy school meals for all, make it
easier for LEAs to elect CEP due to the
additional State funding. Administrative
cost savings associated with CEP are a
significant factor that may make CEP
economically viable for many LEAs, as
indicated in several comments.
USDA estimates administrative cost
savings of $103,869, based on a total
annual reduction of 5,679 burden hours
and a $18.29 median hourly rate for
Office and Administrative Support
Occupations in Educational Services.21
Actual decreases in administrative
burden will vary by LEA based on
factors such as student enrollment,
current percentage of students eligible
for free and reduced price meals, local
wage rates, and current mode of
operation before electing CEP (e.g.,
Provision 2 or 3). Though some
commenters indicated that systems may
need to be updated or reprogrammed to
accommodate the new minimum ISP for
CEP, USDA expects that these costs
20 USDA limited its analysis to fiscal year (FY)
2015–FY 2019 due to the impacts of nationwide
child nutrition waivers, which were provided to
ensure access to meals through the Child Nutrition
Programs as communities responded to the COVID–
19 pandemic. Cash payments for NSLP and SBP
were $15.6 billion in FY 2015 and $17.4 billion in
FY 2019.
21 For a full discussion of the impacts of this final
rule on information collection requirements, please
refer to the Paperwork Reduction Act section.
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would be limited to one-time, system
modification costs.
USDA understands that newly eligible
school districts and schools may have
questions about implementing CEP at a
lower ISP. USDA plans to issue
guidance related to the lower minimum
ISP to help LEAs and schools make
informed decisions about electing CEP.
USDA, in collaboration with Federal
and State agency partners, stands ready
to provide support, customer service,
and technical assistance to school
districts interested in electing CEP at all
eligibility levels.
Procedural Matters
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This final
rule has been determined to be not
significant and was not reviewed by the
Office of Management and Budget
(OMB) in conformance with Executive
Order 12866.
Regulatory Impact Analysis
This final rule has been designated as
not significant by the Office of
Management and Budget. Therefore, no
Regulatory Impact Analysis is required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612) requires Agencies to
analyze the impact of rulemaking on
small entities and consider alternatives
that would minimize any significant
impacts on a substantial number of
small entities. Pursuant to that review,
it has been certified that this final rule
would not have a significant impact on
a substantial number of small entities.
The provisions of this final rule are
intended to reflect the operational needs
of LEAs of all sizes. No specific
additional burdens are placed on small
LEAs seeking to operate CEP. USDA’s
2022 CEP Characteristics Study found
that 36 percent of LEAs participating in
CEP in SY 2016–17 were single-school
LEAs; 32 percent of participating LEAs
were in rural areas; and 83 percent
served fewer than 5,000 students.22 For
22 U.S. Department of Agriculture (2022). USDA
Community Eligibility Provision Characteristics
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65785
smaller LEAs, the decision to elect CEP
may be a simpler process and/or involve
gaining approvals from fewer governing
bodies. Additionally, CEP is an optional
provision, and there is no requirement
for LEAs to participate.
Currently, many small LEAs
participate in CEP; in SY 2016–17, 1,939
of the 4,263 school districts (45 percent)
electing CEP had enrollments of 999 or
less.23
Unfunded Mandates Reform Act
Title II of the Unfunded Mandate
Reform Act of 1995 (UMRA) established
requirements for Federal agencies to
assess the effects of their regulatory
actions on State, local, and Tribal
governments, and the private sector.
Under section 202 of UMRA, USDA
generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local, or
Tribal governments in the aggregate, or
to the private sector, of $146 million or
more (when adjusted for inflation; gross
domestic product (GDP) deflator source:
Table 1.1.9 at https://www.bea.gov/
iTable) in any one year. When such a
statement is needed for a rule, section
205 of UMRA generally requires USDA
to identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, more costeffective, or least burdensome
alternative that achieves the objectives
of the rule.
This final rule contains no Federal
mandates (under the regulatory
provisions of Title II of URMA) for
State, local and Tribal governments, or
the private sector, of $146 million or
more in any one year. Therefore, this
final rule is not subject to the
requirements of sections 202 and 205 of
UMRA.
Executive Order 12372
The NSLP and SBP are assigned
Assistance Listing Numbers—NSLP
(10.555) and SBP (10.553)—and are
subject to Executive Order 12372, which
requires intergovernmental consultation
with State and local officials (see 2 CFR
chapter IV).24 Since the child nutrition
programs are State-administered,
USDA’s FNS Regional Offices have
formal and informal discussions with
Study, School Year 2016–2017. OMB #0584–0612,
expiration 9/30/2019. Available at https://www.fns.
usda.gov/cn/usda-cep-characteristics-study-sy2016-17.
23 Ibid.
24 Assistance listings are detailed public
descriptions of Federal programs that provide
grants, loans, scholarships, insurance, and other
types of assistance awards. More information is
available at: https://sam.gov/content/home.
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State and local officials, including
representatives of Indian Tribal
Organizations, on an ongoing basis
regarding program requirements and
operations. This provides USDA with
the opportunity to receive regular input
from program administrators and
contributes to the development of
feasible program requirements.
Federalism Summary Impact Statement
Executive Order 13132 requires
Federal agencies to consider the impact
of their regulatory actions on State and
local governments. Where such actions
have federalism implications, agencies
are directed to provide a statement for
inclusion in the preamble to the
regulations describing the agency’s
considerations in terms of the three
categories called for under section
(6)(b)(2)(B) of Executive Order 13132.
The Department has determined that
this final rule does not have federalism
implications. Electing CEP is a local
decision, not a Federal mandate, and
lowering the minimum ISP from 40
percent to 25 percent does not limit
State or local policymaking discretion.
Furthermore, this final 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.
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Executive Order 12988, Civil Justice
Reform
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This final rule is
intended to have preemptive effect with
respect to any State or local laws,
regulations, or policies which conflict
with its provisions or which would
otherwise impede its full
implementation. However, USDA does
not expect significant inconsistencies
between this final rule and existing
State or local regulations regarding the
provision of school food service
operations under CEP. This final rule
would permit schools to elect CEP if
their ISP is greater than or equal to 25
percent. Per statutory requirements
outlined in the NSLA, State agencies
operating the Federal school meal
programs may not bar an eligible LEA
from CEP participation. Additionally,
States may not set an eligibility
threshold lower than an ISP of 25
percent for participation in CEP. This
final rule is not intended to have
retroactive effect. Prior to any judicial
challenge to the provisions of this final
rule or the application of its provisions,
all applicable administrative procedures
must be exhausted.
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Civil Rights Impact Analysis
Paperwork Reduction Act
USDA has reviewed the final rule, in
accordance with Departmental
Regulation 4300–004, ‘‘Civil Rights
Impact Analysis,’’ to identify and
address any major civil rights impacts
the final rule might have on participants
on the basis of age, race, color, national
origin, sex, and disability. The FNS
Civil Rights Division finds that the
current mitigation and outreach
strategies outlined in the regulations
and this Civil Rights Impact Analysis
(CRIA) provide ample consideration to
participants’ ability to participate in the
NSLP and SBP. The promulgation of
this final rule will expand access to nocost meals for all enrolled students at
participating CEP schools by lowering
the minimum participation threshold.
As previously outlined, the final rule is
likely to impact the growing number of
minority students and families
attending participating schools that face
a greater risk of food insecurity and
health disparities by providing
sustained nutritious food and reducing
families’ paperwork burdens. The
changes implemented by this final rule
are likely to impact participating LEAs
and SFAs by providing greater
flexibility to offer no-cost meals to
students, which would further support
eliminating unpaid meal debt,
minimizing stigma, streamlining meal
service operations, and reducing
paperwork for school nutrition staff.
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. Chap. 35; 5 CFR part
1320) requires that the Office of
Management and Budget (OMB)
approve all collection of information
requirements by a Federal agency before
they can be implemented. Respondents
are not required to respond to any
collection of information unless it
displays a current, valid OMB Control
Number. This rulemaking expands
access to the Community Eligibility
Provision (CEP) by lowering the
minimum identified student percentage
(ISP) participation threshold from 40
percent to 25 percent, which would give
States and schools greater flexibility to
choose to invest non-Federal funds to
offer no-cost meals to all enrolled
students. As a result, more students,
families, and schools will have an
opportunity to experience the benefits
of CEP, including access to meals at no
cost, eliminating unpaid meal charges,
minimizing stigma, reducing paperwork
for school nutrition staff and families,
and streamlining meal service
operations.
In accordance with the PRA, this final
rule would revise existing information
collection requirements, which are
subject to review and approval by the
Office of Management and Budget.
These existing information collection
requirements are currently approved
under OMB Control Number 0584–0026,
7 CFR Part 245—Determining Eligibility
for Free & Reduced Price Meals and Free
Milk in Schools, which expired on July
31, 2023 (a renewal of OMB Control
Number 0584–0026 has been submitted
to OMB for review). Revisions to the
currently approved information
collection requirements will result in a
decrease in burden on State and local
program operators, as well as
participating households. To ensure that
the review of this final rule does not
interfere with the renewal of OMB
Control Number 0584–0026, FNS is
requesting a new OMB Control Number
for the existing information
requirements that are impacted by this
final rule. Therefore, the provisions
outlined in this rule will initially be
shown as increases to the information
collection inventory. After OMB has
approved the information collection
requirements submitted in conjunction
with the final rule and after the renewal
of OMB Control Number 0584–0026 is
completed, FNS will merge these
requirements and their burden into
OMB Control Number 0584–0026. When
the two information collection requests
are merged, the decrease in burden
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175 requires
Federal agencies to consult and
coordinate with Tribes on a
government-to-government basis on
policies that have Tribal implications,
including regulations, legislative
comments or proposed legislation, and
other policy statements or actions that
have substantial direct effects on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
USDA provides regularly scheduled
consultation sessions as a venue for
collaborative conversations with Tribal
officials or their designees. This rule
was discussed during the consultation
on May 23, 2023. Tribal members
supported this rule and indicated their
belief that lowering the minimum ISP
will increase access to the program.
USDA is unaware of any current Tribal
laws that could be in conflict with the
final rule.
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noted above will be fully captured in
OMB Control Number 0584–0026.
In connection to this final rule, USDA
published a proposed rule, Child
Nutrition Programs: Community
Eligibility Provision-Increasing Options
for Schools, on March 23, 2023, which
provided notice to the public of the
forthcoming changes to CEP. In
addition, a notice for the proposed
rule’s impact on information collection
requirements and their associated
burden was embedded in the proposed
rule. The proposed rule solicited public
comments on the proposed changes to
the existing information collection
requirements that are being finalized via
this final rule. In response to the notice,
FNS did not receive any comments
specific to the estimated number of
respondents or burden hours associated
with the collection of information
requirements addressed in the PRA
section of the proposed rule, yet a few
general comments submitted indicated
that State agencies may have to update
or reprogram systems to accommodate
the proposed minimum ISP.
FNS recognizes that State agencies
have systems in place that may maintain
CEP data, such as ISP data for LEAs
under their jurisdiction. Systems may be
used to assist program administrators to
efficiently meet the collection of
information requirements that are
impacted by this rulemaking. For
example, systems may be used to help
State agencies meet the reporting
requirement to inform LEAs of their CEP
eligibility status, as well as meet the
recordkeeping requirement that requires
State agencies to review ISP
documentation that is submitted by
LEAs (7 CFR 245.9(f)(6) and (f)(4)(ii),
respectively). When estimating the
burden associated with information
collection requirements, FNS takes into
consideration the various methods that
may be used to meet such requirements,
including the use of information
technology. FNS did not change the
estimated burden associated with
meeting CEP information collection
requirements in response to the
comments received about system
updates or reprogramming; however,
FNS expects and acknowledges some
State agencies may experience a onetime cost associated with system
modifications. The estimated cost
associated with such modifications is
included in the One Time Annual Cost
subsection below.
The estimated numbers of
respondents, responses, and burden
hours for the information collection
requirements that were included in the
March 23, 2023, proposed rule are being
revised via this final rule. Revisions are
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not due to public comments received on
the proposed rule; instead, they are
based on more recent data that became
available after publication of the
proposed rule. Using more recent data,
FNS re-evaluated the number of schools
in States that have committed to offering
healthy school meals for all children
that would be eligible to elect CEP in
accordance with the lowered identified
student percentage threshold. FNS also
analyzed a recent publication from the
Food Research and Action Center that
indicated States offering free meals to
all students in SY 2022–2023
experienced significant increases in CEP
uptake and analyzed trends in CEP
participation in recent years. As a result,
FNS has obtained more accurate and
recent data that better reflects the
number of respondents that will comply
with the collection of information
requirements that are impacted by this
final rule. Accordingly, FNS updated
the estimated number of respondents,
responses, and burden hours associated
with the collections of information that
are included in this final rule to reflect
the most recent and accurate data
available.
In addition to updating the estimated
number of respondents, responses, and
burden hours for the information
collection requirements addressed in
this rulemaking with the use of more
recent data, FNS is making a technical
correction to a typographical error that
was identified in the proposed rule’s
PRA section. Specially, the table that
represented the reporting requirements
impacted by this rulemaking and their
associated burden indicated an
estimated 628,673 burden hours were
currently approved under OMB Control
Number 0584–0026. The correct number
of burden hours currently approved
under OMB Control Number 0584–0026
for the reporting requirements impacted
by this rulemaking is approximately
643,824 burden hours. FNS has made
the correction in the reporting table
below by replacing 628,673 burden
hours with 643,824 burden hours for the
number of currently approved burden
hours associated with the reporting
requirements impacted by this
rulemaking.
FNS now estimates that this final rule
will have an estimated 3,454,060
respondents, 12,064,195 responses, and
624,833 burden hours. This is a
decrease of 31,128 respondents, 107,072
responses, and 5,374 burden hours in
comparison to the estimations included
in the proposed rule.
The burden estimates associated with
the collections of information addressed
in this final rule are contingent upon
OMB approval under the PRA. When
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the information collection request
associated with the final rule is
approved, the USDA will publish a
separate notice in the Federal Register
announcing OMB’s approval.
Comments on the information
collection requirements addressed in
this final rule may be submitted.
Comments must be received by October
26, 2023. Send comments to Office of
Information and Regulatory Affairs,
OMB, Attention: Desk Officer for FNS,
Washington, DC 20403, Fax: 202–395–
7285, or email to oira_submission@
omb.eop.gov. Please also send a copy of
your comments to School Meals Policy
Division, Food and Nutrition Service,
1320 Braddock Place, Alexandria, VA
22314. For further information, please
contact Wesley Gaddie at
wesley.gaddie@usda.gov.
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on those who are to respond, including
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
All responses to this notice will be
summarized and included in the request
for OMB approval. All comments will
also become a matter of public record.
Title: Community Eligibility
Provision: Increasing Options for
Schools.
Form Number: None.
OMB Control Number: 0584–NEW.
Expiration Date: Not Yet Determined.
Type of Request: New Collection.
Abstract: This is a new information
collection that revises the existing
information collection request approved
under OMB Control Number 0584–0026.
Below is a summary of the changes in
the final rule and the accompanying
reporting and recordkeeping
requirements that will impact the
burden that program requirements have
on state administering agencies, local
education agencies (LEAs), and
participating households. FNS has
updated the number of respondents,
responses, and burden hours associated
with the collection of information
requirements included in the final rule
since publication of the proposed rule
Child Nutrition Programs: Community
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Eligibility Provision-Increasing Options
for Schools, published on March 23,
2023. Revisions are based on more
recent and accurate data that became
available after the publication of the
proposed rule. In addition, because FNS
received comments on the proposed
rule indicating that State agencies may
experience a one-time cost associated
with system modifications, an estimated
cost for updating and reprogramming
State systems is included in the One
Time Annual Cost subsection below.
Participating in the CEP is a voluntary
decision made by local school districts.
To be eligible for CEP under current
program regulations, an LEA, group of
schools, or school must ensure that at
least 40 percent of enrolled students are
identified students, participate in both
the National School Lunch Program and
the School Breakfast Program, and serve
lunches and breakfasts to all enrolled
students at no charge.
Identified students are certified for
free school meals without submitting a
household application, such as those
directly certified through the
Supplemental Nutrition Assistance
Program (SNAP). This final rule will
expand access to CEP by lowering the
required identified student percentage.
This will provide more schools with an
additional option for offering no-cost
meals to students without requiring
households to submit applications for
free or reduced price meals.
This final rule would amend 7 CFR
245.9(f)(3)(i) to require a LEA, group of
schools, or school to have an identified
student percentage of at least 25
percent, as of April 1 of the school year
prior to participating in CEP. Individual
schools participating in CEP as part of
a group would be permitted to have an
ISP lower than 25 percent, provided that
the group’s aggregate ISP is at least 25
percent.
Reporting
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State Agencies
The changes in this final rule impact
the existing reporting requirement
currently approved under OMB Control
Number 0584–0026 and found at 7 CFR
245.9(f)(6), that requires State agencies
to notify LEAs of their CEP status.
USDA expects that the number of LEAs
that must be notified will increase by
5,131, based on the finalized changes
and more recent and accurate data that
became available after publication of the
proposed rule.
USDA estimates the 54 State agency
respondents will be required to notify
approximately 95 additional LEAs each
year, and that it takes approximately
three minutes (.050 hours) to complete
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this reporting requirement for each
record. The reporting requirement adds
a total of 257 annual burden hours and
5,131 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that an additional 257 hours
and 5,131 responses will be added to
the collection.
LEAs
The changes in this rule will impact
the existing reporting requirements
currently approved under OMB Control
Number 0584–0026 for LEAs.
USDA estimates that 471 additional
LEAs will elect CEP and will be
required to fulfill the reporting
requirement at 7 CFR 245.9(f)(4)(i), that
requires LEAs to submit to the State
agency documentation of an acceptable
identified student percentage of the
LEA/school electing the provision. This
collection of information requirement is
currently approved under OMB Control
Number 0584–0026. This estimation is
being updated from what was published
in the proposed rule on March 23, 2023,
to reflect more recent and accurate data
that became available after publication
of the proposed rule, along with the
other estimations regarding the impact
of PRA requirements in this section.
For this final rule, USDA estimates
that the 471 LEA respondents will be
required to submit identified student
percentage data when electing CEP each
year and that it takes approximately 15
minutes (.25 hours) to complete this
reporting requirement for each record.
The reporting requirement adds an
estimated total of 118 annual burden
hours and 471 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that an additional 118 hours
and 471 responses will be added to the
collection.
USDA expects that as a result of the
changes, more LEAs electing CEP will
be electing CEP for all schools in the
LEA, or district wide. This will result in
a decrease in the number of LEAs
required to process free and reduced
price meal applications and conduct
verification.
USDA estimates 471 fewer LEAs than
currently approved under OMB Control
Number 0584–0026 will be required to
fulfill the requirement at 7 CFR
245.6(c)(6)(i), that requires LEAs to
notify households of approval of meal
benefit applications. USDA estimates
that 14,869 LEA respondents will be
required to notify 219 households of
approval of meal benefit applications
each year and that it takes
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approximately one minute (.02 hours) to
complete this reporting requirement for
each record. The reporting requirement
adds a total of 65,126 annual burden
hours and 3,256,311 responses into the
new information collection request.
Once this new collection is merged into
OMB Control Number 0584–0026,
USDA expects that there will be an
approximate decrease of 2,288 hours
and 114,364 responses.
USDA estimates 471 fewer LEAs than
currently approved under OMB Control
Number 0584–0026 will be required to
fulfill the requirement at 7 CFR
245.6(c)(6)(ii), that requires LEAs to
notify households in writing that
children are eligible for free meals based
on direct certification and that no
application is required. USDA estimates
that 14,869 LEA respondents will be
required to notify 332 households in
writing that children are eligible for free
meals based on direct certification and
that no application is required each year
and that it takes approximately one
minute (.02 hours) to complete this
reporting requirement for each record.
The reporting requirement adds a total
of 98,730 annual burden hours and
4,936,508 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that there will be an
approximate decrease of 3,186 hours
and 159,268 responses.
USDA estimates 471 fewer LEAs than
currently approved under OMB Control
Number 0584–0026 will be required to
fulfill the requirement at 7 CFR
245.6(c)(7), that requires LEAs to
provide written notice to each
household of denied free or reduced
price benefits. USDA estimates that
14,869 LEA respondents will be
required to provide written notice to
approximately 12 households denied
free or reduced price benefits each year
and that it takes approximately one
minute (.02 hours) to complete this
reporting requirement for each record.
The reporting requirement adds a total
of 3,438 annual burden hours and
171,886 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that there will be an
approximate decrease of 110 hours and
5,518 responses.
USDA estimates 471 fewer LEAs than
currently approved under OMB Control
Number 0584–0026 will be required to
fulfill the requirement at 7 CFR
245.6a(f), that requires LEAs to notify
households of selection for verification.
USDA estimates that 14,869 LEA
respondents will be required to notify
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approximately seven households of
selection for verification and that it
takes approximately 15 minutes (.25
hours) to complete this reporting
requirement for each record. The
reporting requirement adds a total of
24,162 annual burden hours and 96,649
responses into the new information
collection request. Once this new
collection is merged into OMB Control
Number 0584–0026, USDA expects that
there will be an approximate decrease of
930 hours and 3,720 responses.
USDA estimates 471 fewer LEAs than
currently approved under OMB Control
Number 0584–0026 will be required to
fulfill the requirement at 7 CFR
245.6a(j), that requires LEAs to provide
households that failed to confirm
eligibility with 10 days’ notice for
receiving a reduction or termination of
free or reduced price meal benefit.
USDA estimates that 14,869 LEA
respondents will be required to provide
approximately three households that
failed to confirm eligibility with 10
days’ notice for receiving a reduction or
termination of free or reduced price
meal benefits and that it takes
approximately six minutes (.1 hours) to
complete this reporting requirement for
each record. The reporting requirement
adds a total of 3,940 annual burden
hours and 39,403 responses into the
new information collection request.
Once this new collection is merged into
OMB Control Number 0584–0026,
USDA expects that there will be an
approximate decrease of 131 hours and
1,304 responses.
USDA estimates that 5,131 more LEAs
than currently approved under OMB
Control Number 0584–0026 will fulfill
the requirement at 7 CFR 245.9(f)(5),
that requires LEAs to submit to the State
agency for publication a list of eligible
and potentially eligible schools and
their eligibility status, unless otherwise
exempted by the State agency. USDA
estimates that 5,131 LEA respondents
will be required to submit to the State
agency for publication a list of eligible
and potentially eligible schools and
their eligibility status each year and that
it takes approximately five minutes (.08
hours) to complete this reporting
requirement for each record. The
reporting requirement adds a total of
410 annual burden hours and 5,131
responses into the new information
collection request. Once this new
collection is merged into OMB Control
Number 0584–0026, USDA expects that
410 hours and 5,131 responses will be
added to the collection.
USDA estimates that 471 more LEAs
than currently approved under OMB
Control Number 0584–0026 will fulfill
the requirement at 7 CFR 245.9(g), that
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requires LEAs to amend free and
reduced policy statements and certify
that schools meet the eligibility criteria
when electing CEP and that it takes
approximately six minutes (.1 hours) to
complete this reporting requirement for
each record. The reporting requirement
adds a total of 47 annual burden hours
and 471 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that an additional 47 hours and
471 responses will be added to the
collection.
Households
Since households attending schools
participating in CEP are not required to
submit applications, USDA estimates
that, with the changes, 108,941 fewer
households than currently approved
under OMB Control Number 0584–0026
will be required to fulfill the
requirement at 245.6(a)(1), that requires
households to complete an application
form for free or reduced price meal
benefits. USDA estimates that 3,439,137
household respondents will be required
to submit applications and that it takes
approximately seven minutes (.110
hours) to complete this reporting
requirement for each record. The
reporting requirement adds a total of
378,305 annual burden hours and
3,439,137 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that there will be an
approximate decrease of 11,984 hours
and 108,941 responses.
Households attending schools
participating in CEP are also not
required to assemble written evidence
for verification of eligibility for free and
reduced price meals and send to LEA.
USDA estimates that 3,082 fewer
households than currently approved
under OMB Control Number 0584–0026
will be required to fulfill the
requirement at § 245.6a (a)(7)(i), that
requires households to assemble written
evidence for verification of eligibility for
free and reduced price meals and send
to the LEA. USDA estimates that 97,287
household respondents will be required
to assemble written evidence for
verification of eligibility for free and
reduced price meals and that it takes
approximately 30 minutes (.5 hours) to
complete this reporting requirement for
each record. The reporting requirement
adds a total of 48,644 annual burden
hours and 97,287 responses into the
new information collection request.
Once this new collection is merged into
OMB Control Number 0584–0026,
USDA expects that there will be an
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approximate decrease of 1,542 hours
and 3,082 responses.
Recordkeeping
State Agencies
The changes in this final rule will
impact the existing recordkeeping
requirement currently approved under
OMB Control Number 0584–0026 and
found at 7 CFR 245.9(f)(4)(ii), that
require State agencies to review and
confirm LEAs’ eligibility to participate
in CEP. USDA expects that State
agencies will need to review an
additional 471 LEAs with schools newly
electing CEP, based on the changes in
this rule and after analyzing more recent
and accurate CEP participation data that
became available after USDA published
the proposed rule. USDA estimates that
54 State Agency respondents will be
required to review and confirm LEAs’
eligibility to participate in Provision 1,
2, or 3 or the Community Eligibility
Provision for approximately 471 LEAs
electing CEP each year and that it takes
approximately five minutes (.08 hours)
to complete this recordkeeping
requirement for each record. The
recordkeeping requirement adds a total
of 38 annual burden hours and 471
responses into the new information
collection request. Once this new
collection is merged into OMB Control
Number 0584–0026, USDA expects that
an additional 38 hours and 471
responses will be added to the
collection.
LEAs
The changes in this final rule will
impact the existing reporting
requirements currently approved under
OMB Control Number 0584–0026 for
LEAs. USDA expects that as a result of
the changes, more LEAs electing CEP
will be electing CEP for all schools in
the LEA, or district wide. This will
result in a decrease in the number of
LEAs required to maintain
documentation substantiating eligibility
determinations. USDA estimates 471
fewer LEAs than currently approved
under OMB Control Number 0584–0026
will be required to fulfill the
requirement at 7 CFR 245.6(e) to
maintain documentation substantiating
eligibility determinations for three years
after the end of the fiscal year. USDA
estimates that 14,869 LEA respondents
will be required to maintain
documentation related to substantiating
eligibility determinations for three years
after the end of the fiscal year and that
it takes approximately 5 minutes (.08
hours) to complete this recordkeeping
requirement for each record. The
recordkeeping requirement adds a total
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of 1,190 annual burden hours and
14,869 responses into the new
information collection request. Once
this new collection is merged into OMB
Control Number 0584–0026, USDA
expects that there will be an
approximate decrease of 37 hours and
471 responses.
USDA expects that as a result of the
changes, 471 more LEAs than currently
approved under OMB Control Number
0584–0026 will elect CEP and be
required to fulfill the recordkeeping
requirement at 7 CFR 245.9(h)(3) that
LEAs maintain documentation related to
the methodology used to calculate the
identified student percentage and
determine eligibility for the CEP. USDA
estimates that 471 LEA respondents will
be required to maintain documentation
related to methodology used to calculate
the identified student percentage and
determine eligibility and that it takes
approximately 55 minutes (.910 hours)
to complete this recordkeeping
requirement for each record. The
recordkeeping requirement adds a total
of 429 annual burden hours and 471
responses into the new information
collection request. Once this new
collection is merged into OMB Control
Number 0584–0026, USDA expects that
an additional 429 hours and 471
responses will be added to the
collection.
USDA does not expect lowering the
threshold to participate in CEP to an ISP
of 25 percent to impact the approved
public notification requirements at 7
CFR 245.9(f)(7). While this rule will
increase the number of schools eligible
for the CEP, the burden for states to
notify LEAs of their community
eligibility status due to the increased
number of eligible schools is already
captured above in the reporting
requirements at 7 CFR 245.9(f)(6).
Making these lists publicly available
will not take any additional time than
is currently approved under OMB
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Control Number 0584–0026.
Accordingly, this requirement is not
addressed in this information collection.
One Time Annual Cost
In recognition that State agencies may
have to update or reprogram systems to
accommodate the proposed minimum
ISP, FNS is adding an estimated onetime, system modification cost, which
will be included in the information
collection request associated with this
final rule. FNS received 2 comments
that State agencies may modify existing
systems in response to this rulemaking.
In addition, FNS met with another State
agency on August 16, 2023, and
discussed how lowering the minimum
ISP would impact that State’s system.
FNS received feedback indicating
updates to State systems could be done
efficiently and in time to allow LEAs the
opportunity to implement CEP at the
lower ISP threshold soon after the final
rule was effective, and encouraged FNS
to allow mid-year election.
Given the wide variation of systems in
place, programming and maintenance
costs across State agencies varies. After
considering feedback and analyzing
different systems States have in place,
FNS is including an estimated one-time
cost of $2,000 per State agency to make
system modifications in response to the
lowered ISP. As a result of the proposals
outlined in this final rule, FNS
estimates that this collection is expected
to have $108,000 in costs related to
system modifications, which will be
added as a one-time, annual cost to the
information collection requirements
associated with the final rule, OMB
Control Number 0584–00XX.
Summary
As a result of the proposals outlined
in this final rule, FNS estimates that this
new information collection will have
3,454,060 respondents, 12,064,195
responses, and 624,833 burden hours.
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The average burden per response and
the annual burden hours are explained
below and summarized in the charts
which follow. Once the information
collection requirement (ICR) for the
final rule is approved and the
requirements and associated burden for
this new information collection are
merged into the existing collection, FNS
estimates that the burden for OMB
Control Number 0584–0026 will
decrease by 384,522 responses and
18,908 burden hours. The collection
will also have a one-time increase of
$108,000 in annual costs related to
system modifications.
Reporting
Respondents (Affected Public):
Individual/Households; and State, Local
and Tribal Government. The respondent
groups identified include households,
State Agencies and LEAs.
Estimated Number of Respondents:
3,454,060.
Estimated Number of Responses per
Respondent: 3.49.
Estimated Total Annual Responses:
12,048,384.
Estimated Time per Response: 0.052
(approximately 3 minutes).
Estimate Total Annual Burden on
Respondents: 623,177 hours.
Recordkeeping
Respondents (Affected Public): State,
Local and Tribal Government. The
respondent groups identified include
State Agencies and LEAs.
Estimated Number of Respondents:
14,923.
Estimated Number of Responses per
Respondent: 1.06.
Estimated Total Annual Responses:
15,811.
Estimated Time per Response: .105
(approximately 6 minutes).
Estimate Total Annual Burden on
Respondents: 1,656 hours.
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Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Rules and Regulations
65794
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places ‘‘25 percent’’ and ‘‘15 percent’’,
respectively.
E-Government Act Compliance
The Department is committed to
complying with the E-Government Act,
to promote the use of the internet and
other information technologies to
provide increased opportunities for
citizen access to Government
information and services, and for other
purposes.
List of Subjects in 7 CFR Part 245
[FR Doc. 2023–20294 Filed 9–25–23; 8:45 am]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
Civil rights, Food assistance
programs, Grant programs—education,
Grant programs—health, Infants and
children, Milk, Reporting and
recordkeeping requirements, School
breakfast and lunch programs.
[Docket No. FAA–2023–1479; Airspace
Docket No. 23–ASO–26]
RIN 2120–AA66
Amendment of Class D and Class E
Airspace; Palm Coast, FL
Accordingly, 7 CFR part 245 is
amended as follows:
AGENCY:
PART 245—DETERMINING
ELIGIBILITY FOR FREE AND
REDUCED PRICE MEALS AND FREE
MILK IN SCHOOLS
SUMMARY:
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
1. The authority citation for 7 CFR
part 245 continues to read as follows:
■
Authority: 42 U.S.C. 1752, 1758, 1759a,
1772, 1773, and 1779.
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Cynthia Long,
Administrator, Food and Nutrition Service.
§ 245.9
[Amended]
2. In § 245.9, in paragraph (f), remove
‘‘40 percent’’ and ‘‘30 percent’’
wherever they appear and add in their
■
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This action amends Class D
and Class E airspace extending upward
from 700 feet above the surface for
Flagler Executive Airport, Palm Coast,
FL. This action will increase the radius,
update the airport’s geographic
coordinates, and amend verbiage in the
Class D description.
DATES: Effective 0901 UTC, November
30, 2023. The Director of the Federal
Register approves this incorporation by
reference action under 1 CFR part 51,
subject to the annual revision of FAA
Order JO 7400.11 and publication of
conforming amendments.
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A copy of the Notice of
Proposed Rulemaking (NPRM), all
comments received, this final rule, and
all background material may be viewed
online at www.regulations.gov using the
FAA Docket number. Electronic
retrieval help and guidelines are
available on the website. It is available
24 hours a day, 365 days a year.
FAA Order JO 7400.11H Airspace
Designations and Reporting Points and
subsequent amendments can be viewed
online at www.faa.gov/air_traffic/
publications/. You may also contact the
Rules and Regulations Group, Office of
Policy, Federal Aviation
Administration, 800 Independence
Avenue SW, Washington DC 20591;
telephone: (202) 267–8783.
FOR FURTHER INFORMATION CONTACT: John
Fornito, Operations Support Group,
Eastern Service Center, Federal Aviation
Administration, 1701 Columbia Avenue,
College Park, GA 30337; telephone:
(404) 305–6364.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
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]]>Agencies
[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Rules and Regulations]
[Pages 65778-65794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20294]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 245
[FNS-2022-0044]
RIN 0584-AE93
Child Nutrition Programs: Community Eligibility Provision--
Increasing Options for Schools
AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Community Eligibility Provision
(CEP) regulations by lowering the minimum identified student percentage
(ISP) from 40 percent to 25 percent. Lowering the minimum ISP will give
States and schools greater flexibility to offer meals to all enrolled
students at no cost when financially viable. As a result of this rule,
more schools are eligible to participate in CEP and experience the
associated benefits, such as increasing students' access to healthy,
no-cost school meals; eliminating unpaid meal charges; reducing stigma;
and streamlining Program administration and meal service operations.
DATES: This rule is effective October 26, 2023.
FOR FURTHER INFORMATION CONTACT: Michelle Frey, Branch Chief, Policy
Design Branch, School Meals Policy Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314,
telephone: 703-305-2590.
SUPPLEMENTARY INFORMATION:
I. Background
The Community Eligibility Provision (CEP) is an option for eligible
schools to offer meals at no cost to all enrolled students without
collecting household applications. Authorized by the Healthy, Hunger-
Free Kids Act of 2010 (HHFKA) and codified in regulations at 7 CFR
245.9(f), CEP is a reimbursement alternative for eligible local
educational agencies (LEAs) and schools participating in both the
National School Lunch Program (NSLP) and School Breakfast Program
(SBP).\1\ CEP eliminates the need for schools to collect household
income applications by sharing eligibility data between specific
Federal assistance programs, which can reduce administrative burden for
both schools and families.
---------------------------------------------------------------------------
\1\ On July 29, 2016, the U.S. Department of Agriculture (USDA)
published the final rule, National School Lunch Program and School
Breakfast Program: Eliminating Applications through Community
Eligibility as Required by the Healthy, Hunger-Free Kids Act of 2010
[81 FR 50194, July 29, 2016], which codified CEP requirements that
were implemented through statute and policy guidance, at Sec.
245.9(f).
---------------------------------------------------------------------------
To be eligible for CEP, an individual school, group of schools, or
LEA must meet or exceed the established, minimum identified student
percentage (ISP) in the school year prior to implementing CEP. The ISP
is the percentage of enrolled students who are certified for free
school meals without submitting a household application, such as those
directly certified through specific Federal benefits programs (e.g.,
the Supplemental Nutrition Assistance Program (SNAP) and the Food
Distribution Program on Indian Reservations (FDPIR)). For CEP, students
who are certified for free meals without a household application are
``identified students'' (42 U.S.C. 1759a(a)(1)(F)(i); 7 CFR
245.9(f)(1)(ii)) \2\ The ISP is calculated by dividing the total number
of identified students by the total number of enrolled students:
---------------------------------------------------------------------------
\2\ Identified students include students living in households
participating in SNAP, Temporary Assistance for Needy Families, and
FDPIR. Identified students also include those who are homeless,
migrant, runaway, in foster care, or enrolled in Head Start. In some
States, students are directly certified through Medicaid direct
certification demonstration projects. Students in States
participating in the Medicaid direct certification demonstration
projects are only included in the ISP if they are certified for free
meals (not reduced price meals).
[GRAPHIC] [TIFF OMITTED] TR26SE23.000
Under current regulations, the minimum ISP is 40 percent;
therefore, to be eligible for CEP, an individual school, group of
schools, or LEA must have an ISP greater than, or equal to, 40 percent
(ISP >=40 percent) as of April 1 of the school year prior to
implementing CEP (7 CFR 245.9(f)(3)(i)).
The ISP determines eligibility to participate in CEP and is also
the basis of Federal reimbursements for meals served to students in CEP
schools. The National School Lunch Act (NSLA) gives the Secretary
discretion to establish a CEP ``multiplier'' between 1.3 and 1.6 that
is used to determine the percentage of meals that CEP schools claim at
the free and paid reimbursement rate levels (42 U.S.C.
1759a(a)(1)(F)(vii)(II)(aa)). To promote CEP financial viability, USDA
codified a multiplier of 1.6 (7 CFR 245.9(f)(4)(vi)). The ISP is
multiplied by 1.6 to calculate the percentage of meals reimbursed at
the Federal free rate. Any remaining meals, up to 100 percent, are
reimbursed at the Federal paid rate.\3\
---------------------------------------------------------------------------
\3\ CEP schools only claim meals at the free and paid
reimbursement rates. CEP schools do not claim reduced price meals.
% Meals reimbursed at Federal free rate = ISP x 1.6
% Meals reimbursed at Federal paid rate = 100-% meals reimbursed at
Federal free rate
CEP requires that LEAs must pay, with non-Federal funds, any costs
of offering free meals to all students that exceed the Federal
assistance provided. If all operating costs are covered by the Federal
assistance provided, then LEAs are not required to contribute non-
Federal funds (7 CFR 245.9(f)(4)(vii)).
On March 23, 2023, USDA published a proposed rule in the Federal
Register (88 FR 17406), seeking to lower the minimum ISP to 25 percent,
and make related, conforming changes to CEP regulatory text at 7 CFR
245.9(f).
[[Page 65779]]
As described in detail in the proposed rule, CEP benefits children,
families, schools, and communities. Schools participating in CEP often
experience an increase in the number of students accessing the SBP and
NSLP, resulting in more children benefiting from the advantages these
Programs offer.\4\ Research demonstrates that access to school meals at
no cost improves students' diet quality and academic performance and
can reduce social stigma and food insecurity.\5\ Researchers have
observed that ``CEP exposure is associated with an almost five percent
decline in households classified as food insecure.'' \6\ LEAs have also
reported that CEP reduces administrative burden and eliminates unpaid
meal debt in schools.\7\ Lastly, CEP improves Program integrity by
simplifying administration and lowering error rates in certifying
students.8 9
---------------------------------------------------------------------------
\4\ USDA's first comprehensive study since CEP became available
nationwide compared the impact of CEP participation in school
districts that elected CEP to similar non-participating school
districts. The study showed about 7% and 12% higher student
participation in NSLP and SBP, respectively, in schools under CEP
compared to eligible but non-participating schools. U.S. Department
of Agriculture. (2022). USDA Community Eligibility Provision
Characteristics Study, School Year 2016-2017. OMB #0584-0612,
expiration 9/30/2019. Available at: https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
\5\ Cohen JFW, Hecht AA, McLoughlin GM, Turner L, Schwartz MB.
Universal School Meals and Associations with Student Participation,
Attendance, Academic Performance, Diet Quality, Food Security, and
Body Mass Index: A Systematic Review. Nutrients. 2021 Mar
11;13(3):911. Diet quality and food security (pp. 6-9); Academic
performance (p. 10). Available at: https://pubmed.ncbi.nlm.nih.gov/33799780/.
\6\ National Bureau of Economics. (2022). The Effect of Free
School Meals on Household Food Purchases: Evidence from the
Community Eligibility Provision. Available at: https://www.nber.org/papers/w29395. ``CEP exposure'' is the probability that a household
has a child enrolled at a CEP school, based on schools' CEP
participation, household zip codes, and school attendance areas.
\7\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17 (p.
43).
\8\ U.S. Department of Agriculture. (2014). Community
Eligibility Provision Evaluation Final Report. Available at: https://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf (p. 127-135).
\9\ Milfort et al. (2021). Third Access, Participation,
Eligibility, and Certification Study. Prepared by Westat, Inc.,
Contract No. AG-3198-K-15-0054. Alexandria, VA: U.S. Department of
Agriculture, Food and Nutrition Service, Office of Policy Support,
Project Officer: Conor McGovern. Available online at: https://fns-prod.azureedge.us/sites/default/files/resource-files/APECIII-Vol1.pdf (p. 8-14 through 9-3).
---------------------------------------------------------------------------
This final rule lowers the minimum ISP from 40 percent to 25
percent and makes conforming changes to ISP-related requirements (i.e.,
grace year eligibility and identification/notification/publication
requirements). Electing CEP is a voluntary decision made by LEAs based
on their unique student populations. Prior to participating in CEP, LEA
decisionmakers should consider student nutrition, educational,
administrative, and financial factors. This rule does not impose any
new requirements on LEAs or schools. Through this final rule an
increased number of LEAs, schools, and groups of schools will be
eligible to offer all students lunches and breakfasts at no-cost when
it is financially viable. This final rule supports State and local
choices to expand the availability of no-cost school meals for all
students through programs supported by State or local funding.
USDA solicited public comments on the proposed change to lower the
minimum ISP to 25 percent. In addition, USDA requested public comments
on the following questions:
(1) To what extent are LEAs that would be newly eligible under this
proposed rule expected to elect CEP?
(2) What sources of non-Federal funds are available to support LEAs
electing CEP at lower ISPs?
(3) In a typical year, how much time do LEAs spend on
administrative duties that may be eliminated by electing CEP (e.g.,
processing applications, managing unpaid meal charges, conducting
verification)? What administrative activities are included in that
estimate?
(4) To what extent are administrative cost savings a factor in
determining whether to elect CEP?
(5) How do State policies related to offering free school meals for
all students influence the likelihood of CEP election among newly
eligible LEAs?
Public comments received in response to the proposed rule helped
inform the development of this final rule.
II. Public Comments and USDA Response
During the 45-day comment period (March 23-May 8, 2023), USDA
received a total of 10,625 comments, including 849 unique submissions
and four form letters representing 8,689 submissions. Of the 10,625
comments, 1,087 were duplicate or non-germane submissions, resulting in
9,538 relevant comments. All comments, except non-germane comments, are
posted online at www.regulations.gov (see docket FNS-2022-0044, Child
Nutrition Programs: Community Eligibility Provision-Increasing Options
for Schools). Relevant comments were submitted by Members of Congress,
State and local government entities and elected officials, school
districts and school staff, advocacy organizations, nongovernmental
organizations, and other stakeholders, including food banks, healthcare
and health insurance organizations and healthcare professionals,
professional and trade associations, the research community, faith-
based organizations, and individual commenters and members of the
public. USDA greatly appreciates the thoughtful comments provided.
These comments were essential to the development of this final rule.
Overall, including the form letters, almost 97 percent of comments
supported the proposed rule (9,220 of 9,538) and less than 1 percent
opposed it (14 of 9,538); the remaining comments were mixed, offered
conditional support, or were neutral, in that they were generally
supportive of lowering the minimum ISP to 25 percent, but also
discussed additional considerations for school meals and school
nutrition departments.
Comments in favor of lowering the minimum ISP to 25 percent cited
benefits to children, families, schools, communities, and Program
operators. Supporters noted that lowering the minimum ISP would
increase student access to school meals and improve children's food
security, health, and academic performance. Many comments also
supported the proposal for its administrative benefits to school
districts and schools.
Comments opposed to lowering the minimum ISP primarily focused on
concerns about school finances and funding to support CEP or argued
that the proposed 25 percent threshold was chosen arbitrarily and could
expand CEP to schools serving communities that do not need assistance.
Comments offering mixed or conditional support generally agreed
with lowering the threshold, but also urged USDA to take additional
measures to support and expand CEP (e.g., increase the CEP multiplier
or make school meals available at no cost to students nationwide). The
following discussion is a detailed summary of public comments by topic.
Minimum ISP
Proposed Change
Under current regulations, the minimum ISP required to elect CEP is
40 percent; therefore, to be eligible for CEP, an LEA, group of
schools, or school must have an ISP greater than, or equal to, 40
percent (ISP >=40 percent) as of April 1 of the school year prior to
implementing CEP (7 CFR 245.9(f)(3)(i)). USDA proposed to amend 7 CFR
[[Page 65780]]
245.9(f)(3)(i) to require an LEA, group of schools, or school to have
an ISP of at least 25 percent, as of April 1 of the prior school year,
to participate in CEP. Individual schools participating in CEP as part
of a group would be permitted to have an ISP lower than 25 percent,
provided that the group's aggregate ISP is at least 25 percent.
Public Comments
USDA received 9,220 comments that were generally supportive of
lowering the minimum ISP threshold to 25 percent. Commenters supporting
the lower threshold included: Members of Congress; State and local
agencies; school districts and school staff; advocacy groups, trade
associations, and individuals. Many commenters reasoned that the
proposed change would expand CEP, allowing more students access to
free, nourishing school meals. Further, commenters highlighted that
expanding CEP could benefit numerous stakeholders by reducing hunger
and food insecurity, improving students' academic performance,
increasing equity, reducing families' financial burdens, and
streamlining school meal operations.
Many commenters who supported the rule discussed the importance of
feeding schoolchildren equitably and supporting families. Numerous
commenters, including advocacy groups, a food bank, trade associations,
and individuals, noted that access to nutritious school meals is
important to ensure educational equity, improve learning outcomes, and
advance children's intellectual and physical development. Some
individual commenters asserted that student hunger has a significant
impact on academic performance and outcomes. A form letter campaign
emphasized that hungry schoolchildren cannot learn effectively, and
that CEP helps to alleviate the negative impact of hunger on learning.
Several commenters, including an advocacy group and individuals,
expressed support for the proposed rule because, for many children,
school meals are the only nutritious meals they have access to each
day. Similarly, an advocacy group commented that CEP helps feed
schoolchildren, while also increasing attendance and improving academic
outcomes. Another advocacy group asserted that, without CEP, thousands
of students would go hungry at school. One advocacy group cited
research which found that universal school meals improved academic
performance, reduced suspension among students, reduced household
spending on groceries, and improved dietary quality at home. Similarly,
some commenters, including a trade association and individuals, stated
that lowering the minimum ISP would decrease children's and families'
food insecurity.
School staff and a few individual commenters said that lowering the
minimum ISP to 25 percent would benefit their school districts because
they are unable to participate in CEP at the 40 percent threshold, but
they know students in their communities experience widespread food
insecurity. A school district reported that 69 percent of their
students receive free and reduced price meals, but only three of 18
schools in the district qualify for CEP (two of which barely meet the
40 percent threshold). Further, commenters, including a school board,
suggested that lowering the minimum ISP would improve communities'
attitudes toward school meals and school nutrition programs.
A couple of commenters, including a State and a local agency, noted
that reducing the minimum ISP increases access and makes school meals
more equitable among rural, Tribal, and underserved communities. Many
commenters discussed the historical disadvantages, particularly food
insecurity, faced by rural and underserved communities. For example, an
advocacy group emphasized that ``Black and Brown communities experience
food insecurity at higher rates'' than their White counterparts due to
systemic racial injustice. Some commenters reasoned that CEP has been
useful in minimizing these disadvantages through access to free meals,
especially among Latino and Black children. Additionally, a few
commenters with first-hand CEP experience, including a school and an
advocacy group, stated that when meals were available at no cost to all
students, significantly more students opted to participate in school
meals and the school culture improved. Notably, a form letter campaign
said that expanding access to CEP is a ``great step forward'' to
improve equity, accessibility, and nutrition in school meals.
Many commenters, including a State agency, an advocacy group, a
professional association, and individuals, stated that CEP helps reduce
the prevalence of unpaid meal debt, and some commenters, including a
school and individual commenters, cited the elimination of unpaid meal
charges and student meal debt as a primary reason they support lowering
the minimum ISP. Many commenters, including a local government, school
districts, a trade association, individuals, and a form letter
campaign, expressed support for decreasing the minimum ISP, as it would
provide ``peace of mind'' to parents and children by eliminating the
cost of school meals.
Commenters also support lowering the minimum ISP because it reduces
administrative burden and gives school districts more options for
operating school meal programs to best serve their communities. Several
commenters, including a State agency and local agency, school districts
and schools, a trade association and an individual, supported lowering
the minimum ISP because it would significantly reduce administrative
burden. A couple of State agencies said that the proposed change would
help their States' small and rural schools, which serve many critical
roles for isolated, rural communities and often struggle with higher
per-meal administrative costs because of their small size. Commenters
also recognized that expanding CEP would help schools and school
nutrition staff operate the SBP and NSLP more efficiently and would
allow them to focus more on local purchasing, farm-to-school
initiatives, and scratch cooking. Additionally, many commenters,
including a local agency, schools and school staff, advocacy groups, a
trade association, and individuals, expressed support for the proposal
because lowering the minimum ISP would give schools greater flexibility
in operational decisions, in addition to providing more enrolled
students with no-cost meals.
While still supportive, commenters discussed how funding to operate
school meal programs via CEP at the proposed 25 percent minimum ISP
would be challenging. Several commenters asserted that the proposed
lower minimum ISP will not be financially viable for many school
districts without a concurrent increase in the CEP multiplier. A few
commenters suggested that to offset the burden of costs, USDA should
allow statewide CEP participation so that CEP administration and any
costs can be shared among school districts within a State and are not
placed on individual school districts.
In addition, several supportive commenters expressed concerns about
the loss of free and reduced price eligibility data--frequently used
for education funding--that occurs in CEP schools when applications are
eliminated. For example, an advocacy group commented that schools that
do not process school meal applications will need to navigate how to
adjust policies that previously relied on household application data
but
[[Page 65781]]
reasoned that this is true at any ISP level. Other commenters
recommended that USDA work with other Federal partners to assess
alternative poverty measures.
Despite overwhelming support for lowering the minimum ISP to 25
percent, approximately 300 commenters, including a State agency,
advocacy groups, and individuals, provided mixed feedback or
conditional support. Many noted that successful implementation of CEP
in schools with lower ISPs requires additional funding. A school staff
commenter expressed concern that the proposed change to CEP would lead
communities and school boards to believe it is financially viable for
districts with a 25 percent ISP to elect CEP. Some commenters suggested
increasing the CEP multiplier, while others thought the rule did not go
far enough, suggesting further lowering the minimum ISP, eliminating
the minimum ISP completely in States where there is identified State
funding to support CEP, and providing universal school meals at no cost
to all students nationwide.
Though most commenters supported lowering the minimum ISP to 25
percent, 14 commenters expressed opposition to the proposed change.
Many commenters opposed to lowering the minimum ISP expressed concern
that expanding CEP might financially burden schools and school
nutrition programs in cases where Federal reimbursements fall short of
Program operating costs. Of these, about half expressed that the
proposed lower minimum ISP would not be financially viable without
increasing the CEP multiplier. Opposing commenters, including a school
district and individual commenters, remarked that the proposed change
would not encourage more schools to implement CEP because of its
economic infeasibility. Similar to commenters with mixed feedback on
the rule, a school district asserted that the CEP multiplier needs to
be increased from 1.6 to at least 2.0 or higher. The district added
that lowering the minimum ISP, without increasing the multiplier, would
only assist schools that have the financial means to help pay the
``nutrition bills.'' An individual commenter expressed concern that the
lower minimum ISP would not simplify determinations for severe need
payments in the SBP or allow more schools to participate in CEP. The
commenter concluded by expressing concern that the 25 percent minimum
ISP was chosen arbitrarily. One commenter expressed concern about
government overreach and suggested that State and local agencies are
better suited to address free meals. Another individual stated that the
proposed rule promotes socialism, adding that social services should be
involved to provide meals while simultaneously assessing students' home
environments. Finally, a school nutrition director stated that
expanding CEP to a student population that does not have an economic
need is not an efficient use of funds, and an advocacy group asserted
that lowering the minimum ISP significantly expands CEP in a way that
is inconsistent with the intent of the Federal meal programs because it
could result in more middle- and upper-income students receiving
taxpayer-funded meals.
Thirty commenters responded to the question, ``to what extent are
LEAs that would be newly eligible under this proposed rule expected to
elect CEP?'' Of these, the majority provided estimates of the number of
schools expected to be newly eligible. Some commenters shared that,
although more schools would be eligible, they would likely not elect
CEP without an increase to the CEP multiplier. Other commenters
responded that newly eligible schools in their States would elect CEP
due to the availability of State funding to cover any costs that exceed
Federal assistance. One State agency did not indicate how many more
schools would participate in CEP, but expressed concern that many newly
eligible schools may not initially understand the financial impacts of
electing CEP at a lower ISP threshold.
Additionally, approximately 15 commenters responded to the
question, ``what sources of non-Federal funds are available to support
LEAs electing CEP at lower ISPs?'' The majority of commenters
responding to this question indicated there is State or local funding
available to help cover costs. A State agency said that non-Federal
sources in their State include angel funds (local or community
donations). Another State reported there are no State funds available
to pay for the cost of meals not covered by Federal assistance.
Finally, an advocacy group emphasized that, for their area, the
availability of State and local funds varies greatly based on school-
level factors, such as enrollment and student participation in school
meal programs.
USDA Response
USDA concurs with commenters who stated that lowering the minimum
ISP is expected to significantly benefit students, families, schools,
and communities. USDA's CEP Characteristics Study found that LEAs
participating in CEP reported multiple perceived benefits, including
increased student participation, decreased financial burden on
families, elimination of unpaid meal debt, reduced administrative
burden, and decreased stigma for students in need.\10\ USDA also
understands that lowering the minimum ISP to 25 percent is expected to
result in more schools being eligible for CEP; yet, without additional
State or local funding, electing CEP at lower ISPs may not be
financially viable for many schools.
---------------------------------------------------------------------------
\10\ U.S. Department of Agriculture. (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
---------------------------------------------------------------------------
Non-CEP LEAs and schools that serve high proportions of low-income
children are expending already-constrained resources to collect and
process school meal applications to ensure low-income students have
access to free or reduced price meals. Lowering the minimum ISP to 25
percent provides an opportunity for more LEAs with high proportions of
low-income students--especially those with non-Federal funds available
to support school meals--to capitalize on CEP's administrative and
operational benefits, while maintaining CEP's intent to provide schools
serving high poverty areas with opportunity to offer healthy, no-cost
school meals to all students. This is particularly applicable to LEAs
and schools in States with healthy school meals for all initiatives; in
these States, students already have access to meals at no cost and now
the lower minimum ISP will allow more schools to experience the
administrative and operational benefits of CEP.
Healthy school meals for all initiatives, supported by State
funding, are gaining momentum across the nation. Currently, eight
States have permanent policies in place, more than 20 States are
actively pursuing healthy school meals for all legislation, and 63
percent of voters nationwide support legislation that would make school
meals permanently available to all
[[Page 65782]]
students at no cost.\11\ These initiatives align with USDA's priority
to tackle food and nutrition insecurity: USDA is leveraging all
resources to ensure consistent and equitable access to healthy, safe,
affordable foods essential to optimal health and well-being.\12\
Expanding schools' access to CEP--and providing students access to a
nourishing breakfast and lunch each school day--is an important action
USDA can take to support those efforts.
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\11\ Food Research and Action Center, Healthy School Meals for
All website. Available at: https://frac.org/healthy-school-meals-for-all.
\12\ U.S. Department of Agriculture, Priorities website.
Available at: https://www.usda.gov/
priorities#:~:text=Tackling%20Food%20and%20Nutrition%20Insecurity,-
At%20USDA%2C%20we.
---------------------------------------------------------------------------
USDA acknowledges that lowering the minimum ISP is not accompanied
by additional funding and that, for the most part, school districts and
schools that are newly eligible under the 25 percent threshold may need
additional non-Federal funds for CEP to be financially viable. However,
USDA supports CEP expansion in States and localities where non-Federal
funding is available to support healthy school meals at no charge for
all students.
As detailed earlier, the CEP multiplier is used to calculate the
percentage of breakfasts and lunches to be claimed and reimbursed at
the Federal free rate at CEP schools. Section 11(a)(1)(F)(vii)(II) of
the NSLA provides the Secretary the option to establish the CEP
multiplier between 1.3 and 1.6. Accordingly, USDA established 1.6 as
the multiplier to be used to determine CEP claiming percentages for an
entire 4-year CEP cycle (7 CFR 245.9(f)(4)(vi)). Increasing the
multiplier to provide more funding to CEP schools (in the form of a
higher free claiming percentage) would require Congressional action;
USDA does not have statutory authority to increase the multiplier any
further. Similarly, USDA does not have the authority to allow a
statewide CEP option. Section 11(a)(1)(F)(x) of the NSLA requires CEP
to be elected at the LEA-level.
Electing CEP is a local decision, not a Federal mandate; as a
result, the financial viability of participating in CEP must be
evaluated based on the unique circumstances of each individual school
district. If the total amount of Federal assistance available does not
fully cover the cost of offering all students meals at no charge, LEAs
must contribute non-Federal funds (7 CFR 245.9(f)(4)(vii)). The use of
non-Federal funds is not required if all operating costs are covered by
the Federal reimbursement and other assistance provided under the NSLA
and the Child Nutrition Act of 1966 (42 U.S.C. 1759a
(a)(1)(F)(ii)(I)(bb)). Additionally, school food authorities (SFAs) may
use excess funds in the non-profit school food service account to
support CEP (7 CFR 210.14(a)).
When deciding whether to elect CEP, eligible schools must consider
their ability to provide meals at no cost and cover their operating
costs with Federal assistance and any other available funds, including
State and/or local funds. USDA has an updated estimator tool to help
LEAs determine if CEP is financially viable, and to help assess LEA
groupings to optimize Federal reimbursements. The estimator tool is
available at the CEP Resource Center (https://www.fns.usda.gov/cn/community-eligibility-provision-resource-center).
With respect to concerns regarding the loss of free and reduced
price eligibility data, USDA understands that many entities have
historically relied on data from free and reduced price school meal
applications as a school- or school district-based poverty measure and/
or means of allocating education funding. Since CEP's inception in
2011, USDA has worked extensively to ensure that State agencies and
eligible LEAs are aware of alternative means of assessing socioeconomic
status. USDA has coordinated meetings and webinars to share best
practices related to assessing socioeconomic status in the absence of
household applications.\13\ In addition, USDA worked with the National
Forum on Education Statistics to develop a guide on alternative
measures of socioeconomic status for use in education data systems.\14\
USDA continues to work with the U.S. Department of Education's National
Center for Education Statistics, on an ongoing basis, to discuss and
identify school-based poverty measures that have potential to serve as
alternatives to free and reduced price application data. USDA
encourages stakeholders at the State and local levels to pursue similar
conversations to ensure that electing CEP, and the loss of application
data, does not result in reduced education funding or benefits to CEP
school districts, schools, or students.
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\13\ Visit the CEP Resource Center for more information:
Community Eligibility Provision Resource Center [bond] Food and
Nutrition Service (usda.gov).
\14\ National Forum on Education Statistics (2015). Forum Guide
to Alternative Measures of Socioeconomic Status in Education Data
Systems (NFES 2015-158). U.S. Department of Education. Washington,
DC: National Center for Education Statistics. Available at: https://nces.ed.gov/pubs2015/2015158.pdf.
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USDA has discretion to establish a minimum ISP that is lower than
40 percent (42 U.S.C. 1759a(a)(1)(F)(viii)(II)). In addition to public
comments, to determine an appropriate threshold, USDA considered
operational factors, including characteristics of LEAs currently
eligible and near eligible to elect CEP, and analyzed the composition
of the ISP and the proportion of free and reduced price students at
varying ISP levels. Based on these analyses, a minimum ISP of 25
percent results in at least 40 percent of meals reimbursed at the free
rate (25 percent x 1.6 = 40 percent). Schools where at least 40 percent
of the lunches served to students in the second preceding school year
were free or reduced price qualify as severe need schools and receive
an additional reimbursement (42 U.S.C. 1773(d)(1)(A); 7 CFR
220.9(d)(2)). Aligning the CEP threshold with the severe need payments
threshold provides consistency because all CEP-eligible schools will
qualify for severe need reimbursements. In addition, CEP's positive
impact on school breakfast participation further supports the SBP.\15\
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\15\ USDA's CEP Characteristics Study found that SBP
participation increased by about 12 percent in LEAs operating CEP
(compared to similar, eligible LEAs that did not elect CEP). U.S.
Department of Agriculture (2022). USDA Community Eligibility
Provision Characteristics Study, School Year 2016-2017. OMB #0584-
0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
---------------------------------------------------------------------------
Given the broad stakeholder support for lowering the minimum ISP to
25 percent--and the potential benefit to children, families, schools,
and communities--USDA is adopting the lower, 25 percent minimum ISP in
this final rule. Accordingly, this final rule amends the CEP provisions
at 7 CFR 245.9(f)(3)(i) to reflect a 25 percent minimum ISP.
Conforming Amendments to Grace Year and Identification/Notification
Requirements
Proposed Change
To conform with the proposed 25 percent ISP threshold in 7 CFR
245.9(f)(3), USDA proposed to amend 7 CFR 245.9(f)(4)(ix), the
regulations governing grace years, to allow an LEA, group of schools,
or school in the fourth year of the 4-year CEP cycle with an ISP of
less than 25 percent but equal to or greater than 15 percent (as of
April 1 of the fourth year of a CEP cycle) to continue using CEP for an
additional ``fifth year'' or a ``grace year'' beyond the 4-year CEP
cycle. In addition, USDA
[[Page 65783]]
proposed to amend 7 CFR 245.9(f)(5) and (6), the regulations governing
LEA and State agency identification and notification requirements, and
7 CFR 245.9(f)(7)(i) and (ii), the regulations governing State agency
public notification requirements. USDA only proposed changes to the
numbers (i.e., 40 percent to 25 percent, 30 percent to 15 percent)
consistent with the proposed lower threshold and statutory requirements
(42 U.S.C. 1759a(a)(1)(F)(v)(I), (a)(1)(F)(x)); no additional
substantive changes were proposed.
Public Comments
USDA received eight comments pertaining to these conforming changes
and all comments were supportive. A State agency noted that the grace
year flexibility would allow schools an extra year to attempt to meet
the 25 percent ISP threshold to remain on CEP. In addition, an advocacy
group suggested that USDA should require States to use the actual
counts of identified students as opposed to proxy data to ensure more
accurate lists and notifications.
USDA Response
USDA appreciates one commenter's suggestion to change requirements
related to the data that States use for notification purposes. However,
this rulemaking only changes the numbers (e.g., 40 percent to 25
percent, 30 percent to 15 percent) consistent with the lower ISP
threshold and statutory requirements (42 U.S.C. 1759a(a)(1)(F)(v)(I),
(a)(1)(F)(x)); no additional substantive changes are made by this
rulemaking. Therefore, under this final rule, USDA will continue to
allow States to use proxy data for CEP notification purposes.
Consistent with current requirements, actual counts of identified
students must be used for CEP elections.
Given the support for these changes and the statutory requirement
that these provisions conform to the final threshold, this final rule
modifies the following regulations to align with the 25 percent ISP
threshold in 7 CFR 245.9(f)(3):
7 CFR 245.9(f)(4)(ix), the regulations governing the use
of CEP for a grace year;
7 CFR 245.9(f)(5) and (6), the regulations governing LEA
and State agency identification and notification requirements; and
7 CFR 245.9(f)(7)(i) and (ii), the regulations governing
State agency public notification requirements.
Comments on Other CEP-Related Items
Healthy School Meals for All
Public Comments
Approximately 330 commenters discussed healthy school meals for all
initiatives; many of those commenters, including a professional
association and individuals, expressed general support for providing
all students with no-cost, healthy school meals. Several commenters,
including a trade association and a form letter campaign, stated that
the proposed rule is an improvement on existing CEP requirements and
represents a positive step toward universal, no-cost meals for all
students. A form letter campaign applauded the proposed CEP expansion
and its potential to enable more schools and districts across the
country to provide school meals at no charge to all students, closing a
gap in healthy food access for many children and families, especially
those in need. However, some commenters, including school staff,
advocacy groups, and individuals, noted that a nationwide program
making school meals available at no charge for all students would be
preferable over lowering the minimum ISP.
Several commenters highlighted that the proposed change to CEP
would support the growing number of States choosing to invest funding
to provide no-cost school meals to all children. A few commenters,
including a school district and individuals, commented that lowering
the minimum ISP to 25 percent would give States and schools greater
flexibility to choose to invest non-Federal funds to offer no-cost
meals to all enrolled students. An individual representing a non-profit
organization stated that the proposed change creates an ``easier entry
point'' for States to adopt their own universal, no-cost meals policies
in a more balanced and sustainable way. The commenter continued,
declaring that a lower minimum ISP would support the growing number of
States that are choosing to invest their own funds to provide free
school meals to all students, through maximizing LEA use of CEP in
combination with State-specific initiatives. Conversely, one State
agency shared that, in their State, State funding is not available to
encourage lower ISP schools to adopt CEP, and concerns exist regarding
whether some schools have sufficient financial support to be able to
implement CEP at lower ISPs.
Approximately 15 commenters responded to the question, ``how do
State policies related to offering free school meals for all students
influence the likelihood of CEP election among newly eligible LEAs?'' A
couple of commenters stated that the proposed rule provides more
options to LEAs and State agencies in those States that incentivize CEP
adoption through State legislation. Some commenters, including State
agencies and advocacy groups, asserted that LEAs in States with
existing healthy school meals for all legislation, or significant non-
Federal funding sources, will see an increase in CEP participation
because they do not have to reconcile significant budgetary gaps. One
State agency commented that the State's policies neither require nor
discourage districts to participate in CEP, and another State agency
noted that LEAs will need to assess how current application-based
reimbursements compare to CEP's direct certification-based
reimbursements because eliminating applications may affect school
districts and States differently, depending on their policies.
Additionally, one State agency asserted that without State funding to
support free school meal programs, newly eligible LEAs would not be
likely to participate in CEP because it would not be financially
viable.
USDA Response
USDA anticipates that LEAs most likely to elect CEP at the 25
percent ISP are those in States that have committed to offering healthy
school meals for all through State funding. Numerous public comments
submitted by States support this assumption. The Colorado Department of
Education confirmed that, to opt-in to the State's Healthy School Meals
for All Program and receive additional State funding, qualifying
schools are required to elect CEP. In its comment, the Minnesota
Department of Education noted that, while the State will not require
school districts to participate in CEP under the recently passed
Minnesota Free School Meals Program, it anticipates ``schools will be
interested in adopting CEP at a lower threshold to have the option to
streamline meal counting and claiming.'' A recent publication from the
Food Research and Action Center has also found that States offering
free meals to all students in school year (SY) 2022-23 experienced
significant increases in CEP uptake.\16\
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\16\ Food Research & Action Center. Community Eligibility: The
Key to Hunger-Free Schools, School Year 2022-23 (May 2023).
Available at: https://frac.org/wp-content/uploads/cep-report-2023.pdf.
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USDA estimates that as many as 2,090 schools in 471 LEAs across
California, Colorado, Maine, Minnesota, and New Mexico, all of which
have implemented
[[Page 65784]]
healthy school meals for all policies for SY 2023-24, would elect to
participate in CEP under the 25 percent ISP.\17\ Estimates are based on
the School Food Authority Verification Collection Report, found at:
https://www.fns.usda.gov/form/school-food-authority-sfa-verification-collection-report. Specifically, the analysis used 2023 data related to
student enrollment, direct certification, free and reduced price
claiming percentages, and CEP participation status.\18\
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\17\ USDA only included States with permanent legislation at the
time of the analysis.
\18\ Data from FNS-742: School Food Authority Verification
Collection Report, available at: https://www.fns.usda.gov/form/school-food-authority-sfa-verification-collection-report.
---------------------------------------------------------------------------
A recent report on CEP uptake showed that the number of students in
schools participating in CEP has increased annually since 2014, with
the greatest increases occurring more recently.\19\ In SY 2021-22,
there were 16.2 million students in CEP schools; in SY 2022-23, there
were 19.9 million. California was the greatest contributor, adding more
than 1.3 million students to the total enrolled in CEP schools. The
percentage of eligible schools adopting CEP also increased from 75.3
percent to 99.5 percent in California during this time. In all but one
of the seven States offering free meals to all students during SY 2022-
23 through State funding (California, Connecticut, Maine, Nevada, New
Mexico, Vermont), the percentage of eligible schools participating in
CEP was 92 percent or higher. The percentage of participating eligible
CEP schools in Massachusetts, the remaining State, was 87 percent. High
CEP participation rates in States providing free school meals to all
students is consistent with the feedback submitted in public comments
and supports USDA's assumption that school districts in these States
are most likely to benefit from, and take advantage of, the 25 percent
ISP.
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\19\ Community Eligibility: The Key to Hunger-Free Schools
(School Year 2022-2023). May 2023. Food Research and Action Center.
Available at: https://frac.org/cep-report-2023.
---------------------------------------------------------------------------
USDA is fully committed to ensuring all children have access to
healthy school meals. Lowering the minimum ISP provides States and LEAs
greater flexibility to combine CEP with State initiatives to simplify
Program administration, reduce burden, and offer meals to all students
at no charge.
Costs & Cost Savings
Public Comments
LEAs assume significant responsibility to administer school meal
programs and, in response to the proposed rule, respondents submitted
several comments and questions related to costs and cost savings. One
advocacy group stated that reducing the minimum ISP--even to zero--will
not appreciably drive up Federal costs because reimbursements are tied
to the ISP, and that schools or districts with lower ISPs will receive
lower Federal reimbursements and will have to cover remaining costs
with non-Federal funds. Another advocacy group commented that the lower
minimum ISP would result in additional government spending annually.
Numerous commenters stated that, in general, CEP helps reduce
administrative costs. Many commenters, including Members of Congress, a
State agency, a local government, school districts, advocacy groups,
and form letter campaigns, said that CEP helps reduce administrative
and paperwork costs, and streamlines Program operations for LEAs and
schools. Some commenters, including advocacy groups and a form letter
campaign, added that administrative cost savings allow school officials
to focus resources on core SBP and NSLP mission-oriented tasks, such as
planning and preparing healthy meals for students. Similarly, some
commenters, including State and local agencies, advocacy groups, and a
trade association, remarked that the reduced administrative burden from
CEP helps schools focus on investing in operations and meal program
improvements, such as scratch cooking or farm-to-school programs. One
staff member of a public charter school noted that if the school were
eligible for CEP, the school would save a minimum of $50,000 per year
in administrative staff costs. Commenters remarked that CEP reduces
costs for schools because, as a result of increased student
participation, it leverages economies of scale in food purchasing and
preparation. An advocacy group and a trade association concluded that
administrative savings resulting from CEP help schools combat rising
food prices, focus on serving quality meals, and invest in school
nutrition programs. Furthermore, a State explained that by reducing
administrative costs, CEP helps ensure a greater share of each meal
reimbursement is spent directly on food and food preparation. Some
commenters, including an advocacy group and a trade association,
asserted that lowering the minimum ISP would reduce State costs
associated with expanding school meal access and would help sustain
recently enacted healthy school meals for all programs, if State fiscal
conditions change.
An advocacy group suggested that schools with higher ISPs can adopt
CEP without relying on non-Federal funds because administrative savings
often offset the loss of revenue from student payments but recognized
that may not be the case for districts with lower ISPs. Another
advocacy group stated that expansion of CEP will pay for itself by
reducing administrative burden and increasing Program efficiency. A
school district warned that access to CEP may not reduce paperwork as
much as expected because paperwork will still be required for other
Federal programs.
Six commenters responded to the question: ``In a typical year, how
much time do LEAs spend on administrative duties that may be eliminated
by electing CEP (e.g., processing applications, managing unpaid meal
charges, conducting verification)? What administrative activities are
included in that estimate?'' Two State agencies commented generally
that CEP would reduce LEAs' time spent on processing applications and
verification activities. In addition, two State agencies acknowledged
that the time spent on applications varies by school district size,
with one estimating the number of hours would vary from as few as 12
hours per school year to almost 50 percent of a full-time equivalent.
One school district reported that hundreds of hours of work are spent
each year processing free and reduced price applications, including
dealing with unpaid meal debt and other activities. Similarly, another
school district estimated that 490 hours per year are dedicated to the
application process. One school district reported that, after adopting
CEP at several (but not all) schools, time spent on processing
applications was cut ``nearly in half.''
Six commenters responded to the question, ``to what extent are
administrative cost savings a factor in determining whether to elect
CEP?'' Some of the commenters stated that administrative cost savings
were a determining factor, while others depended more on cafeteria
operations or the capacity to serve no-cost meals as a primary factor
in deciding to elect CEP.
USDA Response
USDA analyzed administrative data and relied on information from
public comments and stakeholder engagement, to examine the economic
impacts (i.e., costs) of lowering the minimum ISP to 25 percent.
Historically, CEP has not been a significant driver of Federal costs.
CEP became available nationwide in SY 2014-15; during that school year
and in subsequent school years, the number of schools electing CEP--
and, as a result, students in CEP schools--
[[Page 65785]]
grew significantly. However, since the CEP multiplier is designed to,
on average, mirror the free and reduced price percentage, claiming
meals merely shifted from free and reduced price-based claiming to ISP-
based claiming with no significant impact on Federal costs.
The number of students in CEP schools more than doubled, from 6.5
million in SY 2014-2015 to 13.7 million in SY 2018-2019. During this
same time period, the annual growth rate in school meal earnings (i.e.,
costs) was about 3 percent.\20\ Most of the annual growth was due to an
annual inflation rate of 2.2 to 3 percent during this period. USDA
anticipates that CEP uptake as a result of the 25 percent minimum ISP
will be significantly smaller than typical, historical year-over-year
CEP increases due to the financial considerations LEAs must weigh when
deciding to elect CEP at lower ISPs. Therefore, based on these
analyses, USDA does not agree with the commenter that indicated there
would be large increases in Federal Government spending from this CEP
expansion.
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\20\ USDA limited its analysis to fiscal year (FY) 2015-FY 2019
due to the impacts of nationwide child nutrition waivers, which were
provided to ensure access to meals through the Child Nutrition
Programs as communities responded to the COVID-19 pandemic. Cash
payments for NSLP and SBP were $15.6 billion in FY 2015 and $17.4
billion in FY 2019.
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The decision to elect CEP is the result of a cost-benefit analysis
specific to eligible LEAs. State initiatives, such as healthy school
meals for all, make it easier for LEAs to elect CEP due to the
additional State funding. Administrative cost savings associated with
CEP are a significant factor that may make CEP economically viable for
many LEAs, as indicated in several comments.
USDA estimates administrative cost savings of $103,869, based on a
total annual reduction of 5,679 burden hours and a $18.29 median hourly
rate for Office and Administrative Support Occupations in Educational
Services.\21\ Actual decreases in administrative burden will vary by
LEA based on factors such as student enrollment, current percentage of
students eligible for free and reduced price meals, local wage rates,
and current mode of operation before electing CEP (e.g., Provision 2 or
3). Though some commenters indicated that systems may need to be
updated or reprogrammed to accommodate the new minimum ISP for CEP,
USDA expects that these costs would be limited to one-time, system
modification costs.
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\21\ For a full discussion of the impacts of this final rule on
information collection requirements, please refer to the Paperwork
Reduction Act section.
---------------------------------------------------------------------------
USDA understands that newly eligible school districts and schools
may have questions about implementing CEP at a lower ISP. USDA plans to
issue guidance related to the lower minimum ISP to help LEAs and
schools make informed decisions about electing CEP. USDA, in
collaboration with Federal and State agency partners, stands ready to
provide support, customer service, and technical assistance to school
districts interested in electing CEP at all eligibility levels.
Procedural Matters
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been determined to be not significant
and was not reviewed by the Office of Management and Budget (OMB) in
conformance with Executive Order 12866.
Regulatory Impact Analysis
This final rule has been designated as not significant by the
Office of Management and Budget. Therefore, no Regulatory Impact
Analysis is required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this final rule would not have a significant impact
on a substantial number of small entities. The provisions of this final
rule are intended to reflect the operational needs of LEAs of all
sizes. No specific additional burdens are placed on small LEAs seeking
to operate CEP. USDA's 2022 CEP Characteristics Study found that 36
percent of LEAs participating in CEP in SY 2016-17 were single-school
LEAs; 32 percent of participating LEAs were in rural areas; and 83
percent served fewer than 5,000 students.\22\ For smaller LEAs, the
decision to elect CEP may be a simpler process and/or involve gaining
approvals from fewer governing bodies. Additionally, CEP is an optional
provision, and there is no requirement for LEAs to participate.
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\22\ U.S. Department of Agriculture (2022). USDA Community
Eligibility Provision Characteristics Study, School Year 2016-2017.
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
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Currently, many small LEAs participate in CEP; in SY 2016-17, 1,939
of the 4,263 school districts (45 percent) electing CEP had enrollments
of 999 or less.\23\
---------------------------------------------------------------------------
\23\ Ibid.
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Unfunded Mandates Reform Act
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA)
established requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and Tribal governments, and
the private sector. Under section 202 of UMRA, USDA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``Federal mandates'' that may result in
expenditures to State, local, or Tribal governments in the aggregate,
or to the private sector, of $146 million or more (when adjusted for
inflation; gross domestic product (GDP) deflator source: Table 1.1.9 at
https://www.bea.gov/iTable) in any one year. When such a statement is
needed for a rule, section 205 of UMRA generally requires USDA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, more cost-effective, or least burdensome
alternative that achieves the objectives of the rule.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of URMA) for State, local and Tribal
governments, or the private sector, of $146 million or more in any one
year. Therefore, this final rule is not subject to the requirements of
sections 202 and 205 of UMRA.
Executive Order 12372
The NSLP and SBP are assigned Assistance Listing Numbers--NSLP
(10.555) and SBP (10.553)--and are subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials (see 2 CFR chapter IV).\24\ Since the child nutrition
programs are State-administered, USDA's FNS Regional Offices have
formal and informal discussions with
[[Page 65786]]
State and local officials, including representatives of Indian Tribal
Organizations, on an ongoing basis regarding program requirements and
operations. This provides USDA with the opportunity to receive regular
input from program administrators and contributes to the development of
feasible program requirements.
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\24\ Assistance listings are detailed public descriptions of
Federal programs that provide grants, loans, scholarships,
insurance, and other types of assistance awards. More information is
available at: https://sam.gov/content/home.
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Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under section (6)(b)(2)(B) of Executive Order 13132.
The Department has determined that this final rule does not have
federalism implications. Electing CEP is a local decision, not a
Federal mandate, and lowering the minimum ISP from 40 percent to 25
percent does not limit State or local policymaking discretion.
Furthermore, this final rule does not impose substantial or direct
compliance costs on State and local governments. Therefore, under
section 6(b) of the Executive order, a Federalism summary impact
statement is not required.
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final rule is intended to have preemptive
effect with respect to any State or local laws, regulations, or
policies which conflict with its provisions or which would otherwise
impede its full implementation. However, USDA does not expect
significant inconsistencies between this final rule and existing State
or local regulations regarding the provision of school food service
operations under CEP. This final rule would permit schools to elect CEP
if their ISP is greater than or equal to 25 percent. Per statutory
requirements outlined in the NSLA, State agencies operating the Federal
school meal programs may not bar an eligible LEA from CEP
participation. Additionally, States may not set an eligibility
threshold lower than an ISP of 25 percent for participation in CEP.
This final rule is not intended to have retroactive effect. Prior to
any judicial challenge to the provisions of this final rule or the
application of its provisions, all applicable administrative procedures
must be exhausted.
Civil Rights Impact Analysis
USDA has reviewed the final rule, in accordance with Departmental
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify and
address any major civil rights impacts the final rule might have on
participants on the basis of age, race, color, national origin, sex,
and disability. The FNS Civil Rights Division finds that the current
mitigation and outreach strategies outlined in the regulations and this
Civil Rights Impact Analysis (CRIA) provide ample consideration to
participants' ability to participate in the NSLP and SBP. The
promulgation of this final rule will expand access to no-cost meals for
all enrolled students at participating CEP schools by lowering the
minimum participation threshold. As previously outlined, the final rule
is likely to impact the growing number of minority students and
families attending participating schools that face a greater risk of
food insecurity and health disparities by providing sustained
nutritious food and reducing families' paperwork burdens. The changes
implemented by this final rule are likely to impact participating LEAs
and SFAs by providing greater flexibility to offer no-cost meals to
students, which would further support eliminating unpaid meal debt,
minimizing stigma, streamlining meal service operations, and reducing
paperwork for school nutrition staff.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. USDA provides regularly
scheduled consultation sessions as a venue for collaborative
conversations with Tribal officials or their designees. This rule was
discussed during the consultation on May 23, 2023. Tribal members
supported this rule and indicated their belief that lowering the
minimum ISP will increase access to the program. USDA is unaware of any
current Tribal laws that could be in conflict with the final rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chap. 35; 5
CFR part 1320) requires that the Office of Management and Budget (OMB)
approve all collection of information requirements by a Federal agency
before they can be implemented. Respondents are not required to respond
to any collection of information unless it displays a current, valid
OMB Control Number. This rulemaking expands access to the Community
Eligibility Provision (CEP) by lowering the minimum identified student
percentage (ISP) participation threshold from 40 percent to 25 percent,
which would give States and schools greater flexibility to choose to
invest non-Federal funds to offer no-cost meals to all enrolled
students. As a result, more students, families, and schools will have
an opportunity to experience the benefits of CEP, including access to
meals at no cost, eliminating unpaid meal charges, minimizing stigma,
reducing paperwork for school nutrition staff and families, and
streamlining meal service operations.
In accordance with the PRA, this final rule would revise existing
information collection requirements, which are subject to review and
approval by the Office of Management and Budget. These existing
information collection requirements are currently approved under OMB
Control Number 0584-0026, 7 CFR Part 245--Determining Eligibility for
Free & Reduced Price Meals and Free Milk in Schools, which expired on
July 31, 2023 (a renewal of OMB Control Number 0584-0026 has been
submitted to OMB for review). Revisions to the currently approved
information collection requirements will result in a decrease in burden
on State and local program operators, as well as participating
households. To ensure that the review of this final rule does not
interfere with the renewal of OMB Control Number 0584-0026, FNS is
requesting a new OMB Control Number for the existing information
requirements that are impacted by this final rule. Therefore, the
provisions outlined in this rule will initially be shown as increases
to the information collection inventory. After OMB has approved the
information collection requirements submitted in conjunction with the
final rule and after the renewal of OMB Control Number 0584-0026 is
completed, FNS will merge these requirements and their burden into OMB
Control Number 0584-0026. When the two information collection requests
are merged, the decrease in burden
[[Page 65787]]
noted above will be fully captured in OMB Control Number 0584-0026.
In connection to this final rule, USDA published a proposed rule,
Child Nutrition Programs: Community Eligibility Provision-Increasing
Options for Schools, on March 23, 2023, which provided notice to the
public of the forthcoming changes to CEP. In addition, a notice for the
proposed rule's impact on information collection requirements and their
associated burden was embedded in the proposed rule. The proposed rule
solicited public comments on the proposed changes to the existing
information collection requirements that are being finalized via this
final rule. In response to the notice, FNS did not receive any comments
specific to the estimated number of respondents or burden hours
associated with the collection of information requirements addressed in
the PRA section of the proposed rule, yet a few general comments
submitted indicated that State agencies may have to update or reprogram
systems to accommodate the proposed minimum ISP.
FNS recognizes that State agencies have systems in place that may
maintain CEP data, such as ISP data for LEAs under their jurisdiction.
Systems may be used to assist program administrators to efficiently
meet the collection of information requirements that are impacted by
this rulemaking. For example, systems may be used to help State
agencies meet the reporting requirement to inform LEAs of their CEP
eligibility status, as well as meet the recordkeeping requirement that
requires State agencies to review ISP documentation that is submitted
by LEAs (7 CFR 245.9(f)(6) and (f)(4)(ii), respectively). When
estimating the burden associated with information collection
requirements, FNS takes into consideration the various methods that may
be used to meet such requirements, including the use of information
technology. FNS did not change the estimated burden associated with
meeting CEP information collection requirements in response to the
comments received about system updates or reprogramming; however, FNS
expects and acknowledges some State agencies may experience a one-time
cost associated with system modifications. The estimated cost
associated with such modifications is included in the One Time Annual
Cost subsection below.
The estimated numbers of respondents, responses, and burden hours
for the information collection requirements that were included in the
March 23, 2023, proposed rule are being revised via this final rule.
Revisions are not due to public comments received on the proposed rule;
instead, they are based on more recent data that became available after
publication of the proposed rule. Using more recent data, FNS re-
evaluated the number of schools in States that have committed to
offering healthy school meals for all children that would be eligible
to elect CEP in accordance with the lowered identified student
percentage threshold. FNS also analyzed a recent publication from the
Food Research and Action Center that indicated States offering free
meals to all students in SY 2022-2023 experienced significant increases
in CEP uptake and analyzed trends in CEP participation in recent years.
As a result, FNS has obtained more accurate and recent data that better
reflects the number of respondents that will comply with the collection
of information requirements that are impacted by this final rule.
Accordingly, FNS updated the estimated number of respondents,
responses, and burden hours associated with the collections of
information that are included in this final rule to reflect the most
recent and accurate data available.
In addition to updating the estimated number of respondents,
responses, and burden hours for the information collection requirements
addressed in this rulemaking with the use of more recent data, FNS is
making a technical correction to a typographical error that was
identified in the proposed rule's PRA section. Specially, the table
that represented the reporting requirements impacted by this rulemaking
and their associated burden indicated an estimated 628,673 burden hours
were currently approved under OMB Control Number 0584-0026. The correct
number of burden hours currently approved under OMB Control Number
0584-0026 for the reporting requirements impacted by this rulemaking is
approximately 643,824 burden hours. FNS has made the correction in the
reporting table below by replacing 628,673 burden hours with 643,824
burden hours for the number of currently approved burden hours
associated with the reporting requirements impacted by this rulemaking.
FNS now estimates that this final rule will have an estimated
3,454,060 respondents, 12,064,195 responses, and 624,833 burden hours.
This is a decrease of 31,128 respondents, 107,072 responses, and 5,374
burden hours in comparison to the estimations included in the proposed
rule.
The burden estimates associated with the collections of information
addressed in this final rule are contingent upon OMB approval under the
PRA. When the information collection request associated with the final
rule is approved, the USDA will publish a separate notice in the
Federal Register announcing OMB's approval.
Comments on the information collection requirements addressed in
this final rule may be submitted. Comments must be received by October
26, 2023. Send comments to Office of Information and Regulatory
Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC 20403,
Fax: 202-395-7285, or email to [email protected]. Please also
send a copy of your comments to School Meals Policy Division, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314. For
further information, please contact Wesley Gaddie at
usda.gov">wesley.gaddie@usda.gov.
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on those who
are to respond, including use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology. All responses to this notice will be
summarized and included in the request for OMB approval. All comments
will also become a matter of public record.
Title: Community Eligibility Provision: Increasing Options for
Schools.
Form Number: None.
OMB Control Number: 0584-NEW.
Expiration Date: Not Yet Determined.
Type of Request: New Collection.
Abstract: This is a new information collection that revises the
existing information collection request approved under OMB Control
Number 0584-0026. Below is a summary of the changes in the final rule
and the accompanying reporting and recordkeeping requirements that will
impact the burden that program requirements have on state administering
agencies, local education agencies (LEAs), and participating
households. FNS has updated the number of respondents, responses, and
burden hours associated with the collection of information requirements
included in the final rule since publication of the proposed rule Child
Nutrition Programs: Community
[[Page 65788]]
Eligibility Provision-Increasing Options for Schools, published on
March 23, 2023. Revisions are based on more recent and accurate data
that became available after the publication of the proposed rule. In
addition, because FNS received comments on the proposed rule indicating
that State agencies may experience a one-time cost associated with
system modifications, an estimated cost for updating and reprogramming
State systems is included in the One Time Annual Cost subsection below.
Participating in the CEP is a voluntary decision made by local
school districts. To be eligible for CEP under current program
regulations, an LEA, group of schools, or school must ensure that at
least 40 percent of enrolled students are identified students,
participate in both the National School Lunch Program and the School
Breakfast Program, and serve lunches and breakfasts to all enrolled
students at no charge.
Identified students are certified for free school meals without
submitting a household application, such as those directly certified
through the Supplemental Nutrition Assistance Program (SNAP). This
final rule will expand access to CEP by lowering the required
identified student percentage. This will provide more schools with an
additional option for offering no-cost meals to students without
requiring households to submit applications for free or reduced price
meals.
This final rule would amend 7 CFR 245.9(f)(3)(i) to require a LEA,
group of schools, or school to have an identified student percentage of
at least 25 percent, as of April 1 of the school year prior to
participating in CEP. Individual schools participating in CEP as part
of a group would be permitted to have an ISP lower than 25 percent,
provided that the group's aggregate ISP is at least 25 percent.
Reporting
State Agencies
The changes in this final rule impact the existing reporting
requirement currently approved under OMB Control Number 0584-0026 and
found at 7 CFR 245.9(f)(6), that requires State agencies to notify LEAs
of their CEP status. USDA expects that the number of LEAs that must be
notified will increase by 5,131, based on the finalized changes and
more recent and accurate data that became available after publication
of the proposed rule.
USDA estimates the 54 State agency respondents will be required to
notify approximately 95 additional LEAs each year, and that it takes
approximately three minutes (.050 hours) to complete this reporting
requirement for each record. The reporting requirement adds a total of
257 annual burden hours and 5,131 responses into the new information
collection request. Once this new collection is merged into OMB Control
Number 0584-0026, USDA expects that an additional 257 hours and 5,131
responses will be added to the collection.
LEAs
The changes in this rule will impact the existing reporting
requirements currently approved under OMB Control Number 0584-0026 for
LEAs.
USDA estimates that 471 additional LEAs will elect CEP and will be
required to fulfill the reporting requirement at 7 CFR 245.9(f)(4)(i),
that requires LEAs to submit to the State agency documentation of an
acceptable identified student percentage of the LEA/school electing the
provision. This collection of information requirement is currently
approved under OMB Control Number 0584-0026. This estimation is being
updated from what was published in the proposed rule on March 23, 2023,
to reflect more recent and accurate data that became available after
publication of the proposed rule, along with the other estimations
regarding the impact of PRA requirements in this section.
For this final rule, USDA estimates that the 471 LEA respondents
will be required to submit identified student percentage data when
electing CEP each year and that it takes approximately 15 minutes (.25
hours) to complete this reporting requirement for each record. The
reporting requirement adds an estimated total of 118 annual burden
hours and 471 responses into the new information collection request.
Once this new collection is merged into OMB Control Number 0584-0026,
USDA expects that an additional 118 hours and 471 responses will be
added to the collection.
USDA expects that as a result of the changes, more LEAs electing
CEP will be electing CEP for all schools in the LEA, or district wide.
This will result in a decrease in the number of LEAs required to
process free and reduced price meal applications and conduct
verification.
USDA estimates 471 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6(c)(6)(i), that requires LEAs to notify households of
approval of meal benefit applications. USDA estimates that 14,869 LEA
respondents will be required to notify 219 households of approval of
meal benefit applications each year and that it takes approximately one
minute (.02 hours) to complete this reporting requirement for each
record. The reporting requirement adds a total of 65,126 annual burden
hours and 3,256,311 responses into the new information collection
request. Once this new collection is merged into OMB Control Number
0584-0026, USDA expects that there will be an approximate decrease of
2,288 hours and 114,364 responses.
USDA estimates 471 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6(c)(6)(ii), that requires LEAs to notify households in
writing that children are eligible for free meals based on direct
certification and that no application is required. USDA estimates that
14,869 LEA respondents will be required to notify 332 households in
writing that children are eligible for free meals based on direct
certification and that no application is required each year and that it
takes approximately one minute (.02 hours) to complete this reporting
requirement for each record. The reporting requirement adds a total of
98,730 annual burden hours and 4,936,508 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 3,186 hours and 159,268 responses.
USDA estimates 471 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6(c)(7), that requires LEAs to provide written notice to each
household of denied free or reduced price benefits. USDA estimates that
14,869 LEA respondents will be required to provide written notice to
approximately 12 households denied free or reduced price benefits each
year and that it takes approximately one minute (.02 hours) to complete
this reporting requirement for each record. The reporting requirement
adds a total of 3,438 annual burden hours and 171,886 responses into
the new information collection request. Once this new collection is
merged into OMB Control Number 0584-0026, USDA expects that there will
be an approximate decrease of 110 hours and 5,518 responses.
USDA estimates 471 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6a(f), that requires LEAs to notify households of selection
for verification. USDA estimates that 14,869 LEA respondents will be
required to notify
[[Page 65789]]
approximately seven households of selection for verification and that
it takes approximately 15 minutes (.25 hours) to complete this
reporting requirement for each record. The reporting requirement adds a
total of 24,162 annual burden hours and 96,649 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 930 hours and 3,720 responses.
USDA estimates 471 fewer LEAs than currently approved under OMB
Control Number 0584-0026 will be required to fulfill the requirement at
7 CFR 245.6a(j), that requires LEAs to provide households that failed
to confirm eligibility with 10 days' notice for receiving a reduction
or termination of free or reduced price meal benefit. USDA estimates
that 14,869 LEA respondents will be required to provide approximately
three households that failed to confirm eligibility with 10 days'
notice for receiving a reduction or termination of free or reduced
price meal benefits and that it takes approximately six minutes (.1
hours) to complete this reporting requirement for each record. The
reporting requirement adds a total of 3,940 annual burden hours and
39,403 responses into the new information collection request. Once this
new collection is merged into OMB Control Number 0584-0026, USDA
expects that there will be an approximate decrease of 131 hours and
1,304 responses.
USDA estimates that 5,131 more LEAs than currently approved under
OMB Control Number 0584-0026 will fulfill the requirement at 7 CFR
245.9(f)(5), that requires LEAs to submit to the State agency for
publication a list of eligible and potentially eligible schools and
their eligibility status, unless otherwise exempted by the State
agency. USDA estimates that 5,131 LEA respondents will be required to
submit to the State agency for publication a list of eligible and
potentially eligible schools and their eligibility status each year and
that it takes approximately five minutes (.08 hours) to complete this
reporting requirement for each record. The reporting requirement adds a
total of 410 annual burden hours and 5,131 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that 410 hours and 5,131
responses will be added to the collection.
USDA estimates that 471 more LEAs than currently approved under OMB
Control Number 0584-0026 will fulfill the requirement at 7 CFR
245.9(g), that requires LEAs to amend free and reduced policy
statements and certify that schools meet the eligibility criteria when
electing CEP and that it takes approximately six minutes (.1 hours) to
complete this reporting requirement for each record. The reporting
requirement adds a total of 47 annual burden hours and 471 responses
into the new information collection request. Once this new collection
is merged into OMB Control Number 0584-0026, USDA expects that an
additional 47 hours and 471 responses will be added to the collection.
Households
Since households attending schools participating in CEP are not
required to submit applications, USDA estimates that, with the changes,
108,941 fewer households than currently approved under OMB Control
Number 0584-0026 will be required to fulfill the requirement at
245.6(a)(1), that requires households to complete an application form
for free or reduced price meal benefits. USDA estimates that 3,439,137
household respondents will be required to submit applications and that
it takes approximately seven minutes (.110 hours) to complete this
reporting requirement for each record. The reporting requirement adds a
total of 378,305 annual burden hours and 3,439,137 responses into the
new information collection request. Once this new collection is merged
into OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 11,984 hours and 108,941 responses.
Households attending schools participating in CEP are also not
required to assemble written evidence for verification of eligibility
for free and reduced price meals and send to LEA. USDA estimates that
3,082 fewer households than currently approved under OMB Control Number
0584-0026 will be required to fulfill the requirement at Sec. 245.6a
(a)(7)(i), that requires households to assemble written evidence for
verification of eligibility for free and reduced price meals and send
to the LEA. USDA estimates that 97,287 household respondents will be
required to assemble written evidence for verification of eligibility
for free and reduced price meals and that it takes approximately 30
minutes (.5 hours) to complete this reporting requirement for each
record. The reporting requirement adds a total of 48,644 annual burden
hours and 97,287 responses into the new information collection request.
Once this new collection is merged into OMB Control Number 0584-0026,
USDA expects that there will be an approximate decrease of 1,542 hours
and 3,082 responses.
Recordkeeping
State Agencies
The changes in this final rule will impact the existing
recordkeeping requirement currently approved under OMB Control Number
0584-0026 and found at 7 CFR 245.9(f)(4)(ii), that require State
agencies to review and confirm LEAs' eligibility to participate in CEP.
USDA expects that State agencies will need to review an additional 471
LEAs with schools newly electing CEP, based on the changes in this rule
and after analyzing more recent and accurate CEP participation data
that became available after USDA published the proposed rule. USDA
estimates that 54 State Agency respondents will be required to review
and confirm LEAs' eligibility to participate in Provision 1, 2, or 3 or
the Community Eligibility Provision for approximately 471 LEAs electing
CEP each year and that it takes approximately five minutes (.08 hours)
to complete this recordkeeping requirement for each record. The
recordkeeping requirement adds a total of 38 annual burden hours and
471 responses into the new information collection request. Once this
new collection is merged into OMB Control Number 0584-0026, USDA
expects that an additional 38 hours and 471 responses will be added to
the collection.
LEAs
The changes in this final rule will impact the existing reporting
requirements currently approved under OMB Control Number 0584-0026 for
LEAs. USDA expects that as a result of the changes, more LEAs electing
CEP will be electing CEP for all schools in the LEA, or district wide.
This will result in a decrease in the number of LEAs required to
maintain documentation substantiating eligibility determinations. USDA
estimates 471 fewer LEAs than currently approved under OMB Control
Number 0584-0026 will be required to fulfill the requirement at 7 CFR
245.6(e) to maintain documentation substantiating eligibility
determinations for three years after the end of the fiscal year. USDA
estimates that 14,869 LEA respondents will be required to maintain
documentation related to substantiating eligibility determinations for
three years after the end of the fiscal year and that it takes
approximately 5 minutes (.08 hours) to complete this recordkeeping
requirement for each record. The recordkeeping requirement adds a total
[[Page 65790]]
of 1,190 annual burden hours and 14,869 responses into the new
information collection request. Once this new collection is merged into
OMB Control Number 0584-0026, USDA expects that there will be an
approximate decrease of 37 hours and 471 responses.
USDA expects that as a result of the changes, 471 more LEAs than
currently approved under OMB Control Number 0584-0026 will elect CEP
and be required to fulfill the recordkeeping requirement at 7 CFR
245.9(h)(3) that LEAs maintain documentation related to the methodology
used to calculate the identified student percentage and determine
eligibility for the CEP. USDA estimates that 471 LEA respondents will
be required to maintain documentation related to methodology used to
calculate the identified student percentage and determine eligibility
and that it takes approximately 55 minutes (.910 hours) to complete
this recordkeeping requirement for each record. The recordkeeping
requirement adds a total of 429 annual burden hours and 471 responses
into the new information collection request. Once this new collection
is merged into OMB Control Number 0584-0026, USDA expects that an
additional 429 hours and 471 responses will be added to the collection.
USDA does not expect lowering the threshold to participate in CEP
to an ISP of 25 percent to impact the approved public notification
requirements at 7 CFR 245.9(f)(7). While this rule will increase the
number of schools eligible for the CEP, the burden for states to notify
LEAs of their community eligibility status due to the increased number
of eligible schools is already captured above in the reporting
requirements at 7 CFR 245.9(f)(6). Making these lists publicly
available will not take any additional time than is currently approved
under OMB Control Number 0584-0026. Accordingly, this requirement is
not addressed in this information collection.
One Time Annual Cost
In recognition that State agencies may have to update or reprogram
systems to accommodate the proposed minimum ISP, FNS is adding an
estimated one-time, system modification cost, which will be included in
the information collection request associated with this final rule. FNS
received 2 comments that State agencies may modify existing systems in
response to this rulemaking. In addition, FNS met with another State
agency on August 16, 2023, and discussed how lowering the minimum ISP
would impact that State's system. FNS received feedback indicating
updates to State systems could be done efficiently and in time to allow
LEAs the opportunity to implement CEP at the lower ISP threshold soon
after the final rule was effective, and encouraged FNS to allow mid-
year election.
Given the wide variation of systems in place, programming and
maintenance costs across State agencies varies. After considering
feedback and analyzing different systems States have in place, FNS is
including an estimated one-time cost of $2,000 per State agency to make
system modifications in response to the lowered ISP. As a result of the
proposals outlined in this final rule, FNS estimates that this
collection is expected to have $108,000 in costs related to system
modifications, which will be added as a one-time, annual cost to the
information collection requirements associated with the final rule, OMB
Control Number 0584-00XX.
Summary
As a result of the proposals outlined in this final rule, FNS
estimates that this new information collection will have 3,454,060
respondents, 12,064,195 responses, and 624,833 burden hours. The
average burden per response and the annual burden hours are explained
below and summarized in the charts which follow. Once the information
collection requirement (ICR) for the final rule is approved and the
requirements and associated burden for this new information collection
are merged into the existing collection, FNS estimates that the burden
for OMB Control Number 0584-0026 will decrease by 384,522 responses and
18,908 burden hours. The collection will also have a one-time increase
of $108,000 in annual costs related to system modifications.
Reporting
Respondents (Affected Public): Individual/Households; and State,
Local and Tribal Government. The respondent groups identified include
households, State Agencies and LEAs.
Estimated Number of Respondents: 3,454,060.
Estimated Number of Responses per Respondent: 3.49.
Estimated Total Annual Responses: 12,048,384.
Estimated Time per Response: 0.052 (approximately 3 minutes).
Estimate Total Annual Burden on Respondents: 623,177 hours.
Recordkeeping
Respondents (Affected Public): State, Local and Tribal Government.
The respondent groups identified include State Agencies and LEAs.
Estimated Number of Respondents: 14,923.
Estimated Number of Responses per Respondent: 1.06.
Estimated Total Annual Responses: 15,811.
Estimated Time per Response: .105 (approximately 6 minutes).
Estimate Total Annual Burden on Respondents: 1,656 hours.
BILLING CODE 3410-30-P
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BILLING CODE 3410-30-C
E-Government Act Compliance
The Department is committed to complying with the E-Government Act,
to promote the use of the internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.
List of Subjects in 7 CFR Part 245
Civil rights, Food assistance programs, Grant programs--education,
Grant programs--health, Infants and children, Milk, Reporting and
recordkeeping requirements, School breakfast and lunch programs.
Accordingly, 7 CFR part 245 is amended as follows:
PART 245--DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS
AND FREE MILK IN SCHOOLS
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1. The authority citation for 7 CFR part 245 continues to read as
follows:
Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.
Sec. 245.9 [Amended]
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2. In Sec. 245.9, in paragraph (f), remove ``40 percent'' and ``30
percent'' wherever they appear and add in their places ``25 percent''
and ``15 percent'', respectively.
Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023-20294 Filed 9-25-23; 8:45 am]
BILLING CODE 3410-30-P
