Establishing the Summer EBT Program and Rural Non-Congregate Option in the Summer Meal Programs, 90230-90402 [2023-28488]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 88, Number 249 (Friday, December 29, 2023)]
[Rules and Regulations]
[Pages 90230-90402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28488]



[[Page 90229]]

Vol. 88

Friday,

No. 249

December 29, 2023

Part II





Department of Agriculture





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





Food and Nutrition Service





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





7 CFR Parts 210, 220, 225, et al.





Establishing the Summer EBT Program and Rural Non-Congregate Option in 
the Summer Meal Programs; Interim Final Rule

Federal Register / Vol. 88 , No. 249 / Friday, December 29, 2023 / 
Rules and Regulations

[[Page 90230]]


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

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 220, 225, and 292

[FNS-2023-0029]
RIN 0584-AE96


Establishing the Summer EBT Program and Rural Non-Congregate 
Option in the Summer Meal Programs

AGENCY: Food and Nutrition Service (FNS), Department of Agriculture 
(USDA).

ACTION: Interim final rule.

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

SUMMARY: The Consolidated Appropriations Act, 2023 requires the 
Secretary of Agriculture to make available an option to States to 
provide summer meals for non-congregate meal service in rural areas 
with no congregate meal service and to establish a permanent summer 
electronic benefits transfer for children program (Summer EBT) for the 
purpose of ensuring continued access to food when school is not in 
session for the summer. This interim final rule amends the Summer Food 
Service Program (SFSP) and the National School Lunch Program's Seamless 
Summer Option (SSO) regulations to codify the flexibility for rural 
program operators to provide non-congregate meal service in the SFSP 
and SSO, collectively referred to as the summer meal programs. This 
rule also establishes regulations and codifies the Summer EBT Program 
in the Code of Federal Regulations.

DATES: 
    Effective date: This rule is effective December 29, 2023.
    Comment date: To be considered, written comments on this interim 
final rule must be received on or before April 29, 2024.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested 
persons to submit written comments on this interim final rule. Comments 
may be submitted in writing by one of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send comments to Community Meals Policy Division, 
USDA Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 
22314.
     All written comments submitted in response to this interim 
final rule will be included in the record and will be made available to 
the public. Please be advised that the substance of the comments and 
the identity of the individuals or entities submitting the comments 
will be subject to public disclosure. USDA will make the written 
comments publicly available on the internet via https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: J. Kevin Maskornick, Division 
Director, Community Meals Policy Division, USDA Food and Nutrition 
Service, 1320 Braddock Place, Alexandria, VA 22314, telephone: 703-305-
2537.

SUPPLEMENTARY INFORMATION: 
I. Background
    a. USDA's Vision for Complementary Summer Nutrition Programs
    b. Non-Congregate Meal Service
    c. Summer EBT
II. Discussion of the Interim Final Rule--SFSP and SSO Non-
Congregate Option
    a. Subpart A--Definitions
    i. Site, Congregate Meal Service, and Non-Congregate Meal 
Service
    ii. Rural
    iii. Conditional Non-Congregate Site
    iv. New Site
    v. Site Supervisor and Operating Costs
    vi. Good Standing
    b. Subpart B--State Agencies Responsibilities
    i. Department Notification
    ii. Program Management and Administration Plan
    iii. Priorities and Outreach Mandate
    iv. Application Requirements--Content of Sponsor Applications 
and Site Information Sheets
    v. Approval of Sites and Determining No Congregate Meal Service
    vi. Duration of Rural Designation
    vii. Clarifications to Existing Requirements: Free Meal Policy 
Statement, State-Sponsor Agreement, and Corrective Action Procedures
    c. Subpart C--Requirements for Sponsor Participation
    i. Sponsor Eligibility
    ii. Clarifications to Existing Requirements: General 
Requirements at 7 CFR 225.14(c)
    d. Subpart D--Responsibilities of Sponsors
    i. Identification and Determination of Eligible Children
    ii. Meal Ordering and Second Meals
    iii. Requirements Specific to Sponsors That Operate Conditional 
Non-Congregate Sites
    1. Certification To Collect Information on Participant 
Eligibility
    2. Notification to the Community
    e. Subpart E--Non-Congregate Meal Service
    i. Non-Congregate Meal Service Requirements
    ii. Non-Congregate Meal Service Options
    1. Multi-Day Meal Issuance
    2. Parent or Guardian Meal Pick-Up
    3. Bulk Meal Items
    iii. Offer Versus Serve
    iv. Clarifications to Existing Meal Service Requirements--Meal 
Service Times and Offsite Consumption of Foods
    f. Subpart F--Monitoring
    i. State Agency Responsibilities
    1. Pre-Approval Visits
    2. Sponsor and Site Reviews
    ii. Sponsor Responsibilities
    1. Training
    2. Site Reviews
    g. Subpart G--Miscellaneous
    i. Collection of Summer Meal Site Location Data
    ii. Reimbursements
    iii. SSO Non-Congregate Provisions
    iv. Annual Update To Approved Rural Data Sources
    h. Subpart H--Technical Amendments
    i. Subpart I--Severability
III. Discussion of the Interim Final Rule--Summer EBT
    a. Subpart A--General
    i. General Purpose and Scope
    ii. Definitions
    1. Existing Definitions
    2. Modified Definitions
    3. New Definitions
    iii. Administration
    1. Delegation of Responsibilities
    2. Authority To Waive Statute and Regulations
    b. Subpart B--Eligibility Standards and Criteria
    i. General Purpose and Scope
    ii. Eligibility
    iii. Period To Establish Eligibility
    c. Subpart C--Requirements of Summer EBT Agencies
    i. Plan for Operations and Management
    ii. Coordination Between State-Administered and ITO-Administered 
Summer EBT Programs
    iii. Advance Planning Document (APD) Processes
    iv. Enrolling Eligible Children
    1. Streamlined Certification
    2. Application Requirements
    3. Verification Requirements
    4. Notification of Eligibility, Denial, Appeal Rights, and the 
Ability To Opt-Out
    d. Subpart D--Issuance and Use of Program Benefits
    i. General Standards
    1. Benefit Issuance
    2. Dual Participation
    3. Benefit Amount
    4. Participant Support
    5. Expungement
    ii. Issuance and Adjustment Requirements Specific to States, 
Including Territories That Administer SNAP
    iii. Retailer Integrity Requirements Specific to States, 
Including Territories That Administer SNAP
    iv. Requirements Specific to Territories That Administer 
Nutrition Assistance Programs (NAP) Programs
    v. Requirements Specific to ITOs Administering Summer EBT
    e. Subpart E--General Administrative Requirements
    i. Payments to Summer EBT Agencies and Use of Administrative 
Program Funds
    1. Benefit Funds
    2. State Administrative Funds
    ii. Methods of Payment
    iii. Standards for Financial Management Systems
    iv. Performance Criteria
    v. Records and Reports
    vi. Audits and Management Control Evaluations

[[Page 90231]]

    1. Audits
    2. Management Control Evaluations
    vii. Investigations
    viii. Hearing Procedures for Families and Summer EBT Agencies
    ix. Claims
    x. Procurement Standards
    1. General
    2. Contractual Responsibilities
    3. Procedures
    xi. Miscellaneous Administrative Provisions
    1. Civil Rights
    2. Program Evaluations
    3. General Responsibilities
    xii. Information Collection/Recordkeeping--OMB Assigned Control 
Numbers
    f. Subpart F--Severability
IV. Coordinated Services Plan
V. Procedural Matters

I. Background

    Summer is frequently the most challenging time of the year for 
children at risk of food insecurity when they no longer have access to 
daily school meals. The Summer Food Service Program (SFSP), authorized 
under section 13 of the Richard B. Russell National School Lunch Act 
(NSLA), 42 U.S.C. 1761, has been the primary source of nutritional 
support for vulnerable children during the summer since its formal 
inception in 1975. The purpose of the SFSP is to provide nutritious 
meals to children in low-income areas when schools are not in session 
during the summer months, as well as during long school breaks in 
communities with year-round school calendars. Schools can also offer 
meals through the Seamless Summer Option (SSO) of the National School 
Lunch Program (NSLP), which allows school food authorities to provide 
meals to children during the summer months, school breaks, and 
unanticipated school closures using the procedures of the school lunch 
and breakfast programs. The SFSP and SSO are collectively referred to 
as USDA summer meal programs. Through the summer meal programs, program 
operators provide meals and snacks to children at meal sites in their 
communities; these meals are served at no cost to children and were 
historically required to be consumed in a congregate setting on the 
meal site premises.
    Among the USDA Child Nutrition Programs (CNPs), the summer meal 
programs are unique in many ways, including the seasonal nature of 
their operations, the diversity of organizations that operate the 
programs, and the range of sites at which meals are offered. Many sites 
offer summer programming in addition to meals. Meals served as part of 
the summer meal programs are served at a wide variety of sites, 
including schools, recreation centers, parks, camps, and places of 
worship. In July 2022, the summer meal programs served an average of 
4.1 million children daily at more than 36,000 sites nationwide.
    Although the summer meal programs are an important source of 
nutrition for many children, program access remains inconsistent or out 
of reach for some communities and families that cannot reliably access 
summer meals. Children who may have difficulty accessing summer meals 
include those:
     living in rural areas who would have to travel long 
distances to receive a meal,
     living in communities without summer meal sites,
     living in areas with limited safe and reliable 
transportation options, and in families whose schedules do not allow 
them to travel to a site daily.
    USDA, State administering agencies, program operators, and other 
nutrition security champions have worked hard to expand the reach of 
summer meal programs over the years. Despite these efforts, only 1 in 6 
children \1\ who eat free or reduced price school meals participate in 
the summer meal programs in a typical year, leaving a large gap between 
children in need of summer meals and those who receive them. This 
ongoing summer nutrition gap indicates that the nutritional needs of 
children throughout the U.S. during the summer months cannot be met 
with a one-size-fits-all approach.
---------------------------------------------------------------------------

    \1\ Calculated from 2022 FNS administrative data.
---------------------------------------------------------------------------

    In December 2022, Congress took action to address the summer 
nutrition gap by providing new tools to serve low-income children 
during the summer months. On December 29, 2022, President Biden signed 
the Consolidated Appropriations Act, 2023 (the Act) (Pub. L. 117-328), 
which amended section 13 of the NSLA to allow children in rural areas 
to take their meals off-site beginning in 2023, and established a 
permanent, nationwide Summer Electronic Benefits Transfer for Children 
Program (Summer EBT) beginning in 2024. Regulations to amend the summer 
meal programs and establish Summer EBT are being promulgated through 
this interim final rule (IFR), as required by the Act.\2\
---------------------------------------------------------------------------

    \2\ 42 U.S.C. 1761(a)(13)(F) (``Not later than 1 year after 
December 29, 2022, the Secretary shall promulgate regulations (which 
shall include interim final regulations) to carry out this section. 
. . .'').
---------------------------------------------------------------------------

    As mentioned above and pursuant to the requirements of the NSLA, 
which authorizes the summer meal programs, summer meal program rules 
previously required that children remain at a meal service site while 
they consumed their meal or snack. This approach to program 
implementation, known as congregate meal service, has many benefits 
including providing the opportunity for children to socialize and 
engage in supervised activities offered at the site. However, as 
previously noted, some communities lack the resources or infrastructure 
to operate meal sites and supervise a meal service, and some families 
face significant barriers traveling to a site for each meal. The Act 
addresses these challenges by providing flexibility for sites in rural 
areas to provide a non-congregate meal service, which means allowing 
children to take meals off-site, for example, to their homes.
    The Act also authorized a new permanent method for offering 
additional summer nutrition assistance for children. The new Summer EBT 
program will provide benefits on EBT cards so that families can 
purchase food for their children. Together, these changes will 
revolutionize how our nation supports the nutritional needs of children 
during the summer months, when school is not in session.
    These two alternatives to connecting children to nutrition during 
the summer may be new as permanent options, but both have been tested 
extensively in recent years. Non-congregate meal service in the summer 
meal programs has been tested through demonstration projects, program 
waivers during the COVID-19 pandemic, and operational guidance in 
summer 2023; Summer EBT has been piloted through demonstration projects 
since 2011 and the Pandemic EBT program offered in response to COVID-19 
was similar to Summer EBT in many ways.

A. USDA's Vision for Complementary Summer Nutrition Programs

    USDA's goal across all summer nutrition programs is simple: to 
connect children with nutritious food during the summer months. While 
traditional congregate summer meal service remains a vital tool for 
providing low-income children with nutritious meals at no cost, USDA 
recognizes that not all children who would benefit from summer 
nutrition assistance are currently being reached through existing 
Programs. Due to numerous barriers to access that have already been 
highlighted, including time, distance, and transportation, many 
children who are eligible for free and reduced price school meals are 
not well served by traditional congregate summer meal sites. In 
particular, these challenges have been historically difficult to 
overcome in rural areas. USDA's goal is

[[Page 90232]]

to leverage the provisions codified through this IFR, working 
aggressively to close access gaps and ensure that children receive 
critical nutrition assistance during the summer months.
    The Consolidated Appropriations Act, 2023, as implemented by this 
rulemaking, expands the reach of USDA's summer nutrition programs by 
establishing three distinct and essential pillars of summer nutrition 
assistance that will work in tandem and in a complementary fashion. In 
addition to the traditional congregate summer meal option provided 
through the SFSP and the SSO, State agencies and Program operators can 
now utilize two new methods of providing children with summer nutrition 
assistance. Non-congregate meal service will address critical access 
challenges in rural areas by allowing SFSP and SSO Program operators to 
provide meals available for pick up or delivery that children can eat 
at the time and place that is convenient for them. Summer EBT is a 
nationwide, permanently authorized program that provides EBT benefits 
to eligible children that can be used to buy groceries. Taken together, 
these three pathways for providing summer nutrition assistance will 
help to better support rural, suburban, and urban communities alike.
    The complementary nature of these nutrition assistance options is 
the foundation of their great potential to benefit children across the 
nation. They are intended to be used simultaneously for the purposes of 
delivering a more complete summer nutrition safety net. To illustrate, 
SFSP and SSO meal sites have provided nutritious summer meals, as well 
as recreational, educational, and other enrichment opportunities to 
generations of children. However, in rural areas, where there may be a 
lack of transportation, sites, funds, and staff to support traditional 
congregate meal service, non-congregate meal service can be used to 
help provide children in these areas with equitable access to 
nutritious food. Significantly, the provisions established by the Act 
and implemented under this rulemaking also allow for program operators 
to use the non-congregate option to complement congregate meals at the 
times when congregate meal service is not offered; for example, a rural 
site serving congregate meals during the week may also offer 
``wraparound'' service, providing take-home meals for the weekend. The 
Summer EBT Program's addition of EBT benefits for children introduces a 
new layer of nutrition assistance that is flexible and allows families 
to supplement summer meals with foods of their choice that are 
available anytime, including when meal sites are not open. The 
combination of these three approaches for providing nutrition during 
the summer months will help to ensure both equitable and more 
comprehensive access for children, and USDA looks forward to continued 
partnership with States, Tribes, and local stakeholders to use all the 
tools that are now available to meet their communities' needs.

B. Non-Congregate Meal Service

Demonstration Projects
    The Act instructed USDA to incorporate best practices and lessons 
learned from demonstration projects carried out under section 749(g) of 
the Agriculture, Rural Development, Food and Administration, and 
Related Agencies Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 
2132), which provided $85 million to USDA beginning in 2010 to initiate 
and implement the Summer Food for Children demonstration projects.\3\ 
One demonstration project was the Enhanced Summer Food Service Program 
(eSFSP), which tested changes to the existing structure and delivery 
mechanism of SFSP for the purpose of determining effects on program 
participation. The eSFSP included the Meal Delivery demonstration which 
offered breakfast and lunch delivery to homes of eligible children in 
rural areas, as well as the Food Backpack demonstration which provided 
weekend and holiday meals to SFSP participants for consumption when 
SFSP sites were not open. In 2013, the demonstration project for Non-
Congregate Feeding for Outdoor Summer Feeding Sites Experiencing Excess 
Heat was first implemented. Under this demonstration project, SFSP and 
SSO sponsors who were operating approved outdoor meal sites without 
temperature-controlled alternative sites could operate as non-
congregate sites on days when the area was experiencing excessive heat. 
In addition to excessive heat, USDA approved four States to participate 
in the demonstration due to smoke and air-quality concerns in summer 
2019. In more recent years, USDA implemented Meals-to-You (MTY) under 
the demonstration authority. MTY was developed in response to 
stakeholder feedback about the challenges and difficulties of serving 
summer meals in sparsely populated communities and remote areas. 
Through MTY, food boxes were mailed directly to families of children 
who were eligible for free or reduced price school meals. Each eligible 
child received a weekly box, which contained five breakfast meals, five 
snacks, and five lunch/supper meals.
---------------------------------------------------------------------------

    \3\ Information and supporting materials on each of the Summer 
Food for Children demonstration projects are available at: https://www.fns.usda.gov/ops/summer-food-children-demonstrations.
---------------------------------------------------------------------------

    Historically, non-congregate meals were operated on a small scale 
through the above mentioned demonstration projects. However, during the 
COVID-19 public health emergency (PHE), non-congregate meals became 
more widely available as an important part of USDA's response to the 
pandemic. In March 2020, Federal, State, and local level efforts to 
reduce the spread of COVID-19 resulted in the abrupt closure of schools 
across the country, disrupting access to school meals for millions of 
children. In response, State agencies and program operators requested 
individual waivers under the authority of section 12(l) of the NSLA and 
implemented program flexibilities, such as the flexibility to allow 
non-congregate meal service through SFSP and SSO. To better address the 
urgent need for resources and operational flexibilities required to 
serve children throughout the pandemic, Congress provided USDA with 
temporary authority to waive statute and regulations on a nationwide 
basis for Child Nutrition Programs through the Families First 
Coronavirus Response Act of 2020 (FFRCA) (Pub. L. 116-127), and later 
through subsequent statutory extensions to help USDA continue to 
respond to changing needs throughout the pandemic. Such efforts 
included USDA issuing the Nationwide Waiver to Allow Non-Congregate 
Feeding and other complementary non-congregate waivers under section 
2202(a) of the FFCRA. These waivers ensured that children continued to 
receive nutritious meals and helped to mitigate the impacts of the 
COVID-19 PHE.
    For summer 2023, USDA provided guidance on non-congregate meal 
service operations in rural areas as required by the Act. Many of the 
non-congregate flexibilities allowed for summer 2023 operations were 
allowed through previous demonstrations, waivers, and guidance on non-
congregate meal service operations during the COVID-19 PHE. Through 
this IFR, USDA is promulgating regulations for the summer meal programs 
rural non-congregate option for program year 2024 and beyond. These 
regulations are based on a combination of best practices from 
demonstration projects, non-congregate flexibilities offered during the 
COVID-19 pandemic, and prior guidance that was issued for operating 
rural non-

[[Page 90233]]

congregate meal service in summer 2023.
Stakeholder Feedback
    Between April 5, 2023, and June 15, 2023, USDA hosted 21 listening 
sessions with external stakeholders on the topic of non-congregate 
summer meals. Input was gathered from State agency program 
administrators,\4\ school food authorities (SFAs) and other program 
operators, advocacy groups, and program participants. Listening session 
participants were asked a series of questions related to 
implementation, service models, program integrity, challenges, 
benefits, and definitions; each session also included open time where 
participants could share additional thoughts of interest to them. USDA 
also held consultations with Tribal leaders from Indian Tribal 
Organizations (ITOs) to obtain their input on the topic of non-
congregate summer meals, as well as rural experts at Federal agencies 
to obtain their input on defining and identifying rural areas. USDA 
recorded and analyzed all comments shared during the listening sessions 
and has taken all comments into careful consideration when developing 
this rule.
---------------------------------------------------------------------------

    \4\ USDA invited all State agencies to provide input, and the 
vast majority (47) of States actively participated in the listening 
sessions.
---------------------------------------------------------------------------

    Stakeholders were generally positive about non-congregate summer 
meals, citing enhanced program access as the primary benefit. However, 
14 State agencies voiced concerns with program integrity and five State 
agencies expressed concern about nutritional quality and/or food safety 
of meals served. Fifteen additional stakeholders voiced concern about 
inadequate staff support to manage non-congregate meal service. 
Stakeholders said that the existing (long-standing) definition of 
``rural'' did not sufficiently encompass rural areas and offered ideas 
for how the definition of ``rural'' could be expanded (see section II. 
A. ii. for rural definition discussion). Finally, stakeholders 
requested clear and timely guidance from USDA on a wide range of 
topics, including best practices, eligibility, and program integrity 
efforts; State agencies requested that guidance be issued anywhere from 
6 to 18 months in advance of summer program operations.

C. Summer EBT

    Section 13A of the Richard B. Russell National School Lunch Act, 42 
U.S.C. 1762, authorizes the Secretary to establish a program under 
which States, and Indian Tribal Organizations (ITOs) that administer 
the Special Supplemental Nutrition Program for Women, Infants, and 
Children (WIC), electing to participate in the Summer EBT Program may, 
beginning in Summer 2024 and annually thereafter, issue to each 
eligible household Summer EBT benefits. For 2024, the value of the 
benefit will be $40 per child for each month of the summer with amounts 
adjusted for Alaska, Hawaii, and the U.S. Territories.
Summer EBT Demonstration Projects
    Although Summer EBT is the newest, permanent Federal food 
assistance entitlement program, it is not a new approach to addressing 
food insecurity during the summer months. In fact, Summer EBT has been 
tested through more than a decade of demonstration projects 
administered by USDA in collaboration with States and Indian Tribal 
Organizations. Prior to the publication of this interim final 
rulemaking, and under the same authority as the SFSP demonstration 
projects provided in 2010 (section 749(g) of the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 2132)), the Summer 
Electronic Benefits Transfer for Children (SEBTC) demonstration project 
was implemented to help reduce summer food insecurity among children. 
Starting in 2011, the SEBTC demonstration distributed a monthly food 
benefit during the summer months to children eligible for free or 
reduced price school meals. Most States operating the demonstration 
projects utilized a debit card (or Supplemental Nutrition Assistance 
Program (SNAP)) model whereby eligible participants received benefits 
on a debit card, which could be redeemed at any SNAP-authorized 
retailer. Some States and several ITOs operated the Summer EBT program 
using a WIC-like model whereby eligible participants could purchase 
only foods prescribed in a defined food package at WIC-authorized 
retailers using their Summer EBT cards.
    Through rigorous evaluation, the SEBTC demonstration projects have 
proven successful at mitigating food insecurity and improving diet 
quality and variety. SEBTC benefits reduced the most severe category of 
food insecurity among children during the summer by one-third when 
compared to those receiving no benefits.\5\ Evaluations of USDA's 
previous experience with SEBTC demonstration projects indicated that 
this model could be effectively implemented in a wide variety of 
communities. The SEBTC demonstration projects were an innovative 
approach to meeting the nutritional needs of children during the summer 
months as the model provides families with flexibility to purchase food 
for their children at times and places that are convenient for them.
---------------------------------------------------------------------------

    \5\ Food and Nutrition Service. (2013). SEBTC Demonstration: 
Evaluation Findings for the Full Implementation Year 2012 Final 
Report. U.S. Department of Agriculture, Food and Nutrition Service. 
https://fns-prod.azureedge.us/sites/default/files/SEBTC2012.pdf.
---------------------------------------------------------------------------

Pandemic Electronic Benefit Transfer
    The effectiveness of the SEBTC demonstration projects facilitated 
the implementation of Pandemic Electronic Benefit Transfer (P-EBT). 
From 2020 to 2023, P-EBT was part of the COVID-19 pandemic response to 
prevent food insecurity among children while they did not have access 
to school meals. The Families First Coronavirus Response Act, (Pub. L. 
116-127), as amended by the Continuing Appropriations Act, 2021 and 
Other Extensions Act (Pub. L. 116-159), the Consolidated Appropriations 
Act, 2021 (Pub. L. 116-260), the American Rescue Plan Act of 2021 (Pub. 
L. 117-2), and the Consolidated Appropriations Act, 2023 (Pub. L. 117-
328) provided the Secretary authority to approve State agency plans to 
administer P-EBT. Children were eligible to receive P-EBT benefits if 
they would have received free or reduced price meals under the NSLA but 
missed those meals due to COVID-19. For example, the child's school was 
closed or operating at reduced hours or attendance due to COVID-19, or 
the child did not attend school because they were sick with COVID-19. 
Through P-EBT, eligible school children received temporary emergency 
nutrition benefits through EBT cards that families could use to 
purchase food at local retailers, allowing families with eligible 
children to purchase healthy food more easily during the pandemic.
    The American Rescue Plan Act (Pub. L. 117-2) specifically 
authorized the extension of P-EBT for the covered summer period after 
any school year in which there was a public health emergency 
designation for all children who met P-EBT income eligibility 
requirements under the schools component of P-EBT. In December 2023, 
the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) authorized 
USDA to allow State agencies to implement P-EBT for summer 2023 without 
the need for an approved P-EBT plan for the preceding school year, 
limited P-EBT eligibility for school children to only those children 
who attended NSLP-participating schools at the end of the preceding 
school year,

[[Page 90234]]

and redefined the P-EBT benefit amount for summer 2023 to $120 for the 
entire covered period, with amounts adjusted for Alaska, Hawaii, and 
the U.S. Territories.
    With the end of the COVID-19 PHE on May 11, 2023, FY 2023 was the 
final fiscal year that children were eligible for P-EBT benefits. The 
permanent Summer EBT program for school-aged children will begin in 
summer 2024 ensuring eligible school-aged children will continue to 
receive critical nutrition assistance.
Summer EBT as a Permanent Program
    Beginning in summer 2024, the NSLA permanently establishes Summer 
EBT benefits at $40 per month per eligible child and indexes the 
benefit to the SNAP Thrifty Food Plan to account for inflation. Summer 
EBT will provide EBT benefits to children from low-income households 
during the summer months to ensure continued access to nutrition when 
school is not in session. USDA anticipates that Summer EBT will help to 
close the summer nutrition gap for more than 29 million children once 
implemented nationwide. As amended, the NSLA allows States that 
participate in SNAP and Territories participating in NAP (including 
Puerto Rico, American Samoa and the Commonwealth of the Northern 
Mariana Islands) to issue benefits which are usable at SNAP or NAP 
retailers. The NSLA also provides that ITOs administering WIC may 
deliver Summer EBT benefits to be used at WIC authorized retailers. 
Benefit redemptions are made through EBT cards or `other electronic 
methods.' The permanent Summer EBT Program is separate and distinct 
from the earlier SEBTC demonstration projects, which were limited in 
scope and conducted for the purpose of gaining insight into the 
effectiveness of the model. The permanent Summer EBT Program is also 
separate and distinct from P-EBT, which was a specific Federal 
Government response to COVID-19.
    USDA published the following initial guidance for 2024 Summer EBT 
implementation prior to publication of this rulemaking to assist States 
with preparations:
    1. SEBT 01-2023, Initial Guidance for State Implementation of 
Summer EBT in 2024, June 7, 2023;
    2. SEBT 02-2023, Initial Guidance for Implementation of Summer EBT 
in 2024 by Indian Tribal Organizations Administering WIC, June 13, 
2023;
    3. SEBT 03-2023, Summer EBT Eligibility, Certification, and 
Verification, July 31, 2023;
    4. SEBT 01-2024, Summer EBT Administrative Funding Process for 
FY2024, October 18, 2023.
    Through this rulemaking, the Summer EBT Program will be codified in 
a new part 292 of Title 7 of the Code of Federal Regulations, which 
will supersede the memos listed above.
Summary of Stakeholder Feedback
    Between April and June 2023, USDA hosted 24 listening sessions to 
solicit input about Summer EBT from State agencies administering SNAP 
and Child Nutrition Programs, school food authorities (SFAs) and other 
program operators, advocacy groups, local elected officials, and 
families. USDA also consulted with Tribal leaders on Summer EBT in May 
2023, attended two conferences to meet with and gather feedback 
directly from ITOs administering WIC, and met with Tribal WIC 
administrators virtually. Listening session participants were asked for 
input about approaches to program implementation, program integrity, 
program costs, customer service, and technical aspects of Summer EBT 
operations. Participants were offered the opportunity to raise other 
issues of interest to them as well. USDA carefully considered this 
input when developing this rule.
    Across listening sessions, State agencies, school food authorities, 
program participants and external organizations consistently expressed 
a desire for the Summer EBT program to run seamlessly and 
automatically, particularly around eligibility determinations and 
enrollment. State agencies, SFAs, and advocates expressed that data 
sharing and collection between State agencies [and between State 
agencies and local education agencies (LEAs)] must be streamlined and 
automated, and noted that centralized databases could help simplify the 
data-sharing process. Relatedly, many State agencies, school food 
authorities, and external organizations identified the need for States 
to provide Statewide applications for children who must apply using a 
Summer EBT application to avoid placing the responsibility of 
collecting and processing applications on LEAs, especially those 
participating in the Community Eligibility Provision (CEP) who do not 
collect school meals applications. Some State agency staff asked that 
USDA provide and maintain a nationwide Summer EBT application. There 
was universal concern about the impacts for both LEAs and households of 
requiring students at special provision schools (e.g., CEP schools) who 
are not ``identified'' to apply for Summer EBT. Households with 
children enrolled in provision schools are not accustomed to completing 
annual income applications for school meal benefits and may not know if 
their child is ``identified'' through participation in other means 
tested programs or if an income application must be completed. Without 
effective processes to communicate with families and to collect 
applications, this could cause confusion and negatively impact program 
participation. Likewise, many CEP schools do not collect income 
applications even on a periodic basis as eligibility because the level 
of Federal reimbursement for the NSLP/SBP is solely based on the number 
of identified students. These schools do not currently have resources 
and staffing to support this effort. Additionally, a number of external 
organizations and States urged USDA to allow the use of ``alternative'' 
income applications to confer Summer EBT eligibility.
    Additionally, FNS received numerous inquiries from States regarding 
which State Agency should lead the Summer EBT Program. Although SNAP 
and Child Nutrition Programs are generally administered by separate 
agencies at the State level, these agencies have historically teamed up 
to improve children's nutrition. For example, SNAP and Child Nutrition 
agencies successfully stood up and implemented direct certification, a 
process that streamlines enrollment and reduces burden for millions of 
children every year, and they jointly provided P-EBT benefits at a time 
when many children were vulnerable to food insecurity. Similarly, State 
agencies should work together in a collaborative way to determine how 
they can best use their resources and expertise to support Summer EBT, 
and jointly decide the appropriate roles and responsibilities of each 
agency.
    State agencies, ITOs, and external organizations expressed 
significant concerns about the 50 percent match funding required for 
Summer EBT administrative costs, particularly given the fact that, in 
many States, the window to request or allocate State funding for Summer 
EBT through the regular budgetary process was closing or had already 
closed. Some States shared that this may prevent them from standing up 
the program in Summer 2024. ITOs similarly expressed concerns about the 
required match, and specifically asked for a ``planning year'' in which 
benefits are not issued, but administrative funding can be received to 
set up the program. States and ITOs also requested clearer guidance 
from

[[Page 90235]]

USDA related to administrative funding and financial management.
    States, school food authorities, and advocates also discussed 
lessons learned from operating P-EBT, and ways to improve operations 
when delivering the Summer EBT Program. Specifically, USDA heard the 
importance of delivering benefits timely, developing clear lines of 
communication on customer service (e.g., clear points of contact for 
households), and increased participant education, such as better 
messaging to households. States and advocates also noted the need to 
improve data quality, primarily ensuring that addresses for 
participants are accurate and current at the time benefits are issued.
    Finally, ITOs shared robust feedback on three specific topics: the 
benefit delivery model for ITOs, enrolling eligible children, and de-
duplication of benefits.
    ITOs shared that they would appreciate flexibility in the benefit 
delivery model, meaning the ability to operate using a cash value 
benefit (CVB), a food package, a combination of the two, or an 
alternative approach. ITOs also shared concerns about communicating 
with families about the option to participate in the ITO-administered 
program and coordinating with States to ensure that children do not 
receive benefits from both State and ITO-operated Summer EBT programs. 
ITOs thus asked USDA to issue strong regulatory language requiring 
States to cooperate with ITOs on general program operations and data 
sharing. Additionally, ITOs recommended that ITOs administering the 
Program serve their entire jurisdictions to streamline program 
implementation and minimize de-duplication.

II. Discussion of the Interim Final Rule--SFSP and SSO Non-Congregate 
Option

    This section of the preamble discusses the actions USDA is taking 
to implement the statutory provisions for non-congregate meal service 
in the SFSP in 7 CFR part 225 and the SSO in 7 CFR parts 210 and 220. 
All Program regulations and guidance, instructions, and handbooks 
issued by the USDA Food and Nutrition Service (FNS) apply to both 
congregate and non-congregate operations except as otherwise specified 
through this rulemaking.

A. Definitions

i. Site, Congregate Meal Service, and Non-Congregate Meal Service
    SFSP regulations under 7 CFR part 225 have historically been framed 
in the context of the long-standing congregate meal service model under 
the NSLA. Prior to amendments made in the Act, provisions under the 
NSLA at 42 U.S.C. 1753(b)(1)(A), 42 U.S.C. 1761(a)(1)(D) and Program 
regulations at Sec.  225.6(i)(15) required Program meals to be served 
in a congregate setting and consumed by participants on site in order 
to be eligible for reimbursement. Therefore, under current regulations 
at Sec.  225.2, ``site'' means a physical location at which a sponsor 
provides a food service for children and at which children consume 
meals in a supervised setting. Currently, there is no separate 
statutory or regulatory definition of congregate meal service. However, 
the establishment of the non-congregate meal service option underscores 
the need to explicitly define and distinguish congregate and non-
congregate meal service for Program purposes.
    For Summer 2023, the NSLA was amended to allow Program operators to 
operate a non-congregate meal service in rural areas consistent with 
implementation models previously used in USDA summer demonstration 
projects, as discussed in section I. B. of this IFR. The two models 
available for both SFSP and SSO during summer 2023 were home delivery 
and meal pick-up. Under the home delivery model, meals are delivered 
directly to homes in eligible areas with eligible children. In the 
context of this model, FNS advised State agencies and sponsors through 
summer 2023 guidance to consider the non-congregate meal service 
operation overall as the site (for example, a delivery route or courier 
distribution process), instead of the individual residences to which 
the meals were delivered. Therefore, the inclusion of the phrases 
``physical location'' and ``supervised setting'' in the definition of 
site at 7 CFR 225.2 is inconsistent with providing different models of 
non-congregate meal service, as non-congregate meals can be consumed 
anywhere, and do not have to be consumed under supervision.
    Therefore, this rulemaking revises the existing definition of 
``site'' and adds new definitions of ``congregate meal service'' and 
``non-congregate meal service'' to provide clarity and applicability to 
new and existing Program requirements. USDA is codifying these working 
definitions as established in summer 2023 guidance into part 225.
    Accordingly, this IFR makes the following amendments in Sec.  
225.2:
     Amends the definition of ``site'' to mean the place where 
a child receives a Program meal. A site may be the indoor or outdoor 
location where congregate meals are served, a stop on a delivery route 
of a mobile congregate meal service, or the distribution location or 
route for a non-congregate meal service. However, a child's residence 
is not considered a non-congregate meal site for Program monitoring 
purposes.
     Adds a definition of ``congregate meal service'' to mean a 
food service at which meals that are provided to children are consumed 
on site in a supervised setting; and
     Adds a definition of ``non-congregate meal service'' to 
mean a food service at which meals are provided for children to consume 
all the components off-site. The definition further clarifies that non-
congregate meal service must only be operated at sites designated as 
``rural'' and with no ``congregate meal service,'' as determined in 
Sec.  225.6(h)(3) and (4).
ii. Rural
    Newly added section 13(a)(13)(A) of the NSLA makes available to 
States the option to provide Program meals for non-congregate 
consumption in a rural area with no congregate meal service. This 
expansion of summer meal service prompted renewed interest in 
reviewing, revising, and modernizing the SFSP's long-standing 
definition of ``rural.''
    In 1978, the Department proposed a definition of ``rural'' (44 FR 
8) in response to the provisions of the NSLA and Child Nutrition 
Amendments of 1977 (Pub. L. 95-166), which amended section 13(a)(4) of 
the NSLA, 42 U.S.C. 1761(a)(4), to include a rural outreach mandate. 
Public Law 95-166 also instructed USDA to conduct a study of the food 
service operations to include: (i) an evaluation of meal quality as 
related to costs; and (ii) a determination whether adjustments in the 
maximum reimbursement levels for food service operation costs 
prescribed in the NSLA should be made, including whether different 
reimbursement levels should be established for self-prepared meals and 
vended meals and which site-related costs, if any, should be considered 
administrative costs. Through this study, USDA confirmed sponsors that 
prepare their own meals and sponsors that operate in rural areas may 
incur higher costs than other types of sponsors [44 FR 36365, January 
2, 1979]. As a result, USDA provided additional reimbursement to rural 
sites and self-preparation sites in the final rulemaking, which still 
stands today under regulations at Sec.  225.9(d)(7). Because of the 
fiscal implications under that final rulemaking, USDA also codified the 
definition of ``rural'' as proposed (Rural means any county

[[Page 90236]]

which is not a part of a Standard Metropolitan Statistical Area as 
defined by the Office of Management and Budget). USDA had considered 
revising the definition of rural to include ``pockets'' of rurality 
within Metropolitan Statistical Areas (MSAs); however, USDA was not 
able to develop a universally applicable definition based on the varied 
data collected at the time of the rulemaking and said it would re-
consider the definition after evaluating implementation of the 
provisions in the 1979 program year. In 1980, based on experience 
gained during the 1979 Program year, the Department revised the 
definition of ``rural'' to include an option for States, with 
concurrence from USDA, to establish ``pockets'' of rurality within MSAs 
(45 FR 1844). The rural definition has not been further updated since 
1980.
    SFSP regulations at Sec.  225.2 define ``rural'' as: (a) any area 
in a county which is not a part of a MSA or (b) any ``pocket'' within a 
MSA which, at the option of the State agency and with Food and 
Nutrition Service Regional Office (FNSRO) concurrence, is determined to 
be geographically isolated from urban areas. The current definition is 
based on the Office of Management and Budget's (OMB) Standards for 
delineating core-based statistical areas (CBSA), specifically MSAs. 
Delineations are the result of the application of published standards 
to Census Bureau data on population estimates and commuting ties. USDA 
has released guidance over the years to provide technical assistance to 
States in this area. On April 21, 2015, USDA published memorandum SFSP 
17-2015, Rural Designations in the Summer Food Service Program--
Revised, available at: Rural Designations in the Summer Food Service 
Program--Revised [bond] Food and Nutrition Service (usda.gov), to 
clarify rural designations in SFSP and to promote the use of FNS' Rural 
Designation Map, which was designed to help State agencies and sponsors 
more easily identify rural areas according to paragraph (a) of the 
regulatory definition.
    After the release of initial summer 2023 rural non-congregate 
guidance, USDA heard concerns from stakeholders that the current 
definition of ``rural'' was too generalized geographically to identify 
rural areas and pockets effectively. MSAs are comprised of a central 
county or counties containing the core area (i.e., the central urban 
area with a population of 50,000 or more) plus adjacent outlying 
counties having a high degree of social and economic integration with 
that core as measured through commuting. Because MSAs can include a 
cluster of counties surrounding one county with an urban center and 
because counties can be geographically expansive, MSAs often encompass 
areas that are considered rural based on additional information such as 
data at the census tract level. For example, a census tract within an 
outlying county may be sparsely populated and could be considered 
rural, but the county contains other census tracts or areas that have a 
high degree of social and economic integration with the population 
core, which results in the county being classified as part of the MSA.
    Therefore, after consultation with Federal partners, USDA provided 
further guidance allowing States to use the following classification 
schemes to designate rural areas and pockets in summer 2023: (1) USDA 
Economic Research Service's (USDA-ERS) Rural Urban Commuting Area 
(RUCA) codes 4-10, and in some isolated cases, RUCA codes 2-3; (2) 
USDA-ERS' Rural-Urban Continuum Codes (RUCC) 4-9; (3) USDA-ERS' Urban 
Influence Codes (UIC) 3-12; and (4) the National Center for Education 
Statistics (NCES) Locale Classifications and Criteria, codes 41-43. The 
guidance also allowed for the use of other data sources on a case-by-
case basis with FNS approval.
    In the listening sessions held to inform this rule, stakeholders 
confirmed that the current definition of rural in Sec.  225.2 does not 
adequately capture all rural areas. Stakeholders shared that the 
limitations of the existing definition were largely addressed by the 
addition of the classification schemes allowed in summer 2023 and noted 
that the use of these schemes seemed to satisfy most site location 
requests. However, some stakeholders still encouraged USDA to consider 
other factors in the definition of rural such as: access to public 
transportation, food deserts, physical barriers, and characteristics of 
rurality. One stakeholder encouraged USDA avoid overly rigid criteria 
or reliance on physical characteristics as many of these elements are 
influenced by community and State resources and priorities rather than 
inherent qualities, and that defining features of rural communities may 
vary by region. State agencies also reported a need for a streamlined 
process for identifying and approving rural areas and pockets, and 
requested one comprehensive mapping tool to determine rural 
designation. Therefore, based on feedback received from stakeholders 
and Federal partners, USDA is revising the current definition of 
``rural'' to include the classification systems allowed for summer 2023 
implementation. These classification schemes were used in summer 2023 
to identify rural ``pockets,'' but now will be incorporated into the 
regulatory definition to define what rural is under the Program. In 
addition, this IFR will amend the current definition to provide 
discretion for the Department to accommodate updates to these 
classification schemes and to consider other classification schemes 
that were not identified through summer 2023 operations. Finally, USDA 
agrees with comments that potential community characteristics such as 
the presence of food deserts and physical barriers are not inherently 
rural or objective measures of rurality, nor may they be necessarily 
applied consistently across States and communities. However, to 
accommodate possible alternative standards that may be developed or 
identified, the revised definition will allow State agencies and USDA 
to consider requests to designate areas that may be rural in character 
based on other data sources on a case-by-case basis. Under this 
rulemaking, the definition of rural will mean:
     Any area in a county not a part of an MSA based on the 
OMB's delineation of MSAs. This criterion will allow for non-MSA 
counties to be designated as rural under the Program.
     Any area in a county classified as a non-metropolitan area 
based on RUCC and UIC. This criterion will allow for counties 
classified as rural according to USDA-ERS' RUCC and UIC codes to be 
designated as rural under the Program.
     Any census tract classified as a non-metropolitan area 
based on RUCA codes. This criterion will allow census tract areas 
classified as rural according to USDA-ERS' RUCA codes to be designated 
as rural under the Program.
     Any area of an MSA not part of a Census Bureau-defined 
urban area. This criterion will allow for areas located within MSAs 
that are classified as rural according to NCES' Locale Classifications 
and Criteria, which is based on the Census Bureau's urban and rural 
areas, to be designated as rural under the Program.
     Any area of a State, which is not part of an urban area as 
determined by the Secretary; or,
     Any ``pocket'' within an MSA which, at the option of the 
State agency and with FNSRO approval, is determined to be rural in 
character based on other data sources. These last two criteria provide 
discretion for the Department and the State agency to consider other 
areas that may not be identified through this new definition.
     Any subsequent substitution or update of the 
aforementioned

[[Page 90237]]

classification schemes that Federal governing bodies create. This 
criterion is intended to accommodate updates or substitutions to the 
classification schemes that will be incorporated into the definition 
under this rule.
    This framework more accurately represents rural populations and 
territories and is responsive to stakeholder feedback, while upholding 
established standard measures of rurality. Expanding the definition to 
allow the use of multiple recognized Federal classification schemes to 
designate areas as rural (without having to seek prior USDA approval) 
will also ease administrative burden and streamline the site 
identification and approval process for State agencies and Program 
operators. It also acknowledges the frequent stakeholder concern that 
any one objective measure cannot capture all rural pockets, and 
therefore, allows discretion for State agencies to identify rural 
pockets based on other data sources if needed with approval from USDA.
    Accordingly, this rule expands the definition of ``rural'' in Sec.  
225.2 to include rural populations and territories within MSAs based on 
the summer 2023 approved sources, and to provide flexibility for 
``pockets'' based on other data sources on a case-by-case basis. The 
amended definition of ``rural'' in Sec.  225.2 will also provide 
discretion to USDA for any potential updates or changes to 
classification schemes at a future date. Following the publication of 
this rule, USDA will also release an updated FNS Rural Designation Map 
to reflect the new, comprehensive framework, which will provide one 
comprehensive mapping tool to assist State agencies in determining 
rural designations. In addition, this rule adds a new provision to 
establish an annual effective date by which USDA will issue updates to 
the approved rural data sources to be used for rural designations in 
that program year. The IFR also adds an effective period to the rural 
designation to establish the frequency at which sponsors must re-
establish rural designation for non-congregate meal service sites. See 
section II. G. iv. and section II. B. vi., respectively, for a 
discussion of those provisions.
iii. Conditional Non-Congregate Site
    Prior to the Act, sites were required to be located in areas which 
meet the definition of ``areas in which poor economic conditions 
exist'' or qualify as camps. Specific to non-congregate meals, the Act 
amended the NSLA to allow meal service in rural areas that are not 
areas in which poor economic conditions exist for children who are 
determined to be eligible for free or reduced price school meals. The 
current regulations under Sec.  225.2 do not include a definition for a 
site which qualifies for Program participation on the basis that the 
site conducts a non-congregate meal service for eligible children in an 
area that does not meet the definitions of ``areas in which poor 
economic conditions exist,'' and which does not qualify as a camp.
    Under statutory and regulatory requirements, for Program purposes 
``areas in which poor economic conditions exist'' is defined as: (1) 
The attendance area of a school in which at least 50 percent of the 
enrolled children have been determined eligible for free or reduced 
price school meals under the NSLP and the School Breakfast Program 
(SBP); (2) A geographic area where, based on the most recent census 
data available or information provided from a department of welfare or 
zoning commission, at least 50 percent of the children residing in that 
area are eligible for free or reduced price school meals under the NSLP 
and the SBP; (3) A geographic area where a site demonstrates, based on 
other approved sources, that at least 50 percent of the children 
enrolled at the site are eligible for free or reduced price school 
meals under the NSLP and the SBP; or (4) A closed enrolled site in 
which at least 50 percent of the enrolled children at the site are 
eligible for free or reduced price school meals under the NSLP and the 
SBP, as determined by approval of applications in accordance with Sec.  
225.15(f). See, 42 U.S.C. 1761(a)(1)(A) and Sec.  225.2. The definition 
of ``camps'' included in Sec.  225.2 ``means residential summer camps 
and nonresidential day camps which offer a regularly scheduled food 
service as part of an organized program for enrolled children. 
Nonresidential camp sites shall offer a continuous schedule of 
organized cultural or recreational programs for enrolled children 
between meal services.''
    FNS clarified in its implementation guidance for summer 2023 that 
sponsors may claim meals served to children who are eligible for free 
or reduced price school meals even if the rural area does not meet the 
definition of ``areas in which poor economic conditions exist.'' Non-
congregate meals may be served to children who are not eligible for 
free or reduced price meals in rural areas, but they may not be claimed 
for reimbursement. Therefore, this rule adds a definition for 
``conditional non-congregate site'' to codify this new site type and 
clarify applicable Program requirements.
    Accordingly, this rule adds the following definition in Sec.  225.2 
for ``conditional non-congregate site'' as a site which qualifies for 
Program participation because it conducts a non-congregate meal service 
for children eligible for free or reduced price meals in an area that 
does not meet the definition of ``areas in which poor economic 
conditions exist'' and is not a ``Camp'' as defined in Sec.  225.2.
iv. New Site
    FNS provides administrative and operational flexibilities for 
experienced sponsors and sites that have already operated the SFSP 
without significant operational problems. For example, when applying to 
participate in the Program, experienced sponsors are not required to 
submit the same level of detail regarding organizational and 
operational information required of new sponsors and those with 
previous operational problems. For new sponsors, and sponsors that 
experienced significant operational problems in the previous year, 
detailed information is required including, but not limited to, site 
information, arrangements for meeting health and safety standards, and 
budgets. This information is necessary for State agencies to determine 
if new sponsors and sites, or those with previous operational problems, 
are capable of administering the SFSP efficiently and effectively, and 
complying with all program requirements. Likewise, new sponsors and 
sites, and sponsors and sites that have experienced significant 
operational problems in the previous year, may be held to more rigorous 
levels of training and monitoring, at the State's discretion. To help 
clarify requirements for sponsors and sites with varying degrees of 
experience and/or success in operating the Program, Sec.  225.2 
contains definitions of ``new sponsor'', ``new site'', ``experienced 
sponsor'', and ``experienced site''.
    For summer 2023, USDA determined and communicated through guidance 
that experienced sites which proposed to operate non-congregate meal 
service for the first time, including those sites switching from a 
congregate meal service model to a non-congregate model or to operating 
a hybrid of both congregate and non-congregate models, were ``new'' 
sites. These sites were required to follow monitoring procedures for 
new sites. Through this rulemaking, USDA is codifying the summer 2023 
guidance, and requiring that all sites proposing to operate non-
congregate meal service for the first time to use procedures for new 
sites (see sections II. B. and F. for application and

[[Page 90238]]

monitoring procedures). Therefore, this rule revises the current 
definition of ``new site'' to reflect these changes. This rulemaking 
does not affect the experience determination for sponsors.
    Accordingly, this rule amends the definition of ``new site'' in 
Sec.  225.2 to clarify that experienced sites operating a non-
congregate meal service for the first time are considered new under the 
Program.
v. Site Supervisor and Operating Costs
    Under this rulemaking, USDA is also modifying existing definitions 
of ``site supervisor'' and ``operating costs'' in Sec.  225.2 to 
reflect the provision of non-congregate meal service under the Program.
    USDA published the final rule, Streamlining Program Requirements 
and Improving Integrity in the Summer Food Service Program (87 FR 
79213), on September 19, 2022, which added a definition in Sec.  225.2 
for ``site supervisor'' stating that the individual on site for the 
duration of the meal service, who has been trained by the sponsor, and 
is responsible for all administrative and management activities at a 
site including but not limited to: ordering meals, maintaining 
documentation of meal deliveries, ensuring that all meals served are 
safe, and maintaining accurate point of service meal counts.
    Therefore, with the new requirements established by the Act for 
non-congregate meal service, this rule amends the definition for ``site 
supervisor'' to mean the individual who has been trained by the sponsor 
and is responsible for all administrative and management activities at 
the site, including, but not limited to: maintaining documentation of 
meal deliveries, ensuring that all meals served are safe, and 
maintaining accurate point of service meal counts. Except for non-
congregate meal service sites using delivery services, the individual 
is on site for the duration of the food service.
    Program regulations in Sec.  225.2 define the term ``operating 
costs'' to mean the cost of operating a food service under the Program, 
including the: cost of obtaining food, labor directly involved in the 
preparation and service of food, cost of nonfood supplies, rental and 
use allowances for equipment and space, and cost of transporting 
children in rural areas to meal service sites in rural areas. This rule 
amends the definition for ``operating costs'' to include the costs to 
deliver non-congregate meals in rural areas under the Program as an 
allowable cost.
    Accordingly, this rule revises the definition of ``site 
supervisor'' and ``operating costs'' in Sec.  225.2 to reflect the 
provision of non-congregate meal service under the Program.
vi. Good Standing
    Under current Program regulations, there is no definition for good 
standing. The final rule, Streamlining Program Requirements and 
Improving Integrity in the Summer Food Service Program, 87 FR 57304, 
September 19, 2022, reflected on the qualities that contribute to a 
Program operator's successful performance. USDA indicated that an SFSP 
Program operator would be considered in ``good standing'' if it was 
reviewed by the State agency with no major Program findings or it had 
completed and implemented all corrective actions from the last 
compliance review. In addition, FNS intends to publish the proposed 
rule, Serious Deficiency Process in the Child and Adult Care Food 
Program (CACFP) and the Summer Food Service Program (SFSP), RIN # 0584-
AE83, which will propose changes to the existing serious deficiency 
process in the CACFP for unaffiliated centers and establishes a serious 
deficiency process for the SFSP. As part of the rule, USDA will propose 
a new definition of ``good standing'' for SFSP. USDA recognizes that 
providing further clarification to determine what good standing means 
will benefit State agencies and program operators.
    USDA has determined that many of the requirements and allowable 
options codified at Sec.  225.16(i) for non-congregate meal service 
will only be allowed for sponsors in good standing, as discussed in 
section II. E. of this rule. However, good standing is not currently 
defined under Program regulations at Sec.  225.2. Therefore, in order 
to support State agency ability to determine if a sponsor is in good 
standing, this rule will codify ``good standing'' to mean the status of 
a program operator that meets its Program responsibilities, is current 
with its financial obligations, and, if applicable, has fully 
implemented all corrective actions within the required period of time. 
This definition mirrors the definition that will be proposed in Serious 
Deficiency Process in the Child and Adult Care Food Program (CACFP) and 
the Summer Food Service Program (SFSP), RIN # 0584-AE83. USDA will 
review comments received on this definition both through the proposed 
rule, as well as through this rulemaking, and may further revise this 
definition as needed in future rulemaking.
    Accordingly, this rule adds a definition of ``good standing'' at 
Sec.  225.2.

B. State Agency Responsibilities

i. Department Notification
    Consistent with provisions under the NSLA at 42 U.S.C. 
1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at Sec.  
225.3(b), by November 1 each fiscal year each State agency must notify 
USDA regarding the State's intention to administer the Program in that 
fiscal year. Each State agency desiring to take part in the Program 
must enter into a written agreement with FNS for the administration of 
the Program. The Act amended section 13(n)(1) of the NSLA to require, 
for summer 2023 only, that each State desiring to participate in the 
Program must notify the USDA of its intent to administer the Program 
and must submit a management and administration plan (MAP) for the 
Program by April 1, 2023. In addition, the Act amended section 13(n)(2) 
of the NSLA to include that beginning in 2024, each State agency 
desiring to participate in the Program must notify the Department by 
January 1 of each year.
    Accordingly, this rule amends the regulatory deadline at Sec.  
225.3(b) for a State to notify the Department of its intent to 
administer the SFSP from November 1 to January 1 of each fiscal year. 
This rule also makes changes to the MAP requirements in Sec.  225.4, 
which are described in this section of the preamble. Finally, this rule 
establishes a requirement at Sec.  225.3(e) for State agencies 
administering the summer meal programs and Summer EBT Program to 
develop and implement a coordinated services plan for the programs in 
their State. This plan is a separate requirement from the MAP and is 
meant to coordinate the statewide availability of services offered 
through the Summer Food Service Program. See section IV. for discussion 
of those requirements.
ii. Program Management and Administration Plan
    Prior to the Act, provisions under the NSLA at 42 U.S.C. 
1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at Sec.  225.4 
required State agencies to submit a MAP for approval by February 15 for 
the current fiscal year (i.e., a plan that will cover program 
operations during the following summer). The State agency must include 
the State's administrative budget, an estimate of need for monies to 
pay for the cost of conducting health inspections, and the State's 
plans for use of Program funds (including providing technical 
assistance, monitoring, corrective action, fiscal integrity, and to 
ensure compliance with food service

[[Page 90239]]

management company procurement monitoring) in the MAP.
    The Act amended section 13(n)(1) of the NSLA to require that, for 
summer 2023, each State agency will have until April 1, 2023, to submit 
their MAP, which must include the State's plan for using non-congregate 
meal service, if applicable, including plans to provide a reasonable 
opportunity to access meals across all areas of the State, in addition 
to the MAP requirements previously required under the NSLA (i.e., the 
State's administrative budget for the fiscal year, an estimate of need 
for monies to pay for the cost of conducting health inspections, and 
the State's plan for the use of program funds, providing technical 
assistance, monitoring, taking timely action against program violators, 
certifying fiscal integrity, and to ensuring compliance with food 
service management company procurement monitoring). The summer 2023 
Program guidance provided State agencies additional information 
detailing the plans for implementation of non-congregate meal service 
in their MAP. This information included participation projections, 
sponsor information, plans for targeting and outreach, how State 
Administrative Funds (SAF) would be used to support non-congregate meal 
service for summer 2023, and strategies for providing technical 
assistance to ensure integrity requirements are met. Guidance also 
allowed State agency discretion to establish statewide policies 
regarding aspects of rural non-congregate meal service, based on past 
experiences gained during the COVID-19 pandemic. State agencies were 
required to include statewide details related to the non-congregate 
meal service option in the MAP. Summer 2023 MAP submissions indicated 
that two State agencies used statewide discretion to prohibit the use 
of the non-congregate meal service for summer 2023 operations to allow 
them to evaluate non-congregate processes in order to safeguard Program 
integrity.
    This rule codifies the amendments made to section 13(n)(2) of the 
NSLA, which provides that the MAP must include all provisions 
previously required under the NSLA, the new additional requirement 
under section 13(n)(1), and the State agency's plan for Program 
delivery in areas that could benefit the most from the provision of 
non-congregate meals. This includes the State's plan to identify rural 
areas with no congregate meal service, and plan to target priority 
areas for non-congregate meal service. A discussion of the provisions 
and an ``area with no congregate meal service'' is described further 
below. USDA understands that State agencies are best positioned to 
determine how non-congregate meal service may be conducted through 
sponsors to provide Program access to eligible children while 
maintaining Program accountability. Apart from the case-by-case 
determinations outlined in section II. E. of this rulemaking, State 
agencies should include any additional proposed statewide requirements 
or restrictions and operational safeguards as part of the State's plan 
to use non-congregate meal service in their MAP.
    Accordingly, this rule codifies non-congregate meal service 
requirements in the MAP by adding a new Sec.  225.4(d)(9) and (10). SAF 
as outlined in Sec.  225.5, may be requested based on projected program 
growth with the additional meals that will be served as a part of both 
congregate and non-congregate meal service. The SAF can be used to 
support outreach to service institutions and encourage participation in 
both congregate and non-congregate meal service, as well as 
implementation of program accountability and integrity efforts.
iii. Priorities and Outreach Mandate
    Program regulations at Sec.  225.6(a)(2) require that, by February 
1 of each fiscal year, each State agency must announce the purpose, 
eligibility criteria, and availability of the Program throughout the 
State, through appropriate means of communication. As a part of this 
effort, each State agency must identify rural areas, Indian Tribal 
territories, and areas with a concentration of migrant farm workers 
which qualify for the Program and actively seek eligible applicant 
sponsors to serve such areas. State agencies must identify priority 
outreach areas in accordance with USDA guidance and prioritize outreach 
efforts in these areas.
    The Act amended section 13(a)(13)(D) of the NSLA to require State 
agencies to identify areas with no congregate meal service that could 
benefit the most from the provision of non-congregate meals and 
encourage participating service institutions in those areas to provide 
non-congregate meals as appropriate. Accordingly, this rule amends 
program requirements at Sec.  225.6(a)(2) to reflect this new priority 
area for State agencies as required by statute. In addition, the rule 
revises the paragraph structure at Sec.  225.6(a)(2) to improve the 
clarity of the regulations.
iv. Application Requirements--Content of Sponsor Applications and Site 
Information Sheets
    Annually, each State agency must inform all the previous year's 
sponsors which meet current eligibility requirements, as well as all 
other potential sponsors, of the application deadline for Program 
participation. Program regulations at Sec.  225.6 outline State agency 
responsibilities when approving Program sponsors and sites. When 
reviewing applications, the State agency should consider the resources 
and capabilities of each applicant to sufficiently operate all proposed 
sites. This rule clarifies the State agency review requirements for the 
content of sponsor application and site application approval, which are 
discussed in this section.
    Program regulations at Sec.  225.6(g)(1) and (2) require that State 
agencies develop site information sheets for new or experienced sites 
where a food service is proposed. The site information sheets provide 
State agencies with the documentation needed to determine if the site 
can demonstrate administrative capability and financial viability to 
effectively operate a meal service. The site information sheet 
completed by the sponsor must demonstrate or describe the estimated 
number and types of meals to be served and times of service; 
documentation of eligibility; and, if the site qualifies as a camp, 
documentation of the number of children enrolled in the Program who 
meet the Program's income standards. New sites are also required to 
demonstrate or describe an organized and supervised system for serving 
meals to children; arrangements for delivery and holding of meals and 
storing leftovers for next day meal service to ensure food safety; 
arrangements for food service during periods of inclement weather; 
access to means of communication for making necessary adjustments for 
number of meals to be served at each site; whether the site is rural or 
non-rural; and whether the site's food service will be self-prepared or 
vended.
    Program regulations do not include site information specific to 
non-congregate meal service. Therefore, this rule modifies the minimum 
information that must be demonstrated or described on the site 
information sheets to reflect the provision of non-congregate meal 
service under the Program. This information provided in the site 
information sheet for new sponsors must describe an organized and 
supervised system for serving meals to children; whether the site is 
rural and the documentation supporting the rural designation as 
discussed later in this section; whether the meal service is congregate 
or non-congregate; and, if the site qualifies as a conditional non-
congregate site, documentation of the number of children enrolled in 
the

[[Page 90240]]

Program who meet the Program's income standards. For experienced sites, 
the site information sheets must include whether the meal service to be 
provided is congregate or non-congregate; whether the site is rural and 
documentation supporting the rural designation which is discussed later 
in this section; and, if the site qualifies as a conditional non-
congregate site, documentation of the number of children enrolled in 
the Program who meet the Program's income standards.
    As noted above, this rule is adding a documentation requirement for 
experienced sites to demonstrate that they are rural. Current 
regulations do not require that the site information sheet demonstrate 
or describe whether the site is rural for experienced sites, as 
required for new sites or sites with operational problems. This 
application requirement was removed for experienced sites under the 
Final Rule, Summer Food Service Program: Program Meal Service During 
the School Year, Paperwork Reduction, and Targeted State Monitoring (64 
FR 72889), to eliminate duplicative and unnecessary requirements for 
experienced sponsors, with the intent of reducing the paperwork 
associated with the application process for these sponsors. However, 
USDA has concluded that determining rurality is necessary for all 
Program sponsors due to the effect of a rural designation and non-
congregate participation. This rule also adds an effective period to 
the rural designation to establish the frequency at which sponsors must 
re-establish rural designation for non-congregate meal service sites, 
which is discussed in later in this section of the rule.
    In addition, USDA is codifying non-congregate meal service options 
under this IFR, as discussed in section II. E. ii. As part of those 
options, USDA will require integrity safeguards to prevent unallowable 
or duplicate meal distribution. Under this rule, sponsors opting to 
distribute multiple days' worth of meals must have procedures in place 
that document, to a reasonable extent, that the proper number of meals 
are distributed to each eligible child. In addition, sponsors opting to 
distribute meals to parents or guardians on behalf of children must 
have procedures in place to document that meals are only distributed to 
parents or guardians of eligible children and that duplicate meals are 
not distributed to any child. Therefore, this rule will require this 
information to be included in the applications for new sponsors, 
sponsors that have experienced significant operational problems in the 
prior year, and experienced sponsors.
    Accordingly, this rule adds a new Sec.  225.6(c)(2)(xi) and 
(3)(viii) to require that the application for new sponsors, sponsors 
that have experienced significant operational problems in the prior 
year, and experienced sponsors include procedures to document that 
meals are only distributed, to a reasonable extent, to eligible 
children and that duplicate meals are not distributed to any child, if 
the applicant sponsor is electing to use the non-congregate meal 
service options of multi-day meal issuance and parent or guardian meal 
pick-up. In addition, this rule amends Program regulations at Sec.  
225.6(g)(1)(iv) and(g)(2)(iii) to require sponsors to identify whether 
each meal service will be congregate or non-congregate. This rule also 
adds new Sec.  225.6(g)(1)(xiv) and (g)(2)(viii) to require Program 
sponsors who are operating conditional non-congregate sites to specify 
the number of children enrolled who meet the Program's income 
standards. In addition, this rule amends requirements at Sec.  
225.6(g)(1)(iii) and 225.6(g)(2)(ii) to establish whether a site is 
rural, and that documentation supporting the rural designation is 
required. This rule also establishes the frequency at which the site 
must re-establish rural designation, which is described later in this 
section of this rule. Due to the addition of the new requirements, the 
rule revises the subordinate paragraph numbering at Sec.  225.6(g)(1) 
and (2). Furthermore, this rule amends Sec.  225.6(b)(6) to include 
State agency requirements for sponsor application approval related to 
site reviews, as discussed in section II. F. of this rulemaking. 
Lastly, this rule clarifies the requirement at Sec.  225.6(g)(1)(v) 
with terms consistent with those defined in Sec.  225.2.
v. Approval of Sites and Determining No Congregate Meal Service
    Program regulations at Sec.  225.6(h) provide the site requirements 
that must be evaluated by the State agency before site approval is 
granted. Program regulations at Sec.  225.6(h)(1) require State 
agencies to ensure the proposed food service site is located in an 
``area in which poor economic conditions exist,'' or will serve 
specific groups of eligible children; the area which the site proposes 
to serve will not be served in whole or in part by another site, unless 
it can be demonstrated to the satisfaction of the State agency that 
each site will serve children not served by any other site in the same 
area for the same meal; the site is approved to serve no more than the 
number of children for which its facilities are adequate and; if it is 
a site proposed to operate during any unanticipated school closure, it 
is a non-school site. Regulations at Sec.  225.6(h)(2)(i), (ii), (iii), 
and (v) are specific to congregate meal service operations and require 
that each vended site must have an approved level for the maximum 
number of children's meals which may be served under the Program, which 
is commonly known as a ``site cap.''
    Summer 2023 Program guidance provided specific requirements that 
the State agency must follow when approving Program sites to operate 
non-congregate meal service. Those requirements included:
     The proposed non-congregate meal service site must be in a 
rural area;
     The area proposing to be served will not be served by a 
congregate meal service; and
     Safeguards must be implemented to ensure children will not 
receive more than the maximum allowance of summer meals per day.
    All existing application and approval requirements, including the 
priority system when approving applicants to operate sites that propose 
to serve the same area or the same enrolled children (7 CFR 
225.6(b)(5)) and site cap requirements, continued to apply for both 
congregate and non-congregate meal service. In addition, summer 2023 
guidance also included considerations when determining if an area was 
already being served by a congregate site. This guidance allowed for 
State agency discretion when approving sites for non-congregate meal 
service, if they ensured adherence to the requirements provided above, 
but with the caveat that State agencies may not deny a site based 
solely on the sponsor's intent to provide a non-congregate meal 
service. Sites that served the same children on different days, 
different weeks, or for different meals on the same day could provide a 
combination of congregate and non-congregate meal service if the State 
agency could ensure that the congregate and non-congregate sites would 
not serve the same population of children for the same meal service on 
the same day. Summer 2023 guidance also allowed congregate sites that 
existed prior to that time to switch from congregate to non-congregate 
meal service. However, the Department encouraged State agencies and 
sponsors to work to identify and prioritize those rural areas that the 
congregate Program cannot reliably reach.
    USDA received mixed feedback from stakeholders related to defining 
an area with no congregate meal service. Some stakeholders suggested 
setting parameters for an ``area with no congregate meal service,'' 
such as a

[[Page 90241]]

specified distance from congregate sites. Other stakeholders suggested 
that an ``area with no congregate meal service'' should be left to 
State agency discretion, since Program operations vary across States. 
One stakeholder suggested requiring sponsors to provide an integrity 
plan prior to site approval to avoid meal duplication.
    This final rule incorporates new statutory requirements and summer 
2023 Program guidance with additional regulatory clarifications as to 
how to determine areas with no congregate meal service.
    First, in accordance with summer 2023 guidance which stated that 
State agencies may not deny a site based solely on the sponsor's intent 
to provide a non-congregate meal service, USDA is adding a new Sec.  
225.6(b)(12) to require that the State agency must not deny a sponsor's 
application based solely on the sponsor's intent to provide a non-
congregate meal service.
    Second, this rule amends Program regulations at Sec.  
225.6(h)(1)(i) to require that the proposed site will serve an ``area 
in which poor economic conditions exist,'' unless it is a conditional 
non-congregate site, as discussed in this rulemaking. This rule also 
amends Sec.  225.6(h)(2) to clarify that each vended site must have an 
approved level for the maximum number of children's meals which may be 
served under the Program as they relate to congregate and non-
congregate meal service.
    Third, this rule adds a new Sec.  225.6(h)(3) to address the 
elements of the proposed site operations that the State agency must 
ensure when approving the application of sites to provide non-
congregate meal service. Under this rulemaking, the State agency must 
ensure that the proposed site: is rural; will only distribute the 
allowable number of reimbursable meals that would be provided over a 
10-calendar day period, although the State agency may establish a 
shorter calendar day period on a case-by-case basis and without regard 
to sponsor type (as described in section II. E.); serves an area in 
which poor economic conditions exist or is approved for reimbursement 
only for meals served free to enrolled children who meet the Program's 
income standards; and will not serve an area where children would 
receive the same meal at an approved congregate meal site, unless it 
can be demonstrated to the satisfaction of the State agency that the 
site will serve a different group of children who may not be otherwise 
served. Also, as discussed in sections II. A. and F., this rule 
clarifies that all sites proposing to operate non-congregate meal 
service for the first time must use procedures for new sites. The rule 
reflects this regulatory change by adding a requirement that the State 
agency must ensure that the sponsor follows the site information sheet 
requirements at Sec.  225.6(g)(1) for new sites, where a non-congregate 
food service operation is proposed for the first time.
    Fourth, this rule adds a new Sec.  225.6(h)(4) to address the 
elements of the proposed site operations that the State agency must 
ensure when approving the application of a site which will provide both 
a congregate meal service and a non-congregate meal service, 
effectively allowing State agencies to approve sites which will operate 
both meal services, with some restrictions to ensure the non-congregate 
meal service does not compete with or duplicate the congregate meal 
service. This includes regulations to require the State agency to 
ensure that the proposed site will only conduct a non-congregate meal 
service when the site is not providing a congregate meal service, and 
that the sponsor has a system in place to prevent meal service overlap 
when providing a congregate and non-congregate meal service at the same 
site to reasonably ensure children are not receiving more than the 
daily maximum allowance of meals. Note that for sites that operate both 
congregate and non-congregate service, it is not considered a meal 
service overlap if the site provides a congregate breakfast and then a 
non-congregate lunch intended to be consumed at a later time offsite 
(for example). Finally, the new requirements for approving sites 
operating a non-congregate meal service are in addition to the existing 
program requirements at Sec.  225.6(h)(1) and (2).
    Some stakeholders requested that USDA establish more specific 
criteria or standards to define ``an area with no congregate meal 
service.'' However, USDA agrees with the majority of stakeholders who 
suggested that USDA allow some discretion for State agencies to 
consider operational and environmental factors, which may vary by 
location. USDA also determined that providing discretion would avoid 
introducing complexity into the regulations and allow necessary 
flexibility to support successful implementation. USDA intends to 
provide additional guidance and technical assistance to support 
implementation of this provision.
    Accordingly, this IFR adds a new Sec.  225.6(b)(12) to require that 
the State agency must not deny a sponsor's application based solely on 
the sponsor's intent to provide a non-congregate meal service. The IFR 
also makes the following amendments to Sec.  225.6(h):
     Amends Program regulations at Sec.  225.6(h)(1)(i) to 
include conditional non-congregate sites.
     Adds a new Sec.  225.6(h)(3) and (4) to include site 
application approval requirements that State agencies must ensure when 
evaluating the proposed site which will provide a non-congregate meal 
service and determining an ``area with no congregate meal service.''
     Revises terminology used in Sec.  225.6(h)(2) to clarify 
the applicability of regulations to both congregate and non-congregate 
meal services.
vi. Duration of Rural Designation
    The Act authorized non-congregate meal service in ``rural areas 
where no congregate meal service is available.'' Currently, no 
effective period is established in statute, regulations, or guidance 
for rural designations. As discussed in section II. B. iv. of this 
rule, current Federal regulations do not require an experienced site to 
demonstrate it is rural as part of the site information sheets. 
However, USDA concluded that determining rurality is a necessary 
documentation submission, regardless of the level of site or sponsor 
experience, due to the significant effect of a rural designation under 
the non-congregate provision added by the Act. Therefore, this rule 
adds a new documentation requirement for experienced sites (discussed 
at section II. B. iv.) and establishes the frequency at which the site 
must re-establish its rural designation.
    This rule codifies the requirement that Program sponsors re-
determine their sites' rural designations every 5 years. Once a site is 
established as rural based on the rural definition in Program 
regulations at Sec.  225.2, the rural status is effective for a period 
of 5 years from the date of determination. At the discretion of the 
State agency, redetermination prior to the 5-year period may be 
required, if the State agency determines that an area's rural status 
has changed significantly since the previous determination.
    USDA evaluated the effective period for similar application 
documentation requirements (such as area eligibility) as well as the 
frequency in which the allowable rural data sources are updated. Using 
this information, USDA determined a streamlined approach to minimize 
administrative burden. Standards, classifications, and delineations of 
rural data sources allowed under summer 2023 and moving forward (see 
section II.A.ii.) are updated with each decennial census

[[Page 90242]]

and periodically based on annual census surveys. Although more frequent 
redeterminations may more accurately and timely capture changes to an 
area's rural status, particularly during periods that overlap with 
census years, USDA concludes that shorter effective periods for rural 
designation may be too burdensome and are unnecessary for State 
agencies and Program operators.
    Accordingly, this rule adds language at Sec.  225.6(g)(1)(iii) and 
(g)(2)(ii) to require new documentation of rural designation every 5 
years, or earlier, if the State agency believes that an area's rural 
status has changed significantly since the previous determination.
vii. Clarifications to Existing Requirements: Free Meal Policy 
Statement, State-Sponsor Agreement, and Corrective Action Procedures
    This rule clarifies existing requirements in Sec. Sec.  225.6 and 
225.11, which fall under the purview of the State agency. These 
clarifications reflect the provision of non-congregate meal service 
under the Program, specifically in response to the addition of the new 
site type, conditional non-congregate site, as defined under this 
rulemaking.
    Program regulations at Sec.  225.6 require that State agencies 
provide and obtain specific information regarding a sponsor's meal 
service sites. Regulations at Sec.  225.6(f) require that as part of 
the free meal policy statement, sponsors must submit a 
nondiscrimination statement of their policy for serving meals to 
children. This rule clarifies that sponsors operating conditional non-
congregate sites are exempt from including a statement that meals 
served are free at all sites. In addition, the rule clarifies that 
sponsors operating conditional non-congregate sites that charge 
separately for meals must also include specific eligibility information 
in the policy statement, and that each sponsor of a conditional non-
congregate site must submit a copy of its hearing procedures with its 
application.
    Furthermore, Program regulations at Sec.  225.6(i) require that a 
sponsor approved for Program participation must enter into a written 
agreement with the State agency. Under the requirements in which all 
sponsors must agree to in writing, the rule clarifies that a sponsor of 
sites operating as conditional non-congregate sites are excepted from 
serving meals without cost to all children and may charge for meals 
served to children who do not meet the Program's income standards. 
These sponsors may claim reimbursement only for meals served to 
children who meet the Program's income standards. In addition, the rule 
clarifies that the requirement to maintain children on site while meals 
are consumed only applies for sponsors providing a congregate meal 
service. Finally, this rule revises the language at Sec.  225.6(i) to 
reflect the definition of ``termination for convenience'' that will be 
proposed in Serious Deficiency Process in the Child and Adult Care Food 
Program (CACFP) and the Summer Food Service Program (SFSP), RIN # 0584-
AE83. Program regulations at Sec.  225.6(i) allow the State agency or 
sponsor to terminate the agreement at its convenience, for 
considerations unrelated to the sponsor's performance of Program 
responsibilities under the agreement. USDA is revising this language to 
clarify that the State agency or sponsor may terminate the agreement at 
its convenience, upon mutual agreement, due to considerations unrelated 
to either party's performance of Program responsibilities under the 
agreement. USDA will review comments received on this definition both 
through the proposed rule, as well as through this rulemaking, and may 
further revise this terminology as needed in future rulemaking.
    Program regulations at Sec.  225.11 require the State agency to use 
corrective action procedures to improve Program performance, such as 
investigations, denial of applications and termination of sponsors, 
meal service restrictions, meal disallowances, corrective action and 
termination of sites, and technical assistance for improved meal 
service. This rule clarifies that the serious deficiencies of the 
simultaneous service of more than one meal to any child and excessive 
instances of off-site meal consumption outlined in Program regulations 
at Sec.  225.11 (c)(4)(iv) and (viii), respectively, are specific to 
congregate meal service operations. Also, as discussed in section II. 
B. v. and section II. E. i. of this rule, non-congregate meals must be 
served according to the number and type of meals allowed for the site 
type at 7 CFR 225.16(b)(3), and sponsors must implement an organized 
and supervised system which prevents overlap between meal services to 
reasonably ensure children are not receiving more than the daily 
maximum allowance of meals. Therefore, USDA is adding a new Program 
violation that is specific to non-congregate meal service to the list 
outlined at Sec.  225.11(c)(4). Under this IFR, for non-congregate meal 
service operations, distributing more than the daily meal limit when 
multi-day service is used is considered a serious deficiency which is 
grounds for disapproval of applications and for termination when the 
violation is recorded at a significant proportion of the sponsor's 
sites.
    In addition, Program regulations at Sec.  225.11(d) require that, 
with the exception of residential camps, the State agency must restrict 
to one meal service per day any site determined to be in violation of 
the time restrictions for meal service set forth at Sec.  225.16(c) 
when corrective action is not taken within a reasonable time, and all 
sites under a sponsor if more than 20 percent of the sponsor's sites 
are determined to be in violation of the time restrictions set. The 
regulations also require the State agency to make a reasonable effort 
to locate another source of meal service for these children if this 
action results in children not receiving meals under the Program. Given 
the exceptions to the meal service time requirements for non-congregate 
meal service provided through this rulemaking (see section II. E.), and 
that restricting non-congregate sites to one meal service per day could 
impact children served by that site, this rule clarifies that non-
congregate meal service sites are also excepted from the meal service 
restrictions at Sec.  225.11(d).
    Accordingly, this rule amends Sec.  225.6(f) to clarify 
nondiscrimination and hearing procedures statement requirements for 
non-congregate meal service. Additionally, this rule amends Sec.  
225.6(i) introductory text, (i)(4), (i)(7)(i) and (ii), and (i)(15) to 
clarify State-sponsor agreement requirements for sites that provide 
non-congregate meal service. Lastly, this rule amends Sec.  
225.11(c)(4) and (d) to clarify corrective action procedures as they 
relate to congregate and non-congregate meal service.

C. Requirements for Sponsor Participation

i. Sponsor Eligibility
    Program regulations at Sec.  225.14 outline requirements for 
sponsor participation. The requirements include application procedures, 
sponsor eligibility, and demonstration of administrative and financial 
ability to manage a food service effectively. Sponsor eligibility is 
limited to public or private nonprofit SFAs; public or private 
nonprofit residential summer camps; units of local, municipal, county, 
Tribal, or State governments; public or private nonprofit colleges or 
universities which are currently participating in the National Youth 
Sports Program; and private nonprofit organizations as defined in Sec.  
225.2 and outlined at Sec.  225.14(b). Additionally, Program 
regulations at Sec.  225.14(d) provide requirements that are specific 
to

[[Page 90243]]

sponsor types, such as camps. The Act requires State agencies to 
encourage participating service institutions in rural areas with no 
congregate meal service to provide non-congregate meals as appropriate.
    Summer 2023 guidance allowed any service institution that met the 
definition of sponsor in Program regulations at Sec.  225.2 to 
participate in the non-congregate meal service option with State agency 
approval, including sponsors new to the Program. Camps were also 
allowed to participate, though guidance acknowledged that regulations 
require camps to provide a regularly scheduled food service as part of 
an organized program for enrolled children, and such programming is 
generally understood to be congregate in nature. Furthermore, Summer 
2023 guidance instructed that to participate, experienced sponsors must 
be considered in ``good standing.'' However, sponsors that have 
experienced serious deficiencies in prior years may be approved to 
operate non-congregate meal service if, to the satisfaction of the 
State agency, all appropriate corrective actions to prevent recurrence 
of the deficiencies were taken as outlined in Program regulations at 
Sec.  225.6(b)(9).
    USDA received stakeholder feedback that expressed integrity 
concerns related to non-congregate meal service provided by community 
sponsors in recent years, most notably during non-congregate meal 
service operations provided during the COVID-19 pandemic. Several State 
agencies expressed more confidence in SFAs' ability to operate non-
congregate meal service as compared to other program sponsors due to 
their familiarity with NSLP and SBP meal service operations, as well as 
potential greater logistical capacity. One stakeholder commented that 
in their State only SFA sponsors were allowed to operate non-congregate 
meal service. However, three State agencies and four additional 
stakeholders emphasized the need to maintain access when considering 
important integrity measures. Finally, USDA did not receive direct 
feedback on camp (as defined at Sec.  225.2) participation from 
stakeholders. A limited number of State agencies reported that they did 
not include camps in non-congregate service this summer due to their 
interpretation that such sites are inherently congregate in nature.
    Program sponsors who provide year-round meal service have 
consistent program operations and thus are more readily able to 
demonstrate administrative capabilities than sponsors who only operate 
during the summer period. Although several stakeholders expressed 
concern for certain sponsor types operating a non-congregate meal 
service, USDA concludes that all service institutions listed under 
requirements at Sec.  225.14(b) are eligible to sponsor the Program, 
including providing congregate and non-congregate meal services, and 
thus, this rulemaking establishes no restrictions on providing non-
congregate meal service based on sponsor type. This decision is based 
on the need to maintain program access and support the stipulation that 
all sponsors considered in good standing and who meet all other program 
requirements should have the opportunity to provide non-congregate meal 
service. This decision also pertains to public or nonprofit private 
residential summer camps. As defined in 7 CFR 225.2, camps must provide 
a regularly scheduled food service as part of an organized program for 
enrolled children, and as mentioned above, such programming is 
generally understood to be congregate in nature. However, USDA 
recognizes that there may be situations where it makes sense to allow a 
camp to operate a non-congregate meal service for their enrolled 
children, such as service of the third meal if a congregate meal 
service is not provided, or meals provided to be consumed over the 
weekend while an enrolled child is in an active camp session, but 
during which there are no congregate meals provided. USDA encourages 
State agencies to work with potential sponsors of all types to 
determine how their proposed site(s) and operations can best serve 
communities in identified rural areas that could benefit the most from 
the provision of non-congregate meals and fill in gaps in service.
    Accordingly, this rule makes no regulatory changes to existing 
sponsor eligibility requirements Sec.  225.14(b), effectively allowing 
all service institutions listed under requirements at Sec.  225.14(b) 
to be eligible to sponsor the Program, including operating both 
congregate and non-congregate meal services. Although USDA is not 
making changes to sponsor eligibility, this rule limits some meal 
service options to sponsors in good standing and retains the meal 
service option of offer versus serve to SFAs, as discussed in section 
II. E. of this rule.
i. Clarifications to Existing Requirements: General Requirements at 
Sec.  225.14(c)
    Program regulations at Sec.  225.14(c)(3) require that, to be 
eligible to participate in the SFSP, applicant sponsors must conduct a 
regularly scheduled food service for children in areas in which poor 
economic conditions exist or must qualify as a camp. With the 
establishment of the non-congregate option in eligible rural areas, 
conditional non-congregate sites, as defined under this rulemaking, can 
also provide a regularly scheduled food service for children in non-
area eligible locations.
    Accordingly, this rule amends Sec.  225.14(c)(3) to clarify this 
qualification for applicant sponsors which will operate a conditional 
non-congregate site.

D. Responsibilities of Sponsors

i. Identification and Determination of Eligible Children
    As discussed in the background section of this rule, for summer 
2023 non-congregate meal service operations, the Act allowed State 
agencies to use service models developed for demonstration projects 
carried out under section 749(g) of the Agriculture, Rural Development, 
Food and Drug Administration, and Related Agencies Appropriations Act, 
2010 (Pub. L. 111-80; 123 Stat. 2132). Summer 2023 guidance allowed 
home delivery and meal pick-up options as provided in past 
demonstrations. The home delivery model allowed for non-congregate 
meals to be delivered directly to homes of participants. Program 
guidance required that sponsors approved to provide non-congregate meal 
service through home delivery must b